Exhibit
10.18


 


EXECUTION COPY


 


SECOND LIEN CREDIT AGREEMENT


 


dated as of


 


June 30, 2006,


 


among


 


HAWKEYE INTERMEDIATE, LLC,



THL - HAWKEYE ACQUISITION LLC

(to be merged with and into HAWKEYE RENEWABLES, LLC),


 


THE LENDERS PARTY HERETO


 


and


 


CREDIT SUISSE,


as Administrative Agent and Collateral Agent


 


CREDIT SUISSE SECURITIES (USA) LLC


 


and


 


BANC OF AMERICA SECURITIES LLC,


 


as Joint Lead Arrangers and Joint Bookrunners


 


and


 


GOLDMAN SACHS CREDIT PARTNERS, L.P.,


 


as Joint Bookrunner


 

















 


Table of Contents


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE I

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  1.01.

  	
  Defined Terms

  	
  1

  
	
  SECTION
  1.02.

  	
  Terms Generally

  	
  28

  
	
  SECTION
  1.03.

  	
  Classification of Loans and Borrowings

  	
  28

  
	
  SECTION
  1.04.

  	
  Rounding

  	
  29

  
	
  SECTION
  1.05.

  	
  References to Agreements and Laws

  	
  29

  
	
  SECTION 1.06.

  	
  Times of Day

  	
  29

  
	
  SECTION
  1.07.

  	
  Timing of Payment or Performance

  	
  29

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE II

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  The Credits

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  2.01.

  	
  Commitments

  	
  29

  
	
  SECTION
  2.02.

  	
  Loans

  	
  29

  
	
  SECTION
  2.03.

  	
  Borrowing Procedure

  	
  30

  
	
  SECTION
  2.04.

  	
  Evidence of Debt; Repayment of Loans

  	
  31

  
	
  SECTION
  2.05.

  	
  Fees

  	
  32

  
	
  SECTION
  2.06.

  	
  Interest on Loans

  	
  32

  
	
  SECTION
  2.07.

  	
  Default Interest

  	
  32

  
	
  SECTION
  2.08.

  	
  Alternate Rate of Interest

  	
  32

  
	
  SECTION
  2.09.

  	
  Termination of Commitments

  	
  33

  
	
  SECTION
  2.10.

  	
  Conversion and Continuation of Borrowings

  	
  33

  
	
  SECTION 2.11.

  	
  Right to Require Prepayment

  	
  35

  
	
  SECTION
  2.12.

  	
  Optional Prepayment

  	
  35

  
	
  SECTION
  2.13.

  	
  Mandatory Prepayments

  	
  35

  
	
  SECTION
  2.14.

  	
  Reserve Requirements; Change in Circumstances

  	
  37

  
	
  SECTION
  2.15.

  	
  Change in Legality

  	
  38

  
	
  SECTION
  2.16.

  	
  Indemnity

  	
  39

  
	
  SECTION 2.17.

  	
  Pro Rata Treatment

  	
  40

  
	
  SECTION
  2.18.

  	
  Sharing of Setoffs

  	
  40

  
	
  SECTION
  2.19.

  	
  Payments

  	
  40

  
	
  SECTION
  2.20.

  	
  Taxes

  	
  41

  
	
  SECTION
  2.21.

  	
  Assignment of Commitments Under Certain Circumstances; Duty to
  Mitigate

  	
  43

  



 


i

















 


	
   

  	
  ARTICLE III

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Representations and Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  3.01.

  	
  Organization; Powers

  	
  44

  
	
  SECTION
  3.02.

  	
  Authorization

  	
  45

  
	
  SECTION
  3.03.

  	
  Enforceability

  	
  45

  
	
  SECTION
  3.04.

  	
  Governmental Approvals

  	
  45

  
	
  SECTION
  3.05.

  	
  Financial Statements

  	
  46

  
	
  SECTION
  3.06.

  	
  No Material Adverse Change

  	
  46

  
	
  SECTION
  3.07.

  	
  Title to Properties; Possession Under Leases

  	
  46

  
	
  SECTION
  3.08.

  	
  Subsidiaries

  	
  47

  
	
  SECTION
  3.09.

  	
  Litigation; Compliance with Laws

  	
  47

  
	
  SECTION
  3.10.

  	
  Agreements

  	
  47

  
	
  SECTION
  3.11.

  	
  Federal Reserve Regulations

  	
  48

  
	
  SECTION
  3.12.

  	
  Investment Company Act

  	
  48

  
	
  SECTION
  3.13.

  	
  Tax Returns

  	
  48

  
	
  SECTION
  3.14.

  	
  No Material Misstatements

  	
  48

  
	
  SECTION
  3.15.

  	
  Employee Benefit Plans

  	
  49

  
	
  SECTION
  3.16.

  	
  Environmental Matters

  	
  49

  
	
  SECTION
  3.17.

  	
  Security Documents

  	
  49

  
	
  SECTION
  3.18.

  	
  Location of Real Property and Leased Premises

  	
  49

  
	
  SECTION
  3.19.

  	
  Labor Matters

  	
  50

  
	
  SECTION
  3.20.

  	
  Solvency

  	
  50

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IV

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Conditions of Lending

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE V

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Affirmative Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  5.01.

  	
  Existence; Compliance with Laws; Businesses and Properties

  	
  54

  
	
  SECTION
  5.02.

  	
  Insurance

  	
  54

  
	
  SECTION
  5.03.

  	
  Taxes

  	
  55

  
	
  SECTION
  5.04.

  	
  Financial Statements, Reports, etc

  	
  55

  
	
  SECTION
  5.05.

  	
  Litigation and Other Notices

  	
  57

  
	
  SECTION
  5.06.

  	
  Information Regarding Collateral

  	
  57

  
	
  SECTION
  5.07.

  	
  Maintaining Records; Access to Properties and Inspections;
  Maintenance of Ratings

  	
  57

  
	
  SECTION
  5.08.

  	
  Use of Proceeds

  	
  58

  
	
  SECTION
  5.09.

  	
  Further Assurances

  	
  58

  



 


ii

















 


	
  SECTION
  5.10.

  	
  Interest Rate Protection

  	
  60

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VI

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Negative Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  6.01.

  	
  Indebtedness

  	
  60

  
	
  SECTION
  6.02.

  	
  Liens

  	
  64

  
	
  SECTION
  6.03.

  	
  Sale and Lease-Back Transactions

  	
  67

  
	
  SECTION
  6.04.

  	
  Investments, Loans and Advances

  	
  67

  
	
  SECTION
  6.05.

  	
  Mergers, Consolidations, and Sales of Assets

  	
  69

  
	
  SECTION
  6.06.

  	
  Restricted Payments; Restrictive Agreements

  	
  72

  
	
  SECTION
  6.07.

  	
  Transactions with Affiliates

  	
  75

  
	
  SECTION
  6.08.

  	
  Business of Holdings, Borrower and Subsidiaries

  	
  76

  
	
  SECTION
  6.09.

  	
  Other Indebtedness and Agreements

  	
  77

  
	
  SECTION
  6.10.

  	
  Maximum Total Leverage Ratio

  	
  77

  
	
  SECTION
  6.11.

  	
  Anti-Layering

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VII

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Events of Default

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VIII

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  The Administrative Agent and the Collateral Agent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IX

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  9.01.

  	
  Notices

  	
  84

  
	
  SECTION
  9.02.

  	
  Survival of Agreement

  	
  85

  
	
  SECTION
  9.03.

  	
  Binding Effect

  	
  85

  
	
  SECTION
  9.04.

  	
  Successors and Assigns

  	
  85

  
	
  SECTION
  9.05.

  	
  Expenses; Indemnity

  	
  89

  
	
  SECTION
  9.06.

  	
  Right of Setoff

  	
  91

  
	
  SECTION
  9.07.

  	
  Applicable Law

  	
  91

  
	
  SECTION
  9.08.

  	
  Waivers; Amendment

  	
  91

  
	
  SECTION
  9.09.

  	
  Interest Rate Limitation

  	
  92

  
	
  SECTION
  9.10.

  	
  Entire Agreement

  	
  93

  
	
  SECTION
  9.11.

  	
  WAIVER OF JURY TRIAL

  	
  93

  
	
  SECTION
  9.12.

  	
  Severability

  	
  93

  



 


iii

















 


	
  SECTION
  9.13.

  	
  Counterparts

  	
  93

  
	
  SECTION
  9.14.

  	
  Headings

  	
  94

  
	
  SECTION
  9.15.

  	
  Jurisdiction; Consent to Service of Process

  	
  94

  
	
  SECTION
  9.16.

  	
  Confidentiality

  	
  94

  
	
  SECTION
  9.17.

  	
  USA PATRIOT Act Notice

  	
  95

  
	
  SECTION
  9.18.

  	
  Intercreditor Agreement

  	
  95

  



 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
  Schedule
  1.01(a)

  	
  -

  	
  Subsidiary Guarantors

  	
   

  
	
  Schedule
  1.01(b)

  	
  -

  	
  Mortgaged Property

  	
   

  
	
  Schedule
  1.01(c)

  	
  -

  	
  Disqualified Institutions

  	
   

  
	
  Schedule
  2.01

  	
  -

  	
  Lenders and Commitments

  	
   

  
	
  Schedule
  3.08

  	
  -

  	
  Subsidiaries

  	
   

  
	
  Schedule
  3.09

  	
  -

  	
  Litigation

  	
   

  
	
  Schedule
  3.16

  	
  -

  	
  Environmental Matters

  	
   

  
	
  Schedule
  3.18

  	
  -

  	
  Insurance

  	
   

  
	
  Schedule
  3.17(a)

  	
  -

  	
  UCC Filing Offices

  	
   

  
	
  Schedule
  3.17(c)

  	
  -

  	
  Mortgage Filing Offices

  	
   

  
	
  Schedule
  3.18(a)

  	
  -

  	
  Owned Real Property

  	
   

  
	
  Schedule
  3.18(b)

  	
  -

  	
  Leased Real Property

  	
   

  
	
  Schedule
  4(d)

  	
  -

  	
  Local Counsel

  	
   

  
	
  Schedule
  6.01

  	
  -

  	
  Existing Indebtedness

  	
   

  
	
  Schedule
  6.02

  	
  -

  	
  Existing Liens

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Exhibit A

  	
  -

  	
  Form of Administrative Questionnaire

  	
   

  
	
  Exhibit B

  	
  -

  	
  Form of Assignment and Acceptance

  	
   

  
	
  Exhibit C

  	
  -

  	
  Form of Borrowing Request

  	
   

  
	
  Exhibit D

  	
  -

  	
  Form of Second Lien Guarantee and Collateral Agreement

  	
   

  
	
  Exhibit E

  	
  -

  	
  Form of Intercreditor Agreement

  	
   

  
	
  Exhibit F

  	
  -

  	
  Form of Second Lien Mortgage

  	
   

  
	
  Exhibit G

  	
  -

  	
  Form of Non-Bank Certificate

  	
   

  
	
  Exhibit H-1

  	
  -

  	
  Form of Second Lien Trademark Security Agreement

  	
   

  
	
  Exhibit H-2

  	
  -

  	
  Form of Second Lien Patent Security Agreement

  	
   

  
	
  Exhibit H-3

  	
  -

  	
  Form of Second Lien Copyright Security Agreement

  	
   

  
					



 


iv

















 


SECOND LIEN CREDIT AGREEMENT dated as of June 30, 2006 (this “Agreement”), among HAWKEYE
INTERMEDIATE, LLC, a Delaware limited liability company, THL - HAWKEYE
ACQUISITION LLC, a Delaware limited liability company (“Merger
Sub”) to be merged with and into HAWKEYE RENEWABLES, LLC, a
Delaware limited liability company (the “Company”), the LENDERS (as defined herein), and
CREDIT SUISSE, as administrative agent (in such capacity, the “Administrative Agent”) and as collateral agent (in such
capacity, the “Collateral
Agent”) for the
Lenders.


 


RECITALS


 


A.            Pursuant to the
Purchase Agreement (such term and each other capitalized term used but not
defined in these recitals having the meaning set forth in Article I)
(a) Hawkeye Holdings, L.L.C. (the “Seller”)
will contribute 100% of the membership interests of the Company to Holdings (which
Equity Interests shall be Qualified Capital Stock or shall have terms
reasonably acceptable to the Arrangers), (b) certain affiliates of Thomas
H. Lee Partners, L.P. and certain other investors (collectively, the “Investors”) will acquire, for cash
consideration, directly or indirectly, approximately 80% of the Equity
Interests in Holdings from the Seller (the “Acquisition”)
with the Seller retaining the remaining approximately 20% of the Equity
Interests in Holdings and (c) Merger Sub will be merged with and into the
Company, with the Company surviving as a wholly owned subsidiary of Holdings.


 


B.            The Borrower has
requested the Lenders to extend credit in the form of Loans on the Closing
Date, in an aggregate principal amount not in excess of $150,000,000.


 


C.            The Lenders are
willing to extend such credit to the Borrower on the terms and subject to the
conditions set forth herein. Accordingly, the parties hereto agree as follows:


 


ARTICLE I



Definitions


 


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


 


“ABR”, when used in reference
to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are bearing interest at a rate determined by reference to the
Alternate Base Rate.


 


“Acquisition” shall have the
meaning assigned to such term in the recitals.


 


“Adjusted LIBO Rate” shall
mean, with respect to any Eurodollar Borrowing for any Interest Period, an
interest rate per annum equal to the product of (a) the LIBO Rate in
effect for such Interest Period and (b) Statutory Reserves.


 

















 


“Administrative Agent” shall
have the meaning assigned to such term in the preamble.


 


“Administrative Questionnaire”
shall mean an Administrative Questionnaire in the form of Exhibit A, or such
other form as may be supplied from time to time by the Administrative Agent.


 


“Affiliate” shall mean, when
used with respect to a specified person, another person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or
is under common Control with the person specified; provided,
however, that no Lender (nor any of its Affiliates) shall be deemed
to be an Affiliate of Holdings, the Borrower or any of their Subsidiaries as a
result of the Lenders and their Affiliates holding in the aggregate, directly
or indirectly, 20% or less of the Equity Interests of Holdings.


 


“Agreement” shall have the
meaning assigned to such term in the preamble.


 


“Alternate Base Rate” shall
mean, for any day, a rate per annum equal to the greater of (a) the Prime
Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate
due to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, as the case may be.


 


“Applicable Percentage” shall
mean, for any day, (a) with respect to any Eurodollar Loan, 7.25% and
(b) with respect to any ABR Loan, 6.25%.


 


“Arrangers” shall mean Credit
Suisse Securities (USA) LLC and Banc of America Securities LLC in their
capacity as joint lead arrangers for the Credit Facility.


 


“Asset Sale” shall mean the
sale, transfer or other disposition (by way of merger, casualty, condemnation
or otherwise) by the Borrower or any of the Subsidiaries to any person other
than the Borrower or any Subsidiary of (a) any Equity Interests of any of
the Subsidiaries or (b) any other assets of the Borrower or any of the
Subsidiaries.


 


“Assignment and Acceptance”
shall mean an assignment and acceptance entered into by a Lender and an
assignee, and accepted by the Administrative Agent, substantially in the form
of Exhibit B or such other form as shall be reasonably approved by the
Administrative Agent.


 


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


 


“Borrower” shall mean (a)
prior to the consummation of the Merger, Merger Sub, and (b) upon and after
consummation of the Merger, the Company as the surviving entity of the Merger.


 


2

















 


“Borrowing” shall mean Loans
of the same Type made, converted or continued on the same date and, in the case
of Eurodollar Loans, as to which a single Interest Period is in effect.


 


“Borrowing Request” shall mean
a request by the Borrower in accordance with the terms of Section 2.03 and
substantially in the form of Exhibit C, or such other form as shall be
approved by the Administrative Agent.


 


“Business Day” shall mean any
day other than a Saturday, Sunday or day on which banks in New York City are generally
authorized or required by law to close; provided, however, that when used in connection with a Eurodollar Loan
(including with respect to all notices and determinations in connection
therewith and any payments of principal, interest or other amounts thereon),
the term “Business Day” shall also
exclude any day on which banks are generally not open for dealings in dollar
deposits in the London interbank market.


 


“Capital
Expenditures” shall mean, for any period, the additions to
property, plant and equipment and other capital expenditures of Holdings and
its Subsidiaries that are (or should be) set forth in a consolidated statement
of cash flows of Holdings; provided, that
Capital Expenditures shall not include any such expenditures which constitute
(a) a Permitted Acquisition, (b) to the extent permitted by this Agreement, a
reinvestment of the Net Cash Proceeds of any Asset Sale in accordance with
Section 2.13(a), (c) expenditures of proceeds of insurance settlements,
condemnation awards and other settlements in respect of lost, destroyed,
damaged or condemned assets or other property to the extent such expenditures
are made to replace or repair such lost, destroyed, damaged or condemned
assets, equipment or other property or otherwise to acquire, maintain, develop,
construct, improve, upgrade or repair assets or properties useful in the
business of the Borrower and the Subsidiaries, (d) interest capitalized during
such period, (e) expenditures that are accounted for as capital expenditures of
such person and that actually are paid for by a third party and for which none
of the Borrower or any of its Subsidiaries has provided or is required to
provide or incur, directly or indirectly, any consideration or obligation to
such third party or any other person (whether before, during or after such
period), (f) the book value of any asset owned by such person prior to or
during such period as a result of such person reusing or beginning to reuse
such asset during such period without a corresponding expenditure actually
having been made in such period; provided, that
(i) any expenditure necessary in order to permit such asset to be reused shall
be included as a Capital Expenditure during the period that such expenditure
actually is made and (ii) such book value shall have been included in Capital
Expenditures when such asset was originally acquired, and (g) the purchase
price of property purchased during such period to the extent the consideration
therefor consists of any combination of (i) used or surplus property traded in
at the time of such purchase and (ii) the proceeds of a concurrent sale of used
or surplus property, in each case, in the ordinary course of business.


 


“Capital Lease Obligations” of
any person shall mean the obligations of such person to pay rent or other
amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations are 


 


3

















 


required to be classified and accounted for
as capital leases on a balance sheet of such person under GAAP, and the amount
of such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.


 


“CECF Percentage” shall mean,
with respect to any date, 0%; provided, however, if the Total Leverage Ratio as of the end of last
fiscal quarter for which financial statements have been delivered is less than 4.00
to 1.00, then the CECF Percentage with respect to such date shall mean 25%; provided, further, however, that if the Total Leverage Ratio as of the end of last
fiscal quarter for which financial statements have been delivered is less than 3.50,
to 1.00, then the CECF percentage with respect to such date shall mean 50%.


 


A “Change in Control” shall be
deemed to have occurred if:


 


(a)           the Permitted Investors
cease to have the power, directly or indirectly, to vote or direct the voting
of Equity Interests of Holdings representing a majority of the ordinary voting
power for the election of directors (or equivalent governing body) of Holdings;
provided, that the occurrence of the
foregoing event shall not be deemed a Change of Control if,


 


(i)            any time prior to the consummation
of a Qualified Public Offering, and for any reason whatsoever, (A) the
Permitted Investors otherwise have the right, directly or indirectly, to
designate (and do so designate) a majority of the board of directors of
Holdings or (B) the Permitted Investors own, directly or indirectly, of record
and beneficially an amount of Equity Interests of Holdings having ordinary
voting power that is equal to or more than 50% of the amount of Equity
Interests of Holdings having ordinary voting power owned, directly or
indirectly, by the Permitted Investors of record and beneficially as of the
Closing Date (determined by taking into account any stock splits, stock
dividends or other events subsequent to the Closing Date that changed the
amount of Equity Interests, but not the percentage of Equity Interests, held by
the Permitted Investors) and such ownership by the Permitted Investors
represents the largest single block of Equity Interests of Holdings having
ordinary voting power held by any person or related group for purposes of
Section 13(d) of the Securities Exchange Act of 1934, or


 


(ii)           at any time after the consummation of
a Qualified Public Offering, and for any reason whatsoever, (A) no “person” or “group”
(as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934 as in effect on the date hereof, but excluding any employee benefit
plan of such person and its Subsidiaries, and any person or entity acting in
its capacity as trustee, agent or other fiduciary or administrator of any such
plan), excluding the Permitted Investors, shall become the “beneficial owner”
(as defined in Rules 13(d)-3 and 13(d)-5 under such Act), directly or
indirectly, of more than the greater of (x) 35% of outstanding Equity Interests
of Holdings having ordinary voting power and (y) the percentage of the then
outstanding Equity Interests of Holdings having ordinary voting power owned,
directly or indirectly, beneficially 


 


4

















 


and of record by the Permitted Investors, and (B) during each period of
twelve consecutive months, a majority of the board of directors of Holdings
shall consist of the Continuing Directors; or


 


(b)           any change in
control (or similar event, however denominated) with respect to Holdings, the
Borrower or any Subsidiary shall occur under and as defined in the First Lien
Credit Agreement or in respect of Material Indebtedness of Holdings, the
Borrower or any Subsidiary; or


 


(c)           Holdings shall
directly own, beneficially and of record, less than 100% of the issued and
outstanding Equity Interests of the Borrower.


 


“Change in Law” shall mean (a)
the adoption of any law, rule or regulation after the date of this Agreement,
(b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this
Agreement or (c) compliance by any Lender (or, for purposes of Section 2.14, by
any lending office of such Lender or by such Lender’s holding company, if any)
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of this
Agreement.


 


“Closing Date” shall mean June 30,
2006.


 


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


 


“Collateral” shall mean all
property and assets of the Loan Parties, now owned or hereafter acquired, upon
which a Lien is purported to be created by any Security Document, and shall
include the Mortgaged Properties.


 


“Collateral Agent” shall have
the meaning assigned to such term in the preamble.


 


“Commitment” shall mean, with
respect to each Lender, the commitment of such Lender to make Loans hereunder
as set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender assumed its Commitment, as applicable, as the
same may be (a) reduced from time to time pursuant to Section 2.09
and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 9.04.


 


“Company” shall have the
meaning assigned to such term in the preamble.


 


“Confidential Information Memorandum”
shall mean the Confidential Information Memorandum dated June 2006, relating to
the syndication of the Credit Facilities.


 


“Consolidated
EBITDA” shall mean, for any period, Consolidated Net Income for
such period plus


 


5

















 


(a)           without duplication
and to the extent deducted in determining such Consolidated Net Income, the sum
of


 


(i)            consolidated interest expense for
such period,


 


(ii)           consolidated income, franchise or
similar tax expense for such period,


 


(iii)          foreign currency translation gain or
loss,


 


(iv)          all amounts attributable to
depreciation and amortization for such period,


 


(v)           fees and expenses incurred in
connection with the Transactions, any Investment permitted under Section 6.04,
the issuance of Equity Interests or Indebtedness or any exchange, refinancing
or other early extinguishment of Indebtedness permitted by this Agreement (in
each case, whether or not consummated),


 


(vi)          any non-cash charges, including those
resulting from any amortization, write-up, write-down or write-off of assets
with respect to assets revalued upon the application of purchase accounting (including
tangible and intangible assets, goodwill, deferred financing costs and
inventory (including any adjustment reflected in the “cost of goods sold”
or similar line item of the financial statements)) in connection with the
Transactions, Permitted Acquisitions or any merger, consolidation or similar
transaction not prohibited by this Agreement, but excluding the write-down of
current assets in the ordinary course of business,


 


(vii)         letter of credit fees,


 


(viii)        non-recurring or unusual cash charges
(including startup costs) for such period in an amount not to exceed $3,500,000,


 


(ix)           to the extent actually reimbursed,
expenses incurred to the extent covered by indemnification provisions in any
agreement in connection with a Permitted Acquisition,


 


(x)            to the extent covered by insurance,
expenses with respect to liability or casualty events, business interruption or
product recalls,


 


(xi)           management fees permitted under
Section 6.07,


 


(xii)          any unrealized losses on Hedging
Agreements; and


 


(xiii)         if applicable, the Cure Amount in
accordance with Article VII,


 


minus (b) without duplication, the sum of


 


6

















 


(i)            all cash payments made during such
period on account of non-cash charges added to Consolidated Net Income (except
as set forth in clause (a)(viii) above) in a previous period,


 


(ii)           any Restricted Payments made by
Holdings to Parent pursuant to Section 6.06(a)(viii) (A), (F) and (G),


 


(iii)          non-recurring or unusual gains for such
period to the extent added in determining Consolidated Net Income, and


 


(iv)          any unrealized gains on Hedging
Agreements;


 


provided,
however, that for the purposes of determining the
Total Leverage Ratio, (A) there shall be included in determining Consolidated
EBITDA for any period, without duplication, the Consolidated EBITDA of any person,
line of business or facility acquired (other than in the ordinary course of
business) by the Borrower or any of its Subsidiaries during such period on a
Pro Forma Basis, and (B) there shall be excluded in determining Consolidated
EBITDA for any period, without duplication, the Consolidated EBITDA of any person,
line of business or facility that is the subject of an Asset Sale by the
Borrower or any of its Subsidiaries during such period on a Pro Forma Basis.


 


For purposes of determining the Total Leverage Ratio and any Pro Forma
Basis calculations required by this Agreement, Consolidated EBITDA of Holdings will
be deemed to be equal to (i) for the fiscal quarter ended on September 30,
2005, $45.7 million, (ii) for the fiscal quarter ended on December 31,
2005, $45.7 million, (iii) for the fiscal quarter ended on March 31, 2006,
$45.7 million, and (iv) for the fiscal quarter ended June 30, 2006, $45.7 million.


 


“Consolidated Net Income” shall mean, for
any period with respect to any person, the net income or loss of such person for
such period determined on a consolidated basis in accordance with GAAP; provided, that there shall be excluded (without
duplication):


 


(a)           the income of
any Subsidiary (other than a Loan Party) to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary of that income
is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, statute, rule or governmental
regulation applicable to such Subsidiary,


 


(b)           the income or loss of any person accrued prior to the date
(i) it becomes a Subsidiary or is merged into or consolidated with such person
or (ii) its assets are acquired by such person or its Subsidiaries,


 


(c)           the income or loss in respect of any Investment in a joint
venture (other than a Subsidiary) except to the extent of the amount of
dividends or other distributions actually paid to such person during such
period,


 


7

















 


(d)           after-tax gains and losses realized upon the sale or other
disposition of any property that is sold or otherwise disposed of other than in
the ordinary course of business, and


 


(e)           extraordinary, gains, losses or charges.


 


“Continuing Directors” means
the directors of Holdings on the Closing Date, as elected or appointed after
giving effect to the Acquisition and the other transactions contemplated
hereby, and each other director, if, in each case, such other director’s
nomination for election to the board of directors of Holdings is recommended by
a majority of the then Continuing Directors or such other director receives the
vote of the Permitted Investors in his or her election by the stockholders of
Holdings.


 


“Control” shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a person, whether through the
ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings
correlative thereto.


 


“Corporate Taxpayer” shall
mean a standalone corporation that is the “common parent” of a consolidated,
combined, unitary or other similar (as the case may be) Tax group that includes
the Borrower and the Subsidiaries.


 


“Credit Facility” shall mean
the term loan facility provided for by this Agreement.


 


“Cumulative Excess Cash Flow”
as of any date, an amount equal to the excess, if any, of (a) the sum of
Excess Cash Flow for each fiscal year of Holdings ended on or after December 31,
2007 and prior to such date for which audited financial statements have been
delivered pursuant to Section 5.04 over (b) the aggregate principal
amount of all optional prepayments of Loans, made during such fiscal year; provided, that the excess of (a) over (b) shall not be less
than zero for any fiscal year.


 


“Cure Amount” shall have the
meaning assigned to such term in Article VII.


 


“Cure Right” shall have the
meaning assigned to such term in Article VII.


 


“Current Assets” shall mean, at any time,
the consolidated current assets (other than cash, Permitted Investments) of
Holdings, the Borrower and the Subsidiaries.


 


“Current Liabilities” shall mean, at any
time, the consolidated current liabilities of Holdings, the Borrower and the
Subsidiaries at such time, but excluding, without duplication, (a) the current
portion of any long term Indebtedness and (b) outstanding revolving loans
and swingline loans under the First Lien Credit Agreement.


 


“Declined
Proceeds” shall have the meaning assigned to such term in
Section 2.13(d).


 


8

















 


“Default” shall mean any event
or condition which constitutes an Event of Default or which upon notice, lapse
of time or both would constitute an Event of Default.


 


“Defaulting Lender” shall mean
any Lender that (a) has failed to fund any portion of the Loans required to be
funded by it hereunder within one Business Day of the date required to be
funded by it hereunder, (b) has otherwise failed to pay to the Administrative
Agent or any other Lender any other amount required to be paid by it hereunder
within one Business Day of the date when due, unless the subject of a good
faith dispute or (c) is insolvent or is the subject of a bankruptcy or
insolvency proceeding.


 


“Discharge of First Lien Obligations”
shall have the meaning assigned to such term in the Intercreditor Agreement.


 


“Disqualified Institutions”
shall mean those institutions set forth on Schedule 1.01(c) hereto.


 


“Disqualified Stock” shall
mean any Equity Interest that, by its terms (or by the terms of any security or
other Equity Interest into which it is convertible or for which it is
exchangeable), or upon the happening of any event, (a) matures (excluding any
maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, or
requires the payment of any cash dividend or any other scheduled payment
constituting a return of capital, in each case at any time on or prior to the
date which is ninety-one (91) days after the Maturity Date, or (b) is
convertible into or exchangeable (unless at the sole option of the issuer
thereof) for (i) Indebtedness or (ii) any Equity Interest referred to
in clause (a) above, in each case at any time prior to the date which is
ninety-one (91) days after the Maturity Date.


 


“dollars” or “$” shall mean lawful money of the
United States of America.


 


“Domestic Subsidiaries” shall
mean all Subsidiaries incorporated or organized under the laws of the United
States of America, any State thereof or the District of Columbia.


 


“ECF Percentage” shall mean,
with respect to any fiscal year, 50%; provided, however, if the Total Leverage Ratio as of the end of a
fiscal year is less than 2.50 to 1.00, then the ECF Percentage with respect to
such fiscal year shall mean 25%.


 


“Environmental Laws” shall
mean all applicable Federal, state, local and foreign laws (including common
law), treaties, regulations, rules, ordinances, codes, decrees, judgments,
directives, orders (including consent orders), and agreements having the force
and effect of law in each case, relating to protection of the environment,
natural resources, or to human health and safety as it relates to Hazardous
Materials exposure, the presence or Release of Hazardous Materials in the
environment, or the generation, manufacture, processing, distribution, use,
treatment, storage, transport, recycling or handling of, or the arrangement for
such activities with respect to, Hazardous Materials.


 


9

















 


“Environmental Liability”
shall mean all liabilities, obligations, damages, losses, claims, actions,
suits, judgments, orders, fines, penalties, fees, expenses and costs (including
administrative oversight costs, natural resource damages and remediation
costs), whether contingent or otherwise, arising out of or relating to
(a) compliance or non-compliance with any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the Release of any Hazardous Materials or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is
assumed or imposed with respect to any of the foregoing.


 


“Equity Contribution” shall
mean the cash amounts contributed by the Investors towards the payment of the
purchase price for the Acquisition.


 


“Equity Interests” shall mean
shares of capital stock, partnership interests, membership interests in a
limited liability company, beneficial interests in a trust or other equity
interests in any person.


 


“ERISA” shall mean the
Employee Retirement Income Security Act of 1974, as the same may be amended
from time to time.


 


“ERISA Affiliate” shall mean any trade or business
(whether or not incorporated) that, together with the Borrower, is treated as a
single employer under Section 414(b) or (c) of the Code, or solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.


 


“ERISA Event” shall mean
(a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder, with respect to a Plan (other than an event
for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an “accumulated funding deficiency” (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan or the withdrawal or partial
withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or
Multiemployer Plan; (e) the receipt by the Borrower or any of its ERISA
Affiliates from the PBGC or a plan administrator of any notice relating to the
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the adoption of any amendment to a Plan that would require
the provision of security pursuant to Section 401(a)(29) of the Code or Section
307 of ERISA; (g) the receipt by the Borrower or any of its ERISA
Affiliates of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any of its ERISA Affiliates of any notice, concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (h) the occurrence of a “prohibited transaction” (within
the meaning of Section 4975 of the Code) with respect to which the Borrower or
any of the Subsidiaries is a “disqualified person” (within the meaning of
Section 4975 of the Code) or with respect to which the Borrower or any such
Subsidiary could otherwise be 


 


10

















 


liable; or (i) any other extraordinary event
or condition with respect to a Plan or Multiemployer Plan (other than
liabilities arising under clauses (a) through (h) above and any
liabilities for routine plan contributions and claims for benefits) that could
result in liability of the Borrower or any Subsidiary.


 


“Eurodollar”, when used in
reference to any Loan or Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.


 


“Event of Default” shall have
the meaning assigned to such term in Article VII.


 


“Excess Cash Flow” shall mean, for any
fiscal year of Holdings, the excess of:


 


(a)           the sum, without duplication, of


 


(i)            Consolidated EBITDA for such fiscal
year,


 


(ii)           reductions to
noncash working capital of Holdings and its Subsidiaries for such fiscal year (i.e., the decrease, if any, in Current Assets minus Current
Liabilities from the beginning to the end of such fiscal year),


 


(iii)          foreign currency
translation gains received in cash, to the extent not otherwise included in
calculating Consolidated EBITDA, and


 


(iv)          extraordinary,
unusual or nonrecurring cash gains (other than gains on Asset Sales), to the
extent not otherwise included in calculating Consolidated EBITDA, minus


 


(b)           the sum, without duplication, of


 


(i)            the amount of any
taxes payable in cash by Holdings and its Subsidiaries with respect to such
fiscal year (to the extent not otherwise deducted in calculating Consolidated
EBITDA),


 


(ii)           consolidated
interest expense for such fiscal year, to the extent payable in cash and not
otherwise deducted in calculating Consolidated EBITDA,


 


(iii)          foreign currency translation
losses payable in cash, to the extent not otherwise deducted in calculating
Consolidated EBITDA,


 


(iv)          Capital Expenditures
made in cash during such fiscal year, except to the extent financed with the
proceeds of long-term Indebtedness,


 


(v)           permanent repayments
of long-term Indebtedness (other than Loans but including Capital Lease
Obligations) made by the Borrower and the Subsidiaries during such fiscal year,
but only to the extent that such repayments (A) by their terms cannot be
reborrowed or redrawn and (B) are not financed with the proceeds of long-term
Indebtedness,


 


11

















 


(vi)          additions to noncash
working capital for such fiscal year (i.e., the
increase, if any, in Current Assets minus Current Liabilities from the
beginning to the end of such fiscal year),


 


(vii)         Tax Distributions
and Specified Tax Payments paid during such fiscal year, to the extent not
otherwise deducted in calculating Consolidated EBITDA,


 


(viii)        Restricted Payments
made by Holdings under Section 6.06(a)(viii) (other than clause (C)
thereof)


 


(ix)           letter of credit
fees, to the extent not otherwise deducted in calculating Consolidated EBITDA,


 


(x)            extraordinary,
unusual or nonrecurring cash charges, to the extent not otherwise deducted in
calculating Consolidated EBITDA,


 


(xi)           fees and expenses incurred in connection
with the Transactions, any Investment permitted under Section 6.04, the
issuance of Equity Interests or Indebtedness or any exchange, refinancing or
other early extinguishment of Indebtedness permitted by this Agreement (in each
case, whether or not consummated),


 


(xii)          cash charges added
to Consolidated EBITDA pursuant to clause (a)(viii) thereof,


 


(xiii)         management fees permitted by Section 6.07,
to the extent not otherwise deducted in calculating Consolidated EBITDA,


 


(xiv)        cash used to
consummate a Permitted Acquisition (including, without duplication, cash used
to make a Restricted Payment under Section 6.06(a)(viii)(C)) except to the
extent financed with the proceeds of long-term Indebtedness,


 


(xv)         cash used to make Investments
pursuant to Section 6.04(o), except to the extent financed with the proceeds
of the issuance of Equity Interests or Cumulative Excess Cash Flow,


 


(xvi)        cash expenditures in
respect of Hedging Agreements, to the extent not otherwise deducted in
calculating Consolidated EBITDA,


 


(xvii)       Cure Amount, if any,
and


 


(xviii)      to the extent added
to Consolidated Net Income, cash losses from any sale or disposition outside
the ordinary course of business.


 


“Excluded Taxes” shall mean,
with respect to the Administrative Agent, any Lender or any other recipient of
any payment to be made by or on account of any 


 


12

















 


obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income or any similar taxes as a
result of a present or former connection between such recipient and the
jurisdiction imposing such tax (or any political subdivision thereof), other
than any such connection arising solely from such recipient having executed,
delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document, (b) any branch
profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction described in clause (a) above and (c) in
the case of a Foreign Lender (other than an assignee pursuant to a request by
the Borrower under Section 2.21(a)), any withholding tax that (i) is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office)
or (ii) is attributable to such Foreign Lender’s failure to comply with
Section 2.20(e) without regard to the proviso of the first sentence or the
last sentence therein, except in the case of clause (i) to the extent that
such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.20(a).


 


“Existing Debt” shall mean (a) all
Indebtedness under the Credit Agreement dated as of February 24, 2005, as
amended, among the Company, the Seller, the lenders party thereto, and Credit
Suisse and (b) certain existing indebtedness of the Seller in an aggregate
outstanding principal amount of approximately $53,700,000.


 


“Existing Letters of Credit”
shall mean all letters of credit issued and outstanding on the Closing Date
under the Credit Agreement dated as of February 24, 2005, as amended,
among the Company, the Seller, the lenders party thereto, and Credit Suisse.


 


“Federal Funds Effective Rate”
shall mean, for any day, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for the day for
such transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.


 


“Fee Letter” shall mean the Second
Amended and Restated Fee Letter, dated June 13, 2006, among the Borrower,
Credit Suisse, Bank of America, N.A., Goldman Sachs Credit Partners, L.P.,
Morgan Stanley Senior Funding, Inc., Morgan Stanley & Co. Incorporated and
the Arrangers.


 


“Fees” shall have the meaning
assigned to such term in Section 2.05.


 


“Financial Officer” of any
person shall mean the chief executive officer, chief financial officer, any
vice president, principal accounting officer, treasurer, assistant treasurer or
controller of such person.


 


13

















 


“First Lien Credit
Agreement” shall mean the First Lien Credit Agreement dated as
of June 30, 2006, among Holdings, the Borrower, the lenders from time to
time party thereto and Credit Suisse, as administrative agent and collateral
agent, as amended, restated, supplemented or otherwise modified from time to
time.


 


“First Lien Guarantee and
Collateral Agreement” shall mean the First Lien Guarantee and
Collateral Agreement, among Holdings, the Borrower, the Subsidiaries party
thereto and Credit Suisse, as Collateral Agent, dated the Closing Date.


 


“First Lien Loan Documents”
shall have the meaning assigned to the term “Loan Documents” in the First Lien
Credit Agreement.


 


“First Lien Loans” shall mean “Loans”
as defined in the First Lien Credit Agreement.


 


“First Priority Liens”
shall have the meaning assigned to such term in the Intercreditor Agreement.


 


“Foreign Lender” shall mean
any Lender that is organized under or whose primary lending office is subject
to the laws of a jurisdiction other than that in which the Borrower is located.
For purposes of this definition, the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.


 


“Foreign Subsidiary” shall
mean any Subsidiary that is not a Domestic Subsidiary.


 


“GAAP” shall mean United
States generally accepted accounting principles.


 


“Governmental Authority” shall
mean the government of the United States of America or any other nation, any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to government.


 


“Granting Lender” shall have
the meaning assigned to such term in Section 9.04(i).


 


“Guarantee” of or by any
person shall mean any obligation, contingent or otherwise, of such person
guaranteeing or having the economic effect of guaranteeing any Indebtedness or
other obligation of any other person (the “primary obligor”)
in any manner, whether directly or indirectly, and including any obligation of
such person, direct or indirect, (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Indebtedness or other obligation, (b) to
purchase or lease (including pursuant to Synthetic Lease Obligations, if
applicable) property, securities or services for the purpose of assuring the
owner of such Indebtedness or other obligation of the payment of such
Indebtedness or other obligation, 


 


14

















 


(c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or
(d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or other obligation; provided, however, that
the term “Guarantee” shall not include endorsements for collection or deposit
in the ordinary course of business or customary and reasonable indemnity
obligations in effect on the Closing Date or entered into in connection with
any acquisition or disposition of assets permitted under this Agreement. The
amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation, or portion thereof, in respect
of which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guaranteeing person in good faith.


 


“Guarantee and Collateral Agreement”
shall mean the Second Lien Guarantee and Collateral Agreement, substantially in
the form of Exhibit D, among the Loan Parties party thereto and the
Collateral Agent for the benefit of the Secured Parties.


 


“Guarantors” shall mean
Holdings and the Subsidiary Guarantors.


 


“Hazardous Materials” shall
mean any petroleum (including crude oil or fraction thereof) or petroleum
products or byproducts, or any pollutant, contaminant, or hazardous or toxic
substances, materials or wastes defined, or regulated as such by, or pursuant
to, any Environmental Law, or which require removal, remediation or reporting
under any Environmental Law, including asbestos, or asbestos containing material,
radioactive material, polychlorinated biphenyls and urea formaldehyde
insulation.


 


“Hedging Agreement” shall mean
any agreement with respect to any swap, forward, future, cap, collar, floor or
derivative transaction or option or similar agreement involving, or settled by
reference to, one or more rates, currencies, fuel or other commodities, equity
or debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar transaction
or any combination of these transactions; provided, however, that no phantom stock or similar plan providing for
payments and on account of services provided by current or former directors,
officers, members of management, employees or consultants of Holdings, the
Borrower or any Subsidiary shall be a Hedging Agreement.


 


“Holdings” shall mean Hawkeye
Intermediate, LLC.


 


“Indebtedness” of any person
shall mean, without duplication, (a) all obligations of such person for
borrowed money, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such
person under conditional sale or other title retention agreements relating to
property or assets purchased by such person, (d) all obligations of such
person issued or assumed as the deferred purchase price of property or services
(excluding (i) trade accounts payable and accrued obligations incurred in
the ordinary course of business and (ii) any earn-out obligation until
such obligation appears in the liabilities section of the balance sheet of such
person, (iii) any earn-out obligation that appears in the liabilities
section of the 


 


15

















 


balance sheet to the extent (A) such person is indemnified for the
payment thereof by a solvent person reasonably acceptable to the Administrative
Agent or (B) amounts applied to the payment therefor are in escrow), (e) all
Indebtedness of others secured by any Lien on property owned or acquired by
such person, whether or not the obligations secured thereby have been assumed,
(f) all Guarantees by such person of Indebtedness of others, (g) all
Capital Lease Obligations of such person, (h) all obligations of such
person as an account party in respect of letters of credit or letters of
guaranty and (i) all obligations of such person in respect of bankers’
acceptances. The Indebtedness of any person shall include the Indebtedness of
any partnership in which such person is a general partner to the extent such
person is liable therefor as a result of such person’s ownership interest in,
or other relationship with, such other person, except to the extent the terms
of such Indebtedness provide that such person is not liable therefor. The
amount of Indebtedness of any person under clause (e) above shall be
deemed to equal the lesser of (x) the aggregate unpaid amount of such
Indebtedness secured by such Lien and (y) the fair market value of the
property encumbered thereby as determined by such person in good faith.


 


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


 


“Intellectual Property Security Agreement”
shall mean any of the following agreements executed on or after the Closing
Date (a) a Second Lien Trademark Security Agreement substantially in the
form of Exhibit H-1, (b) a Second Lien Patent Security Agreement
substantially in the form of Exhibit H-2 or (c) a Second Lien
Copyright Security Agreement substantially in the form of Exhibit H-3.


 


“Intercreditor Agreement”
shall mean the Intercreditor Agreement, substantially in the form of
Exhibit E, among the Borrower, Holdings, the Subsidiaries of the Borrower
from time to time party thereto, the Collateral Agent and the Collateral Agent
(under and as defined in the First Lien Credit Agreement).


 


“Interest Payment Date” shall
mean (a) with respect to any ABR Loan, the last day of each March, June,
September and December, commencing with September 30, 2006, and
(b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the
case of a Eurodollar Borrowing with an Interest Period of more than three
months’ duration, each day that would have been an Interest Payment Date had
successive Interest Periods of three months’ duration been applicable to such
Borrowing.


 


“Interest Period” shall
mean, with respect to any Eurodollar Borrowing, the period commencing on
the date of such Borrowing and ending on the numerically corresponding day (or,
if there is no numerically corresponding day, on the last day) in the calendar
month that is 1, 2, 3 or 6 (or 9 or 12, if agreed to or
available to all of the participating Lenders) months thereafter, as the
Borrower may elect; provided, however, that if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such 


 


16

















 


Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.


 


“Investments” shall have the
meaning assigned to such term in Section 6.04.


 


“Investors” shall have the
meaning assigned to such term in the recitals.


 


“Lenders” shall mean
(a) the persons listed on Schedule 2.01 (other than any such person
that has ceased to be a party hereto pursuant to an Assignment and Acceptance)
and (b) any person that has become a party hereto pursuant to an
Assignment and Acceptance.


 


“LIBO Rate” shall mean, with
respect to any Eurodollar Borrowing for any Interest Period, the rate per annum
determined by the Administrative Agent at approximately 11:00 a.m. (London
time) on the date that is two Business Days prior to the commencement of such
Interest Period by reference to the British Bankers’ Association Interest
Settlement Rates for deposits in dollars (as set forth by Reuters) for a period
equal to such Interest Period; provided, that,
to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition, the “LIBO Rate” shall be the interest
rate per annum determined by the Administrative Agent to be the average of the
rates per annum at which deposits in dollars are offered for such relevant
Interest Period to major banks in the London interbank market in London,
England by the Administrative Agent at approximately 11:00 a.m. (London
time) on the date that is two Business Days prior to the beginning of such
Interest Period.


 


“Lien” shall mean, with
respect to any asset, (a) any mortgage, deed of trust, lien (statutory or
otherwise), pledge, hypothecation, encumbrance, collateral assignment, charge
or security interest in, on or of such asset, and (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset.


 


“Loan Documents” shall mean
this Agreement, the Security Documents and the promissory notes, if any,
executed and delivered pursuant to Section 2.04(e).


 


“Loan Parties” shall mean the
Borrower and the Guarantors.


 


“Loans” shall mean the term
loans made by the Lenders to the Borrower pursuant to Section 2.01.


 


“Margin Stock” shall have the
meaning assigned to such term in Regulation U.


 


“Material Adverse Effect”
shall mean (a) a material adverse effect on the business, assets,
operations or financial condition of Holdings and its Subsidiaries, taken as a
whole, (b) a material adverse effect on the ability of the Loan Parties
(taken as 


 


17

















 


a whole) to perform any of their material obligations under any Loan
Documents or (c) a material adverse effect on any material rights or
remedies available to the Lenders under any Loan Document taken as a whole.


 


“Material Indebtedness” shall
mean Indebtedness (other than the Loans), or obligations in respect of one or
more Hedging Agreements, of any one or more of Holdings and its Subsidiaries in
an aggregate principal amount exceeding $25,000,000. For purposes of
determining Material Indebtedness, the “principal amount” of the obligations of
Holdings, the Borrower or any Subsidiary in respect of any Hedging Agreement at
any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that Holdings, the Borrower or such Subsidiary would be required to
pay if such Hedging Agreement were terminated at such time.


 


“Maturity Date” shall mean
June 30, 2013.


 


“Merger” shall mean the merger
of Merger Sub with and into the Company, with the Company as the surviving
entity of such merger.


 


“Merger Sub” shall have the
meaning assigned to such term in the preamble.


 


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


 


“Mortgaged Properties” shall
mean, initially, the fee owned real properties of the Loan Parties specified on
Schedule 1.01(b), and shall include each other parcel of fee owned real
property and improvements thereto with respect to which a Mortgage is granted
to secure the Obligations.


 


“Mortgages” shall mean the
mortgages, deeds of trust and other security documents granting a Lien on any fee
owned real property or interest therein to secure the Obligations, each
substantially in the form of Exhibit F or such other form as shall be reasonably
approved by the Collateral Agent.


 


“Multiemployer Plan” shall
mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA.


 


“Net Cash Proceeds” shall mean
(a) with respect to any Asset Sale, the proceeds thereof in the form of
cash and Permitted Investments (including any such proceeds subsequently
received (as and when received) in respect of noncash consideration initially
received), net of (i) out-of-pocket expenses (including reasonable and
customary broker’s fees or commissions, investment banking fees, consultant
fees, legal fees, survey costs, title insurance premiums, and related search
and recording charges, transfer, recording and similar taxes incurred by Holdings
and the Subsidiaries in connection therewith and the Borrower’s good faith
estimate of income taxes paid or payable in connection with such sale) incurred
in connection with such Asset Sale (including, in the case of any Asset Sale in
respect of property of any Foreign Subsidiary, taxes payable upon the
repatriation of any such proceeds), (ii) amounts provided as a reserve, in
accordance with GAAP, against any liabilities under any indemnification
obligations or purchase price adjustment associated with such Asset Sale (provided, that to the extent 


 


18

















 


and at the time any such amounts are released from such reserve, such
amounts shall constitute Net Cash Proceeds), (iii) the principal amount,
premium or penalty, if any, interest and other amounts on any Indebtedness
which is secured by the asset sold and which is repaid (other than (A) any
such Indebtedness assumed or repaid by the purchaser and (B) Indebtedness
hereunder or under the First Lien Credit Agreement); and (b) with respect
to any incurrence of Indebtedness or issuance of any Equity Interests, the cash
proceeds thereof, net of all taxes (including, in the case of such Indebtedness
incurred, or Equity Interests issued, by a Foreign Subsidiary, taxes payable
upon the repatriation of any such proceeds) and customary fees, commissions,
costs and other expenses incurred by Holdings, the Borrower and the
Subsidiaries in connection therewith.


 


“Not Otherwise Applied” means,
with reference to any amount of Net Cash Proceeds of any transaction or event
or of Cumulative Excess Cash Flow, that such amount was not (a) required
to be applied to prepay the First Lien Loans pursuant to the First Lien Credit
Agreement or the Loans pursuant to Section 2.13 and (b) previously
applied in determining the permissibility of a transaction under the Loan
Documents where such permissibility was (or may have been or concurrently will
be) contingent on receipt of such amount or utilization of such amount for a
specified purpose.


 


“Obligations” shall mean all
obligations defined as “Obligations” in the Guarantee and Collateral Agreement
and the other Security Documents.


 


“Other Taxes” shall mean any
and all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made under
any Loan Document or from the execution, delivery or enforcement of, or
otherwise with respect to, any Loan Document.


 


“Parent” shall mean a person formed
for the purpose of owning all of the Equity Interests, directly or indirectly, of
Holdings; provided, however,
that any such person shall cease to be the “Parent” at any time that it owns,
directly or indirectly, less than all of the Equity Interests of Holdings.


 


“PBGC” shall mean the Pension
Benefit Guaranty Corporation referred to and defined in ERISA.


 


“Permitted Acquisition” shall
mean any acquisition by the Borrower or any Subsidiary (or Holdings so long as
Holdings complies with Section 6.06(a)(viii)(C)) of all or substantially
all the assets of, or all the Equity Interests in, a Person or division or line
of business of a Person if, immediately after giving effect thereto,
(a) no Default or Event of Default has occurred and is continuing or would
result therefrom, (b) each Subsidiary formed for purposes of or resulting
from such acquisition shall be a Domestic Subsidiary, (c) all of the
Equity Interests of each Subsidiary formed for the purpose of or resulting from
such acquisition shall be owned directly by the Borrower or a Subsidiary and
all actions required to be taken with respect to each such acquired or newly
formed Subsidiary under Section 5.09 have been taken, (d) Holdings,
the Borrower and the Subsidiaries are in compliance, on a pro forma
basis after giving effect to such acquisition with the covenant contained in
Section 6.10 recomputed as at the last day of 


 


19

















 


the most recently ended fiscal quarter of Holdings for which financial
statements are available, as if such acquisition had occurred on the first day
of each relevant period for testing such compliance and (e) the Borrower
has delivered to the Administrative Agent a certificate of a Responsible
Officer to the effect set forth in clauses (a), (b), (c) and (d) above,
together with all relevant financial information for the Person or assets to be
acquired and reasonably detailed calculations demonstrating satisfaction of the
requirement set forth in clause (d) above.


 


“Permitted Investments” shall
mean:


 


(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;


 


(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from S&P or from Moody’s;


 


(c) investments in certificates of deposit, banker’s acceptances
and time deposits maturing within one year from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, the Administrative Agent or any domestic office of any
commercial bank organized under the laws of the United States of America or any
State thereof that has a combined capital and surplus and undivided profits of
not less than $500,000,000;


 


(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria of
clause (c) above;


 


(e) investments in “money market funds” within the meaning of Rule 2a-7
of the Investment Company Act of 1940, as amended, substantially all of whose
assets are invested in investments of the type described in clauses (a)
through (d) above;


 


(f) investments in so-called “auction rate” securities rated AAA
or higher by S&P or Aaa or higher by Moody’s and which have a reset date
not more than 90 days from the date of acquisition thereof; and


 


(g) other short-term investments utilized by Foreign Subsidiaries
in accordance with normal investment practices for cash management in
investments of a type analogous to the foregoing.


 


“Permitted Investors” shall
mean (a) the Sponsor and (b) the members of management of the Parent,
Holdings and its Subsidiaries who are investors, directly or indirectly, in the
Parent or Holdings (collectively, the “Management Investors”);
provided, however,
that, for purposes of the definition of “Change in Control”, if the portion of
the Equity Interests of Holdings having ordinary voting power (within the
meaning of such definition) allocable to Management Investors at any time
exceeds, in 


 


20

















 


the aggregate, 35% of the total amount of all such Equity Interests at
such time, then the Permitted Investors shall be deemed not to own or have the
power to vote or direct the voting of the amount of such excess.


 


“Permitted Project Debt” shall
mean Indebtedness of a Project Subsidiary incurred to finance the acquisition
of property relating to and the construction, start up and operation of an
ethanol plant owned by such Project Subsidiary; provided,
that (a) such Indebtedness is not Guaranteed by Holdings, the Borrower or
any other Subsidiary; (b) such Indebtedness is not secured by a Lien on
any assets of Holdings, the Borrower or any other Subsidiary; (c) both
immediately prior and after giving effect to any incurrence of such
Indebtedness, (1) no Default shall exist or result therefrom and
(2) Holdings and its Subsidiaries will be in Pro Forma Compliance with the
covenant set forth in Section 6.10; and (d) all incurrences of Permitted
Project Debt, in the aggregate, may fund the construction, start up or
operation of no more than two ethanol plants.


 


“Permitted Refinancing” shall
mean Indebtedness of Holdings, the Borrower or any Subsidiary issued or
incurred (including by means of the extension or renewal of existing
Indebtedness) to refinance, refund, extend, renew or replace existing
Indebtedness (“Refinanced Indebtedness”); provided, that (a) the principal amount (or, if
incurred with original issue discount, the aggregate accreted value) of such
refinancing, refunding, extending, renewing or replacing Indebtedness (the “New Indebtedness”) is not greater
than the principal amount of such Refinanced Indebtedness plus the amount of
any premiums or penalties and accrued and unpaid interest paid thereon and
reasonable fees and expenses, in each case associated with such refinancing,
refunding, extension, renewal or replacement (or, to the extent such principal
amount is greater, the excess is otherwise permitted by Section 6.01 and shall
not constitute Permitted Refinancing Indebtedness), (b) if such Refinanced
Indebtedness is Permitted Subordinated Debt, Permitted Senior Debt or other
Indebtedness that is Material Indebtedness (or a Permitted Refinancing thereof),
such New Indebtedness has a final maturity that is no sooner than the final
maturity of, and a weighted average life to maturity that is not earlier than
the remaining weighted average life of, such Refinanced Indebtedness, (c) if
such Refinanced Indebtedness or any Guarantees thereof are subordinated to the
Obligations, such New Indebtedness and any Guarantees thereof remain so
subordinated on terms no less favorable to the Lenders, (d) the obligors
in respect of such Refinanced Indebtedness immediately prior to such
refinancing, refunding, extending, renewing or replacing are the only obligors
on such New Indebtedness, except to the extent any other person would be
permitted to Guarantee such New Indebtedness under Section 6.01 or to make
an Investment in, and such new obligor’s obligations in respect of such refinancing
is treated as an Investment in, such person pursuant to Section 6.04 and
(e) if such Refinanced Indebtedness is Permitted Subordinated Debt,
Permitted Senior Debt or other Indebtedness that is Material Indebtedness or (a
Permitted Refinancing thereof), such New Indebtedness contains mandatory
redemption (or similar provisions), covenants and events of default which, taken
as a whole, are determined in good faith by a Financial Officer of the Borrower
to be no less favorable in any material respect to Holdings, the Borrower or
the applicable Subsidiary and the Lenders than the mandatory redemption (or
similar provisions), covenants and events of default or Guarantees, if any, in
respect of such Refinanced Indebtedness; provided, further,
however, that Permitted Refinancing 


 


21

















 


shall not include Indebtedness of the Borrower or a Guarantor that
refinances, refunds or replaces (i) any Permitted Project Debt or (ii) any
other Indebtedness of a Subsidiary (other than a Subsidiary Guarantor) except to
the extent the Borrower would be permitted to make an Investment in, and such
refinancing is treated as an Investment in, such Subsidiary pursuant to
Section 6.04.


 


“person” shall mean any
natural person, corporation, business trust, joint venture, association,
company, limited liability company, partnership, Governmental Authority or
other entity.


 


“Plan” shall mean any employee
pension benefit plan as defined in Section 3(2) of ERISA (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 307 of ERISA, and in respect of which
the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.


 


“Pledged Collateral” shall
have the meaning assigned to such term in the Guarantee and Collateral
Agreement.


 


“Post-Acquisition Period”
shall mean, with respect to any Permitted Acquisition, the period beginning on
the date such Permitted Acquisition is consummated and ending on the last day
of the sixth full consecutive fiscal quarter immediately following the date on
which such Permitted Acquisition is consummated.


 


“Prepayment Asset Sale” shall
mean any Asset Sale, other than an Asset Sale permitted by Section 6.05(b)
(other than clause (x) thereof), to the extent that (a) the aggregate
Net Cash Proceeds realized in a single transaction or series of related
transactions exceed $1,000,000; and (b) the aggregate Net Cash Proceeds of
all such Asset Sales during any fiscal year exceed $5,000,000.


 


“Prime Rate” shall mean the
rate of interest per annum announced from time to time by Credit Suisse as its
prime rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective as of the opening of business on the date
such change is announced as being effective. The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate actually available.


 


“Pro Forma Basis”, “Pro Forma Compliance”
and “Pro Forma Effect”
mean, with respect to compliance with any test or covenant hereunder in respect
of any Specified Transactions, the following adjustments in connection
therewith shall be deemed to have occurred as of the first day of the
applicable period of measurement in such test or covenant:  (a) income statement items (whether
positive or negative) attributable to the property or Person subject to such
Specified Transaction, (i) in the case of an Asset Sale of all or
substantially all of the Equity Interests in any Subsidiary or of any division,
product line, or facility used for operations of the Borrower or any of its
Subsidiaries, shall be excluded, and (ii) in the case of a Permitted
Acquisition or investment described in the definition of “Specified Transaction”,
shall be included, 


 


22

















 


(b) any retirement of
Indebtedness, and (c) any Indebtedness incurred or assumed by the Borrower
or any of its Subsidiaries in connection therewith and if such Indebtedness has
a floating or formula rate, shall have an implied rate of interest for the
applicable period for purposes of this definition determined by utilizing the
rate which is or would be in effect with respect to such Indebtedness as at the
relevant date of determination; provided, that,
the foregoing pro forma adjustments may be applied to any such test or covenant
solely to the extent that such adjustments are consistent with the definition
of “Consolidated EBITDA” and may take into account reasonably identifiable and
factually supportable cost savings for which the necessary steps have been
implemented or are reasonably expected to be implemented within 18 months after
the closing of the relevant Specified Transaction.


 


“Project
Subsidiary” shall mean a Subsidiary of the Borrower formed
solely for the purpose of acquiring property relating to and the constructing
and operating of one or more ethanol plants (but not to exceed two, in the
aggregate, for all Project Subsidiaries) financed in whole or in part by
Permitted Project Debt.


 


“Purchase Agreement” shall
mean the Membership Interest Purchase Agreement dated as of May 11, 2006,
by and among the Seller, the Company, Merger Sub, THL Hawkeye Acquisition
Partners, THL Hawkeye Acquisition Partners II and THL Hawkeye Acquisition
Partners III.


 


“Qualified Capital Stock” of
any person shall mean any Equity Interest of such person that is not
Disqualified Stock.


 


“Qualified Public Offering”
shall mean the initial underwritten public offering of common Equity Interests
of either (a) Holdings or (b) Parent pursuant to an effective registration
statement filed with the Securities and Exchange Commission in accordance with
the Securities Act of 1933, as amended, that results in at least
$50,000,000 of Net Cash Proceeds to Holdings or Parent.


 


“Register” shall have the
meaning assigned to such term in Section 9.04(d).


 


“Regulation U” shall mean
Regulation U of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.


 


“Regulation X” shall mean
Regulation X of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.


 


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


 


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


 


23

















 


“Release” shall mean any
release, spill, emission, leaking, dumping, injection, pouring, deposit,
disposal, discharge, dispersal, leaching or migration into or through the
environment or within or upon any building, structure, facility or fixture.


 


“Required Lenders” shall mean,
at any time, Lenders having Loans and Commitments representing more than 50% of
the sum of all Loans outstanding and Commitments at such time.


 


“Responsible Officer” of any
person shall mean any executive officer or Financial Officer of such person and
any other officer or similar official thereof responsible for the
administration of the obligations of such person in respect of this Agreement.


 


“Restricted Payment” shall
mean any dividend or other distribution (whether in cash, securities or other
property) with respect to any Equity Interests in Holdings, the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancelation or termination of any Equity
Interests in Holdings, the Borrower or any Subsidiary or any option, warrant or
other right to acquire any such Equity Interests in Holdings, the Borrower or
any Subsidiary.


 


“Secured Parties” shall have
the meaning assigned to such term in the Guarantee and Collateral Agreement.


 


“Security Documents” shall
mean the Mortgages, the Guarantee and Collateral Agreement, the Intercreditor
Agreement, the Intellectual Property Security Agreements and each of the other
instruments and documents executed and delivered pursuant to any of the foregoing
or pursuant to Section 5.09.


 


“Seller” shall have the
meaning assigned to such term in the recitals.


 


“Solvent” means, with respect
to any person, (a) the consolidated fair value of the assets of such
person and its Subsidiaries, at a fair valuation, will exceed their
consolidated debts and liabilities, subordinated, contingent or otherwise;
(b) the consolidated present fair saleable value of the property of such
person and its Subsidiaries will be greater than the amount that will be
required to pay the probable liability of their consolidated debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) such person and its
Subsidiaries will be able to pay their consolidated debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (d) such person and its Subsidiaries, taken as a
whole, will not have unreasonably small capital with which to conduct the
business in which they are engaged.


 


“SPC” shall have the meaning
assigned to such term in Section 9.04(i).


 


“S&P” shall mean
Standard & Poor’s Ratings Group, Inc.


 


24

















 


“Specified Tax Benefits” shall
mean tax benefits directly or indirectly attributable to (a) any step-up
in the tax basis of any assets of Holdings (or Parent, as applicable) or its
Subsidiaries attributable to (i) the consummation of the Transactions; (ii) the
consummation of a Qualified Public Offering (including all transactions
consummated in connection with such Qualified Public Offering); (iii) the
execution of that certain Indemnity Escrow Agreement (the “Escrow
Agreement”) by and among Holdings, Hawkeye Holdings, L.L.C., THL
Hawkeye Acquisition Partners, THL Hawkeye Acquisition Partners II and THL
Hawkeye Acquisition Partners III, dated June 30, 2006; (iv) the
execution of that certain Tax Receivable Agreement (the “Tax
Receivable Agreement”) to be entered into by and among Parent
(if any), Hawkeye Holdings, L.L.C., Thomas H. Lee Equity Fund VI, L.P., Thomas
H. Lee Parallel Fund VI, L.P., Thomas H. Lee Parallel (DT) Fund VI, L.P.,
Putnam Investment Holdings, LLC, Putnam Investments Employees Security Company
III LLC, and THL Coinvestment Partners, L.P.; (v) any payments made
pursuant to either the Escrow Agreement or the Tax Receivable Agreement; and (b)
any deductible interest paid by Holdings (or Parent, as applicable) on account
of either the Escrow Agreement or the Tax Receivable Agreement.


 


“Specified Tax Payments” shall
mean Restricted Payments or other payments by Parent (if any), Holdings or the
Borrower to current or former Affiliates or members of Parent (if any), Holdings
(or directors, officers or employees of Parent (if any), Holdings, the Borrower
or any Subsidiary or any current or former Affiliate thereof) in respect of any
taxable year of Holdings computed as follows: (a) for so long as Holdings
is not a Corporate Taxpayer, an amount equal to the excess of (i) the
amount of U.S. federal, state and local income taxes that would have been
payable by Holdings and its Subsidiaries in respect of such taxable year if
Holdings were a Corporate Taxpayer (without taking into account the Specified
Tax Benefits) over (ii) the amount of Tax Distributions made in respect of
such taxable year, and (b) in the event Holdings becomes a Corporate
Taxpayer, an amount equal to the excess of (i) the amount U.S. federal,
state and local income taxes that would have been payable by Holdings and its
Subsidiaries (without taking account the Specified Tax Benefits) over (ii) the
actual U.S. federal, state and local income taxes payable by Holdings and its
Subsidiaries in respect of such taxable year; provided,
however, that (x) the Specified Tax
Payments made in any fiscal year of Holdings shall not exceed $20,000,000 and (y) Specified
Tax Payments shall not be paid prior to the time such tax period ends and the
amount determinable under clauses (a) and (b) is ascertained; provided, further, that for the avoidance of doubt,
Specified Tax Payments shall be made quarterly at or about the dates that
estimated income tax payments are required to be paid and at or about the time
of the filing of the annual income tax return (all as contemplated in the Tax
Receivable Agreement).


 


“Specified Transaction” means,
with respect to any period, any Investment, Asset Sale, incurrence or repayment
of Indebtedness or Restricted Payment that by the terms of this Agreement
requires “Pro Forma Compliance” with a test or covenant hereunder or requires
such test or covenant to be calculated on a “Pro Forma Basis”.


 


“Sponsor” shall mean Thomas H.
Lee Partners L.P. and its Affiliates.


 


25

















 


“Sponsor Agreement” shall mean
the Management Agreement dated as of June 30, 2006, among Holdings, the
Borrower and THL Managers VI, LLC.


 


“Statutory Reserves” shall
mean a fraction (expressed as a decimal), the numerator of which is the number
one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board and any
other banking authority, domestic or foreign, to which any Lender (including
any branch, Affiliate, or other fronting office making or holding a Loan) is
subject for Eurocurrency Liabilities (as defined in Regulation D of the
Board). Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities
as defined in Regulation D of the Board) and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such
Regulation D. Statutory Reserves shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.


 


“subsidiary” shall mean, with
respect to any person (herein referred to as the “parent”),
any corporation, partnership, limited liability company, association or other
business entity of which securities or other ownership interests representing
more than 50% of the ordinary voting power or more than 50% of the general
partnership interests are, at the time any determination is being made, owned, Controlled
or held by the parent, one or more subsidiaries of the parent or a combination
thereof.


 


“Subsidiary” shall mean any
subsidiary of Holdings or the Borrower; provided, that
so long as D&W Railroad, LLC is not a wholly owned Subsidiary of Holdings,
it shall not be considered a Subsidiary for the purposes of Article VII.


 


“Subsidiary Guarantor” shall
mean each Subsidiary listed on Schedule 1.01(a), and each other Subsidiary
that is or becomes a party to the Guarantee and Collateral Agreement, excluding
(a) D&W Railroad, LLC, so long as it is not a wholly owned Subsidiary
of Holdings, and (b) any Project Subsidiary.


 


“Synthetic Lease Obligations”
shall mean all monetary obligations of a person under (a) a so-called
synthetic, off-balance sheet or tax retention lease or (b) an agreement
for the use or possession of any property (whether real, personal or mixed)
creating obligations which do not appear on the balance sheet of such person,
but which, upon the insolvency or bankruptcy of such person, would be
characterized as Indebtedness of such person (without regard to accounting
treatment).


 


“Tax Distributions” shall
mean, so long as Holdings is not a Corporate Taxpayer, Restricted Payments by
Holdings in respect of any taxable year in an aggregate amount not exceeding
the amount of United States Federal, state and local income taxes (not otherwise
paid by Holdings or any of its Subsidiaries) that would have been paid by
Holdings and its Subsidiaries in respect of such taxable year if Holdings were
a Corporate Taxpayer, taking into account all applicable deductions and tax
benefits (including tax benefits that are attributable to Specified Tax Benefits);
provided, however,
that such Restricted Payments shall not be paid prior to the time such
applicable tax period ends 


 


26

















 


and the amount of such Restricted Payments is ascertained; provided, further, that
for the avoidance of doubt, Tax Distributions shall be made quarterly, at or
about the dates that estimated income tax payments are required to be paid.


 


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


 


“Total Debt” shall mean, at any time with
respect to any person and its Subsidiaries, the total Indebtedness of such
person in respect of borrowed money or Capital Lease Obligations, determined on
a consolidated basis, minus the amount of unrestricted cash and Permitted
Investments of such person that are not subject to a Lien, other than any Lien
in favor of the Secured Parties and the First Priority Liens.


 


“Total Leverage Ratio” shall mean, with
respect to Holdings and its Subsidiaries as of the end of any fiscal quarter of
Holdings, the ratio of Total Debt on such date to Consolidated EBITDA for the
period of four consecutive fiscal quarters most recently ended on or prior to
such date.


 


“Transactions” shall mean,
collectively, (a) the execution, delivery and performance by the parties
thereto of the Purchase Agreement and the consummation of the transactions
contemplated thereby, including the Equity Contribution, the Acquisition, the
Merger and the repayment of the Existing Debt, (b) the execution, delivery
and performance by the Loan Parties of the Loan Documents to which they are a
party and the execution, delivery and performance by the Loan Parties of the First
Lien Credit Agreement (and the “Loan Documents” as defined therein) and the
making of the Borrowings hereunder and the borrowings thereunder and use of the
proceeds thereof, and (c) the payment of related fees and expenses.


 


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


 


“Uniform Commercial Code” or “UCC” means the Uniform Commercial
Code as in effect in any applicable jurisdiction from time to time.


 


“USA PATRIOT Act” shall mean
The Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L.
No. 107-56 (signed into law October 26, 2001)).


 


“Weighted Average Life to Maturity”
means, when applied to any Indebtedness at any date, the number of years
obtained by dividing:  (i) the sum
of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect thereof, by
(b) the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment; by (ii) the then
outstanding principal amount of such Indebtedness.


 


27

















 


“wholly owned Subsidiary” of
any person shall mean a subsidiary of such person of which securities (except
for directors’ qualifying shares) or other ownership interests representing
100% of the Equity Interests are, at the time any determination is being made,
owned, Controlled or held by such person or one or more wholly owned
Subsidiaries of such person or by such person and one or more wholly owned
Subsidiaries of such person.


 


“Withdrawal Liability” shall
mean liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in
Part I of Subtitle E of Title IV of ERISA.


 


SECTION 1.02. Terms Generally. The
definitions in Section 1.01 shall apply equally to both the singular and
plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words “include”, “includes” and “including” shall be deemed to be followed
by the phrase “without limitation”. The word “will” shall be construed to have
the same meaning and effect as the word “shall”; and the words “asset” and “property”
shall be construed as having the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights. The words “herein”, “hereof” and “hereunder”,
and words of similar import, shall be construed to refer to this Agreement in
its entirety and not to any particular provision of this Agreement unless the
context shall otherwise require. All references herein to Articles, Sections,
Exhibits and Schedules shall be deemed references to Articles and Sections of,
and Exhibits and Schedules to, this Agreement unless the context shall
otherwise require. Except as otherwise expressly provided herein, (a) any
reference in this Agreement to any Loan Document or any other agreement,
instrument or document shall mean such document as amended, restated, amended
and restated, supplemented or otherwise modified from time to time and (b) all
terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time; provided,
however, that if the Borrower
notifies the Administrative Agent that the Borrower wishes to amend any covenant
in Article VI or any related definition to eliminate the effect of any
change in GAAP or the application thereof occurring after the date of this
Agreement on the operation of such covenant (or if the Administrative Agent
notifies the Borrower that the Required Lenders wish to amend Article VI
or any related definition for such purpose), then the Borrower and the
Administrative Agent shall negotiate in good faith to amend such covenant and
related definitions (subject to the approval of the Required Lenders) to
preserve the original intent thereof in light of such changes in GAAP; provided, that the Borrower’s compliance
with such covenant shall be determined on the basis of GAAP as applied and in
effect immediately before the relevant change in GAAP or the application
thereof became effective, until such covenant is amended.


 


SECTION 1.03. Classification of Loans and
Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Type (e.g., a “Eurodollar Loan”). Borrowings
also may be classified and referred to by Type (e.g., a “Eurodollar Borrowing”).


 


28

















 


SECTION 1.04. Rounding. Any
financial ratios required to be maintained by the Borrower pursuant to this
Agreement (or required to be satisfied in order for a specific action to be
permitted under this Agreement) shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than
the number of places by which such ratio is expressed herein and rounding the
result up or down to the nearest number (with a rounding-up if there is no
nearest number).


 


SECTION 1.05. References to Agreements and Laws.
Unless otherwise expressly provided herein, (a) references to
organization documents, agreements (including the Loan Documents) and other
contractual instruments shall be deemed to include all subsequent amendments,
amendments and restatements, restatements, supplements and other modifications
thereto, but only to the extent that such amendments, amendments and
restatements, restatements, supplements and other modifications are not
prohibited by any Loan Document; and (b) references to any law, statute,
rule or regulation shall include all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such Law.


 


SECTION 1.06. Times of Day. Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable).


 


SECTION 1.07. Timing of Payment or Performance.
When the payment of any obligation or the performance of any covenant, duty
or obligation is stated to be due or performance required on a day which is not
a Business Day, the date of such payment or performance shall extend to the
immediately succeeding Business Day and such extension of time shall be
reflected in computing interest or fees, as the case may be; provided, that with respect to any payment
of interest on or principal of Eurodollar Rate Loans, if such extension would
cause any such payment to be made in the next succeeding calendar month, such
payment shall be made on the immediately preceding Business Day.


 


ARTICLE II



The Credits


 


SECTION 2.01. Commitments. Subject
to the terms and conditions herein set forth, each Lender agrees, severally and
not jointly, to make a Loan to the Borrower on the Closing Date in
a principal amount not to exceed its Commitment. Amounts paid or prepaid
in respect of Loans may not be reborrowed.


 


SECTION 2.02. Loans. (a)  Each Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their Commitments; provided, however,
that the failure of any Lender to make any Loan shall not in itself relieve any
other Lender of its obligation to lend hereunder (it being understood, however,
that no Lender shall be responsible for the failure of any other Lender to make
any Loan required to be made by such other Lender). The Loans comprising any
Borrowing shall be in an aggregate principal amount that is an integral
multiple of $500,000 and not less than $2,000,000.


 


29

















 


(b)   Subject to
Sections 2.08 and 2.15, each Borrowing shall be comprised entirely of ABR
Loans or Eurodollar Loans as the Borrower may request pursuant to
Section 2.03. Each Lender may at its option make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided, that any exercise
of such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement. Borrowings of more than
one Type may be outstanding at the same time; provided, however,
that the Borrower shall not be entitled to request any Borrowing that, if made,
would result in more than twelve Eurodollar Borrowings outstanding
hereunder at any time. For purposes of the foregoing, Borrowings having
different Interest Periods, regardless of whether they commence on the same
date, shall be considered separate Borrowings.


 


(c)   Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer
of immediately available funds to such account in New York City as the
Administrative Agent may designate not later than 1:00 p.m., New York City
time, and the Administrative Agent shall promptly credit the amounts so
received to an account designated by the Borrower in the applicable Borrowing
Request or, if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, return the amounts so
received to the respective Lenders.


 


(d)   Unless the Administrative
Agent shall have received notice from a Lender prior to the date of any
Borrowing that such Lender will not make available to the Administrative Agent
such Lender’s portion of such Borrowing, the Administrative Agent may assume
that such Lender has made such portion available to the Administrative Agent on
the date of such Borrowing in accordance with paragraph (c) above and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If the Administrative Agent
shall have so made funds available then, to the extent that such Lender shall
not have made such portion available to the Administrative Agent, such Lender
and the Borrower severally agree to repay to the Administrative Agent forthwith
on demand such corresponding amount together with interest thereon, for each
day from the date such amount is made available to the Borrower to but
excluding the date such amount is repaid to the Administrative Agent at
(i) in the case of the Borrower, a rate per annum equal to the interest
rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, a rate determined by the Administrative
Agent to represent its cost of overnight or short-term funds (which
determination shall be conclusive absent manifest error). If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount shall
constitute such Lender’s Loan as part of such Borrowing for purposes of this
Agreement and (x) Borrower’s obligation to repay the Administrative Agent
such corresponding amount pursuant to this Section 2.02(d) shall cease and
(y) if the Borrower pays such amount to the Administrative Agent, the
amount so paid shall constitute a repayment of such Borrowing by such amount.


 


SECTION 2.03. Borrowing Procedure. In
order to request a Borrowing, the Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a Eurodollar
Borrowing, not later than 1:00 p.m., New York City time, three 


 


30

















 


Business Days before a proposed Borrowing,
and (b) in the case of an ABR Borrowing, not later than 1:00 p.m.,
New York City time, one Business Day before a proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable, and shall be confirmed
promptly by hand delivery or fax to the Administrative Agent of a written Borrowing
Request and shall specify the following information: (i) whether such
Borrowing is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the
date of such Borrowing (which shall be a Business Day); (iii) the number
and location of the account to which funds are to be disbursed; (iv) the
amount of such Borrowing; and (v) if such Borrowing is to be a Eurodollar
Borrowing, the Interest Period with respect thereto; provided, however,
that notwithstanding any contrary specification in any Borrowing Request, each
requested Borrowing shall comply with the requirements set forth in
Section 2.02. If no election as to the Type of Borrowing is specified in
any such notice, then the requested Borrowing shall be a Eurodollar Borrowing.
If no Interest Period with respect to any Eurodollar Borrowing is specified in
any such notice, then the Borrower shall be deemed to have selected an Interest
Period of one month’s duration. The Administrative Agent shall promptly advise
the applicable Lenders of any notice given pursuant to this Section 2.03
(and the contents thereof), and of each Lender’s portion of the requested
Borrowing.


 


SECTION 2.04. Evidence of Debt; Repayment of Loans.
(a)  The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of each Lender the
principal amount of each Loan of such Lender on the Maturity Date.


 


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


 


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


 


(d)   The entries made in the
accounts maintained pursuant to paragraphs (b) and (c) above shall be
prima facie evidence of the
existence and amounts of the obligations therein recorded; provided, however,
that the failure of any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligations of
the Borrower to repay the Loans in accordance with the terms of this Agreement.


 


(e)   Any Lender may request that
Loans made by it hereunder be evidenced by a promissory note. In such event,
the Borrower shall execute and deliver to such Lender a promissory note payable
to such Lender and its permitted registered assigns in form and substance
reasonably acceptable to the Administrative Agent. Notwithstanding any other
provision of this Agreement, in the event any Lender shall request and receive
such a 


 


31

















 


promissory note, the interests
represented by such note shall at all times (including after any assignment of
all or part of such interests pursuant to Section 9.04) be represented by
one or more promissory notes payable to the payee named therein or its
registered assigns.


 


SECTION 2.05. Fees. (a)  The Borrower agrees to pay to the
Administrative Agent, for its own account, the fees set forth in the Fee Letter
at the times and in the amounts specified therein (the “Fees”).


 


(b)   The Fees shall be paid, in
immediately available funds, to the Administrative Agent. Once paid, none of the
Fees shall be refundable under any circumstances.


 


SECTION 2.06. Interest on Loans. (a)  Subject to the provisions of Section 2.07,
the Loans comprising each ABR Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 365 or
366 days, as the case may be, when the Alternate Base Rate is determined
by reference to the Prime Rate and over a year of 360 days at all other
times and calculated from and including the date of such Borrowing to but
excluding the date of repayment thereof) at a rate per annum equal to the
Alternate Base Rate plus the Applicable Percentage.


 


(b)   Subject to the provisions
of Section 2.07, the Loans comprising each Eurodollar Borrowing shall bear
interest (computed on the basis of the actual number of days elapsed over a
year of 360 days) at a rate per annum equal to the Adjusted LIBO Rate for
the Interest Period in effect for such Borrowing plus the Applicable
Percentage.


 


(c)   Interest on each Loan shall
be payable on the Interest Payment Dates applicable to such Loan except as
otherwise provided in this Agreement. The applicable Alternate Base Rate or
Adjusted LIBO Rate for each Interest Period or day within an Interest Period,
as the case may be, shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.


 


SECTION 2.07. Default Interest. If
the Borrower shall default in the payment when due of any principal of or
interest on any Loan or payment of any fee or other amount due hereunder, by
acceleration or otherwise, or under any other Loan Document, then, until such
defaulted amount shall have been paid in full, to the extent permitted by law, such
overdue amount shall bear interest (after as well as before judgment), payable
on demand, (a) in the case of principal of a Loan, at the rate otherwise
applicable to such Loan pursuant to Section 2.06 plus 2.00% per annum and (b)
in all other cases, at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be, when
determined by reference to the Prime Rate and over a year of 360 days at all other
times) equal to the rate that would be applicable to an ABR Loan plus 2.00% per
annum.


 


SECTION 2.08. Alternate Rate of Interest.
In the event, and on each occasion, that on the day two Business Days prior to
the commencement of any Interest Period for a Eurodollar Borrowing the
Administrative Agent shall have reasonably determined that dollar deposits in
the principal amounts of the Loans comprising such Borrowing are not 


 


32

















 


generally available in the London interbank
market, or that the rates at which dollar deposits are being offered in the
London interbank market will not adequately and fairly reflect the cost to any participating
Lender of making or maintaining its Eurodollar Loan during such Interest
Period, or that reasonable means do not exist for ascertaining the Adjusted
LIBO Rate for such Interest Period, the Administrative Agent shall, as soon as
practicable thereafter, give written or fax notice of such determination to the
Borrower and the Lenders. In the event of any such determination, until the
Administrative Agent shall have advised the Borrower and the participating Lenders
that the circumstances giving rise to such notice no longer exist (which the
Administrative Agent agrees to give promptly after such circumstances no longer
exist), any request by the Borrower for a Eurodollar Borrowing pursuant to
Section 2.03 or 2.10 shall be deemed to be a request for an
ABR Borrowing. Each determination by the Administrative Agent under this
Section 2.08 shall be conclusive absent manifest error.


 


SECTION 2.09. Termination of Commitments.
(a)  The Commitments shall automatically
terminate upon the making of the Loans on the Closing Date. Notwithstanding the
foregoing, the Commitments shall automatically terminate at 5:00 p.m., New
York City time, on June 30, 2006, if the funding of the Loans shall not
have been made by such time.


 


(b)   Upon at least three
Business Days’ prior written or fax notice to the Administrative Agent, the
Borrower may at any time in whole permanently terminate, or from time to time
in part permanently reduce, the Commitments; provided,
however, that (i) each partial
reduction of the Commitments shall be in an integral multiple of $1,000,000 and
in a minimum amount of $5,000,000. Any notice given by the Borrower pursuant to
this Section 2.09(b) shall be irrevocable; provided, that
any such notice delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other financing arrangements, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied.


 


(c)   Each reduction in the
Commitments hereunder shall be made ratably among the Lenders in accordance
with their respective Commitments.


 


SECTION 2.10. Conversion and Continuation of
Borrowings. The Borrower shall have the right at any time upon
prior written or fax notice (or telephone notice promptly confirmed by written
or fax notice) to the Administrative Agent (a) not later than 1:00 p.m.,
New York City time, one Business Day prior to conversion, to convert any
Eurodollar Borrowing into an ABR Borrowing, (b) not later than 11:00 a.m.,
New York City time, three Business Days prior to conversion or continuation, to
convert any ABR Borrowing into a Eurodollar Borrowing or to continue any
Eurodollar Borrowing as a Eurodollar Borrowing for an additional Interest
Period, and (c) not later than 1:00 p.m., New York City time, three
Business Days prior to conversion, to convert the Interest Period with respect
to any Eurodollar Borrowing to another permissible Interest Period, subject in
each case to the following:


 


33














 


(i)  each conversion or continuation shall be made
pro rata among the Lenders in accordance with the respective principal amounts
of the Loans comprising the converted or continued Borrowing;


 


(ii)  if less than all the outstanding principal
amount of any Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a) and
2.02(b) regarding the principal amount and maximum number of Borrowings of the
relevant Type;


 


(iii)  each conversion shall be effected by each
Lender and the Administrative Agent by recording for the account of such Lender
the Type of such Loan of such Lender resulting from such conversion and
reducing the Loan (or portion thereof) of such Lender being converted by an equivalent
principal amount; accrued interest on any Eurodollar Loan (or portion thereof)
being converted shall be paid by the Borrower at the time of conversion;


 


(iv)  if any Eurodollar Borrowing is converted at a
time other than the end of the Interest Period applicable thereto, the Borrower
shall pay, upon demand, any amounts due to the Lenders pursuant to
Section 2.16;


 


(v)  any portion of a Borrowing maturing or
required to be repaid in less than one month may not be converted into or
continued as a Eurodollar Borrowing;


 


(vi)  any portion of a Eurodollar Borrowing that
cannot be converted into or continued as a Eurodollar Borrowing by reason of
the immediately preceding clause shall be automatically converted at the end of
the Interest Period in effect for such Borrowing into an ABR Borrowing;
and


 


(vii)  upon notice to the Borrower from the
Administrative Agent given at the request of the Required Lenders, after the
occurrence and during the continuance of an Event of Default, no outstanding
Loan may be converted into, or continued as, a Eurodollar Loan.


 


Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of
the Borrowing that the Borrower requests be converted or continued,
(ii) whether such Borrowing is to be converted to or continued as a
Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice
requests a conversion, the date of such conversion (which shall be a Business
Day) and (iv) if such Borrowing is to be converted to or continued as a
Eurodollar Borrowing, the Interest Period with respect thereto. If no Interest
Period is specified in any such notice with respect to any conversion to or
continuation as a Eurodollar Borrowing, the Borrower shall be deemed to have
selected an Interest Period of one month’s duration. The Administrative Agent
shall advise the Lenders of any notice given pursuant to this Section 2.10
and of each Lender’s portion of any converted or continued Borrowing. If the
Borrower shall not have given notice in accordance with this Section 2.10
to continue any Borrowing into a subsequent Interest Period (and shall not
otherwise have given 


 


34

















 


notice in accordance with this Section 2.10 to convert such
Borrowing), such Borrowing shall, at the end of the Interest Period applicable
thereto (unless repaid pursuant to the terms hereof), automatically be
continued into a Eurodollar Borrowing with an Interest Period of one month’s
duration.


 


SECTION 2.11. Right to Require Prepayment.
The Borrower shall notify the Administrative Agent of the occurrence of a
Change in Control not later than one Business Day after the occurrence thereof,
and the Administrative Agent shall within three Business Days thereafter notify
the Lenders thereof. At any time prior to the 60th day following
delivery of the notice by the Administrative Agent pursuant to the preceding
sentence, each Lender shall have the right, upon not less than five Business
Days’ prior notice to the Administrative Agent and the Borrower, to require the
Borrower to prepay in full, and not in part, the outstanding principal amount
of such Lender’s Loans at a purchase price equal to, within one year of the
Closing Date, 101%, or thereafter, 100%, of the principal amount thereof,
together with accrued and unpaid interest on the principal amount thereof to
but excluding the date of payment, and all other amounts then due to such
Lender or outstanding with respect to the Loans of such Lender under the Loan
Documents.


 


SECTION 2.12. Optional Prepayment. (a)  Subject to payment of any applicable premium
as set forth in paragraph (b) below, the Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, upon
at least three Business Days’ prior written or fax notice (or telephone notice
promptly confirmed by written or fax notice) in the case of Eurodollar Loans,
or written or fax notice (or telephone notice promptly confirmed by written or
fax notice) at least one Business Day prior to the date of prepayment in the
case of ABR Loans, to the Administrative Agent before 1:00 p.m., New York
City time; provided, that each
partial prepayment shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000.


 


(b)   Any prepayment of Loans
made pursuant to Section 2.12(a) prior to the first anniversary of the
Closing Date shall be made together with a prepayment premium in an amount
equal to 1.0% of the aggregate principal amount being prepaid.


 


(c)   Each notice of prepayment
shall specify the prepayment date and the principal amount of each Borrowing
(or portion thereof) to be prepaid, shall be irrevocable and shall commit the
Borrower to prepay such Borrowing by the amount stated therein on the date
stated therein; provided, that if a notice of
optional prepayment is given in connection with a conditional notice of
repayment as contemplated by Section 2.09, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.09. All prepayments under this Section 2.12 shall be
subject to Section 2.16 and any premium required by paragraph (b)
above but otherwise without premium or penalty. All prepayments under this
Section 2.12 shall be accompanied by accrued and unpaid interest on the
principal amount to be prepaid to but excluding the date of payment.


 


SECTION 2.13. Mandatory Prepayments.
(a)  Subject to paragraph (f) of
this Section 2.13, not later than the fifth Business Day following the receipt
by Holdings or 


 


35

















 


any of its Subsidiaries of Net Cash Proceeds
in respect of any Prepayment Asset Sale, the Borrower shall apply an amount
equal to 100% of the Net Cash Proceeds received by Holdings or any of its
Subsidiaries with respect thereto (subject to the restrictions set forth herein)
to prepay outstanding Loans in accordance with Section 2.13(d); provided, however,
that if (i) prior to the date any such prepayment is required to be made, the
Borrower notifies the Administrative Agent of its intent to reinvest such Net
Cash Proceeds in assets of a kind then used or usable in the business of the Borrower
and the Subsidiaries and (ii) no Event of Default shall have occurred and
shall be continuing at the time of such notice, then the Borrower shall not be
required to prepay Loans hereunder in respect of such Net Cash Proceeds to the
extent that such Net Cash Proceeds are so reinvested within one year after the
date of receipt of such Net Cash Proceeds (or, within such one-year period, the
Borrower or any of its Subsidiaries enters into a binding commitment to so
reinvest in such Net Cash Proceeds, and such Net Cash Proceeds are so
reinvested within 180 days after such binding commitment is so entered into).


 


(b)   Subject to
paragraph (f) of this Section 2.13, no later than the earlier of (i) 125
days after the end of each fiscal year of the Borrower, commencing with the
fiscal year ending on December 31, 2007, and (ii) the fifth Business
Day following the date on which the financial statements with respect to such fiscal
year are delivered pursuant to Section 5.04(a), the Borrower shall prepay
outstanding Loans in accordance with Section 2.13(d) in an aggregate
principal amount equal to the excess, if any, of (i) the applicable ECF
Percentage of Excess Cash Flow for the fiscal year then ended over (ii) the
aggregate principal amount of Loans prepaid pursuant to Section 2.12
during such fiscal year.


 


(c)   Subject to
paragraph (f) of this Section 2.13, in the event that Holdings or any of
its Subsidiaries shall receive Net Cash Proceeds from the issuance or incurrence
of Indebtedness (other than any cash proceeds from the issuance or incurrence of
Indebtedness permitted pursuant to Section 6.01), the Borrower shall,
substantially simultaneously with (and in any event not later than the fifth Business
Day next following) the receipt of such Net Cash Proceeds, apply an amount
equal to 100% of such Net Cash Proceeds to prepay outstanding Loans in
accordance with Section 2.13(d).


 


(d)   So long as any Loans are
outstanding, mandatory prepayments of outstanding Loans under this Agreement
shall be allocated ratably among the Lenders that accept the same. Any Lender
may elect, by notice to the Administrative Agent at or prior to the time and in
the manner specified by the Administrative Agent, prior to any prepayment of
Loans required to be made by the Borrower pursuant to this Section, to decline
all (but not a portion) of its pro rata share of such prepayment (such declined
amounts, the “Declined Proceeds”).
Any Declined Proceeds shall be offered to the Lenders not so declining such
prepayment (with such Lenders having the right to decline any prepayment with
Declined Proceeds at the time and in the manner specified by the Administrative
Agent). Any remaining Declined Proceeds may be retained by the Borrower.


 


(e)   The Borrower shall deliver
to the Administrative Agent, at or prior to the time of each prepayment
required under this Section 2.13, (i) a certificate signed by a 


 


36

















 


Financial Officer of the
Borrower setting forth in reasonable detail the calculation of the amount of
such prepayment and (ii) to the extent practicable, at least three
Business Days prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Type of each Loan being
prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid; provided, however,
that if at the time of any prepayment pursuant to this Section 2.13 there
shall be outstanding Borrowings of different Types or Eurodollar Borrowings
with different Interest Periods, and if some but not all Lenders shall have
accepted such mandatory prepayment, then the aggregate amount of such mandatory
prepayment shall be allocated ratably to each outstanding Borrowing of the
accepting Lenders. All prepayments of Borrowings under this Section 2.13
shall be subject to Section 2.16, but shall otherwise be without premium
or penalty.


 


(f)   Notwithstanding anything in
this Section 2.13 to the contrary, until the Discharge of First Lien
Obligations shall have occurred, (i) no mandatory prepayments of
outstanding Loans that would otherwise be required under this Section 2.13
shall be required to be made, except for any portion of any corresponding
mandatory prepayment as shall have been rejected by the term lenders under the
First Lien Credit Agreement (and that is not applied to reduce outstanding
Revolving Loans and Swingline Loans thereunder and as defined therein or to
fund a cash collateral account with the Collateral Agent (as defined in the
First Lien Credit Agreement) in an amount up to the aggregate L/C Exposure (as
defined in the First Lien Credit Agreement) at such time), in each case in
accordance with and as required by Section 2.13(f) of the First Lien
Credit Agreement, and (ii) the references to the fifth Business Day
following the event giving rise to such mandatory prepayment in paragraphs (a),
(b) and (c) above shall be deemed to be the fifth Business Day next following
the date of determination that proceeds of the event giving rise to such
mandatory prepayment shall be applied to prepayments of the Loans in accordance
with Section 2.13(f) of the First Lien Credit Agreement.


 


SECTION 2.14. Reserve Requirements; Change in
Circumstances. (a)  Notwithstanding
any other provision of this Agreement, if any Change in Law shall impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of or credit extended by
any Lender (except any such reserve requirement which is reflected in the
Adjusted LIBO Rate) or shall impose on such Lender or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans made by
such Lender, and the result of any of the foregoing shall be to increase the
cost to such Lender of making or maintaining any Eurodollar Loan or to reduce
the amount of any sum received or receivable by such Lender hereunder (whether
of principal, interest or otherwise) by an amount deemed by such Lender to be
material, then the Borrower will pay to such Lender upon demand such additional
amount or amounts as will compensate such Lender for such additional costs
incurred or reduction suffered.


 


(b)   If any Lender shall have
determined that any Change in Law regarding capital adequacy has or would have
the effect of reducing the rate of return on such Lender’s capital or on the
capital of such Lender’s holding company, if any, as a consequence of this
Agreement or the Loans made to a level below that which such 


 


37

















 


Lender or such Lender’s holding
company could have achieved but for such Change in Law (taking into
consideration such Lender’s policies and the policies of such Lender’s holding
company with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such Lender’s
holding company for any such reduction suffered.


 


(c)   A certificate of a Lender
setting forth the amount or amounts necessary to compensate such Lender or its
holding company, as applicable, as specified in paragraph (a) or (b) above
shall be delivered to the Borrower, shall describe the applicable Change in
Law, the resulting costs incurred or reduction suffered (including a
calculation thereof), certifying that such Lender is generally charging such
amounts to similarly situated borrowers and shall be conclusive absent manifest
error. The Borrower shall pay such Lender the amount shown as due on any such
certificate delivered by it within 30 days after its receipt of the same.


 


(d)   Failure or delay on the
part of any Lender to demand compensation for any increased costs or reduction
in amounts received or receivable or reduction in return on capital shall not
constitute a waiver of such Lender’s right to demand such compensation; provided, that the Borrower shall not be under any
obligation to compensate any Lender under paragraph (a) or (b) above with
respect to increased costs or reductions with respect to any period prior to
the date that is 120 days prior to such request; provided,
further, that the foregoing limitation
shall not apply to any increased costs or reductions arising out of the
retroactive application of any Change in Law within such 120-day period. The
protection of this Section shall be available to each Lender regardless of any
possible contention of the invalidity or inapplicability of the Change in Law
that shall have occurred or been imposed.


 


(e)   Notwithstanding anything in
this Section 2.14 to the contrary, this Section 2.14 shall not apply
to any Change in Law with respect to Excluded Taxes, which shall be governed
exclusively by Section 2.20.


 


SECTION 2.15. Change in Legality. (a)  Notwithstanding any other provision of this
Agreement, if any Change in Law shall make it unlawful for any Lender to
make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written
notice to the Borrower and to the Administrative Agent:


 


(i)  such Lender may declare that Eurodollar Loans
will not thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods) and ABR
Loans will not thereafter (for such duration) be converted into Eurodollar
Loans, whereupon any request for a Eurodollar Borrowing (or to convert an ABR
Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing for
an additional Interest Period) shall, as to such Lender only, be deemed a
request for an ABR Loan (or a request to continue an ABR Loan as such for an
additional Interest Period or to 


 


38

















 


convert a Eurodollar Loan into an ABR Loan,
as the case may be), unless such declaration shall be subsequently withdrawn;
and


 


(ii)  such Lender may require that all outstanding
Eurodollar Loans made by it be converted to ABR Loans, in which event all such
Eurodollar Loans shall be automatically converted to ABR Loans as of the
effective date of such notice as provided in paragraph (b) below.


 


In the event
any Lender shall exercise its rights under clause (i) or (ii) above,
all payments and prepayments of principal that would otherwise have been
applied to repay the Eurodollar Loans that would have been made by such Lender
or the converted Eurodollar Loans of such Lender shall instead be applied to
repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Loans.


 


(b)   For purposes of this
Section 2.15, a notice to the Borrower by any Lender shall be effective as
to each Eurodollar Loan made by such Lender, if lawful, on the last day of the
Interest Period then applicable to such Eurodollar Loan; in all other cases
such notice shall be effective on the date of receipt by the Borrower. Such
Lender shall withdraw such notice promptly following any date on which it
becomes lawful for such Lender to make and maintain Eurodollar Loans or give
effect to its obligations as contemplated hereby with respect to any Eurodollar
Loan.


 


SECTION 2.16. Indemnity. The
Borrower shall indemnify each Lender against any loss or expense that such
Lender may sustain or incur as a consequence of (a) any event, other than
a default by such Lender in the performance of its obligations hereunder, which
results in (i) such Lender receiving or being deemed to receive any amount
on account of the principal of any Eurodollar Loan prior to the end of the
Interest Period in effect therefor, (ii) the conversion of any Eurodollar
Loan to an ABR Loan, or the conversion of the Interest Period with respect to
any Eurodollar Loan, in each case other than on the last day of the Interest
Period in effect therefor, or (iii) any Eurodollar Loan to be made by such
Lender (including any Eurodollar Loan to be made pursuant to a conversion or
continuation under Section 2.10) not being made after notice of such Loan
shall have been given by the Borrower hereunder (any of the events referred to
in this clause (a) being called a “Breakage Event”) or (b) any default in
the making of any payment or prepayment required to be made hereunder; provided, that the Borrower shall not so
indemnify any Lender for losses or expenses incurred as a result of a mandatory
prepayment pursuant to Section 2.13 in which one or more Lenders has
elected to decline its pro rata share of such prepayment pursuant to Section 2.13(d).
In the case of any Breakage Event, such loss shall include an amount equal to
the excess, as reasonably determined by such Lender, of (i) its cost of
obtaining funds for the Eurodollar Loan that is the subject of such Breakage
Event for the period from the date of such Breakage Event to the last day of
the Interest Period in effect (or that would have been in effect) for such Loan
over (ii) the amount of interest likely to be realized by such Lender in
redeploying the funds released or not utilized by reason of such Breakage Event
for such period. A certificate of any Lender setting forth any amount or
amounts which such Lender is entitled to receive pursuant to this
Section 2.16 shall be delivered to the Borrower and shall be conclusive
absent manifest error.


 


39

















 


SECTION 2.17. Pro Rata Treatment. Except
as required under Section 2.13, 2.14, 2.15 or 2.21, each Borrowing, each
payment or prepayment of principal of any Borrowing, each payment of interest
on the Loans, and each conversion of any Borrowing to or continuation of any
Borrowing as a Borrowing of any Type shall be allocated pro rata among the
Lenders in accordance with their respective applicable Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Loans). Each Lender agrees
that in computing such Lender’s portion of any Borrowing to be made hereunder,
the Administrative Agent may, in its discretion, round each Lender’s percentage
of such Borrowing to the next higher or lower whole dollar amount.


 


SECTION 2.18. Sharing of Setoffs. Each
Lender agrees that if it shall, through the exercise of a right of banker’s
lien, setoff or counterclaim against the Borrower or any other Loan Party, or
pursuant to a secured claim under Section 506 of Title 11 of the
United States Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Lender under any applicable bankruptcy, insolvency
or other similar law or otherwise, or by any other means, obtain payment
(voluntary or involuntary) in respect of any Loan as a result of which the
unpaid principal portion of its Loans shall be proportionately less than the
unpaid principal portion of the Loans of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and
shall promptly pay to such other Lender the purchase price for, a participation
in the Loans of such other Lender, so that the aggregate unpaid principal
amount of the Loans held by each Lender shall be in the same proportion to the
aggregate unpaid principal amount of all Loans then outstanding as the
principal amount of its Loans prior to such exercise of banker’s lien, setoff
or counterclaim or other event was to the principal amount of all Loans
outstanding prior to such exercise of banker’s lien, setoff or counterclaim or
other event; provided, however, that (i) if any such
purchase or purchases or adjustments shall be made pursuant to this
Section 2.18 and the payment giving rise thereto shall thereafter be
recovered, such purchase or purchases or adjustments shall be rescinded to the
extent of such recovery and the purchase price or prices or adjustment restored
without interest and (ii) the provisions of this Section 2.18 shall not be
construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by
a Lender as consideration for the assignment of or sale of a participation in
any of its Loans to any assignee or participant. The Borrower expressly consents
to the foregoing arrangements and agrees that any Lender holding a
participation in a Loan deemed to have been so purchased may exercise any and
all rights of banker’s lien, setoff or counterclaim with respect to any and all
moneys owing by the Borrower and Holdings to such Lender by reason thereof as
fully as if such Lender had made a Loan directly to the Borrower in the amount
of such participation.


 


SECTION 2.19. Payments. (a)  The Borrower shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder and under any other Loan Document not later than
1:00 p.m., New York City time, on the date when due in immediately
available dollars, without setoff, defense or counterclaim. Each such payment
shall be made to the Administrative Agent at its offices at Eleven Madison
Avenue, New York, NY 10010. All payments hereunder and 


 


40

















 


under the other Loan Documents shall be made
in dollars. The Administrative Agent shall distribute any such payments
received by it for the account of any other person to the appropriate recipient
promptly following receipt thereof.


 


(b)   Except as otherwise
expressly provided herein, whenever any payment (including principal of or
interest on any Borrowing or any Fees or other amounts) hereunder or under any
other Loan Document shall become due, or otherwise would occur, on a day that
is not a Business Day, such payment may be made on the next succeeding Business
Day, and such extension of time shall in such case be included in the
computation of interest or Fees, if applicable.


 


SECTION 2.20. Taxes. (a)  Any and all payments by or on account of any
obligation of the Borrower or any other Loan Party hereunder or under any other
Loan Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided,
that if any Indemnified Taxes or Other Taxes are required to be
withheld or deducted from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions or
withholdings (including deductions or withholdings applicable to additional
sums payable under this Section) the Administrative Agent or Lender (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions or withholdings been made, (ii) the Borrower or such Loan
Party shall make such deductions or withholdings and (iii) the Borrower or
such Loan Party shall pay the full amount deducted or withheld to the relevant
Governmental Authority in accordance with applicable law.


 


(b)   In addition, the Borrower
shall pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.


 


(c)   The Borrower shall
indemnify the Administrative Agent and each Lender within 30 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent or such Lender, as the case may be, on
or with respect to any payment by or on account of any obligation of the
Borrower or any other Loan Party hereunder or under any other Loan Document
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender or by the
Administrative Agent on behalf of itself or a Lender, shall be conclusive
absent manifest error.


 


(d)   As soon as practicable
after any payment of Indemnified Taxes or Other Taxes by the Borrower or any
other Loan Party to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.


 


41

















 


(e)   Any Foreign Lender that is
entitled to an exemption from or reduction of withholding tax under the law of
the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Administrative Agent), on or prior
to the date a payment is to be made to such Lender under this Agreement or
promptly upon learning that any such documentation expired or became obsolete,
at the reasonable request of the Borrower, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a
reduced rate of withholding; provided, that
such Lender is legally entitled to complete, execute and deliver such
documentation. Such completion, execution or delivery will not be required if,
in such Lender’s judgment, it would materially prejudice the legal position of
such Lender. In addition, each Foreign Lender shall (a) furnish on or before
the date it becomes a party to the Agreement either (i) two accurate and
complete originally executed copies of U.S. Internal Revenue Service (“IRS”) Form W-8BEN (or
successor form) or (ii) two accurate and complete originally executed copies of
IRS Form W-8ECI (or successor form), certifying, in either case, to such
Foreign Lender’s legal entitlement to an exemption or reduction from U.S.
federal withholding tax with respect to all interest payments hereunder, and (b)
provide a new Form W-8BEN (or successor form) or Form W-8ECI (or successor
form) upon the expiration or obsolescence of any previously delivered form to
reconfirm any complete exemption from, or any entitlement to a reduction in,
U.S. federal withholding tax with respect to any interest payment hereunder; provided, that any Foreign Lender that is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Code and is relying on the
so-called “portfolio interest exemption” shall also furnish a “Non-Bank
Certificate” in the form of Exhibit G together with a Form W-8BEN. Notwithstanding
any other provision of this paragraph, a Foreign Lender shall not be required
to deliver any form pursuant to this paragraph that such Foreign Lender is not
legally able to deliver.


 


(f)   Any Lender that is a United
States person, as defined in Section 7701(a)(30) of the Code, and is not an
exempt recipient within the meaning of Treasury Regulations Section 1.6049-4(c)
shall deliver to the Borrower (with a copy to the Administrative Agent) two
accurate and complete original signed copies of IRS Form W-9, or any successor
form that such person is entitled to provide at such time in order to comply
with United States back-up withholding requirements.


 


(g)   If the Administrative Agent
or a Lender determines, in its sole discretion, that it has received a refund
of any Indemnified Taxes or Other Taxes as to which it has been indemnified by
the Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section with respect to the
Indemnified Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender, as the case
may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided, that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest or other charges 


 


42

















 


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 the
Borrower or any other person.


 


(h)   Failure or delay on the
part of any Lender to demand compensation for any Indemnified Taxes or Other
Taxes shall not constitute a waiver of such Lender’s right to demand such
compensation; provided, that the Borrower shall
not be under any obligation to compensate any Lender under paragraph (a),
(b) or (c) above with respect to Indemnified Taxes or Other Taxes with respect
to any period prior to the date that is 120 days prior to such request; provided, further, that
the foregoing limitation shall not apply to any increased costs or reductions
arising out of the retroactive application of any Indemnified Taxes or Other
Taxes within such 120-day period. The protection of this Section shall be
available to each Lender regardless of any possible contention of the
invalidity or inapplicability of the Indemnified Taxes or Other Taxes that
shall have occurred or been imposed.


 


SECTION 2.21. Assignment of Commitments Under
Certain Circumstances; Duty to Mitigate. (a)  In the event (i) any Lender delivers a
certificate requesting compensation pursuant to Section 2.14,
(ii) any Lender delivers a notice described in Section 2.15,
(iii) the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority on account of any Lender pursuant to
Section 2.20 or (iv) any Lender shall become a Defaulting Lender or
(v) any Lender refuses to consent to any amendment, waiver or other
modification of any Loan Document requested by the Borrower that requires the
consent of a greater percentage of the Lenders than the Required Lenders and
such amendment, waiver or other modification is consented to by the Required
Lenders, the Borrower may, upon notice to such Lender and the Administrative
Agent, require such Lender to transfer and assign (in accordance with and
subject to the restrictions contained in Section 9.04, other than 9.04(b)(iii)(B)),
all of its interests, rights and obligations under this Agreement to an
assignee that shall assume such assigned obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided, that (x) the Borrower shall
have received the prior written consent of the Administrative Agent with regard
to the identity of the assignee, which consent shall not unreasonably be
withheld or delayed, and (y) such assignee (or the Borrower, in the case
of amounts then due and payable by it) shall have paid to the affected Lender
in immediately available funds an amount equal to the sum of the principal of
and interest accrued to the date of such payment on the outstanding Loans of
such Lender plus all Fees and other amounts accrued for the account of such
Lender hereunder with respect thereto (including any amounts under
Sections 2.14 and 2.16) and if such assignment occurs prior to the first
anniversary of the Closing Date, the prepayment fee that would have been
payable pursuant to Section 2.12(b) if the Loans of such Lenders subject
to such assignment had been prepaid pursuant to Section 2.12; provided, further,
that if prior to receipt of notice of any such transfer and assignment the
circumstances or event that resulted in such Lender’s claim for compensation
under Section 2.14, notice under Section 2.15 or the amounts paid
pursuant to Section 2.20, as 


 


43

















 


the case may be, cease to cause such Lender
to suffer increased costs or reductions in amounts received or receivable or
reduction in return on capital, or cease to have the consequences specified in
Section 2.15, or cease to result in amounts being payable under
Section 2.20, as the case may be (including as a result of any action taken
by such Lender pursuant to paragraph (b) below), or if such Lender shall
waive its right to claim further compensation under Section 2.14 in
respect of such circumstances or event or shall withdraw its notice under
Section 2.15 or shall waive its right to further payments under
Section 2.20 in respect of such circumstances or event or shall consent to
the proposed amendment, waiver, consent or other modification, as the case may
be, then such Lender shall not thereafter be required to make any such transfer
and assignment hereunder. Each Lender hereby grants to the Administrative Agent
an irrevocable power of attorney (which power is coupled with an interest) to
execute and deliver, on behalf of such Lender as assignor, any Assignment and
Acceptance necessary to effectuate any assignment of such Lender’s interests
hereunder in respect of the circumstances contemplated by this
Section 2.21(a).


 


(b)   If (i) any Lender
shall request compensation under Section 2.14, (ii) any Lender
delivers a notice described in Section 2.15 or (iii) the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority on account of any Lender, pursuant to Section 2.20, then such
Lender shall use reasonable efforts (which shall not require such Lender to
incur an unreimbursed loss or unreimbursed cost or expense or otherwise take
any action inconsistent with its internal policies or legal or regulatory
restrictions or suffer any disadvantage or burden deemed by it to be
significant) (x) to file any certificate or document reasonably requested
by the Borrower or (y) to assign its rights and delegate and transfer its
obligations hereunder to another of its offices, branches or affiliates, if
such filing or assignment would reduce its claims for compensation under
Section 2.14 or enable it to withdraw its notice pursuant to
Section 2.15 or would reduce amounts payable pursuant to
Section 2.20, as the case may be, in the future. The Borrower hereby
agrees to pay all reasonable out-of-pocket costs and expenses incurred by any
Lender in connection with any such filing or assignment, delegation and
transfer.


 


ARTICLE III



Representations and Warranties


 


Each of Holdings and the Borrower represents and warrants (it being
understood that for purposes of the representations and warranties made in the
Loan Documents on the Closing Date, such representations and warranties shall
be construed as though the Transactions have been consummated) to the
Administrative Agent, the Collateral Agent and each of the Lenders that:


 


SECTION 3.01. Organization; Powers.
Holdings, the Borrower and each of the Subsidiaries (a) is duly organized
or formed, validly existing and in good standing under the laws of the
jurisdiction of its organization, except where the failure to be in good
standing could not reasonably be expected to have a Material Adverse Effect,
(b) has all requisite power and authority to own its property and assets
and to carry on its business 


 


44

















 


as now conducted and as proposed to be
conducted, except where the failure to have such power and authority could not
reasonably be expected to result in a Material Adverse Effect, (c) is
qualified to do business in, and is in good standing in, every jurisdiction
where its ownership, lease or operation of properties or the conduct of its
business requires such qualification, except where the failure to so qualify
could not reasonably be expected to result in a Material Adverse Effect, and
(d) has the requisite power and authority to execute, deliver and perform
its obligations under each of the Loan Documents and each other agreement or
instrument contemplated thereby to which it is a party.


 


SECTION 3.02. Authorization. The
execution, delivery and performance of the Loan Documents, including the
granting of Liens, borrowing of Loans and the use of the proceeds therefrom, (a) have
been duly authorized by all requisite corporate or limited liability company
and, if required, stockholder or member action and (b) will not
(i) violate (A) any provision of any applicable law, statute, rule or
regulation, or of the certificate or articles of incorporation or other
constitutive documents or by-laws or operating agreement of any Loan Party,
(B) any applicable order of any Governmental Authority or (C) any
provision of any indenture, agreement or other instrument to which Holdings or
any of its Subsidiaries is a party or by which any of them or any of their
property is bound (other than the Existing Debt), (ii) be in conflict with,
result in a breach of or constitute (alone or with notice or lapse of time or
both) a default under, or give rise to any right to accelerate or to require
the prepayment, repurchase or redemption of any obligation under any such
indenture, agreement or other instrument (other than the Existing Debt) or
(iii) result in the creation or imposition of any Lien upon or with
respect to any property or assets now owned or hereafter acquired by Holdings,
the Borrower or any Subsidiary (other than Liens created or permitted hereunder
or under the Security Documents and the First Priority Lien); except with
respect to any violation, conflict, breach, default, acceleration, prepayment,
repurchase, redemption or creation or imposition of any Lien referred to in
clauses (i) through (iii), to the extent that such violation, conflict,
breach, default, acceleration, prepayment, repurchase, redemption or creation
or imposition of Lien could not reasonably be expected to result in a Material
Adverse Effect.


 


SECTION 3.03. Enforceability. This
Agreement has been duly executed and delivered by Holdings and the Borrower and
constitutes, and each other Loan Document when executed and delivered by each
Loan Party thereto will constitute, a legal, valid and binding obligation of
such Loan Party enforceable against such Loan Party in accordance with its
terms, except as may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, receivership, moratorium or similar laws of general
applicability relating to or limiting creditors’ rights generally or by general
equity principles.


 


SECTION 3.04. Governmental Approvals.
Except to the extent the failure to obtain or make could not reasonably be
expected to result in a Material Adverse Effect, no action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is necessary or will be required in connection with the Loan
Documents, except for (a) the filing of Uniform Commercial Code financing
statements and filings with the United States Patent and Trademark Office and
the United States 


 


45

















 


Copyright Office, (b) recordation of the
Mortgages and (c) such as have been made or obtained and are in full force and
effect.


 


SECTION 3.05. Financial Statements.
(a)  The Borrower has heretofore
furnished to the Administrative Agent the Company’s consolidated balance sheets
and related statements of income, stockholder’s equity and cash flows
(i) as of and for the fiscal year ended December 31, 2005, audited by
and accompanied by the report of KPMG LLP, independent public accountants, and
(ii) as of and for the fiscal quarter ended March 31, 2006, and each
fiscal quarter ended after March 31, 2006 and at least 45 days before
the Closing Date, certified by its chief financial officer (or officer with
reasonably equivalent responsibilities). Such financial statements present
fairly in all material respects the financial condition and results of
operations and cash flows of the Company and its consolidated subsidiaries as
of such dates and for such periods. Such balance sheets and the notes thereto
disclose all material liabilities, direct or contingent, of the Company and its
consolidated subsidiaries as of the dates thereof. Such financial statements
were prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise noted therein and, subject, in the
case of unaudited financial statements, to year-end audit adjustments and the
absence of footnotes.


 


(b)   The Borrower has heretofore
delivered to the Administrative Agent its unaudited pro forma consolidated
balance sheet and related pro forma statements of income and cash flows as of
the fiscal quarter ended March 31, 2006, prepared giving effect to the
Transactions as if they had occurred, with respect to such balance sheet, on
such date and, with respect to such other financial statements, on the first
day of the four-fiscal quarter period ending on such date. Such pro forma
financial statements have been prepared in good faith by the Borrower, based on
the assumptions believed by the Borrower on the Closing Date to be reasonable,
are based in all material respects on the information reasonably available to
the Borrower as of the date of delivery thereof, reflect in all material
respects the adjustments required to be made to give effect to the Transactions
it being understood that actual results may vary from such projected results
and such variations may be material.


 


SECTION 3.06. No Material Adverse Change.
Since the Closing Date, no event, change or condition has occurred that
(individually or in the aggregate) has had, or could reasonably be expected to
have, a Material Adverse Effect.


 


SECTION 3.07. Title to Properties; Possession
Under Leases. (a)  Each of
Holdings, the Borrower and the Subsidiaries has good and indefeasible title in
fee simple to, or valid leasehold interests in, all its material properties and
assets (including all Mortgaged Property). Other than (i) minor defects in
title that do not materially interfere with its ability to conduct its business
or to utilize such assets for their intended purposes and (ii) except where
the failure to have such title or other property interests described above
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, all such material properties and assets are free and
clear of Liens, other than Liens expressly permitted by Section 6.02.


 


46

















 


(b)   None of Holdings, the
Borrower or the Subsidiaries has knowledge of the continuance of any default
under any lease to which it is a party and, to each of their knowledge, all
such leases are in full force and effect, except to the extent any such default
or lack of enforceability could not reasonably be expected to have a Material
Adverse Effect.


 


(c)   As of the Closing Date,
neither Holdings nor the Borrower has received any notice of, nor has any
knowledge of, any pending or contemplated condemnation proceeding affecting the
Mortgaged Properties or any sale or disposition thereof in lieu of
condemnation.


 


(d)   As of the Closing Date,
immediately following the consummation of the Transactions, none of Holdings,
the Borrower or any of the Subsidiaries is obligated under any right of first
refusal, option or other contractual right to sell, assign or otherwise dispose
of any material Mortgaged Property or any interest therein.


 


SECTION 3.08. Subsidiaries. As of
the Closing Date, Holdings does not have any Subsidiaries other than the
Borrower and Subsidiaries of the Borrower. Schedule 3.08 sets forth as of
the Closing Date a list of all Subsidiaries of Holdings and the percentage
ownership interest of Holdings therein. The shares of capital stock or other
ownership interests so indicated on Schedule 3.08 are fully paid and
non-assessable and are owned by Holdings, directly or indirectly, free and
clear of all Liens (other than Liens created under the Security Documents, any First
Priority Lien and any Liens permitted hereby).


 


SECTION 3.09. Litigation; Compliance with Laws.
(a)  There are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority now
pending or, to the knowledge of Holdings or the Borrower, threatened in writing
against Holdings or the Borrower or any Subsidiary or any business, property or
rights of any such person (i) that purport to affect or pertain to any
Loan Document or (ii) could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.


 


(b)   Other than as could not
reasonably be expected to result in a Material Adverse Effect, none of
Holdings, the Borrower or any of the Subsidiaries or any of their respective
material properties is in violation of, nor will the continued operation of
their material properties as currently operated violate, any applicable law,
rule or regulation (including any zoning, building, ordinance, code or approval
or any building permits) or any restrictions of record or agreements affecting
the Mortgaged Property, or is in default with respect to any judgment, writ,
injunction, decree or order of any Governmental Authority, where any such
violation or default could reasonably be expected to result in a Material
Adverse Effect.


 


SECTION 3.10. Agreements. Other
than as could not reasonably be expected to result in a Material Adverse
Effect, none of Holdings, the Borrower or any of the Subsidiaries is in default
under any indenture or other agreement or instrument 


 


47

















 


evidencing Indebtedness, or any other
material agreement or instrument to which it is a party or by which it or any
of its properties or assets are bound.


 


SECTION 3.11. Federal Reserve Regulations.
(a)  None of Holdings, the Borrower or
any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.


 


(b)   No part of the proceeds of
any Loan will be used to purchase or carry any margin stock or to extend credit
to others for the purpose of purchasing or carrying any margin stock in
violation of Regulation U or X issued by the Board.


 


SECTION 3.12. Investment Company Act.
None of Holdings, the Borrower or any Subsidiary is an “investment company” as
defined in, or subject to regulation under, the Investment Company Act of 1940.


 


SECTION 3.13. Tax Returns. Each of
Holdings, the Borrower and the Subsidiaries has, except where the failure to so
file or pay could not be reasonably expected to have a Material Adverse Effect,
filed or caused to be filed all Federal, state and other tax returns required
to have been filed by it and has paid, caused to be paid, or made provisions
for the payment of all taxes due and payable by it and all material assessments
received by it, except such taxes and assessments that are not overdue by more
than 30 days or the amount or validity of which are being contested in
good faith by appropriate proceedings and for which Holdings, the Borrower or
such Subsidiary, as applicable, shall have set aside on its books adequate
reserves.


 


SECTION 3.14. No Material Misstatements.
As of the Closing Date, to the knowledge of Holdings and the Borrower, the
Confidential Information Memorandum and other written information, reports,
financial statements, exhibits and schedules furnished by or on behalf of
Holdings or the Borrower to the Administrative Agent or the Lenders (other than
projections and other forward looking information and information of a general
economic or industry specific nature) on or prior to the Closing Date in
connection with the transactions contemplated hereby or the negotiation of any
Loan Document or included therein or delivered pursuant thereto (taken as a
whole) did not and, as of the Closing Date, does not contain any material
misstatement of fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not materially misleading. The projections were prepared in good faith on
the basis of reasonable assumptions in light of the conditions existing at the
time of delivery of such projections, and represented, at the time of delivery
thereof, a reasonable good faith estimate of future financial performance by
Holdings and the Borrower (it being understood that such forecasts or
projections are subject to significant uncertainties and contingencies, many of
which are beyond the control of Holdings and the Borrower, and that Holdings
and the Borrower make no representation as to the attainability of such
forecasts or projections or as to whether such forecasts or projections will be
achieved or will materialize and that actual results may vary from projected
results and such variances may be material).


 


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SECTION 3.15. Employee Benefit Plans.
Each of the Borrower and its ERISA Affiliates is in compliance, with respect to
each benefit plan or arrangement, with the applicable provisions of ERISA and
the Code and the regulations and published interpretations thereunder, except
for such non-compliance that could not reasonably be expected to have a
Material Adverse Effect. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events, could
reasonably be expected to result in a Material Adverse Effect. The present
value of all benefit liabilities under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the last annual valuation date applicable thereto, exceed by more
than $25,000,000 the fair market value of the assets of such Plan, and the
present value of all benefit liabilities of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the last annual valuation dates applicable thereto,
exceed by more than $25,000,000 the fair market value of the assets of all such
underfunded Plans.


 


SECTION 3.16. Environmental Matters.
Except with respect to any matters that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, none
of Holdings, the Borrower or any of the Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental Liability or (iv)
knows of any condition, event or circumstance that could reasonably be expected
to result in any Environmental Liability.


 


SECTION 3.17. Security Documents. All
filings and other actions necessary to perfect and protect the Liens on the
Collateral created under, and in the manner contemplated by, the Security
Documents have been duly made or taken or otherwise provided for in a manner
reasonably acceptable to Collateral Agent and are in full force and effect and
the Security Documents create in favor of the Collateral Agent for the benefit
of the Secured Parties a valid and, together with such filings and other
actions, perfected second priority Lien in the Collateral, securing the payment
of the Obligations, subject to Liens permitted by Section 6.02. The
Loan Parties are the legal and beneficial owners of the Collateral free and
clear of any Lien, except for the Liens created or permitted under the Loan
Documents.


 


SECTION 3.18. Location of Real Property and Leased
Premises. (a)  Schedule
3.18(a) lists completely and correctly (in all material respects) as of the
Closing Date all real property owned by the Borrower and the Subsidiaries and
the addresses thereof. Except as otherwise provided in Schedule 3.18(a), the
Borrower and the Subsidiaries own in fee all the real property set forth on
such schedule, except to the extent the failure to have such title could not
reasonably be expected to have a Material Adverse Effect.


 


(b)   Schedule 3.18(b) lists
completely and correctly (in all material respects) as of the Closing Date all
real property leased by the Borrower and the Subsidiaries and the 


 


49

















 


addresses thereof. Except as
otherwise provided on Schedule 3.18(b), the Borrower and the Subsidiaries have
valid leasehold interests in all the real property set forth on such schedule,
except to the extent the failure to have such title could not reasonably be
expected to have a Material Adverse Effect.


 


SECTION 3.19. Labor Matters. Except
as in the aggregate has not had and could not be reasonably expected to have a
Material Adverse Effect, as of the Closing Date, (a) there are no strikes,
lockouts or slowdowns against Holdings, the Borrower or any Subsidiary pending
or, to the knowledge of Holdings or the Borrower, threatened in writing,
(b) the hours worked by and payments made to employees of Holdings, the
Borrower and the Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters, (c) all payments due from Holdings, the
Borrower or any Subsidiary, or for which any claim may be made against
Holdings, the Borrower or any Subsidiary, on account of wages and employee
health and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of Holdings, the Borrower or such Subsidiary and
(d) the consummation of the Transactions will not give rise to any right
of termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which Holdings, the Borrower or any
Subsidiary is bound.


 


SECTION 3.20. Solvency. On the
Closing Date after giving effect to the Transactions, the Loan Parties, taken
as a whole, are Solvent.


 


ARTICLE IV



Conditions of Lending


 


The obligations of the Lenders to make Loans hereunder are subject to
the satisfaction of the following conditions on the Closing Date:


 


(a)   The Administrative Agent
shall have received a notice of such Loan as required by Section 2.03.


 


(b)   The representations and
warranties set forth in Article III and in each other Loan Document shall
be true and correct in all material respects on and as of the Closing Date with
the same effect as though made on and as of such date, except to the extent
such representations and warranties expressly relate to an earlier date, in
which case they shall be true and correct in all material respects as of such
earlier date; provided, however,
that solely for purposes of representations and warranties made on the Closing Date
with respect to the Company and its subsidiaries, such representations and
warranties shall be limited in all respects to the Specified Representations
(as defined below). “Specified
Representations” shall mean the representations and warranties
in Sections 3.01, 3.02, 3.03, 3.11, 3.12, 3.17 and 3.20.


 


(c)   At the time of and
immediately after the making of such Loans, no Default or Event of Default
shall have occurred and be continuing.


 


50

















 


(d)   The Administrative Agent
shall have received, on behalf of itself and the Lenders, an opinion of
(i) Weil, Gotshal & Manges LLP, counsel for the Loan Parties, and (ii)
each local counsel listed on Schedule 4(d), in each case (A) dated the
Closing Date and (B) addressed to the Administrative Agent and the Lenders, and
(C) in form and substance reasonably satisfactory to the Administrative
Agent.


 


(e)   The Administrative Agent
shall have received (i) a copy of the certificate or articles of
incorporation or organization, including all amendments thereto, of each Loan
Party, certified as of a recent date by the Secretary of State of the state of
its organization, and a certificate as to the good standing of each Loan Party
as of a recent date, from such Secretary of State; (ii) a certificate of the
Secretary or Assistant Secretary of each Loan Party dated the Closing Date and
certifying (A) that attached thereto is a true and complete copy of the
by-laws or operating (or limited liability company) agreement of such Loan
Party as in effect on the Closing Date and at all times since a date prior to
the date of the resolutions described in clause (B) below, (B) that
attached thereto is a true and complete copy of resolutions duly adopted by the
Board of Directors (or equivalent body) of such Loan Party authorizing the
execution, delivery and performance of the Loan Documents to which such person
is a party and, in the case of the Borrower, the borrowings hereunder, and that
such resolutions have not been modified, rescinded or amended and are in full
force and effect, (C) that the certificate or articles of incorporation or
organization of such Loan Party have not been amended since the date of the
last amendment thereto shown on the certificate of good standing furnished
pursuant to clause (i) above, and (D) as to the incumbency and
specimen signature of each officer executing any Loan Document or any other
document delivered in connection herewith on behalf of such Loan Party; and (iii) a
certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to
clause (ii) above.


 


(f)   The Administrative Agent
shall have received a certificate, dated the Closing Date and signed by a
Financial Officer of the Borrower, confirming compliance with the conditions
precedent set forth in paragraphs (b) and (c) of this Article IV.


 


(g)   The Administrative Agent
shall have received all Fees and other amounts due and payable on or prior to
the Closing Date, including, to the extent invoiced at least one Business Day
prior to the Closing Date, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by the Borrower hereunder or under
any other Loan Document.


 


(h)   The Security Documents
shall have been duly executed by each Loan Party that is to be a party thereto
and shall be in full force and effect and each document, except as otherwise
provided or agreed to by the Administrative Agent and the Borrower (including
each Uniform Commercial Code financing statement) required by law or reasonably
requested by the Administrative Agent or the Collateral Agent to be filed,
registered or recorded in order to create in favor of the Collateral Agent for
the benefit of the Secured Parties a valid, legal and perfected second priority
(except to the extent otherwise provided therein) security interest in and Lien
on the Collateral (subject to any Lien expressly permitted by Section 6.02)
described in the Security Documents shall 


 


51

















 


have been prepared and
delivered to the Collateral Agent on the Closing Date. The Pledged Collateral
shall have been duly and validly pledged under the Guarantee and Collateral
Agreement to the Collateral Agent, for the ratable benefit of the Secured
Parties, and all certificates or instruments (if any), except as otherwise
provided or agreed to by the Administrative Agent and the Borrower,
representing Pledged Collateral consisting of certificated equity securities
issued by the Borrower or any Subsidiary or instruments issued by Holdings, the
Borrower or any Subsidiary, accompanied by instruments of transfer and stock
powers endorsed in blank, shall be in the actual possession of the Collateral
Agent.


 


(i)   The Collateral Agent shall,
except as otherwise provided or agreed to by the Administrative Agent and the
Borrower, have received the results of searches of the Uniform Commercial Code
filings (or equivalent filings) made with respect to the Loan Parties in the
states (or other jurisdictions) of formation of such persons together with
copies of the financing statements (or similar documents) disclosed by such
search, and accompanied by evidence reasonably satisfactory to the Collateral
Agent that the Liens indicated in any such financing statement (or similar
document) would be permitted under Section 6.02 or have been or will be
contemporaneously released or terminated.


 


(j)   (i)  Each of the
Security Documents, in form and substance reasonably satisfactory to the
Administrative Agent, relating to each of the Mortgaged Properties shall,
except as otherwise provided or agreed to by the Administrative Agent and the
Borrower, have been duly executed by the parties thereto and delivered to the
Collateral Agent and shall be in full force and effect, (ii) each of such
Mortgaged Properties shall not be subject to any Lien other than those
permitted under Section 6.02, (iii) each of such Security Documents
shall, except as otherwise provided or agreed to by the Administrative Agent
and the Borrower, have been filed and recorded in the recording office as
specified on Schedule 3.17(c) (or a lender’s title insurance policy, in form
and substance reasonably acceptable to the Collateral Agent, insuring such
Security Document as a second lien on such Mortgaged Property (subject to any
Lien permitted by Section 6.02) shall have been received by the Collateral
Agent) and, in connection therewith, the Collateral Agent shall have received
evidence reasonably satisfactory to it of each such filing and recordation and
(iv) the Collateral Agent shall have received such other documents,
including a policy or policies (or binding commitments therefor) of title
insurance issued by a nationally recognized title insurance company, together
with such endorsements, coinsurance and reinsurance as may be reasonably
requested by the Collateral Agent and the Lenders, insuring the Mortgages as
valid second liens on the Mortgaged Properties, free of Liens other than those
permitted under Section 6.02, together with such surveys, as reasonably
requested by the Collateral Agent.


 


(k)   The Administrative Agent
shall have received a certificate as to coverage under the insurance policies
required by Section 5.02.


 


(l)   The Acquisition shall be
consummated substantially simultaneously with the initial funding of Loans on
the Closing Date and the Administrative Agent shall be satisfied that the
Merger will be consummated on the Closing Date immediately after the initial
funding of the Loans, in each case in accordance with and on the terms
described 


 


52

















 


in the Purchase Agreement, and
no material provision or condition of the Purchase Agreement shall have been
waived, amended, supplemented or otherwise modified in a manner that is adverse
in any material respect to the interests of the Lenders without the prior
written consent of the Administrative Agent. The Company, as the survivor of
the Merger, shall execute this Agreement in order to acknowledge its obligations
as the Borrower. The Administrative Agent shall have received copies of the
Purchase Agreement and all certificates, opinions and other documents delivered
thereunder, certified by a Financial Officer as being complete and correct.


 


(m)   The Investors shall have
made the Equity Contribution in an aggregate amount not less than $250,000,000.
The First Lien Credit Agreement shall have been executed and delivered by the
parties thereto, the conditions thereunder shall be satisfied and the Borrower
shall have received gross cash proceeds of not less than $500,000,000 from the
borrowing of term loans under the First Lien Credit Agreement.


 


(n)   All amounts due or
outstanding in respect of the Existing Debt shall have been (or substantially
simultaneously with the initial funding of the Loans on the Closing Date shall
be) paid in full, all commitments (if any) in respect thereof terminated and
all guarantees (if any) thereof and security (if any) therefor discharged and
released. After giving effect to the Transactions, Holdings and its
Subsidiaries shall have outstanding no indebtedness or Disqualified Stock other
than (i) Indebtedness under the Loan Documents and under the First Lien
Credit Agreement, (ii) Capital Lease Obligations permitted under the
Purchase Agreement and (iii) Indebtedness permitted by Section 6.01.


 


(o)   The Administrative Agent
shall have received a certificate from the chief financial officer (or officer
with reasonably equivalent responsibilities) of Holdings certifying that Holdings
and its subsidiaries, on a consolidated basis after giving effect to the
Transactions, are Solvent as of the Closing Date.


 


(p)   The Lenders shall have
received from the Loan Parties, to the extent requested, all documentation and
other information required by regulatory authorities under applicable “know
your customer” and anti-money laundering rules and regulations, including the
USA PATRIOT Act.


 


(q)   The Administrative Agent
shall have received unaudited consolidated balance sheets and related
statements of income, stockholders’ equity and cash flows of the Company for
each fiscal quarter ended after March 31, 2006, and at least 45 days prior
to the Closing Date, all certified by one of its Financial Officers as fairly
presenting in all material respects the financial condition and results of
operations of the Company and its consolidated subsidiaries on a consolidated
basis in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes.


 


(r)   The Administrative Agent
shall have received a pro forma consolidated balance sheet and related pro
forma consolidated statement of income and cash flows of the Borrower as of and
for the twelve-month period ending on the last day of the most 


 


53

















 


recently completed four-fiscal
quarter period ended at least 45 days prior to the Closing Date, prepared after
giving effect to the Transactions as if the Transactions had occurred as of
such date (in the case of such balance sheet) or at the beginning of such
period (in the case of such other financial statements).


 


ARTICLE V



Affirmative Covenants


 


Each of Holdings and the Borrower covenants and agrees with each Lender
that until the Commitments have been terminated and the principal of and
interest on each Loan, all Fees and all other expenses or amounts payable under
any Loan Document shall have been paid in full, each of Holdings and the
Borrower will, and will cause each of their Subsidiaries to:


 


SECTION 5.01. Existence; Compliance with Laws;
Businesses and Properties. (a) 
Do or cause to be done all things reasonably necessary to preserve,
renew and keep in full force and effect its legal existence under the laws of
its jurisdiction of organization, except as otherwise expressly permitted under
Section 6.05.


 


(b)   Other than as could not
reasonably be expected to have a Material Adverse Effect, (i) do or cause
to be done all things reasonably necessary to obtain, preserve, renew, extend
and keep in full force and effect the material rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
necessary or desirable to the conduct of its business, (ii) maintain and
operate such business in substantially the manner in which it is presently
conducted and operated, (iii) comply in all material respects with
applicable laws, rules, regulations and decrees and orders of any Governmental
Authority (including Environmental Laws and ERISA), whether now in effect or hereafter
enacted and (iv)  maintain and preserve all property necessary or
desirable to the conduct of such business and keep such property in good
repair, working order and condition and from time to time make, or cause to be
made, all needed repairs, renewals, additions, improvements and replacements
thereto necessary or desirable to the conduct of its business.


 


SECTION 5.02. Insurance. (a)  Except if the failure to do so could not
reasonably be expected to cause a Material Adverse Effect, keep its insurable
properties adequately insured at all times by financially sound and reputable
insurers to such extent and against such risks, including fire and other risks
insured against by extended coverage, as is customary with companies in the
same or similar businesses operating in the same or similar locations.


 


(b)   Cause all such policies
covering any Collateral to be endorsed or otherwise amended to include a
customary lender’s loss payable endorsement, in form and substance reasonably
satisfactory to the Administrative Agent and the Collateral Agent, to the
extent available on commercially reasonable terms, cause each such policy to
provide that it shall not be canceled, modified or not renewed (i) by
reason of nonpayment of premium unless not less than 10 days’ prior
written notice thereof is given 


 


54

















 


by the insurer to the
Administrative Agent and the Collateral Agent (giving the Administrative Agent
and the Collateral Agent the right to cure defaults in the payment of premiums)
or (ii) for any other reason unless not less than 30 days’ prior
written notice thereof is given by the insurer to the Administrative Agent and
the Collateral Agent. Upon the reasonable request of the Administrative Agent or
the Collateral Agent, deliver to the Administrative Agent and the Collateral
Agent, prior to the cancellation, modification or nonrenewal of any such policy
of insurance, a copy of a renewal or replacement policy (or other evidence of
renewal of a policy previously delivered to the Administrative Agent and the
Collateral Agent) together with evidence reasonably satisfactory to the
Administrative Agent and the Collateral Agent of payment of the premium
therefor.


 


(c)   Purchase Federal Emergency Management
Agency Standard Flood Hazard Determination Forms for each property on which
improvements are located, provide such forms to the Collateral Agent, and if at
any time the area in which any Mortgaged Property is located is designated a “flood
hazard area” in any Flood Insurance Rate Map published by the Federal Emergency
Management Agency (or any successor agency), obtain (to the extent available on
commercially reasonable terms) flood insurance in such total amount as the
Administrative Agent may from time to time reasonably require, and otherwise
comply with the National Flood Insurance Program as set forth in the Flood
Disaster Protection Act of 1973, as it may be amended from time to time.


 


SECTION 5.03. Taxes. Pay and
discharge when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become overdue by more than 30 days; provided, however,
that such payment and discharge shall not be required with respect to any such tax,
assessment, charge or levy (i) so long as the validity or amount thereof
is (A) being contested in good faith, (B) by appropriate proceedings
diligently conducted and (C) with respect to which adequate reserves in
accordance with GAAP have been established or (ii) with respect to which
the failure to make payment could not reasonably be expected to have a Material
Adverse Effect;


 


SECTION 5.04. Financial Statements, Reports, etc.
In the case of Holdings, furnish to the Administrative Agent (who will distribute
to each Lender):


 


(a)   within 120 days after
the end of each fiscal year, its consolidated balance sheet and related
statements of income, stockholders’ equity and cash flows showing the financial
condition of Holdings and its consolidated Subsidiaries as of the close of such
fiscal year and the results of its operations and the operations of such persons
during such year, together with comparative figures for the immediately
preceding fiscal year, all in reasonable detail and prepared in accordance with
GAAP, all audited by KPMG LLP or other independent public accountants of
recognized national standing and accompanied by an opinion of such accountants
(which opinion shall be without a “going concern” or like qualification or
exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements fairly present
the financial condition and results of operations of Holdings and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP;


 


55

















 


(b)   within 60 days after
the end of each of the first three fiscal quarters of each fiscal year, its
consolidated balance sheet and related statements of income, stockholders’ equity
and cash flows showing the financial condition of Holdings and its consolidated
Subsidiaries as of the close of such fiscal quarter and the results of its
operations and the operations of such persons during such fiscal quarter and
the then elapsed portion of the fiscal year, and comparative figures for the
same periods in the immediately preceding fiscal year, all certified by one of
its Financial Officers as fairly presenting in all material respects the
financial condition and results of operations of Holdings and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal
year-end audit adjustments and the absence of footnotes;


 


(c)   concurrently with any
delivery of financial statements under paragraph (a) or (b) above, a
certificate of a Financial Officer of Holdings (i) certifying that to such
Financial Officer’s knowledge no Event of Default or Default has occurred or,
if such an Event of Default or Default has occurred, reasonably specifying the
nature thereof and (ii) setting forth computations in reasonable detail
reasonably satisfactory to the Administrative Agent demonstrating compliance
with the covenant contained in Section 6.10 and, in the case of a certificate
delivered with the financial statements required by paragraph (a) above
(commencing with the fiscal year ended December 31, 2007), setting forth
Holdings’ calculation of Excess Cash Flow; and concurrently with any delivery
of financial statements under paragraph (a) above, a certificate of the accounting
firm certifying that such accounting firm did not become aware of any Event of
Default under Section 6.10 or, if such accounting firm shall have become
aware of such an Event of Default, specifying the nature thereof (which
certificate, is limited to such accounting matters and may disclaim
responsibility for legal interpretations);


 


(d)   within 60 days after
the commencement of each fiscal year of Holdings, a detailed consolidated
budget for such fiscal year (including a projected consolidated balance sheet
and related statements of projected operations and cash flows as of the end of
and for such fiscal year and setting forth the material assumptions used for
purposes of preparing such budget);


 


(e)   promptly after the same
become publicly available, copies of all periodic 10Q and 10K filings, which
shall satisfy the Borrower’s obligations under Sections 5.01(a) and (b)
above (if containing the items required thereby);


 


(f)   after the request by any
Lender, all documentation and other information that such Lender reasonably
requests in order to comply with its ongoing obligations under applicable “know
your customer” and anti-money laundering rules and regulations, including the
USA PATRIOT Act;


 


(g)   concurrently with the
delivery of the certificate pursuant to clause (c) above (or on such later
date on which a distribution may be made), a certificate of a Financial Officer
of Holdings setting forth computations of the amount of any Tax Distribution or
Specified Tax Payment made during the period covered thereby;


 


56

















 


(h)   concurrently with the
delivery of the certificate delivered pursuant to clause (c) above with
respect to the end of a fiscal year, a certificate of a Financial Officer of
Holdings setting forth the amount of Capital Expenditures during the relevant
fiscal year, any Rollover Amount or Carryback Amount and the base amount for
the next succeeding Fiscal Year;


 


(i)   promptly, from time to
time, such other information regarding the operations, business affairs and
financial condition of Holdings, the Borrower or any Subsidiary, or compliance
with the terms of any Loan Document, as the Administrative Agent or any Lender
may reasonably request; and


 


(j)   Concurrently with the
delivery of the certificate delivered pursuant to clause (c) above with respect
to the end of a fiscal year, the Borrower shall deliver to the Collateral Agent
a certificate executed by a Responsible Officer of the Borrower attaching
updated versions of the Schedules (other than Schedule IV) to the Second
Lien Guarantee and Collateral Agreement or in the alternative, setting forth
any and all changes to (or confirming that there has been no change in) the
information set forth in or contemplated by such Schedules since the date of
the most recent certificate delivered pursuant to this paragraph (j).


 


SECTION 5.05. Litigation and Other Notices.
Promptly upon any Responsible Officer of Holdings, the Borrower or any
Subsidiary becoming aware thereof, furnish to the Administrative Agent and each
Lender notice of the following:


 


(a)   the occurrence of any Event
of Default or Default;


 


(b)   the filing or commencement of
any action, suit or proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Affiliate thereof that
could reasonably be expected to result in a Material Adverse Effect;


 


(c)   the occurrence of any ERISA
Event that, alone or together with any other ERISA Events that have occurred,
that has resulted in or could reasonably be expected to result in a Material
Adverse Effect; and


 


(d)   the occurrence of any other
event that has resulted in, or could reasonably be expected to result in, a
Material Adverse Effect.


 


SECTION 5.06. Information Regarding Collateral.
Furnish to the Administrative Agent notice of any change (i) in any Loan
Party’s legal name, (ii) in the jurisdiction of organization or formation
of any Loan Party or (iii) in any Loan Party’s identity or corporate
structure. Holdings and the Borrower also agree to notify the Administrative
Agent if any material portion of the Collateral is damaged or destroyed.


 


SECTION 5.07. Maintaining Records; Access to
Properties and Inspections; Maintenance of Ratings. (a)  Keep proper books of record and account in
which full, true and correct entries in conformity with GAAP are made. Permit
any representatives designated by the Administrative Agent (or any Lender if
accompanying the Administrative Agent) to visit and inspect during normal
business hours the financial 


 


57

















 


records and the properties of Holdings, the
Borrower or the Subsidiaries upon reasonable advance notice, and to make
extracts from and copies of such financial records, and permit any such representatives
to discuss the affairs, finances and condition of such person with the officers
thereof and independent accountants therefor; provided,
that the Administrative Agent shall give the Borrower an opportunity to
participate in any discussions with its accountants; provided, further,
that in the absence of the existence of an Event of Default, the Administrative
Agent shall not exercise its rights under this Section 5.07 more often
than two times during any fiscal year and only one such time shall be at the
Borrower’s expense.


 


SECTION 5.08. Use of Proceeds. The
proceeds of the Loans, together with the Equity Contribution and term loans
under the First Lien Credit Agreement, shall be used solely to pay the cash
purchase price of the Acquisition, to repay the Existing Debt and to pay
related fees and expenses.


 


SECTION 5.09. Further Assurances. (a)  From time to time duly authorize, execute and
deliver, or cause to be duly authorized, executed and delivered, such
additional instruments, certificates, financing statements, agreements or
documents, and take all reasonable actions (including filing UCC and other
financing statements but subject to the limitations set forth in the Security
Documents), as the Administrative Agent or the Collateral Agent may reasonably
request, for the purposes of perfecting the rights of the Administrative Agent,
the Collateral Agent and the Secured Parties with respect to the Collateral (or
with respect to any additions thereto or replacements or proceeds or products
thereof or with respect to any other property or assets hereafter acquired by
Holdings, the Borrower or any Subsidiary which may be deemed to be part of the
Collateral) pursuant hereto or thereto. Upon the exercise by the Administrative
Agent, the Collateral Agent or any Lender of any power, right, privilege or
remedy pursuant to this Agreement or the other Loan Documents which requires
any consent, approval, recording, qualification or authorization of any
Governmental Authority, each of Holdings and the Borrower will execute and
deliver, or will cause the execution and delivery of, all applications,
certifications, instruments and other documents and papers that the
Administrative Agent, the Collateral Agent or such Lender may reasonably be
required to obtain from Holdings, the Borrower or any other Loan Party for such
governmental consent, approval, recording, qualification or authorization.


 


(b)   With respect to any assets
acquired by any Loan Party after the Closing Date of the type constituting
Collateral under the Guarantee and Collateral Agreement and as to which the
Collateral Agent, for the benefit of the Secured Parties, does not have a
perfected security interest, on or prior to the date of delivery of the
certificate under Section 5.04(c) following the date of such acquisition
(i) execute and deliver to the Administrative Agent and the Collateral Agent
such amendments to the Guarantee and Collateral Agreement or such other
Security Documents as the Collateral Agent deems necessary to grant to the
Collateral Agent, for the benefit of the Secured Parties, a security interest
in such assets and (ii) take all actions necessary to grant to, or continue on
behalf of, the Collateral Agent, for the benefit of the Secured Parties, a
perfected security interest in such assets (subject only to Liens permitted
under Section 6.02), including the filing of UCC financing statements in such
jurisdictions as may be required 


 


58

















 


by the Guarantee and Collateral
Agreement or as may be reasonably requested by the Administrative Agent or the
Collateral Agent.


 


(c)   With respect to any fee
interest in any real property (other than fee property of a Project Subsidiary
prior to the time the Permitted Project Debt is repaid in full) located in the
United States with a book value in excess of $5,000,000 (as reasonably
estimated by the Borrower) acquired after the Closing Date by any Loan Party
(including as a result of a Permitted Acquisition of a Person that owns such
real property), within 60 days following the date of such acquisition (i) execute
and deliver a Mortgage in favor of the Collateral Agent, for the benefit of the
Secured Parties, covering such real property and complying with the provisions
herein and in the Security Documents, (ii) provide the Secured Parties with
title and extended coverage insurance in an amount equal to the book value of
such real property, and if applicable, flood insurance, all in accordance with
the standards for deliveries contemplated on the Closing Date, (iii) if
requested by the Administrative Agent make available counsel reasonably
satisfactory to the Administrative Agent and the Collateral Agent to advise the
Administrative Agent and the Collateral Agent with respect to the form and
substance of the applicable Mortgage and (iv) deliver to the Administrative
Agent, upon the Administrative Agent’s request, a copy of any consultant’s
reports, environmental site assessments or other material documents, if any, in
the possession of the Borrower or any other Loan Party.


 


(d)   With respect to any
Subsidiary (other than a Foreign Subsidiary or a Project Subsidiary) created or
acquired after the Closing Date, and with respect to any Project Subsidiary
upon payment in full of all Permitted Project Debt of such Project Subsidiary, on
or prior to the date of delivery of the certificate under Section 5.04(c) following
such creation or the date of such acquisition, or payment, as the case may be
(i) execute and deliver to the Administrative Agent and the Collateral
Agent such amendments to the Guarantee and Collateral Agreement as the
Administrative Agent or the Collateral Agent deems necessary to grant to the
Collateral Agent, for the benefit of the Secured Parties, a valid, perfected
security interest in the Equity Interests in such new Subsidiary that are owned
by any of the Loan Parties, (ii) deliver to the Collateral Agent the
certificates, representing any of such Equity Interests that constitute
certificated securities, together with undated stock powers, in blank, executed
and delivered by a duly authorized officer of the pledgor and (iii) cause
such Subsidiary (A) to become a party to the Guarantee and Collateral
Agreement and each Intellectual Property Security Agreement and (B) to
take such actions necessary to grant to the Collateral Agent, for the benefit
of the Secured Parties, a perfected security interest in any assets required to
be Collateral pursuant to the Guarantee and Collateral Agreement and each Intellectual
Property Security Agreement with respect to such Subsidiary, including, if
applicable, the recording of instruments in the United States Patent and
Trademark Office and the United States Copyright Office and the filing of UCC
financing statements in such jurisdictions as may be required by the Guarantee
and Collateral Agreement, any applicable Intellectual Property Security
Agreement or as may be reasonably requested by the Administrative Agent or the
Collateral Agent.


 


(e)   With respect to any Equity
Interests in any Foreign Subsidiary or Project Subsidiary that are acquired
after the Closing Date by any Loan Party (including as a 


 


59

















 


result of formation of a new
Foreign Subsidiary or Project Subsidiary), on or prior to the date of delivery
of the certificate under Section 5.04(c) following the date of such
acquisition (or, in the case of a Project Subsidiary where Equity Interests are
or will be subject to a Lien in favor of lenders of the Permitted Project Debt,
upon payment in full of all Permitted Project Debt of such Subsidiary) (i)
execute and deliver to the Administrative Agent and the Collateral Agent such
amendments to the Guarantee and Collateral Agreement as the Administrative
Agent or the Collateral Agent reasonably deems necessary in order to grant to
the Collateral Agent, for the benefit of the Secured Parties, a perfected
security interest (subject only to Liens permitted under Section 6.02) in
the Equity Interests in such Foreign Subsidiary or such Project Subsidiary that
are owned by the Loan Parties (provided, that
in no event shall more than 65% of the total outstanding voting Equity
Interests in any Foreign Subsidiary be required to be so pledged) and (ii)
deliver to the Collateral Agent any certificates representing any such Equity
Interests that constitute certificated securities, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
pledgor, as the case may be, and take such other action as may be necessary to
perfect the security interest of the Collateral Agent thereon.


 


SECTION 5.10. Interest Rate Protection.
No later than the 120th day after the Closing Date, the Borrower shall enter
into, and for a minimum of two years after the Closing Date maintain,
Hedging Agreements reasonably acceptable to the Administrative Agent such that,
after giving effect thereto, at least 50% of the aggregate principal amount of
its consolidated funded long-term Indebtedness is effectively subject to a
fixed or maximum interest rate.


 


ARTICLE VI



Negative Covenants


 


Each of Holdings and the Borrower covenants and agrees that, until the
Commitments have been terminated and the principal of and interest on each
Loan, all Fees and all other expenses or amounts payable under any Loan
Document have been paid in full, neither Holdings nor the Borrower will, nor
will they cause or permit any of their Subsidiaries to:


 


SECTION 6.01. Indebtedness. Incur,
create, assume or permit to exist any Indebtedness, except:


 


(a) Indebtedness
existing on the Closing Date and set forth in Schedule 6.01 and any
Permitted Refinancing thereof;


 


(b) Indebtedness
created hereunder and under the other Loan Documents;


 


(c) Indebtedness
under the First Lien Credit Agreement in an aggregate principal amount not to
exceed (x) $550,000,000 plus
(y) (A) the aggregate principal amount of incremental loans not to
exceed $100,000,000 made thereunder in accordance with the provisions thereof plus (B) $20,000,000, and 


 


60

















 


any refinancing, substitution, extension,
replacement or restructuring of the foregoing that is not prohibited by the
Intercreditor Agreement;


 


(d) intercompany
Indebtedness of Holdings and its Subsidiaries to extent permitted by
Section 6.04;


 


(e) Indebtedness
of the Borrower or any of its Subsidiaries incurred to finance the acquisition,
construction or improvement of any asset, and any Permitted Refinancing
thereof; provided, that
(i) such Indebtedness (other than Permitted Refinancing) is incurred prior
to or within 270 days after such acquisition or the completion of such
construction or improvement and (ii) the aggregate principal amount of
Indebtedness permitted by this Section 6.01(e), when combined with the
aggregate principal amount of all Capital Lease Obligations incurred pursuant
to Section 6.01(f), shall not exceed $35,000,000 at any time outstanding;


 


(f) Capital
Lease Obligations in an aggregate principal amount, when combined with the
aggregate principal amount of all Indebtedness incurred pursuant to Section 6.01(e),
not in excess of $35,000,000 at any time outstanding;


 


(g) Indebtedness
of the Borrower and the Subsidiaries (A) assumed in connection with any
Permitted Acquisition (so long as such Indebtedness is not incurred in
contemplation of such Permitted Acquisition) or (B) owed to the seller of any
property acquired in a Permitted Acquisition on an unsecured, subordinated
basis (which subordination shall be on terms reasonably acceptable to the
Administrative Agent) and, in each case any Permitted Refinancing in respect of
the foregoing; provided, that in
each case, (i) such Indebtedness is unsecured (other than as permitted by
Section 6.02), (ii) both immediately prior and after giving effect
thereto, (1) no Default shall exist or result therefrom and
(2) Holdings and its Subsidiaries will be in Pro Forma Compliance with the
covenant set forth in Section 6.10;


 


(h) unsecured
Indebtedness (“Permitted
Senior Debt”) of the Borrower; provided,
that (i) the aggregate principal amount of Indebtedness permitted
by this Section 6.01 (h) at any time outstanding shall not exceed $150,000,000
(ii) both immediately prior and after giving effect to incurring any such
Indebtedness, (1) no Default shall exist or result therefrom and
(2) Holdings and its Subsidiaries will be in Pro Forma Compliance with the
covenant set forth in Section 6.10, (iii) such Indebtedness does not
mature prior to the date 91 days after the Maturity Date, and does not
require any scheduled amortization or other scheduled payments of principal
prior to the Maturity Date (it being understood that such Indebtedness may have
mandatory prepayment, repurchase or redemption provisions satisfying the
requirement of clause (iv) hereof) and (iv) such Indebtedness has
terms (other than interest rate and redemption premiums), taken as a whole,
that are not materially less favorable to the Borrower than the terms of senior
unsecured debt securities of comparable issuers issued in the capital markets;


 


61

















 


(i) unsecured
subordinated Indebtedness (“Permitted Subordinated Debt”) of the Borrower; provided, that (i) the aggregate
principal amount of Indebtedness permitted by this Section 6.01(i) at any
time outstanding shall not exceed $200,000,000 (ii) both immediately prior
and after giving effect to incurring any such Indebtedness, (1) no Default
shall exist or result therefrom and (2) Holdings and the Subsidiaries will
be in Pro Forma Compliance with the covenant set forth in Section 6.10,
(iii) such Indebtedness does not mature prior to the date 91 days
after the Maturity Date and does not require any scheduled amortization or
other scheduled payments of principal prior to the Maturity Date (it being
understood that such Indebtedness may have mandatory prepayment, repurchase or
redemptions provisions satisfying the requirement of clause (iv) hereof),
(iv) such Indebtedness has terms (other than interest rate and redemption
premiums), taken as a whole, that are not materially less favorable to the Borrower
than the terms of the senior subordinated debt securities of comparable issuers
issued in the capital markets and (v) such Indebtedness (and any
Guarantees thereof) are subordinated to the Obligations (and any refinancing
thereof) on terms no less favorable to the Lenders than subordination terms
customary for senior subordinated debt securities of comparable issuers issued
in the capital markets or on terms reasonably acceptable to the Administrative
Agent;


 


(j) Guarantees
by Holdings, the Borrower or any of their Subsidiaries of Indebtedness (other
than Permitted Project Debt) of the Borrower or any other Subsidiary otherwise
permitted hereunder; provided, that
(x) no guarantee of any Permitted Subordinated Debt, Permitted Senior Debt or
other subordinated Indebtedness that is Material Indebtedness (or any Permitted
Refinancing thereof) by any Subsidiary that is not a Loan Party shall be
permitted unless such Subsidiary shall have also provided a Guarantee of the
Obligations substantially on the terms set forth in the Guarantee and
Collateral Agreement and (y) if the Indebtedness being Guaranteed is
subordinated to the Obligations, such Guarantee shall be subordinated to the
Guarantee of the Obligations on terms at least as favorable to the Lenders as
those contained in the subordination of such Indebtedness;


 


(k) Indebtedness
incurred by Holdings and its Subsidiaries representing deferred compensation to
directors, officers, members of management, employees or consultants of
Holdings and its Subsidiaries incurred in the ordinary course of business;


 


(l) Indebtedness
consisting of promissory notes issued by Holdings or any of its Subsidiaries to
future, present or former directors, officers, members of management, employees
or consultants of Holdings or any of its Subsidiaries or their respective
estates, heirs, family members, spouses or former spouses to finance the
purchase or redemption of Equity Interests of Holdings permitted by Section
6.06;


 


62

















 


(m) Indebtedness
incurred by Holdings or any of its Subsidiaries in a Permitted Acquisition or
an Asset Sale under agreements providing for indemnification, the adjustment of
the purchase price or similar adjustments;


 


(n) Indebtedness
consisting of obligations of Holdings or any of its Subsidiaries under deferred
compensation or other similar arrangements incurred by such person in
connection with the Transaction and Permitted Acquisitions;


 


(o) cash
management obligations and Indebtedness incurred by Holdings or any of its
Subsidiaries in respect of netting services, overdraft protections and similar
arrangements in each case in connection with cash management and deposit
accounts;


 


(p) Indebtedness
consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations
of the Borrower or any of its Subsidiaries contained in supply arrangements, in
each case, in the ordinary course of business;


 


(q) Indebtedness
incurred by Holdings and its Subsidiaries constituting reimbursement
obligations with respect to letters of credit issued in the ordinary course of
business in respect of workers compensation claims, unemployment insurance,
health, disability or other employee benefits or property, casualty or
liability insurance or self-insurance or other Indebtedness with respect to
such similar reimbursement-type obligations; provided,
that upon the drawing of such letters of credit or the incurrence of
such Indebtedness, such obligations are reimbursed within 30 days following
such drawing or incurrence;


 


(r) obligations
in respect of surety, stay, customs and appeal bonds, performance bonds,
performance and completion guarantees and other obligations of a like nature
provided by the Borrower or any of its Subsidiaries or obligations in respect
of letters of credit related thereto, in each case in the ordinary course of
business; provided, that upon the
drawing of such letters of credit or the incurrence of such Indebtedness, such
obligations are reimbursed within 30 days following such drawing or incurrence;


 


(s) Indebtedness
in respect of Hedging Agreements entered into in the ordinary course of
business and not for speculative purposes;


 


(t) Indebtedness
in respect of any bankers’ acceptances supporting trade payables, warehouse
receipts or similar facilities entered into the ordinary course of business;


 


(u) Indebtedness
(other than for borrowed money) subject to Liens permitted under Section 6.02;


 


(v) other
Indebtedness of the Borrower or any of its Subsidiaries in an aggregate
principal amount not exceeding $35,000,000 at any time outstanding;


 


(w) Permitted
Project Debt; and


 


63

















 


(x) all
premiums (if any), interest (including post-petition interest), fees, expenses,
charges and additional or contingent interest on obligations described in
clauses (a) through (w) above.


 


SECTION 6.02. Liens. Create, incur,
assume or permit to exist any Lien on any property or any income or revenues or
rights in respect of any thereof now owned or hereafter acquired by it, except:


 


(a) Liens on
property of the Borrower and the Subsidiaries existing on the Closing Date and
set forth in Schedule 6.02 and modifications, refinancings, extensions,
renewals and replacements thereof; provided,
that (i) the Lien does not extend to any additional property
other than (A) after-acquired property that is affixed or incorporated
into the property covered by such Lien or financed by Indebtedness permitted
under Section 6.01, and (B) proceeds and products thereof and
(ii) the modification, refinancing, extension, renewal and replacement
thereof of the obligations secured or benefited by such Liens (if such
obligations constitute Indebtedness) is permitted by Section 6.01;


 


(b) any Lien
created under the Loan Documents;


 


(c) First
Priority Liens (including, for the avoidance of doubt, in connection with the
cash collateralization of any letter of credit issued under the First Lien
Credit Agreement);


 


(d) any Lien
existing on any property acquired by the Borrower or any of its Subsidiaries
after the Closing Date (if such Lien existed prior to the acquisition of such
asset) or existing on any property or assets of any person that becomes a
Subsidiary after the Closing Date prior to the time such person becomes a
Subsidiary, as the case may be and any modification, refinancing, extension,
renewal and replacement thereof; provided,
that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such person becoming a Subsidiary,
(ii) in the case of Liens securing purchase money Indebtedness or Capital
Lease Obligations, such Lien does not apply to any other property or assets of
Holdings, the Borrower or any Subsidiary (other than the proceeds or products
thereof and after-acquired property subjected to a Lien pursuant to terms existing
at the time of such acquisition, it being understood that such requirement
shall not be permitted to apply to any property to which such requirement would
not have applied but for such acquisition); provided,
that individual financings otherwise permitted to be secured
hereunder provided by one person (or its affiliates) may be cross
collateralized to other such financings provided by such person (or its
affiliates), (iii) in the case of Liens securing Indebtedness other than
purchase money Indebtedness or Capitalized Lease Obligations, such Liens do not
extend to the property of any person other than the person acquired or formed
to make such acquisition and the subsidiaries of such person and (iv) the
Indebtedness secured thereby (or, as applicable, any modifications,
replacements, renewals or extensions thereof) is permitted under
Section 6.01;


 


64

















 


(e) Liens for
taxes (i) which are not yet overdue for a period of more than 30 days, or,
(ii) if more than 30 days overdue (x) so long as the validity or
amount thereof is (A) being contested in good faith, (B) by
appropriate proceedings diligently conducted and (C) with respect to which
adequate reserves in accordance with GAAP have been established or (y) with
respect to which the failure to make payment could not reasonably be expected
to have a Material Adverse Effect;


 


(f) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords, construction
contractors or other like Liens arising in the ordinary course of business and
securing obligations which are not overdue for a period of more than 30 days,
or, if more than 30 days overdue, (i) which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable person in
accordance with GAAP or (ii) with respect to which the failure to make
payment could not reasonably be expected to have a Material Adverse Effect;


 


(g) (i) Liens
incurred in the ordinary course of business in compliance with workmen’s
compensation, unemployment insurance and other social security laws or
regulations, (ii) Liens incurred in the ordinary course of business
securing insurance premiums or reimbursement obligations under insurance
policies or (iii) obligations in respect of letters of credit or bank
guarantees that have been posted by Holdings or any of its Subsidiaries to
support the payment of the items set forth in clauses (i) and (ii) of this
Section 6.02(g);


 


(h) (i) deposits
to secure the performance of bids, trade contracts (other than Indebtedness for
borrowed money), leases, statutory obligations, surety, stay, customs and
appeal bonds, performance bonds, performance and completion guarantees and
other obligations of a like nature incurred in the ordinary course of business
(including Hedging Agreements) and (ii) obligations in respect of letters of
credit or bank guarantees that have been posted by the Borrower or any of its Subsidiaries
to support the payment of items set forth in clause (i) of this Section
6.02(h);


 


(i) zoning
restrictions, easements, rights-of-way, restrictions on use of real property
and other similar encumbrances incurred in the ordinary course of business
which, in the aggregate, are not substantial in amount and do not materially
detract from the value of the property subject thereto or interfere with the
ordinary conduct of the business of Holdings or any of its Subsidiaries;


 


(j) purchase
money security interests in property acquired (or, in the case of improvements,
constructed) by the Borrower or any Subsidiary; provided, that (i) such security interests secure
Indebtedness permitted by Section 6.01, (ii) such security interests
are incurred, and the Indebtedness secured thereby is created, within 270 days
after such acquisition (or construction), and (iii) such security
interests do not apply to any other property or assets of the Borrower or any
Subsidiary; provided, that
individual financings otherwise permitted to be secured 


 


65

















 


hereunder provided by one person (or its
affiliates) may be cross collateralized to other such financings provided by
such person (or its affiliates);


 


(k) judgment
Liens securing judgments not constituting an Event of Default under Article
VII;


 


(l) any
interest or title of a lessor or sublessor under any lease entered into by the
Borrower or any of its Subsidiaries in the ordinary course of business and
covering only the assets so leased and any Liens of such lessor’s or sublessor’s
interest or title;


 


(m) Liens
(i) on cash deposits and other funds maintained with a depositary
institution, in each case arising in the ordinary course of business by virtue
of any statutory or common law provision relating to banker’s liens,
(ii) attaching to commodity trading accounts or other brokerage accounts
incurred in the ordinary course of business, (iii) in favor of a banking
institution arising as a matter of law encumbering deposits (including the
right of set-off) and which are within the general parameters customary in the
banking industry, (iv) relating to a pooled deposit or sweep accounts of
Holdings or any of its Subsidiaries to permit satisfaction of overdraft or
similar obligations incurred in the ordinary course of business of such person
or (v) relating to purchase orders and other similar agreements entered into in
the ordinary course of business;


 


(n) (i) leases,
subleases, licenses or sublicenses granted to any other person in the ordinary
course of business and (ii) the rights reserved or vested in any person by
the terms of any lease, license, franchise, grant or permit held by Holdings or
any of its Subsidiaries or by a statutory provision to terminate any such
lease, license, franchise, grant or permit or to require periodic payments as a
condition to the continuance thereof;


 


(o) 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 in the
ordinary course of business;


 


(p) Liens (i)
(A) on advances of cash or Permitted Investments in favor of the seller of any
property to be acquired in an Investment permitted pursuant to Section 6.04 to
be applied against the purchase price for such Investment, and (B) consisting
of an agreement to dispose of any property in an Asset Sale permitted under
Section 6.05, in each case, solely to the extent such Investment or Asset
Sale, as the case may be, would have been permitted on the date of the creation
of such Lien and (ii) on cash earnest money deposits made by Holdings or
any of its Subsidiaries in connection with any letter of intent or purchase
agreement permitted hereunder;


 


(q) Liens in
favor of the Borrower or any Subsidiary securing Indebtedness permitted under
Section 6.04(a) or other obligations (other than 


 


66

















 


Indebtedness) owed by the Borrower or any of
its Subsidiaries to the Borrower or any of its other Subsidiaries;


 


(r) Liens
arising from precautionary UCC financing statement filings (or similar filings
under applicable Law) regarding leases entered into by the Borrower or any of
its Subsidiaries in the ordinary course of business;


 


(s) Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for sale of goods entered into by the Borrower or any of its
Subsidiaries in the ordinary course or business not prohibited by this
Agreement;


 


(t) Liens on
assets of Project Subsidiaries securing Permitted Project Debt; and


 


(u) other
Liens securing Indebtedness or other obligations outstanding in an aggregate
principal amount not to exceed $20,000,000.


 


SECTION 6.03. Sale and Lease-Back Transactions.
Enter into any arrangement, directly or indirectly, with any person whereby it shall
sell or transfer any property, real or personal, used or useful in its
business, whether now owned or hereafter acquired, and thereafter rent or lease
such property or other property which it intends to use for substantially the
same purpose or purposes as the property being sold or transferred unless
(a) the sale or transfer of such property is permitted by Section 6.05 and
(b) any Capital Lease Obligations, Guarantees or Liens arising in
connection therewith are permitted by Sections 6.01 and 6.02, as
applicable.


 


SECTION 6.04. Investments, Loans and Advances.
Purchase, hold or acquire any Equity Interests or evidences of indebtedness of,
make or permit to exist any loans or advances to, or make or permit to exist
any investment in any other person, or purchase or otherwise acquire all or
substantially all the assets or business of any other person or assets
constituting a business unit, line of business or division of another person
(collectively, an “Investment”), except:


 


(a) (i)
Investments by Holdings, the Borrower and the Subsidiaries in Holdings, the Borrower
and the Subsidiaries; provided, that
(i) the aggregate amount of Investments made after the Closing Date by
Loan Parties in Subsidiaries of Holdings (other than D&W Railroad, LLC, so
long as it is not a wholly-owned Subsidiary) that are not Loan Parties (determined
without regard to any write-downs or write-offs of such Investments) shall not
exceed $7,500,000 at any time outstanding; and (ii) Investments by
Holdings and its Subsidiaries in D&W Railroad, LLC may not exceed the
amounts required to be contributed by the Borrower to D&W
Railroad, LLC pursuant to Section 3.01(b) of the Limited Liability
Company Agreement of D&W Railroad, LLC dated as of December 20,
2005 as in effect on the date hereof, other than any contributions used to
materially extend the rail line.


 


(b) Investment
in assets that were Permitted Investments at the time made;


 


67

















 


(c) Investments
received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts or other disputes with, any person, in each case in the
ordinary course of business and upon foreclosure with respect to any secured
Investment or other transfer of title with respect to any secured Investment;


 


(d) Holdings
and its Subsidiaries may make loans and advances in the ordinary course of
business to their respective directors, officers, members of management,
employees and consultants in an aggregate principal amount at any time
outstanding (determined without regard to any write-downs or write-offs of such
loans and advances) not to exceed $7,500,000;


 


(e) the
Borrower and the Subsidiaries may enter into Hedging Agreements that
(i) are required by Section 5.10 or (ii) are not speculative in
nature and are entered into to hedge or mitigate risks to which the Borrower or
a Subsidiary is exposed in the conduct of its business;


 


(f) Permitted
Acquisitions;


 


(g) Investments
consisting of non-cash consideration received from an Asset Sale in compliance
with Section 6.05;


 


(h) Investments
consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course
of business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors and other credits to
suppliers in the ordinary course of business;


 


(i) Investments
consisting of Indebtedness, Liens, sale and leaseback transactions, fundamental
changes, Asset Sales and Restricted Payments permitted under Section 6.01,
6.02, 6.03, 6.05 and 6.06, respectively;


 


(j) Investments
existing or contemplated on the date hereof and set forth on Schedule 6.04
and any modification, replacement, renewal or extension thereof; provided, that the amount of the original
Investment is not increased except by the terms of such Investment or as
otherwise permitted by this Section 6.04;


 


(k) loans and
advances to Holdings in lieu of, and not in excess of the amount of (after giving
effect to any other loans, advances or Restricted Payments in respect thereof),
Restricted Payments permitted to be made to Holdings in accordance with Section
6.06;


 


(l) advances
of payroll payments to employees in the ordinary course of business;


 


(m) Guarantees
by Holdings or any of its Subsidiaries of leases (other than Capital Lease
Obligations) entered into in the ordinary course of business;


 


68














 


(n) Investments
in the ordinary course consisting of endorsements for collection or deposit;
and


 


(o) additional
Investments (net of any cash repayment of or return on such Investments
theretofore received) (i) not to exceed $25,000,000 in any fiscal year (provided, that to the extent that the
aggregate amount of Investments made by Holdings and its Subsidiaries in any
fiscal year pursuant to this Section 6.04(o) (x) is less than the amount permitted
for such fiscal year, the amount of such difference may be carried forward and
used to make Investments in the succeeding fiscal years, and (y) is greater
than the amount permitted for such fiscal year (including any amount carried
forward pursuant to clause (x)), an amount of up to 100% of the amount
otherwise permitted for the immediately succeeding fiscal year may be
reallocated to such current fiscal year) and (ii) up to an amount equal to the
sum of (A) the aggregate amount of Net Cash Proceeds from any issuance of
Equity Interests (other than Disqualified Equity Issuances) after the Closing
Date, plus (B) the Cumulative Excess
Cash Flow, but only to the extent the amounts described in clauses (A) and (B)
above are Not Otherwise Applied.


 


SECTION 6.05. Mergers, Consolidations, and Sales
of Assets. (a)  Merge into
or consolidate with any other person, or permit any other person to merge into
or consolidate with it, except:


 


(i) any
Subsidiary may merge into (x) the Borrower in a transaction in which the
Borrower is the surviving corporation or the surviving person shall expressly
assume the obligations of such Borrower in a manner reasonably acceptable to
the Administrative Agent, or (y) any one or more other Subsidiaries; provided, that when any such Subsidiary is a Loan Party (A)
a Loan Party shall be the continuing or surviving person or (B) to the
extent constituting an Investment, such Investment must be an Investment in or
Indebtedness permitted by Sections 6.04 and 6.01, respectively;


 


(ii) the
Merger;


 


(iii) Holdings
may merge with Parent so long as (A) the continuing or surviving entity is
or becomes a party to this Agreement and each other Loan Document to which
Holdings is a party (in which case the term “Holdings” shall be deemed to refer
to such surviving entity for all purposes of the Loan Documents) and (B) no
Default exists or would result therefrom;


 


(iv) so long
as no Event of Default exists or would result therefrom, the Borrower or any of
its Subsidiaries may merge with any other person in order to effect an
Investment permitted pursuant to Section 6.04; provided,
that (A) if the continuing or surviving person is a Subsidiary, such
Subsidiary shall have complied with the requirements of 


 


69

















 


Section 5.09, (B) to the extent
constituting an Investment, such Investment must be permitted under
Section 6.04 and (C) if the Borrower is a party thereto, the Borrower
shall be the continuing or surviving person or the surviving person shall
expressly assume the obligations of the Borrower in a manner reasonably
acceptable to the Administrative Agent;


 


(v) the Borrower
and the Subsidiaries may consummate a merger or consolidation, the purpose of
which is to effect an Asset Sale permitted pursuant to Section 6.05(b); provided, that if the Borrower is a party thereto,
(A) the Borrower shall be the continuing or surviving person or the
surviving person shall expressly assume the obligations of the Borrower in a
manner reasonably acceptable to the Administrative Agent and (B) the
Borrower or such continuing or surviving person shall continue to be a direct
wholly owned Subsidiary of Holdings; and


 


(vi) the
Borrower may merge with one of its Subsidiaries for the purpose of effecting an
Investment permitted pursuant to Section 6.04; provided,
that (A) the Borrower shall be the continuing or surviving
person or the surviving person shall expressly assume the obligations of the
Borrower in a manner reasonably acceptable to the Administrative Agent, and (B)
the Borrower or such surviving person shall continue to be a direct wholly
owned Subsidiary of Holdings.


 


(b)   Make any Asset Sale except:


 


(i) Asset
Sales of obsolete, used, surplus or worn out property, whether now owned or
hereafter acquired, or of property no longer used or useful in the conduct of
business of the Borrower and the Subsidiaries, in each case in the ordinary
course of business;


 


(ii) Asset
Sales of inventory in the ordinary course of business;


 


(iii) Asset
Sales to the extent that (A) such property is exchanged for credit against the
purchase price of similar replacement property or (B) the proceeds of such
Asset Sale are promptly applied to the purchase price of such replacement
property;


 


(iv) Asset
Sales by the Borrower or any of its Subsidiaries to the Borrower or any of its
Subsidiaries (in each case including any such Asset Sales effected pursuant to
a merger, liquidation or dissolution); provided, that
if the transferor of such property is a Loan Party (x) the transferee thereof
must either be the Borrower or a Subsidiary Guarantor or (y) to the extent such
transaction constitutes an Investment, such transaction is permitted under
Section 6.04;


 


(v) Asset
Sales permitted by Sections 6.04, 6.05(a) and 6.06 and Liens permitted by
Section 6.02;


 


70

















 


(vi) Asset
Sales of Permitted Investments;


 


(vii) Asset
Sales of accounts receivable in connection with the collection or compromise
thereof;


 


(viii) leases,
subleases, licenses or sublicenses of property in the ordinary course of
business and which do not materially interfere with the business of the Borrower
and the Subsidiaries;


 


(ix) transfers
of property subject to casualty or condemnation proceeding (including in lieu
thereof) upon receipt of the Net Cash Proceeds therefor;


 


(x) Asset
Sales not otherwise permitted under this Section 6.05(b); provided, that (A) at the time of such Asset Sales, no Event
of Default shall exist or would result therefrom, (B) the aggregate book
value of all property disposed of in reliance on this clause (x) shall not exceed
$15,000,000 in any fiscal year and (C) the purchase price for such property (if
in excess of $1,000,000) shall be paid to the Borrower or such Subsidiary for
not less than 75% cash consideration;


 


(xi) Asset
Sales in the ordinary course of business consisting of the abandonment of
intellectual property rights which, in the reasonable good faith determination
of the Borrower, are not material to the conduct of the business of the Borrower
and the Subsidiaries;


 


(xii) Asset
Sales of Investments in joint ventures to the extent required by, or made
pursuant to buy/sell arrangements between the joint venture parties set forth
in, joint venture arrangements and similar binding arrangements (x) in
substantially the form as such arrangements are in effect on the Closing Date
or (y) to the extent that the Net Cash Proceeds of such Asset Sale are applied
to prepay the Loans pursuant to Section 2.13(a);


 


(xiii) Asset
Sales by any Subsidiary of the Borrower of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or to another
Subsidiary; provided, that (x) if the
transferor in such a transaction is a Guarantor, then the transferee must
either be the Borrower or a Guarantor or (y) to the extent constituting an
Investment, such Investment must be an Investment permitted by
Section 6.04;


 


(xiv) Asset
Sales of real property and related assets in the ordinary course of business in
connection with relocation activities for directors, officers, members of
management, employees or consultants of Holdings and the Subsidiaries;


 


(xv) voluntary
terminations of Hedging Agreements other than those required to be maintained
by this Agreement; and


 


71

















 


(xvi) the
expiration of any option agreement in respect of real or personal property.


 


SECTION 6.06. Restricted Payments; Restrictive
Agreements. (a)  Declare
or make, or agree to declare or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so except:


 


(i)  any Subsidiary may declare and make
Restricted Payments ratably to its equity holders;


 


(ii)  Holdings and its Subsidiaries may declare and
make Restricted Payments payable solely in the Equity Interests (other than
Disqualified Equity Interests) of such person;


 


(iii)  so long as no Event of Default shall have
occurred and be continuing or would result therefrom, Holdings may make
Restricted Payments with the Net Cash Proceeds received from any issuance by
Holdings of its Equity Interests (other than Disqualified Equity Interests) to
the extent Not Otherwise Applied;


 


(iv)  on the Closing Date, Holdings and its
Subsidiaries may consummate the Transaction;


 


(v)  to the extent constituting Restricted
Payments, Holdings and its Subsidiaries may enter into transactions expressly
permitted by Section 6.05 or 6.07;


 


(vi)  repurchases of Equity Interests of Holdings deemed
to occur upon exercise of stock options or warrants if such Equity Interests
represent a portion of the exercise price of such options or warrants;


 


(vii)  Holdings may pay for the repurchase,
retirement or other acquisition or retirement for value of Equity Interests of
Holdings (or may make Restricted Payments to Parent to enable it to repurchase,
retire or otherwise acquire or retire for value Equity Interests of Parent)
held by any future, present or former director, officer, member of management,
employee or consultant of Parent, Holdings or any of its Subsidiaries (or the
estate, heirs, family members, spouse or former spouse of any of the
foregoing); provided, that the aggregate amount of
Restricted Payments made under this clause (vii) does not exceed in any fiscal
year $7,500,000 (with unused amounts in any fiscal year being carried over to
the two succeeding fiscal years subject to a maximum (without giving effect to
the following proviso) of $15,000,000 in any fiscal year)); and provided, further, that
such amount in any fiscal year may be increased by an amount not to exceed (A)
the Net Cash Proceeds from the sale of Equity Interests (other than
Disqualified Equity Interests) of Holdings (or Parent) to directors, officers,
members of management, employees or consultants of Parent, Holdings or of its
Subsidiaries (or the estate, heirs, family members, spouse or former spouse of
any of the foregoing) that occurs after the Closing Date plus (B) the amount of
any cash bonuses otherwise payable to directors, officers, members of
management, 


 


72

















 


employees or consultants of Parent, Holdings
or any of its Subsidiaries in connection with the Transaction that are foregone
in return for the receipt of Equity Interests of Holdings (or Parent) pursuant
to a deferred compensation plan of such person (provided,
that Consolidated EBITDA is reduced as a
result thereof) plus (C) the cash proceeds of key man life insurance policies
received by Parent, Holdings, the Borrower or its Subsidiaries after the
Closing Date (provided, that Holdings may elect
to apply all or any portion of the aggregate increase contemplated by clauses
(A), (B) and (C) above in any fiscal year);


 


(viii)  the Borrower may make Restricted Payments to
Holdings (and Holdings may make Restricted Payments to Parent):


 


(A)          the proceeds of which shall be used by
Holdings (or Parent) to (1) pay operating expenses of Parent, Holdings and its
Subsidiaries incurred in the ordinary course of business and other corporate
overhead costs and expenses (including administrative, legal, accounting and
similar expenses provided by third parties), which are reasonable and customary
and incurred in the ordinary course of business, plus any reasonable and
customary indemnification claims made by directors, officers, members of
management, employees or consultants of Parent or Holdings each to the extent attributable
to the ownership or operations of the Borrower and the Subsidiaries and (2) pay
its franchise or similar taxes and other similar fees, taxes and expenses
required to maintain Holdings’ corporate existence;


 


(B)           the proceeds of which will be used by
Holdings (or Parent) to make Restricted Payments permitted by clause (vii)
above;


 


(C)           to finance any Investment permitted
to be made pursuant to Section 6.04; provided, that
(A) such Restricted Payment shall be made substantially concurrently with the
closing of such Investment and (B) Holdings (or Parent) shall, immediately
following the closing thereof, cause (1) all property acquired (whether assets
or Equity Interests) to be contributed to the Borrower or one of its
Subsidiaries or (2) the merger (to the extent permitted in Section 6.05) of the
person formed or acquired into the Borrower or one of its Subsidiaries in order
to consummate such Permitted Acquisition;


 


(D)          the proceeds of which shall be used by
Holdings (or Parent) to pay fees and expenses related to any unsuccessful
equity or debt offering permitted by this Agreement;


 


(E)           the proceeds of which shall be used
to make cash payments in lieu of issuing fractional shares in connection with
the exercise of warrants, options or other securities convertible into or
exchangeable for Equity Interests of Holdings (or Parent) or its Subsidiaries;


 


73

















 


(F)           the proceeds of which shall be used
by Holdings (or Parent) to pay customary salary, bonuses and other benefits
payable to officers and employees of Holdings (or Parent) to the extent such
salaries, bonuses and other benefits are directly attributable and reasonably
allocated to the operations of the Borrower and the Subsidiaries;


 


(G)           the proceeds of which shall be used
by Holdings (or Parent) to pay amounts owing pursuant to the Sponsor Agreement,
tax sharing agreements, and other amounts of the type described in Section
6.07, in each case to the extent the applicable payment would be permitted
under Section 6.07 if such payment were to be made by the Borrower or its Subsidiaries;


 


(H)          the proceeds of which are used to make
Tax Distributions;


 


(I)            the proceeds of which are used to make
Specified Tax Payments; and


 


(ix)  in addition to the foregoing, so long as no Event
of Default has occurred and is continuing, Holdings may make other Restricted
Payments in an amount not exceeding applicable CECF Percentage of the
Cumulative Excess Cash Flow that is Not Otherwise Applied.


 


(b)   Enter into, incur or permit
to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon:


 


(i)   the ability of Holdings, the Borrower
or any Subsidiary to create, incur or permit to exist any Lien upon any of its
property or assets to secure the Obligations, or


 


(ii)  the ability of any Subsidiary to pay
dividends or other distributions with respect to any of its Equity Interests or
to make or repay loans or advances to the Borrower or any other Subsidiary or
to Guarantee Indebtedness of the Borrower or any other Subsidiary; provided, that


 


(A)          the foregoing shall not apply to


 


(1)           restrictions and conditions imposed
by law or by any Loan Document or the First Lien Credit Agreement,


 


(2)           customary restrictions and conditions
contained in agreements relating to an Asset Sale of a Subsidiary or any
property pending such sale, provided such
restrictions and conditions apply only to the Subsidiary or property that is to
be sold,


 


(3)           restrictions and conditions imposed
on (x) any Foreign Subsidiary by the terms of any Indebtedness of such 


 


74

















 


Foreign
Subsidiary permitted to be incurred hereunder or (y) any Project
Subsidiary by the terms of the documentation governing any Permitted Project
Debt of such Project Subsidiary,


 


(4)           restrictions or conditions imposed by
any agreement relating to secured Indebtedness permitted by this Agreement if
such restrictions or conditions apply only to the property or assets securing
such Indebtedness,


 


(5)           are binding on a Subsidiary at the
time such Subsidiary first becomes a Subsidiary, so long as such restrictions
were not entered into solely in contemplation of such person becoming a
Subsidiary,


 


(6)           restrictions and conditions imposed by
the terms of the documentation governing any Indebtedness of a Subsidiary of
the Borrower that is not a Loan Party, which Indebtedness is permitted by
Section 6.01,


 


(7)           are customary provisions in joint
venture agreements and other similar agreements applicable to joint ventures
permitted under Section 6.04 or to D&W Railroad, LLC (so long as it is not
a wholly owned Subsidiary) and applicable solely to such joint venture entered
into in the ordinary course of business or to D&W Railroad, LLC (so long as
it is not a wholly owned Subsidiary), and


 


(8)           are negative pledges and restrictions
on Liens in favor of any holder of Indebtedness permitted under Section 6.01
but only if such negative pledge or restriction expressly permits Liens for the
benefit of the Administrative Agent and/or the Collateral Agent and the Lenders
with respect to the credit facilities established hereunder and the Obligations
under the Loan Documents on a senior basis and without a requirement that such
holders of such Indebtedness be secured by such Liens equally and ratably or on
a junior basis; and


 


(B)           clause (i) of the foregoing shall
not apply to customary provisions in leases, subleases, licenses, sublicenses
and other contracts restricting the assignment thereof.


 


SECTION 6.07. Transactions with Affiliates.
Except for transactions by or among Loan Parties, sell or transfer any property
or assets to, or purchase or acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates, except:


 


(a) Holdings
or any Subsidiary may engage in any of the foregoing transactions at prices and
on terms and conditions not less favorable to Holdings 


 


75

















 


or such Subsidiary than could be obtained on
an arm’s-length basis from unrelated third parties;


 


(b) Holdings
and its Subsidiaries may pay fees (so long as no Event of Default has occurred
under clauses (g)(i) and (h) of Article VII) and pay, expenses and
make indemnification payments to the Sponsor pursuant to and in accordance with
the Sponsor Agreement; provided,
that no Event of Default under clauses (g)(i) or (h) of Article VII has
occurred and is continuing;


 


(c) the
payment of fees and expenses in connection with the consummation of the
Transaction;


 


(d) issuances by
Holdings and the Subsidiaries of Equity Interests not prohibited under this
Agreement;


 


(e) customary
fees payable to any directors of Holdings and Parent and reimbursement of
reasonable out-of-pocket costs of the directors of Holdings and Parent, in the
case of Parent to the extent attributable to the operations of Holdings and its
Subsidiaries);


 


(f) employment
and severance arrangements entered into by Holdings and its Subsidiaries with
their officers and employees in the ordinary course of business;


 


(g) payments
by Holdings and its Subsidiaries to each other pursuant to tax sharing
agreements among Holdings and its Subsidiaries on customary terms;


 


(h) the
payment of customary fees and indemnities to directors, officers and employees
of Holdings and its Subsidiaries in the ordinary course of business;


 


(i) transactions
pursuant to permitted agreements in existence on the Closing Date and set forth
on Schedule 6.07 or any amendment thereto to the extent such an amendment is
not adverse to the interests of the Lenders in any material respect;


 


(j) Restricted
Payments permitted under Section 6.06;


 


(k) payments
by Holdings and its Subsidiaries to the Sponsor made for any customary
financial advisory, financing, underwriting or placement services or in respect
of other investment banking activities, including in connection with
acquisitions or divestitures, which payments are approved by a majority of the
board of directors of Holdings, in good faith; and


 


(l) loans and
other transactions among Holdings and its Subsidiaries to the extent permitted
under this Article VI.


 


SECTION 6.08. Business of Holdings, Borrower and
Subsidiaries. (a)  With
respect to Holdings, engage in any business activities or have any assets or
liabilities 


 


76

















 


other than its
ownership of the Equity Interests of the Borrower and liabilities and
activities incidental thereto including its liabilities pursuant to the Loan
Documents, the First Lien Credit Agreement and related loan documents, the
Purchase Agreement and the related Transactions and any transactions Holdings
is permitted to engage in pursuant to this Article 6.


 


(b)   With respect to the Borrower
and the Subsidiaries, engage at any time in any business or business activity
other than the business conducted by it on the Closing Date (after giving
effect to the Transactions) and business activities reasonably incidental, ancillary
or related thereto.


 


SECTION 6.09. Other Indebtedness and Agreements.
(a)  Permit any waiver, supplement,
modification, amendment, termination, release, refinancing or refunding of (i) the
First Lien Credit Agreement and the First Lien Guarantee and Collateral
Agreement except to the extent such waiver, supplement, modification,
amendment, termination, release, refinancing or refunding is effected in
accordance with the Intercreditor Agreement or (ii) the provisions with
respect to the payment of fees set forth in the Sponsor Agreement, in each case
if the effect of such waiver, supplement, modification, amendment, termination
or release is adverse in any material respect to the interests of the Lenders.


 


(b)   (i)  Except for
regular scheduled payments of principal and interest as and when due (to the
extent not prohibited by applicable subordination provisions), make any
distribution, whether in cash, property, securities or a combination thereof,
in respect of, or pay, or offer or commit to pay, or directly or indirectly
redeem, repurchase, retire or otherwise acquire for consideration, or set apart
any sum for the aforesaid purposes, any Permitted Subordinated Debt or Permitted
Senior Debt, (other than with (x) the Net Cash Proceeds of a Qualified Public
Offering, to the extent Not Otherwise Applied and provided,
that no Default has occurred and is continuing, (y) the proceeds of any
Permitted Refinancing of any of the foregoing, or (z) the Net Cash
Proceeds of any issuance of Equity Interests of Holdings (other than a
Qualified Public Offering or Disqualified Equity Interests) to the extent Not
Otherwise Applied or the conversion of any such Indebtedness to Equity
Interests).


 


SECTION 6.10. Maximum Total Leverage Ratio. Permit the Total Leverage Ratio as of
the end of any fiscal quarter ending on or after September 30, 2006, to be
greater than the ratio set forth below opposite the fiscal quarter end:


 


	
  Fiscal Quarter Ending

  	
   

  	
  Ratio

  
	
   

  	
   

  	
   

  
	
  on or prior to December 31, 2008

  	
   

  	
  7.00 to 1.0

  
	
  thereafter but on or prior to
  December 31, 2010

  	
   

  	
  6.75 to 1.0

  
	
  after December 31, 2010

  	
   

  	
  6.50 to 1.0

  



 


77

















 


ARTICLE VII



Events of Default


 


In case of the happening of any of the following events (“Events of Default”):


 


(a) any
representation or warranty made or deemed made in any Loan Document or any
representation, warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished pursuant to any
Loan Document, shall prove to have been false or misleading in any material
respect when so made, deemed made or furnished;


 


(b) default
shall be made in the payment of any principal of any Loan when and as the same
shall become due and payable, whether at the due date thereof or at a date
fixed for mandatory prepayment thereof or by acceleration thereof or otherwise;


 


(c) default shall
be made in the payment of interest on any Loan or any Fee or other amount
(other than an amount referred to in (b) above) due under any Loan
Document, when and as the same shall become due and payable, and such default
shall continue unremedied for a period of three Business Days;


 


(d) default
shall be made in the due observance or performance by Holdings, the Borrower or
any Subsidiary of any covenant, condition or agreement contained in
Section 5.01(a) (with respect to the Borrower), 5.05(a) or 5.08 or in
Article VI;


 


(e) default
shall be made in the due observance or performance by Holdings, the Borrower or
any Subsidiary of any covenant, condition or agreement contained in any Loan
Document (other than those specified in clause (b), (c) or (d) above) and such
default shall continue unremedied for a period of 30 days after written notice
thereof from the Administrative Agent to the Borrower;


 


(f) (i) Holdings,
the Borrower or any Subsidiary shall fail to pay any principal or interest,
regardless of amount, due in respect of any Material Indebtedness, when and as
the same shall become due and payable (after giving effect to an applicable
grace period), which failure enables or permits (with or without the giving of
notice, the lapse of time or both) the holder or holders of Material
Indebtedness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity or that is a
failure to pay such indebtedness at its maturity or (ii) any other event
or condition occurs that results in any Material Indebtedness becoming due
prior to its scheduled maturity or that enables or permits (with or without the
giving of notice, the lapse of time or both) the holder or holders of such
Material Indebtedness or any trustee or agent on its or their behalf to cause
any Material 


 


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Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity; provided, that
clause (ii) shall not apply to secured Material Indebtedness that becomes
due as a result of the voluntary sale or transfer of the property or assets
securing such Material Indebtedness; provided, further, that an Event of Default under
and as defined in the First Lien Credit Agreement (a “First Lien Event of Default”)
shall not in and of itself constitute an Event of Default under this paragraph
unless (x) such First Lien Event of Default shall not be cured or waived
within a period of 45 days following the occurrence thereof or (y) the
loans under the First Lien Credit Agreement accelerate or mature or the
commitments thereunder terminate as a result of such First Lien Event of
Default or the lenders, the administrative agent or the collateral agent under
the First Lien Credit Agreement exercise any remedies as a result of such First
Lien Event of Default;


 


(g) an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in respect
of Holdings, the Borrower or any Subsidiary, or of a substantial part of the
property or assets of Holdings, the Borrower or a Subsidiary, under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other Federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any Subsidiary or
for a substantial part of the property or assets of Holdings, the Borrower or a
Subsidiary or (iii) the winding-up or liquidation of Holdings, the
Borrower or any Subsidiary; and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered;


 


(h) Holdings,
the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of any proceeding or the filing of any petition
described in (g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
Holdings, the Borrower or any Subsidiary or for a substantial part of the
property or assets of Holdings, the Borrower or any Subsidiary, (iv) file
an answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its general inability or
fail generally to pay its debts as they become due or (vii) take any
action for the purpose of effecting any of the foregoing;


 


(i) one or
more judgments for the payment of money in an aggregate amount exceeding $25,000,000
shall be rendered against Holdings, the Borrower, any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of 60 consecutive
days during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor 


 


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to levy upon assets or properties of
Holdings, the Borrower or any Subsidiary to enforce any such judgment;


 


(j) an ERISA
Event shall have occurred that, when taken together with all other ERISA Events,
could reasonably be expected to result in liability of the Borrower and the
Subsidiaries in an aggregate amount exceeding $25,000,000;


 


(k) any
Guarantee under the Guarantee and Collateral Agreement for any reason shall
cease to be in full force and effect (other than in accordance with its terms
or in accordance with the terms of the other Loan Documents), or any Guarantor
shall deny in writing that it has any further liability under the Guarantee and
Collateral Agreement (other than as a result of the discharge of such Guarantor
in accordance with the terms of the Loan Documents); or


 


(l) other than
with respect to de minimis items
of Collateral not exceeding $1 million in the aggregate, any Lien
purported to be created by any Security Document shall cease to be, or shall be
asserted in writing by any Loan Party not to be, a valid, perfected, second priority
(except as otherwise expressly provided in this Agreement or such Security
Document) Lien on the securities, assets or properties purported to be covered
thereby, except to the extent that any such loss of perfection or priority
results from the failure of the Collateral Agent as defined in the First Lien
Credit Agreement to maintain possession of certificates representing securities
pledged under the First Lien Guarantee and Collateral Agreement or the failure
of the Collateral Agent to file or record any document delivered to it for
filing or recording;


 


then, and in
every such event (other than an event with respect to Holdings or the Borrower
described in paragraph (g) or (h) above), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either
or both of the following actions, at the same or different
times:  (i) terminate forthwith the Commitments and
(ii) declare the Loans then outstanding to be forthwith due and payable in
whole or in part, whereupon the principal of the Loans so declared to be due
and payable, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of the Borrower accrued hereunder and under any other
Loan Document, shall become forthwith due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein or in any other
Loan Document to the contrary notwithstanding; and in any event with respect to
Holdings or the Borrower described in paragraph (g) or (h) above, the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and any unpaid accrued Fees and all
other liabilities of the Borrower accrued hereunder and under any other Loan
Document, shall automatically become due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein or in any other
Loan Document to the contrary notwithstanding.


 


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Notwithstanding anything to the contrary contained in this Article VII,
in the event that the Borrower fails to comply with the requirements of the financial
covenant set forth in Section 6.10 as of the end of any fiscal quarter,
Holdings shall have the right (the “Cure Right”)
(at any time during such fiscal quarter or thereafter until the date that is
20 days after the date the certificate calculating such financial covenant
is required to be delivered pursuant to Section 5.04(c)) to (i) issue
Qualified Capital Stock for cash or otherwise receive cash contributions to the
common equity of Holdings and (ii) contribute the Net Cash Proceeds
therefrom (the “Cure Amount”) to the Borrower
as common equity (which proceeds are Not Otherwise Applied), and thereupon such
financial covenants shall be recalculated giving effect to the following pro
forma adjustments: (i) Consolidated EBITDA shall be increased, for all purposes
of this Agreement (other than the computation of Total Leverage Ratio for the
purposes of determining Applicable Percentage, CECF Percentage and ECF
Percentage), including determining compliance or Pro Forma Compliance with
Section 6.10 as of the end of such fiscal quarter and applicable subsequent
periods that include such fiscal quarter by an amount equal to the Cure Amount;
and (ii) if, after giving effect to the foregoing recalculations (but not,
for the avoidance doubt, taking into account any repayment of Indebtedness in
connection therewith), the requirements of such financial covenant shall be
satisfied, then the requirements of such financial covenant shall be deemed
satisfied 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 such financial covenant that had occurred shall
be deemed cured for the purposes of this Agreement. Notwithstanding anything
herein to the contrary, (x) in each four fiscal quarter period there shall
be a period of at least one fiscal quarter in which the Cure Right is not
exercised, (y) the Cure Amount shall be no greater than the amount
required for purposes of complying with such financial covenant and (z) upon
Administrative Agent’s receipt of a notice from Holdings or the Borrower that
Holdings intends to exercise the Cure Right, until the 20th day following date
of delivery of the certificate under Section 5.04(c), none of Administrative
Agent or any Lender shall exercise the right to accelerate the Loans or
terminate the Commitments and none of Administrative Agent, Collateral Agent or
any other Lender or Secured Party shall exercise any right to foreclose on or
take possession of the Collateral solely on the basis of an Event of Default
having occurred and being continuing under Section 6.10.


 


ARTICLE VIII



The Administrative Agent and the Collateral Agent


 


Each of the Lenders hereby irrevocably appoints the Administrative
Agent and the Collateral Agent (the Administrative Agent and the Collateral
Agent are referred to collectively as the “Agents”)
its agent and authorizes the Agents to take such actions on its behalf and to
exercise such powers as are delegated to such Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental
thereto. Without limiting the generality of the foregoing, the Agents are
hereby expressly authorized to execute any and all documents (including
releases) with respect to the Collateral and the rights of the Secured Parties
with respect thereto, as contemplated by and in accordance with the provisions
of this Agreement and the Security Documents. 


 


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The Lenders acknowledge and agree that the Collateral Agent shall also
act, subject to and in accordance with the terms of the Intercreditor
Agreement, as the collateral agent for the lenders under the First Lien Credit
Agreement.


 


The bank serving as the Administrative Agent and/or the Collateral
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not an
Agent, and such bank and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of business with Holdings, the Borrower or any
Subsidiary or other Affiliate thereof as if it were not an Agent hereunder.


 


Neither Agent shall have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) neither Agent shall be subject to any fiduciary or other
implied duties, regardless of whether a Default or Event of Default has
occurred and is continuing, (b) neither Agent shall have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that such Agent is instructed
in writing to exercise by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.08), and (c) except as expressly set forth in the Loan
Documents, neither Agent shall have any duty to disclose, nor shall it be
liable for the failure to disclose, any information relating to Holdings, the
Borrower or any of the Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent and/or Collateral Agent or any of its
Affiliates in any capacity. Neither Agent shall be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.08) or in the absence of its
own gross negligence, bad faith or willful misconduct or material breach of the
Loan Documents. Neither Agent shall be deemed to have knowledge of any Default
or Event of Default unless and until written notice thereof is given to such
Agent by Holdings, the Borrower or a Lender, and neither Agent shall be
responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth
in Article IV or elsewhere in any Loan Document, other than to confirm
receipt of items expressly required to be delivered to such Agent.


 


Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper person. Each Agent may also rely
upon any statement made to it orally or by telephone and believed by it to have
been made by the proper person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for the
Borrower or any Affiliate thereof), independent accountants and other 


 


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experts selected by it, and shall not be liable for any action taken or
not taken by it in good faith and in accordance with the advice of any such
counsel, accountants or experts.


 


Each Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by it. Each Agent
and any such sub-agent may perform any and all its duties and exercise its
rights and powers by or through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of each Agent and any such sub-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 Agent.


 


Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying in writing the
Lenders and the Borrower. Upon receipt of any such notice of resignation of the
Administrative Agent or the Collateral Agent, the Required Lenders shall have
the right, with the consent of the Borrower (such consent not to be
unreasonably withheld, and provided that
no such consent of the Borrower shall be required if an Event of Default has
occurred and is continuing under clauses (g)(i) or (h) of Article VII), to
appoint a successor which shall be a commercial banking institution organized
under the laws of the United States or any State or a United States branch or
agency of a commercial banking institution, in each case having a combined
capital and surplus of at least $500,000,000 and which shall otherwise be approved
by the Borrower, such approval not to be unreasonably withheld or delayed (and
shall not be required if an Event of Default has occurred and is continuing
under clause (g)(i) or (h) of Article VII). Upon the acceptance of its
appointment as Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After an Agent’s resignation
hereunder, the provisions of this Article and Section 9.05 shall continue
in effect for the benefit of such retiring Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while acting as Agent.


 


Each Arranger, in its capacity as such, shall have no duties or
responsibilities, and shall incur no liability, under this Agreement or any
other Loan Document.


 


Each Lender acknowledges that it has, independently and without
reliance upon the Agents, the Arrangers or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agents,
the Arrangers or any other Lender and based on such documents and information
as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement or
any other Loan Document, any related agreement or any document furnished
hereunder or thereunder.


 


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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
which 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.


 


ARTICLE IX



Miscellaneous


 


SECTION 9.01. Notices. Notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by fax, as follows:


 


(a)   if to the Borrower or
Holdings, to it at 21050 140th Street, Iowa Falls, IA 50126,
Attention of: J.D. Schlieman and Tim Callahan (Fax No. (641) 648-8925)),
cc: (which shall not constitute notice) Angela Fontana, Esq., Weil, Gotshal
& Manges, LLP, 200 Crescent Court, Suite 300, Dallas, TX
75201;


 


(b)   if to Credit Suisse as an
Agent, to Credit Suisse, Eleven Madison Avenue, New York, NY 10010, Attention
of Agency Group (Fax No. (212) 325-8304); and


 


(c)   if to a Lender, to it at
its address (or fax number) set forth on Schedule 2.01 or in the Assignment and
Acceptance pursuant to which such Lender shall have become a party hereto.


 


All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by fax or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance
with the latest unrevoked direction from such party given in accordance with
this Section 9.01. As agreed to among Holdings, the Borrower, the
Administrative Agent and the applicable Lenders from time to time in writing, notices
and other communications may also be delivered or furnished by e-mail; provided, that the foregoing shall not apply to notices
pursuant to Article II or to compliance and no Event of Default certificates delivered
pursuant to Section 5.04(c) unless otherwise agreed by the Applicable Agent; provided, further, that
approval of such procedures may be limited to particular notices or
communications. All such notices and other communications sent to an e-mail
address shall be deemed received upon the sender’s 


 


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receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement); provided, that if not given during the normal business hours of the
recipient, such notice or communication shall be deemed to have been given at
the opening of business on the next Business Day for the recipient.


 


SECTION 9.02. Survival of Agreement.
All covenants, agreements, representations and warranties made by the Borrower
or Holdings herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Loan
Document, shall be considered to have been relied upon by the Lenders and shall
survive the making by the Lenders of the Loans, regardless of any investigation
made by the Lenders or on their behalf, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
Fee or any other amount payable under this Agreement or any other Loan Document
is outstanding and unpaid and so long as the Commitments have not been
terminated. The provisions of Sections 2.14, 2.16, 2.20 and 9.05 shall
remain operative and in full force and effect regardless of the expiration of
the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitments,
the invalidity or unenforceability of any term or provision of this Agreement
or any other Loan Document, or any investigation made by or on behalf of the
Administrative Agent, the Collateral Agent or any Lender.


 


SECTION 9.03. Binding Effect. This
Agreement shall become effective when it shall have been executed by the
Borrower, Holdings and the Administrative Agent and when the Administrative
Agent shall have received counterparts hereof which, when taken together, bear
the signatures of each of the other parties hereto.


 


SECTION 9.04. Successors and Assigns.
(a)  Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the Borrower, Holdings, the Administrative
Agent, the Collateral Agent or the Lenders that are contained in this Agreement
shall bind and inure to the benefit of their respective successors and assigns.


 


(b)   Each Lender may assign to
one or more assignees all or a portion of its interests, rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans at the time owing to it); provided, however, that (i) each of the Administrative Agent and
the Borrower must give its prior written consent to such assignment (which
consent shall not be unreasonably withheld or delayed), provided,
that the consent of the Borrower shall not be required to any such
assignment (A) made to a Lender (other than to Disqualified Institutions)
or an Affiliate or Related Fund of a Lender (other than to Disqualified Institutions)
or (B) during the continuance of any Event of Default arising under paragraph (b),
(c), (g)(i), or (h) of Article VII, (ii) (A) in the case of any
assignment, other than assignments to any Lender or any Affiliate or Related
Fund thereof, the amount of the Commitment or Loans of the assigning Lender
subject to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) 


 


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shall not be less than
$1,000,000 (or if less, the entire remaining amount of such Lender’s Commitment
or Loans) and shall be in an amount that is an integral multiple of $1,000,000
(or the entire remaining amount of such Lender’s Commitment or Loans), provided, however, that
simultaneous assignments to two or more Related Funds shall be combined for
purposes of determining whether the minimum assignment requirement is met, and
(B) in the case of any assignment to a Lender (other than to Disqualified Institutions)
or any Affiliate or Related Fund thereof (other than to Disqualified Institutions),
after giving effect to such assignment, the aggregate Commitments or Loans, as
applicable, of the assigning Lender and its Affiliates and Related Funds shall
be zero or not less than $1,000,000 and the aggregate Commitments or Loans, as
applicable, of the assignee Lenders and their Affiliates and Related Funds
shall be not less than $1,000,000, (iii) the parties to each such
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance (such Assignment and Acceptance to be (A) electronically
executed and delivered to the Administrative Agent via an electronic settlement
system then acceptable to the Administrative Agent (or, if previously agreed
with the Administrative Agent, manually), and (B) delivered together with
a processing and recordation fee of $3,500, unless waived or reduced by the Administrative
Agent in its sole discretion, provided, that
only one such fee shall be payable in connection with simultaneous assignments
by or to two or more Related Funds) and (iv) the assignee, if it shall not
be a Lender immediately prior to the assignment, shall deliver to the
Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.04, from and
after the effective date specified in each Assignment and Acceptance,
(A) the assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement and (B) the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of
an assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.16, 2.20 and 9.05 with respect to facts and
circumstances occurring prior to the effective date of such assignment, as well
as to any Fees accrued for its account and not yet paid). Any assignment or
transfer that does not comply with this paragraph shall be treated for purposes
of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (f) of this Section 9.04.


 


(c)   By executing and delivering
an Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and the
other parties hereto as follows:  (i) such assigning Lender
warrants that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim and that its Commitment or
the outstanding balances of its Loans, in each case without giving effect to
assignments thereof which have not become effective, are as set forth in such
Assignment and Acceptance, (ii) except as set forth in (i) above,
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, 


 


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enforceability, genuineness,
sufficiency or value of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto, or the financial condition of
Holdings, the Borrower or any Subsidiary or the performance or observance by
Holdings, the Borrower or any Subsidiary of any of its obligations under this
Agreement, any other Loan Document or any other instrument or document
furnished pursuant hereto; (iii) such assignee represents and warrants
that it is legally authorized to enter into such Assignment and Acceptance;
(iv) such assignee confirms that it has received a copy of this Agreement,
together with copies of the most recent financial statements referred to in
Section 3.05(a) or delivered pursuant to Section 5.04, the
Intercreditor Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and
without reliance upon the Administrative Agent, the Collateral Agent, such
assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement;
(vi) such assignee agrees to be bound by the terms of the Intercreditor
Agreement; (vii) such assignee appoints and authorizes the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement as are delegated to the
Administrative Agent and the Collateral Agent, respectively, by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(viii) such assignee agrees that it will perform in accordance with their
terms all the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.


 


(d)   The Administrative Agent,
acting for this purpose as an agent of the Borrower, shall maintain at one of
its offices in The City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses
of the Lenders and any changes thereto, whether by assignment or otherwise, and
the Commitment of, and principal amount of the Loans (and related interest
amount and fees with respect to such Loan) owing and paid to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be
conclusive and the Borrower, the Administrative Agent, the Collateral Agent and
the Lenders may treat each person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Collateral Agent and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.


 


(e)   Upon its receipt of, and
consent to, a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, an Administrative Questionnaire completed in respect of
the assignee (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) above, if
applicable, and the written consent of the Administrative Agent and the
Borrower to such assignment (in each case to the extent required pursuant to
paragraph (b) above) and any applicable tax forms, the Administrative
Agent shall (i) accept such Assignment and Acceptance and (ii) promptly
record the information contained therein in the Register. No 


 


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assignment shall be effective
unless it has been recorded in the Register as provided in this
paragraph (e).


 


(f)   Each Lender may without the
consent of the Borrower or the Administrative Agent sell participations to one
or more banks or other persons (other than to Disqualified Institutions) in all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans owing to it); provided,
however, that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) the participating banks or other persons shall
be entitled to the benefit of the cost protection provisions contained in
Sections 2.14, 2.16 and 2.20 to the same extent as if they were Lenders
(but, with respect to any particular participant, to no greater extent than the
Lender that sold the participation to such participant and in the case of
Section 2.20, only if such participant shall have provided any form of
information that it would have been required to provide under such Section if
it were a Lender), (iv) such Lender shall maintain a Register
substantially in the form described in Section 9.04(d) (the “Participant
Register”) and (v) the Borrower, the Administrative Agent and the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrower relating to
the Loans and to approve any amendment, modification or waiver of any provision
of this Agreement (other than amendments, modifications or waivers decreasing
any fees payable to such participating bank or person hereunder or the amount
of principal of or the rate at which interest is payable on the Loans in which
such participating bank or person has an interest, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans
in which such participating bank or person has an interest, increasing or
extending the Commitments in which such participating bank or person has an
interest or releasing any Guarantor (other than in connection with the sale of
such Guarantor in a transaction permitted by Section 6.05) or all or
substantially all of the Collateral). Each Lender selling a participation to a
participant (i) shall keep a register, meeting the requirements of Treasury
Regulation Section 5f.103-1(c), of each such participation, specifying such
participant’s entitlement to payments of principal and interest with respect to
such participation, and (ii) shall provide the Administrative Agent and the
Borrower with the applicable forms, certificates and statements described in
Section 2.20(e) hereof, prior to the times such participant receives payments
with respect to such participation, as if such participant was a Lender
hereunder.


 


(g)   Any Lender or participant
may, in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 9.04, disclose to the assignee
or participant or proposed assignee or participant any information relating to
the Borrower furnished to such Lender by or on behalf of the Borrower; provided, that prior to any such disclosure of information
designated by the Borrower as confidential, each such assignee or participant
or proposed assignee or participant shall execute an agreement whereby such assignee
or participant shall agree (subject to customary exceptions) to preserve the
confidentiality of such confidential information on terms no less restrictive
than those applicable to the Lenders pursuant to Section 9.16.


 


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(h)   Any Lender may at any time
assign all or any portion of its rights under this Agreement to secure
extensions of credit to such Lender or in support of obligations owed by such
Lender; provided, that no such assignment shall
release a Lender from any of its obligations hereunder or substitute any such
assignee for such Lender as a party hereto.


 


(i)   Notwithstanding anything to
the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding
vehicle (an “SPC”),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower
all or any part of any Loan that such Granting Lender would otherwise be
obligated to make to the Borrower pursuant to this Agreement; provided, that (i) nothing herein shall constitute
a commitment by any SPC to make any Loan and (ii) if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of such Loan,
the Granting Lender shall be obligated to make such Loan pursuant to the terms
hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent, and as if, such Loan were made by
such Granting Lender. Each party hereto hereby agrees that (i) neither the
grant to any SPC nor the exercise by any SPC of such option shall increase the
costs or expenses or otherwise increase or change the obligations of the
Borrower hereunder and (ii) no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender) and (iii) the Granting Lender shall for all purposes
remain the Lender of record hereunder. In addition, notwithstanding anything to
the contrary contained in this Section 9.04, any SPC may (i) with notice
to, but without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Loans to the Granting Lender and
(ii) disclose on a confidential basis any non-public information relating
to its funding of Loans to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancement to such
SPC.


 


(j)   Neither Holdings nor the
Borrower shall assign or delegate any of its rights or duties hereunder (other
than in a transaction permitted by Section 6.05(a)) without the prior
written consent of the Administrative Agent and each Lender, and any attempted
assignment without such consent shall be null and void.


 


SECTION 9.05. Expenses; Indemnity. (a)  The Borrower and Holdings agree, jointly and
severally, to pay all reasonable out-of-pocket expenses incurred by the
Arrangers, the Administrative Agent and the Collateral Agent in connection with
the syndication of the Credit Facility and the preparation and administration
of this Agreement and the other Loan Documents or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby or thereby contemplated shall be
consummated) or incurred by the Arrangers, the Administrative Agent, the
Collateral Agent or any Lender in connection with the enforcement or protection
of its rights in connection with this Agreement and the other Loan Documents or
in connection with the Loans made hereunder, including reasonable fees,
disbursements and other charges of Cravath, Swaine & Moore LLP,
counsel for the Administrative Agent and the Collateral Agent, and, in
connection with 


 


89

















 


any such enforcement or protection,
reasonable fees, disbursements and other charges of one outside counsel and one
local counsel in any jurisdiction as the Arrangers, the Administrative Agent,
the Collateral Agent or any Lender determine to be reasonably necessary.


 


(b)   The Borrower and Holdings
agree, jointly and severally, to indemnify each Arranger, the Administrative
Agent, the Collateral Agent, each Lender and each Related Party of any of the
foregoing persons and their successors and assigns (each such person being
called an “Indemnitee”)
against, and to hold each Indemnitee harmless from, any and all costs, expenses
(including reasonable fees, out-of-pocket disbursements and other charges of
one primary counsel and one local counsel to the Indemnitees taken as a whole
in each relevant jurisdiction; provided, that
if (a) one or more Indemnitees shall have reasonably concluded that there
may be legal defenses available to it that are different from or in addition to
those available to one or more other Indemnitees or (b) the representation
of the Indemnitees (or any portion thereof) by the same counsel would be
inappropriate due to actual or potential differing interests between them, then
such expenses shall include the reasonable fees, out-of-pocket disbursements
and other charges of one separate counsel to such Indemnitees, taken as a whole,
in each relevant jurisdiction, and liabilities of such Indemnitee arising out
of or in connection with (i) the execution or delivery of this Agreement
or any other Loan Document or any agreement or instrument contemplated thereby,
the performance by the parties thereto of their respective obligations thereunder
or the consummation of the Transactions and the other transactions contemplated
thereby (including the syndication of the Credit Facility), (ii) the use
of the proceeds of the Loans, (iii) any claim, litigation, investigation
or proceeding relating to any of the foregoing, whether or not any Indemnitee
is a party thereto (and regardless of whether such matter is initiated by a
third party or by the Borrower, any other Loan Party or any of their respective
Affiliates), or (iv) any actual or alleged presence or Release of
Hazardous Materials on any property currently or formerly owned or operated by
Holdings, the Borrower or any of the Subsidiaries, or any Environmental
Liability related in any way to Holdings, the Borrower or the Subsidiaries; provided, that such indemnity shall not, as to any
Indemnitee, be available to the extent that such costs, expenses or liabilities
resulted from the gross negligence, bad faith or willful misconduct of such
Indemnitee (or its Related Parties) or material breach of its (or its Related
Parties’) obligations hereunder or relate to the presence or Release of
Hazardous Materials that first occur at any property owned by Holdings or the
Borrower after such property is transferred to any Indemnitee or its successors
or assigns by foreclosure, deed-in-lieu of foreclosure or similar transfer.


 


(c)   To the extent that Holdings
and the Borrower fail to pay any amount required to be paid by them to the
Administrative Agent or the Collateral Agent under paragraph (a) or (b) of
this Section, each Lender severally agrees to pay to the Administrative Agent
or the Collateral Agent, as the case may be, such Lender’s pro rata share
(determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided,
that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Collateral Agent in its 


 


90

















 


capacity as such. For purposes
hereof, a Lender’s “pro rata share” shall be determined based upon its share of
the Loans at the time.


 


(d)   To the extent permitted by
applicable law, no party hereto shall assert, and each party hereto hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the Transactions
or any Loan or the use of the proceeds thereof.


 


(e)   The provisions of this
Section 9.05 shall survive the expiration of the term of this Agreement,
the consummation of the transactions contemplated hereby, the repayment of any
of the Loans, the expiration of the Commitments, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative
Agent, the Collateral Agent or any Lender. All amounts due under this
Section 9.05 shall be payable within 30 days after written demand
therefor.


 


SECTION 9.06. Right of Setoff. If
an Event of Default shall have occurred and be continuing, each Lender is hereby
authorized at any time and from time to time, except to the extent prohibited
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of the Borrower
or Holdings against any of and all the obligations of the Borrower or Holdings
now or hereafter existing under this Agreement and other Loan Documents held by
such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement or such other Loan Document and although such
obligations may be unmatured. The rights of each Lender under this
Section 9.06 are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.


 


SECTION 9.07. Applicable Law. THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN
OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.


 


SECTION 9.08. Waivers; Amendment. (a)  No failure or delay of the Administrative
Agent, the Collateral Agent or any Lender in exercising any power or right
hereunder or under any other Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the
Collateral Agent and the Lenders hereunder and under the other Loan Documents
are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by the Borrower or any other Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective
only in the 


 


91

















 


specific instance and for the purpose for
which given. No notice or demand on the Borrower or Holdings in any case shall
entitle the Borrower or Holdings to any other or further notice or demand in similar
or other circumstances.


 


(b)   Neither this Agreement nor
any other Loan Document nor any provision hereof or thereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Required Lenders and the Loan Parties that are party
thereto and are affected by such waiver, amendment or modification; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend
the maturity of or any scheduled principal payment date or date for the payment
of any interest on any Loan, or waive or forgive any such payment or any part
thereof, or decrease any prepayment premium payable under Section 2.11 or 2.12(b)
or the rate of interest on any Loan, without the prior written consent of each
Lender directly adversely affected thereby (it being understood that any change
to the component definitions of the financial covenants contained in
Article VI shall only require the consent of the Borrower and the Required
Lenders), (ii) increase or extend the Commitment or decrease or
extend the date for payment of any Fees of any Lender without the prior written
consent of such Lender, (iii) amend or modify the pro rata
requirements of Section 2.17, the provisions of Section 9.04(j) (it being
understood that any change to Section 6.05 shall only require approval of
the Required Lenders) or the provisions of this Section (except as set forth
below) or release all or substantially all of the Guarantors or all or
substantially all of the Collateral (except as permitted in the Intercreditor
Agreement), without the prior written consent of each
Lender, (iv) modify the protections afforded to an SPC pursuant to
the provisions of Section 9.04(i) without the written consent of such SPC
or (v) reduce the percentage contained in the definition of the term “Required
Lenders” without the prior written consent of each Lender (it being understood
that with the consent of the Required Lenders, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Lenders on substantially the same basis as the Commitments and extensions of
credit thereunder on the date hereof and this Section may be amended to reflect
such extension of credit); provided, further, that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent or the
Collateral Agent hereunder or under any other Loan Document without the prior
written consent of the Administrative Agent or the Collateral Agent.


 


SECTION 9.09. Interest Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the interest
rate applicable to any Loan, together with all fees, charges and other amounts
which are treated as interest on such Loan under applicable law (collectively
the “Charges”),
shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section 9.09 shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the 


 


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Maximum Rate therefor) until such cumulated
amount shall have been received by such Lender.


 


SECTION 9.10. Entire Agreement. This
Agreement, the Fee Letter and the other Loan Documents constitute the entire
contract between the parties relative to the subject matter hereof. Any other
previous agreement among the parties with respect to the subject matter hereof
is superseded by this Agreement and the other Loan Documents. Nothing in this
Agreement or in the other Loan Documents, expressed or implied, is intended to
confer upon any person (other than the parties hereto and thereto, their
respective successors and assigns permitted hereunder and, to the extent
expressly contemplated hereby, the Indemnitees, the Arrangers, the Related
Parties of each of the Administrative Agent, the Collateral Agent and the
Lenders) any rights, remedies, obligations or liabilities under or by reason of
this Agreement or the other Loan Documents.


 


SECTION 9.11. WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 9.11.


 


SECTION 9.12. Severability. In the
event any one or more of the provisions contained in this Agreement or in any
other Loan Document should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired thereby
(it being understood that the invalidity of a particular provision in a
particular jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction). The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.


 


SECTION 9.13. Counterparts. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original but all of
which when taken together shall constitute a single contract, and shall become
effective as provided in Section 9.03. Delivery of an executed signature
page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually signed counterpart of this Agreement.


 


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SECTION 9.14. Headings. Article and
Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Agreement.


 


SECTION 9.15. Jurisdiction; Consent to Service of
Process. (a)  Each of
Holdings and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York
State court or Federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
New York State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that the Administrative Agent, the Collateral
Agent or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents against the Borrower,
Holdings or their respective properties in the courts of any jurisdiction.


 


(b)   Each of Holdings and the
Borrower hereby irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.


 


(c)   Each party to this
Agreement irrevocably consents to service of process in the manner provided for
notices in Section 9.01. Nothing in this Agreement will affect the right
of any party to this Agreement to serve process in any other manner permitted
by law.


 


SECTION 9.16. Confidentiality. Each
of the Administrative Agent, the Collateral Agent and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ officers,
directors, employees and agents, including accountants, legal counsel and other
advisors (it being understood that the persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential) in connection with the transactions
contemplated or permitted hereby, (b) to the extent requested by any
regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process (provided, that
the Administrative Agent, Collateral Agent or Lender that discloses
any Information pursuant to this clause (c) shall provide Borrower and Holdings
with prompt notice of such disclosure to the extent permitted by applicable
law), (d) to the extent reasonably necessary in connection with the
exercise of any remedies hereunder or under the other 


 


94

















 


Loan Documents or any suit, action or
proceeding relating to the enforcement of its rights hereunder or thereunder,
(e) subject to an agreement containing provisions substantially the same
as those of this Section 9.16 (or as otherwise may be acceptable to
Borrower and Holdings), to (i) any actual or prospective assignee of or
participant in any of its rights or obligations under this Agreement and the
other Loan Documents or (ii) any actual or prospective counterparty (or
its advisors) to any swap or derivative transaction relating to Holdings, the
Borrower, any Subsidiary or any Affiliate thereof or any of their respective
obligations, (f) with the written consent of Holdings or the Borrower or
(g) to the extent such Information becomes publicly available other than
as a result of a breach of this Section 9.16. For the purposes of this
Section, “Information” shall mean
all information received from the Borrower or Holdings and related to the
Borrower or Holdings or their business, other than any such information that is
publicly available to the Administrative Agent, the Collateral Agent or any
Lender, other than by reason of disclosure by Administrative Agent, the
Collateral Agent or any Lender. Any person required to maintain the
confidentiality of Information as provided in this Section 9.16 shall be
considered to have complied with its obligation to do so if such person has
exercised the same degree of care to maintain the confidentiality of such
Information as such person would accord its own confidential information.


 


SECTION 9.17. USA PATRIOT Act Notice.
Each Lender and the Administrative Agent (for itself and not on behalf of any
Lender) hereby notifies Holdings and the Borrower that pursuant to the
requirements of the USA PATRIOT Act, it is required to obtain, verify and
record information that identifies Holdings and the Borrower, which information
includes the name and address of Holdings and the Borrower and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify Holdings and the Borrower in accordance with the USA
PATRIOT Act.


 


SECTION 9.18. Intercreditor Agreement.
REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT DATED AS OF JUNE 30, 2006
(AS AMENDED, RESTATED, AMENDED AND RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED
FROM TIME TO TIME, THE “INTERCREDITOR AGREEMENT”),
AMONG THE BORROWER, HOLDINGS, THE SUBSIDIARIES OF THE BORROWER PARTY THERETO,
CREDIT SUISSE, AS FIRST LIEN COLLATERAL AGENT (AS DEFINED THEREIN), AND CREDIT
SUISSE, AS SECOND LIEN COLLATERAL AGENT (AS DEFINED THEREIN). EACH LENDER
HEREUNDER (A) ACKNOWLEDGES THAT IT HAS RECEIVED A COPY OF THE
INTERCREDITOR AGREEMENT, (B) CONSENTS TO THE SUBORDINATION OF LIENS
PROVIDED FOR IN THE INTERCREDITOR AGREEMENT, (C) AGREES THAT IT WILL BE
BOUND BY AND WILL TAKE NO ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR
AGREEMENT AND (D) AUTHORIZES AND INSTRUCTS THE COLLATERAL AGENT TO ENTER
INTO THE INTERCREDITOR AGREEMENT AS COLLATERAL AGENT AND ON BEHALF OF SUCH
LENDER. THE FOREGOING PROVISIONS ARE INTENDED AS AN INDUCEMENT TO THE LENDERS
UNDER THE FIRST LIEN CREDIT AGREEMENT TO EXTEND CREDIT TO THE BORROWER AND SUCH
LENDERS ARE INTENDED THIRD PARTY BENEFICIARIES OF SUCH PROVISIONS.


 


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[Remainder of
this page intentionally left blank]


 


96

















 


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


 


	
   

  	
  HAWKEYE INTERMEDIATE, LLC,

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
  /s/ Bruce Rastetter

  
	
   

  	
  Name: Bruce Rastetter

  
	
   

  	
  Title: Chief Executive Officer

  
	
   

  
	
   

  
	
   

  	
  THL-HAWKEYE ACQUISITION LLC,

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
  /s/ Bruce Rastetter

  
	
   

  	
  Name: Bruce Rastetter

  
	
   

  	
  Title: Chief Executive Officer

  
	
   

  
	
   

  
	
   

  	
  CREDIT SUISSE, CAYMAN ISLANDS

  BRANCH, individually and as

  Administrative Agent and Collateral Agent,

  
	
   

  	
   

  
	
   

  	
  by

  
	
   

  	
  /s/ James Moran

  
	
   

  	
  Name: James Moran

  
	
   

  	
  Title: Managing Director

  
	
   

  
	
   

  	
  by

  
	
   

  	
  /s/ Gregory S. Richards

  
	
   

  	
  Name: Gregory S. Richards

  
	
   

  	
  Title: Associate

  
				



 


97

















 


	
   

  	
  SIGNATURE PAGE TO THE

  	
   

  
	
   

  	
  HAWKEYE INTERMEDIATE, LLC

  	
   

  
	
   

  	
  SECOND LIEN CREDIT AGREEMENT

  	
   

  
	
   

  	
  DATED AS OF JUNE 30, 2006

  	
   

  
	
   

  
	
   

  
	
   

  	
  MORGAN STANLEY SENIOR FUNDING, INC.

  
	
   

  	
  as a Lender,

  
	
   

  
	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  /s/ John McCann

  
	
   

  	
   

  	
  Name: John McCann

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANC OF AMERICA BRIDGE LLC,

  
	
   

  	
  as a Lender,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  /s/ Robert Klawinski

  
	
   

  	
   

  	
  Name: Robert Klawinski

  
	
   

  	
   

  	
  Title: Senior Vice President

  
					



 














 


DISCLOSURE SCHEDULES


 


TO


 


SECOND
LIEN CREDIT AGREEMENT


 


AMONG


 


HAWKEYE
INTERMEDIATE, LLC,


 


THL —
HAWKEYE ACQUISITION LLC

(to be merged with and into HAWKEYE RENEWABLES, LLC),


 


THE
LENDERS PARTY HERETO


 


and


 


CREDIT
SUISSE,


 


as
Administrative Agent and Collateral Agent


 






 


CREDIT
SUISSE SECURITIES (USA) LLC


 


and


 


BANC OF
AMERICA SECURITIES LLC,


 


as
Joint Arrangers and Joint Bookrunners


 


 


 


Dated
as of June 30, 2006


 

















 


DISCLOSURE SCHEDULES


INTRODUCTION


These disclosure schedules
(the “Disclosure Schedules”) are attached to and form a part of the Second
Lien Credit Agreement, dated as of June 30, 2006 (as amended, restated, amended
and restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Hawkeye Intermediate, LLC, a Delaware limited liability
company (“Holdings”), THL—Hawkeye Acquisition LLC, a Delaware limited
liability company (“Merger Sub”) to be merged with and into Hawkeye
Renewables, LLC, a Delaware limited liability company (the “Company”),
the lenders thereto (the “Lenders”), and Credit Suisse, as administrative
agent (in such capacity, the “Administrative Agent”) and as collateral
agent (in such capacity, the “Collateral Agent”) for the Lenders.  Unless otherwise defined in these Disclosure
Schedules, all capitalized terms used herein shall have the meanings ascribed
to them in the Credit Agreement.


The Disclosure Schedules are
qualified in their entirety by reference to specific provisions of the Credit Agreement,
and are not intended to constitute, and shall not be construed as constituting,
representations or warranties of the Company except and to the extent provided
in the Credit Agreement.  If a disclosure
is made in one of the Disclosure Schedules, such disclosure shall be deemed to
have also been made in each other Disclosure Schedule to which such disclosure
relates, whether or not such Disclosure Schedule is cross-referenced, provided,
that it is readily apparent that such disclosure relates to such schedule.  Inclusion of information herein shall not be
construed as an admission that such information is material to the Company or
any of the Subsidiaries of the Company, or an admission of any obligation or
liability to any third party.


Any description of any
document included in these Disclosure Schedules is qualified in all respects by
reference to such document.  Headings and
text have been inserted on the Disclosure Schedules for convenience of
reference and description only and shall to no extent have the effect of
amending or changing the express description of any Disclosure Schedule as set
forth in the Credit Agreement.


 


 


1

















 


 


SCHEDULES


 


	
  Schedule 1.01(a)

  	
   

  	
  —

  	
   

  	
  Subsidiary Guarantors

  
	
  Schedule 1.01(b)

  	
   

  	
  —

  	
   

  	
  Mortgaged Property

  
	
  Schedule 1.01(c)

  	
   

  	
  —

  	
   

  	
  Disqualified Institutions

  
	
  Schedule 2.01

  	
   

  	
  —

  	
   

  	
  Lenders and Commitments

  
	
  Schedule 3.08

  	
   

  	
  —

  	
   

  	
  Subsidiaries

  
	
  Schedule 3.09

  	
   

  	
  —

  	
   

  	
  Litigation

  
	
  Schedule 3.17(a)

  	
   

  	
  —

  	
   

  	
  UCC Filing Offices

  
	
  Schedule 3.17(c)

  	
   

  	
  —

  	
   

  	
  Mortgage Filing Offices

  
	
  Schedule 3.18(a)

  	
   

  	
  —

  	
   

  	
  Owned Real Property

  
	
  Schedule 3.18(b)

  	
   

  	
  —

  	
   

  	
  Leased Real Property

  
	
  Schedule 4(d)

  	
   

  	
  —

  	
   

  	
  Local Counsel

  
	
  Schedule 6.01

  	
   

  	
  —

  	
   

  	
  Existing Indebtedness

  
	
  Schedule 6.02

  	
   

  	
  —

  	
   

  	
  Existing Liens

  



 


 


 


2

















 


Schedule
1.01(a)


Subsidiary
Guarantors


 


NONE


 


 


 


3

















 


Schedule
1.01(b)


Mortgaged
Property


 


	
  Name

  	
   

  	
   

  	
  Address of Owned Property

  	
   

  
	
  Hawkeye Renewables, LLC

  	
   

  	
  Iowa
  Falls Facility

  21050 140th Street

  Iowa Falls, IA 50126

  
	
  Hawkeye Renewables, LLC

  	
   

  	
  Fairbanks
  Facility

  1277 102nd Street

  Fairbanks, IA 50629

  



 


 


 


4

















 


Schedule
1.01(c)


Disqualified
Institutions


 


NONE


 


 


 


5

















 


Schedule
2.01


Lenders and Commitments


 


	
   

  	
  Lender

  	
   

  	
   

  	
   

  	
  Second Lien Term

  Loan Commitment

  	
   

  	
   

  
	
  Credit Suisse, Cayman Islands Branch

  	
   

  	
   

  	
  $ 56,250,000

  	
   

  	
   

  
	
  Banc of America Bridge LLC

  	
   

  	
   

  	
  $ 56,250,000

  	
   

  	
   

  
	
  Goldman Sachs Credit Partners L.P.

  	
   

  	
   

  	
  $ 30,000,000

  	
   

  	
   

  
	
  Morgan Stanley Senior Funding, Inc.

  	
   

  	
   

  	
  $  7,500,000

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
   

  	
  $150,000,000

  	
   

  	
   

  



 


 


 


6

















 


Schedule
3.08


Subsidiaries


 


	
  Name

  	
   

  	
   

  	
   

  	
  Subsidiary

  	
   

  	
   

  	
   

  	
  Ownership Percentage

  	
   

  
	
  Hawkeye Intermediate, LLC

  	
   

  	
  Hawkeye Renewables, LLC

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Hawkeye Renewables, LLC

  	
   

  	
  D&W Railroad, LLC(1)

  	
   

  	
  63.52%

  



 


 


 


 


 






(1)           36.48% owned by
Transco Railway Products, Inc.


 


 


 


7

















 


Schedule
3.09


Litigation


 


 


NONE


 


 


 


8

















 


Schedule
3.17(a)


UCC
Filing Offices


 


Delaware Secretary of State


 


Buchanan County, IA


 


Fayette County, IA


 


Hardin County, IA


 


 


 


9

















 


Schedule
3.17(c)


Mortgage
Filing Offices


 


Buchanan County, IA


 


Fayette County, IA


 


Hardin County, IA


 


 


 


10

















 


Schedule
3.18(a)


Owned
Real Property


 


 


	
  Name

  	
   

  	
   

  	
  Address of Owned Property

  	
   

  
	
  Hawkeye Renewables, LLC

  	
   

  	
  Iowa
  Falls Facility

  21050 140th Street

  Iowa Falls, IA 50126

  
	
  Hawkeye Renewables, LLC

  	
   

  	
  Fairbanks
  Facility

  1277 102nd Street

  Fairbanks, IA 50629

  



 


11

















 


Schedule
3.18(b)


Leased
Real Property


 


NONE


 


 


 


12

















 


Schedule
4(d)


Local
Counsel


 


Thomas D. Johnson


BrownWinick


666 Grand Avenue, Suite 2000


Des Moines, IA 50309


Direct Dial: (515) 242-2414


Direct Facsimile: (515) 323-8514


Email: johnson@ialawyers.com


 


 


 


13

















 


Schedule
6.01


Existing
Indebtedness


 


NONE


 


 


 


14

















 


Schedule
6.02


Existing
Liens


 


	
  Jurisdiction

  	
   

  	
  Debtor
  and Address

  	
   

  	
  Secured
  Party and

  Address

  	
   

  	
  File Date

  	
   

  	
  File Number

  	
   

  	
  Type

  	
   

  	
  Collateral

  
	
  Hawkeye
  Renewables, LLC

  
	
  Delaware Secretary of State

  	
   

  	
  Hawkeye Renewables, LLC

  1277 - 102nd Street

  Fairbanks, IA 50629

  	
   

  	
  Bankers Leasing Company

  10052 Justin Dr, Suite A

  Urbandale, IA 50322



  	
   

  	
  03/07/06

  	
   

  	
  60780213

  	
   

  	
  UCC-1

  	
   

  	
  Equipment

  
	
  Delaware Secretary of State

  	
   

  	
  Hawkeye Renewables, LLC

  21050 140th Street

  Iowa Falls, IA 50126

  	
   

  	
  Deere Credit Inc.

  6400 NW 86th Street

  Johnston, IA 50131



  	
   

  	
  04/04/06

  	
   

  	
  61119577

  	
   

  	
  UCC-1

  	
   

  	
  John Deere Equipment owned
  by Secured Party

  
	
  

  THL-Hawkeye Acquisition LLC



  
	
  

  None.



  
	
  

  Hawkeye Intermediate, LLC



  
	
  

  None.



  



 


 


15

















 


 


EXHIBIT A


to the Second Lien Credit Agreement


 


FORM OF


ADMINISTRATIVE QUESTIONNAIRE


HAWKEYE RENEWABLES, LLC


	
  Agent Information

  	
   

  	
   

  	
  Agent Closing Contact

  	
   

  
	
  Credit Suisse

  	
   

  	
   

  
	
  Eleven Madison Avenue

  	
   

  	
  Tel:

  
	
  New York, NY 10010

  	
   

  	
  Fax:

  
	
   

  	
   

  	
  E-Mail:

  



 


	
  Agent Wire Instructions

  	
   

  	
   

  
	
  Bank of New York

  	
   

  	
   

  
	
  ABA 021000018

  	
   

  	
   

  
	
  Account Name:

  	
   

  	
   

  
	
  Account Number:

  	
   

  	
   

  



It is very important that all
of the requested information be completed accurately and that this
questionnaire be returned promptly.  If
your institution is sub-allocating its allocation, please fill out an
administrative questionnaire for each legal entity.


	
  Legal Name of Lender to appear in Documentation:

  
	
   

  
	
   

  
	
  Signature Block Information:

  	
   

  
	
   

  	
   

  
	
   

  	
  •

  	
  Signing Credit Agreement

  	
  o Yes

  	
  o No

  
	
   

  	
  •

  	
  Coming in via Assignment

  	
  o Yes

  	
  o No

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Type of Lender:

  	
   

  
							



(Bank, Asset Manager, Broker/Dealer, CLO/CDO; Finance
Company, Hedge Fund, Insurance, Mutual Fund, Pension Fund, Other Regulated
Investment Fund, Special Purpose Vehicle, Other-please specify)


	
  Lender Parent:

  	
   

  



 


	
   

  	
  Lender Domestic Address

  	
   

  	
   

  	
   

  	
  Lender Eurodollar Address

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  



  	
   

  	
   

  
	
  



  	
   

  	
   

  



 


 


A-1

















 


Contacts/Notification
Methods:  Borrowings, Paydowns, Interest,
Fees, etc.


 


	
   

  	
   

  	
   

  	
  Primary Credit Contact

  	
   

  	
   

  	
   

  	
  Secondary Credit Contact

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Company:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E-Mail Address:

  	
   

  	
   

  	
   

  	
   

  



 


 


	
   

  	
   

  	
   

  	
  Primary Operations Contact

  	
   

  	
   

  	
   

  	
  Secondary Operations Contact

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Company:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  	
   

  



 


 


Lender’s Domestic Wire Instructions


 


	
  Bank Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ABA/Routing No.:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Account Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Account No.:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  FFC Account Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  FFC Account No.:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Reference:

  	
   

  	
   

  



 


 


 


A-2

















 


Tax Documents


 


NON-U.S. LENDER INSTITUTIONS:


I. Corporations:


If your institution is
incorporated outside of the United States for U.S. federal income tax purposes,
and is the beneficial owner of the interest and other income it
receives, you must complete one of the following two tax forms, as applicable
to your institution:  a.) Form W-8BEN (Certificate of Foreign Status of Beneficial
Owner) or b.)  Form W-8ECI
(Income Effectively Connected to a U.S. Trade or Business), in each
case claiming complete exemption from U.S. federal withholding tax.


If your institution is
claiming complete exemption from U.S. federal withholding tax under Section
871(h) or 881(c) of the Internal Revenue Code of 1986, as amended, with respect
to payments of “portfolio interest”, you must complete the following two tax
forms: a.) Exhibit G (Non-Bank Certificate) and b.) Form W-8BEN (Certificate of Foreign Status of Beneficial
Owner).


A U.S. taxpayer
identification number is required for any institution submitting Form
W-8ECI.  It is also required on Form
W-8BEN for certain institutions claiming the benefits of a tax treaty with the
U.S.  Please refer to the instructions
when completing the form applicable to your institution.  In addition, please be advised that U.S. tax
regulations do not permit the acceptance of faxed forms.  An original tax form must
be submitted.


II. Flow-Through Entities:


If your institution is
organized outside the U.S., and is classified for U.S. federal income tax
purposes as either a Partnership, Trust, Qualified or Non-Qualified
Intermediary, or other non-U.S. flow-through entity, an original Form W-8IMY
(Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain
U.S. Branches for United States Tax Withholding) must be completed
by the intermediary together with a withholding statement claiming complete
exemption from U.S. federal withholding tax. 
Flow-through entities other than Qualified Intermediaries are required
to include tax forms for each of the underlying beneficial owners.


Please refer to the
instructions when completing this form. 
In addition, please be advised that U.S. tax regulations do not permit
the acceptance of faxed forms.  Original tax form(s) must be submitted.


U.S. LENDER INSTITUTIONS:


If your institution is incorporated or organized within the
United States, you must complete and return Form
W-9 (Request for Taxpayer Identification Number
and Certification).  Please be advised that we request that you submit an original Form W-9.


 


 


A-3

















 


Pursuant to the language contained in the Section 2.20 (“Taxes”) of the
Credit Agreement, the applicable tax form for your institution must be
completed and returned on or before the date your institution becomes a party
to the Credit Agreement.  Failure to
provide the proper tax form when requested may subject your institution to U.S.
tax withholding.


 


 


 


A-4

















 


 


Exhibit B


to the Second Lien
Credit Agreement


 


FORM OF

ASSIGNMENT AND ACCEPTANCE


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


For an agreed consideration, the Assignor hereby
irrevocably sells and assigns to the Assignee, and the Assignee hereby
irrevocably purchases and assumes from the Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Second Lien Credit
Agreement, as of the Effective Date inserted by the Administrative Agent as
contemplated below (i) all of the Assignor’s rights and obligations in its
capacity as a Lender under the Second Lien Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to
the amount and percentage interest identified below of all of such outstanding
rights and obligations of the Assignor under the Facility identified below and
(ii) to the extent permitted to be assigned under applicable law, all claims,
suits, causes of action and any other right of the Assignor (in its capacity as
a Lender) against any person, whether known or unknown, arising under or in
connection with the Second Lien Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed
thereby or in any way based on or related to any of the foregoing, including,
but not limited to, contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and
obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the “Assigned Interest”).  Such sale and assignment is without recourse
to the Assignor and, except as expressly provided in this Assignment and
Acceptance, without representation or warranty by the Assignor.


 


 


 


B-1

















 


	
  1.

  	
   

  	
  Assignor (the
  “Assignor”):

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Assignee (the
  “Assignee”):

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Borrower (the
  “Borrower”):

  	
   

  	
  Hawkeye
  Renewables, LLC

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Administrative
  Agent:

  	
   

  	
  Credit Suisse,
  as the Administrative Agent under the Second Lien Credit Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Second Lien
  Credit Agreement:

  	
   

  	
  The $150,000,000
  Second Lien Credit Agreement dated as of June 30, 2006, among THL-Hawkeye
  Acquisition LLC (to be merged with and into Hawkeye Renewables, LLC), Hawkeye
  Intermediate, LLC the Lenders party thereto, Credit Suisse, as Administrative
  Agent and Collateral Agent for the Lenders

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Assigned Interest:

  	
   

  	
   

  



 


 


	
  Assignor

  	
   

  	
  Assignee

  	
   

  	
  Facility Assigned

  	
   

  	
  Aggregate

  Amount of Loan
 for all Lenders

  	
   

  	
  Amount of

  Loan  Assigned

  	
   

  	
  Percentage Assigned of
  Loan(1)

  	
   

  	
  CUSIP Number

  
	
  



  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


	
  7.

  	
   

  	
  Effective Date of
  Assignment (the “Effective Date”):

  	
   

  	
  ________________,
  20___(2)

  



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


 


	
  ASSIGNOR,

  	
   

  
	
   

  	
   

  
	
  NAME OF ASSIGNOR,

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  
				



 


 






(1)           Set forth, to at
least 9 decimals, as a percentage of the Second Lien Credit Agreement of all
Lenders thereunder.


 


(2)           To be inserted by Administrative Agent and
which shall be the effective date of recordation of transfer in the register
therefore.


 


B-2

















 


 


	
  ASSIGNOR,

  	
   

  
	
   

  	
   

  
	
  NAME OF ASSIGNOR,

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  
				



 


 


 


B-3

















 


Consented to and
Accepted:


 


 


	
  CREDIT SUISSE, as
  Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  



 


 


[Consented to:


 


	
  HAWKEYE RENEWABLES, LLC, as Borrower

  
	
   

  
	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:]

  	
   

  



 


 


[Consented to:


 


 


	
  CREDIT SUISSE,
as an Issuing Bank

  
	
   

  
	
   

  
	
  By

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:]

  	
   

  



 


 


[Consented to:


 


	
  CREDIT SUISSE,
as Swingline Lender

  
	
   

  
	
   

  
	
  By

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:]

  	
   

  



 


 


 


B-4

















 


 


STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ACCEPTANCE


Representations
and Warranties.


Assignors.  The Assignor (a) represents and warrants that
(i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Acceptance and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with
respect to (i) any statements, warranties or representations made in or in
connection with the Second Lien Credit Agreement (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Second Lien
Credit Agreement, or any other collateral thereunder, (iii) the financial
condition of the Borrower, any Subsidiary, or any other person or any Loan
Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other person of any of their respective
obligations under the Second Lien Credit Agreement or any other Loan Document


Assignee.  The Assignee (a) represents and warrants that
(i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Acceptance and to consummate the
transactions contemplated hereby and to become a Lender under the Second Lien
Credit Agreement, (ii) it is an Eligible Assignee, legally authorized to enter
into this Assignment and Acceptance, (iii) from and after the Effective Date,
it shall be bound by the provisions of the Second Lien Credit Agreement as a
Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect to
decisions to acquire assets of the type represented by the Assigned Interest
and either it, or the person exercising discretion in making its decision to
acquire the Assigned Interest, is experienced in acquiring assets of such type,
(v) it has received a copy of the Second Lien Credit Agreement, and has
received or has been accorded the opportunity to receive copies of the most
recent financial statements referred to in Section 3.05(a) thereof or delivered
pursuant to Section 5.04 thereof, as applicable, and such other documents
and information as it deems appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance and to purchase the
Assigned Interest, (vi) it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Assignment and Acceptance and to purchase the
Assigned Interest, and (vii) attached to the Assignment and Acceptance is any
documentation required to be delivered by it pursuant to Section 2.20(e)
or 2.20(f) of the Second Lien Credit Agreement, as applicable, duly completed
and executed by the Assignee; and (b) agrees that (i) it will, independently
and without reliance on the Administrative Agent, the Assignor or any other
Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Second Lien Credit Agreement are required to be performed by it as a Lender.


 


 


 


B-5














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


General Provisions.  This Assignment and
Acceptance shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns.  This Assignment and Acceptance may be
executed in any number of counterparts, which together shall constitute one
instrument.  Delivery of an executed counterpart
of a signature page of this Assignment and Acceptance by telecopy shall be
effective as delivery of a manually executed counterpart of this Assignment and
Acceptance.  This Assignment and
Acceptance shall be governed by, and construed in accordance with, the law of
the State of New York.


 


B-6





















EXHIBIT
C


to
the Second Lien Credit Agreement


FORM OF

BORROWING REQUEST


Credit
Suisse, as Administrative Agent

Eleven Madison Avenue

New York, New York  10010


ATTN:
Agency Group


[DATE]1


Ladies
and Gentlemen:


The
undersigned, HAWKEYE RENEWABLES, LLC, a Delaware limited liability holding
company (the “Borrower”), refers to the
Second Lien Credit Agreement dated as of June 30, 2006 (as amended, restated,
amended and restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), among HAWKEYE INTERMEDIATE, LLC (“Holdings”), the Borrower, the
lenders from time to time party thereto (the “Lenders”)
and Credit Suisse, as administrative agent (in such capacity, the “Administrative Agent”) and as collateral agent for the
Lenders.  Capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to such terms
in the Credit Agreement.


The
Borrower hereby gives you notice pursuant to Section 2.03 of the Credit
Agreement that it requests a Borrowing under the Credit Agreement, and in
connection with such borrowing sets forth below the terms on which the
Borrowing is requested to be made:


	
  (A)

  	
  Type of Borrowing:2

  	
   

  	
   

  
	
  (B)

  	
  Date of Borrowing:3

  	
   

  	
   

  
	
  (C)

  	
  Account Number and
  Location:

  	
   

  	
   

  
	
  (D)

  	
  Principal Amount of
  Borrowing:

  	
   

  	
   

  
	
  (E)

  	
  Interest Period:4

  	
   

  	
   

  







1               Must be
notified irrevocably by telephone (a) in the case of a Eurodollar
Borrowing, not later than 1:00 p.m. (New York City time), three Business
Days before a proposed Borrowing, and (b) in the case of an ABR Borrowing,
not later than 1:00 p.m. (New York City time), one Business Day before a
proposed Borrowing, in each case to be promptly confirmed by hand delivery or
fax.


2               Specify either a Eurodollar Borrowing or an ABR Borrowing.


3               Date of
Borrowing must be a Business Day.


4               If such
Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect
thereto.


 


C-1

















The
Borrower hereby represents and warrants to the Administrative Agent and the
Lenders that, on the date of the related Borrowing, the conditions to lending
specified in paragraphs (b) and (c) of Article IV of the Credit Agreement have
been satisfied.


	
   

  	
  HAWKEYE RENEWABLES, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


C-2

















EXHIBIT D




 





 


SECOND LIEN GUARANTEE AND
COLLATERAL AGREEMENT


dated as of


June 30, 2006,


among


HAWKEYE
INTERMEDIATE, LLC,


 


THL-HAWKEYE
ACQUISITION LLC

(to be merged with and into HAWKEYE RENEWABLES, LLC),


 


the
Subsidiaries of HAWKEYE RENEWABLES, LLC


from
time to time party hereto


 


and


CREDIT
SUISSE,


as Collateral Agent


THIS IS THE SECOND LIEN GUARANTEE AND COLLATERAL AGREEMENT REFERRED TO
IN (A) THE FIRST LIEN GUARANTEE AND COLLATERAL AGREEMENT OF EVEN DATE
HEREWITH AMONG THL-HAWKEYE ACQUISITION LLC (TO BE MERGED WITH AND INTO HAWKEYE
RENEWABLES, LLC), HAWKEYE INTERMEDIATE, LLC, CERTAIN SUBSIDIARIES OF HAWKEYE
RENEWABLES, LLC AND CREDIT SUISSE, (B) THE INTERCREDITOR AGREEMENT OF EVEN
DATE HEREWITH AMONG THL-HAWKEYE ACQUISITION LLC (TO BE MERGED WITH AND INTO
HAWKEYE RENEWABLES, LLC), HAWKEYE INTERMEDIATE, LLC, CERTAIN SUBSIDIARIES OF
HAWKEYE RENEWABLES, LLC AND CREDIT SUISSE AND (C) THE OTHER SECURITY
INSTRUMENTS REFERRED TO IN THE CREDIT AGREEMENTS REFERRED TO HEREIN.


 




 
















 


TABLE OF CONTENTS


	
   

  	
  Page

  
	
  ARTICLE I

  	
   

  
	
   

  	
   

  
	
  Definitions

  	
   

  
	
   

  	
   

  
	
  SECTION
  1.01.

  	
  Second Lien Credit Agreement

  	
  2

  
	
  SECTION
  1.02.

  	
  Other Defined Terms

  	
  2

  
	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
   

  	
   

  
	
  Guarantee

  	
   

  
	
   

  	
   

  
	
  SECTION
  2.01.

  	
  Guarantee

  	
  6

  
	
  SECTION
  2.02.

  	
  Guarantee of Payment

  	
  7

  
	
  SECTION
  2.03.

  	
  No Limitations, Etc

  	
  7

  
	
  SECTION
  2.04.

  	
  Reinstatement

  	
  8

  
	
  SECTION
  2.05.

  	
  Agreement To Pay; Subrogation

  	
  8

  
	
  SECTION
  2.06.

  	
  Information

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
   

  	
   

  
	
  Pledge of Securities

  	
   

  
	
   

  	
   

  
	
  SECTION
  3.01.

  	
  Pledge

  	
  9

  
	
  SECTION
  3.02.

  	
  Delivery of the Pledged Collateral

  	
  10

  
	
  SECTION
  3.03.

  	
  Representations, Warranties and Covenants

  	
  10

  
	
  SECTION
  3.04.

  	
  Certification of Limited Liability Company Interests and
  Limited Partnership Interests

  	
  12

  
	
  SECTION
  3.05.

  	
  Registration in Nominee Name; Denominations

  	
  12

  
	
  SECTION
  3.06.

  	
  Voting Rights; Dividends and Interest, Etc

  	
  12

  
	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
   

  	
   

  
	
  Security Interests in Personal
  Property

  	
   

  
	
   

  	
   

  
	
  SECTION
  4.01.

  	
  Security Interest

  	
  14

  
	
  SECTION
  4.02.

  	
  Representations and Warranties

  	
  15

  
	
  SECTION
  4.03.

  	
  Covenants

  	
  17

  
	
  SECTION
  4.04.

  	
  Other Actions

  	
  20

  
	
  SECTION
  4.05.

  	
  Covenants Regarding Patent, Trademark and Copyright
  Collateral

  	
  21

  



 

















 


	
  ARTICLE V

  	
   

  
	
   

  	
   

  
	
  Remedies

  	
   

  
	
   

  	
   

  
	
  SECTION
  5.01.

  	
  Remedies Upon Default

  	
  23

  
	
  SECTION
  5.02.

  	
  Application of Proceeds

  	
  25

  
	
  SECTION
  5.03.

  	
  Grant of License to Use Intellectual Property

  	
  26

  
	
  SECTION
  5.04.

  	
  Securities Act, Etc

  	
  26

  
	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
   

  	
   

  
	
  Indemnity, Subrogation and
  Subordination

  	
   

  
	
   

  	
   

  
	
  SECTION
  6.01.

  	
  Indemnity and Subrogation

  	
  27

  
	
  SECTION
  6.02.

  	
  Contribution and Subrogation

  	
  27

  
	
  SECTION
  6.03.

  	
  Subordination

  	
  27

  
	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
   

  	
   

  
	
  Miscellaneous

  	
   

  
	
   

  	
   

  
	
  SECTION
  7.01.

  	
  Notices

  	
  28

  
	
  SECTION
  7.02.

  	
  Survival of Agreement

  	
  28

  
	
  SECTION
  7.03.

  	
  Binding Effect; Several Agreement

  	
  28

  
	
  SECTION
  7.04.

  	
  Successors and Assigns

  	
  29

  
	
  SECTION
  7.05.

  	
  Collateral Agent’s Fees and Expenses; Indemnification

  	
  29

  
	
  SECTION
  7.06.

  	
  Collateral Agent Appointed Attorney-in-Fact

  	
  30

  
	
  SECTION
  7.07.

  	
  Applicable Law

  	
  30

  
	
  SECTION
  7.08.

  	
  Waivers; Amendment

  	
  30

  
	
  SECTION
  7.09.

  	
  WAIVER OF JURY TRIAL

  	
  31

  
	
  SECTION
  7.10.

  	
  Severability

  	
  31

  
	
  SECTION
  7.11.

  	
  Counterparts

  	
  32

  
	
  SECTION
  7.12.

  	
  Headings

  	
  32

  
	
  SECTION
  7.13.

  	
  Jurisdiction; Consent to Service of Process

  	
  32

  
	
  SECTION
  7.14.

  	
  Termination or Release

  	
  33

  
	
  SECTION
  7.15.

  	
  Additional Subsidiaries

  	
  33

  
	
  SECTION
  7.16.

  	
  Right of Setoff

  	
  33

  
	
  SECTION
  7.17.

  	
  Intercreditor Agreement Governs

  	
  33

  
	
  SECTION
  7.18.

  	
  Obligations of Grantors

  	
  33

  
	
  SECTION
  7.19.

  	
  Delivery of Collateral

  	
  33

  



 


ii

















	
  Schedules

  	
   

  
	
   

  	
   

  
	
  Schedule
  I

  	
  Subsidiary
  Guarantors

  
	
  Schedule
  II

  	
  Equity
  Interests; Pledged Debt Securities

  
	
  Schedule
  III

  	
  Intellectual
  Property

  
	
  Schedule
  IV

  	
  Offices
  for UCC Filings

  
	
   

  	
   

  
	
  Exhibits

  	
   

  
	
   

  	
   

  
	
  Exhibit
  A

  	
  Form
  of Supplement

  
	
  Exhibit
  B

  	
  Form
  of Perfection Certificate

  



 


iii

















 


SECOND LIEN GUARANTEE AND
COLLATERAL AGREEMENT dated as of June 30, 2006 (this “Agreement”),
among HAWKEYE INTERMEDIATE, LLC, a Delaware limited liability company (“Holdings”), THL-HAWKEYE ACQUISITION
LLC, a Delaware limited liability company to be merged with and into HAWKEYE
RENEWABLES, LLC (the “Borrower”),
the Subsidiaries of the Borrower from time to time party hereto and CREDIT
SUISSE (“Credit Suisse”), as second lien collateral agent
(in such capacity, the “Collateral
Agent”).


PRELIMINARY STATEMENT


 


Reference is made to
(a) the First Lien Credit Agreement dated as of June 30, 2006 (as
amended, restated, amended and restated, supplemented or otherwise modified
from time to time, the “First Lien Credit Agreement”), among
Holdings, the Borrower, the lenders from time to time party thereto (the “Lenders”) and Credit Suisse, as
administrative agent (in such capacity, the “First Lien Administrative Agent”) and as the first lien collateral
agent (in such capacity, the “First Lien Collateral
Agent”) , (b) the Second Lien Credit Agreement dated as of
June 30, 2006 (as amended, restated, amended and restated, supplemented or
otherwise modified from time to time, the “Second Lien Credit
Agreement”), among Holdings, the Borrower, the lenders from time
to time party thereto and Credit Suisse, as administrative agent (in such
capacity, the “Administrative Agent”) and as
the Collateral Agent, (c) the First Lien Guarantee and Collateral
Agreement dated as of June 30, 2006 (as amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the “First Lien Guarantee and Collateral Agreement”),
among Holdings, the Borrower, the Subsidiaries of the Borrower from time to
time party thereto and Credit Suisse, as the First Lien Collateral Agent, and
(d) the Intercreditor Agreement dated as of June 30, 2006 (as
amended, restated, amended and restated, supplemented or otherwise modified
from time to time, the “Intercreditor Agreement”),
among Holdings, the Borrower, the Subsidiaries of the Borrower from time to
time party thereto and Credit Suisse, in its capacities as the Collateral Agent
and as the First Lien Collateral Agent.


The Lenders have agreed to
make loans to the Borrower pursuant to, and upon the terms and conditions
specified in, the Second Lien Credit Agreement. 
The obligations of the Lenders to make such loans to the Borrower are
conditioned upon, among other things, the execution and delivery of this
Agreement by the Borrower and each Guarantor (such term and each other
capitalized term used but not defined in this preliminary statement having the
meaning given or ascribed to it in Article I).  Each Guarantor is an affiliate of the
Borrower, will derive substantial benefits from the making of loans to the
Borrower pursuant to the Second Lien Credit Agreement and is willing to execute
and deliver this Agreement in order to induce the Lenders to make such loans.  Accordingly, the parties hereto agree as
follows:

















 


ARTICLE
I


Definitions


SECTION
1.01. Second Lien Credit
Agreement. 
(a)  Capitalized terms used in this Agreement and not
otherwise defined herein have the meanings set forth in the Second Lien Credit
Agreement.  All capitalized terms defined
in the New York UCC (as such term is defined herein) and not defined in
this Agreement have the meanings specified therein.  All references to the Uniform Commercial Code
shall mean the New York UCC unless the context requires otherwise; the
term “Instrument” shall have the meaning specified in Article 9 of the
New York UCC.


(b)
The rules of construction specified in Section 1.02 of the Second Lien
Credit Agreement also apply to this Agreement.


SECTION 1.02. Other Defined Terms.  As used in this Agreement, the following
terms have the meanings specified below:


“Administrative Agent”
shall have the meaning assigned to such term in the preliminary statement.


“Article 9 Collateral” shall have the
meaning assigned to such term in Section 4.01.


“Borrower” shall
have the meaning assigned to such term in the preamble.


“Collateral” shall mean the
Article 9 Collateral and the Pledged Collateral.


“Collateral Agent”
shall have the meaning assigned to such term in the preamble.


“Copyright License” shall mean any
written agreement, now or hereafter in effect, granting any right to any third
person under any copyright now or hereafter owned by any Grantor or that such
Grantor otherwise has the right to license, or granting any right to any
Grantor under any copyright now or hereafter owned by any third person, and all
rights of such Grantor under any such agreement.


“Copyrights” shall mean all
of the following now owned or hereafter acquired by any Grantor:  (a) all copyright rights in any work
subject to the copyright laws of the United States or any other country,
whether as author, assignee, transferee or otherwise, and (b) all
registrations and applications for registration of any such copyright in the
United States or any other country, including registrations, recordings,
supplemental registrations and pending applications for registration in the
United States Copyright Office (or any successor office or any similar office
in any other country), including those listed on Schedule III.


 


2

















 


“Excluded
Collateral” shall mean (A) all cash and cash equivalents,
(B) any deposit and securities accounts, (C) all vehicles,
(D) any general intangibles or other rights arising under contracts, instruments,
licenses, license agreements or other documents if, and only to the extent
that, the grant of a security interest would (x) constitute a violation of
a valid and enforceable restriction in favor of a third party on such grant,
unless and until any required consents shall have been obtained, or
(y) give any other party to such contract, instrument, license, license
agreement or other document the right to terminate its obligations thereunder (provided,
however, that any portion of any such general intangible or other right shall
cease to constitute Excluded Collateral pursuant to this clause at the time and
to the extent that the grant of a security interest therein does not result in
any of the consequences specified above), (E) any letter of credit
rights to the extent any Grantor is required by applicable law to apply the
proceeds of such letter of credit rights for a specified purpose,
(F) investment property consisting of voting Equity Interests of any non-U.S.
Subsidiary in excess of 65% of the Equity Interests representing the total
combined voting power of all classes of Equity Interests of such non-U.S.
Subsidiary entitled to vote, (G) Equity Interests in Project Subsidiaries
prior to the payment in full of all Permitted Project Debt of such Project
Subsidiary or (H) those assets as to which the Collateral Agent reasonably
determines that the costs of obtaining a security interest therein are
excessive in relation to the benefit to the Lenders of the security afforded
thereby.


“Discharge
of First Lien Obligations” shall have the meaning assigned to
such term in the Intercreditor Agreement.


“Federal
Securities Laws” shall have the meaning assigned to such term in
Section 5.04.


“First
Lien Administrative Agent” shall have the meaning assigned to
such term in the preliminary statement.


“First
Lien Collateral Agent” shall have the meaning assigned to such
term in the preliminary statement.


“First
Lien Credit Agreement” shall have the meaning assigned to such
term in the preliminary statement.


“First
Lien Guarantee and Collateral Agreement” shall have the meaning
assigned to such term in the preliminary statement.


“First
Lien Loan Documents” shall have the meaning assigned to the term
“Loan Documents” in the First Lien Credit Agreement.


“First
Lien Obligations” shall have the meaning assigned to such term
in the Intercreditor Agreement.


“First
Priority Liens” shall have the meaning assigned to such term in
the Intercreditor Agreement.


 


3

















 


“Grantors” shall mean the
Borrower and the Guarantors.


“Guarantors” shall mean
Holdings and the Subsidiary Guarantors.


“Holdings” shall
have the meaning assigned to such term in the preamble.


“Intellectual Property” shall mean all
intellectual and similar property of any Grantor of every kind and nature now
owned or hereafter acquired by any Grantor, including inventions, designs,
Patents, Copyrights, Licenses, Trademarks, trade secrets, confidential or
proprietary technical and business information, know-how, software and
databases and all embodiments or fixations thereof and related documentation,
registrations and franchises, and all additions, improvements and accessions
to, and books and records describing or used in connection with, any of the
foregoing.


“Intercreditor
Agreement” shall have the meaning assigned to such term in the
preliminary statement.


“Investment
Property” shall mean a security,
whether certificated or uncertificated, security entitlement, commodity
contract, or commodity account.


 “License” shall mean any
Patent License, Trademark License, Copyright License or other license or
sublicense agreement relating to Intellectual Property to which any Grantor is
a party, including those listed on Schedule III.


“Loan
Document Obligations” shall mean (a) the due and punctual
payment of (i) the principal of and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise and
(ii) all other monetary obligations of the Borrower to any of the Secured
Parties under the Second Lien Credit Agreement and each of the other Loan
Documents, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), (b) the due and punctual performance of all
other obligations of the Borrower under or pursuant to the Second Lien Credit
Agreement and each of the other Loan Documents, and (c) the due and
punctual payment and performance of all the obligations of each other Loan
Party under or pursuant to this Agreement and each of the other Loan Documents.


“New York UCC” shall mean the
Uniform Commercial Code as from time to time in effect in the State of New
York.


“Obligations” shall mean
(a) the Loan Document Obligations and (b) the due and punctual
payment and performance of all obligations of each Loan Party under each
Hedging Agreement that (i) is in effect on the Closing Date with a counterparty
that is the Administrative Agent or a Lender or an Affiliate of the
Administrative Agent or a Lender as of the Closing Date or (ii) is entered
into after the Closing Date with any


 


4

















 


counterparty
that is the Administrative Agent or a Lender or an Affiliate of the
Administrative Agent or a Lender at the time such Hedging Agreement is entered
into.


“Patent License” shall mean any
written agreement, now or hereafter in effect, granting to any third person any
right to make, use or sell any invention on which a patent, now or hereafter
owned by any Grantor or that any Grantor otherwise has the right to license, is
in existence, or granting to any Grantor any right to make, use or sell any
invention on which a patent, now or hereafter owned by any third person, is in
existence, and all rights of any Grantor under any such agreement.


“Patents” shall mean all
of the following now owned or hereafter acquired by any Grantor:  (a) all letters patent of the United
States or the equivalent thereof in any other country, all registrations and
recordings thereof, and all applications for letters patent of the United
States or the equivalent thereof in any other country, including registrations,
recordings and pending applications in the United States Patent and Trademark
Office (or any successor or any similar offices in any other country),
including those listed on Schedule III, and (b) all reissues,
continuations, divisions, continuations-in-part, renewals or extensions
thereof, and the inventions disclosed or claimed therein, including the right
to make, use and/or sell the inventions disclosed or claimed therein.


“Pledged Collateral” shall have the
meaning assigned to such term in Section 3.01.


“Pledged Debt Securities” shall have the
meaning assigned to such term in Section 3.01.


“Pledged Securities” shall mean any
promissory notes, stock certificates or other securities now or hereafter
included in the Pledged Collateral, including all certificates, instruments or other
documents representing or evidencing any Pledged Collateral.


“Pledged Stock” shall have the
meaning assigned to such term in Section 3.01.


“Second
Lien Credit Agreement” shall have the meaning assigned to such
term in the preliminary statement.


“Secured Parties” shall mean
(a) the Lenders, (b) the Administrative Agent, (c) the
Collateral Agent, (d) each counterparty to any Hedging Agreement with a
Loan Party that either (i) is in effect on the Closing Date if such
counterparty is the Administrative Agent or a Lender or an Affiliate of the
Administrative Agent or a Lender as of the Closing Date or (ii) is entered
into after the Closing Date if such counterparty is the Administrative Agent or
a Lender or an Affiliate of the Administrative Agent or a Lender at the time
such Hedging Agreement is entered into, (e) the beneficiaries of each
indemnification obligation undertaken by any Loan Party under any Loan Document
and (f) the permitted successors and assigns of each of the foregoing.


 


5

















 


“Security Interest” shall have the
meaning assigned to such term in Section 4.01.


“Subsidiary
Guarantor” shall mean any of the following:  (a) the Subsidiaries identified on
Schedule I hereto as Subsidiary Guarantors and (b) each other
Subsidiary that becomes a party to this Agreement as a Subsidiary Guarantor
after the Closing Date.


“Trademark License” shall mean any
written agreement, now or hereafter in effect, granting to any third person any
right to use any trademark now or hereafter owned by any Grantor or that any
Grantor otherwise has the right to license, or granting to any Grantor any
right to use any trademark now or hereafter owned by any third person, and all
rights of any Grantor under any such agreement.


“Trademarks” shall mean all
of the following now owned or hereafter acquired by any Grantor:  (a) all trademarks, service marks, trade
names, corporate names, company names, business names, fictitious business
names, trade styles, trade dress, logos, other source or business identifiers,
designs and general intangibles of like nature, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
registration and recording applications filed in connection therewith,
including registrations and registration applications in the United States
Patent and Trademark Office (or any successor office) or any similar offices in
any State of the United States or any other country or any political
subdivision thereof, and all extensions or renewals thereof, including those
listed on Schedule III, (b) all goodwill associated therewith or
symbolized thereby and (c) all other assets, rights and interests that
uniquely reflect or embody such goodwill.


“Unfunded
Advances/Participations” shall mean with respect to the
Administrative Agent, the aggregate amount, if any (i) made available to
the Borrower on the assumption that each Lender has made its portion of the
applicable Borrowing available to the Administrative Agent as contemplated by
Section 2.02(d) of the Second Lien Credit Agreement and (ii) with
respect to which a corresponding amount shall not in fact have been returned to
the Administrative Agent by the Borrower or made available to the
Administrative Agent by any such Lender.


ARTICLE
II


Guarantee


SECTION
2.01. Guarantee.  Each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, the due and punctual payment and performance of the
Obligations.  Each Guarantor further
agrees that the Obligations may be extended or renewed, in whole or in part,
without notice to or further assent from it, and that it will remain bound upon
its guarantee notwithstanding any extension or renewal of any Obligation.  Each Guarantor waives (to the extent
permitted by applicable law) presentment to, demand of payment


 


6





















 


from and
protest to the Borrower or any other Loan Party of any Obligation, and also
waives notice of acceptance of its guarantee and notice of protest for
nonpayment.


Notwithstanding any
provision of this Agreement to the contrary, it is intended that this
Agreement, and any Liens granted hereunder by each Guarantor to secure the
obligations and liabilities arising pursuant to this Agreement, not constitute
a “Fraudulent Conveyance” (as defined below). 
Consequently, each Guarantor agrees that if this Agreement, or any Liens
securing the obligations and liabilities arising pursuant to this Agreement,
would, but for the application of this sentence, constitute a Fraudulent
Conveyance, this Agreement and each such Lien shall be valid and enforceable
only to the maximum extent that would not cause this Agreement or such Lien to
constitute a Fraudulent Conveyance, and this Agreement shall automatically be
deemed to have been amended accordingly at all relevant times.  For purposes hereof, “Fraudulent Conveyance”
means a fraudulent conveyance or fraudulent transfer under Section 548 of
the Bankruptcy Code or a fraudulent conveyance or fraudulent transfer under the
provisions of any applicable fraudulent conveyance or fraudulent transfer law
or similar law of any state, nation or other governmental unit, as in effect
from time to time.


SECTION
2.02. Guarantee of
Payment.  Each Guarantor
further agrees that its guarantee hereunder constitutes a guarantee of payment
when due and not of collection, and waives any right (except such as shall be
required by applicable law and cannot be waived) to require that any resort be
had by the Collateral Agent or any other Secured Party to any security held for
the payment of the Obligations or to any balance of any Deposit Account or
credit on the books of the Collateral Agent or any other Secured Party in favor
of the Borrower or any other person.


SECTION
2.03. No Limitations,
Etc.  (a) Except for
termination of a Guarantor’s obligations hereunder as expressly provided in
Section 7.14 (and as otherwise required by applicable law), the
obligations of each Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject
to any defense or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality or unenforceability of the Obligations or
otherwise.  Without limiting the
generality of the foregoing, the obligations of each Guarantor hereunder shall
not be discharged or impaired or otherwise affected by (i) the failure of
the Collateral Agent or any other Secured Party to assert any claim or demand
or to enforce any right or remedy under the provisions of any Loan Document or
otherwise, (ii) any rescission, waiver, amendment or modification of, or
any release from any of the terms or provisions of, any Loan Document (other
than pursuant to the terms of a waiver, amendment, modification or release of
this Agreement) or any other agreement, including with respect to the release
of any other Guarantor under this Agreement, (iii) the release of, or any
impairment of or failure to perfect any Lien on or security interest in, any
security held by the Collateral Agent or any other Secured Party for the
Obligations or any of them, (iv) any default, failure or delay, wilful or
otherwise, in the performance of the Obligations, or (v) any other act or
omission that may or might in any manner or to any extent vary the risk of any
Guarantor or otherwise operate as a discharge of any Guarantor as a matter of
law or equity (other than the indefeasible payment in full of all the


 


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Loan Document
Obligations in accordance with Section 7.14).  Each Guarantor expressly authorizes the
Collateral Agent, in accordance with the Credit Agreement and applicable law,
to take and hold security for the payment and performance of the Obligations,
to exchange, waive or release any or all such security (with or without
consideration), to enforce or apply such security and direct the order and
manner of any sale thereof in its sole discretion or to release or substitute
any one or more other guarantors or obligors upon or in respect of the
Obligations, all without affecting the obligations of any Guarantor hereunder.


(b)
To the fullest extent permitted by applicable law, each Guarantor waives any
defense based on or arising out of any defense of the Borrower or any other
Loan Party or the unenforceability of the Obligations or any part thereof from
any cause, or the cessation from any cause of the liability of the Borrower or
any other Loan Party, other than the indefeasible payment in full of all the
Loan Document Obligations in accordance with Section 7.14.  The Collateral Agent and the other Secured
Parties may, in accordance with the Credit Agreement and applicable law, at
their election, foreclose on any security held by one or more of them by one or
more judicial or nonjudicial sales, accept an assignment of any such security
in lieu of foreclosure, compromise or adjust any part of the Obligations, make
any other accommodation with the Borrower or any other Loan Party or exercise
any other right or remedy available to them against the Borrower or any other
Loan Party, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Loan Document Obligations have
been fully and indefeasibly paid in accordance with Section 7.14 in
full.  To the fullest extent permitted by
applicable law, each Guarantor waives any defense arising out of any such
election even though such election operates, pursuant to applicable law, to
impair or to extinguish any right of reimbursement or subrogation or other
right or remedy of such Guarantor against the Borrower or any other Loan Party,
as the case may be, or any security.


SECTION
2.04. Reinstatement.  Each Guarantor agrees that its guarantee
hereunder shall continue to be effective or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any Obligation is rescinded or
must otherwise be restored by the Collateral Agent or any other Secured Party
upon the bankruptcy or reorganization of the Borrower, any other Loan Party or
otherwise.


SECTION
2.05. Agreement To Pay;
Subrogation.  In
furtherance of the foregoing and not in limitation of any other right that the
Collateral Agent or any other Secured Party has at law or in equity against any
Guarantor by virtue hereof, upon the failure of the Borrower or any other Loan
Party to pay any Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, each
Guarantor hereby promises to and will forthwith pay, or cause to be paid, to
the Collateral Agent (or, prior to the Discharge of First Lien Obligations, to
the First Lien Collateral Agent) for distribution to the applicable Secured
Parties in cash the amount of such unpaid Obligation.  Upon payment by any Guarantor of any sums to
the Collateral Agent as provided above, all rights of such Guarantor against
the Borrower or any other Guarantor arising as a result thereof by way of right
of subrogation,


 


8





















 


contribution,
reimbursement, indemnity or otherwise shall in all respects be subject to
Article VI.


SECTION
2.06. Information.  Each Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower’s and each other Loan Party’s
financial condition and assets and of all other circumstances bearing upon the
risk of nonpayment of the Obligations and the nature, scope and extent of the
risks that such Guarantor assumes and incurs hereunder, and agrees that neither
the Collateral Agent nor any other Secured Party will have any duty to advise
such Guarantor of information known to it or any of them regarding such
circumstances or risks.


ARTICLE
III


Pledge of Securities


SECTION
3.01. Pledge.  As security for the payment or performance,
as the case may be, in full of the Obligations, each Grantor hereby assigns and
pledges to the Collateral Agent, its successors and assigns, for the ratable benefit
of the Secured Parties, and hereby grants to the Collateral Agent, its
successors and assigns, for the ratable benefit of the Secured Parties, a
security interest in, all of such Grantor’s right, title and interest in, to
and under (a)(i) the Equity Interests owned by such Grantor on the date
hereof (including all such Equity Interests listed on Schedule II),
(ii) any other Equity Interests obtained in the future by such Grantor and
(iii) the certificates, if any, representing all such Equity Interests
(all the foregoing collectively referred to herein as the “Pledged Stock”); provided, however,
that the Pledged Stock shall not include more than 65% of the issued and
outstanding voting Equity Interests of any Foreign Subsidiary owned directly by
such Grantor (and shall exclude any Equity Interests owned by a Subsidiary that
is that is not a Grantor), (b)(i) the debt securities held by such Grantor
on the date hereof (including all such debt securities listed opposite the name
of such Grantor on Schedule II), (ii) any debt securities in the
future issued to such Grantor and (iii) the promissory notes and any other
instruments evidencing such debt securities, if any (all the foregoing
collectively referred to herein as the “Pledged Debt Securities”), (c) subject
to Section 3.06, all payments of principal or interest, dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of, in exchange for or upon the conversion of,
and all other Proceeds received in respect of, the securities referred to in
clauses (a) and (b) above, (d) subject to Section 3.06, all
rights of such Grantor with respect to the securities and other property
referred to in clauses (a), (b) and (c) above, and (e) all Proceeds
of any of the foregoing (the items referred to in clauses (a) through (e)
above, other than any Excluded Collateral, being collectively referred to as
the “Pledged Collateral”).


TO HAVE AND TO HOLD the
Pledged Collateral, together with all right, title, interest, powers,
privileges and preferences pertaining or incidental thereto, unto the
Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, forever; subject, however, to the terms, covenants and conditions hereinafter
set forth.


 


9

















 


SECTION
3.02. Delivery of the
Pledged Collateral. 
(a)  Each Grantor agrees to deliver or cause to be delivered
to the Collateral Agent (or, prior to the Discharge of First Lien Obligations,
to the First Lien Collateral Agent, acting as a gratuitous bailee of the
Collateral Agent) any and all certificates, instruments or other documents, if
any, representing or evidencing Pledged Securities.


(b)
Upon delivery to the Collateral Agent (or, prior to the Discharge of First Lien
Obligations, to the First Lien Collateral Agent, acting as a gratuitous bailee
of the Collateral Agent), (i) any certificate, instrument or document
representing or evidencing Pledged Securities shall be accompanied by undated
stock powers duly executed in blank or other undated instruments of transfer
reasonably satisfactory to the Collateral Agent and duly executed in blank and
by such other instruments and documents as the Collateral Agent may reasonably
request and (ii) all other property comprising part of the Pledged
Collateral shall be accompanied by instruments of assignment duly executed by
the applicable Grantor and such other instruments or documents as the
Collateral Agent may reasonably request.


(c)
In accordance with the terms of the Intercreditor Agreement, all Pledged
Collateral delivered to the First Lien Collateral Agent shall be held by the
First Lien Collateral Agent as gratuitous bailee for the Second Lien Secured
Parties (as defined in the Intercreditor Agreement) solely for the purpose of
perfecting the security interest therein granted under this Agreement.


SECTION 3.03. Representations, Warranties and
Covenants.  The Grantors
jointly and severally represent, warrant and covenant to and with the Collateral
Agent, for the benefit of the Secured Parties, that:


(a)
Schedule II correctly sets forth as of the Closing Date the percentage of
the issued and outstanding shares of each class of the Equity Interests of the
issuer thereof represented by such Pledged Stock and includes all Equity
Interests, debt securities and promissory notes required to be pledged
hereunder;


(b)
the Pledged Stock and Pledged Debt Securities have been duly and validly
authorized and issued by the issuers thereof and (i) in the case of
Pledged Stock, are fully paid and nonassessable and (ii) in the case of
Pledged Debt Securities, are legal, valid and binding obligations of the
issuers thereof subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other loss affecting creditors’ rights generally and general
principles of equity or at law;


(c)
except for the security interests granted hereunder and under the First Lien
Guarantee and Collateral Agreement (or otherwise permitted under the First Lien
Credit Agreement and the Second Lien Credit Agreement), each Grantor
(i) is and, subject to any transfers made in compliance with the First
Lien Credit Agreement and the Second Lien Credit Agreement, will continue to be
the direct owner, beneficially and of record, of the Pledged Securities
indicated on Schedule II as owned by such Grantor, (ii) holds the
same free and clear of all


 


10





















 


Liens, (iii) will make
no assignment, pledge, hypothecation or transfer of, or create or permit to
exist any security interest in or other Lien on, the Pledged Collateral, other
than transfers made in compliance with the First Lien Credit Agreement and the
Second Lien Credit Agreement, and (iv) subject to Section 3.06, will
use commercially reasonable efforts to cause any and all Pledged Collateral,
whether for value paid by such Grantor or otherwise, to be forthwith deposited
with the Collateral Agent and pledged or assigned hereunder;


(d)
except for restrictions and limitations imposed by the Loan Documents, the
First Lien Loan Documents or securities or other applicable laws generally, the
Pledged Collateral is and will continue to be freely transferable and
assignable, and none of the Pledged Collateral issued by a Subsidiary is or
will be subject to any option, right of first refusal, shareholders agreement,
charter or by-law provisions or contractual restriction of any nature
that might prohibit, impair, delay or otherwise affect the pledge of such
Pledged Collateral hereunder, the sale or disposition thereof pursuant hereto
or the exercise by the Collateral Agent of rights and remedies hereunder;


(e)
each Grantor (i) has the power and authority to pledge the Pledged
Collateral pledged by it hereunder in the manner hereby done or contemplated
and (ii) will use commercially reasonable efforts to defend its title or
interest thereto or therein against any and all Liens (other than any Lien
created or permitted by the Loan Documents or the First Lien Loan Documents),
however arising, of all persons whomsoever;


(f)
no consent or approval of any Governmental Authority, any securities exchange
or any other person was or is necessary to the validity of the pledge effected
hereby (other than such as have been obtained and are in full force and
effect);


(g)
by virtue of the execution and delivery by each Grantor of this Agreement and
the Lien priorities set forth in the Intercreditor Agreement, when any Pledged
Securities are delivered to the Collateral Agent (or, prior to the Discharge of
First Lien Obligations, to the First Lien Collateral Agent, acting as a
gratuitous bailee of the Collateral Agent) in accordance with this Agreement,
the Collateral Agent will obtain a legal, valid and perfected second priority
lien upon and security interest in such Pledged Securities as security for the
payment and performance of the Obligations, prior to any other Lien on any of
the Pledged Securities other than the First Priority Liens and any Liens
expressly permitted pursuant to Section 6.02 of the Second Lien Credit
Agreement that have priority as a matter of law; and


(h)
the pledge effected hereby is effective to vest in the Collateral Agent, for
the ratable benefit of the Secured Parties, the rights of the Collateral Agent
in the Pledged Collateral as set forth herein and all action by any Grantor
necessary to perfect the Lien on the Pledged Collateral has been duly taken.


 


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SECTION
3.04. Certification of
Limited Liability Company Interests and Limited Partnership Interests.  (a)  With respect to each interest
in any Limited Liability Company or Limited Partnership pledged hereunder that
is represented by a certificate, such certificate and the organizational
documents of such Limited Liability Company or Limited Partnership shall
include an express provision providing that each interest in such entity “is a
security governed by Article 8 of the Uniform Commercial Code in effect in
the State of New York” on the date hereof.


(b)
Notwithstanding anything to the contrary contained herein, the parties hereto
acknowledge and agree that the interest in D&W Railroad, LLC shall not be
represented by a certificate as of the date hereof and each Grantor agrees not
to take any action to cause such interests to be so certificated unless the
certificates evidencing such interests shall be simultaneously pledged and
delivered to the Collateral Agent hereunder, in compliance with clause (a)
above.


SECTION
3.05. Registration in
Nominee Name; Denominations. 
Upon the occurrence and during the continuance of an Event of Default,
the Collateral Agent, on behalf of the Secured Parties, shall have the right
(in its sole and absolute discretion), at any time after the Discharge of First
Lien Obligations, to hold the Pledged Securities in its own name as pledgee,
the name of its nominee (as pledgee or as sub-agent) or the name of the
applicable Grantor, endorsed or assigned in blank or in favor of the Collateral
Agent.  Upon the occurrence and during the
continuance of an Event of Default, the Collateral Agent shall at all times
have the right to exchange the certificates representing Pledged Securities for
certificates of smaller or larger denominations for any purpose consistent with
this Agreement.


SECTION 3.06. Voting Rights; Dividends and
Interest, Etc. 
(a)  Unless and until an Event of Default shall have occurred
and be continuing and the Collateral Agent shall have given the Grantors notice
of its intent to exercise its rights under this Agreement:


(i)
   Each Grantor shall be entitled to
exercise any and all voting and/or other consensual rights and powers inuring
to an owner of Pledged Securities or any part thereof for any purpose
consistent with the terms of this Agreement, the Second Lien Credit Agreement
and the other Loan Documents.


(ii)
  The Collateral Agent shall execute and
deliver to each Grantor, or cause to be executed and delivered to each Grantor,
all such proxies, powers of attorney and other instruments as such Grantor may
reasonably request for the purpose of enabling such Grantor to exercise the
voting and/or consensual rights and powers it is entitled to exercise pursuant
to paragraph (i) above.


(iii)
 Each Grantor shall be entitled to receive
and retain any and all dividends, interest, principal and other distributions paid
on or distributed in respect of the Pledged Securities (other than any noncash
dividends,


 


12





















 


interest, principal or other
distributions that would constitute Pledged Stock or Pledged Debt Securities)
to the extent and only to the extent that such dividends, interest, principal
and other distributions are not prohibited by, and otherwise paid or
distributed in accordance with, the terms and conditions of the Second Lien
Credit Agreement, the other Loan Documents and applicable law.  This paragraph (iii) shall not apply to
dividends between or among the Borrower, the Guarantors and any Subsidiaries of
property subject to a perfected security interest under this Agreement; provided that the Borrower notifies the
Collateral Agent, specifically referring to this Section 3.06 at the time
of such dividend and takes any actions the Collateral Agent reasonably
specifies to ensure the continuance of its perfected security interest in such
property under this Agreement.


(b)
Upon the occurrence and during the continuance of an Event of Default, after
the Collateral Agent shall have notified the Grantors in writing of the
suspension of their rights under paragraph (a)(iii) of this
Section 3.06, then all rights of any Grantor to dividends, interest,
principal or other distributions that such Grantor is authorized to receive
pursuant to paragraph (a)(iii) of this Section 3.06 shall cease, and
all such rights shall thereupon become vested in the Collateral Agent, which
shall have the sole and exclusive right and authority to receive and retain
such dividends, interest, principal or other distributions.  All dividends, interest, principal or other
distributions received by any Grantor contrary to the provisions of this Section 3.06
shall be held in trust for the benefit of the Collateral Agent, shall be
segregated from other property or funds of such Grantor and, subject to the
rights of the First Lien Collateral Agent and the obligations of the Grantors
under the First Lien Loan Documents and the Intercreditor Agreement, shall be
forthwith delivered to the Collateral Agent upon demand in the same form as so
received (with any necessary endorsement or instrument of assignment).  Any and all money and other property paid
over to or received by the Collateral Agent pursuant to the provisions of this
paragraph (b) shall be retained by the Collateral Agent in an account to
be established by the Collateral Agent upon receipt of such money or other
property and shall be applied in accordance with the provisions of
Section 5.02.  After all Events of
Default have been cured or waived, the Collateral Agent shall promptly repay to
each applicable Grantor (without interest) all dividends, interest, principal
or other distributions that such Grantor would otherwise be permitted to retain
pursuant to the terms of paragraph (a)(iii) of this Section 3.06 and
that remain in such account.


(c)
Upon the occurrence and during the continuance of an Event of Default, after
the Collateral Agent shall have notified the Grantors of the suspension of
their rights under paragraph (a)(i) of this Section 3.06, then all
rights of any Grantor to exercise the voting and consensual rights and powers
it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.06,
and the obligations of the Collateral Agent under paragraph (a)(ii) of
this Section 3.06, shall cease, and all such rights shall thereupon
become, subject to the rights of the First Lien Collateral Agent and the
obligations of the Grantors under the First Lien Loan Documents and the
Intercreditor Agreement, vested in the Collateral Agent, which shall have the
sole and exclusive right and authority to


 


13





















 


exercise such
voting and consensual rights and powers; provided that,
unless otherwise directed by the Required Lenders, the Collateral Agent shall
have the right from time to time following and during the continuance of an
Event of Default to permit the Grantors to exercise such rights.


(d)
Any notice given by the Collateral Agent to the Grantors exercising its rights
under paragraph (a) of this Section 3.06 (i) shall be given in
writing, (ii) may be given to one or more of the Grantors at the same or
different times and (iii) may suspend the rights of the Grantors under
paragraph (a)(i) or paragraph (a)(iii) in part without suspending all
such rights (as specified by the Collateral Agent in its sole and absolute
discretion) and without waiving or otherwise affecting the Collateral Agent’s
rights to give additional notices from time to time suspending other different
rights so long as an Event of Default has occurred and is continuing.


ARTICLE
IV


Security Interests in
Personal Property


SECTION
4.01. Security Interest.  (a)  As security for the payment or
performance, as the case may be, in full of the Obligations, each Grantor
hereby assigns and pledges to the Collateral Agent, its successors and assigns,
for the ratable benefit of the Secured Parties, and hereby grants to the
Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, a security interest (the “Security Interest”), in all right, title or
interest in or to any and all of the following assets and properties now owned
or at any time hereafter acquired by such Grantor or in which such Grantor now
has or at any time in the future may acquire any right, title or interest, but
excluding any Excluded Collateral (collectively, the “Article 9 Collateral”):


(i)                                     all Accounts;


(ii)                                  all Chattel
Paper;


(iii)                               all Documents;


(iv)                              all Equipment;


(v)                                 all General
Intangibles;


(vi)                              all
Instruments;


(vii)                           all Inventory;


(viii)                        all Investment
Property;


(ix)                                all
Letter-of-Credit Rights;


(x)                                   all Commercial
Tort Claims;


 


14





















 


(xi)                                all books and
records pertaining to the Article 9 Collateral; and


(xii)                             to the extent
not otherwise included, all Proceeds and products of any and all of the
foregoing and all collateral security and guarantees given by any person with
respect to any of the foregoing.


(b)
Each Grantor hereby authorizes the Collateral Agent at any time and from time
to time to file in any relevant jurisdiction any financing statements
(including fixture filings) with respect to the Article 9 Collateral or
any part thereof and amendments thereto that (i) indicate the
Article 9 Collateral as all assets of such Grantor or words of similar
effect, and (ii) contain the information required by Article 9 of the
Uniform Commercial Code of each applicable jurisdiction for the filing of any
financing statement or amendment, including 
(A) whether such Grantor is an organization, the type of
organization and any organizational identification number issued to such
Grantor and (B) in the case of a financing statement filed as a fixture
filing, a sufficient description of the real property to which such
Article 9 Collateral relates.  Each
Grantor agrees to provide such information to the Collateral Agent promptly
upon written request.


Each Grantor also ratifies
its authorization for the Collateral Agent to file in any relevant jurisdiction
any financing statements or amendments thereto if filed prior to the date
hereof.


The Collateral Agent is
further authorized to file with the United States Patent and Trademark Office
or United States Copyright Office (or any successor office or any similar
office in any other country) such documents as may be necessary for the purpose
of perfecting, confirming, continuing, enforcing or protecting the Security
Interest granted by each Grantor, without the signature of any Grantor, and
naming any Grantor or the Grantors as debtors and the Collateral Agent as
secured party.


(c)
The Security Interest is granted as security only and, except as otherwise
required by applicable law, shall not subject the Collateral Agent or any other
Secured Party to, or in any way alter or modify, any obligation or liability of
any Grantor with respect to or arising out of the Article 9 Collateral.


SECTION 4.02. Representations and Warranties.  The Grantors jointly and severally represent
and warrant to the Collateral Agent and the Secured Parties that:


(a)
Each Grantor has good and valid rights in and title to the Article 9
Collateral with respect to which it has purported to grant a Security Interest
hereunder and has full power and authority to grant to the Collateral Agent,
for the ratable benefit of the Secured Parties, the Security Interest in such
Article 9 Collateral pursuant hereto and to execute, deliver and perform
its obligations in accordance with the terms of this Agreement.


(b)
Uniform Commercial Code financing statements (including fixture filings, as
applicable) or other appropriate filings, recordings or registrations
containing a description of the Article 9 Collateral have been prepared by
the Collateral Agent based upon the information provided to the Administrative


 


15





















 


Agent and the Secured
Parties by the Grantors for filing in each governmental, municipal or other
office specified on Schedule IV hereof (or specified by notice from the
Borrower to the Administrative Agent after the Closing Date in the case of
filings, recordings or registrations required by Section 5.09 of the
Second Lien Credit Agreement), which are all the filings, recordings and
registrations (other than filings required to be made in the United States
Patent and Trademark Office and the United States Copyright Office in order to
perfect the Security Interest in the Article 9 Collateral consisting of
United States Patents, Trademarks and Copyrights) that are necessary as of the
Closing Date to publish notice of and protect the validity of and to establish
a legal, valid and perfected security interest in favor of the Collateral Agent
(for the ratable benefit of the Secured Parties) in respect of all Article 9
Collateral in which the Security Interest may be perfected by filing, recording
or registration in the United States (or any political subdivision thereof) and
its territories and possessions, and no further or subsequent filing, refiling,
recording, rerecording, registration or reregistration is necessary in any such
jurisdiction, except as provided under applicable law with respect to the
filing of continuation statements.  Each
Grantor represents and warrants that, to the extent the Article 9 Collateral
consists of Intellectual Property, a fully executed agreement in the form
hereof or, alternatively, each applicable short form security agreement in the
form attached to each of the First Lien Credit Agreement and the Second Lien
Credit Agreement as Exhibits H-1 through H-3, and containing a description
of all Article 9 Collateral consisting of Intellectual Property with
respect to United States Patents and United States registered Trademarks (and
Trademarks for which United States registration applications are pending) and
United States registered Copyrights will be delivered to the Collateral Agent
for recording by the United States Patent and Trademark Office and the United
States Copyright Office pursuant to 35 U.S.C. §261, 15 U.S.C. §1060
or 17 U.S.C. §205 and the regulations thereunder, as applicable, and
otherwise as may be required pursuant to the laws of any other necessary
jurisdiction, to protect the validity of and to establish a legal, valid and
perfected security interest in favor of the Collateral Agent (for the ratable
benefit of the Secured Parties) in respect of all Article 9 Collateral
consisting of Patents, Trademarks and Copyrights in which a security interest
may be perfected by filing, recording or registration in the United States (or
any political subdivision thereof) and its territories and possessions.


(c)
The Security Interest constitutes (i) a legal and valid security interest
in all Article 9 Collateral securing the payment and performance of the
Obligations, (ii) subject to the filings described in
Section 4.02(b), a perfected security interest in all Article 9
Collateral in which a security interest may be perfected by filing, recording
or registering a financing statement or analogous document in the United States
(or any political subdivision thereof) and its territories and possessions
pursuant to the Uniform Commercial Code or other applicable law in such
jurisdictions and (iii) a security interest that shall be perfected in all
Article 9 Collateral in which a security interest may be perfected upon
the receipt and recording of this Agreement with the United States Patent and
Trademark Office and the United States Copyright Office, as applicable.  The


 


16





















 


Security Interest is and
shall be prior to any other Lien on any of the Article 9 Collateral, other
than Liens permitted pursuant to Section 6.02 of the Second Lien Credit
Agreement.


(d)
The Article 9 Collateral is owned by the Grantors free and clear of any
Lien, except for Liens permitted pursuant to Section 6.02 of the Second
Lien Credit Agreement.  As of the date
hereof, no Grantor has filed or consented to the filing of (i) any
financing statement or analogous document under the Uniform Commercial Code or
any other applicable laws covering any Article 9 Collateral, (ii) any
assignment in which any Grantor assigns any Collateral or any security
agreement or similar instrument covering any Article 9 Collateral with the
United States Patent and Trademark Office or the United States Copyright
Office, (iii) any notice under the Assignment of Claims Act, or
(iv) any assignment in which any Grantor assigns any Article 9
Collateral or any security agreement or similar instrument covering any
Article 9 Collateral with any foreign governmental, municipal or other
office, which financing statement or analogous document, assignment, security
agreement or similar instrument is still in effect, except, in each case, for
Liens permitted pursuant to Section 6.02 of the Second Lien Credit
Agreement.  As of the date hereof, no
Grantor holds any Commercial Tort Claims in an amount in excess of $1,000,000
individually, or $5,000,000 in the aggregate except as otherwise indicated by
any such Grantor to the Collateral Agent.


SECTION
4.03. Covenants.  (a)  Each Grantor agrees to notify
the Collateral Agent of any change in (i) its legal name, (ii) its
identity or type of organization, (iii) its Federal Taxpayer
Identification Number or organizational identification number or (iv) its
jurisdiction of organization.  Each
Grantor agrees to provide certified organizational documents reflecting any of
the changes described in the first sentence of this paragraph reasonably
requested by the Collateral Agent.  Each
Grantor agrees not to effect or permit any change referred to in the preceding
sentence unless all filings have been made (or promptly after such change all
filings will be made) under the Uniform Commercial Code or otherwise that are
required in order for the Collateral Agent to continue at all times following
such change to have a valid, legal and perfected second priority security
interest in all the Article 9 Collateral. 
Each Grantor agrees to notify the Collateral Agent if any material
portion of the Article 9 Collateral owned or held by such Grantor is
damaged or destroyed.


(b)
Each Grantor agrees to maintain, at its own cost and expense, such complete and
accurate records with respect to the Article 9 Collateral owned by it as
is consistent with its current practices and in accordance with
Section 5.07 of the Second Lien Credit Agreement, and, at such time or
times as the Collateral Agent may reasonably request, to prepare and deliver to
the Collateral Agent a duly certified schedule or schedules in form and detail
reasonably satisfactory to the Collateral Agent showing the identity, amount
and location of any and all Article 9 Collateral.


(c)
Each Grantor shall, at its own expense, take all commercially reasonable
actions necessary to defend title to the Article 9 Collateral against all persons


 


17





















 


and to defend
the Security Interest of the Collateral Agent in the Article 9 Collateral
and the priority thereof against any Lien not permitted pursuant to
Section 6.02 of the Second Lien Credit Agreement.


(d)
Each Grantor agrees, upon written request by the Collateral Agent and at its
own expense, to execute, acknowledge, deliver and cause to be duly filed all
such further instruments and documents and take all such actions as the
Collateral Agent may from time to time reasonably deem necessary to obtain,
preserve, protect and perfect the Security Interest and the rights and remedies
created hereby, including the payment of any fees and Taxes required in
connection with the execution and delivery of this Agreement, the granting of
the Security Interest and the filing of any financing or continuation
statements (including fixture filings) or other documents in connection
herewith or therewith.  If any amount payable
to any Grantor under or in connection with any of the Article 9 Collateral
shall be or become evidenced by any promissory note or other instrument, such
note or instrument shall be pledged and delivered to the Collateral Agent
pursuant to Section 3 hereof, duly endorsed in a manner reasonably
satisfactory to the Collateral Agent; provided that
prior to the Discharge of First Lien Obligations, such delivery shall be made
to the First Lien Collateral Agent, acting as gratuitous bailee.


Without limiting the
generality of the foregoing, each Grantor hereby authorizes the Collateral
Agent, with prompt written notice thereof to the Grantors, to supplement this
Agreement by supplementing Schedule III or adding additional schedules
hereto to identify specifically any asset or item of a Grantor that may, in the
Collateral Agent’s reasonable judgment, constitute Copyrights, Licenses,
Patents or Trademarks; provided that
any Grantor shall have the right, exercisable within 15 Business Days
after it has been notified in writing by the Collateral Agent of the specific
identification of such Collateral, to advise the Collateral Agent in writing of
any inaccuracy of the Collateral Agent’s conclusions with respect to such
Collateral.  Each Grantor agrees that it
will use its commercially reasonable efforts to take such action as shall be
necessary in order that all representations and warranties hereunder shall be
true and correct, in all material respects, with respect to such Collateral
within 30 days after the date it has been notified in writing by the Collateral
Agent of the specific identification of such Collateral.


(e)
The Collateral Agent and such persons as the Collateral Agent may reasonably
designate shall, in accordance with Section 5.07 of the Second Lien Credit
Agreement, have the right, at the applicable Grantor’s own cost and expense, to
inspect the Article 9 Collateral, all records related thereto (and to make
extracts and copies from such records) and the premises upon which any of the
Article 9 Collateral is located, to discuss the applicable Grantor’s
affairs with the officers of such Grantor and its independent accountants and
to verify the existence, validity, amount, quality, quantity, value, condition
and status of, or any other matter relating to, the Article 9 Collateral,
including, in the case of Accounts or other Article 9 Collateral in the
possession of any third person, by contacting Account Debtors or the third
person possessing such Article 9 Collateral for the purpose of making such
a verification.  The Collateral Agent
shall have the absolute right to share any information it gains from such
inspection or verification with any Secured Party.


 


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(f)
At its option, but only following three days written notice to each
Grantor of its intent to do so, the Collateral Agent may discharge past due
Taxes, assessments, charges, fees, Liens, security interests or other
encumbrances at any time levied or placed on the Article 9 Collateral and
not expressly permitted pursuant to Section 6.02 of the Second Lien Credit
Agreement, and may pay for the maintenance and preservation of the
Article 9 Collateral to the extent any Grantor fails to do so as required
by the Second Lien Credit Agreement, and each Grantor jointly and severally
agrees to reimburse the Collateral Agent on demand for any reasonable payment
made or any reasonable expense incurred by the Collateral Agent pursuant to the
foregoing authorization; provided, however, that nothing in this paragraph shall be interpreted
as excusing any Grantor from the performance of, or imposing any obligation on
the Collateral Agent or any Secured Party to cure or perform, any covenants or
other promises of any Grantor with respect to Taxes, assessments, charges,
fees, Liens, security interests or other encumbrances and maintenance as set
forth herein or in the other Loan Documents.


(g)
Each Grantor shall remain liable to observe and perform all conditions and
obligations to be observed and performed by it under each contract, agreement
or instrument relating to the Article 9 Collateral, all in accordance with
the terms and conditions thereof.


(h)
No Grantor shall make or permit to be made an assignment, pledge or hypothecation
of the Article 9 Collateral or shall grant any other Lien in respect of
the Article 9 Collateral or permit any notice to be filed under the
Assignment of Claims Act, except, in each case, as permitted by the Second Lien
Credit Agreement or otherwise agreed in writing by the Collateral Agent.  No Grantor shall make or permit to be made
any transfer of the Article 9 Collateral except as permitted by the Second
Lien Credit Agreement.


(i)
At any time following the occurrence and during the continuance of an Event of
Default, no Grantor will, without the Collateral Agent’s prior written consent,
grant any extension of the time of payment of any Accounts included in the
Article 9 Collateral, compromise, compound or settle the same for less
than the full amount thereof, release, wholly or partly, any person liable for
the payment thereof or allow any credit or discount whatsoever thereon.


(j)
Each Grantor, at its own expense, shall maintain or cause to be maintained
insurance covering physical loss or damage to the Inventory and Equipment in
accordance with the requirements set forth in Section 5.02 of the Second
Lien Credit Agreement.  Each Grantor
irrevocably makes, constitutes and appoints the Collateral Agent (and all
officers, employees or agents designated by the Collateral Agent) as such
Grantor’s true and lawful agent (and attorney-in-fact) for the purpose, upon
the occurrence and during the continuance of an Event of Default, of making,
settling and adjusting claims in respect of Article 9 Collateral under
policies of insurance, endorsing the name of such Grantor on any check, draft,
instrument or other item of payment for the proceeds of such policies of
insurance and for making all determinations and decisions with respect thereto.  In the event that any Grantor at any time or
times shall fail to obtain 


 


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or maintain any of the
policies of insurance required under the Second Lien Credit Agreement or to pay
any premium in whole or part relating thereto, the Collateral Agent may,
without waiving or releasing any obligation or liability of any Grantor
hereunder or any Default or Event of Default, in its sole discretion, obtain
and maintain such policies of insurance and pay such premium and take any other
actions with respect thereto as the Collateral Agent deems advisable. All sums
disbursed by the Collateral Agent in connection with this paragraph, including
attorneys’ fees, court costs, expenses and other charges relating thereto,
shall be payable, upon demand, by the Grantors to the Collateral Agent and
shall be additional Obligations secured hereby.


SECTION
4.04. Other Actions.  In order to further insure the attachment,
perfection and priority of, and the ability of the Collateral Agent to enforce,
the Security Interest in the Article 9 Collateral, each Grantor agrees, in
each case at such Grantor’s own expense, to take the following actions with
respect to the following Article 9 Collateral:


(a) Instruments.
If any Grantor shall at any time hold or acquire any Instruments in excess of
$1,000,000 individually, or $5,000,000 in the aggregate such Grantor shall
forthwith endorse and assign the same to the Collateral Agent (and deliver the
same to the Collateral Agent or, prior to the Discharge of First Lien
Obligations, to the First Lien Collateral Agent, as gratuitous bailee),
accompanied by such undated instruments of endorsement, transfer or assignment
duly executed in blank as the Collateral Agent may from time to time reasonably
specify.


(b) Investment Property.
Except to the extent otherwise provided in Article III, if any Grantor
shall at any time hold or acquire any certificated securities, such Grantor
shall forthwith endorse and assign the same to the Collateral Agent (and
deliver the same to the Collateral Agent or, prior to the Discharge of First
Lien Obligations, to the First Lien Collateral Agent, as gratuitous bailee),
accompanied by such undated instruments of transfer or assignment duly executed
in blank as the Collateral Agent may from time to time reasonably specify.


(c) Electronic Chattel Paper and
Transferable Records. If any Grantor at any time holds or
acquires an interest in an amount in excess of $1,000,000 individually or
$5,000,000 in the aggregate in any Electronic Chattel Paper or any “transferable record”, as that term is defined in
Section 201 of the Federal Electronic Signatures in Global and National
Commerce Act, or in Section 16 of the Uniform Electronic Transactions Act
as in effect in any relevant jurisdiction, such Grantor shall promptly notify
the Collateral Agent thereof and, at the request of the Collateral Agent, shall
take such action as the Collateral Agent may reasonably request to vest in the
Collateral Agent or, prior to the Discharge of First Lien Obligations, to the
First Lien Collateral Agent, as gratuitous bailee, control under New York
UCC Section 9-105 of such Electronic Chattel Paper or control under
Section 201 of the Federal Electronic Signatures in Global and National
Commerce Act or, as the case may be, Section 16 of the 


 


 


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Uniform
Electronic Transactions Act, as so in effect in such jurisdiction, of such
transferable record.  The Collateral
Agent agrees with such Grantor that the Collateral Agent will arrange, pursuant
to procedures reasonably satisfactory to the Collateral Agent and so long as
such procedures will not result in the Collateral Agent’s loss of control, for
the Grantor to make alterations to the Electronic Chattel Paper or transferable
record permitted under UCC Section 9-105 or, as the case may be,
Section 201 of the Federal Electronic Signatures in Global and National
Commerce Act or Section 16 of the Uniform Electronic Transactions Act for
a party in control to allow without loss of control, unless an Event of Default
has occurred and is continuing or would occur after taking into account any
action by such Grantor with respect to such Electronic Chattel Paper or
transferable record.


(d) Letter-of-Credit Rights.
If any Grantor is at any time a beneficiary under a letter of credit in excess
of $1,000,000 individually, or $5,000,000 in the aggregate, now or hereafter
issued in favor of such Grantor, such Grantor shall notify the Collateral Agent
thereof and, at the reasonable request and option of the Collateral Agent, and,
subject to the rights of the First Lien Collateral Agent and the obligations of
the Grantors under the First Lien Loan Documents and the Intercreditor
Agreement, such Grantor shall, pursuant to an agreement in form and substance
reasonably satisfactory to the Collateral Agent, use commercially reasonable
efforts to either (i) arrange for the issuer and any confirmer of such
letter of credit to consent to an assignment to the Collateral Agent of the
proceeds of any drawing under the letter of credit or (ii) arrange for the
Collateral Agent to become the transferee beneficiary of the letter of credit,
with the Collateral Agent agreeing, in each case, that the proceeds of any
drawing under the letter of credit are to be paid to the applicable Grantor
unless an Event of Default has occurred or is continuing.


(e) Commercial Tort Claims.
If any Grantor shall at any time hold or acquire a Commercial Tort Claim in
excess of $1,000,000 individually, or $5,000,000 in the aggregate, the Grantor
shall notify the Collateral Agent thereof in a writing signed by such Grantor
including a summary description of such claim and grant to the Collateral
Agent, for the ratable benefit of the Secured Parties, in such writing a
security interest therein and in the proceeds thereof, all upon the terms of
this Agreement, with such writing to be in form and substance reasonably
satisfactory to the Collateral Agent.


SECTION
4.05. Covenants
Regarding Patent, Trademark and Copyright Collateral.  (a) Each Grantor agrees that it will
not, and will use commercially reasonable efforts to not permit any of its
licensees to, do any act, or omit to do any act, whereby any Patent that is
material to the conduct of such Grantor’s business may become invalidated or
dedicated to the public, and agrees that it shall use commercially reasonable
efforts to continue to mark any products covered by such a Patent with the
relevant patent number as necessary to establish and preserve its rights under
applicable patent laws.


 


 


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(b)
Each Grantor (either itself or through its licensees or its sublicensees) will,
for each Trademark material to the conduct of such Grantor’s business, use
commercially reasonable efforts to (i) maintain such Trademark in full
force free from any claim of abandonment or invalidity for non-use,
(ii) maintain the quality of products and services offered under such
Trademark, (iii) display such Trademark with notice of Federal or foreign
registration to the extent necessary to establish and preserve its rights under
applicable law and (iv) not knowingly use or knowingly permit the use of
such Trademark in violation of any third party rights.


(c)
Each Grantor (either itself or through its licensees or sublicensees) will, for
each work covered by a material Copyright, use commercially reasonable efforts
to continue to publish, reproduce, display, adopt and distribute the work with
appropriate copyright notice as necessary to establish and preserve its rights
under applicable copyright laws.


(d)
Each Grantor shall notify the Collateral Agent if it knows that any Patent,
Trademark or Copyright material to the conduct of its business may become
abandoned, lost or dedicated to the public, or of any adverse determination or
development (including the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark
Office, United States Copyright Office or any court or similar office of any
country) regarding such Grantor’s ownership of any Patent, Trademark or
Copyright, its right to register the same, or its right to keep and maintain
the same.


(e)
In no event shall any Grantor, either itself or through any agent, employee,
licensee or designee, file an application for any Patent, Trademark or
Copyright (or for the registration of any Trademark or Copyright) material to
the conduct of its business with the United States Patent and Trademark Office,
United States Copyright Office or any office or agency in any political
subdivision of the United States or in any other country or any political
subdivision thereof, unless it promptly notifies (which notice may be given
after such filing) the Collateral Agent, and, upon written request of the
Collateral Agent, executes and delivers any and all agreements, instruments,
documents and papers as the Collateral Agent may reasonably request to evidence
the Security Interest in such Patent, Trademark or Copyright, and each Grantor
hereby appoints the Collateral Agent as its attorney-in-fact to execute and
file such writings for the foregoing purposes, all acts of such attorney being
hereby ratified and confirmed; such power, being coupled with an interest, is
irrevocable until this Agreement terminates.


(f)
Each Grantor will take all reasonable and necessary steps that are consistent
with the practice in any proceeding before the United States Patent and
Trademark Office, United States Copyright Office or any office or agency in any
political subdivision of the United States or in any other country or any
political subdivision thereof, to maintain and pursue each material application
relating to the Patents, Trademarks and/or Copyrights (and to obtain the
relevant grant or registration) and to maintain each issued Patent and each
registration of the Trademarks and Copyrights that is material to the conduct
of any Grantor’s business, including timely filings of 


 


 


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applications for renewal,
affidavits of use, affidavits of incontestability and payment of maintenance
fees, and, if consistent with good business judgment, to initiate opposition,
interference and cancelation proceedings against third parties.


(g)
In the event that any Grantor knows or has reason to believe that any Article 9
Collateral consisting of a Patent, Trademark or Copyright material to the
conduct of any Grantor’s business has been or is about to be infringed,
misappropriated or diluted by a third person, such Grantor promptly shall, if
consistent with good business judgment, sue for infringement, misappropriation
or dilution and to recover any and all damages for such infringement,
misappropriation or dilution, and take such other commercially reasonable
actions as are appropriate under the circumstances to protect such
Article 9 Collateral.


(h)
Upon the occurrence and during the continuance of an Event of Default, each
Grantor shall, at the written request of the Collateral Agent, use its
commercially reasonable efforts to obtain all requisite consents or approvals
by the licensor of each Copyright License, Patent License or Trademark License,
and each other material License, to effect the assignment of all such Grantor’s
right, title and interest thereunder to the Collateral Agent, for the ratable
benefit of the Secured Parties, or its designee.


ARTICLE V


 


Remedies


SECTION
5.01. Remedies Upon
Default.  Upon the
occurrence and during the continuance of an Event of Default, each Grantor
agrees to deliver each item of Collateral to the Collateral Agent on demand, and
it is agreed that the Collateral Agent shall have the right to take any of or
all the following actions at the same or different times: (a) with respect
to any Article 9 Collateral consisting of Intellectual Property, on
demand, to cause the Security Interest to become an assignment, transfer and
conveyance of any of or all such Article 9 Collateral by the applicable Grantor
to the Collateral Agent, or to license or sublicense, whether general, special
or otherwise, and whether on an exclusive or nonexclusive basis, any such
Article 9 Collateral throughout the world on such terms and conditions and
in such manner as the Collateral Agent shall determine (other than in violation
of any then-existing licensing arrangements to the extent that waivers cannot be
obtained), and (b) with or without legal process and with or without prior
notice or demand for performance, to take possession of the Article 9
Collateral without breach of the peace, to, subject to the terms of any related
lease agreement, enter any premises where the Article 9 Collateral may be
located for the purpose of taking possession of or removing the Article 9
Collateral and, generally, to exercise any and all rights afforded to a secured
party under the Uniform Commercial Code or other applicable law.  Without limiting the generality of the
foregoing, each Grantor agrees that the Collateral Agent shall have the right,
subject to the mandatory requirements of applicable law, to sell or otherwise
dispose of all or any part of the Collateral at a public or private sale or at
any broker’s board or on any securities exchange upon such 


 


 


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commercially reasonable
terms and conditions as it may deem advisable, for cash, upon credit or for
future delivery as the Collateral Agent shall deem appropriate.  The Collateral Agent shall be authorized at
any such sale (if it deems it advisable to do so) to restrict the prospective
bidders or purchasers to persons who will represent and agree that they are
purchasing the Collateral for their own account for investment and not with a
view to the distribution or sale thereof, and upon consummation of any such
sale the Collateral Agent shall have the right to assign, transfer and deliver
to the purchaser or purchasers thereof the Collateral so sold.  Each such purchaser at any such sale shall
hold the property sold absolutely, free from any claim or right on the part of
any Grantor, and each Grantor hereby waives (to the extent permitted by law)
all rights of redemption, stay and appraisal which such Grantor now has or may
at any time in the future have under any rule of law or statute now existing or
hereafter enacted.


The Collateral Agent shall give each applicable Grantor ten days’
written notice (which each Grantor agrees is reasonable notice within the
meaning of Section 9-611 of the New York UCC or its equivalent
in other jurisdictions) of the Collateral Agent’s intention to make any sale of
Collateral.  Such notice, in the case of
a public sale, shall state the time and place for such sale and, in the case of
a sale at a broker’s board or on a securities exchange, shall state the board
or exchange at which such sale is to be made and the day on which the
Collateral, or portion thereof, will first be offered for sale at such board or
exchange.  Any such public sale shall be
held at such time or times within ordinary business hours and at such place or
places as the Collateral Agent may fix and state in the notice (if any) of such
sale.  At any such sale, the Collateral,
or portion thereof, to be sold may be sold in one lot as an entirety or in
separate parcels, as the Collateral Agent may (in its sole and absolute
discretion) determine.  The Collateral
Agent shall not be obligated to make any sale of any Collateral if it shall
determine not to do so, regardless of the fact that notice of sale of such
Collateral shall have been given.  The
Collateral Agent may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned.  In case any sale of all or
any part of the Collateral is made on credit or for future delivery, the
Collateral so sold may be retained by the Collateral Agent until the sale price
is paid by the purchaser or purchasers thereof, but the Collateral Agent shall
not incur any liability in case any such purchaser or purchasers shall fail to
take up and pay for the Collateral so sold and, in case of any such failure,
such Collateral may be sold again upon like notice.  At any public (or, to the extent permitted by
law, private) sale made pursuant to this Agreement, any Secured Party may bid
for or purchase, free (to the extent permitted by applicable law) from any
right of redemption, stay, valuation or appraisal on the part of any Grantor
(all said rights being also hereby waived and released to the extent permitted
by applicable law), the Collateral or any part thereof offered for sale and may
make payment on account thereof by using any claim then due and payable to such
Secured Party from any Grantor as a credit against the purchase price, and such
Secured Party may, upon compliance with the terms of sale, hold, retain and
dispose of such property without further accountability to any Grantor
therefor.  For purposes hereof, a written
agreement to purchase the Collateral or any portion thereof shall be treated as
a sale thereof; the Collateral Agent shall be free to carry out such sale
pursuant 


 


 


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to such agreement and no Grantor shall be entitled
to the return of the Collateral or any portion thereof subject thereto,
notwithstanding the fact that after the Collateral Agent shall have entered
into such an agreement all Events of Default shall have been remedied and the
Obligations paid in full.  As an
alternative to exercising the power of sale herein conferred upon it, the
Collateral Agent may proceed by a suit or suits at law or in equity to
foreclose this Agreement and to sell the Collateral or any portion thereof
pursuant to a judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a court-appointed receiver.  Any sale pursuant to the provisions of this
Section 5.01 shall be deemed to conform to the commercially reasonable
standards as provided in Section 9-610(b) of the New York UCC
or its equivalent in other jurisdictions.


Any remedies provided in this Section 5.01 shall be subject to the
Intercreditor Agreement.


SECTION
5.02. Application of
Proceeds.  Subject to the
Intercreditor Agreement, unless otherwise set forth in the Intercreditor
Agreement, if an Event of Default shall have occurred and be continuing the
Collateral Agent shall apply the proceeds of any collection, sale, foreclosure
or other realization upon any Collateral as follows:


FIRST, to the payment of all
reasonable costs and expenses incurred by the Administrative Agent or the Collateral
Agent (in their respective capacities as such hereunder or under any other Loan
Document) in connection with such collection, sale, foreclosure or realization
or otherwise in connection with this Agreement, any other Loan Document or any
of the Obligations, including all court costs and the reasonable fees and
out-of-pocket expenses of its agents and one legal counsel in each
jurisdiction, the repayment of all advances made by the Administrative Agent
and/or the Collateral Agent hereunder or under any other Loan Document on
behalf of any Grantor and any other reasonable costs or out-of-pocket expenses
incurred in connection with the exercise of any right or remedy hereunder or
under any other Loan Document;


SECOND, to the payment in
full of Unfunded Advances/Participations;


THIRD, to the payment in
full of all other Obligations (the amounts so applied to be distributed among
the Secured Parties pro rata in accordance with the amounts of the Obligations
owed to them on the date of any such distribution);


FOURTH, to the Second Lien
Collateral Agent, in accordance with the Intercreditor Agreement; and


FIFTH, to the Grantors,
their successors or assigns, or to whomever may be lawfully entitled to receive
the same.


Upon
any sale of Collateral by the Collateral Agent (including pursuant to a power
of sale granted by statute or under a judicial proceeding), the receipt of the
Collateral Agent or of the officer making the sale shall be a sufficient
discharge to the purchaser or 


 


 


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purchasers
of the Collateral so sold and such purchaser or purchasers shall not be
obligated to see to the application of any part of the purchase money paid over
to the Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.


SECTION
5.03. Grant of License
to Use Intellectual Property. 
For the purpose of enabling the Collateral Agent to exercise rights and
remedies under this Agreement at such time as the Collateral Agent shall be
lawfully entitled (subject to the terms of the Intercreditor Agreement) to
exercise such rights and remedies, each Grantor hereby grants to the Collateral
Agent an irrevocable (until the termination of this Agreement), nonexclusive
license, subject in all respects to any existing licenses (exercisable without
payment of royalty or other compensation to the Grantors), to use, license or
sublicense any of the Article 9 Collateral consisting of Intellectual
Property now owned or hereafter acquired by such Grantor, and wherever the same
may be located, and including in such license access to all media in which any
of the licensed items may be recorded or stored and to all computer software
and programs used for the compilation or printout thereof.  The use of such license by the Collateral
Agent may be exercised, at the option of the Collateral Agent, only upon the
occurrence and during the continuation of an Event of Default; provided, however,
that any license, sublicense or other transaction entered into by the
Collateral Agent in accordance herewith shall be binding upon each Grantor
notwithstanding any subsequent cure of an Event of Default.


SECTION
5.04. Securities Act,
Etc.  In view of the
position of the Grantors in relation to the Pledged Collateral, or because of
other current or future circumstances, a question may arise under the U.S.
Securities Act of 1933, as now or hereafter in effect, or any similar statute
hereafter enacted analogous in purpose or effect (such Act and any such similar
statute as from time to time in effect being called the “Federal Securities Laws”)
with respect to any disposition of the Pledged Collateral permitted
hereunder.  Each Grantor understands that
compliance with the Federal Securities Laws might very strictly limit the
course of conduct of the Collateral Agent if the Collateral Agent were to
attempt to dispose of all or any part of the Pledged Collateral, and might also
limit the extent to which or the manner in which any subsequent transferee of
any Pledged Collateral could dispose of the same.  Similarly, there may be other legal
restrictions or limitations affecting the Collateral Agent in any attempt to
dispose of all or part of the Pledged Collateral under applicable “blue sky” or
other state securities laws or similar laws analogous in purpose or
effect.  Each Grantor recognizes that in
light of such restrictions and limitations the Collateral Agent may, with
respect to any sale of the Pledged Collateral, limit the purchasers to those
who will agree, among other things, to acquire such Pledged Collateral for
their own account, for investment, and not with a view to the distribution or
resale thereof.  Each Grantor
acknowledges and agrees that in light of such restrictions and limitations, the
Collateral Agent, in its sole and absolute discretion (a) may proceed to
make such a sale whether or not a registration statement for the purpose of
registering such Pledged Collateral or part thereof shall have been filed under
the Federal Securities Laws and (b) may approach and negotiate with a limited
number of potential purchasers (including a single potential purchaser) to
effect such sale.  Each Grantor
acknowledges and agrees that any such sale might result in prices and other
terms less favorable to the seller than if such sale were a 


 


 


26





















 


public sale without such
restrictions. In the event of any such sale, the Collateral Agent shall incur
no responsibility or liability for selling all or any part of the Pledged
Collateral at a price that the Collateral Agent, in its sole and absolute
discretion, may in good faith deem reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid
or if more than a limited number of purchasers (or a single purchaser) were
approached.  The provisions of this
Section 5.04 will apply notwithstanding the existence of a public or
private market upon which the quotations or sales prices may exceed
substantially the price at which the Collateral Agent sells.


ARTICLE VI


 


Indemnity,
Subrogation and Subordination


SECTION
6.01. Indemnity and
Subrogation.  In addition
to all such rights of indemnity and subrogation as the Guarantors may have
under applicable law (but subject to Section 6.03), the Borrower agrees
that (a) in the event a payment shall be made by any Guarantor under this
Agreement, the Borrower shall indemnify such Guarantor for the full amount of
such payment and such Guarantor shall be subrogated to the rights of the person
to whom such payment shall have been made to the extent of such payment and
(b) in the event any assets of any Guarantor shall be sold pursuant to
this Agreement or any other Security Document to satisfy in whole or in part a
claim of any Secured Party, the Borrower shall indemnify such Guarantor in an
amount equal to the greater of the book value or the fair market value of the
assets so sold.


SECTION
6.02. Contribution and
Subrogation.  Each
Guarantor (a “Contributing
Guarantor”) agrees (subject to Section 6.03) that, in the
event a payment shall be made by any other Guarantor hereunder in respect of
any Obligation, or assets of any other Guarantor shall be sold pursuant to any
Security Document to satisfy any Obligation owed to any Secured Party, and such
other Guarantor (the “Claiming
Guarantor”) shall not have been fully indemnified by the
Borrower as provided in Section 6.01, the Contributing Guarantor shall
indemnify the Claiming Guarantor in an amount equal to (i) the amount of
such payment or (ii) the greater of the book value or the fair market
value of such assets, as the case may be, in each case multiplied by a fraction
of which the numerator shall be the net worth of the Contributing Guarantor on
the date hereof and the denominator shall be the aggregate net worth of all the
Guarantors on the date hereof (or, in the case of any Guarantor becoming a
party hereto pursuant to Section 7.15, the date of the supplement hereto
executed and delivered by such Guarantor). 
Any Contributing Guarantor making any payment to a Claiming Guarantor
pursuant to this Section 6.02 shall be subrogated to the rights of such
Claiming Guarantor under Section 6.01 to the extent of such payment.


SECTION
6.03. Subordination.  (a) Notwithstanding any provision of
this Agreement to the contrary, all rights of the Guarantors under
Sections 6.01 and 6.02 and all other rights of indemnity, contribution or
subrogation under applicable law or otherwise shall be fully subordinated to
the indefeasible payment in full in cash of the 


 


 


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Loan Document Obligations as
determined in accordance with Section 7.14.  No failure on the part of the Borrower or any
Guarantor to make the payments required by Sections 6.01 and 6.02 (or any
other payments required under applicable law or otherwise) shall in any respect
limit the obligations and liabilities of any Guarantor with respect to its
obligations hereunder, and each Guarantor shall remain liable for the full
amount of its obligations hereunder.


(b)
The Borrower and each Guarantor hereby agree that all Indebtedness and other
monetary obligations owed by it to any Subsidiary that is not a Loan Party
shall be subordinated to the indefeasible payment in full of the Loan Document
Obligations (it being understood that so long as no Event of Default is
continuing, payments may be made in respect of such Indebtedness).


ARTICLE VII


 


Miscellaneous


SECTION
7.01. Notices.  All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 9.01 of the Second Lien Credit Agreement.  All communications and notices hereunder to
any Subsidiary Guarantor shall be given to it in care of the Borrower as
provided in Section 9.01 of the Second Lien Credit Agreement.


SECTION
7.02. Survival of
Agreement.  All covenants,
agreements, representations and warranties made by the Loan Parties in the Loan
Documents and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the Lenders and shall survive the
execution and delivery of the Loan Documents and the making of any Loans, regardless
of any investigation made by any Lender or on their behalf and notwithstanding
that the Collateral Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended under the Second Lien Credit Agreement, and shall continue in full
force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under any Loan Document is
outstanding and unpaid and so long as the Commitments have not expired or
terminated.


SECTION
7.03. Binding Effect;
Several Agreement.  This
Agreement shall become effective as to any Loan Party when a counterpart hereof
executed on behalf of such Loan Party shall have been delivered to the
Collateral Agent and a counterpart hereof shall have been executed on behalf of
the Collateral Agent, and thereafter shall be binding upon such Loan Party and
the Collateral Agent and their respective permitted successors and assigns, and
shall inure to the benefit of such Loan Party, the Collateral Agent and the
other Secured Parties and their respective successors and permitted assigns,
except that no Loan Party shall have the right to assign or transfer its rights
or obligations hereunder or any interest herein or in the Collateral (and any
such assignment or transfer shall be void) except as contemplated or permitted
by this Agreement or the 


 


 


28





















 


Second Lien Credit
Agreement.  This Agreement shall be
construed as a separate agreement with respect to each Loan Party and may be
amended, modified, supplemented, waived or released with respect to any Loan
Party without the approval of any other Loan Party and without affecting the
obligations of any other Loan Party hereunder.


SECTION
7.04. Successors and
Assigns.  Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the permitted successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of any Grantor or the
Collateral Agent that are contained in this Agreement shall bind and inure to
the benefit of their respective successors and assigns.


SECTION
7.05. Collateral Agent’s
Fees and Expenses; Indemnification.  (a) The parties hereto agree that the
Collateral Agent shall be entitled to reimbursement of its expenses incurred
hereunder as provided in Section 9.05 of the Second Lien Credit Agreement.


(b)
Without limitation of its indemnification obligations under the other Loan
Documents, each Grantor jointly and severally agrees to indemnify the
Collateral Agent and the other Indemnitees against, and hold each Indemnitee
harmless from, any and all costs, expenses (including reasonable fees,
out-of-pocket disbursements and other charges of one primary counsel and one
local counsel to the Indemnitees (taken as a whole) in each relevant
jurisdiction; provided, that if (a) one or
more Indemnitees shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to one or more other Indemnitees or (b) the representation of
the Indemnitees (or any portion thereof) by the same counsel would be
inappropriate due to actual or potential differing interests between them, then
such expenses shall include the reasonable fees, out-of-pocket disbursements
and other charges of one separate counsel to such Indemnitees, taken as a
whole, in each relevant jurisdiction) and liabilities arising out of or in
connection with the execution, delivery or performance of this Agreement or any
agreement or instrument contemplated hereby or any claim, litigation,
investigation or proceeding relating to any of the foregoing or to the
Collateral, regardless of whether any Indemnitee is a party thereto or whether
initiated by a third party or by a Loan Party or any Affiliate thereof; provided, however,
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such costs, expenses or liabilities resulted from the gross negligence,
bad faith or wilful misconduct of such Indemnitee or material breach of its
obligations hereunder.  To the extent
permitted by applicable law, no party hereto shall assert, and each party
hereto hereby waives any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions or the use of proceeds thereof.


(c)
Any such amounts payable as provided hereunder shall be additional Obligations
secured hereby and by the other Security Documents. The provisions of this
Section 7.05 shall survive termination of this Agreement or any other Loan
Document, 


 


 


29





















 


the consummation of the
transactions contemplated hereby, the repayment of any of the Obligations, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document.


SECTION
7.06. Collateral Agent
Appointed Attorney-in-Fact. 
Each Grantor hereby appoints the Collateral Agent as the
attorney-in-fact of such Grantor for the purpose of carrying out the provisions
of this Agreement and taking any action and executing any instrument that the
Collateral Agent may deem necessary or advisable to accomplish the purposes
hereof, which appointment is irrevocable and coupled with an interest. Without
limiting the generality of the foregoing, the Collateral Agent shall have the
right, upon the occurrence and during the continuance of an Event of Default,
with full power of substitution either in the Collateral Agent’s name or in the
name of such Grantor (a) to receive, endorse, assign and/or deliver any
and all notes, acceptances, checks, drafts, money orders or other evidences of
payment relating to the Collateral or any part thereof, (b) to demand,
collect, receive payment of, give receipt for and give discharges and releases
of all or any of the Collateral, (c) to sign the name of any Grantor on
any invoice or bill of lading relating to any of the Collateral, (d) to
send verifications of Accounts to any Account Debtor, (e) to commence and
prosecute any and all suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect or otherwise realize on all or any
of the Collateral or to enforce any rights in respect of any Collateral,
(f) to settle, compromise, compound, adjust or defend any actions, suits
or proceedings relating to all or any of the Collateral, (g) to notify, or
to require any Grantor to notify, Account Debtors to make payment directly to
the Collateral Agent, and (h) to use, sell, assign, transfer, pledge, make
any agreement with respect to or otherwise deal with all or any of the
Collateral, and to do all other acts and things necessary to carry out the
purposes of this Agreement in accordance with its terms, as fully and
completely as though the Collateral Agent were the absolute owner of the
Collateral for all purposes; provided,
however, that nothing herein
contained shall be construed as requiring or obligating the Collateral Agent to
make any commitment or to make any inquiry as to the nature or sufficiency of
any payment received by the Collateral Agent, or to present or file any claim
or notice, or to take any action with respect to the Collateral or any part
thereof or the moneys due or to become due in respect thereof or any property
covered thereby. The Collateral Agent and the other Secured Parties shall be
accountable only for amounts actually received as a result of the exercise of
the powers granted to them herein, and neither they nor their officers,
directors, employees or agents shall be responsible to any Grantor for any act
or failure to act hereunder, except for their own gross negligence, wilful
misconduct or bad faith.  The foregoing
powers of attorney being coupled with an interest, are irrevocable until the
Security Interest shall have terminated in accordance with the terms hereof.


SECTION
7.07. Applicable Law.  THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.


SECTION
7.08. Waivers;
Amendment.  (a) No
failure or delay by the Collateral Agent, the Administrative Agent or any
Lender in exercising any right or power hereunder or under any other Loan
Document shall operate as a waiver hereof or 


 


 


30





















 


thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Collateral Agent, the Administrative Agent and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of any Loan Document or consent to any departure by any Loan
Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section 7.08, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given.  Without limiting the
generality of the foregoing, the making of a Loan shall not be construed as a
waiver of any Default, regardless of whether the Collateral Agent, any Lender
may have had notice or knowledge of such Default at the time.  Except as otherwise provided herein, no
notice or demand on any Loan Party in any case shall entitle any Loan Party to
any other or further notice or demand in similar or other circumstances.


(b)
Neither this Agreement nor any provision hereof may be waived, amended or
modified except pursuant to an agreement or agreements in writing entered into
by the Collateral Agent and the Loan Party or Loan Parties with respect to
which such waiver, amendment or modification is to apply, subject to any
consent required in accordance with Section 9.08 of the Second Lien Credit
Agreement.


SECTION
7.09. WAIVER OF JURY
TRIAL.  EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 7.09.


SECTION
7.10. Severability.  In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.


 


 


31





















 


SECTION
7.11. Counterparts.  This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together
shall constitute a single contract, and shall become effective as provided in
Section 7.03.  Delivery of an
executed signature page to this Agreement by facsimile transmission shall be as
effective as delivery of a manually signed counterpart of this Agreement.


SECTION
7.12. Headings.  Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.


SECTION
7.13. Jurisdiction;
Consent to Service of Process. 
(a) Each of the Grantors and the Secured Parties, by their
acceptance of the benefits of this Agreement hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or Federal court of the United States of America,
sitting in New York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement or any other
Loan Document, or for recognition or enforcement of any judgment, and each of
the Loan Parties and the Secured Parties, by their acceptance of the benefits
of this Agreement hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in such
New York State or, to the extent permitted by law, in such Federal
court.  Each of the Loan Parties and the
Secured Parties, by their acceptance of the benefits of this Agreement agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement or any other Loan Document
shall affect any right that the Collateral Agent, the Administrative Agent or
any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Loan Document against any Grantor or its properties
in the courts of any jurisdiction.


(b)
Each of the Loan Parties and the Secured Parties, by their acceptance of the
benefits of this Agreement hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (a) of this Section.  Each of the Loan Parties and the Secured
Parties, by their acceptance of the benefits of this Agreement hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.


(c)
Each of the Loan Parties and the Secured Parties, by their acceptance of the
benefits of this Agreement hereby irrevocably consents to service of process in
the manner provided for notices in Section 7.01.  Nothing in this Agreement or any other Loan
Document will affect the right of the Collateral Agent or the Grantors to serve
process in any other manner permitted by law.


 


 


32





















 


SECTION
7.14. Termination or
Release.  (a) This
Agreement, the Guarantees made herein, the Security Interest, the pledge of the
Pledged Collateral and all other security interests granted hereby shall
terminate when all the then existing Loan Document Obligations have been paid
in full and the Lenders have no further commitment to lend under the Second
Lien Credit Agreement.


(b)
A Subsidiary Guarantor shall automatically be released from its obligations
hereunder and the Security Interests created hereunder in the Collateral of
such Subsidiary Guarantor shall be automatically released upon the consummation
of any transaction permitted by the Second Lien Credit Agreement as a result of
which such Subsidiary Guarantor ceases to be a Subsidiary.


(c)
Upon any sale or other transfer by any Grantor of any Collateral that is
permitted under the Second Lien Credit Agreement to any person that is not the
Borrower or a Grantor, or, upon the effectiveness of any written consent to the
release of the Security Interest granted hereby in any Collateral pursuant to
Section 9.08 of the Second Lien Credit Agreement, the Security Interest in
such Collateral shall be automatically released.


(d)
In connection with any termination or release pursuant to paragraph (a),
(b) or (c) above, the Collateral Agent shall promptly execute and deliver to
any Grantor, at such Grantor’s expense, all Uniform Commercial Code termination
statements and similar documents that such Grantor shall reasonably request to
evidence such termination or release. Any execution and delivery of documents
pursuant to this Section 7.14 shall be without recourse to or
representation or warranty by the Collateral Agent or any Secured Party.  Without limiting the provisions of
Section 7.05, the Borrower shall reimburse the Collateral Agent upon
demand for all reasonable out-of-pocket costs and expenses, including the fees,
charges and expenses of counsel, incurred by it in connection with any action
contemplated by this Section 7.14.


SECTION
7.15. Additional
Subsidiaries.  Pursuant to
Section 5.09 of the Second Lien Credit Agreement, each Subsidiary (other
than a Foreign Subsidiary) that was not in existence or not a Subsidiary
on the Closing Date is required to enter into this Agreement as a Subsidiary
Guarantor and a Grantor upon becoming such a Subsidiary.  Upon execution and delivery by the Collateral
Agent and such Subsidiary of a supplement in the form of Exhibit A hereto,
such Subsidiary shall become a Subsidiary Guarantor and a Grantor hereunder
with the same force and effect as if originally named as a Subsidiary Guarantor
and a Grantor herein.  The execution and
delivery of any such instrument shall not require the consent of any other Loan
Party hereunder. The rights and obligations of each Loan Party hereunder shall
remain in full force and effect notwithstanding the addition of any new Loan
Party as a party to this Agreement.


SECTION
7.16. Right of Setoff.  If an Event of Default shall have occurred
and is continuing, each Secured Party is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all Collateral at any time held and other obligations at any time owing by
such Secured Party to or for the credit or the account of any Grantor against
any and all of the obligations of 


 


 


33





















 


such Grantor now or
hereafter existing under this Agreement and the other Loan Documents held by
such Secured Party, irrespective of whether or not such Secured Party shall
have made any demand under this Agreement or any other Loan Document and
although such obligations may be unmatured. 
The rights of each Secured Party under this Section are in addition to
other rights and remedies (including other rights of setoff) which such Secured
Party may have.


SECTION
7.17. Intercreditor
Agreement Governs.  NOT­WITH­STANDING
ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY INTEREST GRANTED TO THE
COLLATERAL AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, PURSUANT TO THIS
AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY THE ADMINISTRATIVE AGENT
AND THE OTHER SECURED PARTIES HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THE
INTERCREDITOR AGREEMENT.  IN THE EVENT OF
ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF THE INTERCREDITOR
AGREEMENT AND THIS AGREEMENT, THE PROVISIONS OF THE INTERCREDITOR AGREEMENT
SHALL CONTROL.


SECTION
7.18. Obligations of
Grantors.  To the extent
that the obligations of any Grantor hereunder shall conflict, or shall be
inconsistent, with the obligations of such Grantor under the First Lien
Guarantee and Collateral Agreement, the provisions of the First Lien Guarantee
and Collateral Agreement shall control.


SECTION
7.19. Delivery of
Collateral. 
Notwithstanding anything herein to the contrary, prior to the Discharge
of First Lien Obligations, to the extent any Grantor is required hereunder to
deliver Collateral to the Collateral Agent for purposes of possession and
control and is unable to do so as a result of having previously delivered such
Collateral to the First Lien Collateral Agent in accordance with the terms of
the First Lien Guarantee and Collateral Agreement, such Grantor’s obligations
hereunder with respect to such delivery shall be deemed satisfied by the
delivery to the First Lien Collateral Agent, acting as a gratuitous bailee of
the Collateral Agent.


[Remainder of page
intentionally left blank]


 


34

















 


IN WITNESS WHEREOF, the parties hereto have
duly executed this Agreement as of the day and year first above written.


 


 


	
   

  	
  HAWKEYE INTERMEDIATE, LLC,

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


 


	
   

  	
  THL-HAWKEYE ACQUISITION LLC,

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


 


	
   

  	
  EACH OF THE SUBSIDIARIS LISTED ON SCHEDULE I
  HERETO,

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


 


	
   

  	
  CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as
  Collateral Agent,

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


 


35

















 


Schedule I to the


Second Lien Guarantee and


Collateral
Agreement


 


 


SUBSIDIARY GUARANTORS


 


NONE


 


 

















 


Schedule II to the 


Second Lien Guarantee and



Collateral
Agreement


 


 


EQUITY INTERESTS


 


 


	
  Issuer

  	
   

  	
  Number of

  Certificate

  	
   

  	
  Registered

  Owner

  	
   

  	
  Number and

  Class of

  Equity Interest

  	
   

  	
  Percentage

  of Equity Interests

  	
   

  
	
  Hawkeye Renewables, LLC

  	
   

  	
  N/A

  	
   

  	
  Hawkeye Intermediate, LLC

  	
   

  	
  Membership
  Interest

  	
   

  	
  100

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


PLEDGED DEBT SECURITIES


	
  Issuer

  	
   

  	
  Principal

  Amount

  	
   

  	
  Date of Note

  	
   

  	
  Maturity Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NONE

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 

















 


Schedule III to the


Second Lien Guarantee and



Collateral
Agreement


 


 


U.S. COPYRIGHTS OWNED BY GRANTOR


U.S. Copyright Registrations


	
  Title

  	
   

  	
  Reg. No.

  	
   

  	
  Author

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NONE

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Pending U.S. Copyright Applications for Registration


	
  Title

  	
   

  	
  Author

  	
   

  	
  Class

  	
   

  	
  Date Filed

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  NONE

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Non-U.S. Copyright Registrations


	
  Country

  	
   

  	
  Title

  	
   

  	
  Reg. No.

  	
   

  	
  Author

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  NONE

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Non-U.S. Pending Copyright Applications for Registration


	
  Country

  	
   

  	
  Title

  	
   

  	
  Author

  	
   

  	
  Class

  	
   

  	
  Date Filed

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  NONE

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 

















 


 


EXCLUSIVE LICENSES


I.  Exclusive Licenses/Sublicenses
of Grantors as Licensor/Sublicensor on Date Hereof


A.  Copyrights


U.S. Copyrights


	
  Licensee Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  Title of

  U.S.

  Copyright

  	
   

  	
  Author

  	
   

  	
  Reg. No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  NONE

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Non-U.S. Copyrights


	
  Country

  	
   

  	
  Licensee Name

  and Address

  	
   

  	
  Date of

  License/

  Sublicense

  	
   

  	
  Title of

  Non-U.S.

  Copyrights

  	
   

  	
  Author

  	
   

  	
  Reg. No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  NONE

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


III-2

















 


 


B.  Patents


U.S. Patents


	
  Licensee Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  Issue Date

  	
   

  	
  Patent No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NONE

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


U.S. Patent Applications


	
  Licensee Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  Date Filed

  	
   

  	
  Application No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NONE

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Non-U.S. Patents


	
  Country

  	
   

  	
  Licensee Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  Issue

  Date

  	
   

  	
  Non-U.S.

  Patent No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  NONE

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Non-U.S. Patent Applications


	
  Country

  	
   

  	
  Licensee Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  Date

  Filed

  	
   

  	
  Application No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  NONE

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


III-3

















 


 


C.  Trademarks


U.S. Trademarks


	
  Licensee Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  U.S. Mark

  	
   

  	
  Reg. Date

  	
   

  	
  Reg. No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   NONE

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


U.S. Trademark Applications


 


	
  Licensee Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  U.S. Mark

  	
   

  	
  Date Filed

  	
   

  	
  Application No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  NONE 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Non-U.S. Trademarks


	
  Country

  	
   

  	
  Licensee Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  Non-U.S.

  Mark

  	
   

  	
  Reg. Date

  	
   

  	
  Reg. No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   NONE

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Non-U.S. Trademark Applications


	
  Country

  	
   

  	
  Licensee Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  Non-U.S.

  Mark

  	
   

  	
  Date

  Filed

  	
   

  	
  Application No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  NONE 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
													



 


 


III-4

















 


 


D.  Others


	
  Licensee Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  Subject

  Matter

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NONE

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


III-5

















 


 


II.  Exclusive Licenses/Sublicenses of Grantor as
Licensee/Sublicensee on Date Hereof


A.  Copyrights


U.S. Copyrights


	
  Licensor Name and

  Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  Title of

  U.S. Copyright

  	
   

  	
  Author

  	
   

  	
  Reg. No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  NONE

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Non-U.S. Copyrights


	
  Country

  	
   

  	
  Licensor Name

  and Address

  	
   

  	
  Date of

  License/

  Sublicense

  	
   

  	
  Title of

  Non-U.S.

  Copyrights

  	
   

  	
  Author

  	
   

  	
  Reg. No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  NONE 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


III-6














B.  Patents


U.S. Patents


	
  Licensor
  Name

  and Address

  	
   

  	
  Date
  of

  License/

  Sublicense

  	
   

  	
  Issue
  Date

  	
   

  	
  Patent
  No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NONE

  



 


 


U.S. Patent Applications


	
  Licensor Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  Date Filed

  	
   

  	
  Application No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NONE

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Non-U.S. Patents


	
  Country

  	
   

  	
  Licensor
  Name

  and Address

  	
   

  	
  Date
  of License/

  Sublicense

  	
   

  	
  Issue

  Date

  	
   

  	
  Non-U.S.

  Patent No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NONE

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Non-U.S. Patent Applications


	
  Country

  	
   

  	
  Licensor
  Name

  and Address

  	
   

  	
  Date
  of License/

  Sublicense

  	
   

  	
  Date

  Filed

  	
   

  	
  Application
  No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NONE

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


III-7

















C.  Trademarks


U.S. Trademarks


	
  Licensor
  Name

  and Address

  	
   

  	
  Date
  of License/

  Sublicense

  	
   

  	
  U.S.
  Mark

  	
   

  	
  Reg.
  Date

  	
   

  	
  Reg.
  No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NONE

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


U.S. Trademark Applications


	
  Licensor Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  U.S. Mark

  	
   

  	
  Date

  Filed

  	
   

  	
  Application No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NONE

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Non-U.S. Trademarks


	
  Country

  	
   

  	
  Licensor
  Name

  and Address

  	
   

  	
  Date
  of License/

  Sublicense

  	
   

  	
  Non-U.S.

  Mark

  	
   

  	
  Reg.
  Date

  	
   

  	
  Reg.
  No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NONE

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Non-U.S. Trademark Applications


	
  Country

  	
   

  	
  Licensor Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  Non-U.S.

  Mark

  	
   

  	
  Date

  Filed

  	
   

  	
  Application No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NONE

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


III-8

















D.  Others


	
  Licensor
  Name and Address

  	
   

  	
  Date
  of License/

  Sublicense

  	
   

  	
  Subject
  Matter

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NONE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


III-9

















PATENTS OWNED BY GRANTORS


U.S. Patents


	
  Patent
  No.

  	
   

  	
  Issue
  Date

  
	
   

  	
   

  	
   

  
	
   

  	
  NONE

  	
   

  
	
   

  	
   

  	
   

  



 


U.S. Patent Applications


	
  Patent
  Application No.

  	
   

  	
  Filing
  Date

  
	
   

  	
   

  	
   

  
	
   

  	
  NONE

  	
   

  
	
   

  	
   

  	
   

  



 


Non-U.S. Patents


	
  Country

  	
   

  	
  Issue
  Date

  	
   

  	
  Patent
  No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NONE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Non-U.S. Patent Applications


	
  Country

  	
   

  	
  Filing
  Date

  	
   

  	
  Patent
  Application No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NONE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


III-10

















TRADEMARK/TRADE NAMES OWNED BY GRANTORS


U.S. Trademark Registrations


	
  Mark

  	
   

  	
  Reg.
  Date

  	
   

  	
  Reg.
  No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NONE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


U.S. Trademark Applications


	
  Mark

  	
   

  	
  Filing
  Date

  	
   

  	
  Application
  No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NONE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


State Trademark Registrations


	
  State

  	
   

  	
  Mark

  	
   

  	
  Reg.
  Date

  	
   

  	
  Reg.
  No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NONE

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Non-U.S. Trademark Registrations


	
  Country

  	
   

  	
  Mark

  	
   

  	
  Reg.
  Date

  	
   

  	
  Reg.
  No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NONE

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


III-11












Non-U.S. Trademark Applications


	
  Country

  	
   

  	
  Mark

  	
   

  	
  Application
  Date

  	
   

  	
  Application
  No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NONE

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Trade Names


	
  Country(s)
  Where Used

  	
   

  	
  Trade
  Names

  
	
   

  	
   

  	
   

  
	
  NONE

  
	
   

  	
   

  	
   

  



 


III-12

















 


Schedule
IV to the


Second
Lien Guarantee and


Collateral
Agreement


UCC
FILING OFFICES


 


Delaware
Secretary of State


 


Buchanan
County, IA


 


Fayette
County, IA


 


Hardin
County, IA


 

















Exhibit
A to the


Second
Lien Guarantee and


Collateral
Agreement


 


SUPPLEMENT
NO. [•] (this “Supplement”)
dated as of [•], to the Second Lien Guarantee and Collateral Agreement
dated as of June 30, 2006 (the “Second Lien Guarantee and Collateral Agreement”), among HAWKEYE
INTERMEDIATE, LLC, a Delaware limited liability company (“Holdings”), HAWKEYE RENEWABLES, LLC, a
Delaware limited liability company (the “Borrower”),
each Subsidiary of the Borrower from time to time party thereto (each such
Subsidiary individually a “Subsidiary Guarantor” and collectively, the “Subsidiary Guarantors”;
the Subsidiary Guarantors, the Borrower and Holdings are referred to
collectively herein as the “Grantors”) and CREDIT SUISSE (together with
its affiliates, “Credit
Suisse”), as
second lien collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties (as defined therein).


A.  Reference is made to the
Second Lien Credit Agreement dated as of June 30, 2006 (as amended,
restated, amended and restated, supplemented or otherwise modified from time to
time, the “Second Lien Credit Agreement”),
among Holdings, the Borrower, the lenders from time to time party thereto (the
“Lenders”), and Credit Suisse, as
administrative agent for the Lenders and as Collateral Agent.


B.  Capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to such terms
in the Second Lien Credit Agreement or the Second Lien Guarantee and Collateral
Agreement referred to therein, as applicable.


C.  The Grantors have entered
into the Second Lien Guarantee and Collateral Agreement in order to induce the
Lenders to make Loans.  Section 7.15
of the Second Lien Guarantee and Collateral Agreement provides that additional
Subsidiaries of the Borrower may become Subsidiary Guarantors and Grantors
under the Second Lien Guarantee and Collateral Agreement by execution and
delivery of an instrument in the form of this Supplement.  The undersigned Subsidiary (the “New Subsidiary”) is executing this Supplement in
accordance with the requirements of the Second Lien Credit Agreement to become
a Subsidiary Guarantor and a Grantor under the Second Lien Guarantee and Collateral
Agreement in order to induce the Lenders to make Loans.


Accordingly, the Collateral Agent and the New
Subsidiary agree as follows:


SECTION 1.  In accordance with
Section 7.15 of the Second Lien Guarantee and Collateral Agreement, the
New Subsidiary by its signature below becomes a Grantor and Subsidiary
Guarantor under the Second Lien Guarantee and Collateral


 

















 


Agreement with the same force and effect as if
originally named therein as a Grantor and Subsidiary Guarantor and the New
Subsidiary hereby (a) agrees to all the terms and provisions of the Second
Lien Guarantee and Collateral Agreement applicable to it as a Grantor and
Subsidiary Guarantor thereunder and (b) represents and warrants that the
representations and warranties made by it as a Grantor and Subsidiary Guarantor
thereunder are true and correct in all material respects on and as of the date
hereof (for this purpose, as though references therein to the Closing Date were
to the date hereof).  In furtherance of
the foregoing, the New Subsidiary, as security for the payment and performance
in full of the Obligations (as defined in the Second Lien Guarantee and
Collateral Agreement), does hereby create and grant to the Collateral Agent,
its successors and assigns, for the ratable benefit of the Secured Parties,
their successors and assigns, a security interest in and lien on all of the New
Subsidiary’s right, title and interest in and to the Collateral (as defined in
the Second Lien Guarantee and Collateral Agreement) of the New Subsidiary.  Each reference to a “Grantor” or a “Subsidiary Guarantor”
in the Second Lien Guarantee and Collateral Agreement shall be deemed to
include the New Subsidiary.  The Second
Lien Guarantee and Collateral Agreement is hereby incorporated herein by
reference.


SECTION 2.  The New Subsidiary
represents and warrants to the Collateral Agent and the other Secured Parties
that this Supplement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms except as the enforceability thereof may be limited
by bankruptcy, insolvency or other similar laws relating to the enforcement of
creditors’ rights generally and by general equitable principles.


SECTION 3.  This Supplement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract. This Supplement shall
become effective when the Collateral Agent shall have received counterparts of
this Supplement that, when taken together, bear the signatures of the New
Subsidiary and the Collateral Agent. 
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.


SECTION 4.  The New
Subsidiary hereby represents and warrants that (a) set forth on Schedule I attached hereto is a true and correct
schedule of (i) any and all Equity Interests and Pledged Debt Securities
now owned by the New Subsidiary and (ii) any and all Intellectual Property
now owned by the New Subsidiary and (b) set forth under its signature
hereto, is the true and correct legal name of the New Subsidiary and its jurisdiction
of organization.


SECTION 5.  Except as expressly
supplemented hereby, the Second Lien Guarantee and Collateral Agreement shall
remain in full force and effect.


SECTION 6.  THIS SUPPLEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


A-2

















SECTION 7.  In case any one or
more of the provisions contained in this Supplement should be held invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and in the Second
Lien Guarantee and Collateral Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.


SECTION 8.  All communications
and notices hereunder shall (except as otherwise expressly permitted by the
Second Lien Guarantee and Collateral Agreement) be in writing and given as
provided in Section 9.01 of the Second Lien Credit Agreement. All
communications and notices hereunder to the New Subsidiary shall be given to it
in care of the Borrower as provided in Section 9.01 of the Second Lien
Credit Agreement.


SECTION 9.  The New Subsidiary
agrees to reimburse the Collateral Agent for its reasonable out-of-pocket
expenses in connection with this Supplement, including the reasonable fees,
other charges and disbursements of counsel for the Collateral Agent.


SECTION 10.  REFERENCE IS MADE TO
THE INTERCREDITOR AGREEMENT DATED AS OF JUNE 30, 2006 (AS AMENDED,
RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE
“INTERCREDITOR AGREEMENT”), AMONG THE BORROWER, HOLDINGS, THE DOMESTIC
SUBSIDIARIES OF THE BORROWER FROM TIME TO TIME PARTY THERETO, CREDIT SUISSE, AS
FIRST LIEN COLLATERAL AGENT (AS DEFINED THEREIN) AND CREDIT SUISSE, AS SECOND
LIEN COLLATERAL AGENT (AS DEFINED THEREIN). 
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIEN AND SECURITY
INTEREST GRANTED TO THE COLLATERAL AGENT, FOR THE BENEFIT OF THE SECURED
PARTIES, PURSUANT TO THIS AGREEMENT AND THE EXERCISE OF ANY RIGHT OR REMEDY BY
THE COLLATERAL AGENT AND THE OTHER SECURED PARTIES HEREUNDER ARE SUBJECT TO THE
PROVISIONS OF THE INTERCREDITOR AGREEMENT. 
IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF
THE INTERCREDITOR AGREEMENT AND THIS AGREEMENT, THE PROVISIONS OF THE
INTERCREDITOR AGREEMENT SHALL CONTROL.


[Remainder of page
intentionally left blank]


 


A-3

















IN WITNESS WHEREOF, the New Subsidiary and
the Collateral Agent have duly executed this Supplement to the Second Lien
Guarantee and Collateral Agreement as of the day and year first above written.


	
   

  	
  [NAME OF NEW
  SUBSIDIARY],

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
  Address:

  
	
   

  	
   

  	
   

  	
  Legal
  Name:

  
	
   

  	
   

  	
   

  	
  Jurisdiction
  of Formation:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Collateral
  Agent,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  



 


 


 


 


A-4

















 


Exhibit B to the 


Second Lien Guarantee and



Collateral Agreement


Collateral of the New Subsidiary


EQUITY INTERESTS




	
  Issuer

  	
   

  	
  Number of

  Certificate

  	
   

  	
  Registered

  Owner

  	
   

  	
  Number and

  Class of

  Equity Interest

  	
   

  	
  Percentage

  of Equity Interests

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






PLEDGED DEBT SECURITIES


	
  Issuer

  	
   

  	
  Principal

  Amount

  	
   

  	
  Date of Note

  	
   

  	
  Maturity Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



INTELLECTUAL PROPERTY


 


[Follow
format of Schedule III to the


Second
Lien Guarantee and Collateral Agreement.]


 


 

















EXHIBIT E




 





 


INTERCREDITOR AGREEMENT


dated as of


June 30, 2006,


among


THL-HAWKEYE ACQUISITION LLC

(to be merged with and into HAWKEYE RENEWABLES, LLC),


as Borrower,


HAWKEYE INTERMEDIATE, LLC,


as Holdings,



the Subsidiaries of THL-ACQUISITION LLC and HAWKEYE INTERMEDIATE, LLC

from time to time party hereto,


CREDIT SUISSE,


as First Lien Collateral
Agent


and


CREDIT SUISSE,


as Second Lien Collateral Agent


 


THIS IS THE INTERCREDITOR AGREEMENT REFERRED TO IN (A) THE FIRST
LIEN GUARANTEE AND COLLATERAL AGREEMENT OF EVEN DATE HEREWITH AMONG THL-HAWKEYE
ACQUISITION LLC (TO BE MERGED WITH AND INTO HAWKEYE RENEWABLES, LLC), HAWKEYE
INTERMEDIATE, LLC, CERTAIN SUBSIDIARIES OF HAWKEYE RENEWABLES, LLC AND CREDIT
SUISSE, (B) THE SECOND LIEN GUARANTEE AND COLLATERAL AGREEMENT OF EVEN
DATE HEREWITH AMONG THL-HAWKEYE ACQUISITION LLC (TO BE MERGED WITH AND INTO
HAWKEYE RENEWABLES, LLC), HAWKEYE INTERMEDIATE, LLC, CERTAIN SUBSIDIARIES OF  HAWKEYE RENEWABLES, LLC AND CREDIT SUISSE, AND
(C) THE OTHER SECURITY DOCUMENTS REFERRED TO IN THE CREDIT AGREEMENTS
REFERRED TO HEREIN.




 





[CS&M
Ref No. 5865-457]


 


 


 

















 


TABLE
OF CONTENTS


ARTICLE
I



DEFINITIONS


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
  SECTION 1.01.

  	
   

  	
  Certain Defined Terms

  	
   

  	
  2

  
	
  SECTION 1.02.

  	
   

  	
  Other Defined Terms

  	
   

  	
  2

  
	
  SECTION 1.03.

  	
   

  	
  Terms Generally

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIEN PRIORITIES

  
	
  SECTION
  2.01.

  	
   

  	
  Relative Priorities

  	
   

  	
  7

  
	
  SECTION 2.02.

  	
   

  	
  Prohibition on Contesting Liens

  	
   

  	
  8

  
	
  SECTION 2.03.

  	
   

  	
  No New Liens

  	
   

  	
  8

  
	
  SECTION 2.04.

  	
   

  	
  Similar Liens and Agreements

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ENFORCEMENT OF RIGHTS; MATTERS RELATING TO COLLATERAL

  
	
   

  
	
  SECTION 3.01.

  	
   

  	
  Exercise of Rights and Remedies

  	
   

  	
  9

  
	
  SECTION 3.02.

  	
   

  	
  No Interference

  	
   

  	
  11

  
	
  SECTION 3.03.

  	
   

  	
  Rights as Unsecured Creditors

  	
   

  	
  13

  
	
  SECTION 3.04.

  	
   

  	
  Automatic Release of Second Priority Liens

  	
   

  	
  13

  
	
  SECTION 3.05.

  	
   

  	
  Insurance and Condemnation Awards

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PAYMENTS

  
	
   

  
	
  SECTION 4.01.

  	
   

  	
  Application of Proceeds

  	
   

  	
  14

  
	
  SECTION 4.02.

  	
   

  	
  Payment Over

  	
   

  	
  14

  
	
  SECTION 4.03.

  	
   

  	
  Certain Agreements with Respect to Unenforceable Liens

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BAILMENT FOR PERFECTION OF CERTAIN SECURITY INTERESTS

  
	
   

  
	
   

  
							



 


 

















 


	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  INSOLVENCY OR LIQUIDATION
  PROCEEDINGS

  
	
   

  
	
  SECTION 6.01.

  	
   

  	
  Finance and Sale Matters

  	
   

  	
  16

  
	
  SECTION 6.02.

  	
   

  	
  Relief from the Automatic Stay

  	
   

  	
  18

  
	
  SECTION 6.03.

  	
   

  	
  Reorganization Securities

  	
   

  	
  18

  
	
  SECTION 6.04.

  	
   

  	
  Post-Petition Interest

  	
   

  	
  18

  
	
  SECTION 6.05.

  	
   

  	
  Certain Waivers by the Second Lien Secured Parties

  	
   

  	
  19

  
	
  SECTION 6.06.

  	
   

  	
  Certain Voting Matters

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OTHER AGREEMENTS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
   

  	
  Matters Relating to Loan Documents

  	
   

  	
  19

  
	
  SECTION 7.02.

  	
   

  	
  Effect of Refinancing of Indebtedness under First Lien Loan
  Documents

  	
   

  	
  21

  
	
  SECTION 7.03.

  	
   

  	
  No Waiver by First Lien Secured Parties

  	
   

  	
  21

  
	
  SECTION 7.04.

  	
   

  	
  Reinstatement

  	
   

  	
  22

  
	
  SECTION 7.05.

  	
   

  	
  Further Assurances

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  REPRESENTATIONS AND WARRANTIES

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.01.

  	
   

  	
  Representations and Warranties of Holdings and the Borrower

  	
   

  	
  22

  
	
  SECTION 8.02.

  	
   

  	
  Representations and Warranties of Each Collateral Agent

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NO RELIANCE; NO LIABILITY; OBLIGATIONS ABSOLUTE

  
	
   

  
	
  SECTION 9.01.

  	
   

  	
  No Reliance; Information

  	
   

  	
  23

  
	
  SECTION 9.02.

  	
   

  	
  No Warranties or Liability

  	
   

  	
  24

  
	
  SECTION 9.03.

  	
   

  	
  Obligations Absolute

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.01.

  	
   

  	
  Notices

  	
   

  	
  25

  
	
  SECTION 10.02.

  	
   

  	
  Conflicts

  	
   

  	
  26

  
	
  SECTION 10.03.

  	
   

  	
  Effectiveness; Survival

  	
   

  	
  26

  
	
  SECTION 10.04.

  	
   

  	
  Severability

  	
   

  	
  26

  
	
  SECTION 10.05.

  	
   

  	
  Amendments; Waivers

  	
   

  	
  26

  
	
  SECTION 10.06.

  	
   

  	
  Subrogation

  	
   

  	
  27

  
	
  SECTION 10.07.

  	
   

  	
  Applicable Law; Jurisdiction; Consent to Service of Process

  	
   

  	
  27

  



 


ii

















 


	
  SECTION 10.08.

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
  28

  
	
  SECTION 10.09.

  	
   

  	
  Parties in Interest

  	
   

  	
  28

  
	
  SECTION 10.10.

  	
   

  	
  Specific Performance

  	
   

  	
  28

  
	
  SECTION 10.11.

  	
   

  	
  Headings

  	
   

  	
  28

  
	
  SECTION 10.12.

  	
   

  	
  Counterparts

  	
   

  	
  28

  
	
  SECTION 10.13.

  	
   

  	
  Provisions Solely to Define Relative Rights

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


iii

















 


INTERCREDITOR AGREEMENT dated as of June 30, 2006 (this “Agreement”), among THL-HAWKEYE
ACQUISITION LLC, a Delaware limited liability company to be merged with and
into HAWKEYE RENEWABLES, LLC (the “Borrower”),
HAWKEYE INTERMEDIATE, LLC, a Delaware limited liability company (“Holdings”), the Subsidiaries of the
Borrower party hereto, CREDIT SUISSE (“Credit Suisse”),
as collateral agent for the First Lien Lenders (as defined below) (in such
capacity, the “First Lien Collateral Agent”),
and CREDIT SUISSE, as collateral agent for the Second Lien Lenders (as defined
below) (in such capacity, the “Second Lien Collateral
Agent”).


PRELIMINARY STATEMENT


Reference is made to (a) the First Lien Credit Agreement dated as
of June 30, 2006 (the “First Lien Credit
Agreement”), among Holdings, the Borrower, the lenders from time
to time party thereto (the “First Lien Lenders”)
and Credit Suisse, as administrative agent for the First Lien Lenders (in such
capacity, the “First Lien Administrative Agent”)
and the First Lien Collateral Agent, (b) the Second Lien Credit Agreement
dated as of June 30, 2006 (the “Second Lien Credit
Agreement” and, together with the First Lien Credit Agreement,
the “Credit Agreements”), among Holdings,
the Borrower, the lenders from time to time party thereto (the “Second Lien Lenders”) and Credit
Suisse, as administrative agent for the Second Lien Lenders (in such capacity,
the “Second Lien Administrative Agent”) and
the Second Lien Collateral Agent, (c) the First Lien Guarantee and
Collateral Agreement dated as of June 30, 2006 (the “First
Lien Guarantee and Collateral Agreement”), among Holdings, the
Borrower, the subsidiaries of the Borrower from time to time party thereto and Credit
Suisse, as First Lien Collateral Agent, (d) the Second Lien Guarantee and
Collateral Agreement dated as of June 30, 2006 (the “Second
Lien Guarantee and Collateral Agreement”), among Holdings, the
Borrower, the subsidiaries of the Borrower from time to time party thereto and Credit
Suisse, as Second Lien Collateral Agent, and (e) the other Security
Documents referred to in the Credit Agreements.


RECITALS


A.  The First Lien Lenders have agreed
to make loans and other extensions of credit to the Borrower pursuant to the
First Lien Credit Agreement, upon, among other terms and conditions, the condition
that the First Lien Obligations (such term and each other capitalized term used
but not defined in the preliminary statement or these recitals having the
meaning given it in Article I) shall be secured by first priority Liens
on, and security interests in, the Collateral.


B.  The Second Lien Lenders have
agreed to make loans to the Borrower pursuant to the Second Lien Credit
Agreement, upon, among other terms and conditions,


 

















the condition that the Second Lien Obligations shall
be secured by second priority Liens on, and security interests in, the
Collateral.


C.  The Credit Agreements
require, among other things, that the parties thereto set forth in this
Agreement, among other things, their respective rights, obligations and
remedies with respect to the Collateral.


Accordingly, the parties
hereto agree as follows:


ARTICLE I


Definitions


SECTION 1.01.  Certain Defined
Terms.  Capitalized terms used in this Agreement and
not otherwise defined herein shall have the meanings set forth in the First
Lien Credit Agreement, the Second Lien Credit Agreement, the First Lien
Guarantee and Collateral Agreement or the Second Lien Guarantee and Collateral
Agreement, as applicable.


SECTION 1.02.  Other Defined
Terms.  As used in the Agreement, the following terms shall
have the meanings specified below:


“Agreement” shall have the
meaning assigned to such term in the preamble.


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


“Bankruptcy Law” shall mean
the Bankruptcy Code and any other Federal, state or foreign bankruptcy, insolvency,
receivership or similar law.


“Borrower” shall have the
meaning assigned to such term in the preamble to this Agreement.


“Collateral” shall mean,
collectively, the First Lien Collateral and the Second Lien Collateral.


“Collateral Agents” shall mean
the First Lien Collateral Agent and the Second Lien Collateral Agent.


“Comparable Second Lien Security Document”
shall mean, in relation to any Collateral subject to any Lien created under any
First Lien Security Document, the Second Lien Security Document that creates a
Lien on the same Collateral, granted by the same Grantor.


“Credit Agreements” shall have
the meaning assigned to such term in the preliminary statement of this
Agreement.


 


2

















“Credit Suisse” shall have the
meaning assigned to such term in the preamble to this Agreement


“DIP Financing” shall have the
meaning assigned to such term in Section 6.01(a).


“DIP Financing Liens” shall
have the meaning assigned to such term in Section 6.01(a).


“Discharge of First Lien Obligations”
shall mean, subject to Sections 7.02 and 7.04, (a) payment in
full in cash of the principal of and interest (including interest accruing during
the pendency of any Insolvency or Liquidation Proceeding, regardless of whether
allowed or allowable in such Insolvency or Liquidation Proceeding) and premium,
if any, on all Indebtedness (other than undrawn amounts under letters of
credit) outstanding under the First Lien Loan Documents, (b) payment in
full of all other First Lien Obligations that are due and payable or otherwise
accrued and owing at or prior to the time such principal and interest are paid,
(c) cancellation of or the entry into arrangements reasonably satisfactory
to the First Lien Administrative Agent and each applicable Issuing Bank with
respect to all letters of credit issued and outstanding under the First Lien
Credit Agreement and (d) termination or expiration of all commitments to
lend and all obligations to issue letters of credit under the First Lien Credit
Agreement.


“Disposition” shall mean any
sale, lease, exchange, transfer or other disposition.  “Dispose”
shall have a correlative meaning.


“First Lien Administrative Agent”
shall have the meaning assigned to such term in the preliminary statement of
this Agreement.


“First Lien Collateral” shall
mean all “Collateral”, as defined in the First Lien Guarantee and Collateral
Agreement, and any other assets of any Grantor now or at any time hereafter
subject to Liens securing any First Lien Obligations.


“First Lien Collateral Agent” shall
have the meaning assigned to such term in the preamble to this Agreement.


“First Lien Credit Agreement” shall
have the meaning assigned to such term in the preliminary statement of this
Agreement.


“First Lien Guarantee and Collateral
Agreement” shall have the meaning assigned to such term in the
preliminary statement of this Agreement.


“First Lien Lenders” shall
have the meaning assigned to such term in the preliminary statement of this
Agreement.


“First Lien Loan Documents”
shall mean the “Loan Documents”, as defined in the First Lien Credit Agreement.


 


3

















“First Lien Obligations” shall
mean the “Obligations”, as defined in the First Lien Guarantee and Collateral
Agreement.


“First Lien Required
Lenders” shall mean the “Required Lenders”, as defined in the
First Lien Credit Agreement.


“First Lien Secured Parties”
shall mean, at any time, (a) the First Lien Lenders, (b) the First
Lien Administrative Agent, (c) the First Lien Collateral Agent, (d) the
Issuing Banks, (e) each other person to whom any of the First Lien
Obligations (including First Lien Obligations under any Hedging Agreement and
indemnification obligations) is owed and (f) the successors and permitted assigns
of each of the foregoing.


“First Lien Security
Documents” shall mean the “Security Documents”, as defined in
the First Lien Credit Agreement, and any other agreement, document or
instrument pursuant to which a Lien is granted to secure any First Lien
Obligations or under which rights or remedies with respect to any such Lien are
governed.


“First Priority Liens” shall
mean all Liens on the First Lien Collateral to secure the First Lien
Obligations, whether created under the First Lien Security Documents or
acquired by possession, statute, operation of law, subrogation or otherwise.


“Grantors” shall mean Holdings,
the Borrower and each other person that shall have created or purported to
create any First Priority Lien or Second Priority Lien on all or any part of its
assets to secure any First Lien Obligations or any Second Lien Obligations.


“Guarantors” shall mean,
collectively, Holdings and each Subsidiary that has Guaranteed, or that may
from time to time hereafter Guarantee, the First Lien Obligations or the Second
Lien Obligations, whether by executing and delivering the First Lien Guarantee
and Collateral Agreement, the Second Lien Guarantee and Collateral Agreement, a
supplement thereto or otherwise.


“Holdings” shall have the
meaning assigned to such term in the preamble.


“Indebtedness” shall mean and
includes all obligations that constitute “Indebtedness”, as defined in the
First Lien Credit Agreement or the Second Lien Credit Agreement, as applicable.


“Insolvency or Liquidation Proceeding”
shall mean (a) any voluntary or involuntary proceeding under the Bankruptcy
Code or any other Bankruptcy Law with respect to any Grantor, (b) any
voluntary or involuntary appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for any Grantor or for a
substantial part of the property or assets of any Grantor, (c) any
voluntary or involuntary winding-up or liquidation of any Grantor, or (d) a
general assignment for the benefit of creditors by any Grantor.


 


4

















“Lien” shall mean, with
respect to any asset, (a) any mortgage, deed of trust, lien (statutory or
otherwise), pledge, hypothecation, encumbrance, collateral assignment, charge
or security interest in, on or of such asset and (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset.


“Loan Documents” shall mean the
First Lien Loan Documents and the Second Lien Loan Documents.


“Maximum First Lien Amount”
means, at any time (i) $550,000,000; plus
(ii) $120,000,000; plus (iii) for
the avoidance of doubt and without duplication, the aggregate principal amount
of any interest that has been capitalized under the First Lien Credit
Agreement.


“New First Lien Collateral Agent”
shall have the meaning assigned to such term in Section 7.02.


“New First Lien Loan Documents”
shall have the meaning assigned to such term in Section 7.02.


“New First Lien Obligations”
shall have the meaning assigned to such term in Section 7.02.


“Pledged or Controlled Collateral”
shall have the meaning assigned to such term in Article V.


“Refinance” shall mean, in
respect of any Indebtedness, to refinance, extend, renew, restructure or
replace or to issue other Indebtedness in exchange or replacement for, such Indebtedness,
in whole or in part.  “Refinanced” and “Refinancing” shall have correlative
meanings.


“Refinancing Notice” shall
have the meaning assigned to such term in Section 7.02.


“Release” shall have the
meaning assigned to such term in Section 3.04.


“Second Lien Administrative Agent”
shall have the meaning assigned to such term in the preliminary statement of
this Agreement.


“Second Lien Collateral” shall
mean all “Collateral”, as defined in the Second Lien Guarantee and Collateral
Agreement, and any other assets of any Grantor now or at any time hereafter
subject to Liens securing any Second Lien Obligations.


“Second Lien Collateral Agent”
shall have the meaning assigned to such term in the preamble to this Agreement.


 


5

















“Second Lien Credit Agreement”
shall have the meaning assigned to such term in the preliminary statement of
this Agreement.


“Second Lien Guarantee and Collateral
Agreement” shall have the meaning assigned to such term in the
preliminary statement of this Agreement.


“Second Lien Lenders” shall
have the meaning assigned to such term in the preliminary statement of this
Agreement.


“Second Lien Loan Documents”
shall mean the “Loan Documents”, as defined in the Second Lien Credit
Agreement.


“Second Lien Mortgages” shall
mean, collectively, each mortgage, deed of trust, leasehold mortgage, assignment
of leases and rents, modifications and any other agreement, document or
instrument pursuant to which any Lien on real property is granted to secure any
Second Lien Obligations or under which rights or remedies with respect to any
such Lien are governed.


“Second Lien Obligations” shall
mean the “Obligations”, as defined in the Second Lien Guarantee and Collateral
Agreement.


“Second Lien Permitted Actions”
shall have the meaning assigned to such term in Section 3.01(a).


“Second Lien Required Lenders”
shall mean the “Required Lenders”, as defined in the Second Lien Credit
Agreement.


“Second Lien Secured Parties”
shall mean, at any time, (a) the Second Lien Lenders, (b) the Second
Lien Administrative Agent, (c) the Second Lien Collateral Agent, (d) each
other person to whom any of the Second Lien Obligations (including indemnification
obligations) is owed and (e) the successors and permitted assigns of each
of the foregoing.


“Second Lien Security Documents”
shall mean the “Security Documents”, as defined in the Second Lien Credit
Agreement, and any other agreement, document or instrument pursuant to which a
Lien is granted to secure any Second Lien Obligations or under which rights or
remedies with respect to any such Lien are governed.


“Second Priority Liens” shall
mean all Liens on the Second Lien Collateral to secure the Second Lien
Obligations, whether created under the Second Lien Security Documents or
acquired by possession, statute, operation of law, subrogation or otherwise.


“Security Documents” shall
mean the First Lien Security Documents and the Second Lien Security Documents.


 


6

















“Standstill Period” shall have
the meaning assigned to such term in Section 3.02(a).


“subsidiary” shall mean, with
respect to any person (herein referred to as the “parent”),
any corporation, partnership, limited liability company, association or other
business entity of which securities or other ownership interests
representing more than 50% of the ordinary voting power or more than 50% of the
general partnership or membership interests are, at the time any determination
is being made, owned, Controlled or held by the parent, one or more
subsidiaries of the parent or a combination thereof.


“Subsidiary” shall mean any
subsidiary of Holdings or the Borrower.


“Uniform Commercial Code” or “UCC” shall mean the Uniform
Commercial Code (or any similar or equivalent legislation) as in effect from
time to time in any applicable jurisdiction.


SECTION 1.03.  Terms
Generally.  The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to have
the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, restated, amended and restated, supplemented
or otherwise modified, (b) any reference herein (i) to any person
shall be construed to include such person’s successors and assigns and (ii) to
the Borrower or any other Grantor shall be construed to include the Borrower or
such Grantor as debtor and debtor-in-possession and any receiver or trustee for
the Borrower or any other Grantor, as the case may be, in any Insolvency or
Liquidation Proceeding, (c) the words “herein”, “hereof” and “hereunder”,
and words of similar import, shall be construed to refer to this Agreement in
its entirety and not to any particular provision hereof, (d) all
references herein to Articles or Sections shall be construed to refer to Articles
or Sections of this Agreement and (e) the words “asset” and “property”
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.


ARTICLE II


Lien
Priorities


SECTION 2.01.  Relative
Priorities.  Notwithstanding the date, manner or order of
grant, attachment or perfection of any Second Priority Lien or any First
Priority Lien, and notwithstanding any provision of the UCC or any other
applicable law or the provisions of any Security Document or any other Loan
Document or any other circumstance whatsoever, the Second Lien Collateral
Agent, for itself and on behalf of the other Second Lien Secured Parties,
hereby agrees that, so long as the Discharge of


 


7

















 First
Lien Obligations has not occurred, (a) any First Priority Lien now or
hereafter held by or for the benefit of any First Lien Secured Party shall be
senior in right, priority, operation, effect and all other respects to any and
all Second Priority Liens and (b) any Second Priority Lien now or
hereafter held by or for the benefit of any Second Lien Secured Party shall be
junior and subordinate in right, priority, operation, effect and all other
respects to any and all First Priority Liens. 
The First Priority Liens shall be and remain senior in right, priority,
operation, effect and all other respects to any Second Priority Liens for all
purposes, whether or not any First Priority Liens are subordinated in any
respect to any other Lien securing any other obligation of the Borrower, any
other Grantor or any other person.


SECTION 2.02.  Prohibition
on Contesting Liens.  Each of the First Lien Collateral Agent, for
itself and on behalf of the other First Lien Secured Parties, and the Second
Lien Collateral Agent, for itself and on behalf of the other Second Lien
Secured Parties, agrees that it will not, and hereby waives any right to, contest
or support any other person in contesting, in any proceeding (including any
Insolvency or Liquidation Proceeding), the priority, validity or enforceability
of any Second Priority Lien or any First Priority Lien, as the case may be; provided that nothing in this Agreement
shall be construed to prevent or impair the rights of the First Lien Collateral
Agent or any other First Lien Secured Party to enforce this Agreement.


SECTION 2.03.  No New Liens. 
The parties hereto agree that, so long as the Discharge of First Lien
Obligations has not occurred, none of the Grantors shall, or shall permit any
of its Subsidiaries to, (a) grant or permit any additional Liens on any
asset to secure any Second Lien Obligation unless it has granted, or
concurrently therewith grants, a Lien on such asset to secure the First Lien
Obligations or (b) grant or permit any additional Liens on any asset to
secure any First Lien Obligations unless it has granted, or concurrently
therewith grants, a Lien on such asset to secure the Second Lien Obligations,
with each such Lien to be subject to the provisions of this Agreement.  To the extent that the provisions of the
immediately preceding sentence are not complied with for any reason, without
limiting any other right or remedy available to the First Lien Collateral Agent
or the other First Lien Secured Parties, the Second Lien Collateral Agent
agrees, for itself and on behalf of the other Second Lien Secured Parties, that
any amounts received by or distributed to any Second Lien Secured Party pursuant
to or as a result of any Lien granted in contravention of this Section 2.03 shall
be subject to Section 4.02.


SECTION 2.04.  Similar Liens
and Agreements.  The parties hereto acknowledge and agree that
it is their intention that the First Lien Collateral and the Second Lien
Collateral be identical.  In furtherance
of the foregoing, the parties hereto agree:


(a)  to cooperate in good faith in order to
determine, upon any reasonable request by the First Lien Collateral Agent or
the Second Lien Collateral Agent, the specific assets included in the First
Lien Collateral and the Second Lien Collateral, the steps taken to perfect the
First Priority Liens and the Second Priority Liens thereon and


 


8

















the identity of the respective
parties obligated under the First Lien Loan Documents and the Second Lien Loan
Documents; and


(b)  that the documents, agreements and
instruments creating or evidencing the First Lien Collateral and the First
Priority Liens shall be in all material respects in the same form as the documents,
agreements and instruments creating or evidencing the Second Lien Collateral
and the Second Priority Liens, other than with respect to the first priority
and second priority nature of the Liens created or evidenced thereunder, the
identity of the Secured Parties that are parties thereto or secured thereby,
the obligations secured thereby, and other matters contemplated by this
Agreement.


ARTICLE III


Enforcement of Rights; Matters Relating
to Collateral


SECTION 3.01.  Exercise of Rights
and Remedies.  (a)  So
long as the Discharge of First Lien Obligations has not occurred, whether or
not any Insolvency or Liquidation Proceeding has been commenced, the First Lien
Collateral Agent and the other First Lien Secured Parties shall have the
exclusive right to enforce rights and exercise remedies (including any right of
setoff) with respect to the Collateral (including making determinations
regarding the release, Disposition or restrictions with respect to the
Collateral), or to commence or seek to commence any action or proceeding with
respect to such rights or remedies (including any foreclosure action or
proceeding or any Insolvency or Liquidation Proceeding), in each case, without
any consultation with or the consent of the Second Lien Collateral Agent or any
other Second Lien Secured Party; provided
that, notwithstanding the foregoing, (i) in any Insolvency or Liquidation
Proceeding, the Second Lien Collateral Agent may file a proof of claim or
statement of interest with respect to the Second Lien Obligations; (ii) the
Second Lien Collateral Agent may take any action to preserve or protect the
validity and enforceability of the Second Priority Liens, provided that no such action is, or could
reasonably be expected to be, (A) adverse to the First Priority Liens or
the rights of the First Lien Collateral Agent or any other First Lien Secured
Party to exercise remedies in respect thereof or (B) otherwise
inconsistent with the terms of this Agreement, including the automatic release
of Second Priority Liens provided in Section 3.04; (iii) the Second
Lien Secured Parties may file any responsive or defensive pleadings in
opposition to any motion, claim, adversary proceeding or other pleading made by
any person objecting to or otherwise seeking the disallowance of the claims of
the Second Lien Secured Parties, including any claims secured by the Collateral
or otherwise make any agreements or file any motions pertaining to the Second
Lien Obligations, in each case, to the extent not inconsistent with the terms
of this Agreement; (iv) the Second Lien Secured Parties may exercise
rights and remedies as unsecured creditors, as provided in Section 3.03; and
(v) subject to Section 3.02(a), the Second Lien Collateral Agent and
the other Second Lien Secured Parties may enforce any of their rights and exercise
any of their remedies with respect to the Collateral after the termination of
the Standstill Period (the actions described in this proviso being referred to
herein as the “Second
Lien Permitted Actions”). 
Except for the Second Lien Permitted Actions, unless and until the
Discharge


 


9

















of
First Lien Obligations has occurred, the sole right of the Second Lien
Collateral Agent and the other Second Lien Secured Parties with respect to the
Collateral shall be to receive a share of the proceeds of the Collateral, if
any, after the Discharge of First Lien Obligations has occurred and in
accordance with the Second Lien Loan Documents and applicable law.


(b)  In
exercising rights and remedies with respect to the Collateral, the First Lien
Collateral Agent and the other First Lien Secured Parties may enforce the provisions
of the First Lien Loan Documents and exercise remedies thereunder, all in such
order and in such manner as they may determine in their sole discretion.  Such exercise and enforcement shall include
the rights of an agent appointed by them to Dispose of Collateral upon
foreclosure, to incur expenses in connection with any such Disposition and to
exercise all the rights and remedies of a secured creditor under the Uniform
Commercial Code, the Bankruptcy Code or any other Bankruptcy Law.  The First Lien Collateral Agent agrees to
provide at least five days’ prior written notice to the Second Lien
Collateral Agent of its intention to foreclose upon or Dispose of any Collateral.


(c)  The Second
Lien Collateral Agent, for itself and on behalf of the other Second Lien
Secured Parties, hereby acknowledges and agrees that no covenant, agreement or
restriction contained in any Second Lien Security Document or any other Second
Lien Loan Document shall be deemed to restrict in any way the rights and
remedies of the First Lien Collateral Agent or the other First Lien Secured
Parties with respect to the Collateral as set forth in this Agreement and the
other First Lien Loan Documents.


(d)  Notwithstanding
anything in this Agreement to the contrary, following the acceleration of the
Indebtedness then outstanding under the First Lien Credit Agreement, the Second
Lien Secured Parties may, at their sole expense and effort, upon notice to the
Borrower and the First Lien Collateral Agent, require the First Lien Secured
Parties to transfer and assign to the Second Lien Secured Parties, without warranty
or representation or recourse, all (but not less than all) of the First Lien
Obligations; provided that (x) such
assignment shall not conflict with any law, rule or regulation or order of any
court or other Governmental Authority having jurisdiction, and (y) the Second
Lien Secured Parties shall have paid to the First Lien Collateral Agent, for
the account of the First Lien Secured Parties, in immediately available funds,
an amount equal to 100% of the principal of such Indebtedness plus all accrued
and unpaid interest thereon plus all accrued and unpaid Fees (as defined in the
First Lien Credit Agreement) plus all the other First Lien Obligations then
outstanding (which shall include, with respect to (i) the aggregate face
amount of the letters of credit outstanding under the First Lien Credit
Agreement, an amount in cash equal to 105% thereof, and (ii) Hedging
Agreements that constitute First Lien Obligations, 100% of the aggregate amount
of such First Lien Obligations (giving effect to any netting arrangements) that
the applicable Loan Party would be required to pay if such Hedging Agreements
were terminated at such time).  In order
to effectuate the foregoing, the First Lien Collateral Agent shall


 


10

















calculate, upon the written
request of the Second Lien Collateral Agent from time to time, the amount in
cash that would be necessary so to purchase the First Lien Obligations.


SECTION 3.02.  No
Interference.  (a)  The
Second Lien Collateral Agent, for itself and on behalf of the other Second Lien
Secured Parties, agrees that, whether or not any Insolvency or Liquidation
Proceeding has been commenced, the Second Lien Secured Parties:


(i) except for Second Lien Permitted Actions, will not, so long as the
Discharge of First Lien Obligations has not occurred, (A) enforce or exercise,
or seek to enforce or exercise, any rights or remedies (including any right of
setoff) with respect to any Collateral (including the enforcement of any right
under any account control agreement, landlord waiver or bailee’s letter or any
similar agreement or arrangement to which the Second Lien Collateral Agent or
any other Second Lien Secured Party is a party) or (B) commence or join
with any person (other than the First Lien Collateral Agent) in commencing, or
petition for or vote in favor of any resolution for, any action or proceeding
with respect to such rights or remedies (including any foreclosure action); provided, however, that
the Second Lien Collateral Agent may enforce or exercise any or all such rights
and remedies, or commence, join with any person in commencing, or petition for or
vote in favor of any resolution for, any such action or proceeding, after a
period of 180 days has elapsed since the date on which the Second Lien
Collateral Agent has delivered to the First Lien Collateral Agent written
notice of the acceleration of the Indebtedness then outstanding under the
Second Lien Credit Agreement (the “Standstill
Period”); provided  further, however, that (A)
notwithstanding the expiration of the Standstill Period or anything herein to
the contrary, in no event shall the Second Lien Collateral Agent or any other Second
Lien Secured Party enforce or exercise any rights or remedies with respect to any
Collateral, or commence, join with any person in commencing, or petition for or
vote in favor of any resolution for, any such action or proceeding, if the
First Lien Collateral Agent or any other First Lien Secured Party shall have
commenced, and shall be diligently pursuing (or shall have sought or requested
relief from or modification of the automatic stay or any other stay in any
Insolvency or Liquidation Proceeding to enable the commencement and pursuit of),
the enforcement or exercise of any rights or remedies with respect to any Collateral
or any such action or proceeding (prompt written notice thereof to be given to
the Second Lien Collateral Agent by the First Lien Collateral Agent) and
(B) after the expiration of the Standstill Period, so long as neither the
First Lien Collateral Agent nor the First Lien Secured Parties have commenced
any action to enforce their Lien on any material portion of the Collateral, in
the event that and for so long as the Second Lien Secured Parties (or the
Second Lien Collateral Agent on their behalf) have commenced any actions to
enforce their Lien with respect to all or any material portion of the
Collateral to the extent permitted hereunder and are diligently pursuing such
actions, neither the First Lien Secured Parties nor the First Lien Collateral


 


11





















Agent
shall take any action of a similar nature with respect to such Collateral; provided that all other provisions of this Intercreditor
Agreement (including the turnover provisions of Article IV) are complied with;


(ii)
will not contest, protest or object to any foreclosure action or proceeding brought
by the First Lien Collateral Agent or any other First Lien Secured Party, or
any other enforcement or exercise by any First Lien Secured Party of any rights
or remedies relating to the Collateral under the First Lien Loan Documents or
otherwise, so long as Second Priority Liens attach to the proceeds thereof
subject to the relative priorities set forth in Section 2.01;


(iii) subject to the rights of the Second Lien Secured Parties under
clause (i) above, will not object to the forbearance by the First
Lien Collateral Agent or any other First Lien Secured Party from commencing or
pursuing any foreclosure action or proceeding or any other enforcement or exercise
of any rights or remedies with respect to the Collateral;


(iv) will not, so long as the Discharge of First Lien Obligations has
not occurred and except for Second Lien Permitted Actions, take or receive any
Collateral, or any proceeds thereof or payment with respect thereto, in
connection with the exercise of any right or enforcement of any remedy
(including any right of setoff) with respect to any Collateral or in connection
with any insurance policy award under a policy of insurance relating to any Collateral
or any condemnation award (or deed in lieu of condemnation) relating to any Collateral;


(v) will not, except for Second Lien Permitted Actions, take any action
that would, or could reasonably be expected to, hinder, in any manner, any
exercise of remedies under the First Lien Loan Documents, including any Disposition
of any Collateral, whether by foreclosure or otherwise;


(vi) will not, except for Second Lien Permitted Actions, object to the
manner in which the First Lien Collateral Agent or any other First Lien Secured
Party may seek to enforce or collect the First Lien Obligations or the First
Priority Liens, regardless of whether any action or failure to act by or on
behalf of the First Lien Collateral Agent or any other First Lien Secured Party
is, or could be, adverse to the interests of the Second Lien Secured Parties,
and will not assert, and hereby waive, to the fullest extent permitted by law,
any right to demand, request, plead or otherwise assert or claim the benefit of
any marshalling, appraisal, valuation or other similar right that may be
available under applicable law with respect to the Collateral or any similar
rights a junior secured creditor may have under applicable law; and


(vii) will not attempt, directly or indirectly, whether by judicial
proceeding or otherwise, to challenge or question the validity or
enforceability of any First Lien Obligation or any First Lien Security
Document, including


 


12





















this
Agreement, or the validity or enforceability of the priorities, rights or obligations
established by this Agreement.


SECTION 3.03.  Rights as Unsecured
Creditors.  The Second Lien Collateral Agent and the
other Second Lien Secured Parties may, in accordance with the terms of the
Second Lien Loan Documents and applicable law, enforce rights and exercise remedies
against the Borrower and any Guarantor as unsecured creditors; provided that no such action is otherwise
inconsistent with the terms of this Agreement. 
Nothing in this Agreement shall prohibit the receipt by the Second Lien
Collateral Agent or any other Second Lien Secured Party of the required
payments of principal, premium, interest, fees and other amounts due under the
Second Lien Loan Documents so long as such receipt is not the direct or
indirect result of the enforcement or exercise by the Second Lien Collateral
Agent or any other Second Lien Secured Party of rights or remedies as a secured
creditor (including any right of setoff) or enforcement in contravention of
this Agreement of any Second Priority Lien.


SECTION 3.04.  Automatic Release
of Second Priority Liens.  (a)  If, in connection with (i) any
Disposition of any Collateral permitted under the terms of the First Lien Loan
Documents or (ii) the enforcement or exercise of any rights or remedies with
respect to the Collateral, including any Disposition of Collateral, the First
Lien Collateral Agent, for itself and on behalf of the other First Lien Secured
Parties, (x) releases any of the First Priority Liens, or (y) releases any
Guarantor from its obligations under its guarantee of the First Lien
Obligations (in each case, a “Release”), other than any such Release granted in
connection with the Discharge of First Lien Obligations, then the Second
Priority Liens on such Collateral, and the obligations of such Guarantor under
its guarantee of the Second Lien Obligations, shall be automatically,
unconditionally and simultaneously released, and the Second Lien Collateral
Agent shall, for itself and on behalf of the other Second Lien Secured Parties,
promptly execute and deliver to the First Lien Collateral Agent, the relevant
Grantor or such Guarantor such termination statements, releases and other
documents as the First Lien Collateral Agent or the relevant Grantor or
Guarantor may reasonably request to effectively confirm such Release; provided that, in the case of a
Disposition of Collateral (other than any such Disposition in connection with the
enforcement or exercise of any rights or remedies with respect to the
Collateral, including pursuant to Section 6.01(a)(iv)), the Second
Priority Liens shall not be so released if such Disposition is not permitted
under the terms of the Second Lien Credit Agreement.


(b)  Until the
Discharge of First Lien Obligations occurs, the Second Lien Collateral Agent,
for itself and on behalf of each other Second Lien Secured Party, hereby appoints
the First Lien Collateral Agent, and any officer or agent of the First Lien
Collateral Agent, with full power of substitution, as the attorney-in-fact of
each Second Lien Secured Party for the purpose of carrying out the provisions
of this Section 3.04 and taking any action and executing any instrument that
the First Lien Collateral Agent may deem necessary or advisable to accomplish
the purposes of this Section 3.04 (including any endorsements or other
instruments of transfer or release), which appointment is irrevocable and
coupled with an interest.


13














 


SECTION 3.05.  Insurance and
Condemnation Awards.  So long as the Discharge of First Lien
Obligations has not occurred, the First Lien Collateral Agent and the other
First Lien Secured Parties shall have the exclusive right, subject to the
rights of the Grantors under the First Lien Loan Documents, to settle and
adjust claims in respect of Collateral under policies of insurance covering
Collateral and to approve any award granted in any condemnation or similar
proceeding, or any deed in lieu of condemnation, in respect of the
Collateral.  All proceeds of any such
policy and any such award, or any payments with respect to a deed in lieu of
condemnation, shall (a) first, prior to the Discharge of First Lien
Obligations and subject to the rights of the Grantors under the First Lien Loan
Documents, be paid to the First Lien Collateral Agent for the benefit of First
Lien Secured Parties pursuant to the terms of the First Lien Loan Documents,
(b) second, after the Discharge of First Lien Obligations and subject to
the rights of the Grantors under the Second Lien Loan Documents, be paid to the
Second Lien Collateral Agent for the benefit of the Second Lien Secured Parties
pursuant to the terms of the Second Lien Loan Documents, and (c) third, if
no Second Lien Obligations are outstanding, be paid to the owner of the subject
property, such other person as may be entitled thereto or as a court of
competent jurisdiction may otherwise direct. 
Until the Discharge of First Lien Obligations has occurred, if the
Second Lien Collateral Agent or any other Second Lien Secured Party shall, at
any time, receive any proceeds of any such insurance policy or any such award
or payment, it shall transfer and pay over such proceeds to the First Lien
Collateral Agent in accordance with Section 4.02.


ARTICLE IV



Payments


SECTION 4.01.  Application
of Proceeds.  So long as the Discharge of First Lien
Obligations has not occurred, any Collateral or proceeds thereof received by
the First Lien Collateral Agent in connection with any Disposition of, or
collection on, such Collateral upon the enforcement or exercise of any right or
remedy (including any right of setoff) shall be applied by the First Lien
Collateral Agent to the First Lien Obligations. 
Upon the Discharge of First Lien Obligations, the First Lien Collateral
Agent shall deliver to the Second Lien Collateral Agent any remaining Collateral
and any proceeds thereof then held by it in the same form as received, together
with any necessary endorsements, or as a court of competent jurisdiction may
otherwise direct, to be applied by the Second Lien Collateral Agent to the
Second Lien Obligations.


SECTION 4.02.  Payment Over.  So
long as the Discharge of First Lien Obligations has not occurred, any
Collateral, or any proceeds thereof or payment with respect thereto (together
with assets or proceeds subject to Liens referred to in the final sentence of
Section 2.03), received by the Second Lien Collateral Agent or any other
Second Lien Secured Party in connection with any Disposition of, or collection
on, such Collateral upon the enforcement or the exercise of any right or remedy
(including any right of setoff) with respect to the Collateral, or in
connection with any insurance policy claim or any condemnation award (or deed
in lieu of condemnation) shall be segregated and held in trust and forthwith transferred
or paid over to the First Lien Collateral Agent 


 


14

















 


for the benefit of the First Lien Secured
Parties in the same form as received, together with any necessary endorsements,
or as a court of competent jurisdiction may otherwise direct.  Until the Discharge of First Lien Obligations
occurs, the Second Lien Collateral Agent, for itself and on behalf of each
other Second Lien Secured Party, hereby appoints the First Lien Collateral
Agent, and any officer or agent of the First Lien Collateral Agent, with full
power of substitution, the attorney-in-fact of each Second Lien Secured Party
for the purpose of carrying out the provisions of this Section 4.02 and taking
any action and executing any instrument that the First Lien Collateral Agent
may deem necessary or advisable to accomplish the purposes of this Section 4.02,
which appointment is irrevocable and coupled with an interest.  For the avoidance of doubt, it is understood
and agreed that this Section 4.02 shall not prohibit any mandatory
prepayment of the Second Lien Obligations or any voluntary prepayment of the
Second Lien Obligations, in each case, in accordance with the terms of the Second
Lien Credit Agreement and permitted by the First Lien Credit Agreement, each as
in effect on the date hereof (or as modified in accordance with the terms of
this Agreement).


SECTION 4.03.  Certain
Agreements with Respect to Unenforceable Liens. 
Notwithstanding anything to the contrary contained herein, if in any
Insolvency or Liquidation Proceeding a determination is made that any Lien
encumbering any Collateral is not enforceable for any reason, then the Second
Lien Collateral Agent and the Second Lien Secured Parties agree that, any
distribution or recovery they may receive with respect to, or allocable to, the
value of the assets intended to constitute such Collateral or any proceeds
thereof shall (for so long as the Discharge of First Lien Obligations has not
occurred) be segregated and held in trust and forthwith paid over to the First
Lien Collateral Agent for the benefit of the First Lien Secured Parties in the
same form as received without recourse, representation or warranty (other than
a representation of the Second Lien Collateral Agent that it has not otherwise
sold, assigned, transferred or pledged any right, title or interest in and to
such distribution or recovery) but with any necessary endorsements or as a
court of competent jurisdiction may otherwise direct until such time as the
Discharge of First Lien Obligations has occurred.  Until the Discharge of First Lien Obligations
occurs, the Second Lien Collateral Agent, for itself and on behalf of each
other Second Lien Secured Party, hereby appoints the First Lien Collateral
Agent, and any officer or agent of the First Lien Collateral Agent, with full
power of substitution, the attorney-in-fact of each Second Lien Secured Party
for the limited purpose of carrying out the provisions of this Section 4.03 and
taking any action and executing any instrument that the First Lien Collateral
Agent may deem necessary or advisable to accomplish the purposes of this
Section 4.03, which appointment is irrevocable and coupled with an interest.


ARTICLE V



Bailment for Perfection of Certain Security Interests


(a)  The First Lien Collateral Agent agrees that
if it shall at any time hold a First Priority Lien on any Collateral that can
be perfected by the possession or control of such Collateral or of any account
in which such Collateral is held, and if such Collateral 


 


15

















 


or any such account is in
fact in the possession or under the control of the First Lien Collateral Agent,
or of agents or bailees of the First Lien Collateral Agent (such Collateral
being referred to herein as the “Pledged or
Controlled Collateral”), the First Lien Collateral Agent shall,
solely for the purpose of perfecting the Second Priority Liens granted under
the Second Lien Loan Documents and subject to the terms and conditions of this Article
V, also hold such Pledged or Controlled Collateral as gratuitous bailee for the
Second Lien Collateral Agent.


(b)  So long as
the Discharge of First Lien Obligations has not occurred, the First Lien Collateral
Agent shall be entitled to deal with the Pledged or Controlled Collateral in
accordance with the terms of this Agreement and the other First Lien Loan
Documents as if the Second Priority Liens did not exist.  The obligations and responsibilities of the
First Lien Collateral Agent to the Second Lien Collateral Agent and the other
Second Lien Secured Parties under this Article V shall be limited solely to
holding or controlling the Pledged or Controlled Collateral as gratuitous
bailee in accordance with this Article V. 
Without limiting the foregoing, the First Lien Collateral Agent shall
have no obligation or responsibility to ensure that any Pledged or Controlled
Collateral is genuine or owned by any of the Grantors.  The First Lien Collateral Agent acting
pursuant to this Article V shall not, by reason of this Agreement, any other Security
Document or any other document, have a fiduciary relationship in respect of any
other First Lien Secured Party, the Second Lien Collateral Agent or any other Second
Lien Secured Party.


(c)  Upon the
Discharge of First Lien Obligations, the First Lien Collateral Agent shall
transfer the possession and control of the Pledged or Controlled Collateral,
together with any necessary endorsements but without recourse or warranty,
(i) if the Second Lien Obligations are outstanding at such time, to the
Second Lien Collateral Agent, and (ii) if no Second Lien Obligations are
outstanding at such time, to the applicable Grantor, in each case so as to
allow such person to obtain possession and control of such Pledged or
Controlled Collateral.  In connection
with any transfer under clause (i) of the immediately preceding sentence,
the First Lien Collateral Agent agrees to take all actions in its power (at the
expense of the Borrower or, if not paid by or on behalf of the Borrower, at the
expense of the Second Lien Collateral Agent) as shall be reasonably requested
by the Second Lien Collateral Agent to permit the Second Lien Collateral Agent
to obtain, for the benefit of the Second Lien Secured Parties, a first priority
security interest in the Pledged or Controlled Collateral.


ARTICLE VI



Insolvency or Liquidation Proceedings


 


SECTION 6.01.  Finance and
Sale Matters.  (a)  Until
the Discharge of First Lien Obligations has occurred, the Second Lien
Collateral Agent, for itself and on 


 


16

















 


behalf
of the other Second Lien Secured Parties, agrees that, in the event of any
Insolvency or Liquidation Proceeding, the Second Lien Secured Parties:


(i) will not oppose or object to the use of any Collateral constituting
cash collateral under Section 363 of the Bankruptcy Code, or any comparable
provision of any other Bankruptcy Law, unless the First Lien Secured Parties,
or a representative authorized by the First Lien Secured Parties, shall oppose
or object to such use of cash collateral;


(ii)
will not oppose or object to any post-petition financing, whether provided by
the First Lien Secured Parties or any other person, under Section 364 of
the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law (a
“DIP Financing”), or
the Liens securing any DIP Financing (“DIP
Financing Liens”), unless the First Lien Secured Parties, or a
representative authorized by the First Lien Secured Parties, shall then oppose
or object to such DIP Financing or such DIP Financing Liens, and, to the extent
that such DIP Financing Liens are senior to, or rank pari passu
with, the First Priority Liens, the Second Lien Collateral Agent will, for
itself and on behalf of the other Second Lien Secured Parties, subordinate the
Second Priority Liens to the First Priority Liens and the DIP Financing Liens
on the terms of this Agreement; provided that
the foregoing shall not prevent the Second Lien Secured Parties from proposing
any other DIP Financing to any Grantors or to a court of competent
jurisdiction;


(iii)
except to the extent permitted by paragraph (b) of this Section 6.01, in
connection with the use of cash collateral as described in clause (i)
above or a DIP Financing, will not request adequate protection or any other
relief in connection with such use of cash collateral, DIP Financing or DIP
Financing Liens; and


(iv) will not oppose or object to any Disposition of any Collateral
free and clear of the Second Priority Liens or other claims under Section 363
of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law,
if the First Lien Secured Parties, or a representative authorized by the First
Lien Secured Parties, shall consent to such Disposition.


(b)  The Second Lien Collateral Agent, for itself
and on behalf of the other Second Lien Secured Parties, agrees that no Second
Lien Secured Party shall contest, or support any other person in contesting, (i) any
request by the First Lien Collateral Agent or any other First Lien Secured
Party for adequate protection or (ii) any objection, based on a claim of a
lack of adequate protection, by the First Lien Collateral Agent or any other
First Lien Secured Party to any motion, relief, action or proceeding.  Notwithstanding the immediately preceding
sentence, if, in connection with any DIP Financing or use of cash collateral, (A) any
First Lien Secured Party is granted adequate protection in the form of a Lien
on additional collateral, the Second Lien Collateral Agent may, for itself and
on behalf of the other Second Lien Secured Parties, seek or request 


 


17

















 


adequate protection in the
form of a Lien on such additional collateral, which Lien will be subordinated
to the First Priority Liens and DIP Financing Liens on the same basis as the
other Second Priority Liens are subordinated to the First Priority Liens under
this Agreement or (B) any Second Lien Secured Party is granted adequate
protection in the form of a Lien on additional collateral, the First Lien
Collateral Agent shall, for itself and on behalf of the other First Lien
Secured Parties, be granted adequate protection in the form of a Lien on such
additional collateral that is senior to such Second Priority Lien as security
for the First Lien Obligations.


(c)  Notwithstanding
the foregoing, the applicable provisions of Section 6.01(a) and (b) shall
only be binding on the Second Lien Secured Parties with respect to any DIP
Financing to the extent the amount of such DIP Financing does not exceed
the sum of (i) the Maximum First Lien Amount and (ii) $25,000,000.


SECTION 6.02.  Relief from
the Automatic Stay.  The Second Lien Collateral Agent, for itself
and on behalf of the other Second Lien Secured Parties, agrees that, so long as
the Discharge of First Lien Obligations has not occurred, no Second Lien
Secured Party shall, without the prior written consent of the First Lien
Collateral Agent, seek or request relief from or modification of the automatic
stay or any other stay in any Insolvency or Liquidation Proceeding in respect
of any part of the Collateral, any proceeds thereof or any Second Priority Lien.


SECTION 6.03.  Reorganization
Securities.  If, in any Insolvency or Liquidation
Proceeding, debt obligations of the reorganized debtor secured by Liens upon
any property of the reorganized debtor are distributed, pursuant to a plan of
reorganization or similar dispositive restructuring plan, on account of both
the First Lien Obligations and the Second Lien Obligations, then, to the extent
the debt obligations distributed on account of the First Lien Obligations and
on account of the Second Lien Obligations are secured by Liens upon the same assets
or property, the provisions of this Agreement will survive the distribution of
such debt obligations pursuant to such plan and will apply with like effect to
the Liens securing such debt obligations.


SECTION 6.04.  Post-Petition
Interest.  (a)  The
Second Lien Collateral Agent, for itself and on behalf of the other Second Lien
Secured Parties, agrees that no Second Lien Secured Party shall oppose or seek
to challenge any claim by the First Lien Collateral Agent or any other First
Lien Secured Party for allowance in any Insolvency or Liquidation Proceeding of
First Lien Obligations consisting of post-petition interest, fees or expenses
to the extent of the value of the First Priority Liens (it being understood and
agreed that such value shall be determined without regard to the existence of
the Second Priority Liens on the Collateral).


(b)  The First Lien Collateral Agent, for itself
and on behalf of the other First Lien Secured Parties, agrees that no First
Lien Secured Party shall oppose or seek to challenge any claim by the Second
Lien Collateral Agent or any other Second Lien Secured Party for allowance in
any Insolvency or Liquidation Proceeding of Second Lien Obligations consisting
of post-petition interest, fees or expenses to the extent of the value 


18

















 


of the Second Priority Liens
(it being understood and agreed that such value shall be determined taking into
account the First Priority Liens on the Collateral).


SECTION 6.05.  Certain Waivers
by the Second Lien Secured Parties.  The
Second Lien Collateral Agent, for itself and on behalf of the other Second Lien
Secured Parties, waives any claim any Second Lien Secured Party may hereafter
have against any First Lien Secured Party arising out of (a) the election by
any First Lien Secured Party of the application of Section 1111(b)(2) of
the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law,
or (b) any use of cash collateral or financing arrangement, or any grant
of a security interest in the Collateral, in any Insolvency or Liquidation Proceeding.


SECTION 6.06.  Certain
Voting Matters.  Each of the First Lien Collateral Agent, on
behalf of the First Lien Secured Parties, and the Second Lien Collateral Agent,
on behalf of the Second Lien Secured Parties, agrees that, without written the
consent of the other, it will not seek to vote with the other as a single class
in connection with any plan of reorganization in any Insolvency or Liquidation
Proceeding.  Except as provided in this
Section 6.06, nothing in this Agreement is intended, or shall be construed, to
limit the ability of the Second Lien Collateral Agent or the Second Lien
Secured Parties to vote on any plan of reorganization.


ARTICLE VII



Other Agreements


SECTION 7.01.  Matters
Relating to Loan Documents.  (a)   The
First Lien Loan Documents may be amended, restated, amended and restated, supplemented
or otherwise modified in accordance with their terms, and the Indebtedness
under the First Lien Credit Agreement may be Refinanced, in each case, without
the consent of any Second Lien Secured Party; provided,
however, that, without the
consent of the Second Lien Required Lenders, no such amendment, restatement, amendment
and restatement, supplement, modification or Refinancing shall (i) result in
the sum of (A) the aggregate principal amount of Indebtedness outstanding under
the First Lien Loan Documents (as so amended, restated, amended and restated, supplemented,
modified or Refinanced) plus (B) the undrawn portion of the revolving
commitments under the First Lien Loan Documents (as so amended, restated, amended
and restated, supplemented, modified or Refinanced) exceeding the Maximum First
Lien Amount, (ii) increase the “Applicable Percentage” or similar
component of the interest rate under the First Lien Loan Documents by more than
300 basis points (excluding increases resulting from the accrual of interest at
the default rate) or (iii) extend the scheduled maturity date of the
Indebtedness under the First Lien Credit Agreement or any Refinancing thereof
beyond the scheduled maturity of the Indebtedness under the Second Lien Credit
Agreement and provided further that
the holders of the Indebtedness resulting from any such Refinancing, or a duly
authorized agent on their behalf, agree in writing to be bound by the terms of
this Agreement.


 


19

















 


(b)  Without the
prior written consent of the First Lien Required Lenders, no Second Lien Loan
Document may be amended, restated, amended and restated, supplemented or
otherwise modified, or entered into, to the extent such amendment, restatement,
amendment and restatement, supplement or modification, or the terms of such new
Second Lien Loan Document, would (i) contravene the provisions of this
Agreement, (ii) increase the “Applicable Percentage” or similar component
of the interest rate under the Second Lien Loan Documents by more than 300
basis points (excluding increases resulting from the accrual of interest at the
default rate), (iii) change to earlier dates any scheduled dates for
payment of principal on Indebtedness under the Second Lien Loan Documents,
(iv) add to the Second Lien Collateral other than as specifically provided
by this Agreement or (v) amend the mandatory prepayment (or similar
provisions) covenants and events of default, taken as a whole, to be less
favorable in any material respect to the Loan Parties. Indebtedness under the
Second Lien Loan Documents may be Refinanced if (A) the mandatory prepayment
(or similar provisions), covenants and events of default, taken as a whole, to
be no less favorable in any material respect to the Loan Parties than the
mandatory prepayment (or similar provisions), covenants and events of default
of the Indebtedness then outstanding under the Second Lien Credit Agreement, (B) the
final maturity and the average life to maturity of such Refinancing Indebtedness
is at least equal to that of the Indebtedness then outstanding under the Second
Lien Credit Agreement and (C) if such Refinancing Indebtedness is secured,
the holders of such Refinancing Indebtedness, or a duly authorized agent on
their behalf, agree in writing to be bound by the terms of this Agreement.


(c)  Each of the
Borrower and the Second Lien Collateral Agent agrees that the Second Lien
Credit Agreement and each Second Lien Security Document shall contain the applicable
provisions set forth on Annex I hereto, or similar provisions approved by the
First Lien Collateral Agent, which approval shall not be unreasonably withheld
or delayed.  Each of the Borrower and the
Second Lien Collateral Agent further agrees that each Second Lien Mortgage
covering any Collateral shall contain such other language as the First Lien
Collateral Agent may reasonably request to reflect the subordination of such
Second Lien Mortgage to the First Lien Security Document covering such
Collateral pursuant to this Agreement.


(d)  In the
event that the First Lien Collateral Agent or the other First Lien Secured
Parties and the relevant Grantor enter into any amendment, restatement,
amendment and restatement, supplement, modification, waiver or consent in
respect of any of the First Lien Security Documents (other than this
Agreement), then such amendment, modification, waiver or consent shall apply
automatically to any comparable provisions of the applicable Comparable Second Lien
Security Document, in each case, without the consent of any Second Lien Secured
Party and without any action by the Second Lien Collateral Agent, the Borrower
or any other Grantor; provided, that
(i) no such amendment, restatement, amendment and restatement, supplement,
modification, waiver or consent shall (A) remove assets subject to the
Second Priority Liens or release any such Liens, except to the extent that such
release is permitted or required by Section 3.04 and provided that there
is a concurrent release of the corresponding First Priority Liens,
(B) amend, restate, amend and restate, supplement, modify or otherwise 


 


20

















 


affect the rights or duties of the Second Lien
Collateral Agent without its prior written consent or (C) permit Liens on
the Collateral (other than DIP Financing Liens) which are not permitted under
the terms of the Second Lien Loan Documents and (ii) notice of such
amendment, restatement, amendment and restatement, supplement, modification waiver
or consent shall have been given to the Second Lien Collateral Agent no later
than the tenth Business Day following the effective date of such amendment, modification,
waiver or consent.


SECTION 7.02.  Effect of
Refinancing of Indebtedness under First Lien Loan Documents. 
If, substantially contemporaneously with the Discharge of First Lien
Obligations, the Borrower Refinances Indebtedness outstanding under the First
Lien Loan Documents and provided that (a) such Refinancing is permitted hereby
and (b) the Borrower gives to the Second Lien Collateral Agent, at least
ten Business Days prior to such Refinancing, written notice (the “Refinancing Notice”)
electing the application of the provisions of this Section 7.02 to such
Refinancing Indebtedness, then (i) such Discharge of First Lien
Obligations shall automatically be deemed not to have occurred for all purposes
of this Agreement, (ii) such Refinancing Indebtedness and all other
obligations under the loan documents evidencing such Indebtedness (the “New First Lien Obligations”)
shall automatically be treated as First Lien Obligations for all purposes of
this Agreement, including for purposes of the Lien priorities and rights in
respect of Collateral set forth herein, (iii) the credit agreement and the
other loan documents evidencing such Refinancing Indebtedness (the “New First Lien Loan Documents”)
shall automatically be treated as the First Lien Credit Agreement and the First
Lien Loan Documents and, in the case of New First Lien Loan Documents that are
security documents, as the First Lien Security Documents for all purposes of
this Agreement and (iv) the collateral agent under the New First Lien Loan
Documents (the “New
First Lien Collateral Agent”) shall be deemed to be the First
Lien Collateral Agent for all purposes of this Agreement.  Upon receipt of a Refinancing Notice, which
notice shall include the identity of the New First Lien Collateral Agent, the
Second Lien Collateral Agent shall promptly enter into such documents and
agreements (including amendments or supplements to this Agreement) as the
Borrower or such New First Lien Collateral Agent may reasonably request in
order to provide to the New First Lien Collateral Agent the rights and powers
contemplated hereby, in each case consistent in all material respects with the
terms of this Agreement.  The Borrower
shall cause the agreement, document or instrument pursuant to which the New
First Lien Collateral Agent is appointed to provide that the New First Lien
Collateral Agent agrees to be bound by the terms of this Agreement.  In furtherance of Section 2.03, if the
New First Lien Obligations are secured by assets of the Grantors that do not
also secure the Second Lien Obligations, the applicable Grantors shall promptly
grant a Second Priority Lien on such assets to secure the Second Lien
Obligations.


SECTION 7.03.  No Waiver by
First Lien Secured Parties.  Other
than with respect to the Second Lien Permitted Actions, nothing contained
herein shall prohibit or in any way limit the First Lien Collateral Agent or
any other First Lien Secured Party from opposing, challenging or objecting to, in
any Insolvency or Liquidation Proceeding or otherwise, any action taken, or any
claim made, by the Second Lien Collateral Agent or any other Second Lien
Secured Party, including any request by the Second 


21

















 


Lien Collateral Agent or any other Second Lien
Secured Party for adequate protection or any exercise by the Second Lien
Collateral Agent or any other Second Lien Secured Party of any of its rights
and remedies under the Second Lien Loan Documents or otherwise.


SECTION 7.04.  Reinstatement. 
If, in any Insolvency or Liquidation Proceeding or otherwise, all or
part of any payment with respect to the First Lien Obligations previously made
shall be rescinded for any reason whatsoever, then the First Lien Obligations
shall be reinstated to the extent of the amount so rescinded and, if
theretofore terminated, this Agreement shall be reinstated in full force and
effect and such prior termination shall not diminish, release, discharge,
impair or otherwise affect the Lien priorities and the relative rights and
obligations of the First Lien Secured Parties and the Second Lien Secured
Parties provided for herein.


SECTION 7.05.  Further
Assurances.  Each of the First Lien Collateral Agent, for
itself and on behalf of the other First Lien Secured Parties, and the Second
Lien Collateral Agent, for itself and on behalf of the other Second Lien
Secured Parties, and each Grantor party hereto, for itself and on behalf of its
subsidiaries, agrees that it will execute, or will cause to be executed, any
and all further documents, agreements and instruments, and take all such
further actions, as may be required under any applicable law, or which the
First Lien Collateral Agent or the Second Lien Collateral Agent may reasonably
request, to effectuate the terms of this Agreement, including the relative Lien
priorities provided for herein.


ARTICLE VIII



Representations and Warranties


SECTION 8.01.  Representations
and Warranties of Each Party.  Each
party hereto represents and warrants to the other parties hereto as follows:


(a)  it (i) is duly organized or formed,
validly existing and in good standing under the laws of the jurisdiction of its
organization, except where the failure to be in good standing could not
reasonably be expected to have a Material Adverse Effect, and (ii) has all
requisite power and authority to execute and deliver this Agreement and perform
its obligations hereunder except where the failure to have such power and
authority could not reasonably be expected to result in a Material Adverse
Effect;


(b)  it has duly authorized by all requisite
corporate or limited liability company and, if required, stockholder or member
action, the execution delivery and performance of this Agreement;


(c)  it has duly executed and delivered this
Agreement, and this Agreement constitutes a legal, valid and binding obligation
of such party, enforceable in accordance with its terms.


 


22

















 


(d)  the execution delivery and performance of
this Agreement by such party will not (A) violate (x) any provision
of any applicable law, statute, rule or regulation, or of its certificate or
articles of incorporation or other constitutive documents or by-laws or
operating agreement, as applicable, (y) any order of any Governmental
Authority applicable to it or (z) any provision of any indenture,
agreement or other instrument binding upon it or (B) require it to obtain
any consent or approval of, or make any registration or filing with or invoke
any other action by any Governmental Authority, other than those that have been
obtained or made.


SECTION 8.02.  Representations
and Warranties of Each Collateral Agent.  Each
Collateral Agent represents and warrants to the other parties hereto that it
has been authorized by the Lenders under and as defined in the First Lien Credit
Agreement or the Second Lien Credit Agreement, as applicable, to enter into
this Agreement.


ARTICLE IX



No Reliance; No Liability; Obligations Absolute


SECTION 9.01.  No Reliance;
Information.  Each Collateral Agent, for itself and on
behalf of the respective other Secured Parties, acknowledges that (a) the respective
Secured Parties have, independently and without reliance upon, in the case of the
First Lien Secured Parties, any Second Lien Secured Party and, in the case of
the Second Lien Secured Parties, any First Lien Secured Party, and based on such
documents and information as they have deemed appropriate, made their own
credit analysis and decision to enter into the Loan Documents to which they are
party and (b) the respective Secured Parties will, independently and
without reliance upon, in the case of the First Lien Secured Parties, any
Second Lien Secured Party and, in the case of the Second Lien Secured Parties,
any First Lien Secured Party, and based on such documents and information as
they shall from time to time deem appropriate, continue to make their own
credit decision in taking or not taking any action under this Agreement or any
other Loan Document to which they are party. 
The First Lien Secured Parties and the Second Lien Secured Parties shall
have no duty to disclose to any Second Lien Secured Party or to any First Lien
Secured Party, respectively, any information relating to Holdings, the Borrower
or any of the Subsidiaries, or any other circumstance bearing upon the risk of
nonpayment of any of the Obligations, that is known or becomes known to any of
them or any of their Affiliates.  In the
event any First Lien Secured Party or any Second Lien Secured Party, in its
sole discretion, undertakes at any time or from time to time to provide any
such information to, respectively, any Second Lien Secured Party or any First Lien
Secured Party, it shall be under no obligation (i) to make, and shall not
make or be deemed to have made, any express or implied representation or
warranty, including with respect to the accuracy, completeness, truthfulness or
validity of the information so provided, (ii) to provide any additional
information or to provide any such information on any subsequent occasion or
(iii) to undertake any investigation.


 


23

















 


SECTION 9.02.  No Warranties
or Liability.  (a)  The
First Lien Collateral Agent, for itself and on behalf of the other First Lien
Secured Parties, acknowledges and agrees that, except for the representations
and warranties set forth in Article VIII, neither the Second Lien
Collateral Agent nor any other Second Lien Secured Party has made any express
or implied representation or warranty, including with respect to the execution,
validity, legality, completeness, collectibility or enforceability of any of
the Second Lien Loan Documents, the ownership of any Collateral or the
perfection or priority of any Liens thereon. 
The Second Lien Collateral Agent, for itself and on behalf of the other
Second Lien Secured Parties, acknowledges and agrees that, except for the
representations and warranties set forth in Article VIII, neither the
First Lien Collateral Agent nor any other First Lien Secured Party has made any
express or implied representation or warranty, including with respect to the
execution, validity, legality, completeness, collectibility or enforceability
of any of the First Lien Loan Documents, the ownership of any Collateral or the
perfection or priority of any Liens thereon.


(b)  The Second Lien Collateral Agent and the
other Second Lien Secured Parties shall have no express or implied duty to the
First Lien Collateral Agent or any other First Lien Secured Party, and the
First Lien Collateral Agent and the other First Lien Secured Parties shall have
no express or implied duty to the Second Lien Collateral Agent or any other
Second Lien Secured Party, to act or refrain from acting in a manner which
allows, or results in, the occurrence or continuance of a default or an event
of default under any First Lien Loan Document and any Second Lien Loan Document
(other than, in each case, this Agreement), regardless of any knowledge thereof
which they may have or be charged with.


(c)  The Second Lien Collateral Agent, for itself
and on behalf of the other Second Lien Secured Parties, agrees no First Lien
Secured Party shall have any liability to the Second Lien Collateral Agent or
any other Second Lien Secured Party, and hereby waives any claim against any
First Lien Secured Party, arising out of any and all actions which the First
Lien Collateral Agent or the other First Lien Secured Parties may take or permit
or omit to take with respect to (i) the First Lien Loan Documents (other
than this Agreement), (ii) the collection of the First Lien Obligations or
(iii) the maintenance of, the preservation of, the foreclosure upon or the
Disposition of any Collateral.


SECTION 9.03.  Obligations
Absolute.  The Lien priorities provided for herein and
the respective rights, interests, agreements and obligations hereunder of the
First Lien Collateral Agent and the other First Lien Secured Parties and the
Second Lien Collateral Agent and the other Second Lien Secured Parties shall
remain in full force and effect irrespective of:


(a)  any lack of validity or enforceability of any
Loan Document;


(b)  any change in the time, place or manner of
payment of, or in any other term of (including, subject to the limitations set
forth in Section 7.01(a), the Refinancing of), all or any portion of the First Lien
Obligations, it being specifically acknowledged that a portion of the First
Lien Obligations consists or may consist of Indebtedness that is 


24

















 


revolving in nature, and the
amount thereof that may be outstanding at any time or from time to time may be
increased or reduced and subsequently reborrowed;


(c)  any change in the time, place or manner of
payment of, or, subject to the limitations set forth in Section 7.01(a), in
any other term of, all or any portion of the First Lien Obligations;


(d)  any amendment, waiver or other modification,
whether by course of conduct or otherwise, of any Loan Document;


(e)  the securing of any First Lien Obligations or
Second Lien Obligations with any additional collateral or Guarantees, or any
exchange, release, voiding, avoidance or non-perfection of any security
interest in any Collateral or any other collateral or any release of any
Guarantee securing any First Lien Obligations or Second Lien Obligations; or


(f)  any other circumstances that otherwise might
constitute a defense available to, or a discharge of, the Borrower or any other
Grantor or Guarantor in respect of the First Lien Obligations or this Agreement,
or any of the Second Lien Secured Parties in respect of this Agreement.


ARTICLE X



Miscellaneous


SECTION 10.01.  Notices.  Notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or by overnight courier service, mailed by certified or
registered mail or sent by fax, as follows:


(a)  if to the Borrower or any other Grantor, to
it at 21050 140th Street, Iowa Falls, IA 50126, Attention of: J.D.
Schlieman and Tim Callahan (Fax No. (641) 648-8925)), cc: (which shall not
constitute notice) Angela Fontana, Esq., Weil, Gotshal & Manges, LLP,
200 Crescent Court, Suite 300, Dallas, TX 75201; and


(b)  if to the First Lien Collateral Agent or the Second
Lien Collateral Agent, to Credit Suisse, at Eleven Madison Avenue, New York, NY
10010, Attention of Agency Group (Fax No. (212) 325-8304).


All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or by overnight courier
service or sent by fax or on the date five Business Days after dispatch by
certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 10.01 or in
accordance with the latest unrevoked direction from such party given in
accordance with this Section 10.01.  As
agreed to between the Borrower and any Collateral Agent from time to time in
writing, notices and other communications may also be delivered or furnished by
e-mail; provided that approval of such
procedures may be limited to particular notices or communications. All such
notices and other 


 


25

















 


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 acknowledgement), provided that if
not given during the normal business hours of the recipient, such notice or
communication shall be deemed to have been given at the opening of business on
the next Business Day for the recipient.


SECTION 10.02.  Conflicts. 
In the event of any conflict or inconsistency between the provisions of
this Agreement and the provisions of the other Loan Documents, the provisions
of this Agreement shall control.


SECTION 10.03.  Effectiveness;
Survival.  This Agreement shall become effective when
executed and delivered by the parties hereto. 
All covenants, agreements, representations and warranties made by any
party in this Agreement shall be considered to have been relied upon by the
other parties hereto and shall survive the execution and delivery of this
Agreement.  The terms of this Agreement
shall survive, and shall continue in full force and effect, in any Insolvency
or Liquidation Proceeding.  The Second
Lien Collateral Agent, for itself and on behalf of the other Second Lien
Secured Parties, hereby waives any and all rights the Second Lien Secured
Parties may now or hereafter have under applicable law to revoke this Agreement
or any of the provisions of this Agreement.


SECTION 10.04.  Severability. 
In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision
in any other jurisdiction).  The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.


SECTION 10.05.  Amendments;
Waivers.  (a)  No
failure or delay on the part of any party hereto in exercising any power or
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power.  The rights and remedies of the parties hereto
are cumulative and are not exclusive of any rights or remedies that they would
otherwise have.  No waiver of any provision
of this Agreement or consent to any departure by any party therefrom shall in
any event be effective unless the same shall be permitted by paragraph (b)
of this Section 10.05, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given.


(b)  Subject to Section 9.08 of the First
Lien Credit Agreement and Section [9.08] of the Second Lien Credit
Agreement, neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement 


26

















 


or agreements in writing
entered into by the First Lien Collateral Agent and the Second Lien Collateral
Agent; provided that no such agreement shall
amend, modify or otherwise affect the rights, interests, privileges or obligations
of any Grantor without such person’s prior written consent.


SECTION 10.06.  Subrogation. 
The Second Lien Collateral Agent, for itself and on behalf of the other
Second Lien Secured Parties, hereby waives any rights of subrogation it or they
may acquire as a result of any payment hereunder until the Discharge of First
Lien Obligations has occurred; provided,
however, that, as between the Borrower and the other Grantors, on
the one hand, and the Second Lien Secured Parties, on the other hand, any such
payment that is paid over to the First Lien Collateral Agent pursuant to this
Agreement shall be deemed not to reduce any of the Second Lien Obligations
unless and until the Discharge of First Lien Obligations shall have occurred
and the First Lien Collateral Agent delivers any such payment to the Second
Lien Collateral Agent.


SECTION 10.07.  Applicable
Law; Jurisdiction; Consent to Service of Process.  (a)  THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.


(b)  Each party hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of any
New York State court or Federal court of the United States of America
sitting in New York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined only in such
New York State court or, to the extent permitted by law, in such Federal
court.  Each party hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.


(c)  Each party hereto hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any New York State court or in any such Federal court.  Each party hereto hereby irrevocably waives,
to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.


(d)  Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in
Section 10.01.  Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.


 


27

















 


SECTION 10.08.  Waiver of Jury
Trial.  EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT. 
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.08.


SECTION 10.09.  Parties in
Interest.  This provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, as well as the other First Lien Secured
Parties and Second Lien Secured Parties, all of whom are intended to be bound
by, and to be third party beneficiaries of, this Agreement.  No other person shall have or be entitled to
assert rights or benefits hereunder.


SECTION 10.10.  Specific
Performance.
 Each Collateral Agent may demand
specific performance of this Agreement and, on behalf of itself and the
respective other Secured Parties, hereby irrevocably waives any defense based
on the adequacy of a remedy at law and any other defense that might be asserted
to bar the remedy of specific performance in any action which may be brought by
the respective Secured Parties.


SECTION 10.11.  Headings.  Article
and Section headings used herein and the Table of Contents hereto are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.


SECTION 10.12.  Counterparts.  This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original but all of
which when taken together shall constitute a single contract, and shall become
effective as provided in Section 10.03. 
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.


SECTION 10.13.  Provisions
Solely to Define Relative Rights.  The
provisions of this Agreement are and are intended solely for the purpose of
defining the relative rights of the First Lien Secured Parties, on the one hand,
and the Second Lien Secured Parties, on the other hand.  None of the Borrower, any other Grantor, any
Guarantor or any other creditor thereof shall have any rights or obligations,
except for those as set forth in Section 6.01 and Articles VII and X
hereof and as otherwise expressly provided in this Agreement.  Nothing in this Agreement is intended to or
shall impair the obligations of the Borrower or any other Grantor or any
Guarantor, which are absolute and unconditional, to pay the First Lien
Obligations and the Second Lien 


 


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Obligations
as and when the same shall become due and payable in accordance with their
terms.


[Remainder of this page intentionally left
blank]


 


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


	
   

  	
  THL-HAWKEYE ACQUISITION
  LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


	
   

  	
  HAWKEYE INTERMEDIATE,
  LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


	
   

  	
  CREDIT SUISSE, as First
  Lien Collateral Agent,

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


30

















 


 


	
   

  	
  CREDIT SUISSE, as
  Second Lien Collateral Agent,

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


31

















ANNEX 1


 


Provision
for the Second Lien Credit Agreement


 


“Reference
is made to the Intercreditor Agreement dated as of June [•], 2006  (as amended, restated,
supplemented or otherwise modified from time to time, the “Intercreditor
Agreement”), among the Borrower, Holdings, the Subsidiaries of the
Borrower party thereto, Credit Suisse (“Credit Suisse”),
as First Lien Collateral Agent (as defined therein), and Credit Suisse, as
Second Lien Collateral Agent (as defined therein).  Each Lender hereunder (a) acknowledges
that it has received a copy of the Intercreditor Agreement, (b) consents
to the subordination of Liens provided for in the Intercreditor Agreement, (c) agrees
that it will be bound by and will take no actions contrary to the provisions of
the Intercreditor Agreement and (d) authorizes and instructs the
Collateral Agent to enter into the Intercreditor Agreement as Collateral Agent
and on behalf of such Lender.  The
foregoing provisions are intended as an inducement to the lenders under the First
Lien Credit Agreement to permit the incurrence of Indebtedness under the Second
Lien Credit Agreement and to extend credit to the Borrower and such lenders are
intended third party beneficiaries of such provisions.”


 


Provision
for the Second Lien Security Documents


 


“Reference
is made to the Intercreditor Agreement dated as of June [•], 2006 (as amended, restated, supplemented or otherwise modified from
time to time, the “Intercreditor Agreement”),
among the Borrower, Holdings, the Subsidiaries of the Borrower party thereto, Credit
Suisse (“Credit Suisse”), as First Lien
Collateral Agent (as defined therein), and Credit Suisse, as Second Lien
Collateral Agent (as defined therein).  Notwithstanding
anything herein to the contrary, the lien and security interest granted to the
Collateral Agent, for the benefit of the Secured Parties, pursuant to this
Agreement and the exercise of any right or remedy by the Collateral Agent and
the other Secured Parties hereunder are subject to the provisions of the
Intercreditor Agreement.  In the event of
any conflict or inconsistency between the provisions of the Intercreditor
Agreement and this Agreement, the provisions of the Intercreditor Agreement
shall control.”


 


32

















 




 





SECOND LIEN MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS, SECURITY

AGREEMENT AND FINANCING STATEMENT


From


HAWKEYE
RENEWABLES, LLC,

as Mortgagor


To


CREDIT
SUISSE,

as Collateral Agent for the benefit of the Secured Parties,

as Mortgagee






Dated: June 30,
2006


Premises: Iowa Falls
and Fairbank plants

Buchanan, Hardin & Fayette Counties, Iowa






Prepared by and

Return to:


Amy L. Delsack


Cravath, Swaine & Moore
LLP


825 Eighth Avenue


New York, NY 10019


(212) 474-1938




 





 


Legal Description on Page
___

















 


THIS
SECOND LIEN MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FINANCING STATEMENT dated as of June 30, 2006 (this “Mortgage”), by HAWKEYE RENEWABLES,
LLC, a Delaware limited liability company, having an office at 21050 140th
Street, Iowa Falls, Iowa 50126 (the “Mortgagor”),
to CREDIT SUISSE, having an office at Eleven Madison Avenue, New York,
New York 10010 (the “Mortgagee”)
as Collateral Agent for the Secured Parties (as such terms are defined below).


WITNESSETH THAT:


Reference
is made to (i) the Second Lien Credit Agreement dated as of even date
hereof (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “Credit
Agreement”), among Hawkeye Intermediate, LLC (“Holdings”), THL-Hawkeye
Acquisition LLC, to be merged with and into Hawkeye Renewables, LLC (the “Borrower”),
the lenders from time to time party thereto (the “Lenders”), including, inter alia, Credit Suisse as
administrative agent (the “Administrative
Agent”) for the Lenders and collateral agent (the “Collateral Agent”) for the Secured
Parties, (ii) the Second Lien Guarantee and Collateral Agreement dated as
of even date hereof (as amended, restated, amended and restated, supplemented
or otherwise modified from time to time, the “Guarantee and Collateral
Agreement”) among Holdings, the Borrower, the Subsidiaries party thereto and
Collateral Agent for the benefit of the Secured Parties and (iii) the
Intercreditor Agreement defined in Section 3.08 hereof.  Capitalized terms used but not defined herein
have the meanings given to them in the Credit Agreement, the Guarantee and
Collateral Agreement and the Intercreditor Agreement.


In
the Credit Agreement the Lenders have agreed to make Term Loans to the Borrower
(the “Loans”) to the Borrower.  Amounts
paid in respect of Term Loans and Incremental Term Loans may not be
reborrowed.  The Credit Agreement
provides that the sum of the principal amount of the Loans secured hereby shall
not exceed $150,000,000.


Pursuant
to the Purchase Agreement, THL-Hawkeye Acquisition LLC has merged with and
into the Mortgagor, with the Mortgagor as the surviving entity and accordingly,
the Mortgagor is the Borrower and will derive substantial benefit from the
making of the Loans by the Lenders.  In
order to induce the Lenders to make the Loans, the Mortgagor has agreed to
grant this Mortgage to secure, among other things, the due and punctual payment
and performance of all of the Obligations (as defined in the Guarantee and Collateral
Agreement).


The
obligations of the Lenders to make Loans are conditioned upon, among other
things, the execution and delivery by the Mortgagor of this Mortgage in the
form hereof to secure the Obligations.


As
used in this Mortgage, the term “Secured
Parties” shall mean (a) the Lenders, (b) the Administrative
Agent, (c) the Collateral Agent, (d) each counterparty to any Hedging
Agreement with a Loan Party that either (i) is in effect on the Closing
Date if such


2

















counterparty is the Administrative
Agent or a Lender or an Affiliate of the Administrative Agent or a Lender as of
the Closing Date or (ii) is entered into after the Closing Date if such
counterparty is the Administrative Agent or a Lender or an Affiliate of the
Administrative Agent or a Lender at the time such Hedging Agreement is entered
into, (e) the beneficiaries of each indemnification obligation undertaken
by any Loan Party under any Loan Document and (f) the permitted successors
and assigns of each of the foregoing.


Pursuant
to the requirements of the Credit Agreement, the Mortgagor is granting this
Mortgage to create a lien on and a security interest in the Mortgaged Property
(as hereinafter defined) to secure the performance and payment by the Mortgagor
of the Obligations.


Granting Clauses


NOW,
THEREFORE, IN CONSIDERATION OF the foregoing and in order to secure the due and
punctual payment and performance of the Obligations for the benefit of the
Secured Parties, the Mortgagor hereby grants, conveys, mortgages, assigns and
pledges to the Mortgagee, a mortgage lien on and a security interest in, all
the following described property (the “Mortgaged
Property”) whether now owned or held or hereafter acquired:


(1) the
land more particularly described on Exhibit A hereto (the “Land”), together with the Mortgagor’s
interest in all rights appurtenant thereto, including the easements over
certain other adjoining land granted by any easement agreements, covenant or
restrictive agreements and the Mortgagor’s interest in all air rights, mineral
rights, water rights, oil and gas rights and development rights, if any,
relating thereto, and also together with all of the other easements, rights,
privileges, interests, hereditaments and appurtenances thereunto belonging or
in any way appertaining and all of the estate, right, title, interest, claim or
demand whatsoever of Mortgagor therein and in the streets and ways adjacent
thereto, either in law or in equity, in possession or expectancy, now or hereafter
acquired (the “Premises”);


(2) all
buildings, improvements, structures, paving, parking areas, walkways and
landscaping now or hereafter erected or located upon the Land, and all of the
Mortgagor’s fixtures of every kind and type affixed to the Premises or attached
to or forming part of any structures, buildings or improvements and
replacements thereof now or hereafter erected or located upon the Land (the “Improvements”);


(3) all
now or hereafter existing leases or licenses (under which Mortgagor is landlord
or licensor) and subleases (under which Mortgagor is sublandlord), permit the
use or occupancy of the Premises or the Improvements for any purpose in return
for any payment, or the Mortgagor’s interest in any agreement for the
extraction or taking of any gas, oil, water or other minerals from the Premises
in return for payment of any fee, rent or royalty (collectively, “Leases”), and all agreements or
contracts for the sale or other disposition of all or any part of the Premises
or the Improvements, now or hereafter entered into by Mortgagor, together with
all charges, fees, income, issues, profits, receipts, rents, revenues or
royalties payable thereunder (“Rents”);


 


3

















 


(4) all
real estate tax refunds and all proceeds of the conversion, voluntary or
involuntary, of any of the Mortgaged Property into cash or liquidated claims (“Proceeds”), including Proceeds of
insurance maintained by the Mortgagor and condemnation awards, any awards that
may become due by reason of the taking by eminent domain or any transfer in
lieu thereof of the whole or any part of the Premises or Improvements or any
rights appurtenant thereto, and any awards for change of grade of streets; and


(5) all
extensions, improvements, betterments, renewals, substitutes and replacements
of and all additions and appurtenances to, the Land, the Premises, the
Improvements and the Leases, hereinafter acquired by or released to the
Mortgagor or constructed, assembled or placed by the Mortgagor on the Land, the
Premises or the Improvements, and all conversions of the security constituted
thereby, immediately upon such acquisition, release, construction, assembling,
placement or conversion, as the case may be, and in each such case, without any
further mortgage, deed of trust, conveyance, assignment or other act by the
Mortgagor, all of which shall become subject to the lien of this Mortgage as
fully and completely, and with the same effect, as though now owned by the
Mortgagor and specifically described herein.


Notwithstanding
anything herein to the contrary, the term “Mortgaged Property” shall not
include any Excluded Collateral (as defined in the Guarantee and Collateral
Agreement).


TO
HAVE AND TO HOLD the Mortgaged Property unto the Mortgagee, its successors and
assigns, for the ratable benefit of the Secured Parties, forever, subject only
to Permitted Encumbrances (as defined below) and to satisfaction and release as
provided in Section 3.04.


ARTICLE I


Representations,
Warranties and Covenants of Mortgagor


Mortgagor
agrees, covenants, represents and/or warrants as follows:


SECTION 1.01. 
Title, Mortgage Lien. 
(a)  Mortgagor has good and
marketable fee simple title to the Mortgaged Property, subject only to liens
permitted under Section 6.02 of the Credit Agreement (“Permitted
Encumbrances”).


(b)  The execution and delivery of this Mortgage
is within Mortgagor’s limited liability company powers and has been duly
authorized by all necessary limited liability company and, if required, member
action.  This Mortgage has been duly
executed and delivered by Mortgagor and constitutes a legal, valid and binding
obligation of Mortgagor, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.


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(c)  The execution, delivery and recordation of
this Mortgage (i) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect and except filings
necessary to perfect the lien of this Mortgage and except to the extent the
failure to obtain or make the same could not reasonably be expected to result
in a Material Adverse Effect, (ii) will not violate any applicable law or
regulation or the charter, by-laws, operating agreement or other organizational
documents of Mortgagor or any applicable order of any Governmental Authority,
(iii) will not violate or result in a default under any indenture, agreement or
other instrument binding upon Mortgagor or its assets, or give rise to a right
thereunder to require any payment to be made by Mortgagor, and (iv) will not
result in the creation or imposition of any Lien on any asset of Mortgagor,
except the lien of this Mortgage; except with respect to any violation,
conflict, breach, default, prepayment or creation or imposition of any Liens
referred to in clauses (ii) through (iv) above, to the extent that the same
could not reasonably be expected to have a Material Adverse Effect.


(d)  This Mortgage, when duly recorded in the
public records of the county where the Property is located will create a valid,
perfected and enforceable lien upon and security interest in all of the
Mortgaged Property.


(e)  Mortgagor will forever warrant and defend its
title to the Mortgaged Property, the rights of Mortgagee therein under this
Mortgage and the validity and priority of the lien of this Mortgage thereon
against the claims of all persons and parties except those having rights under
Permitted Encumbrances to the extent of those rights.


SECTION 1.02.  Credit Agreement.  This Mortgage is given pursuant to the Credit
Agreement.  Mortgagor expressly covenants
and agrees to pay when due, and to timely perform, the Obligations in
accordance with the terms of the Loan Documents.


SECTION 1.03. 
Payment of Taxes, and Other Obligations.  (a) 
Mortgagor will pay and discharge from time to time, all Taxes and other
obligations with respect to the Mortgaged Property or any part thereof or upon
the Rents from the Mortgaged Property or arising in respect of the occupancy,
use or possession thereof in accordance with, and to the extent required by,
the Credit Agreement.


(b)  In the event of the passage of any state,
Federal, municipal or other governmental law, order, rule or regulation
subsequent to the date hereof (i) deducting from the value of real
property for the purpose of taxation any lien or encumbrance thereon or in any
manner changing or modifying the laws now in force governing the taxation of
this Mortgage or debts secured by mortgages or deeds of trust (other than laws
governing income, franchise and similar taxes generally) or the manner of
collecting taxes thereon and (ii) imposing a tax to be paid by Mortgagee,
either directly or indirectly, on this Mortgage, or requiring an amount of
taxes to be withheld or deducted therefrom, Mortgagor will promptly
(i) enter into such further instruments as Mortgagee may determine are
reasonably necessary or desirable to obligate Mortgagor to make any additional
payments necessary to put the Lenders and Secured Parties in the same financial
position they would have been if such law, order, rule or regulation had not
been passed and (ii) make such additional payments to Mortgagee for the
benefit of the Lenders and Secured Parties.


 


5

















 


SECTION 1.04. 
Maintenance of Mortgaged Property.  Mortgagor will maintain the Improvements and
the Personal Property in the manner required by the Credit Agreement.


SECTION 1.05. 
Insurance.  Mortgagor will
keep or cause to be kept the Improvements insured against such risks, and in
the manner, described in Section 5.02 of the Credit Agreement.  Federal Emergency Management Agency Standard
Flood Hazard Determination Forms will be purchased by Mortgagor for each
Mortgaged Property on which Improvements are located.  If any portion of Improvements constituting
part of the Mortgaged Property is located in an area identified as a special
flood hazard area by Federal Emergency Management Agency or other applicable
agency, Mortgagor will purchase flood insurance.


SECTION 1.06. 
Casualty, Condemnation/Eminent Domain.  Mortgagor shall give Mortgagee prompt written
notice of any casualty or other damage to the Mortgaged Property or any
proceeding for the taking of the Mortgaged Property or any portion thereof or
interest therein under power of eminent domain or by condemnation in accordance
with, and to the extent required by, Sections 5.05 and 5.06 of the
Credit Agreement.  Any Net Cash Proceeds
received by or on behalf of the Mortgagor in respect of any such casualty,
damage or taking shall be applied in accordance with Section 2.13 of the
Credit Agreement.


SECTION 1.07. 
Assignment of Leases and Rents. 
(a)  Mortgagor hereby irrevocably
and absolutely grants, transfers and assigns all of its right title and
interest in all Leases, together with any and all extensions and renewals
thereof to Mortgagee for purposes of securing and discharging the performance
by Mortgagor of the Obligations. 
Mortgagor has not assigned or executed any assignment of, and will not
assign or execute any assignment of, any Leases or the Rents payable thereunder
to anyone other than Mortgagee.


(b)  All Leases shall be subordinate to the lien
of this Mortgage.  Mortgagor will not
enter into, modify or amend any Lease if such Lease, as entered into, modified
or amended, will not be subordinate to the lien of this Mortgage.


(c)  Subject to Section 1.07(d), Mortgagor
has assigned and transferred to Mortgagee all of Mortgagor’s right, title and
interest in and to the Rents now or hereafter arising from each Lease
heretofore or hereafter made or agreed to by Mortgagor, it being intended that
this assignment establish, subject to Section 1.07(d), an absolute
transfer and assignment of all Rents and all Leases to Mortgagee and not merely
to grant a security interest therein.  If
an Event of Default shall occur and be continuing, Mortgagee may in Mortgagor’s
name and stead (with or without first taking possession of any of the Mortgaged
Property personally or by receiver as provided herein) operate the Mortgaged
Property and rent, lease or let all or any portion of any of the Mortgaged
Property to any party or parties at such rental and upon such terms as
Mortgagee shall, in its sole discretion, determine, and may collect and have
the benefit of all of said Rents arising from or accruing at any time
thereafter or that may thereafter become due under any Lease, subject to the
provisions of the Credit Agreement.


(d)  So long as an Event of Default shall not have
occurred and be continuing, Mortgagee will not exercise any of its rights under
Section 1.07(c), and Mortgagor shall receive and collect the Rents
accruing under any Lease; but after the happening and during


 


6

















the continuance of any Event
of Default, Mortgagee may, at its option, receive and collect all Rents and
enter upon the Premises and Improvements through its officers, agents,
employees or attorneys for such purpose and for the operation and maintenance
thereof.  Mortgagor hereby irrevocably
authorizes and directs each tenant, if any, and each successor, if any, to the
interest of any tenant under any Lease, respectively, to rely upon any notice
of a claimed Event of Default sent by Mortgagee to any such tenant or any of
such tenant’s successors in interest, and thereafter to pay Rents to Mortgagee
without any obligation or right to inquire as to whether an Event of Default
actually exists and even if some notice to the contrary is received from the
Mortgagor, who shall have no right or claim against any such tenant or
successor in interest for any such Rents so paid to Mortgagee.  Each tenant or any of such tenant’s
successors in interest from whom Mortgagee or any officer, agent, attorney or
employee of Mortgagee shall have collected any Rents, shall be authorized to
pay Rents to Mortgagor only after such tenant or any of their successors in
interest shall have received written notice from Mortgagee that the Event of
Default is no longer continuing, unless and until a further notice of an Event
of Default is given by Mortgagee to such tenant or any of its successors in
interest.


(e)  Mortgagee will not become a mortgagee in
possession so long as it does not enter or take actual possession of or
exercise control over of the Mortgaged Property.  In addition, Mortgagee shall not be
responsible or liable for performing any of the obligations of the landlord
under any Lease, for any waste by any tenant, or others, for any dangerous or
defective conditions of any of the Mortgaged Property, for negligence in the
management, upkeep, repair or control of any of the Mortgaged Property or any
other act or omission by any other person; provided,
however, that such limitation shall not
apply to the extent that such costs, expenses or liabilities resulted from the
gross negligence, bad faith or wilful misconduct of Mortgagee or material
breach of its obligations hereunder.  To
the extent permitted by applicable law, no party hereto shall assert, and each
party hereto hereby waives any claim against Mortgagee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Mortgage.


(f)  Mortgagor shall furnish to Mortgagee, within
30 days after a request by Mortgagee to do so, a written statement
containing the names of all tenants, subtenants and concessionaires of the
Premises or Improvements, the terms of any Lease, the space occupied and the
rentals and/or other amounts payable thereunder.


SECTION 1.08. 
Restrictions on Transfers and Encumbrances.  Mortgagor shall not directly or indirectly
sell, convey, alienate, assign, lease, sublease, license, mortgage, pledge,
encumber or otherwise transfer, create, consent to or suffer the creation of
any lien, charge or other form of encumbrance upon any interest in or any part
of the Mortgaged Property, or be divested of its title to the Mortgaged
Property or any interest therein in any manner or way, whether voluntarily or
involuntarily (other than resulting from a condemnation), or engage in any
common, cooperative, joint, time-sharing or other congregate ownership of all
or part thereof, except in each case in accordance with and to the extent
permitted by the Credit Agreement; provided, that Mortgagor may, in the
ordinary course of business and in accordance with reasonable commercial
standards, enter into easement or covenant


7

















agreements
that relate to and/or benefit the operation of the Mortgaged Property and that
do not materially and adversely affect the value, use or operation of the
Mortgaged Property.


SECTION 1.09. 
Security Agreement.  This
Mortgage is both a mortgage of real property and a grant of a security interest
in personal property, and shall constitute and serve as a “Security Agreement”
within the meaning of the uniform commercial code as adopted in the state
wherein the Premises are located (“UCC”). 
Mortgagor has hereby granted unto Mortgagee a security interest in and
to all the Mortgaged Property described in this Mortgage that is not real
property, and this Mortgage shall be filed and indexed in the real property
records and also indexed in the Index of Financing Statements, and will file
continuation statements prior to the lapse thereof, at the appropriate offices
in the jurisdiction of formation of the Mortgagor to perfect the security
interest granted by this Mortgage in all the Mortgaged Property that is not
real property (to the extent required in the state where the Premises is
located.  Mortgagor hereby authorizes
Mortgagee to file the same in the appropriate offices (to the extent it may
lawfully do so), and to perform each and every act and thing reasonably
requisite and necessary to be done to perfect the security interest
contemplated by the preceding sentence. 
Mortgagee shall have all rights with respect to the part of the
Mortgaged Property that is the subject of a security interest afforded by the
UCC in addition to, but not in limitation of, the other rights afforded
Mortgagee hereunder and under the Guarantee and Collateral Agreement.


SECTION 1.10. 
Filing and Recording. 
Mortgagor will cause this Mortgage, any other security instrument
creating a security interest in or evidencing the lien hereof upon the Mortgaged
Property and each UCC continuation statement (to the extent required in the
state where the Premises is located) and instrument of further assurance to be
filed, registered or recorded and, if necessary, refiled, rerecorded and
reregistered, in such manner and in such places as may be required by any
present or future law in order to publish notice of and fully to perfect the
lien hereof upon, and the security interest of Mortgagee in, the Mortgaged
Property until this Mortgage is terminated and released in full in accordance
with Section 3.04 hereof.  Mortgagor will
pay all filing, registration and recording fees, all Federal, state, county and
municipal recording, documentary or intangible taxes and other taxes, duties,
imposts, assessments and charges, and all reasonable expenses incidental to or
arising out of or in connection with the execution, delivery and recording of
this Mortgage, UCC continuation statements, any mortgage supplemental hereto,
any security instrument with respect to the Proceeds or any instrument of
further assurance.


SECTION 1.11. 
Further Assurances.  Upon
demand by Mortgagee, Mortgagor will, at the cost of Mortgagor and without
expense to Mortgagee, do, execute, acknowledge and deliver all such further
acts, deeds, conveyances, mortgages, assignments, notices of assignment,
transfers and assurances as Mortgagee shall from time to time reasonably
require for the better assuring, conveying, assigning, transferring and
confirming unto Mortgagee the property and rights hereby conveyed or assigned
or intended now or hereafter so to be, or which Mortgagor may be or may
hereafter become bound to convey or assign to Mortgagee, or for carrying out
the intention or facilitating the performance of the terms of this Mortgage, or
for filing, registering or recording this Mortgage, and upon the occurrence and
continuation of an Event of Default on demand, Mortgagor will also execute and
deliver and hereby appoints Mortgagee as its true and lawful attorney-in-fact
and agent, for Mortgagor


 


8

















and
in its name, place and stead, in any and all capacities, to execute and file to
the extent it may lawfully do so, one or more financing statements, chattel
mortgages or comparable security instruments reasonably requested by Mortgagee
to evidence more effectively the lien hereof upon the Personal Property and to
perform each and every act and thing requisite and necessary to be done to
accomplish the same.


SECTION 1.12. 
Additions to Mortgaged Property. 
All right, title and interest of Mortgagor in and to all extensions,
improvements, betterments, renewals, substitutes and replacements of, and all
additions and appurtenances to, the Mortgaged Property hereafter acquired by or
released to Mortgagor or constructed, assembled or placed by Mortgagor upon the
Premises or the Improvements, and all conversions of the security constituted
thereby, immediately upon such acquisition, release, construction, assembling,
placement or conversion, as the case may be, and in each such case without any
further mortgage, conveyance, assignment or other act by Mortgagor, shall
become subject to the lien and security interest of this Mortgage as fully and
completely and with the same effect as though now owned by Mortgagor and specifically
described in the grant of the Mortgaged Property above, but at any and all
times Mortgagor will execute and deliver to Mortgagee any and all such further
assurances, mortgages, conveyances or assignments thereof as Mortgagee may
reasonably require for the purpose of expressly and specifically subjecting the
same to the lien and security interest of this Mortgage.


SECTION 1.13. 
No Claims Against Mortgagee. 
Nothing contained in this Mortgage shall constitute any consent or
request by Mortgagee, express or implied, for the performance of any labor or
services or the furnishing of any materials or other property in respect of the
Mortgaged Property or any part thereof, nor as giving Mortgagor any right,
power or authority to contract for or permit the performance of any labor or
services or the furnishing of any materials or other property in such fashion
as would permit the making of any claim against Mortgagee in respect thereof.


SECTION 1.14. 
Fixture Filing.  (a)  Certain portions of the Mortgaged Property
are or will become “fixtures” (as that term is defined in the UCC) on the Land,
and this Mortgage, upon being filed for record in the real estate records of
the county wherein such fixtures are situated, shall operate also as a
financing statement filed as a fixture filing in accordance with the applicable
provisions of said UCC upon such portions of the Mortgaged Property that are or
become fixtures.


(b)  The real property to which the fixtures
relate is described in Exhibit A attached hereto.  The record owner of the real property
described in Exhibit A attached hereto is Mortgagor.  The name, type of organization and
jurisdiction of organization of the debtor for purposes of this financing
statement are the name, type of organization and jurisdiction of organization
of the Mortgagor set forth in the first paragraph of this Mortgage, and the
name of the secured party for purposes of this financing statement is the name
of the Mortgagee set forth in the first paragraph of this Mortgage.  The mailing address of the Mortgagor/debtor
is the address of the Mortgagor set forth in the first paragraph of this
Mortgage.  The mailing address of the
Mortgagee/secured party from which information concerning the security interest
hereunder may be obtained is the address of the Mortgagee set forth in the
first paragraph of this Mortgage. 
Mortgagor’s organizational identification number is 3858792.


 


9

















ARTICLE II


 


Defaults and
Remedies


SECTION 2.01. 
Events of Default.  Any
Event of Default under the Credit Agreement (as such term is defined therein)
shall constitute an Event of Default under this Mortgage.


SECTION 2.02. 
Demand for Payment.  If an
Event of Default shall occur and be continuing, then, upon written demand of
Mortgagee, Mortgagor will pay to Mortgagee all amounts due under the Loan
Documents as provided in the Credit Agreement and such further amount as shall
be sufficient to cover the costs and expenses of collection, including
attorneys’ fees, disbursements and expenses incurred by Mortgagee in the manner
provided in the Credit Agreement.


SECTION 2.03. 
Rights To Take Possession, Operate and Apply Revenues.  (a)  If
an Event of Default shall occur and be continuing, Mortgagor shall, upon demand
of Mortgagee, forthwith surrender to Mortgagee actual possession of the
Mortgaged Property and, if and to the extent allowed by applicable  law, Mortgagee itself, or by such officers or
agents as it may appoint, may then enter and take possession of all the Mortgaged
Property without the appointment of a receiver or an application therefor,
exclude Mortgagor and its agents and employees wholly therefrom, and have
access to the books, papers and accounts of Mortgagor.


(b)  If an Event of Default shall occur and be continuing,
and if Mortgagor shall for any reason fail to surrender or deliver the
Mortgaged Property or any part thereof after such demand by Mortgagee,
Mortgagee may to the extent not prohibited by applicable law, obtain a judgment
or decree conferring upon Mortgagee the right to immediate possession or
requiring Mortgagor to deliver immediate possession of the Mortgaged Property
to Mortgagee, to the entry of which judgment or decree Mortgagor hereby
specifically consents.  Mortgagor will
pay to Mortgagee, upon demand, all reasonable expenses of obtaining such
judgment or decree, including reasonable compensation to Mortgagee’s attorneys
and agents with interest thereon at the rate per annum applicable to overdue
amounts under the Credit Agreement as provided in Section 2.07(b) of the
Credit Agreement (the “Interest Rate”); and all such expenses and compensation
shall, until paid, be secured by this Mortgage.


(c)  Upon every such entry or taking of
possession, Mortgagee may, to the extent allowed by applicable law, hold,
store, use, operate, manage and control the Mortgaged Property, conduct the
business thereof and, from time to time, (i) make all necessary and proper
maintenance, repairs, renewals, replacements, additions, betterments and
improvements thereto and thereon, (ii) purchase or otherwise acquire
necessary and proper additional fixtures, personalty and other property,
(iii) insure or keep the Mortgaged Property insured, (iv) manage and
operate the Mortgaged Property and exercise all the rights and powers of
Mortgagor to the same extent as Mortgagor could in its own name or otherwise
with respect to the same, or (v) enter into any and all reasonable
agreements with respect to the exercise by others of any of the powers herein
granted Mortgagee, all as may from time to time be reasonably directed or
determined by Mortgagee to be in its best interest and 


 


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Mortgagor hereby appoints
Mortgagee as its true and lawful attorney-in-fact and agent, for Mortgagor and
in its name, place and stead, in any and all capacities, to perform any of the
foregoing acts. Mortgagee may collect and receive all the Rents, issues,
profits and revenues from the Mortgaged Property, including those past due as
well as those accruing thereafter, and, after deducting (i) all expenses
of taking, holding, managing and operating the Mortgaged Property (including
reasonable compensation for the services of all persons employed for such
purposes), (ii) the costs of all such maintenance, repairs, renewals,
replacements, additions, betterments, improvements, purchases and acquisitions,
(iii) the costs of insurance, (iv) such taxes, assessments and other
similar charges as Mortgagee may at its option pay, (v) other proper charges
upon the Mortgaged Property or any part thereof and (vi) the reasonable
compensation, expenses and disbursements of the attorneys and agents of
Mortgagee, Mortgagee shall apply the remainder of the moneys and proceeds so
received first to the payment of the Mortgagee for the satisfaction of the
Obligations, and second, if there is any surplus, to Mortgagor, subject to the
entitlement of others thereto under applicable law.


(d)  Whenever, before any sale of the Mortgaged
Property under Section 2.06, all Events of Default have been fully cured
or waived, Mortgagee will surrender possession of the Mortgaged Property back
to Mortgagor, its successors or assigns. 
The same right of taking possession shall, however, arise again if any
subsequent Event of Default shall occur and be continuing.


SECTION 2.04. 
Right To Cure Mortgagor’s Failure to Perform.  If an Event of Default shall occur and be
continuing and thereafter, should Mortgagor fail in the payment, performance or
observance of any term, covenant or condition required by this Mortgage or the
Credit Agreement (with respect to the Mortgaged Property), Mortgagee may pay,
perform or observe the same, and all reasonable payments made or costs or
expenses incurred by Mortgagee in connection therewith shall be secured hereby
and shall be, without demand, immediately repaid by Mortgagor to Mortgagee with
interest thereon at the Interest Rate. 
Mortgagee shall be the judge using reasonable discretion of the
necessity for any such actions and of the amounts to be paid.  Mortgagee is hereby empowered to enter and to
authorize others to enter upon the Premises or the Improvements or any part
thereof for the purpose of curing such Event of Default without having any
obligation to so perform or observe and without thereby becoming liable to
Mortgagor, to any person in possession holding under Mortgagor or to any other
person.


SECTION 2.05. 
Right to a Receiver.  If an
Event of Default shall occur and be continuing, Mortgagee, upon application to
a court of competent jurisdiction, shall be entitled as a matter of right to
the appointment of a receiver to take possession of and to operate the
Mortgaged Property and to collect and apply the Rents.  The receiver shall have all of the rights and
powers permitted under the laws of the state wherein the Mortgaged Property is
located.  Mortgagor shall pay to
Mortgagee upon demand all reasonable expenses, including receiver’s fees,
reasonable attorney’s fees and disbursements, costs and agent’s compensation
incurred pursuant to the provisions of this Section 2.05; and all such
expenses shall be secured by this Mortgage and shall be, without demand,
immediately repaid by Mortgagor to Mortgagee with interest thereon at the
Interest Rate.


 


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SECTION
2.06.  Foreclosure and Sale.  If an Event of Default shall occur and be
continuing,


(a)  Mortgagee may elect to foreclose this
Mortgage, or if allowed by applicable law, sell the Mortgaged Property or any
part of the Mortgaged Property by exercise of the power of sale granted to
Mortgagee by this Mortgage.  In such
case, Mortgagee may commence a civil action to foreclose this Mortgage, or if
allowed by applicable law, it may proceed and sell the Mortgaged Property to
satisfy any Obligation.  To the extent
allowed by applicable law, Mortgagee or an officer appointed by a judgment of
foreclosure to sell the Mortgaged Property, may sell all or such parts of the
Mortgaged Property as may be chosen by Mortgagee at the time and place of sale
fixed by it in a notice of sale, either as a whole or in separate lots, parcels
or items as Mortgagee shall deem expedient, and in such order as it may
determine, at public auction to the highest bidder.  To the extent allowed by applicable law,
Mortgagee or an officer appointed by a judgment of foreclosure to sell the
Mortgaged Property may postpone any foreclosure or other sale of all or any
portion of the Mortgaged Property by public announcement at such time and place
of sale, and from time to time thereafter may postpone such sale by public
announcement or subsequently noticed sale. 
Without further notice and as allowed by applicable law, Mortgagee or an
officer appointed to sell the Mortgaged Property may make such sale at the time
fixed by the last postponement, or may, in its discretion, give a new notice of
sale.  Any person, including Mortgagor or
Mortgagee or any designee or affiliate thereof, may purchase at such sale.


(b)  The Mortgaged Property may be sold subject to
unpaid taxes and Permitted Encumbrances, and, after deducting all reasonable
costs, fees and expenses of Mortgagee (including costs of evidence of title in
connection with the sale), Mortgagee or an officer that makes any sale shall
apply the proceeds of sale in the manner set forth in Section 2.08.


(c)  Any foreclosure or other sale of less than
the whole of the Mortgaged Property or any defective or irregular sale made
hereunder shall not exhaust the power of foreclosure or of sale provided for
herein; and subsequent sales may be made hereunder until the Obligations have
been satisfied, or the entirety of the Mortgaged Property has been sold.


(d)  Mortgagee may instead of, or in addition to,
exercising the rights described in Section 2.06(a) above and either with
or without entry or taking possession as herein permitted, proceed by a suit or
suits in law or in equity or by any other appropriate proceeding or remedy
(i) to specifically enforce payment of some or all of the Obligations, or
the performance of any term, covenant, condition or agreement of this Mortgage
or any other Loan Document or any other right, or (ii) to pursue any other
remedy available to Mortgagee and allowed under applicable law, all as
Mortgagee shall determine most effectual for such purposes.


SECTION
2.07.  Other Remedies.  (a)  In
case an Event of Default shall occur and be continuing, Mortgagee may also
exercise, to the extent not prohibited by law, any or all of the remedies
available to a secured party under the UCC.


(b)  In connection with a sale of the Mortgaged
Property and the application of the proceeds of sale as provided in
Section 2.08, Mortgagee shall be entitled to enforce payment 


 


 


12





















 


of and to
receive up to the principal amount of the Obligations, plus all other charges,
payments and costs due under this Mortgage, and to recover a deficiency
judgment for any portion of the aggregate principal amount of the Obligations
remaining unpaid, with interest, as provided in the Credit Agreement.


SECTION
2.08.  Application of Sale Proceeds
and Rents.  After any foreclosure
sale of all or any of the Mortgaged Property, Mortgagee shall receive and apply
the proceeds of the sale together with any Rents that may have been collected
and any other sums that then may be held by Mortgagee under this Mortgage as
follows:


FIRST, to the payment of all
reasonable costs and expenses incurred by the Administrative Agent or the
Collateral Agent (in their respective capacities as such hereunder or under any
other Loan Document) in connection with such collection, sale, foreclosure or
realization or otherwise in connection with this Mortgage, any other Loan
Document or any of the Obligations, including all court costs and the
reasonable fees and out-of-pocket expenses of its agents and one legal counsel
in each jurisdiction, the repayment of all advances made by the Mortgagee
hereunder or the Administrative Agent and/or the Collateral Agent hereunder or
under any other Loan Document on behalf of any Grantor and any other reasonable
costs or out-of-pocket expenses incurred in connection with the exercise of any
right or remedy hereunder or under any other Loan Document;


SECOND, to the payment in
full of Unfunded Advances/Participations (the amounts so applied to be
distributed between or among the Administrative Agent, the Swingline Lender and
any Issuing Bank pro rata in accordance with the amounts of Unfunded
Advances/Participations owed to them on the date of any such distribution);


THIRD, to the payment in
full of all other Obligations (the amounts so applied to be distributed among
the Secured Parties pro rata in accordance with the amounts of the Obligations
owed to them on the date of any such distribution);


FOURTH, to the Second Lien
Collateral Agent, in accordance with the Intercreditor Agreement; and


FIFTH, to the Mortgagor, its
successors or assigns, or to whomever may be lawfully entitled to receive the
same.


The
Mortgagee shall have absolute discretion as to the time of application of any
such proceeds, moneys or balances in accordance with this Mortgage.  Upon any sale of Collateral by the Collateral
Agent (including pursuant to a power of sale granted by statute or under a
judicial proceeding), the receipt of the Collateral Agent or of the officer
making the sale shall be a sufficient discharge to the purchaser or purchasers
of the Collateral so sold and such purchaser or purchasers shall not be
obligated to see to the application of any part of the purchase money paid over
to the Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.


 


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SECTION
2.09.  Mortgagor as Tenant Holding
Over.  If Mortgagor remains in
possession of any of the Mortgaged Property after any foreclosure sale by
Mortgagee, at such purchaser’s election Mortgagor shall be deemed a tenant
holding over and shall forthwith surrender possession to the purchaser or
purchasers at such sale or be summarily dispossessed or evicted according to
provisions of law applicable to tenants holding over.


SECTION
2.10.  Waiver of Appraisement,
Valuation, Stay, Extension and Redemption Laws.  Mortgagor waives, to the extent allowed by
applicable law, (i) the benefit of all laws now existing or that hereafter
may be enacted (x) providing for any appraisement or valuation of any
portion of the Mortgaged Property and/or (y) in any way extending the time
for the enforcement or the collection of amounts due under any of the
Obligations or creating or extending a period of redemption from any sale made in
collecting said debt or any other amounts due Mortgagee, (ii) any right to
at any time insist upon, plead, claim or take the benefit or advantage of any
law now or hereafter in force providing for any homestead exemption, extension
or redemption, or sale of the Mortgaged Property as separate tracts, units or
estates or as a single parcel in the event of foreclosure or notice of
deficiency, and (iii) all rights of redemption, stay of execution, notice
of election to mature or declare due the whole of or each of the Obligations
and marshaling in the event of foreclosure of this Mortgage.


SECTION
2.11.  Discontinuance of Proceedings.  In case Mortgagee shall proceed to enforce
any right, power or remedy under this Mortgage by foreclosure, entry or
otherwise, and such proceedings shall be discontinued or abandoned for any
reason, or shall be determined adversely to Mortgagee, then and in every such
case and except as otherwise ordered by a court of competent jurisdiction,
Mortgagor and Mortgagee shall be restored to their former positions and rights
hereunder, and all rights, powers and remedies of Mortgagee shall continue as
if no such proceeding had been taken.


SECTION
2.12.  Suits To Protect the Mortgaged
Property.  Mortgagee shall have power
(a) to institute and maintain suits and proceedings to prevent any
impairment of the Mortgaged Property by any acts that may be unlawful or in
violation of this Mortgage, (b) to preserve or protect its interest in the
Mortgaged Property and in the Rents arising therefrom and (c) to restrain
the enforcement of or compliance with any legislation or other governmental
enactment, rule or order that Mortgagee has reason to believe is
unconstitutional or otherwise invalid if the enforcement of or compliance with
such enactment, rule or order would impair the security or be prejudicial to
the interest of Mortgagee hereunder.


SECTION
2.13.  Filing Proofs of Claim.  In case of any receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings
affecting Mortgagor, Mortgagee shall, to the extent permitted by the Credit
Agreement, be entitled to file such proofs of claim and other documents as may
be necessary or advisable in order to have the claims of Mortgagee allowed in
such proceedings for the Obligations secured by this Mortgage at the date of
the institution of such proceedings and for any interest accrued, late charges
and additional interest or other amounts due or that may become due and payable
hereunder after such date.


 


14





















 


SECTION
2.14.  Possession by Mortgagee.  Notwithstanding the appointment of any
receiver, liquidator or trustee of Mortgagor, any of its property or the
Mortgaged Property, Mortgagee shall be entitled, to the extent not prohibited
by law, to remain in possession and control of all parts of the Mortgaged
Property now or hereafter granted under this Mortgage to Mortgagee in
accordance with the terms hereof and applicable law.


SECTION
2.15.  Waiver.  (a)  No
delay or failure by Mortgagee to exercise any right, power or remedy accruing
upon any breach or Event of Default shall exhaust or impair any such right,
power or remedy or be construed to be a waiver of any such breach or Event of
Default or acquiescence therein; and every right, power and remedy given by
this Mortgage to Mortgagee may be exercised from time to time and as often as
may be deemed expedient by Mortgagee.  No
consent or waiver by Mortgagee to or of any breach or Event of Default by
Mortgagor in the performance of the Obligations shall be deemed or construed to
be a consent or waiver to or of any other breach or Event of Default in the
performance of the same or of any other Obligations by Mortgagor
hereunder.  No failure on the part of
Mortgagee to complain of any act or failure to act or to declare an Event of
Default, irrespective of how long such failure continues, shall constitute a
waiver by Mortgagee of its rights hereunder or impair any rights, powers or
remedies consequent on any future Event of Default by Mortgagor.


(b)  Even if Mortgagee (i) grants some
forbearance or an extension of time for the payment of any sums secured hereby,
(ii) takes other or additional security for the payment of any sums
secured hereby, (iii) waives or does not exercise some right granted
herein or under the Loan Documents, (iv) releases a part of the Mortgaged
Property from this Mortgage, (v) agrees to change some of the terms,
covenants, conditions or agreements of any of the Loan Documents, (vi) consents
to the filing of a map, plat or replat affecting the Premises,
(vii) consents to the granting of an easement or other right affecting the
Premises or (viii) makes or consents to an agreement subordinating
Mortgagee’s lien on the Mortgaged Property hereunder; no such act or omission
shall preclude Mortgagee from exercising any other right, power or privilege
herein granted or intended to be granted in the event of any breach or Event of
Default then made or of any subsequent default; nor, except as otherwise expressly
provided in an instrument executed by Mortgagee, shall this Mortgage be altered
thereby; provided, however, that in the event of any conflict
between the Credit Agreement and this Mortgage, the Credit Agreement shall
control.  In the event of the sale or
transfer by operation of law or otherwise of all or part of the Mortgaged
Property, Mortgagee is hereby authorized and empowered to deal with any vendee
or transferee with reference to the Mortgaged Property secured hereby, or with
reference to any of the terms, covenants, conditions or agreements hereof, as
fully and to the same extent as it might deal with the original parties hereto
and without in any way releasing or discharging any liabilities, obligations or
undertakings.


SECTION
2.16.  Waiver of Trial by Jury.  To the fullest extent permitted by applicable
law, Mortgagor and Mortgagee each hereby irrevocably and unconditionally waive
trial by jury in any action, claim, suit or proceeding relating to this
Mortgage and for any counterclaim brought therein.


 


15





















 


SECTION
2.17.  Remedies Cumulative.  No right, power or remedy conferred upon or
reserved to Mortgagee by this Mortgage is intended to be exclusive of any other
right, power or remedy, and each and every such right, power and remedy shall
be cumulative and concurrent and in addition to any other right, power and
remedy given hereunder or now or hereafter existing at law or in equity or by
statute.


ARTICLE III



Miscellaneous




SECTION
3.01.  Partial Invalidity.  In the event any one or more of the
provisions contained in this Mortgage shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such validity, illegality or
unenforceability shall, not affect any other provision of this Mortgage, and
this Mortgage shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein or therein.


SECTION
3.02.  Notices.  All notices and communications hereunder
shall be in writing and given to Mortgagor in accordance with the terms of the
Credit Agreement at the address set forth on the first page of this Mortgage
and to the Mortgagee as provided in the Credit Agreement.


SECTION
3.03.  Successors and Assigns.  All of the grants, covenants, terms, provisions
and conditions herein shall run with the Premises and the Improvements and
shall apply to, bind and inure to, the benefit of the permitted successors and
assigns of Mortgagor and the successors and permitted assigns of Mortgagee.


SECTION
3.04.  Satisfaction and Cancelation.  (a) 
This Mortgage and all security interests granted hereby shall terminate
when all the then existing Loan Document Obligations have been indefeasibly
paid in full and the Lenders have no further commitment to lend under the
Credit Agreement.


(b)  Upon any sale or other transfer by Mortgagor
of any of the Mortgaged Property that is permitted under the Credit Agreement
to any person that is not the Borrower or a Guarantor, or, upon the
effectiveness of any written consent to the release of the security interest
granted hereby in any of the Mortgaged Property pursuant to Section 9.08
of the Credit Agreement, the security interest in such Mortgaged Property shall
be automatically released.


(c)  In connection with any termination or release
pursuant to paragraph (a) or (b) above, the Collateral Agent shall
promptly execute and deliver to Mortgagor, at Mortgagor’s expense, all mortgage
satisfactions and releases and all Uniform Commercial Code termination
statements and similar documents that Mortgagor shall reasonably request to
evidence such termination or release. Any execution and delivery of documents
pursuant to this Section 3.04 shall be without recourse to or
representation or warranty by the Mortgage or any Secured Party (other than as
to the authority of such Person to execute and deliver such documents).  Without limiting the provisions of this
Section 3.04, the Mortgagor shall


 


16





















 


reimburse the
Mortgagee upon demand for all reasonable out-of-pocket costs and expenses,
including the fees, charges and expenses of counsel, incurred by it in
connection with any action contemplated by this Section 3.04.


SECTION
3.05.  Definitions.  As used in this Mortgage, the singular shall
include the plural as the context requires and the following words and phrases
shall have the following meanings: (a) ”including” shall mean “including
but not limited to”; (b) ”provisions” shall mean “provisions, terms,
covenants and/or conditions”; (c) ”lien” shall mean “lien, charge,
encumbrance, security interest, mortgage or deed of trust”; (d) ”obligation”
shall mean “obligation, duty, covenant and/or condition”; and (e) ”any of
the Mortgaged Property” shall mean “the Mortgaged Property or any part thereof
or interest therein”.  Any act that
Mortgagee is permitted to perform hereunder may be performed at any time and
from time to time by Mortgagee or any person or entity designated by
Mortgagee.  Any act that is prohibited to
Mortgagor hereunder is also prohibited to all lessees of any of the Mortgaged
Property.  Each appointment of Mortgagee
as attorney-in-fact for Mortgagor under the Mortgage is irrevocable, with power
of substitution and coupled with an interest. 
Subject to the applicable provisions hereof and to the applicable
provisions of the Credit Agreement and the Guarantee and Collateral Agreement,
Mortgagee has the right to refuse to grant its consent, approval or acceptance
or to indicate its satisfaction, in its sole discretion, whenever such consent,
approval, acceptance or satisfaction is required hereunder.


SECTION
3.06.  Multisite Real Estate
Transaction.  Mortgagor acknowledges
that this Mortgage is one of a number of Security Documents that secure the
Obligations.  Mortgagor agrees that the
lien of this Mortgage shall be absolute and unconditional and shall not in any
manner be affected or impaired by any acts or omissions whatsoever of
Mortgagee, and without limiting the generality of the foregoing, the lien
hereof shall not be impaired by any acceptance by the Mortgagee of any security
for or guarantees of any of the Obligations hereby secured, or by any failure,
neglect or omission on the part of Mortgagee to realize upon or protect any
Obligation or indebtedness hereby secured or any collateral security therefor
including the other Security Documents. 
The lien hereof shall not in any manner be impaired or affected by any
release (except as to the property released), sale, pledge, surrender, compromise,
settlement, renewal, extension, indulgence, alteration, changing, modification
or disposition of any of the Obligations secured or of any of the collateral
security therefor, including the other Security Documents or of any guarantee
thereof, and Mortgagee may at its discretion foreclose, exercise any power of
sale, or exercise any other remedy available to it under any or all of the
other Security Documents without first exercising or enforcing any of its
rights and remedies hereunder.  Such
exercise of Mortgagee’s rights and remedies under any or all of the other
Security Documents shall not in any manner impair the indebtedness hereby
secured or the lien of this Mortgage and any exercise of the rights or remedies
of Mortgagee hereunder shall not impair the lien of any of the other Security
Documents or any of Mortgagee’s rights and remedies thereunder.  Mortgagor specifically consents and agrees
that Mortgagee may exercise its rights and remedies hereunder and under the
other Security Documents separately or concurrently and in any order that it
may deem appropriate and waives any rights of subrogation.


SECTION
3.07.  No Oral Modification.  This Mortgage may not be changed or
terminated orally.  Any agreement made by
Mortgagor and Mortgagee after the date of this


 


17





















 


Mortgage
relating to this Mortgage shall be superior to the rights of the holder of any
intervening or subordinate mortgage, lien or encumbrance.


SECTION
3.08.  Intercreditor Agreement.  Reference is made to the Intercreditor Agreement
dated as of June 30, 2006 (as amended, restated, supplemented or otherwise
modified from time to time, the “Intercreditor Agreement”), among the Borrower,
Holdings, the Subsidiaries of the Borrower party thereto, Credit Suisse (“Credit
Suisse”), as Second Lien Collateral Agent (as defined therein), and Credit
Suisse, as Second Lien Collateral Agent (as defined therein).  Notwithstanding anything herein to the
contrary, the lien and security interest granted to the Mortgagee, for the
benefit of the Secured Parties, pursuant to this Mortgage and the exercise of
any right or remedy by the Mortgagee and the other Secured Parties hereunder
are subject to the provisions of the Intercreditor Agreement.  In the event of any conflict or inconsistency
between the provisions of the Intercreditor Agreement and this Mortgage, the
provisions of the Intercreditor Agreement shall control.


ARTICLE IV



Particular Provisions




This Mortgage is subject to the
following provisions relating to the particular laws of the state wherein the
Premises are located:


SECTION
4.01.  Applicable Law; Certain
Particular Provisions.  This Mortgage
shall be governed by and construed in accordance with the internal law of the
state where the Mortgaged Property is located, except that Mortgagor expressly
acknowledges that by their terms, the Credit Agreement and other Loan Documents
shall be governed by the internal law of the State of New York, without
regard to principles of conflict of law. 
Mortgagor and Mortgagee agree to submit to jurisdiction and the laying
of venue for any suit on this Mortgage in the state where the Mortgaged
Property is located.  The terms and
provisions set forth in Appendix A attached hereto are hereby incorporated
by reference as though fully set forth herein. 
In the event of any conflict between the terms and provisions contained
in the body of this Mortgage and the terms and provisions set forth in
Appendix A, the terms and provisions set forth in Appendix A shall
govern and control.


 


18





















 


IN
WITNESS WHEREOF, this Mortgage has been duly executed and delivered to
Mortgagee by Mortgagor on the date of the acknowledgment attached hereto.


	
   

  	
   

  	
  HAWKEYE RENEWABLES, LLC,

  
	
   

  	
   

  	
  a Delaware limited liability
  company,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Bruce Rastetter

  
	
   

  	
   

  	
   

  	
  Title: Chief Executive Officer

  
						



 


 


19

















 


 




	
  STATE
  OF NEW YORK

  	
  )

  
	
   

  	
  )
  SS:

  
	
  COUNTY
  OF NEW YORK

  	
  )

  






 


On this ____ day of June,
2006, before me, the undersigned, a Notary Public in and for the State of New
York, personally appeared Bruce Rastetter to me personally known, who being by
me duly sworn, did say that he is the Chief Executive Officer of HAWKEYE
RENEWABLES, LLC, a Delaware limited liability company, executing the within and
foregoing instrument; that no seal has been procured by the said limited
liability company; that said instrument was signed on behalf of the limited
liability company by authority of its members; and that Bruce Rastetter, as
Chief Executive Officer, acknowledged the execution of the foregoing instrument
to be the voluntary act and deed of the limited liability company, by it and by
him voluntarily executed.


 


 


	
   

  	
   

  
	
   

  	
  Notary Public in and for
  the State of New York

  



 


 


20

















 


Exhibit A

to Mortgage


 


Description of the Land


 


TRACT ONE

FAYETTE COUNTY, IOWA:


Parcel
D in the Southeast Quarter of Section 33, Township 91 North, Range 10 West of
the 5th P.M., Fayette County, Iowa, and more particularly described as follows:


Beginning at the South quarter corner of said section;


Thence North 01 degrees 17 minutes 45 seconds East
299.3 feet along the north-south quarter section line of said section to the
southerly right-of-way line of the Chicago North Western Railroad;


Thence North 67 degrees 52 minutes 30 seconds East
2,885.0 feet along said line to the east section line of said section;


Thence South 01 degrees 23 minutes 45 seconds West
1,296.5 feet along said line to the northerly right-of-way line of Iowa Highway
#281;


Thence South 61 degrees 12 minutes 00 seconds West
169.0 feet along said line to the south township line of said section;


Thence South 89 degrees 48 minutes 45 seconds West
2,499.6 feet along said line to the point of beginning.


TRACT
TWO

BUCHANAN COUNTY, IOWA:


The
Northeast fractional Quarter lying North of public highway 190 in Section 4,
Township 90 North, Range 10 West of the 5th P.M., Buchanan County, Iowa, except
for easement for highway, and excepting a parcel described as follows:
commencing 1,169.5 feet South of the Northwest corner of the Northwest Quarter
of the Northeast Quarter laying North of Highway No. 190 in Section 4, Township
90 North, Range 10 West of the 5th P.M. in Buchanan County, Iowa, thence East
381.8 feet, thence Southeasterly 60 feet to the North line of Highway No. 190,
thence Southwesterly along the North line of the highway 397.5 feet; thence
North 227.3 feet to the Point of Beginning; said excepted parcel is also more
particularly described in the Plat of Survey recorded in Book 548, Page 93 as:


Parcel A in the West Half of the Fractional Northeast
Quarter of Section 4, Township 90 North, Range 10 West of the 5th P.M.,
Buchanan County, Iowa, and more particularly described as follows: Commencing
at the North Quarter Corner of said Section; thence South 00o-37’-00” West
1,169.5 feet along the North-South Quarter Section Line to the Point of
Beginning; thence South 89o-23’-00” East 381.8 feet to the Northerly
Right-of-Way Line of Iowa Highway #281; thence South 28o-37’-00” East 60.0 feet
to the Centerline of said Highway; thence South 61o-23’00” West (Record
Bearing) 50.6 feet; thence Westerly along a 1,634.1 foot radius curve concave
Northerly 397.5 feet, said curve having a Long Chord of South 68o-21’-15” West
396.5 feet all along said Centerline to said Quarter Section Line; thence North
00o-37’-00” East 227.3 feet along said Quarter Section Line to the Point of
Beginning, containing 1.403 Acres, including 0.596 Acre of Iowa Highway #281
Right-of-Way, subject to easements of record.


 


 

















 


Tract
Two also being described as:


Parcel
E, being That part of the Northeast Quarter lying north of Iowa Highway No. 281
in Section 4, Township 90 North, Range 10 West of the 5th P.M., Buchanan
County, Iowa, more particularly described as follows:


Commencing at the northeast corner of said Section 4;


Thence South 89 degrees 48 minutes 45 seconds West
(assumed bearing) along the north line of the Northeast Quarter of said Section
4 a distance of 146.20 feet to the point of beginning;


Thence continuing South 89 degrees 48 minutes 45
seconds West along said north line 2499.43 feet to the west line of said
Northeast Quarter;


Thence South 00 degrees 25 minutes 44 seconds West
along said west line 1169.59 feet;


Thence South 89 degrees 34 minutes 16 seconds East 381.80
feet to the northerly line of Iowa Highway No. 281;


Thence North 61 degrees 11 minutes 47 seconds East
along said northerly line 1177.03 feet;


Thence North 59 degrees 17 minutes 00 seconds East
along said northerly line 300.17 feet;


Thence North 61 degrees 11 minutes 47 seconds East
along said northerly line 955.09 feet to the point of beginning.


 


TRACT
THREE


HARDIN
COUNTY, IOWA:


 


That
part of the Northeast Quarter of the Southwest Quarter lying south and east of
the Chicago, Rock Island and Pacific Railway Company and that part of the
Northeast Quarter of the Southeast Quarter and that part of the Northwest
Quarter of the Southeast Quarter lying South and East of the Chicago, Rock
Island and Pacific Railway Company ALL in Section 23, Township 89 North, Range
21 West of the 5th P.M., Hardin County, Iowa; AND


The
Northwest Quarter of the Southwest Quarter of Section 24, except the South 39.2
feet thereof, in Township 89 North, Range 21 West of the 5th P.M., Hardin
County, Iowa,


Pursuant
to Plat and Survey dated 1-25-04, filed of record 1-29-04 as Instrument No.
2004-359 in Hardin County, Iowa;


Tract
Three also being described as:


Northeast
Quarter of the Southeast Quarter (NE 1/4 SE 1/4) and all that part of the
Northwest Quarter of the Southeast Quarter (NW 1/4 SE 1/4) lying south and east
of the right-of-way of the C.R.I. and P. Railway Company in Section
Twenty-three (23); and


Northwest
Quarter of the Southwest Quarter (NW 1/4 SW 1/4) of Section Twenty-four (24),
except the south 39.2 feet thereof; all in Township Eighty-nine (89) North,
Range Twenty-one (21) West of the 5th P.M., Hardin County, Iowa; and


 


21

















 


Northeast
Quarter of the Southwest Quarter (NE 1/4 SW 1/4) of Section Twenty-three (23),
Township Eighty-nine (89) North, Range Twenty-one (21) West of the 5th P.M.,
Hardin County, Iowa, lying south of the Chicago, Rock Island and Pacific
Railway.


TOGETHER
WITH the benefits of that certain Easement Agreement by and between Lyle M.
Campbell and Elizabeth Campbell and Midwest Renewables dated November 12, 2003,
and recorded November 13, 2003, as Instrument No. 4781 in Hardin County, Iowa.


 


22

















 


Exhibit
A

to Mortgage


 


Local
Law Provisions


This
Iowa Jurisdictional Addendum is made to the attached Second Lien Mortgage,
Assignment of Leases and Rents, Security Agreement and Fixture Financing
Statement (herein referred to as the “Mortgage”) and is hereby incorporated
therein and made a part thereof, and terms used herein are defined
therein.  The undersigned (herein
referred to as “Mortgagor”) further represents, warrants and agrees as follows:


1.             This instrument is to be filed and
indexed in the real property records and also to be indexed in the Index of
Financing Statements.  The names of the
debtor and the secured party, the mailing address of the secured party from
which information concerning the security interest may be obtained, the mailing
address of the debtor and a statement indicating the types, or describing the
items, of collateral are as described herein. 
This instrument conveys a security interest in goods and other items of
property which are or are to become fixtures on the real property described in
Exhibit A attached hereto.  The above
referenced Mortgagor is the record owner of the aforesaid real property.


2.             The maturity date of the loan
obligations is June 30, 2013,


3.             The following shall apply:


NOTICE: This Mortgage
secures credit in the amount of $150,000,000.00.  Loans and advances up to this amount,
together with interest, are senior to indebtedness to other creditors under
subsequently recorded or filed mortgages and liens.


 


4.             In the event of foreclosure of this
Mortgage, the Mortgagor hereby agrees that the court may, and requests the court
to, enter a special order directing the clerk to enter and record the judgment
contained in the foreclosure decree on the promissory note/credit agreement
secured by this Mortgage without requiring that the promissory note/credit
agreement be first filed with the clerk of court for cancellation.  The Mortgagor further agrees, because the
promissory note/credit agreement secured by this Mortgage is also secured by
other mortgages and will be necessary to a foreclosure of those mortgages, that
notwithstanding Iowa Rule of Civil Procedure 228, as presently enacted or as
hereinafter amended or replaced, the clerk of court may, in the event of
foreclosure of this Mortgage, enter and record the judgment contained in the
foreclosure decree on the promissory note/credit agreement secured by this
Mortgage without requiring that the promissory note/credit agreement be first
filed with the clerk of court for cancellation.


5.             The Mortgagor further represents
and warrants to Mortgagee that no loan broker as defined in Iowa Code Chapter
535C was involved either directly or indirectly in connection with the
transactions contemplated by the Mortgage.


6.             That the Mortgagor acknowledges
receipt of a copy of the Mortgage with its Appendix “A” Jurisdictional Addendum
attached thereto and a copy of all of the other documents executed by
Mortgagor.


 


 

















 


7.             That the Mortgagor agrees that
notwithstanding the fact that the Mortgage contains matters which may not be
appropriate, available or enforceable in Iowa, the inclusion of such matters
does not affect the validity or enforceability of the Mortgage as appropriate
and available under Iowa law.  To the
extent the laws of the State of Iowa limit (i) the availability of the exercise
of any of the remedies set forth herein, including, without limitation,
remedies such as a power of sale and taking possession of the property, or (ii)
the enforcement of waivers and indemnities made by Mortgagor, such remedies,
waivers, or indemnities shall be exercisable or enforceable, any provisions in
this Mortgage to the contrary notwithstanding, if, and to the extent, permitted
by the laws in force at the time of the exercise of such remedies or the
enforcement of such waivers or indemnities without regard to the enforceability
of such remedies, waiver or indemnities at the time of the execution and
delivery of this Mortgage.


 


 

















 


EXHIBIT G


to the Second Lien Credit Agreement


FORM OF

NON-BANK CERTIFICATE


Reference
is made to the Second Lien Credit Agreement, dated as of June 30, 2006 (as
amended, modified, supplemented, restated, replaced or refinanced from time to
time, the “Second Lien Credit Agreement”), among THL-Hawkeye Acquisition
LLC, a Delaware limited liability company (the “Borrower”), Hawkeye
Intermediate, LLC, a Delaware limited liability company, the several banks and
other financial institutions or entities from time to time parties thereto,
Credit Suisse Securities (USA) LLC and Banc of America Securities LLC, as joint
lead arrangers, and Credit Suisse, as administrative agent and collateral
agent.  Capitalized terms used herein
that are not defined herein shall have the meanings ascribed to them in the
Second Lien Credit Agreement. 
______________________ (the “Non-U.S. Lender”) is providing this
certificate pursuant to subsection 2.20(e) of the Second Lien Credit
Agreement.  The Non-U.S. Lender hereby
represents and warrants that:


I.                                         The Non-U.S.
Lender is the sole record and beneficial owner of the Loans or the obligations
evidenced by Note(s) in respect of which it is providing this certificate.


II.                                     The Non-U.S.
Lender is not a “bank” for purposes of Section 881(c)(3)(A) of the Internal
Revenue Code of 1986, as amended (the “Code”).  In this regard, the Non-U.S. Lender further
represents and warrants that:


(a)           the Non-U.S. Lender is not subject to
regulatory or other legal requirements as a bank in any jurisdiction; and


(b)           the Non-U.S. Lender does not take
deposits and has not been treated as a bank for purposes of any tax, securities
law or other filing or submission made to any Governmental Authority, any
application made to a rating agency or qualification for any exemption from
tax, securities law or other legal requirements.


 


IN
WITNESS WHEREOF, the undersigned has duly executed this certificate.


	
   

  	
  [NAME
  OF NON-U.S. LENDER]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
  Date:

  	
   

  	
  , 20

  	
   

  	
   

  
							



 


 


 


G-1

















 


EXHIBIT H-1


to Second Lien Credit Agreement


FORM OF


SECOND LIEN TRADEMARK
SECURITY AGREEMENT, dated as of
[         ], 200[__] (this “Agreement”), among HAWKEYE INTERMEDIATE,
LLC, a Delaware limited liability company (“Holdings”),
HAWKEYE RENEWABLES, LLC, a Delaware limited liability company (the “Borrower”),  the subsidiaries of the Borrower listed on
Schedule I hereto (the “Subsidiary Parties”)
and CREDIT SUISSE, as Collateral Agent (the “Collateral
Agent”).


Reference is made to the
Second Lien Guarantee and Collateral Agreement dated as of June 30, 2006 (as
amended, restated, amended and restated, supplemented or otherwise modified
from time to time, the “Security Agreement”),
among Holdings, the Borrower, the Lenders party thereto and the Collateral
Agent.  The Lenders have extended credit
to the Borrower subject to the terms and conditions set forth in the Second
Lien Credit Agreement dated as of June 30, 2006 (as amended, restated,
amended and restated, supplemented or otherwise modified from time to time, the
“Second Lien Credit Agreement”).  Consistent with the requirements of the
Second Lien Credit Agreement and pursuant to and in accordance with
Section 4.01 and Section 4.03(e) of the Guarantee and Collateral
Agreement, the parties hereto agree as follows:


SECTION 1.  Terms.  Capitalized terms used in this Agreement and
not otherwise defined herein have the meanings specified in the Security
Agreement.  The rules of construction
specified in Section 1.02 of the Second Lien Credit Agreement also apply
to this Agreement.


SECTION 2.  Grant of Security Interest.  As security for the payment or performance,
as the case may be, in full of the Obligations, each Grantor, pursuant to the
Security Agreement, did and hereby does grant to the Collateral Agent, its
successors and assigns, for the benefit of the Secured Parties, a security
interest in, all right, title or interest in or to any and all of the following
assets and properties now owned or at any time hereafter acquired by such
Grantor or in which such Grantor now has or at any time in the future may
acquire any right, title or interest (collectively, the “Trademark
Collateral”):


all trademarks, service marks, trade
names, corporate names, company names, business names, fictitious business
names, trade styles, trade dress, logos, other source or business identifiers,
designs and general intangibles of like nature, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
registration and recording applications filed in connection therewith,
including registrations and registration applications in the United States
Patent and Trademark Office, and all extensions or renewals thereof, including
those listed on Schedule II (the “Trademarks”);
i) all goodwill associated with or 


 


 


H-1-1





















 


symbolized
by the Trademarks; and ii) all assets, rights and interests that uniquely
reflect or embody the Trademarks.


SECTION 3. Security Agreement.  The security interests granted to the
Collateral Agent herein are granted in furtherance, and not in limitation of,
the security interests granted to the Collateral Agent pursuant to the Security
Agreement.  Each Grantor hereby
acknowledges and affirms that the rights and remedies of the Collateral Agent
with respect to the Trademark Collateral are more fully set forth in the
Security Agreement, the terms and provisions of which are hereby incorporated herein
by reference as if fully set forth herein. 
In the event of any conflict between the terms of this Agreement and the
Security Agreement, the terms of the Security Agreement shall govern.


[Remainder of this page
intentionally left blank]


 


 


H-1-2

















 


IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.


	
   

  	
  HAWKEYE INTERMEDIATE, LLC,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


	
   

  	
  HAWKEYE RENEWABLES, LLC,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


 


	
   

  	
  EACH OF THE SUBSIDIARIES

  
	
   

  	
  LISTED ON SCHEDULE I
  HERETO,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


	
   

  	
  CREDIT SUISSE, as
  Collateral Agent,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


 


 


H-1-3

















 


Schedule I


	
  Subsidiary
  Parties

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  



 


H-1-4





















 


Schedule II


I. Trademarks


	
  Registered Owner

  	
   

  	
  Mark

  	
   

  	
  Registration Number

  	
   

  	
  Expiration Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


II. Trademark Applications


	
  Registered Owner

  	
   

  	
  Mark

  	
   

  	
  Registration

  Number

  	
   

  	
  Date

  Filed

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


III.
Trademark Licenses


	
  Licensee

  	
   

  	
  Licensor

  	
   

  	
  Mark

  	
   

  	
  Registration

  Number

  	
   

  	
  Expiration Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


H-2-5

















EXHIBIT H-2


to Second Lien Credit Agreement


FORM OF


SECOND LIEN PATENT SECURITY
AGREEMENT, dated as of
[         ], 200[__] (this “Agreement”), among HAWKEYE
INTERMEDIATE, LLC, a Delaware limited liability company (“Holdings”),
HAWKEYE RENEWABLES, LLC, a Delaware limited liability company (the “Borrower”),  the subsidiaries of the Borrower listed on
Schedule I hereto (the “Subsidiary Parties”)
and CREDIT SUISSE, as Collateral Agent (the “Collateral
Agent”).


Reference is made to the
Second Lien Guarantee and Collateral Agreement dated as of June 30, 2006 (as
amended, restated, amended and restated, supplemented or otherwise modified
from time to time, the “Security Agreement”),
among Holdings, the Borrower, the Lenders party thereto and the Collateral
Agent.  The Lenders have extended credit
to the Borrower subject to the terms and conditions set forth in the Second
Lien Credit Agreement dated as of June 30, 2006 (as amended, restated,
amended and restated, supplemented or otherwise modified from time to time, the
“Second Lien Credit Agreement”).  Consistent with the requirements of the
Second Lien Credit Agreement and pursuant to and in accordance with
Section 4.01 and Section 4.03(e) of the Guarantee and Collateral
Agreement, the parties hereto agree as follows:


SECTION 1.  Terms.  Capitalized terms used in this Agreement and
not otherwise defined herein have the meanings specified in the Security
Agreement.   The rules of construction
specified in Section 1.02 of the Second Lien Credit Agreement also apply
to this Agreement.


SECTION 2.  Grant of Security Interest.  As security for the payment or performance,
as the case may be, in full of the Obligations, each Grantor, pursuant to the
Security Agreement, did and hereby does grant to the Collateral Agent, its
successors and assigns, for the benefit of the Secured Parties, a security
interest in, all right, title or interest in or to any and all of the following
assets and properties now owned or at any time hereafter acquired by such
Grantor or in which such Grantor now has or at any time in the future may
acquire any right, title or interest (collectively, the “Patent
Collateral”):


all letters patent of the United States
or the equivalent thereof in any other country, all registrations and
recordings thereof, and all applications for letters patent of the United
States or the equivalent thereof in any other country, including registrations,
recordings and pending applications in the United States Patent and Trademark
Office, including those listed on Schedule II (the “Patents”), and
(b) all reissues, continuations, divisions, continuations-in-part,
renewals or extensions thereof, and all inventions disclosed or claimed
therein, including the right to make, use and/or sell the inventions disclosed
or claimed therein.


 


 


H-2-1





















 


SECTION 3. Security Agreement.  The security
interests granted to the Collateral Agent herein are granted in furtherance,
and not in limitation of, the security interests granted to the Collateral
Agent pursuant to the Security Agreement. 
Each Grantor hereby acknowledges and affirms that the rights and
remedies of the Collateral Agent with respect to the Patent Collateral are more
fully set forth in the Security Agreement, the terms and provisions of which
are hereby incorporated herein by reference as if fully set forth herein.  In the event of any conflict between the
terms of this Agreement and the Security Agreement, the terms of the Security
Agreement shall govern.


[Remainder of this page
intentionally left blank]


 


H-2-2

















 


IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.


	
   

  	
  HAWKEYE INTERMEDIATE, LLC,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


	
   

  	
  HAWKEYE RENEWABLES, LLC,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


 


	
   

  	
  EACH OF THE SUBSIDIARIES

  
	
   

  	
  LISTED ON SCHEDULE I
  HERETO,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


	
   

  	
  CREDIT SUISSE, as
  Collateral Agent,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


H-2-3





















 


Schedule I


	
  Subsidiary
  Parties

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  



 


H-2-4





















 


Schedule II


I. Patents


	
  Registered Owner

  	
   

  	
  Type

  	
   

  	
  Registration

  Number

  	
   

  	
  Expiration Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


II. Patent Applications


	
  Registered Owner

  	
   

  	
  Type

  	
   

  	
  Registration Number

  	
   

  	
  Date

  Filed

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


III.
Patent Licenses


	
  Licensee

  	
   

  	
  Licensor

  	
   

  	
  Type

  	
   

  	
  Registration Number

  	
   

  	
  Expiration Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


H-2-5














EXHIBIT
H-3


to
the Second Lien Credit Agreement


FORM OF


SECOND LIEN COPYRIGHT
SECURITY AGREEMENT, dated as of
[         ], 200[__] (this “Agreement”), among HAWKEYE
INTERMEDIATE, LLC, a Delaware limited liability company (“Holdings”),
HAWKEYE RENEWABLES, LLC, a Delaware limited liability company (the “Borrower”),  the subsidiaries of the Borrower listed on
Schedule I hereto (the “Subsidiary Parties”)
and CREDIT SUISSE, as Collateral Agent (the “Collateral
Agent”).


Reference is made to the Second
Lien Guarantee and Collateral Agreement dated as of June 30, 2006 (as
amended, restated, amended and restated, supplemented or otherwise modified
from time to time, the “Security Agreement”),
among Holdings, the Borrower, the Lenders party thereto and the Collateral Agent.  The Lenders have extended credit to the
Borrower subject to the terms and conditions set forth in the Second Lien
Credit Agreement dated as of June 30, 2006 (as amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the “Second Lien Credit Agreement”).  Consistent with the requirements of the Second
Lien Credit Agreement and pursuant to and in accordance with Section 4.01
and Section 4.03(e) of the Guarantee and Collateral Agreement, the parties
hereto agree as follows:


SECTION 1.  Terms.  Capitalized terms used in this Agreement and
not otherwise defined herein have the meanings specified in the Security
Agreement.   The rules of construction
specified in Section 1.02 of the Second Lien Credit Agreement also apply to
this Agreement.


SECTION 2.  Grant of Security Interest.  As security for the payment or performance,
as the case may be, in full of the Obligations, each Grantor, pursuant to the
Security Agreement, did and hereby does grant to the Collateral Agent, its
successors and assigns, for the benefit of the Secured Parties, a security
interest in, all right, title or interest in or to any and all of the following
assets and properties now owned or at any time hereafter acquired by such
Grantor or in which such Grantor now has or at any time in the future may
acquire any right, title or interest (collectively, the “Copyright
Collateral”):


all copyright rights in any work
subject to the copyright laws of the United States or any other country,
whether as author, assignee, transferee or otherwise, and (b) all
registrations and applications for registration of any such copyright in the
United States or any other country, including registrations, recordings,
supplemental registrations and pending applications for registration in the
United States Copyright Office, including those listed on Schedule II (the “Copyrights”).


SECTION 3. Security Agreement.  The security interests granted to the
Collateral Agent herein are granted in furtherance, and not in limitation of,
the security


 


H-3-1

















 


interests
granted to the Collateral Agent pursuant to the Security Agreement.  Each Grantor hereby acknowledges and affirms
that the rights and remedies of the Collateral Agent with respect to the
Copyright Collateral are more fully set forth in the Security Agreement, the
terms and provisions of which are hereby incorporated herein by reference as if
fully set forth herein.  In the event of
any conflict between the terms of this Agreement and the Security Agreement,
the terms of the Security Agreement shall govern.


[Remainder of this page
intentionally left blank]


 


 


H-3-2





















 


IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.


	
   

  	
  HAWKEYE INTERMEDIATE, LLC,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  HAWKEYE RENEWABLES, LLC,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  EACH OF THE SUBSIDIARIES

  LISTED ON SCHEDULE I HERETO,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CREDIT SUISSE, as
  Collateral Agent,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


 


 


H-3-3





















Schedule I


	
  Subsidiary
  Parties

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  



 


 


 


H-3-4

















 


Schedule II


I. Copyrights


	
  Registered Owner

  	
  Title

  	
  Registration 

  Number

  	
  Expiration

  Date

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


II. Copyright Applications


	
  Registered Owner

  	
  Title

  	
  Registration 

  Number

  	
  Date

  Filed

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


III.
Copyright Licenses


	
  Licensee

  	
  Licensor

  	
  Title

  	
  Registration Number

  	
  Expiration

  Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


H-3-5