exv10w8





Exhibit 10.8




EXECUTION COPY




SECOND LIEN CREDIT AND GUARANTY AGREEMENT




dated as of February 28, 2007




among




AZ CHEM US INC., as Borrower,




AZ CHEM US HOLDINGS INC.

and




CERTAIN SUBSIDIARIES OF AZ CHEM US HOLDINGS INC.,

as Guarantors,




VARIOUS LENDERS,




GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Lead Arranger,Bookrunner and Syndication Agent,




and




CAPITALSOURCE FINANCE LLC, as

Administrative Agent and Collateral Agent




 





$125,000,000 Second Lien Senior Secured Credit Facility




 





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	SECTION 1. DEFINITIONS AND INTERPRETATION
	 	 	2	 
	 
	 	 	 	 
	1.1. Definitions
	 	 	2	 
	1.2. Accounting Terms
	 	 	30	 
	1.3. Interpretation, etc.
	 	 	30	 
	 
	 	 	 	 
	SECTION 2. LOANS
	 	 	31	 
	 
	 	 	 	 
	2.1. Term Loans
	 	 	31	 
	2.2. Reserved
	 	 	31	 
	2.3. [Reserved.]
	 	 	31	 
	2.4. [Reserved.]
	 	 	31	 
	2.5. Pro Rata Shares; Availability of Funds
	 	 	31	 
	2.6. Use of Proceeds
	 	 	32	 
	2.7. Evidence of Debt; Register; Lenders’ Books and Records; Notes
	 	 	32	 
	2.8. Interest on Loans
	 	 	33	 
	2.9. Conversion/Continuation
	 	 	34	 
	2.10. Default Interest
	 	 	35	 
	2.11. Fees; Call Protection
	 	 	35	 
	2.12. Repayment
	 	 	35	 
	2.13. Voluntary Prepayments
	 	 	35	 
	2.14. Mandatory Prepayments
	 	 	36	 
	2.15. Application of Prepayments
	 	 	38	 
	2.16. General Provisions Regarding Payments
	 	 	38	 
	2.17. Ratable Sharing
	 	 	40	 
	2.18. Making or Maintaining Eurodollar Rate Loans
	 	 	40	 
	2.19. Increased Costs; Capital Adequacy
	 	 	42	 
	2.20. Taxes; Withholding, etc
	 	 	43	 
	2.21. Obligation to Mitigate
	 	 	47	 
	2.22. [Reserved.]
	 	 	47	 
	2.23. Removal or Replacement of a Lender
	 	 	47	 
	2.24. Incremental Facilities
	 	 	48	 
	 
	 	 	 	 
	SECTION 3. CONDITIONS PRECEDENT
	 	 	49	 
	 
	 	 	 	 
	3.1. Closing Date
	 	 	49	 
	3.2. Conditions to Each Credit Extension
	 	 	52	 
	 
	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	53	 
	 
	 	 	 	 
	4.1. Organization; Requisite Power and Authority; Qualification
	 	 	53	 
	4.2. Equity Interests and Ownership
	 	 	53	 
	4.3. Due Authorization
	 	 	53	 
	4.4. No Conflict
	 	 	54	 
	4.5. Governmental Consents
	 	 	54	 
	4.6. Binding Obligation
	 	 	54	 






ii









 







	 	 	 	 	 
	 	 	Page	 
	4.7. Historical Financial Statements
	 	 	54	 
	4.8. Projections
	 	 	55	 
	4.9. No Material Adverse Change
	 	 	55	 
	4.10. Adverse Proceedings, etc
	 	 	55	 
	4.11. Payment of Taxes
	 	 	55	 
	4.12. Properties
	 	 	55	 
	4.13. Environmental Matters
	 	 	56	 
	4.14. No Defaults
	 	 	56	 
	4.15. Material Contracts
	 	 	57	 
	4.16. Governmental Regulation
	 	 	57	 
	4.17. Margin Stock
	 	 	57	 
	4.18. Employee Matters
	 	 	57	 
	4.19. Employee Benefit Plans
	 	 	57	 
	4.20. Solvency
	 	 	59	 
	4.21. Compliance with Statutes, etc
	 	 	59	 
	4.22. Disclosure
	 	 	59	 
	4.23. Patriot Act
	 	 	59	 
	 
	 	 	 	 
	SECTION 5. AFFIRMATIVE COVENANTS
	 	 	60	 
	 
	 	 	 	 
	5.1. Financial Statements and Other Reports
	 	 	60	 
	5.2. Existence
	 	 	63	 
	5.3. Payment of Taxes and Claims
	 	 	64	 
	5.4. Maintenance of Properties
	 	 	64	 
	5.5. Insurance
	 	 	64	 
	5.6. Books and Records; Inspections
	 	 	65	 
	5.7. Lenders Meetings
	 	 	65	 
	5.8. Compliance with Laws
	 	 	65	 
	5.9. Environmental
	 	 	65	 
	5.10. Subsidiaries
	 	 	66	 
	5.11. Additional Material Real Estate Assets
	 	 	67	 
	5.12. Interest Rate Protection
	 	 	69	 
	5.13. Further Assurances
	 	 	69	 
	5.14. Miscellaneous Covenants
	 	 	69	 
	5.15. Certain Post-Closing Obligations
	 	 	70	 
	 
	 	 	 	 
	SECTION 6. NEGATIVE COVENANTS
	 	 	70	 
	 
	 	 	 	 
	6.1. Indebtedness
	 	 	70	 
	6.2. Liens
	 	 	72	 
	6.3. No Further Negative Pledges
	 	 	74	 
	6.4. Restricted Junior Payments
	 	 	74	 
	6.5. Restrictions on Subsidiary Distributions
	 	 	75	 
	6.6. Investments
	 	 	75	 
	6.7. Financial Covenant
	 	 	77	 
	6.8. Fundamental Changes; Disposition of Assets; Acquisitions
	 	 	78	 
	6.9. Disposal of Subsidiary Interests
	 	 	79	 
	6.10. Sales and Lease-Backs
	 	 	80	 






iii









 







	 	 	 	 	 
	 	 	Page	 
	6.11. Transactions with Shareholders and Affiliates
	 	 	80	 
	6.12. Conduct of Business
	 	 	80	 
	6.13. Permitted Activities of Holding Companies
	 	 	80	 
	6.14. Amendments or Waivers of Organizational Documents and Certain
Related Agreements
	 	 	81	 
	6.15. Amendments or Waivers of with respect to First Lien Credit Agreement
	 	 	81	 
	6.16. Fiscal Year
	 	 	81	 
	 
	 	 	 	 
	SECTION 7. GUARANTY
	 	 	81	 
	 
	 	 	 	 
	7.1. Guaranty of the Obligations
	 	 	81	 
	7.2. Contribution by Guarantors
	 	 	81	 
	7.3. Payment by Guarantors
	 	 	82	 
	7.4. Liability of Guarantors Absolute
	 	 	82	 
	7.5. Waivers by Guarantors
	 	 	84	 
	7.6. Guarantors’ Rights of Subrogation, Contribution, etc
	 	 	85	 
	7.7. Subordination of Other Obligations
	 	 	86	 
	7.8. Continuing Guaranty
	 	 	86	 
	7.9. Authority of Guarantors or Borrower
	 	 	86	 
	7.10. Financial Condition of Borrower
	 	 	86	 
	7.11. Bankruptcy, etc.
	 	 	86	 
	7.12. Discharge of Guaranty Upon Sale of Guarantor
	 	 	87	 
	 
	 	 	 	 
	SECTION 8. EVENTS OF DEFAULT
	 	 	87	 
	 
	 	 	 	 
	8.1. Events of Default
	 	 	87	 
	 
	 	 	 	 
	SECTION 9. AGENTS
	 	 	90	 
	 
	 	 	 	 
	9.1. Appointment of Agents
	 	 	90	 
	9.2. Powers and Duties
	 	 	91	 
	9.3. General Immunity
	 	 	91	 
	9.4. Agents Entitled to Act as Lender
	 	 	93	 
	9.5. Lenders’ Representations, Warranties and Acknowledgment
	 	 	93	 
	9.6. Right to Indemnity
	 	 	93	 
	9.7. Successor Administrative Agent and Collateral Agent
	 	 	94	 
	9.8. Collateral Documents and Guaranty
	 	 	95	 
	9.9. Withholding Tax
	 	 	96	 
	 
	 	 	 	 
	SECTION 10. MISCELLANEOUS
	 	 	96	 
	 
	 	 	 	 
	10.1. Notices
	 	 	96	 
	10.2. Expenses
	 	 	97	 
	10.3. Indemnity
	 	 	98	 
	10.4. Set-Off
	 	 	99	 
	10.5. Amendments and Waivers
	 	 	99	 
	10.6. Successors and Assigns; Participations
	 	 	100	 
	10.7. Independence of Covenants
	 	 	104	 
	10.8. Survival of Representations, Warranties and Agreements
	 	 	104	 






iv









 







	 	 	 	 	 
	 	 	Page	 
	10.9. No Waiver; Remedies Cumulative
	 	 	104	 
	10.10. Marshalling; Payments Set Aside
	 	 	104	 
	10.11. Severability
	 	 	104	 
	10.12. Obligations Several; Independent Nature of Lenders’ Rights
	 	 	105	 
	10.13. Headings
	 	 	105	 
	10.14. APPLICABLE LAW
	 	 	105	 
	10.15. CONSENT TO JURISDICTION
	 	 	105	 
	10.16. WAIVER OF JURY TRIAL
	 	 	105	 
	10.17. Confidentiality
	 	 	106	 
	10.18. Usury Savings Clause
	 	 	107	 
	10.19. Counterparts
	 	 	107	 
	10.20. Effectiveness
	 	 	108	 
	10.21. Patriot Act
	 	 	108	 
	10.22. Electronic Execution of Assignments
	 	 	108	 
	10.23. [Reserved]
	 	 	108	 
	10.24. Release on Payment in Full
	 	 	108	 






v









 






	 	 	 	 	 	 	 
	APPENDICES:

	 	 	A	 	 	Commitments
	 

	 	 	B	 	 	Notice Addresses
	 
	SCHEDULES:

	 	 	4.1	 	 	Jurisdictions of Organization and Qualification
	 

	 	 	4.2	 	 	Equity Interests and Ownership
	 

	 	 	4.12	 	 	Real Estate Assets
	 

	 	 	4.15	 	 	Material Contracts
	 

	 	 	4.19	 	 	Employee Benefit Plans
	 

	 	 	5.11	 	 	Mortgaged Properties
	 

	 	 	6.1	 	 	Certain Indebtedness
	 

	 	 	6.2	 	 	Certain Liens
	 

	 	 	6.5	 	 	Certain Restrictions on Subsidiary Distributions
	 

	 	 	6.6	 	 	Certain Investments
	 

	 	 	6.11	 	 	Certain Affiliate Transactions
	 
	EXHIBITS:

	 	 	A-1	 	 	Funding Notice
	 

	 	 	A-2	 	 	Conversion/Continuation Notice
	 

	 	 	B	 	 	Note
	 

	 	 	C	 	 	Compliance Certificate
	 

	 	 	D	 	 	Assignment Agreement
	 

	 	 	E	 	 	Certificate Re Non-bank Status
	 

	 	 	F-1	 	 	Closing Date Certificate
	 

	 	 	F-2	 	 	Solvency Certificate
	 

	 	 	G	 	 	Counterpart Agreement
	 

	 	 	H	 	 	Landlord Personal Property Collateral Access Agreement
	 

	 	 	I	 	 	Intercompany Note
	 

	 	 	J	 	 	Joinder Agreement
	 

	 	 	K	 	 	Intercreditor Agreement







vi












 





SECOND LIEN CREDIT AND GUARANTY AGREEMENT




     This SECOND LIEN CREDIT AND GUARANTY AGREEMENT, dated as of February 28, 2007, is entered into
by and among AZ CHEM US INC., a Delaware corporation
(“ Borrower”), AZ CHEM US HOLDINGS INC., a Delaware corporation (“U.S. Holdings”),
CERTAIN SUBSIDIARIES OF U.S. HOLDINGS, as Guarantors, the Lenders party hereto from time to time,
GOLDMAN SACHS CREDIT PARTNERS L.P. (“GSCP”), as Syndication Agent (in such capacity, “Syndication
Agent”), and CAPITALSOURCE FINANCE LLC (“CapitalSource”), as Administrative Agent (together with
its permitted successors in such capacity, “Administrative Agent”) and as Collateral Agent
(together with its permitted successors in such capacity, “Collateral Agent”).



RECITALS:




     WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth
for such terms in Section 1.1 hereof;



     WHEREAS, pursuant to that certain Purchase and Sale Agreement, dated as of December 17, 2006
(as it may be amended, supplemented, restated or otherwise modified from time to time, the “Stock
Purchase Agreement”), Sponsor plans to acquire (the “Acquisition”) all the Equity Interests of
Arizona Chemical Company, a Delaware corporation, International Paper Sweden Investment Company
A.B., a company organized under the laws of Sweden, International Paper Finland Investment Company,
a company organized under the laws of Finland and Union Camp Chemicals Limited, a company organized
under the laws of England and Wales (collectively, the “Acquired Businesses”) from their
stockholders, International Paper Company, a New York corporation, and International Paper
Investments (Luxembourg) S.à.r.l., a Luxembourg société à responsabilité limitée (collectively, the
“Seller”);



     WHEREAS, Lenders have agreed to extend certain credit facilities to the Borrower, in an
aggregate amount not to exceed $125,000,000, the proceeds of which will be used, together with the
First Lien Loans and the Equity Contribution, (i) to finance, in part, the Acquisition and (ii) to
pay fees and expenses incurred in connection with the Transactions;



     WHEREAS, Borrower has agreed to guarantee and to secure all of its Obligations as Borrower and
the other Guarantors by granting to the Collateral Agent, for the benefit of the Secured Parties, a
Second Priority Lien on substantially all of its assets (to the extent set forth herein and in each
other Credit Document), including a pledge of substantially all of the Equity Interests of each of
its directly-owned U.S. Subsidiaries and 65% of the voting Equity Interests and 100% of the
non-voting Equity Interests of each of its first tier Non-U.S. Subsidiaries;



     WHEREAS, each of the Guarantors has agreed (i) to guarantee the Obligations of the Borrower
and (ii) to secure its guarantee of such Obligations by granting to the Collateral Agent, for the
benefit of the Secured Parties, a Second Priority Lien on substantially all of their respective
assets (to the extent set forth herein and in each other Credit Document), including a pledge of
all of the Equity Interests of each of their respective directly owned U.S. Subsidiaries and 65% of
the voting Equity Interests and
100% of the non-voting Equity Interests of each of their respective first tier Non-U.S.
Subsidiaries; and



 









 






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



SECTION 1. DEFINITIONS AND INTERPRETATION




     1.1. Definitions. The following terms used herein, including in the preamble, recitals,
exhibits and schedules hereto, shall have the following meanings:



          “ACC” means Arizona Chemical Company, a Delaware corporation. “



          “Acquired
Businesses” as defined in the recitals. “


          “Acquisition” as defined in the
recitals.



          “Adjusted Eurodollar Rate” means, for any Interest Rate Determination Date with respect to an
Interest Period for a Eurodollar Rate Loan, the rate per annum obtained by dividing (i) (a) the
rate per annum equal to the rate determined by Administrative Agent to be the offered rate which
appears on the page of the Telerate Screen which displays an average British Bankers Association
Interest Settlement Rate (such page currently being page number 3740 or 3750, as applicable) for
deposits (for delivery on the first day of such Interest Period) with a term equivalent to such
Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on
such Interest Rate Determination Date, (b) in the event the rate referenced in the preceding clause
(a) does not appear on such page or service or if such page or service shall cease to be available,
the rate per annum equal to the rate determined by Administrative Agent to be the offered rate on
such other page or other service which displays an average British Bankers’ Association Interest
Settlement Rate for deposits (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period in Dollars determined as of approximately 11:00 a.m. (London,
England time) on such Interest Rate Determination Date, or (c) in the event the rates referenced in
the preceding clauses (a) and (b) are not available, the rate per annum equal to the offered
quotation rate to first class banks in the London interbank market by BANA for deposits (for
delivery on the first day of the relevant Interest Period) in Dollars of amounts in same day funds
comparable to the principal amount of the applicable Loan of Administrative Agent, in its capacity
as a Lender, for which the Adjusted Eurodollar Rate is then being determined with maturities
comparable to such Interest Period as of approximately 11:00 a.m. (London, England time) on such
Interest Rate Determination Date, by (ii) an amount equal to (a) one minus (b) the Applicable
Reserve Requirement.



          “Administrative Agent” as defined in the preamble hereto.



          “Adverse Proceeding” means any action, suit, proceeding, (whether administrative, judicial or
otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of
Holdings or any of its Subsidiaries) at law or in equity, or before or by any Governmental
Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the
knowledge of Holdings or any of its Subsidiaries, threatened in writing against or affecting
Holdings or any of its Subsidiaries or any property of Holdings or any of its Subsidiaries.



2









 





          “Affected Lender” as defined in Section 2.18(b).



          “Affected Loans” as defined in Section 2.18(b).



          “Affiliate” means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled
by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 10% or more of the Securities having ordinary voting power for
the election of directors of such Person or (ii) to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting securities or by contract or
otherwise.



          “Agent” means each of Administrative Agent, Syndication Agent and Collateral Agent.



          “Agent Affiliates” as defined in Section 10.1(b). “



          Aggregate Amounts Due” as defined in Section 2.17. “



          Aggregate Payments”
as defined in Section 7.2.



          “Agreement” means this First Lien Credit and Guaranty Agreement, dated as of February 28,
2007, as it may be amended, supplemented, restated or otherwise modified from time to time.



          “Applicable Reserve Requirement” means, at any time, for any Eurodollar Rate Loan, the maximum
rate, expressed as a decimal, at which reserves (including, without limitation, any basic marginal,
special, supplemental, emergency or other reserves) are required to be maintained with respect
thereto against “Eurocurrency liabilities” (as such term is defined in Regulation D) under
regulations issued from time to time by the Board of Governors or other applicable banking
regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement shall
reflect any other reserves required to be maintained by such member banks with respect to (i) any
category of liabilities which includes deposits by reference to which the applicable Adjusted
Eurodollar Rate or any other interest rate of a Loan is to be determined, or (ii) any category of
extensions of credit or other assets which include Eurodollar Rate Loans. A Eurodollar Rate Loan
shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to
reserve requirements without benefits of credit for proration, exceptions or offsets that may be
available from time to time to the applicable Lender. The rate of interest on Eurodollar Rate Loans
shall be adjusted automatically on and as of the effective date of any change in the Applicable
Reserve Requirement.



          “Approved Electronic Communications” means any notice, demand, communication, information,
document or other material that any Credit Party provides to Administrative Agent pursuant to any
Credit Document or the transactions contemplated therein which is distributed to the Agents or to
the lenders by means of electronic communications pursuant to Section 10.1(b).



3









 





          “Asset Sale” means a sale, lease or sub-lease (as lessor or sublessor), sale and leaseback,
assignment, conveyance, exclusive license (as licensor or sublicensor), transfer or other
disposition to, or any exchange of property with, any Person (other than among Borrower and
Guarantors or among the European Group Members), in one transaction or a series of transactions, of
all or any part of Holdings’ or any of its Subsidiaries’ businesses, assets or properties of any kind, whether real, personal, or mixed
and whether tangible or intangible, whether now owned or hereafter acquired, leased or licensed,
including, without limitation, the Equity Interests of any of Holdings’ Subsidiaries, other than
(i) inventory (or other assets) sold, leased or licensed out in the ordinary course of business
(excluding any such sales, leases or licenses out by operations or divisions discontinued or to be
discontinued), and (ii) sales, leases or licenses out of other assets for consideration of less
than $2,500,000 in the aggregate during any Fiscal Year.



          “Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form
of Exhibit D, with such amendments or modifications as may be approved by Administrative Agent.



          “Assignment Effective Date” as defined in Section 10.6(b).



          “Authorized Officer” means, as applied to any Person, any individual holding the position of
chairman of the board (if an officer), chief executive officer, president or one of its vice
presidents (or the equivalent thereof), or such Person’s chief financial officer or treasurer.



          “BANA” as defined in the preamble hereto.



          “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and
hereafter in effect, or any successor statute.



          “Base Rate” means, for any day, a rate per annum equal to the greater of (i) the Prime Rate in
effect on such day and (ii) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective on the effective day of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.



          “Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base
Rate.



          “Beneficiary” means each Agent, Lender and Lender Counterparty.



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



          “Borrower” as defined in the preamble hereto.



          “Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York or is a day on which banking institutions located
in such state are authorized or required by law or other governmental action to close and (ii) with
respect to all notices, determinations, fundings and payments in connection



4









 




with the Adjusted Eurodollar Rate or any Eurodollar Rate Loans, the term “Business Day” shall mean
any day which is a Business Day described in clause (i) and which is also a day for trading by and
between banks in Dollar deposits in the London interbank market.




          “Capital Lease” means, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be
accounted for as a capital lease on the balance sheet of that Person.



          “CapitalSource” as defined in the preamble hereto.



          “Cash” means money, currency or a credit balance in any Deposit Account.



          “Cash Equivalents” means, as at any date of determination, (i) marketable securities (a)
issued or directly and unconditionally guaranteed as to interest and principal by the United States
government or (b) issued by any agency of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America, in each case maturing within
one year after such date; (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 such date and having, at the time of the
acquisition thereof, 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 creation thereof and having, at
the time of the acquisition thereof, 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 (or, in the case of Holdings and its
Non-U.S. Subsidiaries, the foreign equivalent) maturing within one year after such date and 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 that (a) is at least “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 $100,000,000 (or, in the case of
Holdings and its Non-U.S. Subsidiaries, any local office of any commercial bank organized under the
law of the relevant jurisdiction or any political subdivision thereof which has combined capital
and surplus and undivided profits in excess of the Non-U.S. Currency Equivalent of $100,000,000);
and (v) shares of any money market mutual fund 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; provided, that, in the case of any Investment by Holdings and its Non-U.S.
Subsidiary, “Cash Equivalents” shall also include: (x) direct obligations of the sovereign nation
(or any agency thereof) in which Holdings or such Non-U.S. Subsidiary is organized and is
conducting business or in obligations fully and unconditionally guaranteed by such sovereign nation
(or any agency thereof), in each case maturing within a year after such date and having, at the
time of the acquisition thereof, a rating equivalent to at least A-1 from S&P and at least P-1 from
Moody’s, (y) investments of the type and maturity described in clauses (i) through (v) above of
foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings
described in such clauses or equivalent ratings from comparable foreign rating agencies and (z)
shares of money market mutual or similar funds which invest exclusively in assets otherwise
satisfying the requirements of this definition (including this proviso).



5









 





          “Certificate re Non-Bank Status” means a certificate substantially in the form of Exhibit E.



          “Change of Control” means, at any time, (i) Sponsor shall cease to beneficially own and
control at least 51% on a fully diluted basis of the economic and voting interests in the Equity
Interests of Holdings; (ii) Holdings shall cease to beneficially own and control directly or
indirectly 100% on a fully diluted basis of the
economic and voting interest in the Equity Interests of Borrower and SWEAcqCo; or (iii) any
“change of control” or similar event under the First Lien Credit Agreement shall occur.



          “Class” means (i) with respect to Lenders, each of the following classes of Lenders: (a)
Lenders having Second Lien Term Loan Exposure, and (ii) with respect to Loans, each of the
following classes of Loans: (a) Second Lien Term Loans, and (b) the New Term Loans.



          “Closing Date” means the date on which the Term Loans are made.



          “Closing Date Certificate” means a Closing Date Certificate substantially in the form of
Exhibit F-1.



          “Collateral” means, collectively, all of the real, personal and mixed property (including
Equity Interests) in which Liens are purported to be granted pursuant to the Collateral Documents
as security for all or any part of the Obligations (subject to exceptions contained in the
Collateral Documents) (provided that the intention of this Agreement and the Collateral Documents
is to exclude from the term “Collateral” any property that is reasonably likely to cause a material
deemed distribution pursuant to Section 956 of the Internal Revenue Code, and this Agreement and
the Collateral Documents shall be interpreted in a manner that does not cause, or prevent the
Credit Parties from taking actions that would avoid, such a material deemed distribution).



          “Collateral Agent” as defined in the preamble hereto.



          “Collateral Documents” means the Pledge and Security Agreement, the Intercreditor Agreement,
the Mortgages, the Intellectual Property Security Agreements, the Landlord Personal Property
Collateral Access Agreements, if any, the Control Agreements, if any, and all other instruments,
documents and agreements delivered by any Credit Party pursuant to this Agreement or any of the
other Credit Documents in order to grant to Collateral Agent, for the benefit of Secured Parties, a
Lien on any real, personal or mixed property of that Credit Party as security for all or any part
of the Obligations.



          “Collateral Questionnaire” means a certificate in form satisfactory to Collateral Agent that
provides information with respect to the personal or mixed property of each Credit Party.



          “Commitment” means the Second Lien Term Loan Commitment or the New Term Loan Commitment of a
Lender, and “Commitments” means such commitments of all Lenders.



6









 





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



          “Consolidated Adjusted EBITDA” means, for any period, an amount determined for Holdings and
its Subsidiaries on a consolidated basis equal to (i) Consolidated Net Income, plus, to the extent
reducing Consolidated Net Income, the sum, without duplication, of amounts for (a) consolidated
interest expense, (b) provisions for taxes based on income, (c) total depreciation expense, (d)
total amortization expense, (e) Transaction Costs incurred and paid in the period (to the extent
expensed) in an aggregate amount since the Closing Date not to exceed $22,000,000, (f) management
fees paid or accruing in such period (to the extent not added back in a prior period) in an amount
not to exceed $2,000,000 per Fiscal Year, (g) Cash severance payments in connection with plant
closures (including partial plant closures) related to the Acquisition, (h) Cash stand alone costs
incurred prior to the date that is eighteen months after the Closing Date associated with the
transition of Holdings and its Subsidiaries to a stand alone basis including fees paid to the
Seller for transition services, fees paid to third parties for one time transition and migration
services, and other expenses which are one time in nature and specifically related to readying the
business for stand alone operations in an aggregate amount not to exceed $10,000,000, (i) Cash
expenses related to third party advisors for service provided regarding acquisitions or
divestitures permitted hereunder, (j) Cash financing charges including fees, expenses, underwriting
discounts, prepayment premiums, including amounts paid under this Agreement or in connection with
the incurrence of any other Indebtedness permitted hereunder, (k) unusual and non-recurring Cash
charges, (l) Cash expenses (excluding severance payments) in connection with closures and
consolidation of plants (including partial plant closures) in an aggregate amount not to exceed
$10,000,000 per Fiscal Year, (m) one-time third party professional costs paid in Cash in connection
with plant efficiency projects in an aggregate amount not to exceed $6,000,000 and (n) other
non-Cash charges reducing Consolidated Net Income (excluding any such non-Cash charge to the extent
that it represents an accrual or reserve for potential Cash charge in any future period or
amortization of a prepaid Cash charge that was paid in a prior period), minus (ii) other non-Cash
gains increasing Consolidated Net Income for such period (excluding any such non-Cash gain to the
extent it represents the reversal of an accrual or reserve for potential Cash gain in any prior
period); provided that with respect to any calculation period ending prior to the first anniversary
of the Closing Date, Consolidated Adjusted EBITDA for the Fiscal Quarter ended December 31, 2006
shall be deemed to be $17,300,000.



          “Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures
of Holdings and its Subsidiaries during such period determined on a consolidated basis that, in
accordance with GAAP, are or should be included in “purchase of property and equipment” reflected
in the consolidated statement of cash flows of Holdings and its Subsidiaries but excluding any such
expenditure made (i) in accordance with the terms of this Agreement to restore, replace or rebuild
property to the condition of such property immediately prior to any damage, loss, destruction or
condemnation of such property, to the extent such expenditure is made with insurance proceeds,
condemnation awards or damage recovery proceeds relating to any such damage, loss, destruction or
condemnation, and (ii) with the proceeds from the sale or other disposition or trade-in or exchange
of assets to the extent utilized to purchase functionally equivalent assets.



7









 





          “Consolidated Current Assets” means, as at any date of determination, the total assets of
Holdings and its Subsidiaries on a consolidated basis that may properly be classified as current
assets in conformity with GAAP, excluding Cash and Cash Equivalents.



          “Consolidated Current Liabilities” means, as at any date of determination, the total
liabilities of Holdings and its Subsidiaries on a consolidated basis
that may properly be classified as current liabilities in conformity with GAAP, excluding the
current portion of long term debt.



          “Consolidated Excess Cash Flow” means, for any period, an amount (if positive) equal to: (i)
the sum, without duplication, of the amounts for such period of (a) Consolidated Adjusted EBITDA,
plus (b) the Consolidated Working Capital Adjustment (other than any changes in Consolidated
Working Capital that result from the consummation of a Permitted Acquisition), minus (ii) the sum,
without duplication, of the amounts for such period paid in cash from operating cash flow of (a)
scheduled repayments of Indebtedness for borrowed money (excluding repayments of Revolving Loans or
Swing Line Loans (each, as defined in the First Lien Credit Agreement) except to the extent the
Revolving Commitments (as defined in the First Lien Credit Agreement) are permanently reduced in
connection with such repayments), (b) Consolidated Capital Expenditures (net of any proceeds of (y)
any related financings with respect to such expenditures and (z) any sales of assets used to
finance such expenditures), (c) Consolidated Interest Expense, (d) repayments of Indebtedness
pursuant to any Capital Leases, (e) Transaction Costs incurred and paid in the period (to the
extent expensed) in an aggregate amount since the Closing Date not to exceed $22,000,000, (f)
Restricted Junior Payments permitted pursuant to Sections 6.4(b) and (e), (g) management fees paid
in such period (to the extent not added back in a prior period) in an amount not to exceed
$2,000,000 per Fiscal Year, (h) all other Cash items that were added back in arriving at
Consolidated Adjusted EBITDA for such period and (i) provisions for current taxes based on income
of Holdings and its Subsidiaries and payable in cash with respect to such period.



          “Consolidated Interest Expense” means, for any period, total interest expense of Holdings and
its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of Holdings
and its Subsidiaries, including all commissions, discounts and other fees and charges owed with
respect to letters of credit and net costs under Interest Rate Agreements, but excluding, however,
any amount not payable in Cash and any amounts referred to in Section 2.11(a) and the equivalent
provision of the First Lien Credit Agreement payable on or before the Closing Date.



          “Consolidated Net Income” means, for any period, (i) the net income (or loss) of Holdings and
its Subsidiaries on a consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP, minus (ii) (a) the income (or loss) of any Person (other than a
Subsidiary of Holdings) in which any other Person (other than Holdings or any of its Subsidiaries)
has a joint interest, except to the extent of the amount of dividends or other distributions
actually paid to Holdings or any of its Subsidiaries by such Person during such period, (b) the
income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of Holdings or is
merged into or consolidated with Holdings or any of its Subsidiaries or that Person’s assets are
acquired by Holdings or any of its Subsidiaries, (c) the income of any Subsidiary of Holdings to
the extent that the declaration or payment of dividends or similar



8









 




distributions by that Subsidiary of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary, (d) any after-tax gains or
losses attributable to Asset Sales or returned surplus assets of any Pension Plan, and (e) (to the
extent not included in clauses (a) through (d) above) any net extraordinary gains or net
extraordinary losses.




          “Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance
sheet amount of all Indebtedness of Holdings and its Subsidiaries determined on a consolidated
basis in accordance with GAAP minus up to $25,000,000 of unrestricted Cash and Cash Equivalents of
any Group Member.



          “Consolidated Working Capital” means, as at any date of determination, the excess of
Consolidated Current Assets over Consolidated Current Liabilities.



          “Consolidated Working Capital Adjustment” means, for any period on a consolidated basis, the
amount (which may be a negative number) by which Consolidated Working Capital as of the beginning
of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period.



          “Contractual Obligation” means, as applied to any Person, any provision of any Security issued
by that Person or of 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.



          “Contributing Guarantors” as defined in Section 7.2.



          “Control Agreements” means each control agreement to be executed and delivered by the
Collateral Agent for the benefit of the Secured Parties, the agent under the First Lien Credit
Agreement, a securities intermediary or depositary bank and the applicable Credit Party following
the Closing Date and each control agreement to be executed and delivered by Collateral Agent, a
securities intermediary or depositary bank and the applicable Credit Party pursuant to the terms of
the Pledge and Security Agreement with such modifications as Collateral Agent may reasonably
request or approve.



          “Conversion/Continuation Date” means the effective date of a continuation or conversion, as
the case may be, as set forth in the applicable Conversion/Continuation Notice.



          “Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the
form of Exhibit A-2.



          “Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit G
delivered by a Credit Party pursuant to Section 5.10.



          “Credit Date” means the date of a Credit Extension.



9









 






          “Credit Document” means any of this Agreement, the Notes, if any, the Collateral Documents,
and all other documents, instruments or agreements executed and delivered by a Credit Party for the
benefit of any Agent, or any Lender in connection herewith.



          “Credit Extension” means the making of a Loan.



          “Credit Party” means, collectively, the Borrower and the Guarantors. “



          “Cure
Amount” as defined in Section 6.8(e). “



          “Cure Right” as defined in Section
6.8(e).



          “Currency Agreement” means any foreign exchange contract, currency swap agreement, futures
contract, option contract, synthetic cap or other similar
agreement or arrangement, each of which is for the purpose of hedging the foreign currency
risk associated with Holdings’ and its Subsidiaries’ operations and not for speculative purposes.



          “Default” means a condition or event that, after notice or lapse of time or both, would
constitute an Event of Default.



          “Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account evidenced by a
negotiable certificate of deposit.



          “Disqualified Equity Interests” means any Equity Interest which, by its terms (or by the terms
of any security or other Equity Interests into which it is convertible or for which it is
exchangeable), or upon the happening of any event or condition (i) matures or is mandatorily
redeemable (other than solely for Equity Interests which are not otherwise Disqualified Equity
Interests), pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of
the holder thereof (other than solely for Equity Interests which are not otherwise Disqualified
Equity Interests), in whole or in part, (iii) provides for the scheduled payments or dividends in
cash, or (iv) is or becomes convertible into or exchangeable for Indebtedness or any other Equity
Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that
is 91 days after the Maturity Date of the Term Loans, except, in the case of clauses (i) and (ii),
if as a result of a change of control or asset sale, so long as any rights of the holders thereof
upon the occurrence of such a change of control or asset sale event are subject to the prior
payment in full of all Obligations.



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



          “Eligible Assignee” means (i) any Lender, any Affiliate of any Lender and any Related Fund
(any two or more Related Funds being treated as a single Eligible Assignee for purposes of Section
10.6), and (ii) any commercial bank, insurance company, investment or mutual fund or other entity
that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which
extends credit or buys loans; provided, no Affiliate of Holdings or Sponsor shall be an Eligible
Assignee.



10









 





          “Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA
which is or was sponsored, maintained or contributed to by, or required to be contributed by,
Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates.



          “Environmental Claim” means any investigation, notice, notice of violation, claim, action,
suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise),
by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with
any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous
Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any
actual or alleged damage, injury, threat or harm to health, safety, natural resources or the
environment.



          “Environmental Laws” means any and all current or future foreign or domestic, federal or state
(or any subdivision of either of them), laws (including, without limitation, common law and rules
and regulations of the European Union), statutes,
ordinances, orders, rules, regulations, judgments, Governmental Authorizations, or any other
requirements of Governmental Authorities relating to (i) environmental matters, including those
relating to any Hazardous Materials Activity; (ii) the generation, use, storage, transportation or
disposal of Hazardous Materials; or (iii) occupational safety and health, industrial hygiene, land
use or the protection of human, plant or animal health or welfare, in any manner applicable to
Holdings or any of its Subsidiaries or any Facility.



          “Equity Contribution” means the capital contribution in cash by the Sponsor and the other
investors as of the Closing Date of at least $130,000,000 to the common Equity Interests of AZ Chem
Investments Partners LP which shall be contributed to Holdings and then to SWEAcqCo in order to
consummate the Acquisition.



          “Equity Interests” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including partnership interests and membership interests,
and any and all warrants, rights or options to purchase or other arrangements or rights to acquire
any of the foregoing.



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



          “ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a
controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is
a member of a group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an
affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code
of which that Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member. Any former ERISA Affiliate of Holdings or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of Holdings or any such Subsidiary
within the meaning of this definition with respect to the period such entity was an ERISA Affiliate
of Holdings or such Subsidiary and with respect to



11









 




liabilities arising after such period for which Holdings or such Subsidiary would reasonably be
expected to be liable under the Internal Revenue Code or ERISA.




          “ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan (excluding those for which the
provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet
the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the Internal Revenue Code)
or the failure to make by its due date a required installment under Section 412(m) of the Internal
Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by Holdings, any of its Subsidiaries or
any of their respective ERISA Affiliates from any
Pension Plan with two or more contributing sponsors or the termination of any such Pension
Plan, in either case resulting in liability to Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the
PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition
which would reasonably be expected to constitute grounds under ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on
Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section
4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the
withdrawal of Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in a
complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any
Multiemployer Plan if there is any potential liability therefor, or the receipt by Holdings, any of
its Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan
that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it
intends to terminate or has terminated under Section 4041A or 4042 of ERISA, if there is any
potential liability therefor; (viii) the occurrence of an act or omission which gives or would be
reasonably expected to give rise to the imposition on Holdings, any of its Subsidiaries or any of
their respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of
the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of
ERISA in respect of any Employee Benefit Plan; (ix) the assertion of a material claim (other than
routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or
the assets thereof, or against Holdings, any of its Subsidiaries or any of their respective ERISA
Affiliates in connection with any Employee Benefit Plan; (x) receipt from the Internal Revenue
Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended
to be qualified under Section 401(a) of the Internal Revenue Code) to qualify under Section 401(a)
of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to
qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; or (xi) the
imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or
pursuant to ERISA with respect to any Pension Plan; or (xii) any event with respect to any Non-U.S.
Plan which is similar to any event described in any of subsections (i) through (xi) hereof.



12









 





          “Eurodollar Rate Loan” means a Loan bearing interest at a rate determined by reference to the
Adjusted Eurodollar Rate.



          “European Group Member” means each of Holdings, SWEAcqCo and Non-U.S. Guarantors (as defined
in the First Lien Credit Agreement).



          “Event of Default” means each of the conditions or events set forth in Section 8.1.



          “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and
any successor statute.



          “Facility” means any real property (including all buildings, fixtures or other improvements
located thereon) now, hereafter or heretofore owned, leased,
operated or used by Holdings or any of its Subsidiaries or any of their respective
predecessors or Affiliates.



          “Fair Share” as defined in Section 7.2.



          “Fair Share Contribution Amount” as defined in Section 7.2.



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



          “Financial Officer Certification” means, with respect to the financial statements for which
such certification is required, the certification of the chief financial officer of Holdings that
such financial statements fairly present, in all material respects, the financial condition of
Holdings and its Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated, subject to changes resulting from audit and normal
year-end adjustments.



          “Financial Performance Covenant” means the covenant of Borrower set forth in Section 6.7(a).



          “Financial Plan” as defined in Section 5.1(h).



          “First Lien Credit Agreement” means the First Lien Credit and Guaranty Agreement dated as of
the Closing Date among the Group Members, GSCP as sole lead arranger, sole bookrunner, syndication
agent, administrative agent and collateral agent and Bank of America, N.A., as documentation agent
and the other agents and lenders party thereto as it may



13









 




be amended, modified, renewed, restated, replaced or refinanced from time to time in accordance
with the terms hereof.




          “First Lien Loans” means the loans and letters or credit under the First Lien Credit
Agreement.



          “First Lien Obligations” means the “Obligations” under and as defined in the First Lien Credit
Agreement; provided, that the aggregate outstanding principal amount of loans and letters of credit
included therein shall not exceed the Cap Amount (as defined in the Intercreditor Agreement).



          “First Priority” means, with respect to any Lien purported to be created in any Collateral
pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is
subject, other than any Permitted Lien.



          “Fiscal Quarter” means a fiscal quarter of any Fiscal Year.



          “Fiscal Year” means the fiscal year of Holdings and its Subsidiaries ending on December 31 of
each calendar year.



          “Flood Hazard Property” means any Real Estate Asset subject to a mortgage in favor of
Collateral Agent, for the benefit of the Secured Parties, and located in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide hazards.



          “Funding Guarantors” as defined in Section 7.2.



          “Funding Notice” means a notice substantially in the form of Exhibit A-1.



          “GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2,
United States generally accepted accounting principles in effect as of the date of determination
thereof.



          “Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or Governmental Authority.



          “Governmental Authority” means any foreign or domestic, federal, state, municipal,
supranational, national or other government, governmental department, commission, board, bureau,
court, agency or instrumentality or political subdivision thereof or any entity, officer or
examiner exercising executive, legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether associated with a state of the
United States of America, the United States of America, or a foreign entity or government.



          “Governmental Authorization” means any permit, license, authorization, plan, directive,
consent order or consent decree of or from any Governmental Authority.



          “Grantor” means a “Grantor” as defined in the Pledge and Security Agreement or any similar
term defined in any other Collateral Document.



14









 





          “Group Member” means each of the European Group Members and the Credit Parties.



          “GSCP” as defined in the preamble.



          “Guaranteed Obligations” as defined in Section 7.1.



          “Guarantor” means, on the date of this Agreement, each U.S. Subsidiary of Borrower listed on
the signature pages of this Agreement and, thereafter, each U.S. Subsidiary of Borrower that signs
a Counterpart Agreement or such other accession agreement to this Agreement as a Guarantor accepted
and agreed by, and in form and substance reasonably satisfactory to, the Administrative Agent.



          “Guarantor Subsidiary” means each Guarantor other than U.S. Holdings.



          “Guaranty” means the guaranty of each Guarantor set forth in Section 7.



          “Hazardous Materials” means any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Governmental Authority or which may or could pose a hazard
to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or
to the indoor or outdoor environment.



          “Hazardous Materials Activity” means any past, current, proposed or threatened activity, event
or occurrence involving any Hazardous Materials, including the use, manufacture, possession,
storage, holding, presence, existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement, removal, remediation,
disposal, disposition or
handling of any Hazardous Materials, and any corrective action or response action with respect
to any of the foregoing.



          “Hedge Agreement” means an Interest Rate Agreement or a Currency Agreement entered into with a
Lender Counterparty and satisfactory to Administrative Agent.



          “Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from
time to time may be contracted for, charged, or received under the laws applicable to any Lender
which are presently in effect or, to the extent allowed by law, under such applicable laws which
may hereafter be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.



          “Historical Financial Statements” means as of the Closing Date, (i) the audited combined
balance sheet of the Arizona Chemical Division (as defined in such audited financial statements) as
of December 31, 2005 and 2004 and the audited combined statements of income and cash flows of the
Arizona Chemical Division (as defined in such audited financial statements) for each of the three
(3) years ended December 31, 2005, 2004 and 2003, (ii) the unaudited combined balance sheet of the
Arizona Chemical Division (as defined in the audited financial statements described in clause (i))
as of September 30, 2006 and the related statements of income and cash flows of the Arizona
Chemical Division (as defined in the audited financial statements described in clause (i)) for the
nine (9) month period ended September 30, 2006 and (iii) the unaudited financial statements of
Arizona Chemical Division (as defined in the audited



15









 




financial statements described in clause (i)) as at the most recently ended Fiscal Quarter and
month, consisting of a balance sheet and the related consolidated statements of income,
stockholders’ equity and cash flows for the three-, six-or nine-month period, as applicable, ending
on such date.




          “Holdings” means Proserpina 1072 AB (under change of name to Arizona Chem Sweden Holdings AB).



          “Increased Amount Date” as defined in Section 2.24.



          “Increased-Cost Lenders” as defined in Section 2.23.



          “Indebtedness”, as applied to any Person, means, without duplication, (i) all indebtedness for
borrowed money; (ii) that portion of obligations with respect to Capital Leases that is properly
classified as a liability on a balance sheet in conformity with GAAP; (iii) notes payable and
drafts accepted representing extensions of credit whether or not representing obligations for
borrowed money; (iv) any obligation owed for all or any part of the deferred purchase price of
property or services (excluding any such obligations incurred under ERISA), which purchase price is
(a) due more than six months from the date of incurrence of the obligation in respect thereof or
(b) evidenced by a note or similar written instrument; (v) all indebtedness secured by any Lien on
any property or asset owned or held by that Person regardless of whether the indebtedness secured
thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person; (vi)
the face amount of any letter of credit issued for the account of that Person or as to which that
Person is otherwise liable for reimbursement of drawings; (vii) Disqualified Equity Interests,
(viii) the direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the obligation of another; (ix)
any obligation of such Person the primary purpose or intent of which is to provide assurance to an
obligee that the obligation of the obligor thereof will be paid or discharged, or any agreement
relating thereto will be complied with, or the holders thereof will be protected (in whole or in
part) against loss in respect thereof; (x) any liability of such Person for an obligation of
another through any agreement (contingent or otherwise) (a) to purchase, repurchase or otherwise
acquire such obligation or any security therefor, or to provide funds for the payment or discharge
of such obligation (whether in the form of loans, advances, stock purchases, capital contributions
or otherwise) or (b) to maintain the solvency or any balance sheet item, level of income or
financial condition of another if, in the case of any agreement described under subclauses (a) or
(b) of this clause (x), the primary purpose or intent thereof is as described in clause (ix) above;
and (xi) all obligations of such Person in respect of any exchange traded or over the counter
derivative transaction, including any Interest Rate Agreement and Currency Agreement, whether
entered into for hedging or speculative purposes; provided, in no event shall obligations under any
Interest Rate Agreement and any Currency Agreement be deemed “Indebtedness” for any purpose under
Section 6.7.



          “Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses,
damages (including natural resource damages), penalties, claims (including Environmental Claims),
actions, judgments, suits, costs (including the costs of any investigation, study, sampling,
testing, abatement, cleanup, removal, remediation or other response action



16









 




necessary to remove, remediate, clean up or abate any Hazardous Materials Activity), expenses and
disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of
counsel for Indemnitees in connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a
party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing
this indemnity), whether direct, indirect or consequential and whether based on any federal, state
or foreign laws, statutes, rules or regulations (including securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on
contract or otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (i) this Agreement or the other Credit
Documents or the transactions contemplated hereby or thereby (including the Lenders’ agreement to
make Credit Extensions or the use or intended use of the proceeds thereof, or any enforcement of
any of the Credit Documents (including any sale of, collection from, or other realization upon any
of the Collateral or the enforcement of the Guaranty)); (ii) the commitment letter (and any related
fee letter) delivered by any Agent or any Lender to Sponsor with respect to the transactions
contemplated by this Agreement; or (iii) any Environmental Claim or any Hazardous Materials
Activity relating to or arising from, directly or indirectly, any past or present activity,
operation, land ownership, or practice of Holdings or any of its Subsidiaries.




          “Indemnitee” as defined in Section 10.3.



          “Intellectual Property” means (a) all inventions and discoveries (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto, and all patents,
patent applications and patent disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions and reexaminations thereof, (b) all trademarks,
service marks, trade dress, logos, trade names and corporate names, together with all translations,
adaptations, derivations and combinations thereof and including all goodwill associated therewith,
(c) all copyrightable works, all copyrights and all applications, registrations and renewals in
connection therewith, (d) all broadcast rights, (e) all mask works and all applications,
registrations and renewals in connection therewith, (f) all know-how, trade secrets and
confidential business information, whether patentable or unpatentable and whether or not reduced to
practice (including ideas, research and development, know-how, formulas, compositions and
manufacturing and production process and techniques, technical data, designs, drawings,
specifications, customer and supplier lists, pricing and cost information and business and
marketing plans and proposals), (g) all computer software (including data and related
documentation), (h) all other proprietary rights, (i) all copies and tangible embodiments thereof
(in whatever form or medium) and (j) all licenses and agreements in connection therewith.



          “Intellectual Property Asset” means, at the time of determination, any interest (fee, license
or otherwise) then owned by any Credit Party in any Intellectual Property.



          “Intercompany Note” means a promissory note substantially in the form of Exhibit I evidencing
Indebtedness owed among the Credit Parties and their Subsidiaries (or such other form reasonably
satisfactory to the Collateral Agent).



17









 





          “Intercreditor Agreement” means an Intercreditor Agreement substantially in the form of
Exhibit K, as it may be amended, supplemented, restated or otherwise modified from time to time.



          “Interest Payment Date” means with respect to (i) any Loan that is a Base Rate Loan, each
March 31, June 30, September 30 and December 31 of each year, commencing on the first such date to
occur after the Closing Date and the final maturity date of such Loan; and (ii) any Loan that is a
Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan; provided, in
the case of each Interest Period of longer than three months “Interest Payment Date” shall also
include each date that is three months, or an integral multiple thereof, after the commencement of
such Interest Period.



          “Interest Period” means, in connection with a Eurodollar Rate Loan, an interest period of
one-, two-, three- or six-months or, if agreed to by all Lenders of a tranche, nine- or
twelve-months, as selected by the applicable Borrower in the applicable Funding Notice or
Conversion/Continuation Notice, (i) initially, commencing on the Credit Date or
Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on the
day on which the immediately preceding Interest Period expires; provided, (a) if an Interest Period
would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day unless no further Business Day occurs in such month, in which case
such Interest Period
shall expire on the immediately preceding Business Day; (b) any Interest Period that begins on
the last Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period) shall, subject to
clauses (c), of this definition, end on the last Business Day of a calendar month; and (c) no
Interest Period with respect to any portion of any Class of Term Loans shall extend beyond such
Class’s Term Loan Maturity Date.



          “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedging agreement or other similar agreement or
arrangement, each of which is for the purpose of hedging the interest rate exposure associated with
Holdings’ and its Subsidiaries’ operations and not for speculative purposes.



          “Interest Rate Determination Date” means, with respect to any Interest Period, the date that
is two Business Days prior to the first day of such Interest Period.



          “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof
and from time to time hereafter, and any successor statute.



          “Investment” means (i) any direct or indirect purchase or other acquisition by Holdings or any
of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any other Person
(other than (x) in the case of any Credit Party, any other Credit Party and (y) in the case of any
European Group Member, any other European Group Member); (ii) any direct or indirect redemption,
retirement, purchase or other acquisition for value, by any Subsidiary of Holdings from any Person
(other than (x) in the case of any Credit Party, any other Credit Party and (y) in the case of any
European Group Member, any other European Group Member), of any Equity Interests of such Person;
and (iii) any direct or indirect loan, advance (other than advances to employees for moving,
entertainment and travel expenses, drawing accounts and



18









 




similar expenditures in the ordinary course of business) or capital contribution by Holdings or any
of its Subsidiaries to any other Person (other than (x) in the case of any Credit Party, any other
Credit Party and (y) in the case of any European Group Member, any other European Group Member),
including all indebtedness and accounts receivable from such other Person that are not current
assets or did not arise from sales to such other Person in the ordinary course of business. The
amount of any Investment shall be the original cost of such Investment plus the cost of all
additions thereto, without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment.




          “Joinder Agreement” means an agreement substantially in the form of Exhibit J.



          “Joint Venture” means a joint venture, partnership or other similar arrangement, whether in
corporate, partnership or other legal form; provided, in no event shall any corporate Subsidiary of
any Person be considered to be a Joint Venture to which such Person is a party.



          “Landlord Consent and Estoppel” means, with respect to any Leasehold Property, a letter,
certificate or other instrument in writing from the lessor under the related lease, pursuant to
which, among other things, the landlord consents to the granting of a Mortgage on such Leasehold
Property by the Credit Party tenant, such Landlord
Consent and Estoppel to be in form and substance reasonably acceptable to Collateral Agent in
its reasonable discretion, but in any event sufficient for Collateral Agent to obtain a Title
Policy with respect to such Mortgage.



          “Landlord Personal Property Collateral Access Agreement” means an agreement substantially in
the form of Exhibit H with such amendments or modifications as may be approved by Collateral Agent,
which approval shall not be unreasonably withheld.



          “Leasehold Property” means any leasehold interest of any Credit Party as lessee under any
lease of real property, other than any such leasehold interest (i) designated from time to time by
Collateral Agent in its reasonable discretion as not being required to be included in the
Collateral or (ii) that is not permitted by its terms to be mortgaged or pledged to the Collateral
Agent.



          “Lender” means each financial institution listed on the signature pages hereto as a Lender,
and any other Person that becomes a party hereto pursuant to an Assignment Agreement or a Joinder
Agreement.



          “Lender Counterparty” means each Lender, each Agent and each of their respective Affiliates
counterparty to a Hedge Agreement (including any Person who is an Agent or a Lender (and any
Affiliate thereof) as of the Closing Date but subsequently, whether before or after entering into a
Hedge Agreement, ceases to be an Agent or a Lender, as the case may be) including, without
limitation, each such Affiliate that appoints the Collateral Agent as its agent and agrees to be
bound by the Credit Documents as a Secured Party, subject to Section 9.8(c).



          “Leverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i) Consolidated
Total Debt as of such day to (ii) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period
ending on such date.



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          “Licensed Intellectual Property” means any interest of any Credit Party as licensee or
sublicensee under any license of Intellectual Property, other than any such interest that has been
designated from time to time by Collateral Agent as not being required to be included in the
Collateral.



          “Licensor Consent and Estoppel” means, with respect to any Licensed Intellectual Property, a
letter, certificate or other instrument in writing from the licensor under the related license,
pursuant to which the licensor consents to the granting of a Security Interest on such Licensed
Property by the Credit Party, such Licensor Consent and Estoppel to be in form and substance
acceptable to Collateral Agent.



          “Lien” means (i) any lien, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale
or other title retention agreement, and any lease or license in the nature thereof) and any option,
trust or other preferential arrangement having the practical effect of any of the foregoing and
(ii) in the case of Securities, any purchase option, call or similar right of a third party with
respect to such Securities.



          “Loan” means a Second Lien Term Loan and a New Term Loan.



          “Management Investors” means the natural persons being the current or former members of
management, officers and employees of Holdings and/or its Subsidiaries who have been, are or become
investors in Holdings.



          “Margin Stock” as defined in Regulation U of the Board of Governors as in effect from time to
time.



          “Material Adverse Effect” means (i) on the Closing Date, a “Material Adverse Effect” (as
defined in the Stock Purchase Agreement) and (ii) thereafter, a material adverse effect on and/or
material adverse developments with respect to (a) the business, operations, properties, assets or
condition (financial or otherwise) of Holdings and its Subsidiaries taken as a whole; (b) the
ability of any Credit Party to fully and timely perform its Obligations; (c) the legality,
validity, binding effect or enforceability against a Credit Party of a Credit Document to which it
is a party; or (d) the rights, remedies and benefits available to, or conferred upon, any Agent and
any Lender or any Secured Party under any Credit Document.



          “Material Contract” means any contract or other arrangement to which Holdings or any of its
Subsidiaries is a party (other than the Credit Documents and the First Lien Credit Documents) for
which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have
a Material Adverse Effect.



          “Material Real Estate Asset” means (i) any fee-owned Real Estate Asset having a fair market
value in excess of $2,000,000 as of the date of the acquisition thereof and (ii) all Leasehold
Properties other than those with respect to which the aggregate payments under the term of the
lease are less than $750,000 per annum.



          “Material Subsidiary” means any Subsidiary (a) for which the fair market value of its tangible
assets is equal to or greater than 2% of the total tangible assets of Holdings and its



20









 




Subsidiaries on a consolidated basis, or (b) which has Consolidated Adjusted EBITDA equal to or
greater than 2% of the total Consolidated Adjusted EBITDA of Holdings and its Subsidiaries on a
consolidated basis.




          “Maturity Date” means the Second Lien Term Loan Maturity Date and the New Term Loan Maturity
Date.



          “Moody’s” means Moody’s Investor Services, Inc.



          “Mortgage” means any mortgage, deed of trust of similar document granting a security interest
to the Secured Parties in owned Real Property of a Credit Party in form and substance reasonably
acceptable to Collateral Agent in its reasonable discretion, as it may be amended, supplemented,
restated or otherwise modified from time to time.



          “Mortgaged Property” as defined in Section 5.11.



          “Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as
defined in Section 3(37) of ERISA.



          “NAIC” means The National Association of Insurance Commissioners, and any successor thereto.



          “Narrative Report” means, with respect to the financial statements for which such narrative
report is required, a narrative report describing the operations of Holdings and its Subsidiaries
in the form prepared for presentation to senior management thereof for the applicable Fiscal
Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the
end of such period to which such financial statements relate.



          “Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) Cash
payments (including any Cash received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received) received by a Credit Party
from such Asset Sale, minus (ii) any bona fide direct costs incurred in connection with such Asset
Sale, including (a) income or gains taxes payable or reasonably estimated to be payable within two
years of such Asset Sale by the seller as a result of any gain recognized in connection with such
Asset Sale, (b) payment of the outstanding principal amount of, premium or penalty, if any, and
interest on any Indebtedness (other than the Loans) that is secured by a Lien on the stock or
assets in question and that is required to be repaid under the terms thereof as a result of such
Asset Sale, (c) any bona fide direct or indirect costs incurred by a Credit Party in connection
with such Asset Sale, including commissions, fees and reserves for taxes paid or payable in
connection with such Asset Sale, (d) the principal amount, premium or penalty, if any, interest and
other amounts on any Indebtedness for borrowed money which is secured by the asset sold in such
Asset Sale and which is required to be repaid with such proceeds (other than any such Indebtedness
assumed by the purchaser of such asset) and (e) a reasonable reserve for any indemnification
payments (fixed or contingent) attributable to seller’s indemnities and representations and
warranties to purchaser in respect of such Asset Sale undertaken by a Credit Party in connection
with such Asset Sale or any other liabilities associated with the assets subject to such Asset Sale
and retained by a Credit Party after such



21









 




Asset Sale including without limitation pension and other post-employment benefit liabilities and
environmental liabilities.




          “Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or
proceeds received by a Credit Party (a) under any casualty insurance policy in respect of a covered
loss thereunder or (b) as a result of the taking of any assets of a Credit Party by any Person
pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any
such assets to a purchaser with such power under threat of such a taking, minus (ii) (a) any actual
and reasonable costs incurred by a Credit Party in connection with the adjustment or settlement of
any claims of a Credit Party in respect thereof, (b) any bona fide direct costs incurred in
connection with (i) any such casualty or condemnation or (ii) any sale of such assets as referred
to in clause (i)(b) of this definition, in either case including income or gains taxes payable or
reasonably estimated to be payable within two years as a result of any gain recognized in
connection therewith, and (c) payment of the outstanding principal amount of, premium or penalty,
if any, and interest on any Indebtedness (other than the Loans) that is secured by a Lien on the
assets in question and that is repaid as a result of such casualty or condemnation.



          “New Term Loan Commitment” as defined in Section 2.24.



          “New Term Loan Exposure” means, with respect to any Lender, as of any date of determination,
the outstanding principal amount of the New Term Loans of such Lender.



          “New Term Loan Lender” as defined in Section 2.24.



          “New Term Loan Maturity Date” means the date that New Term Loans shall become due and payable
in full hereunder, as specified in the Joinder Agreement, including by acceleration or otherwise.



          “New Term Loans” as defined in Section 2.24.



          “Nonpublic Information” means information which has not been disseminated in a manner making
it available to investors generally, within the meaning of Regulation FD.



          “Non-U.S. Lender” as defined in Section 2.20(d).



          “Non-U.S. Participant” means any participant that is not a United States Person (as such term
is defined in Section 7701(a)(30) of the Internal Revenue Code) for United States federal income
tax purposes.



          “Non-U.S. Plan” means any employee benefit plan maintained by Holdings or any of its
Subsidiaries that is mandated or governed by any law, rule or regulation of any Government
Authority other than the United States of America, any State thereof or any other political
subdivision thereof.



          “Non-U.S. Subsidiary” means each Subsidiary organized in any jurisdiction other than the
United States.



22









 





          “Note” means a promissory note in the form of Exhibit B, as it may be amended, supplemented,
restated or otherwise modified from time to time.



          “Notice” means a Funding Notice or a Conversion/ Continuation Notice.



          “Obligations” means all obligations of every nature of each Credit Party under any Credit
Document or Hedge Agreement from time to time owed to the Agents (including former Agents), the
Lenders or any of them and Lender Counterparties, whether for principal, interest (including
interest which, but for the filing of a petition in bankruptcy with respect to such Credit Party,
would have accrued on any such obligation, whether or not a claim is allowed against such Credit
Party for such interest in the related bankruptcy proceeding), payments for early termination of
Hedge Agreements, fees, expenses, indemnification or otherwise.



          “Obligee Guarantor” as defined in Section 7.7.



          “Organizational Documents” means (i) with respect to any corporation, its certificate or
articles of incorporation or organization, as amended, and its by-laws, as amended, (ii) with
respect to any limited partnership, its certificate of limited partnership, as amended, and its
partnership agreement, as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, and (iv) with respect to any limited liability company, its articles of
organization, as amended, and its operating agreement, as amended. In the event any term or
condition of this Agreement or any other Credit Document requires any Organizational Document to be
certified by a secretary of state or similar governmental official, including an official of a
non-United States government, the reference to any such “Organizational Document” shall only be to
a document of a type customarily certified by such governmental official in such official’s
relevant jurisdiction.



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



          “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is
subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.



          “Permitted Acquisition” means any acquisition by Borrower, SWEAcqCo or any of their respective
wholly-owned Subsidiaries, whether by purchase, merger or otherwise, of all or substantially all of
the assets of, all of the Equity Interests of, or a business line or unit or a division of, any
Person (including the acquisition by a Credit Party of all of the economic and voting Equity
Interests of the Specified Target to the extent not owned by a Credit Party as of the Closing
Date); provided,




          (i) immediately prior to, and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing or would result therefrom;




          (ii) all transactions in connection therewith shall be consummated, in all material
respects, in accordance with all applicable laws and in conformity with all applicable
Governmental Authorizations;



23









 






          (iii) in the case of the acquisition of Equity Interests, all of the Equity Interests
(except for any such Securities in the nature of directors’ qualifying shares required
pursuant to applicable law) acquired or otherwise issued by such Person or any newly formed
Subsidiary of Borrower or SWEAcqCo in connection with such acquisition shall be owned 100%
by Borrower or a Guarantor Subsidiary thereof or SWEAcqCo or a Guarantor Subsidiary thereof
(as defined in the First Lien Credit Agreement), and Borrower shall have taken, or caused
to be taken, as of the date such Person becomes a Subsidiary of Borrower, each of the
actions set forth in Sections 5.10 and/or 5.11, as applicable;




          (iv) Holdings and its Subsidiaries shall be in compliance with the financial covenants
set forth in Section 6.7 on a pro forma basis after giving effect to such acquisition as of
the last day of the Fiscal Quarter most recently ended, (as determined in accordance with
Section 6.7(d));




          (v) Borrower shall have delivered to Administrative Agent (A) at least 10 days prior
to such proposed acquisition, a Compliance Certificate evidencing compliance with Section
6.7 as required under clause (iv) above, together with all relevant financial information
with respect to such acquired assets, including the aggregate consideration for such
acquisition and any other information required to demonstrate compliance with Section 6.7
and (B) promptly upon request by Administrative Agent, in respect of any Permitted
Acquisition involving consideration of more than $5,000,000, (i) a copy of the purchase
agreement related to the proposed Permitted Acquisition (and any related documents
reasonably requested by Administrative Agent) and (ii) to the extent available, quarterly
and annual financial statements of the Person whose Equity Interests or assets are being
acquired for the twelve month (12) month period immediately prior to such proposed
Permitted Acquisition, including any audited financial statements that are available;




          (vi) any Person or assets or division as acquired in accordance herewith (y) shall be
in same or similar business or lines of business in which Borrower, SWEAcqCo and/or their
respective Subsidiaries are engaged as of the Closing Date and (z) shall have generated
positive cash flow (calculated on a pro forma basis in a manner consistent with Section
6.7(c)) for the four Fiscal Quarter period most recently ended prior to the date of such
acquisition; and




          (vii) the sum of the aggregate unused portion of the Revolving Commitments (as defined
in the First Lien Credit Agreement) at such time (after giving effect to the consummation
of the respective Permitted Acquisition and any financing thereof) plus the aggregate
amount of Cash and Cash Equivalents of Borrower, SWEAcqCo and their respective Subsidiaries
at such time shall equal or exceed $10,000,000.




          “Permitted Indebtedness” as defined in Section 6.1.



          “Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.



24









 





          “Permitted Subordinated Debt” as defined in Section 6.1(d).



          “Person” means and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships, joint stock companies,
Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and Governmental Authorities.



          “Platform” as defined in Section 5.1(n).



          “Pledge and Security Agreement” means the Pledge and Security Agreement to be executed by
Borrower and each Guarantor, as it may be amended, supplemented, restated or otherwise modified
from time to time.



          “Prime Rate” means the rate of interest quoted in The Wall Street Journal, Money Rates Section
as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 75% of
the nation’s thirty (30) largest banks), as in effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate actually charged to any
customer. Administrative Agent or any other Lender may make commercial loans or other loans at
rates of interest at, above or below the Prime Rate.



          “Principal Office” means, for each of Administrative Agent, such Person’s “Principal Office”
as set forth on Appendix B, or such other office or office of a third party or sub-agent, as
appropriate, as such Person may from time to time designate in writing to the Borrower,
Administrative Agent and each Lender.



          “Projections” as defined in Section 4.8.



          “Pro Rata Share” means (i) with respect to all payments, computations and other matters
relating to the Second Lien Term Loan of any Lender, the percentage obtained by dividing (a) the
Second Lien Term Loan Exposure of that Lender by (b) the aggregate Second Lien Term Loan Exposure
of all Lenders; and (ii) with respect to all payments, computations, and other matters relating to
New Term Loan Commitment or New Term Loans, the percentage obtained by dividing (a) the New Term
Loan Exposure of that Lender by (b) the aggregate New Term Loan Exposure of all Lenders. For all
other purposes with respect to each Lender, “Pro Rata Share” means the percentage obtained by
dividing (A) an amount equal to the sum of the Second Lien Term Loan Exposure and the New Term Loan
Exposure of that Lender, by (B) an amount equal to the sum of the aggregate Second Lien Term Loan
Exposure and the aggregate New Term Loan Exposure of all Lenders.



          “Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or
otherwise) then owned by any Credit Party in any real property.



          “Record Document” means, (A) with respect to any Leasehold Property, (i) the lease evidencing
such Leasehold Property or a memorandum thereof, executed and acknowledged by the owner of the
affected real property, as lessor, or (ii) if such Leasehold Property was acquired or subleased
from the holder of a Recorded Leasehold Interest, the applicable assignment or sublease document,
executed and acknowledged by such holder, in




25











 




each case in form sufficient to give such constructive notice upon recordation and otherwise
in form reasonably satisfactory to Collateral Agent and (B) Licensed Intellectual Property, (i) the
license evidencing such Intellectual Property or a memorandum thereof, executed and acknowledged by
the licensor of the affected Intellectual Property, or (ii) if such Licensed Intellectual Property
was acquired or licensed from the holder of licensed rights or interests in the Intellectual
Property, the applicable assignment or license document, executed and acknowledged by such holder,
in each case in form sufficient to give such constructive notice upon filing or recordation in the
U.S. Patent and Trademark Office, U.S. Copyright Office, or any foreign equivalent place of filing,
of the transfer of such holder’s rights or interests and otherwise in form reasonably satisfactory
to Collateral Agent




          “Recorded Leasehold Interest” means a Leasehold Property with respect to which a Record
Document has been recorded in all places necessary or desirable, in Collateral Agent’s reasonable
judgment, to give constructive notice of such Leasehold Property to third-party purchasers and
encumbrancers of the affected real property.




          “Recorded License Interest” means Licensed Intellectual Property with respect to which a
Record Document has been recorded in all places necessary or desirable, in Collateral Agent’s
reasonable judgment, to give constructive notice of such Licensed Intellectual Property to bona
fide purchasers, mortgagees, transferees and licensees of the affected intellectual property.




          “Reference Banks” means, the principal office of BANA or such other banks as may be appointed
by the Administrative Agent in consultation with Borrower.




          “Register” as defined in Section 2.7(b).




          “Regulation D” means Regulation D of the Board of Governors, as in effect from time to time.




          “Regulation FD” means Regulation FD as promulgated by the US Securities and Exchange
Commission under the Securities Act and Exchange Act as in effect from time to time.




          “Related Agreements” means, collectively, the Stock Purchase Agreement, the First Lien Credit
Agreement, the Stockholders Agreement and the documents in connection with the Permitted
Subordinated Debt (if any).




          “Related Fund” means, with respect to any Lender that is an investment fund, 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.




          “Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material
into the indoor or outdoor environment (including the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Material), including the movement
of any Hazardous Material through the air, soil, surface water or groundwater.




26









 








          “Replacement Lender” as defined in Section 2.23.




          “Required Prepayment Date” as defined in Section 2.15(c).




          “Requisite Lenders” means one or more Lenders having or holding Second Lien Term Loan Exposure
and/or New Term Loan Exposure and representing more than 50% of the sum of (i) the aggregate Second
Lien Term Loan Exposure of all Lenders, and (ii) the aggregate New Term Loan Exposure of all
Lenders.




          “Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of stock of U.S. Holdings or Borrower now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock to the holders of
that class; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of stock of U.S. Holdings or
Borrower now or hereafter outstanding; (iii) any payment made to retire, or to obtain the surrender
of, any outstanding warrants, options or other rights to acquire shares of any class of stock of
U.S. Holdings or Borrower now or hereafter outstanding; (iv) management or similar fees payable to
Sponsor or any of its Affiliates and (v) any payment or prepayment of principal of, premium, if
any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or
legal defeasance), sinking fund or similar payment with respect to, any Indebtedness under the
Permitted Subordinated Debt.




          “S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation.




          “Second Lien Term Loan” means a Second Lien Term Loan made by a Lender to Borrower pursuant to
Section 2.1(a)(i).




          “Second Lien Term Loan Commitment” means the commitment of a Lender to make or otherwise fund
a Second Lien Term Loan and “Second Lien Term Loan Commitments” means such commitments of all
Lenders in the aggregate. The amount of each Lender’s Second Lien Term Loan Commitment, if any, is
set forth on Appendix A-1 or in the applicable Assignment Agreement, subject to any adjustment or
reduction pursuant to the terms and conditions hereof. The aggregate amount of the Second Lien Term
Loan Commitments as of the Closing Date is $125,000,000.




          “Second Lien Term Loan Exposure” means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the Second Lien Term Loans of such Lender;
provided, at any time prior to the making of the Second Lien Term Loans, the Second Lien Term Loan
Exposure of any Lender shall be equal to such Lender’s Second Lien Term Loan Commitment.




          “Second Lien Term Loan Maturity Date” means the earlier of (i) the seventh anniversary of the
Closing Date, and (ii) the date that all Second Lien Term Loans shall become due and payable in
full hereunder, whether by acceleration or otherwise.




27









 








          “Second Priority” means, with respect to any Lien purported to be created in any Collateral
pursuant to any Collateral Document, that such Lien is second in priority only to the Liens created
under or relating to the First Lien Credit Agreement and any Permitted Liens.




          “Secured Parties” means the Agents, the Lenders and the Lender Counterparties and shall
include, without limitation, all former Agents, Lenders and Lender Counterparties to the extent
that any Obligations owing to such Persons were incurred while such Persons were Agents, Lenders or Lender Counterparties and such Obligations
have not been paid or satisfied in full.




          “Securities” means any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit-sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly known as
“securities” or any certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing.




          “Securities Act” means the Securities Act of 1933, as amended from time to time, and any
successor statute.




          “Seller” as defined in the recitals.




          “Solvency Certificate” means a Solvency Certificate of the chief financial officer of U.S.
Holdings substantially in the form of Exhibit F-2.




          “Solvent” means, with respect to any Group Member, that as of the date of determination, (i)
(a) the sum of such Group Member’s debt (including contingent liabilities) does not exceed the
present fair saleable value of such Group Member’s present assets; (b) such Group Member’s capital
is not unreasonably small in relation to its business as contemplated on the Closing Date and
reflected in the Projections or with respect to any transaction contemplated or undertaken after
the Closing Date; and (c) such Person has not incurred and does not intend to incur, or believe
(nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts
as they become due (whether at maturity or otherwise); and (ii) to the extent different from the
standard set forth in clause (i), such Person is “solvent” within the meaning given that term and
similar terms under the Bankruptcy Code and applicable laws relating to fraudulent transfers and
conveyances. For purposes of this definition, the amount of any contingent liability at any time
shall be computed as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an actual or matured
liability (irrespective of whether such contingent liabilities meet the criteria for accrual under
Statement of Financial Accounting Standard No. 5).




          “Specified Target” means the Joint Venture of the Credit Parties existing on the Closing Date.




          “Sponsor” means Rhône Capital III L.P. and its Affiliates.



28









 







          “Stockholders Agreement” means the partnership agreement dated as of the Closing Date by and
among AZ Chem Investments Partners LP and the stockholders named therein, as it may be amended,
supplemented, restated or otherwise modified from time to time in accordance with the provisions of
Section 6.14 hereof.




          “Stock Purchase Agreement” as defined in the recitals.




          “Subject Transaction” as defined in Section 6.7(d).




          “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business entity of which more than 50% of
the total voting power of shares, stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the
election of the Person or Persons (whether directors, managers, trustees or other Persons
performing similar functions) having the power to direct or cause the direction of the management
and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination
thereof; provided, in
determining the percentage of ownership interests of any Person controlled by another Person, no
ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be
outstanding.




          “SWEAcqCo” means Proserpina 1073 AB (under change of name to Arizona Chem Sweden AB), the
European Borrower under the First Lien Credit Agreement.




          “Syndication Agent” as defined in the preamble hereto.




          “Tax” means any present or future stamp, documentary, value added or other tax, levy, impost,
duty, assessment, charge, fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected,
withheld or assessed; provided,
“Tax on the overall net income” of a Person shall be construed as a reference to (a) a tax imposed
by the jurisdiction in which that Person is organized or incorporated or in which that Person’s
applicable principal office (and/or, in the case of a Lender, its lending office) is located or in
which that Person (and/or, in the case of a Lender, its lending office) is deemed to be doing
business on all or part of the net income, profits or gains (whether worldwide, or only insofar as
such income, profits or gains are considered to arise in or to relate to a particular jurisdiction,
or otherwise) of that Person (and/or, in the case of a Lender, its applicable lending office) other
than a jurisdiction in which it is subject to tax solely as a result of such Person having
executed, delivered or performed its obligations or received a payment under or enforced, any of
the Credit Documents or (b) any branch profits tax imposed by the jurisdictions listed in clause
(a).




          “Terminated Lender” as defined in Section 2.23.




          “Title Policy” as defined in Section 5.11.




          “Transaction Costs” means the fees, costs and expenses payable by Holdings, Borrower or any of
their respective Subsidiaries on or before the Closing Date in connection with the transactions
contemplated by the Credit Documents and the Related Agreements.





29









 








          “Transactions” means the Acquisition, the Equity Contribution, the entering into and funding
of the Second Lien Term Loans and the entering into and funding of the First Lien Term Loans.




          “Type of Loan” means a Base Rate Loan or a Eurodollar Rate Loan.




          “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in
effect in any applicable jurisdiction.




          “U.S. Holdings” as defined in the preamble hereto.




          “U.S. Lender” as defined in Section 2.20(d).




          “U.S. Subsidiary” means each Subsidiary organized under the laws of the United States.




     1.2. Accounting Terms. Except as otherwise expressly provided herein, all accounting terms not
otherwise defined herein shall have the meanings assigned to them
in conformity with GAAP. Financial statements and other information required to be delivered
by Borrower to Lenders pursuant to Section 5.1(a) and 5.1(b) shall be prepared in accordance with
GAAP as in effect at the time of such preparation (and delivered together with the reconciliation
statements provided for in Section 5.1(d), if applicable). Subject to the foregoing, calculations
in connection with the definitions, covenants and other provisions hereof shall utilize accounting
principles and policies in conformity with those used to prepare the Historical Financial
Statements; provided, however, if the Borrower notifies the Administrative Agent that the Borrower
wishes to amend any covenant in Section 2.14 or Section 6 or any related definition to eliminate
the effect of any change in GAAP occurring after the date of this Agreement on the operation of
such covenant (or if Administrative Agent notifies the Borrower that the Requisite Lenders wish to
amend Section 2.14, Section 6 or any related definition for such purpose), then (i) the Borrower
and Administrative Agent shall negotiate in good faith to agree upon an appropriate amendment to
such covenant and (ii) the Borrower’s compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became effective until such
covenant is amended in a manner satisfactory to the Borrower and Requisite Lenders.



     1.3. Interpretation, etc. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference. References herein to
any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an
Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the
word “include” or “including”, when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not non-limiting
language (such as “without limitation” or “but not limited to” or words of similar import) is used
with reference thereto, but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter. The terms lease and
license shall include sub-lease and sub-license, as applicable.



30









 





SECTION 2. LOANS




     2.1. Term Loans.



          (a) Loan Commitments. Subject to the terms and conditions hereof, each Lender with a Second
Lien Term Loan Commitment severally agrees to make, on the Closing Date, a Second Lien Term Loan to
Borrower in Dollars in an amount equal to such Lender’s Second Lien Term Loan Commitment.




Borrower may make only one borrowing under the Second Lien Term Loan Commitment. Any amount
borrowed under this Section 2.1(a) and subsequently repaid or prepaid may not be reborrowed.
Subject to Sections 2.13(a) and 2.14, all amounts owed hereunder with respect to the Second Lien
Term Loans shall be paid in full no later than the Second Lien Term Loan Maturity Date. Each
Lender’s Second Lien Term Loan Commitment shall terminate immediately and without further action on
the Closing Date after giving effect to the funding of such Lender’s Second Lien Term Loan
Commitment on such date.



          (b)
Borrowing Mechanics for Term Loans.





               (i) Borrower shall deliver to Administrative Agent a fully executed Funding Notice no
later than two days prior to the Closing Date. Promptly upon receipt by Administrative
Agent of such Funding Notice, Administrative Agent shall notify each Lender of the proposed
borrowing.




               (ii) Each Lender shall make its Second Lien Term Loan available to Syndication Agent
not later than 12:00 p.m. (New York time) on the Closing Date, by wire transfer of same day
funds in Dollars, at the Principal Office designated by Syndication Agent. Upon
satisfaction or waiver of the conditions precedent specified herein, Syndication Agent
shall make the proceeds of the Second Lien Term Loans available to Borrower on the Closing
Date by causing an amount of same day funds in Dollars equal to the proceeds of all such
Loans received by Syndication Agent from Lenders to be credited to the account of the
Borrower at the Principal Office designated by Syndication Agent or to such other account
as may be designated in writing to Syndication Agent by the Borrower.




2.2. Reserved.




2.3.
[Reserved.].




2.4. [Reserved.].




2.5. Pro Rata Shares; Availability of Funds.



          (a)
Pro Rata Shares. All Loans shall be made, and all participations purchased, by Lenders
simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no
Lender shall be responsible for any default by any other Lender in such other Lender’s obligation
to make a Loan requested hereunder or purchase a participation required hereby nor shall any Term
Loan Commitment of any Lender be increased or decreased as a result




31









 







of a default by any other Lender in such other Lender’s obligation to make a Loan requested
hereunder or purchase a participation required hereby.




          (b) Availability of Funds. Unless Administrative Agent shall have been notified by any Lender
prior to the applicable Credit Date that such Lender does not intend to make available to
Administrative Agent the amount of such Lender’s Loan requested on such Credit Date, Administrative
Agent may assume that such Lender has made such amount available to Administrative Agent on such
Credit Date and Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to Borrower a corresponding amount on such Credit Date. If such corresponding amount
is not in fact made available to Administrative Agent by such Lender, Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Lender together with interest
thereon, for each day from such Credit Date until the date such amount is paid to Administrative
Agent, at the customary rate set by Administrative Agent for the correction of errors among banks
for three Business Days and thereafter at the Base Rate. If such Lender does not pay such
corresponding amount forthwith upon Administrative Agent’s demand therefor, Administrative Agent
shall promptly notify Borrower and Borrower shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, for each day from such Credit Date until the
date such amount is paid to Administrative Agent, at the rate payable hereunder for Base Rate Loans
for such Class of Loans. Nothing in this Section 2.5(b) shall be deemed to relieve any Lender from its obligation to fulfill its Term Loan
Commitments or to prejudice any rights that Borrower may have against any Lender as a result of any
default by such Lender hereunder.



     2.6. Use of Proceeds. The proceeds of the Second Lien Term Loans made on the Closing Date
shall be applied by Borrower (i) to finance, in part, the Acquisition and (ii) to pay fees and
expenses incurred in connection with the Transactions. The New Term Loans made after the Closing
Date shall be applied by Borrower for working capital, capital expenditures and general corporate
purposes of Borrower and its Subsidiaries, including Permitted Acquisitions. No portion of the
proceeds of any Credit Extension shall be used in any manner that causes such Credit Extension or
the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board
of Governors or any other regulation thereof or to violate the Exchange Act.



     2.7. Evidence of Debt; Register; Lenders’ Books and Records; Notes.



          (a)
Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an account
or accounts evidencing the Obligations of Borrower to such Lender, including the amounts of the
Loans made by it and each repayment and prepayment in respect thereof. Any such recordation shall
be conclusive and binding on Borrower, absent manifest error;
provided, that the failure to make
any such recordation, or any error in such recordation, shall not affect Borrower’s Obligations in
respect of any applicable Loans; and provided further, in the event of any inconsistency between
the Register and any Lender’s records, the recordations in the Register shall govern.




          (b)
Register. Administrative Agent (or its agent or sub-agent appointed by it) shall maintain
at the Principal Office a register for the recordation of the names and addresses of Lenders and
Loans of each Lender from time to time (the “Register”). The Register shall be




32









 







available for inspection by Borrower or any Lender (solely with respect to any entry relating to
such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.
Administrative Agent shall record, or shall cause to be recorded, in the Register the Loans in
accordance with the provisions of Section 10.6, and each repayment or prepayment in respect of the
principal amount of the Loans, and any such recordation shall be conclusive and binding on Borrower
and each Lender, absent manifest error; provided, failure to make any such recordation, or any
error in such recordation, shall not affect Borrower’s Obligations in respect of any Loan.
Borrower hereby designates CapitalSource to serve as such Borrower’s agent solely for purposes of
maintaining the Register as provided in this Section 2.7, and Borrower hereby agrees that, to the
extent CapitalSource serves in such capacity, CapitalSource and its officers, directors, employees,
agents, sub-agents and affiliates shall constitute “Indemnitees.”




          (c)
Notes. If so requested by any Lender by written notice to Borrower (with a copy to
Administrative Agent) at least two Business Days prior to the Closing Date, or at any time
thereafter, Borrower shall execute and deliver to such Lender (and/or, if applicable and if so
specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6)
on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after
Borrower’s receipt of such notice) a Note
or Notes to evidence such Lender’s Second Lien Term Loan or New Term Loan, as the case may be.




     2.8. Interest on Loans.



          (a) Except as otherwise set forth herein, each Class of Loan shall bear interest on the unpaid
principal amount thereof from the date made through repayment (whether by acceleration or
otherwise) thereof as follows:





               (i) if a Base Rate Loan, at the Base Rate plus 4.50% per annum; or




               (ii)
if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus 5.50% per annum.



          (b) The basis for determining the rate of interest with respect to any Loan, and the Interest
Period with respect to any Eurodollar Rate Loan, shall be selected by Borrower and notified to
Administrative Agent and Lenders pursuant to the applicable Funding Notice or
Conversion/Continuation Notice, as the case may be. If on any day a Loan is outstanding with
respect to which a Funding Notice or Conversion/Continuation Notice has not been delivered to
Administrative Agent in accordance with the terms hereof specifying the applicable basis for
determining the rate of interest, then for that day such Loan shall be a Base Rate Loan.




          (c) In connection with Eurodollar Rate Loans there shall be no more than five (5) Interest
Periods outstanding at any time. In the event Borrower fails to specify between a Base Rate Loan or
a Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, such
Loan (if outstanding as a Eurodollar Rate Loan) will be automatically converted into a Base Rate
Loan on the last day of the then-current Interest Period for such Loan (or if outstanding as a Base
Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan). In the
event Borrower fails to specify an Interest Period for any Eurodollar Rate Loan in the applicable
Funding Notice or Conversion/Continuation Notice,




33









 







Borrower shall be deemed to have selected an Interest Period of one month. As soon as practicable
after 10:00 a.m. (New York time) on each Interest Rate Determination Date, Administrative Agent
shall determine (which determination shall, absent manifest error, be final, conclusive and binding
upon all parties) the interest rate that shall apply to the Eurodollar Rate Loans for which an
interest rate is then being determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to Borrower and each Lender.




          (d) Interest payable pursuant to Section 2.8(a) shall be computed (i) in the case of Base Rate
Loans on the basis of a 365-day or 366-day year, as the case may be, and (ii) in the case of
Eurodollar Rate Loans, on the basis of a 360-day year, in each case for the actual number of days
elapsed in the period during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect
to a Term Loan, the last Interest Payment Date with respect to such Term Loan or, with respect to a
Base Rate Loan being converted from a Eurodollar Rate Loan, the date of conversion of such
Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with
respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the date
of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the case may be, shall
be excluded; provided, if a Loan is repaid on the same day on which it is made, one day’s interest
shall be paid on that Loan.




          (e) Except as otherwise set forth herein, interest on each Loan (i) with respect to Loans,
shall accrue on a daily basis and shall be payable in arrears on each Interest Payment Date with
respect to interest accrued on and to each such payment date; (ii) shall accrue on a daily basis
and shall be payable in arrears upon any prepayment of that Loan, whether voluntary or mandatory,
to the extent accrued on the amount being prepaid; and (iii) shall accrue on a daily basis and
shall be payable in arrears at maturity of the Loans, including final maturity of the Loans;
provided, however, with respect to any voluntary prepayment of a Base Rate Loan, accrued interest
shall instead be payable on the applicable Interest Payment Date.




     2.9. Conversion/Continuation.



          (a) Subject to Section 2.18 and so long as no Default or Event of Default shall have occurred
and then be continuing:





               (i) Borrower shall have the option to convert at any time all or any part of any Term
Loan equal to $1,000,000 and integral multiples of $500,000 in excess of that amount from
one Type of Loan to another Type of Loan; provided, a Eurodollar Rate Loan may only be
converted on the expiration of the Interest Period applicable to such Eurodollar Rate Loan
unless Borrower shall pay all amounts due under Section 2.18 in connection with any such
conversion; or




               (ii) Borrower shall have the option upon the expiration of any Interest Period
applicable to any Eurodollar Rate Loan, to continue all or any portion of such Loan equal
to $1,000,000 and integral multiples of $500,000 in excess of each applicable amount as a
Eurodollar Rate Loan in excess of that amount as a Eurodollar Rate Loan.



34









 





          (b) Borrower shall deliver a Conversion/Continuation Notice to Administrative Agent no later
than 10:00 a.m. (New York time) at one Business Day in advance of the proposed conversion date (in
the case of a conversion to a Base Rate Loan) and at least three Business Days in advance of the
proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a
Eurodollar Rate Loan). Except as otherwise provided herein, a Conversion/Continuation Notice for
conversion to, or continuation of, any Eurodollar Rate Loans (or telephonic notice in lieu thereof)
shall be irrevocable on and after the related Interest Rate Determination Date, and Borrower shall
be bound to effect a conversion or continuation in accordance therewith.




     2.10. Default Interest. Upon the occurrence and during the continuance of an Event of Default
under Section 8.1(a), all payments of principal then overdue and, to the extent permitted by
applicable law, any interest payments on the Loans then overdue or any fees or other amounts owed
hereunder then overdue, shall thereafter bear interest (including post-petition interest in any
proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand at a
rate that is 2% per annum in excess of the interest rate otherwise payable hereunder with respect
to the applicable Loans (or, in the case of any such fees and other amounts, at a rate which is 2%
per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans); provided, in the case
of Eurodollar Rate Loans, upon the expiration of the Interest Period in effect at the time any such
increase in interest rate is effective such Eurodollar Rate Loans shall thereupon become Base Rate
Loans and shall thereafter bear interest, to the extent of amounts then overdue, payable upon
demand at a rate which is 2% per annum in excess of the interest rate otherwise payable hereunder
for Base Rate Loans. Payment or acceptance of the increased rates of interest provided for in this
Section 2.10 is not a permitted alternative to timely payment and shall not constitute a waiver of
any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent
or any Lender.



     2.11. Fees; Call Protection.



          (a) In addition to any of the foregoing fees, Borrower agrees to pay to Agents such other fees
in the amounts and at the times separately agreed upon.




          (b) In the event that the Loans are prepaid or repaid in whole or in part pursuant to Section
2.13 or Section 2.14(c) and (d) or by acceleration prior to the first anniversary of the Closing
Date, the Borrower shall pay to the Lenders hereunder a prepayment premium of 1.00% on the
principal amount so prepaid or repaid on or before the first anniversary of the Closing Date.




     2.12. Repayment. The Borrower shall repay the entire principal amount of the outstanding
Loans, together with all other amounts owed hereunder with respect thereto, in full on the Second
Lien Term Loan Maturity Date and the New Term Loan Maturity Date, as applicable.



     2.13. Voluntary Prepayments.



          (a) Any time and from time to time:





35









 









               (i) with respect to Base Rate Loans, Borrower may prepay any such Loans on any
Business Day in whole or in part, in an aggregate minimum amount of $1,000,000 and integral
multiples of $500,000 in excess of that amount; and




               (ii) with respect to Eurodollar Rate Loans, Borrower may prepay any such Loans on any
Business Day in whole or in part in an aggregate minimum amount of $1,000,000 and integral
multiples of $500,000 in excess of that amount.



          (b) All such prepayments shall be made:





               (i) upon not less than one Business Day’s prior written or telephonic notice in the
case of Base Rate Loans; and




               (ii) upon not less than three Business Days’ prior written or telephonic notice in the
case of Eurodollar Rate Loans.


in each case given to Administrative Agent, by 12:00 p.m. (New York time) on the date required and,
if given by telephone, promptly confirmed in writing to Administrative Agent (and Administrative
Agent will promptly transmit such telephonic or original notice for Term Loans by telefacsimile or
telephone to each Lender). Upon the giving of any such notice, the principal amount of the Loans
specified in such notice shall become due and payable on the prepayment date specified therein.
Any such voluntary prepayment shall be applied as specified in Section 2.15(a).




     2.14. Mandatory Prepayments.



          Subject to the terms of Section 2.11(b), so long as no amounts are outstanding under the First
Lien Credit Agreement (or any permitted refinancing thereof) and all commitments thereunder have
been terminated and all letters of credit issued thereunder shall have been terminated or fully
cash collateralized, or as otherwise consented to by requisite lenders under the First Lien Credit
Agreement or as due to a waiver pursuant to Section 2.15(c) of the First Lien Credit Agreement:




          (a) Asset Sales. No later than the tenth Business Day following the date of receipt by
Borrower or any of its Subsidiaries of any Net Asset Sale Proceeds, Borrower shall prepay the Loans
as set forth in Section 2.15(b) in an aggregate amount equal to such Net Asset Sale Proceeds;
provided, so long as no Default or Event of Default shall have occurred and be continuing, Borrower
shall have the option, directly or through one or more of their respective Subsidiaries, to invest
all or any portion of such Net Asset Sale Proceeds within 365 days of receipt thereof (or within
fifteen months of receipt if a binding agreement to reinvest is entered into within two hundred
seventy days of receipt) in long-term productive or other capital assets of the general type used
in the business of Borrower and its Subsidiaries.




          (b) Insurance/Condemnation Proceeds. No later than the tenth Business Day following the date
of receipt by Borrower or any of its Subsidiaries, or Administrative Agent as loss payee, of any
Net Insurance/Condemnation Proceeds, Borrower shall prepay the Loans as set forth in Section
2.15(b) in an aggregate amount equal to such Net Insurance/Condemnation Proceeds; provided, so long
as no Default or Event of Default shall have occurred and be





36









 







continuing, Borrower shall have the option, directly or through one or more of its Subsidiaries to
invest such Net Insurance/Condemnation Proceeds within 365 days of receipt thereof (or within
fifteen months of receipt if a binding agreement to reinvest is entered into within two hundred
seventy days of receipt) in long term productive or other capital assets of the general type used
in the business of Borrower and its Subsidiaries, which investment may include the repair,
restoration or replacement of the applicable assets thereof.




          (c)
Issuance of Equity Securities. No later than the first Business Day following the date of
receipt by AZ Chem Investments Partners LP, AZ Chem Luxembourg Finance S.à.r.l, Holdings or U.S.
Holdings of any Cash proceeds from a capital contribution to, or the issuance of any Equity
Interests of, AZ Chem Investments Partners LP, AZ Chem Luxembourg Finance S.à.r.l, Holdings or U.S.
Holdings or any of its Subsidiaries (other than (i) issuances pursuant to any employee stock or
stock option compensation plan and (ii) issuances to the Sponsor), Borrower shall prepay the Loans
as set forth in Section 2.15(b) in an aggregate amount equal to 50% of such proceeds, net of
underwriting discounts and commissions and other reasonable costs and expenses associated
therewith, including reasonable legal fees and expenses; provided, during any period in which the
Leverage Ratio (determined for any such period by reference to the most recent Compliance
Certificate delivered pursuant to Section 5.1(c) recently shall be
3.50:1.00 or less, Borrower shall only be required to make the prepayments otherwise required
hereby in an amount equal to 25% of such net proceeds.




          (d)
Issuance of Debt. No later than the first Business Day following the date of receipt by
Holdings or any of its Subsidiaries of any Cash proceeds from the incurrence of any Indebtedness of
Holdings or any of its Subsidiaries (other than with respect to any Indebtedness permitted to be
incurred pursuant to Section 6.1), Borrower shall prepay the Loans as set forth in Section 2.15(b)
in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and
commissions and other out-of-pocket costs and expenses associated therewith, including legal
auditing and accounting fees and expenses.




          (e)
Consolidated Excess Cash Flow. In the event that there shall be Consolidated Excess Cash
Flow for any Fiscal Year (commencing with the Fiscal Year ending 2007), Borrower shall, no later
than one hundred ten days after the end of such Fiscal Year, prepay the Loans as set forth in
Section 2.15(b) in an aggregate amount equal to (i) 50% of such Consolidated Excess Cash Flow minus
(ii) voluntary repayments of the Loans and First Lien Loans (excluding repayments of Revolving
Loans or Swing Line Loans (each as defined in the First Lien Credit Agreement) except to the extent
the Revolving Commitments (as defined in the First Lien Credit Agreement) are permanently reduced
in connection with such repayments); provided, that during any period in which the Leverage Ratio
(determined for any such period by reference to the most recent Compliance Certificate delivered
pursuant to Section 5.1(c) calculating the Leverage Ratio) shall be 3.50:1.00 or less, Borrower
shall only be required to make the prepayments otherwise required hereby in an amount equal to (i)
25% of such Consolidated Excess Cash Flow minus (ii) voluntary repayments of the Loans and First
Lien Loans (excluding repayments of Revolving Loans or Swing Line Loans (each as defined in the
First Lien Credit Agreement) except to the extent the Revolving Commitments (each as defined in the
First Lien Credit Agreement) are permanently reduced in connection with such repayments).





37









 








          (f) Reserved.




          (g) Reserved.




          (h)
Prepayment Certificate. Concurrently with any prepayment of the Loans pursuant to
Sections 2.14(a) through 2.14(e), Borrower shall deliver to Administrative Agent a certificate of
an Authorized Officer demonstrating the calculation of the amount of the applicable net proceeds or
Consolidated Excess Cash Flow, as the case may be. In the event that Borrower shall subsequently
determine that the actual amount received exceeded the amount set forth in such certificate,
Borrower shall promptly make an additional prepayment of the Loans in an amount equal to such
excess, and Borrower shall concurrently therewith deliver to Administrative Agent a certificate of
an Authorized Officer demonstrating the derivation of such excess.




     2.15. Application of Prepayments.



          (a)
Application of Voluntary Prepayments by Type of Loans. Any prepayment of any Loan pursuant
to Section 2.13(a) shall be applied as specified by Borrower in the applicable notice of
prepayment.




          (b)
Application of Mandatory Prepayments by Type of Loans. Any amount required to be paid
pursuant to Sections 2.14(a) through 2.14(e) shall be applied to prepay Loans of each Lender on a
pro rata basis.




          (c)
Application of Prepayments of Loans to Base Rate Loans and Eurodollar Rate Loans.
Considering each Class of Loans being prepaid separately, any prepayment thereof shall be applied
first to Base Rate Loans to the full extent thereof before application to Eurodollar Rate Loans, in
each case in a manner which minimizes the amount of any payments required to be made by Borrower
pursuant to Section 2.18(c).




     2.16. General Provisions Regarding Payments.



          (a) All payments by Borrower of principal, interest, fees and other Obligations shall be made
in Dollars in same day funds, without defense, setoff or counterclaim, free of any restriction or
condition, and delivered to Administrative Agent not later than 12:00 p.m. (New York time) on the
date due at the Principal Office designated by Administrative Agent for the account of Lenders; for
purposes of computing interest and fees, funds received by Administrative Agent after that time on
such due date shall be deemed to have been paid by Borrower on the next succeeding Business Day.




          (b) All payments in respect of the principal amount of any Loan shall be accompanied by
payment of accrued interest on the principal amount being repaid or prepaid, and all such payments
(and, in any event, any payments in respect of any Loan on a date when interest is due and payable
with respect to such Loan) shall be applied to the payment of interest then due and payable before
application to principal.




          (c) Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute
to each Lender at such address as such Lender shall indicate in writing, such








38









 







Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due
hereunder, together with all other amounts due thereto, including all fees payable with respect
thereto, to the extent received by Administrative Agent.




          (d) Notwithstanding the foregoing provisions hereof, if any Conversion/ Continuation Notice is
withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its
Pro Rata Share of any Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.




          (e) [Reserved.]




          (f) Administrative Agent shall deem any payment by or on behalf of Borrower hereunder that is
not made in same day funds prior to 12:00 p.m. (New York time) to be a non-conforming payment. Any
such payment shall not be deemed to have been received by Administrative Agent until the later of
(i) the time such funds become available funds, and (ii) the applicable next Business Day.
Administrative Agent shall give prompt telephonic notice to Borrower and each applicable Lender
(confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute
or become a Default or Event of Default in accordance with the terms of Section 8.1(a). Interest
shall continue to accrue on any principal as to which a non-conforming payment
is made until such funds become available funds (but in no event less than the period from the
date of such payment to the next succeeding applicable Business Day) at the rate determined
pursuant to Section 2.10 from the date such amount was due and payable until the date such amount
is paid in full.




          (g) If an Event of Default shall have occurred and not otherwise been waived, and the maturity
of the Obligations shall have been accelerated pursuant to Section 8.1, all payments or proceeds
received by Agents hereunder in respect of any of the Obligations (including, without limitation,
all proceeds received by each of the Administrative Agent and the Collateral Agent in respect of
any sale, any collection from, or other realization upon all or any part of the Collateral) shall
be applied, subject to the Intercreditor Agreement, in full or in part by each of the
Administrative Agent and the Collateral Agent against, the Obligations in the following order of
priority: first, to the payment of all costs and expenses of such sale, collection or other
realization, including reasonable compensation to each of the Administrative Agent and the
Collateral Agent and its agents and counsel, and all other expenses, liabilities and advances made
or incurred by each of the Administrative Agent and the Collateral Agent in connection therewith,
and all amounts for which each of the Administrative Agent and the Collateral Agent is entitled to
indemnification hereunder (in its capacity as each of the Administrative Agent and the Collateral
Agent and not as a Lender) and all advances made by each of the Administrative Agent and the
Collateral Agent hereunder for the account of the applicable Credit Party, and to the payment of
all costs and expenses paid or incurred by each of the Administrative Agent and the Collateral
Agent in connection with the exercise of any right or remedy hereunder, all in accordance with the
terms hereof or thereof; second, to the extent of any excess of such proceeds, to the payment of
all other Obligations for the ratable benefit of the Lenders and the Lender Counterparties; and
third, to the extent of any excess of such proceeds, to the payment to or upon the order of such
Credit Party or to whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.





39











 





     2.17. Ratable Sharing. Subject to the terms of the Intercreditor Agreement, Lenders
hereby agree among themselves that if any of them shall, whether by voluntary payment (other than a
voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the
exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the
enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a
deposit treated as cash collateral under the Bankruptcy Code or other applicable legislation,
receive payment or reduction of a proportion of the aggregate amount of principal, interest, fees
and other amounts then due and owing to such Lender hereunder or under the other Credit Documents
(collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion
received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the
Lender receiving such proportionately greater payment shall (a) notify Administrative Agent and
each other Lender of the receipt of such payment and (b) apply a portion of such payment to
purchase participations (which it shall be deemed to have purchased from each seller of a
participation simultaneously upon the receipt by such seller of its portion of such payment) in the
Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due
shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided, if all
or part of such proportionately greater payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or reorganization of Borrower or otherwise, those
purchases shall be rescinded and the purchase prices paid for such participations shall be returned
to such purchasing Lender ratably to the extent of such recovery, but without interest. Borrower
expressly consents to the foregoing arrangement and agrees that any holder of a participation so
purchased may exercise any and all rights of banker’s lien, set-off or counterclaim with respect to
any and all monies owing by Borrower to that holder with respect thereto as fully as if that holder
were owed the amount of the participation held by that holder.



     2.18. Making or Maintaining Eurodollar Rate Loans.



          (a) Inability
to Determine Applicable Interest Rate. In the event that Administrative Agent
shall have determined (which determination shall be final and conclusive and binding upon all
parties hereto), on any Interest Rate Determination Date with respect to any Eurodollar Rate Loans,
that by reason of circumstances affecting the London interbank market adequate and fair means do
not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in
the definition of Adjusted Eurodollar Rate, Administrative Agent shall on such date give notice (by
telefacsimile or by telephone confirmed in writing) to Borrower and each Lender of such
determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans until
such time as Administrative Agent notifies Borrower and Lenders that the circumstances giving rise
to such notice no longer exist, and (ii) any Funding Notice or Conversion/Continuation Notice given
by Borrower with respect to the Loans in respect of which such determination was made shall be
deemed to be rescinded by Borrower.



          (b) Illegality
or Impracticability of Eurodollar Rate Loans. In the event that on any date any
Lender shall have determined (which determination shall be final and conclusive and binding upon
all parties hereto but shall be made only after consultation with Borrower and Administrative
Agent) that the making, maintaining or continuation of its Eurodollar Rate Loans (i) has become
unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation,
guideline or order (or would conflict with any such treaty,



40









 




governmental rule, regulation, guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result
of contingencies occurring after the date hereof which materially and adversely affect the London
interbank market or the position of such Lender in that market, then, and in any such event, such
Lender shall be an “Affected Lender” and it shall on that day give notice (by telefacsimile or by
telephone confirmed in writing) to Borrower and Administrative Agent of such determination (which
notice Administrative Agent shall promptly transmit to each other Lender). Thereafter (1) the
obligation of the Affected Lender to make Loans as, or to convert Loans to, Eurodollar Rate Loans
shall be suspended until such notice shall be withdrawn by the Affected Lender, (2) to the extent
such determination by the Affected Lender relates to a Eurodollar Rate Loan then being requested by
Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the Affected Lender
shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a
Base Rate Loan, (3) the Affected Lender’s obligation to maintain its outstanding Eurodollar Rate
Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the
Interest Period then in effect with respect to the Affected Loans or when required by law, (4) the
Affected Loans shall automatically convert into Base Rate Loans on the date of such termination.
Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described
above relates to a Eurodollar Rate Loan then being requested by Borrower pursuant to a Funding
Notice or a Conversion/Continuation Notice, Borrower shall have the option, subject to the
provisions of Section 2.18(c), to rescind such Funding Notice or Conversion/Continuation Notice as
to all Lenders by giving notice (by telefacsimile or by telephone confirmed in writing) to
Administrative Agent of such rescission on the date on which the Affected Lender gives notice of
its determination as described above (which notice of rescission Administrative Agent shall
promptly transmit to each other Lender). Except as provided in the immediately preceding sentence,
nothing in this Section 2.18(b) shall affect the obligation of any Lender other than an Affected
Lender to make or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in accordance
with the terms hereof.




          (c) Compensation
for Breakage or Non-Commencement of Interest Periods. Borrower shall
compensate each Lender, upon written request by such Lender (which request shall set forth the
basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including
any interest paid by such Lender to Lenders of funds borrowed by it to make or carry its Eurodollar
Rate Loans and any loss, expense or liability sustained by such Lender in connection with the
liquidation or re-employment of such funds but excluding loss of anticipated profits) which such
Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Funding Notice or a
telephonic request for borrowing, or a conversion to or continuation of any Eurodollar Rate Loan
does not occur on a date specified therefor in a Conversion/Continuation Notice or a
telephonic request for conversion or continuation; (ii) if any prepayment or other principal
payment of, or any conversion of, any of its Eurodollar Rate Loans occurs on a date prior to the
last day of an Interest Period applicable to that Loan; or (iii) if any prepayment of any of its
Eurodollar Rate Loans is not made on any date specified in a notice of prepayment given by
Borrower.



41









 





          (d) Booking
of Eurodollar Rate Loans. Any Lender may make, carry or transfer Eurodollar Rate
Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such
Lender.



          (e) Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all amounts
payable to a Lender under this Section 2.18 and under Section 2.19 shall be made as though such
Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase of a
Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and
having a maturity comparable to the relevant Interest Period and through the transfer of such
Eurodollar deposit from an offshore office of such Lender to a domestic office of such Lender in
the United States of America; provided, however, each Lender may fund each of its Eurodollar Rate
Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the
purposes of calculating amounts payable under this Section 2.18 and under Section 2.19.



     2.19. Increased Costs; Capital Adequacy.



          (a) Compensation For Increased Costs and Taxes. Subject to the provisions of Section 2.20
(which shall be controlling with respect to the matters covered thereby), in the event that any
Lender shall determine (which determination shall, absent manifest error, be final and conclusive
and binding upon all parties hereto) that any law, treaty or governmental rule, regulation or
order, or any change therein or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental rule, regulation or order), or
any determination of a court or governmental authority, in each case that becomes effective after
the date hereof (or in the case of any Lender that becomes a party after the Closing Date, the date
that such Lender becomes a party hereto), or compliance by such Lender with any guideline, request
or directive issued or made after the date hereof (or in the case of any Lender that becomes a
party after the Closing Date, the date that such Lender becomes a party hereto) by any central bank
or other governmental or quasi-governmental authority (whether or not having the force of law): (i)
subjects such Lender (or its applicable lending office) to any additional Tax (other than any Tax
on the overall net income of such Lender) with respect to this Agreement or any of the other Credit
Documents or any of its obligations hereunder or thereunder or any payments to such Lender (or its
applicable lending office) of principal, interest, fees or any other amount payable hereunder; (ii)
imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental,
special or other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement
against assets held by, or deposits or other liabilities in or for the account of, or advances or
loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to
Eurodollar Rate Loans that are reflected in the definition of Adjusted Eurodollar Rate); or (iii)
imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender
(or its applicable lending office) or its obligations hereunder or the London interbank market; and
the result of any of the foregoing is to increase the actual cost to such Lender of agreeing to
make, making or maintaining Loans hereunder or to reduce any amount actually received or receivable
by such Lender (or its applicable lending office) with respect thereto; then, in any such case,
Borrower shall promptly pay to such Lender, upon receipt of the statement referred to in the next
sentence, such additional amount or amounts (in the form of an



42









 




increased rate of, or a different method of calculating, interest or otherwise as such Lender in
its sole discretion shall determine) as may be necessary to compensate such Lender on an after-tax
basis for any such increased cost or reduction in amounts received or receivable hereunder. Such
Lender shall deliver to Borrower (with a copy to Administrative Agent) a written statement, setting
forth in reasonable detail the basis for calculating the additional amounts owed to such Lender
under this Section 2.19(a), which statement shall be conclusive and binding upon all parties hereto
absent manifest error.




          (b) Capital Adequacy Adjustment. In the event that any Lender shall have determined that the
adoption, effectiveness, phase-in or applicability after the Closing Date (or in the case of any
Lender that becomes a party after the Closing Date, the date that such Lender becomes a party
hereto) of any law, rule or regulation (or any provision thereof) regarding capital adequacy, or
any change therein or in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its applicable lending office) with any guideline, request
or directive regarding capital adequacy (whether or not having the force of law) of any such
Governmental Authority, central bank or comparable agency, has or would have the effect of reducing
the rate of return on the capital of such Lender or any corporation controlling such Lender as a
consequence of, or with reference to, such Lender’s Loans or other obligations hereunder with
respect to the Loans to a level below that which such Lender or such controlling corporation could
have achieved but for such adoption, effectiveness, phase-in, applicability, change or compliance
(taking into consideration the policies of such Lender or such controlling corporation with regard
to capital adequacy), then from time to time, within five Business Days after receipt by Borrower
from such Lender of the statement referred to in the next sentence, Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender or such controlling
corporation on an after-tax basis for such reduction. Such Lender shall deliver to Borrower (with a
copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to Lender under this Section 2.19(b), which statement shall
be conclusive and binding upon all parties hereto absent manifest error.



          Notwithstanding the foregoing, Borrower shall not be required to compensate a Lender pursuant
to this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender, as the case may
be, notifies the Borrower of the change giving rise to such increased costs or reductions and of
such Lender’s intention to claim compensation therefor (except that, if the change giving rise to
such increased costs or reductions is retroactive, then the nine-month period referred to above
shall be extended to include the period of retroactive effect thereof).



     2.20. Taxes; Withholding, etc.



          (a) Payments to Be Free and Clear. All sums payable by or on behalf of any Credit Party
hereunder and under the other Credit Documents shall (except to the extent required by law) be paid
free and clear of, and without any deduction or withholding on account of, any Tax (other than a
Tax on the overall net income of any Lender) imposed, levied, collected, withheld or assessed by
any Governmental Authority or any political subdivision or taxing authority thereof or therein.



43









 





          (b) Withholding of Taxes. If any Credit Party or any other Person is required by law to make
any deduction or withholding on account of any such Tax from any sum paid or payable by any Credit
Party to Administrative Agent or any Lender under any of the Credit Documents: (i) Borrower shall
notify, or cause to be notified, Administrative Agent of any such requirement or any change in any
such requirement as soon as Borrower become aware of it; (ii) Borrower shall pay, or cause to be
paid, any such Tax before the date on which penalties attach thereto, such payment to be made (if
the liability to pay is imposed on any Credit Party) for its own account or (if that liability is
imposed on Administrative Agent or such Lender, as the case may be) on behalf of and in the name of
Administrative Agent or such Lender; (iii) the sum payable in respect of which the relevant
deduction, withholding or payment is required shall be increased to the extent necessary to ensure
that, after the making of such deduction, withholding or payment, Administrative Agent or such
Lender, as the case may be, receives on the due date a net sum equal to what it would have received
had no such deduction, withholding or payment been required or made; and (iv) within thirty days
after payment of such sum, and within thirty days after the due date of payment of any Tax Borrower
shall deliver, or cause to be delivered, to Administrative Agent the original or certified copy of
and receipt evidencing such payment; provided, no such additional amount shall be required to be
paid to any Lender under clause (iii) above except to the extent that any change after the date
hereof (in the case of each Lender listed on the signature pages hereof on the Closing Date) or
after the effective date of the Assignment Agreement pursuant to which such Lender became a Lender
(in the case of each other Lender) in any such requirement for a deduction, withholding or payment
shall result in an increase in the rate of such deduction, withholding or payment from that in
effect at the date hereof or at the date of such Assignment Agreement, as the case may be, in
respect of payments to such Lender; provided, however, that a Lender shall be entitled to receive
additional amounts under clause (iii) above to the extent such Lender’s assignor was entitled to
receive additional amounts.



          (c) Payment of Other Taxes. In addition, Borrower shall pay or cause to be paid any and all
present or future stamp or documentary taxes and any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement
or any other Credit Document to the relevant Governmental Authority in accordance with applicable
law.



          (d) Evidence of Exemption From U.S. Withholding Tax. Each Lender making a loan to Borrower
that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Internal
Revenue Code) for United States federal income tax purposes (a “Non-U.S. Lender”) shall deliver to
Administrative Agent for transmission to Borrower, on or prior to the Closing Date (in the case of
each Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date of
the Assignment Agreement pursuant to which it becomes a Lender (in the case of each other Lender),
and at such other times upon request of Borrower or Administrative Agent as may be necessary in the
determination of Borrower or Administrative Agent (each in the reasonable exercise of its
discretion), (i) two original copies of Internal Revenue Service Form W-8BEN, W-8ECI and/or W-8IMY
(or any successor forms), properly completed and duly executed by such Lender, and such other
documentation required under the Internal Revenue Code or reasonably requested by Borrower to
establish that such Lender is not subject to (or is subject to a reduced rate of) deduction or
withholding of United States federal income tax with respect to any payments to such Lender of
principal, interest, fees or other amounts payable under any of the Credit Documents, or (ii) if
such Lender is not a



44









 




“bank” or other Person described in Section 881(c)(3) of the Internal Revenue Code and cannot
deliver Internal Revenue Service Form W-8ECI pursuant to clause (i) above, a Certificate re
Non-Bank Status together with two original copies of Internal Revenue Service Form W-8BEN and/or
W-8IMY (or any successor form), properly completed and duly executed by such Lender, and such other
documentation required under the Internal Revenue Code or reasonably requested by Borrower to
establish that such Lender is not subject to (or is subject to a reduced rate of) deduction or
withholding of United States federal income tax with respect to any payments to such Lender of
interest payable under any of the Credit Documents. If any Lender provides an Internal Revenue
Service Form W-8IMY, such Lender must also attach the additional documentation that must be
transmitted with Internal Revenue Service Form W-8IMY, including the appropriate forms described in
this Section 2.20(d). Each Lender making a Loan to Borrower that is a United States person (as
such term is defined in Section 7701(a)(30) of the Internal Revenue Code) and is not a person whose
name indicates that it is an “exempt recipient” (as such term is defined in Section 1.6049-4(c)(ii)
of the United States Treasury Regulations) shall deliver to Borrower and Administrative Agent on or
prior to the Closing Date (in the case of each Lender listed on the signature pages hereof on the
Closing Date) or on or prior to the date of the Assignment Agreement pursuant to which it becomes a
Lender (in the case of each other Lender), and at such other times, upon request of Borrower or
Administrative Agent, as may be necessary in the determination of Borrower and Administrative Agent
(each in the reasonable exercise of its discretion) two original copies of Internal Revenue Service
Form W-9 (or successor forms). Notwithstanding anything to the contrary contained herein, a
Non-U.S. Lender shall not be required to deliver any form or statement pursuant to this Section
2.20(d) that such Non-U.S. Lender is not legally able to deliver. Each Lender required to deliver any forms,
certificates or other evidence with respect to United States federal income tax withholding matters
pursuant to this Section 2.20(d) hereby agrees, from time to time after the initial delivery by
such Lender of such forms, certificates or other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or other evidence obsolete or inaccurate in any
material respect, that such Lender shall promptly deliver to Administrative Agent for transmission
to Borrower two new original copies of Internal Revenue Service Form W-8BEN, W-8ECI, W-8IMY or W-9,
or a Certificate re Non-Bank Status and two original copies of Internal Revenue Service Form W-8BEN
or W-8IMY (or any successor form), as the case may be, properly completed and duly executed by such
Lender, and such other documentation required under the Internal Revenue Code or reasonably
requested by Borrower to confirm or establish that such Lender is not subject to (or is subject to
a reduced rate of) deduction or withholding of United States federal income tax with respect to
payments to such Lender under the Credit Documents, or notify Administrative Agent and Borrower of
its inability to deliver any such forms, certificates or other evidence. Borrower shall not be
required to pay any additional amount to any Non-U.S. Lender under Section 2.20(b)(iii), unless
such additional amounts are imposed as a result of the Lender becoming a Replacement Lender under
Section 2.23, or designating a new lending office under Section 2.21, at the request of the
Borrower, if such Lender shall have failed (1) to deliver the forms, certificates or other evidence
referred to in this Section 2.20(d), or (2) to notify Administrative Agent and Borrower of its
inability to deliver any such forms, certificates or other evidence, as the case may be; provided,
if such Lender shall have satisfied the requirements of the first and second sentences of this
Section 2.20(d) on the Closing Date or on the date of the Assignment Agreement pursuant to which it
became a Lender, as applicable, nothing in this last sentence of Section 2.20(d) shall relieve
Borrower of its




45









 







obligation to pay any additional amounts pursuant this Section 2.20 in the event that, as a result
of any change in any applicable law, treaty or governmental rule, regulation or order, or any
change in the interpretation, administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender is not subject to withholding as described herein.




          (e) Evidence of Exemption from U.S.Backup Withholding Tax. Each Lender shall unless it is
subject to the requirements to deliver forms pursuant to Section 2.20(d) above, deliver to the
Administrative Agent, on the Closing Date (or, if later, on or prior to the date such Lender
becomes a party hereto) and from time to time thereafter, upon the request of the Administrative
Agent or on or prior to the expiration of the previously delivered form, two original copies of
either Internal Revenue Service Form W-8BEN, W-8ECI, W-8IMY or W-9 (with required attachments), as
may be applicable, in each case properly completed and executed, as will permit such payments to be
made without any United States backup withholding tax.



          (f) Evidence of Exemption from Non-U.S. Withholding Tax. A Lender that is entitled to an
exemption from or reduction of non-U.S. withholding tax under the law of the jurisdiction in which
any Borrower is subject to tax, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver,
within a reasonable period of time, to the relevant Borrower (with a copy to the Collateral Agent),
as reasonably requested by such Borrower, such properly completed and executed documentation
prescribed by applicable law (including, if relevant, a certificate of residence) as will permit
such payments to be made without withholding or at a reduced rate, provided that such Lender is
legally entitled to complete, execute and deliver such documentation.



          (g) Borrower Indemnification for Failure to Pay Required Taxes, etc. If Borrower fail to pay
(or cause to be paid) any Taxes pursuant to Section 2.20(b)(ii) or (c) when due to the appropriate
tax authority or fail to remit to the Administrative Agent the required receipts or other required
documentary evidence, Borrower shall jointly and severally indemnify the Administrative Agent and
the Lenders (which term shall include Collateral Agents for purposes of this Section 2.20(g)) for
the full amount of such Taxes paid by Administrative Agent or any Lender and any incremental Taxes
that may become payable by the Administrative Agent or any Lender as a result of any such failure.
Payment under this indemnification must be made within fifteen days from the date any
Administrative Agent or any Lender or any of their respective Affiliates makes written demand
therefore accompanied by appropriate evidence of the Tax and its payment.



          (h) Treatment of Certain Refunds. So long as no Default or Event of Default has occurred and
is continuing, if the Administrative Agent or a Lender (which term shall include the Collateral
Agent for purposes of this Section 2.20(h)) determines, in its sole discretion, that it has
received a refund of any Taxes or other taxes (as described in Section 2.20(d)) as to which it has
been indemnified by a Credit Party or with respect to which the Credit Party has paid additional
amounts pursuant to this Section, it shall pay to such Credit Party an amount equal to such refund
(but only to the extent of indemnity payments made, or additional amounts paid, by the Credit Party
under this Section with respect to the Taxes or other taxes (as described in Section 2.20(d))
giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such



46









 




Lender, as applicable, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that such Credit Party, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the
Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such
Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be
construed to require the Administrative Agent or any Lender to make available its tax returns (or
any other information relating to its taxes that it deems confidential) to any Credit Party or any
other Person.




     2.21. Obligation to Mitigate. Each Lender agrees that, as promptly as practicable after the
officer of such Lender responsible for administering its Loans becomes aware of the occurrence of
an event or the existence of a condition that would cause such Lender to become an Affected Lender
or that would entitle such Lender to receive payments under Section 2.18, 2.19 or 2.20, it will, to
the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable
efforts to (a) make, issue, fund or maintain its Credit Extensions, including any Affected Loans,
through another office of such Lender, or (b) take such other measures as such Lender may deem
reasonable, if as a result thereof the circumstances which would cause such Lender to be an
Affected Lender would cease to exist or the additional amounts which would otherwise be required to
be paid to such Lender pursuant to Section 2.18, 2.19 or 2.20 would be materially reduced and if,
as determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of
such Loans through such other office or in accordance with such other measures, as the case may be,
would not otherwise adversely affect such Loans or the interests of such Lender; provided, such
Lender will not be obligated to utilize such other office pursuant to this Section 2.21 unless
Borrower agrees to pay all incremental expenses incurred by such Lender as a result of utilizing
such other office as described above. A certificate as to the amount of any such expenses payable
by Borrower pursuant to this Section 2.21 (setting forth in reasonable detail the basis for
requesting such amount) submitted by such Lender to Borrower (with a copy to Administrative Agent)
shall be conclusive absent manifest error.



     2.22. [Reserved.]



     2.23. Removal or Replacement of a Lender. Anything contained herein to the contrary
notwithstanding, in the event that: (a) (i) any Lender (an “Increased-Cost Lender”) shall give
notice to Borrower that such Lender is an Affected Lender or that such Lender is entitled to
receive payments under Section 2.18, 2.19 or 2.20, (ii) the circumstances which have caused such
Lender to be an Affected Lender or which entitle such Lender to receive such payments shall remain
in effect, and (iii) such Lender shall fail to withdraw such notice within five Business Days after
Borrower’s request for such withdrawal; or (b) in connection with any proposed amendment,
modification, termination, waiver or consent with respect to any of the provisions hereof as
contemplated by Section 10.5(b), the consent of Requisite Lenders shall have been obtained but the
consent of one or more of such other Lenders (each a “Non-Consenting Lender”) whose consent is
required shall not have been obtained; then, with respect to each such Increased-Cost Lender, or
Non-Consenting Lender (the “Terminated Lender”), Borrower may, by giving written notice to
Administrative Agent and any Terminated Lender of its election to do so, elect to cause such
Terminated Lender (and such Terminated



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Lender hereby irrevocably agrees) to assign its outstanding Loans in full to one or more Eligible
Assignees (each a “Replacement Lender”) in accordance with the provisions of Section 10.6 and
Borrower shall pay the fees, if any, payable thereunder in connection with any such assignment from
an Increased Cost Lender or a Non-Consenting Lender; provided, (1) on the date of such assignment,
the Replacement Lender shall pay to Terminated Lender an amount equal to the sum of (A) an amount
equal to the principal of, and all accrued interest on, all outstanding Loans of the Terminated
Lender, (B) an amount equal to all unreimbursed drawings that have been funded by such Terminated
Lender, together with all then unpaid interest with respect thereto at such time and (C) an amount
equal to all accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.11; (2) on the date of such assignment, Borrower shall pay any amounts
payable to such Terminated Lender pursuant to Section 2.18(c), 2.19 or 2.20; or otherwise as if it
were a prepayment and (3) in the event such Terminated Lender is a Non-Consenting Lender, each
Replacement Lender shall consent, at the time of such assignment, to each matter in respect of
which such Terminated Lender was a Non-Consenting Lender. Upon the prepayment of all amounts owing
to any Terminated Lender, such Terminated Lender shall no longer constitute a “Lender” for purposes
hereof; provided, any rights of such Terminated Lender to indemnification hereunder shall survive
as to such Terminated Lender.




     2.24. Incremental Facilities. Borrower may by written notice to Administrative Agent and GSCP
elect to request the establishment of one new term loan commitment (the “New Term Loan
Commitments”) by an amount not in excess of $25,000,000 in the aggregate. Such notice shall specify
(A) the date (the “Increased Amount Date”) on which the Borrower proposes that the New Term Loan
Commitments shall be effective, which shall be a date not less than 10 Business Days after the date
on which such notice is delivered to GSCP and (B) the identity of each Lender or other Person that
is an Eligible Assignee (each, a “New Term Loan Lender”) to whom Borrower proposes any portion of
such New Term Loan Commitments be allocated and the amounts of such allocations; provided that GSCP
may elect or decline to arrange such New Term Loan Commitments in its sole discretion and any
Lender approached to provide all or a portion of the New Term Loan Commitments may elect or
decline, in its sole discretion, to provide a New Term Loan Commitments. Such New Term Loan
Commitments shall become effective as of the Increased Amount Date; provided that (1) no Default or
Event of Default shall exist on the Increased Amount Date before or after giving effect to such New
Term Loan Commitments; (2) both before and after giving effect to the making of the New Term Loans,
each of the conditions set forth in Section 3.2 shall be satisfied; (3) Holdings and its
Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 6.7
as of the last day of the most recently ended Fiscal Quarter after giving effect to such New Term
Loan Commitments; (4) the New Term Loan Commitments shall be effected pursuant to a Joinder
Agreement executed and delivered by Borrower, the New Term Loan Lenders and Administrative Agent,
and each of which shall be recorded in the Register and each New Term Loan Lender shall be subject
to the requirements set forth in Section 2.20(d); (5) Borrower shall make any payments required
pursuant to Section 2.18(c) in connection with the New Term Loan Commitments; and (6) Borrower
shall deliver or cause to be delivered any legal opinions or other documents reasonably requested
by Administrative Agent in connection with any such transaction.



     On the Increased Amount Date on which any New Term Loan Commitments are effective, subject to
the satisfaction of the foregoing terms and conditions, (i) each New Term



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Loan Lender shall make a Loan to Borrower (a “New Term Loan”) in an amount equal to its New Term
Loan Commitments, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect
to the New Term Loan Commitments and the New Term Loans made pursuant thereto.




     Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of the
Increased Amount Date and in respect thereof the New Term Loan Commitments and the New Term Loan
Lenders.



     The terms and provisions of the New Term Loans and New Term Loan Commitments shall be, except
as otherwise set forth herein or in the Joinder Agreement, identical to the Second Lien Term Loans.
In any event (i) the weighted average life to maturity of the New Term Loans shall be no shorter
than the weighted average life to maturity of the Second Lien Term Loans, (ii) the New Term Loan
Maturity Date shall be no shorter than the latest of the final maturity of the Second Lien Term
Loans, and (iii) the rate of interest applicable to the New Term Loans shall be determined by
Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder
Agreement; provided, however, that the interest rate applicable to the New Term Loans (after giving
effect to all upfront or similar fees or original issue discount payable with respect to such New
Term Loans) shall not be greater than the highest interest rate that may, under any circumstances,
be payable with respect to Second Lien Term Loans plus 0.50% per annum unless the interest rate
with respect to the Second Lien Term Loans is increased so as to equal the interest rate applicable
to the New Term Loans (after giving effect to all upfront or similar fees or original issue
discount payable with respect to such New Term Loans) minus 0.50% per annum. Each Joinder
Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement
and the other Credit Documents as may be necessary or appropriate, in the opinion of Administrative
Agent to effect the provision of this Section 2.24.



SECTION 3. CONDITIONS PRECEDENT




     3.1. Closing Date. The obligation of each Lender to make a Credit Extension on the Closing
Date is subject to the satisfaction, or waiver in accordance with Section 10.5, of the following
conditions on or before the Closing Date:



          (a) Credit Documents. Administrative Agent shall have received sufficient copies of each
Credit Document contemplated herein to be delivered on the Closing Date originally executed and
delivered by each applicable Credit Party for each Lender.



          (b) Organizational Documents; Incumbency. Lead Arranger shall have received (i) sufficient
copies of each Organizational Document executed and delivered by each Credit Party, as applicable,
and, to the extent applicable, certified as of a recent date by the appropriate governmental
official, for each Lender, each dated the Closing Date or a recent date prior thereto; (ii)
signature and incumbency certificates of the officers or directors of such Person executing the
Credit Documents to which it is a party; (iii) resolutions of the Board of Directors or similar
governing body of each Credit Party approving and authorizing the execution, delivery and
performance of this Agreement and the other Credit Documents and the Related Agreements to which it
is a party or by which it or its assets may be bound as of the Closing Date, certified as



49









 




of the Closing Date by a director, its secretary or an assistant secretary as being in full force
and effect without modification or amendment; and (iv) a good standing certificate from the
applicable Governmental Authority of each Credit Party’s jurisdiction of incorporation,
organization or formation and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a recent date prior to the
Closing Date.




          (c) Consummation of Transactions.




               (i) (1) Borrower shall have received the gross proceeds from the borrowings of the
First Lien Loans in an aggregate amount in cash of not less than $250,000,000; (2) Borrower
shall have delivered to Administrative Agent complete, correct and conformed copies of the
First Lien Credit Agreement; and (3) the Equity Contribution shall have occurred, on
material terms and pursuant to documents reasonably satisfactory to Lead Arranger.




               (ii) Stock Purchase Agreement shall be in full force and effect, shall include terms
and provisions reasonably satisfactory to Lead Arranger and no provision thereof shall have
been modified or waived in any respect determined by Lead Arranger to be material, in each
case without the consent of Lead Arranger. All conditions precedent to the consummation of
the Acquisition shall have been satisfied or waived (with the prior consent of the Lead
Arranger if the Lead Arranger reasonably determines such waiver is materially adverse to
the Lenders).



          (d) Existing Indebtedness. On the Closing Date, other than Permitted Indebtedness, Holdings
and its Subsidiaries shall have (i) repaid in full all existing Indebtedness of the Acquired
Business, (ii) terminated any commitments to lend or make other extensions of credit thereunder,
(iii) delivered to Administrative Agent all documents or instruments necessary to release all Liens
securing existing Indebtedness or other obligations of Holdings and its Subsidiaries thereunder
being repaid on the Closing Date, and (iv) made arrangements satisfactory to Administrative Agent
with respect to the cancellation of any letters of credit outstanding thereunder or the issuance of
letters of credit under the First Lien Credit Agreement to support the obligations of Holdings and
its Subsidiaries with respect thereto.



          (e) Personal Property Collateral. In order to create in favor of Collateral Agent, for the
benefit of Secured Parties, a valid, perfected Second Priority security interest in the personal
property Collateral, the Credit Parties shall have delivered to Collateral Agent:




               (i) evidence satisfactory to Collateral Agent of the compliance by each Credit Party
of their obligations under the Pledge and Security Agreement and the other Collateral
Documents (including their obligations to execute, authorize and deliver, to the extent
applicable, UCC financing statements, originals of securities, instruments and chattel
paper and any agreements governing deposit and/or securities accounts as provided therein);




               (ii) a completed Collateral Questionnaire dated the Closing Date and executed by an
Authorized Officer of each Credit Party, together with all attachments contemplated
thereby;



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               (iii) fully executed and notarized Intellectual Property security agreements, in
proper form for filing or recording in all appropriate places in all applicable
jurisdictions, memorializing and recording the encumbrance of the Intellectual Property Assets listed in Schedule 4.7 to the Pledge and Security
Agreement; and




               (iv) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral
Agent) with respect to the creation and perfection of the security interests in favor of
Collateral Agent in such Collateral and such other matters governed by the laws of each
jurisdiction in which any Credit Party or any personal property Collateral is located as
Collateral Agent may reasonably request, in each case in form and substance reasonably
satisfactory to Collateral Agent.



          (f) Financial Statements; Projections. Lenders shall have received from Borrower: (i) the
Historical Financial Statements, (ii) pro forma consolidated and consolidating balance sheets of
Holdings and its Subsidiaries as at the Closing Date, and reflecting the consummation of the
Acquisition, the related financings and the other transactions contemplated by the Credit Documents
to occur on or prior to the Closing Date, which pro forma financial statements shall be in form and
substance satisfactory to Administrative Agent, and (iii) (in respect of non-public Lenders only)
the Projections.



          (g) Evidence of Insurance. Collateral Agent shall have received a certificate from the Credit
Parties’ insurance broker or other evidence satisfactory to it that all insurance required to be
maintained pursuant to Section 5.5 is in full force and effect, together with endorsements naming
the Collateral Agent, for the benefit of Secured Parties, as additional insured and loss payee
thereunder to the extent required under Section 5.5.



          (h) Opinions of Counsel to Credit Parties. Lenders and their respective counsel shall have
received originally executed copies of the favorable written opinions of Sullivan & Cromwell LLP,
counsel for the Credit Parties dated as of the Closing Date and otherwise in form and substance
reasonably satisfactory to Administrative Agent (and each Credit Party hereby instructs such
counsel to deliver such opinions to Agents and Lenders).



          (i) Fees. Borrower shall have paid to Agents the fees payable on the Closing Date referred to
in Section 2.11(a).



          (j) Solvency Certificate. On the Closing Date, Administrative Agent shall have received a
Solvency Certificate from U.S. Holdings and in form, scope and substance satisfactory to
Administrative Agent, and demonstrating that after giving effect to the consummation of the
Transactions and any rights of contribution, each of U.S. Holdings and its Subsidiaries is and will
be Solvent.



          (k) Closing Date Certificate. Borrower shall have delivered to Administrative Agent an
originally executed Closing Date Certificate, together with all attachments thereto.



          (l) No Litigation. There shall not exist any Adverse Proceeding affecting the Acquisition to
the extent that the existence of such Adverse Proceeding would allow the Sponsor to terminate
without liability its obligations under the Stock Purchase Agreement or relating to the financing
contemplated thereby.



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          (m) Letter of Direction. Administrative Agent and Lead Arranger shall have received a duly
executed letter of direction from Borrower addressed to Lead Arranger, on behalf of itself and Lenders, directing the disbursement on the Closing Date of
the proceeds of the Loans made on such date.



          (n) Maximum Leverage Ratio. The ratio of (i) Consolidated Total Debt as of the Closing Date
after giving effect to the Acquisition to (ii) pro forma Consolidated Adjusted EBITDA for the
latest twelve-month period for which financial statements are then available shall not be greater
than 5.2:1.0.



          (o) Patriot Act. At least 10 days prior to the Closing Date (or such shorter period of time
reasonably agreed to by the Administrative Agent), the Lead Arranger shall have received all
documentation and other information required by bank regulatory authorities under applicable
“know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).



     3.2. Conditions to Each Credit Extension.



          (a) Conditions Precedent. The obligation of each Lender to make any Loan on any Credit Date,
including the Closing Date, are subject to the satisfaction, or waiver in accordance with Section
10.5, of the following conditions precedent:




               (i) Administrative Agent shall have received a fully executed and delivered Funding
Notice;




               (ii) as of such Credit Date, the representations and warranties contained herein and
in the other Credit Documents (or in respect of the Closing Date only, such representations
and warranties made by the Sellers to the Sponsor in the Stock Purchase Agreement as are
material to the interests of the Lenders but only to the extent that Sponsor has the right
to terminate without liability its obligations under the Stock Purchase Agreement and
Sections 4.1, 4.2, 4.3, 4.6, 4.7, 4.8, 4.9, 4.12, 4.16, 4.17, 4.20, 4.25 and 4.26) shall be
true and correct in all material respects on and as of that Credit Date to the same extent
as though made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects on and as of such
earlier date; and




               (iii) as of such Credit Date, no event shall have occurred and be continuing or would
result from the consummation of the applicable Credit Extension that would constitute an
Event of Default or a Default.


Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior
to the making of any Credit Extension, additional information reasonably satisfactory to the
requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment
of such Agent or Requisite Lender such request is warranted under the circumstances.




          (b) Notices. Any Notice shall be executed by an Authorized Officer in a writing delivered to
Administrative Agent. In lieu of delivering a Funding Notice, Borrower may give



52









 




Administrative Agent telephonic notice by the required time of any proposed borrowing,
conversion/continuation, as the case may be; provided each such notice shall be promptly confirmed
in writing by delivery of the applicable Notice to Administrative Agent on or before the applicable date of borrowing or continuation/conversion. Neither Administrative Agent
nor any Lender shall incur any liability to Borrower in acting upon any telephonic notice referred
to above that Administrative Agent believes in good faith to have been given by a duly authorized
officer or other person authorized on behalf of Borrower or for otherwise acting in good faith.




SECTION 4. REPRESENTATIONS AND WARRANTIES




     In order to induce Lenders to enter into this Agreement and to make each Credit Extension to
be made thereby, each Credit Party represents and warrants to each Lender, on the Closing Date and
on each Credit Date, that the following statements are true and correct (it being understood and
agreed that the representations and warranties made on the Closing Date are deemed to be made
concurrently with and after giving effect to the consummation of the Transactions contemplated
hereby):



     4.1. Organization; Requisite Power and Authority; Qualification. Each of Holdings and its
Subsidiaries (a) is duly organized, validly existing and in good standing (to the extent such
concept is known in the relevant jurisdiction) under the laws of its jurisdiction of organization
as identified in Schedule 4.1, (b) has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as proposed to be conducted, to enter
into the Credit Documents to which it is a party and to carry out the transactions contemplated
thereby, and (c) is qualified to do business and in good standing (to the extent such concept is
known in the relevant jurisdiction) in every jurisdiction where its assets are located and wherever
necessary to carry out its business and operations, except in jurisdictions where the failure to be
so qualified or in good standing has not had, and could not be reasonably expected to have, a
Material Adverse Effect.



     4.2. Equity Interests and Ownership. The Equity Interests of each of Holdings and its
Subsidiaries has been duly authorized and validly issued and is fully paid and non-assessable.
Except as set forth on Schedule 4.2, as of the date hereof, there is no existing option, warrant,
call, right, commitment or other agreement to which Holdings or any of its Subsidiaries is a party
requiring, and there is no membership interest or other Equity Interests of Holdings or any of its
Subsidiaries outstanding which upon conversion or exchange would require, the issuance by Holdings
or any of its Subsidiaries of any additional membership interests or other Equity Interests of
Holdings or any of its Subsidiaries or other Securities convertible into, exchangeable for or
evidencing the right to subscribe for or purchase, a membership interest or other Equity Interests
of Holdings or any of its Subsidiaries. Schedule 4.2 correctly sets forth the ownership interest of
Holdings and each of its Subsidiaries in their respective Subsidiaries as of the Closing Date after
giving effect to the Transaction.



     4.3. Due Authorization. The execution, delivery and performance of the Credit Documents have
been duly authorized by all necessary action on the part of each Credit Party that is a party
thereto.



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     4.4. No Conflict. The execution, delivery and performance by Credit Parties of the Credit
Documents to which they are parties and the consummation of the transactions contemplated by the
Credit Documents do not and will not (a) violate (i) any provision of any law or any governmental
rule or regulation applicable to Holdings or any of its Subsidiaries, (ii) any of the Organizational Documents of Holdings or any of its Subsidiaries,
or (iii) any order, judgment or decree of any court or other agency of government binding on
Holdings or any of its Subsidiaries; (b) conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any Contractual Obligation of Holdings or any
of its Subsidiaries except to the extent such conflict, breach or default could not reasonably be
expected to have a Material Adverse Effect; (c) result in or require the creation or imposition of
any Lien upon any of the properties or assets of Holdings or any of its Subsidiaries (other than
any Liens created under any of the Credit Documents in favor of Collateral Agent, on behalf of
Secured Parties and the First Lien Credit Documents); or (d) require any approval of stockholders,
shareholders, members or partners or any approval or consent of any Person under any Contractual
Obligation of Holdings or any of its Subsidiaries, except for such approvals or consents which will
be obtained on or before the Closing Date and disclosed in writing to Lenders and except for any
such approvals or consents the failure of which to obtain will not have a Material Adverse Effect.



     4.5. Governmental Consents. The execution, delivery and performance by Credit Parties of the
Credit Documents to which they are parties and the consummation of the transactions contemplated by
the Credit Documents do not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any Governmental Authority, except for filings and
recordings with respect to the Collateral to be made, or otherwise delivered to Collateral Agent
and the collateral agent under the First Lien Credit Documents for filing and/or recordation, as of
the Closing Date.



     4.6. Binding Obligation. Each Credit Document has been duly executed and delivered by each
Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit
Party, enforceable against such Credit Party in accordance with its 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.



     4.7. Historical Financial Statements. The Historical Financial Statements were prepared in
conformity with GAAP and fairly present, in all material respects, the financial position, on a
consolidated basis, of the Persons described in such financial statements as at the respective
dates thereof and the results of operations and cash flows, on a consolidated basis, of the
entities described therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal year-end adjustments. As
of the Closing Date, neither the Acquired Businesses nor any of their Subsidiaries has any
contingent liability or liability for taxes, long-term lease or unusual forward or long-term
commitment that is not reflected in the Historical Financial Statements or the notes thereto and
which in any such case is material in relation to the business, operations, properties, assets,
condition (financial or otherwise) of Holdings and any of its Subsidiaries taken as a whole.




54












 






     4.8. Projections. On and as of the Closing Date, the projections of Holdings and its
Subsidiaries for the period of Fiscal Year 2007 through and including Fiscal Year 2011 (the
“Projections”) are based on recent historical information and based on good faith estimates and
assumptions made by the management of Holdings; provided, the Projections are not to be viewed as
facts and that actual results during the period or periods covered by the Projections may differ
from such Projections and that the differences may be material; provided further, as of the Closing
Date, management of Holdings believed that the Projections were reasonable and attainable.



     4.9. No Material Adverse Change. Since December 31, 2005, no event, circumstance or change has
occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect.



     4.10. Adverse Proceedings, etc. There are no Adverse Proceedings, individually or in the
aggregate, that could reasonably be expected to have a Material Adverse Effect. Neither Holdings
nor any of its Subsidiaries (a) is in violation of any applicable laws in any jurisdiction
(including Environmental Laws) that, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect, or (b) is subject to or in default with respect to any final
judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state,
municipal or other governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.



     4.11. Payment of Taxes. Except as otherwise permitted under Section 5.3, all tax returns and
reports of Holdings and its Subsidiaries required to be filed by any of them have been timely
filed, and all taxes shown on such tax returns to be due and payable and all assessments, fees and
other governmental charges upon Holdings and its Subsidiaries and upon their respective properties,
assets, income, businesses and franchises which are due and payable have been paid when due and
payable except those for which adequate amounts have been recorded as a liability or reserved
against on the most recent Historical Financial Statements. Holdings knows of no proposed tax
assessment against Holdings or any of its Subsidiaries which is not being actively contested by
Holdings or such Subsidiary in good faith and by appropriate proceedings; provided, such reserves
or other appropriate provisions, if any, as shall be required in conformity with GAAP shall have
been made or provided therefor.



     4.12. Properties.



          (a) Title. Except as set forth on Schedule 4.12 and subject in each case to Permitted
Liens, each of Holdings and its Subsidiaries has (i) good, sufficient and legal title to (in the
case of fee interests in real property), (ii) valid leasehold interests in (in the case of
leasehold interests in real or personal property), (iii) valid licensed rights in (in the case of
licensed interests in Intellectual Property) and (iv) good title to (in the case of all other
personal property), all of their respective properties and assets reflected in their respective
Historical Financial Statements referred to in Section 4.7 and in the most recent financial
statements delivered pursuant to Section 5.1, in each case except for assets disposed of since the
date of such financial statements in the ordinary course of business or as otherwise permitted
under





55









 







Section 6.8. Other than Permitted Liens, all such properties and assets are free and clear of
Liens.




          (b) Real Estate. As of the Closing Date, Schedule 4.12 contains a true, accurate and
complete list of (i) all Real Estate Assets, and (ii) all leases, subleases or assignments of
leases (together with all amendments, modifications, supplements, renewals or extensions of any
thereof) affecting each Real Estate Asset of any Credit Party, regardless of whether such Credit
Party is the landlord or tenant (whether directly or as an assignee or successor in interest) under
such lease, sublease or assignment. Each agreement listed in clause (ii) of the immediately
preceding sentence is in full force and effect and Holdings does not have knowledge of any default
that has occurred and is continuing thereunder, and each such agreement constitutes the legally
valid and binding obligation of each applicable Credit Party, enforceable against such Credit Party
in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or
by equitable principles, and except for any such default or failure that could not be reasonably
expected to have, individually or in the aggregate, a Material Adverse Effect.




     4.13. Environmental Matters. (i) Neither Holdings nor any of its Subsidiaries nor any of their
respective Facilities or operations are subject to any outstanding written order, consent decree or
settlement agreement with any Person relating to any Environmental Law, any Environmental Claim, or
any Hazardous Materials Activity that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect; (ii) neither Holdings nor any of its Subsidiaries has
received any letter or request for information under Section 104 of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable state law except as
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect; (iii) there are and, to each of Holdings’ and its Subsidiaries’ knowledge, have been, no
conditions, occurrences, or Hazardous Materials Activities which could reasonably be expected to
form the basis of an Environmental Claim against Holdings or any of its Subsidiaries that,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;
(iv) except as could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, neither Holdings nor any of its Subsidiaries nor, to any Credit Party’s
knowledge, any predecessor of Holdings or any of its Subsidiaries has filed any notice under any
Environmental Law indicating past or present treatment of Hazardous Materials at any Facility, and
none of Holdings’ or any of its Subsidiaries’ operations involves the generation, transportation,
treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any
state or foreign law equivalent; (v) compliance with all current or reasonably foreseeable future
requirements pursuant to or under Environmental Laws could not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect; and (vi) no event or condition has
occurred or is occurring with respect to Holdings or any of its Subsidiaries relating to any
Environmental Law, any Release of Hazardous Materials, or any Hazardous Materials Activity which
individually or in the aggregate has had, or could reasonably be expected to have, a Material
Adverse Effect.



     4.14. No Defaults. As of the Closing Date, neither Holdings nor any of its Subsidiaries is in
default in the performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition exists which, with the
giving of notice or the lapse of time or both, could constitute such a default, except where the



56









 





consequences, direct or indirect, of such default or defaults, if any, could not reasonably be
expected to have a Material Adverse Effect.




     4.15. Material Contracts. Schedule 4.15 contains a true, correct and complete list of all the
Material Contracts in effect on the Closing Date, and except as described thereon, all such
Material Contracts are in full force and effect and no material defaults currently exist thereunder
as of the Closing Date.



     4.16. Governmental Regulation. Neither Holdings nor any of its Subsidiaries is subject to
regulation under the Federal Power Act or the Investment Company Act of 1940 or under any other
federal, state or foreign law, statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the Obligations unenforceable.
Neither Holdings nor any of its Subsidiaries is a “registered investment company” or a company
“controlled” by a “registered investment company” or a “principal underwriter” of a “registered
investment company” as such terms are defined in the Investment Company Act of 1940.



     4.17. Margin Stock. Neither Holdings nor any of its Subsidiaries is engaged principally, or
as one of its important activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock. No part of the proceeds of the Loans made to such Credit
Party will be used to purchase or carry any such Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock or for any purpose that violates, or is
inconsistent with, the provisions of Regulation T, U or X of the Board of Governors.



     4.18. Employee Matters. Neither Holdings nor any of its Subsidiaries is engaged in any unfair
labor practice that could reasonably be expected to have a Material Adverse Effect. There is (a) no
unfair labor practice complaint pending against Holdings or any of its Subsidiaries, or to the best
knowledge of Holdings, threatened against any of them before the National Labor Relations Board (or
any foreign equivalent thereof) and no grievance or arbitration proceeding arising out of or under
any collective bargaining agreement that is so pending against Holdings or any of its Subsidiaries
or to the best knowledge of Holdings, threatened against any of them, (b) no strike or work
stoppage in existence or threatened involving Holdings or any of its Subsidiaries, and (c) to the
best knowledge of Holdings, no union representation question existing with respect to the employees
of Holdings or any of its Subsidiaries and, to the best knowledge of Holdings, no union
organization activity that is taking place, except (with respect to any matter specified in clause
(a), (b) or (c) above, either individually or in the aggregate) such as is not reasonably likely to
have a Material Adverse Effect.



     4.19. Employee Benefit Plans.



          (a) Holdings, each of its Subsidiaries and each of their respective ERISA Affiliates are in
compliance with all applicable provisions and requirements of ERISA and the Internal Revenue Code
and the regulations and published interpretations thereunder with respect to each Employee Benefit
Plan, and have performed all their obligations under each Employee Benefit Plan. Each Employee
Benefit Plan which is intended to qualify under Section 401(a) of





57









 







the Internal Revenue Code has received a favorable determination letter from the Internal Revenue
Service or a favorable opinion letter from a prototype plan sponsor, as applicable indicating that
such Employee Benefit Plan is so qualified and nothing has occurred subsequent to the issuance of
such determination or opinion letter which would cause such Employee Benefit Plan to lose its
qualified status. No liability to the PBGC (other than required premium payments), the Internal
Revenue Service, any Employee Benefit Plan or any trust established under Title IV of ERISA has
been or is expected to be incurred by Holdings, any of its Subsidiaries or any of their ERISA
Affiliates. No ERISA Event has occurred or is reasonably expected to occur. Except as set forth on
Schedule 4.19 or except to the extent required under Section 4980B of the Internal Revenue Code or
similar state laws, no Employee Benefit Plan provides health or welfare benefits (through the
purchase of insurance or otherwise) for any retired or former employee of Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates. The present value of the aggregate
benefit liabilities under each Pension Plan sponsored, maintained or contributed to by Holdings,
any of its Subsidiaries or any of their ERISA Affiliates (determined as of the end of the most
recent plan year on the basis of the actuarial assumptions specified for funding purposes in the
most recent actuarial valuation for such Pension Plan), did not exceed the aggregate current value
of the assets of such Pension Plan by an amount that could reasonably be expected to result in a
Material Adverse Effect. As of the most recent valuation date for each Multiemployer Plan for which
the actuarial report is available, the potential liability of Holdings, its Subsidiaries and their
respective ERISA Affiliates for a complete withdrawal from such Multiemployer Plan (within the
meaning of Section 4203 of ERISA), when aggregated with such potential liability for a complete
withdrawal from all Multiemployer Plans, based on information available pursuant to Section 4221(e)
of ERISA could not reasonably be expected to result in a Material Adverse Effect. Holdings, each of
its Subsidiaries and each of their ERISA Affiliates have complied with the requirements of Section
515 of ERISA with respect to each Multiemployer Plan and are not in material “default” (as defined
in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan in a manner that
could reasonably be expected to result in a Material Adverse Effect.




          (b) All Non-U.S. Plans are operated in compliance with all applicable laws, each Credit Party
which contributes to a Non-U.S. Plan has paid all required contributions to such Non-U.S. Plan as
they fall due, and no action or omission has been or is expected to be taken by any Credit Party
nor has any event occurred in relation to a Non-U.S. Plan which has or is reasonably likely to
result in liability to any Credit Party to any Governmental Authority. At the request of
Administrative Agent, Borrower shall deliver to Administrative Agent at such times as those reports
are prepared in order to comply with the then current statutory or auditing requirement (as
applicable either to the trustees of any relevant Non-U.S. Plans or to a Credit Party), actuarial
reports in relation to all Non-U.S. Plans. Borrower shall promptly notify the Administrative Agent
of any material change in the rate of contributions to any Non-U.S. Plans either paid or
recommended to be paid (whether by the scheme actuary, the trustees or otherwise) or required (by
law or otherwise).




          (c) There are no liabilities associated with or arising from any European Group Member
participating in, providing, or contributing to, either currently or in the past, or ceasing to
provide or contribute to, or in respect of, any scheme or arrangement for the provision of any
pension, superannuation, retirement (including on early retirement) or death benefits (including






58









 







in the form of a lump sum) (the benefits together referred to as “Pension Benefits”) or providing,
or being obligated to provide or failing to provide any Pension Benefits, which are not fully
funded, insured or provided for on a generally accepted basis either through a separate trust,
insurance policy or as an accrual or provision in the accounts of the relevant European Group
Member.




     4.20. Solvency. The Credit Parties are and, upon the incurrence of any Obligation by any
Credit Party on any date on which this representation and warranty is made, will be, Solvent.



     4.21. Compliance with Statutes, etc. Each of Holdings and its Subsidiaries is in compliance
with all applicable statutes, laws, regulations and orders of, and all applicable restrictions
imposed by, all Governmental Authorities, in respect of the conduct of its business and the
ownership of its property (including compliance with all applicable Environmental Laws with respect
to any Real Estate Asset or governing its business and the requirements of any permits issued under
such Environmental Laws with respect to any such Real Estate Asset or the operations of Holdings or
any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect.



     4.22. Disclosure. No representation or warranty of any Credit Party contained in any Credit
Document or in any other documents, certificates or written materials furnished to any Agent or
Lender by or on behalf of Holdings or any of its Subsidiaries for use in connection with the
transactions contemplated hereby contains any untrue statement of a material fact or omits to state
a material fact (known to Holdings, in the case of any document not furnished by either of them)
necessary in order to make the statements contained herein or therein not misleading in light of
the circumstances in which the same were made. Any projections and pro forma financial information
contained in such materials are based upon good faith estimates and assumptions believed by
Holdings to be reasonable at the time made, it being recognized by Lenders that such projections as
to future events are not to be viewed as facts and that actual results during the period or periods
covered by any such projections may differ from the projected results. There are no facts known (or
which should upon the reasonable exercise of diligence be known) to Holdings (other than matters of
a general economic nature) that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect and that have not been disclosed herein or in such other
documents, certificates and written materials furnished to Lenders for use in connection with the
transactions contemplated hereby.



     4.23. Patriot Act. To the extent applicable, each Credit Party is in compliance, in all
material respects, with the (i) Trading with the Enemy Act, as amended, and each of the foreign
assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter
V, as amended) and any other enabling legislation or executive order relating thereto, and (ii)
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA Patriot Act of 2001). No part of the proceeds of the Loans 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.



59









 





SECTION 5. AFFIRMATIVE COVENANTS




     Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations, each Credit Party shall perform, and shall cause each of its
Subsidiaries and the European Group Members to perform, all covenants in this Section 5.



     5.1. Financial Statements and Other Reports. Borrower will deliver to Administrative Agent
and Lenders:



          (a) Quarterly Financial Statements. As soon as available, and in any event within 45
days (or, as soon as available, in the case of the Fiscal Quarter ending March 31, 2007, or within
60 days, in the case of the Fiscal Quarter ending June 30, 2007) after the end of the first three
Fiscal Quarters of each Fiscal Year, commencing with the Fiscal Quarter in which the Closing Date
occurs, the consolidated and consolidating balance sheets of Holdings and its Subsidiaries as at
the end of such Fiscal Quarter and the related consolidated (and with respect to statements of
income, consolidating) statements of income, stockholders’ equity and cash flows of Holdings and
its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current
Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal Year and the
corresponding figures from the Financial Plan for the current Fiscal Year, all in reasonable
detail, together with a Financial Officer Certification and a Narrative Report with respect
thereto;




          (b) Annual Financial Statements. As soon as available, and in any event within 110
days after the end of each Fiscal Year, commencing with the Fiscal Year in which the Closing Date
occurs, (i) the consolidated and consolidating balance sheets of Holdings and its Subsidiaries as
at the end of such Fiscal Year and the related consolidated (and with respect to statements of
income, consolidating) statements of income, stockholders’ equity and cash flows of Holdings and
its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year and the corresponding figures from the Financial
Plan for the Fiscal Year covered by such financial statements, in reasonable detail, together with
a Financial Officer Certification and a Narrative Report with respect thereto; and (ii) with
respect to such consolidated financial statements a report thereon of Deloitte & Touche LLP or
other independent certified public accountants of recognized national standing selected by
Holdings, and reasonably satisfactory to Administrative Agent (which report shall be unqualified as
to going concern and scope of audit, and shall state that such consolidated financial statements
fairly present, in all material respects, the consolidated financial position of Holdings and its
Subsidiaries as at the dates indicated and the results of their operations and their cash flows for
the periods indicated in conformity with GAAP applied on a basis consistent with prior years
(except as otherwise disclosed in such financial statements) and that the examination by such
accountants in connection with such consolidated financial statements has been made in accordance
with generally accepted auditing standards), together with a written statement by such independent
certified public accountants stating whether any condition or event that constitutes a Default or
an Event of Default has come to their attention and, if such a condition or
event has come to their attention, specifying the nature and period of existence thereof or
similar written statement reasonably acceptable to the Administrative Agent;






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          (c) Compliance Certificate. Together with each delivery of financial statements of
Holdings and its Subsidiaries pursuant to Sections 5.1(a) and 5.1(b), a duly executed and completed
Compliance Certificate;




          (d) Statements of Reconciliation after Change in Accounting Principles. If, as a
result of any change in accounting principles and policies from those used in the preparation of
the Historical Financial Statements, the consolidated financial statements of Holdings and its
Subsidiaries delivered pursuant to Section 5.1(a) or 5.1(b) will differ in any material respect
from the consolidated financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles and policies been made, then, together
with the first delivery of such financial statements after such change, one or more statements of
reconciliation for all such prior financial statements in form and substance satisfactory to
Administrative Agent;




          (e) Notice of Default. Promptly upon any officer of Borrower obtaining knowledge (i)
of any condition or event that constitutes a Default or an Event of Default or that notice has been
given to Borrower with respect thereto; (ii) that any Person has given any notice to Borrower or
any of its Subsidiaries or taken any other action with respect to any event or condition set forth
in Section 8.1(b); or (iii) of the occurrence of any event or change that has caused or evidences,
either in any case or in the aggregate, a Material Adverse Effect, a certificate of its Authorized
Officer specifying the nature and period of existence of such condition, event or change, or
specifying the notice given and action taken by any such Person and the nature of such claimed
Event of Default, Default, default, event or condition, and what action Borrower has taken, is
taking and proposes to take with respect thereto;




          (f) Notice of Litigation. Promptly upon any officer of Borrower obtaining knowledge
of (i) the institution of, or non-frivolous written or authenticated threat of, any Adverse
Proceeding not previously disclosed in writing by Borrower to Lenders, or (ii) any material
development in any Adverse Proceeding that, in the case of either clause (i) or (ii), if adversely
determined could be reasonably expected to have a Material Adverse Effect, or seeks to enjoin or
otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of,
the transactions contemplated hereby, written notice thereof together with such other information
as may be reasonably available to Borrower to enable Lenders and their counsel to evaluate such
matters (provided that there shall be no obligation to provide details of such Adverse Proceeding
that, if provided, would in the reasonable view of counsel to Borrower, impair the privileged
status of the information);




          (g) ERISA. (i) Promptly upon becoming aware of the occurrence of or forthcoming
occurrence of any ERISA Event, a written notice specifying the nature thereof, what action
Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking
or proposes to take with respect thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with respect thereto or similar
Governmental Authority with respect to any Non-U.S. Plan; and (ii) with reasonable promptness,
copies of (1) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed
by Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates with the Internal
Revenue
Service with respect to each Pension Plan; (2) all notices received by Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates from a






61









 







Multiemployer Plan sponsor concerning an ERISA Event; and (3) copies of such other documents or
governmental reports or filings relating to any Employee Benefit Plan or similar reports or filings
relating to any Non-U.S. Plan as Administrative Agent shall reasonably request;




          (h) Financial Plan. As soon as practicable and in any event no later than forty-five
days after the beginning of each Fiscal Year, a consolidated plan and financial forecast for such
Fiscal Year (or, if shorter, through the final maturity date of the Loans) (a “Financial Plan”),
including (i) a forecasted consolidated balance sheet and forecasted consolidated statements of
income and cash flows of Holdings and its Subsidiaries for such Fiscal Year, together with an
explanation of the assumptions on which such forecasts are based, and (ii) forecasted consolidated
statements of income and cash flows of Holdings and its Subsidiaries for each Fiscal Quarter of
such Fiscal Year;




          (i) Insurance Report. As soon as practicable and in any event by the last day of each
Fiscal Year, a report in form and substance satisfactory to Administrative Agent outlining all
material insurance coverage maintained as of the date of such report by Borrower and its
Subsidiaries;




          (j) Information Regarding Collateral. (a) Borrower will furnish to Collateral Agent
prompt written notice of any change (i) in any Credit Party’s corporate name, (ii) in any Credit
Party’s identity or corporate structure, (iii) in any Credit Party’s jurisdiction of incorporation
or organization or (iv) in any Credit Party’s Federal Taxpayer Identification Number or state
organizational identification or registered number. Borrower agree not to effect or permit any
change referred to in the preceding sentence unless all filings have been made under the Uniform
Commercial Code, any foreign laws or regulation, or otherwise that are required in order for
Collateral Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral as contemplated in the Collateral Documents.
Borrower also agrees promptly to notify Collateral Agent if any material portion of the Collateral
is damaged or destroyed;




          (k) Annual Collateral Verification. Each year, at the time of delivery of annual
financial statements with respect to the preceding Fiscal Year pursuant to Section 5.1(b), Borrower
shall deliver to Collateral Agent a certificate of its Authorized Officer (i) either confirming
that there has been no material change in such information since the date of the Collateral
Questionnaire delivered on the Closing Date or the date of the most recent certificate delivered
pursuant to this Section and/or identifying such changes and (ii) certifying that all Uniform
Commercial Code financing statements (including fixtures filings, as applicable) and all
supplemental Intellectual Property security agreements or other appropriate filings, recordings or
registrations, have been filed of record in each governmental, municipal or other appropriate
office in each jurisdiction identified pursuant to clause (i) above (or in such Collateral
Questionnaire) to the extent necessary to effect, protect and perfect the security interests under
the Collateral Documents for a period of not less than 18 months after the date of such certificate
(except as noted therein with respect to any continuation statements to be filed within such
period);




          (l) Final Historical Financial Statements. As soon as available, and in any event
within 45 days after the Closing Date, the final audited combined balance sheet of the Arizona







62









 







Chemical Division (as defined in such audited financial statements) as of December 31, 2006, 2005
and 2004 and the final audited combined statements of income and cash flows of the Arizona Chemical
Division (as defined in such audited financial statements) for each of the Fiscal Years ended
December 31, 2006, 2005, 2004 and 2003;




          (m) Other Information. Such other information and data with respect to Holdings or
any of its Subsidiaries as from time to time may be reasonably requested by Administrative Agent or
any Lender; and




          (n) Certification of Public Information. Concurrently with the delivery of any
document or notice required to be delivered pursuant to this Section 5.1, Borrower shall indicate
in writing whether such document or notice contains Nonpublic Information. Borrower and each Lender
acknowledge that certain of the Lenders may be “public-side” Lenders (Lenders that do not wish to
receive material non-public information with respect to Borrower, its Subsidiaries or their
securities) and, if documents or notices required to be delivered pursuant to this Section 5.1 or
otherwise are being distributed through IntraLinks/IntraAgency, SyndTrak or another relevant
website or other information platform (the “Platform”), any document or notice that Borrower has
indicated contains Nonpublic Information shall not be posted on that portion of the Platform
designated for such public-side Lenders. If Borrower has not indicated whether a document or notice
delivered pursuant to this Section 5.1 contains Nonpublic Information, Administrative Agent
reserves the right to post such document or notice solely on that portion of the Platform
designated for Lenders who wish to receive material nonpublic information with respect to Borrower,
its Subsidiaries and their securities.




          (o) Investigations. If an Event of Default is continuing or if the Requisite Lenders
believe in good faith and on reasonable grounds that any financial statements or calculations
provided by Holdings or any of its Subsidiaries are inaccurate or incomplete in any material
respect the Administrative Agent may, following consultation with Borrower as to the scope of the
investigation and its cost: (i) instruct (or require Borrower to instruct) a recognized firm of
accountants selected by the Administrative Agent to carry out an investigation into the affairs of
the Group Members and/or the financial performance of the Group Members and/or the accounting and
other reporting procedures and standards of the Group Members; and/or (ii) request confirmation
that any figure in the most recent quarterly or annual Compliance Certificate delivered under
Section 5.1(c) has been correctly extracted from the relevant financial statements delivered under
Section 5.1(a) and (b); and/or (iii) instigate such other investigations and commission such other
reports (including, without limitation, legal and valuation reports) as the Administrative Agent
shall reasonably require into the affairs of the Group Members, in each case to the extent that the
Administrative Agent considers them to be relevant to such Event of Default or the circumstances
giving rise to such Event of Default or establishing the accuracy of such financial statements
and/or calculations. The reasonable expense of any such investigation shall be borne by Borrower.




     5.2. Existence. Except as otherwise permitted under Section 6.8, each Credit Party will, and
will cause each of its Subsidiaries to, at all times preserve and keep in full force and effect its
existence and all rights and franchises, licenses and permits material
to its business; provided, no Credit Party (other than Borrower with respect to
existence) or any of its Subsidiaries shall be required to preserve any such existence, right or
franchise, licenses and permits if such Person’s



63









 





board of directors (or similar governing body) shall determine that the preservation thereof is no
longer desirable in the conduct of the business of such Person, and that the loss thereof is not
disadvantageous in any material respect to such Person or to Lenders.




     5.3. Payment of Taxes and Claims. Each Credit Party will, and will cause each of its
Subsidiaries and the European Group Members to, pay all Taxes imposed upon it or any of its
properties or assets or in respect of any of its income, businesses or franchises before any
penalty or fine accrues thereon, and all claims (including claims for labor, services, materials
and supplies) for sums that have become due and payable and that by law have or may become a Lien
upon any of its properties or assets, prior to the time when any penalty or fine shall be incurred
with respect thereto; provided, no such Tax or claim need be paid if it is being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted, so long as (a)
adequate reserve or other appropriate provision, as shall be required in conformity with GAAP shall
have been made therefor, and (b) in the case of a Tax or claim which has or may become a Lien
against any of the Collateral, such contest proceedings conclusively operate to stay the sale of
any portion of the Collateral to satisfy such Tax or claim. No Credit Party will, nor will it
permit any of its Subsidiaries or the European Group Members to, file or consent to the filing of
any consolidated income tax return with any Person (other than Holdings or any of its
Subsidiaries).



     5.4. Maintenance of Properties. Each Credit Party will, and will cause each of its
Subsidiaries and the European Group Members to, maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear excepted, all material properties used or
useful in the business of Holdings and its Subsidiaries and from time to time will make or cause to
be made all appropriate repairs, renewals and replacements thereof.



     5.5. Insurance. Borrower will 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 property insurance with respect to liabilities, losses or
damage in respect of the assets, properties and businesses of Holdings and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by Persons of established
reputation engaged in similar businesses, in each case in such amounts (giving effect to
self-insurance), with such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for such Persons. Without limiting the generality of the
foregoing, Borrower will maintain or cause to be maintained (a) flood insurance with respect to
each Flood Hazard Property that is located in a community that participates in the National Flood
Insurance Program, in each case in compliance with any applicable regulations of the Board of
Governors of the Federal Reserve System, and (b) replacement value property insurance on the
Collateral under such policies of insurance, with such insurance companies, in such amounts, with
such deductibles, and covering such risks as are at all times carried or maintained under similar
circumstances by Persons of established reputation engaged in similar businesses. Each such policy
of insurance shall (i) name Collateral Agent, on behalf of Secured Parties, as an additional
insured thereunder as its interests may appear, (ii) in the case of each property insurance policy,
contain a loss payable clause or endorsement, satisfactory in form and substance to Collateral
Agent, that names
Collateral Agent, on behalf of the Secured Parties, as the loss payee thereunder and provide
for at least thirty days’ prior written notice to Collateral Agent of any modification or
cancellation of such policy.



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     5.6. Books and Records; Inspections. Each Credit Party will, and will cause each of its
Subsidiaries and the European Group Members to, keep proper books of record and accounts in which
full, true and correct entries in conformity in all material respects with GAAP shall be made of
all dealings and transactions in relation to its business and activities. At any time that a
Default or Event of Default shall have occurred and be continuing, each Credit Party will, and will
cause each of its Subsidiaries and the European Group Members to, permit any authorized
representatives designated by any Lender to visit and inspect any of the properties of any Credit
Party and any of its respective Subsidiaries, to inspect, copy and take extracts from its and their
financial and accounting records, and to discuss its and their affairs, finances and accounts with
its and their officers and independent public accountants, all upon reasonable notice and at such
reasonable times during normal business hours and as often as may reasonably be requested.



     5.7. Lenders Meetings. Holdings and Borrower will, upon the request of Administrative Agent
or Requisite Lenders, participate in a meeting of Administrative Agent and Lenders once during each
Fiscal Year to be held at Borrower’s corporate offices (or at such other location as may be agreed
to by Borrower and Administrative Agent) at such time as may be agreed to by Borrower and
Administrative Agent.



     5.8. Compliance with Laws. Each Credit Party will comply, and shall cause each of its
Subsidiaries, the European Group Members and all other Persons, if any, on or occupying any
Facilities to comply, with the requirements of all applicable laws, rules, regulations and orders
of any Governmental Authority (including all ERISA and Environmental Laws), noncompliance with
which could reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.



     5.9. Environmental.



          (a) Environmental Disclosure. Borrower will make available to Administrative Agent and
Lenders:





          (i) as soon as practicable following receipt thereof, copies of all material
environmental audits, investigations, analyses and reports of any kind or character,
whether prepared by personnel of Holdings or any of its Subsidiaries or by independent
consultants, governmental authorities or any other Persons in the possession of Holdings or
any of its Subsidiaries, with respect to significant environmental matters at any Facility
or with respect to any Environmental Claims that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect;




          (ii) promptly upon the occurrence thereof, written notice describing in reasonable
detail (1) any Release required to be reported to any federal, state or local governmental
or regulatory agency under any applicable Environmental Laws, (2) any remedial action taken
by Holdings or any other Person in response to (A) any Hazardous Materials Activities the
existence of which could reasonably be expected to result in one or more Environmental
Claims having, individually or in the aggregate, a Material Adverse Effect, or (B) any
Environmental Claims that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect, and (3) Holdings or Borrower’s
discovery of any occurrence or condition on any real property adjoining or in



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the vicinity of any Facility that could cause such Facility or any part thereof to be
subject to any material restrictions on the ownership, occupancy, transferability or use
thereof under any Environmental Laws, except as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;




          (iii) as soon as practicable following the sending or receipt thereof by Holdings or
any of its Subsidiaries, a copy of any and all written communications with respect to (1)
any Environmental Claims, (2) any Release required to be reported to any federal, state or
local governmental or regulatory agency, and (3) any request for information from any
governmental agency that suggests such agency is investigating whether Holdings or any of
its Subsidiaries may be potentially responsible for any Hazardous Materials Activity, in
each case which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect;




          (iv) prompt written notice describing in reasonable detail (1) any proposed
acquisition of stock, assets, or property by Holdings or any of its Subsidiaries that could
reasonably be expected to (A) expose Holdings or any of its Subsidiaries to, or result in,
Environmental Claims that could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect or (B) affect the ability of Holdings or any of its
Subsidiaries to maintain in full force and effect all material Governmental Authorizations
required under any Environmental Laws for their respective operations that could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect and (2)
any proposed action to be taken by Holdings or any of its Subsidiaries to modify current
operations in a manner that could reasonably be expected to subject Holdings or any of its
Subsidiaries to any additional material obligations or requirements under any Environmental
Laws that could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect; and




          (v) with reasonable promptness, such other documents and information as from time to
time may be reasonably requested by Administrative Agent in relation to any matters
disclosed pursuant to this Section 5.9(a).



          (b) Hazardous Materials Activities, Etc. Each Credit Party shall promptly take, and
shall cause each of its Subsidiaries and the European Group Members promptly to take, any and all
actions necessary to (i) cure any violation of applicable Environmental Laws by such Credit Party,
its Subsidiaries or the European Group Members that could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, and (ii) make an appropriate response
to any Environmental Claim against such Credit Party, any of its Subsidiaries or the European Group
Members and discharge any obligations it may have to any Person thereunder where failure to do so
could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.




     5.10. Subsidiaries. In the event that any Person becomes a U.S. Subsidiary of Borrower,
Borrower shall (a) promptly cause such U.S. Subsidiary to become a Guarantor hereunder and a
Grantor under the Pledge and Security Agreement by executing and delivering to Administrative Agent
and Collateral Agent a Counterpart
Agreement, and (b) take all such actions and execute and deliver, or cause to be executed and
delivered, all such documents,



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instruments, agreements, and certificates as are similar to those described in Sections 3.1(b),
3.1(e), 3.1(g) and 3.1(h). In the event that any Person becomes a Non-U.S. Subsidiary of Borrower,
and the ownership interests of such Non-U.S. Subsidiary are owned by Borrower or by any U.S.
Subsidiary thereof, Borrower shall, or shall cause such U.S. Subsidiary to, deliver, all such
documents, instruments, agreements, and certificates as are similar to those described in Sections
3.1(b), and Borrower shall take, or shall cause such U.S. Subsidiary to take, all of the actions
referred to in Section 3.1(e)(i) necessary to grant and to perfect a Second Priority Lien in favor
of Collateral Agent, for the benefit of Secured Parties, under the Pledge and Security Agreement in
65% of such ownership interests. With respect to each such Subsidiary, Borrower shall promptly send
to Administrative Agent written notice setting forth with respect to such Person (i) the date on
which such Person became a Subsidiary of Borrower, and (ii) all of the data required to be set
forth in Schedules 4.1 and 4.2 with respect to all Subsidiaries of Borrower; and such written
notice shall be deemed to supplement Schedules 4.1 and 4.2 for all purposes hereof.




     Notwithstanding the foregoing, the creation or perfection of pledges of or security interests
in, or the obtaining of title insurance with respect to, particular assets if, and for so long as,
shall not be required if in the reasonable judgment of the Administrative Agent, the cost of
creating or perfecting such pledges or security interests in such assets or obtaining title
insurance in respect of such assets shall be excessive in view of the benefits to be obtained by
the Lenders therefrom.



     With respect to a material license agreement applicable to Intellectual Property that is owned
by a third party and licensed to Borrower or a Subsidiary thereof and that is affixed to or
otherwise used in connection with the manufacture, sale or distribution of any material Inventory,
each of Borrower and its Subsidiaries shall give Collateral Agent not less than thirty (30) days
prior written notice of its intention to not renew or to terminate, cancel, surrender or release
its rights under any such license agreement, or to amend any such license agreement or related
arrangements to limit the scope of the right of such Borrower or such Subsidiary to use the
Intellectual Property subject to such license agreement, either with respect to product, territory,
term or otherwise, or to increase the amounts to be paid by such Borrower or such Subsidiary party
thereto thereunder or in connection therewith.



     5.11. Additional Material Real Estate Assets.



          (a) In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a
valid and, subject to any filing and/or recording referred to herein, perfected Second Priority
security interest in certain Real Estate Assets, within seventy-five (75) days following the
Closing Date (or such longer period of time acceptable to the
Collateral Agent), Collateral Agent shall have received from Borrower and each applicable
Guarantor, unless waived by the Collateral Agent in its reasonable discretion:





          (i) fully executed and notarized Mortgages, in proper form for recording in all
appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset
listed in Schedule 5.11 (each, a “Mortgaged Property”); provided that with respect to
Leasehold Property, the mortgagor will only be required to use its commercially reasonable
efforts to obtain such Mortgages;



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          (ii) an opinion of counsel (which counsel shall be reasonably satisfactory to
Collateral Agent) in each state in which a Mortgaged Property is located with respect to
the enforceability of the form(s) of Mortgages to be recorded in such state and such other
matters as Collateral Agent may reasonably request, in each case in form and substance
reasonably satisfactory to Collateral Agent;




          (iii) in the case of each Leasehold Property, at the Administrative Agent’s reasonable
discretion: (1) (A) a Landlord Consent and Estoppel and (B) evidence that such Leasehold
Property is a Recorded Leasehold Interest; or (2) a Landlord Personal Property Collateral
Access Agreement; provided that the Credit Parties will only be required to use
commercially reasonable efforts to obtain such Landlord Consent and Estoppel or Landlord
Personal Property Collateral Access Agreement;




          (iv) (a) recent ALTA mortgagee title insurance policies or unconditional commitments
therefor issued by one or more title companies reasonably satisfactory to Collateral Agent
with respect to each Mortgaged Property (each, a “Title Policy”), in amounts not less than
the fair market value of each Mortgaged Property, together with a title report issued by a
title company with respect thereto copies of all recorded documents listed as exceptions to
title or otherwise referred to therein, each in form and substance reasonably satisfactory
to Collateral Agent and (B) evidence reasonably satisfactory to Collateral Agent that such
Credit Party has paid to the title company or to the appropriate governmental authorities
all expenses and premiums of the title company and all other sums required in connection
with the issuance of each Title Policy and all recording and stamp taxes (including
mortgage recording and intangible taxes) payable in connection with recording the Mortgages
for each Mortgaged Property in the appropriate real estate records; and




          (v) flood certifications with respect to all Mortgaged Properties and evidence of
flood insurance with respect to each Flood Hazard Property that is located in a community
that participates in the National Flood Insurance Program, in each case in compliance with
any applicable regulations of the Board of Governors, in form and substance reasonably
satisfactory to Collateral Agent.



          (b) In the event that any Credit Party acquires a Material Real Estate Asset or a Real Estate
Asset owned or leased on the Closing Date becomes a Material Real Estate Asset and such interest
has not otherwise been made subject to the Lien of the Collateral Documents in favor of Collateral
Agent, for the benefit of Secured Parties, then such Credit Party shall within sixty days following
the date of such acquisition (or such longer period of time acceptable to the Collateral Agent),
take all such actions and execute and deliver, or cause to be executed and delivered, all such
mortgages, documents, instruments, agreements, opinions and certificates (to the extent applicable
in the relevant jurisdiction) similar to those described in Section 5.1(a) with respect to each
such Material Real Estate Asset that Collateral Agent shall reasonably request to create in favor
of Collateral Agent, for the benefit of Secured Parties, a valid and, subject to any filing and/or
recording referred to herein, perfected Second Priority security interest in
such Material Real Estate Assets. In addition to the foregoing, Borrower shall, at the
request of Collateral Agent, deliver, from time to time, to Collateral Agent such appraisals as are
required







68









 







by law or regulation of Real Estate Assets with respect to which Collateral Agent has been granted
a Lien.




          (c) Notwithstanding the foregoing, the creation or perfection of pledges of or security
interests in, or the obtaining of title insurance with respect to, particular assets if, and for so
long as, shall not be required if in the reasonable judgment of the Administrative Agent, the cost
of creating or perfecting such pledges or security interests in such assets or obtaining title
insurance in respect of such assets shall be excessive in view of the benefits to be obtained by
the Lenders therefrom. The Administrative Agent and Lenders further agree to use commercially
reasonable efforts to assist the Credit Parties in minimizing any recording taxes that may be
payable with respect to any Mortgage.




     5.12. Interest Rate Protection. No later than ninety (90) days following the Closing Date and
at all times thereafter until the third anniversary of the Closing Date, Borrower shall obtain and
cause to be maintained protection against fluctuations in interest rates pursuant to one or more
Interest Rate Agreements in form and substance reasonably satisfactory to Administrative Agent and
Syndication Agent, in order to ensure that no less than 50% of the aggregate principal amount of
the total Indebtedness for borrowed money of Holdings and its Subsidiaries then outstanding is
either (i) subject to such Interest Rate Agreements or (ii) Indebtedness that bears interest at a
fixed rate.



     5.13. Further Assurances. At any time or from time to time upon the request of Administrative
Agent, each Credit Party will, at its expense, promptly execute, acknowledge and deliver such
further documents and do such other acts and things as Administrative Agent or Collateral Agent,
may reasonably request in order to effect fully the terms of the Credit Documents. In furtherance
and not in limitation of the foregoing, each Credit Party shall promptly do all such acts or
execute all such documents (including assignments, transfers, mortgages, charges, notices and
instructions) as the Collateral Agent may reasonably specify (and in such form as the Collateral
Agent may reasonably require in favor of the Collateral Agent or its nominee(s)), to the extent
reasonably required by Administrative Agent or Collateral Agent, for the exercise of any rights,
powers and remedies of the Collateral Agent or: (i) to perfect the security created or intended to
be created under or evidenced by the Collateral Documents (which may include the execution of a
mortgage, charge, assignment or other security over all or any of the assets which are, or are
intended to be, the subject of security pursuant to the Collateral Documents) or the Credit Parties
provided by or pursuant to the Credit Documents or by law; (ii) to confer on the Collateral Agent
or confer on the Credit Parties security over any property and assets of that Credit Party located
in any jurisdiction equivalent or similar to the security intended to be conferred by or pursuant
to the Collateral Documents; and/or (iii) to facilitate the realization of the assets which are, or
are intended to be, the subject of the Collateral Documents. Each Credit Party shall, take all
such action as is available to it (including making all filings and registrations) as may be
reasonably necessary for the purpose of the creation, perfection, protection or maintenance of any
security conferred or intended to be conferred on the Collateral Agent or the Credit Parties by or
pursuant to the Credit Documents.



     5.14. Miscellaneous Covenants. Unless otherwise consented to by Agents or Requisite Lenders:



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          (a) Maintenance of Ratings. At all times, Borrower shall use commercially reasonable
efforts to maintain ratings issued by Moody’s and S&P with respect to its senior secured debt.




          (b) Cash Management Systems. The Credit Parties shall establish control agreements
with respect to Deposit Accounts held in the United States and maintain cash management systems
reasonably acceptable to Agents.




     5.15. Certain Post-Closing Obligations.



          (a) Within thirty (30) days following the Closing Date (or such longer period reasonably
determined by the Administrative Agent), each Credit Party shall obtain duly executed Control
Agreements with respect to such Credit Party’s Deposit Accounts (other than any such accounts
constituting payroll accounts and accounts holding Cash and Cash Equivalents of no more than
$250,000 in the aggregate for more than two (2) consecutive Business Days for all Credit Parties),
in substantially the form attached to the Pledge and Security Agreement as Exhibit D (or such other
form as reasonably acceptable to the Administrative Agent).




SECTION 6. NEGATIVE COVENANTS




     Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations, such Credit Party shall perform, and shall cause each of its
Subsidiaries and the European Group Members to perform, all covenants in this Section 6.




     6.1. Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries or the
European Group Members to, directly or indirectly, create, incur, assume or guaranty, or otherwise
become or remain directly or indirectly liable with respect to any Indebtedness, except (the
following, “Permitted Indebtedness”):



          (a) the Obligations;




          (b) Indebtedness of (i) any Credit Party owed to any other Credit Party, (ii) any European
Group Member owed to any other European Group Member and (iii) to the extent such Indebtedness
constitutes a permitted Investment pursuant to Section 6.6(j), Indebtedness of any Subsidiary of
Holdings that is not a Group Member to any Group Member; provided, that (A) in the case of
(i) (1) all such Indebtedness shall be evidenced by Intercompany Notes, which shall be subject to a
Second Priority Lien pursuant to the Pledge and Security Agreement or another Collateral Document,
with respect to the Intercompany Note evidencing Indebtedness owed to a U.S. Subsidiary or
Borrower, securing the Obligations and (2) all such Indebtedness shall be unsecured and
subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of
the applicable Intercompany Note, and (B) any payment by any such Guarantor
Subsidiary under any guaranty of the Obligations shall result in a pro tanto reduction of the
amount of any Indebtedness owed by such Subsidiary to Borrower or to any of its Subsidiaries for
whose benefit such payment is made; provided further that notwithstanding anything
to the contrary in any Collateral Document, Intercompany Notes evidencing Indebtedness pursuant to
clauses (i) and (ii) above shall not be required to be delivered to the








70









 








Collateral Agent more frequently than once per Fiscal Quarter (or such other period of time deemed
reasonably acceptable to the Collateral Agent);




          (c) the First Lien Obligations and Indebtedness incurred to refinance, renew or replace such
Indebtedness in whole or in part, as permitted by the Intercreditor Agreement;




          (d) Indebtedness in an aggregate principal amount not to exceed $115,000,000 (“Permitted
Subordinated Debt”) that is (i) subordinated to the Obligations on terms customary at the time for
high-yield subordinated debt securities issued in a public offering, (ii) matures after, and does
not require any scheduled amortization or other scheduled payments of principal prior to, the
maturity date of the Term Loans (it being understood that such Indebtedness may have mandatory
prepayment, repurchase or redemptions provisions satisfying the requirement of clause (iii)
hereof), (iii) has terms and conditions (other than interest rate, redemption premiums and
subordination terms), taken as a whole, that are not materially less favorable to Borrower as the
terms and conditions customary at the time for high-yield subordinated debt securities issued in a
public offering and (iv) is incurred by the Borrower and guaranteed only by the U.S. Credit
Parties; provided that (1) both immediately prior and after giving effect to the incurrence
thereof, (x) no Default shall exist or result therefrom and (y) Holdings will be in compliance with
the covenants set forth in Section 6.7 and provided further that a certificate of a Responsible
Officer delivered to Administrative Agent at least 10 days prior to the incurrence of such
Indebtedness, together with a reasonably detailed description of the material terms and conditions
of such Indebtedness or drafts of the documentation relating thereto, stating that Holdings has
determined in good faith that such terms and conditions satisfy the requirements of this clause (c)
shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement
unless Administrative Agent notifies Borrower within 5 days of receipt of such certificate that it
disagrees with such determination;




          (e) Indebtedness incurred by Holdings or any of its Subsidiaries arising from agreements
providing for indemnification, adjustment of purchase price or similar obligations, or from
guaranties or letters of credit, surety bonds or performance bonds securing the performance of
Holdings or any of its Subsidiaries pursuant to such agreements, in connection with Permitted
Acquisitions or permitted dispositions of any business, assets or Subsidiary of Holdings or any of
its Subsidiaries;




          (f) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety,
statutory, appeal or similar obligations incurred in the ordinary course of business;




          (g) Indebtedness in respect of netting services, overdraft protections, cash management
services and otherwise in connection with deposit, securities and commodities accounts in the
ordinary course of business;




          (h) guaranties in the ordinary course of business of the obligations of suppliers, customers,
franchisees and licensees of Holdings and its Subsidiaries;




          (i) guaranties (i) by Borrower or a Guarantor of Indebtedness of any Credit Party, and (ii) by
any European Group Member of Indebtedness of any other European Group







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Member, with respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to
this Section 6.1; provided, that in the case of (i) and (ii) that if the Indebtedness that is being
guarantied is unsecured and/or subordinated to the Obligations, the guaranty shall also be
unsecured and/or subordinated to the Obligations;




          (j) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements
of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements
evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii)
refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not
less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or
extended, and the average life to maturity thereof is greater than or equal to that of the
Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the
immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor
that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B)
exceed in a principal amount the Indebtedness being renewed, extended or refinanced or (C) be
incurred, created or assumed if any Default or Event of Default has occurred and is continuing or
would result therefrom;




          (k) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an
aggregate amount not to exceed at any time $34,500,000; provided, any such Indebtedness (i) shall
be secured only by the asset acquired in connection with the incurrence of such Indebtedness, and
(ii) shall constitute not less than 90% of the aggregate consideration paid with respect to such
asset;




          (l) (i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in
either case, becomes a Subsidiary or Indebtedness attaching to assets that are acquired by Holdings
or any of its Subsidiaries, in each case after the Closing Date as the result of a Permitted
Acquisition, in an aggregate amount not to exceed $17,250,000 at any one time outstanding, provided
that (x) such Indebtedness existed at the time such Person became a Subsidiary or at the time such
assets were acquired and, in each case, was not created in anticipation thereof and (y) such
Indebtedness is not guaranteed in any respect by Holdings or any Subsidiary (other than by any such
person that so becomes a Subsidiary), and (ii) any refinancing, refunding, renewal or extension of
any Indebtedness specified in subclause (i) above, provided, that (1) the principal amount of any
such Indebtedness is not increased above the principal amount thereof outstanding immediately prior
to such refinancing, refunding, renewal or extension, (2) the direct and contingent obligors with
respect to such Indebtedness are not changed and (3) such Indebtedness shall not be secured by any
assets other than the assets securing the Indebtedness being renewed, extended or refinanced; and




          (m) other secured or unsecured Indebtedness of Holdings and its Subsidiaries including
Indebtedness of Non-U.S. Subsidiaries in an aggregate amount not to exceed at any time $23,000,000;
provided that no more than an aggregate amount of $11,500,000 of such Indebtedness at any time
shall be secured.




     6.2. Liens. No Credit Party shall, nor shall it permit any of its Subsidiaries or the
European Group Members to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind (including any document
or



72









 




instrument in respect of goods or accounts receivable) of Holdings or any of its Subsidiaries,
whether now owned or hereafter acquired or licensed, or any income, profits or royalties therefrom,
or file or permit the filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income, profits or royalties
under the UCC of any State or under any similar recording or notice statute or under the
intellectual property laws, rules or procedures, except:




          (a) (i) Subject to the terms of the Intercreditor Agreement, Liens in favor of Collateral
Agent for the benefit of Secured Parties granted pursuant to any Credit Document; and (ii) Liens
securing obligations under the First Lien Credit Agreement and any refinancings thereof permitted
by Section 6.1(c);




          (b) Liens for Taxes if obligations with respect to such Taxes are being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted and Liens for Taxes
not yet due and payable and otherwise in compliance with the requirements of Section 5.3;




          (c) statutory Liens of landlords, Liens affecting the interest of the landlord under any
Lease, banks (and rights of set-off), of carriers, warehousemen, mechanics, repairmen, workmen and
materialmen, and other Liens imposed by law (other than any such Lien imposed pursuant to Section
401 (a)(29) or 412(n) of the Internal Revenue Code or by ERISA), in each case incurred in the
ordinary course of business (i) for amounts not yet overdue or (ii) for amounts that are overdue
and that (in the case of any such amounts overdue for a period in excess of five days) are being
contested in good faith by appropriate proceedings, so long as such reserves or other appropriate
provisions, if any, as shall be required by GAAP shall have been made for any such contested
amounts;




          (d) Liens incurred in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal 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 or other Indebtedness), so long as no
foreclosure, sale or similar proceedings have been commenced with respect to any portion of the
Collateral on account thereof;




          (e) easements, rights-of-way, restrictions, encumbrances, encroachments, and other defects or
irregularities in title, in each case which do not and will not interfere in any material respect
with the ordinary conduct of the business of Holdings or any of its Subsidiaries;




          (f) any interest or title of a lessor or sublessor under any lease of real estate permitted
hereunder;




          (g) Liens solely on any cash earnest money deposits made by Holdings or any of its
Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;




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          (h) purported Liens evidenced by the filing of precautionary UCC financing statements relating
solely to operating leases of personal property entered into in the ordinary course of business;




          (i) Liens 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;




          (j) any zoning or similar law or right reserved to or vested in any governmental office or
agency to control or regulate the use of any real property;




          (k) licenses of patents, copyrights, trademarks and other intellectual property rights granted
by Holdings or any of its Subsidiaries existing as of the date hereof or hereafter entered into in
the ordinary course of business;




          (l) Liens described in Schedule 6.2 or on a title report delivered pursuant to Section
3.1(i)(iv);




          (m) Liens securing Indebtedness permitted pursuant to Section 6.1(m); provided, any such Lien
shall encumber only the asset acquired with the proceeds of such Indebtedness; and




          (n) other Liens on assets other than the Collateral securing Indebtedness in an aggregate
amount not to exceed $11,500,000 at any time outstanding.




     6.3. No Further Negative Pledges. Except with respect to (a) specific property encumbered to
secure payment of particular Indebtedness or to be sold pursuant to an executed agreement with
respect to a permitted Asset Sale, (b) restrictions by reason of customary provisions restricting
assignments, subletting or other transfers contained in leases, licenses and similar agreements
entered into in the ordinary course of business (provided that such restrictions are limited to the
property or assets secured by such Liens or the property or assets subject to such leases, licenses
or similar agreements, as the case may be) and (c) restrictions contained in the First Lien Credit
Agreement and the Permitted Subordinated Debt, no Credit Party nor any of its Subsidiaries nor any
of the European Group members shall enter into any agreement prohibiting the creation or assumption
of any Lien upon any of its properties or assets, whether now owned or hereafter acquired, to
secure the Obligations.



     6.4. Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its
Subsidiaries, the European Group Members or Affiliates through any manner or means or through any
other Person to, directly or indirectly, declare, order, pay, make or set apart, or agree to
declare, order, pay, make or set apart, any sum for any Restricted Junior Payment except that (a)
U.S. Borrower may make regularly scheduled payments of interest and fees due in respect of the
Permitted Subordinated Debt; (b) so long as no Default or Event of Default shall have occurred and
be continuing or shall be caused thereby, Borrower and U.S. Holdings may make Restricted Junior
Payments to Holdings (i) in an aggregate amount not to exceed $1,150,000 in any Fiscal Year, to the
extent necessary to permit Holdings to pay general administrative costs and expenses and (ii) to
the extent necessary to permit Holdings to discharge the consolidated tax liabilities of Holdings
and its Subsidiaries, in each case so long as Holdings applies the amount of any such Restricted
Junior Payment for such purpose, (c) Borrower and U.S. Holdings may



74









 




pay, or make Restricted Junior Payments to Holdings to allow it to pay, management fees to Sponsor
or its Affiliates not exceeding an aggregate amount per annum of $2,300,000 per Fiscal Year;
provided that such payments shall be subordinated to the Obligations on terms satisfactory
to Administrative Agent, and that upon the occurrence of a Default or an Event of Default and
during the continuance thereof, no payment of any management fees or similar distributions to the
Sponsor or any of its Affiliates shall be permitted under this Section 6.4(c), (d) Borrower and
U.S. Holdings may make Restricted Junior Payments consisting of the cashless exercise of options
and warrants of the Equity Interests of Holdings or any of its Subsidiaries and (e) so long as no
Default or Event of Default shall have occurred and be continuing or shall be caused thereby, the
Credit Parties may declare and pay dividends or make other distributions to purchase or redeem
Equity Interests of Holdings, AZ Chem Investments Partners LP or AZ Chem Luxembourg Finance
S.à.r.l. (including related stock appreciation rights or similar securities) held by or for the
benefit of then present or former officers or employees of Holdings or any of its Subsidiaries or
upon such Person’s death, disability, retirement or termination of employment or under the terms of
any benefit plan or agreement relating to such shares of stock or related rights; provided
that the aggregate amount of such cash purchases or redemptions shall not exceed $2,300,000 in any
Fiscal Year.




     6.5. Restrictions on Subsidiary Distributions. Except as provided herein or in the First Lien
Credit Agreement and the Permitted Subordinated Debt, no Credit Party shall, nor shall it permit
any of its Subsidiaries or the European Group Members to, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind on the ability of
any Subsidiary of Borrower to (a) pay dividends or make any other distributions on any of such
Subsidiary’s Equity Interests owned by Borrower or any other Subsidiary of Borrower, (b) repay or
prepay any Indebtedness owed by such Subsidiary to Borrower or any other Subsidiary of Borrower,
(c) make loans or advances to Borrower or any other Subsidiary of Borrower, or (d) transfer, lease
or license any of its property or assets to Borrower or any other Subsidiary of Borrower other than
restrictions (i) in agreements evidencing Indebtedness permitted by Section 6.1(k) that impose
restrictions on the property so acquired, (ii) by reason of customary provisions restricting
assignments, subletting or other transfers contained in leases, licenses, joint venture agreements
and similar agreements entered into in the ordinary course of business, (iii) that are or were
created by virtue of any transfer of, agreement to transfer or option or right with respect to any
property, assets or Equity Interests not otherwise prohibited under this Agreement or (iv)
described on Schedule 6.5.



     6.6. Investments. No Credit Party shall, nor shall it permit any of its Subsidiaries or the
European Group Members to, directly or indirectly, make or own any Investment in any Person,
including any Joint Venture, except:



          (a) Investments in Cash and Cash Equivalents;




          (b) equity Investments owned as of the Closing Date in any Subsidiary, (ii) equity Investments
made after the Closing Date by Holdings, Borrower or any Guarantor in any wholly-owned Guarantor
and (iii) equity Investments made after the
Closing Date by any European Group Member in any wholly-owned any European Group Member;








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          (c) Investments (i) in any Securities received in satisfaction or partial satisfaction thereof
from financially troubled account debtors and (ii) deposits, prepayments and other credits to
suppliers made in the ordinary course of business consistent with the past practices of Holdings
and its Subsidiaries;




          (d) intercompany loans to the extent permitted under Section 6.1(b);




          (e) Consolidated Capital Expenditures;




          (f) (i) loans and advances to employees of Holdings and its Subsidiaries made in the ordinary
course of business in an aggregate principal amount not to exceed $1,150,000; and (ii) Investments
made in the ordinary course of business consisting of notes from employees and directors of
Holdings and its Subsidiaries used as consideration for the contemporaneous purchase of the Equity
Interests of Holdings in an aggregate amount not to exceed at any time $1,150,000;




          (g) Permitted Acquisitions permitted pursuant to Section 6.8;




          (h) Investments described in Schedule 6.6;




          (i) Investments in an aggregate amount not to exceed at any time $69,000,000 in connection
with the acquisition by a Credit Party of more than 51%, but less than all, of the economic and
voting Equity Interests in the Specified Target; provided (i) immediately prior to, and
after giving effect thereto, no Default or Event of Default shall have occurred and be continuing
or would result therefrom; (ii) all transactions in connection therewith shall be consummated, in
all material respects, in accordance with all applicable laws and in conformity with all applicable
Governmental Authorizations; (iii) Holdings and its Subsidiaries shall be in compliance with the
financial covenants set forth in Section 6.7 on a pro forma basis after giving effect to such
acquisition as of the last day of the Fiscal Quarter most recently ended, (as determined in
accordance with Section 6.7(d)); (iv) Borrower shall have delivered to Administrative Agent at
least 10 days prior to such proposed acquisition, a Compliance Certificate evidencing compliance
with Section 6.7 as required under clause (iii) above, together with all relevant financial
information with respect to such acquired assets, including the aggregate consideration for such
acquisition and any other information required to demonstrate compliance with Section 6.7; and (v)
the sum of the aggregate unused portion of the Revolving Commitments (as defined in the First Lien
Credit Agreement) at such time (after giving effect to the consummation of such acquisition and any
financing thereof) plus the aggregate amount of Cash and Cash Equivalents of Borrower, SWEAcqCo and
their respective Subsidiaries at such time shall equal or exceed $11,500,000; and




          (j) other Investments in an aggregate amount not to exceed at any time $23,000,000.




     Notwithstanding the foregoing, in no event shall any Credit Party make any Investment which
results in or facilitates in any manner any Restricted Junior Payment not otherwise permitted under
the terms of Section 6.4.



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     6.7. Financial Covenant.



          (a) Leverage Ratio. Borrower shall not permit the Leverage Ratio as of the last day of
any Fiscal Quarter, beginning with the Fiscal Quarter ending September 30, 2007, to exceed the
correlative ratio indicated:




	 	 	 
	Fiscal Quarter	 	Leverage Ratio
	September 30, 2007
	 	7.00:1.00
	December 31, 2007
	 	6.75:1.00
	March 31, 2008
	 	6.50:1.00
	June 30, 2008
	 	6.50:1.00
	September 30, 2008
	 	6.25:1.00
	December 31, 2008
	 	6.25:1.00
	March 31, 2009
	 	5.75:1.00
	June 30, 2009
	 	5.75:1.00
	September 30, 2009
	 	5.75:1.00
	December 31, 2009
	 	5.75:1.00
	March 31, 2010 to December 31, 2010
	 	4.75:1.00
	March 31, 2011 and thereafter
	 	4.75:1.00






          (b) Certain Calculations. With respect to any period during which a Permitted
Acquisition or an Asset Sale has occurred (each, a “Subject Transaction”), for purposes of
determining compliance with the financial covenants set forth in this Section 6.7 and Consolidated
Adjusted EBITDA shall be calculated with respect to such period on a pro forma basis (including pro
forma adjustments arising out of events which are directly attributable to a specific transaction,
are factually supportable and are expected to have a continuing impact, in each case determined on
a basis consistent with Article 11 of Regulation S-X promulgated under the Securities Act and as
interpreted by the staff of the Securities and Exchange Commission, which would include cost
savings resulting from head count reduction, closure of facilities and similar restructuring
charges, which pro forma adjustments shall be certified by the chief financial officer of Holdings)
using the historical financial statements of any business so acquired or to be acquired or sold or
to be sold and the consolidated financial statements of Holdings and its Subsidiaries
which shall be reformulated as if such Subject Transaction, and any Indebtedness incurred or
repaid in connection therewith, had been consummated or incurred or repaid at the beginning of such
period (and assuming that such Indebtedness bears interest during any portion of the applicable
measurement period prior to the relevant acquisition at the








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weighted average of the interest rates applicable to outstanding Loans incurred during such
period).




          (c) Right to Cure Financial Performance Covenant. Notwithstanding anything to the
contrary contained in Section 8.1, in the event that Borrower fails to comply with the requirements
of the Financial Performance Covenant at any time, until the tenth calendar day subsequent to
delivery of the related Compliance Certificate, Borrower shall have the right to issue common
Equity Interests for cash or otherwise receive cash contributions to Borrower (A) in an aggregate
amount equal to the amount necessary to cure the relevant failure to comply with the Financial
Performance Covenant and to contribute any such cash to the capital of Borrower (collectively, the
“Cure Right”), and upon the receipt by Borrower of such cash (the “Cure Amount”), (B) on no more
than four occasions in the aggregate since the Closing Date and (C) so long as there are at least
two consecutive Fiscal Quarters in each four Fiscal Quarter period in which the Cure Right has not
been exercised. Pursuant to the exercise by Borrower of such Cure Right, such Financial Performance
Covenant shall be recalculated giving effect to the following pro forma adjustments:





          (i) Consolidated Adjusted EBITDA shall be increased for such period, in accordance
with the definition thereof, solely for the purpose of measuring compliance with the
Financial Performance Covenant for the previous Fiscal Quarter and the subsequent three
Fiscal Quarters and not for any other purpose under this Agreement, by an amount equal to
the Cure Amount;




          (ii) if, after giving effect to the foregoing recalculations, Borrower shall then be
in compliance with the requirements of all Financial Performance Covenant, Borrower shall
be deemed to have satisfied the requirements of the Financial Performance Covenants as of
the relevant date of determination with the same effect as though there had been no failure
to comply therewith at such date, and the applicable breach or default of the Financial
Performance Covenants which had occurred shall be deemed cured for all purposes of the
Agreement; and




          (iii) to the extent that the Cure Amount proceeds are used to repay or prepay
Indebtedness (other than pursuant to a scheduled repayment), such Indebtedness shall not be
deemed to have been repaid for purposes of calculating the Leverage Ratio for the period
with respect to which such Compliance Certificate applies.



     6.8. Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor
shall it permit any of its Subsidiaries or the European Group Members to, enter into any
transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease or license, exchange, transfer or otherwise
dispose of, in one transaction or a series of transactions, all or any part of its business, assets
or property of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, whether now owned or hereafter acquired, leased or licensed, or acquire by purchase or
otherwise (other than purchases or other acquisitions of inventory, materials and equipment and
capital expenditures in the ordinary course of business) the business, property or fixed assets of,
or stock or other
evidence of beneficial ownership of, any Person or any division or line of business or other
business unit of any Person, except:



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          (a) any U.S. Subsidiary of U.S. Holdings or a Guarantor may be merged with or into Borrower or
any Guarantor, as the case may be, or be liquidated, wound up or dissolved, or all or any part of
its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed
of, in one transaction or a series of transactions, to Borrower or any Guarantor; provided,
in the case of such a merger, Borrower, or such Guarantor, as applicable, shall be the continuing
or surviving Person and any Non-U.S. Subsidiary may be merged with or into any European Group
Member, or all or any part of its business, property or assets may be conveyed, sold, leased,
transferred or otherwise disposed of, in one transaction or a series of transactions, to any
European Group Member; provided, (1) any European Group Member, as the case may be, shall
be the continuing, surviving or succeeding Person, or the transferee of the relevant business,
property or assets, as the case may be, and (2) immediately after such transaction, the continuing,
surviving or succeeding Person(s) or the transferee(s) shall (A) collectively, have a net worth
(calculated on a pro forma basis) at least equal to the aggregate net worth of the applicable
European Group Member, immediately prior thereto and (B) either (i) have freely distributable
reserves at least equal to the aggregate of the freely distributable reserves of the applicable
European Group Member immediately prior thereto, or (ii) be liable without limitation in respect of
its Obligations, as applicable, as a Borrower and/or Guarantor hereunder;




          (b) sales or other dispositions of assets that do not constitute Asset Sales;




          (c) Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of
non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in
the case of other non-Cash proceeds) when aggregated with the proceeds of all other Asset Sales
made within the same Fiscal Year, are less than $11,500,000; provided (1) the consideration
received for such assets shall be in an amount at least equal to the fair market value thereof
(determined in good faith by the board of directors of Holdings (or similar governing body)), (2)
no less than 75% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof shall
be applied as required by Section 2.14(a);




          (d) disposals of obsolete, worn out or surplus property;




          (e) Permitted Acquisitions, provided that the consideration for such acquisitions
(other than the acquisition by a Credit Party of all of the economic and voting Equity Interests of
the Specified Target) shall constitute (i) less than $57,500,000 in the aggregate in any Fiscal
Year, and (ii) less than $172,500,000 in the aggregate from the Closing Date to the date of
determination;




          (f) Investments made in accordance with Section 6.6; and




          (g) sales, assignments, leases, licenses, transfers, abandonment, cancellation or other
dispositions of current or future assets (including without limitation Intellectual Property), in
the ordinary course of business, consistent with the practices of the Credit Parties or any of
their Subsidiaries prior to the date hereof.




     6.9. Disposal of Subsidiary Interests. Except for any sale of all of its interests in the
Equity Interests of any of its Subsidiaries in compliance with the provisions of Section 6.8, no



79









 




Credit Party shall, nor shall it permit any of its Subsidiaries or the European Group Members to,
(a) directly or indirectly sell, assign, pledge or otherwise encumber or dispose of any Equity
Interests of any of its Subsidiaries, except to qualify directors if required by applicable law; or
(b) permit any of its Subsidiaries directly or indirectly to sell, assign, pledge or otherwise
encumber or dispose of any Equity Interests of any of its Subsidiaries, except to another Group
Member (subject to the restrictions on such disposition otherwise imposed hereunder), or to qualify
directors if required by applicable law.




     6.10. Sales and Lease-Backs. No Credit Party shall, nor shall it permit any of its
Subsidiaries or the European Group Members to, directly or indirectly, become or remain liable as
lessee or as a guarantor or other surety with respect to any lease of any property (whether real,
personal or mixed), whether now owned or hereafter acquired, which such Group Member (a) has sold
or transferred or is to sell or to transfer to any other Person (other than Holdings or any of its
Subsidiaries), or (b) intends to use for substantially the same purpose as any other property which
has been or is to be sold or transferred by such Group Member to any Person (other than Holdings or
any of its Subsidiaries) in connection with such lease.



     6.11. Transactions with Shareholders and Affiliates. No Credit Party shall, nor shall it
permit any of its Subsidiaries or the European Group Members 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 service) with any Affiliate of Holdings on terms that are less favorable to
Holdings or that Subsidiary, as the case may be, than those that might be obtained at the time from
a Person who is not such a holder or Affiliate; provided, the foregoing restriction shall
not apply to (a) any transaction between Borrower and any Guarantor Subsidiary; (b) reasonable and
customary fees paid to members of the board of directors (or similar governing body) of Holdings or
any of its Subsidiaries; (c) compensation, benefits or indemnification arrangements for officers
and other employees of Holdings or any of its Subsidiaries entered into in the ordinary course of
business; (d) transactions with the Specified Target for so long as it is a Joint Venture pursuant
to commercial contracts, agreements, or arrangements between the Specified Target and any Credit
Party that are not less favorable to such Credit Party than those that would have been obtained in
a comparable transaction with an unrelated Person; and (e) transactions described in Schedule 6.11.



     6.12. Conduct of Business. From and after the Closing Date, no Credit Party shall, nor shall
it permit any of its Subsidiaries or the European Group Members to, engage in any business other
than (i) the businesses engaged in by such Group Member or such Subsidiary on the Closing Date and
similar or related businesses and (ii) such other lines of business as may be consented to by
Requisite Lenders.



     6.13. Permitted Activities of Holding Companies. Holdings and U.S. Holdings shall not (a)
incur, directly or indirectly, any Indebtedness or any other obligation or liability whatsoever
other than the Indebtedness and obligations under this Agreement, the other Credit Documents and
the Related Agreements; (b) create or suffer to exist any Lien upon any property or assets now
owned or hereafter acquired, leased or licensed by it other than the Liens created under the
Collateral Documents to which it is a party or
permitted pursuant to Section 6.2; (c) engage in any business or activity or own any assets
other than (i) holding 100% of the Equity Interests of Borrower and SWEAcqCo, (ii) performing its
obligations and activities



80









 




incidental thereto under the Credit Documents, and to the extent not inconsistent therewith, the
Related Agreements; (iii) holding Cash and Cash Equivalents to the extent and for the purposes
permitted under this Agreement; (iv) making Restricted Junior Payments and Investments to the
extent permitted by this Agreement and (v) as may be required by law; (d) consolidate with or merge
with or into, or convey, transfer, lease or license all or substantially all its assets to, any
Person; (e) sell or otherwise dispose of any Equity Interests of any of its Subsidiaries; (f)
create or acquire any Subsidiary or make or own any Investment in any Person other than Borrower
and SWEAcqCo; or (g) fail to hold itself out to the public as a legal entity separate and distinct
from all other Persons.




     6.14. Amendments or Waivers of Organizational Documents and Certain Related Agreements.
Except as set forth in Section 6.15 and unless not adverse to the Lenders, no Credit Party shall
nor shall it permit any of its Subsidiaries or the European Group Members to, agree to any material
amendment, restatement, supplement or other modification to, or waiver of, any of its
Organizational Documents or any of its material rights under any Related Agreement after the
Closing Date without in each case obtaining the prior written consent of the Administrative Agent
to such amendment, restatement, supplement or other modification or waiver.



     6.15. Amendments or Waivers of with respect to First Lien Credit Agreement. No Credit Party
shall, nor shall it permit any of its Subsidiaries or the European Group Members to, amend or
otherwise change the terms of any First Lien Loan, or make any payment consistent with an amendment
thereof or change thereto, other than as permitted under the Intercreditor Agreement.



     6.16. Fiscal Year. No Credit Party shall, nor shall it permit any of its Subsidiaries or the
European Group Members to change its Fiscal Year-end from December 31.



SECTION 7. GUARANTY




     7.1. Guaranty of the Obligations. Subject to the provisions of Section 7.2, Guarantors jointly
and severally hereby irrevocably and unconditionally guaranty to Administrative Agent for the
ratable benefit of the Beneficiaries the due and punctual payment in full of all Obligations, when
the same shall become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a) or any
equivalent provision in any applicable jurisdiction) (each, a “Guaranteed Obligation,” and
collectively, the “Guaranteed Obligations”).



     7.2. Contribution by Guarantors. All Guarantors desire to allocate among themselves
(collectively, the “Contributing Guarantors”), in a fair and equitable manner, their obligations
arising under this Guaranty. Accordingly, in the event any payment or distribution is made on any
date by a Guarantor (a “Funding Guarantor”) under this Guaranty such that its Aggregate Payments
exceeds its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution
from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing
Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair



81









 





Share” means, with respect to a Contributing Guarantor as of any date of determination, an amount
equal to (a) the ratio of (i) the Fair Share Contribution Amount with respect to such Contributing
Guarantor to (ii) the aggregate of the Fair Share Contribution Amounts with respect to all
Contributing Guarantors multiplied by (b) the aggregate amount paid or distributed on or before
such date by all Funding Guarantors under this Guaranty in respect of the obligations Guaranteed.
“Fair Share Contribution Amount” means, with respect to a Contributing Guarantor as of any date of
determination, the maximum aggregate amount of the obligations of such Contributing Guarantor under
this Guaranty that would not render its obligations hereunder or thereunder subject to avoidance as
a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any
comparable applicable provisions of state law; provided, solely for purposes of calculating
the “Fair Share Contribution Amount” with respect to any Contributing Guarantor for purposes of
this Section 7.2, any assets or liabilities of such Contributing Guarantor arising by virtue of any
rights to subrogation, reimbursement or indemnification or any rights to or obligations of
contribution hereunder shall not be considered as assets or liabilities of such Contributing
Guarantor. “Aggregate Payments” means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (1) the aggregate amount of all payments and distributions made
on or before such date by such Contributing Guarantor in respect of this Guaranty (including in
respect of this Section 7.2), minus (2) the aggregate amount of all payments received on or before
such date by such Contributing Guarantor from the other Contributing Guarantors as contributions
under this Section 7.2. The amounts payable as contributions hereunder shall be determined as of
the date on which the related payment or distribution is made by the applicable Funding Guarantor.
The allocation among Contributing Guarantors of their obligations as set forth in this Section 7.2
shall not be construed in any way to limit the liability of any Contributing Guarantor hereunder.
Each Guarantor is a third party beneficiary to the contribution agreement set forth in this Section
7.2.




     7.3. Payment by Guarantors. Subject to Section 7.2, the Guarantors, as applicable, hereby
jointly and severally agree, in furtherance of the foregoing and not in limitation of any other
right which any Beneficiary may have at law or in equity against any Guarantor by virtue hereof,
that upon the failure of the Borrower to pay any of the Guaranteed Obligations when and as the same
shall become due, whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a), the Guarantors, as
applicable, will upon demand pay, or cause to be paid, in Cash, to Administrative Agent for the
ratable benefit of Beneficiaries, an amount equal to the sum of the unpaid principal amount of all
Guaranteed Obligations then due as aforesaid, accrued and unpaid interest on such Guaranteed
Obligations (including interest which, but for Borrower’s becoming the subject of a case under the
Bankruptcy Code, would have accrued on such Guaranteed Obligations, whether or not a claim is
allowed against Borrower for such interest in the related bankruptcy case) and all other Guaranteed
Obligations then owed to Beneficiaries as aforesaid.



     7.4. Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder
are irrevocable, absolute, independent and unconditional and shall not be affected by any
circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than
payment in full of the Guaranteed Obligations. In furtherance of the foregoing and without limiting
the generality thereof, each Guarantor agrees as follows:



82









 





          (a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty
is a primary obligation of each Guarantor and not merely a contract of surety;




          (b) Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default
notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to
the existence of such Event of Default;




          (c) the obligations of each Guarantor hereunder are independent of the obligations of Borrower
and the obligations of any other guarantor (including any other Guarantor) of the obligations of
Borrower may be brought and prosecuted against such Guarantor whether or not any action is brought
against Borrower or any of such other guarantors and whether or not Borrower is joined in any such
action or actions;




          (d) payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall in
no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the Guaranteed
Obligations which has not been paid. Without limiting the generality of the foregoing, if
Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant
to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such
Guarantor from its covenant to pay the portion of the Guaranteed Obligations that is not the
subject of such suit, and such judgment shall not, except to the extent satisfied by such
Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of
the Guaranteed Obligations;




          (e) any Beneficiary, upon such terms as it deems appropriate, without notice or demand and
without affecting the validity or enforceability hereof or giving rise to any reduction,
limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time
to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change
the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise,
release or discharge, or accept or refuse any offer of performance with respect to, or
substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate
the payment of the same to the payment of any other obligations; (iii) request and accept other
guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the
Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind,
waive, alter, subordinate or modify, with or without consideration, any security for payment of the
Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation
of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v)
enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in
respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against any such security, in
each case as such Beneficiary in its discretion may determine consistent herewith or the applicable
Hedge Agreement and any applicable security agreement, including foreclosure on any such security
pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale
is commercially reasonable, and even though such action operates to impair or extinguish any right
of reimbursement or
subrogation or other right or remedy of any Guarantor against Borrower or any security for the
Guaranteed Obligations; and (vi) exercise any other rights available to it under the Credit
Documents or any Hedge Agreements; and






83









 








          (f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable
and shall not be subject to any reduction, limitation, impairment, discharge or termination for any
reason (other than payment in full of the Guaranteed Obligations), including the occurrence of any
of the following, whether or not any Guarantor shall have had notice or knowledge of any of them:
(i) any failure or omission to assert or enforce or agreement or election not to assert or enforce,
or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or
enforcement of, any claim or demand or any right, power or remedy (whether arising under the Credit
Documents or any Hedge Agreements, at law, in equity or otherwise) with respect to the Guaranteed
Obligations or any agreement relating thereto, or with respect to any other guaranty of or security
for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or
modification of, or any consent to departure from, any of the terms or provisions (including
provisions relating to events of default) hereof, any of the other Credit Documents, any of the
Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty
or security for the Guaranteed Obligations, in each case whether or not in accordance with the
terms hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other
guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any
time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of
payments received from any source (other than payments received pursuant to the other Credit
Documents or any of the Hedge Agreements or from the proceeds of any security for the Guaranteed
Obligations, except to the extent such security also serves as collateral for indebtedness other
than the Guaranteed Obligations) to the payment of indebtedness other than the Guaranteed
Obligations, even though any Beneficiary might have elected to apply such payment to any part or
all of the Guaranteed Obligations; (v) any Beneficiary’s consent to the change, reorganization or
termination of the corporate structure or existence of U.S. Holdings or any of its Subsidiaries and
to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or
continue perfection of a security interest in any collateral which secures any of the Guaranteed
Obligations; (vii) any defenses, set-offs or counterclaims which Borrower may allege or assert
against any Beneficiary in respect of the Guaranteed Obligations, including failure of
consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and
satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act
or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an
obligor in respect of the Guaranteed Obligations.




     7.5. Waivers by Guarantors. Each Guarantor hereby waives for the benefit of Beneficiaries:
(a) any right to require any Beneficiary, as a condition of payment or performance by such
Guarantor, to (i) proceed against Borrower, any other guarantor (including any other Guarantor) of
the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security held
from Borrower, any such other guarantor or any other Person, (iii) proceed against or have resort
to any balance of any Deposit Account or credit on the books of any Beneficiary in favor of
Borrower or any other Person, or (iv) pursue any other remedy in the power of any Beneficiary
whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any
disability or other defense of Borrower or any other Guarantor including any defense based on or
arising out
of the lack of validity or the unenforceability of the Guaranteed Obligations or any agreement
or instrument relating thereto or by reason of the cessation of the liability of Borrower or any
other Guarantor from any cause other than payment in full of the Guaranteed Obligations; (c) any
defense based upon any statute or rule of law which provides



84









 




that the obligation of a surety must be neither larger in amount nor in other respects more
burdensome than that of the principal; (d) any defense based upon any Beneficiary’s errors or
omissions in the administration of the Guaranteed Obligations, except behavior which amounts to bad
faith, gross negligence or willful misconduct; (e) (i) any principles or provisions of law,
statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or
equitable discharge of such Guarantor’s obligations hereunder, (ii) the benefit of any statute of
limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (iii) any
rights to set-offs, recoupments and counterclaims, and (iv) promptness, diligence and any
requirement that any Beneficiary protect, secure, perfect or insure any security interest or lien
or any property subject thereto; (f) notices, demands, presentments, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of
default hereunder, the Hedge Agreements or any agreement or instrument related thereto, notices of
any renewal, extension or modification of the Guaranteed Obligations or any agreement related
thereto, notices of any extension of credit to Borrower and notices of any of the matters referred
to in Section 7.4 and any right to consent to any thereof; and (g) any defenses or benefits that
may be derived from or afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms hereof.




     7.6. Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed Obligations
shall have been indefeasibly paid in full, each Guarantor hereby waives to the extent permitted by
applicable law, any claim, right or remedy, direct or indirect, that such Guarantor now has or may
hereafter have against Borrower or any other Guarantor or any of its assets in connection with this
Guaranty or the performance by such Guarantor of its obligations hereunder, in each case whether
such claim, right or remedy arises in equity, under contract, by statute, under common law or
otherwise and including (a) any right of subrogation, reimbursement or indemnification that such
Guarantor now has or may hereafter have against Borrower with respect to the Guaranteed
Obligations, (b) any right to enforce, or to participate in, any claim, right or remedy that any
Beneficiary now has or may hereafter have against Borrower, and (c) any benefit of, and any right
to participate in, any collateral or security now or hereafter held by any Beneficiary. In
addition, until the Guaranteed Obligations shall have been indefeasibly paid in full, each
Guarantor shall withhold exercise of any right of contribution such Guarantor may have against any
other guarantor (including any other Guarantor) of the Guaranteed Obligations, including any such
right of contribution as contemplated by Section 7.2. Each Guarantor further agrees that, to the
extent the waiver or agreement to withhold the exercise of its rights of subrogation,
reimbursement, indemnification and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of subrogation,
reimbursement or indemnification such Guarantor may have against Borrower or against any collateral
or security, and any rights of contribution such Guarantor may have against any such other
guarantor, shall be junior and subordinate to any rights any Beneficiary may have against Borrower,
to all right, title and interest any Beneficiary may have in any such collateral or security, and
to any right any Beneficiary may have against such other guarantor. If any amount shall be paid to
any Guarantor on account of any such subrogation, reimbursement, indemnification or contribution
rights at any time when all
Guaranteed Obligations shall not have been finally and indefeasibly paid in full, such amount
shall be held in trust for Administrative Agent on behalf of Beneficiaries and shall forthwith be
paid over to Administrative Agent for the benefit of Beneficiaries to be credited and applied
against the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms
hereof.



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     7.7. Subordination of Other Obligations. Any Indebtedness of Borrower or any Guarantor now or
hereafter held by any Guarantor (the “Obligee Guarantor”) is hereby subordinated in right of
payment to the Guaranteed Obligations, and any such Indebtedness collected or received by the
Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in trust
for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to
Administrative Agent for the benefit of Beneficiaries to be credited and applied against the
Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of
the Obligee Guarantor under any other provision hereof.



     7.8. Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect
until all of the Guaranteed Obligations shall have been paid in full. Each Guarantor hereby
irrevocably waives, to the extent permitted by applicable law, any right to revoke this Guaranty as
to future transactions giving rise to any Guaranteed Obligations.



     7.9. Authority of Guarantors or Borrower. It is not necessary for any Beneficiary to inquire
into the capacity or powers of any Guarantor or Borrower or the officers, directors or any agents
acting or purporting to act on behalf of any of them.



     7.10. Financial Condition of Borrower. Any Credit Extension may be made to Borrower or
continued from time to time, and any Hedge Agreements may be entered into from time to time, in
each case without notice to or authorization from any Guarantor regardless of the financial or
other condition of Borrower at the time of any such grant or continuation or at the time such Hedge
Agreement is entered into, as the case may be. No Beneficiary shall have any obligation to disclose
or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the financial
condition of Borrower. Each Guarantor has adequate means to obtain information from Borrower on a
continuing basis concerning the financial condition of Borrower and its ability to perform its
obligations under the Credit Documents and the Hedge Agreements, and each Guarantor assumes the
responsibility for being and keeping informed of the financial condition of Borrower and of all
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor
hereby waives, to the extent permitted by applicable law, and relinquishes any duty on the part of
any Beneficiary to disclose any matter, fact or thing relating to the business, operations or
conditions of Borrower now known or hereafter known by any Beneficiary.



     7.11. Bankruptcy, etc.



          (a) So long as any Guaranteed Obligations remain outstanding, no Guarantor shall, without the
prior written consent of Administrative Agent acting pursuant to the instructions of Requisite
Lenders, commence or join with any other Person in commencing any bankruptcy, reorganization or
insolvency case or proceeding of or against Borrower or any other Guarantor. The obligations of
Guarantors hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or
terminated by any case or proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or arrangement of Borrower or any other
Guarantor or by any defense which Borrower or any other Guarantor may have by reason
of the order, decree or decision of any court or administrative body resulting from any such
proceeding.






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          (b) Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed
Obligations which accrues after the commencement of any case or proceeding referred to in clause
(a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by
operation of law by reason of the commencement of such case or proceeding, such interest as would
have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been
commenced) shall be included in the Guaranteed Obligations because it is the intention of
Guarantors and Beneficiaries that the Guaranteed Obligations which are guaranteed by Guarantors
pursuant hereto should be determined without regard to any rule of law or order which may relieve
Borrower of any portion of such Guaranteed Obligations. Guarantors will permit any trustee in
bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person
to pay Administrative Agent, or allow the claim of Administrative Agent in respect of, any such
interest accruing after the date on which such case or proceeding is commenced.




          (c) In the event that all or any portion of the Guaranteed Obligations are paid by Borrower,
the obligations of Guarantors hereunder shall continue and remain in full force and effect or be
reinstated, as the case may be, in the event that all or any part of such payment(s) are rescinded
or recovered directly or indirectly from any Beneficiary as a preference, fraudulent transfer or
otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed
Obligations for all purposes hereunder.




     7.12. Discharge of Guaranty Upon Sale of Guarantor. If all of the Equity Interests of any
Guarantor or any of its successors in interest hereunder shall be sold or otherwise disposed of
(including by merger or consolidation) in accordance with the terms and conditions hereof, the
Guaranty of such Guarantor or such successor in interest, as the case may be, hereunder shall
automatically be discharged and its obligations and any Collateral under the Collateral Documents
and released without any further action by any Beneficiary or any other Person effective as of the
time of such Asset Sale.



SECTION 8. EVENTS OF DEFAULT




     8.1. Events of Default. If any one or more of the following conditions or events shall occur:



          (a) Failure to Make Payments When Due. Failure by Borrower to pay (i) when due any
installment of principal of any Loan, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; or (ii) any interest on any Loan or any
fee or any other amount due hereunder within five days after the date due; or




          (b) Default in Other Agreements. (i) Failure of any Credit Party or any of their
respective Subsidiaries to pay when due any principal of or interest on or any other amount payable
in respect of one or more items of Indebtedness (other than Indebtedness referred to in Section
8.1(a)) in an individual principal amount of $5,750,000 or more or with an aggregate principal
amount of $11,500,000 or more, in each case beyond the originally specified grace period, if any,
provided therefor; or (ii) breach or default by
any Credit Party with respect to any other material term of (1) one or more items of
Indebtedness in the individual or aggregate






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principal amounts referred to in clause (i) above or (2) any loan agreement, mortgage, indenture or
other agreement relating to such item(s) of Indebtedness, in each case beyond the originally
specified grace period, if any, provided therefor, if the effect of such breach or default is to
cause, or to permit the holder or holders of that Indebtedness (or a trustee on behalf of such
holder or holders), to cause, that Indebtedness to become or be declared due and payable (or
redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as
the case may be; provided, however, with respect to any failure to pay or breach or
default under the First Lien Credit Agreement (other than a payment default under or an
acceleration of the First Lien Credit Agreement, which are provided for in clauses (i) and (ii)
above), such event shall only constitute an Event of Default hereunder if such event occurs and is
not cured or waived within sixty (60) days after the occurrence of such event; or




          (c) Breach of Certain Covenants. (i) Failure of any Credit Party to perform or comply
with any term or condition contained in Section 2.6, Section 5.2 or Section 6; or (ii) failure of
any Credit Party to perform or comply with any term or condition contained in Section 5.1(a),
5.1(b), 5.1(c) through 5.1(e) and such failure shall not have been remedied or waived within ten
(10) Business Days after such failure;




          (d) Breach of Representations, etc. Any representation, warranty, certification or
other statement made or deemed made by any Credit Party in any Credit Document or in any statement
or certificate at any time given by any Credit Party or any of its Subsidiaries in writing pursuant
hereto or thereto or in connection herewith or therewith shall be false in any material respect as
of the date made or deemed made; or




          (e) Other Defaults Under Credit Documents. Any Credit Party shall default in the
performance of or compliance with any term contained herein or any of the other Credit Documents,
other than any such term referred to in any other Section of this Section 8.1, and such default
shall not have been remedied or waived within thirty days after the earlier of (i) an officer of
such Credit Party becoming aware of such default or (ii) receipt by Borrower of notice from
Administrative Agent or any Lender of such default; or




          (f) Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court of competent
jurisdiction shall enter a decree or order for relief in respect of Holdings or any of its Material
Subsidiaries in an involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, winding up, dissolution, insolvency or similar law now or hereafter in effect in any
applicable jurisdiction, which decree or order is not stayed; or any other similar relief shall be
granted under any applicable federal, foreign or state law; (ii) an involuntary case shall be
commenced against Holdings or any of its Material Subsidiaries under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in effect in any
applicable jurisdiction; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian, administrator or other
officer in any applicable jurisdiction having similar powers over Holdings or any of its Material
Subsidiaries, or over all or a substantial part of its property, shall have been entered; or there
shall have occurred the involuntary appointment of an interim receiver, administrator, liquidator,
trustee or other custodian of Holdings or any of its Material
Subsidiaries for all or a substantial part of its property; or a warrant of attachment,
execution or similar process shall have been issued against any substantial part of the property of
Holdings or








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any of its Material Subsidiaries, and any such event described in this clause (ii) shall continue
for sixty days without having been dismissed, bonded or discharged; or (iii) any analogous step or
procedure is taken under the laws of any jurisdiction in respect of Holdings or any of its Material
Subsidiaries, but only to the extent such step or procedure is reasonably likely to result in a
Material Adverse Effect; or




          (g) Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Holdings or any of its
Material Subsidiaries shall have an order for relief entered with respect to it or shall commence a
voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, winding up,
dissolution, insolvency or similar law now or hereafter in effect in any applicable jurisdiction,
or shall consent 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 shall consent to the appointment
of or taking possession by a receiver, administrator, liquidator, trustee or other custodian for
all or a substantial part of its property; or Holdings or any of its Material Subsidiaries shall
make any assignment for the benefit of or a composition with creditors; (ii) Holdings or any of its
Material Subsidiaries shall be unable or shall be deemed for the purpose of applicable law to be
unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such
debts become due, or stops or threatens or announces an action to stop or suspend payment of any of
its debts or a moratorium shall be declared in respect of any of its debts; or the board of
directors (or similar governing body) of Holdings or any of its Material Subsidiaries (or any
committee thereof) shall convene a meeting or adopt any resolution or otherwise authorize any
action to approve any of the actions referred to herein or in Section 8.1(f); or (iii) any
analogous step or procedure is taken under the laws of any jurisdiction in respect of Holdings or
any of its Material Subsidiaries, but only to the extent such step or procedure is reasonably
likely to result in a Material Adverse Effect; or




          (h) Judgments and Attachments. Any money judgment, writ or warrant of attachment or
similar process involving (i) in any individual case an amount in excess of $5,750,000 or (ii) in
the aggregate at any time an amount in excess of $11,500,000 (in either case to the extent not
adequately covered by insurance as to which a solvent and unaffiliated insurance company has
acknowledged coverage) shall be entered or filed against Holdings or any of its Subsidiaries or any
of their respective assets and shall remain undischarged, unvacated, unbonded or unstayed for a
period of sixty days; or




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




          (j) Employee Benefit Plans. (i) There shall occur one or more ERISA Events or similar
events in respect of any Non-U.S. Plans (or a resolution is passed on proceedings commenced to
terminate any Non-U.S. Plan) which individually or in the aggregate results in or might reasonably
be expected to result in liability of Holdings, any of its Subsidiaries or any of their respective
ERISA Affiliates that could be reasonably expected to have a Material Adverse Effect; or (ii) there
exists any fact or circumstance that reasonably could be expected to result in the imposition of a
Lien or security interest under Section 412(n) of the Internal Revenue Code or under ERISA or
similar law with
respect to any Non-U.S. Plan that could be reasonably expected to have a Material Adverse
Effect.






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          (k) Change of Control. A Change of Control shall occur; or




          (l) Guaranties, Collateral Documents and other Credit Documents. At any time after the
execution and delivery thereof, (i) the Guaranty for any reason, other than the satisfaction in
full of all Obligations, shall cease to be in full force and effect (other than in accordance with
its terms) or shall be declared to be null and void or any Guarantor shall repudiate its
obligations thereunder in writing, (ii) this Agreement or any Collateral Document ceases to be in
full force and effect (other than by reason of a release of Collateral in accordance with the terms
hereof or thereof or the satisfaction in full of the Obligations in accordance with the terms
hereof) or shall be declared null and void, or Collateral Agent shall not have or shall cease to
have a valid and perfected Lien in any Collateral purported to be covered by the Collateral
Documents with the priority required by the relevant Collateral Document, in each case for any
reason other than the failure of Collateral Agent or any Secured Party to take any action within
its control, (iii) any Credit Party shall contest the validity or enforceability of any Credit
Document in writing or deny in writing that it has any further liability, including with respect to
future advances by Lenders, under any Credit Document to which it is a party or shall contest the
validity or perfection of any Lien in any Collateral purported to be covered by the Collateral
Documents; (iv) the intercreditor provisions under the Intercreditor Agreement shall be invalidated
or otherwise cease to be legal, valid and binding obligations of the parties thereto, enforceable
in accordance with their terms;



THEN, (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g),
automatically, (2) upon the occurrence of an acceleration of all loans under the First Lien Credit
Agreement, automatically and (3) upon the occurrence of any other Event of Default, at the request
of (or with the consent of Requisite Lenders), upon notice to Borrower by Administrative Agent,
each of the following shall (i) be payable on demand by the Administrative Agent (and if any denial
is subsequently made these amounts, together with accrued interest and all other amounts accrued
under this Agreement, shall be immediately due and payable, in each case without presentment,
demand, protest or other requirements of any kind, all of which are expressly waived by each Credit
Party) or (ii) immediately become due and payable, in each case without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly waived by each Credit
Party: (I) all or any part of (as specified by the Administrative Agent) the unpaid principal
amount of and accrued interest on the Loans, and (II) all or any part of (as specified by the
Administrative Agent) other Obligations; (A) Administrative Agent may cause Collateral Agent, to
enforce any and all Liens and security interests created pursuant to Collateral Documents; and/or
(B) subject to the Intercreditor Agreement, Administrative Agent shall exercise, or direct the
Collateral Agent to exercise, all or any of its or as the case may be, the Collateral Agent’s
rights, remedies, powers or discretions under any of the Credit Documents.




SECTION 9. AGENTS




     9.1. Appointment of Agents. GSCP is hereby appointed Syndication Agent hereunder, and each
Lender hereby authorizes GSCP to act as Syndication Agent in accordance with the terms hereof and
the other Credit Documents. CapitalSource is
hereby appointed Administrative Agent and Collateral Agent hereunder and under the other
Credit Documents and each Lender



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hereby authorizes CapitalSource to act as Administrative Agent and Collateral Agent in accordance
with the terms hereof and the other Credit Documents. Each Agent hereby agrees to act in its
capacity as such upon the express conditions contained herein and the other Credit Documents, as
applicable. The provisions of this Section 9 are solely for the benefit of Agents and Lenders and
no Credit Party shall have any rights as a third party beneficiary of any of the provisions
thereof. In performing its functions and duties hereunder, each Agent shall act solely as an agent
of Lenders and does not assume and shall not be deemed to have assumed any obligation towards or
relationship of agency or trust with or for U.S. Holdings or any of its Subsidiaries. Syndication
Agent, without consent of or notice to any party hereto, may assign any and all of its rights or
obligations hereunder to any of its Affiliates. As of the Closing Date, GSCP, in its capacity as
Syndication Agent, shall not have any obligations but shall be entitled to all benefits of this
Section 9.




     9.2. Powers and Duties. Each Lender irrevocably authorizes each Agent (i) to take such action
on such Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the
other Credit Documents as are specifically delegated or granted to such Agent by the terms hereof
and thereof, together with such powers, rights and remedies as are reasonably incidental thereto
and (ii) to enter into any and all of the Collateral Documents (including, for the
avoidance of doubt, the Intercreditor Agreement) together with such other documents as shall be
necessary to give effect to (x) the ranking and priority of Indebtedness contemplated by the
Intercreditor Agreement and (y) the Collateral contemplated by the other Collateral Documents, on
its behalf. For the avoidance of doubt, each Lender agrees to be bound by the terms of the
Intercreditor Agreement to the same extent as if it were a party thereto. Each Agent shall have
only those duties and responsibilities that are expressly specified herein and the other Credit
Documents. Each Agent may exercise such powers, rights and remedies and perform such duties by or
through its agents or employees. No Agent shall have, by reason hereof or any of the other Credit
Documents, a fiduciary relationship in respect of any Lender; and nothing herein or any of the
other Credit Documents, expressed or implied, is intended to or shall be so construed as to impose
upon any Agent any obligations in respect hereof or any of the other Credit Documents except as
expressly set forth herein or therein.



     9.3. General Immunity.



          (a) No Responsibility for Certain Matters. No Agent shall be responsible to any Lender
for the execution, effectiveness, genuineness, validity, enforceability, collectability or
sufficiency hereof or any other Credit Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or in any financial or
other statements, instruments, reports or certificates or any other documents furnished or made by
any Agent to Lenders or by or on behalf of any Credit Party, or for the financial condition or
business affairs of any Credit Party or any other Person liable for the payment of any Obligations,
nor shall any Agent be required to ascertain or inquire as to the performance or observance of any
of the terms, conditions, provisions, covenants or agreements contained in any of the Credit
Documents or as to the use of the proceeds of the Loans or as to the existence or possible
existence of any Event of Default or Default or to make any disclosures with respect to
the foregoing. Anything contained herein to the contrary notwithstanding, Administrative Agent
shall not have any liability arising from confirmations of the amount of outstanding Loans or the
component amounts thereof.





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          (b) Exculpatory Provisions. No Agent nor any of its officers, partners, directors,
employees or agents shall be liable to Lenders for any action taken or omitted by any Agent under
or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross
negligence or willful misconduct as determined by a final judgment of a court of competent
jurisdiction. Each Agent shall be entitled to refrain from any act or the taking of any action
(including the failure to take an action) in connection herewith or any of the other Credit
Documents or from the exercise of any power, discretion or authority vested in it hereunder or
thereunder unless and until such Agent shall have received instructions in respect thereof from
Requisite Lenders (or such other Lenders as may be required to give such instructions under Section
10.5) or, in the case of the Collateral Agent, in accordance with the applicable Collateral
Documents, and, upon receipt of such instructions from Requisite Lenders (or such other Lenders, as
the case may be) or, in the case of the Collateral Agent, in accordance with the applicable
Collateral Documents, such Agent shall be entitled to act or (where so instructed) refrain from
acting, or to exercise such power, discretion or authority, in accordance with such instructions.
Without prejudice to the generality of the foregoing, (i) each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any communication, instrument or document believed by it
to be genuine and correct and to have been signed or sent by the proper Person or Persons, and
shall be entitled to rely and shall be protected in relying on opinions and judgments of attorneys
(who may be attorneys for U.S. Holdings and its Subsidiaries), accountants, experts and other
professional advisors selected by it; and (ii) no Lender shall have any right of action whatsoever
against any Agent as a result of such Agent acting or (where so instructed) refraining from acting
hereunder or any of the other Credit Documents in accordance with the instructions of Requisite
Lenders (or such other Lenders as may be required to give such instructions under Section 10.5) or,
in the case of the Collateral Agent, in accordance with the applicable Collateral Documents.




          (c) Delegation of Duties. Administrative Agent may perform any and all of its duties
and exercise its rights and powers under this Agreement or under any other Credit Document by or
through any one or more sub-agents appointed by Administrative Agent. Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Affiliates. The exculpatory, indemnification and other provisions of this
Section 9.3 and of Section 9.6 shall apply to any the Affiliates of Administrative Agent and shall
apply to their respective activities in connection with the syndication of the credit facilities
provided for herein as well as activities as Administrative Agent. All of the rights, benefits, and
privileges (including the exculpatory and indemnification provisions) of this Section 9.3 and of
Section 9.6 shall apply to any such sub-agent and to the Affiliates of any such sub-agent, and
shall apply to their respective activities as sub-agent as if such sub-agent and Affiliates were
named herein. Notwithstanding anything herein to the contrary, with respect to each sub-agent
appointed by Administrative Agent, (i) such sub-agent shall be a third party beneficiary under this
Agreement with respect to all such rights, benefits and privileges (including exculpatory rights
and rights to indemnification) and shall have all of the rights and benefits of a third party
beneficiary, including an independent right of action to enforce such rights, benefits and
privileges (including exculpatory rights and rights to indemnification) directly, without the
consent or joinder of any other Person,
against any or all of the Credit Parties and the Lenders, (ii) such rights, benefits and
privileges (including exculpatory rights and rights to indemnification) shall not be modified or
amended without the consent of such sub-agent, and (iii) such sub-agent shall only have obligations
to Administrative Agent and







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not to any Credit Party, Lender or any other Person and no Credit Party, Lender or any other Person
shall have any rights, directly or indirectly, as a third party beneficiary or otherwise, against
such sub-agent.




     9.4. Agents Entitled to Act as Lender. The agency hereby created shall in no way impair or
affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its
individual capacity as a Lender hereunder. With respect to its participation in the Loans, each
Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same
as if it were not performing the duties and functions delegated to it hereunder, and the term
“Lender” shall, unless the context clearly otherwise indicates, include each Agent in its
individual capacity. Any Agent and its Affiliates may accept deposits from, lend money to, own
securities of, and generally engage in any kind of banking, trust, financial advisory or other
business with U.S. Holdings or any of its Affiliates as if it were not performing the duties
specified herein, and may accept fees and other consideration from Borrower for services in
connection herewith and otherwise without having to account for the same to Lenders.



     9.5. Lenders’ Representations, Warranties and Acknowledgment.



          (a) Each Lender represents and warrants that it has made its own independent investigation of
the financial condition and affairs of U.S. Holdings and its Subsidiaries in connection with Credit
Extensions hereunder and that it has made and shall continue to make its own appraisal of the
creditworthiness of U.S. Holdings and its Subsidiaries. No Agent shall have any duty or
responsibility, either initially or on a continuing basis, to make any such investigation or any
such appraisal on behalf of Lenders or to provide any Lender with any credit or other information
with respect thereto, whether coming into its possession before the making of the Loans or at any
time or times thereafter, and no Agent shall have any responsibility with respect to the accuracy
of or the completeness of any information provided to Lenders.




          (b) Each Lender, by delivering its signature page to this Agreement, an Assignment Agreement
or a Joinder Agreement and funding its Second Lien Term Loan, on the Closing Date or by the funding
of any New Term Loans, shall be deemed to have acknowledged receipt of, and consented to and
approved, each Credit Document and each other document required to be approved by any Agent,
Requisite Lenders or Lenders, as applicable on the Closing Date or as of the date of funding of
such New Term Loans.




          (c) Notwithstanding anything herein to the contrary, each Lender acknowledges that the lien
and security interest granted to the Collateral Agent, pursuant to the Pledge and Security
Agreement or other applicable Collateral Document and the exercise of any right or remedy by the
Collateral Agent thereunder are subject to the provisions of the Intercreditor Agreement and that
in the event of any conflict between the terms of the Intercreditor Agreement and such other
Collateral Document, the terms of the Intercreditor Agreement shall govern and control.




     9.6. Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify each Agent, to the extent that such Agent shall not have been reimbursed by any Credit
Party, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses (including counsel fees
and disbursements) or



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disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted
against such Agent in exercising its powers, rights and remedies or performing its duties hereunder
or under the other Credit Documents or otherwise in its capacity as such Agent in any way relating
to or arising out of this Agreement or the other Credit Documents; provided, no Lender
shall be liable for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross
negligence or willful misconduct as determined by a final judgment of a court of competent
jurisdiction. If any indemnity furnished to any Agent for any purpose shall, in the opinion of such
Agent, be insufficient or become impaired, such Agent may call for additional indemnity and cease,
or not commence, to do the acts indemnified against until such additional indemnity is furnished;
provided, in no event shall this sentence require any Lender to indemnify any Agent against
any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
disbursement in excess of such Lender’s Pro Rata Share thereof; and provided
further, this sentence shall not be deemed to require any Lender to indemnify any Agent
against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or
disbursement described in the proviso in the immediately preceding sentence.




     9.7. Successor Administrative Agent and Collateral Agent. Administrative Agent may resign at
any time by giving thirty days’ prior written notice thereof to Lenders and Borrower, and
Administrative Agent may be removed at any time with or without cause by an instrument or
concurrent instruments in writing delivered to Borrower and Administrative Agent and signed by
Requisite Lenders. Upon any such notice of resignation or any such removal, Requisite Lenders
shall have the right, upon five Business Days’ notice to Borrower, to appoint a successor
Administrative Agent. Upon the acceptance of any appointment as Administrative Agent hereunder by
a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the retiring or removed
Administrative Agent and the retiring or removed Administrative Agent shall promptly (i) transfer
to such successor Administrative Agent all sums, Securities and other items of Collateral held
under the Collateral Documents, together with all records and other documents necessary or
appropriate in connection with the performance of the duties of the successor Administrative Agent
under the Credit Documents, and (ii) execute and deliver to such successor Administrative Agent
such amendments to financing statements, and take such other actions, as may be necessary or
appropriate in connection with the assignment to such successor Administrative Agent of the
security interests created under the Collateral Documents, whereupon such retiring or removed
Administrative Agent shall be discharged from its duties and obligations hereunder. Except as
provided in the immediately preceding sentence, any resignation or removal of CapitalSource or its
successor as Administrative Agent pursuant to this Section shall also constitute the resignation or
removal of CapitalSource or its successor as Collateral Agent. After any retiring or removed
Administrative Agent’s resignation or removal hereunder as Administrative Agent, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent hereunder. Any successor Administrative Agent appointed pursuant
to this Section shall, upon its acceptance of such appointment, become the successor Collateral
Agent for all purposes hereunder. If CapitalSource or its successor as Administrative Agent
pursuant to this Section has resigned as Administrative Agent but retained its role as
Collateral Agent and no successor Collateral Agent has become the Collateral Agent pursuant to the
immediately preceding sentence, CapitalSource



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or its successor may resign as Collateral Agent upon notice to Borrower and the Requisite Lenders
at any time.




     9.8. Collateral Documents and Guaranty.



          (a) Agents under Collateral Documents and Guaranty. Each Secured Party hereby further
authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the
benefit of Secured Parties, (i) to be the agent for and representative of the Secured Parties with
respect to the Guaranty, the Collateral and the Collateral Documents, and (ii) to enter into the
Intercreditor Agreement and acknowledge its consent, as may be necessary under each applicable
foreign jurisdiction, to the granting of the Second Priority (as defined in the Second Lien Credit
Agreement) Lien pursuant to each of the Collateral Documents under and as defined in the Second
Lien Credit Agreement; provided that neither Administrative Agent nor Collateral Agent shall owe
any fiduciary duty, duty of loyalty, duty of care, duty of disclosure or any other obligation
whatsoever to any holder of Obligations with respect to any Hedge Agreement. Subject to Section
10.5, without further written consent or authorization from any Secured Party, Administrative Agent
or Collateral Agent, as applicable may execute any documents or instruments necessary to (i) in
connection with a sale or disposition of assets permitted by this Agreement, release any Lien
encumbering any item of Collateral that is the subject of such sale or other disposition of assets
or to which Requisite Lenders (or such other Lenders as may be required to give such consent under
Section 10.5) have otherwise consented or (ii) release any Guarantor from the Guaranty pursuant to
Section 7.12 or with respect to which Requisite Lenders (or such other Lenders as may be required
to give such consent under Section 10.5) have otherwise consented.




          (b) Right to Realize on Collateral and Enforce Guaranty. Anything contained in any of
the Credit Documents to the contrary notwithstanding, Borrower, Administrative Agent, Collateral
Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right
individually to realize upon any of the Collateral or to enforce the Guaranty, it being understood
and agreed that all powers, rights and remedies hereunder may be exercised solely by Administrative
Agent, on behalf of the Secured Parties in accordance with the terms hereof and all powers, rights
and remedies under the Collateral Documents may be exercised solely by Collateral Agent, and (ii)
in the event of a foreclosure by Collateral Agent on any of the Collateral pursuant to a public or
private sale or other disposition, Collateral Agent or any Lender may be the purchaser or licensor
of any or all of such Collateral at any such sale or other disposition and Collateral Agent, as
agent for and representative of Secured Parties (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall otherwise agree in writing) shall
be entitled, for the purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Collateral sold at any such public sale, to use and apply any of the
Obligations as a credit on account of the purchase price for any collateral payable by Collateral
Agent at such sale or other disposition.




          (c) Rights under Hedge Agreements. No Hedge Agreement will create (or be deemed to
create) in favor of any Lender Counterparty that is a party thereto any rights in connection with
the management or release of any Collateral or of the obligations of
any Guarantor under the Credit Documents except as expressly provided in Sections 2.16 and
10.5(c)(v) of this Agreement.






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     9.9. Withholding Tax. To the extent required by any applicable law, the Administrative Agent
may withhold from any interest payment to any Lender an amount equivalent to any applicable
withholding tax. If the Internal Revenue Service or any other Governmental Authority asserts a
claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the
account of any Lender because the appropriate form was not delivered or was not properly executed
or because such Lender failed to notify the Administrative Agent of a change in circumstance that
rendered the exemption from, or reduction of, withholding tax ineffective or for any other reason,
such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax or otherwise, including any penalties or interest
and together with all expenses (including legal expenses, allocated internal costs and
out-of-pocket expenses) incurred.




SECTION 10. MISCELLANEOUS




     10.1. Notices.



          (a) Notices Generally. Any notice or other communication herein required or permitted
to be given to a Credit Party, Syndication Agent, Collateral Agent or Administrative Agent, shall
be sent to such Person’s address as set forth on Appendix B or in the other relevant Credit
Document, and in the case of any Lender, the address as indicated on Appendix B or otherwise
indicated to Administrative Agent in writing. Except as otherwise set forth in paragraph (b)
below, each notice hereunder shall be in writing and may be personally served, telexed or sent by
telefacsimile or United States mail or courier service and shall be deemed to have been given when
delivered in person or by courier service and signed for against receipt thereof, upon receipt of
telefacsimile or telex, or three Business Days after depositing it in the United States mail with
postage prepaid and properly addressed; provided, no notice to any Agent shall be effective
until received by such Agent; provided further, any such notice or other
communication shall at the request of Administrative Agent be provided to any sub-agent appointed
pursuant to Section 9.3(c) hereto as designated by Administrative Agent from time to time.




          (b) Electronic Communications.





          (i) Notices and other communications to the Lenders hereunder may be delivered or
furnished by electronic communication (including e-mail and Internet or intranet websites,
including the Platform) pursuant to procedures approved by Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender pursuant to
Section 2 if such Lender has notified Administrative Agent that it is incapable of
receiving notices under such Section by electronic communication. Administrative Agent or
Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices or
communications. Unless Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the sender’s receipt
of an acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written



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acknowledgement), provided that if such notice or other communication is not sent during
the normal business hours of the recipient, such notice or communication shall be deemed to
have been sent at the opening of business on the next Business Day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.




          (ii) Each of the Credit Parties understands that the distribution of material through
an electronic medium is not necessarily secure and that there are confidentiality and other
risks associated with such distribution and agrees and assumes the risks associated with
such electronic distribution, except to the extent caused by the willful misconduct or
gross negligence of Administrative Agent.




          (iii) The Platform and any Approved Electronic Communications are provided “as is” and
“as available”. None of the Agents or any of their respective officers, directors,
employees, agents, advisors or representatives (the “Agent Affiliates”) warrant the
accuracy, adequacy, or completeness of the Approved Electronic Communications or the
Platform and each expressly disclaims liability for errors or omissions in the Platform and
the Approved Electronic Communications. No warranty of any kind, express, implied or
statutory, including any warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other code defects is
made by the Agent Affiliates in connection with the Platform or the Approved Electronic
Communications.




          (iv) Each of the Credit Parties, the Lenders, and the Agents agree that Administrative
Agent may, but shall not be obligated to, store any Approved Electronic Communications on
the Platform in accordance with Administrative Agent’s customary document retention
procedures and policies.



     10.2. Expenses. Whether or not the transactions contemplated hereby shall be consummated,
Borrower agrees to pay promptly (a) all reasonable costs and expenses actually incurred by the
Administrative Agent, Collateral Agent and the Syndication Agent in the preparation of the Credit
Documents and any consents, amendments, waivers or other modifications thereto; (b) all the costs
of furnishing all opinions by counsel for Borrower and the other Credit Parties; (c) the reasonable
fees, expenses and disbursements of counsel to Agents (in each case including documented allocated
costs of internal counsel) in connection with the negotiation, preparation, execution and
administration of the Credit Documents and any consents, amendments, waivers or other modifications
thereto and any other documents or matters requested by Borrower; (d) all reasonable costs and
expenses actually incurred in creating, perfecting and recording Liens in favor of Collateral
Agent, for the benefit of the Secured Parties, including filing, registration and recording fees,
expenses and taxes, stamp or documentary taxes, search fees, title insurance premiums, notarial and
translation costs and reasonable fees, expenses and disbursements of counsel to each Agent and of
counsel providing any opinions that any Agent or Requisite Lenders may request in respect of the
Collateral or
the Liens created pursuant to the Collateral Documents; (e) all reasonable costs and fees,
expenses and disbursements of any auditors, accountants, consultants or appraisers; (f) all
reasonable costs and expenses (including the



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reasonable fees, expenses and disbursements of any appraisers, consultants, advisors and agents
employed or retained by Collateral Agent and its counsel) in connection with the custody or
preservation of any of the Collateral; (g) all other actual and reasonable costs and expenses
incurred by each Agent in connection with the syndication of the Loans and Commitments and the
negotiation, preparation and execution of the Credit Documents and any consents, amendments,
waivers or other modifications thereto and the transactions contemplated thereby; and (h) after the
occurrence of a Default or an Event of Default, all costs and expenses, including reasonable
attorneys’ fees, notarial and translation costs (including allocated costs of internal counsel) and
costs of settlement, incurred by any Agent and Lenders in preserving or enforcing any Obligations
of or in collecting any payments due from any Credit Party hereunder or under the other Credit
Documents by reason of such Default or Event of Default (including in connection with the sale,
lease or license of, collection from, or other realization upon any of the Collateral or the
enforcement of the Guaranty) or in connection with any refinancing or restructuring of the credit
arrangements provided hereunder in the nature of a “work-out” or pursuant to any insolvency or
bankruptcy cases or proceedings.




     10.3. Indemnity.



          (a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the
transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject
to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and Lender and
the officers, partners, members, directors, trustees, advisors, employees, agents, sub-agents and
Affiliates of each Agent and each Lender (each, an “Indemnitee”), from and against any and all
Indemnified Liabilities; provided, no Credit Party shall have any obligation to any Indemnitee
hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities
arise from the gross negligence or willful misconduct of that Indemnitee or its officers, partners,
members, directors, trustees, advisors, employees, agents, sub-agents and Affiliates of each Agent
and each Lender as determined by a final judgment of a court of competent jurisdiction. To the
extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section
10.3 may be unenforceable in whole or in part because they are violative of any law or public
policy, the applicable Credit Party shall contribute the maximum portion that it is permitted to
pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.




          (b) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit
Party hereby waives, any claim against each Lender, each Agent and their respective Affiliates,
directors, employees, attorneys, agents or sub-agents, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or
not the claim therefor is based on contract, tort or duty imposed by any applicable legal
requirement) arising out of, in connection with, arising out of, as a result of, or in any way
related to, this Agreement or any Credit Document or any agreement or instrument contemplated
hereby or thereby or referred to herein or therein, the transactions contemplated hereby or
thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in
connection therewith, and U.S. Holdings and Borrower hereby waives, releases and agrees not to sue
upon any
such claim or any such damages, whether or not accrued and whether or not known or suspected
to exist in its favor.








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     10.4. Set-Off. Subject to the terms of the Intercreditor Agreement, in addition to any rights
now or hereafter granted under applicable law and not by way of limitation of any such rights, upon
the occurrence of any Event of Default each Lender is hereby authorized by each Credit Party at any
time or from time to time subject to the consent of Administrative Agent (such consent not to be
unreasonably withheld or delayed), without notice to any Credit Party or to any other Person (other
than Administrative Agent), any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special, including Indebtedness evidenced
by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any
other Indebtedness at any time held or owing by such Lender to or for the credit or the account of
any Credit Party against and on account of the obligations and liabilities of any Credit Party to
such Lender hereunder, and under the other Credit Documents, including all claims of any nature or
description arising out of or connected hereto, or with any other Credit Document, irrespective of
whether or not (a) such Lender shall have made any demand hereunder or (b) the principal of or the
interest on the Loans or any other amounts due hereunder shall have become due and payable pursuant
to Section 2 and although such obligations and liabilities, or any of them, may be contingent or
unmatured.



     10.5. Amendments and Waivers.



          (a) Requisite Lenders’ Consent. Subject to the additional requirements of Sections
10.5(b) and 10.5(c), no amendment, modification, termination or waiver of any provision of the
Credit Documents, or consent to any departure by any Credit Party therefrom, shall in any event be
effective without the written concurrence of the Requisite Lenders; provided that Administrative
Agent may, with the consent of Borrower only, amend, modify or supplement this Agreement to cure
any ambiguity, omission, defect or inconsistency, so long as such amendment, modification or
supplement does not adversely affect the rights of any Lender.




          (b) Affected Lenders’ Consent. Without the written consent of each Lender that would
be affected thereby, no amendment, modification, termination, or consent shall be effective if the
effect thereof would:





          (i) extend the scheduled final maturity of any Loan or Note;




          (ii) reduce the rate of interest or premium on any Loan (other than any waiver of any
increase in the interest rate applicable to any Loan pursuant to Section 2.10) or any fee
or any premium payable hereunder;




          (iii) extend the time for payment of any such interest or fees;




          (iv) reduce the principal amount of any Loan;




          (v) amend, modify, terminate or waive any provision of this Section 10.5(b), Section
10.5(c) or any other provision of this Agreement that expressly provides that the consent
of all Lenders is required;




          (vi) amend the definition of “Requisite Lenders” or “Pro Rata Share”; provided, with
the consent of Requisite Lenders, additional extensions of
credit pursuant hereto may be included in the determination of “Requisite Lenders” or
“Pro Rata



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Share” on substantially the same basis as the Commitment and the Loans are included on the
Closing Date;




          (vii) release all or substantially all of the Collateral or all or substantially all
of the Guarantors from the Guaranty except as expressly provided in the Credit Documents;
or




          (viii) consent to the assignment or transfer by any Credit Party of any of its rights
and obligations under any Credit Document.


     (c) Other Consents. No amendment, modification, termination or waiver of any provision of the
Credit Documents, or consent to any departure by any Credit Party therefrom, shall:





          (i) alter the required application of any repayments or prepayments as between Classes
pursuant to Section 2.15 and Section 2.16(g), without the consent of Lenders holding more
than 50% of the aggregate Second Lien Term Loan Exposure of all Lenders or New Term Loan
Exposure of all Lenders, as applicable, of each Class which is being allocated a lesser
repayment or prepayment as a result thereof; provided, Requisite Lenders may waive, in
whole or in part, any prepayment so long as the application, as between Classes, of any
portion of such prepayment which is still required to be made is not altered;




          (ii) amend, modify or waive this Agreement, the Pledge and Security Agreement or
another Collateral Document so as to alter the ratable treatment of Obligations arising
under the Credit Documents and Obligations arising under Hedge Agreements or the definition
of “Lender Counterparty,” “Hedge Agreement,” “Obligations,” or “Secured Obligations” in
each case in a manner adverse to any Lender Counterparty with Obligations then outstanding
without the written consent of any such Lender Counterparty; or




          (iii) amend, modify, terminate or waive any provision of Section 9 as the same applies
to any Agent, or any other provision hereof as the same applies to the rights or
obligations of any Agent, in each case without the consent of such Agent.



          (d) Execution of Amendments, etc. Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 10.5 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by a Credit Party, on such Credit Party.




     10.6. Successors and Assigns; Participations.



          (a) Generally. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties hereto and the








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successors and assigns of Lenders. No Credit Party’s rights or obligations hereunder nor any
interest therein may be assigned or delegated by any Credit Party without the prior written consent
of all Lenders. Nothing in this Agreement, expressed or implied, shall be construed to confer upon
any Person (other than the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, Affiliates of each of the Agents and Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.




          (b) Register. Borrower, Administrative Agent and Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any
such Commitment or Loan shall be effective, in each case, unless and until recorded in the Register
following receipt of an Assignment Agreement effecting the assignment or transfer thereof, in each
case, as provided in Section 10.6(d). Each assignment shall be recorded in the Register on the
Business Day the Assignment Agreement is received by Administrative Agent, if received by 12:00
noon New York time, and on the following Business Day if received after such time, prompt notice
thereof shall be provided to Borrower and a copy of such Assignment Agreement shall be maintained,
as applicable. The date of such recordation of a transfer shall be referred to herein as the
”Assignment Effective Date.” Any request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is listed in the Register as a Lender
shall be conclusive and binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans.




          (c) Right to Assign. Each Lender shall have the right at any time to sell, assign or
transfer all or a portion of its rights and obligations under this Agreement, including all or a
portion of its Commitment or Loans owing to it or other Obligations (provided,
however, that pro rata assignments shall not be required and each assignment shall be of a
uniform, and not varying, percentage of all rights and obligations under and in respect of any
applicable Loan and any related Commitments):





          (i) to any Person meeting the criteria of clause (i) of the definition of the term of
“Eligible Assignee” upon the giving of notice to Borrower and Administrative Agent; and




          (ii) to any Person meeting the criteria of clause (ii) of the definition of the term
of “Eligible Assignee” upon giving of notice to Borrower and Administrative Agent and to
any such Person (except in the case of assignments made by or to GSCP), consented to by
Administrative Agent (such consent not to be (x) unreasonably withheld or delayed, or (y)
in connection with primary syndication); provided, further each such
assignment pursuant to this Section 10.6(c)(ii) (treating contemporaneous assignments by or
to Related Funds as one assignment for such purposes) shall be in an aggregate amount of
not less than $1,000,000 (or such lesser amount as may be agreed to by Borrower and
Administrative Agent or as shall constitute the aggregate amount of the Second Lien Term
Loan or New Term Loans of the assigning Lender) with respect to the assignment of Loans.



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          (d) Mechanics. Assignments of Term Loans by Lenders may be made with a manually
executed Assignment Agreement and delivery to Administrative Agent of such Assignment Agreement
together with a processing and recordation fee of $3,500 (other than as agreed by Administrative
Agent and calculated by treating contemporaneous assignments by or to Related Funds as one
assignment for such purposes), payable to the Administrative Agent. Assignments made pursuant to
the foregoing provision shall be effective as of the Assignment Effective Date. In connection with
all assignments there shall be delivered to Administrative Agent such forms, certificates or other
evidence, if any, with respect to United States federal income tax withholding matters as the
assignee under such Assignment Agreement may be required to deliver pursuant to Section 2.20(d).




          (e) Representations and Warranties of Assignee. Each Lender, upon execution and
delivery hereof or upon succeeding to an interest in the Commitments and Loans, as the case may be,
represents and warrants as of the Closing Date or as of the Assignment Effective Date that (i) it
is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in
commitments or loans such as the applicable Commitments or Loans, as the case may be; and (iii) it
will make or invest in, as the case may be, its Commitments or Loans for its own account in the
ordinary course and without a view to distribution of such Commitments or Loans within the meaning
of the Securities Act or the Exchange Act or other federal securities laws (it being understood
that, subject to the provisions of this Section 10.6, the disposition of such Commitments or Loans
or any interests therein shall at all times remain within its exclusive control).




          (f) Effect of Assignment. Subject to the terms and conditions of this Section 10.6,
as of the “Assignment Effective Date” (i) the assignee thereunder shall have the rights and
obligations of a “Lender” hereunder to the extent of its interest in the Loans and Commitments as
reflected in the Register and shall thereafter be a party hereto and a “Lender” for all purposes
hereof; (ii) the assigning Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned to the assignee, relinquish its rights (other than any rights which
survive the termination hereof under Section 10.8) and be released from its obligations hereunder
(and, in the case of an assignment covering all or the remaining portion of an assigning Lender’s
rights and obligations hereunder, such Lender shall cease to be a party hereto on the Assignment
Effective Date; provided, anything contained in any of the Credit Documents to the contrary
notwithstanding, such assigning Lender shall continue to be entitled to the benefit of all
indemnities hereunder as specified herein with respect to matters arising out of the prior
involvement of such assigning Lender as a Lender hereunder); (iii) the Commitments shall be
modified to reflect any Commitment of such assignee and any Commitment of such assigning Lender, if
any; and (iv) if any such assignment occurs after the issuance of any Note hereunder, the assigning
Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable,
surrender its applicable Notes to Administrative Agent for cancellation, and thereupon the Borrower
shall issue and deliver new Notes, if so requested by the assignee and/or assigning Lender, to such
assignee and/or to such assigning Lender, with appropriate insertions, to reflect the outstanding
Loans of the assignee and/or the assigning Lender.




          (g) Participations.






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          (i) Each Lender shall have the right at any time to sell one or more participations to
any Person (other than U.S. Holdings, any of its Subsidiaries or any of its Affiliates) in
all or any part of its Commitments, Loans or in any other Obligation.




          (ii) The holder of any such participation, other than an Affiliate of the Lender
granting such participation, shall not be entitled to require such Lender to take or omit
to take any action hereunder except with respect to any amendment, modification or waiver
that would (A) extend the final scheduled maturity of any Loan or Note in which such
participant is participating, or reduce the rate or extend the time of payment of interest
or fees thereon (except in connection with a waiver of applicability of any post-default
increase in interest rates) or reduce the principal amount thereof, or increase the amount
of the participant’s participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory reduction in
the Commitment shall not constitute a change in the terms of such participation, and that
an increase in any Commitment or Loan shall be permitted without the consent of any
participant if the participant’s participation is not increased as a result thereof), (B)
consent to the assignment or transfer by any Credit Party of any of its rights and
obligations under this Agreement or (C) release all or substantially all of the Collateral
under the Collateral Documents (except as expressly provided in the Credit Documents)
supporting the Loans hereunder in which such participant is participating.




          (iii) Borrower agrees that each participant shall be entitled to the benefits of
Sections 2.18(c), 2.19 and 2.20 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to paragraph (c) of this Section; provided, (x)
a participant shall not be entitled to receive any greater payment under Section 2.19 or
2.20 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such participant, unless the sale of the participation to such
participant is made with Borrower’s prior written consent and (y) a participant that would
be a Non-U.S. Lender to the Term Loans of the Borrower if it were a Lender shall not be
entitled to the benefits of Section 2.20 unless each Borrower is notified of the
participation sold to such participant and such participant agrees, for the benefit of
Borrower, to comply with Section 2.20 as though it were a Lender; provided
further that, except as specifically set forth in clauses (x) and (y) of this
sentence, nothing herein shall require any notice to Borrower or any other Person in
connection with the sale of any participation. To the extent permitted by law, each
participant also shall be entitled to the benefits of Section 10.4 as though it were a
Lender, provided such participant agrees to be subject to Section 2.17 as though it were a
Lender.



          (h) Certain Other Assignments and Participations. In addition to any other assignment
or participation permitted pursuant to this Section 10.6 any Lender may assign and/or pledge all or
any portion of its Loans, the other Obligations owed by or to such Lender, and its Notes, if any,
to secure obligations of such Lender including any Federal Reserve Bank as collateral security
pursuant to Regulation A of the Board of Governors and any operating circular issued by such
Federal Reserve Bank; provided,
that no Lender, as between Borrower and such Lender, shall be relieved of any of its
obligations hereunder as a result of any such assignment and pledge, and provided
further, that in no event shall the applicable Federal Reserve Bank,








103









 







pledgee or trustee, be considered to be a “Lender” or be entitled to require the assigning Lender
to take or omit to take any action hereunder.




     10.7. Independence of Covenants. All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such covenants, the fact that
it would be permitted by an exception to, or would otherwise be within the limitations of, another
covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken
or condition exists.



     10.8. Survival of Representations, Warranties and Agreements. All representations, warranties
and agreements made herein shall survive the execution and delivery hereof and the making of any
Credit Extension. Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.18(c), 2.19, 2.20, 10.2, 10.3 and 10.4 and
the agreements of Lenders set forth in Sections 2.17, 9.3(b) and 9.6 shall survive the payment of
the Loans, and the termination hereof.



     10.9. No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any
Lender in the exercise of any power, right or privilege hereunder or under any other Credit
Document shall impair such power, right or privilege or be construed to be a waiver of any default
or acquiescence therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power, right or privilege.
The rights, powers and remedies given to each Agent and each Lender hereby are cumulative and shall
be in addition to and independent of all rights, powers and remedies existing by virtue of any
statute or rule of law or in any of the other Credit Documents or any of the Hedge Agreements. Any
forbearance or failure to exercise, and any delay in exercising, any right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof,
nor shall it preclude the further exercise of any such right, power or remedy.



     10.10. Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any
obligation to marshal any assets in favor of any Credit Party or any other Person or against or in
payment of any or all of the Obligations. To the extent that any Credit Party makes a payment or
payments to Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or
any Agent or Lenders enforce any security interests or exercise their rights of setoff, and such
payment or payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to
be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or
federal law, common law or any equitable cause, then, to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor or related thereto, shall be revived and continued in full force and effect as if such
payment or payments had not been made or such enforcement or setoff had not occurred.



     10.11. Severability. In case any provision in or obligation hereunder or under any other
Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.



104









 





     10.12. Obligations Several; Independent Nature of Lenders’ Rights. The obligations of Lenders
hereunder are several and no Lender shall be responsible for the obligations or Commitment of any
other Lender hereunder. Nothing contained herein or in any other Credit Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as 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, and each Lender shall
be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for
any other Lender to be joined as an additional party in any proceeding for such purpose.



     10.13. Headings. Section headings herein are included herein for convenience of reference
only and shall not constitute a part hereof for any other purpose or be given any substantive
effect.



     10.14. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.



     10.15. CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY CREDIT PARTY
ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, SHALL BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF
NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS
ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C)
ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT; AND (E) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER
JURISDICTION.



     10.16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY
OF THE OTHER CREDIT DOCUMENTS OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN



105









 




TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES
THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS
ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY
ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS
THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A
MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.




     10.17. Confidentiality. Each Agent, and each Lender shall hold all non-public information
regarding Holdings and its Subsidiaries and their businesses identified as such by Holdings and its
Subsidiaries and obtained by such Lender pursuant to the requirements hereof in accordance with
such Lender’s customary procedures for handling confidential information of such nature and in any
case with at least the same degree of care used in maintaining the confidentiality of its own
confidential information, it being understood and agreed by Borrower that, in any event, each Agent
and each Lender may make (i) disclosures of such information to Affiliates of such Lender or Agent
and to their respective agents and advisors (and to other Persons authorized by a Lender or Agent
to organize, present or disseminate such information in connection with disclosures otherwise made
in accordance with this Section 10.17), (ii) disclosures of such information reasonably required by
any pledgee under Section 10.6(h) or any bona fide or potential assignee, transferee or participant
in connection with the contemplated assignment, transfer or participation of any Loans or any
participations therein or by any direct or indirect contractual counterparties (or the professional
advisors thereto) to any swap or derivative transaction relating to Borrower and its obligations
(provided, such assignees, transferees, participants, counterparties and advisors are advised of
and agree to be bound by either the provisions of this Section 10.17 or other provisions at least
as restrictive as this Section 10.17), (iii) disclosure to any rating agency when required by it,
provided that, prior to any disclosure, such rating agency shall undertake in writing to
preserve the confidentiality of any confidential information relating to the Credit Parties
received by it from any of the Agents or any Lender, and (iv) disclosures required or
requested by any governmental agency or representative thereof or by the NAIC or pursuant to legal
or judicial process; provided, unless specifically prohibited by applicable law or court
order, each Lender and each Agent shall make



106









 




reasonable efforts to notify Borrower of any request by any governmental agency or representative
thereof (other than any such request in connection with any examination of the financial condition
or other routine examination of such Lender by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information. In addition, each Agent and each
Lender may disclose the existence of this Agreement and the information about this Agreement to
market data collectors, similar services providers to the lending industry, and service providers
to the Agents and the Lenders in connection with the administration and management of this
Agreement and the other Credit Documents. Notwithstanding anything to the contrary set forth
herein, each party (and each of their respective employees, representatives or other agents) may
disclose to any and all persons without limitation of any kind, the tax treatment and tax structure
of the transactions contemplated by this Agreement and all materials of any kind (including
opinions and other tax analyses) that are provided to any such party relating to such tax treatment
and tax structure. However, any information relating to the tax treatment or tax structure shall
remain subject to the confidentiality provisions hereof (and the foregoing sentence shall not
apply) to the extent reasonably necessary to enable the parties hereto, their respective
Affiliates, and their and their respective Affiliates’ directors and employees to comply with
applicable securities laws. For this purpose, “tax structure” means any facts relevant to the
federal income tax treatment of the transactions contemplated by this Agreement but does not
include information relating to the identity of any of the parties hereto or any of their
respective Affiliates.




     10.18. Usury Savings Clause. Notwithstanding any other provision herein, the aggregate
interest rate charged with respect to any of the Obligations, including all charges or fees in
connection therewith deemed in the nature of interest under applicable law shall not exceed the
Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence)
under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the
Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due hereunder if the
stated rates of interest set forth in this Agreement had at all times been in effect. In addition,
if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into
account the increase provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement had at all times
been in effect, then to the extent permitted by law, Borrower shall pay to Administrative Agent an
amount equal to the difference between the amount of interest paid and the amount of interest which
would have been paid if the Highest Lawful Rate had at all times been in effect. Notwithstanding
the foregoing, it is the intention of Lenders and Borrower to conform strictly to any applicable
usury laws. Accordingly, if any Lender contracts for, charges, or receives any consideration which
constitutes interest in excess of the Highest Lawful Rate, then any such excess shall be cancelled
automatically and, if previously paid, shall at such Lender’s option be applied to the outstanding
amount of the Loans made hereunder or be refunded to Borrower.



     10.19. Counterparts. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.



107









 





     10.20. Effectiveness. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Borrower and Administrative Agent
of written or telephonic notification of such execution and authorization of delivery thereof.



     10.21. Patriot Act. Each Lender and Administrative Agent (for itself and not on behalf of any
Lender) hereby notifies Borrower that pursuant to the requirements of the PATRIOT Act, it is
required to obtain, verify and record information that identifies Borrower, which information
includes the name and address of Borrower and other information that will allow such Lender or
Administrative Agent, as applicable, to identify Borrower in accordance with the PATRIOT Act.



     10.22. Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and
words of like import in any Assignment Agreement shall be deemed to include electronic signatures
or the keeping of records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.



     10.23. [Reserved]



     10.24. Release on Payment in Full. Lenders shall, upon the written request and at the expense
of Borrower, upon the termination of all Commitments, the payment in full of all Obligations,
release the Liens of the Credit Documents if not theretofore released. Lenders shall, at the
Borrower’s request and at no cost to Lenders, reasonably cooperate with Borrower in assigning the
Notes and Mortgages (without recourse) at payoff and will execute all documents reasonably
necessary to evidence the discharge or such assignment of the Obligations.



[Remainder of page intentionally left blank]





108












 




     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date first written
above.


	 	 	 	 	 
	 	THE BORROWER:


AZ CHEM US INC.
 	 
	 	By:  	/s/ Gianpiero Lenza 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	THE GUARANTORS:



AZ CHEM US HOLDINGS INC.
 	 
	 	By:  	/s/ Gianpiero Lenza 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ARIZONA CHEMICAL COMPANY
 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ARIZONA ARBORIS, INC.
 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Second Lien Credit and Guaranty Agreement


 








 









     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered
by their respective officers thereunto duly authorized as of the date first written above.



	 	 	 	 	 
	 	THE BORROWER:



AZ CHEM US INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	THE GUARANTORS:





AZ CHEM US HOLDINGS INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ARIZONA CHEMICAL COMPANY

 	 
	 	By:  	/s/ GERALD C. MARTERER
 	 
	 	 	Name:  	GERALD C. MARTERER 	 
	 	 	Title:  	PRESIDENT 	 
	 
	 	ARIZONA ARBORIS, INC.

 	 
	 	By:  	/s/ GERALD C. MARTERER
 	 
	 	 	Name:  	GERALD C. MARTERER 	 
	 	 	Title:  	PRESIDENT 	 
	 



Second Lien Credit and Guaranty Agreement





 









 








	 	 	 	 	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Syndication Agent and a Lender

 	 
	 	By:  	/s/
[illegible]
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



Second Lien Credit Agreement





 









 








	 	 	 	 	 
	 	CAPITALSOURCE FINANCE LLC,

as Administrative Agent and Collateral Agent

 	 
	 	By:  	/s/ Keith D. Reuben
 	 
	 	 	Name:  	Keith D. Reuben 	 
	 	 	Title:  	President - Healthcare & Specialty Finance 	 
	 



Second Lien Credit and Guaranty Agreement





 









 








APPENDIX A

TO SECOND LIEN CREDIT AND GUARANTY AGREEMENT




Commitments




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Pro
	Lender	 	Commitment	 	Rata Share
	Goldman Sachs Credit Partners L.P
	 	$	125,000,000.00	 	 	 	100	%
	Total
	 	$	125,000,000.00	 	 	 	100	%






APPENDIX A-1









 






APPENDIX B

TO SECOND LIEN CREDIT AND GUARANTY AGREEMENT




Notice Addresses



AZ CHEM US INC.

AZ CHEM US HOLDINGS INC.

ARIZONA CHEMICAL COMPANY

ARIZONA ARBORIS, INC.



c/o Rhône Capital LLC

5 Prince Gate

3rd Floor

Knightsbridge

London SW7 1QJ

Attention: Gianpiero Lenza

Facsimile: +44 207 761 1111



in each case, with a copy to:



Rhône Capital LLC

630 Fifth Avenue

27th Floor

New York, NY 10111

Attention: Andrew Oliver

Facsimile: (212) 218-6789



Arizona Chemical Company

Building 100

4600 Touchton Road E., Suite 1500

Jacksonville, FL 32246

Attention: Charles E. Nelson/Glenda Haynes

Facsimile: (904) 928-8771





B-1









 







GOLDMAN
SACHS CREDIT PARTNERS L.P.,

As Lender:



Goldman Sachs Credit Partners L.P.

c/o Goldman, Sachs & Co.

30 Hudson Street, 17th Floor

Jersey City, NJ 07302

Attention: Pedro Ramirez and Andrew Caditz

Telecopier: (212) 428-1243

Email and for delivery of final financial statements for posting: gsd.link@gs.com



with a copy to:



Goldman Sachs Credit Partners L.P.

1 New York Plaza

New York, New York 10004

Attention: Elizabeth Fischer and Rob Schatzman

Telecopier: (212) 902-3000




B-2









 







CAPITALSOURCE FINANCE LLC,

as Administrative Agent, Collateral Agent,



CapitalSource Finance LLC

4445 Willard Avenue, 12th Floor

Chevy Chase, MD 20815

Attention: Special Investments Group, Portfolio Manager

Telephone: 301-841-2700

Fax: 301-841-2340





B-3











 





Schedule 4.1




Jurisdictions of Organization and Qualification



	 	 	 	 	 
	Entity	 	Jurisdiction of Organization	 	Qualification
	AZ Chem US Holdings Inc.

	 	Delaware
	 	N/A
	 
	 	 	 	 
	AZ Chem US Inc.

	 	Delaware
	 	N/A
	 
	 	 	 	 
	Arizona Chemical Company

	 	Delaware
	 	Florida, Georgia,

Louisiana,

Massachusetts,
 New
Jersey, Ohio
	 
	 	 	 	 
	Arizona Arboris, Inc.

	 	Delaware
	 	Georgia






1









 





Schedule 4.2




Interests



	 	 	 	 	 
	Party	 	Direct Subsidiary	 	Percentage of Share Owned
	AZ Chem US Holdings Inc.

	 	AZ Chem US Inc.
	 	100% 
	 
	 	 	 	 
	AZ Chem US Inc.

	 	Arizona Chemical Company
	 	100% 
	 
	 	 	 	 
	Arizona Chemical Company

	 	Arizona Chemical Company, S.

de R.L. De C.V.
	 	99.67% of value of Class I

100% of value of Class II
	 
	 	 	 	 
	 

	 	Arizona Chemical Asia Limited

- Hong Kong
	 	100% 
	 
	 	 	 	 
	 

	 	Arizona Arboris, Inc.
	 	100% 
	 
	 	 	 	 
	Arizona Arboris, Inc

	 	Arboris, LLC
	 	10% 
	 
	 	 	 	 
	Arizona Chemical Asia Limited

- Hong Kong

	 	Arizona Chemical Asia, Ltd -

Singapore
	 	100% 






2









 





Schedule 4.12




Real Estate Assets


4.12 (a)




               None.


4.12 (b)





	1.	 	Arizona Chemical Company (“ACC”) — 8.367 acre parcel of land, together with the improvements
thereon, in the City of Savannah, Chatham County, Georgia. There is a Master Ground Lease,
dated as of July 30, 2002, between ACC and Arizona Arboris, Inc. covering a portion of the
parcel owned by ACC. The premises covered by the Master Ground Lease are the subject of a
Ground Lease, dated as of July 30, 2002, between Arizona Arboris, Inc. and Arboris, LLC.
	 
	2.	 	ACC — two parcels of land in the City of Savannah, Chatham County, Georgia.
	 
	3.	 	ACC — four parcels of land in the City of Port St. Joe, Gulf County, Florida.
	 
	4.	 	ACC — twenty three parcels of land in Bay County, Florida.
	 
	5.	 	ACC — a 7.03 acre parcel, a 26.9 acre parcel, a 2.319 acre parcel and a 0.8016 acre parcel, each
with the improvements thereon, in the City of Valdosta, Lowndes County, Georgia.
	 
	6.	 	ACC — two parcels of land in the City of Dover, Tuscarawas County, Ohio.
	 
	7.	 	ACC — three parcels of land, together with the improvements thereon, in the
Township of Goshen, Tuscarawas County, Ohio.
	 
	8.	 	ACC — a 19.77 acre parcel of land, together with the improvements thereon, in the City
of Pensacola, Escambia County, Florida.
	 
	9.	 	ACC — the acidulation plant located on the Leased Premises in Savannah, Georgia.





3









 






	10.	 	ACC — In connection with the sale of ACC, prior to Closing, International Paper will be
transferring to ACC (i) an approximately 12 acre parcel of land in the City of Savannah, Chatham
County, Georgia and (ii) a 2.49 acre parcel of land in the City of Savannah, Chatham County,
Georgia.





Leased Real Property





	1.	 	Office Lease Agreement between Gran Central Corp. and ACC, dated July 7, 1999, and
Second Amendment thereto, dated June 5, 2000, and Third Amendment thereto, dated August 28,
2000, and Fourth Amendment thereto, dated March 3, 2004, covering space at 4600 Touchton Road
East, Jacksonville, Florida. See also that certain Memorandum of Lease Commencement and
Amendment Agreement, dated as of November 15, 2000, between Flagler Development Company. (fka
Gran Central Corp.).
	 
	2.	 	Lease Agreement between Jacksonville Concourse, Ltd. and Union Camp Corp., covering space at
5220 Belfort Road, Jacksonville, Florida, dated March 6, 1998. On or about May 1, 1999, Union
Camp Corp. was merged into IP and the aforesaid Lease Agreement was assigned by IP to ACC. By
that certain Sublease, dated July 20, 2000, ACC subleased the premises covered by the aforesaid
Lease Agreement to Lumbermens Mutual Casualty Company. By that certain Assignment and
Assumption of Lease, dated June, 2002, Lumbermens Mutual Casualty
Company assigned the
aforesaid Sublease to Trinity Universal Insurance Company.
	 
	3.	 	Office Service Agreement between Brickell Avenue
d/b/a/ VANTAS and ACC covering space at 1221 Brickell Avenue,
Miami, Florida, dated October 13, 1999.
	 
	4.	 	Lease between Reichhold Chemicals, Inc. and ACC covering 31.51 acres of land, together with
the improvements thereon, in the City of Pensacola, Escambia County, Florida, dated as of
September 19, 1989.
	 
	5.	 	Marianna Warehouse Services Agreement between ACC and WJW Associates, Ltd., dated December 1,
2005, and Addendum 2 thereto, dated April 26, 2006, and Addendum 3 thereto, dated October 5,
2006.
	 
	6.	 	Lease Agreement, dated March 23, 1979, between SWF Gulf Coast, Inc. and ACC for certain
parcels of land in Panama City, F1.




4









 











Schedule 4.15




Material Contracts




	1.	 	Reference Rebate Agreement within the 2006 Supply & Rebate Agreement between ACC and National
Starch and Chemical Company (Buyer), dated July 17, 2006.
	 
	2.	 	Supply Agreement between ACC and Elmis Paint Corp. (“Buyer”), dated February 16, 2006.
	 
	3.	 	Americas Sales Contract and Rebate Agreement between ACC and Bostik Inc., (“Buyer”),
dated June 8, 2005.
	 
	4.	 	Supply Contract between ACC and Bostik Inc. (“Buyer”), dated September 10, 2005.
	 
	5.	 	Quad Graphics Rebate Agreement between ACC and Chemical Research/Technology, dated January
18, 2006.
	 
	6.	 	Global Tackifier Resin Supply Contract & Rebate
Agreement between ACC and H. B. Fuller Company
(“Buyer”), dated May 15, 2005.
	 
	7.	 	Hot Melt Polyamides (HMPA) Manufacturing Agreement between
ACC and H. B. Fuller (based on
intellectual property obtained from H. B. Fuller by ACC for purposes of “toll” manufacture
originally), dated May 2, 2005.





5









 





Schedule 4.19




Employee Benefit Plans



None




6









 





Schedule 5.11




Mortgaged Properties



	 	 	 	 	 	 	 	 	 
	City	 	Owner	 	Description	 	Location	 	State/Country
	Panama City

	 	Arizona Chemical
	 	Panama City

Plant
	 	South End of

Everett Street
	 	FL
	 
	 	 	 	 	 	 	 	 
	Dover

	 	Arizona Chemical
	 	Dover Plant
	 	875 Harger Street
	 	OH
	 
	 	 	 	 	 	 	 	 
	Savannah

	 	Arizona Chemical
	 	Savannah Plant
	 	West Lathrop

Avenue
	 	GA






7









 





Schedule 6.1 Indebtedness




None.




8









 








Schedule 6.2 Liens




None.




9









 








Schedule 6.5 Restrictions on Subsidiary Distributions




None.




10









 








Schedule 6.6 Investments




None.




11









 








Schedule 6.11 Affiliate Transactions




None.




12












 





EXHIBIT A-1 TO

SECOND LIEN CREDIT AND GUARANTY AGREEMENT




FUNDING NOTICE




     Reference is made to the Second Lien Credit and Guaranty Agreement, dated as of February 28,
2007 (as it may be amended, supplemented or otherwise modified, the “Credit Agreement”; the terms
defined therein and not otherwise defined herein being used herein as therein defined), by and
among AZ CHEM US INC., a Delaware corporation (“Borrower”), AZ CHEM US HOLDINGS INC., a Delaware
corporation (“U.S. Holdings”), certain Subsidiaries of U.S. Holdings, as Guarantors, the Lenders
party thereto from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P., as Syndication Agent, and
CAPITALSOURCE FINANCE LLC, as Administrative Agent and Collateral Agent.



     Pursuant to Section 2.1 of the Credit Agreement, Borrower desires that Lenders make the
following Loans to Borrower in accordance with the applicable terms and conditions of the Credit
Agreement on February 28, 2007 (the “Credit Date”):



	 	 	 	 	 

	Loans:	 	 
	 
	 	 	 	 
	X

	 	Base Rate Loans:
	 	$[125,000,000]
	 
	 	 	 	 
	o

	 	Eurodollar Rate Loans, with an initial Interest Period
of                      month(s):	 	 
	 

	 	 	 	$[     ,     ,     ]






     Borrower hereby certifies that:




     (i) as of the Credit Date, the representations and warranties contained in
each of the Credit Documents are true, correct and complete in all material respects on and as
of such Credit Date to the same extent as though made on and as of such date, except to the
extent such representations and warranties specifically relate to an earlier date, in which case
such representations and warranties are true, correct and complete in all material respects on
and as of such earlier date; and




     (ii) as of the Credit Date, no event has occurred and is continuing or would
result from the consummation of the borrowing contemplated hereby that would constitute an Event
of Default or a Default.



	 	 	 	 	 
	Date: February 28, 2007     	AZ CHEM US INC.


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT A-1-1









 





EXHIBIT A-2 TO

SECOND LIEN CREDIT AND GUARANTY AGREEMENT




CONVERSION/CONTINUATION NOTICE





     Reference is made to the Second Lien Credit and Guaranty Agreement, dated as of February 28,
2007 (as it may be amended, supplemented or otherwise modified, the “Credit Agreement”; the terms
defined therein and not otherwise defined herein being used herein as therein defined), by and
among AZ CHEM US INC., a Delaware corporation (“Borrower”), AZ CHEM US HOLDINGS INC., a Delaware
corporation (“U.S. Holdings”), certain Subsidiaries of U.S. Holdings, as Guarantors, the Lenders
party thereto from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P., as Syndication Agent, and
CAPITALSOURCE FINANCE LLC, as Administrative Agent and Collateral Agent.



     Pursuant to Section 2.9 of the Credit Agreement, Borrower desires to convert or to
continue the following Loans, each such conversion and/or continuation to be effective as of
[mm/dd/yy]:



	 	 	 

	$[     ,     ,     ]

	 	Eurodollar Rate Loans to be continued with Interest Period of [     ] month(s)
	 
	 	 
	$[     ,     ,     ]

	 	Base Rate Loans to be converted to Eurodollar Rate Loans with Interest
Period of [     ] month(s)
	 
	 	 
	$[     ,     ,     ]

	 	Eurodollar Rate Loans to be converted to Base Rate Loans






     Borrower hereby certifies that as of the date hereof, no event has occurred and is continuing
or would result from the consummation of the conversion and/or continuation contemplated hereby
that would constitute an Event of Default or a Default



	 	 	 	 	 
	Date: [mm/dd/yy] 	AZ CHEM US INC.


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT A-2-1









 





EXHIBIT B TO

SECOND LIEN CREDIT AND GUARANTY AGREEMENT




NOTE



$ [1][     ,     ,     ]




					
	[2][mm/dd/yy]
	 	 
	 	New York, New York






     FOR VALUE RECEIVED, AZ CHEM US INC., a Delaware corporation (“Borrower”), promises to pay
[NAME OF LENDER] (“Payee”) or its registered assigns the principal amount of [1][DOLLARS]
($[     ,     ,     ][1]



     Borrower also promises to pay interest on the unpaid principal amount hereof, from the date
hereof until paid in full, at the rates and at the times which shall be determined in accordance
with the provisions of that certain Second Lien Credit and Guaranty Agreement, dated as of February
28, 2007 (as it may be amended, supplemented or otherwise modified, the “Credit Agreement”; the
terms defined therein and not otherwise defined herein being used herein as therein defined), by
and among Borrower, AZ CHEM US HOLDINGS INC., a Delaware corporation (“U.S. Holdings”), certain
Subsidiaries of U.S. Holdings, as Guarantors, the Lenders party thereto from time to time, GOLDMAN
SACHS CREDIT PARTNERS L.P., as Syndication Agent, and CAPITALSOURCE FINANCE LLC, as Administrative
Agent and Collateral Agent.



     Borrower shall repay this Note as set forth in Section 2.12 of the Credit Agreement.



     This Note is one of the “Notes” in the aggregate principal amount of $125,000,000 and is
issued pursuant to and entitled to the benefits of the Credit Agreement, to which reference is
hereby made for a more complete statement of the terms and conditions under which the Term Loan
evidenced hereby was made and is to be repaid.



     All payments of principal and interest in respect of this Note shall be made in lawful
money of the United States of America in same day funds at the Principal Office of Administrative
Agent or at such other place as shall be designated in writing for such purpose in accordance with
the terms of the Credit Agreement. Unless and until an Assignment Agreement or Settlement
Confirmation effecting the assignment or transfer of the obligations evidenced hereby shall have
been accepted by Administrative Agent and recorded in the Register, Borrower, each Agent and
Lenders shall be entitled to deem and treat Payee as the owner and holder of this Note and the
obligations evidenced hereby. Payee hereby agrees, by its acceptance hereof, that before disposing
of this Note or any part hereof it will make a notation hereon of all principal payments previously
made hereunder and of the date to which interest hereon has been paid; provided, the failure to
make a notation of any payment made on this Note shall not limit or otherwise affect the
obligations of Borrower hereunder with respect to payments of principal of or interest on this
Note.



     This Note is subject to mandatory prepayment and to prepayment at the option of Borrower,
each as provided in the Credit Agreement.



     THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF U.S. BORROWER AND PAYEE HEREUNDER 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 CONFLICT OF LAWS PRINCIPLES THEREOF.





 




			
	[1]	 	Lender’s Second Lien Term Loan Commitment
	 
	[2]	 	Closing Date





EXHIBIT B-1









 





     Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this
Note, together with all accrued and unpaid interest thereon, may become, or may be declared to be,
due and payable in the manner, upon the conditions and with the effect provided in the Credit
Agreement.



     The terms of this Note are subject to amendment only in the manner provided in the Credit
Agreement.



     Borrower promises to pay all costs and expenses, including reasonable attorneys’ fees, all as
provided in the Credit Agreement, incurred in the collection and enforcement of this Note. Borrower
and any endorsers of this Note hereby consent to renewals and
extensions of time at or after the
maturity hereof, without notice, and hereby waive diligence, presentment, protest, demand notice of
every kind and, to the full extent permitted by law, the right to plead any statute of limitations
as a defense to any demand hereunder.



[Remainder of page intentionally left blank]




EXHIBIT B-2









 





     IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed and delivered by
its officer thereunto duly authorized as of the date and at the place first written above.



	 	 	 	 	 
	 	AZ CHEM US INC.


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT B-3









 





EXHIBIT C TO

SECOND LIEN CREDIT AND GUARANTY AGREEMENT




COMPLIANCE CERTIFICATE




THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS:





     1. I am the Chief Financial Officer of AZ CHEM US HOLDINGS INC., a Delaware corporation
(“U.S. Holdings”).



     2. I have reviewed the terms of that certain Second Lien Credit and Guaranty Agreement, dated
as of February 28, 2007 (as it may be amended, supplemented or otherwise modified, the “Credit
Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein
defined), by and among AZ CHEM US INC., a Delaware corporation (“Borrower”), U.S. Holdings, certain
Subsidiaries of U.S. Holdings, as Guarantors, the Lenders party thereto from time to time, GOLDMAN
SACHS CREDIT PARTNERS L.P., as Syndication Agent, and CAPITALSOURCE FINANCE LLC, as Administrative
Agent and Collateral Agent, and I have made, or have caused to be made under my supervision, a
review in reasonable detail of the transactions and the condition of each of the Borrower and its
Subsidiaries during the accounting period covered by the attached financial statements.



     3. The examination described in paragraph 2 above did not disclose, and I have no
knowledge of, the existence of any condition or event which constitutes an Event of Default or
Default during or at the end of the accounting period covered by the attached financial statements
or as of the date of this Certificate, except as set forth in a separate attachment, if any, to
this Certificate, describing in detail, the nature of the condition or event, the period during
which it has existed and the action which such Borrower has taken, is taking, or proposes to take
with respect to each such condition or event.



     The foregoing certifications, together with the computations set forth in the Annex A hereto
and the financial statements delivered with this Certificate in support hereof, are made and
delivered [mm/dd/yy] pursuant to Section 5.1(c) of the Credit Agreement.



	 	 	 	 	 
	 	AZ CHEM US HOLDINGS INC.


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



EXHIBIT C-1








 





ANNEX A TO

COMPLIANCE CERTIFICATE




FOR THE FISCAL [QUARTER] [YEAR] ENDING [mm/dd/yy].




	 	 	 	 	 	 	 	 	 	 	 

	1. Consolidated
Adjusted EBITDA: (i) - (ii) =	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	(i)
	 	 	(a	)	 	Consolidated Net Income:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	(b	)	 	Consolidated Interest Expense:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	(c	)	 	provisions for taxes based on income:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	(d	)	 	total depreciation expense:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	(e	)	 	total amortization expense:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	(f	)	 	Transaction Costs incurred and paid in the periodl:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	(g	)	 	Management Fees paid or accruing in such period2:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	(h	)	 	Cash severance payments in connection with plant closures 3
related to the Acquisition:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	(i	)	 	Cash stand alone costs incurred prior to the date that is
eighteen months after the Closing
Date4:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	(j	)	 	Cash expenses related to third party advisors for services
provided regarding acquisitions or divestitures permitted by the Credit Agreement:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	(k	)	 	Cash financing
charges5:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	(1	)	 	unusual and non-recurring Cash charges:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	(m	)	 	Cash expenses6:
	 	$[     ,     ,     ]








 




			
	1	 	To the extent expensed and in an aggregate amount not to exceed $22,000,000.
	 
	2	 	To the extent not added back in a prior period and in amount not to exceed $2,000,000 per
Fiscal Year.
	 
	3	 	Including partial plant closures.
	 
	4	 	Associated with the transition of Holdings and its Subsidiaries to a stand alone basis including
fees paid to the Seller for transition services, fees paid to third parties for one time transition
and migration services, and other expenses which are one time in nature and specifically related to
readying the business for stand alone operations in an aggregate amount not to exceed $10,000,000.
	 
	5	 	Including fees, expenses, underwriting discounts, prepayment premiums, including amounts paid
under the Credit Agreement or in connection with the incurrence of any other Indebtedness
permitted by the Credit Agreement.
	 
	6	 	Excluding severance payments and in connection with closures and consolidation of plants
(including partial plant closures) in an aggregate amount not to exceed $10,000,000 per Fiscal
Year.





Exhibit C-2









 





	 	 	 	 	 	 	 	 	 

	 	 	 
	 

	 	 	 	(n)
	 	one-time third party professional
costs7:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	(o)
	 	other non-Cash charges reducing
Consolidated Net
Income8:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 	 	(ii)	 	other non-Cash gains
increasing Consolidated Net
Income9:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	2. Consolidated Capital Expenditures:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	3. Consolidated Interest Expense:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	4. Consolidated Current Assets:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	5. Consolidated Current Liabilities:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	6. Consolidated
Excess Cash Flow: (i) - (ii) =	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 

	 	(i)
	 	(a)
	 	Consolidated Adjusted EBITDA:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	(b)
	 	Consolidated Working Capital Adjustment:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 

	 	(ii)
	 	(a)
	 	scheduled repayments of
Indebtedness for borrowed money
10:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	(b)
	 	Consolidated Capital Expenditures 11:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	(c)
	 	Consolidated Interest Expense:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	(d)
	 	provisions for current taxes based on
income of Holdings and its Subsidiaries
and payable in cash with respect to such period:
	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	7. Consolidated Interest Expense:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	8. Consolidated Net Income: (i) - (ii) =	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 	 	(i)	 	the net income (or loss) of Holdings and its Subsidiaries
on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 

	 	(ii)
	 	(a)
	 	the income (or loss) of any Person
	 	$[     ,     ,     ]








 




			
	7	 	Paid in Cash in connection with plant efficiency projects in an aggregate amount not to
exceed $6,000,000.
	 
	8	 	Excluding any such non-Cash charge to the extent that it represents an accrual or reserve for
potential Cash items in any future period or amortization of a prepaid Cash item that was paid
in a prior period.
	 
	9	 	Excluding any such non-Cash gain to the extent it represents the reversal of an accrual or
reserve for potential Cash items in any prior period.
	 
	10	 	Excluding repayments of Revolving Loans or Swing Line Loans (each, as defined in the First Lien
Credit Agreement) except to the extent the Revolving Commitments (as defined in the First Lien
Credit Agreement) are permanently reduced in connection with such repayments.
	 
	11	 	Net of any proceeds of (y) any related financings with respect to such expenditures and (z) any
sales of assets used to finance such expenditures.





Exhibit C-3









 





	 	 	 	 	 	 	 	 	 

	 	 	 
	 
	 	 	 	 	 	(other than a Subsidiary of Holdings) in which any other Person	 	 
	 
	 	 	 	 	 	(other than Holdings or any of its Subsidiaries) has a joint interest,	 	 
	 
	 	 	 	 	 	except to the extent of the amount of dividends or other distributions	 	 
	 
	 	 	 	 	 	actually paid to Holdings or any of its Subsidiaries by such Person during	 	 
	 
	 	 	 	 	 	such period:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	(b)	 	the income (or loss) of any Person accrued prior to the date it becomes	 	 
	 
	 	 	 	 	 	a Subsidiary of Holdings or is merged into or consolidated	 	 
	 
	 	 	 	 	 	with Holdings or any of its Subsidiaries or that Person's assets are	 	 
	 
	 	 	 	 	 	acquired by Holdings or any of its Subsidiaries:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	(c)	 	the income of any Subsidiary of Holdings to the extent that the declaration	 	 
	 
	 	 	 	 	 	or payment of dividends or similar distributions by that Subsidiary of that	 	 
	 
	 	 	 	 	 	income is not at the time permitted by operation of the terms of its charter	 	 
	 
	 	 	 	 	 	or any agreement, instrument, judgment, decree, order, statute, rule or	 	 
	 
	 	 	 	 	 	governmental regulation applicable to that Subsidiary:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	(d)	 	any after-tax gains or losses attributable to Asset Sales or returned	 	 
	 
	 	 	 	 	 	surplus assets of any Pension Plan:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	(e)	 	to the extent not included in clauses (ii)(a) through (d) above, any net	 	 
	 
	 	 	 	 	 	extraordinary gains or net extraordinary losses:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	9. Consolidated Total Debt 12:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	10. Consolidated Working Capital: (i) - (ii) =	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 	 	(i)	 	Consolidated Current Assets:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 	 	(ii)	 	Consolidated Current Liabilities:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	11. Consolidated Working Capital Adjustment: (i) - (ii) =	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 	 	(i)	 	Consolidated Working Capital
as of the beginning of such period:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	 	 	(ii)	 	Consolidated Working Capital
as of the end of such period:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 
	12. Leverage Ratio: (i)/(ii) =	 	$[     ,     ,     ]








 




			
	12	 	Minus up to $25,000,000 of unrestricted Cash and Cash Equivalents of any Credit Party.





Exhibit C-4









 





	 	 	 	 	 	 	 	 	 	 	 

	 	 	 	 	 
	 	 	(i)	 	Consolidated Total Debt	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(ii)	 	Consolidated Adjusted EBITDA

for the four-Fiscal Quarter period then ended:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Actual:	 	  .  :1:00
	 
	 	 	 	 	 	 	 	Required:	 	  .  :1:00
	 
	 	 	 	 	 	 	 	 	 	 
	13. Consolidated Adjusted EBITDA	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Actual:	 	$[     ,     ,     ]
	 
	 	 	 	 	 	 	 	Required :	 	$[     ,     ,     ]







Exhibit C-5












 





EXHIBIT D

TO SECOND LIEN CREDIT AND GUARANTY AGREEMENT




ASSIGNMENT AGREEMENT




     This
Assignment Agreement (the “Assignment”) is dated as of the
Effective Date set forth below
and is entered into by and between [Insert name of
Assignor] (the “Assignor”) and [Insert name of
Assignee] (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings
given to them in the Credit Agreement identified below (as it may be amended, supplemented or
otherwise modified from time to time, the “Credit
Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment
as if set forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below, the interest in and to
all of the Assignor’s rights and obligations under the Credit Agreement and any other documents or
instruments delivered pursuant thereto that represents the amount and percentage interest
identified below of all of the Assignor’s outstanding rights and obligations under the respective
facilities identified below (including, to the extent included in any such facilities) (the
“Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and the Credit Agreement, without representation or warranty
by the Assignor.



	 	 	 	 	 	 	 

	1.

	 	Assignor:
	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	2.

	 	Assignee:
	 	 	 	[and is an Affiliate/Approved
Fund1]
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	3.	 	Borrower:	 	AZ CHEM US INC., a Delaware corporation.
	 
	 	 	 	 	 	 
	4.	 	Administrative Agent:	 	CAPITALSOURCE FINANCE LLC, as the administrative agent under the Credit Agreement.
	 
	 	 	 	 	 	 
	5.	 	Credit Agreement:	 	The $125,000,000 Second Lien Credit and Guaranty Agreement dated as of February 28, 2007, among AZ CHEM US INC, the Lenders parties thereto, Administrative Agent, and the other agents parties thereto.
	 
	 	 	 	 	 	 
	6.

	 	Assigned Interest:	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 







 




			
	1	 	Select as applicable





EXHIBIT D-1









 





	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	Amount of	 	 
	 	 	Commitment/Loans	 	Commitment/Loans	 	Percentage Assigned of
	Facility Assigned	 	for
all Lenders	 	Assigned	 	Commitment/Loans2
	                    3

	 	$                    
	 	$                    
	 	                    %
	                    

	 	$                    
	 	$                    
	 	                    %
	                    

	 	$                    
	 	$                    
	 	                    %





Effective Date:
                    ,20   
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.





	7.	 	Notice and Wire Instructions:







[NAME OF ASSIGNOR]



Notices:




	 	 	 

	 


	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	 

Attention:

	 	 
	Telecopier:
	 	 





with a copy to:




	 	 	 

	 


	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	 

Attention:

	 	 
	Telecopier:
	 	 





Wire Instructions:







[NAME OF ASSIGNEE]



Notices:




	 	 	 

	 


	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	 

Attention:

	 	 
	Telecopier:
	 	 





with a copy to:




	 	 	 

	 


	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	 

Attention:

	 	 
	Telecopier:
	 	 





Wire Instructions:
















 




			
	2	 	Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders
thereunder.
	 
	3	 	Fill in the appropriate terminology for the types of facilities under the Credit Agreement
that are being assigned under this Assignment (e.g. “Term Loan Commitment”, etc.)





EXHIBIT D-2









 





The terms set forth in this Assignment are hereby agreed to:




	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title:             	 
	 	 	 	 
	 



	 	 	 	 	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	[Consented to and]4 Accepted:



CAPITALSOURCE FINANCE LLC,
 as Administrative Agent 

 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	[Consented to:]5


AZ CHEM US INC. 

 	 
	 	By:  	 	 
	 	 	Title:                                        	 
	 	 	 	 
	 





 




			
	4	 	To be added only if the consent of the Administrative Agent is required by the
terms of the Credit Agreement.
	 
	5	 	To be added only if the consent of the Borrower is required by the terms of the Credit
Agreement.





EXHIBIT D-3









 





ANNEX 1




STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT

AND ASSUMPTION AGREEMENT





	1.	 	Representations and Warranties.






	 	1.1	 	Assignor. The Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is
free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment
and to consummate the transactions contemplated hereby; and (b) assumes no responsibility
with respect to (i) any statements, warranties or representations made in or in connection
with any Credit Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other instrument or
document delivered pursuant thereto, other than this Assignment (herein collectively the
“Credit Documents”), or any collateral thereunder, (iii) the financial condition of the
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect
of any Credit Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations
under any Credit Document.
	 
	 	1.2	 	Assignee. The Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this
Assignment and to consummate the transactions contemplated hereby and to become a Lender
under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under
the Credit Agreement, (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement and, to the extent of the Assigned Interest, shall have
the obligations of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision, and (v) if
it is a Non-US Lender, attached to the Assignment is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed
by the Assignee; and (19) agrees that (i) it will, independently and without reliance on
the Administrative Agent, the Assignor or any other Lender, and based on such documents
and information as it shall deem appropriate at that time, continue to make its own credit
decisions in taking or not taking action under the Credit Documents, and (ii) it will
perform in accordance with their terms all of the obligations which by the terms of the
Credit Documents are required to be performed by it as a Lender.






	2.	 	Payments. All payments with respect to the Assigned Interests shall be made on
the Effective Date as follows:






	 	2.1	 	From and after the Effective Date, the Administrative Agent shall make all
payments in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to but excluding
the Effective Date and to the Assignee for amounts which have accrued from and after the
Effective Date.





EXHIBIT D-4









 






	3.	 	General Provisions. This Assignment shall be binding upon, and inure to the benefit
of, the parties hereto and their respective successors and assigns. This Assignment may be
executed in any number of counterparts, which together shall constitute one instrument.
Delivery of an executed counterpart of a signature page of this Assignment by telecopy shall
be effective as delivery of a manually executed counterpart of this Assignment. This
Assignment shall be governed by, and construed in accordance with, the internal laws of the
State of New York without regard to conflict of laws principles thereof.





[Remainder of page intentionally left blank]




EXHIBIT D-5









 





EXHIBIT E TO

SECOND LIEN CREDIT AND GUARANTY AGREEMENT




CERTIFICATE RE NON-BANK STATUS




     Reference is made to the Second Lien Credit and Guaranty Agreement, dated as of February 28,
2007 (as it may be amended, supplemented or otherwise modified, the
“Credit Agreement”; the terms
defined therein and not otherwise defined herein being used herein as therein defined), by and
among AZ CHEM US INC., a Delaware corporation, AZ CHEM US HOLDINGS INC., a Delaware corporation,
certain Subsidiaries of U.S. Holdings, as Guarantors, the Lenders party thereto from time to time,
GOLDMAN SACHS CREDIT PARTNERS L.P., as Syndication Agent, and CAPITALSOURCE FINANCE LLC, as
Administrative Agent and Collateral Agent. Pursuant to Section 2.20(d) of the Credit Agreement, the
undersigned hereby certifies that it is not a “bank” or other Person described in Section 881
(c)(3) oft he Internal Revenue Code of 1986, as amended.



	 	 	 	 	 
	 	[NAME OF LENDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT E-1









 





EXHIBIT F-1 TO

SECOND LIEN CREDIT AND GUARANTY AGREEMENT




CLOSING DATE CERTIFICATE




     THE UNDERSIGNED HEREBY CERTIFY AS FOLLOWS:



     1. We are, respectively, the chief executive officer and chief financial officer of AZ CHEM US
HOLDINGS INC., a Delaware corporation (“U.S. Holdings”).



     2. We have reviewed the terms of Section 3 of the Second Lien Credit and Guaranty
Agreement, dated as of February 28, 2007 (as it may be amended, supplemented or otherwise modified,
the “Credit Agreement”; the terms defined therein and not otherwise defined herein being used
herein as therein defined), by and among AZ CHEM US INC., a Delaware corporation (“Borrower”), U.S.
Holdings, certain Subsidiaries of U.S. Holdings, as Guarantors, the Lenders party thereto from time
to time, GOLDMAN SACHS CREDIT PARTNERS L.P., as Syndication Agent, and CAPITALSOURCE FINANCE LLC,
as Administrative Agent and Collateral Agent, and the definitions and provisions contained in such
Credit Agreement relating thereto, and in our opinion we have made, or have caused to be made under
our supervision, such examination or investigation as is necessary to enable us to express an
informed opinion as to the matters referred to herein.



     3. Based upon our review and examination described in paragraph 2 above, we certify, on behalf
of Borrower, that as of the date hereof:




     (i) the representations and warranties contained in each of the Credit Documents
are true, correct and complete in all respects on and as of the Closing Date to the same
extent as though made on and as of such date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case such representations
and warranties are true, correct and complete in all respects on and as of such earlier
date;




     (ii) no injunction or other restraining order shall have been issued and no
hearing to cause an injunction or other restraining order to be issued shall be pending
or noticed with respect to any action, suit or proceeding seeking to enjoin or otherwise
prevent the consummation of, or to recover any damages or obtain relief as a result of,
the borrowing contemplated hereby; and




     (iii) no event has occurred and is continuing or would result from the
consummation of the borrowing contemplated hereby that would constitute an Event of
Default or a Default.



     4. Attached as Annex A hereto are true and complete (and, where applicable, executed and
conformed) copies of each of the Related Agreements, and we have reviewed the terms of each of such
documents and in our opinion we have made, or have caused to be made under our supervision, such
examination or investigation as is necessary to enable us to express an informed opinion as to the
matters referred to in paragraph 3.



     5. Each Credit Party has requested that Sullivan & Cromwell LLP deliver to Agents and Lenders
on the Closing Date favorable written opinions in accordance with Section 3.1 (h) of the Credit
Agreement and otherwise in form and substance reasonably satisfactory to the Administrative Agent.



     6. Attached hereto as Annex B are true, complete and correct copies of (a) the Historical
Financial Statements, (b) pro forma consolidated and consolidating balance sheets of Proserpina
1072 AB and its Subsidiaries as at the Closing Date, prepared in accordance with GAAP and
reflecting the consummation of the Acquisition, the related financings and the other transactions
contemplated by the Credit Documents and the Related Agreements, and (c) the Projections.



EXHIBIT F-1-1









 





     The foregoing certifications are made and delivered as of February 28, 2007.



	 	 	 	 	 
	 	AZ CHEM US HOLDINGS INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Chief Executive Officer 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



EXHIBIT F-1-2









 





EXHIBIT F-2 TO

SECOND LIEN CREDIT AND GUARANTY AGREEMENT




SOLVENCY CERTIFICATE





     THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS:



     1. I am the chief financial officer of AZ CHEM US HOLDINGS INC., a Delaware
corporation (“U.S. Holdings”).



     2. Reference is made to that certain Second Lien Credit and Guaranty Agreement, dated as
of February 28, 2007 (as it may be amended, supplemented or otherwise modified, the “Credit
Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein
defined), by and among AZ CHEM US INC., a Delaware corporation (“Borrower”), U.S. Holdings, certain
Subsidiaries of U.S. Holdings, as Guarantors, the Lenders party thereto from time to time, GOLDMAN
SACHS CREDIT PARTNERS L.P., as Syndication Agent, and CAPITALSOURCE FINANCE LLC, as Administrative
Agent and Collateral Agent.



     3. I have reviewed the terms of Sections 3 and 4 of the Credit Agreement and the
definitions and provisions contained in the Credit Agreement relating thereto, together with each
of the Related Agreements, and, in my opinion, have made, or have caused to be made under my
supervision, such examination or investigation as is necessary to enable me to express an informed
opinion as to the matters referred to herein.



     4. Based upon my review and examination described in paragraph 3 above, I certify that as of
the date hereof, after giving effect to the consummation of the transactions contemplated by the
Related Agreements, the related financings and the other transactions contemplated by the Credit
Documents and the Related Agreements, each Credit Party is Solvent.



     This certificate is being executed and delivered by the undersigned in his
capacity as a director of Borrower and no personal liability will attach to the undersigned in
connection with the execution and delivery of this certificate.



     The foregoing certifications are made and delivered as of February 28, 2007.



	 	 	 	 	 
	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



EXHIBIT F-2-1









 





EXHIBIT G TO

SECOND LIEN CREDIT AND GUARANTY AGREEMENT




COUNTERPART AGREEMENT





     This COUNTERPART AGREEMENT, dated [mm/dd/yy] (this “Counterpart Agreement”) is delivered
pursuant to that certain Second Lien Credit and Guaranty Agreement, dated as of February 28, 2007
(as it may be amended, supplemented or otherwise modified, the “Credit Agreement”; the terms
defined therein and not otherwise defined herein being used herein as therein defined), by and
among AZ CHEM US INC., a Delaware corporation (“Borrower”), AZ CHEM US HOLDINGS INC., a Delaware
corporation (“U.S. Holdings”), certain Subsidiaries of U.S. Holdings, as Guarantors, the Lenders
party thereto from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P., as Syndication Agent, and
CAPITALSOURCE FINANCE LLC, as Administrative Agent and Collateral Agent.



     Section 1. Pursuant to Section 5.10 of the Credit Agreement, the undersigned hereby:




     (a) agrees that this Counterpart Agreement may be attached to the Credit Agreement
and that by the execution and delivery hereof, the undersigned becomes a Guarantor under
the Credit Agreement and agrees to be bound by all of the terms thereof;




     (b) represents and warrants that each of the representations and warranties set
forth in the Credit Agreement and each other Credit Document and applicable to the
undersigned is true and correct both before and after giving effect to this Counterpart
Agreement, except to the extent that any such representation and warranty relates solely to
any earlier date, in which case such representation and warranty is t-me and correct as of
such earlier date;




     (c) no event has occurred or is continuing as of the date hereof, or will
result from the transactions contemplated hereby on the date hereof, that would constitute
an Event of Default or a Default;




     (d) agrees to irrevocably and unconditionally guaranty the due and punctual
payment in full of all Obligations when the same shall become due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or otherwise (including
amounts that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C, § 362(a)) and in accordance with Section 7 of the
Credit Agreement; and




     (e) the undersigned hereby (i) agrees that this counterpart may be attached to
the Pledge and Security Agreement, (ii) agrees that the undersigned will comply with all the
terms and conditions of the Pledge and Security Agreement as if it were an original
signatory thereto, (iii) grants to Collateral Agent a security interest in all of the
undersigned’s right, title and interest in and to all “Collateral” (as such term is defined
in the Pledge and Security Agreement) of the undersigned, in each case whether now or
hereafter existing or in which the undersigned now has or hereafter acquires an interest and
wherever the same may be located and (iv) delivers to Collateral Agent supplements to all
schedules attached to the Pledge and Security Agreement. All such Collateral shall be deemed
to be part of the “Collateral” and hereafter subject to each of the terms and conditions of
the Pledge and Security Agreement.



EXHIBIT G-1









 





     Section 2. The undersigned agrees from time to time, upon request of Administrative Agent, to
take such additional actions and to execute and deliver such additional documents and instruments
as Administrative Agent may request to effect the transactions contemplated by, and to carry out
the intent of, this Agreement. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except by an instrument in writing signed by the party (including, if
applicable, any party required to evidence its consent to or acceptance of this Agreement) against
whom enforcement of such change, waiver, discharge or termination is sought. Any notice or other
communication herein required or permitted to be given shall be given pursuant to Section 10.1 of
the Credit Agreement, and all for purposes thereof, the notice address of the undersigned shall be
the address as set forth on the signature page hereof. In case any provision in or obligation under
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.



     THIS AGREEMENT 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 CONFLICT OF LAWS PRINCIPLES
THEREOF.



[Remainder of page intentionally left blank]




EXHIBIT G-2









 





     IN WITNESS WHEREOF, the undersigned has caused this Counterpart Agreement to be duly
executed and delivered by its duly authorized officer as of the date above first written.



	 	 	 	 	 
	 	[NAME OF SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Address for Notices:




	 	 	 

	 


	 	 
	 


	 	 
	 

Attention:

	 	 
	Telecopier
	 	 





with a copy to:




	 	 	 

	 


	 	 
	 


	 	 
	 

Attention:

	 	 
	Telecopier
	 	 






	 	 	 	 	 
	 	ACKNOWLEDGED AND ACCEPTED,
as of the date above first written:


CAPITALSOURCE FINANCE LLC,
as Administrative Agent and Collateral Agent

 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




EXHIBIT G-3












 





EXHIBIT H TO

SECOND LIEN CREDIT AND GUARANTY AGREEMENT



RECORDING REQUESTED BY:

Latham & Watkins LLP



AND WHEN RECORDED MAIL TO:



Latham & Watkins LLP

885 Third Avenue

New York, New York 10022

Attn: Marcus Dougherty, Esq.



Re: AZ CHEM US INC.




Space above this line for recorder’s use only               




LANDLORD PERSONAL PROPERTY COLLATERAL ACCESS AGREEMENT




     This LANDLORD PERSONAL PROPERTY COLLATERAL ACCESS AGREEMENT (this “Agreement”) is dated as of
[mm/dd/yy] and entered into by [NAME OF LANDLORD] (“Landlord”), to and for the benefit of
CAPITALSOURCE FINANCE LLC, as collateral agent for Lenders and Lender Counterparties (in such
capacity “Collateral Agent”).



          RECITALS:




     WHEREAS, [NAME OF GRANTOR], a [Type of Person] (“Tenant”), has possession of and occupies all
or a portion of the property described on Exhibit A annexed hereto (the “Premises”);



     WHEREAS, Tenant’s interest in the Premises arises under the lease agreement (the “Lease”)
more particularly described on Exhibit B annexed hereto, pursuant to which Landlord has rights,
upon the terms and conditions set forth therein, to take possession of, and otherwise assert
control over, the Premises;



     WHEREAS, reference is made to that certain Second Lien Credit and Guaranty Agreement,
dated as of February 28, 2007 (as it may be amended, supplemented or otherwise modified, the
“Credit Agreement”; the terms defined therein and not otherwise defined herein being used herein as
therein defined), by and among AZ CHEM US INC., a Delaware corporation (“Borrower”), AZ CHEM US
HOLDINGS INC., a Delaware corporation (“U.S. Holdings”), certain Subsidiaries of U.S. Holdings, as
Guarantors, the Lenders party thereto from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P., as
Syndication Agent, and CAPITALSOURCE FINANCE LLC, as Administrative Agent and Collateral Agent,
pursuant to which Tenant has executed a security agreement, mortgages, deeds of mast, deeds to
secure debt and assignments of rents and leases, and other collateral documents in relation to the
Credit Agreement;



EXHIBIT H-1









 





     WHEREAS, Tenant’s repayment of the extensions of credit made by Lenders under the Credit
Agreement will be secured, in part, by all Inventory of Tenant (including all Inventory of
Tenant now or hereafter located on the Premises (the “Subject Inventory”)) and all Equipment
used in Tenant’s business (including all Equipment of Tenant now or hereafter located on the
Premises (the “Subject Equipment”; and, together with the Subject Inventory, the
“Collateral”)); and



     WHEREAS, Collateral Agent has requested that Landlord execute this Agreement as a
condition to the extension of credit to Tenant under the Credit Agreement.



     NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord hereby
represents and warrants to, and covenants and agrees with, Collateral Agent as follows:



     1. Landlord
hereby (a) waives and releases unto Collateral Agent and its successors
and assigns any and all rights granted by or under any present or future laws to levy or
distraint for rent or any other charges which may be due to Landlord against the Collateral,
and any and all other claims, liens and demands of every kind which it now has or may
hereafter have against the Collateral, and (b) agrees that any rights it may have in or to
the Collateral, no matter how arising (to the extent not effectively waived pursuant to
clause (a) of this paragraph 1), shall be second and subordinate to the rights of Collateral
Agent in respect thereof. Landlord acknowledges that the Collateral is and will remain
personal property and not fixtures even though it may be affixed to or placed on the
Premises.



     2. Landlord certifies that (a) Landlord is the landlord under the Lease, (b) the Lease
is in full force and effect and has not been amended, modified, or supplemented except as set
forth on Exhibit B annexed hereto, (c) to the knowledge of Landlord, there is no defense,
offset, claim or counterclaim by or in favor of Landlord against Tenant under the Lease or
against the obligations of Landlord under the Lease, (d) no notice of default has been given
under or in connection with the Lease which has not been cured, and Landlord has no knowledge
of the occurrence of any other default under or in connection with the Lease, and (e) except
as disclosed to Collateral Agent, no portion of the Premises is encumbered in any way by any
deed of trust or mortgage lien or ground or superior lease.



     3. Landlord consents to the installation or placement of the Collateral on the Premises,
and Landlord grants to Collateral Agent a license to enter upon and into the Premises to do
any or all of the following with respect to the Collateral: assemble, have appraised,
display, remove, maintain, prepare for sale or lease, repair, transfer, or sell (at public or
private sale). In entering upon or into the Premises, Collateral Agent hereby agrees to
indemnify, defend and hold Landlord harmless from and against any and all claims, judgments,
liabilities, costs and expenses incurred by Landlord caused solely by Collateral Agent’s
entering upon or into the Premises and taking any of the foregoing actions with respect to
the Collateral. Such costs shall include any damage to the Premises made by Collateral Agent
in severing and/or removing the Collateral therefrom.



     4. Landlord agrees that it will not prevent Collateral Agent or its designee from
entering upon the Premises at all reasonable times to inspect or remove the Collateral. In the
event that Landlord has the right to, and desires to, obtain possession of the Premises
(either through expiration of the Lease or termination thereof due to the default of Tenant
thereunder), Landlord will deliver notice (the “Landlord’s Notice”) to Collateral Agent to
that effect. Within the 45 day period after Collateral Agent receives the Landlord’s Notice,
Collateral Agent shall have the right, but not the obligation, to cause the Collateral to be
removed from the Premises. During such 45 day period, Landlord will not remove the Collateral
from the Premises nor interfere with Collateral Agent’s actions in removing the Collateral
from the Premises or Collateral Agent’s actions in otherwise enforcing its security interest
in the Collateral. Notwithstanding anything to the contrary in this



EXHIBIT H-2









 




paragraph, Collateral Agent shall at no time have any obligation to remove the Collateral from
the Premises.




     5. Landlord shall send to Collateral Agent a copy of any notice of default under the
Lease sent by Landlord to Tenant. In addition, Landlord shall send to Collateral Agent a copy
of any notice received by Landlord of a breach or default under any other lease, mortgage,
deed of trust, security agreement or other instrument to which Landlord is a party which may
affect Landlord’s rights in, or possession of, the Premises.



     6. All notices to Collateral Agent under this Agreement shall be in writing and sent to
Collateral Agent at its address set forth on the signature page hereof by telefacsimile, by
United States mail, or by overnight delivery service.



     7. The provisions of this Agreement shall continue in effect until Landlord shall
have received Collateral Agent’s written certification that all amounts advanced under the
Credit Agreement have been paid in full.



     8. This Agreement and the rights and obligations of the parties hereunder 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.



[Remainder of page intentionally left blank]




EXHIBIT H-3









 





     IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
and delivered as of the day and year first set forth above.



	 	 	 	 	 
	 	[NAME OF LANDLORD]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





	 	 	 	 	 

	 	 	 

	 	 
	 	 	 

	 	 
	 	 	 
Attention:
	 	 
	 	 	Telecopier:
	 	 






     By its acceptance hereof, as of the day and year first set forth above, Collateral
Agent agrees to be bound by the provisions hereof.



	 	 	 	 	 
	 	CAPITALSOURCE FINANCE LLC
as Collateral Agent


 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


CapitalSource Finance LLC

4445 Willard Avenue, 12th Floor

Chevy Chase, MD 20815

Attention: Special Investments Group, Portfolio

Manager

Telephone: 301-841-2700

Fax: 301-841-2340




[APPROPRIATE NOTARY BLOCKS]




EXHIBIT H-4









 





EXHIBIT A TO

LANDLORD PERSONAL PROPERTY COLLATERAL ACCESS AGREEMENT



Legal Description of Premises:




EXHIBIT H-A-1









 





EXHIBIT B TO

LANDLORD PERSONAL PROPERTY COLLATERAL ACCESS AGREEMENT



Description of Lease:




EXHIBIT H-B-1









 





EXHIBIT I TO

SECOND LIEN CREDIT AND GUARANTY AGREEMENT





THIS NOTE HAS BEEN PLEDGED AS COLLATERAL PURSUANT TO THE [DUTCH]
[FINNISH][U.K.][LUXEMBOURG][U.S.] PLEDGE AGREEMENT[S] DESCRIBED BELOW, AND IS SUBORDINATED PURSUANT
TO, AND AS DESCRIBED IN, THE INTERCOMPANY SUBORDINATION AGREEMENT
DESCRIBED BELOW. THIS NOTE IS
NON-TRANSFERABLE EXCEPT PURSUANT TO THE [INSERT APPROPRIATE PLEDGE AGREEMENT(S)].




INTERCOMPANY NOTE




New York, New York

[February] [   ], 20[   ]





     FOR VALUE RECEIVED, [               ] a [          ] [corporation] (the “Payee”), hereby promises to pay to
the order of [               ], a [          ] [corporation] (the “Payee”), in lawful money
of the [United States of America] in immediately available
funds on [          ], 20[   ] 1
or any earlier date upon which this Note (as used herein, the term “Note” includes this Note and
any Note or Notes issued in exchange hereof or in replacement hereof) becomes due and payable
pursuant to the terms hereof, the principal sum of
[               ] ([$][€][          ]) or such lesser principal amount as shall at the time be outstanding hereunder,
together with interest from the date hereof on the unpaid amount owning hereunder until payment in
full at a rate of interest per annum equal to the lesser of (i) the maximum lawful rate of interest
in effect at such time under applicable law and (ii) [   ]% per annum The Payor promises to pay such
interest [semiannually], in arrears, on [          ] and            of each year (or the next New York
business day, if such day is not a day on which commercial banks are generally open for transacting
business in New York City), commencing
[          ], 20   , in lawful money of the [United States of America]
in immediately available funds, at such location as the Payee shall from time to time designate.



     Interest shall be calculated on the basis of a year of 365 or 366 days, as applicable, and
shall accrue on the outstanding principal amount of this Note and, to the extent permitted by law,
on any accrued but unpaid interest thereon until all payments hereunder have been irrevocably paid
in full. If Payor fails to make any payment hereunder when due, interest will accrue on the
outstanding principal amount of this Note, and, to the extent permitted by law, on the unpaid
amount of such defaulted payment at a rate of interest equal to the lesser of (i) the maximum
lawful rate of interest in effect at such time under applicable law and (ii) [   ]% above the rate
otherwise applicable hereto.



     The principal amount of this Note shall be due and payable at maturity. Accrued and unpaid
interest shall be due and payable on each Payment Date.





 




			
	1	 	No earlier than six months after the Maturity Date (as defined in the Second Lien Credit
Agreement).





 









 





     If any of the following events (each, an “Event of Default”) shall occur:



     (i) the commencement of any bankruptcy, reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar proceeding of any jurisdiction
relating to the Payor;



     (ii) default in the payment of the principal of this Note when the same become due and
payable, whether at maturity or otherwise; or



     (iii) default in the payment of any installment of interest on this Note according to its
terms when and as the same shall become due and payable, and such default shall continue unremedied
for a period of five business days;


then, (x) at any time thereafter during the continuance of such event described in clause (ii) or
(iii) above, the Payee may, by notice to the Payor, declare the Note to be immediately due and
payable in whole (or in part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of the Note so declared
to be due and payable, together with accrued interest thereon and all fees and other obligations of
the Payor accrued hereunder, shall become due and payable immediately, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the Payor, and (y) in case
of any event with respect to the Payor described in clause (i) above, the principal of the Note
then outstanding, together with accrued interest thereon and all fees and other obligations of the
Payor accrued hereunder, shall automatically become due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the Payor.




     This Note, and all payments in respect hereof, has been pledged as collateral for the
obligations of the Payee under [(i)] that certain [INSERT APPROPRIATE PLEDGE AGREEMENT DETAILS],
dated as of the date hereof, among the Payor, GOLDMAN SACHS CREDIT PARTNERS L.P., as collateral
agent (in such capacity, the “First Lien Collateral Agent”) and the other parties signatory
thereto[, and (ii) that certain Pledge Agreement, dated as of the date hereof, among the Payor,
CAPITALSOURCE FINANCE LLC as agent (in such capacity, the “Second Lien Collateral Agent”)
and the other parties signatory thereto, (collectively, and each as amended, modified and/or
supplemented from time to time, the “Pledge Agreements”)].



     The Payor agrees, and the Payee by accepting this Note agrees, that the indebtedness
evidenced by this Note is subordinated in fight of payment, to the extent and in the provided in
the Intercompany Subordination Agreement, dated as of the date hereof by among the First Lien
Collateral Agent, the Second Lien Collateral Agent, AZ CHEM US INC., a Delaware corporation (the
“U.S. Borrower”), PROSERPINA 1073 AB (under name change ARIZONA CHEM SWEDEN AB), a limited
liability company organized under the laws of Sweden (the “European Borrower”, and together
with the U.S. Borrower, the “Borrowers”), the Payor, the Payee and the other parties
thereto, as amended, amended and restated, modified and/or supplemented or replaced and in effect
from time to time (the “Intercompany Subordination Agreement”), and to the prior payment in
full of all existing and future Senior Debt (as defined in the Intercompany Subordination Agreement)
of the Payor and that the subordination is



 









 




for the benefit of and enforceable by the holders of such Senior Debt. The Note shall rank senior
in right of payment to all existing and future indebtedness of the Payor that is by its terms
subordinated in right of payment to the indebtedness evidenced by this Note (such subordinated
indebtedness, “Subordinated Debt”). Only indebtedness of the Payor that is Senior Debt
shall rank senior to this Note in right of payment. The Note shall
rank pari passu in right of
payment with all existing and future indebtedness of the Payor that does not constitute either
Senior Debt or Subordinated Debt.




     The Payor hereby acknowledges and agrees, and the Payee by accepting this Note
acknowledges and agrees, that the Collateral Agent[s] may, pursuant to the [INSERT APPROPRIATE
PLEDGE AGREEMENT(S)], exercise all rights provided therein with respect to this Note and that the
Note remains subject to the provisions of the Intercompany Subordination Agreement and the [INSERT
APPROPRIATE PLEDGE AGREEMENT(S)], until they are terminated in accordance with their terms. Any
sale or transfer of this Note to a third party other than pursuant to the [INSERT APPROPRIATE
PLEDGE AGREEMENT(S)], or as permitted by the Intercompany Subordination Agreement is null and void
ab initio; it being understood that the Note may be transferred to and among the Payee and its
direct subsidiaries.



     The Payee is hereby authorized (but shall not be required) to record all loans and advances
made by it to the Payor (all of which shall be evidenced by this Note), and all repayments or
prepayments thereof, in its books and records, such books and records
constituting prima facie
evidence of the accuracy of the information contained therein.



     The Payor hereby waives presentment, demand, protest or notice of any kind in connection with
this Note. This Note is intended by the Payor and the Payee as a final expression of this Note and
as a complete and exclusive statement of its terms, there being no conditions to the enforceability
of this Note. This Note may not be supplemented or modified except in writing and except as may be
permitted by each Credit Agreement (as defined in the Intercompany Subordination Agreement).



 









 





     THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW
YORK.



	 	 	 	 	 
	 	[                                        ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



 




 




 




 




[Signature Page to Intercompany Note]




 









 





ENDORSEMENT



     The undersigned hereby assigns and transfers to the order of                               ,
the attached Intercompany Note, dated [                    ].



	 	 	 	 	 
	 	[                                        ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 












 





EXHIBIT J TO

SECOND LIEN CREDIT AND GUARANTY AGREEMENT




JOINDER AGREEMENT




     THIS JOINDER AGREEMENT, dated as of [                       , 20  ] (this “Agreement”), by and among [NEW
LENDERS] (each a “Lender” and collectively the “Lenders”), dated as of February 28, 2007 (as it may
be amended, supplemented or otherwise modified, the “Credit Agreement”; the terms defined therein
and not otherwise defined herein being used herein as therein defined), by and among AZ CHEM US
INC., a Delaware corporation (“Borrower”), AZ CHEM US HOLDINGS INC., a Delaware corporation, (“U.S.
Holdings”), and CERTAIN SUBSIDIARIES OF U.S. HOLDINGS, as Guarantors (“Subsidiaries”), GOLDMAN
SACHS CREDIT PARTNERS L.P. (“GSCP”), as Syndication Agent, and CAPITALSOURCE FINANCE LLC, as
Administrative Agent and Collateral Agent.



RECITALS:




     WHEREAS, reference is hereby made to the Second Lien Credit and Guaranty Agreement, dated
as of February 28, 2007 (as it may be amended, restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”; the terms defined therein and not otherwise defined herein
being used herein as therein defined), by and among the Lenders party thereto from time to time,
GSCP, as Syndication Agent, and CAPITALSOURCE FINANCE LLC, as Administrative Agent and Collateral
Agent; and



     WHEREAS, subject to the terms and conditions of the Credit Agreement, Borrower may obtain New
Term Loan Commitments by entering into one or more Joinder Agreements with the New Term Loan
Lenders.



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



     Each Lender party hereto hereby agrees to commit to provide its respective Commitment as set
forth on Schedule A annexed hereto, on the terms and subject to the conditions set forth below:



     Each Lender (i) confirms that it has received a copy of the Credit Agreement and the other
Credit Documents, together with copies of the financial statements referred to therein and such
other documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Joinder Agreement (this “Agreement”); (ii) agrees that it will,
independently and without reliance upon the Administrative Agent or any other Lender or Agent and
based on such documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit Agreement; (iii)
appoints and authorizes Administrative Agent, Collateral Agent and Syndication Agent to take such
action as agent on its behalf and to exercise such powers under the Credit Agreement and the
other Credit Documents as are delegated to Administrative Agent, Collateral Agent and Syndication
Agent, as the case may be, by the terms thereof, together with such powers as are reasonably
incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Credit Agreement are required to be performed by it as
a Lender.



     Each Lender hereby agrees to make its Commitment on the following terms and
conditions:




	1	 	Applicable Margin. The Applicable Margin for each New Term Loan shall mean, as
of any date of determination, [   ]% per annum





EXHIBIT J-1









 






	2.	 	Principal Payments. Borrower shall make [principal payments on the New Term Loans
in installments] on the dates and in the amounts set forth below:





	 	 	 	 	 
	 	 	(B)
	(A)	 	Scheduled
	Payment	 	Repayment of
	Date	 	New Term Loans
	 
	 	$	                    	 
	 
	 	$	                    	 
	 
	 	$	                    	 
	 
	 	$	                    	 
	 
	 	$	                    	 
	 
	 	$	                    	 
	 
	 	$	                    	 
	 
	 	$	                    	 
	 
	 	$	                    	 
	 
	 	$	                    	 
	 
	 	$	                    	 
	 
	 	$	                    	 
	 
	 	$	                    	 
	 
	 	$	                    	 
	          TOTAL
	 	$	                    	 







	3.	 	Voluntary and Mandatory Prepayments. [Scheduled installments of principal of]
the New Term Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the New Term Loans in accordance with Sections 2.12, 2.13 and 2.14
of the Credit Agreement respectively; and provided further, that the New Term Loans and all
other amounts under the Credit Agreement with respect to the New Term Loans shall be paid
in full no later than six months prior to the maturity of any Subordinated Indebtedness,
and the final installment payable by Borrower in respect of the New Term Loans on such date
shall be in an amount, if such amount is different from the amount specified above,
sufficient to repay all amounts owing by Borrower under the Credit Agreement with respect
to the New Term Loans.






	4.	 	Prepayment Fees. Borrower agrees to pay to each New Term Loan Lender the following
prepayment fees, if any: [                    ].
	 
	 	 	[Insert other additional prepayment provisions with respect to New Term Loans]
	 
	5.	 	Other Fees. Borrower agrees to pay each New Term Loan Lender its Pro Rata Share of
an aggregate fee equal to [                        ,    ] on [                        ,    ].





EXHIBIT J-2









 






	6.	 	Proposed Borrowing. This Agreement represents Borrower’s request to borrow New Term
Loans from New Term Loan Lender as follows (the “Proposed
Borrowing”):





	 	 	 	 	 	 	 	 	 	 	 

	 	 	a.	 	Business Day of Proposed Borrowing:                     ,    
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	b.	 	Amount of Proposed Borrowing: $                    
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	c.
	 	Interest rate option:
	 	o
	 	a.
	 	Base Rate Loan(s)
	 

	 	 	 	 	 	o
	 	b.
	 	Eurodollar Rate Loans
with an initial Interest
Period of       month(s)







	7.	 	[New Lenders. Each New Term Loan Lender acknowledges and agrees that upon its execution
of this Agreement and the making of New Term Loans that such New Term Loan Lender shall
become a “Lender” under, and for all purposes of, the Credit Agreement and the other Credit
Documents, and shall be subject to and bound by the terms thereof, and shall perform all the
obligations of and shall have all rights of a Lender thereunder.]1
	 
	8.	 	Credit Agreement Governs. Except as set forth in this Agreement, New Term Loans shall
otherwise be subject to the provisions of the Credit Agreement and the other Credit Documents.
	 
	9.	 	Borrower’s Certifications. By its execution of this Agreement, the undersigned officer, to
the best of his or her knowledge, and Borrower hereby certify that:






	 	i.	 	The representations and warranties contained in the Credit Agreement and the other
Credit Documents are tree and correct in all material respects on and as of the date
hereof to the same extent as though made on and as of the date hereof, except to the
extent such representations and warranties specifically relate to an earlier date, in
which case such representations and warranties were true and correct in all material
respects on and as of such earlier date;
	 
	 	ii.	 	No event has occurred and is continuing or would result from the consummation of
the Proposed Borrowing contemplated hereby that would constitute a Default or an Event
of Default; and
	 
	 	iii.	 	Borrower has performed in all material respects all agreements and satisfied all
conditions which the Credit Agreement provides shall be performed or satisfied by it on
or before the date hereof.






	10.	 	Borrower Covenants. By its execution of this Agreement, Borrower hereby covenants
that:






	 	i.	 	Borrower shall deliver or cause to be delivered the following legal
opinions and documents: the legal opinion of [Sullivan & Cromwell LLP], together
with all other legal opinions and other documents reasonably requested by
Administrative Agent in connection with this Agreement; and
	 
	 	iii.	 	Set forth on the attached Officers’ Certificate are the calculations (in
reasonable detail) demonstrating compliance with the financial tests described in
Section 6.8 of the Credit Agreement.






	11.	 	Eligible Assignee. By its execution of this Agreement, each New Term Loan Lender
represents and warrants that it is an Eligible Assignee.







 




			
	1	 	Insert bracketed language if the lending institution is not already a Lender.





EXHIBIT J-3









 






	12.	 	Notice. For purposes of the Credit Agreement, the initial notice address of each New
Term Loan Lender shall be as set forth below its signature below.
	 
	13.	 	Non-US Lenders. For each New Term Loan Lender that is a Non-US Lender, delivered herewith
to Administrative Agent are such forms, certificates or other evidence with respect to United
States federal income tax withholding matters as such New Term Loan Lender may be required to
deliver to Administrative Agent pursuant to subsection 2.20(d) of the Credit Agreement.
	 
	14.	 	Recordation of the New Loans. Upon execution and delivery hereof, Administrative Agent will
record the New Term Loans made by New Term Loan Lenders in the Register.
	 
	15.	 	Amendment, Modification and Waiver. This Agreement may not be amended, modified or waived
except by an instrument or instruments in writing signed and delivered on behalf of each of the
parties hereto.
	 
	16.	 	Entire Agreement. This Agreement, the Credit Agreement and the other Credit
Documents constitute the entire agreement among the parties with respect to the subject matter
hereof and thereof and supersede all other prior agreements and understandings, both written and
verbal, among the parties or any of them with respect to the subject matter hereof.
	 
	17.	 	GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
	 
	18.	 	Severability. Any term or provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms and provisions of
this Agreement or affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.
	 
	19.	 	Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed
to be an original, but all of which shall constitute one and the same agreement.





[Remainder of page intentionally left blank]




EXHIBIT J-4









 





     IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to
execute and deliver this Joinder Agreement as of [                    ,     ].



	 	 	 	 	 
	 	[NAME OF LENDER]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	Notice Address:







Attention: 

Telephone: 

Facsimile: 

 	 
	 	 	 
	 	 	 
	 	 	 
	 



	 	 	 	 	 
	 	AZ CHEM US INC. 

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	AZ CHEM US HOLDINGS INC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 	[NAME OF SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



EXHIBIT J-5









 





	 	 	 	 
	Consented to by:

CAPITALSOURCE FINANCE LLC
as Administrative Agent 

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



EXHIBIT J-6









 





SCHEDULE A

TO JOINDER AGREEMENT




	 	 	 	 	 
	Name of Lender	 	Type of Commitment	 	Amount
	[                         ]

	 	New Term Loan Commitment
	 	$                    
	 
	 	 	 	 
	 

	 	 	 	Total: $                    






EXHIBIT J-7









 




EXHIBIT K TO

SECOND LIEN CREDIT AND GUARANTY AGREEMENT




INTERCREDITOR AGREEMENT




See Execution Version under Tab 9



INTERCREDITOR AGREEMENT




          This
INTERCREDITOR AGREEMENT (“Agreement”), is dated as
of February 28, 2007, and entered into by
and among AZ CHEM US INC. (“U.S. Borrower”), GOLDMAN SACHS CREDIT PARTNERS L.P. (“GSCP”), in its
capacity as collateral agent for the First Lien Obligations (as
defined below), including its successors and assigns from time to time (the “First Lien
Collateral Agent”), and CAPITALSOURCE FINANCE
LLC (“CapitalSource”), in its capacity as collateral agent for the Second Lien Obligations (as
defined below), including its successors and assigns from time to time (the “Second Lien Collateral
Agent”). Capitalized terms used in this Agreement have the meanings assigned to them in Section 1 below.




RECITALS




          The U.S. Borrower, ARIZONA CHEM SWEDEN AB (“European Borrower”, and together with U.S.
Borrower, the “Borrowers”), ARIZONA CHEM SWEDEN HOLDINGS AB (“Holdings”), AZ CHEM US HOLDINGS INC.
(“U.S. Holdings”) and certain other subsidiaries of Holdings, the lenders and agents party thereto,
and GSCP, as Lead Arranger, Bookrunner, Administrative Agent and Collateral Agent, have entered
into that Credit and Guaranty Agreement dated as of the date hereof providing for term loan facilities and
a revolving credit facility (as amended, restated, supplemented, modified, replaced or refinanced from time
to time, the “First Lien Credit Agreement”);




          The U.S. Borrower, U.S. Holdings, certain subsidiaries of U.S. Holdings, the
lenders and agents party thereto, and GSCP, as Lead Arranger (in such capacity, the
“Lead Arranger”) and Bookrunner and CapitalSource, as Administrative Agent and
Collateral Agent, entered into that Credit Agreement dated as of the date hereof
providing for a term loan (as amended, restated, supplemented, modified, replaced
or refinanced from time to time, the “Second Lien Credit Agreement”);




          Pursuant to (i) the First Lien Credit Agreement, U.S. Holdings has agreed to guaranty and U.S.
Holdings and U.S. Borrower have agreed to cause certain current and future U.S. Subsidiaries and
Non-U.S. Subsidiaries (each, as defined in the First Lien Credit Agreement) (such U.S. Subsidiaries
and any future U.S. Subsidiaries of U.S. Borrower providing a guaranty of the Obligations of the
U.S. Borrower (as defined in the First Lien Credit Agreement) thereunder, the “U.S. Subsidiary
Guarantors”) agree to guaranty the First Lien Obligations (the “First Lien Guaranty”) and (ii) the
Second Lien Credit Agreement, U.S. Holdings
has agreed to guaranty and U.S. Holdings and U.S. Borrower have agreed to cause certain
current and future U.S. Subsidiaries to agree to guaranty the Second Lien Obligations (the “Second
Lien Guaranty”);




          The obligations of U.S. Borrower under the First Lien Credit Agreement and any Hedge
Agreements with a Lender Counterparty, the obligations of U.S. Holdings and the U.S. Subsidiary
Guarantors under the First Lien Guaranty will be secured on a first priority basis by liens on
substantially all the assets of U.S. Borrower, U.S. Holdings





EXHIBIT K-1












 




and the U.S. Subsidiary Guarantors, respectively, pursuant to the terms of the First Lien
Collateral Documents;




          The obligations of the U.S. Borrower under the Second Lien Credit Agreement, the obligations
of U.S. Holdings and the obligations of the U.S. Subsidiary Guarantor under the Second Lien
Guaranty will be secured on a second priority basis by liens on substantially all the assets of
the U.S. Borrower, U.S. Holdings and the U.S. Subsidiary Guarantors, respectively, pursuant to the
terms of the Second Lien Collateral Documents;




          The First Lien Loan Documents and the Second Lien Loan Documents provide, among other things,
that the parties thereto shall set forth in this Agreement their respective rights and remedies
with respect to the Collateral; and




          In
order to induce the First Lien Collateral Agent and the First Lien Claimholders to
consent to the Grantors incurring the Second Lien Obligations and to induce the First Lien
Claimholders to extend credit and other financial accommodations and lend monies to or for the
benefit of the U.S. Borrower or any other Grantor, the Second Lien Collateral Agent on behalf of
the Second Lien Claimholders has agreed to the intercreditor and other provisions set forth in
this Agreement.




AGREEMENT




          In
consideration of the foregoing, the mutual covenants and obligations herein set forth and for other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree
as follows:




          SECTION 1. Definitions.




          1.1 Defined Terms. As used in the Agreement, the following terms shall have the
following meanings:




          “Affiliate” means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, controls or is controlled by or is under common
control with the Person specified. For purposes of this definition, a Person shall be deemed to
“control” or be “controlled by” a Person if such Person possesses, directly or indirectly, power
to direct or cause the direction of the management or policies of such Person whether through
ownership of equity interests, by contract or otherwise.




          “Agreement” means this Intercreditor Agreement, as amended, restated, renewed, extended,
supplemented or otherwise modified from time to time.




          “Asset Sale” has the meaning assigned to that term in the First Lien Credit Agreement.





EXHIBIT K-2









 








          “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now
and hereafter in effect, or any successor statute.




          “Bankruptcy Law” means the Bankruptcy Code and any similar federal, state or foreign law
for the relief of debtors.




          “Business Day” means a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close.




          “Cap Amount” has the meaning assigned to that term within the definition of “First Lien
Obligation”.




          “Collateral” means all of the assets and property of any Grantor, whether real, personal or
mixed, constituting both First Lien Collateral and Second Lien Collateral.




          “Comparable Second Lien Collateral Document” means, in relation to any Collateral subject to
any Lien created under any First Lien Collateral Document, the Second Lien Loan Document which
creates a Lien on the same Collateral, granted by the same Grantor.




          “Currency Agreement” means any foreign exchange contract, currency swap agreement, futures
contract, option contract, synthetic cap or other similar agreement or arrangement, each of which
is for the purpose of hedging the foreign currency risk associated with Holdings’ and its
Subsidiaries’ operations and not for speculative purposes.



          “DIP
Financing” has the meaning
assigned to that term in Section 6.1.




          “Discharge of First Lien Obligations”means, except to the extent otherwise expressly provided
in Section 5.5:




          (a) payment in full in cash of the principal of and interest (including interest accruing
on or after the commencement of any Insolvency or Liquidation Proceeding, whether or not such
interest would be allowed in such Insolvency or Liquidation Proceeding), on all Indebtedness
outstanding under the First Lien Loan Documents and constituting First Lien Obligations;




          (b) payment in full in cash of all other First Lien Obligations that are due and payable
or otherwise accrued and owing at or prior to the time such principal and interest are paid;




          (c) termination or expiration of all commitments, if any, to extend credit that
would constitute First Lien Obligations; and




          (d) termination or cash collateralization (in an amount and manner reasonably satisfactory
to the First Lien Collateral Agent, but in no event greater than





EXHIBIT K-3









 







105% of the aggregate undrawn face amount) of all letters of credit issued under the First
Lien Loan Documents and constituting First Lien Obligations.




          “Disposition” has the meaning assigned to that term in Section 5.1(a)(2).




          “European U.S. Borrower” has the meaning assigned to that term in the Preamble to this
Agreement




          “First Lien Claimholders” means, at any relevant time, the holders of First Lien Obligations
at that time, including the First Lien Lenders and the agents under the First Lien Loan Documents.




          “First Lien Collateral Agent” has the meaning assigned to that term the Recitals to this
Agreement.




          “First Lien Collateral” means all of the assets and property of any Grantor, whether
real, personal or mixed, with respect to which a Lien is granted as security for any First Lien
Obligations.




          “First Lien Collateral Documents” means the Collateral Documents (as defined in the First
Lien Credit Agreement) and any other agreement, document or instrument pursuant to which a Lien is
granted securing any First Lien Obligations or under which rights or remedies with respect to such
Liens are governed.




          “First
Lien Credit Agreement” has the meaning assigned to that term the Recitals to this
Agreement.




          “First
Lien Guaranty” has the meaning assigned to that term in Recitals to this Agreement.




          “First
Lien Lenders” means the “Lenders” under and as defined in the First Lien Loan
Documents.




          “First Lien Loan Documents” means the First Lien Credit Agreement and the Credit Documents
(as defined in the First Lien Credit Agreement), including Hedge Agreements entered into with a
Lender Counterparty, and each of the other agreements, documents and instruments providing for or
evidencing any other First Lien Obligation, and any other document or instrument executed or
delivered at any time in connection with any First Lien Obligations, including any intercreditor
or joinder agreement among holders of First Lien Obligations, to the extent such are effective at
the relevant time, as each may be amended, restated, supplemented, modified, renewed or extended
from time to time in accordance with the provisions of this Agreement.




          “First Lien Mortgages” means a collective reference to each mortgage, deed of trust and
other document or instrument under which any Lien on real property owned or leased by any Grantor
is granted to secure any First
Lien Obligations or under which rights or remedies with respect to any such Liens are
governed.




EXHIBIT K-4









 








          “First Lien Obligations” means, subject to the next sentence, all Obligations of the U.S.
Borrower (as defined in the First Lien Credit Agreement) outstanding under the First Lien Credit
Agreement and the other First Lien Loan Documents, including Hedge Agreements entered into with any
Lender Counterparty. “First Lien Obligations” shall include all interest accrued or accruing (or
which would, absent commencement of an Insolvency or Liquidation
Proceeding, accrue) after commencement of an
Insolvency or Liquidation Proceeding in accordance with the rate specified in the relevant First Lien
Loan Document whether or not the claim for such interest is allowed as a claim in such Insolvency or
Liquidation Proceeding.




          Notwithstanding the foregoing, if the sum of.” (1) Indebtedness for borrowed money
constituting principal outstanding under the First Lien Credit Agreement and the other First Lien
Documents; plus (2) the aggregate face amount of any letters of credit issued but not reimbursed
under the First Lien Credit Agreement, is in excess of $423,500,000 in the aggregate (the “Cap
Amount”), then only that portion of such Indebtedness and such aggregate face amount of letters of
credit equal to the Cap Amount shall be included in First Lien Obligations and interest and
reimbursement obligations with respect to such Indebtedness and letters of credit shall only
constitute First Lien Obligations to the extent related to Indebtedness and face amounts of
letters of credit included in the First Lien Obligations.




          “Governmental Authority” means any federal, state, municipal, national or other
government, governmental department, commission, board, bureau, court, agency or instrumentality
or political subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each case
whether associated with a state of the United States, the United States, or a foreign entity or
government.




          “Grantors” means the U.S. Borrower, U.S. Holdings, each of the U.S. Subsidiary
Guarantor and each other domestic Person that has or may from time to time hereafter execute and
deliver a First Lien Collateral Document or a Second Lien Collateral Document as a “Grantor” (or
the equivalent thereof).




          “Hedge Agreements” means an Interest Rate Agreement or a Currency Agreement entered into
with a Lender Counterparty in order to satisfy the requirements of the First Lien Credit
Agreement or otherwise in the ordinary course of Holding’s or any of its Subsidiaries’
businesses.




          “Hedging Obligation” of any Person means any obligation of such Person pursuant to any
Hedge Agreements.




          “Holdings” has the meaning set forth in the Recitals to this Agreement.




          “Indebtedness” means and includes all Obligations that constitute “Indebtedness” within the
meaning of the First Lien Credit Agreement or the Second Lien Credit Agreement, as applicable.




          “Insolvency or Liquidation Proceeding” means:





EXHIBIT K-5









 








          (a) any
voluntary or involuntary case or proceeding under the Bankruptcy Code with respect to
any Grantor;




          (b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case
or proceeding, or any receivership, liquidation, reorganization or other similar case or
proceeding with respect to any Grantor or with respect to a material portion of their respective
assets;




          (c) any liquidation, dissolution, reorganization or winding up of any Grantor whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy;




          (d) any assignment for the benefit of creditors or any other marshalling of assets and
liabilities of any Grantor; or




          (e) the foreign equivalent of the foregoing.




          “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedging agreement or other similar
agreement or arrangement each of which is for the purpose of hedging the interest rate exposure
associated with Holdings’ and its Subsidiaries’ operations and not for speculative purposes.




          “Lender Counterparty” means the Lead Arranger and each First Lien Lender or any Affiliate of
a First Lien Lender counterparty to a Hedge Agreement (including any Person who is a First Lien
Lender (and any Affiliate thereof) as of the Closing Date but subsequently, whether before or
after entering into a Hedge Agreement, ceases to be a First Lien Lender) including, without
limitation, each such Affiliate that enters into a joinder agreement with the First Lien
Collateral Agent.




          “Lien” means any lien, mortgage, pledge, assignment, security interest, charge or encumbrance
of any kind (including any agreement to give any of the foregoing, any conditional sale or other
title retention agreement, and any lease in the nature thereof) and any option, trust, UCC
financing statement or other preferential arrangement having the practical effect of any of the
foregoing.




          “New Agent” has the meaning assigned to that term in Section 5.5.




          “Obligations”
means all obligations of every nature of each Grantor from time to time owed to
any agent or trustee, the First Lien Claimholders, the Second Lien Claimholders or any of them or their
respective Affiliates, in each case under the First Lien Loan Documents, the Second Lien Loan Documents
or Hedge Agreements, whether for
principal, interest or payments for early termination of Interest
Rate Agreements, fees, expenses,
indemnification or otherwise and all guarantees of any of the foregoing.




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




EXHIBIT K-6









 








          “Pledged Collateral” has the meaning set forth in Section 5.4.




          “Recovery” has the meaning set forth in Section 6.5.




          “Refinance” means, in respect of any Indebtedness, to refinance, extend, renew, defease,
amend, modify, supplement, restructure, replace, refund or repay, or to issue other indebtedness,
in exchange or replacement for, such Indebtedness in whole or in
part. “Refinanced” and
“Refinancing” shall have correlative meanings.




          “Second Lien Claimholders” means, at any relevant time, the holders of Second Lien
Obligations at that time, including the Second Lien Lenders and the agents under the Second Lien
Loan Documents.




          “Second Lien Collateral” means all of the assets and property of any Grantor, whether real,
personal or mixed, with respect to which a Lien is granted as security for any Second Lien
Obligations.




          “Second Lien Collateral Agent” has the meaning assigned to that term in the Preamble of
this Agreement.




          “Second
Lien Collateral Documents” means the Collateral Documents
(as defined in the
Second Lien Credit Agreement) and any other agreement, document or instrument pursuant to which a
Lien is granted securing any Second Lien Obligations or under which rights or remedies with
respect to such Liens are governed.




          “Second
Lien Credit Agreement” has the meaning assigned to that term in the Recitals to
this Agreement.


          “Second
Lien Guaranty” has the meaning assigned to that term in the Recitals to
this Agreement.




          “Second Lien Lenders” means the “Lenders” under and as defined in the Second Lien Credit
Agreement.




          “Second Lien Loan Documents” means the Second Lien Credit Agreement and the Credit Documents
(as defined in the Second Lien Credit Agreement) and each of the other agreements, documents and
instruments providing for or evidencing any other Second Lien Obligation, and any other document
or instrument executed or delivered at any time in connection with any Second Lien Obligations,
including any intercreditor or joinder agreement among holders of Second Lien Obligations to the
extent such are effective at the relevant time, as each may be amended, restated, supplemented,
modified, renewed or extended from time to time in accordance with the provisions of this
Agreement.




          “Second Lien Mortgages” means a collective reference to each mortgage, deed of trust and any
other document or instrument under which any Lien on real property owned or leased by any Grantor
is granted to secure any Second Lien



EXHIBIT K-7









 






Obligations or under which rights or remedies with respect to
any such Liens are governed.




          “Second Lien Obligations” means all Obligations outstanding under the Second Lien Credit
Agreement and the other Second Lien Loan Documents. “Second Lien Obligations” shall include all
interest accrued or accruing (or which would, absent commencement of an Insolvency or Liquidation
Proceeding, accrue) after commencement of an Insolvency or Liquidation Proceeding in accordance
with the rate specified in the relevant Second Lien Loan Document whether or not the claim for
such interest is allowed as a claim in such Insolvency or Liquidation Proceeding.




          “Standstill Period” has the meaning set forth in Section 3.1.




          “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled (without regard
to the occurrence of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of
that Person or a combination thereof.




          “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in
effect in any applicable jurisdiction.




          “U.S. Borrower” has the meaning assigned to that term in the Preamble to this Agreement.




          “U.S.
Holdings” has the meaning assigned to that term in the
Recitals to this Agreement.




          “U.S. Subsidiary Guarantor” has the meaning set forth in the Recitals to this
Agreement.




          1.2
Terms Generally. The definitions of terms in this
Agreement shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words “include, includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall
be construed to have the same meaning and effect as the word
“shall.” Unless the context requires otherwise:




          (a) any definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other document as from
time to time amended, restated, supplemented, modified, renewed or extended;





EXHIBIT K-8












 





          (b) any reference herein to any Person shall be construed to include such Person’s
permitted successors and assigns;




          (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof;




          (d) all references herein to Sections shall be construed to refer to Sections of this
Agreement; and




          (e) the words “asset” and “property” shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.




          SECTION 2. Lien Priorities.




          2.1 Relative Priorities. Notwithstanding the date, time, method, manner or order
of grant, attachment or perfection of any Liens securing the Second Lien Obligations granted on
the Collateral or of any Liens securing the First Lien Obligations granted on the Collateral and
notwithstanding any provision of the UCC, or any other applicable law or the Second Lien Loan
Documents or any defect or deficiencies in, or failure to perfect, the Liens securing the First
Lien Obligations or any other circumstance whatsoever, the Second Lien Collateral Agent, on behalf
of itself and the Second Lien Claimholders, hereby agrees that:




          (a) any Lien on the Collateral securing any First Lien Obligations now or hereafter held
by or on behalf of the First Lien Collateral Agent or any First Lien Claimholders or any agent or
trustee therefor, regardless of how acquired, whether by grant, possession, statute, operation of
law, subrogation or otherwise, shall be senior in all respects and prior to any Lien on the
Collateral securing any Second Lien Obligations; and




          (b) any Lien on the Collateral securing any Second Lien Obligations now or hereafter held by
or on behalf of the Second Lien Collateral Agent, any Second Lien Claimholders or any agent or
trustee therefor regardless of how acquired, whether by grant, possession, statute, operation of
law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on
the Collateral securing any First Lien Obligations. All Liens on the Collateral securing any
First Lien Obligations shall be and remain senior in all respects and prior to all Liens on the
Collateral securing any Second Lien Obligations for all purposes, whether or not such Liens
securing any First Lien Obligations are subordinated to any Lien securing any other obligation of
U.S. Borrower, any other Grantor or any other Person.




          2.2 Prohibition on Contesting Liens. Each of the Second Lien Collateral Agent, for
itself and on behalf of each Second Lien Claimholder, and the First Lien Collateral Agent, for
itself and on behalf of each First Lien Claimholder, agrees that it will not (and hereby waives
any right to) contest or support any other Person in contesting, in any proceeding (including any
Insolvency or Liquidation Proceeding), the




EXHIBIT K-9









 







perfection, priority, validity or enforceability of a Lien held by or on behalf of any of the First
Lien Claimholders in the First Lien Collateral or by or on behalf of any of the Second Lien
Claimholders in the Second Lien Collateral, as the case may be, or the provisions of this
Agreement; provided that nothing in this Agreement shall be construed to prevent or impair
the rights of the First Lien Collateral Agent, any First Lien Claimholder, the Second Lien
Collateral Agent, or any Second Lien Claimholder to enforce this Agreement, including the
provisions of this Agreement relating to the priority of the Liens securing the First Lien
Obligations and the Liens securing the Second Lien Obligations as provided in Sections 2.1 and 3.1.




          2.3 No New Liens. So long as the Discharge of First Lien Obligations has not
occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against
U.S. Borrower or any other Grantor, the parties hereto agree that U.S. Borrower shall not, and
shall not permit any other Grantor to:




          (a) grant or permit any additional Liens on any asset or property to secure any Second
Lien Obligation unless it has granted or concurrently grants a Lien on such asset or property to
secure the First Lien Obligations; or




          (b) grant or permit any additional Liens on any asset or property to secure any First
Lien Obligations unless it has granted or concurrently grants a Lien on such asset or property to
secure the Second Lien Obligations.



To the extent that the foregoing provisions are not complied with for any reason, without
limiting any other rights and remedies available to the First Lien Collateral Agent and/or the
First Lien Claimholders, the Second Lien Collateral Agent, on behalf of Second Lien
Claimholders, agrees that any amounts received by or distributed to any of them pursuant to or
as a result of Liens granted in contravention of this Section 2.3 shall be subject to Section
4.2.




          2.4 Similar Liens and Agreements. The parties hereto agree that it is their
intention that the First Lien Collateral and the Second Lien Collateral be identical. In
furtherance of the foregoing and of Section 8.9, the parties hereto agree, subject to the other
provisions of this Agreement:




          (a) upon reasonable request by the First Lien Collateral Agent or the Second Lien
Collateral Agent, to cooperate in good faith (and to direct their counsel to cooperate in good
faith) from time to time in order to determine the specific items included in the First Lien
Collateral and the Second Lien Collateral and the steps taken to perfect their respective Liens
thereon and the identity of the respective parties obligated under the First Lien Loan Documents
and the Second Lien Loan Documents; and




          (b) that the documents and agreements creating or evidencing the First Lien Collateral and
the Second Lien Collateral and guarantees for the First Lien Obligations and the Second Lien
Obligations, subject to Section 5.3(d), shall be in all material respects the same forms of
documents other than with respect to the first lien and the second lien nature of the Obligations
thereunder.






EXHIBIT K-10









 








          SECTION 3. Enforcement.




          3.1 Exercise of Remedies.




          (a) Until the Discharge of First Lien Obligations has occurred, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or against U.S. Borrower or any other
Grantor, the Second Lien Collateral Agent and the Second Lien Claimholders:





          (1) will not exercise or seek to exercise any rights or remedies with respect to any
Collateral (including the exercise of any right of setoff or any right under any lockbox
agreement, account control agreement, landlord waiver or bailee’s letter or similar
agreement or arrangement to which the Second Lien Collateral Agent or any Second Lien
Claimholder is a party) or institute any action or proceeding with respect to such rights
or remedies (including any action of foreclosure); provided, however, that the Second Lien
Collateral Agent may exercise any or all such rights or remedies after the passage of a
period of at least 180 days has elapsed since the later of: (i) the date on which the
Second Lien Collateral Agent declares the existence of any Event of Default under any
Second Lien Loan Documents and demands the repayment of all the principal amount of any
Second Lien Obligations; and (ii) the date on which the First Lien Collateral Agent
receives notice from the Second Lien Collateral Agent of such declarations of an Event of
Default, (the “Standstill Period”); provided, further, however,
that notwithstanding anything herein to the contrary, in no event shall the Second Lien
Collateral Agent or any Second Lien Claimholder exercise any rights or remedies
 with respect to the Collateral if, notwithstanding the expiration of
the Standstill Period, the First Lien Collateral Agent or First Lien Claimholders shall
have commenced and be diligently pursuing the exercise of their rights or remedies with
respect to all or any material portion of the Collateral (prompt notice of such 
exercise to be given to the Second Lien Collateral Agent);




          (2) will not contest, protest or object to any foreclosure proceeding or action
brought by the First Lien Collateral Agent or any First Lien Claimholder or any other
exercise by the First Lien Collateral Agent or any First Lien Claimholder of any rights
and remedies relating to the Collateral under the First Lien Loan Documents or otherwise;
and




          (3) subject to their rights under clause (a)(1) above and except as may be
permitted in Section 3.1(c), will not object to the forbearance by the First Lien
Collateral Agent or the First Lien Claimholders from bringing or pursuing any
foreclosure proceeding or
action or any other exercise of any rights or remedies relating to the Collateral;




provided, that, in the case of(l), (2) and (3) above, the Liens
granted to secure the Second Lien Obligations of the Second Lien Claimholders shall attach
to any proceeds resulting from actions taken by the First Lien Collateral Agent or any
First Lien Claimholder in accordance with this Agreement after application of



EXHIBIT K-11









 






such proceeds to the extent necessary to meet the requirements of a Discharge of First
Obligations.



          (b) Until the Discharge of First Lien Obligations has occurred, whether or not any
Insolvency or Liquidation Proceeding has been commenced by or against U.S. Borrower or any other
Grantor, subject to Section 3.1(a)(1), the First Lien Collateral Agent and the First Lien
Claimholders shall have the right to enforce rights, exercise remedies (including set-off and
the right to credit bid their debt) and make determinations regarding the release, disposition,
or restrictions with respect to the Collateral without any consultation with or the consent of
the Second Lien Collateral Agent or any Second Lien Claimholder; provided, that the Lien
securing the Second Lien Obligations shall remain on the proceeds of such Collateral released or
disposed of subject to the relative priorities described in Section 2. In exercising rights and
remedies with respect to the Collateral, the First Lien Collateral Agent and the First Lien
Claimholders may enforce the provisions of the First Lien Loan Documents and exercise remedies
thereunder, all in such order and in such manner as they may determine in the exercise of their
sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by
them to sell or otherwise dispose of Collateral upon foreclosure, to incur expenses in connection
with such sale or disposition, and to exercise all the rights and remedies of a secured creditor
under the UCC and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.




          (c) Notwithstanding the foregoing, the Second Lien Collateral Agent and any Second Lien
Claimholder may:





          (1) file a claim or statement of interest with respect to the Second Lien Obligations;
provided that an Insolvency or Liquidation Proceeding has been commenced by or
against U.S. Borrower or any other Grantor;




          (2) take any action (not adverse to the priority status of the Liens on the
Collateral securing the First Lien Obligations, or the rights of any First Lien
Collateral Agent or the First Lien Claimholders to exercise remedies in respect thereof)
in order to create, perfect, preserve or protect its Lien on the Collateral;




          (3) file any necessary responsive or defensive pleadings in opposition to any
motion, claim, adversary proceeding or other pleading made by any person objecting to or
otherwise seeking the disallowance of the claims of the Second Lien Claimholders,
including any claims secured by the Collateral, if any, in each case in accordance with
the terms of this Agreement;




          (4) file any pleadings, objections, motions or agreements which assert rights or
interests available to unsecured creditors of the Grantors arising under either any
Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not
inconsistent with the terms of this Agreement;



EXHIBIT K-12









 






          (5) vote on any plan of reorganization, file any proof of claim, make other filings
and make any arguments and motions that are, in each case, in accordance with the terms of
this Agreement, with respect to the Second Lien Obligations and the Collateral; and




          (6) exercise any of its rights or remedies with respect to the Collateral after
the termination of the Standstill Period to the extent permitted by Section 3.1 (a)(1).



          The Second Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders,
agrees that it will not take or receive any Collateral or any proceeds of Collateral in
connection with the exercise of any right or remedy (including set-off) with respect to any
Collateral in its capacity as a creditor in violation of this Agreement. Without limiting the
generality of the foregoing, unless and until the Discharge of First Lien Obligations has
occurred, except as expressly provided in Sections 3.1 (a), 6.3(b) and this Section 3.1(c), the
sole right of the Second Lien Collateral Agent and the Second Lien Claimholders with respect to
the Collateral is to hold a Lien on the Collateral pursuant to the Second Lien Collateral
Documents for the period and to the extent granted therein and to receive a share of the proceeds
thereof, if any, after the Discharge of First Lien Obligations has occurred.




          (d) Subject to Sections 3.1(a) and (c) and Section 6.3(b):





          (1) the Second Lien Collateral Agent, for itself and on behalf of the Second Lien
Claimholders, agrees that the Second Lien Collateral Agent and the Second Lien
Claimholders will not take any action that would hinder any exercise of remedies under the
First Lien Loan Documents or is otherwise prohibited hereunder, including any sale, lease,
exchange, transfer or other disposition of the Collateral, whether by foreclosure or
otherwise;




          (2) the Second Lien Collateral Agent, for itself and on behalf of the Second Lien
Claimholders, hereby waives any and all rights it or the Second Lien Claimholders may
have as a junior lien creditor or otherwise to object to the manner in which the First
Lien Collateral Agent or the First Lien Claimholders seek to enforce or collect the First
Lien Obligations or the Liens securing the First Lien Obligations granted in any of the
First Lien Collateral undertaken in accordance with this Agreement, regardless of whether
any action or failure to act by or on behalf of the First Lien Collateral Agent or First
Lien Claimholders is adverse to the interest of the Second Lien Claimholders; and




          (3) the Second Lien Collateral Agent hereby acknowledges and agrees that no
covenant, agreement or restriction contained in the
Second Lien Collateral Documents or any other Second Lien Document (other than this
Agreement) shall be deemed to restrict in any way the rights and remedies of the First
Lien Collateral Agent or the First Lien Claimholders with respect to the Collateral as
set forth in this Agreement and the First Lien Credit Documents.



EXHIBIT K-13









 





          (e) Except as otherwise specifically set forth in Sections 3.1(a) and (d), the Second Lien
Collateral Agent and the Second Lien Claimholders may exercise rights and remedies as unsecured
creditors against U.S. Borrower or any other Grantor that has guaranteed or granted Liens to
secure the Second Lien Obligations in accordance with the terms of the Second Lien Loan Documents
and applicable law; provided that in the event that any Second Lien Claimholder becomes a
judgment Lien creditor in respect of Collateral as a result of its enforcement of its rights as an
unsecured creditor with respect to the Second Lien Obligations, such judgment Lien shall be
subject to the terms of this Agreement for all purposes (including in relation to the First Lien
Obligations) as the other Liens securing the Second Lien Obligations are subject to this
Agreement.




          (f) Nothing in this Agreement shall prohibit the receipt by the Second Lien Collateral
Agent or any Second Lien Claimholders of the required payments of interest, principal and other
amounts owed in respect of the Second Lien Obligations so long as such receipt is not the direct or
indirect result of the exercise by the Second Lien Collateral Agent or any Second Lien Claimholders of
rights or remedies as a secured creditor (including set-off) or enforcement in contravention of
this Agreement of any Lien held by any of them. Nothing in this Agreement impairs or otherwise adversely affects
any rights or remedies the First Lien Collateral Agent or the First Lien Claimholders may have with
respect to the First Lien Collateral.




          SECTION 4. Payments.




          4.1 Application of Proceeds. So long as the Discharge of First Lien Obligations
has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or
against U.S. Borrower or any other Grantor, Collateral or proceeds thereof received in connection
with the sale or other disposition of, or collection on, such Collateral upon the exercise of
remedies by the First Lien Collateral Agent or First Lien Claimholders, shall be applied by the
First Lien Collateral Agent to the First Lien Obligations in such order as
specified in the relevant First Lien Loan Documents. Upon the Discharge of First Lien Obligations,
the First Lien Collateral Agent shall deliver to the Second Lien Collateral Agent any Collateral
and proceeds of Collateral held by it in the same form as received, with any necessary
endorsements or as a court of competent jurisdiction may otherwise direct to be applied by the
Second Lien Collateral Agent to the Second Lien Obligations in such order as specified in the
Second Lien Collateral Documents.




          4.2 Payments Over. So long as the Discharge of First Lien Obligations has not
occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against
U.S. Borrower or any other Grantor, any Collateral or proceeds thereof (including assets or
proceeds subject to Liens referred to in the final sentence of Section 2.3) received by the Second
Lien Collateral Agent or any Second Lien Claimholders in connection with the
exercise of any right or remedy (including set-off) relating to the Collateral in
contravention of this Agreement shall be segregated and held in trust and forthwith paid over to
the First Lien Collateral Agent for the benefit of the First Lien Claimholders in the same form
as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise
direct. The First Lien Collateral






EXHIBIT K-14









 







Agent is hereby authorized to make any such endorsements as agent for the Second Lien Collateral
Agent or any such Second Lien Claimholders. This authorization is coupled with an interest and is
irrevocable until the Discharge of First Lien Obligations.




          SECTION 5. Other Agreements.




          5.1 Releases.




          (a) If in connection with the exercise of the First Lien Collateral Agent’s remedies
in respect of the Collateral provided for in Section 3.1, the First Lien Collateral Agent, for
itself or on behalf of any of the First Lien Claimholders, releases any of its Liens on any part
of the Collateral or releases any Grantor from its obligations under its guaranty of the First
Lien Obligations in connection with the sale of the stock, or substantially all the assets, of
such Grantor, then the Liens, if any, of the Second Lien Collateral Agent, for itself or for the
benefit of the Second Lien Claimholders, on such Collateral, and the obligations of such Grantor
under its guaranty of the Second Lien Obligations, shall be automatically, unconditionally and
simultaneously released. The Second Lien Collateral Agent, for itself or on behalf of any such
Second Lien Claimholders, promptly shall execute and deliver to the First Lien Collateral Agent or
such Grantor such termination statements, releases and other documents as the First Lien
Collateral Agent or such Grantor may request to effectively confirm such release.




          (b) If in connection with any sale, lease, exchange, transfer or other disposition of any
Collateral (collectively, a “Disposition”) permitted under the terms of both the First Lien Loan
Documents and the Second Lien Loan Documents (other than in connection with the exercise of the
First Lien Collateral Agent’s remedies in respect of the Collateral provided for in Section 3.1),
the First Lien Collateral Agent, for itself or on behalf of any of the First Lien Claimholders,
releases any of its Liens on any part of the Collateral, or releases any Grantor from its
obligations under its guaranty of the First  Lien Obligations in connection
with the sale of the stock, or substantially all the assets, of such Grantor, in each case other
than (A) in connection with the Discharge of First Lien Obligations and (B) after the occurrence
and during the continuance of any Event of Default under the Second Lien Credit Agreement, then
the Liens, if any, of the Second Lien Collateral Agent, for itself or for the benefit of the
Second Lien Claimholders, on such Collateral, and the obligations of such Grantor under its
guaranty of the Second Lien Obligations, shall be automatically, unconditionally and
simultaneously released. The Second Lien Collateral Agent, for itself or on behalf of any such
Second Lien Claimholders, promptly shall execute and deliver to the First Lien Collateral Agent
or such Grantor such termination statements, releases and other documents as the First Lien
Collateral Agent or such Grantor may request to effectively confirm such release.




          (c) Until the Discharge of First Lien Obligations occurs, the Second Lien Collateral
Agent, for itself and on behalf of the Second Lien Claimholders, hereby irrevocably constitutes
and appoints the First Lien Collateral Agent and any officer or agent of the First Lien Collateral
Agent, with full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Second Lien Collateral Agent or such
holder or in the First Lien Collateral Agent’s






EXHIBIT K-15









 







own name, from time to time in the First Lien Collateral Agent’s discretion, for the purpose
of carrying out the terms of this Section 5.1, to take any and all appropriate action and to
execute any and all documents and instruments which may be necessary to accomplish the purposes of
this Section 5.1, including any endorsements or other instruments of transfer or release.




          (d) Until the Discharge of First Lien Obligations occurs, to the extent that the First
Lien Collateral Agent or the First Lien Claimholders (i) have released any Lien on Collateral or
any Grantor from its obligation under its guaranty and any such Liens or guaranty are later
reinstated or (ii) obtain any new liens or additional guarantees from any Grantor, then the Second
Lien Collateral Agent, for itself and for the Second Lien Claimholders, shall be granted a Lien
on any such Collateral, subject to the lien subordination provisions of this Agreement, and an
additional guaranty, as the case may be.




          (e) In the event that the principal amount of funded First Lien Obligations plus the
aggregate face amount of letters of credit, if any, issued under the First Lien Credit Agreement
and not reimbursed plus the aggregate principal amount of unfunded revolving commitments under the
First Lien Credit Agreement (collectively, the “First Lien Obligations Amount”), at any date of
determination no longer constitute at least 15% of the sum of (i) the First Lien Obligations
Amount and (ii) the principal amount of funded Second Lien Obligations (collectively, the “Second
Lien Obligations Amount”), then any agreement provided for in Section 5.1 (a) and (b) above
(except for releases given in connection with a Disposition permitted under the First Lien Loan
Documents and the Second Lien Loan Documents) shall require the consent of First Lien Claimholders
and Second Lien Claimholders representing in the aggregate more than 50% of the sum of (i) the
First Lien Obligations Amount and (ii) the Second Lien
Obligations Amount.




          5.2 Insurance. Unless and until the Discharge of First Lien Obligations has occurred,
subject to the terms of, and the rights of the Grantors under, the First Lien Loan Documents, the
First Lien Collateral Agent and the First Lien Claimholders shall have the sole and exclusive
right to adjust settlement for any insurance policy covering the Collateral in the event of any
loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any
deed in lieu of condemnation) affecting the Collateral. Unless and until the Discharge of First
Lien Obligations has occurred, and subject to the rights of the Grantors under the First Lien Loan
Documents, all proceeds of any such policy and any such award (or any payments with respect to a
deed in lieu of condemnation) if in respect to the Collateral and to the extent required by the
First Lien Loan Documents shall be paid to the First Lien Collateral Agent for the benefit of the
First Lien Claimholders pursuant to the terms of the First Lien Credit Documents (including,
without limitation, for purposes of cash collateralization of letters of credit) and thereafter,
to the extent no First Lien
Obligations are outstanding, and subject to the rights of the Grantors under the Second Lien
Collateral Documents, to the Second Lien Collateral Agent for the benefit of the Second Lien
Claimholders to the extent required under the Second Lien Collateral Documents and then, to the
extent no Second Lien Obligations are outstanding, to the owner of the





EXHIBIT K-16











 




subject property, such other Person as may be entitled thereto or as a court of competent
jurisdiction may otherwise direct. Until the Discharge of First Lien Obligations has occurred, if
the Second Lien Collateral Agent or any Second Lien Claimholders shall, at any time, receive any
proceeds of any such insurance policy or any such award or payment in contravention of this
Agreement, it shall segregate and hold in trust and forthwith pay such proceeds over to the First
Lien Collateral Agent in accordance with the terms of Section 4.2.




          5.3 Amendments to First Lien Loan Documents and Second Lien Loan Documents and
Refinancing. (a) The First Lien Loan Documents may be amended, supplemented or otherwise
modified in accordance with their terms and the First Lien Credit Agreement may be Refinanced, in
each case, without notice to, or the consent of the Second Lien Collateral Agent or the Second
Lien Claimholders, all without affecting the lien subordination or other provisions of this
Agreement; provided, however, that the holders of such Refinancing debt bind
themselves in a writing addressed to the Second Lien Collateral Agent and the Second Lien
Claimholders to the terms of this Agreement and any such amendment, supplement, modification or
Refinancing shall not, without the consent of the Second Lien Collateral Agent:





          (1) increase the sum of (without duplication) (A) the then outstanding aggregate
principal amount of the First Lien Credit Agreement and (B) the aggregate amount of
unfunded revolving commitments under the First Lien Credit Agreement and (C) the aggregate
face amount of any letters of credit issued under the First Lien Credit Agreement and not
reimbursed in excess of the Cap Amount;




          (2) increase the “Applicable Margin” or similar component of the interest rate or
yield provisions applicable to the First Lien Obligations by more than 3% per annum
(excluding increases (A) resulting from application of the pricing grid set forth in the
First Lien Credit Agreement as in effect on the date hereof or (B) resulting from the
accrual of interest at the default rate);




          (3) extend the scheduled maturity of the First Lien Credit Agreement or any
Refinancing thereof beyond the scheduled maturity of Second Lien Credit Agreement or any
Refinancing thereof; or




          (4) contravene the provisions of this Agreement.



          (b) Without the prior written consent of the First Lien Collateral Agent, no Second Lien
Loan Document may be Refinanced, amended, supplemented or otherwise modified or entered into to the
extent such Refinancing, amendment, supplement or modification, or the terms of any new Second Lien
Loan Document, would:





          (1) increase the principal amount of the Second Lien Credit Agreement in excess of
the amount permitted under the First Lien Credit Agreement;



EXHIBIT K-17









 






          (2) increase the “Applicable Margin” or similar component of the interest
rate or yield provisions applicable to the Second Lien Obligations by more than 3% per
annum (excluding increases resulting from the accrual of interest at the default rate);




          (3) change any default or Event of Default thereunder in a manner
adverse to the loan parties thereunder (other than to eliminate any such Event of
Default or increase any grace period related thereto or otherwise make such Event
of Default or condition less restrictive or burdensome on U.S. Borrower);




          (3) change (to earlier dates) any dates upon which payments of
principal or interest are due thereon;




          (4) change the prepayment provisions thereof;




          (5) increase materially the obligations of the obligor thereunder or to
confer any additional material rights on the lenders under the Second Lien Credit
Agreement (or a representative on their behalf) which would be adverse to any
Credit Party or First Lien Lenders; or




          (6) contravene the provisions of this Agreement.



          The Second Lien Credit Agreement may be Refinanced to the extent the terms and conditions of
such Refinancing debt meet the requirements of this Section 5.3(b), the average life to maturity
thereof is greater than or equal to that of the Second Lien Credit Agreement and the holders of
such Refinancing debt bind themselves in a writing addressed to the First Lien Collateral Agent and
the First Lien Claimholders to the terms of this Agreement.




          (c) The U.S. Borrower agrees that each Second Lien Collateral Document shall include
the following language (or language to similar effect approved by the First Lien Collateral Agent):



“Notwithstanding anything herein to the contrary, the
lien and security interest granted to the Second Lien Collateral
Agent pursuant to this Agreement and the exercise of any right
or remedy by the Second Lien Collateral Agent hereunder are
subject to the provisions of the Intercreditor Agreement, dated
as of February 28, 2007 (as amended, restated, supplemented or
otherwise modified from time to time, the “Intercreditor Agreement”), among AZ Chem US
Inc., Goldman Sachs Credit Partners L.P., as First Lien
Collateral Agent and CapitalSource Finance LLC, as Second Lien
Collateral Agent and certain other persons party or that may
become party thereto from time to time. In the event of any
conflict between the terms of the Intercreditor Agreement


EXHIBIT K-18









 






 and this Agreement, the terms of the Intercreditor Agreement shall
govern and control.”



In addition, U.S. Borrower agrees that each Second Lien Mortgage covering any Collateral shall
contain such other language as the First Lien Collateral Agent may reasonably request to reflect
the subordination of such Second Lien Mortgage to the First Lien Collateral Document covering such
Collateral.




          (d) In the event any First Lien Collateral Agent or the First Lien Claimholders and the
relevant Grantor enter into any amendment, waiver or consent in respect of any of the First Lien
Collateral Documents for the purpose of adding to, or deleting from, or waiving or consenting to
any departures from any provisions of, any First Lien Collateral Document or changing in any
manner the rights of the First Lien Collateral Agent, such First Lien Claimholders, U.S. Borrower
or any other Grantor thereunder, then such amendment, waiver or consent shall apply automatically
to any comparable provision of the Comparable Second Lien Collateral Document without the consent
of the Second Lien Collateral Agent or the Second Lien Claimholders and without any action by the
Second Lien Collateral Agent, U.S. Borrower or any other Grantor, provided, that:





          (1)
no such amendment, waiver or consent shall have the effect of:




          (A) removing or releasing assets subject to the Lien of the Second Lien
Collateral Documents, except to the extent that a release of such Lien is permitted
or required by Section 5.1 of this Agreement and provided that there is a
corresponding release of the Liens securing the First Lien Obligations;




          (B) imposing duties on the Second Lien Collateral Agent without its consent;




          (C) permitting other Liens on the Collateral not permitted under the
terms of the Second Lien Loan Documents or Section 6; or




          (D) being prejudicial to the interests of the Second Lien
Claimholders to a greater extent than the First Lien Claimholders; and




          (2) notice of such amendment, waiver or consent shall have been given to the
Second Lien Collateral Agent within ten (10) Business Days after the effective date of such
amendment, waiver or consent.



          5.4 Bailee for Perfection. (a) The First Lien Collateral Agent agrees to hold
that part of the Collateral that is in its possession or control (or in the possession or control
of its agents or bailees) to the extent that possession or control thereof is taken to perfect a
Lien thereon under the UCC (such Collateral being the “Pledged Collateral”) as collateral agent
for the First Lien Claimholders and as bailee for the


EXHIBIT K-19









 







          Second Lien Collateral Agent (such bailment being intended, among other things, to satisfy the requirements of Sections 8-301(a)(2) and
9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest
granted under the First Lien Loan Documents and the Second Lien Loan Documents, respectively,
subject to the terms and conditions of this Section 5.4.




          (b) The First Lien Collateral Agent shall have no obligation whatsoever to the First Lien
Claimholders, the Second Lien Collateral Agent or any Second Lien Claimholder to ensure that the
Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of
any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of
the First Lien Collateral Agent under this Section 5.4 shall be limited solely to holding the
Pledged Collateral as bailee in accordance with this Section 5.4 and delivering the Pledged
Collateral upon a Discharge of First Lien Obligations as provided in paragraph (d) below.




          (c) The First Lien Collateral Agent acting pursuant to this Section 5.4 shall not have by
reason of the First Lien Collateral Documents, the Second Lien Collateral Documents, this
Agreement or any other document a fiduciary relationship in respect of the First Lien
Claimholders, the Second Lien Collateral Agent or any Second Lien Claimholder.




          (d) Upon the Discharge of First Lien Obligations under the First Lien Loan Documents to
which the First Lien Collateral Agent is a party, the First Lien Collateral Agent shall deliver
the remaining Pledged Collateral (if any) together with any necessary endorsements, first,
to the Second Lien Collateral Agent to the extent Second Lien Obligations remain outstanding, and
second, to U.S. Borrower to the extent no First Lien Obligations or Second Lien
Obligations remain outstanding (in each case, so as to allow such Person to obtain possession or
control of such Pledged Collateral). The First Lien Collateral Agent further agrees to take all
other action reasonably requested by the Second Lien Collateral Agent in connection with the
Second Lien Collateral Agent obtaining a first-priority interest in the Collateral or as a court
of competent jurisdiction may otherwise direct.




          (e) Subject to the terms of this Agreement, so long as the Discharge of First Lien
Obligations has not occurred, the First Lien Collateral Agent shall be entitled to deal with the
Pledged Collateral or Collateral within its “control” in accordance with the terms of this
Agreement and other First Lien Credit Documents as if the Liens of the Second Lien Collateral
Agent and Second Lien Claimholders did not exist.




          5.5 When Discharge of First Lien Obligations is Deemed to Not Have Occurred. If
concurrently with the Discharge of First Lien Obligations U.S. Borrower enters into any
Refinancing of any First Lien Loan Document evidencing a First Lien Obligation which Refinancing
is permitted by the Second Lien Loan Documents, then such Discharge of First Lien Obligations
shall automatically be deemed not to have occurred for all purposes of this Agreement (other than
with respect to any actions taken as a result of the occurrence of such first Discharge of First
Lien Obligations), and, from and after the date on which the New First Lien Debt Notice is
delivered to the Second


EXHIBIT K-20









 







          Lien Collateral Agent in accordance with the next sentence, the obligations under such Refinancing of the First Lien Loan Document shall automatically be treated
as First Lien Obligations for all purposes of this Agreement, including for purposes of the Lien
priorities and rights in respect of Collateral set forth herein, and the First Lien Collateral
Agent under such First Lien Loan Documents shall be the First Lien Collateral Agent all purposes
of this Agreement. Upon receipt of a notice (the “New First Lien Debt Notice”) stating that U.S.
Borrower has entered into a new First Lien Loan Document (which notice shall include the identity
of the new first lien collateral agent, such agent, the “New Agent”), the Second Lien Collateral
Agent shall promptly (a) enter into such documents and agreements (including amendments or supplements
to this Agreement) as the U.S. Borrower or such New Agent shall reasonably request in order to
provide to the New Agent the rights contemplated hereby, in each case consistent in all material
respects with the terms of this Agreement and (b) deliver to the New Agent any Pledged Collateral
held by it together with any necessary endorsements (or otherwise allow the New Agent to obtain
control of such Pledged Collateral). The New Agent shall agree in a writing addressed to the
Second Lien Collateral Agent and the Second Lien Claimholders to be bound by the terms of this
Agreement. If the new First Lien Obligations under the new First Lien Loan Documents are secured
by assets of the Grantors constituting Collateral that do not also secure the Second Lien
Obligations, then the Second Lien Obligations shall be secured at such time by a second priority
Lien on such assets to the same extent provided in the Second Lien Collateral Documents and this
Agreement.




          5.6 Purchase Right. Without prejudice to the enforcement of the First Lien
Claimholders remedies, the First Lien Claimholders agree at any time following an acceleration of the First Lien Obligations in accordance with the terms of the
First Lien Credit Agreement, the First Lien Claimholders will offer the Second Lien Claimholders
the option to purchase the entire aggregate amount of outstanding First Lien Obligations
(including unfunded commitments under the First Lien Credit Agreement) at par plus accrued
interest (without regard to any prepayment penalty or premium), without warranty or representation
or recourse, on a pro rata basis across First Lien Claimholders. The Second Lien Claimholders
shall irrevocably accept or reject such offer within ten (10) Business Days of the receipt thereof
and the parties shall endeavor to close promptly thereafter. If the Second Lien Claimholders
accept such offer, it shall be exercised pursuant to documentation mutually acceptable to each of
the First Lien Collateral Agent and the Second Lien Collateral Agent. If the Second Lien
Claimholders reject such offer (or do not so irrevocably accept such offer within the required
timeframe), the First Lien Claimholders shall have no further obligations pursuant to this Section
5.6 and may take any further actions in their sole discretion in accordance with the First Lien
Loan Documents and this Agreement.




SECTION 6. Insolvency or Liquidation Proceedings.




          6.1 Finance and Sale Issues. Until the Discharge of First Lien Obligations has
occurred, if U.S. Borrower or any other Grantor shall be subject to any Insolvency or Liquidation
Proceeding and the First Lien Collateral Agent shall desire to permit the use of “Cash Collateral”
(as such term is defined in Section 363(a) of the


EXHIBIT K-21









 







          Bankruptcy Code), on which the First Lien
Collateral Agent or any other creditor has a Lien or to permit U.S. Borrower or any other Grantor
to obtain financing, whether from the First Lien Claimholders or any other Person under Section
364 of the Bankruptcy Code or any similar Bankruptcy Law (“DIP Financing”), then the Second Lien
Collateral Agent, on behalf of itself and the Second Lien Claimholders, agrees that it will raise
no objection to such Cash Collateral use or DIP Financing so long as such Cash Collateral use or
DIP Financing is (i) on commercially reasonable terms, (ii) the Second Lien Collateral Agent and
the Second Lien Claimholders retain the right to object to any ancillary agreements or
arrangements regarding the Cash Collateral use or the DIP Financing that are materially
prejudicial to their interests and (iii) the DIP Financing (a) does not compel U.S. Borrower to
seek confirmation of a specific plan of reorganization for which all or substantially all of the
material terms are set forth in the DIP Financing documentation or a related document or (b) the
DIP Financing documentation or Cash Collateral order does not expressly require the liquidation of
the Collateral prior to a default under the DIP Financing documentation or Cash Collateral order.
To the extent the Liens securing the First Lien Obligations are subordinated to or pari passu with
such DIP Financing which meets the requirements of clauses (i) through (iii) above, the Second
Lien Collateral Agent will subordinate its Liens in the Collateral to the Liens securing such DIP Financing (and all Obligations relating thereto) and will not request adequate
protection or any other relief in connection therewith (except, as expressly agreed by the First
Lien Collateral Agent or to the extent permitted by Section 6.3).




          6.2 Relief from the Automatic Stay. Until the Discharge of First Lien Obligations has
occurred, the Second Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders,
agrees that none of them shall seek (or support any other Person seeking) relief from the automatic
stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral,
without the prior written consent of the First Lien Collateral Agent, unless a motion for adequate
protection permitted under Section 6.3 has been denied by the Bankruptcy Court.




          6.3 Adequate Protection.




          (a) The Second Lien Collateral Agent, on behalf of itself and the Second Lien
Claimholders, agrees that none of them shall contest (or support any other Person contesting):





          (1) any request by the First Lien Collateral Agent or the First Lien
Claimholders for adequate protection; or




          (2) any objection by the First Lien Collateral Agent or the First Lien
Claimholders to any motion, relief, action or proceeding based on the First Lien
Collateral Agent or the First Lien Claimholders claiming a lack of adequate protection.



          (b) Notwithstanding the foregoing provisions in this Section 6.3, any Insolvency or
Liquidation Proceeding:




EXHIBIT K-22









 









          (1) if the First Lien Claimholders (or any subset thereof) are granted
adequate protection in the form of additional collateral in connection with any Cash
Collateral use or DIP Financing, then the Second Lien Collateral Agent, on behalf of
itself or any of the Second Lien Claimholders, may seek or request adequate protection in
the form of a Lien on such additional collateral, which Lien will be subordinated to the
Liens securing the First Lien Obligations and such Cash Collateral use or DIP Financing
(and all Obligations relating thereto) on the same basis as the other Liens securing the
Second Lien Obligations are so subordinated to the First Lien Obligations under this
Agreement; and




          (2) in the event the Second Lien Collateral Agent, on behalf of itself or any of the
Second Lien Claimholders, seeks or requests adequate protection in respect of Second Lien
Obligations and such adequate protection is granted in the form of additional collateral,
then the Second Lien Collateral Agent, on behalf of itself or any of the Second Lien Claimholders, agrees that the First Lien Collateral Agent shall also be granted a
senior Lien on such additional collateral as security for the First Lien Obligations and
for any Cash Collateral use or DIP Financing provided by the First Lien Claimholders and
that any Lien on such additional collateral securing the Second Lien Obligations shall be
subordinated to the Lien on such collateral securing the First Lien Obligations and any
such DIP Financing provided by the First Lien Claimholders (and all Obligations relating
thereto) and to any other Liens granted to the First Lien Claimholders as adequate
protection on the same basis as the other Liens securing the Second Lien Obligations are
so subordinated to such First Lien Obligations under this Agreement. Except as otherwise
expressly set forth in Section 6.1 or in connection with the exercise of remedies with
respect to the Collateral, nothing herein shall limit the rights of the Second Lien
Collateral Agent or the Second Lien Claimholders from seeking adequate protection with
respect to their rights in the Collateral in any Insolvency or Liquidation Proceeding
(including adequate protection in the form of a cash payment, periodic cash payments or
otherwise).



          6.4 No Waiver. Subject to Sections 3.1(a) and (d), nothing contained herein shall
prohibit or in any way limit the First Lien Collateral Agent or any First Lien Claimholder from
objecting in any Insolvency or Liquidation Proceeding or otherwise to any action taken by the
Second Lien Collateral Agent or any of the Second Lien Claimholders, including the seeking by the
Second Lien Collateral Agent or any Second Lien Claimholders of adequate protection or the
asserting by the Second Lien Collateral Agent or any Second Lien Claimholders of any of its rights
and remedies under the Second Lien Loan Documents or otherwise.




          6.5 Avoidance Issues. If any First Lien Claimholder is required in any Insolvency or
Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of U.S. Borrower
or any other Grantor any amount paid in respect of First Lien Obligations (a “Recovery”), then
such First Lien Claimholders shall be entitled to a reinstatement of First Lien Obligations with
respect to all such recovered amounts. If this Agreement shall have been terminated prior to such
Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination
shall not diminish, release,


EXHIBIT K-23









 







          discharge, impair or otherwise affect the obligations of the parties
hereto from such date of reinstatement.




          6.6 Reorganization Securities. If, in any Insolvency or Liquidation Proceeding, debt
obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor
are distributed pursuant to a plan of reorganization or similar dispositive restructuring plan,
both on account of First Lien Obligations and on account of Second Lien Obligations, then, to the extent the debt
obligations distributed on account of the First Lien Obligations and on account of the Second Lien
Obligations are secured by Liens upon the same property, the provisions of this Agreement will
survive the distribution of such debt obligations pursuant to such plan and will apply with like
effect to the Liens securing such debt obligations.




          6.7 Post-Petition Interest. (a) Neither the Second Lien Collateral Agent nor any
Second Lien Claimholder shall oppose or seek to challenge any claim by the First Lien Collateral
Agent or any First Lien Claimholder for allowance in any Insolvency or Liquidation Proceeding of
First Lien Obligations consisting of post-petition interest, fees or expenses to the extent of
the value of any First Lien Claimholder’s Lien, without regard to the existence of the Lien of
the Second Lien Collateral Agent on behalf of the Second Lien Claimholders on the Collateral.




          (b) Neither the First Lien Collateral Agent nor any other First Lien Claimholder shall oppose
or seek to challenge any claim by the Second Lien Collateral Agent or any Second Lien Claimholder
for allowance in any Insolvency or Liquidation Proceeding of Second Lien Obligations consisting of
post-petition interest, fees or expenses to the extent of the value of the Lien of the Second Lien
Collateral Agent on behalf of the Second Lien Claimholders on the Collateral (after taking into
account the First Lien Collateral).



          6.8
Waiver. The Second Lien Collateral Agent, for itself and
on behalf of the Second Lien Claimholders, waives any claim it may hereafter have against any
First Lien Claimholder arising out of the election of any First Lien Claimholder of the
application of Section 1111(b)(2) of the Bankruptcy Code, and/or out of any cash collateral or
financing arrangement or out of any grant of a security interest in connection with the Collateral
in any Insolvency or Liquidation Proceeding.




          6.9 Separate Grants of Security and Separate Classification. The Second Lien
Collateral Agent, for itself and on behalf of the Second Lien Claimholders, and the First Lien
Collateral Agent for itself and on behalf of the First Lien Claimholders, acknowledges and agrees
that:




          (a) the grants of Liens pursuant to the First Lien Collateral Documents and the Second
Lien Collateral Documents constitute two separate and distinct grants of Liens; and (b) because
of, among other things, their differing rights in the Collateral, the Second Lien Obligations are
fundamentally different from the First Lien Obligations and must be separately classified in any
plan of reorganization proposed or adopted in an Insolvency or Liquidation Proceeding.





EXHIBIT K-24












 




To further effectuate the intent of the parties as provided in the immediately
sentence, if it is held that the claims of the First Lien
Claimholders and the Second Lien
Claimholders in respect of the Collateral constitute only one secured
claim (rather than separate
classes of senior and junior secured claims), then each of the
parties hereto hereby acknowledges and
agrees that, subject to Sections 2.1 and 4.1, all distributions shall be made as if there were separate classes
of senior and junior secured claims against the Grantors in respect of the Collateral (with the effect
being that, to the extent that the aggregate value of the Collateral is sufficient (for this purpose
ignoring all claims held by the Second Lien Claimholders), the First Lien Claimholders shall be entitled
to receive, in addition to amounts otherwise distributed to them in
respect of principal, pre-petition interest and
other claims, all amounts owing in respect of post-petition interest,
including any additional interest
payable pursuant to the First Lien Credit Agreement, arising from or related to a default, which is
disallowed as a claim in any Insolvency or Liquidation Proceeding) before any distribution is made in respect
of the claims held by the Second Lien Claimholders with respect to the Collateral, with the Second Lien
Collateral Agent, for itself and on behalf of the Second Lien Claimholders,
hereby acknowledging and
agreeing to turn over to the First Lien Collateral Agent, for itself
and on behalf of the First Lien
Claimholders, amounts otherwise received or receivable by them to the
extent necessary to effectuate the
intent of this sentence (with respect to the payment of post-petition interest), even if such turnover
has the effect of reducing the claim or the recovery of Second Lien Claimholders).




          SECTION 7. Reliance; Waivers; Etc.




          7.1 Reliance. Other than any reliance on the terms of this Agreement, the
First Lien Collateral Agent, on behalf of itself and the First Lien Claimholders under its First
Lien Loan Documents, acknowledges that it and such First Lien Claimholders have, independently and
without reliance on the Second Lien Collateral Agent or any Second Lien Claimholders, and based on
documents and information deemed by them appropriate, made their own credit analysis and decision to
enter into such First Lien Loan Documents and be bound by the terms of this Agreement and they will
continue to make their own credit decision in taking or not taking any action under the First Lien
Credit Agreement or this Agreement. The Second Lien Collateral Agent,
on behalf of itself and the
Second Lien Claimholders, acknowledges that it and the Second Lien Claimholders have, independently
and without reliance on the First Lien Collateral Agent or any First Lien Claimholder, and based on
documents and information deemed by them appropriate, made their own credit analysis and decision to
enter into each of the Second Lien Loan Documents and be bound by the terms of this Agreement and
they will continue to make their own credit decision in taking or not taking any action under the Second
Lien Loan Documents or this Agreement.




          7.2
No Warranties or Liability. The First Lien Collateral
Agent, on behalf of itself
and the First Lien Claimholders under the First Lien Loan Documents, acknowledges and agrees
that each of the Second Lien Collateral Agent and the Second Lien Claimholders have made no express
or implied representation or warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the Second Lien Loan Documents, the ownership
of any





EXHIBIT K-25









 







Collateral or the perfection or priority of any Liens thereon. Except as otherwise provided
herein, the Second Lien Claimholders will be entitled to manage and supervise their respective
loans and extensions of credit under the Second Lien Loan Documents
in accordance with law and as they
may otherwise, in their sole discretion, deem appropriate. Except as otherwise provided herein, the
Second Lien Collateral Agent, behalf of itself and the Second Lien Obligations, acknowledges and
agrees that the First Lien Collateral Agent and the First Lien Claimholders have made no express or
implied representation or warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the First Lien Loan Documents, the
ownership of any Collateral or the perfection or priority of any Liens thereon. Except as otherwise
provided herein, the First Lien Claimholders will be entitled to
manage and supervise their respective
loans and extensions of credit under their respective First Lien Loan Documents in accordance with
law and as they may otherwise, in their discretion, deem appropriate. The Second Lien Collateral
Agent and the Second Lien Claimholders shall have no duty to the First Lien Collateral Agent or any
of the First Lien Claimholders, and the First Lien Collateral Agent and the First Lien Claimholders
shall have no duty to the Second Lien Collateral Agent or any of the
Second Lien Claimholders, to act or
refrain from acting in a manner which allows, or results in, the occurrence or continuance of an event
of default or default under any agreements with U.S. Borrower or any other Grantor (including the
First Lien Loan Documents and the Second Lien Loan Documents but excluding, in each case, this
Agreement with respect to each other), regardless of any knowledge thereof which they may have or be
charged with.




          7.3 No Waiver of Lien Priorities. (a) No right of the First Lien Claimholders, the
First Lien Collateral Agent or any of them to enforce any provision
of this Agreement or any First
Lien Loan Document shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of U.S. Borrower or any other Grantor or by any act or failure to act by any
First Lien Claimholder or the First Lien Collateral Agent, or by any noncompliance by any Person
with the terms, provisions and covenants of this Agreement, any of the First Lien Loan Documents
or any of the Second Lien Loan Documents, regardless of any knowledge thereof which the First Lien
Collateral Agent or the First Lien Claimholders, or any of them, may
have or be otherwise charged
with.




          (b) Without
in any way limiting the generality of the foregoing paragraph (but subject to the
rights of U.S. Borrower and the other Grantors under the First Lien Loan Documents and subject to the
provisions of Section 5.3(a)), the First Lien Claimholders, the First Lien Collateral Agent and any of
them may, at any time and from time to time in accordance with the First Lien Loan Documents and/or
applicable law, without the consent of, or notice to, the Second Lien Collateral Agent or any Second
Lien Claimholders, without incurring any liabilities to the Second Lien
Collateral Agent or any Second Lien
Claimholders and without impairing or releasing the Lien priorities
and other benefits provided in
this Agreement (even if any right of subrogation or other right or remedy of the Second Lien
Collateral Agent or any Second Lien Claimholders is affected, impaired or extinguished thereby)
do any one or more of the following:





EXHIBIT K-26









 









          (1)
change the manner, place or terms of payment or change or extend the time
of payment of, or amend, renew, exchange, increase or alter, the terms of any of the First
Lien Obligations or any Lien on any First Lien Collateral or guaranty thereof or any
liability of U.S. Borrower or any other Grantor, or any liability incurred directly or
indirectly in respect thereof (including any increase in or extension of the First Lien
Obligations, without any restriction as to the tenor or terms of any such increase or
extension) or otherwise amend, renew, exchange, extend, modify or supplement in any
manner any Liens held by the First Lien Collateral Agent or any of the First Lien
Claimholders, the First Lien Obligations or any of the First Lien Loan Documents;
provided that any such increase in the First Lien Obligations shall not increase
the sum of the Indebtedness constituting principal under the First Lien Credit Agreement
and the face amount of any letters of credit issued under the First Lien Credit Agreement
and not reimbursed to an amount in excess of the Cap Amount;




          (2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal
with in any manner and in any order any part of the First Lien Collateral or any liability of
U.S. Borrower or any other Grantor to the First Lien Claimholders or the First Lien
Collateral Agent, or any liability incurred directly or indirectly in respect thereof;




          (3) settle or compromise any First Lien Obligation or any other liability of U.S.
Borrower or any other Grantor or any security therefor or any liability incurred directly or
indirectly in respect thereof and apply any sums by whomsoever paid and however realized to
any liability (including the First Lien Obligations) in any manner or order; and




          (4) exercise or delay in or refrain from exercising any right or remedy against U.S. Borrower
or any security or any other Grantor or any other Person, elect any remedy and otherwise
deal freely with U.S. Borrower, any other Grantor or any First Lien Collateral and any
security and any guarantor or any liability of U.S. Borrower or any other Grantor to the
First Lien Claimholders or any liability incurred directly or indirectly in respect
thereof.



          (c) Except as otherwise provided herein, the Second Lien Collateral Agent, on behalf of
itself and the Second Lien Claimholders, also agrees that the First Lien Claimholders and the
First Lien Collateral Agent shall have no liability to the Second Lien Collateral Agent or any Second
Lien Claimholders, and the Second Lien Collateral Agent, on behalf of itself and the Second Lien
Claimholders, hereby waives any claim against any First Lien Claimholder or the First Lien Collateral
Agent, arising out of any and all actions which the First Lien Claimholders or the First Lien Collateral
Agent may take or permit or omit to take with respect to:





          (1) the First Lien Loan Documents (other than this Agreement);




          (2) the collection of the First Lien Obligations; or



EXHIBIT K-27









 






          (3) the foreclosure upon, or sale, liquidation or other disposition of, any First
Lien Collateral. The Second Lien Collateral Agent, on behalf of itself and the Second Lien
Claimholders, agrees that the First Lien Claimholders and the First Lien Collateral Agent
have no duty to them in respect of the maintenance or preservation of the First Lien Collateral,
the First Lien Obligations or otherwise.



          (d) Until
the Discharge of First Lien Obligations, the Second Lien Collateral Agent, on
behalf of itself and the Second Lien Claimholders, agrees not to assert and hereby waives, to the
fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise
claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be
available under applicable law with respect to the Collateral or any other similar rights a junior
secured creditor may have under applicable law.




          7.4
Obligations Unconditional. All rights, interests,
agreements and obligations of
the First Lien Collateral Agent and the First Lien Claimholders and
the Second Lien Collateral Agent
and the Second Lien Claimholders, respectively, hereunder shall remain in full force and effect
irrespective of:




          (a) any lack of validity or enforceability of any First Lien Loan Documents or any Second
Lien Loan Documents;




          (b) except as otherwise expressly set forth in this Agreement, any
change in the time, manner or place of payment of, or in any other
terms of, all or any of the First
Lien Obligations or Second Lien Obligations, or any amendment or
waiver or other modification,
including any increase in the amount thereof, whether by course of conduct or otherwise, of the
terms of any First Lien Loan Document or any Second Lien Loan Document;




          (c) except as otherwise expressly set forth in this Agreement, any exchange of any security
interest in any Collateral or any other collateral, or any amendment, waiver or other
modification, whether in writing or by course of conduct or otherwise, of all or any of the First
Lien Obligations or Second Lien Obligations or any guaranty thereof;




          (d) the commencement of any Insolvency or Liquidation Proceeding in respect of U.S.
Borrower or any other Grantor; or




          (e) any other circumstances which otherwise might constitute a defense available to, or a
discharge of, U.S. Borrower or any other Grantor in respect of the First Lien Collateral Agent, the
First Lien Obligations, any First Lien Claimholder, the Second Lien Collateral Agent, the Second
Lien Obligations or any Second Lien Claimholder in respect of this Agreement.





EXHIBIT K-28









 








          SECTION 8. Miscellaneous.




          8.1
Conflicts. In the event of any conflict between the
provisions of this
Agreement and the provisions of the First Lien Loan Documents or the Second Lien Loan Documents,
the provisions of this Agreement shall govern and control.




          8.2 Effectiveness; Continuing Nature of this Agreement; Severability. This Agreement
shall become effective when executed and delivered by the parties hereto. This is a continuing
agreement of lien subordination and the First Lien Claimholders may continue, at any time and
without notice to the Second Lien Collateral Agent or any Second Lien Claimholder subject to the
Second Lien Loan Documents, to extend credit and other financial accommodations and lend monies to
or for the benefit of U.S. Borrower or any Grantor constituting First Lien Obligations in reliance
hereof. The Second Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders,
hereby waives any right it may have under applicable law to revoke
this Agreement or any of the
provisions of this Agreement. The terms of this Agreement shall survive, and shall continue in
full force and effect, in any Insolvency or Liquidation Proceeding. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction. All references to
U.S. Borrower or any other Grantor shall include U.S. Borrower or such Grantor as debtor and
debtor-in-possession and any receiver or trustee for U.S. Borrower or any other Grantor (as the
case may be) in any Insolvency or Liquidation Proceeding. This Agreement shall terminate and be of
no further force and effect:




          (a) with respect to the First Lien Collateral Agent, the First Lien Claimholders and the
First Lien Obligations, the date of Discharge of First Lien Obligations, subject to the rights of
the First Lien Claimholders under Section 6.5; and




          (b) with respect to the Second Lien Collateral Agent, the Second Lien Claimholders and the
Second Lien Obligations, upon the later of (1) the date upon which the obligations under the
Second Lien Credit Agreement terminate if there are no other Second Lien Obligations outstanding
on such date and (2) if there are other Second Lien Obligations outstanding on such date, the date
upon which such Second Lien Obligations terminate.




          8.3 Amendments; Waivers. No amendment, modification or waiver any of the provisions
of this Agreement by the Second Lien Collateral Agent or the First Lien Collateral Agent shall be
deemed to be made unless the same shall
be in writing signed on behalf of each party hereto or its authorized agent and each waiver,
if any, shall be a waiver only with respect to the specific instance involved and shall in no way
impair the rights of the parties making such waiver or the obligations of the other parties to
such party in any other respect or at any other time. Notwithstanding the foregoing, U.S. Borrower
shall not have any right to consent to or approve any amendment, modification or waiver of any
provision of this Agreement except to the extent its rights are directly affected (which includes,
but is not limited to any amendment to the Grantors’ ability to






EXHIBIT K-29









 







cause additional obligations to constitute First Lien Obligations or Second Lien Obligations as
U.S. Borrower may designate).




          8.4 Information Concerning Financial Condition of U.S. Borrower and its Subsidiaries.
The First Lien Collateral Agent and the First Lien Claimholders, on the one hand, and the Second
Lien Claimholders and the Second Lien Collateral Agent, on the other hand, shall each be responsible
for keeping themselves informed of (a) the financial condition of U.S. Borrower and its
Subsidiaries and all endorsers and/or guarantors of the First Lien Obligations or the Second Lien
Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the First Lien
Obligations or the Second Lien Obligations. The First Lien Collateral Agent and the First Lien
Claimholders shall have no duty to advise the Second Lien Collateral
Agent or any Second Lien
Claimholder of information known to it or them regarding such condition or any such circumstances
or otherwise. In the event the First Lien Collateral Agent or any of the First Lien Claimholders, in
its or their sole discretion, undertakes at any time or from time to time to provide any such
information to the Second Lien Collateral Agent or any Second Lien Claimholder, it or they shall be
under no obligation:




          (a) to make, and the First Lien Collateral Agent and the First Lien Claimholders shall not
make, any express or implied representation or warranty, including with respect to the accuracy,
completeness, truthfulness or validity of any such information so provided;




          (b) to provide any additional information or to provide any such information on any
subsequent occasion;




          (c) to undertake any investigation; or




          (d) to disclose any information, which pursuant to accepted or reasonable commercial
finance practices, such party wishes to maintain confidential or is otherwise required to maintain
confidential.




          8.5
Subrogation. With respect to the value of any payments or distributions in
cash, property or other assets that any of the Second Lien
Claimholders or the Second Lien Collateral
Agent pays over to the First Lien Collateral Agent or the First Lien Claimholders under the terms of
this Agreement, the Second Lien Claimholders and the Second Lien Collateral Agent shall be subrogated
to the rights of the First Lien Collateral Agent and the First Lien
Claimholders; provided that, the
Second Lien Collateral Agent, on behalf of itself and the Second Lien
Claimholders, hereby agrees not to
assert or enforce all such rights of subrogation it may acquire as a
result of any payment hereunder
until the Discharge of First Lien Obligations has occurred. The U.S. Borrower acknowledges and agrees
that the value of any payments or distributions in cash, property or other assets received by the
Second Lien Collateral Agent or the Second Lien Claimholders that are paid over to the First Lien
Collateral Agent or the First Lien Claimholders pursuant to this Agreement shall not reduce any of the
Second Lien Obligations.





EXHIBIT K-30









 








          8.6
Application of Payments. All payments received by the
First Lien Collateral Agent
or the First Lien Claimholders may be applied, reversed and reapplied, in whole or in part, to
such part of the First Lien Obligations provided for in the First Lien Loan Documents. The Second
Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders, assents to any extension
or postponement of the time of payment, subject to Section 5.3(a)(3), of the First Lien Obligations
or any part thereof and to any other indulgence with respect thereto, to any substitution,
exchange or release of any security which may at any time secure any part of the First Lien
Obligations and to the addition or release of any other Person primarily or secondarily liable
therefor.




          8.7 SUBMISSION TO JURISDICTION; WAIVERS. (a) ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO MAY BE BROUGHT IN
ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING
THIS AGREEMENT, EACH PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY:





          (1) ACCEPTS
GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS;




          (2) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;




          (3) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT
ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 8.8; AND




          (4) AGREES
THAT SERVICE AS PROVIDED IN CLAUSE (3) ABOVE IS SUFFICIENT TO
CONFER PERSONAL JURISDICTION OVER THE APPLICABLE PARTY IN ANY SUCH PROCEEDING IN ANY SUCH
COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT.



          (b) EACH
OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER. THE SCOPE OF THIS WAIVER IS INTENDED TO
BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE
SUBJECT MATTER HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER
COMMON
LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO




EXHIBIT K-31









 







ENTER INTO A BUSINESS RELATIONSHIP THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING
INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS
WAIVER IN ITS RELATED FUTURE DEALINGS.
EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL
AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE; MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 8.7(b) AND EXECUTED BY
EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS HERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS
A WRITTEN CONSENT TO A TRIAL BY THE COURT.




          (c) EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
FIRST LIEN LOAN DOCUMENT OR SECOND LIEN LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY HERETO.




          8.8 Notices. All notices to the Second Lien Claimholders and the First Lien
Claimholders permitted or required under this Agreement shall also be sent to the Second Lien
Collateral Agent and the First Lien Collateral Agent, respectively. Unless otherwise specifically
provided herein, any notice hereunder shall be in writing and may be personally served, telexed or
sent by telefacsimile or United States mail or courier service and shall be deemed to have been
given when delivered in person or by courier service and signed for against receipt thereof, upon receipt
of telefacsimile or telex, or three Business Days after depositing it in the United States mail
with postage prepaid and properly addressed. For the purposes hereof, the addresses of the
parties hereto shall be as set forth on Annex I hereto, or, as to each party, at such other
address as may be designated by such party in a written notice to all of the other parties.




          8.9
Further Assurances. The First Lien Collateral Agent, on
behalf of itself and the
First Lien Claimholders under the First Lien Loan Documents, and the Second Lien Collateral Agent, on
behalf of itself and the Second Lien Claimholders under the Second Lien Loan Documents, and U.S.
Borrower, agree that each of them shall take such further action and shall execute and deliver such
additional documents and instruments (in recordable form, if requested) as the First Lien
Collateral Agent or the Second Lien Collateral Agent may reasonably request to effectuate the
terms of and the Lien priorities contemplated by this
Agreement.





EXHIBIT K-32









 








          8.10 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




          8.11 Binding on Successors and Assigns. This Agreement shall be binding upon
the First Lien Collateral Agent, the First Lien Claimholders, the Second Lien Collateral Agent,
the Second Lien Claimholders and their respective successors and assigns.




          8.12 Specific Performance. Each of the First Lien Collateral Agent and the Second
Lien Collateral Agent may demand specific performance of this
Agreement. The First Lien Collateral
Agent, on behalf of itself and the First Lien Claimholders under the First Lien Loan Documents,
and the Second Lien Collateral Agent, on behalf of itself and the Second Lien Claimholders, hereby
irrevocably waive any defense based on the adequacy of a remedy at law and any other defense which
might be asserted to bar the remedy of specific performance in any action which may be brought by the
First Lien Collateral Agent or the First Lien Claimholders or the Second Lien Collateral Agent or
the Second Lien Claimholders, as the case may be.




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




          8.14 Counterparts. This Agreement may be executed in counterparts (and by
different parties hereto in different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a
single contract. Delivery of
an executed counterpart of a signature page of this Agreement or any document or instrument
delivered in connection herewith by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement or such other document or instrument, as applicable.




          8.15
Authorization. By its signature, each Person executing
this Agreement on
behalf of a party hereto represents and warrants to the other parties
hereto that it is duly
authorized to execute this Agreement.




          8.16
No Third Party Beneficiaries. This Agreement and the
rights and benefits hereof
shall inure to the benefit of each of the parties hereto and its respective successors and assigns
and shall inure to the benefit of each of the First Lien Claimholders and the Second Lien
Claimholders. Nothing in this Agreement shall impair, as between U.S. Borrower and the other
Grantors and the First Lien Collateral Agent and the First Lien Claimholders, or as between U.S.
Borrower and the other Grantors and the Second Lien Collateral Agent and the Second Lien
Claimholders, the obligations of U.S. Borrower and the other Grantors to pay
principal, interest, fees and other amounts as provided in the First Lien Loan Documents and
the Second Lien Loan Documents, respectively.





EXHIBIT K-33









 








          8.17 Provisions Solely to Define Relative Rights. The provisions of this Agreement
are and are intended solely for the purpose of defining the relative
rights of the First Lien
Collateral Agent and the First Lien Claimholders on the one hand and
the Second Lien Collateral Agent
and the Second Lien Claimholders on the other hand. None of U.S. Borrower, any other Grantor or
any other creditor thereof shall have any rights hereunder and neither U.S. Borrower nor any Grantor
may rely on the terms hereof. Nothing in this Agreement is intended to or shall impair the
obligations of U.S. Borrower or any other Grantor to pay the First Lien Obligations and the Second
Lien Obligations as and when the same shall become due and payable in
accordance with their terms.





EXHIBIT K-34












 





          IN
WITNESS WHEREOF, the parties hereto have executed this Intercreditor Agreement as
of the date first written above.




	 	 	 

	 
	 	 
	 

	First Lien Collateral Agent
	 
	 	 
	 	GOLDMAN SACHS CREDIT

PARTNERS L.P.,

as First Lien Collateral Agent,

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 






Intercreditor Agreement




 









 







	 	 	 	 	 
	 

	Second Lien Collateral Agent
	 	 
	 	CAPITALSOURCE FINANCE LLC,

as Second Lien Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 






Intercreditor Agreement



 









 








Acknowledged and Agreed to by:




U.S. Borrower




	 	 	 	 	 
	AZ CHEM US INC.

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 





Intercreditor Agreement




 









 








Annex I




Notices




First Lien Collateral Agent




Goldman Sachs Credit Partners L.P.

1 New York Plaza

New York, NY 10004

Attention: Elizabeth Fischer and Rob Schatzman

Telecopier: (212) 902-3000




Second Lien Collateral Agent




CapitalSource Finance LLC

4445 Willard Avenue, 12th Floor

Chevy Chase, MD 20815

Attention: Special Investments Group, Portfolio Manager

Telephone: 301-841-2700

Fax: 301-841-2340




U.S. Borrower




c/o
Rhône Capital LLC

5 Prince Gate

3rd Floor

Knightsbridge

London SW7 1QJ

Attention: Gianpiero Lenza

Facsimile: +44 207 761 1111




in each case, with a copy to:




Rhône Capital LLC

630 Fifth Avenue

27th Floor

New York, NY 10111

Attention: Andrew Oliver

Facsimile: (212) 218-6789




Arizona Chemical Company

Building 100

4600 Touchton Road E., Suite 1500

Jacksonville, FL 32246

Attention: Charles E. Nelson/Glenda Haynes

Facsimile: (904) 928-8771





A-1