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