Exhibit
10.17


 


EXECUTION COPY


 




 





FIRST 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

  
	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  	
   

  	
   

  
	
  Definitions

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Defined Terms

  	
  1

  
	
  SECTION 1.02.

  	
  Terms Generally

  	
  32

  
	
  SECTION 1.03.

  	
  Classification of Loans
  and Borrowings

  	
  33

  
	
  SECTION 1.04.

  	
  Rounding

  	
  33

  
	
  SECTION 1.05.

  	
  References to
  Agreements and Laws

  	
  33

  
	
  SECTION 1.06.

  	
  Times of Day

  	
  33

  
	
  SECTION 1.07.

  	
  Timing of Payment or
  Performance

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  	
   

  
	
  The Credits

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  Commitments

  	
  34

  
	
  SECTION 2.02.

  	
  Loans

  	
  34

  
	
  SECTION 2.03.

  	
  Borrowing Procedure

  	
  36

  
	
  SECTION 2.04.

  	
  Evidence of Debt;
  Repayment of Loans

  	
  37

  
	
  SECTION 2.05.

  	
  Fees

  	
  37

  
	
  SECTION 2.06.

  	
  Interest on Loans

  	
  38

  
	
  SECTION 2.07.

  	
  Default Interest

  	
  39

  
	
  SECTION 2.08.

  	
  Alternate Rate of
  Interest

  	
  39

  
	
  SECTION 2.09.

  	
  Termination and
  Reduction of Commitments

  	
  39

  
	
  SECTION 2.10.

  	
  Conversion and
  Continuation of Borrowings

  	
  40

  
	
  SECTION 2.11.

  	
  Repayment of Term
  Borrowings

  	
  42

  
	
  SECTION 2.12.

  	
  Optional Prepayment

  	
  42

  
	
  SECTION 2.13.

  	
  Mandatory Prepayments

  	
  43

  
	
  SECTION 2.14.

  	
  Reserve Requirements;
  Change in Circumstances

  	
  45

  
	
  SECTION 2.15.

  	
  Change in Legality

  	
  46

  
	
  SECTION 2.16.

  	
  Indemnity

  	
  47

  
	
  SECTION 2.17.

  	
  Pro Rata Treatment

  	
  47

  
	
  SECTION 2.18.

  	
  Sharing of Setoffs

  	
  48

  
	
  SECTION 2.19.

  	
  Payments

  	
  48

  
	
  SECTION 2.20.

  	
  Taxes

  	
  49

  
	
  SECTION 2.21.

  	
  Assignment of
  Commitments Under Certain Circumstances; Duty to Mitigate

  	
  51

  
	
  SECTION 2.22.

  	
  Swingline Loans

  	
  52

  
				



 


 


i

















 


	
  SECTION 2.23.

  	
  Letters of Credit

  	
  54

  
	
  SECTION 2.24.

  	
  Incremental Credit
  Extensions

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  	
   

  
	
  Representations
  and Warranties

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Organization; Powers

  	
  60

  
	
  SECTION 3.02.

  	
  Authorization

  	
  60

  
	
  SECTION 3.03.

  	
  Enforceability

  	
  61

  
	
  SECTION 3.04.

  	
  Governmental Approvals

  	
  61

  
	
  SECTION 3.05.

  	
  Financial Statements

  	
  61

  
	
  SECTION 3.06.

  	
  No Material Adverse
  Change

  	
  62

  
	
  SECTION 3.07.

  	
  Title to Properties;
  Possession Under Leases

  	
  62

  
	
  SECTION 3.08.

  	
  Subsidiaries

  	
  63

  
	
  SECTION 3.09.

  	
  Litigation; Compliance
  with Laws

  	
  63

  
	
  SECTION 3.10.

  	
  Agreements

  	
  63

  
	
  SECTION 3.11.

  	
  Federal Reserve
  Regulations

  	
  63

  
	
  SECTION 3.12.

  	
  Investment Company Act

  	
  63

  
	
  SECTION 3.13.

  	
  Tax Returns

  	
  64

  
	
  SECTION 3.14.

  	
  No Material
  Misstatements

  	
  64

  
	
  SECTION 3.15.

  	
  Employee Benefit Plans

  	
  64

  
	
  SECTION 3.16.

  	
  Environmental Matters

  	
  65

  
	
  SECTION 3.17.

  	
  Security Documents

  	
  65

  
	
  SECTION 3.18.

  	
  Location of Real
  Property and Leased Premises

  	
  65

  
	
  SECTION 3.19.

  	
  Labor Matters

  	
  65

  
	
  SECTION 3.20.

  	
  Solvency

  	
  66

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  	
   

  	
   

  
	
  Conditions of
  Lending

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  All Credit Events

  	
  66

  
	
  SECTION 4.02.

  	
  First Credit Event

  	
  67

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  	
   

  	
   

  
	
  Affirmative
  Covenants

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Existence; Compliance
  with Laws; Businesses and Properties

  	
  70

  
	
  SECTION 5.02.

  	
  Insurance

  	
  70

  
	
  SECTION 5.03.

  	
  Taxes

  	
  71

  
	
  SECTION 5.04.

  	
  Financial Statements,
  Reports, etc

  	
  71

  
	
  SECTION 5.05.

  	
  Litigation and Other
  Notices

  	
  73

  



 


 


ii

















 


	
  SECTION 5.06.

  	
  Information Regarding
  Collateral

  	
  73

  
	
  SECTION 5.07.

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

  	
  74

  
	
  SECTION 5.08.

  	
  Use of Proceeds

  	
  74

  
	
  SECTION 5.09.

  	
  Further Assurances

  	
  74

  
	
  SECTION 5.10.

  	
  Interest Rate
  Protection

  	
  76

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  	
   

  
	
  Negative
  Covenants

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Indebtedness

  	
  77

  
	
  SECTION 6.02.

  	
  Liens

  	
  80

  
	
  SECTION 6.03.

  	
  Sale and Lease-Back
  Transactions

  	
  83

  
	
  SECTION 6.04.

  	
  Investments, Loans and
  Advances

  	
  83

  
	
  SECTION 6.05.

  	
  Mergers, Consolidations,
  and Sales of Assets

  	
  85

  
	
  SECTION 6.06.

  	
  Restricted Payments;
  Restrictive Agreements

  	
  88

  
	
  SECTION 6.07.

  	
  Transactions with
  Affiliates

  	
  92

  
	
  SECTION 6.08.

  	
  Business of Holdings,
  Borrower and Subsidiaries

  	
  93

  
	
  SECTION 6.09.

  	
  Other Indebtedness and
  Agreements

  	
  93

  
	
  SECTION 6.10.

  	
  Capital Expenditures

  	
  94

  
	
  SECTION 6.11.

  	
  Interest Coverage Ratio

  	
  95

  
	
  SECTION 6.12.

  	
  Maximum Total Leverage
  Ratio

  	
  95

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  	
   

  
	
  Events of
  Default

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  	
   

  	
   

  
	
  The
  Administrative Agent and the Collateral Agent

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
   

  	
   

  	
   

  
	
  Miscellaneous

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01.

  	
  Notices

  	
  101

  
	
  SECTION 9.02.

  	
  Survival of Agreement

  	
  102

  
	
  SECTION 9.03.

  	
  Binding Effect

  	
  102

  
	
  SECTION 9.04.

  	
  Successors and Assigns

  	
  103

  
	
  SECTION 9.05.

  	
  Expenses; Indemnity

  	
  107

  
	
  SECTION 9.06.

  	
  Right of Setoff

  	
  109

  
				



 


 


iii

















 


	
  SECTION 9.07.

  	
  Applicable Law

  	
  109

  
	
  SECTION 9.08.

  	
  Waivers; Amendment

  	
  109

  
	
  SECTION 9.09.

  	
  Interest Rate
  Limitation

  	
  110

  
	
  SECTION 9.10.

  	
  Entire Agreement

  	
  111

  
	
  SECTION 9.11.

  	
  WAIVER OF JURY TRIAL

  	
  111

  
	
  SECTION 9.12.

  	
  Severability

  	
  111

  
	
  SECTION 9.13.

  	
  Counterparts

  	
  111

  
	
  SECTION 9.14.

  	
  Headings

  	
  112

  
	
  SECTION 9.15.

  	
  Jurisdiction; Consent
  to Service of Process

  	
  112

  
	
  SECTION 9.16.

  	
  Confidentiality

  	
  112

  
	
  SECTION 9.17.

  	
  USA PATRIOT Act Notice

  	
  113

  



 


	
  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 4.02(a)

  	
  -

  	
  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 First Lien
  Guarantee and Collateral Agreement

  
	
  Exhibit E

  	
  -

  	
  Form of Intercreditor
  Agreement

  
	
  Exhibit F

  	
  -

  	
  Form of First Lien
  Mortgage

  
	
  Exhibit G

  	
  -

  	
  Form of Non-Bank
  Certificate

  
	
  Exhibit H-1

  	
  -

  	
  Form of First Lien
  Trademark Security Agreement

  
	
  Exhibit H-2

  	
  -

  	
  Form of First Lien
  Patent Security Agreement

  
	
  Exhibit H-3

  	
  -

  	
  Form of First Lien
  Copyright Security Agreement

  



 


 


iv

















 


FIRST 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 (a) the Lenders to extend credit in the form of (i) Term
Loans on the Closing Date, in an aggregate principal amount not in excess of
$500,000,000, (ii) Revolving Loans at any time and from time to time prior
to the Revolving Credit Maturity Date, in an aggregate principal amount at any
time outstanding not in excess of $50,000,000, (b) the Swingline Lender to
extend credit in the form of Swingline Loans, in an aggregate principal amount
at any time outstanding not in excess of $10,000,000 and (c) the Issuing
Bank to issue Letters of Credit, in an aggregate face amount at any time
outstanding not in excess of $20,000,000.


 


C.           
The Lenders are
willing to extend such credit to the Borrower and the Issuing Bank is willing
to issue Letters of Credit for the account of the Borrower, in each case 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.


 


“Additional Lender”
has the meaning set forth in Section 2.24(a).


 


“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.


 


“Administration Fees”
shall have the meaning assigned to such term in Section 2.05(b).


 


“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.


 


“Aggregate Revolving Credit Exposure”
shall mean the aggregate amount of the Lenders’ Revolving Credit Exposures.


 


“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 Term Loan,
4.00%, (b) with respect to any ABR Term Loan, 3.00%, (c) with respect
to any Swingline Loan, the applicable percentage set forth below under the
caption “ABR Spread”, (d) with respect to any Eurodollar Revolving Loan or
ABR Revolving Loan, the applicable percentage set forth below under the caption
“Eurodollar Spread” or “ABR Spread”, and (e) with respect to the
Commitment Fee, the applicable percentage set forth below under the caption
“Fee Percentage”, as the case may be (in the case of clauses (c), (d) and
(e) above, based upon the Total Leverage Ratio as of the relevant date of
determination):


 


 


2

















 


	
  Total Leverage Ratio

  	
   

  	
  Eurodollar Spread

  	
   

  	
  ABR Spread

  	
   

  	
  Fee Percentage

  	
   

  
	
  Category
  1

   

  Greater than 3.25 to 1.00

  	
   

  	
  4.00

  	
  %

  	
  3.00

  	
  %

  	
  0.500

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category
  2

   

  Less than or equal to 3.25 to 1.00

  	
   

  	
  3.75

  	
  %

  	
  2.75

  	
  %

  	
  0.375

  	
  %

  



 


Each change in the
Applicable Percentage resulting from a change in the Total Leverage Ratio shall
be effective with respect to all Revolving Credit Commitments, Revolving Loans,
Swingline Loans and Letters of Credit outstanding on and after the date of
delivery to the Administrative Agent of the financial statements required by
Section 5.04(a) or (b) and certificates required by Section 5.04(c)
indicating such change until and including the date immediately preceding the
next date of delivery of such financial statements and certificates indicating
another such change. Notwithstanding the foregoing, until Holdings shall have
delivered the financial statements required by Section 5.04(a) or (b) and the
certificate required by Section 5.04(c) covering a period that includes
the first fiscal quarter of Holdings ended after the Closing Date, the Total
Leverage Ratio shall be deemed to be in Category 1 for purposes of
determining the Applicable Percentage. In addition, (a) at any time during
which Holdings has failed to deliver the financial statements required by
Section 5.04(a) or (b) or the certificates required by
Section 5.04(c) by the date required thereunder, or (b) at any time after
the occurrence and during the continuance of an Event of Default, the Total
Leverage Ratio shall be deemed to be in Category 1 for the purposes of
determining the Applicable Percentage.


 


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


 


“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.


 


 


3

















 


“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.


 


“Borrowing” shall mean
(a) Loans of the same Class and 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, or (b) a Swingline Loan.


 


“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(b),
(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.


 


 


4

















 


“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
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 3.50 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 3.00, 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 


 


 


5

















 


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 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 Second 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 the Issuing Bank (or,
for purposes of Section 2.14, by any lending office of such Lender or by such
Lender’s or Issuing Bank’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.


 


“Class”, when used in reference
to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are Revolving Loans, Term Loans or Swingline Loans, and, when
used in reference to any Commitment, refers to whether such Commitment is a
Revolving Credit Commitment, Term Loan Commitment or Swingline Commitment.


 


“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.


 


“Commitments” shall
mean the Revolving Credit Commitments, Term Loan Commitments and Swingline
Commitment.


 


“Commitment Fee” shall
have the meaning assigned to such term in Section 2.05(a).


 


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


 


 


6

















 


“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


 


(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,


 


 


7

















 


(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


 


(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 Interest Coverage Ratio, 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 Interest Expense”
shall mean, for any period with respect to any person (a) the interest expense
payable in cash for such period, determined on a consolidated basis in
accordance with GAAP (including imputed interest expense in respect of Capital
Lease Obligations and Synthetic Lease Obligations but excluding (i) fees
and expenses associated with the consummation of the Transactions, (ii) annual
agency fees paid to the Administrative Agent, and (iii) fees and expenses
associated with any Investment permitted by Section 6.04, issuance of
Indebtedness or Equity Interests, whether or not consummated minus (b) interest
income earned during such period which is paid or payable in cash. For purposes
of the foregoing, (A) interest expense shall be determined after giving
effect to any accruals during such period by such person with respect to
interest rate Hedging Agreements that represent amounts that are paid or 


 


 


8

















 


payable or receivable in cash and
(B) Consolidated Interest Expense shall exclude upfront costs associated
with any Hedging Agreement.


 


“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,


 


(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 Event” shall
have the meaning assigned to such term in Section 4.01.


 


“Credit Facilities”
shall mean the revolving credit, swingline, letter of credit and term loan
facilities provided for by this Agreement.


 


 


9

















 


“Credit Increase” has
the meaning set forth in Section 2.24(a).


 


“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 Term Loans and Revolving
Loans (to the extent accompanied by a permanent reduction of the Revolving
Credit Commitments) 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.


 


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


 


“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 Revolving
Loans, Term Loans or participations in the L/C Exposure 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.


 


“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 Term Loan 


 


 


10

















 


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 Term Loan
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 2.00 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.


 


“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.


 


 


11

















 


“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 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


 


 


12

















 


(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 in
accordance with Section 6.10 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,


 


(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),


 


 


13

















 


(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, the Issuing Bank or
any other recipient of any payment to be made by or on account of any
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.


 


 


14

















 


“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 mean the
Commitment Fees, the Administration Fees, the L/C Participation Fees and the
Issuing Bank Fees.


 


“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.


 


“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, 


 


 


15

















 


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, (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 First 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.


 


“Incremental Amendment”
has the meaning set forth in Section 2.24(b).


 


“Incremental Facility Closing Date”
has the meaning set forth in Section 2.24(a).


 


 


16

















 


“Incremental Term Loans”
has the meaning set forth in Section 2.24(b).


 


“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 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 First Lien Trademark Security Agreement
substantially in the form of Exhibit H-1, (b) a First Lien Patent Security
Agreement substantially in the form of Exhibit H-2 or (c) a First
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 Second Lien Credit Agreement).


 


“Interest Coverage Ratio”
shall mean, with respect to Holdings and its Subsidiaries as of the end of any
fiscal quarter of Holdings for the four fiscal quarters then ended, the ratio
of (a) Consolidated EBITDA for such period to (b) Consolidated
Interest Expense for such period. For purposes of determining the Interest Coverage
Ratio for the period of four consecutive quarters ended on September 30,
2006, 


 


 


17

















 


December 31, 2006 and March 31, 2007,
Consolidated Interest Expense shall be deemed to be equal to (i) the
Consolidated Interest Expense for the fiscal quarter ended on or about
September 30, 2006, multiplied by 4, (ii) the Consolidated Interest
Expense for the two consecutive fiscal quarters ended on or about
December 31, 2006, multiplied by 2 and (iii) the Consolidated Interest
Expense for the three consecutive fiscal quarters ended on or about
March 31, 2007, multiplied by 4/3, respectively.


 


“Interest Payment Date”
shall mean (a) with respect to any ABR Loan (including any Swingline
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 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.


 


“Issuing Bank” shall
mean, as the context may require, (a) Credit Suisse, acting through any of
its Affiliates or branches, in its capacity as the issuer of Letters of Credit
hereunder, and (b) any other Lender that may become an Issuing Bank
pursuant to Section 2.23(i) or 2.23(k), with respect to Letters of Credit
issued by such Lender. The Issuing Bank may, in its discretion, arrange for one
or more Letters of Credit to be issued by Affiliates or branches of the Issuing
Bank, in which case the term “Issuing Bank” shall include any such Affiliate or
branch with respect to Letters of Credit issued by such Affiliate or branch.


 


“Issuing Bank Fees”
shall have the meaning assigned to such term in Section 2.05(c).


 


“L/C Backstop” shall
mean, in respect of any Letter of Credit, (a) a letter of credit delivered
to the Issuing Bank which may be drawn by the Issuing Bank to satisfy any 


 


 


18

















 


obligations of the Borrower in respect of such Letter
of Credit, which letter of credit shall be in an amount equal to 104.0% of the
amount of such Letter of Credit and shall be issued by a bank reasonably
satisfactory to, and shall be in form and substance reasonably satisfactory to,
the Issuing Bank or (b) cash or Permitted Investments deposited with the
Issuing Bank to satisfy any obligation of the Borrower in respect of such Letter
of Credit, in an amount equal to 104.0% of the amount of such Letter of Credit.


 


“L/C Commitment” shall
mean the commitment of the Issuing Bank to issue Letters of Credit pursuant to
Section 2.23.


 


“L/C Fee Payment Date”
shall have the meaning assigned to such term in Section 2.05(c).


 


“L/C Disbursement”
shall mean a payment or disbursement made by the Issuing Bank pursuant to a
Letter of Credit.


 


“L/C Exposure” shall
mean at any time the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time and (b) the aggregate principal
amount of all L/C Disbursements that have not yet been reimbursed at such time.
The L/C Exposure of any Revolving Credit Lender at any time shall equal its Pro
Rata Percentage of the aggregate L/C Exposure at such time.


 


“L/C Participation Fee”
shall have the meaning assigned to such term in Section 2.05(c).


 


“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. Unless the context clearly indicates otherwise, the
term “Lenders” shall include the Swingline Lender.


 


“Letter of Credit”
shall mean any letter of credit issued (or, in the case of an Existing Letter
of Credit, deemed issued) pursuant to Section 2.23.


 


“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.


 


 


19

















 


“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
Revolving Loans, the Term Loans and the Swingline Loans.


 


“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 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 and Letters of Credit), 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
$20,000,000. 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.


 


“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 


 


 


20

















 


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 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 Second 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 Loans pursuant to Section 2.13,
or the “Loans” pursuant to and as defined in the Second Lien Credit Agreement
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.


 


 


21

















 


“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 Sections 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 covenants contained in Sections 6.11 and 6.12
recomputed as at the last day of 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;


 


 


22

















 


(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 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 covenants set forth in Sections 6.11 and
6.12; 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, 


 


 


23

















 


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 Senior Debt, Permitted
Subordinated Debt, Indebtedness under the Second Lien Credit Agreement or any
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
Senior Debt, Permitted Subordinated Debt, Indebtedness under the Second Lien
Credit Agreement or any 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 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 


 


 


24

















 


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, (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.


 


“Pro Rata Percentage”
of any Revolving Credit Lender at any time shall mean the percentage of the
Total Revolving Credit Commitment represented by such Lender’s Revolving Credit
Commitment. In the event the Revolving Credit Commitments shall have expired or
been terminated, the Pro Rata Percentages of any Revolving Credit 


 


 


25

















 


Lender shall be determined on the basis of the
Revolving Credit Commitments most recently in effect, giving effect to any
subsequent assignments.


 


“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.


 


“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.


 


“Repayment Date” shall
have the meaning given such term in Section 2.11.


 


“Required Lenders”
shall mean, at any time, Lenders having Loans (excluding Swingline Loans), L/C
Exposure, Swingline Exposure and unused Revolving Credit Commitments and Term
Loan Commitments representing more than 50% of the sum of all Loans outstanding
(excluding Swingline Loans), L/C Exposure, Swingline Exposure and unused
Revolving Credit Commitments and Term Loan Commitments at such time; provided, that any Defaulting Lender shall
be excluded for purposes of making a determination of Required Lenders.


 


 


26

















 


“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.


 


“Revolving Commitment Increase”
has the meaning set forth in Section 2.24(a).


 


“Revolving Commitment Increase Lender”
has the meaning set forth in Section 2.24(b).


 


“Revolving Credit Borrowing”
shall mean a Borrowing comprised of Revolving Loans.


 


“Revolving Credit Commitment”
shall mean, with respect to each Lender, the commitment of such Lender to make
Revolving Loans (and acquire participations in Letters of Credit and Swingline
Loans) hereunder as set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender assumed its Revolving Credit
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.


 


“Revolving Credit Exposure”
shall mean, with respect to any Lender at any time, the aggregate principal
amount at such time of all outstanding Revolving Loans of such Lender, plus the aggregate amount at such time of
such Lender’s L/C Exposure, plus
the aggregate amount at such time of such Lender’s Swingline Exposure.


 


“Revolving Credit Lender”
shall mean a Lender with a Revolving Credit Commitment or any Revolving Credit
Exposure.


 


“Revolving Credit Maturity Date”
shall mean June 30, 2011.


 


“Revolving Loans”
shall mean the revolving loans made by the Lenders to the Borrower pursuant to
paragraph (b) of Section 2.01.


 


“Second Lien Credit Agreement”
shall mean the Second Lien Credit Agreement dated as of June 30, 2006,
among the Borrower, Holdings, 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.


 


 


27

















 


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


 


“Second Priority Lien”
shall mean, with respect to any Collateral, the second priority Lien therein
created under the “Security Documents” (as defined in the Second Lien Credit
Agreement).


 


“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.


 


“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 


 


 


28

















 


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
(x) 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 (y) 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, Restricted Payment, Incremental Term Loan or
Revolving Commitment Increase 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.


 


“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 


 


 


29

















 


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.


 


“Swingline Commitment”
shall mean the commitment of the Swingline Lender to make loans pursuant to
Section 2.22, as the same may be reduced from time to time pursuant to
Section 2.09.


 


“Swingline Exposure”
shall mean, at any time, the aggregate principal amount at such time of all
outstanding Swingline Loans. The Swingline Exposure of any Revolving Credit
Lender at any time shall equal its Pro Rata Percentage of the aggregate
Swingline Exposure at such time.


 


“Swingline Lender”
shall mean Credit Suisse, acting through any of its Affiliates or branches, in
its capacity as lender of Swingline Loans hereunder.


 


“Swingline Loan” shall
mean any loan made by the Swingline Lender pursuant to Section 2.22.


 


“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 


 


 


30

















 


Restricted Payments shall not be paid prior to the
time such applicable tax period ends 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.


 


“Term Borrowing” shall
mean a Borrowing comprised of Term Loans.


 


“Term Lender” shall
mean a Lender with a Term Loan Commitment or an outstanding Term Loan.


 


“Term Loan Commitment”
shall mean, with respect to each Lender, the commitment of such Lender to make
Term Loans hereunder as set forth on Schedule 2.01, or in the Assignment
and Acceptance pursuant to which such Lender assumed its Term Loan 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.


 


“Term Loan Maturity Date”
shall mean June 30, 2012.


 


“Term Loans” shall
mean the term loans made by the Lenders to the Borrower pursuant to paragraph (a)
of Section 2.01.


 


“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 Second
Priority Lien.


 


“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.


 


“Total Revolving Credit Commitment”
shall mean, at any time, the aggregate amount of the Revolving Credit
Commitments, as in effect at such time. The Total Revolving Credit Commitment
as of the Closing Date is $50,000,000.


 


“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 Second Lien Credit Agreement (and the “Loan Documents” as
defined therein) and the making of the 


 


 


31

















 


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.


 


“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 


 


 


32

















 


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 Class (e.g., a “Revolving Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and
Type (e.g., a “Eurodollar
Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a “Revolving Credit Borrowing”) or
by Type (e.g., a “Eurodollar
Borrowing”) or by Class and Type (e.g.,
a “Eurodollar Revolving Credit Borrowing”).


 


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 


 


 


33

















 


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,
(a)  to make a Term Loan to the Borrower on the Closing Date in
a principal amount not to exceed its Term Loan Commitment, and (b) 
to make Revolving Loans to the Borrower, at any time and from time to time on
and after the Closing Date, and until the earlier of the Revolving Credit
Maturity Date and the termination of the Revolving Credit Commitment of such
Lender in accordance with the terms hereof, in an aggregate principal amount at
any time outstanding that will not result in such Lender’s Revolving
Credit Exposure exceeding such Lender’s Revolving Credit Commitment; provided, however,
that the aggregate principal amount of Revolving Loans and Swingline Loans made
on the Closing Date shall not exceed $10,000,000. Within the limits set forth
in clause (b) of the preceding sentence and subject to the terms,
conditions and limitations set forth herein, the Borrower may borrow, pay or
prepay and reborrow Revolving Loans. Amounts paid or prepaid in respect of Term
Loans may not be reborrowed.


 


SECTION
2.02. Loans. (a)  Each Loan (other than Swingline Loans)
shall be made as part of a Borrowing consisting of Loans made by the Lenders
ratably in accordance with their applicable 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). Except for Loans deemed made
pursuant to Section 2.02(f) and subject to Section 2.22, the Loans
comprising any Borrowing shall be in an aggregate principal amount that is
(i) an integral multiple of $500,000 and not less than $2,000,000 or
(ii) equal to the remaining available balance of the applicable
Commitments.


 


(b)  
Subject to Sections 2.02(f), 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 


 


 


34

















 


purposes
of the foregoing, Borrowings having different Interest Periods, regardless of
whether they commence on the same date, shall be considered separate
Borrowings.


 


(c)  
Except with respect to Loans deemed made pursuant to Section 2.02(f) and
subject to Section 2.22, 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.


 


(e)  
Notwithstanding any other provision of this Agreement, the Borrower shall not
be entitled to request any Eurodollar Revolving Credit Borrowing if the
Interest Period requested with respect thereto would end after the Revolving
Credit Maturity Date.


 


(f)  
If the Issuing Bank shall not have received from the Borrower the payment
required to be made by Section 2.23(e) within the time specified in such
Section, the Issuing Bank will promptly notify the Administrative Agent of the
L/C Disbursement and the Administrative Agent will promptly notify each
Revolving Credit Lender of such L/C Disbursement and its Pro Rata Percentage
thereof. Each Revolving Credit Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent not later


 


 


35

















 


than
2:00 p.m., New York City time, on such date (or, if such Revolving Credit
Lender shall have received such notice later than 12:00 (noon), New York City
time, on any day, not later than 10:00 a.m., New York City time, on the
immediately following Business Day), an amount equal to such Lender’s Pro Rata
Percentage of such L/C Disbursement (it being understood that such amount shall
be deemed to constitute an ABR Revolving Loan of such Lender and such payment
shall be deemed to have reduced the L/C Exposure), and the Administrative Agent
will promptly pay to the Issuing Bank amounts so received by it from the
Revolving Credit Lenders. The Administrative Agent will promptly pay to the
Issuing Bank any amounts received by it from the Borrower pursuant to Section 2.23(e)
prior to the time that any Revolving Credit Lender makes any payment pursuant
to this paragraph (f); any such amounts received by the Administrative Agent
thereafter will be promptly remitted by the Administrative Agent to the
Revolving Credit Lenders that shall have made such payments and to the Issuing
Bank, as their interests may appear. If any Revolving Credit Lender shall not
have made its Pro Rata Percentage of such L/C Disbursement available to the
Administrative Agent as provided above, such Lender and the Borrower severally
agree to pay interest on such amount, for each day from and including the date
such amount is required to be paid in accordance with this paragraph to but
excluding the date such amount is paid, to the Administrative Agent for the
account of the Issuing Bank at (i) in the case of the Borrower, a rate per
annum equal to the interest rate applicable to Revolving Loans pursuant to
Section 2.06(a), and (ii) in the case of such Lender, for the first such
day, the Federal Funds Effective Rate, and for each day thereafter, the
Alternate Base Rate.


 


SECTION
2.03. Borrowing Procedure. In order to request a Borrowing
(other than a Swingline Loan or a deemed Borrowing pursuant to
Section 2.02(f), as to which this Section 2.03 shall not apply), 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 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
the Borrowing then being requested is to be a Term Borrowing or a Revolving
Credit Borrowing, and 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.


 


36














 


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 (i) the principal amount of each Term Loan of
such Lender as provided in Section 2.11 and (ii) the then unpaid
principal amount of each Revolving Loan of such Lender on the Revolving Credit
Maturity Date. The Borrower hereby promises to pay to the Swingline Lender the
then unpaid principal amount of each Swingline Loan on the Revolving Credit
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 Class and 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 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 each
Revolving Credit Lender, through the Administrative Agent, on the last day of
March, June, September and December, commencing with September 30, 2006,
in each year and on each date on which the Revolving Credit Commitment of such
Lender shall expire or be terminated as provided herein, a commitment fee (a “Commitment Fee”) equal to the
Applicable Percentage per annum on the daily unused amount of the Revolving
Credit Commitment of such Lender during the preceding quarter (or other period
commencing with the Closing Date or ending with the Revolving Credit Maturity
Date or the date on which the Revolving Credit Commitment of such Lender shall
expire or be terminated). All Commitment Fees shall be computed on the basis of
the actual number of days elapsed in 


 


 


37

















 


a year
of 360 days. For purposes of calculating Commitment Fees only, no portion of
the Revolving Credit Commitments shall be deemed utilized as a result of
outstanding Swingline Loans.


 


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


 


(c)  
The Borrower agrees to pay (i) to each Revolving Credit Lender, through
the Administrative Agent, on the last day of March, June, September and
December of each year commencing with September 30, 2006, and on the date
on which the Revolving Credit Commitment of such Lender shall be terminated as
provided herein (each an “L/C Fee Payment Date”), a fee (an “L/C Participation Fee”) calculated on such
Lender’s Pro Rata Percentage of the daily aggregate L/C Exposure (excluding the
portion thereof attributable to unreimbursed L/C Disbursements) during the
preceding quarter (or shorter period commencing with the date hereof or ending
with the Revolving Credit Maturity Date or the date on which all Letters of
Credit have been canceled or have expired and the Revolving Credit Commitments
of all Lenders shall have been terminated) at a rate per annum equal to the
Applicable Percentage from time to time used to determine the interest rate on
Revolving Credit Borrowings comprised of Eurodollar Loans pursuant to
Section 2.06, and (ii) to the Issuing Bank (A) with respect to
each outstanding Letter of Credit a fronting fee that shall accrue at a rate of
0.125% per annum (or such lesser rate as shall be separately agreed upon
between the Borrower and the Issuing Bank) on the undrawn amount of such Letter
of Credit, payable quarterly in arrears on the last day of March, June,
September and December in each year commencing with September 30, 2006,
and upon expiration of the applicable Letter of Credit and (B) the Issuing
Bank’s standard fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit issued by such Issuing Bank or processing of
drawings thereunder (the fees in this clause (ii) being collectively the “Issuing Bank Fees”). All L/C
Participation Fees and Issuing Bank Fees shall be computed on the basis of the
actual number of days elapsed in a year of 360 days.


 


(d)  
All Fees shall be paid, in immediately available funds, to the Administrative
Agent for distribution, if and as appropriate, among the Lenders except that
the Issuing Bank Fees shall be paid directly to the Issuing Bank. 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,
including each Swingline Loan, 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 in effect from time to time.


 


 


38

















 


(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 in effect from time to time.


 


(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
reimbursement of any L/C Disbursement 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 Revolving 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 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 and Reduction of Commitments. (a)  The Term
Loan Commitments shall automatically terminate upon the making of the Term
Loans on the Closing Date. The Revolving Credit Commitments and the Swingline
Commitment shall automatically terminate on the Revolving Credit Maturity Date.
The L/C


 


 


39

















 


Commitment
shall automatically terminate on the earlier to occur of (i) the
termination of the Revolving Credit Commitments and (ii) the date
10 days prior to the Revolving Credit Maturity Date, unless otherwise
agreed by the Issuing Bank and the Borrower. Notwithstanding the foregoing, all
the Commitments shall automatically terminate at 5:00 p.m., New York City
time, on June 30, 2006, if the initial Credit Event shall not have
occurred 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 Term Loan
Commitments, the Revolving Credit Commitments or the Swingline Commitment; provided, however,
that (i) each partial reduction of the Term Loan Commitments or the
Revolving Credit Commitments shall be in an integral multiple of $1,000,000 and
in a minimum amount of $5,000,000 (and $1,000,000 in the case of the Swingline
Commitment) and (ii) the Total Revolving Credit Commitment shall not be
reduced to an amount that is less than the Aggregate Revolving Credit Exposure
then in effect (after giving effect to any repayment or prepayment effected
simultaneously therewith). 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 Term Loan Commitments or the Revolving Credit Commitments
hereunder shall be made ratably among the Lenders in accordance with their
respective applicable Commitments; provided,
that the Swingline Commitment shall not be reduced unless the Revolving
Commitment is reduced to an amount less than the Swingline Commitment then in
effect (and then only to the extent of such deficit). The Borrower shall pay to
the Administrative Agent for the account of the Revolving Credit Lenders, on
the date of each termination or reduction of the Revolving Credit Commitments,
the Commitment Fees on the amount of the Revolving Credit Commitments so
terminated or reduced accrued to but excluding the date of such termination or
reduction.


 


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:


 


 


40

















 


(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 


 


 


41

















 


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. This Section shall not apply to Swingline Loans.


 


SECTION
2.11. Repayment of Term Borrowings. (a)  The Borrower shall pay
to the Administrative Agent, for the account of the Term Lenders, on
March 31, June 30, September 30 and December 31 in each
year (commencing on September 30, 2006) and on the Term Loan Maturity Date
(each such date being called a “Repayment Date”), a principal amount
of the Term Loans (as adjusted from time to time pursuant to
Sections 2.11(b), 2.12 and 2.13(f)) equal to $1,250,000 on each Repayment
Date prior to the Term Loan Maturity Date and $471,250,000 on the Term Loan
Maturity Date, together in each case with accrued and unpaid interest on the
principal amount to be paid to but excluding the date of such payment.


 


(b)  
In the event and on each occasion that the Term Loan Commitments shall be
reduced or shall expire or terminate other than as a result of the making of a
Term Loan, the installments payable on each Repayment Date shall be reduced pro
rata by an aggregate amount equal to the amount of such reduction, expiration
or termination.


 


(c)  
To the extent not previously paid, all Term Loans shall be due and payable on
the Term Loan Maturity Date, together with accrued and unpaid interest on the
principal amount to be paid to but excluding the date of payment.


 


(d)  
All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.


 


SECTION
2.12. Optional Prepayment. (a)  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, however, 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)  
Optional prepayments of Term Loans shall be applied against the remaining scheduled
installments of principal due in respect of the Term Loans under
Section 2.11 in the manner specified by the Borrower or, if not so
specified on or prior to the date of such optional prepayment, in direct order
of maturity.


 


(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 termination of the Commitments as 


 


 


42

















 


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 but
otherwise without premium or penalty. All Eurodollar Loan 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)  In the event of any
termination of all the Revolving Credit Commitments, the Borrower shall, on the
date of such termination, repay or prepay all outstanding Revolving Credit
Borrowings and all outstanding Swingline Loans and replace or cause to be
canceled (or provide L/C Backstop or make other arrangements reasonably
satisfactory to the Administrative Agent and the Issuing Bank with respect to)
all outstanding Letters of Credit. If, after giving effect to any partial
reduction of the Revolving Credit Commitments, the Aggregate Revolving Credit
Exposure would exceed the Total Revolving Credit Commitment, then the Borrower
shall, on the date of such reduction, repay or prepay Revolving Credit
Borrowings or Swingline Loans (or a combination thereof) and, after the
Revolving Credit Borrowings and Swingline Loans shall have been repaid or prepaid
in full, replace or cause to be canceled (or provide L/C Backstop or make other
arrangements reasonably satisfactory to the Administrative Agent and the
Issuing Bank with respect to) Letters of Credit in an amount sufficient to
eliminate such excess.


 


(b)  
Not later than the fifth Business Day following the receipt by Holdings or 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(f); 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).


 


(c)  
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(f) 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 Term Loans and the Revolving Loans (to the extent
accompanied by a permanent reduction of the Revolving Credit Commitments)
prepaid pursuant to Section 2.12 during such fiscal year.


 


 


43

















 


(d)  
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(f).


 


(e)  
Substantially simultaneously with (and in any event no later than the fifth
Business Day following) the receipt by Parent or Holdings of Net Cash Proceeds
from a Qualified Public Offering, the Borrower shall prepay outstanding Loans
in accordance with Section 2.13(f) in an aggregate principal amount equal
to $50,000,000; provided, that if
Holdings or Parent complete an offering of Equity Interests that would be a
Qualified Public Offering but for the fact that the Net Cash Proceeds therefrom
are less than $50,000,000, then (i) the Borrower shall prepay Loans in an
aggregate principal amount equal to 100% of such Net Cash Proceeds and (ii) the
Borrower shall prepay Loans from any subsequent public offerings of such Equity
Interests (beginning with the next succeeding public offering) in an aggregate
principal amount equal to the excess of (x) $50,000,000 over (y) the
Net Cash Proceeds of the amount prepaid pursuant to clause (i).


 


(f)  
So long as any Term Loans are outstanding, mandatory prepayments of outstanding
Loans under this Agreement shall be allocated ratably among the Term Lenders
that accept the same and applied against the remaining scheduled installments
of principal due in respect of the Term Loans of such Lenders under
Section 2.11 in the direct order of maturity. Any Term 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 Term Loans
required to be made by the Borrower pursuant to this Section (other than
pursuant to Section 2.13(e)), 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 Term Lenders not so declining such prepayment
(with such Term 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 (and, after the repayment in full of
all outstanding Term Loans, any other amounts referred to in
paragraph (b), (c) or (d) above that are required to be used to prepay
Loans hereunder) shall be used, first, to prepay Revolving Loans and Swingline
Loans (without any corresponding permanent reduction in the Revolving Credit
Commitments) and, second, as may be required pursuant to the mandatory
prepayment provisions of the Second Lien Credit Agreement.


 


(g)  
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 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 


 


 


44

















 


prepayment
pursuant to this Section 2.13 there shall be outstanding Term Borrowings
of different Types or Eurodollar Term Borrowings with different Interest
Periods, and if some but not all Term Lenders shall have accepted such
mandatory prepayment, then the aggregate amount of such mandatory prepayment
shall be allocated ratably to each outstanding Term Borrowing of the accepting
Term 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.


 


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 or the Issuing Bank (except any such reserve requirement
which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or
the Issuing Bank or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit
or participation therein, and the result of any of the foregoing shall be to
increase the cost to such Lender or the Issuing Bank of making or maintaining
any Eurodollar Loan or increase the cost to any Lender of issuing or
maintaining any Letter of Credit or purchasing or maintaining a participation
therein or to reduce the amount of any sum received or receivable by such
Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise) by an amount deemed by such Lender or the Issuing Bank to be
material, then the Borrower will pay to such Lender or the Issuing Bank, as the
case may be, upon demand such additional amount or amounts as will compensate
such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.


 


(b)  
If any Lender or the Issuing Bank 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 or the Issuing Bank’s capital or on the capital of such
Lender’s or the Issuing Bank’s holding company, if any, as a consequence of
this Agreement or the Loans made or participations in Loans purchased by such
Lender pursuant hereto or the Letters of Credit issued by the Issuing Bank
pursuant hereto to a level below that which such Lender or the Issuing Bank or
such Lender’s or the Issuing Bank’s holding company could have achieved but for
such Change in Law (taking into consideration such Lender’s or the Issuing
Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding
company with respect to capital adequacy) by an amount deemed by such Lender or
the Issuing Bank to be material, then from time to time the Borrower shall pay
to such Lender or the Issuing Bank, as the case may be, such additional amount
or amounts as will compensate such Lender or the Issuing Bank or such Lender’s
or the Issuing Bank’s holding company for any such reduction suffered.


 


(c)  
A certificate of a Lender or the Issuing Bank setting forth the amount or
amounts necessary to compensate such Lender or the Issuing Bank 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 


 


 


45

















 


absent
manifest error. The Borrower shall pay such Lender or the Issuing Bank, as
applicable, 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 or the Issuing Bank 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 or the Issuing Bank’s right to demand such compensation; provided, that the Borrower shall not be
under any obligation to compensate any Lender or the Issuing Bank 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 and the Issuing
Bank 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 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


 


 


46

















 


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(f). 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.


 


SECTION
2.17. Pro Rata Treatment. Except as provided below in this
Section 2.17 with respect to Swingline Loans and 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, each payment of the
Commitment Fees, each reduction of the Term Loan Commitments or the Revolving
Credit Commitments 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). For purposes of
determining the available Revolving Credit 


 


 


47

















 


Commitments
of the Lenders at any time, each outstanding Swingline Loan shall be deemed to
have utilized the Revolving Credit Commitments of the Lenders (including those
Lenders which shall not have made Swingline Loans) pro rata in accordance with
such respective Revolving Credit Commitments. 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 or L/C Disbursement as a result of which the unpaid
principal portion of its Loans and participations in L/C Disbursements shall be
proportionately less than the unpaid principal portion of the Loans and
participations in L/C Disbursements 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 and L/C Exposure of such other Lender, so that the aggregate
unpaid principal amount of the Loans and L/C Exposure and participations in
Loans and L/C Exposure held by each Lender shall be in the same proportion to
the aggregate unpaid principal amount of all Loans and L/C Exposure then outstanding
as the principal amount of its Loans and L/C Exposure prior to such exercise of
banker’s lien, setoff or counterclaim or other event was to the principal
amount of all Loans and L/C Exposure 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 or L/C Disbursement 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 L/C
Disbursement 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 (other than (i) Issuing Bank Fees, which shall be paid
directly to the Issuing Bank, and (ii) principal of and interest on 


 


 


48

















 


Swingline
Loans, which shall be paid directly to the Swingline Lender except as otherwise
provided in Section 2.22(e)) shall be made to the Administrative Agent at
its offices at Eleven Madison Avenue, New York, NY 10010. All payments
hereunder and 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, Lender or Issuing Bank (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, each Lender and the
Issuing Bank, within 30 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative
Agent, such Lender or the Issuing Bank, 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 the Issuing Bank, or by the
Administrative Agent on behalf of itself, a Lender or the Issuing Bank, 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 


 


 


49

















 


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.


 


(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, a Lender or an Issuing Bank 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 


 


 


50

















 


Indemnified
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or such Issuing Bank, 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, such Lender or such Issuing Bank, agrees to repay the
amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant governmental Authority) to the Administrative Agent,
such Lender or such Issuing Bank in the event the Administrative Agent, such
Lender or such Issuing Bank is required to repay such refund to such
Governmental Authority. This paragraph shall not be construed to require the
Administrative Agent, any Lender or any Issuing Bank 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 or the Issuing Bank to demand
compensation for any Indemnified Taxes or Other Taxes shall not constitute a
waiver of such Lender’s or the Issuing Bank’s right to demand such
compensation; provided, that the
Borrower shall not be under any obligation to compensate any Lender or the
Issuing Bank 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 and the Issuing Bank 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 or the Issuing
Bank delivers a certificate requesting compensation pursuant to
Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice described
in Section 2.15, (iii) the Borrower is required to pay any additional
amount to any Lender or the Issuing Bank or any Governmental Authority on
account of any Lender or the Issuing Bank 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 or the Issuing Bank, as the case may be, and
the Administrative Agent, require such Lender or the Issuing Bank to transfer
and assign (in accordance with and subject to the restrictions contained in
Section 9.04, other than 9.04(b)(iv)(B)), all of its interests, rights and
obligations under this Agreement (or, in the case of clause (iv) above, all of
its interests, rights and obligation with respect to the Class of Loans or
Commitments that is the subject of the related consent, amendment, waiver or
other modification) 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 (and, if a
Revolving Credit Commitment is being assigned, of the Issuing Bank and the
Swingline Lender) with 


 


 


51

















 


regard
to the identity of the assignee, which consents 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
or the Issuing Bank 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 or L/C Disbursements of such Lender or the Issuing Bank,
respectively, plus all Fees and other amounts accrued for the account of such
Lender or the Issuing Bank hereunder with respect thereto (including any
amounts under Sections 2.14 and 2.16); 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 or the Issuing Bank’s claim for compensation under
Section 2.14, notice under Section 2.15 or the amounts paid pursuant
to Section 2.20, as the case may be, cease to cause such Lender or the
Issuing Bank 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 or the Issuing Bank pursuant to paragraph (b)
below), or if such Lender or the Issuing Bank 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 or the
Issuing Bank 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 or the Issuing Bank shall request compensation under
Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice
described in Section 2.15 or (iii) the Borrower is required to pay
any additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank, pursuant to
Section 2.20, then such Lender or the Issuing Bank shall use reasonable
efforts (which shall not require such Lender or the Issuing Bank 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 or the Issuing Bank in connection with any
such filing or assignment, delegation and transfer.


 


SECTION
2.22. Swingline Loans. (a)  Swingline Commitment. Subject to the terms
and conditions herein set forth, the Swingline Lender agrees to make loans to
the 


 


 


52

















 


Borrower
at any time and from time to time on or after the Closing Date and until the
earlier of the Revolving Credit Maturity Date and the termination of the
Revolving Credit Commitments, in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate principal amount of
all Swingline Loans exceeding $10,000,000 in the aggregate or (ii) the
Aggregate Revolving Credit Exposure, after giving effect to any Swingline Loan,
exceeding the Total Revolving Credit Commitment. Each Swingline Loan shall be
in a principal amount that is an integral multiple of $250,000. The Swingline
Commitment may be terminated or reduced from time to time as provided herein.
Within the foregoing limits, the Borrower may borrow, pay or prepay and
reborrow Swingline Loans hereunder, subject to the terms, conditions and
limitations set forth herein.


 


(b)  
Swingline Loans. The Borrower shall notify the Swingline Lender by
fax, or by telephone (promptly confirmed by fax), not later than 12:00 noon,
New York City time, on the day of a proposed Swingline Loan. Such notice shall
be delivered on a Business Day, shall be irrevocable and shall refer to this
Agreement and shall specify the requested date (which shall be a Business Day)
and amount of such Swingline Loan. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to an account
designated by the Borrower promptly on the date such Swingline Loan is so requested.


 


(c)  
Prepayment. The Borrower shall have the right at any time and from
time to time to prepay any Swingline Loan, in whole or in part, upon giving
written or fax notice (or telephone notice promptly confirmed by written, or
fax notice) to the Swingline Lender before 1:00 p.m., New York City time,
on the date of prepayment at the Swingline Lender’s address for notices
specified in Section 9.01; 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.


 


(d)  
Interest. Each Swingline Loan shall be an ABR Loan and, subject to
the provisions of Section 2.07, shall bear interest as provided in
Section 2.06(a).


 


(e)  
Participations. The Swingline Lender may by written notice given
to the Administrative Agent not later than 11:00 a.m., New York City time,
on any Business Day require the Revolving Credit Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans
outstanding. Such notice shall specify the aggregate amount of Swingline Loans
in which Revolving Credit Lenders will participate. The Administrative Agent
will, promptly upon receipt of such notice, give notice to each Revolving
Credit Lender, specifying in such notice such Lender’s Pro Rata Percentage of
such Swingline Loan or Loans. In furtherance of the foregoing, each Revolving
Credit Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account
of the Swingline Lender, such Revolving Credit Lender’s Pro Rata Percentage of
such Swingline Loan or Loans. Each Revolving Credit Lender acknowledges and
agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is 


 


 


53

















 


absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or an Event of Default,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Revolving Credit Lender shall comply
with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.02(c) with
respect to Loans made by such Lender (and Section 2.02(c) shall apply, mutatis mutandis, to the payment
obligations of the Lenders) and the Administrative Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Lenders. The
Administrative Agent shall notify the Borrower of any participations in any
Swingline Loan acquired pursuant to this paragraph and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and
not to the Swingline Lender. Any amounts received by the Swingline Lender from
the Borrower (or other party on behalf of the Borrower) in respect of a
Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower (or other party
liable for obligations of the Borrower) of any default in the payment thereof.


 


SECTION
2.23. Letters of Credit. (a)  General. The Borrower may
request the issuance of a Letter of Credit for its own account or for the
account of any of its Subsidiaries (in which case the Borrower and any such
Subsidiary shall be co-applicants with respect to such Letter of Credit), in a
form reasonably acceptable to the Administrative Agent and the Issuing Bank, at
any time and from time to time on or after the Closing Date and prior to the
earlier to occur of (i) the termination of the Revolving Credit Commitments and
(ii) the date that is 10 Business Days prior to the Revolving Credit
Maturity Date. This Section shall not be construed to impose an obligation upon
the Issuing Bank to issue any Letter of Credit that is inconsistent with the
terms and conditions of this Agreement. All Letters of Credit shall be
denominated in dollars. On and as of the Closing Date each Existing Letter of
Credit shall be deemed to constitute a Letter of Credit issued hereunder on the
Closing Date.


 


(b)  
Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. In order to request
the issuance of a Letter of Credit (or to amend, renew or extend an existing
Letter of Credit), the Borrower shall hand deliver or fax to the Issuing Bank
and the Administrative Agent (reasonably in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance of
a Letter of Credit, or identifying the Letter of Credit to be amended, renewed
or extended, the date of issuance, amendment, renewal or extension, the date on
which such Letter of Credit is to expire (which shall comply with
paragraph (c) below), the amount of such Letter of Credit, the name and
address of the beneficiary thereof and such other information as shall be
necessary to prepare such Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if, and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent
and warrant


 


 


54

















 


that,
after giving effect to such issuance, amendment, renewal or extension
(i) the L/C Exposure shall not exceed $20,000,000 and (ii) the
Aggregate Revolving Credit Exposure shall not exceed the Total Revolving Credit
Commitment.


 


(c)  
Expiration Date. Each Letter of Credit
shall expire at the close of business on the earlier of the date one year after
the date of the issuance of such Letter of Credit and the date that is five
Business Days prior to the Revolving Credit Maturity Date, unless such
Letter of Credit expires by its terms on an earlier date; provided, however,
that a Letter of Credit may, upon the request of the Borrower, include a
provision whereby such Letter of Credit shall be renewed automatically for
additional consecutive periods of 12 months or less (but not beyond the date
that is five Business Days prior to the Revolving Credit Maturity Date) unless
the Issuing Bank notifies the beneficiary thereof at least 30 days (or
such longer period as may be specified in such Letter of Credit) prior to the
then-applicable expiration date that such Letter of Credit will not be renewed.


 


(d)  
Participations. By the issuance of a Letter of
Credit and without any further action on the part of the Issuing Bank or the
Lenders, the Issuing Bank hereby grants to each Revolving Credit Lender, and
each such Lender hereby acquires from the Issuing Bank, a participation in such
Letter of Credit equal to such Lender’s Pro Rata Percentage of the aggregate
amount available to be drawn under such Letter of Credit, effective upon the
issuance of such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Credit Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender’s Pro Rata Percentage of each L/C Disbursement made by the Issuing
Bank and not reimbursed by the Borrower (or, if applicable, another party
pursuant to its obligations under any other Loan Document) forthwith on the
date due as provided in Section 2.02(f). Each Revolving Credit Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or an Event of Default, and that each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.


 


(e)  
Reimbursement. If the Issuing Bank shall make any
L/C Disbursement in respect of a Letter of Credit, the Borrower shall pay to
the Administrative Agent an amount equal to such L/C Disbursement not later
than 10:00 a.m., New York City time, on the immediately following Business
Day.


 


(f)  
Obligations Absolute. The Borrower’s
obligations to reimburse L/C Disbursements as provided in paragraph (e)
above shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement, under any and all
circumstances whatsoever, and irrespective of:


 


(i) 
any lack of validity or enforceability of any Letter of Credit or any Loan
Document, or any term or provision therein;


 


 


55

















 


(ii) 
any amendment or waiver of or any consent to departure from all or any of the
provisions of any Letter of Credit or any Loan Document;


 


(iii) 
the existence of any claim, setoff, defense or other right that the Borrower,
any other party guaranteeing, or otherwise obligated with, the Borrower, any
Subsidiary or any other person may at any time have against the beneficiary
under any Letter of Credit, the Issuing Bank, the Administrative Agent or any
Lender or any other person, whether in connection with this Agreement, any
other Loan Document or any other related or unrelated agreement or transaction
(other than payment in full of such L/C Disbursements);


 


(iv) 
any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;


 


(v) 
payment by the Issuing Bank under a Letter of Credit against presentation of a
draft or other document that does not comply with the terms of such Letter of
Credit; and


 


(vi) 
any other act or omission to act or delay of any kind of the Issuing Bank, the
Lenders, the Administrative Agent or any other person or any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of the Borrower’s obligations hereunder.


 


Without limiting the
generality of the foregoing, it is expressly understood and agreed that the
absolute and unconditional obligation of the Borrower hereunder to reimburse
L/C Disbursements will not be excused by the gross negligence, bad faith or
wilful misconduct of the Issuing Bank. However, the foregoing shall not be
construed to excuse the Issuing Bank from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Bank’s
gross negligence, bad faith, wilful misconduct or breach of its obligations in
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof; it is understood that the Issuing Bank
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary and, in making any payment under any Letter of
Credit (i) the Issuing Bank’s exclusive reliance on the documents
presented to it under such Letter of Credit as to any and all matters set forth
therein, including reliance on the amount of any draft presented under such
Letter of Credit, whether or not the amount due to the beneficiary thereunder
equals the amount of such draft and whether or not any document presented
pursuant to such Letter of Credit proves to be insufficient in any respect, if
such document on its face appears to be in order, and whether or not any other
statement or any other document presented pursuant to such Letter of Credit
proves to be forged or invalid or any statement therein proves to be inaccurate
or untrue in any respect whatsoever and (ii) any noncompliance in any
immaterial respect of the documents


 


 


56

















 


presented under such Letter of Credit with the terms
thereof shall, in each case, be deemed not to constitute gross negligence, bad
faith or wilful misconduct of the Issuing Bank or a breach of its obligations.


 


(g)  
Disbursement Procedures. The Issuing Bank
shall, promptly following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit. The Issuing Bank
shall as promptly as possible give telephonic notification, confirmed by fax,
to the Administrative Agent and the Borrower of such demand for payment and
whether the Issuing Bank has made or will make an L/C Disbursement thereunder; provided, that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Credit Lenders with respect to any
such L/C Disbursement.


 


(h)  
Interim Interest. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the Borrower shall
reimburse such L/C Disbursement in full on the same day that such LC
Disbursement is made, the unpaid amount thereof shall bear interest for the
account of the Issuing Bank, for each day from and including the date of such
L/C Disbursement, to but excluding the earlier of the date of payment by the
Borrower or the date on which interest shall commence to accrue thereon as
provided in Section 2.02(f), at the rate per annum that would apply to
such amount if such amount were an ABR Revolving Loan.


 


(i)  
Removal of the Issuing Bank. The Issuing Bank may be removed
at any time by the Borrower by notice to the Issuing Bank, the Administrative
Agent and the Lenders. Upon the acceptance of any appointment as the Issuing
Bank hereunder by a Lender that shall agree to serve as successor Issuing Bank,
such successor shall succeed to and become vested with all the interests,
rights and obligations of the retiring Issuing Bank. At the time such removal
shall become effective, the Borrower shall pay all accrued and unpaid fees
pursuant to Section 2.05(c)(ii). The acceptance of any appointment as the
Issuing Bank hereunder by a successor Lender shall be evidenced by an agreement
entered into by such successor, in a form reasonably satisfactory to the
Borrower and the Administrative Agent, and, from and after the effective date
of such agreement, (i) such successor Lender shall have all the rights and
obligations of the previous Issuing Bank under this Agreement and the other
Loan Documents and (ii) references herein and in the other Loan Documents
to the term “Issuing Bank” shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing Banks, as
the context shall require. After the resignation or removal of the Issuing Bank
hereunder, the retiring Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement and the other Loan Documents with respect to Letters of Credit issued
by it prior to such removal, but shall not be required to issue additional
Letters of Credit.


 


(j)  
Cash Collateralization. If any Event of
Default shall occur and be continuing, the Borrower shall, on the Business Day
it receives notice from the Administrative Agent or the Required Lenders (or,
if the maturity of the Loans has been accelerated, Revolving Credit Lenders
holding participations in outstanding Letters of 


 


 


57

















 


Credit
representing greater than 50% of the aggregate undrawn amount of all
outstanding Letters of Credit) thereof and of the amount to be deposited,
deposit in an account with the Collateral Agent, for the benefit of the
Revolving Credit Lenders, an amount in cash equal to the L/C Exposure as of
such date. Such deposit shall be held by the Collateral Agent as collateral for
the payment and performance of the Obligations. The Collateral Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal,
over such account. Other than any interest earned on the investment of such deposits
in Permitted Investments, which investments shall be made at the option and
sole discretion of the Collateral Agent, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall (i) automatically be applied by the
Administrative Agent to reimburse the Issuing Bank for L/C Disbursements for
which it has not been reimbursed, (ii) be held for the satisfaction of the
reimbursement obligations of the Borrower for the L/C Exposure at such time and
(iii) if the maturity of the Loans has been accelerated (but subject to the
consent of Revolving Credit Lenders holding participations in outstanding
Letters of Credit representing greater than 50% of the aggregate undrawn amount
of all outstanding Letters of Credit), be applied to satisfy the Obligations.
If the Borrower is required to provide an amount of cash collateral hereunder
as a result of the occurrence of an Event of Default, such amount (to the
extent not applied as aforesaid) shall be returned to the Borrower within three
Business Days after all Events of Default have been cured or waived.


 


(k)  
Additional Issuing Banks. The Borrower may, at
any time and from time to time with the consent of the Administrative Agent
(which consent shall not be unreasonably withheld or delayed) and such Lender,
designate one or more additional Lenders to act as an issuing bank under the
terms of this Agreement. Any Lender designated as an issuing bank pursuant to
this paragraph (k) shall be deemed to be an “Issuing Bank” (in addition to
being a Lender) in respect of Letters of Credit issued or to be issued by such
Lender, and, with respect to such Letters of Credit, such term shall thereafter
apply to the other Issuing Bank and such Lender.


 


SECTION
2.24. Incremental Credit Extensions. (a)  The Borrower
may at any time or from time to time after the Closing Date, by notice to the
Administrative Agent (whereupon the Administrative Agent shall promptly deliver
a copy to each of the Lenders), request (i) one or more additional
tranches of term loans (the “Incremental Term Loans”) or (ii) one or
more increases in the amount of the Revolving Credit Commitments (each such
increase, a “Revolving Commitment Increase” and, together with any Incremental
Term Loans, a “Credit Increase”); provided, that (i) both at the time
of any such request and upon the effectiveness of any Incremental Amendment
referred to below, no Default or Event of Default shall exist and (ii) the
Borrower shall be in Pro Forma Compliance with each of the covenants set forth
in Sections 6.11 and 6.12. Each Credit Increase shall be in an aggregate
principal amount that is not less than $20,000,000 (or such lower amount that
either (a) represents all remaining availability under the limit set forth
in the next sentence or (b) is acceptable to the Administrative Agent).
Notwithstanding anything to the contrary herein, the aggregate amount of the
Credit Increases shall not exceed $100,000,000. The Incremental Term Loans (a) shall
rank pari passu in right of
payment and of security with the Revolving Credit Loans and 


 


 


58

















 


the
Term Loans, (b) shall not mature earlier than the Term Loan Maturity Date
and shall not require scheduled payments of principal at a rate exceeding
quarterly payments in the amount of 0.25% of the original principal amount
thereof and (c) except as set forth above, shall be treated substantially
the same as the Term Loans with respect to covenants, events of default, voting
and mandatory and voluntary prepayments. If, prior to the completion of a
Qualified Public Offering, the initial yield on any Incremental Term Loans (as
determined by the Administrative Agent to be equal to the sum of (i) the margin
above the LIBO Rate on such Incremental Term Loans and (ii) if such Incremental
Term Loans are initially made at a discount or the Lenders making the same
receive a fee directly or indirectly from Holdings or any Subsidiary for doing
so (the amount of such discount or fee, expressed as a percentage of the
Incremental Term Loans, being referred to herein as “OID”), the amount of such
OID divided by the lesser of (A) the average life to maturity of such
Incremental Term Loans and (B) three) exceeds by more than 50 basis points (the
amount of such excess above 50 basis points being referred to herein as the “Yield
Differential”) the Applicable Percentage then in effect for Eurodollar
Term Loans, then the Applicable Percentage then in effect for Term Loans shall
automatically be increased by the Yield Differential, effective upon the making
of the Incremental Term Loans. Each notice from the Borrower pursuant to this
Section shall set forth the requested amount and proposed terms of the relevant
Credit Increases. Incremental Term Loans may be made, and Revolving Commitment
Increases may be provided, by any existing Lender (and each existing Term
Lender will have the right to make a portion of any Incremental Term Loan and
each existing Revolving Credit Lender will have the right to provide a portion
of any Revolving Commitment Increase, in each case on terms permitted in this
Section 2.24 and otherwise on terms reasonably acceptable to the
Administrative Agent) or by any other bank or other financial institution (any
such other bank or other financial institution being called an “Additional Lender”), provided, that the Administrative Agent
and the Borrower, and, in the case of any Revolving Credit Increase, the
Issuing Bank and the Swingline Lender shall have consented (in each case, not
to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s
making such Incremental Term Loans or providing such Revolving Commitment
Increases, if such consent would be required under Section 9.04(b) for an
assignment of Loans or Revolving Credit Commitments, as applicable, to such
Lender or Additional Lender.


 


(b)  
Commitments in respect of Credit Increases shall become Commitments (or in the
case of a Revolving Commitment Increase to be provided by an existing Revolving
Credit Lender, an increase in such Lender’s applicable Revolving Credit
Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement
and, as appropriate, the other Loan Documents, executed by the Borrower, each
Lender agreeing to provide such Commitment, if any, each Additional Lender, if
any, and the Administrative Agent. The Incremental Amendment may, without the
consent of any other Lenders, effect such amendments to this Agreement and the
other Loan Documents as may be necessary or appropriate, in the reasonable
opinion of the Administrative Agent and the Borrower, to effect the provisions
of this Section. The effectiveness of any Incremental Amendment shall be
subject to the satisfaction on the date thereof (each, an “Incremental Facility
Closing Date”) of each of the conditions set forth in Section 4.01
(it being understood that all references to “the date of such Credit Event” or
similar language in such Section 4.01 shall be deemed to refer to the effective
date of such Incremental Amendment). The Borrower may use the proceeds of
Incremental Term Loans for any purpose not prohibited by this Agreement. No
Lender shall be obligated to provide any Credit Increases, unless it so agrees.
Upon each increase in the Revolving Credit Commitments pursuant to this
Section, each Revolving Credit Lender immediately prior to such increase will
automatically and without further act be deemed to have assigned to each Lender
providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment
Increase Lender”) in respect of such increase, and each such Revolving
Commitment Increase Lender will automatically and without further act be deemed
to have assumed, a portion of such Revolving Credit Lender’s participations
hereunder in outstanding Letters of Credit and Swingline Loans such that, after
giving effect to each such deemed assignment and assumption of participations,
the percentage of the aggregate outstanding (i) participations hereunder
in 


 


 


59

















 


Letters
of Credit and (ii) participations hereunder in Swingline Loans held by
each Revolving Credit Lender (including each such Revolving Commitment Increase
Lender) will equal the percentage of the aggregate Revolving Credit Commitments
of all Revolving Credit Lenders represented by such Revolving Credit Lender’s
Revolving Credit Commitment and (b) if, on the date of such increase,
there are any Revolving Loans outstanding, such Revolving Loans shall on or prior
to the effectiveness of such Revolving Commitment Increase be prepaid from the
proceeds of additional Revolving Loans made hereunder (reflecting such increase
in Revolving Credit Commitments), which prepayment shall be accompanied by
accrued interest on the Revolving Loans being prepaid and any costs incurred by
any Lender in accordance with Section 2.16.


 


(c)  
This Section 2.24 shall supersede any provisions in Section 2.18 or
9.08 to the contrary.


 


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, the
Issuing Bank 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 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 


 


 


60

















 


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 Second 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 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 


 


 


61

















 


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.


 


(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.


 


 


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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 Second 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 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 or any Letter of Credit 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.


 


 


63

















 


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).


 


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 $20,000,000
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
$20,000,000 the fair market value of the assets of all such underfunded Plans.


 


 


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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 first 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 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 


 


 


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(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 and of the Issuing Bank to issue Letters of Credit
hereunder are subject to the satisfaction of the following conditions:


 


SECTION
4.01. All Credit Events. On the date of the making of each
Loan, including the making of a Swingline Loan and on the date of each issuance,
amendment, extension or renewal of a Letter of Credit (each such event being
called a “Credit Event”; it being understood that the
conversion into or continuation of a Eurodollar Loan does not constitute a
Credit Event):


 


(a)  
The Administrative Agent shall have received a notice of such Loan as required
by Section 2.03 (or such notice shall have been deemed given in accordance
with Section 2.02) or, in the case of the issuance, amendment, extension
or renewal of a Letter of Credit, the Issuing Bank and the Administrative Agent
shall have received a notice requesting the issuance, amendment, extension or
renewal of such Letter of Credit as required by Section 2.23(b) or, in the
case of the Borrowing of a Swingline Loan, the Swingline Lender and the Administrative
Agent shall have received a notice requesting such Swingline Loan as required
by Section 2.22(b).


 


(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 date of such Credit Event 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 such Credit Event, no Default or Event of
Default shall have occurred and be continuing.


 


Each Credit Event (other
than a conversion of Loans to another Type or a continuation of Eurodollar
Loans) shall be deemed to constitute a representation and warranty by the
Borrower and Holdings on the date of such Credit Event as to the matters
specified in paragraphs (b) and (c) of this Section 4.01.


 


 


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SECTION
4.02. First Credit Event. On the Closing Date:


 


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


 


(b)  
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.


 


(c)  
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
Section 4.01.


 


(d)  
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.


 


(e)  
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 


 


 


67

















 


the
Secured Parties a valid, legal and perfected first priority (except to the
extent otherwise provided therein) security interest in and Lien on the
Collateral (subject to any Lien (other than any Second Priority Lien) expressly
permitted by Section 6.02) described in the Security Documents shall 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.


 


(f)  
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
person, 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.


 


(g)  
(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 first 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 first 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.


 


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


 


 


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(i)  
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 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.


 


(j)  
The Investors shall have made the Equity Contribution in an aggregate amount
not less than $250,000,000. The Second 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 $150,000,000 from the borrowing of loans thereunder.


 


(k)  
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 Second Lien Credit Agreement, (ii) Capital Lease Obligations
permitted under the Purchase Agreement and (iii) Indebtedness permitted by
Section 6.01.


 


(l)  
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.


 


(m)  
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.


 


(n)  
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.


 


 


69

















 


(o)  
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 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 (including
amounts drawn under Letters of Credit) shall have been paid in full and all
Letters of Credit have been canceled or have expired (or the Borrower shall
have provided L/C Backstop or made other arrangements reasonably satisfactory
to the Administrative Agent and the Issuing Bank with respect thereto), 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.


 


 


70

















 


(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 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 


 


 


71

















 


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;


 


(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 covenants contained in Sections 6.10,
6.11 and 6.12 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
Sections 6.11 or 6.12 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


 


 


72

















 


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;


 


(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 First 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, the Issuing Bank 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 


 


 


73

















 


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 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 Term Loans,
together with the Equity Contribution and loans under the Second 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.
The proceeds of the Revolving Loans and Swingline Loans, shall be used for
working capital and general corporate purposes (including Permitted
Acquisitions); provided, however, that up to $10,000,000 of the
Revolving Loans may be drawn on the Closing Date and used to pay a distribution
to the Investors to fund a portion of the cash purchase price of the
Acquisition, to repay a portion of the Existing Debt and to pay related fees
and expenses. The Letters of Credit shall be used solely to support obligations
of the Borrower and the Subsidiaries incurred for working capital and general
corporate purposes (including Permitted Acquisitions and Capital Expenditures).


 


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 


 


 


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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 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, 


 


 


75

















 


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 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 


 


 


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Fees and all other expenses or amounts payable under
any Loan Document (including amounts drawn under Letters of Credit) have been
paid in full and all Letters of Credit have been canceled or have expired (or
the Borrower shall have provided L/C Backstop or made other arrangements
reasonably satisfactory to the Administrative Agent and the Issuing Bank with
respect thereto), 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 Second Lien Credit Agreement and the related loan
documents in an aggregate principal amount of up to $150,000,000 at any time
outstanding, less the amount of any principal payments made thereon after the
Closing Date, and any Permitted Refinancing in respect thereof;


 


(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 $25,000,000 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 $25,000,000 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(d)), (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 covenants set
forth in Sections 6.11 and 6.12;


 


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(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 $100,000,000 (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 covenants set forth
in Sections 6.11 and 6.12, (iii) such Indebtedness does not mature
prior to the date 91 days after the Term Loan Maturity Date, and does not
require any scheduled amortization or other scheduled payments of principal
prior to the Term Loan 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;


 


(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 $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 the Subsidiaries will be in Pro Forma Compliance with the
covenants set forth in Sections 6.11 and 6.12, (iii) such
Indebtedness does not mature prior to the date 91 days after the Term Loan
Maturity Date and does not require any scheduled amortization or other
scheduled payments of principal prior to the Term Loan 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 





 


78

















 


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;


 


(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;


 


 


79

















 


(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 $25,000,000 at any time outstanding;


 


(w)
Permitted Project Debt; and


 


(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)
Second Priority Liens;


 


(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 


 


 


80

















 


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;


 


(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);


 


 


81

















 


(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 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;


 


 


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(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 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 $15,000,000.


 


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)
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 


 


 


83

















 


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 $5,000,000 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;


 


(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 $5,000,000;


 


(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 


 


 


84

















 


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;


 


(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 $15,000,000 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;


 


 


85

















 


(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 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) 


 


 


86

















 


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;


 


(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 $10,000,000 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 Term Loans pursuant to Section 2.13(b);


 


 


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(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


 


(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 


 


 


88

















 


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 $5,000,000 (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
$10,000,000 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, 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,


 


 


89

















 


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;


 


(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



 


 


90

















 


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 Second 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
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 


 


 


91

















 


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 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 


 


 


92

















 


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 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 Second 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 Second Lien Credit Agreement and the Second 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, Permitted Senior Debt or Indebtedness under the Second Lien
Credit Agreement (other than with (w) in the case of Indebtedness under the
Second Lien Credit Agreement, Declined Proceeds applied in accordance with the
mandatory prepayment provisions of the Second Lien Credit Agreement as
contemplated by Section 2.13(f), (x) the Net Cash Proceeds of a
Qualified Public Offering, to the extent 


 


 


93

















 


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. Capital Expenditures. (a)  Subject to
paragraphs (b), (c) and (d) below, permit the aggregate amount of Capital
Expenditures made by Holdings and its Subsidiaries in any fiscal year to exceed
$10,000,000 (it being understood that for the one fiscal year ended 2006,
Capital Expenditures shall be measured from the Closing Date through
December 31, 2006).


 


(b)  
Notwithstanding anything to the contrary contained in paragraph (a) above,
(i) to the extent that the aggregate amount of Capital Expenditures made
by Holdings and its Subsidiaries in any fiscal year pursuant to
Section 6.10(a) is less than the amount set forth for such fiscal year,
the amount of such difference (the “Rollover Amount”) may be carried
forward and used to make Capital Expenditures in either of the two immediately
succeeding fiscal years, and (ii) if the aggregate amount of Capital
Expenditures made by Holdings and its Subsidiaries in any fiscal year is
greater than the amount permitted for such fiscal year (including any Rollover
Amount), an amount of up to 100% of the amount otherwise available for Capital
Expenditures in the immediately succeeding fiscal year pursuant to
paragraph (a) may be reallocated to such current fiscal year (the “Carryback Amount”), so long as the
base amount of Capital Expenditures permitted by Section 6.10(a) during
the next succeeding fiscal year shall be reduced by the Carryback Amount.


 


(c)  
For any fiscal year during which a Permitted Acquisition is consummated and for
each fiscal year thereafter, the amount available for Capital Expenditures
otherwise permitted under Section 6.10(a) shall increase by an amount equal to
the amount of Capital Expenditures made by the acquired person or business for
the 36-month period immediately preceding such Permitted Acquisition divided by
3.


 


(d)  
Notwithstanding paragraph (a) above, the Borrower and the Subsidiaries may make
the following Capital Expenditures, which shall not be treated as Capital
Expenditures for the purposes of paragraph (a), (i) Capital
Expenditures made with the Net Cash Proceeds of Equity Interests (other than
Disqualified Equity Interests) issued by Holdings after the Closing Date,
Permitted Senior Debt and Permitted Subordinated Debt, in each case, Not
Otherwise Applied; (ii) Capital Expenditures in an amount not to exceed Cumulative
Excess Cash Flow that is Not Otherwise Applied, and (iii) Capital
Expenditures not exceeding $175,000,000 in the aggregate made in connection
with the construction and start up of one or more ethanol plants owned by the
Borrower or a Subsidiary Guarantor.


 


 


94

















 


SECTION
6.11. Interest Coverage Ratio. Permit the Interest Coverage
Ratio as of the end of any fiscal quarter ending on or after September 30,
2006, to be less than the ratio set forth below opposite the fiscal quarter
end:


 


	
  Fiscal Quarter Ending

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  on or prior to December 31, 2008

  	
   

  	
  1.50 to 1.0

  	
   

  
	
  thereafter but on or prior to December 31, 2010

  	
   

  	
  1.75 to 1.0

  	
   

  
	
  after December 31, 2010

  	
   

  	
  2.00 to 1.0

  	
   

  



 


SECTION
6.12. 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

  	
   

  	
  6.50 to 1.0

  	
   

  
	
  thereafter but on or prior to December 31, 2010

  	
   

  	
  6.00 to 1.0

  	
   

  
	
  after December 31, 2010

  	
   

  	
  5.50 to 1.0

  	
   

  



 


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 any reimbursement with respect to any
L/C Disbursement, interest on any Loan or L/C Disbursement 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;


 


 


95

















 


(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 such 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 any 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; 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;


 


(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 


 


 


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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
$20,000,000 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 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 $20,000,000;


 


(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);


 


(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, first 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 to maintain possession of
certificates representing securities pledged under the Guarantee and Collateral
Agreement or to file or record any document delivered to it for filing or
recording; or


 


(m)
there shall have occurred a Change in Control;


 


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 


 


 


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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.


 


Notwithstanding anything
to the contrary contained in this Article VII, in the event that the Borrower
fails to comply with the requirements of any financial covenant set forth in
Section 6.11 or 6.12 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 covenants 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 Sections 6.11 and 6.12 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 all such financial covenants shall be satisfied, then the
requirements of such financial covenants 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 covenants 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 covenants 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 


 


 


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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 6.11 or 6.12.


 


ARTICLE VIII


 


The Administrative Agent and the
Collateral Agent


 


Each of the Lenders and the
Issuing Bank 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. 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
Second 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


 


 


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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 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, the Issuing Bank
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 paragraphs (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 paragraphs (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 


 


 


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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.


 


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, or as Issuing Bank or Swingline Lender, to
Credit Suisse, Eleven Madison Avenue, New York, NY 10010, Attention of Agency
Group (Fax No. (212) 325-8304); and


 


 


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(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 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 the Issuing Bank and shall survive
the making by the Lenders of the Loans and the issuance of Letters of Credit by
the Issuing Bank, regardless of any investigation made by the Lenders or the
Issuing Bank 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 or any Letter of Credit is outstanding 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 expiration of any Letter of Credit, 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, any Lender or the Issuing Bank.


 


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.


 


 


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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, the Issuing Bank 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 clause (b), (c), (g)(i), or (h) of Article VII,
(ii) in the case of any assignment of a Revolving Credit Commitment, each
of the Issuing Bank and the Swingline Lender must give its prior written
consent (which consent shall not be unreasonably withheld or delayed),
(iii) (A) in the case of any assignment, other than assignments to
any Lender or any Affiliate or Related Fund thereof, the amount of the
Revolving Credit Commitment of the assigning Lender (or, in the case of an
assignment of Loans after the Revolving Credit Commitment has expired or been
terminated, the aggregate principal amount of the loans of the assigning
Lenders) 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) shall not be less than $5,000,000 (or, if less, the
entire remaining amount of such Lender’s Revolving Credit 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 Revolving Credit Commitment
(or Loans) of the applicable Class) and the amount of the Term Loan Commitment
or Term 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) shall not be less
than $1,000,000 (or if less, the entire remaining amount of such Lender’s Term
Loan Commitment or Term 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 Term
Loan Commitment or Term Loans of the applicable Class), 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 Revolving Credit Commitments (or Loans) or Term Loan Commitments or
Term 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
Revolving Credit Commitments (or Loans) or Term Loan Commitments or Term Loans,
as applicable, of the assignee Lenders and their Affiliates and Related Funds
shall be not less than $1,000,000, (iv) 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


 


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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 (v) 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 Term Loan Commitment and Revolving
Credit Commitment, and the outstanding balances of its Term Loans and Revolving
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, 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 


 


 


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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
Issuing Bank, 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
Issuing Bank, 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, the Borrower, the Swingline Lender and the Issuing Bank
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 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, the Swingline Lender, the
Issuing Bank 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 


 


 


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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, the
Issuing Bank 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 or L/C Disbursements 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.


 


(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 


 


 


106

















 


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, the Issuing Bank 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, the Collateral
Agent, the Issuing Bank and the Swingline Lender in connection with the
syndication of the Credit Facilities 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, the Issuing Bank, the Swingline Lender 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
or Letters of Credit issued 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 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, the Issuing Bank, the Swingline
Lender 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, the
Issuing Bank, the Swingline 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 


 


 


107

















 


(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 Facilities), (ii) the use of the proceeds of the Loans or issuance
of Letters of Credit, (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, the Collateral Agent, the Issuing
Bank or the Swingline Lender under paragraph (a) or (b) of this Section,
each Lender severally agrees to pay to the Administrative Agent, the Collateral
Agent, the Issuing Bank or the Swingline Lender, 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, the
Collateral Agent, the Issuing Bank or the Swingline Lender in its capacity as
such. For purposes hereof, a Lender’s “pro rata share” shall be determined
based upon its share of the sum of the Aggregate Revolving Credit Exposure,
outstanding Term Loans and unused Commitments 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, any Loan or Letter of Credit or the use of the proceeds
thereof.


 


 


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(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 expiration of any Letter of Credit, 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, any
Lender or the Issuing Bank. 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 LETTERS OF CREDIT AND 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. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE
DATE SUCH LETTER OF CREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE
(THE “UNIFORM CUSTOMS”) AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS,
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, any Lender or the Issuing Bank
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, the Issuing Bank 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 


 


 


109

















 


effective
only in the 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)  
Subject to Section 2.24, 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 any date for reimbursement of an L/C Disbursement, or waive or
forgive any such payment or any part thereof, or decrease the rate of interest
on any Loan or L/C Disbursement, 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, 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, the Collateral Agent, the Issuing Bank or the Swingline
Lender hereunder or under any other Loan Document without the prior written
consent of the Administrative Agent, the Collateral Agent, the Issuing Bank or
the Swingline Lender.


 


SECTION
9.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and
other amounts which are treated as interest on such Loan or participation in
such L/C Disbursement 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 or
participation in accordance with applicable law, the rate of interest payable
in respect of such Loan or participation 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 or participation 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 


 


 


110

















 


or
participations or periods shall be increased (but not above the 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 (including any Affiliate of the Issuing Bank
that issues any Letter of Credit) and, to the extent expressly contemplated
hereby, the Indemnitees, the Arrangers, the Related Parties of each of the
Administrative Agent, the Collateral Agent, the Issuing Bank 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 


 


 


111

















 


page to
this Agreement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Agreement.


 


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, the Issuing Bank 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, the Issuing Bank 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, Issuing Bank or Lender that 


 


 


112

















 


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 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,
the Issuing Bank or any Lender, other than by reason of disclosure by
Administrative Agent, the Collateral Agent, the Issuing Bank 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.


 


 


113

















 


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, Collateral Agent,
  Swingline Lender and Issuing Bank,

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ James Moran

  	
   

  
	
   

  	
   

  	
   

  	
  Name: James Moran

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Managing
  Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Gregory S. Richards

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Gregory S.
  Richards

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Associate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MORGAN STANLEY SENIOR
  FUNDING, INC., as a Lender,

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ John McCann

  	
   

  
	
   

  	
   

  	
   

  	
  Name: John McCann

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  	
   

  



 


114














DISCLOSURE SCHEDULES


TO


FIRST 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
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
“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.

















 


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 4.02(a)

  	
   

  	
  —

  	
   

  	
  Local Counsel

  
	
  Schedule 6.01

  	
   

  	
  —

  	
   

  	
  Existing Indebtedness

  
	
  Schedule 6.02

  	
   

  	
  —

  	
   

  	
  Existing Liens

  



 

















Schedule
1.01(a)


Subsidiary
Guarantors


 


NONE


 

















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



  






 

















 


Schedule
1.01(c)


Disqualified
Institutions


 


NONE


 

















 


 


Schedule
2.01


Lenders and Commitments


 


 


	
  Lender

  	
   

  	
  Commitment

  Type

  	
   

  	
  First Lien Credit

  Commitment

  
	
  Credit Suisse, Cayman Islands Branch

  	
   

  	
  Term Loan

  	
   

  	
  $187,500,000

  
	
  Bank of America, N.A.

  	
   

  	
  Term Loan

  	
   

  	
  $187,500,000

  
	
  Goldman Sachs Credit Partners L.P.

  	
   

  	
  Term Loan

  	
   

  	
  $100,000,000

  
	
  Morgan Stanley Senior Funding, Inc.

  	
   

  	
  Term Loan

  	
   

  	
  $25,000,000

  
	
  Credit Suisse, Cayman Islands Branch

  	
   

  	
  Revolving

  Commitment

  	
   

  	
  $18,750,000

  
	
  Bank of America, N.A.

  	
   

  	
  Revolving

  Commitment

  	
   

  	
  $18,750,000

  
	
  Goldman Sachs Credit Partners L.P.

  	
   

  	
  Revolving

  Commitment

  	
   

  	
  $10,000,000

  
	
  Morgan Stanley Senior Funding, Inc.

  	
   

  	
  Revolving

  Commitment

  	
   

  	
  $2,500,000

  
	
  TOTAL

  	
   

  	
   

  	
   

  	
  $550,000,000

  



 

















 


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.


 

















 


Schedule
3.09


Litigation


 


NONE

















 


Schedule
3.17(a)


UCC
Filing Offices


 


Delaware Secretary of State


 


Buchanan County, IA


 


Fayette County, IA


 


Hardin County, IA

















 


Schedule
3.17(c)


Mortgage
Filing Offices


 


Buchanan County, IA


 


Fayette County, IA


 


Hardin County, IA


 


 


 


 

















 


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



  






 

















 


Schedule
3.18(b)


Leased
Real Property


 


NONE


 

















 


Schedule
4.02(a)


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

















 


Schedule
6.01


Existing
Indebtedness


 


NONE

















 


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.














EXHIBIT
A


to
the First 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:

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  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 First 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 First Lien Credit
Agreement identified below (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the “First
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 First 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 First 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
(including without limitation any Letters of Credit and Swingline Loans
included in such Facility) 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 First 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 First Lien
  Credit Agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  First Lien Credit Agreement:

  	
   

  	
  The $550,000,000 First 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
  Commitment
 for all Lenders

  	
   

  	
  Amount of Commitment
 Assigned

  	
   

  	
  Percentage Assigned of
  Commitment(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 First 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

















 


ASSIGNEE,


 


	
   

  	
  NAME
  OF ASSIGNEE,

  
	
   

  	
  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

















EXHIBIT B


to the First Lien Credit Agreement


 


 


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 First Lien Credit Agreement
(ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the First 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 First 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 First 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 First 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
First 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 First 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 


 


B-5





















 


perform
in accordance with their terms all of the obligations which by the terms of the
First Lien Credit Agreement are required to be performed by it as a Lender.


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 First 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
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
“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.


 


 


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 Section 4.01 of the Credit Agreement
have been satisfied.


	
   

  	
  HAWKEYE RENEWABLES, LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  Title: 

  
					



 


 


 


 


 






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


 


C-2






 


 


 


 










EXHIBIT D


 


 




 





 


FIRST 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


 


 




 




















TABLE OF CONTENTS


	
   

  	
   

  	
  Page

  
	
  ARTICLE I

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Definitions

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01. First 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

  	
   

  	
  11

  
	
   

  	
   

  	
   

  
	
  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

  	
   

  	
  19

  
	
  SECTION 4.05. Covenants
  Regarding Patent, Trademark and Copyright Collateral

  	
   

  	
  21

  



 

















ii


	
  ARTICLE V

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Remedies

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01. Remedies
  Upon Default

  	
   

  	
  23

  
	
  SECTION 5.02. Application
  of Proceeds

  	
   

  	
  23

  
	
  SECTION 5.03. Grant of
  License to Use Intellectual Property

  	
   

  	
  23

  
	
  SECTION 5.04. Securities
  Act, Etc

  	
   

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Indemnity, Subrogation and Subordination

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01. Indemnity
  and Subrogation

  	
   

  	
  23

  
	
  SECTION 6.02. Contribution
  and Subrogation

  	
   

  	
  23

  
	
  SECTION 6.03.
  Subordination

  	
   

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Miscellaneous

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01. Notices

  	
   

  	
  23

  
	
  SECTION 7.02. Survival of
  Agreement

  	
   

  	
  23

  
	
  SECTION 7.03. Binding
  Effect; Several Agreement

  	
   

  	
  23

  
	
  SECTION 7.04. Successors
  and Assigns

  	
   

  	
  23

  
	
  SECTION 7.05. Collateral
  Agent’s Fees and Expenses; Indemnification

  	
   

  	
  23

  
	
  SECTION 7.06. Collateral
  Agent Appointed Attorney-in-Fact

  	
   

  	
  23

  
	
  SECTION 7.07. Applicable
  Law

  	
   

  	
  23

  
	
  SECTION 7.08. Waivers;
  Amendment

  	
   

  	
  23

  
	
  SECTION 7.09. WAIVER OF
  JURY TRIAL

  	
   

  	
  23

  
	
  SECTION 7.10. Severability

  	
   

  	
  23

  
	
  SECTION 7.11. Counterparts

  	
   

  	
  23

  
	
  SECTION 7.12. Headings

  	
   

  	
  23

  
	
  SECTION 7.13.
  Jurisdiction; Consent to Service of Process

  	
   

  	
  23

  
	
  SECTION 7.14. Termination
  or Release

  	
   

  	
  23

  
	
  SECTION 7.15. Additional
  Subsidiaries

  	
   

  	
  23

  
	
  SECTION 7.16. Right of
  Setoff

  	
   

  	
  23

  



 

















	
  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

  



 

















FIRST 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 first 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 “Administrative Agent”) and as the 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 and as second lien collateral agent (in
such capacity, the “Second Lien Collateral Agent”),
(c) 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 “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 the Second 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 Second Lien Collateral Agent.


The Lenders and the Issuing Banks (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) have agreed to extend credit to the
Borrower pursuant to, and upon the terms and conditions specified in, the First
Lien Credit Agreement.  The obligations
of the Lenders and the Issuing Banks to extend credit to the Borrower are
conditioned upon, among other things, the execution and delivery of this
Agreement by the Borrower and each Guarantor. 
Each Guarantor is an affiliate of the Borrower, will derive substantial
benefits from the extension of credit to the Borrower pursuant to the First
Lien Credit Agreement and is willing to execute and deliver this Agreement in
order to induce the Lenders and the Issuing Banks to extend such credit.  Accordingly, the parties hereto agree as
follows:

















ARTICLE I



Definitions


SECTION
1.01. First Lien Credit
Agreement.  (a)  Capitalized terms used in this Agreement and
not otherwise defined herein have the meanings set forth in the First 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 First 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.


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


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


“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.


 


3

















“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, (ii) each payment required to be made by the Borrower under
the First Lien Credit Agreement in respect of any Letter of Credit, when and as
due, including payments in respect of reimbursement of disbursements, interest
thereon (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) and obligations to provide cash
collateral, and (iii) all other monetary obligations of the Borrower to
any of the Secured Parties under the First 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 First
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
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 


 


4

















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


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


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


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


“Secured
Parties” shall mean (a) the Lenders, (b) the
Administrative Agent, (c) the Collateral Agent, (d) any Issuing Bank,
(e) 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, (f) the beneficiaries of each indemnification
obligation undertaken by any Loan Party under any Loan Document and (g) the
permitted successors and assigns of each of the foregoing.


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


 


5

















“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 (a) 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 First 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, (b) with respect to
the Swingline Lender, the aggregate amount, if any, of participations in
respect of any outstanding Swingline Loan that shall not have been funded by
the Revolving Credit Lenders in accordance with Section 2.22(e) of the First
Lien Credit Agreement and (c) with respect to any Issuing Bank, the aggregate
amount, if any, of participations in respect of any outstanding L/C
Disbursement that shall not have been funded by the Revolving Credit Lenders in
accordance with Sections 2.23(d) and 2.02(f) of
the First Lien Credit Agreement.


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 


 


6





















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 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 


 


7





















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
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 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 


 


8





















any other Guarantor arising
as a result thereof by way of right of subrogation, 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 any
and all certificates, instruments or other documents, if any, representing or
evidencing Pledged Securities.


(b)
Upon delivery to 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 Collateral Agent shall be held by the 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 the Second Lien Guarantee and Collateral
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 Second
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 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 


 


10





















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 Second 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 Second 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 in accordance
with this Agreement, the Collateral Agent will obtain a legal, valid and
perfected first priority lien upon and security interest in such Pledged
Securities as security for the payment and performance of the Obligations; 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.


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.


 


11





















(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) 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 First 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, 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 First 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, 


 


12





















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
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 vested in the Collateral Agent, which shall have the
sole and exclusive right and authority to 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.


 


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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;


(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




14





















(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 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


 


15





















 


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 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


 


 


16





















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 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


 


17





















 


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.


(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.


 


18





















 


(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 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:


 


19





















 


(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 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


 


20





















 


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.


(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.


 


21





















 


(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 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.


 


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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 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


 


23

















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 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 agent and


 


24

















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 (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 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 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.


 


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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 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


 


26





















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 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


 


27





















 


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 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.


 


28





















(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, 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


 


29





















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 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.


 


30





















(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.


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


 


31





















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.


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.


 


32





















(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 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.


[Remainder of page
intentionally left blank]


 


33





















 


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 SUBSIDIARIES LISTED ON SCHEDULE I
  HERETO,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as
  Collateral Agent,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


34














Schedule
I to the


First
Lien Guarantee and


Collateral
Agreement


 


 


SUBSIDIARY GUARANTORS


 


NONE


 

















 


Schedule
II to the


First
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


First
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


First
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


First
Lien Guarantee and


Collateral
Agreement


 


SUPPLEMENT
NO. [•] (this “Supplement”)
dated as of [•], to the First Lien Guarantee and Collateral Agreement
dated as of June 30, 2006 (the “First 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
first lien collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties (as defined therein).


A.  Reference is made to 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 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 First Lien Credit Agreement or the First Lien Guarantee and Collateral
Agreement referred to therein, as applicable.


C.  The Grantors have entered
into the First Lien Guarantee and Collateral Agreement in order to induce the
Lenders to make Loans and the Issuing Banks to issue Letters of Credit.  Section 7.15 of the First Lien Guarantee
and Collateral Agreement provides that additional Subsidiaries of the Borrower
may become Subsidiary Guarantors and Grantors under the First 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 First Lien
Credit Agreement to become a Subsidiary Guarantor and a Grantor under the First
Lien Guarantee and Collateral Agreement in order to induce the Lenders to make
additional Loans and the Issuing Banks to issue additional Letters of Credit
and as consideration for Loans previously made and Letters of Credit previously
issued.


Accordingly, the Collateral Agent and the New Subsidiary agree as
follows:


SECTION 1.  In accordance with
Section 7.15 of the First Lien Guarantee and Collateral Agreement, the New
Subsidiary by its signature below becomes a Grantor


 

















 


 


and Subsidiary Guarantor under the First 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 First 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 First 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 First Lien Guarantee and Collateral Agreement) of the New Subsidiary.  Each reference to a “Grantor” or a “Subsidiary Guarantor”
in the First Lien Guarantee and Collateral Agreement shall be deemed to include
the New Subsidiary.  The First 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 First 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 First
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
First Lien Guarantee and Collateral Agreement) be in writing and given as
provided in Section 9.01 of the First 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 First 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.


 


 


A-3

















IN WITNESS WHEREOF, the New Subsidiary and
the Collateral Agent have duly executed this Supplement to the First 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

















 


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


First
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


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  	
   

  
	
   

  	
   

  	
  ARTICLE
  I

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DEFINITIONS

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  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

  	
   

  	
  19

  	
   

  
	
  SECTION 6.05.

  	
   

  	
  Certain Waivers by the
  Second Lien Secured Parties

  	
   

  	
  19

  	
   

  
	
  SECTION 6.06.

  	
   

  	
  Certain Voting Matters

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  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

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  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


 


 


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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


 


21

















 


Lien Collateral Agent or any other Second Lien
Secured Party, including any request by the Second 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 


 


 


 


28

















 


Obligations
as and when the same shall become due and payable in accordance with their
terms.


[Remainder of this page intentionally left
blank]


 


 


 


29

















 


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:

  



 


 


 

















 


ANNEX
I


 


 


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.”


 


 


 






 












 





FIRST 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 FIRST 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 First 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, collateral agent (the “Collateral Agent”) for the Secured Parties, swingline lender
(the “Swingline Lender”) and an
issuing bank (the “Issuing Bank”)
with respect to letters of credit (the “Letters
of Credit”) issued pursuant to the terms of the Credit Agreement and
(ii) the First 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. 
Capitalized terms used but not defined herein have the meanings given to
them in the Credit Agreement and the Guarantee and Collateral Agreement.


In the Credit Agreement, (i) the
Lenders have agreed to make Term Loans, Revolving Loans and Incremental Term
Loans to the Borrower, (ii) the Swingline Lender has agreed to make
Swingline Loans (the Swingline Loans, together with Term Loans, Revolving Loans
and Incremental Term Loans, the “Loans”) to the Borrower and (iii) the
Issuing Bank has issued or agreed to issue from time to time Letters of Credit
for the account of the Borrower, in each case pursuant to, upon the terms, and
subject to the conditions specified in, the Credit Agreement.  Amounts paid in respect of Term Loans and
Incremental Term Loans may not be reborrowed. 
Subject to the terms of the Credit Agreement, Borrower may borrow,
prepay and reborrow Revolving Loans.  The
Credit Agreement provides that the sum of the principal amount of the Loans and
the Letters of Credit from time to time outstanding and secured hereby shall
not exceed $670,000,000.


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 and the issuance of the Letters of Credit by the
Issuing Bank.  In order to induce the
Lenders to make the Loans and the Issuing Bank to issue Letters of Credit, 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 and of the Issuing Bank to issue Letters of Credit 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) any Issuing Bank, (e) 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`, (f) the beneficiaries of each indemnification obligation undertaken
by any Loan Party under any Loan Document and (g) the 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


 


 


3

















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”);


(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”).


 


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(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.


(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


 


 


5





















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.


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


 


6





















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 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.


 


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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 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.


 


8





















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 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.


 


9





















(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.


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


 


10





















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 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


 


11





















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.


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.


 


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(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 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);


 


13

















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.


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


 


 


14





















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.


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


 


15





















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.


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 First Lien Credit
Agreement, the aggregate L/C Exposure has been reduced to zero (including as a
result of the cash collateralization of the Letters of Credit or the provision
of L/C Backstops as provided in the First Lien Credit Agreement) and the
Issuing


 


 


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Banks have no further obligations to issue Letters
of Credit under the First Lien Credit Agreement.


(b)  Upon any sale or other transfer by Mortgagor
of any of the Mortgaged Property that is permitted under the First Lien 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
First Lien 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 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


 


17





















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 Mortgage relating to this
Mortgage shall be superior to the rights of the holder of any intervening or
subordinate mortgage, lien or encumbrance.


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.


 


 


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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


 


 


22

















 


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.


 


 


23

















Appendix A

to Mortage


Local Law Provisions


This Iowa Jurisdictional
Addendum is made to the attached First 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
$670,000,000.00.  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 First Lien Credit Agreement


 


FORM OF

NON-BANK CERTIFICATE


Reference
is made to the First Lien Credit Agreement, dated as of June 30, 2006 (as
amended, modified, supplemented, restated, replaced or refinanced from time to
time, the “First 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 First Lien
Credit Agreement.  ______________________
(the “Non-U.S. Lender”) is providing this certificate pursuant to
subsection 2.20(e) of the First 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 First Lien Credit Agreement


FORM OF


FIRST 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
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 “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 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”).  Consistent with the requirements of the First
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 First 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

  	
   

  	
  Expiration

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


III.
Trademark Licenses


 


	
  Licensee

  	
   

  	
  Licensor

  	
   

  	
  Mark

  	
   

  	
  Registration

  Number

  	
   

  	
  Expiration

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


H-1-5





















EXHIBIT H-2

to First Lien Credit Agreement


FORM OF


FIRST 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
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 “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 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”).  Consistent with the requirements of the First
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 First 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 First Lien Credit Agreement


FORM OF


FIRST 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
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 “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 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”).  Consistent with the requirements of the First
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 First 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 interests granted to the Collateral Agent pursuant to the Security
Agreement.  Each


 


H-3-1

















 


 


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

   
	
    

   
	
    

   
	
    

   
	
    

   
	
    

   



 


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Schedule II


I. Copyrights


	
  Registered Owner

  	
   

  	
  Title

  	
   

  	
  Registration

  Number

  	
   

  	
  Expiration

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


II. Copyright Applications


 


	
  Registered Owner

  	
   

  	
  Title

  	
   

  	
  Registration

  Number

  	
   

  	
  Expiration

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


III.
Copyright Licenses


	
  Licensee

  	
   

  	
  Licensor

  	
   

  	
  Title

  	
   

  	
  Registration

  Number

  	
   

  	
  Expiration

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 


H-3-5