Execution Version
$315,000,000
CREDIT AGREEMENT
among
U.S. CAN CORPORATION,
UNITED STATES CAN COMPANY
and
VARIOUS LENDING INSTITUTIONS
with
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
Dated as of June 21, 2004
with
LASALLE BANK NATIONAL ASSOCIATION,
as Syndication Agent
and
XXXXXXX XXXXX CAPITAL,
a Division of Xxxxxxx Xxxxx Financial Services, Inc.
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Documentation Agents
Arranged by
DEUTSCHE BANK SECURITIES INC. ,
as Lead Arranger
Table of Contents
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(continued)
Page
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iv
CHI:1354223.12
Table of Contents
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Page
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i
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS..................................................................................1
1.1 Definitions.........................................................................................1
1.2 Accounting Terms; Financial Statements.............................................................41
ARTICLE II
AMOUNT AND TERMS OF CREDIT.......................................................................................41
2.1 The Commitments....................................................................................41
2.2 Evidence of Indebtedness; Repayment of Loans.......................................................44
2.3 Minimum Amount of Each Borrowing; Maximum Number of Borrowings.....................................45
2.4 Borrowing Options..................................................................................45
2.5 Notice of Borrowing................................................................................45
2.6 Conversion or Continuation.........................................................................46
2.7 Disbursement of Funds and Presumptions by Administration Agent.....................................46
2.8 Letters of Credit..................................................................................47
2.9 Pro Rata Borrowings................................................................................55
ARTICLE III
INTEREST AND FEES................................................................................................55
3.1 Interest...........................................................................................55
3.2 Fees...............................................................................................56
3.3 Computation of Interest and Fees...................................................................57
3.4 Interest Periods...................................................................................57
3.5 Compensation for Funding Losses....................................................................58
3.6 Increased Costs, Illegality, Etc...................................................................59
3.7 Mitigation Obligations; Replacement of Affected Lenders............................................61
ARTICLE IV
REDUCTION OF COMMITMENTS; PAYMENTS AND PREPAYMENTS...............................................................62
4.1 Voluntary Reduction of Commitments.................................................................62
4.2 Mandatory Reductions of Commitments................................................................62
4.3 Voluntary Prepayments..............................................................................63
4.4 Mandatory Prepayments..............................................................................63
4.5 Application of Prepayments; Waiver of Certain Prepayments..........................................66
4.6 Method and Place of Payment........................................................................66
4.7 Net Payments.......................................................................................67
ARTICLE V
CONDITIONS OF CREDIT.............................................................................................69
5.1 Conditions Precedent to the Initial Borrowing......................................................69
5.2 Conditions Precedent to All Credit Events..........................................................77
ARTICLE VI
REPRESENTATIONS AND WARRANTIES...................................................................................78
6.1 Corporate Status...................................................................................78
6.2 Corporate Power and Authority......................................................................78
6.3 No Violation.......................................................................................79
6.4 Governmental and Other Approvals...................................................................79
6.5 Financial Statements; Financial Condition; Undisclosed Liabilities Projections; etc................79
6.6 Litigation.........................................................................................82
6.7 True and Complete Disclosure.......................................................................82
6.8 Use of Proceeds; Margin Regulations................................................................82
6.9 Taxes..............................................................................................82
6.10 Compliance With ERISA; Foreign Pension Plans.......................................................83
6.11 Security Documents.................................................................................85
6.12 Documents..........................................................................................86
6.13 Ownership of Property..............................................................................86
6.14 Capitalization of Company..........................................................................87
6.15 Subsidiaries.......................................................................................87
6.16 Compliance With Law, Etc...........................................................................88
6.17 Investment Company Act.............................................................................88
6.18 Public Utility Holding Company Act.................................................................88
6.19 Environmental Matters..............................................................................88
6.20 Labor Relations....................................................................................89
6.21 Intellectual Property, Licenses, Franchises and Formulas...........................................89
6.22 Certain Fees.......................................................................................90
6.23 Asbestos Matters...................................................................................90
6.24 Anti-Terrorism Laws................................................................................90
ARTICLE VII
AFFIRMATIVE COVENANTS............................................................................................91
7.1 Financial Statements...............................................................................91
7.2 Certificates; Other Information....................................................................92
7.3 Notices............................................................................................93
7.4 Conduct of Business and Maintenance of Existence...................................................94
7.5 Payment of Obligations.............................................................................95
7.6 Inspection of Property, Books and Records..........................................................95
7.7 ERISA; Foreign Pension Plan........................................................................95
7.8 Maintenance of Property, Insurance.................................................................97
7.9 Environmental Laws.................................................................................98
7.10 Use of Proceeds....................................................................................99
7.11 Additional Security; Further Assurances............................................................99
7.12 Contributions; Payments...........................................................................101
7.13 Maintenance of Corporation Separateness...........................................................101
ARTICLE VIII
NEGATIVE COVENANTS..............................................................................................102
8.1 Liens.............................................................................................102
8.2 Indebtedness......................................................................................103
8.3 Fundamental Changes...............................................................................105
8.4 Asset Sales.......................................................................................105
8.5 Restricted Payments...............................................................................107
8.6 Issuance of Stock.................................................................................108
8.7 Loans, Investment and Acquisitions................................................................108
8.8 Transactions with Affiliates......................................................................109
8.9 Sale-Leasebacks...................................................................................111
8.10 Lines of Business.................................................................................111
8.11 Fiscal Year.......................................................................................111
8.12 Limitation on Voluntary Payments and Modifications of Indebtedness; Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements; Certain Derivative Transactions; etc........................111
8.13 Limitation on Certain Restrictions on Subsidiaries................................................112
8.14 Accounting Changes................................................................................113
8.15 Limitation on Creation of Subsidiaries............................................................114
ARTICLE IX
FINANCIAL COVENANTS.............................................................................................114
9.1 Capital Expenditures..............................................................................114
9.2 Interest Coverage Ratio...........................................................................115
9.3 Total Leverage Ratio..............................................................................115
9.4 First Lien Leverage...............................................................................116
ARTICLE X
EVENTS OF DEFAULT...............................................................................................117
10.1 Events of Default.................................................................................117
10.2 Rights Not Exclusive..............................................................................121
ARTICLE XI
THE AGENTS......................................................................................................121
11.1 Appointment.......................................................................................121
11.2 Nature of Duties..................................................................................122
11.3 Exculpation, Rights Etc...........................................................................122
11.4 Reliance..........................................................................................123
11.5 Indemnification...................................................................................123
11.6 Administrative Agent In Its Individual Capacity...................................................123
11.7 Notice of Default.................................................................................123
11.8 Holders of Obligations............................................................................124
11.9 Resignation by Administrative Agent...............................................................124
11.10 The Lead Arranger, Book Manager, Syndication Agent and Co-Documentation Agents....................124
ARTICLE XII
MISCELLANEOUS...................................................................................................125
12.1 No Waiver; Modifications in Writing...............................................................125
12.2 Further Assurances................................................................................127
12.3 Notices, Etc......................................................................................127
12.4 Costs and Expenses; Indemnification...............................................................128
12.5 Confirmations.....................................................................................131
12.6 Adjustment; Setoff................................................................................131
12.7 Execution in Counterparts; Electronic Execution; Effectiveness....................................132
12.8 Binding Effect; Assignment; Addition and Substitution of Lenders..................................132
12.9 CONSENT TO JURISDICTION; MUTUAL WAIVER OF JURY TRIAL..............................................135
12.10 Severability of Provisions........................................................................136
12.11 Transfers of Notes................................................................................136
12.12 Registry..........................................................................................137
12.13 Headings..........................................................................................137
12.14 Termination of Agreement..........................................................................137
12.15 Treatment of Certain Information; Confidentiality.................................................137
12.16 Concerning the Collateral and the Loan Documents..................................................138
12.17 Certain Provisions Regarding Pledge of Capital Stock of Netherlands Antilles Subsidiary...........140
ARTICLE XIII
HOLDINGS GUARANTY...............................................................................................141
13.1 The Guaranty......................................................................................141
13.2 Insolvency........................................................................................142
13.3 Nature of Liability...............................................................................142
13.4 Independent Obligation............................................................................142
13.5 Authorization.....................................................................................142
13.6 Reliance..........................................................................................143
13.7 Subordination.....................................................................................143
13.8 Waiver............................................................................................144
13.9 Nature of Liability...............................................................................144
INDEX OF SCHEDULES AND EXHIBITS
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Exhibits
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Exhibit 2.1(c).... Swing Line Loan Participation Certificate
Exhibit 2.2(a)(1).Form of Term Note
Exhibit 2.2(a)(2).Form of Revolving Note
Exhibit 2.5....... Form of Notice of Borrowing
Exhibit 2.6....... Form of Notice of Conversion or Continuation
Exhibit 2.8(c).... Form of Letter of Credit Request
Exhibit 4.7(d).... Form of Section 4.7(d)(i) Certificate
Exhibit 5.1(a)(ii) Form of Subsidiary Guaranty
Exhibit 5.1(a)(iii) Form of Security Agreement
Exhibit 5.1(b)(i).Form of Perfection Certificate
Exhibit 5.1(d).... Form of Opinion
Exhibit 5.1(e)(i).Form of Officer's Certificate
Exhibit 5.1(e)(ii) Form of Secretary's Certificate
Exhibit 7.2(a).... Form of Compliance Certificate
Exhibit 7.2(g).... Form of Negative Covenant Report
Exhibit 12.8(c)...Form of Assignment and Assumption Agreement
Schedules
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Schedule 1.1(a)...Commitments
Schedule 5.1(a)(iv) Foreign Security Documents
Schedule 6.3...... Non-Governmental Approvals
Schedule 6.5(a)...Pro Forma Balance Sheet
Schedule 6.5(d)...Existing Indebtedness
Schedule 6.5(e)...Projections
Schedule 6.9...... Tax Returns and Payments
Schedule 6.10..... ERISA; Foreign Pension Plans
Schedule 6.11(c)..Real Estate Collateral
Schedule 6.11(d)..Foreign Security Document Filings
Schedule 6.14(a)..Capitalization of Company and Holdings
Schedule 6.15..... Subsidiaries
Schedule 6.19..... Environmental Claims
Schedule 7.8...... Insurance
Schedule 8.1(c)...Existing Liens
Schedule 8.7...... Existing Investments and Acquisitions
Schedule 8.13(a)..Permitted Subsidiary Encumbrances and Restrictions
Schedule 12.3..... Notice Addresses.
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated as of June 21, 2004 and is made by and among U.S. Can Corporation, a Delaware
corporation ("Holdings"), United States Can Company, a Delaware corporation ("Company"), the undersigned financial institutions,
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including Deutsche Bank Trust Company Americas, in their capacities as lenders hereunder (collectively, the "Lenders," and each
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individually, a "Lender"), and Deutsche Bank Trust Company Americas, as administrative agent ("Administrative Agent") for the Lenders.
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W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Company has requested that the Lenders (i) make term loans to Company in the aggregate principal amount of
$250.0 million maturing on January 15, 2010 (automatically extended to June 21, 2011 if the Note Refinancing Condition is satisfied)
and (ii) provide a revolving credit facility to Company in an aggregate amount not to exceed $65.0 million at any time outstanding
and maturing on June 21, 2009;
WHEREAS, the proceeds of the term loans described above will be used by Company to repay in full all material
indebtedness for money borrowed of Holdings and its Subsidiaries other than Holdings' existing Series B Notes, Company's existing
Secured Notes, Company's existing Subordinated Notes and other indebtedness of Company and its Subsidiaries to remain outstanding not
to exceed $16.5 million in the aggregate (the "Refinancing");
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WHEREAS, the proceeds of the revolving credit facility described above will be used by Company for ongoing working
capital and general corporate purposes; and
WHEREAS, the Lenders are willing to extend commitments to make the term loans and the revolving credit loans to
Company for the purposes specified above and only on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained and, among other
things, (i) the assignment of and the grant of a security interest in the Collateral by Holdings, Company and their Domestic
Subsidiaries in favor of Administrative Agent for the benefit of the Lenders pursuant to the Security Agreement and (ii) the granting
of mortgages by Company and its Domestic Subsidiaries in the Mortgaged Property pursuant to the Mortgages, the parties hereto agree
as follows:
1.
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions. As used herein, and unless the context requires a different meaning, the following terms have the meanings
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indicated:
"Accounts Receivable" means presently existing and hereafter arising or acquired accounts receivable, notes, drafts,
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acceptances, general intangibles, choses in action and other forms of obligations and receivables relating in any way to Inventory or
arising from the sale of Inventory or the rendering of services by Company or its Subsidiaries, or howsoever otherwise arising,
including the right to payment of any interest or finance charges with respect thereto and all proceeds of insurance with respect
thereto, together with all of Company's or its Subsidiaries' rights as an unpaid vendor, all pledged assets, guaranty claims, liens
and security interests held by or granted to Company or its Subsidiaries to secure payment of any Accounts Receivable and all books,
customer lists, ledgers, records and files (whether written or stored electronically) relating to any of the foregoing.
"Acquisition" means (i) the purchase by a Person of all or substantially all of a business or business unit
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conducted by another Person or (ii) the merger, consolidation or amalgamation of any Person with any other Person.
"Additional Security Documents" means all mortgages, pledge agreements, security agreements and other security
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documents entered into pursuant to Section 7.11 with respect to additional Collateral, in each case, as amended, supplemented or
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otherwise modified from time to time.
"Adjusted Working Capital" means the difference between (i) Consolidated Current Assets and (ii) Consolidated
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Current Liabilities excluding from Consolidated Current Liabilities all short-term borrowings, the current portion of long-term
indebtedness, the current portion of deferred income taxes and the current portion of Capitalized Lease Obligations.
"Administrative Agent" has the meaning assigned to that term in the introduction to this Agreement and any successor
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Administrative Agent in such capacity.
"Affiliate" means, with respect to any Person, any Person or group acting in concert in respect of the Person in
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question that, directly or indirectly, controls or is controlled by or is under common control with such Person provided that neither
DB nor any Affiliate of DB shall be deemed to be an Affiliate of any Credit Party. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any Person
or group of Persons, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management
and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. A Person shall be
deemed to control a corporation if such Person possesses, directly or indirectly, the power to vote 10% or more of the securities
having ordinary voting power for the election of directors of such corporation.
"Agreement" means this Credit Agreement, as the same may at any time be amended, supplemented or otherwise modified
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in accordance with the terms hereof and in effect.
"Applicable Base Rate Margin" means at any date, (i) with respect to Revolving Loans, 2.50% and (ii) with respect to
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Term B Loans, 2.50%.
"Applicable Commitment Fee Percentage" means at any date, 0.50%.
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"Applicable Eurocurrency Margin" means at any date, (i) with respect to Revolving Loans 3.50% and (ii) with respect
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to Term B Loans, 3.50%.
"Asset Disposition" means any sale, lease, transfer or other disposition (or series of related sales, leases,
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transfers or dispositions) of all or any part of an interest in shares of Capital Stock of a Subsidiary of Company (other than
directors' qualifying shares) and similar arrangements required by Requirements of Law, property or other assets (each referred to
for the purposes of this definition as a "disposition") by Company or any of its Subsidiaries.
"Assignee" has the meaning assigned to that term in Section 12.8(c).
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"Assignment and Assumption Agreement" means an Assignment and Assumption Agreement substantially in the form of
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Exhibit 12.8(c) annexed hereto and made a part hereof made by any applicable Lender, as assignor, and such Lender's assignee in
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accordance with Section 12.8.
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"Attorney Costs" means all reasonable fees and disbursements of any law firm or other external counsel and,
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following the occurrence and during the continuance of an Event of Default, the reasonable allocated cost of internal legal services,
including all reasonable disbursements of internal counsel.
"Attributable Debt" means as of the date of determination thereof, without duplication, the principal balance
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outstanding under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing
product to which such Person is a party, where such transaction is considered borrowed money indebtedness for tax purposes but is
classified as an operating lease in accordance with GAAP.
"Available Revolving Commitment" means, as to any Lender at any time an amount equal to the excess, if any, of (a)
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such Lender's Revolving Commitment over (b) the sum of (i) the aggregate of then outstanding Revolving Loans made by such Lender and
(ii) such Lender's Revolver Pro Rata Share of the LC Obligations and Swing Line Loans then outstanding.
"Bailee Letter" means a letter in favor of Administrative Agent and the Lenders which is executed by each bailee,
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warehouseman or consignee which may now or in the future hold any Collateral in its possession, in form and substance reasonably
satisfactory to Administrative Agent.
"Bankruptcy Code" means Title I of the Bankruptcy Reform Act of 1978, as amended, as set forth in Title 11 of the
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United States Code, as hereafter amended.
"Base Rate" means the greater of (i) the rate most recently announced by DB (or any other Person then acting as
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Administrative Agent) at its principal office as its "prime rate", which is not necessarily the lowest rate made available by DB (or
such other Person) or (ii) the Federal Funds Rate plus 1/2 of 1% per annum. The "prime rate" announced by DB (or such other Person)
is evidenced by the recording thereof after its announcement in such internal publication or publications as DB (or such other
Person) may designate. Any change in the interest rate resulting from a change in such "prime rate" announced by DB (or such other
Person) shall become effective without prior notice to Company as of 12:01 a.m. (New York City time) on the Business Day on which
each change in such "prime rate" is announced by DB (or such other Person). DB (or such other Person) may make commercial or other
loans to others at rates of interest at, above or below its "prime rate".
"Base Rate Loan" means any Loan which bears interest at a rate determined with reference to the Base Rate.
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"Benefited Lender" has the meaning assigned to that term in Section 12.6(a).
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"Berkshire Management Agreement" means that certain management agreement, dated as of October 4, 2000, between
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Company and Berkshire Partners, LLC.
"Berkshire Partners" means Berkshire Partners LLC and its Affiliates (other than Holdings and its Subsidiaries).
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"Board" means the Board of Governors of the Federal Reserve System.
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"Borrowing" means a group of Loans of a single Type made by the Lenders or the Swing Line Lender, as appropriate on
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a single date (or resulting from a conversion on such date) and in the case of Eurocurrency Loans, as to which a single Interest
Period is in effect, provided that Base Rate Loans or Eurocurrency Loans incurred pursuant to Section 3.7 shall be considered part of
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any related Borrowing of Eurocurrency Loans.
"Business Day" means as it relates to any payment, determination, funding or notice to be made or given to or from
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Administrative Agent, a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or
required by law to close; provided, however, that when used in connection with a Eurocurrency Loan, the term "Business Day" shall
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also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" means, without duplication, with respect to any Person, any amounts expended during or in
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respect of a period for any purchase or other acquisition for value of any asset that should be classified on a consolidated balance
sheet of such Person prepared in accordance with GAAP as property, plant or equipment, and shall include Capitalized Leases, but
shall exclude any Capital Expenditures arising as part of any Permitted Acquisition.
"Capital Stock" means, with respect to any Person, any and all shares, interests, participations, rights in or other
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equivalents (however designated) of such Person's capital stock, partnership interests, membership interests or other equivalent
interests and any rights (other than debt securities convertible into or exchangeable for capital stock), warrants or options
exchangeable for or convertible into such capital stock or other equity interests.
"Capitalized Lease" means, at the time any determination thereof is to be made, any lease of property, real or
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personal, in respect of which the present value of the minimum rental commitment is capitalized on the balance sheet of the lessee in
accordance with GAAP.
"Capitalized Lease Obligation" means, at the time any determination thereof is to be made, the amount of the
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liability in respect of a Capitalized Lease which would at such time be so required to be capitalized on the balance sheet of the
lessee in accordance with GAAP.
"Cash" means money, currency or the available credit balance in Dollars, Canadian Dollars, Euros or another currency
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that, in the opinion of Administrative Agent, is at such time freely transferable and freely convertible into Dollars.
"Cash Equivalents" means (i) any evidence of indebtedness, maturing not more than one year after the date of issue,
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issued by the United States of America or any instrumentality or agency thereof, the principal, interest and premium, if any, of
which is guaranteed fully by, or backed by the full faith and credit of, the United States of America, (ii) Dollar, Canadian Dollar
or Euro denominated (or other foreign currency fully hedged) time deposits, certificates of deposit and bankers acceptances maturing
not more than one year after the date of purchase, issued by (x) any Lender or (y) a commercial banking institution having, or which
is the principal banking subsidiary of a bank holding company having, combined capital and surplus and undivided profits of not less
than $200,000,000 and a commercial paper rating of "P-1" (or higher) according to Xxxxx'x "A-1" (or higher) according to S&P or the
equivalent rating by any other nationally recognized rating agency in the United States (any such bank, an "Approved Bank"), or (z) a
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non-United States commercial banking institution which is either currently ranked among the 100 largest banks in the world (by
assets, according to the American Banker), has combined capital and surplus and undivided profits of not less than $500,000,000 or
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whose commercial paper (or the commercial paper of such bank's holding company) has a rating of "P-1" (or higher) according to
Xxxxx'x, "A-1" (or higher) according to S&P or the equivalent rating by any other nationally recognized rating agency, (iii)
commercial paper, maturing not more than one year after the date of purchase, issued or guaranteed by a corporation (other than
Company or any Subsidiary of Company or any of their respective Affiliates) organized and existing under the laws of any state within
the United States of America with a rating, at the time as of which any determination thereof is to be made, of "P-1" (or higher)
according to Xxxxx'x, or "A-1" (or higher) according to S&P, (iv) demand deposits with any bank or trust company maintained in the
ordinary course of business, (v) repurchase or reverse repurchase agreements covering obligations of the type specified in clause (i)
with a term of not more than seven days with any Approved Bank and (vi) shares of any money market mutual fund rated at least AAA or
the equivalent thereof by S&P or at least Aaa or the equivalent thereof by Xxxxx'x, including, without limitation, any such mutual
fund managed or advised by any Lender or Administrative Agent.
"Change in Law" means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or
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taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule regulation or treaty or in the administration,
interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.
"Change of Control" means (i) the sale, lease or transfer of all or substantially all of Holding's or Company's
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assets to any Person or group (as such term is used in Section 13(d)(3) of the Exchange Act), (ii) the liquidation or dissolution of
Holdings or Company, (iii) any person or group of persons (within the meaning of the Exchange Act) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the SEC under the Exchange Act) of a greater percentage of the Voting
Securities of Holdings than Berkshire Partners or (a) prior to a Qualified IPO, Berkshire Partners shall fail to beneficially own,
directly or indirectly, at least 40% of the outstanding Voting Securities of Holdings or (b) after a Qualified IPO, Berkshire
Partners shall fail to beneficially own, directly or indirectly, at least 25% of the outstanding Voting Securities of Holdings (in
each case on a fully diluted basis), (iv) during any period of twenty-four consecutive calendar months, individuals who at the
beginning of such period constituted Holdings' board of directors (together with any new directors (a) whose election by Holding's
board of directors or whose nomination for election by Holding's stockholders was approved by a vote of at least a majority of the
directors then still in office who either were directors at the beginning of such period or whose election or nomination for election
was previously so approved or (b) elected by Berkshire Partners) cease for any reason other than death or disability to constitute a
majority of the directors then in office, (v) Holdings shall cease to own 100% of the Voting Securities of Company, or (vi) any
"Change of Control" (as such term is defined in any Permitted Debt Document) or (vii) any "Change of Control" as defined in any
Indebtedness incurred pursuant to Section 8.2(o) to the extent such event causes the holder to demand payment or causes any Credit
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Party to be obligated to make any payment with respect thereto.
"Code" means the Internal Revenue Code of 1986, as from time to time amended, including the regulations proposed or
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promulgated thereunder, or any successor statute and the regulations proposed or promulgated thereunder.
"Collateral" means all "Collateral" as defined in each of the Security Documents and all other assets of each Credit
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Party pledged pursuant to any Security Document
"Collateral Account" has the meaning assigned to that term in Section 4.4(a).
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"Collateral Agent" means DB acting as collateral agent for the Secured Creditors pursuant to its appointment as
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Collateral Agent in Section 11.1 or in any Security Document, and any successor collateral agent in such capacity.
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"Commercial Letter of Credit" means any letter of credit or similar instrument issued for the account of Company
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pursuant to this Agreement for the purpose of supporting trade obligations of Company or any of its Subsidiaries in the ordinary
course of business.
"Commitment" means, with respect to each Lender, the aggregate of the Revolving Commitment and the Term Commitments
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of such Lender and "Commitments" means such commitments of all of the Lenders collectively.
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"Commitment Fee" has the meaning assigned to that term in Section 3.2(b).
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"Commitment Period" means, the period from and including the date hereof to but not including the Revolver
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Termination Date or, in the case of the Swing Line Commitment, five (5) Business Days prior to the Revolver Termination Date.
"Common Stock" means the common stock of Holdings, $10.00 per share par value.
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"Company" has the meaning assigned to that term in the introduction to this Agreement.
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"Compliance Certificate" has the meaning assigned to that term in Section 7.2(a).
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"Consolidated Capital Expenditures" means, for any Person, for any period, the aggregate of all Capital Expenditures
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by such Person and its Subsidiaries determined on a consolidated basis in accordance with GAAP during that period.
"Consolidated Cash Interest Expense" means, for any Person, for any period, Consolidated Interest Expense of such
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Person and its Subsidiaries in accordance with GAAP, but excluding, however, interest expense not payable in cash, amortization of
discount and deferred financing costs.
"Consolidated Current Assets" means, for any Person, as at the time any determination thereof is to be made, the
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amount, without duplication, that is classified on a balance sheet of such Person and its Subsidiaries on a consolidated basis as the
current assets of such Person and its Subsidiaries in accordance with GAAP.
"Consolidated Current Liabilities" means, for any Person, as at the time any determination thereof is to be made,
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the amount, without duplication, that is classified on a balance sheet of such Person and its Subsidiaries, as the current
liabilities of such Person and its Subsidiaries on a consolidated basis in accordance with GAAP, but excluding deferred income taxes
and the current portion of and accrued but unpaid interest on any Indebtedness under this Agreement and any other long-term
Indebtedness which would otherwise be included therein and the current portion of any reserve or accrual established in connection
with a non-cash charge added back to Consolidated EBITDA.
"Consolidated Debt" means, for any Person, as at the time any determination thereof is to be made, (i) all
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Indebtedness of such Person and its Subsidiaries determined on a consolidated basis to the extent classified on a balance sheet of
such Person and its Subsidiaries as liabilities in accordance with GAAP (but excluding Indebtedness related to Permitted Preferred
Stock and Common Stock to the extent such amount is characterized as debt due to SFAS 150) plus (ii) all Attributable Debt of such
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Person and its Subsidiaries determined on a consolidated basis.
"Consolidated EBITDA" means, for any Person, for any period, the sum of the amounts for such period, without
--------------------
duplication, of:
(i) Consolidated Net Income,
plus (ii) to the extent deducted in computing Consolidated Net Income the sum of:
----
(a) Consolidated Interest Expense,
plus(b) charges against income for foreign, federal, state and local taxes in each case based on income and for
----
franchise taxes,
plus(c) depreciation expense,
----
plus (d) amortization expense, including, without limitation, amortization of good will and other
----
intangible assets, fees, costs and expenses in connection with the execution, delivery and
performance of any of the Transaction Documents and other fees, costs and expenses in connection
with Permitted Acquisitions,
plus (e) write-off of deferred financing costs originally incurred in connection with Indebtedness being
----
repaid under the Refinancing,
plus (f) any non-cash charges resulting from any write-down of assets,
----
plus (g) any restructuring charges not payable in cash in such period,
----
plus (h) cash charges incurred (1) on or prior to June 30, 2006 not to exceed (i) $1,200,000 for
----
termination payments due to Mr. Xxxx Xxxxxxx and (ii) $4,000,000 for restructuring costs and
expenses to the extent incurred in connection with plant closings or other rationalization of
business assets and (2) prior to the Initial Borrowing Date not to exceed $1,500,000 for payments
associated with planned headcount reductions in France and Germany, of which $522,000 was incurred
in the first Fiscal Quarter of the 2004 Fiscal Year and $976,000 was incurred in the second Fiscal
Quarter of the 2004 Fiscal Year,
plus (i) Management Fees paid to Berkshire Partners to the extent permitted to be paid pursuant to
----
Section 8.5(e),
--------------
minus (iii) to the extent added in computing Consolidated Net Income the sum of
-----
(a) the gain (or plus the loss) (net of any tax effect) resulting from the sale of any capital assets
----
other than in the ordinary course of business
plus (b) extraordinary or non-cash nonrecurring after-tax gains (or minus extraordinary or non-cash
---- -----
nonrecurring after-tax losses)
plus (c) any gain resulting from any write-up of assets (other than with respect to any company owned life
----
insurance program);
in each case calculated on a consolidated basis for the applicable period in accordance with GAAP; provided, however, if any non-cash
-------- -------
charge or loss added back in determining Consolidated EBITDA required a reserve or accrual for a potential future cash expenditure,
Consolidated EBITDA shall be decreased by the amount of any such cash expenditure in the period such expenditure is made.
"Consolidated First Lien Debt" means, for any Person, as at the time any determination thereof is to be made and
-----------------------------
without duplication, the sum of (i) all Consolidated Debt of such Person that is secured by Liens senior to or pari passu with the
Liens granted under the Security Documents and (ii) all Obligations under this Agreement.
"Consolidated Interest Expense" means, for any Person, for any period, the sum of total interest expense (including
------------------------------
that attributable to Capitalized Leases in accordance with GAAP) of such Person and its Subsidiaries on a consolidated basis with
respect to all outstanding Indebtedness of such Person and its Subsidiaries, including, without limitation, all commissions,
discounts and other fees and charges owed with respect to letters of credit and bankers' acceptance financing, all as determined on a
consolidated basis for such Person and its Subsidiaries in accordance with GAAP plus the interest component of any lease payments
----
under Attributable Debt transactions of such Person and its Subsidiaries minus total interest income of such Person and its
-----
Subsidiaries on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" and "Consolidated Net Loss" mean, respectively, for any Person, for any period, the
------------------------ ----------------------
aggregate of the net income (loss) of such Person for such period, determined in accordance with GAAP on a consolidated basis,
provided that there shall be excluded the net income (loss) of any other Person in which such Person or any of its Subsidiaries has
an interest (which interest does not cause the net income of such other Person to be consolidated with the net income of such Person
and its Subsidiaries in accordance with GAAP), except to the extent of the amount of dividends or other distributions actually paid
to Company or any of its Wholly-Owned Subsidiaries by such Person during such period.
"Consolidated Senior Secured Debt" means, for any Person, as at the time any determination thereof is to be made and
--------------------------------
without duplication, the sum of (i) all Consolidated Debt of such Person that is secured by Liens (except Indebtedness that is
expressly subordinated to the Obligations and the obligations under the Secured Notes (or any Permitted Refinancing thereof)) and
(ii) all Obligations under this Agreement.
"Contaminant" means any material with respect to which any Environmental Law imposes a duty, obligation or standard
-----------
of conduct, including without limitation any pollutant, contaminant (as those terms are defined in 42 X.X.X.xx. 9601(33)), toxic
pollutant (as that term is defined in 33 U.S.C.ss.1362(13)), hazardous substance (as that term is defined in 42 U.S.C.ss.9601(14)), or
hazardous waste (as that term is defined in 42 U.S.C.ss.6903(5)) including, without limitation polychlorinated biphenyls, asbestos
and petroleum, including crude oil or any derivative of fraction thereof.
"Contractual Obligation" means, as to any Person, any provision of any Securities issued by such Person or of any
-----------------------
indenture or credit agreement or any agreement, instrument or other undertaking to which such Person is a party or by which it or any
of its property is bound or to which it may be subject.
"Credit Event" means the making of any Loan or the issuance of any Letter of Credit.
------------
"Credit Party" means Company, Holdings, each Subsidiary Guarantor and any other guarantor which may hereafter enter
------------
into a guarantee agreement with respect to the Obligations.
"Customary Permitted Guarantees" means, for any Person, (i) Guarantee Obligations of such Person or any of its
--------------------------------
Subsidiaries of obligations of any other Person under leases, supply contracts and other contracts or warranties and indemnities, in
each case, not constituting Indebtedness of such Person, which have been or are undertaken or made in the ordinary course of business
by such Person or any of its Subsidiaries (including, without limitation, guarantees of leases and supply contracts entered into in
the ordinary course of business) and (ii) Guarantee Obligations with respect to surety, appeal and performance bonds obtained by such
Person or any of its Subsidiaries in the ordinary course of business, to the extent not constituting Indebtedness and for which the
liability with respect to such Guarantee Obligation is not required to be reflected on a balance sheet prepared in accordance with
GAAP or to the extent constituting such Indebtedness, such Indebtedness is less than $5,000,000 and is paid or discharged in full
within five (5) Business Days after the date so required to be reflected.
"Customary Permitted Liens" means, for any Person:
-------------------------
(i) Liens for taxes, duties, levies, imposts, deductions, assessments, charges, or withholding not yet due and payable or which
are being contested in good faith by appropriate actions, provided that provision for the payment of all such taxes, duties, levies,
imposts, deductions, assessments, charges, or withholdings known to such Person has been made on the books of such Person to the
extent required by GAAP and the aggregate claims secured by such Liens do not exceed $10,000,000;
(ii) mechanics', processor's, materialmen's, carriers', landlord's warehousemen's and similar Liens arising by operation of law
and arising in the ordinary course of business and securing obligations of such Person that are not overdue for a period of more than
60 days or are being contested in good faith by appropriate actions, provided that (A) any proceedings commenced for the enforcement
of such Liens shall have been stayed or suspended within 90 days of the commencement thereof and (B) provision for the payment of
such Liens has been made on the books of such Person to the extent required by GAAP;
(iii) Liens arising in connection with worker's compensation, unemployment insurance, pensions and social security benefits which
are not overdue or are being contested in good faith by appropriate actions, provided that provision for the payment of such Liens
has been made on the books of such Person to the extent required by GAAP;
(iv) Liens incurred or deposits made in the ordinary course of business to secure the performance of bids, tenders, statutory
obligations, fee and expense arrangements with trustees and fiscal agents (exclusive of obligations incurred in connection with the
borrowing of money or the payment of the deferred purchase price of property) and customary deposits granted in the ordinary course
of business under Operating Leases and (B) Liens securing surety, indemnity, performance, appeal and release bonds, provided that
full provision for the payment of all such obligations has been made on the books of such Person to the extent required by GAAP;
(v) Permitted Real Property Encumbrances;
(vi) attachment, judgment or other similar Liens arising in connection with court or arbitration proceedings involving
individually and in the aggregate liability which does not constitute an Event of Default under Section 10.1(i);
---------------
(vii) leases or subleases granted to others not interfering in any material respect with the business of such Person or any of its
Subsidiaries and any interest or title of a lessor or sublessor under any lease or sublease permitted by this Agreement or the
Security Documents;
(viii) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person's obligations in
respect of bankers' acceptances issued or created for the account of such Person to facilitate the purchase shipment or storage of
such inventory or other goods;
(ix) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other
property relating to such letters of credit and products and proceeds thereof;
(x) Environmental Liens to the extent that (A) any proceeds commenced for the enforcement of such Liens shall have been
suspended or are being contested in good faith, (B) provision for all liability and damages that are the subject of said
Environmental Liens has been made on the books of such Person to the extent required by GAAP and (C) such Liens do not relate to
obligations exceeding $2,000,000 in the aggregate at any one time;
(xi) customary rights of set off, revocation, refund or chargeback under deposit agreements or under the UCC (or comparable
foreign law) of banks or other financial institutions where Company or its Subsidiaries maintain deposits in the ordinary course of
business permitted by this Agreement;
(xii) Liens on any xxxx xxxxxxx money deposits made by Company or any of its Subsidiaries in connection with any letter of intent
or purchase agreement to the extent the Acquisition or other transaction contemplated thereby would be permitted under this Agreement;
(xiii) Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases of personal
property entered into in the ordinary course of business; and
(xiv) Licenses of patents, trademarks and other intellectual property rights granted by Company or any of its Subsidiaries in the
ordinary course of business and not interfering in any material respect with the ordinary conduct of the business of Company or such
Subsidiary.
"DB" means Deutsche Bank Trust Company Americas, a New York banking corporation, and its successors.
--
"Debt Agreements" has the meaning assigned to that term in Section 5.1(e).
--------------- --------------
"Default Rate" means a variable rate per annum which shall be two percent (2%) per annum plus either (i) the then
------------- ----
applicable interest rate hereunder in respect of the amount on which the Default Rate is being assessed or (ii) if there is no such
applicable interest rate, the Base Rate plus the Applicable Base Rate Margin, but in no event in excess of that permitted by
applicable law.
"Defaulting Lender" means any Lender with respect to which a Lender Default is in effect.
-----------------
"Deposit Account" means a demand, time, savings, passbook or like account with a bank, savings and loan association,
---------------
credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.
"Dividend" means any dividend or distribution paid or made by a Person to the direct or indirect holders of its
--------
Capital Stock on or in respect of such Capital Stock.
"Documents" means the Loan Documents, the Permitted Debt Documents, the Series B Note Documents and the Transaction
---------
Documents.
"Dollar" and "$" means lawful money of the United States of America.
------ -
"Domestic Security Documents" means the Security Agreement, each Mortgage executed by a Credit Party and each other
---------------------------
security agreement or other instrument or document executed and delivered by a Credit Party pursuant to Section 7.11, in each case,
------------
as amended, supplemented or otherwise modified from time to time.
"Domestic Subsidiary" means any Subsidiary other than a Foreign Subsidiary.
-------------------
"Drawing" has the meaning set forth in Section 2.8(d)(ii).
------- ------------------
"Effective Amount" means (a) with respect to any Loans on any date, the aggregate outstanding principal amount
-----------------
thereof after giving effect to any Borrowings and prepayments or repayments of Loans occurring on such date; and (b) with respect to
any outstanding LC Obligations on any date, the amount of such LC Obligations on such date after giving effect to any issuances of
Letters of Credit occurring on such date and any other changes in the aggregate amount of the LC Obligations as of such date,
including as a result of any reimbursements of outstanding unpaid drawings under any Letters of Credit or any reductions in the
maximum amount available for drawing under Letters of Credit taking effect on such date.
"Effective Date" has the meaning assigned to that term in Section 12.7.
-------------- ------------
"Eligible Assignee" means (i) a commercial bank, financial institution, financial company, Fund or insurance company
-----------------
in each case, together with its Affiliates or Related Funds, which extends credit or buys loans in the ordinary course of its
business or (ii) any other Person approved by the Administrative Agent and the Company, such approval not to be unreasonably withheld.
"Employment Agreements" has the meaning assigned to that term in Section 5.1(e).
--------------------- --------------
"Environmental Claim" means any notice of violation, claim, suit, demand, abatement order or other order or
--------------------
direction (conditional or otherwise) by any Governmental Authority or any Person for any damage, personal injury (including sickness,
disease or death), tangible or intangible property damage, contribution, cost recovery, or any other common law claims, indemnity,
indirect or consequential damages, damage to the environment, nuisance, cost recovery, or any other common law claims, pollution,
contamination or other adverse effects on the environment, human health, or natural resources, or for fines, penalties, restrictions
or injunctive relief, resulting from or based upon (a) the occurrence or existence of a Release or substantial threat of a material
Release (whether sudden or non-sudden or accidental or non-accidental) of, or exposure to, any Contaminants in, into or onto the
environment at, in, by, from or related to the Premises, (b) the use, handling, generation, transportation, storage, treatment or
disposal of Contaminants in connection with the operation of any Premises, or (c) the violation, or alleged violation, of any
Environmental Laws connected with Company's operations or any Premises.
"Environmental Laws" means any and all applicable foreign, federal, state or local laws, statutes, ordinances,
-------------------
codes, rules, regulations, orders, decrees, judgments, directives, or Environmental Permits and cleanup or action standards, levels
or objectives imposing liability or standards of conduct for or relating to the protection of health, safety or the environment,
including, but not limited to, the following statutes as now written and hereafter amended: the Water Pollution Control Act, as
codified in 33 U.S.C.ss.1251 et seq., the Clean Air Act, as codified in 42 X.X.X.xx. 7401 et seq., the Toxic Substances Control Act,
------ ------
as codified in 15 X.X.X.xx. 2601 et seq., the Solid Waste Disposal Act, as codified in 42 X.X.X.xx. 6901 et seq., the Comprehensive
------ ------
Environmental Response, Compensation and Liability Act, as codified in 42 U.S.C.ss.9601 et seq., the Emergency Planning and Community
------
Right-to-Know Act of 1986, as codified in 42 X.X.X.xx. 11001 et seq., and the Safe Drinking Water Act, as codified in 42 U.S.C.ss.300f
------
et seq., and any related regulations, as well as all state and local equivalents.
-------
"Environmental Lien" means a Lien in favor of any Governmental Authority for (i) any liability under Environmental
-------------------
Laws, or licenses, authorizations, or directions of any Government Authority or court, or (ii) damages relating to, or costs incurred
by such Governmental Authority in response to, a Release or threatened Release of a Contaminant into the environment.
"Environmental Permits" means any and all permits, licenses, certificates, authorizations or approvals of any
----------------------
Governmental Authority required by Environmental Laws and necessary or reasonably required for the current operation of the business
of Company or any of its Subsidiaries.
"Environmental Study" means those certain environmental assessments, and documents upon which such assessments are
--------------------
based, of certain of the Mortgaged Properties, prepared by an environmental consulting firm reasonably acceptable to Administrative
Agent with regard to the existing and potential liability of any Credit Party under any Environmental Laws, including a review of
compliance with Environmental Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974, as from time to time amended.
-----
"ERISA Affiliate" means, with respect to any Person, any trade or business (whether or not incorporated) which,
----------------
together with such Person, is under common control as described in Section 414(c) of the Code, is a member of a "controlled group",
as defined in Section 414(b) of the Code, which includes such Person, or is treated as a single employer with such Person under
Sections 414(m) or (o) of the Code. Unless otherwise qualified, all references to an "ERISA Affiliate" in this Agreement shall refer
to an ERISA Affiliate of a Credit Party or any of its Subsidiaries.
"Eurocurrency Loan" means any Loan bearing interest at a rate determined by reference to the Eurocurrency Rate.
-----------------
"Eurocurrency Rate" means the arithmetic average (rounded upwards, if necessary, to the nearest 1/100th of 1%) of
------------------
the rate per annum obtained by dividing (i) the offered quotation, if any, to first-class banks in the interbank eurocurrency market
by DB (or any other Person then acting as Administrative Agent) for Dollar deposits of amounts in immediately available funds
comparable to the principal amount of the Eurocurrency Rate Loan to be made by DB (or such other Person) with maturities comparable
to such Interest Period, determined as of approximately 10:00 a.m. (New York City time) on the Interest Rate Determination Date, by
(ii) a percentage equal to 100% minus the stated maximum rate (expressed as a percentage) as prescribed by the Board of all reserve
requirements (including, without limitation, any marginal, emergency, supplemental, special or other reserves and all reserves
required to be maintained against "Eurocurrency liabilities" as specified in Regulation D (or any successor regulation)) applicable
on the first day of such Interest Period to any member bank of the Federal Reserve System in respect of Eurocurrency funding or
liabilities. The determination of the Eurocurrency Rate by Administrative Agent shall be conclusive and binding on Company absent
manifest error.
"Eurodollar Loan" means any Loan which bears interest at a rate determined with reference to the Eurodollar Rate.
---------------
"Event of Default" has the meaning assigned to that term in Section 10.1.
---------------- ------------
"Excess Cash Flow" means, for any period, an amount equal to Company's and its Subsidiaries':
----------------
(i) Consolidated EBITDA for such period,
minus (ii) franchise taxes and foreign, federal, state and local taxes, in each case based on income, paid in
-----
cash for such period by Company or its Subsidiaries,
minus (iii) Consolidated Capital Expenditures paid in cash during such period to the extent not financed by
-----
Indebtedness (including Capitalized Lease Obligations but excluding Loans hereunder or under overdraft lines permitted by this
Agreement) plus (or minus if negative) (2) the Rollover Amount for such period to be carried forward to the next period less the
Rollover Amount (if any) for the preceding period carried forward to the current period,
minus (iv) Dividends constituting Restricted Payments paid in cash by Company or its Subsidiaries during such
-----
period to the extent permitted pursuant to Section 8.5,
-----------
minus (v) Consolidated Cash Interest Expense during such period,
-----
minus (vi) scheduled amortization of the principal portion of the Term Loans and scheduled amortization of
-----
the principal portion of all other Indebtedness of Company and its Subsidiaries paid in cash during such period (other than repayment
of Indebtedness with proceeds of issuance of other Indebtedness or equity contributions or with Net Sale Proceeds or proceeds from
Recovery Events),
minus (vii) voluntary prepayments of the principal portion of the Term Loans, in each case calculated in
-----
accordance with GAAP,
plus (viii) the decrease, if any, in Adjusted Working Capital from the first day to the last day of such
----
period,
minus (ix) the increase, if any, in Adjusted Working Capital from the first day to the last day of such
-----
period,
minus (x) cash charges added back to Consolidated EBITDA in such period pursuant to clause (ii)(h) of the
-----
definition thereof,
minus (xi) Management Fees added back to Consolidated EBITDA in such period pursuant to clause (ii)(i) of the
-----
definition thereof,
minus (xii) the amount of cash expended in respect of Permitted Acquisitions during such period, except to the
-----
extent financed with Indebtedness;
in each case, calculated without duplication and on a consolidated basis in accordance with GAAP.
"Excess Cash Flow Period" means, with respect to the repayment required on each Excess Cash Payment Date, the
------------------------
immediately preceding Fiscal Year of Company.
"Excess Cash Payment Date" means the date occurring 90 days after the last day of a Fiscal Year of Company
---------------------------
(beginning with its Fiscal Year ending on December 31, 2004).
"Exchange Act" means the Securities Exchange Act of 1934, as amended and as codified in 15 U.S.C. 78a et seq., and
------------- -- ---
as hereafter amended.
"Excluded Equity Issuances" means any sale or issuance of (a) Capital Stock of Company or any of its Subsidiaries to
--------------------------
Holdings or any of its Subsidiaries to the extent such Investment by Holdings or such Subsidiary is permitted under Section 8.7 and
-----------
such issuance is permitted under Section 8.6, (b) Capital Stock of Holdings to any Person to the extent a Responsible Officer of
-----------
Holdings delivers a certificate to Administrative Agent on or prior to the date of such issuance stating that such Net Offering
Proceeds shall be used for either a Permitted Acquisition or used for or committed to be used for a Capital Expenditure permitted
pursuant to Section 9.1, in either case, within 30 days following the date of such issuance (which certificate shall set forth the
-----------
estimates of the proceeds to be so expended); provided, that if all or any portion of such Net Offering Proceeds are not so used or
--------
committed to be used within such 30 day period following receipt thereof, such remaining portion shall be applied to repayment of the
Loans as provided in Section 4.4(e), (c) Capital Stock of Holdings to Berkshire Partners or (d) Capital Stock of Holdings to
---------------
management and employees of Holdings and its Subsidiaries in connection with employee incentive plans.
"Excluded Taxes" means
--------------
(i) taxes based upon, or measured by, the Lender's or Administrative Agent's (or a branch of the
Lender's or Administrative Agent's) overall net income, overall net receipts, or overall net profits (including franchise taxes
imposed in lieu of such taxes), but only to the extent such taxes are imposed by a Governmental Authority (A) in a jurisdiction in
which such Lender or Administrative Agent is organized, (B) in a jurisdiction which the Lender's or Administrative Agent's principal
office is located, (C) in a jurisdiction in which such Lender's or Administrative Agent's lending office (or branch) in respect of
which payments under this Agreement are made is located or (D) in any jurisdiction as a result of a present or former connection
between such Lender or Administrative Agent and such jurisdiction (other than any such connection arising from such Lender or
Administrative Agent having executed, delivered or performed its obligations or received a payment under, or enforced, any of the
Loan Documents or otherwise participating in the transactions contemplated by the Loan Documents); and
(ii) any branch profits taxes imposed by the United States of America or any similar tax imposed by any
other jurisdiction in which the Lender or Administrative Agent is organized; and
(iii) taxes imposed on a Lender or Administrative Agent by means of withholding at the source to the
extent such taxes would have not been imposed under applicable law if such Lender or Administrative Agent had complied with the
Section 4.7(d); and
-------------
(iv) in the case of a Non-U.S. Participant (other than an assignee pursuant to a request by the
Company), any withholding taxes that are imposed on amounts payable to such Non-U.S. Participant at the time such Non-U.S.
Participant becomes a party hereto, except to the extent such Non-U.S. Participant is an assignee of a Lender that was entitled, at
the time of the assignment, to receive additional amounts from the Company with respect to such withholding tax pursuant to Section
4.7.
"Facility" means any of the credit facilities established under this Agreement.
--------
"Facing Agent" means DB, or any of its affiliates including but not limited to Deutsche Bank AG, New York Branch in
------------
its capacity as issuer of Letters of Credit and any other Revolving Lender which at the request of Company and with the consent of
Administrative Agent (not to be unreasonably withheld) agrees to issue Letters of Credit, in its capacity as an issuer of Letters of
Credit. On the Initial Borrowing Date the only Facing Agent will be DB.
"Federal Funds Rate" means on any one day, the rate per annum equal to the weighted average (rounded upwards, if
-------------------
necessary, to the nearest 1/100th of 1%) of the rate on overnight federal funds transactions with members of the Federal Reserve
System only arranged by federal funds brokers, as published as of such day by the Federal Reserve Bank of New York, or, if such rate
is not so published, the average of the quotations for such day on such transactions received by Administrative Agent from three
federal funds brokers of recognized standing selected by Administrative Agent.
"Fee Letter" means that certain letter agreement dated May 12, 2004 between DB and Deutsche Bank Securities Inc. and
----------
Company and providing for the payment of certain fees in connection with this Agreement.
"First Lien Leverage Ratio" means, for any Test Period, the ratio of Consolidated First Lien Debt of Holdings and
-------------------------
its Subsidiaries as of the last day of such Test Period to Consolidated EBITDA of Holdings and its Subsidiaries for such Test Period.
"Fiscal Quarter" means a quarterly accounting period ending on December 31st and the Sunday nearest each of March
---------------
31st, June 30th and September 30th of each Fiscal Year.
"Fiscal Year" means an accounting period that begins January 1st and ends December 31st.
-----------
"Foreign Investment" means any (a) Investment by a Credit Party in a Foreign Subsidiary, (b) purchase by a Credit
-------------------
Party of assets located outside of the United States (including the purchase of Capital Stock of a Person not domiciled in the United
States) (c) issuance of a Letter of Credit under this Agreement for the benefit of a Foreign Subsidiary or (d) incurrence of a
Guarantee Obligation by a Credit Party for the direct or indirect benefit of any Foreign Subsidiary.
"Foreign Pension Plan" means any plan, fund (including, without limitation, any super-annuation fund) or other
---------------------
similar program established or maintained outside of the United States of America by a Credit Party or one or more of its
Subsidiaries or its Affiliates primarily for the benefit of employees of the Credit Party or such Subsidiaries or its Affiliates
residing outside the United States of America, which plan, fund, or similar program provides or results in, retirement income or
results in a deferral of income for periods extending to the termination of covered employment or beyond, and which is not subject to
ERISA or the Code.
"Foreign Requirements of Law" means any Requirement of Law of a Governmental Authority in a foreign jurisdiction
-----------------------------
(including any exchange control, financial assistance, minimum capitalization, fraudulent conveyance, mandatory labor advice or
similar rules or regulations).
"Foreign Security Documents" means each pledge agreement, charge over shares or other document or instrument
----------------------------
identified on Schedule 5.1(a)(iv) executed and delivered for the benefit of the Collateral Agent and each other pledge agreement,
--------------------
charge over shares or other document or instrument executed and delivered pursuant to Section 7.11(d) to secure any of the
----------------
Obligations, in each case, as amended, supplemented or otherwise modified from time to time.
"Foreign Subsidiary" means any Subsidiary that is organized under the laws of a jurisdiction other than the United
-------------------
States of America or any state thereof or the District of Columbia.
"Former Premises" means, at any time, all real property formerly owned, leased or operated by Company or any of its
---------------
Subsidiaries.
"Formametal Acquisition" means the Acquisition by Company or its Subsidiaries of all of the Capital Stock of
-----------------------
Formametal, S.A., a company organized under the laws of Argentina not currently owned by Company and its Subsidiaries for a purchase
price not to exceed $2,750,000 plus earn-out payments of up to $5,000,000 over three years.
"Fund" means a Person that is a fund that invests in senior loans.
----
"GAAP" means generally accepted accounting principles in the U.S. as in effect from time to time.
----
"Government Acts" has the meaning assigned to that term in Section 2.8(h).
--------------- --------------
"Governmental Authority" means any nation or government, any intergovernmental or supranational body, any state or
-----------------------
other political subdivision thereof and any agency, authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative functions of government, any securities exchange
and any quasi-governmental self-regulatory organization (including the National Association of Insurance Commissioners).
"Guarantee Obligations" means, as to any Person, without duplication, any direct or indirect obligation of such
----------------------
Person guaranteeing or intended to guarantee any Indebtedness, Operating Lease, dividend or other obligation ("primary obligations")
of any other Person (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent: (i) to purchase any such primary obligation or any property constituting
direct or indirect security therefor; (ii) to advance or supply funds (a) for the purchase or payment of any such primary obligation,
or (b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor for the benefit of the owner of such primary obligation; (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such
primary obligation; or (iv) otherwise to assure or hold harmless the owner of such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligations shall not include any endorsements of instruments for deposit or
-------- -------
collection in the ordinary course of business. The amount of any Guarantee Obligation at any time shall be deemed to be an amount
equal to the lesser at such time of (a) the stated or determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made or (b) the maximum amount for which such Person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation; or, if not stated or determinable, the maximum reasonably anticipated liability (assuming full
performance) in respect thereof.
"Guaranteed Creditors" means and includes Administrative Agent, the Lenders and each Lender or an Affiliate of a
---------------------
Lender (even if such Lender ceases to be a Lender under this Agreement for any reason) which becomes a party to one or more Interest
Rate Agreements or Other Hedging Agreements entered into by Company or its Subsidiaries.
"Guaranteed Obligations" means (i) the principal and interest (whether such interest is allowed as a claim in a
-----------------------
bankruptcy proceeding with respect to Company or otherwise) on each Note issued by Company to each Lender, and all Loans made under
this Agreement and all reimbursement obligations and Unpaid Drawings with respect to Letters of Credit, together with all other
obligations (including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due)
and liabilities (including, without limitation, indemnities, fees and interest thereon) of Company to such Lender now existing or
hereafter incurred under, arising out of or in connection with this Agreement or any other Loan Documents and the due performance and
compliance with all terms, conditions and agreements contained in the Loan Documents by Company, and (ii) all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) of Company owing under
any Interest Rate Agreement or Other Hedging Agreement entered into by Company or any of their Subsidiaries with any Lender or any
Affiliate thereof (even if such Lender subsequently ceases to be a Lender under this Agreement for any reason) so long as such Lender
or Affiliate participates in such Interest Rate Agreement or Other Hedging Agreement, and their subsequent assigns, if any, whether
or not existing or hereafter arising, and the due performance and compliance with all terms, conditions and agreements contained
therein.
"Guarantors" means, collectively, Holdings, each Subsidiary Guarantor, and each Person (other than Administrative
----------
Agent or Collateral Agent) party to any Subsidiary Guaranty.
"Guaranty" means each Subsidiary Guaranty, and the guaranty by Holdings contained in Article XIII hereof.
--------
"Holdings" has the meaning assigned to that term in the introduction to this Agreement.
--------
"Indebtedness" means, as applied to any Person (without duplication):
------------
(i)~ all indebtedness of such Person for borrowed money;
(ii)~ the deferred and unpaid balance of the purchase price of assets or services purchased by such Person (other than trade
payables and other accrued liabilities incurred in the ordinary course of business that are not overdue by more than 90 days
unless being contested in good faith) which purchase price is (a) due more than six months from the date of incurrence of
the obligation in respect thereof or (b) evidenced by a note or a similar written instrument;
(iii)~ all Capitalized Lease Obligations of such Person;
(iv)~ all indebtedness secured by any Lien on any property owned by such Person, whether or not such indebtedness has been assumed
by such Person or is nonrecourse to such Person;
(v)~ notes payable and drafts accepted representing extensions of credit to such Person whether or not representing obligations
for borrowed money (other than such notes or drafts for the deferred purchase price of assets or services which does not
constitute Indebtedness pursuant to clause (ii) above);
(vi)~ indebtedness or obligations of such Person, in each case, evidenced by bonds, notes or similar written instruments;
(vii)~ the face amount of all letters of credit (other than trade letters of credit) and bankers' acceptances issued for the
account of such Person, and without duplication, all drafts drawn thereunder other than, in each case, commercial or standby
letters of credit or the functional equivalent thereof issued in connection with performance, bid or advance payment
obligations incurred in the ordinary course of business, including, without limitation, performance requirements under
workers compensation or similar laws;
(viii)~ all obligations of such Person under Interest Rate Agreements or Other Hedging Agreements;
(ix)~ Guarantee Obligations of such Person; and
(x)~ Attributable Debt of such Person.
"Indebtedness to Remain Outstanding" shall have the meaning assigned to that term in Section 6.5(d).
---------------------------------- --------------
"Indemnified Person" has the meaning assigned to that term in Section 12.4(b).
------------------ ---------------
"Independent Financial Advisor" means an accounting, appraisal, investment banking or consulting firm of nationally
-----------------------------
recognized standing that is, in the reasonable and good faith judgment of the board of directors of Company, qualified to perform the
task for which such firm has been engaged and disinterested and independent with respect to Company and its Affiliates.
"Initial Borrowing" means the first Credit Event under this Agreement.
-----------------
"Initial Borrowing Date" means the date of the Initial Borrowing.
----------------------
"Initial Loan" means the first Loan made by the Lenders under this Agreement.
------------
"Intellectual Property" has the meaning assigned to that term in Section 6.21.
--------------------- ------------
"Intercompany Indebtedness" means Indebtedness of Holdings, Company or any of their respective Subsidiaries which is
--------------------------
owing to any member of such group.
"Intercreditor Acknowledgement" has the meaning assigned to that term in Section 5.1(f)(iii).
----------------------------- -------------------
"Intercreditor Agreement" means that certain Lien Intercreditor Agreement dated as of July 22, 2003 among Xxxxx
------------------------
Fargo Bank Minnesota, National Association, as trustee for the holders of the Secured Notes, Administrative Agent (as successor to
Bank of America, N.A.), as Senior Agent, Company and the Guarantors identified therein, as amended, restated or otherwise modified in
accordance with the terms hereof, including as modified by the Intercreditor Acknowledgement.
"Interest Coverage Ratio" means, for any period, the ratio of Consolidated EBITDA of Company and its Subsidiaries to
-----------------------
Consolidated Cash Interest Expense of Company and its Subsidiaries for such period.
"Interest Payment Date" means (a) as to any Base Rate Loan, each Quarterly Payment Date to occur while such Loan is
----------------------
outstanding, (b) as to any Eurocurrency Loan having an Interest Period of three months or less, the last day of the Interest Period
applicable thereto and (c) as to any Eurocurrency Loan having an Interest Period longer than three months, each day which is three
months, each three (3) month anniversary of the first day of the Interest Period applicable thereto and the last day of the Interest
Period applicable thereto; provided, however, that, in addition to the foregoing, each of (i) the date upon which both the Revolving
-------- -------
Commitments have been terminated and the Revolving Loans have been paid in full and (iii) each applicable Term Maturity Date shall be
deemed to be an "Interest Payment Date" with respect to any interest which is then accrued hereunder for such Loan.
"Interest Period" has the meaning assigned to that term in Section 3.4.
--------------- -----------
"Interest Rate Agreement" means any interest rate swap agreement, interest rate cap agreement, interest rate collar
-----------------------
agreement, interest rate futures contract, interest rate option contract or other similar agreement or arrangement to which Company
or any Subsidiary is a party.
"Interest Rate Determination Date" means the date for calculating the Eurocurrency Rate for an Interest Period,
----------------------------------
which date shall be the second Business Day prior to first day of the related Interest Period for such Loan.
"Inventory" means, inclusively, all inventory as defined in the UCC from time to time and all goods, merchandise and
---------
other personal property wherever located, now owned or hereafter acquired by Company or any of its Subsidiaries of every kind or
description which are held for sale or lease or are furnished or to be furnished under a contract of service or are raw materials,
work-in-process or materials used or consumed or to be used or consumed in Company's or any of its Subsidiaries' business.
"Investment" means, as applied to any Person, (i) any direct or indirect purchase or other acquisition by that
----------
Person of, or a beneficial interest in, Securities of any other Person, or a capital contribution by that Person to any other Person
(ii) any direct or indirect loan or advance to any other Person (other than prepaid expenses or Accounts Receivable created or
acquired in the ordinary course of business), including all Indebtedness to such Person arising from a sale of property by such
person other than in the ordinary course of its business (iii) any Acquisition by that Person or (iv) any purchase by that Person of
a futures contract or such person otherwise becoming liable for the purchase or sale of currency or other commodity at a future date
in the nature of a futures contract. The amount of any Investment by any Person on any date of determination shall be the sum of the
value of the gross assets transferred to or acquired by such Person (including the amount of any liability assumed in connection with
such transfer or acquisition by such Person to the extent such liability would be reflected on a balance sheet prepared in accordance
with GAAP) plus the cost of all additions, thereto, without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment, minus the amount of all cash returns of principal or capital thereon, cash
dividends thereon and other cash returns on investment thereon or liabilities expressly assumed by another Person (other than Company
or another Subsidiary of Company) in connection with the sale of such Investment. Whenever the term "outstanding" is used in this
Agreement with reference to an Investment, it shall take into account the matters referred to in the preceding sentence.
"IRS" means the United States Internal Revenue Service, or any successor or analogous organization.
---
"Landlord Consent" means a letter in favor of Administrative Agent and the Lenders which is executed by each lessor
-----------------
of any leased property of Company or any Subsidiary of Company at which Collateral may now or in the future be located, in form and
substance reasonably satisfactory to Administrative Agent.
"LC Commission" has the meaning assigned to that term in Section 2.8(g)(ii).
------------- ------------------
"LC Obligations" means, at any time, an amount equal to the sum of (a) the aggregate Stated Amount of the then
---------------
outstanding Letters of Credit and (b) the aggregate amount of Unpaid Drawings under Letters of Credit which have not then been
reimbursed pursuant to Section 2.8(f). The LC Obligation of any Lender at any time shall mean its Revolver Pro Rata Share of the
--------------
aggregate LC Obligations outstanding at such time.
"LC Participant" has the meaning assigned to that term in Section 2.8(e).
-------------- --------------
"LC Supportable Indebtedness" means (i) obligations of Company or its Subsidiaries incurred in the ordinary course
----------------------------
of business with respect to insurance obligations and workers' compensation, surety bonds and other similar statutory obligations and
(ii) such other obligations of Company or any of its Subsidiaries as are reasonably acceptable to Administrative Agent and the Facing
Agent and otherwise permitted to exist pursuant to the terms of this Agreement.
"Lender" and "Lenders" have the respective meanings assigned to those terms in the introduction to this Agreement
------ -------
and shall include any Person that becomes a "Lender" as contemplated by Section 12.8.
------------
"Lender Default" means (i) the refusal (which has not been retracted) of a Lender to make available its portion of
---------------
any Borrowing or to fund its portion of any unreimbursed payment under Section 2.8(f) or (ii) a Lender having notified in writing
---------------
Company and/or Administrative Agent that it does not intend to comply with its obligations under Section 2.8(e) or Section 2.8(f), as
-------------- --------------
a result of any takeover of such Lender by any regulatory authority or agency.
"Letters of Credit" means, collectively, all Commercial Letters of Credit and Standby Letters of Credit issued
-----------------
pursuant to this Agreement, and "Letter of Credit" means any one of such Letters of Credit.
"Letter of Credit Payment" means as applicable (a) all payments made by a Facing Agent pursuant to either a draft or
-------------------------
demand for payment under a Letter of Credit or (b) all payments by Lenders having Revolving Commitments to such Facing Agent in
respect thereof (whether or not in accordance with their Revolver Pro Rata Share).
"Letter of Credit Request" has the meaning assigned to that term in Section 2.8(c).
------------------------ --------------
"Lien" means (i) any judgment lien or execution, attachment, levy, distraint or similar legal process and (ii) any
----
mortgage, pledge, hypothecation, collateral assignment, security interest, encumbrance, lien, charge or deposit arrangement (other
than a deposit to a Deposit Account in the ordinary course of business and not intended as security) of any kind (including, without
limitation, any conditional sale or other title retention agreement or lease in the nature thereof, any agreement to give any of the
foregoing, any filing or agreement to file a financing statement as debtor under the UCC or any similar statute other than to reflect
ownership by a third party of property leased or consigned to Company or any of its Subsidiaries under a lease or consignment
agreement which is not in the nature of a conditional sale or title retention agreement, any subordination arrangement in favor of
another Person or any sale of receivables with recourse against the seller or any Affiliate of the seller).
"Loan" means any Term B Loan, Revolving Loan or Swing Line Loan and "Loans" means all such Loans collectively.
----
"Loan Documents" means, collectively, this Agreement, the Notes, each Letter of Credit Request, each Security
---------------
Document, each Guaranty, each Interest Rate Agreement and Other Hedging Agreement to which any Lender or any Affiliate of a Lender is
a party (in each case, even if such Lender subsequently ceases to be a Lender under this Agreement for any reason), the Intercreditor
Agreement and all other agreements, instruments and documents executed in connection therewith, in each case as the same may at any
time be amended, supplemented, restated or otherwise modified and in effect.
"Majority Lenders" of any Facility means those Non-Defaulting Lenders which would constitute the Required Lenders
-----------------
under, and as defined in, this Agreement if all outstanding Obligations of other Facilities under this Agreement were repaid in full
and all Commitments with respect thereto were terminated.
"Management Fees" means for any period, all management fees or similar compensation, excluding amounts representing
---------------
reimbursement of out-of-pocket expenses incurred in the ordinary course of business in connection with the performance of management
services.
"Material Adverse Effect" means a material adverse effect on (a) the business, condition (financial or otherwise),
------------------------
assets, liabilities, property, operations or prospects of Company and its Subsidiaries taken as a whole, (b) the ability of Company
or any of its Subsidiaries to perform its respective obligations under any Loan Document to which it is a party (other than as a
result of circumstances of the type described in clause (a)), or (c) the validity or enforceability of this Agreement or any of the
Security Documents or the rights or remedies of Administrative Agent and the Lenders hereunder or thereunder.
"Maximum Commitment" means, when used with reference to any Lender, the aggregate of such Lender's Term Commitments
-------------------
and Revolving Commitment in the amounts not to exceed those set forth opposite the name of such Lender on Schedule 1.1(a) hereto,
----------------
subject to reduction from time to time in accordance with the terms of this Agreement.
"May" means May Verpackungen Gmbh & Co. KG, an entity organized under the laws of Germany.
---
"May Receivables Sale Documents" means the Factoring Agreement dated November 13, 2003 by and among May and Xxxxxx
-------------------------------
Bank AG, and the related documents, as amended, restated or otherwise modified in accordance with the terms hereof; provided, after
--------
giving effect to such amendment, restatement or other modification (1) sales thereunder are true sales on a non-recourse basis (and
treated as sales for GAAP purposes), without any guarantee by Company or any of its Subsidiaries (it being understood that Standard
Receivables Sale Undertakings shall not constitute a guarantee), (2) such documentation is on market terms and conditions and (3) the
sales price for Accounts Receivable thereunder is not less than 90% of the face amount of such Accounts Receivable; provided, further
-------- -------
that if the book value of all Accounts Receivable sold pursuant to such documents less the amount of such Accounts Receivable which
have been collected by the purchaser thereof or are no longer outstanding pursuant to the terms of such documents, exceeds
(euro)12,000,000, the maximum aggregate amount set forth in Section 8.4(b)(ii)(4) shall be reduced by the Dollar equivalent of such excess.
---------------------
"Minimum Borrowing Amount" means (i) with respect to Base Rate Loans, $500,000 (ii) with respect to Eurocurrency
--------------------------
Loans, $1,000,000.
"Minimum Borrowing Multiple" means $100,000.
--------------------------
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to the rating agency business thereof.
-------
"Mortgage" has the meaning assigned to that term in Section 5.1(c) and shall also include any mortgages or similar
-------- ---------------
documents executed pursuant to Section 7.11.
------------
"Mortgage Policies" has the meaning assigned to that term in Section 5.1(c) and shall also include any mortgage
------------------ ---------------
policies or similar documents executed pursuant to Section 7.11.
------------
"Mortgaged Property" has the meaning assigned to that term in Section 5.1(c) and shall also include any real
------------------- ---------------
property subject to a mortgage pursuant to Section 7.11.
------------
"Multiemployer Plan" means any plan described in Section 3(37) or 4001(a)(3) of ERISA to which contributions are or
-------------------
have, within the preceding six years, been made, or are or were, within the preceding six years, required to be made, by a Credit
Party, any of its Subsidiaries or any of their ERISA Affiliates.
"Multiple Employer Plan" means a Plan covered by Title IV of ERISA, other than a Multiemployer Plan, which a Credit
----------------------
Party, any of its Subsidiaries or any of their ERISA Affiliates and at least one employer other than the Credit Party, any of its
Subsidiaries or any of their ERISA Affiliates are contributing sponsors.
"Net Offering Proceeds" means the proceeds received from (a) the issuance of any Capital Stock or (b) the incurrence
----------------------
of any Indebtedness, in each case net of the actual liabilities for reasonably anticipated cash taxes in connection with such
issuance or incurrence, if any, any underwriting, brokerage and other customary selling commissions incurred in connection with such
issuance or incurrence, and reasonable legal, advisory and other fees and expenses, including title and recording tax expenses, if
any, incurred in connection with such issuance or incurrence.
"Net Sale Proceeds" means, with respect to any Asset Disposition the aggregate cash payments received by Company or
-----------------
any of its Subsidiaries from such Asset Disposition (including, without limitation, cash received by way of deferred payment pursuant
to a note receivable, conversion of non-cash consideration, cash payments in respect of purchase price adjustments or otherwise, but
only as and when such cash is actually received) minus the direct costs and expenses incurred in connection therewith (including in
-----
the case of any Asset Disposition, the payment of the outstanding principal amount of, premium, if any, and interest on any
Indebtedness (other than hereunder) required to be repaid as a result of such Asset Disposition); a provision for indemnity
obligations which are reasonably expected to be incurred within two years of the date of such Asset Disposition and in no event in
excess of five percent of the aggregate cash payments received from such Asset Disposition, and any provision for taxes in respect
thereof made in accordance with GAAP provided that such expenses shall only include taxes to the extent that taxes are payable in
--------
cash in the current year or the following year as a result of such Asset Disposition. Any proceeds received in a currency other than
Dollars shall, for purposes of the calculation of the amount of Net Sale Proceeds, be in an amount equal to the Dollar Equivalent
thereof as of the date of receipt thereof by Company or any of its Subsidiaries.
"Non-Defaulting Lender" means each Lender which is not a Defaulting Lender.
---------------------
"Non-U.S. Participant" means any Lender that is not a United States person within the meaning of Code section
---------------------
7701(a)(30).
"Note" means a note substantially in the form of Exhibit 2.2(a)(1) or Exhibit 2.2(a)(2) and "Notes" means all of
---- ------------------ ------------------ -----
such Notes collectively.
"Note Refinancing Condition" means the repayment in full or refinancing in full before January 10, 2010 with one or
----------------------------
more Permitted Refinancings of both of the Secured Notes and the Subordinated Notes.
"Notice Office" means the office of Administrative Agent located at 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx City, New
-------------
Xxxxxx 00000, or such other office as Administrative Agent may hereafter designate in writing as such to the other parties hereto.
"Notice of Borrowing" has the meaning assigned to that term in Section 2.5.
------------------- -----------
"Notice of Conversion or Continuation" has the meaning assigned to that term in Section 2.6.
------------------------------------ -----------
"Obligations" means all liabilities and obligations of Company and its Subsidiaries now or hereafter arising under
-----------
this Agreement and all of the other Loan Documents, whether for principal, interest, fees, expenses, indemnities or otherwise, and
whether primary, secondary, direct, indirect, contingent, fixed or otherwise (including obligations of performance).
"Operating Lease" of any Person, means any lease (including, without limitation, leases which may be terminated by
---------------
the lessee at any time) of any property (whether real, personal or mixed) by such Person, as lessee, which is not a Capitalized Lease.
"Organizational Documents" means, with respect to any Person, such Person's articles or certificate of
--------------------------
incorporation, certificate of amalgamation, memorandum or articles of association, bylaws, partnership agreement, limited liability
company agreement, joint venture agreement or other similar governing documents and any document setting forth the designation,
amount and/or relative rights, limitations and preferences of any class or series of such Person's Capital Stock.
"Other Hedging Agreement" means any foreign exchange contract, currency swap agreement, futures contract, commodity
-----------------------
agreements, option contract, synthetic cap or other similar agreement.
"Participants" has the meaning assigned to that term in Section 12.8(b).
------------ ---------------
"Payment Office" means with respect to Administrative Agent or Swing Line Lender, 00 Xxxxxx Xxxxxx, 0xx Xxxxx,
---------------
Xxxxxx Xxxx, Xxx Xxxxxx 00000, Attn: Commercial Loan Division, or such other address as Administrative Agent or Swing Line Lender, as
the case may be, may from time to time specify in accordance with Section 12.3.
------------
"PBGC" means the Pension Benefit Guaranty Corporation created by Section 4002(a) of ERISA.
----
"Perfection Certificate" has the meaning assigned to such term in Section 5.1(b)(i).
---------------------- -----------------
"Permitted Acquisition" means any Acquisition by Company or any of its Subsidiaries if all of the following
----------------------
conditions are met:
(a) no Event of Default or Unmatured Event of Default has occurred and is continuing or would result therefrom;
(b) such acquisition has not been preceded by an unsolicited tender offer for such Person by Company or any of
its Affiliates;
(c) all transactions related thereto are consummated in compliance, in all material respects, with applicable
Requirements of Law;
(d) in the case of any acquisition of any equity interest in any Person, after giving effect to such
acquisition such Person becomes a Wholly-Owned Subsidiary of Company (or with respect to any such Person that does not
become a Wholly-Owned Subsidiary, such Person becomes a Subsidiary of Company), and, to the extent required by Section
--------
7.11(a), guarantees the Obligations hereunder and grants the security interest contemplated by such Section 7.11(c));
------- ---------------
(e) all actions, if any, required to be taken under Section 7.11 with respect to any acquired or newly formed
------------
Subsidiary and its property are taken as and when required under Section 7.11;
------------
(f) such assets are used for, or such Person is primarily engaged in, a line of business permitted under
Section 8.10;
------------
(g) the aggregate Investment (including Consolidated Debt) for all Acquisitions after the Closing Date
(excluding the Formametal Acquisition) is less than $10,000,000; provided that if the First Lien Leverage Ratio for any Test
Period after the Closing Date equals 2.5:1.0 or less, such aggregate amount shall increase to $30,000,000;
(h) (x) after giving effect thereto on a Pro Forma Basis for the period of four Fiscal Quarters ending with the
Fiscal Quarter for which financial statements have most recently been delivered (or were required to be delivered) under
Section 7.1, no Event of Default or Unmatured Event of Default would exist hereunder; and (y) there is at least $25,000,000
-----------
of Total Available Revolving Commitments; and (z) on or before the date of such acquisition and before Company or any of its
Subsidiaries enters into such acquisition or any agreement therefor (that is not contingent upon such acquisition being
permitted under this Agreement), Company delivers to the Administrative Agent and Lenders a certificate signed on behalf of
Company by a financial officer of Company attaching financial statements of the business or Person to be acquired, including
income statements or statements of operations and, if available, balance sheet statements for at least the fiscal year or
the four fiscal quarters then most recently ended, together with pro forma financial statements supporting the calculations
required by clauses (x) and (y) hereof, if applicable, certified on behalf of Company by a financial officer of Company to
the best of his or her knowledge; and
(i) any Foreign Investment component of such Acquisition is permitted pursuant to Section 8.7(j).
--------------
"Permitted Covenant" means (i) any periodic reporting covenant, (ii) any covenant restricting payments by Company
-------------------
with respect to any securities of Company which are junior to the Permitted Preferred Stock, (iii) any covenant the default of which
can only result in an increase in the amount of any redemption price, repayment amount, dividend rate or interest rate, (iv) any
covenant providing board observance rights with respect to Company's board of directors and (v) any other covenant that does not
adversely affect the interests of the Lenders (as reasonably determined by Administrative Agent).
"Permitted Debt Documents" means, collectively, the Secured Note Documents, the Subordinated Note Documents, and any
------------------------
documents evidencing, guaranteeing or otherwise governing any Permitted Refinancing of any of the foregoing.
"Permitted Liens" has the meaning assigned to that term in Section 8.1.
--------------- -----------
"Permitted Preferred Stock" means Holdings' Series A Preferred Stock and any other preferred stock of Holdings (or
--------------------------
any equity security of Holdings that is convertible or exchangeable into any preferred stock of Holdings), so long as the terms of
any such preferred stock or equity security of Holdings: (i) do not provide any collateral security, (ii) do not provide any
guaranty or other support by Holdings or any of its Subsidiaries, (iii) do not contain any mandatory put, redemption, repayment,
sinking fund or other similar provision occurring before the ninth anniversary of the Effective Date (other than any put exercisable
upon death or disability to the extent Holdings may, at its option, issue a note that complies with the terms set forth in Section
--------
8.2(n) as the sole repurchase consideration), (iv) do not require the cash payment of dividends or interest, (v) do not contain any
------
covenants other than Permitted Covenants, (vi) do not grant the holders thereof any voting rights except for (x) voting rights
required to be granted to such holders under applicable law, (y) limited customary voting rights on fundamental matters such as
mergers, consolidations, sales of substantial assets, or liquidations involving Holdings or Company and (z) other voting rights to
the extent not greater than or superior to those allocated to Holdings Common Stock on a per share basis, and (vii) are otherwise
reasonably satisfactory to Administrative Agent.
"Permitted Real Property Encumbrances" means (i) those liens, encumbrances and other matters affecting title to any
-------------------------------------
Mortgaged Property listed in the Mortgage Policies in respect thereof and found, on the date of delivery of such Mortgage Policies to
Administrative Agent in accordance with the terms hereof, reasonably acceptable by Administrative Agent, (ii) as to any particular
real property at any time, such easements, encroachments, covenants, rights of way, minor defects, irregularities or encumbrances on
title which do not, in the reasonable opinion of Administrative Agent, materially impair such real property for the purpose for which
it is held by the owner thereof, the marketability thereof or the Lien held by Collateral Agent and (iii) municipal and zoning
ordinances, which are not violated in any material respect by the existing improvements or the present use made by the owner thereof
of the premises.
"Permitted Refinancing" means a replacement, renewal, refinancing or extension of any Indebtedness by the Person
----------------------
that originally incurred such Indebtedness, provided that:
--------
(i) the principal amount of such Indebtedness (as determined as of the date of the incurrence of the Indebtedness in accordance
with GAAP) does not exceed the principal amount of the Indebtedness refinanced thereby on such date plus the amount of accrued and
unpaid interest and fees (including call premiums) and expenses incurred in connection with such replacement, renewal, refinancing or
extension except to the extent such excess is applied as a mandatory prepayment of Loans pursuant to Section 4.4(f);
--------------
(ii) the Weighted Average Life to Maturity of such Indebtedness is not less than the Weighted Average Life to Maturity of the
Indebtedness being refinanced;
(iii) such Indebtedness is not secured by any assets other than those securing such Indebtedness on the latter of the date such
Indebtedness was originally incurred or the Initial Borrowing Date and is not guaranteed by any Credit Party or any Subsidiary of any
Credit Party except to the extent such Person guaranteed such Indebtedness being refinanced;
(iv) in the case of Indebtedness which is in excess of $5,000,000, the covenants, defaults and similar provisions applicable to
such Indebtedness are, in the opinion of Administrative Agent, no more adverse to Company when taken as a whole than the provisions
contained in the original documentation for such Indebtedness and no more restrictive than the provisions contained in this Agreement
and do not conflict in any material respect with the provisions of this Agreement and is otherwise upon terms and subject to
documentation in form and substance reasonably satisfactory to Administrative Agent; and
(v) (A) in the case of Permitted Refinancing of the Secured Notes, (1) such Indebtedness is either unsecured, or if secured, is
secured by a second priority Lien and is subject to an intercreditor agreement on terms and conditions not less favorable, taken as a
whole, to the Lenders than the Intercreditor Agreement and (2) the scheduled maturity date shall not be earlier than, nor shall any
amortization commence, prior to the date that is one year after the latest Term Maturity Date; and
(B) in the case of Permitted Refinancing of the Subordinated Notes, (1) such Indebtedness is subordinated to
the Obligations on terms and conditions not less, taken as a whole, favorable to the Lenders than the Subordinated Notes and (2) the
scheduled maturity date shall not be earlier than, nor shall any amortization commence, prior to the date that is one year after the
latest Term Maturity Date.
"Person" means an individual or a corporation, partnership, limited liability company, trust, incorporated or
------
unincorporated association, joint venture, joint stock company, Governmental Authority or other entity of any kind.
"Plan" means any plan described in Section 4021(a) of ERISA and not excluded pursuant to Section 4021(b) thereof,
----
which is or has, within the preceding six years, been established or maintained, or to which contributions are being or have been,
within the preceding six years, made, by a Credit Party, any of its Subsidiaries or any of their ERISA Affiliates.
"Plan Administrator" has the meaning assigned to the term "administrator" in Section 3(16)(A) of ERISA.
------------------
"Plan Sponsor" has the meaning assigned to the term "plan sponsor" in Section 3(16)(B) of ERISA.
------------
"Pledged Securities" means any of the Securities pledged pursuant to any Security Document.
------------------
"Premises" means, at any time, any real estate then owned, leased or operated by the Company or any of its
--------
Subsidiaries.
"Pro Forma Balance Sheet" has the meaning assigned to that term in Section 6.5(a).
----------------------- --------------
"Pro Forma Basis" means, (a) with respect to the preparation of pro forma financial statements for purposes of the
---------------
tests set forth in the definition of Permitted Acquisitions and for any other purpose relating to a Permitted Acquisition, pro forma
on the basis that (i) any Indebtedness incurred or assumed in connection with such Acquisition was incurred or assumed on the first
day of the applicable period, (ii) if such Indebtedness bears a floating interest rate, such interest shall be paid over the pro
forma period at the rate in effect on the date of such Acquisition, and (iii) all income and expense associated with the assets or
entity acquired in connection with such Acquisition (other than the fees, costs and expenses associated with the consummation of such
Acquisition) for the most recently ended four fiscal quarter period for which such income and expense amounts are available shall be
treated as being earned or incurred by Company over the applicable period on a pro forma basis without giving effect to any cost
savings other than Pro Forma Cost Savings, (b) with respect to the preparation of a pro forma financial statement for any purpose
relating to an Asset Disposition, pro forma on the basis that (i) any Indebtedness prepaid out of the proceeds of such Asset
Disposition shall be deemed to have been prepaid as of the first day of the applicable Test Period, and (ii) all income and expense
(other than such expenses as Company, in good faith, estimates will not be reduced or eliminated as a consequence of such Asset
Disposition) associated with the assets or entity disposed of in connection with such Asset Disposition shall be deemed to have been
eliminated as of the first day of the applicable Test Period and (c) with respect to the preparation of pro forma financial
statements for any purpose relating to an incurrence or repayment of Indebtedness, pro forma on the basis that (i) any Indebtedness
incurred or assumed in connection with such incurrence or repayment of Indebtedness was incurred or assumed on the first day of the
applicable period, (ii) if such incurrence of Indebtedness bears a floating interest rate, such interest shall be paid over the pro
forma period at the rate in effect on the date of the incurrence of such Indebtedness, and (iii) all income and expense associated
with the assets or entity acquired in connection with the incurrence of Indebtedness (other than the fees, costs and expenses
associated with the consummation of such incurrence of Indebtedness) for the most recently ended four fiscal quarter period for which
such income and expense amounts are available shall be treated as being earned or incurred by Company over the applicable period on a
pro forma basis without giving effect to any cost savings other than Pro Forma Cost Savings.
"Pro Forma Cost Savings" means, with respect to the determination of Net Income on a Pro Forma Basis, such cost
-----------------------
savings as would be permitted pursuant to Rule 11.02 of Regulation S-X, provided that, prior to the consummation of any Permitted
Acquisition with an aggregate Investment (including Consolidated Debt) (i) in excess of $5,000,000, Company's certified public
accountants shall have issued a comfort letter (in a manner consistent with example d of SAS 72) or shall have performed procedures
agreed upon by Company and Administrative Agent in each case related to the determination of such Net Income on a Pro Forma Basis and
(ii) less than $5,000,000, a Responsible Financial Officer of Company shall certify to Administrative Agent that such pro forma
financial information complies as to form in all material respects with the applicable accounting requirements of Rule 11.02 of
Regulation S-X.
"Pro Rata Share" means, when used with reference to any Lender and any described aggregate or total amount of any
--------------
Facility or Facilities, an amount equal to the result obtained by multiplying such described aggregate or total amount by a fraction
the numerator of which shall be such Lender's Maximum Commitment with respect to such Facility or Facilities and the denominator of
which shall be the Total Commitment with respect to such Facility or Facilities or, if no Commitments are then outstanding, such
Lender's aggregate Loans to the total Loans and Obligations hereunder with respect to such Facility.
"Projections" has the meaning assigned to that term in Section 6.5(e).
----------- --------------
"Qualified IPO" means a bona fide underwritten sale to the public of Holdings Common Stock pursuant to a
--------------
registration statement (other than on Form S-8 or any other form relating to securities issuable under any benefit plan of Holdings
or any of its Subsidiaries, as the case may be) that is declared effective by the SEC and such offering results in gross cash
proceeds (exclusive of underwriter's discounts and commissions and other expenses) of at least $100,000,000.
"Quarterly Payment Date" means the last Business Day of each January, April, July and October commencing July 30,
-----------------------
2004.
"Receivables Assets" shall mean all Accounts Receivable (whether now existing or arising in the future) of any
-------------------
Foreign Subsidiary of Company which are transferred pursuant to a disposition permitted pursuant to Section 8.4(b), and any assets
--------------
related thereto, including without limitation (i) all collateral given by the respective account debtor or on its behalf (but not by
Company or any Subsidiary) securing such Accounts Receivable, (ii) all contracts and all guarantees (but not by Company or any
Subsidiary) securing such Accounts Receivable, (iii) all contracts and all guarantees (but not by Company or any Subsidiary) or other
obligations directly related to such Accounts Receivable, (iv) other related assets including those set forth in the documents
governing such sales, and (v) proceeds of all of the foregoing.
"Recovery Event" means the receipt by Company (or any of its Subsidiaries) of any insurance or condemnation proceeds
--------------
payable (i) by reason of any theft, physical destruction or damage or any other similar event with respect to any properties or
assets of Company or any of its Subsidiaries, (ii) by reason of any condemnation, taking, seizing or similar event with respect to
any properties or assets of Company or any of its Subsidiaries or (iii) under any policy of insurance required to be maintained under
Section 7.8 provided, however, that in no event shall payments made under business interruption insurance constitute a Recovery Event.
----------- -------- -------
"Refinancing" has the meaning assigned to that term in the Recitals to this Agreement.
-----------
"Refinancing Documents" means the documents and deliveries evidencing the Refinancing, including all payoff letters,
---------------------
termination statements and other lien release documents related thereto.
"Refunded Swing Line Loans" has the meaning assigned to that term in Section 2.1(c)(ii).
------------------------- ------------------
"Register" has the meaning assigned to that term in Section 12.12.
-------- -------------
"Regulation D" means Regulation D of the Board as from time to time in effect and any successor provision to all or
------------
a portion thereof establishing reserve requirements.
"Related Fund" means, with respect to any Lender which is a Fund, any other Fund that is administered or managed by
------------
the same investment advisor of such Lender or by an Affiliate of such investment advisor.
"Release" means any release, spill, emission, leaking, pumping, pouring, emptying, dumping, injection, deposit,
-------
disposal, discharge, dispersal, escape, leaching or migration into the indoor or outdoor environment or into or out of any property
of Company or its Subsidiaries, or at any other location, including any location to which Company or any of its Subsidiaries has
transported or arranged for the transportation of any Contaminants, including the movement of Contaminants through or in the air,
soil, surface water, groundwater or property of Company or its Subsidiaries or at any other location, including any location to which
Company or any Subsidiary has transported or arranged for the transportation of any Contaminants.
"Remedial Action" means actions required under Environmental Laws to (i) clean up, remove, treat or in any other way
---------------
address Contaminants in the indoor or outdoor environment, (ii) prevent or minimize or otherwise address the Release or substantial
threat of a material Release of Contaminants so they do not migrate or endanger or threaten to endanger public health or welfare or
the indoor or outdoor environment; or (iii) perform pre-response or post-response studies and investigations and post-response
monitoring and care or any other studies, reports or investigations relating to Contaminants.
"Replaced Lender" has the meaning assigned to that term in Section 3.7.
--------------- -----------
"Replacement Lender" has the meaning assigned to that term in Section 3.7.
------------------ -----------
"Reportable Event" means a "reportable event" described in Section 4043(c) of ERISA or in the regulations thereunder
----------------
with respect to a Plan, excluding any event for which the thirty (30) day notice requirement has been waived.
"Required Lenders" means Non-Defaulting Lenders the sum of whose outstanding Term Loans, Revolving Commitments (or,
----------------
if after the Total Revolving Commitment has been terminated, outstanding Revolving Loans and Revolver Pro Rata Share of outstanding
Swing Line Loans) and LC Obligations constitute greater than 50% of the sum of (i) the total outstanding Term Loans of Non-Defaulting
Lenders and (ii) the Total Revolving Commitment less the aggregate Revolving Commitments of Defaulting Lenders (or, if after the
Total Revolving Commitment has been terminated, the total outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate
Revolver Pro Rata Share of all Non-Defaulting Lenders of the total outstanding Swing Line Loans and LC Obligations at such time).
"Requirement of Law" means, as to any Person, any law (including common law), treaty, rule or regulation or
-------------------
judgment, decree, determination or award of an arbitrator or a court or other Governmental Authority, including without limitation,
any Environmental Law, in each case applicable to or binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"Responsible Financial Officer" means the Chief Financial Officer, Principal Accounting Officer, Controller or
-------------------------------
Treasurer of Company, or, if being applied to a Subsidiary, of the applicable Subsidiary.
"Responsible Officer" means any of the Chairman or Vice Chairman of the Board of Directors, the President, any
--------------------
Executive Vice President, any Senior Vice President, the Chief Financial Officer, any Vice President or the Treasurer of Company or,
if being applied to a Subsidiary, of the Subsidiary.
"Restricted Payment" means (i) any Dividend (except Dividends (X) payable solely in Capital Stock or in options,
-------------------
warrants or other rights to purchase such Capital Stock or (Y) payable to Company or a Wholly-Owned Subsidiary of Company), (ii) any
purchase, redemption or acquisition or retirement for value of any Capital Stock of Company or any of its Subsidiaries other than a
Wholly-Owned Subsidiary, (iii) any payment of Management Fees to an Affiliate of Company or any of its Subsidiaries or (iv) any
interest or principal payment on or purchase, defeasance, redemption, prepayment or other acquisition or retirement for value, prior
to any scheduled final maturity, of (x) any Indebtedness that is subordinate or junior in right of payment to the Obligations
(including the Subordinated Notes or any Permitted Refinancing thereof) or (y) the Secured Notes or any Permitted Refinancing thereof.
"Returns" has the meaning assigned to that term in Section 6.9(a).
------- --------------
"Revolver Pro Rata Share" means, when used with reference to any Revolving Lender and any described aggregate or
-----------------------
total amount, an amount equal to the result obtained by multiplying such described aggregate or total amount by a fraction the
numerator of which shall be such Revolving Lender's Revolving Commitment or, if the Revolver Termination Date has occurred, such
Revolving Lender's then outstanding Revolving Loans and the denominator of which shall be the Revolving Commitments or, if the
Revolver Termination Date has occurred, all then outstanding Revolving Loans.
"Revolver Termination Date" means June 21, 2009 or such earlier date as the Revolving Commitments shall have been
---------------------------
terminated or otherwise reduced to $0 pursuant to this Agreement.
"Revolving Commitment" means, with respect to any Revolving Lender, the obligation of such Revolving Lender to make
---------------------
Revolving Loans and to participate in Letters of Credit, as such commitment may be adjusted from time to time pursuant to this
Agreement, which commitment as of the date hereof is the amount set forth opposite such lender's name on Schedule 1.1(a) hereto under
---------------
the caption "Amount of Revolving Commitment" as the same may be adjusted from time to time pursuant to the terms hereof and
"Revolving Commitments" means such commitments collectively, which commitments equal $65,000,000 in the aggregate as of the date
-----------------------
hereof.
"Revolving Facility" means the credit facility under this Agreement evidenced by the Revolving Commitments and the
-------------------
Revolving Loans.
"Revolving Lender" means any Lender which has a Revolving Commitment or is owed a Revolving Loan (or a portion
-----------------
thereof).
"Revolving Loan" and "Revolving Loans" have the meanings given in Section 2.1(b).
-------------- --------------- --------------
"Rollover Amount" has the meaning assigned to that term in Section 9.1(b).
--------------- --------------
"S&P" means Standard & Poor's Corporation or any successor to the rating agency business thereof.
---
"Sale and Leaseback Transaction" means any arrangement, directly or indirectly, whereby a seller or transferor shall
------------------------------
sell or otherwise transfer any real or personal property and then or thereafter lease, or repurchase under an extended purchase
contract, conditional sales or other title retention agreement, the same or similar property.
"Scheduled Term Repayments" mean, for any Term Facility, the scheduled principal payments set forth in the
---------------------------
"Scheduled Term Repayments" definition applicable to such Term Facility.
"Scheduled Term B Repayments" means, with respect to the principal payments on the Term B Loans, for each March 31,
---------------------------
June 30, September 30 and December 31 prior to the Term B Maturity Date, an amount equal to 0.25% of the original principal amount of
Term B Loans, as reduced from time to time pursuant to Sections 4.3 and 4.4, with the entire remaining outstanding principal amount
------------ ---
of Term B Loans payable on the Term B Maturity Date.
"SEC" means the Securities and Exchange Commission or any successor thereto.
---
"Secured Creditors" has the meaning provided in the respective Security Documents to the extent defined therein and
------------------
shall include any Person who is granted a security interest in any Loan Document.
"Secured Note Documents" means the Secured Notes, the Secured Note Indenture and all other documents evidencing,
-----------------------
guaranteeing or otherwise governing the terms of the Secured Notes.
"Secured Note Indenture" means that certain Indenture dated as of July 22, 2003, between Holdings, Company, USC May
----------------------
Verpackungen Holding Inc. and Xxxxx Fargo Bank Minnesota, National Association as trustee, as amended, supplemented or modified in
accordance with the terms hereof.
"Secured Notes" means those certain 10-7/8% Senior Secured Notes due 2010, issued by Company in the aggregate
--------------
principal amount of $125.0 million pursuant to the Secured Note Indenture.
"Securities" means any stock, shares, voting trust certificates, bonds, debentures, options, warrants, notes, or
----------
other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly
known as "securities" or any certificates of interest, shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"Security Agreement" has the meaning assigned to that term in Section 5.1(a)(iii).
------------------ -------------------
"Security Documents" means, collectively the Domestic Security Documents, the Foreign Security Documents and all
-------------------
other agreements, assignments, security agreements, instruments and documents executed in connection therewith, in each case as the
same may at any time be amended, supplemented, restated or otherwise modified and in effect. For purposes of this Agreement,
"Security Documents" shall also include all guaranties, security agreements, mortgages, pledge agreements, collateral assignments,
subordination agreements and other collateral documents in the nature of any thereof entered into by Company or any of its
Subsidiaries after the date of this Agreement in favor of Collateral Agent for the benefit of the Secured Creditors in satisfaction
of the requirements of this Agreement, in each case as the same may at any time be amended, supplemented, restated or otherwise
modified and in effect.
"Senior Secured Leverage Ratio" means, for any Test Period, the ratio of Consolidated Senior Secured Debt of
--------------------------------
Holdings and its Subsidiaries as of the last day of such Test Period to Consolidated EBITDA of Holdings and its Subsidiaries for such
Test Period.
"Series A Preferred Stock" means Holdings' Series A Senior Preferred Stock, $10 per share par value.
------------------------
"Series B Note Documents" means the Series B Notes, the Series B Note Indenture and all other documents evidencing,
-----------------------
guaranteeing or otherwise governing the terms of the Series B Notes.
"Series B Note Indenture" means that certain Indenture governing the terms of the Series B Notes, as amended,
------------------------
supplemented or modified in accordance with the terms hereof.
"Series B Notes" means those certain 10?% Senior Subordinated Series B Notes due October 15, 2006 issued by Holdings
--------------
in the aggregate principal amount outstanding as of the Closing Date of $854,000.
"Solvent" means, when used with respect to any Person, that (i) the fair salable value of its assets is in excess of
-------
the total amount of its liabilities (including for purposes of this definition all liabilities, whether or not reflected on a balance
sheet prepared in accordance with GAAP, and whether direct or indirect, fixed or contingent, disputed or undisputed); (ii) it is able
to pay its debts or obligations in the ordinary course as they mature; and (iii) it has capital sufficient to carry on its business
and all business in which it is about to engage.
"Standard Receivables Sale Undertakings" mean representations, warranties, guarantees, covenants and indemnities
---------------------------------------
entered into by Foreign Subsidiaries of Company that are reasonably customary in true sale transactions relating to accounts
receivable, chattel paper and related assets in connection with a transaction described in Section 8.4(b).
--------------
"Standby Letters of Credit" means any of the irrevocable standby letters of credit issued for the account of Company
-------------------------
pursuant to this Agreement, in form acceptable to the Facing Bank, together with any increases or decreases in the Stated Amount
thereof and any renewals, amendments and/or extensions thereof.
"Stated Amount" or "Stated Amounts" means with respect to any Letter of Credit issued in Dollars, the maximum stated
------------- --------------
or face amount of such Letter of Credit (to the extent not previously permanently reduced) available at any time prior to the
expiration of such Letter of Credit for drawing (subject to presentment of all requisite documents), as the same may be increased or
decreased from time to time in accordance with the terms of such Letter of Credit. For purposes of calculating the Stated Amount of
any Letter of Credit at any time:
(i) any increase in the Stated Amount of any Letter of Credit by reason of any amendment to any Letter of Credit shall be deemed
effective under this Agreement as of the date Facing Agent actually issues an amendment purporting to increase the Stated
Amount of such Letter of Credit, whether or not Facing Agent receives the consent of the Letter of Credit beneficiary or
beneficiaries to the amendment, except that if Company has required that the increase in Stated Amount be given effect as of
an earlier date and Facing Agent issues an amendment to that effect, then such increase in Stated Amount shall be deemed
effective under this Agreement as of such earlier date requested by Company; and
(ii) any reduction in the Stated Amount of any Letter of Credit by reason of any amendment to any Letter of Credit shall be
deemed effective under this Agreement as of the later of (x) the date Facing Agent actually issues an amendment purporting
to reduce the Stated Amount of such Letter of Credit, whether or not the amendment provides that the reduction be given
effect as of an earlier date, or (y) the date Facing Agent receives the written consent (including by telex or facsimile
transmission) of the Letter of Credit beneficiary or beneficiaries to such reduction, whether written consent must be dated
on or after the date of the amendment issued by Facing Agent purporting to effect such reduction.
"Subordinated Note Documents" means the Subordinated Notes, the Subordinated Note Indenture and all other documents
----------------------------
evidencing, guaranteeing or otherwise governing the terms of the Subordinated Notes.
"Subordinated Note Indenture" means that certain Indenture dated as of October 4, 2000, between Company and Bank One
----------------------------
Trust Company, N.A., as trustee, as amended, supplemented or modified in accordance with the terms hereof.
"Subordinated Notes" means those certain 12-3/8% Senior Subordinated Notes due October 1, 2010, issued by Company in
-------------------
the aggregate principal amount outstanding on the Closing Date of $171.7 million pursuant to the Subordinated Note Indenture.
"Subsidiary" of any Person means any corporation, partnership (limited or general), limited liability company, trust
----------
or other entity of which a majority of the stock (or equivalent ownership or equity interest) having voting power to elect a majority
of the board of directors (if a corporation) or to select the trustee or equivalent managing body or controlling interest, shall, at
the time such reference becomes operative, be directly or indirectly owned or controlled by such Person or one or more of the other
subsidiaries of such Person or any combination thereof. Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of Company.
"Subsidiary Guarantor" means any Subsidiary of Company that becomes a party to a Subsidiary Guaranty.
--------------------
"Subsidiary Guaranty" has the meaning assigned to that term in Section 5.1(a)(ii).
------------------- ------------------
"Swing Line Commitment" means, with respect to the Swing Line Lender at any date, the obligation of such lender to
----------------------
make Swing Line Loans pursuant to Section 2.1(c)(i) in the amount referred to therein.
-----------------
"Swing Line Facility" means the sub-facility of the Revolving Facility under this Agreement evidenced by the Swing
-------------------
Line Commitment and the Swing Line Loans.
"Swing Line Lender" means, DB, in such capacity.
-----------------
"Swing Line Loan Participation Certificate" means a certificate, substantially in the form of Exhibit 2.1(c).
----------------------------------------- --------------
"Swing Line Loans" has the meaning assigned to that term in Section 2.1(c).
---------------- --------------
"Syndication Date" has the meaning assigned to that term in Section 2.1(a).
---------------- --------------
"Taxes" means any and all present and future taxes, duties, levies, imposts, deductions, assessments, charges or
-----
withholdings, and any and all liabilities (including interest and penalties and other additions to taxes) with respect to the
foregoing, but excluding Excluded Taxes.
"Tax Sharing Agreement" has the meaning assigned to that term in Section 5.1(e)(iv)(G).
--------------------- ---------------------
"Term B Commitment" means, with respect to any Lender, the principal amount set forth opposite such Lender's name on
-----------------
Schedule 1.1(a) hereto or in any Assignment and Assumption Agreement under the caption "Amount of Term B Commitment", as such
----------------
commitment may be adjusted from time to time pursuant to this Agreement, and "Term B Commitments" means such commitments
-------------------
collectively, which commitments equal $250,000,000 in the aggregate as of the date hereof.
"Term B Facility" means the credit facility under the Agreement evidenced by the Term B Commitments and the Term B
---------------
Loans.
"Term B Lender" means any Lender which has a Term B Commitment or is owed a Term B Loan (or a portion thereof).
-------------
"Term B Loan" and "Term B Loans" have the meanings assigned to those terms in Section 2.1(a).
----------- ------------ --------------
"Term B Maturity Date" means January 15, 2010; or, if the Note Refinancing Condition is satisfied prior to such
---------------------
date, June 21, 2011.
"Term Commitment" means, with respect to any Lender and any Term Facility, the principal amount set forth opposite
---------------
such Lender's name on Schedule 1.1(a) hereto or in any Assignment and Assumption Agreement under the caption for the amount of
----------------
commitment to such Term Facility, as such commitments may be adjusted from time to time pursuant to this Agreement, and "Term
-----
Commitments" means such commitments collectively.
-----------
"Term Facilities" means the Facilities under the Agreement other than the Revolving Facility and the Swing Line
----------------
Facility, collectively.
"Term Lender" means, with respect to any Term Facility, any Lender which has a Term Commitment for such Term
------------
Facility or is owed a Term Loan (or portion thereof) under such Term Facility.
"Term Loans" means the Loans under the Term Facilities, collectively.
----------
"Term Maturity Date" means, with respect to any Term Facility, the scheduled maturity date for such Term Facility
------------------
under this Agreement.
"Term Percentage" means, at any time with respect to any Term Facility, a fraction (expressed as a percentage) the
---------------
numerator of which is equal to the aggregate Effective Amount of all Loans under such Term Facility outstanding at such time and the
denominator of which is equal to the aggregate Effective Amount of all Term Loans outstanding at such time.
"Term Pro Rata Share" means, with respect to any Term Facility, when used with reference to any Lender and any
-------------------
described aggregate or total amount, an amount equal to the result obtained by multiplying such described aggregate or total amount
by a fraction the numerator of which shall be such Lender's then outstanding Loans under such Facility and the denominator of which
shall be the amount of all then outstanding Loans under such Facility.
"Termination Event" means (i) a Reportable Event with respect to any Plan; (ii) the withdrawal of a Credit Party,
------------------
any of its Subsidiaries or any of their ERISA Affiliates from a Plan or Multiple Employer Plan during a plan year in which such
Credit Party, Subsidiary or ERISA Affiliate was a "substantial employer" as defined in Section 4001(a)(2) of ERISA or the cessation
of operations which results in the termination of employment of twenty percent (20%) of Plan participants who are employees of a
Credit Party, any of its Subsidiaries or any of their ERISA Affiliates; (iii) the distribution to affected parties of written notice
of intent to terminate, or the actual termination of, a Plan in a standard termination or a distress termination described in Section
4041 of ERISA; (iv) the institution by the PBGC or any similar foreign governmental authority of proceedings to terminate a Plan or
Foreign Pension Plan; (v) any event or condition which would or could reasonably be expected to constitute grounds under Section 4042
of ERISA (other than subparagraph (a)(4) of such Section) for the termination of, or the appointment of a trustee to administer, any
Plan; (vi) the appointment by a foreign governmental authority of a trustee to administer any Foreign Pension Plan in place of the
existing administrator; (vii) the partial or complete withdrawal of a Credit Party, any of its Subsidiaries or any of their ERISA
Affiliates from a Multiemployer Plan; (viii) receipt of a notice of reorganization or insolvency with respect to a Multiemployer Plan
pursuant to Section 4242 or 4245 of ERISA; or (ix) the termination of a Multiemployer Plan or a Multiple Employer Plan.
"Test Period" means the four consecutive Fiscal Quarters of Company then last ended.
-----------
"Total Available Revolving Commitment" means, at the time any determination thereof is made, the sum of the
---------------------------------------
respective Available Revolving Commitments of the Lenders at such time less any reserve in effect pursuant to Section 4.4(c).
--------------
"Total Commitment" means, at the time any determination thereof is made, the sum of the Term Commitments, and the
-----------------
Revolving Commitments at such time.
"Total Leverage Ratio" means, for any Test Period, the ratio of Consolidated Debt of Holdings and its Subsidiaries
--------------------
of the last day of such Test Period to Consolidated EBITDA of Holdings and its Subsidiaries for such Test Period.
"Total Revolving Commitment" means, at any time, the sum of the Revolving Commitments of each of the Lenders at such
---------------------------
time.
"Transaction" means and includes (i) each of the Credit Events occurring on the Initial Borrowing Date, (ii) the
-----------
Refinancing, (iii) such other transactions as are contemplated by the Documents, and (iv) the payment of fees and expenses in
connection with the foregoing.
"Transaction Documents" means, collectively, the Refinancing Documents, the Loan Documents, and any agreement,
----------------------
document, instrument and certificate executed and/or delivered after the date hereof pursuant to the terms of, or in connection with,
any of the foregoing.
"Transferee" has the meaning assigned to that term in Section 12.8(d).
---------- ---------------
"Type" means any type of Loan, namely, a Base Rate Loan, or a Eurocurrency Loan. For purposes hereof, the term
----
"Rate" shall include the Eurocurrency Rate, the Base Rate.
"UCC" means the Uniform Commercial Code as in effect from time to time in the relevant jurisdiction.
---
"Unmatured Event of Default" means an event, act or occurrence which with the giving of notice or the lapse of time
---------------------------
(or both) would become an Event of Default.
"Unpaid Drawing" has the meaning set forth in Section 2.8(d).
-------------- --------------
"Voting Securities" means any class of Capital Stock of a Person pursuant to which the holders thereof have, at the
------------------
time of determination, the general voting power under ordinary circumstances to vote for the election of directors, managers,
trustees or general partners of such Person (irrespective of whether or not at the time any other class or classes will have or might
have voting power by reason of the happening of any contingency).
"Weighted Average Life to Maturity" means, when applied to any Indebtedness at any date, the number of years
------------------------------------
obtained by dividing (a) the then outstanding principal amount of such Indebtedness into (b) the total of the product obtained by
multiplying (x) 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 (y) the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment.
"Wholly-Owned Subsidiary" means, with respect to any Person, any Subsidiary of such Person, all of the outstanding
------------------------
shares of capital stock of which (other than qualifying shares required to be owned by directors) are at the time owned directly or
indirectly by such Person and/or one or more Wholly-Owned Subsidiaries of such Person.
"written" or "in writing" means any form of written communication or a communication by means of telecopier device
-----------------------
or authenticated telex, telegraph or cable.
The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms.
The words "herein," "hereof" and words of similar import as used in this Agreement shall refer to this Agreement as a whole and not
to any particular provision in this Agreement. References to "Articles", "Sections", "paragraphs", "Exhibits" and "Schedules" in
this Agreement shall refer to Articles, Sections, paragraphs, Exhibits and Schedules of this Agreement unless otherwise expressly
provided; references to Persons include their respective permitted successors and assigns or, in the case of governmental Persons,
Persons succeeding to the relevant functions of such persons; and all references to statutes and related regulations shall include
any amendments of same and any successor statutes and regulations.
1.2 Accounting Terms; Financial Statements.
--------------------------------------
(a) All accounting terms used herein but not expressly defined in this Agreement shall have respective meanings given to them in
accordance with GAAP in effect on the date hereof. Except as otherwise expressly provided herein, all computations and
determinations for purposes of determining compliance with the financial requirements of this Agreement shall be made in accordance
with GAAP in effect in the United States of America on the date hereof and on a basis consistent with the presentation of the
financial statements for the period ended December 31, 2003 referred to in Section 6.5(a). Notwithstanding the foregoing sentence,
---------------
the financial statements required to be delivered pursuant to Section 7.1 shall be prepared in accordance with GAAP as in effect on
-----------
the respective dates of their preparation. Unless otherwise provided for herein, wherever any computation is to be made with respect
to any Person and its Subsidiaries, such computation shall be made so as to exclude all items of income, assets and liabilities
attributable to any Person which is not a Subsidiary of such Person.
(b) For purposes of computing the ratios in the financial covenants in Article IX as of the end of any Test Period, all
-----------
components of such ratios for the applicable Test Period shall include or exclude, as the case may be, without duplication, such
components of such ratios attributable to any business or material assets that have been acquired or disposed of by Company or any of
its Subsidiaries (including through mergers or consolidations) after the first day of such Test Period and prior to the end of such
Test Period on a Pro Forma Basis as determined in good faith by Company and certified to by a Responsible Officer of Company to the
Administrative Agent.
2.
AMOUNT AND TERMS OF CREDIT
1.3 The Commitments.
---------------
(a) Term Loans. Each Term B Lender, severally and for itself alone, hereby agrees, on the terms and subject to the conditions
----------
hereinafter set forth and in reliance upon the representations and warranties set forth herein and in the other Loan Documents, to
make a loan (each such loan, a "Term B Loan" and collectively, the "Term B Loans") to Company on the Initial Borrowing Date in an
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aggregate principal amount equal to the Term B Commitment of such Term B Lender. The Term B Loans (i) shall be incurred by Company
pursuant to a single drawing, which shall be on the Initial Borrowing Date, (ii) shall be denominated in Dollars, (iii) shall be made
as Base Rate Loans and, except as hereinafter provided, may, at the option of Company, be maintained as and/or converted into Base
Rate Loans or Eurocurrency Loans, provided, that (x) all Term B Loans made by the Term B Lenders pursuant to the same Borrowing
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shall, unless otherwise specifically provided herein, consist entirely of Term B Loans of the same Type and (y) no incurrences of, or
conversions into, Term B Loans maintained as Eurocurrency Loans may be effected prior to the earlier of (1) the 30th day after the
Initial Borrowing Date and (2) the date (the "Syndication Date" upon which the Administrative Agent determines in its sole discretion
----------------
(and notifies Company) that the primary syndication (and the resultant addition of Lenders pursuant to Section 12.8(c)) has been
----------------
completed and (iv) shall not exceed for any Lender at the time of incurrence thereof on the Initial Borrowing Date that aggregate
principal amount which equals the Term B Loan Commitment, if any, of such Lender at such time. Each Term B Lender's Term B
Commitment shall expire immediately and without further action on the Initial Borrowing Date if the Term Loans are not made on the
Initial Borrowing Date. No amount of a Term B Loan which is repaid or prepaid by Company may be reborrowed hereunder.
(b) Revolving Loans. Each Revolving Lender, severally and for itself alone, hereby agrees, on the terms and subject to the
----------------
conditions hereinafter set forth and in reliance upon the representations and warranties set forth herein and in the other Loan
Documents, to make loans to Company denominated in Dollars on a revolving basis from time to time during the Commitment Period, in an
amount not to exceed its Revolver Pro Rata Share of the Total Revolving Commitment (each such loan by any Lender, a "Revolving Loan"
--------------
and collectively, the "Revolving Loans"); provided that no such Revolving Loan shall be made if after giving effect thereto, the
----------------
Total Available Revolving Commitments would equal less than zero. All Revolving Loans comprising the same Borrowing hereunder shall
be made by the Revolving Lenders simultaneously and in proportion to their respective Revolving Commitments. Prior to the Revolver
Termination Date, Revolving Loans may be repaid and reborrowed by Company in accordance with the provisions hereof and, except as
otherwise specifically provided in Section 3.6, all Revolving Loans comprising the same Borrowing shall at all times be of the same
-----------
Type and, except as permitted by Administrative Agent in its sole discretion, no incurrences of, or conversions into, Revolving Loans
maintained as Eurocurrency Loans with an Interest Period in excess of seven (7) days may be effected prior to the earlier of (1) the
30th day after the Initial Borrowing Date and (2) the Syndication Date.
(c) Swing Line Loans.
----------------
(i) Subject to the terms and conditions hereof, the Swing Line Lender in its individual capacity agrees to make swing line loans
in Dollars ("Swing Line Loans") to Company on any Business Day from time to time during the Commitment Period in an aggregate
------------------
principal amount at any one time outstanding do not exceed $10,000,000; provided, however, that in no event may the amount of any
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Borrowing of Swing Line Loans (A) exceed the Total Available Revolving Commitment immediately prior to such Borrowing (after giving
effect to the use of proceeds thereof) or (B) cause the outstanding Revolving Loans of any Lender, when added to such Lender's
Revolver Pro Rata Share of the then outstanding Swing Line Loans and Revolver Pro Rata Share of the aggregate LC Obligations
(exclusive of Unpaid Drawings relating to LC Obligations which are repaid with the proceeds of, and simultaneously with the
incurrence of, Revolving Loans or Swing Line Loans) to exceed such Lender's Revolving Commitment. Amounts borrowed by Company under
this Section 2.1(c)(i) may be repaid and, to but excluding the Revolver Termination Date, reborrowed. Swing Line Loans shall be
------------------
made and maintained as Base Rate Loans and, notwithstanding Section 2.6, shall not be entitled to be converted into any other Type of
-----------
Loan.
(ii) Refunding of Swing Line Loans. Swing Line Lender, at any time in its sole and absolute discretion, may on behalf of Company
-----------------------------
(which hereby irrevocably directs Swing Line Lender to so act on its behalf) notify each Revolving Lender (including Swing Line
Lender) to make a Revolving Loan in an amount equal to such Lender's Revolver Pro Rata Share of the principal amount of Swing Line
Loans (the "Refunded Swing Line Loans") outstanding on the date such notice is given, provided, however, that such notice shall be
-------------------------- -------- -------
deemed to have automatically been given upon the occurrence of an Event of Default under Section 10.1(e) or 10.1(f) or upon the
---------------- -------
occurrence of a Change of Control. Unless any of the events described in Section 10.1(e) or 10.1(f) shall have occurred (in which
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event the procedures of Section 2.1(c)(iii) shall apply) and regardless of whether the conditions precedent set forth in this
--------------------
Agreement to the making of a Revolving Loan are then satisfied, each Revolving Lender shall make the proceeds of its Revolving Loan
available to Swing Line Lender at the Payment Office prior to 11:00 a.m., New York City time, in funds immediately available on the
Business Day next succeeding the date such notice is given. The proceeds of such Revolving Loans shall be immediately applied to
repay the Refunded Swing Line Loans.
(iii) Participation in Swing Line Loans. If, prior to refunding a Swing Line Loan with a Revolving Loan pursuant to Section
----------------------------------- --------
2.1(c)(ii), an Event of Default under Section 10.1(e) or 10.1(f) shall have occurred, or if for any other reason a Revolving Loan
---------- ---------------- -------
cannot be made pursuant to Section 2.1(c)(ii), then, subject to the provisions of Section 2.1(c)(iv) below, each Revolving Lender
------------------- -------------------
will, on the date such Revolving Loan was to have been made, purchase (without recourse or warranty) from Swing Line Lender an
undivided participation interest in the Swing Line Loan in an amount equal to its Revolver Pro Rata Share of such Swing Line Loan.
Upon request, each Revolving Lender will immediately transfer to Swing Line Lender, in immediately available funds, the amount of its
participation and upon receipt thereof Swing Line Lender will deliver to such Revolving Lender a Swing Line Loan Participation
Certificate dated the date of receipt of such funds and in such amount.
(iv) Lenders' Obligations Unconditional. Each Lender's obligation to make Revolving Loans in accordance with Section 2.1(c)(ii)
------------------------------------ ------------------
and to purchase participating interests in accordance with Section 2.1(c)(iii) above shall be absolute and unconditional and shall
--------------------
not be affected by any circumstance, including, without limitation, (A) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against Swing Line Lender, Company or any other Person for any reason whatsoever; (B) the occurrence or
continuance of any Event of Default or Unmatured Event of Default; (C) any adverse change in the condition (financial or otherwise)
of Company or any other Person; (D) any breach of this Agreement by Company or any other Person; (E) any inability of Company to
satisfy the conditions precedent to borrowing set forth in this Agreement on the date upon which such participating interest is to be
purchased or (F) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. If any
Lender does not make available to Swing Line Lender the amount required pursuant to Section 2.1(c)(ii) or (iii) above, as the case
------------------- -----
may be, the Swing Line Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for
each day from the date of non-payment until such amount is paid in full at the Federal Funds Rate for the first two Business Days and
at the Base Rate thereafter. Notwithstanding the foregoing provisions of this Section 2.1(c)(iv), no Lender shall be required to
------------------
make a Revolving Loan to Company for the purpose of refunding a Swing Line Loan pursuant to Section 2.1(c)(ii) above or to purchase a
-------------------
participating interest in a Swing Line Loan pursuant to Section 2.1(c)(iii) if an Event of Default or Unmatured Event of Default has
--------------------
occurred and is continuing and, prior to the making by Swing Line Lender of such Swing Line Loan, Swing Line Lender has received
written notice from such Lender specifying that such Event of Default or Unmatured Event of Default has occurred and is continuing,
describing the nature thereof and stating that, as a result thereof, such Lender shall cease to make such Refunded Swing Line Loans
and purchase such participating interests, as the case may be; provided, however, that the obligation of such Lender to make such
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Refunded Swing Line Loans and to purchase such participating interests shall be reinstated upon the earlier to occur of (y) the date
upon which such Lender notifies Swing Line Lender that its prior notice has been withdrawn and (z) the date upon which the Event of
Default or Unmatured Event of Default specified in such notice no longer is continuing.
1.4 Evidence of Indebtedness; Repayment of Loans.
--------------------------------------------
(a) Evidence of Indebtedness. At the request of any Lender (which request shall be made to Administrative Agent), Company's
-------------------------
obligation to pay the principal of and interest on all the Loans of any Facility made to it by such Lender shall be evidenced, (1) if
Term Loans, by a promissory note duly executed and delivered by Company substantially in the form of Exhibit 2.2(a)(1) hereto, with
------------------
blanks appropriately completed in conformity herewith and (2) if Revolving Loans, by a promissory note duly executed and delivered by
Company substantially in the form of Exhibit 2.2(a)(2) hereto, with blanks appropriately completed in conformity herewith.
-----------------
(b) Notation of Payments. Each Lender will note on its internal records the amount of each Loan made by it and each payment in
---------------------
respect thereof and will, prior to any transfer of any of its Notes, endorse on the reverse side thereof the outstanding principal
amount of Loans evidenced thereby. Failure to make any such notation shall not affect Company's or any Guarantor's obligations
hereunder or under the other applicable Loan Documents in respect of such Loans.
(c) Repayment of Loans. Company hereby unconditionally promises to pay to Administrative Agent for the account of the relevant
------------------
Lenders (i) in respect of Revolving Loans of Company, on the Revolver Termination Date (or such earlier date as, and to the extent
that, such Revolving Loan becomes due and payable pursuant to the terms of this Agreement), the unpaid principal amount of each
Revolving Loan made to it by each such Revolving Lender, and (ii) in respect of Term Loans of Company, on the applicable Term
Maturity Date (or such earlier date as, and to the extent that, such Term Loan becomes due and payable pursuant to the terms of this
Agreement), the unpaid principal amount of each Term Loan made to it by each such Term Lender. Company hereby further agrees to pay
interest in immediately available funds at the Payment Office on the unpaid principal amount of the Revolving Loans and Term Loans
made to it from time to time from the date hereof until payment in full thereof at the rates per annum, and on the dates, set forth
in Section 3.1.
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1.5 Minimum Amount of Each Borrowing; Maximum Number of Borrowings. The aggregate principal amount of each Borrowing by Company
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hereunder shall be not less than the Minimum Borrowing Amount and, if greater, shall be in Minimum Borrowing Multiples (other than
Swing Line Loans which may be in any amount over the Minimum Borrowing Amount) above such minimum (or, if less, the then Total
Available Revolving Commitment). More than one Borrowing may be incurred on any date; provided that at no time shall there be
outstanding more than seven Borrowings of Eurocurrency Loans under any Term Facility or more than seven Borrowings of Eurocurrency
Loans under the Revolving Facility.
1.6 Borrowing Options. The Term Loans and the Revolving Loans shall, at the option of Company except as otherwise provided in
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this Agreement, be (i) Base Rate Loans, (ii) Eurocurrency Loans, or (iii) part Base Rate Loans and part Eurocurrency Loans. As to
any Eurocurrency Loan, any Lender may, if it so elects, fulfill its commitment by causing a foreign branch or affiliate to make or
continue such Loan, provided that in such event that Lender's Loan shall, for the purposes of this Agreement, be considered to have
been made by that Lender and the obligation of Company to repay that Lender's Loan shall nevertheless be to that Lender and shall be
deemed held by that Lender, for the account of such branch or affiliate.
1.7 Notice of Borrowing. Whenever Company desires to make a Borrowing of any Loan hereunder, it shall give Administrative Agent
-------------------
at its Notice Office at least one Business Day's prior written notice (or telephonic notice promptly confirmed in writing), given not
later than 1:00 p.m. (New York City time) of each Base Rate Loan, and at least three Business Days' prior written notice (or
telephonic notice promptly confirmed in writing), given not later than 1:00 p.m. (New York City time), of each Eurocurrency Loan to
be made hereunder; provided, however, that a Notice of Borrowing with respect to Borrowings to be made on the date hereof may, at the
discretion of Administrative Agent, be delivered later than the time specified above. Whenever Company desires that Swing Line
Lender make a Swing Line Loan under Section 2.1(c), it shall deliver to Swing Line Lender prior to 12:00 noon (New York City time) on
---------------
the date of Borrowing written notice (or telephonic notice promptly confirmed in writing). Each such notice (each a "Notice of
----------
Borrowing"), which shall be in the form of Exhibit 2.5 hereto, shall be irrevocable, shall be deemed a representation by Company that
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all conditions precedent to such Borrowing have been satisfied and shall specify (i) the aggregate principal amount of the Loans to
be made pursuant to such Borrowing, (ii) the date of Borrowing (which shall be a Business Day) and (iii) whether the Loans being made
pursuant to such Borrowing are to be Swing Line Loans, and if not, whether such Loans are to be Base Rate Loans or Eurocurrency Loans
and, with respect to Eurocurrency Loans, the Interest Period to be applicable thereto. Administrative Agent shall as promptly as
practicable give each Lender written or telephonic notice (promptly confirmed in writing) of each proposed Borrowing, of such
Lender's Revolver Pro Rata Share thereof and of the other matters covered by the Notice of Borrowing. Without in any way limiting
Company's obligation to confirm in writing any telephonic notice, Administrative Agent or the Swing Line Lender (in the case of Swing
Line Loans) or the respective Facing Agent (in the case of Letters of Credit) may act without liability upon the basis of telephonic
notice believed by Administrative Agent in good faith to be from a Responsible Officer of Company prior to receipt of written
confirmation. Administrative Agent's records shall, absent manifest error, be final, conclusive and binding on Company with respect
to evidence of the terms of such telephonic Notice of Borrowing. Company hereby agrees not to dispute the Administrative Agent's,
DB's or such Facing Agent's record of the time of telephonic notice.
1.8 Conversion or Continuation. Company may elect (i) on any Business Day to convert Base Rate Loans or any portion thereof to
----------------------------
Eurocurrency Loans and (ii) at the end of any Interest Period with respect thereto, to convert Eurocurrency Loans or any portion
thereof into Base Rate Loans or to continue such Eurocurrency Loans or any portion thereof for an additional Interest Period;
provided, however, that the aggregate principal amount of the Eurocurrency Loans for each Interest Period therefor must be in an
aggregate principal amount equal to the Minimum Borrowing Amount for Eurocurrency Loans or Minimum Borrowing Multiples in excess
thereof and; provided, further that prior to the earlier of (a) the 30th day after the Initial Borrowing Date and (b) the Syndication
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Date, no Loan may be made as, or converted into, a Eurocurrency Loan with an Interest Period in excess of seven (7) days except as
permitted by Administrative Agent in its sole discretion (with all such Interest Periods ending on the same day during such period).
Each conversion or continuation of Loans of a Facility shall be allocated among the Loans of the Lenders in such Facility in
accordance with their respective Pro Rata Shares. Each such election shall be in substantially the form of Exhibit 2.6 hereto (a
-----------
"Notice of Conversion or Continuation") and shall be made by giving Administrative Agent at least three Business Days' (or one
----------------------------------------
Business Day in the case of a conversion into Base Rate Loans) prior written notice thereof to the Notice Office given not later than
12:00 p.m. (New York City time) specifying (i) the amount and type of conversion or continuation, (ii) in the case of a conversion to
or a continuation of Eurocurrency Loans, the Interest Period therefor, and (iii) in the case of a conversion, the date of conversion
(which date shall be a Business Day). Notwithstanding the foregoing, no conversion in whole or in part of Base Rate Loans to
Eurocurrency Loans, and no continuation in whole or in part of Eurocurrency Loans, shall be permitted at any time at which an
Unmatured Event of Default or an Event of Default shall have occurred and be continuing. If, within the time period required under
the terms of this Section 2.6, Administrative Agent does not receive a Notice of Conversion or Continuation from Company containing a
-----------
permitted election to continue any Eurocurrency Loans for an additional Interest Period or to convert any such Loans, then, upon the
expiration of the Interest Period therefor, such Loans will be automatically converted to Base Rate Loans. Each Notice of Conversion
or Continuation shall be irrevocable.
1.9 Disbursement of Funds and Presumptions by Administration Agent. No later than 12:00 p.m. (New York City time) on the date
-------------------------------------------------------------------
specified in each Notice of Borrowing (3:30 p.m. local time at the place of funding in the case of Swing Line Loans), each Lender
will make available its Pro Rata Share of Loans, of the Borrowing requested to be made on such date in immediately available funds,
at the Payment Office (for the account of such non-U.S. office of Administrative Agent as Administrative Agent may direct in the case
of Eurocurrency Loans) and Administrative Agent will make available to Company at its Payment Office the aggregate of the amounts so
made available by the Lenders not later than 2:00 p.m. (local time in the place of payment), or in the case of Swing Line Loans, 3:30
p.m. (local time in the place of payment). Unless Administrative Agent shall have been notified by any Lender at least one Business
Day prior to the date of Borrowing that such Lender does not intend to make available to Administrative Agent such Lender's portion
of the Borrowing to be made on such date, Administrative Agent may assume that such Lender has made such amount available to
Administrative Agent on such date of Borrowing and Administrative Agent may, but shall not be required to, in reliance upon such
assumption, make available to Company a corresponding amount. If such corresponding amount is not in fact made available to
Administrative Agent by such Lender on the date of Borrowing, Administrative Agent shall be entitled to recover such corresponding
amount on demand from such Lender. If such Lender does not pay such corresponding amount forthwith upon Administrative Agent's
demand therefor, Administrative Agent shall promptly notify Company and, if so notified, Company shall immediately pay such
corresponding amount to Administrative Agent. Administrative Agent shall also be entitled to recover from Company interest on such
corresponding amount in respect of each day from the date such corresponding amount was made available by Administrative Agent to
Company to the date such corresponding amount is recovered by Administrative Agent, at a rate per annum equal to the rate for Base
Rate Loans or Eurocurrency Loans, as the case may be, applicable during the period in question, provided, however, that any interest
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paid to Administrative Agent in respect of such corresponding amount shall be credited against interest payable by Company to such
Lender under Section 3.1 in respect of such corresponding amount. Any amount due hereunder to Administrative Agent from any Lender
-----------
which is not paid when due shall bear interest payable by such Lender, from the date due until the date paid, at the Federal Funds
Rate for amounts in Dollars for the first three days after the date such amount is due and thereafter at the Federal Funds Rate plus
1%, together with Administrative Agent's standard interbank processing fee. Further, such Lender shall be deemed to have assigned
any and all payments made of principal and interest on its Loans, amounts due with respect to its Letters of Credit (or its
participations therein) and any other amounts due to it hereunder first to Administrative Agent to fund any outstanding Loans made
available on behalf of such Lender by Administrative Agent pursuant to this Section 2.7 until such Loans have been funded (as a
------------
result of such assignment or otherwise) and then to fund Loans of all Lenders other than such Lender until each Lender has
outstanding Loans equal to its Pro Rata Share of all Loans (as a result of such assignment or otherwise). Such Lender shall not have
recourse against Company with respect to any amounts paid to Administrative Agent or any Lender with respect to the preceding
sentence; provided, that such Lender shall have full recourse against Company to the extent of the amount of such Loans it has so
--------
been deemed to have made. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment
hereunder or to prejudice any rights which Company may have against the Lender as a result of any default by such Lender hereunder.
1.10 Letters of Credit.
-----------------
(a) Letters of Credit Commitments. Subject to and upon the terms and conditions herein set forth, Company may request that
------------------------------
Facing Agent issue, at any time and from time to time on and after the Initial Borrowing Date, and prior to the 30th Business Day
preceding the Revolver Termination Date, (x) for the account of Company and for the benefit of any holder (or any trustee, agent or
other similar representative for any such holder) of LC Supportable Indebtedness of Company or any of its Subsidiaries, an
irrevocable standby letter of credit, in a form customarily used by Facing Agent, or in such other form as has been approved by
Facing Agent (each such standby letter of credit, a "Standby Letter of Credit") in support of such LC Supportable Indebtedness and
-------------------------
(y) for the account of Company and in support of trade obligations of Company or any of its Subsidiaries, an irrevocable sight letter
of credit in a form customarily used by Facing Agent or in such other form as has been approved by Facing Agent (each such letter of
credit, a "Commercial Letter of Credit"; and each such Commercial Letter of Credit and each Standby Letter of Credit, a "Letter of
---------------------------- ----------
Credit"), in support of commercial transactions of Company and its Subsidiaries; provided, however, no Letter of Credit shall be
------ -------- -------
issued the Stated Amount of which, when added to the LC Obligations (exclusive of Unpaid Drawings relating to Letters of Credit which
are repaid on the date of, and prior to the issuance of, the respective Letter of Credit at such time), would exceed either (x)
$25,000,000 or (y) when added to the aggregate principal amount of all Revolving Loans and Swing Line Loans then outstanding the
Total Revolving Commitment at such time.
(b) Obligation of Facing Agent to Issue Letter of Credit. Facing Agent may agree, in its sole discretion, that it will (subject
----------------------------------------------------
to the terms and conditions contained herein), at any time and from time to time on or after the Initial Borrowing Date and prior to
the Revolver Termination Date, following its receipt of the respective Letter of Credit Request, issue for the account of Company one
or more Letters of Credit (x) in the case of Standby Letters of Credit, in support of such LC Supportable Indebtedness of Company or
any of its Subsidiaries as is permitted to remain outstanding without giving rise to an Event of Default or Unmatured Event of
Default hereunder and (y) in the case of Commercial Letters of Credit, in support of trade obligations as referenced in Section
--------
2.8(a), provided that Facing Agent shall be under no obligation to issue any Letter of Credit of the types described above if at the
--------
time of such issuance:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall purport by its terms to enjoin or restrain
Facing Agent from issuing such Letter of Credit or any Requirement of Law applicable to Facing Agent from any Governmental Authority
with jurisdiction over Facing Agent shall prohibit, or request that Facing Agent refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon such Facing Agent with respect to such Letter of Credit any
restriction or reserve or capital requirement (for which Facing Agent is not otherwise compensated) not in effect on the date hereof,
or any unreimbursed loss, cost or expense which was not applicable, in effect or known to Facing Agent as of the date hereof and
which Facing Agent in good xxxxx xxxxx material to it; or
(ii) Facing Agent shall have received notice from any Lender prior to the issuance of such Letter of Credit of the type described
in Section 2.8(b)(ii)(A)(v).
------------------------
(A) Notwithstanding the foregoing, (i) other than the Standby Letter of Credit issued on the Initial Borrowing Date as part of
the Refinancing, each Standby Letter of Credit shall have an expiry date occurring not later than one year after such Standby Letter
of Credit's date of issuance, provided, that any Standby Letter of Credit may be automatically extendable for periods of up to one
--------
year so long as such Standby Letter of Credit provides that Facing Agent retains an option, satisfactory to Facing Agent, to
terminate such Standby Letter of Credit within a specified period of time prior to each scheduled extension date and (y) each
Commercial Letter of Credit shall have an expiry date occurring not later than 180 days after such Commercial Letter of Credit's date
of issuance; (ii) (x) no Standby Letter of Credit shall have an expiry date occurring later than 10 days prior to the Revolver
Termination Date and (y) no Commercial Letter of Credit shall have an expiry date occurring later than 30 days prior to the Revolver
Termination Date; (iii) each Letter of Credit shall be denominated in Dollars and be payable on a sight basis; (iv) the Stated Amount
of each Letter of Credit shall not be less than $50,000 or such lesser amount as is acceptable to Facing Agent; and (v) no Facing
Agent will issue any Letter of Credit after it has received written notice from Company or the Required Lenders stating that an Event
of Default or Unmatured Event of Default exists until such time as Facing Agent shall have received a written notice of (x)
rescission of such notice from the party or parties originally delivering the same or (y) a waiver of such Event of Default or
Unmatured Event of Default by the Required Lenders (or all the Lenders to the extent required by Section 12.1).
------------
(B) Notwithstanding the foregoing, in the event a Lender Default exists, Facing Agent shall not be required to issue any Letter
of Credit unless Facing Agent has entered into arrangements satisfactory to it and Company to eliminate Facing Agent's risk with
respect to the participation in Letters of Credit of the Defaulting Lender or Lenders, including by cash collateralizing such
Defaulting Lender or Lenders' applicable Revolver Pro Rata Share of the applicable LC Obligations.
(c) Letter of Credit Requests; Notices of Issuance. Whenever it desires that a Letter of Credit be issued, Company shall give
------------------------------------------------
Administrative Agent and Facing Agent written notice thereof prior to 1:00 p.m. (New York City time) at least three Business Days (or
such shorter period as may be acceptable to Facing Agent) prior to the proposed date of issuance (which shall be a Business Day)
which written notice shall be in the form of Exhibit 2.8(c) (each a "Letter of Credit Request") and may be submitted via facsimile to
--------------- -------------------------
Facing Agent (who may rely upon such facsimile if it were an original thereof). Each such notice shall specify (A) the proposed
issuance date and expiration date, (B) the name(s) of each obligor with respect to such Letter of Credit, (C) Company as the account
party, (D) the name and address of the beneficiary (which Person shall be acceptable to Facing Agent), (E) the Stated Amount of such
proposed Letter of Credit and (F) the purpose of such Letter of Credit (which shall be acceptable to Administrative Agent and Facing
Agent) and such other information as Facing Agent may reasonably request. In addition, each Letter of Credit Request shall contain a
description of the terms and conditions to be included in such proposed Letter of Credit (all of which terms and conditions shall be
acceptable to Facing Agent). Unless otherwise specified, all Letters of Credit will be governed by the Uniform Customs and Practices
for Documentary Credit Operations as in effect on the date of issuance of such Letter of Credit. Each Letter of Credit Request shall
include any other documents as Facing Agent customarily requires in connection therewith. In the event of any conflict between the
terms of such customary documents and this Agreement, the terms of this Agreement shall control. In the case of Standby Letters of
Credit, Facing Agent shall, promptly after the issuance of or amendment or modification to a Standby Letter of Credit, give
Administrative Agent and Company written notice of the issuance, amendment or modification of such Letter of Credit, accompanied by a
copy of such issuance, amendment or modification. Promptly upon receipt of such notice, Administrative Agent shall give each
Revolving Lender written notice of such issuance, amendment or modification, and if so requested by any Revolving Lender,
Administrative Agent shall provide such Revolving Lender with copies of such issuance, amendment or modification. With regards to
Commercial Letters of Credit, Facing Agent shall furnish to Administrative Agent by facsimile, on the first Business Day of each
week, a report detailing the aggregate daily total outstanding Commercial Letters of Credit for such Facing Agent during the prior
week.
(d) Agreement to Repay Letter of Credit Payments.
--------------------------------------------
(i) Company hereby agrees to reimburse Facing Agent, by making payment to Administrative Agent in immediately available funds in
Dollars at the Payment Office, for any payment or disbursement made by Facing Agent under and in accordance with any Letter of Credit
(each such amount so paid or disbursed until reimbursed, an "Unpaid Drawing"), no later than one Business Day after the date on which
--------------
Company receives notice of such payment or disbursement, with interest on the amount so paid or disbursed by Facing Agent, to the
extent not reimbursed prior to 12:00 Noon (New York City time) on the date of such payment or disbursement, from and including the
date paid or disbursed to but excluding the date Facing Agent is reimbursed therefor by Company at a rate per annum which shall be
the Base Rate in effect from time to time plus the Applicable Eurocurrency Margin for Revolving Loans, provided, however, that,
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anything contained in this Agreement to the contrary notwithstanding, (i) unless Company shall have notified Administrative Agent and
Facing Agent prior to 11:00 a.m. (New York City time) on the Business Day following receipt of such notice that Facing Agent will be
reimbursed for the amount of such Unpaid Drawing with funds other than the proceeds of Revolving Loans, Company shall be deemed to
have timely given a Notice of Borrowing to Administrative Agent requesting each Revolving Lender to make Revolving Loans which are
Base Rate Loans on the date on which such Unpaid Drawing is honored in an amount equal to the Dollar Equivalent of the amount of such
Unpaid Drawing and Administrative Agent shall, if such Notice of Borrowing is deemed given, promptly notify the Lenders thereof and
(ii) unless any of the events described in Section 10.1(e) or 10.1(f) shall have occurred (in which event the procedures of Section
---------------- ------- --------
2.8(e) shall apply), each such Revolving Lender shall, on the date such drawing is honored, make Revolving Loans which are Base Rate
------
Loans in the amount of its Revolver Pro Rata Share of the Dollar Equivalent of such Unpaid Drawing, the proceeds of which shall be
applied directly by Administrative Agent to reimburse Facing Agent for the amount of such Unpaid Drawing; and provided, further,
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that, if for any reason, proceeds of Revolving Loans are not received by Facing Agent on such date in an amount equal to the amount
of such drawing, Company shall reimburse Facing Agent, on the Business Day immediately following the date such drawing is honored, in
an amount in same day funds equal to the excess of the amount of such drawing over the amount of such Revolving Loans, if any, which
are so received, plus accrued interest on such amount at the rate set forth in Section 3.1(a); provided, however, to the extent such
-------------- -------- -------
amounts are not reimbursed prior to 12:00 Noon (New York City time) on the fifth Business Day following such payment or disbursement,
interest shall thereafter accrue on the amounts so paid or disbursed by Facing Agent (and until reimbursed by Company) at a rate per
annum which shall be the Base Rate in effect from time to time plus the Applicable Base Rate Margin for Revolving Loans (plus an
additional 2% per annum), such interest also to be payable on demand. Facing Agent shall give Company prompt notice of each Drawing
under any Letter of Credit, provided that the failure to give any such notice shall in no way affect, impair or diminish Company's
obligations hereunder.
(ii) The obligations of Company under this Section 2.8(d) to reimburse Facing Agent with respect to drawings on Letters of Credit
--------------
(each, a "Drawing") (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances
-------
and irrespective of any setoff, counterclaim or defense to payment which Company may have or have had against Facing Agent,
Administrative Agent or any Lender (including in its capacity as issuer of the Letter of Credit or as LC Participant), or any
non-application or misapplication by the beneficiary of the proceeds of such Drawing, Facing Agent's only obligation to Company being
to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they appear
to comply on their face with the requirements of such Letter of Credit.
(e) Letter of Credit Participations. Immediately upon the issuance by Facing Agent of any Letter of Credit, Facing Agent shall
--------------------------------
be deemed to have sold and transferred to each Revolving Lender, other than Facing Agent (each such Lender, in its capacity under
this Section 2.8(e), a "LC Participant"), and each such LC Participant shall be deemed irrevocably and unconditionally to have
--------------- ---------------
purchased and received from Facing Agent, without recourse or warranty, an undivided interest and participation, to the extent of
such Revolving Lender's Revolver Pro Rata Share, in such Letter of Credit, each substitute Letter of Credit, each Drawing made
thereunder and the obligations of Company under this Agreement with respect thereto (although Letter of Credit fees shall be payable
directly to Administrative Agent for the account of the LC Participant as provided in Section 2.8(g) and the LC Participants shall
---------------
have no right to receive any portion of the facing fees), and any security therefor or guaranty pertaining thereto. Upon any change
in the Revolving Commitments of the Revolving Lenders, it is hereby agreed that, with respect to all outstanding Letters of Credit
and Unpaid Drawings relating to Letters of Credit, there shall be an automatic adjustment pursuant to this Section 2.8(e) to reflect
--------------
the new Revolver Pro Rata Share of the assignor and assignee Lender or of all Lenders with Revolving Commitments, as the case may be.
In determining whether to pay under any Letter of Credit, Facing Agent shall have no obligation relative to the LC Participants other
than to confirm that any documents required to be delivered under such Letter of Credit appear to have been delivered and that they
appear to comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by Facing
Agent under or in connection with any Letter of Credit issued by it if taken or omitted in the absence of gross negligence or willful
misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction, shall not create for
Facing Agent any resulting liability to Company or any Lender.
(f) Draws Upon Letter of Credit; Reimbursement Obligations. (i) In the event that Facing Agent makes any payment under any
---------------------------------------------------------
Letter of Credit issued by it and Company shall not have reimbursed such amount in full to Facing Agent pursuant to Section 2.8(d),
--------------
Facing Agent shall promptly notify Administrative Agent, and Administrative Agent shall promptly notify each LC Participant of such
failure, and each such LC Participant shall promptly and unconditionally pay to Administrative Agent for the account of Facing Agent,
the amount of such LC Participant's applicable Revolver Pro Rata Share of such payment and in same day funds; provided, however, that
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no LC Participant shall be obligated to pay to Administrative Agent its applicable Revolver Pro Rata Share of such unreimbursed
amount for any wrongful payment made by Facing Agent under a Letter of Credit issued by it as a result of acts or omissions
constituting willful misconduct or gross negligence as determined by a final and non-appealable judgment rendered by a court of
competent jurisdiction on the part of Facing Agent. If Administrative Agent so notifies any LC Participant required to fund a
payment under a Letter of Credit prior to 11:00 a.m. (New York City time) on any Business Day, such LC Participant shall make
available to Administrative Agent for the account of the respective Facing Agent such LC Participant's applicable Revolver Pro Rata
Share of the amount of such payment on such Business Day in same day funds. If and to the extent such LC Participant shall not have
so made its applicable Revolver Pro Rata Share of the amount of such payment available to Administrative Agent for the account of
Facing Agent, such LC Participant agrees to pay to Administrative Agent for the account of Facing Agent, forthwith on demand such
amount, together with interest thereon, for each day from such date until the date such amount is paid to Administrative Agent for
the account of Facing Agent at the overnight Federal Funds rate. The failure of any LC Participant to make available to
Administrative Agent for the account of Facing Agent its applicable Revolver Pro Rata Share of any payment under any Letter of Credit
issued by it shall not relieve any other LC Participant of its obligation hereunder to make available to Administrative Agent for the
account of Facing Agent its applicable Revolver Pro Rata Share of any payment under any such Letter of Credit on the day required, as
specified above, but no LC Participant shall be responsible for the failure of any other LC Participant to make available to
Administrative Agent for the account of Facing Agent such other LC Participant's applicable Revolver Pro Rata Share of any such
payment.
(ii) Whenever Facing Agent receives a payment of a reimbursement obligation as to which Administrative Agent has received for the
account of Facing Agent any payments from the LC Participants pursuant to this Section 2.8(f), Facing Agent shall pay to
---------------
Administrative Agent and Administrative Agent shall pay to each LC Participant which has paid its Revolver Pro Rata Share thereof, in
Dollars and in same day funds, an amount equal to such LC Participant's Revolver Pro Rata Share of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of the respective participations.
(iii) The obligations of the LC Participants to make payments to Facing Agent with respect to Letters of Credit issued by it shall
be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:
(A) any lack of validity or enforceability of this Agreement or any of the other Loan Documents;
(B) The existence of any claim, setoff, defense or other right which Company or any of its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any Person for whom any such transferee
may be acting), Administrative Agent, any LC Participant, or any other Person, whether in connection with this Agreement, any Letter
of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between Company
or any of its Subsidiaries and the beneficiary named in any such Letter of Credit);
(C) any draft, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect to any statement therein being untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Loan
Documents; or
(E) the occurrence of any Event of Default or Unmatured Event of Default.
(g) Fees for Letters of Credit.
--------------------------
(i) Facing Agent Fees. Company agrees to pay the following amount to Facing Agent with respect to the Letters of Credit issued
-----------------
by it for the account of Company:
(A) with respect to payments made under any Letter of Credit, interest, payable on demand, on the amount paid by Facing Agent in
respect of each such payment from the date of the payments through the date such amount is reimbursed by Company (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to Section 2.8(d)) at a rate determined in accordance with the terms of
--------------
Section 2.8(d)(i);
-----------------
(B) with respect to the issuance or amendment of each Letter of Credit and each payment made thereunder, documentary and
processing charges in accordance with Facing Agent's standard schedule for such charges in effect at the time of such issuance,
amendment, transfer or payment, as the case may be; and
(C) a facing fee equal to one-eighth of one percent (0.125%) per annum of outstanding LC Obligations payable in arrears on each
Quarterly Payment Date and on the Revolver Termination Date and thereafter, on demand together with customary issuance and payment
charges, provided that a minimum fee of $500.00 per annum shall be payable per Letter of Credit.
(ii) Participating Lender Fees. Company agrees to pay to Administrative Agent for distribution to each participating Lender in
--------------------------
respect of all Letters of Credit outstanding such Lender's Revolver Pro Rata Share of a commission equal to the then Applicable
Eurocurrency Margin for Revolving Loans with respect to the Effective Amount under such outstanding Letters of Credit (the "LC
---
Commission"), payable in arrears on and through each Quarterly Payment Date, on the Revolver Termination Date and thereafter, on
----------
demand. The LC Commission shall be computed on a daily basis from the first day of issuance of each Letter of Credit and on the
basis of the actual number of days elapsed over a year of 360 days.
Promptly upon receipt by Facing Agent or Administrative Agent of any amount described in clause (i)(A) or (ii) of
this Section 2.8(g), Facing Agent or Administrative Agent shall distribute to each Lender that has reimbursed Facing Agent in
---------------
accordance with Section 2.8(d) its Revolver Pro Rata Share of such amount. Amounts payable under clause (i)(B) and (C) of this
---------------
Section 2.8(g) shall be paid directly to Facing Agent.
--------------
(h) Indemnification. In addition to amounts payable as elsewhere provided in this Agreement, Company hereby agrees to protect,
---------------
indemnify, pay and save Facing Agent harmless, on an after-tax basis, from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable attorneys' fees) (other than Excluded Taxes, except to the extent
such amounts are required to be paid to make an indemnity payment on an after-tax basis) which Facing Agent may incur or be subject
to as a consequence, direct or indirect, of (i) the issuance of the Letters of Credit, other than as a result of the gross negligence
or willful misconduct as determined by a final and non-appealable judgment rendered by a court of competent jurisdiction of Facing
Agent or (ii) the failure of Facing Agent to honor a Drawing under any Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority (all such acts or omissions
herein called "Government Acts"). As between Company and Facing Agent, Company assumes all risks of the acts and omissions of, or
----------------
misuse of the Letters of Credit issued by Facing Agent by, the respective beneficiaries of such Letters of Credit. In furtherance
and not in limitation of the foregoing, Facing Agent shall not be responsible: (i) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of or any
Drawing under such Letters of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or
assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) for failure of the beneficiary of any such Letter of Credit to comply fully with
conditions required in order to draw upon such Letter of Credit so long as any documents presented materially comply with the
applicable forms of such documents in possession of Facing Agent; (iv) for errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) for errors in
interpretation of technical terms; (vi) for any loss or delay in the transmission or otherwise of any document required in order to
make a Drawing under any such Letter of Credit or of the proceeds thereof; (vii) for the misapplication by the beneficiary of any
such Letter of Credit of the proceeds of any Drawing under such Letter of Credit; and (viii) for any consequences arising from causes
beyond the control of Facing Agent, including, without limitation, any acts of Government Authority. None of the above shall affect,
impair, or prevent the vesting of any rights or powers of Facing Agent hereunder.
In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action
taken or omitted by Facing Agent under or in connection with the Letters of Credit issued by it or the related certificates, if taken
or omitted in good faith, shall not put Facing Agent under any resulting liability to Company. Notwithstanding anything to the
contrary contained in this Agreement, Company shall have no obligation to indemnify Facing Agent in respect of any liability incurred
by Facing Agent arising solely out of the gross negligence or willful misconduct of Facing Agent. The right of indemnification in
the first paragraph of this Section 2.8(h) shall not prejudice any rights that Company may otherwise have against Facing Agent with
---------------
respect to a Letter of Credit issued hereunder.
(i) Increased Costs. If at any time after the date hereof any Change in Law by any Governmental Authority charged with the
----------------
interpretation or administration thereof, or compliance by Facing Agent or such Lender with any request or directive by any such
authority (whether or not having the force of law or any change in GAAP), shall either (i) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against letters of credit issued by Facing Agent or participated in by any
Lender, or (ii) impose on Facing Agent or any Lender any other conditions relating, directly or indirectly, to this Agreement or any
Letter of Credit; and the result of any of the foregoing is to increase the cost to Facing Agent or any Lender of issuing,
maintaining or participating in any Letter of Credit, or reduce the amount of any sum received or receivable by Facing Agent or any
Lender hereunder or reduce the rate of return on its capital with respect to Letters of Credit (in each case, to the extent not on
account of any Excluded Taxes), then, upon demand to Company by Facing Agent or any Lender (a copy of which demand shall be sent by
Facing Agent or such Lender to Administrative Agent), Company shall pay to Facing Agent or such Lender such additional amount or
amounts as will compensate such Lender, on an after-tax basis, for such increased cost or reduction in the amount receivable or
reduction on the rate of return on its capital. Facing Agent or any Lender, upon determining that any additional amounts will be
payable pursuant to this Section 2.8(i), will give prompt written notice thereof to Company, which notice shall include a certificate
--------------
submitted to Company by Facing Agent or such Lender (a copy of which certificate shall be sent by Facing Agent or such Lender to
Administrative Agent), setting forth in reasonable detail the basis for the calculation of such additional amount or amounts
necessary to compensate Facing Agent or such Lender, although failure to give any such notice (unless the Facing Agent has
intentionally withheld or delayed such notice, in which case the Facing Agent shall not be entitled to receive additional amounts
pursuant to this Section 2.8 for period occurring prior to the 180th day before the giving of such notice) shall not release or
------------
diminish Company's obligations to pay additional amounts pursuant to this Section 2.8(i). The certificate required to be delivered
--------------
pursuant to this Section 2.8(i) shall, absent manifest error, be final, conclusive and binding on Company.
--------------
1.11 Pro Rata Borrowings. All Borrowings of Loans under this Agreement shall be loaned by the Lenders pro rata on the basis of
--------------------
their applicable Commitments. No Lender shall be responsible for any default by any other Lender in its obligation to make Loans
hereunder and each Lender shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any
other Lender to fulfill its Commitments hereunder.
3.
INTEREST AND FEES
1.12 Interest.
--------
(a) Base Rate Loans. Company agrees to pay interest in respect of the unpaid principal amount of each Base Rate Loan from the
---------------
date the proceeds thereof are made available to Company (or, if such Base Rate Loan was converted from a Eurocurrency Loan, the date
of such conversion) until the earlier of (i) the maturity (whether by acceleration or otherwise) of such Base Rate Loan or (ii) the
conversion of such Base Rate Loan to a Eurocurrency Loan pursuant to Section 2.6 at a rate per annum equal to the Base Rate plus the
-----------
relevant Applicable Base Rate Margin.
(b) Eurocurrency Loans. Company agrees to pay interest in respect of the unpaid principal amount of each Eurocurrency Loan from
-------------------
the date the proceeds thereof are made available to Company (or, if such Eurocurrency Loan was converted from a Base Rate Loan, the
date of such conversion) until the earlier of (i) the maturity (whether by acceleration or otherwise) of such Eurocurrency Loan or
(ii) the conversion of such Eurocurrency Loan to a Base Rate Loan pursuant to Section 2.6 at a rate per annum equal to the
------------
Eurocurrency Rate plus the relevant Applicable Eurocurrency Margin.
(c) Payment of Interest. Interest on each Loan shall be payable in arrears on each Interest Payment Date; provided, however,
------------------- -------- -------
that interest accruing pursuant to Section 3.1(e) shall be payable from time to time on demand. Interest shall also be payable on
---------------
all then outstanding Revolving Loans on the Revolver Termination Date and on all Loans on the date of repayment (including
prepayment) thereof (except that voluntary prepayments of Revolving Loans that are Base Rate Loans made pursuant to Section 4.3 on
-----------
any day other than a Quarterly Payment Date or the Revolver Termination Date need not be made with accrued interest from the most
recent Quarterly Payment Date, provided such accrued interest is paid on the next Quarterly Payment Date) and on the date of maturity
(by acceleration or otherwise) of such Loans. During the existence of any Event of Default, interest on any Loan shall be payable on
demand.
(d) Notification of Rate. Administrative Agent, upon determining the interest rate for any Borrowing of Eurocurrency Loans for
--------------------
any Interest Period, shall promptly notify Company and the Lenders thereof. Such determination shall, absent manifest error and
subject to Section 3.6, be final, conclusive and binding upon all parties hereto.
-----------
(e) Default Interest. Notwithstanding the rates of interest specified herein, after the occurrence and continuance of any Event
----------------
of Default (other than the failure to pay Obligations when due) and notice from Administrative Agent or the Required Lenders of the
intent to impose the Default Rate and for so long thereafter as any such Event of Default shall be continuing or not waived, and
effective immediately upon any failure to pay any Obligations or any other amounts due under any of the Loan Documents when due,
whether by acceleration or otherwise, the principal balance of each Loan then outstanding and, to the extent permitted by applicable
law, any interest payment on each Loan not paid when due or other amounts then due and payable shall bear interest payable on demand,
after as well as before judgment at a rate per annum equal to the Default Rate.
(f) Maximum Interest. If any interest payment or other charge or fee payable hereunder exceeds the maximum amount then
-----------------
permitted by applicable law, Company shall be obligated to pay the maximum amount then permitted by applicable law and Company shall
continue to pay the maximum amount from time to time permitted by applicable law until all such interest payments and other charges
and fees otherwise due hereunder (in the absence of such restraint imposed by applicable law) have been paid in full. To the extent
necessary to comply with applicable usury law, provisions of the Mortgages related to maximum rates of interest are incorporated
herein by reference and shall control and supersede any provision hereof or of any other Loan Document to the contrary.
1.13 Fees.
----
(a) Upfront Fees. Company shall pay the fees as set forth in the Fee Letter at the times set forth in such letter between
-------------
Company, DBSI and DB to Administrative Agent for distribution as set forth therein.
(b) Commitment Fees. Company shall pay to Administrative Agent for pro rata distribution to each Non-Defaulting Lender having a
---------------
Revolving Commitment (based on its Revolver Pro Rata Share) a commitment fee (the "Commitment Fee") for the period commencing on the
---------------
Initial Borrowing Date to and including the Revolver Termination Date or the earlier termination of the Revolving Commitments (and,
in either case, repayment in full of the Revolving Loans and payment in full, or collateralization (by the deposit of cash into the
Collateral Account or otherwise) in amounts and pursuant to arrangements satisfactory to Administrative Agent and Facing Agent, of
the LC Obligations), computed at a rate equal to the Applicable Commitment Fee Percentage per annum on the average daily Total
Available Revolving Commitment (with the Available Revolving Commitment of each Lender determined without reduction for such Lender's
Revolver Pro Rata Share of Swing Line Loans outstanding and without reduction for any reserve in existence pursuant to Section
--------
4.4(c)). Unless otherwise specified, accrued Commitment Fees shall be due and payable (i) on each Quarterly Payment Date, (ii) on the
Revolver Termination Date and (iii) upon any reduction or termination in whole or in part of the Revolving Commitments (but only, in
the case of a reduction, on the portion of the Revolving Commitments then being reduced).
(c) Agency Fees. Company shall pay to Administrative Agent for its own account, agency and other Loan fees in the amount and at
-----------
the times set forth in the letter agreement between Company and Administrative Agent.
1.14 Computation of Interest and Fees. Interest on all Loans and fees payable hereunder shall be computed on the basis of the
----------------------------------
actual number of days elapsed over a year of 360 days; provided that interest on all Base Rate Loans shall be computed on the basis
of the actual number of days elapsed over a year of 365 or 366 days, as the case may be. Each determination of an interest rate by
Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on Company and its Subsidiaries and
the Lenders in the absence of manifest error. Administrative Agent shall, at any time and from time to time upon request of Company,
deliver to Company a statement showing the quotations used by Administrative Agent in determining any interest rate applicable to
Loans pursuant to this Agreement.
1.15 Interest Periods. At the time it gives any Notice of Borrowing or a Notice of Conversion or Continuation with respect to
-----------------
Eurocurrency Loans, Company shall elect, by giving Administrative Agent written notice, the interest period (each an "Interest
---------
Period") which Interest Period shall, at the option of Company, be one, two, three or six months or, if available to each of the
applicable Lenders (as determined by each such applicable Lender in its sole discretion) a nine or twelve month period, provided that
prior to the earlier to occur of the Syndication Date and thirty (30) days after the Initial Borrowing Date, Interest Periods for
Eurocurrency Loans shall be seven days, except as permitted by Administrative Agent in its sole discretion (with all such Interest
Periods ending on the same day during such period); provided, further, that:
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(a) all Eurocurrency Loans comprising a Borrowing shall at all times have the same Interest Period;
(b) the initial Interest Period for any Eurocurrency Loan shall commence on the date of such Borrowing of such Eurocurrency Loan
(including the date of any conversion thereto from a Loan of a different Type) and each Interest Period occurring thereafter in
respect of such Eurocurrency Loan shall commence on the last day of the immediately preceding Interest Period;
(c) if any Interest Period relating to a Eurocurrency Loan begins on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar
month;
(d) if any Interest Period would otherwise expire on a day which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided, however, that if any Interest Period for a Eurocurrency Loan would otherwise expire on a day
-------- -------
which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period
shall expire on the next preceding Business Day;
(e) no Interest Period may be selected at any time when an Unmatured Event of Default or Event of Default is then in existence;
(f) no Interest Period shall extend beyond the applicable Term Maturity Date for any Term Loan or the Revolver Termination Date
for any Revolving Loan; and
(g) no Interest Period in respect of any Borrowing of Term Loans of any Facility shall be selected which extends beyond any date
upon which a mandatory repayment of such Term Loan Facility will be required to be made under Section 4.4(b), (c) or (d) as the case
--------------- ---
may be, if the aggregate principal amount of Term Loans of such Facility, which have Interest Periods which will expire after such
date will be in excess of the aggregate principal amount of Term Loans of such Facility then outstanding less the aggregate amount of
such required prepayment.
1.16 Compensation for Funding Losses. Company shall compensate each Lender, upon its written request (which request shall set
---------------------------------
forth the basis for requesting such amounts), for all losses, expenses and liabilities (including, without limitation, any interest
paid by such Lender to lenders of funds borrowed by it to make or carry its Eurocurrency Loans to the extent not recovered by the
Lender in connection with the liquidation or re-employment of such funds (but not failure to receive the Applicable Eurocurrency
Margin) and including the compensation payable by such Lender to a Participant) and any loss sustained by such Lender in connection
with the liquidation or re-employment of such funds (including, without limitation, a return on such liquidation or re-employment
that would result in such Lender receiving less than it would have received had such Eurocurrency Loan remained outstanding until the
last day of the Interest Period applicable to such Eurocurrency Loans) which such Lender may sustain as a result of:
(a) for any reason (other than a default by such Lender or Administrative Agent) a continuation or Borrowing of, or conversion
from or into, Eurocurrency Loans does not occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion or
Continuation (whether or not withdrawn);
(b) any payment, prepayment or conversion or continuation of any of its Eurocurrency Loans occurring for any reason whatsoever
on a date which is earlier than the last day of an Interest Period applicable thereto;
(c) any repayment of any of its Eurocurrency Loans not being made on the date specified in a notice of payment given by Company;
or
(d) (i) any other failure by Company to repay its Eurocurrency Loans when required by the terms of this Agreement or (ii) an
election made by Company pursuant to Section 3.7. A written notice as to additional amounts owed such Lender under this Section 3.5
----------- -----------
and delivered to Company and Administrative Agent by such Lender shall, absent manifest error, be final, conclusive and binding for
all purposes. Calculation of all amounts payable to a Lender under this Section 3.5 shall be made as though that Lender had actually
-----------
funded its relevant Eurocurrency Loan through the purchase of a Eurocurrency deposit bearing interest at the Eurocurrency Rate in an
amount equal to the amount of that Loan, having a maturity comparable to the relevant Interest Period and through the transfer of
such Eurocurrency deposit from an offshore office of that Lender to a domestic office of that Lender in the United States of America;
provided, however, that each Lender may fund each of its Eurocurrency Loans in any manner it sees fit and the foregoing assumption
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shall be utilized only for the calculation of amounts payable under this Section 3.5.
-----------
1.17 Increased Costs, Illegality, Etc.
--------------------------------
(a) Generally. In the event that any Lender shall have determined (which determination shall, absent manifest error, be final
---------
and conclusive and binding upon all parties hereto but, with respect to clause (i) below, may be made only by Administrative Agent):
(i) on any Interest Rate Determination Date that, by reason of any changes arising after the date of this Agreement affecting
the interbank Eurocurrency market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis
provided for in the definition of Eurocurrency Rate; or
(ii) at any time, that any Lender shall incur increased costs or reduction in the amounts received or receivable hereunder with
respect to any Eurocurrency Loan because of (x) any Change in Law since the date of this Agreement such as, for example, but not
limited to: (A) the imposition of any tax of any kind with respect to this Agreement or any Eurodollar Loan or a change in the basis
of taxation of payments to any Lender of the principal of or interest on the Notes or any other amounts payable hereunder (except for
changes to the extent relating to Excluded Taxes and Taxes covered under Section 4.7) or (B) a change in official reserve, special
-----------
deposit, compulsory loan, insurance charge or similar requirements by any Governmental Authority (but, in all events, excluding
reserves required under Regulation D to the extent included in the computation of the Eurocurrency Rate) and/or (y) other
circumstances since the date of this Agreement affecting such Lender or the interbank Eurocurrency market or the position of such
Lender in such market (excluding, however, differences in a Lender's cost of funds from those of Administrative Agent which are
solely the result of credit differences between such Lender and Administrative Agent); or
(iii) at any time, that the making or continuance of any Eurocurrency Loan has been made (x) unlawful by any law, directive or
governmental rule, regulation or order, (y) impossible by compliance by any Lender in good faith with any governmental request
(whether or not having force of law) or (z) impracticable as a result of a contingency occurring after the date of this Agreement
which materially and adversely affects the interbank Eurocurrency market;
then, (x) in the case of clause (i) above, Eurocurrency Loans shall no longer be available until such time as Administrative Agent
notifies Company and the Lenders that the circumstances giving rise to such notice by Administrative Agent no longer exist, and any
Notice of Borrowing or Notice of Conversion or Continuation given by Company with respect to Eurocurrency Loans (other than with
respect to conversions to Base Rate Loans) which have not yet been incurred (including by way of conversion) shall be deemed
rescinded by Company, (y) in the case of clause (ii) above, Company shall pay to such Lender, within ten days of written demand
therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise
as such Lender shall reasonably determine) as shall be required to compensate such Lender for such increased costs or reductions in
amounts received or receivable hereunder and (z) in the case of clause (iii) above, Company shall take one of the actions specified
in Section 3.6(b) as promptly as possible and, in any event, within the time period required by law.
--------------
(b) Eurocurrency Loans. At any time that any Eurocurrency Loan is affected by the circumstances described in Section 3.6(a)(ii)
------------------- -------------------
or (iii), Company may (and, in the case of a Eurocurrency Loan affected by the circumstances described in Section 3.6(a)(iii), shall)
----- --------------------
either (i) if the affected Eurocurrency Loan is then being made initially or pursuant to a conversion, by giving Administrative Agent
telephonic notice (confirmed in writing) on the same date that Company was notified by the affected Lender or Administrative Agent
pursuant to Section 3.6(a)(ii) or (iii), cancel the respective Borrowing, or (ii) if the affected Eurocurrency Loan is then
------------------ -----
outstanding, upon at least three Business Days' written notice to Administrative Agent, require the affected Lender to convert such
Eurocurrency Loan into a Base Rate Loan, provided, that if more than one Lender is affected at any time, then all affected Lenders
--------
must be treated the same pursuant to this Section 3.6(b).
--------------
(c) Capital Requirements. If any Lender determines that any Change in Law concerning capital adequacy by any Governmental
---------------------
Authority, will have the effect of increasing the amount of capital required or expected to be maintained by such Lender or any
corporation controlling such Lender based on the existence of such Lender's Commitments hereunder or its obligations hereunder, then
Company shall pay to such Lender, within ten days of its written demand therefor, such additional amounts as shall be required to
compensate such Lender or such other corporation for the increased cost to such Lender or such other corporation or the reduction in
the rate of return to such Lender or such other corporation as a result of such increase of capital.
(d) Certificates for Reimbursement. Each Lender, upon determining that any additional amounts will be payable pursuant to this
-------------------------------
Section 3.6, will give prompt written notice thereof to Company and Administrative Agent (which notice Administrative Agent will
-----------
promptly transmit to each of the other Lenders), which notice shall show the basis for calculation of such additional amounts,
although the failure to give any such notice (unless the respective Lender has intentionally withheld or delayed such notice, in
which case the respective Lender shall not be entitled to receive additional amounts pursuant to this Section 3.6 for periods
-----------
occurring prior to the 180th day before the giving of such notice) shall not release or diminish any of Company's obligations to pay
additional amounts pursuant to this Section 3.6. In determining such additional amounts, each Lender will act reasonably and in good
-----------
faith and will use averaging and attribution methods which are reasonable and which will, to the extent the increased costs or
reduction in the rate of return relates to such Lender's commitments, loans or obligations in general and are not specifically
attributable to the Commitments, Loans and obligations hereunder, cover all commitments, loans and obligations similar to the
Commitments, Loans and obligations of such Lender hereunder whether or not the loan documentation for such other commitments, loans
or obligations permits the Lender to make the determination specified in this Section 3.6. Such determination shall, absent manifest
-----------
error, be final and conclusive and binding on all parties hereto.
1.18 Mitigation Obligations; Replacement of Affected Lenders.
-------------------------------------------------------
(a) Change of Lending Office. Each Lender which is or will be owed compensation pursuant to Section 3.6(a) or (c) or Section
------------------------- --------------- --- --------
4.7(b) or (c) will, if requested by Company, use reasonable efforts (subject to overall policy considerations of such Lender) to
------ ---
cause a different branch or Affiliate to make or continue a Loan or Letter of Credit or to assign its rights and obligations
hereunder to another of its branches or Affiliates if in the judgment of such Lender such designation or assignment will avoid the
need for, or materially reduce the amount of, such compensation to such Lender and will not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender. Company hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with such designation or assignment. Nothing in this Section 3.7(a) shall affect or postpone any of the obligations of
---------------
Company or the right of any Lender provided for herein.
(b) Replacement of Lenders. If (x) any Revolving Lender becomes a Defaulting Lender or otherwise defaults in its Obligations to
----------------------
make Loans or fund Unpaid Drawings, (y) any Lender is owed increased costs under Section 3.6(a)(ii) or (iii) or Section 3.6(c) or
------------------- ----- ---------------
Section 4.7(b) or (c) materially in excess of those to the other Lenders or (z) as provided in the last sentence of Section 12.1(a)
--------------- --- ----------------
or in Section 12.1(b) any Lender refuses to consent to certain proposed amendments, changes, supplements, waivers, discharges or
----------------
terminations with respect to this Agreement, Company shall have the right to replace such Lender (the "Replaced Lender") with one or
----------------
more other Eligible Assignee or Eligible Assignees, none of whom shall constitute a Defaulting Lender at the time of such replacement
(collectively, the "Replacement Lender") acceptable to Administrative Agent, provided that (i) at the time of any replacement
-------------------
pursuant to this Section 3.7, the Replacement Lender shall enter into one or more assignment agreements, in form and substance
------------
satisfactory to Administrative Agent, pursuant to which the Replacement Lender shall acquire all of the Commitments and outstanding
Loans of, and participation in Letters of Credit by, the Replaced Lender (or, at the option of Company if the respective Lender's
consent is required with respect to less than all Loans, to replace only the respective Loans of the respective non-consenting Lender
which gave rise to the need to obtain such Lender's individual consent), (ii) Company shall have paid to Administrative Agent the
assignment fee specified in Section 12.8, and (iii) all obligations of all Credit Parties owing to the Replaced Lender (including,
------------
without limitation, such increased costs and excluding those specifically described in clause (i) above in respect of which the
assignment purchase price has been, or is concurrently being, paid) shall be paid in full to such Replaced Lender concurrently with
such replacement. Upon the execution of the respective assignment documentation, the payment of amounts referred to in clauses (i),
(ii) and (iii) above and, if so requested by the Replacement Lender, delivery to the Replacement Lender of the appropriate Note or
Notes executed by Company, the Replacement Lender shall become a Lender hereunder and, unless the Replaced Lender continues to have
outstanding Term Loans hereunder, the Replaced Lender shall cease to constitute a Lender hereunder, except with respect to
indemnification provisions under this Agreement, which shall survive as to such Replaced Lender. Notwithstanding anything to the
contrary contained above, no Lender that acts as Facing Agent may be replaced hereunder at any time which it has Letters of Credit
outstanding hereunder unless arrangements satisfactory to Facing Agent (including the furnishing of a standby letter of credit in
form and substance, and issued by an issuer satisfactory to Facing Agent or the depositing of cash collateral into the Collateral
Account in amounts and pursuant to arrangements satisfactory to Facing Agent) have been made with respect to such outstanding Letters
of Credit.
4.
REDUCTION OF COMMITMENTS;
PAYMENTS AND PREPAYMENTS
1.19 Voluntary Reduction of Commitments. Upon at least three Business Days' prior written notice (or telephonic notice confirmed
-----------------------------------
in writing) to Administrative Agent at the Notice Office (which notice Administrative Agent shall promptly transmit to each Lender),
Company shall have the right, without premium or penalty, to terminate the unutilized portion of the Revolving Commitments or the
Swing Line Commitment, as the case may be, in part or in whole; provided that (x) any such voluntary termination of the Revolving
--------
Commitments shall apply to proportionately and permanently reduce the Revolving Commitment of each Revolving Lender, (y) any partial
voluntary reduction pursuant to this Section 4.1 shall be in the amount of at least $5,000,000 and integral multiples of $1,000,000
-----------
in excess of that amount and (z) any such voluntary termination of the Revolving Commitments shall occur simultaneously with a
voluntary prepayment, pursuant to Section 4.3 such that the total of the Revolving Commitments shall not be reduced below the
------------
aggregate principal amount of outstanding Revolving Loans plus the aggregate LC Obligations and the Swing Line Commitment and the
Swing Line Commitment shall not be reduced below the aggregate principal amount of Swing Line Loans.
1.20 Mandatory Reductions of Commitments.
-----------------------------------
(a) Reduction of Term Commitments. The Term Commitments terminate on the Initial Borrowing Date after giving effect to the
------------------------------
Borrowing of the Term Loans on such date.
(b) Reduction of Total Revolving Commitments. On each date upon which a mandatory repayment of Term Loans pursuant to
-------------------------------------------
Section 4.4 is required (and exceeds the aggregate principal amount of Term Loans then outstanding) or would be required if Term Loans
-----------
were then outstanding, the Total Revolving Commitment shall be permanently reduced by the amount, if any, by which the amount
required to be applied pursuant to said Section 4.4 (determined as if an unlimited amount of Term Loans were actually outstanding)
-----------
exceeds the aggregate principal amount of Term Loans then outstanding.
(c) Proportionate Reductions. Each reduction or adjustment to the Term Commitments or the Revolving Commitments pursuant to
-------------------------
this Section 4.2 shall apply proportionately to the Term Commitment or the Revolving Commitment, as the case may be, of each Lender.
-----------
1.21 Voluntary Prepayments. Company shall have the right to prepay the Loans in whole or in part from time to time on the
----------------------
following terms and conditions Company shall give Administrative Agent irrevocable written notice at its Notice Office (or telephonic
notice promptly confirmed in writing) of its intent to prepay the Loans, whether such Loans are Term Loans, Revolving Loans or Swing
Line Loans, the amount of such prepayment and the specific Borrowings to which such prepayment is to be applied, which notice shall
be given by Company to Administrative Agent by 1:00 p.m. (New York City time) at least three Business Days prior in the case of
Eurocurrency Loans and at least one Business Day prior in the case of Base Rate Loans to the date of such prepayment and which notice
shall (except in the case of Swing Line Loans) promptly be transmitted by Administrative Agent to each of the applicable Lenders;
(a) each partial prepayment of any Borrowing shall be in an aggregate principal amount of at least $1,000,000; provided that no
partial prepayment of Eurocurrency Loans made pursuant to a single Borrowing shall reduce the aggregate principal amount of the
outstanding Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto;
(b) Eurocurrency Loans may only be prepaid pursuant to this Section 4.3 on the last day of an Interest Period applicable thereto
-----------
or on any other day subject to Section 3.5;
-----------
(c) each prepayment in respect of any Borrowing shall be applied pro rata among the Loans comprising such Borrowing provided,
--------
that such prepayment shall not be applied to any Loans of a Defaulting Lender at any time when the aggregate amount of Loans of any
Non-Defaulting Lender exceeds such Non-Defaulting Lender's Pro Rata Share of all Loans then outstanding;
(d) each voluntary prepayment of Term Loans shall be applied to the Scheduled Term Repayments in proportional amounts equal to
the applicable Term Percentage of Term Loans with respect to such prepayment and, within each Term Loan, to the pro rata prepayment
of the Scheduled Term Repayments for such Term Loan. Unless otherwise specified by Company, such prepayment shall be applied first
to the payment of Base Rate Loans and second to the payment of such Eurodollar Loans as Company shall request (and in the absence of
such request, as Administrative Agent shall determine).
The notice provisions with respect to the minimum amount of any prepayment and the provisions requiring prepayments in integral
multiples above such minimum amount of this Section 4.3 are for the benefit of Administrative Agent and may be waived unilaterally by
-----------
Administrative Agent.
1.22 Mandatory Prepayments.
---------------------
(a) Prepayment Upon Overadvance. Company shall prepay the outstanding principal amount of the Loans under the Revolving
-----------------------------
Facility on any date on which the aggregate Effective Amount of such Loans, together with the aggregate Effective Amount of LC
Obligations and Effective Amount of Swing Line Loans in the case of the Revolving Facility exceeds the aggregate Commitments for such
Facility, in the amount of such excess. If, after giving effect to the prepayment of all outstanding Revolving Loans, the aggregate
Effective Amount of LC Obligations plus the aggregate Effective Amount of Swing Line Loans exceeds the Revolving Commitments then in
effect, Company shall prepay all outstanding Swing Line Loans, then cash collateralize LC Obligations by depositing, pursuant to a
cash collateral agreement to be entered into in form and substance reasonably satisfactory to Administrative Agent, cash with
Administrative Agent in an amount equal to the difference between the Effective Amount of such LC Obligations and the Revolving
Commitments then in effect. Administrative Agent shall establish in its name for the benefit of the Revolving Lenders a cash
collateral account (the "Collateral Account") into which it shall deposit such cash to hold as collateral security for the LC
-------------------
Obligations.
(b) Scheduled Term Repayments. Company shall cause to be paid Scheduled Term Repayments for each Term Facility on the Term
---------------------------
Loans until the Term Loans are paid in full in the amounts and at the times specified in each of the Scheduled Term Repayment
definitions to the extent that prepayments have not previously been applied to such Scheduled Term Repayments (and such Scheduled
Term Repayments have not otherwise been reduced) pursuant to the terms hereof.
(c) Mandatory Prepayment Upon Asset Disposition. On the third Business Day after the date of receipt thereof by Company or any
----------------------------------------------
of its Subsidiaries of Net Sale Proceeds from any Asset Disposition (other than an Asset Disposition permitted by Section 8.3 or
-----------
Sections 8.4(a) through 8.4(e)), an amount equal to 100% of the Net Sale Proceeds from such Asset Disposition shall be applied as a
--------------- ------
mandatory repayment of principal of the Loans, in the order set forth in Section 4.5, provided, that with respect to no more than
------------ --------
$10,000,000 of such Net Sale Proceeds arising from Asset Dispositions in any Fiscal Year of Company but in no event more than
$40,000,000 in the aggregate of such Net Sale Proceeds since the Initial Borrowing Date, the Net Sale Proceeds therefrom shall not be
required to be so applied on such date to the extent that (i) no Event of Default or Unmatured Event of Default then exists, (ii)
Company delivers a certificate to the Administrative Agent on or prior to such date stating that such Net Sale Proceeds shall be used
to purchase assets used or to be used in the businesses referred to in Section 8.10 within 360 days following the date of such Asset
------------
Disposition (which certificate shall set forth the estimates of the proceeds to be so expended) and (iii) if Net Sale Proceeds exceed
$5,000,000, such Net Sale Proceeds are applied on or before the third Business Day after receipt thereof to prepay outstanding
Revolving Loans (in which case a reserve against the Total Available Revolving Commitments in an amount equal to such required
prepayment shall be created, which reserve shall be decreased at such times and in such amounts as such Net Sale Proceeds shall have
been reinvested in accordance with this clause (c), as certified by Company to Administrative Agent); provided, further, that if all
-------- -------
or any portion of such Net Sale Proceeds not so applied to the repayment of Loans are not so used within such 360 day period, such
remaining portion shall be applied on the last day of the respective period as a mandatory repayment of principal of outstanding
Loans as provided above in this Section 4.4(c).
--------------
(d) Mandatory Prepayment With Excess Cash Flow. On each Excess Cash Payment Date, an amount equal to 75% of Excess Cash Flow of
--------------------------------------------
Company and its Subsidiaries for the most recent Excess Cash Flow Period ending prior to such Excess Cash Payment Date shall be
applied as a mandatory repayment of principal of the Loans in the order set forth in Section 4.5; provided, that so long as no Event
----------- --------
of Default or Unmatured Event of Default then exists, if the Total Leverage Ratio as of the last day of such most recent Excess Cash
Flow Period is less than 4.5:1.0, then, instead of 75%, an amount equal to 50% of Excess Cash Flow of Company and its Subsidiaries
for such Excess Cash Flow Period shall be applied as a mandatory repayment of Term Loans as provided above in this Section 4.4(d).
--------------
(e) Mandatory Payment With Proceeds of Capital Stock. On the third Business Day after receipt thereof by Holdings and/or any
--------------------------------------------------
of its Subsidiaries, an amount equal to 50% of the Net Offering Proceeds of the sale or issuance of Capital Stock of (or cash capital
contributions to) Holdings or any of its Subsidiaries (other than Excluded Equity Issuances), shall be applied as a mandatory
repayment of principal of the Loans in the order set forth in Section 4.5).
-----------
(f) Mandatory Prepayment with Proceeds of Indebtedness. On the Business Day of receipt thereof by Holdings, Company or any of
----------------------------------------------------
its Subsidiaries, an amount equal to 100% of the Net Offering Proceeds of any Indebtedness other than Indebtedness permitted under
Section 8.2 hereof shall be applied as a mandatory repayment of principal of the Term Loans in the order set forth in Section 4.5.
----------- -----------
(g) Mandatory Prepayment Upon Recovery Event. Within ten (10) days following each date on which Company or any of its
--------------------------------------------
Subsidiaries receives any proceeds from any Recovery Event, an amount equal to 100% of the proceeds of such Recovery Event (net of
reasonable costs and taxes incurred in connection with such Recovery Event) shall be applied as a mandatory repayment of principal of
the Loans in the order set forth in Section 4.5; provided that (1) so long as no Event of Default or Unmatured Event of Default then
----------- --------
exists, if the net proceeds from any Recovery Event are less than $1,000,000, then no prepayment shall be required pursuant to this
Section 4.4(g), and (2) so long as no Event of Default or Unmatured Event of Default then exists, with respect to any single or
---------------
series of related Recovery Events the net proceeds therefrom which are equal to or greater than $1,000,000 but less than $10,000,000,
such proceeds shall not be required to be so applied on such date to the extent that Company has delivered a certificate to the
Administrative Agent on or prior to such date stating that such proceeds shall be used to repair, replace or restore any properties
or assets in respect of which such proceeds were paid within 360 days following the date of the receipt of such proceeds (which
certificate shall set forth the estimates of the proceeds to be so expended), provided, further, that
-------- -------
(i) if the amount of such proceeds from any single or series of related Recovery Events exceeds $10,000,000, then the entire
amount and not just the portion in excess of $10,000,000 shall be applied as a mandatory repayment of Loans as provided above in this
Section 4.4(g), and
--------------
(ii) if all or any portion of such proceeds not required to be applied to the repayment of Term Loans pursuant to the first
proviso of this Section 4.4(g) are not so used within 360 days after the day of the receipt of such proceeds, such remaining portion
---------------
shall be applied on the last day of such period as a mandatory repayment of principal of the Loan as provided in this Section 4.4(g).
--------------
1.23 Application of Prepayments; Waiver of Certain Prepayments.
---------------------------------------------------------
(a) Prepayments. Except as expressly provided in this Agreement, all prepayments of principal made by Company pursuant to
-----------
Section 4.4 shall be applied (i) first to the payment of the unpaid principal amount of the Term Loans (with the Term Percentage for
-----------
each Term Facility of such repayment to be applied as a repayment of Term Loans of such Term Facility, and second to the payment of
the then outstanding balance of the Revolving Loans and the cash collateralization of LC Obligations and to the payment of the then
outstanding balance of Swing Line Loans); (ii) within each of the foregoing Loans, first to the payment of Base Rate Loans and second
to the payment of Eurocurrency Loans; and (iii) with respect to Eurocurrency Loans, in such order as Company shall request (and in
the absence of such request, as Administrative Agent shall determine). Each prepayment of Term Loans made pursuant to Section
--------
4.4(c), (d), (e), (f) and (g) shall be applied to reduce the remaining Scheduled Term Repayments on a pro rata basis. If any
--- --- --- ---
prepayment of Eurocurrency Loans made pursuant to a single Borrowing shall reduce the outstanding Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount, such Borrowing shall immediately be converted into Base Rate Loans.
All prepayments shall include payment of accrued interest on the principal amount so prepaid, shall be applied to the payment of
interest before application to principal and shall include amounts payable, if any, under Section 3.5.
-----------
(b) Payments. All regular installment payments of principal on the Term Loans shall be applied (i) first to the payment of Base
--------
Rate Loans and second to the payment of Eurocurrency Loans and (ii) with respect to Eurocurrency Loans, in such order as Company
shall request (and in the absence of such request, as Administrative Agent shall determine). All payments shall include payment of
accrued interest on the principal amount so paid, shall be applied to the payment of interest before application to principal and
shall include amounts payable, if any, under Section 3.5.
-----------
1.24 Method and Place of Payment.
---------------------------
(a) Except as otherwise specifically provided herein, all payments under this Agreement shall be made to Administrative Agent,
for the ratable account of the Lenders entitled thereto, not later than 1:00 p.m. (New York City time) on the date when due and shall
be made in immediately available funds in Dollars and in each case to the account specified therefor for Administrative Agent or if
no account has been so specified at the Payment Office, it being understood that with respect to payments in Dollars, written telex
or telecopy notice by Company to Administrative Agent to make a payment from the funds in Company's account at the Payment Office
shall constitute the making of such payment to the extent of such funds held in such account. Administrative Agent will thereafter
cause to be distributed on the same day (if payment was actually received by Administrative Agent prior to 1:00 p.m. (New York City
time) on such day) like funds relating to the payment of principal or interest or fees ratably to the Lenders entitled to receive any
such payment in accordance with the terms of this Agreement. If and to the extent that any such distribution shall not be so made by
Administrative Agent in full on the same day (if payment was actually received by Administrative Agent prior to 1:00 p.m. (New York
City time) on such day), Administrative Agent shall pay to each Lender its ratable amount thereof and each such Lender shall be
entitled to receive from Administrative Agent, upon demand, interest on such amount at the overnight Federal Funds Rate for each day
from the date such amount is paid to Administrative Agent until the date Administrative Agent pays such amount to such Lender.
(b) Any payments under this Agreement which are made by Company later than 1:00 p.m. (New York City time) shall, for the purpose
of calculation of interest, be deemed to have been made on the next succeeding Business Day. Whenever any payment to be made
hereunder shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest shall be payable during such extension at the applicable
rate in effect immediately prior to such extension, except that with respect to Eurocurrency Loans, if such next succeeding Business
Day is not in the same month as the date on which such payment would otherwise be due hereunder or under any Note, the due date with
respect thereto shall be the next preceding applicable Business Day.
(c) Unless Administrative Agent shall have received notice from Company prior to the date on which any payment is due to
Administrative Agent for the account of the Lenders or the Facing Agent hereunder that Company will not make such payment, the
Administrative Agent may assume that Company has made such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the Facing Agent, as the case may be, the amount due. In such event, if Company has not in
fact made such payment, then each of the Lenders or the Facing Agent, as the case may be, severally agrees to repay to Administrative
Agent forthwith on demand the amount so distributed to such Lender or the Facing Agent, with interest thereon, for each day from and
including the date such amount is distributed to it but excluding the date of payment to Administrative Agent, at the Federal Funds
Rate for amounts in Dollars for the first three days and thereafter at the Federal Funds Rate plus 1%.
1.25 Net Payments.
------------
(a) All payments made by Company hereunder or under any Loan Document shall be made without setoff, counterclaim, or other
defense. To the extent permitted by applicable law, all payments hereunder and under any Loan Document (including, without
limitation, any payment of principal, interest, or fees) to, or for the benefit, of any Person shall be made by Company free and
clear of and without deduction or withholding for, or account of, any tax, duty, levy, impost, deduction, charge, withholding, or
assessment now or hereinafter imposed by any Governmental Authority.
(b) If the Company makes any payment hereunder or under any Loan Document in respect of which it is required by law to deduct or
withhold any Taxes, Company shall increase the payment hereunder or under any such Loan Document such that after the reduction for
the amount of Taxes withheld (and any taxes withheld or imposed with respect to the additional payments required under this Section
--------
4.7(b)) the amount paid to the Lender or Administrative Agent equals the amount that was payable hereunder or under any such Loan
------
Document without regard to this Section 4.7(b). To the extent Company withholds any taxes, duties, levies, imposts, deductions,
---------------
charges, withholdings, or assessments on payments hereunder or under any Loan Document, Company shall pay the full amount deducted to
the relevant Governmental Authority within the time allowed for payment under applicable law and shall deliver to the Administrative
Agent within 30 days after it has made payment to such authority a receipt issued by such authority (or other evidence satisfactory
to the Administrative Agent) evidencing the payment of all amounts so required to be deducted or withheld from such payment.
(c) If any Lender or Administrative Agent is required by law to make any payments of any Taxes on or in relation to any amounts
received or receivable hereunder or under any other Loan Document, or any Tax is assessed against a Lender or Administrative Agent
with respect to amounts received or receivable hereunder or under any other Loan Document, Company will indemnify such person against
(i) such Tax (and any reasonable counsel fees and expenses associated with such Tax) and (ii) any taxes imposed as a result of the
receipt of the payment under this Section 4.7(c). A certificate prepared in good faith as to the amount of such payment by Lender or
----------------
Administrative Agent shall, absent manifest error, be final, conclusive, and binding on all parties.
(d) (i) To the extent permitted by applicable law, each Lender that is a Non-U.S. Participant shall deliver to Company and
Administrative Agent on or prior to the Initial Borrowing Date (or in the case of a Lender that is an Assignee, on the date of such
assignment to such Lender) two accurate and complete original signed copies of IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor
or other applicable form prescribed by the IRS) certifying to such Lender's entitlement to a complete exemption from, or a reduced
rate in, United States withholding tax on interest payments to be made under this Agreement or any Note. If a Lender that is a
Non-U.S. Participant is claiming a complete exemption from withholding on interest pursuant to Section 881(c) of the Code, the Lender
shall deliver (along with two accurate and complete original signed copies of IRS Form W-8BEN) a certificate substantially in the
form of Exhibit 4.7(d) (any such certificate, a "Section 4.7(d)(i) Certificate"). In addition, each Lender that is a Non-U.S.
--------------- -------------------------------
Participant agrees that from time to time after the Initial Borrowing Date, (or in the case of a Lender that is an Assignee, after
the date of the assignment to such Lender), when a lapse in time (or change in circumstances occurs) renders the prior certificates
hereunder obsolete or inaccurate in any material respect, such Lender shall, to the extent permitted under applicable law, deliver to
the Company and Administrative Agent two new and accurate and complete original signed copies of an IRS Form W-8BEN, W-8ECI, or
W-8IMY (or any successor or other applicable forms prescribed by the IRS), and if applicable, a new Section 4.7(d)(i) Certificate, to
-----------------------------
confirm or establish the entitlement to such Lender or Agent to an exemption from, or reduction in, United States withholding tax on
interest payments to be made under this Agreement or any Note.
(ii) Each Lender that is not a Non-U.S. Participant (other than any such Lender which is taxed as a corporation for U.S. federal
income tax purposes) shall provide two properly completed and duly executed copies of IRS Form W-9 (or any successor or other
applicable form) to Company and Administrative Agent certifying to such Lender or Agent is exempt from United States backup
withholding tax. To the extent that a form provided pursuant to this Section 4.7(d)(ii) is rendered obsolete or inaccurate in any
-------------------
material respects as result of change in circumstances with respect to the status of a Lender or Administrative Agent, such Lender or
Administrative Agent shall, to the extent permitted by applicable law, deliver to Company and Administrative Agent revised forms
necessary to confirm or establish the entitlement to such Lender's or Administrative Agent's exemption from United States backup
withholding tax.
5.
CONDITIONS OF CREDIT
1.26 Conditions Precedent to the Initial Borrowing. The obligation of the Lenders to make the Initial Loans and the obligation
-----------------------------------------------
of the Facing Agent to issue and the Lenders to participate in Letters of Credit under this Agreement shall be subject to the
fulfillment, at or prior to the Initial Borrowing Date, of each of the following conditions:
(a) Principal Loan Documents.
------------------------
(i) Credit Agreement and Notes. Holdings and Company shall have duly executed and delivered to Administrative Agent, with a
----------------------------
signed counterpart for each Lender, this Agreement (including all schedules, exhibits, certificates, opinions and financial
statements delivered pursuant hereto), and Company shall have duly executed and delivered to Administrative Agent such Notes payable
to the order of each applicable Lender in the amount of their respective Commitments as shall have been requested by such Lenders all
of which shall be in full force and effect;
(ii) Subsidiary Guaranty. Each Domestic Subsidiary shall have duly authorized, executed and delivered a Subsidiary Guaranty in
--------------------
the form of Exhibit 5.1(a)(ii) (as amended, supplemented or otherwise modified from time to time, the "Subsidiary Guaranty");
------------------ -------------------
(iii) Security Agreement. Holdings, Company and each Domestic Subsidiary shall have duly authorized, executed and delivered a
-------------------
Security Agreement in the form of Exhibit 5.1(a)(iii) (as amended, supplemented or otherwise modified from time to time, the
--------------------
"Security Agreement") and shall have delivered to Collateral Agent, for the benefit of the Secured Parties, all the Pledged Securities
--------------------
referred to therein then owned, if any, by such Credit Parties, (y) endorsed in blank in the case of promissory notes constituting
Pledged Securities referred to therein then owned, if any, by such Credit Parties, and (z) together with executed and undated stock
powers, in the case of capital stock constituting Pledged Securities and the other documents and instruments required to be delivered
under the Security Agreement;
(iv) Foreign Security Documents. The Credit Parties listed on Schedule 5.1(a)(iv) shall have duly executed and delivered the
---------------------------- --------------------
Foreign Security Documents set forth on such Schedule.
(b) Perfection on Personal Property Collateral. Administrative Agent shall have received:
------------------------------------------
(i) executed and delivered perfection certificates (each, a "Perfection Certificate") in the form of Exhibit 5.1(b)(i) hereto
----------------------- ------------------
dated the Initial Borrowing Date from Company and each of its Domestic Subsidiary;
(ii) proper financing statements (Form UCC-1 or such other financing statements or similar notices as shall be required by local
law) fully executed for filing under the UCC or other appropriate filing offices of the jurisdiction of organization of each Credit
Party that is not a Foreign Subsidiary and each other jurisdiction as may be necessary or, in the opinion of Administrative Agent,
desirable to perfect the security interests purported to be created by the Security Documents;
(iii) certified copies of Requests for Information or Copies (Form UCC-11), or equivalent reports, listing all effective financing
statements or similar notices that name any Credit Party that is not a Foreign Subsidiary (by its actual name or any trade name,
fictitious name or similar name), or any division or other operating unit thereof, as debtor (whether filed in the jurisdiction
referred to in clause (i) or elsewhere), together with copies of such other financing statements (none of which shall cover the
Collateral except to the extent evidencing Permitted Liens or for which Administrative Agent shall have received written
authorization from the secured party to file termination statements (Form UCC-3 or such other termination statements as shall be
required by local law), such termination statements fully executed for filing where necessary);
(iv) evidence of the completion of, or arrangements reasonably satisfactory to Administrative Agent for, all other recordings and
filings of, or with respect to, the Security Documents with all Governmental Authorities and all other actions as may reasonably be
necessary or, in the reasonable opinion of Administrative Agent, desirable to perfect the security interests intended to be created
by the Security Documents;
(v) an executed Bailee Letter from each bailee, warehouseman or consignee which is in the possession of any Collateral with a
fair market value in excess of $500,000 and an executed Landlord Consent from each lessor of any leased property of Company or any
Subsidiary of Company at which any Collateral with a fair market value in excess of $500,000 may now or in the future be located and
such other lessors of leased property as are reasonably required by Administrative Agent or inclusions of requirements regarding
delivery of such Landlord Consents in the Post-Closing Agreement (as defined in Section 5.1(g)(iv));
------------------
(vi) evidence that all other actions reasonably necessary, or in the reasonable opinion of Administrative Agent, desirable to
perfect the security interests purported to be taken by the Security Documents have been taken or provided for;
(vii) if required by any Foreign Security Document, certificates representing all certificated Pledged Securities under such
Foreign Security Document, together with executed and undated stock powers and/or assignments in blank;
(viii) if required by any Foreign Security Document, appropriate financing statements or comparable documents of, and executed by,
the appropriate entities in proper form for filing under the provisions of the applicable or local laws, rules or regulations in each
of the offices where such filing is necessary or appropriate to grant to the Collateral Agent a perfected first priority Lien on the
Collateral pledged pursuant to such Foreign Security Document or its equivalent under foreign local laws, superior and prior to the
rights of all third persons other than the holders of Permitted Liens;
(ix) if required by any Foreign Security Document or any local counsel for Collateral Agent, judgment and tax lien, bankruptcy
and pending lawsuit search reports listing all effective financing statements or comparable documents which name any applicable
Credit Party as debtor and which are filed in those jurisdictions in which any of Collateral is located and the jurisdictions in
which any applicable Credit Party's principal place of business is located, together with copies of such existing financing
statements, none of which shall encumber such Collateral covered or intended or purported to be covered by such Foreign Security
Document other than Permitted Liens;
(x) if required by any Foreign Security Document, evidence of the completion of, or arrangements satisfactory to Administrative
Agent for, all notarizations, recordings and filings of each such Foreign Security Document, and delivery and recordation, if
necessary, of such other security and other documents, as may be reasonably necessary or desirable to perfect the Liens created, or
purported or intended to be created, by such Foreign Security Document; and
(xi) evidence that all other actions reasonably necessary or in the reasonable opinion of Administrative Agent, desirable to
perfect the security interest created by the Foreign Security Documents have been taken or provided for.
(c) Real Property Documents. Administrative Agent shall have received:
-----------------------
(i) fully executed and notarized counterparts of deeds of trusts, mortgages and similar documents in favor of Collateral Agent
(or such other trustee as may be required or desired under local law) for the benefit of the Secured Creditors, in each case in form
and substance satisfactory to Administrative Agent (each a "Mortgage" and collectively, the "Mortgages"), which Mortgages shall
-------- ---------
encumber the fee simple interest in the real property owned by each Credit Party in the United States and identified on Schedule
---------
6.11(c) as to be encumbered by a Mortgage (each a "Mortgaged Property" and collectively, the "Mortgaged Properties"), together with
------- ------------------- ---------------------
evidence that counterparts of the Mortgages have been delivered to the title insurance company insuring the Lien of the Mortgages,
for recording in all places to the extent necessary or desirable, in the reasonable judgment of Administrative Agent, to create a
valid and enforceable first priority lien on each Mortgaged Property subject only to Permitted Real Property Encumbrances;
(ii) completed UCC-1 financing statements as reasonably deemed necessary or desirable by Administrative Agent with respect to
each such Mortgaged Property and the fixtures attached thereto or otherwise located thereon;
(iii) signed pro forma ALTA mortgagee title insurance policies (or binding commitments to issue such title insurance policies)
issued by a title insurance company satisfactory to Administrative Agent (the "Mortgage Policies") in amounts satisfactory to
------------------
Administrative Agent, assuring Collateral Agent that the Mortgages are valid and enforceable first priority mortgage liens on the
respective Mortgaged Properties, free and clear of all defects, encumbrances and other Liens except Permitted Real Property
Encumbrances. The Mortgage Policies shall be in form and substance satisfactory to Administrative Agent, shall include such
endorsements as may be required by Administrative Agent and available in the respective jurisdiction(s) in which each such Mortgaged
Property may be located, shall not include an exception for mechanics' liens, and shall provide for affirmative insurance and such
reinsurance (including direct access agreements) as Administrative Agent in its discretion may reasonably request;
(iv) a survey, in form and substance satisfactory to Administrative Agent, of each Mortgaged Property listed on Schedule 6.12(c),
----------------
dated a recent date acceptable to Administrative Agent, certified by a licensed professional surveyor in a manner satisfactory to
Administrative Agent or a prior survey, in form and substance satisfactory to Administrative Agent, of each Mortgaged Property listed
on Schedule 6.12(c), certified by a licensed professional surveyor, together with a survey affidavit of no change for each such prior
----------------
survey and such other documents as are required for the subject title insurance company to remove all survey exceptions to the
Mortgage Policy for each Mortgaged Property and to issue a "same-as-survey" endorsement to same;
(v) evidence as to (A) whether any Mortgaged Property is in an area designated by the Federal Emergency Management Agency as
having special flood or mud slide hazards and (B) if any Mortgaged Property is in an area designated by the Federal Emergency
Management Agency as having special flood or mud slide hazards, (1) whether the community in which such Mortgaged Property is located
is participating in the National Flood Insurance Program, (2) the applicable Credit Party's written acknowledgment of receipt of
written notification from the Collateral Agent (a) as to the fact that such Mortgaged Property is in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide hazards, (b) as to whether the community in which each such
Mortgaged Property is located is participating in the National Flood Insurance Program and (3) copies of insurance policies or
certificates of insurance of the applicable Credit Party evidencing flood insurance satisfactory to Administrative Agent and naming
the Collateral Agent as sole loss payee on behalf of the Secured Creditors; and
(d) Opinions of Counsel. Administrative Agent shall have received from (i) Ropes & Xxxx LLP, special counsel to the Credit
--------------------
Parties, an opinion addressed to Administrative Agent and each of the Lenders and dated the Initial Borrowing Date, which shall be in
form and substance satisfactory to Administrative Agent or the Required Lenders and which shall cover the matters set forth in
Exhibit 5.1(d) and such other matters incident to the transactions contemplated herein as Administrative Agent may reasonably
---------------
request, (ii) opinions of local counsel (both foreign (Netherlands Antilles and Germany) and domestic) dated the Initial Borrowing
Date, each of which shall be in form and substance satisfactory to Administrative Agent, which opinions shall cover such matters
incident to the transactions contemplated herein and in the other Loans Documents as Administrative Agent or the Required Lenders may
reasonably request.
(e) Corporate Documents and Financial Matters.
-----------------------------------------
(i) Officer's Certificate. Administrative Agent shall have received, a certificate executed by a Responsible Officer on behalf
----------------------
of Company, dated the date of this Agreement and in the form of Exhibit 5.1(e)(i) hereto, stating that the representations and
------------------
warranties set forth in Article VI hereof are true and correct as of the date of the certificate, that no Event of Default or
-----------
Unmatured Event of Default has occurred and is continuing, that the conditions of Section 5.1 hereof have been fully satisfied
------------
(except that no opinion need be expressed as to the Administrative Agent's or Required Lenders' satisfaction with any document,
instrument or other matter) and that, to his or her knowledge, no Liens (except for Permitted Liens) have been placed against the
Collateral or the Mortgaged Property since the respective dates of the searches of financing statements filed under the Uniform
Commercial Code and delivered pursuant to this Section 5.1;
-----------
(ii) Secretary's Certificate. On the Initial Borrowing Date, the Administrative Agent shall have received from each Credit Party
------------------------
a certificate, dated the Initial Borrowing Date, signed by the secretary or any assistant secretary of such Credit Party, in the form
of Exhibit 5.1(e)(ii) with appropriate insertions, as to the incumbency and signature of the officers of each such Credit Party
--------------------
executing any Document (in form and substance satisfactory to Administrative Agent) and any certificate or other document or
instrument to be delivered pursuant hereto or thereto by or on behalf of such Credit Party, together with evidence of the incumbency
of such secretary or assistant secretary, and certifying as true and correct, attached copies of all Organizational Documents of such
Credit Party and the resolutions of such Credit Party referred to in such certificate and all of the foregoing (including each
Organizational Document) shall be reasonably satisfactory to Administrative Agent or the Required Lenders;
(iii) Good Standing. A good standing certificate or certificate of status or comparable certificate of each Credit Party from the
-------------
Secretary of State (or other governmental authority) of its state or province of organization or such equivalent document issued by
any foreign Governmental Authority if applicable in such foreign jurisdiction;
(iv) Shareholders' Agreements; Collective Bargaining Agreements; Tax Sharing Agreements; Debt Agreements. On or prior to the
---------------------------------------------------------------------------------------------------------
Initial Borrowing Date, there shall have been delivered to Administrative Agent true and correct copies of:
(A) all material agreements entered into by Company governing the terms and relative rights of its capital stock and any
agreements entered into by shareholders relating to Company with respect to their capital stock (collectively, the "Shareholder
------------
Agreements");
----------
(B) all material agreements with members of, or with respect to the, management of Company other than Employment Agreements
(collectively, the "Management Agreements");
---------------------
(C) any material employment agreements entered into by any Credit Party (collectively, the "Employment Agreements");
---------------------
(D) all collective bargaining agreements applying or relating to any employee of any Credit Party (collectively, the "Collective
-----------
Bargaining Agreements");
---------------------
(E) all material agreements evidencing or relating to Indebtedness to Remain Outstanding of any Credit Party (collectively, the
"Debt Agreements");
----------------
(F) all "management letters" received by Holdings or any of its Subsidiaries during the three year period immediately preceding
the Closing Date (collectively, the "Historical Accountants Letters"); and
------------------------------
(G) all material tax sharing, disaffiliation tax allocation and other similar agreements entered into by any Credit Party
(collectively, the "Tax Sharing Agreements");
----------------------
in each case, to the extent not previously filed with the SEC, all of which Shareholder Agreements, Management Agreements, Employment
Agreements, Collective Bargaining Agreements, Debt Agreements, Historical Accountants Letters and Tax Sharing Agreements shall be in
form and substance reasonably satisfactory to the Administrative Agent; and shall be in full force and effect on the Initial
Borrowing Date, except such agreements previously identified to Administrative Agent which will be terminated in connection with the
consummation of this transaction;
(v) Environmental; Insurance. On the Initial Borrowing Date, Administrative Agent shall have received:
------------------------
(A) the Environmental Studies from Environmental Resources Management, with respect to certain of the Mortgaged Properties, the
results of which shall be in form and substance reasonably satisfactory to the Administrative Agent; and
(B) evidence of insurance complying with the requirements of Section 7.8 for the business and properties of Company, in scope,
-----------
form and substance reasonably satisfactory to Administrative Agent and naming the Collateral Agent as an additional insured,
mortgagee and/or loss payee, and stating that such insurance shall not be cancelled or revised without 30 days' prior written notice
by the insurer to the Administrative Agent.
(vi) Audited Financials. Administrative Agent shall have received (i) audited consolidated balance sheets at December 31, 2002
-------------------
and 2003, statements of income and cash flows at December 31, 2002 and 2003 and interim financial statements at April 4, 2004 of
Holdings, (ii) monthly financial statements for Holdings for each month since the most recent quarterly statements, to the extent
available, and (iii) financial projections and pro forma financial statements for Holdings and its Subsidiaries and all such
statements, projections and pro forma financial statements, (including, with respect to the projections, the reasonableness of any
assumptions made therein), shall be reasonably satisfactory to the Administrative Agent;
(vii) Pro Forma Balance Sheet. Administrative Agent shall have received the Pro Forma Balance Sheet prepared in accordance with
------------------------
of the Securities Act in form and substance reasonably satisfactory to Administrative Agent;
(viii) Existing Indebtedness. On the Initial Borrowing Date and after giving effect to the Transaction and the other transactions
----------------------
contemplated hereby, Company shall not have any material Indebtedness outstanding except for the Loans and the Indebtedness to Remain
Outstanding. The aggregate principal amount of the Indebtedness to Remain Outstanding shall not exceed $16,500,000 and the terms and
conditions of the Indebtedness to Remain Outstanding shall be satisfactory to Administrative Agent;
(ix) Sufficient Funds; Solvency. Company shall have demonstrated to the satisfaction of Administrative Agent that (i) the
----------------------------
maximum principal amount of Loans that Company may incur hereunder to finance the Refinancing and to pay fees and expenses in
connection therewith (whether paid on or after the Initial Borrowing Date) is sufficient to effect in full the Transaction and to pay
all reasonable fees and expenses in connection therewith (whether paid on or after the Initial Borrowing Date) and (ii) after giving
effect to the Transactions, each Credit Party is Solvent.
(f) Transaction Documents, Etc.
---------------------------
(i) Tax and Accounting Aspects of Transactions/Capital Structure. Administrative Agent shall be satisfied with all tax and
----------------------------------------------------------------
accounting matters relating to the Transactions. On the Initial Borrowing Date, the ownership and capital structure (including
without limitation, the terms of any capital stock, options, warrants or other securities issued by Company or any of its
Subsidiaries) and management of Company and its Subsidiaries shall be in form and substance reasonably satisfactory to the
Administrative Agent;
(ii) Refinancing. Company and/or their subsidiaries, as appropriate, shall have consummated the Refinancing pursuant to the
-----------
Refinancing Documents on terms and in form and substance reasonably satisfactory to the Administrative Agent. The Refinancing
Documents shall not have been amended without the consent of the Administrative Agent, which consent shall not be unreasonably
withheld or delayed. On or prior to the Initial Borrowing Date, the total commitments under each of the documents and instruments
governing all material Indebtedness for money borrowed of Holdings and its Subsidiaries (other than those related to Indebtedness to
Remain Outstanding) shall have been terminated, all loans thereunder shall have been repaid in full, together with interest thereon,
all letters of credit, if any, issued thereunder shall have been terminated, backstopped by Letters of Credit under this Agreement or
cash collateralized and all other amounts owing pursuant to the such agreements shall have been repaid in full and the such
agreements shall have been terminated on terms and conditions reasonably satisfactory to Administrative Agent and be of no further
force or effect and the creditors there under shall have terminated and released all security interests and Liens on the assets owned
by Company and its Subsidiaries in a manner reasonably satisfactory to the Administrative Agent.
(iii) Intercreditor Agreement. Administrative Agent shall have received a true and correct executed copy of (a) (i) an
------------------------
acknowledgement in form and substance satisfactory to Administrative Agent from the Secured Note trustee and Company that this
Agreement constitutes the "Senior Credit Agreement" as defined in the Intercreditor Agreement and acknowledging certain other related
-----------------------
changes to the Intercreditor Agreement (an "Intercreditor Acknowledgement") and (ii) the Intercreditor Agreement or (b) an amended
------------------------------
and restated intercreditor agreement in substantially the same form as the Intercreditor Agreement, in each case, certified as true
and complete by an appropriate officer of Company.
(iv) Minimum Available Revolving Commitment. On the Initial Borrowing Date, after giving effect to the Transactions, the Total
-----------------------------------------
Available Revolving Commitment shall equal not less than $40,000,000;
(v) Approvals. All necessary governmental (domestic and foreign) and material third party approvals in connection with the
---------
Transactions and otherwise referred to herein or therein shall have been obtained and remain in effect, and all applicable waiting
periods shall have expired without any action being taken by any competent authority which restrains, prevents or imposes materially
adverse conditions upon the consummation of all or any part of the Transaction or the other transactions contemplated by the
Documents and otherwise referred to herein or therein. Additionally, there shall not exist any judgment, order, injunction or other
restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or notified prohibiting or imposing
material adverse conditions upon all or any part of the Transactions, the transactions contemplated by the Documents or the making of
the Loans or the issuance of Letters of Credit;
(vi) Litigation. No litigation by any entity (private or governmental) shall be pending or, to the knowledge of Company,
----------
threatened with respect to this Agreement, any other Document or any documentation executed in connection herewith or the
transactions contemplated hereby (including, without limitation, the Transactions), or with respect to any of the obligations being
refinanced in connection with the consummation of the Transactions or which Administrative Agent shall determine could reasonably be
expected to have a Material Adverse Effect;
(g) Other Closing Conditions.
------------------------
(i) No Material Adverse Change. (a) Nothing shall have occurred since December 31, 2003 which the Administrative Agent or the
----------------------------
Lenders shall reasonably determine could have a material adverse effect on the rights or remedies of the Administrative Agent or the
Lenders, or on the ability of the Credit Parties to perform their obligations to the Lenders under the Loan Documents or which could
have a material adverse effect on the business, property, assets, nature of assets, liabilities, condition (financial or otherwise),
results of operations or prospects of Company and its Subsidiaries after giving effect to the Transactions; (b) trading in securities
generally on the New York or American Stock Exchange shall not have been suspended; minimum or maximum prices shall not have been
established on any such exchange; (c) a banking moratorium shall not have been declared by New York or United States authorities; and
(d) there shall not have been (A) an outbreak or escalation of hostilities between the United States or and any foreign power, or (B)
an outbreak or escalation of any other insurrection or armed conflict involving the United States or any other national or
international calamity or emergency.
(ii) Fees. Company shall have paid to Administrative Agent and the Lenders, as applicable, all costs, fees and expenses
----
(including, without limitation, reasonable legal fees and out of pocket expenses of Winston & Xxxxxx and the reasonable costs, fees
and out of pocket expenses referred to in Section 12.4) payable to Administrative Agent and the Lenders to the extent then due;
------------
(iii) Other Matters. All corporate and other proceedings taken in connection with the Transactions at or prior to the date of
--------------
this Agreement, and all documents incident thereto will be reasonably satisfactory in form and substance to Administrative Agent;
Administrative Agent shall have received such other instruments and documents as Administrative Agent shall reasonably request in
connection with the execution of this Agreement, and all such instruments and documents shall be reasonably satisfactory in form and
substance to Administrative Agent.
(iv) Post-Closing Agreement. Administrative Agent shall have received an executed and delivered post-closing agreement ("the
-----------------------
Post-Closing Agreement") with respect to certain post-closing undertakings by the Credit Parties.
----------------------
1.27 Conditions Precedent to All Credit Events. The obligation of each Lender to make Loans (including Loans made on the
---------------------------------------------
Initial Borrowing Date) and the obligation of Facing Agent to issue or any Lender to participate in any Letter of Credit hereunder in
each case shall be subject to the fulfillment at or prior to the time of each such Credit Event of each of the following conditions:
(a) Representations and Warranties. The representations and warranties contained in this Agreement and the other Loan Documents
------------------------------
shall each be true and correct in all material respects at and as of such time, as though made on and as of such time except to the
extent such representations and warranties are expressly made as of a specified date in which event such representation and
warranties shall be true and correct in all material respects as of such specified date.
(b) No Default. No Event of Default or Unmatured Event of Default shall have occurred and shall then be continuing on such date
----------
or will occur after giving effect to such Credit Event.
(c) Notice of Borrowing; Letter of Credit Request.
---------------------------------------------
(i) Prior to the making of each Loan, Administrative Agent shall have received a Notice of Borrowing meeting the requirements of
Section 2.5.
-----------
(ii) Prior to the issuance of each Letter of Credit, Administrative Agent and the respective Facing Agent shall have received a
Letter of Credit Request meeting the requirements of Section 2.8(c).
--------------
(d) Adverse Change. At the time of each such Credit Event and after giving effect thereto, nothing shall have occurred (and the
--------------
Lender shall not have become aware of any facts or conditions previously unknown) which has, or is reasonably likely to have, a
Material Adverse Effect.
The acceptance of the benefits of each such Credit Event by Company shall be deemed to constitute a representation
and warranty by it to the effect of paragraphs (a), (b), (c) and (d) of this Section 5.2 (except that no opinion need be expressed as
-----------
to the Administrative Agent's or Required Lenders' satisfaction with any document, instrument or other matter).
Each Lender hereby agrees that by its execution and delivery of its signature page hereto and by the funding of its
Loan to be made on the Initial Borrowing Date, such Lender approves of and consents to each of the matters set forth in Section 5.1
-----------
and Section 5.2 which must be approved by, or which must be satisfactory to, the Administrative Agent or the Required Lenders or
-----------
Lenders, as the case may be; provided that, in the case of any agreement or document which must be approved by, or which must be
--------
satisfactory to, the Required Lenders, Administrative Agent or Company shall have delivered a copy of such agreement or document to
such Lender on or prior to the Initial Borrowing Date if requested.
6.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement and to make the Loans, and issue (or participate in) the
Letters of Credit as provided herein, Company makes the following representations, warranties and agreements as of the Initial
Borrowing Date (both before and after giving effect to the consummation of the Transaction) and as of the date of each subsequent
Credit Event, all of which shall survive the execution and delivery of this Agreement and the Notes and the making of the Loans and
issuance of the Letters of Credit, with the occurrence of each Credit Event on or after the Initial Borrowing Date being deemed to
constitute a representation and warranty that the matters specified in this Article VI are true and correct on and as of the Initial
----------
Borrowing Date and are true and correct in all material respects on and as of the date of each of such Credit Event, provided that
any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct on the date
of each Credit Event but only as of such specified date:
1.28 Corporate Status. Each Credit Party and each of its Subsidiaries (i) has the organizational power and authority to own its
-----------------
property and assets and to transact the business in which it is engaged and presently proposed to engage in and (ii) is duly
qualified and is authorized to do business and is in good standing in (y) Delaware and Illinois in the case of Holdings and Company,
or its jurisdiction of organization in the case of each Subsidiary of Company (or, with respect to a Foreign Subsidiary, the local
equivalent thereof) and (z) in each other jurisdiction where the ownership, leasing or operation of property or the conduct of its
business requires such qualification, except in the case of clause (z) for such failure to be so qualified which, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
1.29 Corporate Power and Authority. Each Credit Party has the organizational power and authority to execute and deliver each of
------------------------------
the Documents to which it is a party and to perform its obligations thereunder and has taken all necessary organizational action to
authorize the execution, delivery and performance by it of each of such Documents. Each Credit Party has duly executed and delivered
each of the Documents to which it is a party, and each of such Documents constitutes its legal, valid and binding obligation
enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
1.30 No Violation. The execution and delivery by each Credit Party of the Documents to which it is a party (including, without
------------
limitation, the granting of Liens pursuant to the Security Documents), and performance of such Credit Party's obligations thereunder
do not (i) contravene any provision of any Requirement of Law applicable to any Credit Party, (ii) conflict with or result in any
breach of or constitute a tortuous interference with any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien (except pursuant to the
Security Documents) upon any of the property or assets of any Credit Party pursuant to the terms of any Contractual Obligation to
which any Credit Party is a party or by which it or any of its property or assets is bound or to which it may be subject except for
such contraventions, conflicts, breaches or defaults that could not reasonably be expected to have a Material Adverse Effect, (iii)
violate any provision of any Organizational Document of any Credit Party or (iv) require any approval of stockholders or any approval
or consent of any Person (other than a Governmental Authority) except filings, consents or notices which have been made, obtained,
given, respectively and except as set forth on Schedule 6.3.
------------
1.31 Governmental and Other Approvals. Except for the recording of the Mortgages, filings with the U.S. Patent and Trademark
----------------------------------
Office and the U.S. Copyright Office to record liens on intellectual property, and the filing of the UCC financing statements (or
similar actions with respect to the Collateral under Foreign Requirements of Law) which shall be recorded and filed, respectively,
on, or as soon as practicable after, the date hereof, no order, consent, approval, license, authorization or validation of, or
filing, recording or registration with (except as have been obtained or made on or prior to the Initial Borrowing Date), or exemption
by, any Governmental Authority, is required to authorize, or is required in connection with, (i) the execution and delivery of any
Document or the performance of the obligations hereunder or (ii) the legality, validity, binding effect or enforceability of any such
Document.
1.32 Financial Statements; Financial Condition; Undisclosed Liabilities Projections; etc.
-----------------------------------------------------------------------------------
(a) Financial Statements.
--------------------
(i) The balance sheet of Company at December 31, 2002 and December 31, 2003 and April 4, 2004 and the related statements of
income, cash flows and shareholders' equity of Company for the Fiscal Year or other period ended on such dates, as the case may be,
fairly present in all material respects the financial condition and results of operation and cash flows of Company and its
consolidated subsidiaries as of such dates and for such periods, subject in the case of the April 4, 2004 statements, to changes
resulting from audit and normal year end adjustments and the absence of footnotes. Copies of such statements have been furnished to
the Lenders prior to the date hereof and, in the case of the December 31, 2002 and 2003 statements, have been examined by Deloitte &
Touche LLP, independent certified public accountants, who delivered an unqualified opinion in respect thereto, and
(ii) the pro forma (after giving effect to the Transactions, the related financing thereof and the other transactions
--- -----
contemplated hereby and thereby) balance sheet of Company attached hereto as Schedule 6.5(a) (the "Pro Forma Balance Sheet") presents
--------------- -----------------------
fairly in all material respects the financial condition of Company at May 30, 2004 and presents a good faith estimate of the pro
---
forma financial condition of Company and its Subsidiaries on a consolidated basis (after giving effect to the Transaction, the related
financing thereof and the other transactions contemplated hereby and thereby in each case, as if occurring on May 30, 2004) at the
date thereof. The Pro Forma Balance Sheet has been prepared in accordance with GAAP consistently applied (except as may be indicated
in the notes thereto) subject to normal year-end adjustments.
(b) Solvency. On and as of the Initial Borrowing Date, after giving effect to the Transactions and to all Indebtedness
--------
(including the Loans) being incurred, (and the use of proceeds thereof), and Liens created by Company and its Subsidiaries in
connection with the transactions contemplated hereby,
(i) the sum of the assets, at a fair valuation, of each Credit Party will exceed its debts;
(ii) no Credit Party has incurred, intends to, or believes that it will, incur debts beyond its ability to pay such debts as such
debts mature; and
(iii) each Credit Party will have sufficient capital with which to conduct its business. For purposes of this Section 6.5(b)
---------------
"debt" means any liability on a claim, and "claim" means (y) any right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured
(including all obligations, if any, under any Plan or the equivalent for unfunded past service liability, and any other unfunded
medical and death benefits) or (z) any right to an equitable remedy for breach of performance if such breach gives rise to a payment,
whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed,
secured or unsecured. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be
computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
(c) No Undisclosed Liabilities. Except as fully reflected in the financial statements and the notes related thereto delivered
---------------------------
pursuant to Section 6.5(a) and on Schedule 6.5(d) there were as of the Initial Borrowing Date (and after giving effect to the
--------------- ---------------
Transaction and the other transactions contemplated hereby) no liabilities or obligations with respect to Company and its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) which, either
individually or in aggregate, would be material to Company and its Subsidiaries, taken as a whole. As of the Initial Borrowing Date
(and after giving effect to the Transactions and the other transactions contemplated hereby), Company does not know of any basis for
the assertion against Company or any Subsidiary of any liability or obligation of any nature whatsoever that is not fully reflected
in the financial statements or the notes related thereto delivered pursuant to Section 6.5(a) and on Schedule 6.5(d) which, either
-------------- ----------------
individually or in the aggregate, could reasonably be expected to be material to Company and its Subsidiaries taken as a whole.
(d) Indebtedness. Schedule 6.5(d) sets forth a true and complete list of all Indebtedness (other than the Loans and the Letters
------------ ---------------
of Credit and Indebtedness permitted pursuant to Sections 8.2(c)) of Company and its Subsidiaries as of the Initial Borrowing Date
----------------
and which is to remain outstanding on the Initial Borrowing Date after giving effect to the Transaction (the "Indebtedness to Remain
-----------------------
Outstanding"), in each case showing the aggregate outstanding principal amount thereof (and the aggregate amount of any undrawn
-----------
commitments with respect thereto) and the name of the respective obligor and any other entity which directly or indirectly guaranteed
such debt. No Indebtedness to Remain Outstanding has been incurred in connection with, or in contemplation of, the Transaction or
the other transactions contemplated hereby. Company has delivered or caused to be delivered to Administrative Agent a true and
complete copy of the form of each instrument evidencing Indebtedness for money borrowed listed on Schedule 6.5(d) and of each
----------------
material agreement or instrument pursuant to which such Indebtedness for money borrowed was issued, except in each case, to the
extent previously filed with the SEC and not modified since the date of Holdings' most recent filing with the SEC. All Indebtedness
of Company to Administrative Agent or to the Lenders under the Loan Documents constitutes Indebtedness which is senior in priority of
payment to the Subordinated Notes.
(e) Projections. On and as of the Initial Borrowing Date, the financial projections, attached hereto as Schedule 6.5(e) and
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previously delivered to Administrative Agent and the Lenders (the "Projections") and each of the budgets and projections delivered
-----------
after the Effective Date pursuant to Section 7.2(e) are at the time made, prepared on a basis consistent with the financial
---------------
statements referred to in Section 7.1(a) and (b) are at the time made based on good faith estimates and assumptions made by the
--------------- ---
management of Company, and there are no statements or conclusions in any of the Projections or such budgets and projections which, at
the time made, are based upon or include information known to Company to be misleading or which fail to take into account material
information regarding the matters reported therein. On the Initial Borrowing Date, Company believes that the Projections are
reasonable and attainable, it being understood that uncertainty is inherent in any forecasts or projections and that no assurance can
be given that the results set forth in the Projections will actually be obtained or not differ materially.
(f) No Material Adverse Change. Since December 31, 2003 there has been no material adverse change in the financial condition of
--------------------------
Company and its Subsidiaries, taken as a whole.
1.33 Litigation. There are no actions, suits or proceedings pending or, to the knowledge of Company and its Subsidiaries,
----------
threatened (i) against any Credit Party with respect to any Document or (ii) that could reasonably be expected to have a Material
Adverse Effect.
1.34 True and Complete Disclosure. All factual information (taken as a whole) heretofore or contemporaneously furnished by or on
----------------------------
behalf of Company or any of its Subsidiaries in writing to any Lender (including, without limitation, all information contained in
the Documents) (other than the Projections as to which Section 6.5(e) applies) for purposes of or in connection with this Agreement
--------------
or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on
behalf of Company or any of its Subsidiaries in writing to any Lender for purposes of or in connection with this Agreement or any
transaction contemplated herein, when taken as a whole, do not contain as of the date furnished any untrue statement of material fact
or omit to state a material fact necessary in order to make the statements contained herein or therein, in light of the circumstances
under which they were made, not misleading. Company has disclosed to the Lenders (a) all agreements, instruments and corporate or
other restrictions to which Company or any of its Subsidiaries is subject, and (b) all other matters known to any of them, that
individually or in the aggregate with respect to (a) and (b) above, could reasonably be expected to result in Material Adverse Effect.
1.35 Use of Proceeds; Margin Regulations.
-----------------------------------
(a) Term Loan Proceeds. All proceeds of the Term Loans incurred on the Initial Borrowing Date shall be used by Company (x) to
-------------------
finance, in part, the Refinancing, (y) to pay fees and expenses in connection with the Transaction and (z) for general corporate
purposes of Company and its Subsidiaries.
(b) Revolving Loan Proceeds. All proceeds of the Revolving Loans incurred hereunder shall be used by Company and its
-------------------------
Subsidiaries for ongoing working capital needs and general corporate purposes.
(c) Margin Regulations. No part of the proceeds of any Loan will be used to purchase or carry any margin stock (as defined in
-------------------
Regulation U of the Board), directly or indirectly, or to extend credit for the purpose of purchasing or carrying any such margin
stock for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin security
or for any other purpose which might cause any of the Loans or extensions of credit under this Agreement to be considered a "purpose
credit" within the meaning of Regulation T, U or X of the Board.
1.36 Taxes.
-----
(a) Tax Returns and Payments. Except as disclosed on Schedule 6.9, each of Company and each of its Subsidiaries has timely
------------------------- -------------
filed or caused to be filed with the appropriate taxing authority, all returns, statements, forms and reports for taxes (the
"Returns") required to be filed by or with respect to the income, properties or operations of Company and/or any of its Subsidiaries.
The Returns accurately reflect in all material respects all liability for taxes of Company and its Subsidiaries for the periods
covered thereby. Each of Company and each of its Subsidiaries has paid all material taxes payable by it before they have become
delinquent other than those contested in good faith and for which adequate reserves have been established in conformity with GAAP.
Neither Company nor any of its Subsidiaries has incurred, or will incur, any material tax liability in connection with the
Transaction. Neither Company nor any of its Subsidiaries has participated in any transaction (which relates to a year of the
taxpayer that is still open under the statute of limitations) which is a "reportable transaction" within the meaning of Treasury
Regulation section 1.6011-4(b)(2) (irrespective of the date the transaction was entered).
(b) Tax Examinations. As of the date hereof, there is no action, suit, proceeding, investigation, audit, or claim pending or,
----------------
to the knowledge of Company, threatened by any authority regarding any taxes relating to Company or any of its Subsidiaries
(including taxes for which the Company or its Subsidiaries could be liable for as a result of joint and several liability, successor
liability, transferee liability, or otherwise). All deficiencies which have been asserted against Company and its Subsidiaries (or
for which Company or its Subsidiaries could be liable) as a result of any examinations have been fully paid or finally settled or are
being contested in good faith. No issue has been raised in any examination which, by application or similar principles, reasonably
can be expected to result in an assertion of a deficiency for any other year not so examined that has not been accrued on Company's
and its Subsidiaries' audited financial statements for its most recently ended Fiscal Year that would be required to be so accrued in
accordance with GAAP. Neither Company nor any of its Subsidiaries has knowledge of any material federal income tax liability with
respect to open taxable years in excess of amounts accrued on such Person's financial statements for its most recently ended Fiscal
Year that would be required to be so accrued in accordance with GAAP, nor does Company or any of its Subsidiaries anticipate any
further material tax liability with respect to such open taxable years taken as a whole in excess of such accrued amounts.
1.37 Compliance With ERISA; Foreign Pension Plans. (a) Except as, in the aggregate, could not reasonably be expected to have a
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Material Adverse Effect, (i) each Plan, and each other "employee benefit plan" (as defined in Section 3(3) of ERISA) with respect to
which a Credit Party, any of its Subsidiaries or any of their ERISA Affiliates is an "employer" (as defined in Section 3(5) of
ERISA), has been maintained, operated, funded and administered in substantial compliance with its own terms and in a manner so as not
to result in any liability to a Credit Party, any of its Subsidiaries or any of their ERISA Affiliates for failure to comply with the
applicable provisions of applicable law, including ERISA and the Code; (ii) no Termination Event has occurred, and, to the knowledge
of a Credit Party, no event or condition has occurred or exists as a result of which any Termination Event could reasonably be
expected to occur, with respect to any Plan; (iii) to the knowledge of a Credit Party, no Multiemployer Plan is, or is reasonably
expected to be, insolvent or in reorganization, and no Multiemployer Plan has been, or is reasonably expected to be, terminated; (iv)
no Plan has an accumulated or waived funding deficiency or has applied for an extension of any amortization period within the meaning
of Section 412 of the Code; (v) neither a Credit Party, nor any of its Subsidiaries nor any of their ERISA Affiliates have incurred,
or are reasonably likely to incur, any liability to or on account of a Plan pursuant to Section 409, 502(i), 502(l), 4062, 4063,
4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code or under any agreement or other instrument pursuant to which a
Credit Party, any of its Subsidiaries or any of their ERISA Affiliates has agreed or is required to indemnify any Person against any
such liability; (vi) no proceedings have been instituted to terminate any Plan within the last fiscal year; (vii) to their knowledge,
using actuarial assumptions and computation methods consistent with subpart 1 of subtitle E of Title IV of ERISA, neither a Credit
Party, nor any of its Subsidiaries nor any of their ERISA Affiliates would have any liability to any Multiemployer Plan in the event
of a complete withdrawal therefrom, as of the close of the most recent fiscal year of each such Multiemployer Plan ending prior to
the date of any Credit Event; (viii) no Lien imposed under the Code or ERISA on the assets of a Credit Party, any of its Subsidiaries
or any of their ERISA Affiliates exists or is likely to arise on account of any Plan; (ix) each Credit Party, each of its
Subsidiaries or each of their ERISA Affiliates have made all contributions to each Plan within the time required by law or by the
terms of such Plan; (x) each Credit Party, each of its Subsidiaries or each of their ERISA Affiliates do not maintain or contribute
to any "welfare plan" (as defined in Section 3(1) of ERISA) which provides benefits to retired employees (other than as required by
Section 601 et seq. of ERISA) or any employee pension benefit plan (as defined in Section 3(2) of ERISA) the obligations with respect
to either of which could reasonably be expected to have a Material Adverse Effect; (xi) each "welfare plan" maintained by a Credit
Party, any of its Subsidiaries or any of their ERISA Affiliates has been administered in substantial compliance with Sections 601-609
of ERISA and Section 4980B of the Code; (xii) the actuarial present value of all "benefit liabilities" (within the meaning of Section
4001 of ERISA) under each Plan (determined utilizing the actuarial assumptions used to fund such Plan), whether or not vested, did
not, as of the last annual valuation date prior to the date hereof, exceed the fair market current value as of such date of the
assets of such Plan allocable to such accrued liabilities; and (xiii) the present value (determined using actuarial and other
assumptions which are reasonable with respect to the benefits provided and the employees participating) of the liability of the
Credit Parties, their Subsidiaries or any of their ERISA Affiliates for post-retirement welfare benefits to be provided to their
current and former employees under "welfare plans" (as defined in Section 3(1) of ERISA), net of assets under all such welfare plans,
are reflected on the financial statements of the Credit Parties and their Subsidiaries in accordance with FASB 106.
(b) (i) Except as, in the aggregate could not reasonably be expected to have a Material Adverse Effect, each Foreign Pension
Plan is in compliance and in good standing (to the extent such concept exists in the relevant jurisdiction) in all material respects
with all laws, regulations and rules applicable thereto, including all funding requirements, and the respective requirements of the
governing documents for such Foreign Pension Plan; (ii) with respect to each Foreign Pension Plan maintained or contributed to by a
Credit Party or any of its Subsidiaries, (A) that is required by applicable law to be funded in a trust or other funding vehicle, the
aggregate of the accumulated benefit obligations under such Foreign Pension Plan does not exceed to any material extent the current
fair market value of the assets held in the trusts or similar funding vehicles for such Foreign Pension Plan and (B) that is not
required by applicable law to be funded in a trust or other funding vehicle, reasonable reserves have been established in accordance
with prudent business practice or where required by ordinary accounting practices in the jurisdiction in which such Foreign Pension
Plan is maintained; (iii) there are no material actions, suits or claims (other than routine claims for benefits) pending or, to the
knowledge of the Credit Parties or its Subsidiaries, threatened against a Credit Party or any Subsidiary with respect to any Foreign
Pension Plan; (iv) all material contributions required to have been made by the Credit Parties or any of its Subsidiaries to any
Foreign Pension Plan have been made within the time required by law or by the terms of such Foreign Pension Plan; and (v) except as
disclosed on Schedule 6.10, no Foreign Pension Plan with respect to which the Credit Parties or any of its Subsidiaries could have
--------------
any material liability has been terminated or wound-up and no actions or proceedings have been taken or instituted to terminate or
wind-up such a Foreign Pension Plan.
1.38 Security Documents.
------------------
(a) Personal Property Collateral. The provisions of the Security Agreement are effective to create in favor of Collateral
------------------------------
Agent for the benefit of the Secured Creditors a legal, valid and enforceable security interest in all right, title and interest of
Company and its Domestic Subsidiaries in the Collateral, and the Security Agreement, together with the filings of the UCC initial
financing statements described therein creates a fully perfected first priority lien on, and security interest in, all right, title
and interest of Company and its Domestic Subsidiaries in all of the Collateral described therein, subject to no other Liens other
than Permitted Liens. The recordation in the United States Patent and Trademark Office of assignments for security made pursuant to
the Security Agreement, together with filings of the UCC initial financing statements made pursuant to the Security Agreement, will
be effective, under Federal law, to perfect the security interest granted to Collateral Agent in the trademarks and patents covered
by the Security Agreement, and the filing of an assignment for security made pursuant to the Security Agreement, with the United
States Copyright Office together with filings of the UCC initial financing statements made pursuant to the Security Agreement, will
be effective under Federal and applicable state law to perfect the security interest granted to Collateral Agent in the copyrights
covered by the Security Agreement.
(b) Pledged Securities. To the extent represented by certificated securities (the "Certificated Pledged Stock") or notes (the
------------------- ---------------------------
"Pledged Notes") described in the Security Documents, when stock certificates representing such Certificated Pledged Stock and the
--------------
original Pledged Notes are delivered to Collateral Agent, and the UCC initial financing statements described in the Security
Agreement are filed in the offices described in the Security Agreement and Company receives proceeds of the Loans on the Initial
Borrowing Date, the Security Agreement shall constitute a fully perfected Lien (to the extent such Lien can be perfected by filing,
recording, registration or, with respect to the Certificated Pledged Stock and Pledged Notes, possession) on, and security interest
in, all right, title and interest of the Credit Parties in such Collateral and the proceeds thereof, as security for the Obligations,
in each case prior and superior in right to any other Person (except, in the case of Collateral other than Certificated Pledged Stock
and Pledged Notes, Permitted Liens, and only to the extent that priority can be obtained by filing).
(c) Real Estate Collateral. The Mortgages create, as security for the obligations purported to be secured thereby, a valid and
-----------------------
enforceable perfected security interest in and Lien on all of the Mortgaged Properties (including, without limitation, all fixtures
and improvements relating to such Mortgaged Properties and affixed or added thereto on or after the Initial Borrowing Date) in favor
of Collateral Agent (or such other trustee as may be named therein) for the benefit of the Secured Creditors, superior to and prior
to the rights of all third Persons and subject to no other Liens (other than Customary Permitted Liens and Liens permitted under
Section 8.1(i)). Schedule 6.11(c) contains a true and complete list of each parcel of real property owned or leased by any Credit
--------------- -----------------
Party on the date hereof, the type of interest therein held by such Credit Party and whether such real property will be encumbered by
a Mortgage. Each of the applicable Credit Parties designated on Schedule 6.11(c) has good and marketable title to all its Mortgaged
-----------------
Properties free and clear of all Liens except those described in the first sentence of this Section 6.11(c).
---------------
(d) Foreign Security Documents. Each Foreign Security Document is effective to create in favor of the Collateral Agent, for the
---------------------------
benefit of the Secured Creditors, a legal, valid and enforceable security interest in the Collateral purported to be pledged pursuant
to such Foreign Security Document having the priority set forth therein and, when the actions specified in Schedule 6.11(d), if any,
-----------------
are taken, each Foreign Security Document shall constitute a fully perfected (to the extent such concept exists under applicable
Foreign Requirements of Law) Lien on, and security interest in, all right, title and interest of the grantors thereunder in such
Collateral, in each case prior and superior in right to any other Person, other than Permitted Liens.
1.39 Documents.
---------
(a) True and Accurate Copies; Consummation of Transaction. Company has heretofore delivered to Administrative Agent true,
---------------------------------------------------------
correct and complete copies of the Transaction Documents entered into in connection with the Transaction. Company has, concurrently
with the execution and delivery of this Agreement, consummated the transactions contemplated by the Transaction Documents pursuant
thereto, and the Transaction Documents set forth the entire agreement among the parties thereto with respect to the subject matter
thereof. No party to the Transaction Documents has waived the fulfillment of any condition precedent set forth therein to the
consummation of the transactions contemplated thereby, no party is in default or has failed to perform any of its obligations
thereunder or under any instrument or document executed and delivered in connection therewith.
(b) Representations and Warranties in Documents. All representations and warranties set forth in the Transaction Documents were
-------------------------------------------
true and correct in all material respects at the time as of which such representations and warranties were made or deemed made and as
of the Initial Borrowing Date except to the extent such representations and warranties are expressly made as of a specified date in
which event such representations and warranties shall be true and correct as of such specified date.
1.40 Ownership of Property. Company and each of its Subsidiaries has good and marketable title to, or a subsisting leasehold
----------------------
interest in, all items of material real and personal property used in its operations, free and clear of all Liens, except Permitted
Liens. Substantially all items of real and material personal property owned by, leased to or used by Company and each of its
Subsidiaries are in good operating condition and repair, ordinary wear and tear excepted, are free and clear of any known defects
except such defects as do not substantially interfere with the continued use thereof in the conduct of normal operations, and are
able to serve the function for which they are currently being used. The items of real and personal property owned by, leased to or
used by Company and each of its Subsidiaries constitute all of the assets used in the conduct of such Person's business as presently
conducted, and neither this Agreement nor any other Document, nor any transaction contemplated under any such agreement, will affect
any right, title or interest of Company or any of its Subsidiaries in and to any of such assets in a manner that would have or is
reasonably likely to have a Material Adverse Effect. To the knowledge of Company, there are no actual, threatened or alleged
defaults of a material nature with respect to any leases of real property under which Company or any of its Subsidiaries is lessee or
lessor.
1.41 Capitalization of Company. On the Initial Borrowing Date, the capitalization of each of Holdings and Company will be as set
-------------------------
forth on Schedule 6.14(a) hereto. All outstanding shares of capital stock of each of Holdings and Company have been duly authorized
-----------------
and validly issued and are fully paid and non-assessable. Except as set forth on Schedule 6.14(a), no authorized but unissued or
-----------------
treasury shares of Capital Stock of either Holdings or Company are subject to any option, warrant, right to call or commitment of any
kind or character. A complete and correct copy of each of the Organizational Documents of each of Holdings and Company in effect on
the date of this Agreement and the Initial Borrowing Date has been delivered to Administrative Agent. Neither Holdings nor Company
has any outstanding stock or securities convertible into or exchangeable for any shares of its Capital Stock, or any rights issued to
any Person (either preemptive or other) to subscribe for or to purchase, or any options for the purchase of, or any agreements
providing for the issuance (contingent or otherwise) of, or any calls, commitments or claims of any character relating to any of its
Capital Stock or any stock or securities convertible into or exchangeable for any of its Capital Stock (other than as set forth in
the Organizational Documents of Company). Neither Holdings, Company nor any of its Subsidiaries is subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its Capital Stock or any convertible securities,
rights or options of the type described in the preceding sentence.
1.42 Subsidiaries.
------------
(a) Organization. Schedule 6.15 hereto sets forth a true, complete and correct list as of the Initial Borrowing Date of each
------------ --------------
Subsidiary of Company after giving effect to the Transactions and indicates for each such Subsidiary (i) its jurisdiction of
organization, state identification number and federal employer identification number (where applicable) or equivalent organizational
number in its jurisdiction of organization and exact legal name as it appears on the certificate of incorporation or other state or
applicable Governmental Authority issued Organizational Document and (ii) its ownership (by holder and percentage interest). Company
has no Subsidiaries except for Subsidiaries created in accordance with Section 8.15 and those Subsidiaries listed as such on
-------------
Schedule 6.15 hereto.
-------------
(b) Capitalization. All of the issued and outstanding shares of Capital Stock of each Subsidiary of Company as of the Initial
--------------
Borrowing Date are owned, directly or indirectly, by Company. All shares of Capital Stock of each Subsidiary of Company have been
duly authorized and validly issued, are fully paid and non-assessable and are owned, free and clear of all Liens except for Permitted
Liens. No authorized but unissued or treasury shares of capital stock of any Subsidiary of Company are subject to any option,
warrant, right to call or commitment of any kind or character. A complete and correct copy of each Organizational Document of each
Domestic Subsidiary of Company and each Foreign Subsidiary of Company whose Capital Stock is required to be pledged pursuant to any
Security Document has been delivered to Administrative Agent.
1.43 Compliance With Law, Etc. Neither Holdings, Company nor any of their Subsidiaries is in default under or in violation of
--------------------------
any Requirement of Law or Contractual Obligation or under its Organizational Documents, as the case may be, in each case the
consequences of which default or violation, either individually or in the aggregate, would have a Material Adverse Effect. No
Requirement of Law in effect on the date hereof could reasonably be expected to have a Material Adverse Effect.
1.44 Investment Company Act. Neither Holdings, Company nor any of their Subsidiaries is an "investment company" or a company
-----------------------
"controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
1.45 Public Utility Holding Company Act. Neither Holdings, Company nor any of their Subsidiaries is a "holding company," or a
-----------------------------------
"subsidiary company" of a "holding company," or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935, as amended.
1.46 Environmental Matters. (a) Company and each of its Subsidiaries have complied with, and on the date of such Credit Event
----------------------
are in compliance with, all applicable Environmental Laws and Environmental Permits except for such non-compliance as could not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(b) except as disclosed on Schedule 6.19, there are no material past, pending or, to the knowledge of Company, threatened
-------------
Environmental Claims against Company or any of its Subsidiaries or Premises or Former Premises of Company or any of its Subsidiaries.
(c) there are no facts, circumstances, conditions or occurrences on any Premises of Company or any of its Subsidiaries or, to
the knowledge of Company, on any Former Premises of Company or any of its Subsidiaries or any property adjoining any Premises of
Company or any of its Subsidiaries that could reasonably be expected (i) to form the basis of an Environmental Claim against Company
or any of its Subsidiaries or any such real property except for Environmental Claims which could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, or (ii) except as disclosed on Schedule 6.19, to cause such
--------------
Premises to be subject to any restrictions on the ownership, occupancy, use or transferability of such real property under any
Environmental Law.
(d) Contaminants have not at any time been generated, used, treated or stored on, or transported to or from, Released, or
otherwise come to be located on any Premises or Former Premises of Company or any of its Subsidiaries where such generation, use,
treatment, storage, or Release has violated or could reasonably be expected to violate or create liability under any Environmental
Law and result, individually or in the aggregate, in a Material Adverse Effect.
(e) except as set forth on Schedule 6.19, no judicial proceeding or governmental or administrative action is pending or, to the
-------------
knowledge of Company, threatened, under any Environmental Law to which Company or any of its Subsidiaries is or will be named as a
party, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law with respect to Company, any of its Subsidiaries, or
any currently or formerly owned or leased real property.
(f) Company and each of its Subsidiaries have adopted procedures that are designed to (i) ensure that Company and its
Subsidiaries, any of their operations and each of the properties owned or leased by Company and each of its Subsidiaries remains in
compliance with applicable Environmental Laws and (ii) minimize any liabilities or potential liabilities that Company and its
Subsidiaries, any of their operations and each of the properties owned or leased by Company and its Subsidiaries may have under
applicable Environmental Laws.
1.47 Labor Relations. Neither Company nor any of its Subsidiaries is engaged in any unfair labor practice that could reasonably
----------------
be expected to have a Material Adverse Effect. There is (i) no material unfair labor practice complaint pending against Company or
any of its Subsidiaries or, to the knowledge of Company, threatened against any of them before the National Labor Relations Board or
any similar Governmental Authority in any jurisdiction, and no significant grievance or significant arbitration proceeding arising
out of or under any collective bargaining agreement is so pending against Company or any of its Subsidiaries or, to the knowledge of
Company, threatened against any of them, (ii) no material strike, labor dispute, slowdown or stoppage is pending against Company or
any of its Subsidiaries or, to the knowledge of Company, threatened against Company or any of its Subsidiaries and (iii) to the
knowledge of Company, no question concerning union representation exists with respect to the employees of Company or any of its
subsidiaries, except (with respect to any matter specified in clause (i), (ii) or (iii) above, either individually or in the
aggregate) such as could not reasonably be expected to have a Material Adverse Effect.
1.48 Intellectual Property, Licenses, Franchises and Formulas. Each of Company and each of its Subsidiaries owns or holds
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licenses or other rights to or under all the patents, patent applications, trademarks, designs, service marks, trademark and service
xxxx registrations and applications therefor, trade names, copyrights, copyright registrations and applications therefor, trade
secrets, proprietary information, computer programs, data bases, licenses, permits, franchises and formulas, or rights with respect
to the foregoing which are material to the business of Company and its Subsidiaries (collectively, "Intellectual Property"), and has
---------------------
obtained assignments of all licenses and other rights of whatever nature, necessary for the present conduct of the business of
Company and its Subsidiaries without any known material conflict with the rights of others. Neither Company nor any of its
Subsidiaries has knowledge of any existing or threatened claim by any Person contesting the validity, enforceability, use or
ownership of the Intellectual Property, or of any existing state of facts that would support a claim that use by Company or any of
its Subsidiaries of any such Intellectual Property has infringed or otherwise violated any proprietary rights of any other Person,
except as could not reasonably be expected to have a Material Adverse Effect.
1.49 Certain Fees. No broker's or finder's fees or commissions or any similar fees or commissions will be payable by Company or
------------
any of its Subsidiaries with respect to the incurrence and maintenance of the Obligations, any other transaction contemplated by the
Loan Documents or any services rendered in connection with such transactions. Company covenants that it will indemnify
Administrative Agent and each Lender against and hold Administrative Agent and each Lender harmless from any claim, demand or
liability for broker's or finder's fees or similar fees or commissions alleged to have been incurred in connection with any of the
transactions contemplated hereby.
1.50 Asbestos Matters. Neither Company nor any of its Subsidiaries (a) manufactures, produces or sells any product containing
-----------------
asbestos; or (b) has manufactured, produced or sold any product containing asbestos prior to the Effective Date.
1.51 Anti-Terrorism Laws. (a) None of the Credit Parties or, to the knowledge of any of the Credit Parties, any of their
--------------------
Affiliates is in violation of any laws relating to terrorism or money laundering ("Anti-Terrorism Laws"), including the regulations
--------------------
administered by the United States Treasury Department's Office of Foreign Asset Control ("OFAC") and Executive Order No. 13224 on
----
Terrorist Financing, effective September 24, 2001 (the "Executive Order"), and the Uniting and Strengthening America by Providing
----------------
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.
(b) No Credit Party or, to the knowledge of any of the Credit Parties, any of their Affiliates or their respective brokers or
other agents acting or benefiting in any capacity in connection with the Loans, is any of the following:
(A) a Person or entity that is listed in the annex to, or is otherwise subject to the prohibitions contained in, the Executive
Order or the OFAC regulations;
(B) a Person or entity owned or controlled by, or acting for or on behalf of, any Person or entity that is listed in the annex
to, or is otherwise subject to the prohibitions contained in, the Executive Order or the OFAC regulations;
(C) a Person or entity with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any
Anti-Terrorism Law;
(D) a Person or entity that commits, threatens or conspires to commit or supports "terrorism" as defined in the Executive Order
or the OFAC regulations; or
(E) a Person or entity that is named on the most current list of "Specially Designated Nationals and Blocked Persons" published
by OFAC at its official website or any replacement website or other replacement official publication of such list.
(c) No Credit Party or to the knowledge of any Credit Party, any of its agents acting in any capacity in connection with the
Loans (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit
of any Person described in clause (b) above, (ii) deals in, or otherwise engages in any transaction relating to, any property or
interests in property blocked pursuant to the Executive Order or the OFAC regulations, or (iii) engages in or conspires to engage in
any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set
forth in any Anti-Terrorism Law.
7.
AFFIRMATIVE COVENANTS
Holdings and Company hereby agree that, so long as any of the Commitments remain in effect, or any Loan or LC
Obligation remains outstanding and unpaid or any other amount is owing to any Lender or Administrative Agent hereunder, Holdings and
Company shall:
1.52 Financial Statements. Furnish to Administrative Agent (which shall promptly provide a copy to each Lender):
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(a) Monthly Financial Statements. As soon as available, but in any event within 30 days (45 days for the December financial
------------------------------
statements) after the end of each fiscal month of Company other than the last such month of the first three Fiscal Quarters of
Company in each year, (i) the unaudited consolidated balance sheets of Holdings and its Subsidiaries as of the end of such month and
the related consolidated statements of income, retained earnings and cash flows, for such month and for the elapsed portion of the
Fiscal Year ended with the last day of such month, in each case setting forth comparative figures for the corresponding month in the
prior Fiscal Year and the budgeted figures for such period as set forth in the respective budget delivered pursuant to Section
--------
7.2(e), and (ii) unaudited balance sheets for the European aerosol operations and May operations as of the end of such month and the
related statements of income for such month;
(b) Quarterly Financial Statements. As soon as available, but in any event not later than 45 days after the end of each of the
--------------------------------
first three Fiscal Quarters of each Fiscal Year of Company, (i) the unaudited consolidated balance sheet of Holdings and its
Subsidiaries as at the end of such quarter and the related unaudited consolidated statements of income, retained earnings and of cash
flows of Holdings and its Subsidiaries for such quarter and the elapsed portion of the Fiscal Year ended with the last day of such
quarter, in each case setting forth comparative figures for the corresponding quarter in the prior Fiscal Year, for the period from
the start of each Fiscal Year to the end of such period and the budgeted figures for such period as set forth in the respective
budget delivered pursuant to Section 7.2(e) and (ii) unaudited balance sheets for the European aerosol operations and May operations
--------------
as of the end of such quarter and the related statements of income for such quarter, all of which shall be certified by the Chief
Financial Officer of Company, subject to normal year-end audit adjustments and the absence of footnotes;
(c) Annual Financial Statements. As soon as available, but in any event within 90 days after the end of each Fiscal Year of
-----------------------------
Company, a copy of (i) the consolidated balance sheet of Holdings and its Subsidiaries as at the end of such year and the related
consolidated statements of income, retained earnings and of cash flows for such year, setting forth in each case in comparative form
the figures for the previous year and the budgeted figures for the relevant period as set forth in the respective budget delivered
pursuant to Section 7.2(e) and (ii) additional financial statements regarding Company, the European aerosol operations and the May
--------------
operations in form and substance reasonably acceptable to Administrative Agent.
All such financial statements shall be complete and correct in all material respects and shall be prepared in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior periods (except as approved by the accountants preparing
such statements or the Chief Financial Officer, as the case may be, and disclosed therein) and, in the case of the consolidated
financial statements referred to in Section 7.1(c)(i), accompanied by a report thereon of independent certified public accountants of
-----------------
recognized national standing, which report shall contain no qualifications with respect to the continuance of Company and its
Subsidiaries as going concerns or otherwise and shall state that such financial statements present fairly in all material respects
the financial position of Company and its Subsidiaries as at the dates indicated and the results of their operations and cash flow
for the periods indicated in conformity with GAAP and that the examination by such accountants in connection with such financial
statements has been made in accordance with GAAP.
1.53 Certificates; Other Information. Furnish to Administrative Agent (which shall promptly provide a copy to each Lender):
-------------------------------
(a) Officer's Certificates. Concurrently with the delivery of the financial statements referred to in Sections 7.1(b) and
----------------------- ---------------------
7.1(c), a certificate of Responsible Financial Officer substantially in the form of Exhibit 7.2(a) (a "Compliance Certificate")
--------------- -----------------------
stating that, to the best of such officer's knowledge, (i) such financial statements present fairly in all material respects, in
accordance with GAAP, the financial condition and results of operations of Company and its Subsidiaries for the period referred to
therein (subject, in the case of interim statements, to normal recurring adjustments and the absence of footnotes) and (ii) no Event
of Default or Unmatured Event of Default has occurred, except as specified in such certificate and, if so specified, the action which
Company proposes to take with respect thereto, which certificate (other than such certificate delivered together with financial
statements, required by Section 7.1(a)) shall set forth detailed computations to the extent necessary to establish Company's
---------------
compliance with the covenants set forth in Article IX of this Agreement;
----------
(b) Audit Reports and Statements. Promptly following Company's receipt thereof, copies of all consolidated financial or other
----------------------------
consolidated reports or statements, if any, submitted to Company or any of its Subsidiaries by independent public accountants
relating to any annual or interim audit of the books of Company or any of its Subsidiaries;
(c) Accountant's Certificates. Concurrently with the delivery of the financial statements referred to in Section 7.1(c), to the
-------------------------- --------------
extent not contrary to the then current recommendations of the American Institute of Certified Public Accountants, a certificate from
Deloitte & Touche LLP or other independent certified public accountants of nationally recognized standing, stating that, in the
course of their annual audit of the books and records of Company, no Event of Default or Unmatured Event of Default has come to their
attention which was continuing at the end of such Fiscal Year or on the date of their certificate, or if such an Event of Default or
Unmatured Event of Default has come to their attention, the certificate shall indicate the nature of such Event of Default or
Unmatured Event of Default; it being understood that such audit was conducted with respect to accounting matters and was not directed
at determining the existence of any Unmatured Event of Default or Event of Default; and
(d) Management Letters. Promptly after receipt thereof, a copy of any "management letter" received by Holdings or any of its
-------------------
Subsidiaries from its certified public accountants;
(e) Budgets; Projections. As soon as available and in any event within thirty (30) days following the first day of each Fiscal
---------------------
Year of Company (i) an annual budget in form satisfactory to Administrative Agent (including budgeted balance sheet and budgeted
statements of income, cash flows, retained earnings and shareholders' equity) prepared by Company for each Fiscal Quarter of such
Fiscal Year and (ii) projections in form satisfactory to Administrative Agent covering the period from such Fiscal Year through
December 31, 2011, in each case prepared in reasonable detail, with appropriate presentation, which shall be accompanied by the
statement of the chief executive officer or Chief Financial Officer of Company to the effect that, to the best of his knowledge, such
budget and projections are a reasonable estimate for the periods respectively covered thereby;
(f) Public Filings; Reports. Within three (3) Business Days after transmission or receipt thereof, copies of (i) all financial
------------------------
statements, filings, registrations and reports which Holdings or Company may make to, or file with the SEC or any successor or
analogous Governmental Authority and (ii) all material notices and reports as Holdings or Company shall send to a holder of Secured
Notes, Subordinated Notes or any Permitted Refinancing thereof in its capacity as a holder and after a Qualified IPO, to its
shareholders generally;
(g) Negative Covenant Report. If the Total Leverage Ratio for the most recently completed Fiscal Year of Holdings, as set forth
-------------------------
on the Compliance Certificate delivered in accordance with Section 7.2(a), equals 5.0:1.0 or more, then concurrently with the
---------------
delivery of the financial statements referred to in Section 7.1(c), a report of Responsible Financial Officer substantially in the
--------------
form of Exhibit 7.2(g) setting forth calculations related to certain covenants contained in Article VIII of this Agreement; and
-------------- ------------
(h) Other Requested Information. Such other information respecting the respective properties, business affairs, financial
-----------------------------
condition and/or operations of Company or any of its Subsidiaries or the Collateral as Administrative Agent or any Lender may from
time to time reasonably request.
1.54 Notices. Promptly and in any event within five (5) Business Days after an officer of Company or of any of its Subsidiaries
-------
obtains knowledge thereof, give written notice to Administrative Agent (which shall promptly provide a copy of such notice to each
Lender) of:
(a) Event of Default or Unmatured Event of Default. The occurrence of any Event of Default or Unmatured Event of Default,
-------------------------------------------------
accompanied by a statement of the Chief Financial Officer setting forth details of the occurrence referred to therein and stating
what action Company proposes to take with respect thereto;
(b) Litigation and Related Matters. The commencement of, or any material development in, any action, suit, proceeding or
--------------------------------
investigation pending or threatened against or affecting Company or any of its Subsidiaries or any of their respective properties
before any arbitrator or Governmental Authority, (i) in which the amount involved is $5,000,000 or more in the aggregate, (ii) with
respect to any Document or any material Indebtedness or Capital Stock of Company or any of its Subsidiaries or (iii) which, if
determined adversely to Company or any of its Subsidiaries, could reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect;
(c) Environmental Matters. The occurrence of one or more of the following environmental matters which could reasonably be
----------------------
expected to subject Company or its Subsidiaries to liability individually or in the aggregate in excess of $5,000,000:
(i) any pending or threatened Environmental Claim against Company or any of its Subsidiaries or any real property at any time
owned or operated by Company or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any real property at any time owned or operated by Company or any of its
Subsidiaries that (y) results in material noncompliance by Company or any of its Subsidiaries with any applicable Environmental Law,
or (z) could reasonably be expected to form the basis of a material Environmental Claim against Company or any of its Subsidiaries or
any such real property;
(iii) any condition or occurrence on any real property at any time owned or operated by Company or any of its Subsidiaries that
could reasonably be expected to cause such real property to be subject to any restrictions on the ownership, occupancy, use or
transferability of such real property under any Environmental Law; and
(iv) the taking of any Remedial Action in response to the actual or alleged presence of any Contaminant on any real property at
any time owned or operated by Company or any of its Subsidiaries.
All such notices shall describe in reasonable detail the nature of the Environmental Claim, investigation, condition, occurrence or
Remedial Action and Company's or such Subsidiary's response thereto. In addition, Company will provide Administrative Agent with
copies of all material written communications with any Governmental Authority relating to actual or alleged violations of
Environmental Laws, all material written communications with any Person relating to Environmental Claims, and such detailed reports
of any Environmental Claim as may reasonably be requested by Administrative Agent or any Lender.
(d) Notice of Change of Control. Each occasion that any Change of Control shall occur and such notice shall set forth in
----------------------------
reasonable detail the particulars of each such occasion; and
1.55 Conduct of Business and Maintenance of Existence. Continue to engage in business of the same general type as now conducted
---------------------------------------------------
by it (or reasonably related or incidental thereto) and preserve, renew and keep in full force and effect its and each of its
Subsidiary's corporate existence and take all reasonable action to maintain all rights, privileges and franchises material to its and
those of each of its Subsidiaries' business except as otherwise permitted pursuant to Sections 8.3 and 8.4 and comply and cause each
------------ ---
of its Subsidiaries to comply with all material Contractual Obligations and material Requirements of Law.
1.56 Payment of Obligations. Pay or discharge or otherwise satisfy at maturity or, to the extent permitted hereby, prior to
-----------------------
maturity or before they become delinquent, as the case may be, and cause each of its Subsidiaries to pay or discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may be:
(a) all its and their respective Indebtedness;
(b) all taxes, duties, levies, imposts, deductions, assessments, charges or withholdings imposed upon any of them or upon any of
their income or profits or any of their respective properties or assets prior to the date on which penalties attach thereto; and
(c) all lawful claims prior to the time they become a Lien (other than Permitted Liens) upon any of their respective properties
or assets;
provided, however, that neither Company nor any of its Subsidiaries shall be required to pay or discharge any such Indebtedness, tax,
-------- -------
duty, levy, impost, deduction, assessment, charge, withholding or claim while the same is being contested by it in good faith and by
appropriate actions so long as Company or such Subsidiary, as the case may be, shall have set aside on its books adequate reserves in
accordance with GAAP (segregated to the extent required by GAAP) with respect thereto.
1.57 Inspection of Property, Books and Records. Keep, or cause to be kept, and cause each of its Subsidiaries to keep or cause
------------------------------------------
to be kept, adequate records and books of account, in which complete entries are to be made reflecting its and their business and
financial transactions, such entries to be made in accordance with GAAP (or with respect to Foreign Subsidiaries in such other manner
as is acceptable to Administrative Agent) and all material Requirements of Law and permit, and cause each of its Subsidiaries to
permit, any Lender or its respective representatives, during normal business hours, and from time to time at the reasonable request
of such Lender made to Company and upon reasonable notice, to visit and inspect its and their respective properties, to examine and
make copies of and take abstracts from its and their respective records and books of account, and to discuss its and their respective
affairs, finances and accounts with its and their respective principal officers, directors and independent public accountants (and by
this provision Company authorizes such accountants to discuss with the Lenders and such representatives the affairs, finances and
accounts of Company and its Subsidiaries reasonably related to the matters contemplated hereby provided that Company has been
furnished reasonable prior notice of such discussion and has been provided an opportunity to participate therein).
1.58 ERISA; Foreign Pension Plan. (a) As soon as practicable and in any event within three (3) Business Days after a Credit
------------------------------
Party, any of its Subsidiaries or any of their ERISA Affiliates knows or has reason to know that a Termination Event has occurred
with respect to any Plan (whether or not the requirement for notice of such Termination Event has been waived by the PBGC), deliver,
or cause such Subsidiary or ERISA Affiliate to deliver, to Administrative Agent a certificate of a responsible officer of the Credit
Party or such Subsidiary or ERISA Affiliate, as the case may be, setting forth the details of such Termination Event and the action,
if any, which the Credit Party or such Subsidiary or ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given;
(b) As soon as possible and in any event within three (3) Business Days after a Credit Party, any of its Subsidiaries or any of
their ERISA Affiliates knows or has reason to know that any of the following have occurred or is reasonably likely to occur with
respect to any Plan or Multiemployer Plan:
(i) a Plan or Multiemployer Plan has been or may be terminated, reorganized, petitioned or declared insolvent under Title IV of
ERISA,
(ii) the Plan Sponsor takes any action to terminate a Plan or Multiemployer Plan,
(iii) the PBGC has instituted or will institute proceedings under Section 515 of ERISA to collect a delinquent contribution to a
Multiemployer Plan or under Section 4042 of ERISA to terminate a Plan or Multiemployer Plan,
(iv) that an accumulated funding deficiency has been incurred or that on application may be or has been made to the Secretary of
the Treasury for a waiver or modification of the minimum funding standard (including any required installment payments) or on
extension of any amortization period under Section 412 of the Code,
(v) that a Credit Party, any of its Subsidiaries or any of their ERISA Affiliates will or may incur any liability (including,
but not limited to, contingent or secondary liability) to or on account of a Plan or Multiemployer Plan under Section 401(a)(29),
4971, 4975 or 4980 of the Code or Section 409 or 502(1) of ERISA, or
(vi) that a Credit Party, any of its Subsidiaries or any of their ERISA Affiliates has or may incur any liability that could
reasonably be expected to result in a Material Adverse Effect under any "welfare plan" (within the meaning of Section 3(1) of ERISA)
that provides benefits to retired employees (other than as required by Section 601 et seq. of ERISA) or any "pension plan" (as
defined in Section 3(2) of ERISA), deliver, or cause such Subsidiary or ERISA Affiliate to deliver, to Administrative Agent a written
notice thereof; and
(c) As soon as possible and in any event within five (5) business days after receipt of notice of any material withdrawal
liability assessed against a Credit Party, any of its Subsidiaries or any of their ERISA Affiliates as a result of a complete
withdrawal or partial withdrawal (within the meaning of Sections 4203 and 4205, respectively, of ERISA) from any Multiemployer Plan,
deliver, or cause such Subsidiary or ERISA Affiliate to deliver, to Administrative Agent a written notice thereof.
For purposes of this Section 7.7, Company shall be deemed to have knowledge of all facts known by the Plan Administrator of any Plan
-----------
of which Company is the Plan Sponsor, and each Subsidiary of Company shall be deemed to have knowledge of all facts known by the Plan
Administrator of any Plan of which such Subsidiary, respectively, is a Plan Sponsor. In addition to its other obligations set forth
in this Article VII, the Credit Parties shall, and shall cause each of its Subsidiaries and ERISA Affiliates to:
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(i) provide Administrative Agent with prompt written notice, with respect to any Plan, of any failure to satisfy the minimum
funding standard requirements of Section 412 of the Code,
(ii) furnish to Administrative Agent, promptly after delivery of the same to the PBGC, a copy of any delinquency notice pursuant
to Section 412(n)(4) of the Code,
(iii) correct any such failure to satisfy funding requirements or delinquency referred to in the foregoing clauses (i) and (ii)
within ninety (90) days after the occurrence thereof, except where the failure to so satisfy would not reasonably be expected to have
a Material Adverse Effect;
(iv) comply in good faith in all material respects with the requirements set forth in Section 4980B of the Code and with Sections
601(a) and 606 of ERISA;
(v) at the reasonable request of any Lender, deliver to such Lender (and a copy to Administrative Agent) complete copies of the
most recent annual report (Form 5500) of each Plan filed with the United States Department of Labor and the most recent actuarial
report completed with respect to any Plan; and
(vi) at the reasonable request of any Lender, deliver to such Lender (and a copy to Administrative Agent) copies of the most
recent annual reports, actuarial reports and notices received by Company or any of its Subsidiaries with respect to any Foreign
Pension Plan no later than ten (10) days after the date of such request.
(d) Establish, maintain and operate all Foreign Pension Plans in compliance in all material respects with all Requirements of
Law and the respective requirements of the governing documents for such Plans, including the payment of any required contributions on
or before the due date for such payments, except for failures to comply which, in the aggregate, could not be reasonably be expected
to subject Company or any of its Subsidiaries to liability, individually or in the aggregate in excess of $2,000,000.
1.59 Maintenance of Property, Insurance. (a) Keep, and cause each of its Subsidiaries to keep, all material property
----------------------------------
(including, but not limited to, equipment) useful and necessary in its business in good working order and condition, normal wear and
tear and damage by casualty excepted, and subject to Section 8.4.
-----------
(b) maintain, and shall cause each of its Subsidiaries to maintain, with financially sound and reputable insurers, insurance
with respect to its material properties and business against loss or damage of the kinds customarily insured against by Persons
engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by
such other Persons. Such insurance shall be maintained with financially sound and reputable insurers, except that a portion of such
insurance program (not to exceed that which is customary in the case of companies engaged in the same or similar business or having
similar properties similarly situated) may be effected through self-insurance, provided adequate reserves therefor, in accordance
with GAAP, are maintained, and
(c) furnish to Administrative Agent, on the Initial Borrowing Date and annually on each date of delivery of the financial
statements under Section 7.1(c), full information as to the insurance carried. All insurance policies or certificates (or certified
--------------
copies thereof) with respect to such insurance:
(i) shall be endorsed to the Collateral Agent's reasonable satisfaction for the benefit of the Secured Creditors (including,
without limitation, by naming the Administrative Agent as loss payee or additional insured, as appropriate); and
(ii) shall state that such insurance policy shall not be canceled or revised in any material respect without thirty days' prior
to written notice thereof by the insurer to the Collateral Agent.
At any time that insurance at levels described in Schedule 7.8 is not being maintained by Company or any of its Subsidiaries, Company
------------
will notify the Lenders in writing within three (3) Business Days thereof. The provisions of this Section 7.8 shall be deemed to be
-----------
supplemental to, but not duplicative of, the provisions of any of the Security Documents that require the maintenance of insurance.
1.60 Environmental Laws. (a) Comply with, and cause its Subsidiaries to comply with, and, in each case take reasonable steps to
-------------------
ensure compliance by all tenants and subtenants, if any, with, all applicable Environmental Laws and obtain and comply in all
material respects with and maintain, and take reasonable steps to ensure that all tenants and subtenants obtain and comply in all
material respects with and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable
Environmental Laws except, in each case, to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and testing, and all Remedial Actions required under
Environmental Laws and promptly comply in all material respects with all lawful orders, directives and information requests of all
Governmental Authorities regarding Environmental Laws except to the extent that the same are being contested in good faith by
appropriate actions and the pendency of such actions could not reasonably be expected to have a Material Adverse Effect; and
(c) Furnish or cause to be furnished to Administrative Agent, at Company's expense, subsequent to a notice from any Governmental
Authority where the subject matter of such notice would have or could reasonably be expected to have a Material Adverse Effect or
during the existence of an Event of Default, and upon the written request of Administrative Agent, a report of an environmental
assessment of reasonable scope, form and depth, including, where appropriate under a reasonably prudent business judgment standard,
invasive soil or groundwater sampling, by a consultant reasonably acceptable to Administrative Agent addressing the subject of such
notice or, if during the existence of an Event of Default, regarding any release or threat of release of Contaminants on the Premises
or Former Premises and the compliance by Company and each of its Subsidiaries with Environmental Laws. If Company or any of its
Subsidiaries fail to deliver such an environmental assessment within sixty (60) days after receipt of such written request, then
Administrative Agent may arrange for same, and Company hereby grants to Administrative Agent and its representatives access to the
Premises or Former Premises (to the same extent Company has a right to such access) and a license of a scope reasonably necessary to
undertake such an assessment (including, where appropriate under a reasonably prudent business judgment standard, invasive soil or
groundwater sampling). The reasonable cost of any assessment arranged for by Administrative Agent pursuant to this provision will be
payable by Company on demand and added to the obligations secured by the Security Documents; and
(d) Conduct and complete all investigations, studies, sampling and testing and all remedial, removal and other actions necessary
to address all Contaminants on, from, or affecting the Premises, Former Premises or any other real property to the extent necessary
to be in compliance with all Environmental Laws and all other applicable federal, state, and local laws, regulations, rules and
policies and with the orders and directives of all Governmental Authorities exercising jurisdiction over such real property, except
to the extent that the obligation to do so is being contested in good faith by appropriate actions.
1.61 Use of Proceeds. Use all proceeds of the Loans as provided in Section 6.8.
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1.62 Additional Security; Further Assurances.
---------------------------------------
(a) Additional Guarantors and Pledgors.
----------------------------------
(i) Company agrees to cause each Domestic Subsidiary to become a party to the Subsidiary Guaranty and the Security Agreement in
accordance with the terms thereof;
(ii) Company agrees to cause each Subsidiary that becomes a guarantor of obligations arising under any Permitted Debt Document
and that is not at such time party to the Subsidiary Guaranty to become a party to the Subsidiary Guaranty in accordance with the
terms thereof.
(b) Pledge of New Subsidiary Stock. Company agrees to pledge (or to cause its Subsidiaries to pledge) all of the Capital Stock
-------------------------------
of each new Domestic Subsidiary and 65% of the Capital Stock entitled to vote of each new first-tier Foreign Subsidiary (directly
owned by Company or a Domestic Subsidiary) established, acquired, created or otherwise in existence after the Initial Borrowing Date
to Collateral Agent for the benefit of the Secured Creditors pursuant to the terms of the Security Agreement promptly, and in any
event, within sixty (60) days of the creation of such new Subsidiary;
(c) Agreement to Grant Additional Security. (i) Promptly, and in any event within 30 days after the acquisition by Company or
----------------------------------------
any Subsidiary Guarantor of assets or real or personal property or leasehold interests of the type that would have constituted
Collateral at the date hereof (other than any parcel of real estate or leasehold interest with a fair market value of less than
$1,000,000 individually or $2,500,000 in the aggregate) and investments of the type that would have constituted Collateral on the
date hereof (the "Additional Collateral"), Company will, and will cause each of its Subsidiaries to, take all necessary action,
----------------------
including (i) the filing of appropriate financing statements under the provisions of the UCC, applicable foreign, domestic or local
laws, rules or regulations in each of the offices where such filing is necessary or appropriate and (ii) with respect to real estate,
the execution of a mortgage, the obtaining of title insurance policies, title surveys and real estate appraisals satisfying
applicable Requirements of Law, to grant the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security
Documents a perfected Lien (subject only to Permitted Liens) in such Collateral pursuant to and to the full extent required by the
Security Documents and this Agreement.
(ii) If, following a change in the relevant sections of the Code, the regulations and rules promulgated thereunder and any
rulings issued thereunder and at the request of Administrative Agent or the Required Lenders, Company does not within 60 days after
such request deliver evidence satisfactory to Administrative Agent with respect to any Foreign Subsidiary of Company that:
(a) a pledge of 66% or more of the total combined voting power of all classes of capital stock of such Foreign Subsidiary
entitled to vote,
(b) the entering into by such Foreign Subsidiary of a guaranty in substantially the form of the Subsidiary Guaranty or
(c) the entering into by such Foreign Subsidiary of a security agreement in substantially the form of the Security Agreement,
in either case would cause the earnings of such Foreign Subsidiary to be treated as a deemed dividend to
such Foreign Subsidiary's United States parent, would result in a material adverse tax impact on Company or its Subsidiaries, or
would otherwise violate a material applicable law, then
(1) in the case of a failure to deliver the evidence described in clause (a) above, that
portion of such Foreign Subsidiary's outstanding capital stock not theretofore pledged pursuant to a Security Document shall be
pledged to Collateral Agent for the benefit of the Secured Creditors pursuant to a Security Document,
(2) in the case of a failure to deliver the evidence described in clause (b) above, such
Foreign Subsidiary shall execute and deliver a guaranty of the Obligations of Company under the Loan Documents, and
(3) in the case of a failure to deliver the evidence described in clause (c) above, such
Foreign Subsidiary shall execute and deliver a Security Document granting Collateral Agent for the benefit of the Secured Creditors a
security interest in all of such Foreign Subsidiary's assets, in each case will all documents delivered pursuant to this
Section 7.12(v) to be in form and substance reasonably satisfactory to Administrative Agent.
---------------
(d) Documentation for Additional Security. The security interests required to be granted pursuant to this Section 7.11 shall be
-------------------------------------- ------------
granted pursuant to such security documentation (which shall be substantially similar to the Security Documents already executed and
delivered by Company) (the "Additional Security Documents") reasonably satisfactory in form and substance to Administrative Agent and
-----------------------------
shall constitute valid and enforceable first priority perfected security interests subject to no other Liens except Permitted Liens.
The Additional Security Documents and other instruments related thereto shall be duly recorded or filed in such manner and in such
places and at such times as are required by law to establish, perfect, preserve and protect the Liens, in favor of Collateral Agent
for the benefit of the Secured Creditors, required to be granted pursuant to the Additional Security Document and, all taxes, duties,
levies, imposes, deductions, assessments, charges, withholdings, reasonable fees and other charges payable in connection therewith
shall be paid in full by Company. At the time of the execution and delivery of the Additional Security Documents, Company shall
cause to be delivered to Administrative Agent such agreements, opinions of counsel, title surveys, real estate appraisals and other
related documents as may be reasonably requested by Administrative Agent to assure itself that this Section 7.12 has been complied
------------
with.
(e) Third Party Consents. With respect to any property leased after the Effective Date or with respect to any new locations
---------------------
after the Effective Date where a Credit Party may store any single asset with a fair market value in excess of $100,000 or a group of
assets with a fair market value in excess of $500,000, upon the request of the Collateral Agent, the Credit Parties will promptly
(but in any event within 30 days of such request) use all reasonable efforts to provide the Collateral Agent with such estoppel
letters, consents and waivers from (a) landlords of real property leased to a Credit Party, (b) warehousemen and (c) bailees as may
be reasonably requested by the Administrative Agent, which estoppel letters, consents and waivers shall be in form and substance
reasonably satisfactory to the Collateral Agent.
1.63 Contributions; Payments. (a) Holdings will contribute as an equity contribution to the capital of Company upon its receipt
------------------------
thereof, any cash proceeds (net of reasonable costs associated with such sale or issuance) received by Holdings from any sale or
issuance of its preferred or common equity or any cash capital contributions received by Holdings.
(b) Company will use the proceeds of all equity contributions received by it from Holdings as provided in clause (a) above
toward the repayment of Loans to the extent required by Section 4.4(e).
--------------
1.64 Maintenance of Corporation Separateness. Neither Company nor any of its Subsidiaries shall make any payment to a creditor
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of Holdings (other than a Secured Creditor pursuant to any Loan Document or an Interest Rate Agreement or Other Hedging Agreement
entered into with any such Secured Creditor) in respect of any liability of Holdings, and no bank account of Holdings shall be
commingled with any bank account of Company or any of its Subsidiaries. Neither Company nor any of its Subsidiaries shall take any
action, or conduct its affairs in a manner, which is likely to result in the corporate existence of Holdings on the one hand and of
Company or any Subsidiary of Company on the other hand being ignored, or in the assets and liabilities of Company or any Subsidiary
of Company being substantively consolidated with those of Holdings in a bankruptcy, reorganization or other insolvency proceeding.
8.
NEGATIVE COVENANTS
Holdings and Company hereby agree that, so long as any of the Commitments remain in effect or any Loan or LC
Obligation remains outstanding and unpaid or any other amount is owing to any Lender or Administrative Agent hereunder:
1.65 Liens. Holdings and Company will not and will not permit any of their Subsidiaries to, directly or indirectly, create,
-----
incur, assume or suffer to exist or agree to create, incur or assume any Lien in, upon or with respect to any of its properties or
assets (including, without limitation, any securities or debt instruments of any of their Subsidiaries), whether now owned or
hereafter acquired, or assign or otherwise convey any right to receive income to secure any obligation; except for the following
Liens (herein referred to as "Permitted Liens"):
---------------
(a) Liens created by the Loan Documents;
(b) Customary Permitted Liens;
(c) Liens existing on the date hereof to secure Indebtedness to Remain Outstanding listed on Schedule 6.5(d) hereto or listed on
---------------
Schedule 8.1(c) hereto;
---------------
(d) Liens on any property (i) securing Indebtedness (including Capitalized Lease Obligations) incurred or assumed for the
purpose of financing all or any part of the acquisition, construction, repair or improvement cost of such property (or financing of
the purchase price within ninety (90) days after the respective purchase of assets) and (ii) of any Person at the time such property
is acquired or such Person becomes a Subsidiary and, in each case, not created in contemplation of or in connection with such event;
provided that in the case of both (i) and (ii):
(x)~ any such Lien does not extend to or cover any other property or assets of Company or any other Credit Party;
(y)~ the Indebtedness secured by any such Lien does not exceed 100% of the fair market value of such property or assets at the
time of such acquisition; and
(z)~ the Indebtedness secured by any such Lien is permitted to be incurred pursuant to Section 8.2(d).
--------------
(e) any Lien arising out of any Permitted Refinancing of any Indebtedness secured by any Lien permitted by clauses (c) and (d)
of this Section; provided that such Indebtedness is not increased and is not secured by any additional assets; and
--------
(f) Liens incurred in connection with Sale-Leaseback transactions permitted under Section 8.9;
-----------
(g) Liens securing Indebtedness of Foreign Subsidiaries (including any refinancings of such Indebtedness), provided that, such
--------
Liens do not at any time encumber any Collateral and the Dollar Equivalent amount of such Indebtedness shall not exceed $15,000,000
in the aggregate at any one time outstanding;
(h) subject to the terms of the Intercreditor Agreement, Lien on the Collateral securing the Secured Notes or any Permitted
Refinancing thereof; and
(i) additional Liens incurred by Company and its Subsidiaries which do not secure Indebtedness for money borrowed so long as the
value of the property subject to such Liens, and the Indebtedness and other obligations secured thereby, do not exceed $1,000,000.
In addition, Holdings and Company will not, and will not permit any other Credit Party to, become a party to any
agreement, note, indenture or other instrument, or take any other action, which would prohibit the creation of a Lien on any of its
properties or other assets in favor of Collateral Agent for the benefit of the Secured Creditors, as collateral for the Obligations,
provided that, any agreement, note, indenture or other instrument in connection with Indebtedness permitted under Sections 8.2, (d),
-------- ------------ ---
(f), (j) and (k) may prohibit the creation of a Lien in favor of Collateral Agent for the benefit of the Secured Creditors on the
--- --- ---
items of property obtained with the proceeds of or securing such Indebtedness and any non-material Contractual Obligation entered
into in the ordinary course of business may contain restrictions of the type described in Section 8.13(c).
---------------
1.66 Indebtedness. Holdings and Company will not, and will not permit any of their Subsidiaries to, directly or indirectly,
------------
incur, create, assume directly or indirectly, or suffer to exist any Indebtedness except:
(a) Indebtedness incurred pursuant to this Agreement and the other Loan Documents;
(b) Customary Permitted Guarantees;
(c) Indebtedness evidenced by the Secured Notes, the Subordinated Notes, the Series B Notes and any Permitted Refinancing
thereof;
(d) Indebtedness secured by Liens permitted under Section 8.1(d) and any Permitted Refinancing thereof; provided, that the
--------------- --------
aggregate outstanding principal amount of such Indebtedness at any time (i) shall not, when added to Indebtedness permitted to be
outstanding pursuant to Section 8.2(f), exceed $15,000,000 provided that if the First Lien Leverage Ratio for any Test Period after
-------------- --------
the Closing Date equals 2.5:1.0 or less, such aggregate amount shall increase to $20,000,000 and (ii) shall not, when added together
with Indebtedness permitted to be outstanding pursuant to Section 8.2(e), (f) and (o), exceed $40,000,000;
-------------- --- ---
(e) Unsecured Indebtedness of a Subsidiary of Company issued and outstanding on or prior to the date on which such Subsidiary
was acquired by Company (other than Indebtedness issued as consideration in, or to provide all or any portion of the funds utilized
to consummate the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired
by Company) and any Permitted Refinancing thereof which, together with Indebtedness permitted to be outstanding pursuant to Section
--------
8.2(d), (f) and (o), does not exceed $40,000,000;
------ --- ---
(f) Indebtedness in respect of Sale and Leaseback Transactions permitted under Section 8.9;
-----------
(g) Indebtedness not to exceed $1,000,000 in the aggregate at any time arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business, or pursuant to netting services or otherwise in connection with Deposit
Accounts, in each case, so long as such Indebtedness is extinguished within five (5) Business Days of the incurrence thereof;
(h) Indebtedness under Interest Rate Agreements entered into to protect Company or any of its Subsidiaries against fluctuations
in interest rates in respect of the Obligations;
(i) Indebtedness under Other Hedging Agreements providing protection against fluctuations in currency, exchange rate or
commodity values in connection with Company's or any of its Subsidiaries' operations so long as management of Company or such
Subsidiary, as the case may be, has determined that entering into of such Other Hedging Agreements was for bona fide hedging
---- ----
activities;
(j) Indebtedness of Company or any of its Subsidiaries consisting of take-or-pay obligations contained in supply agreements
entered into in the ordinary course of business or arising from agreements of Company or a Subsidiary providing for indemnification,
adjustment of purchase price, or other similar obligations (exclusive of any Guarantee Obligation of Indebtedness of the purchaser in
such transaction), in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary of
Company; provided the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds
actually received by Company and its subsidiaries in connection with such disposition;
(k) Indebtedness permitted to be incurred pursuant to the documents governing Indebtedness outstanding on the date hereof in the
maximum amounts listed on Schedule 6.5(d) hereto and any Permitted Refinancing thereof.
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(l) Intercompany Indebtedness to the extent permitted by Section 8.7; provided, however, that in the event of any subsequent
----------- -------- -------
issuance or transfer of any Capital Stock which results in the holder of such Indebtedness ceasing to be a Subsidiary or Company or
any subsequent transfer of such Indebtedness (other than to Company or any of its Subsidiaries) such Indebtedness shall be required
to be permitted under another clause of this Section 8.2; provided, further, however, that (x) in the case of Intercompany
------------ -------- ------- -------
Indebtedness consisting of a loan or advance to Company, each such loan or advance shall be subordinated to the indefeasible payment
in full of all of Company's obligations pursuant to this Agreement and the other Loan documents and (y) in the case of Intercompany
Indebtedness consisting of a loan or advance from Company, such Indebtedness shall be evidenced by promissory notes payable to
Company, in form and substance reasonably satisfactory to Administrative Agent, which promissory notes shall be delivered and pledged
to Administrative Agent as part of the Collateral;
(m) Indebtedness of Foreign Subsidiaries in an amount not to exceed $15,000,000;
(n) Indebtedness owing to an officer or employee of a Credit Party (or the heirs of such Persons) whose employment has
terminated or who has died or retired or become disabled in connection with the repurchase or redemption of shares, or options to
purchase shares, of such Credit Party; provided that (i) such Indebtedness must be fully subordinated to the Obligations on terms
acceptable to Administrative Agent and (ii) no payments may be made to a holder of such Indebtedness unless permitted by Section
--------
8.5(a);
------
(o) Unsecured Indebtedness not otherwise permitted hereunder not exceeding $10,000,000 in the aggregate principal amount at any
time outstanding provided that if the Total Leverage Ratio for any Test Period after the Closing Date equals 5.0:1.0 or less, such
--------
aggregate amount shall increase to $15,000,000.
1.67 Fundamental Changes. Holdings and Company will not and will not permit any of their Subsidiaries to, merge into or
--------------------
consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except
that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing
any Subsidiary of Company (a) may merge into Company in a transaction in which Company is the surviving corporation, (b) may merge
into any Credit Party (other than Holdings) in a transaction in which the surviving entity is a Credit Party, (c) that is not a
Credit Party may merge into any Subsidiary that is not a Credit Party, (d) may merge into any other Person that becomes a Credit
Party in connection with a Permitted Acquisition, (e) may liquidate or dissolve if Company determines in good faith that such
liquidation or dissolution is in the best interests of Company and is not materially disadvantageous to the Lenders; provided that in
each case, (i) Administrative Agent is given prior written notice of such action and the Credit Parties execute and deliver such
documents, instruments, certificates and opinions as Administrative Agent may reasonably request, including without limitation, those
necessary in order to maintain the perfection and priority of the Liens on the assets of the Credit Parties, (ii) any such merger
involving a Person that is not a Wholly-Owned Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 8.7 and (iii) after giving effect to such merger, consolidation or liquidation, no Event of Default or Unmatured
------------
Event of Default exists or is continuing.
1.68 Asset Sales. Holdings and Company will not, and will not permit any of their Subsidiaries to, convey, sell, lease or
------------
otherwise dispose of (or agree to do any of the foregoing at any future time without Administrative Agent's prior written consent)
all or any part of their property or assets, or enter into any Sale and Leaseback Transaction, except that:
(a) each of Company and its Subsidiaries may in the ordinary course of business,
(i) sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or
otherwise no longer used or useful in the conduct of such Person's business;
(ii) sell Inventory;
(iii) lease (as lessee) real or personal property;
(iv) sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business (x) which
are overdue or (y) which such Person reasonably determines are difficult to collect but only in connection with the compromise or
collection thereof consistent with prudent business practice (and not as part of any bulk sale or financing of receivables);
(v) enter into consignment arrangements or similar arrangements for the sale of goods to the extent such arrangements are
consistent with past practices of Company and its subsidiaries prior to the Initial Borrowing Date; and
(vi) enter into licenses or sublicenses of software, trademarks and other Intellectual Property and general intangibles which do
not materially interfere with the business of such Person;
(b) Foreign Subsidiaries of Company may sell Accounts Receivable and Receivables Assets (i) pursuant to the May Receivables Sale
Documents and (ii) pursuant to any other receivables sales/factoring documentation; provided, that (1) sales thereunder are true
--------
sales on a non-recourse basis (and treated as sales for GAAP purposes), without any guarantee by Company or any of its Subsidiaries
(it being understood that Standard Receivables Sale Undertakings shall not constitute a guarantee), (2) such documentation is on
market terms and conditions, (3) the sales price for Accounts Receivable thereunder is not less than 90% of the face amount of such
Accounts Receivable and (4) the book value of all Accounts Receivable sold pursuant to this clause (ii) less the amount of such
Accounts Receivable which have been collected by the purchaser thereof or are no longer outstanding pursuant to the terms of such
documents does not at any time exceed in the aggregate an amount equivalent to $20,000,000;
(c) Company or any Subsidiaries may make an Asset Disposition to any Credit Party other than Holdings and any Subsidiary that is
not a Credit Party may make an Asset Disposition to any other Subsidiary that is not a Credit Party, in each case provided that
(i) Administrative Agent is given prior written notice of such action and the applicable Credit Parties execute and deliver such
documents, instruments, certificates and opinions as Administrative Agent may reasonably request, including without limitation, those
necessary in order to maintain the perfection and priority of the Liens on the assets of the Credit Parties and (ii) after giving
effect to such action no Event of Default or Unmatured Event of Default exists or is continuing;
(d) Company and its Subsidiaries may sell Investments referred to in clause (a) of Section 8.7;
-----------
(e) Company and its Subsidiaries may enter into Sale and Leaseback Transactions permitted under Section 8.9;
-----------
(f) Company and its Subsidiaries may make Asset Dispositions (other than Asset Dispositions of Accounts Receivable) for fair
value, provided (i) at least 75% of the aggregate sales price from such Asset Disposition shall be paid in cash and (ii) the
aggregate fair market value of all assets disposed of subsequent to the Initial Borrowing Date pursuant to this clause (f) plus the
----
aggregate fair market value of all the assets then proposed to be disposed of does not exceed $10,000,000 in any Fiscal Year of
Company or $40,000,000 in the aggregate since the Initial Borrowing Date, in each case, excluding the fair market value of any assets
of the custom and specialty business of Company disposed of pursuant to this clause.
In the event the Required Lenders waive the provisions of this Section 8.4 with respect to the sale of any Collateral, or any
------------
Collateral is sold as permitted by Section 8.4, such Collateral shall be sold free and clear of the Liens created by the Security
-----------
Documents, and the Administrative Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
1.69 Restricted Payments. Holdings and Company will not, and will not permit any of their Subsidiaries to, make any Restricted
--------------------
Payment; provided, that:
--------
(a) So long as no Event of Default or Unmatured Event of Default has occurred and is continuing, Company may make payments with
respect to stock option plans and stock appreciation rights programs of Company and repurchase options and Common Stock and Permitted
Preferred Stock upon the termination of employment, death, permanent disability or retirement of its employees, management or
consultants including payment on Indebtedness permitted pursuant to Section 8.2(n) provided, that the aggregate amount expended by
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Company pursuant to this clause (a) shall not exceed the sum of (i) $2,500,000 plus (ii) the proceeds of any "keyman" life insurance
policies purchased by a Credit Party for the specific purpose of making such repurchases or redemptions plus (iii) the amount of any
setoff by any Credit Party against any Indebtedness owed by such employee, manager or consultant as partial consideration for such
repurchase.
(b) So long as no Event of Default or Unmatured Event of Default has occurred and is continuing, Company may make regularly
scheduled interest payments on the Subordinated Notes and the Secured Notes and any Permitted Refinancings thereof;
(c) So long as no Event of Default or Unmatured Event of Default exists and is continuing or would result therefrom and such
purchase or redemption is not in violation of the subordination provisions of the Subordinated Note Document, Company may make
Restricted Payments not in excess of $30,000,000 in the aggregate to purchase or otherwise redeem Subordinated Notes (or any notes
issued in any Permitted Refinancing thereof) (plus accrued interest on such debt so purchased or redeemed); provided, that after
--------
giving effect to such purchase or redemption on a Pro Forma Basis, Company would be in compliance with all financial covenants set
forth in Article IX hereof, Company's Senior Secured Leverage Ratio would be less than 4.5:1.0 and the Total Available Revolving
----------
Commitment will be not less than $35,000,000.
(d) Company may pay cash Dividends or otherwise advance amounts to Holdings solely for the purpose of paying, so long as the
proceeds thereof are promptly used by Holdings to pay (i) franchise taxes and other fees required to maintain its legal existence,
(ii) federal, state and local income taxes and interest and penalties with respect thereto; provided that any refund shall be
--------
promptly returned by Holdings to Company, (iii) an amount not to exceed $200,000 in any Fiscal Year to permit Holdings to pay
corporate and overhead expenses incurred in the ordinary course of business, (iv) principal and interest payments (including
prepayments and any associated premium) on the Series B Notes and (v) reasonable and customary costs and expenses incident to a
Qualified IPO of Holdings Common Stock.
(e) So long as no Event of Default or Unmatured Event of Default pursuant to Section 10.1(a), (e), or (f) exists and is
--------------- --- ---
continuing, Holdings and its Subsidiaries may pay management or other fees to Berkshire Partners in an amount not to exceed $750,000
in any Fiscal Year.
1.70 Issuance of Stock. (a) Holdings will not issue any Capital Stock, except for such issuances of Capital Stock of Holdings
-----------------
consisting of Common Stock or Permitted Preferred Stock. In the event any Capital Stock of Holdings is issued pursuant to this
Section 8.6(b), Company shall apply the Net Offering Proceeds received in connection with such disposition in accordance with Section
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4.4(f).
------
(b) Holdings and Company will not, and will not permit any of their Subsidiaries to, directly or indirectly, issue, sell,
assign, pledge or otherwise encumber or dispose of any shares of Capital Stock of any Subsidiary of Company, except (i) to Company,
(ii) to another Wholly-Owned Subsidiary of Company, (iii) to qualify directors if required by applicable law or similar de minimus
issuances of Capital Stock to comply with Foreign Requirements of Law, or (iv) pursuant to employee stock ownership or employee
benefit plans in effect on the date hereof. Notwithstanding the foregoing, Company or is Subsidiaries shall be permitted to sell
100% of the outstanding Capital Stock of any Subsidiary, but not less than 100% of such Capital Stock, subject to Section 8.4.
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1.71 Loans, Investment and Acquisitions. Company will not, and will not permit any of its Subsidiaries to, make any loans or
-------------------------------------
make or own any Investments or make any Acquisitions except:
(a) Company and its respective Subsidiaries may acquire and hold Cash and Cash Equivalents;
(b) Investments existing on the date hereof and identified on Schedule 8.7, without giving effect to any additions thereto or
------------
replacements thereof;
(c) advances by Company or its Subsidiaries made to employees in the ordinary course of business in an aggregate principal
amount not exceeding $1,000,000 to any one Person or $3,000,000 in the aggregate at any one time outstanding;
(d) Investments (including debt obligations) received by Company or its Subsidiaries in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(e) Company may enter into Interest Rate Agreements in compliance with Section 7.10 and 8.2(h) and Other Hedging Agreements in
------------ ------
compliance with Section 8.2(i);
--------------
(f) pledges or deposits made in the ordinary course of business;
(g) Investments by Company and each of its respective Subsidiaries in the Capital Stock of a Person who is a Subsidiary
immediately after such Investment; provided, that (i) the requirements of Section 7.11 are satisfied, (ii) any Acquisition in
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connection with such Investment constitutes a Permitted Acquisition, and (iii) the amount of such Investments by Credit Parties in
Subsidiaries that are not Credit Parties, plus the amount of all loans, contributions to capital, Guarantee Obligations and advances
referred to in clause (h) below that are made by Credit Parties to Subsidiaries that are not Credit Parties shall not exceed in the
aggregate at any time outstanding $10,000,000;
(h) Investments constituting loans, contributions to capital, Guarantee Obligations or advances made by Company to any of its
Subsidiaries or made by any of its Subsidiaries to Company or any other Subsidiary, provided, that any such loans and advances made
--------
by a Credit Party shall be evidenced by a promissory note pledged pursuant to a Security Document and the amount of all such loans,
contributions to capital, Guarantee Obligations and advances by Credit Parties to Subsidiaries that are not Credit Parties shall not
exceed the limitations set forth in clause (g) above;
(i) Company or any of its Subsidiaries may make Permitted Acquisitions;
(j) Foreign Investments in an aggregate amount not to exceed in the aggregate at any time outstanding $15,000,000; provided,
--------
that (1) to the extent such Foreign Investments are made (1) with Net Offering Proceeds from an Excluded Equity Issuance of the type
described in clause (b) or (c) of the definition thereof or (2) pursuant to the Formametal Acquisition, the amount of such Foreign
Investment shall be excluded in determining compliance with this clause (j); provided, further, that the aggregate amount of Foreign
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Investments may not be increased at any time that an Event of Default or Unmatured Event of Default exists and is continuing or would
result therefrom;
(k) Company and each of its Subsidiaries may acquire and hold debt securities and other non-cash consideration as partial
consideration for an Asset Disposition permitted pursuant to Section 8.4; and
-----------
(l) other Investments not in excess of $10,000,000 outstanding at any one time.
1.72 Transactions with Affiliates. Holdings and Company will not, and will not permit any of its Subsidiaries to, directly or
------------------------------
indirectly, enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of
any property or the rendering of any service) with or for the benefit of any of Company's Affiliates or any Affiliate of a Subsidiary
of Company (other than Company) (an "Affiliate Transaction"), other than
---------------------
(a) transactions that are on terms that are fair and reasonable to Company or to any such Subsidiary and that are on terms that
are no less favorable to Company or to such Subsidiary than those that might reasonably have been obtained in a comparable
transaction on an arm's-length basis from a Person that is not an Affiliate,
(b) the Berkshire Management Agreement as in effect on the Closing Date and the issuances of Capital Stock and related
agreements contemplated thereby, and
In addition to the foregoing:
(i) with respect to any Affiliate Transaction or series of Affiliate Transactions involving a value or aggregate payments of
$3,000,000 or more, the determination that such Affiliate Transaction or series of Affiliate Transactions is or are on terms that are
fair and reasonable to Company or to any its Subsidiaries and is or are on terms that are no less favorable to Company or to such
Subsidiary than those that might reasonably have been obtained in a comparable transaction on an arm's-length basis from a Person
that is not an Affiliate will be made, prior to the consummation of any such Affiliate Transaction or series of Affiliate
Transactions, reasonably and in good faith by a majority of the members of the Board of Directors of Company and of such Subsidiary,
as the case may be, and evidenced by the Board Resolution filed with the Administrative Agent; and
(ii) with respect to any Affiliate Transaction or series of Affiliate Transactions involving value or aggregate payments of
$15,000,000 or more, the Board of Directors of Company and of such Subsidiary, as the case may be, shall have received, prior to the
consummation of any such Affiliate Transaction or series of Affiliate Transactions, a written opinion from an Independent Financial
Advisor to the effect that such Affiliate Transaction or series of Affiliate Transactions is or are on terms that are fair and
reasonable to Company or to such Subsidiary and is or are on terms that are no less favorable to Company or to such Subsidiary than
those that might reasonably have been obtained in a comparable transaction on an arm's-length basis from a Person that is not an
Affiliate.
The foregoing restrictions will not apply to:
(1) reasonable and customary directors' fees, indemnification and similar arrangements and payments thereunder;
(2) loans or advances to officers of Company and of its Subsidiaries for bona fide business purposes of Company or of such
---- ----
Subsidiary not to exceed $1,000,000 to any Person or $3,000,000 in the aggregate at any one time outstanding for
Company and its Subsidiaries;
(3) any transaction between Company and any Subsidiary of Company that is a Credit Party or between such Subsidiary Credit
Parties to the extent that any such transaction is otherwise in compliance with the terms of this Agreement; or
(4) issuances of Capital Stock of Holdings to the extent permitted pursuant to Section 8.6 and the granting of registration
-----------
rights thereto.
1.73 Sale-Leasebacks. Holdings and Company will not, and will not permit any of its Subsidiaries to, lease any property as
---------------
lessee in connection with a Sale and Leaseback Transaction entered into after the Closing Date; provided, that such a Sale and
Leaseback Transaction shall be permitted with respect to property purchased with the express intent to sell it and lease it back (and
such property is actually sold and leased back within ninety (90) days of the acquisition thereof) if, at the time of such entering
into and after giving effect thereto, the aggregate amount of Indebtedness for such Sale and Leaseback Transaction and for all Sale
and Leaseback Transactions so entered into by Company and its Subsidiaries (i) does not, when added to Indebtedness permitted to be
outstanding pursuant to Section 8.2(d), exceed $15,000,000 provided that if the First Lien Leverage for any Test Period after the
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Closing Date equals 2.5:1.0 or less, such aggregate amount shall increase to $20,000,000 and (ii) does not, when added (without
duplication) to all Indebtedness permitted to be outstanding pursuant to Section 8.2(d) (e) and (o) exceed $40,000,000.
-------------- --- ---
1.74 Lines of Business. (a) Company will not, and will not permit any of its Subsidiaries to enter into or acquire any line of
------------------
business which is not reasonably related to the business engaged in as of the date hereof.
(b) Holdings will not engage in any business activity or operation other than (a) owning and holding the Capital Stock of
Company, (b) guaranteeing the Obligations and the obligations of Company under the Subordinated Note Documents, (c) pledging all of
its assets (including, without limitation, the Capital Stock of Company) to the Collateral Agent, on behalf of the Lenders, pursuant
to the Loan Documents, (d) issuing Capital Stock to the extent permitted under Section 8.6, (e) if applicable, preparing filings
-----------
required by the Securities Act or the Exchange Act, (f) preparing tax filings required by federal or state law, (g) guarantees of
obligations of Foreign Subsidiaries to the extent such guarantees are permitted by the terms of this Credit Agreement, (h) incurring
Indebtedness permitted by Section 8.2, (i) repurchase or redeem Capital Stock in accordance with Section 8.2 and (j) other
------------ ------------
miscellaneous legal, tax and accounting activities related to the foregoing. Furthermore, Holdings will not (i) sell, transfer or
otherwise dispose of any shares of Capital Stock of Company, (ii) merge with or into any other Person, (iii) hold any assets to be
transferred to Company pursuant to Section 8.4, or (iv) possess any liabilities other than the liabilities under the Loan Documents,
-----------
the Subordinated Note Documents, tax liabilities and other liabilities in the ordinary course of business.
1.75 Fiscal Year. Holdings and Company will not, and will not permit any of its Subsidiaries to, change their Fiscal Year;
------------
provided, that any Subsidiary of Company may change its Fiscal Year to correspond to the Fiscal Year of Holdings.
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1.76 Limitation on Voluntary Payments and Modifications of Indebtedness; Modifications of Certificate of Incorporation, By-Laws
------------------------------------------------------------------------------------------------------------------------------
and Certain Other Agreements; Certain Derivative Transactions; etc. Holdings and Company will not, and will not permit any of their
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Subsidiaries to:
(a) make (or give any notice in respect of) any voluntary or optional payment or prepayment on or redemption or acquisition for
value of (including, without limitation, by way of depositing with the trustee with respect thereto or any other Person money or
securities before due for the purpose of paying when due) any Indebtedness that is either subordinate or junior in right of payment
to the Obligations (including the Subordinated Notes) or any Indebtedness under the Secured Note Documents or other Permitted Debt
Documents other than pursuant to a Permitted Refinancing or as permitted pursuant to Section 8.5;
-----------
(b) amend, terminate or modify, or permit the amendment, termination or modification of, any provision of any documents
governing the Indebtedness described in clause (a) above or the Intercreditor Agreement in a manner adverse to the interests of the
Lenders (as determined by the Administrative Agent in its sole discretion after reasonable advance notice of such proposed change
including specifically shortening any maturity or the Weighted Average Life to Maturity, requiring any payment sooner than previously
scheduled, increasing the principal amount due thereunder or the interest rate or fees applicable thereto, causing affirmative or
negative covenants to be more restrictive than those originally contained in such documents or providing for any additional guarantor
with respect thereto unless such Person becomes a Guarantor);
(c) amend, modify or change in any way adverse to the interests of the Lenders, its Organizational Documents (including, without
limitation, by filing or modification of any certificate of designation) or by-laws, or any agreement entered into by it, with
respect to its Capital Stock (including any shareholders' agreement), or enter into any new agreement with respect to its Capital
Stock which in any way could be materially adverse to the interests of the Lenders;
(d) issue any class of Capital Stock other than (x) in the case of Company and its Subsidiaries, non-redeemable common stock and
(y) in the case of Holdings, Common Stock and Permitted Preferred Stock in each case where, after giving effect to such issuance, no
Event of Default will exist under Section 10.1(n) and to the extent the proceeds thereof are applied in accordance with this
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Agreement; or
(e) enter into or maintain outstanding any derivative transaction or similar transaction obligating Holdings or any of its
Subsidiaries to make any payment (other than a payment which may only be made in Common Stock or Permitted Preferred Stock) to any
Person as a result of any change in value or market price of Capital Stock of Holdings.
1.77 Limitation on Certain Restrictions on Subsidiaries. Holdings and Company will not, and will not permit any of their
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Subsidiaries, to create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the
ability of Company or any of its Subsidiaries to (i) pay dividends or make any other distributions on its Capital Stock or pay any
Indebtedness or other obligation owed to Company or any of its other Subsidiaries, (ii) make any loans or advances to Company or any
of its Subsidiaries, or (iii) transfer any of its property or assets to Company or any of its Subsidiaries, except:
(a) any encumbrance or restriction pursuant to the Loan Documents, any Permitted Debt Document or an agreement in effect at or
entered into on the Effective Date and reflected on Schedule 8.13(a) hereto;
----------------
(b) any encumbrance or restriction with respect to a Subsidiary of Company pursuant to an agreement relating to any Capital
Stock or Indebtedness issued by such Subsidiary on or prior to the date on which such Subsidiary became a Subsidiary of Company or
was acquired by Company (other than Capital Stock or Indebtedness issued as consideration in, or to provide all or any portion of the
funds utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary
or was acquired by Company) and outstanding on such date; provided, that with respect to any such restriction contained in the
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Capital Stock of such Person, Company or such Subsidiary as acquires such Person uses its best efforts to promptly eliminate such
restrictions;
(c) any such encumbrance or restriction consisting of customary non-assignment provisions in non-material Contractual
Obligations entered into in the ordinary course of business to the extent such provisions restrict the transfer or assignment of such
agreement;
(d) in the case of clause (iii) above, Permitted Liens or other restrictions contained in security agreements securing
Indebtedness permitted hereby to the extent such restrictions restrict the transfer of the assets specifically secured by such
security agreements;
(e) any encumbrance or restriction pursuant to applicable Requirements of Law;
(f) in the case of documents described in clauses (a) and (b) above, any encumbrance or restriction contained in any renewal,
refinancing, extension or amendment thereof so long as such encumbrances or restrictions are not less favorable to the Lenders, taken
as a whole, than those contained in such documents prior to such renewal, refinancing, extension or amendment;
(g) restrictions in provisions in the Organizational Documents of a Person which prohibit the payment of dividends or the making
of other distributions with respect to any class of Capital Stock of such Person other than on a pro rata basis;
(h) restrictions in any agreement for the sale or other disposition of a Subsidiary that restricts distributions by that
Subsidiary pending the sale or other disposition to the extent such sale or other disposition would be permitted by Section 8.4.
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1.78 Accounting Changes. Holdings and Company will not, and will not permit any of their Subsidiaries to, make any change in
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accounting principles or policies affecting the presentation of financial statements or reporting practices from those employed by it
on the Effective Date, unless (i) such change is either required by GAAP or is permitted by GAAP and Administrative Agent, in its
sole discretion, determines that such change will not be material in calculating any of the financial covenants or restrictions set
forth in this Agreement, (ii) such change is disclosed to the Lenders through Administrative Agent or otherwise and (iii) relevant
prior financial statements that are affected by such change are restated (in form and detail reasonably satisfactory to
Administrative Agent) as may be required by GAAP (or if the change is not required by GAAP, as may be required by Administrative
Agent in order to determine the materiality of such change) to show comparative results. If any changes in GAAP or the application
thereof from that used in the preparation of the financial statements referred to in Section 6.5(a) hereof occur after the Effective
--------------
Date and such changes result in, in the reasonable judgment of Administrative Agent, a meaningful change in the calculation of any
financial covenants or restrictions set forth in this Agreement, then the parties hereto agree to enter into and diligently pursue
negotiations in order to amend such financial covenants and restrictions so as to equitably reflect such changes, with the desired
result that the criteria for evaluating the financial condition and results of operations of Company and its Subsidiaries shall be
the same after such changes as if such changes had not been made; provided, that prior to the establishment of such agreement,
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Company shall continue to compute the financial covenants in accordance with Section 1.2 hereof.
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1.79 Limitation on Creation of Subsidiaries. Company shall not, and shall not permit any of its Subsidiaries to, establish,
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create or acquire any Subsidiary, except that Company may establish or create Subsidiaries and transfer assets to such newly
established or created Subsidiaries so long as upon the creation or establishment of any such new Subsidiary such Subsidiary executes
the Additional Security Documents and guaranty to the extent required to be executed by it in accordance with and otherwise complies
with Section 7.11.
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9.
FINANCIAL COVENANTS
Holdings and Company hereby agree that, so long as the Commitments remain in effect or any Loan or LC Obligation
remains outstanding and unpaid or any other amount is owing to any Lender or Administrative Agent hereunder, Holdings and Company
shall not, directly or indirectly:
1.80 Capital Expenditures. (a) Permit Company or any of its Subsidiaries to, make any Capital Expenditures, except that Company
---------------------
and its Subsidiaries may make Capital Expenditures so long as the aggregate amount so made by Company and its Subsidiaries (on a
consolidated basis) during any Fiscal Year does not exceed $25,000,000 (or, if the Total Leverage Ratio for the most recent Test
Period ended on the last day of the most recently completed Fiscal Year of Holdings was less than 5.0:1.0, $30,000,000).
(b) Notwithstanding the foregoing, in the event that the amount of Capital Expenditures permitted to be made by Company and its
Subsidiaries pursuant to clause (a) above in any fiscal year (before giving effect to any increase in such permitted expenditure
amount pursuant to this clause (b)) is greater than the amount of such Capital Expenditures made by Company and its Subsidiaries
during such fiscal year, 50% of such excess (the "Rollover Amount") may be carried forward and utilized to make Capital Expenditures
----------------
in the next succeeding fiscal year, provided that in no event shall the aggregate amount of Capital Expenditures made by Company and
its Subsidiaries during any fiscal year pursuant to Section 9.1(a) exceed 125% of the amount set forth in such Section 9.1(a).
-------------- --------------
(c) Notwithstanding the foregoing, Company and its Subsidiaries may make Capital Expenditures (which Capital Expenditures will
not be included in any determination under the foregoing clause (a)) with (i) Net Sale Proceeds to the extent such Net Sale Proceeds
are not required to repay Loans pursuant to Section 4.4(c) and (ii) the insurance proceeds received by Company or any of its
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Subsidiaries from any Recovery Event so long as such Capital Expenditures are to replace or restore any properties or assets in
respect to which such proceeds were paid within 360 days following the date of the receipt of such insurance proceeds to the extent
such insurance proceeds are not required to be applied to repay Loans pursuant to Section 4.4(g).
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1.81 Interest Coverage Ratio. Permit the Interest Coverage Ratio for the applicable Test Period ending on a date set forth below
-----------------------
to be less than the ratio set forth opposite such date:
Fiscal Quarter Ending on or about Ratio
--------------------------------- -----
June 30, 2004 1.40:1.00
September 30, 2004 1.45:1.00
December 31, 2004 1.50:1.00
March 31, 2005 1.50:1.00
June 30, 2005 1.50:1.00
September 30, 2005 1.55:1.00
December 31, 2005 1.55:1.00
March 31, 2006 1.55:1.00
June 30, 2006 1.55:1.00
September 30, 2006 1.60:1.00
December 31, 2006 1.60:1.00
March 31, 2007 1.60:1.00
June 30, 2007 1.60:1.00
September 30, 2007 1.65:1.00
December 31, 2007 1.65:1.00
March 31, 2008 1.75:1.00
June 30, 2008 1.75:1.00
September 30, 2008 1.75:1.00
December 31, 2008 and thereafter 1.85:1.00
1.82 Total Leverage Ratio. Permit the Total Leverage Ratio for the applicable Test Period ending on a date set forth below to be
---------------------
more than the ratio set forth opposite such date:
Fiscal Quarter Ending on or about Ratio
--------------------------------- -----
June 30, 2004 7.50:1.00
September 30, 2004 7.50:1.00
December 31, 2004 7.25:1.00
March 31, 2005 7.25:1.00
June 30, 2005 7.25:1.00
September 30, 2005 7.00:1.00
December 31, 2005 7.00:1.00
March 31, 2006 6.50:1.00
June 30, 2006 6.25:1.00
September 30, 2006 6.00:1.00
December 31, 2006 6.00:1.00
March 31, 2007 6.00:1.00
June 30, 2007 6.00:1.00
September 30, 2007 5.75:1.00
December 31, 2007 5.75:1.00
March 31, 2008 5.75:1.00
June 30, 2008 5.75:1.00
September 30, 2008 5.75:1.00
December 31, 2008 and thereafter 5.75:1.00
1.83 First Lien Leverage. Permit the First Lien Leverage Ratio for the applicable Test Period ending on a date set forth below
--------------------
to be more than the ratio set forth opposite such date:
Fiscal Quarter Ending on or about Ratio
--------------------------------- -----
June 30, 2004 3.50:1.00
September 30, 2004 3.50:1.00
December 31, 2004 3.50:1.00
March 31, 2005 3.50:1.00
June 30, 2005 3.50:1.00
September 30, 2005 3.25:1.00
December 31, 2005 3.25:1.00
March 31, 2006 3.00:1.00
June 30, 2006 3.00:1.00
September 30, 2006 2.75:1.00
December 31, 2006 2.75:1.00
March 31, 2007 2.75:1.00
June 30, 2007 2.75:1.00
September 30, 2007 2.50:1.00
December 31, 2007 2.50:1.00
March 31, 2008 2.50:1.00
June 30, 2008 2.50:1.00
September 30, 2008 2.50:1.00
December 31, 2008 and thereafter 2.50:1.00
10.
EVENTS OF DEFAULT
1.84 Events of Default. Any of the following events, acts, occurrences or state of facts shall constitute an "Event of Default"
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for purposes of this Agreement:
(a) Failure to Make Payments When Due. Any Credit Party (i) shall default in the payment of principal on any of the Loans, (ii)
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shall default, and such default shall continue for one Business Day or more, on any reimbursement obligation with respect to any
Letter of Credit; or (iii) shall default in the payment of interest on any of the Loans or default in the payment of any fee or any
Obligation owing hereunder or under any other Loan Document when due and such default in payment shall continue for three (3)
Business Days; or
(b) Representations and Warranties. Any representation or warranty made by any Credit Party contained in any Loan Document or
--------------------------------
any document, instrument or certificate delivered pursuant hereto or thereto shall have been incorrect in any material respect when
made or deemed made, or
(c) Covenants. Any Credit Party shall default in the performance or observance of any term, covenant, condition or agreement on
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its part to be performed or observed (i) under Article VIII and Article IX hereof or Sections 7.3(a), 7.4, 7.10 or 7.11, (ii) under
------------ ---------- ---------------- --- ---- ----
Section 7.1, 7.5, 7.8 or 7.9 and such default shall continue unremedied for a period of five (5) Business Days after the earlier of a
----------- --- --- ---
Responsible Officer of Holdings or Company becoming aware of such default or written notice to Company by Administrative Agent or any
Lender or (iii) under any other term, covenant or agreement contained in this Agreement and such default shall continue unremedied
for a period of thirty (30) days after the earlier of any Responsible Officer of Holdings or Company becoming aware of such default
or written notice to Company by Administrative Agent or any Lender;
(d) Default Under Other Loan Documents. Any Credit Party shall default in the performance or observance of any term, covenant,
-----------------------------------
condition or agreement on its part to be performed or observed hereunder or under any Loan Document (and not constituting an Event of
Default under any other clause of this Section 10.1) and such default shall continue unremedied for a period of thirty (30) days
-------------
after the earlier of any Responsible Officer of Holdings or Company becoming aware of such default or written notice thereof has been
given to Company by Administrative Agent; or
(e) Voluntary Insolvency, Etc. Holdings, Company or any of its Subsidiaries shall become insolvent or generally fail to pay, or
---------------------------
admit in writing its inability to pay, its debts as they become due, or shall voluntarily commence any proceeding or file any
petition under any bankruptcy, insolvency or similar law in any jurisdiction or seeking dissolution or reorganization or the
appointment of a receiver, trustee, custodian, court appointed monitor, administrator, administrative receiver, liquidator or other
similar official for it or a substantial portion of its property, assets or business or to effect a plan or other arrangement with
its creditors, or shall file any answer admitting the jurisdiction of the court and the material allegations of an involuntary
petition filed against it in any bankruptcy, insolvency or similar proceeding in any jurisdiction, or shall be adjudicated bankrupt,
or shall make a general assignment for the benefit of creditors, or shall consent to, or acquiesce in the appointment of, a receiver,
trustee, custodian, court appointed monitor, administrator, administrative receiver, liquidator or other similar official for a
substantial portion of its property, assets or business, shall call a meeting of its creditors with a view to arranging a composition
or adjustment of its debts or shall take any corporate action authorizing any of the foregoing; or
(f) Involuntary Insolvency, Etc. Involuntary proceedings or an involuntary petition shall be commenced or filed against
-----------------------------
Holdings, Company or any of its Subsidiaries under any bankruptcy, insolvency or similar law in any jurisdiction or seeking the
dissolution or reorganization of it or the appointment of a receiver, trustee, custodian, court appointed monitor, administrator,
administrative receiver, liquidator or other similar official for it or of a substantial part of its property, assets or business or
to effect a plan or other arrangement with its creditors, or any writ, judgment, warrant of attachment, execution or similar process
shall be issued or levied against a substantial part of its property, assets or business, and such proceedings or petition shall not
be dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or fully
bonded, within sixty (60) days after commencement, filing or levy, as the case may be, or any order for relief shall be entered in
any such proceeding; or
(g) Default Under Other Agreements. (i) Any Credit Party shall default in the payment when due, whether at stated maturity or
--------------------------------
otherwise, of any Indebtedness (other than Indebtedness owed to the Lenders under the Loan Documents) in excess of $5,000,000 in the
aggregate beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created, or
(ii) a default shall occur in the performance or observance of any agreement or condition to any such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause (determined without regard to whether any notice of acceleration or similar
notice is required), any such Indebtedness to become due or be repaid prior to its stated maturity or (iii) any such Indebtedness of
any Credit Party shall be declared to be due and payable, or required to be prepaid other than by a regularly scheduled required
payment or mandatory prepayment arising other than due to the existence of a default, prior to the stated maturity thereof; or
(h) Invalidity of Subordination or Intercreditor Provisions. The subordination provisions of any agreement or instrument
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governing the Subordinated Notes or the Secured Notes, or any other documents evidencing, guaranteeing or otherwise governing
subordinated Indebtedness or any Indebtedness which refinances such Indebtedness is for any reason revoked or invalidated, or
otherwise ceases to be in full force and effect, or any provision of the Intercreditor Agreement is for any reason revoked or
invalidated or otherwise ceases to be in full force or effect or any Person contests in any manner the validity or enforceability
thereof or denies that it has any further liability or obligation thereunder, or the Loans and the other Obligations hereunder
entitled to receive the benefits of any Loan Document is for any reason subordinated or does not have the priority contemplated by
this Agreement or such lien subordination provisions or Intercreditor Agreement; or
(i) Judgments. One or more judgments or decrees shall be entered against any Credit Party involving, individually or in the
---------
aggregate, a liability (to the extent not paid or covered by an insurance company which has accepted liability in writing) of
$2,000,000 or more and all such judgments or decrees shall not have been vacated, discharged, satisfied, stayed or bonded pending
appeal within sixty (60) days from the entry thereof; or
(j) Security Documents. At any time after the execution and delivery thereof, any of the Security Documents shall cease to be
-------------------
in full force and effect or shall cease in any material respect to give Collateral Agent for the benefit of the Secured Creditors the
Liens, rights, powers and privileges purported to be created thereby (including, without limitation, a first priority perfected
security interest in, and Lien on, all of the Collateral), in favor of Collateral Agent, superior to and prior to the rights of all
third Persons and subject to no other Liens (except to the extent expressly permitted herein or therein); or any Credit Party shall
default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to
any of the Security Documents and such default shall continue for thirty (30) days after the earlier of a Responsible Officer of the
Company becoming aware of such default or written notice to Company by Administrative Agent; or
(k) Guaranties. Any Guaranty or any provision thereof shall (other than as a result of the actions taken by Administrative
----------
Agent or the Lenders to release such Guaranty) cease to be in full force and effect in accordance with its terms, or any Guarantor or
any Person acting by or on behalf of such Guarantor shall deny or disaffirm such Guarantor's obligations under any Guaranty or any
Guarantor shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any Guaranty; or
(l) Employee Benefit Plans. (i) Either (a) any Termination Event shall have occurred, (b) a trustee shall be appointed by a
------------------------
United States District Court to administer any Plan or Multiemployer Plan, (c) the PBGC institutes proceedings to terminate any Plan
or Multiemployer Plan or to appoint a trustee to administer any Plan, (d) any Credit Party or any of its Subsidiaries shall become
liable to the PBGC or any other party under Section 4062, 4063 or 4064 of ERISA with respect to any Plan or Multiple Employer Plan,
(e) any Credit Party or any of its Subsidiaries fails to make a deficit reduction contribution required under Code Section 412(l) to
any Plan by the due date for such contribution; (f) any "accumulated funding deficiency" as defined in Section 302 of ERISA and
Section 412 of the Code, whether or not waived, shall exist with respect to any Plan, or any Lien shall arise on the assets of any
Credit Party or any of its Subsidiaries in favor of the PBGC or a Plan; or (g) any prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Credit
Party or any of its Subsidiaries to any material liability under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the
Code, or under any agreement or other instrument pursuant to which any Credit Party or any of its Subsidiaries has agreed or is
required to indemnify any Person against any such liability; if as of the date thereof or any subsequent date, the sum of each of the
Credit Party's and its Subsidiaries' various liabilities (such liabilities to include, without limitation, any liability to the PBGC
or to any other party under Section 4062, 4063 or 4064 of ERISA with respect to any Plan, or to any Multiemployer Plan under Section
4201 et seq. of ERISA) and the occurrence of such events listed in subclauses (a) through (g) of this clause (i) could reasonably be
-- ---
expected to have a Material Adverse Effect; or (ii) either (a) a foreign governmental authority has instituted proceedings to
terminate a Foreign Pension Plan or a foreign governmental authority has appointed a trustee to administer any Foreign Pension Plan
in place of the existing administrator, in each case by reason of a distress termination within the meaning of Section 4041(c) of
ERISA, treating such Foreign Pension Plan as if it were subject to ERISA; (b) any Foreign Pension Plan that is required by applicable
law to be funded in a trust or other funding vehicle has failed to comply with such funding requirements or any Credit Party or any
of its Subsidiaries shall fail to pay any required contributions or payments to any Foreign Pension Plan on or before the due date
for such required installment or payment; or (c) any Foreign Pension Plan shall fail to be in compliance in all material respects
with all laws, regulations and rules applicable thereto and the governing documents for such Foreign Pension Plan, as applicable; if
as, of the date thereof or as of any subsequent date, the sum of each of the Credit Party's and its Subsidiaries' various liabilities
to any Foreign Pension Plan solely as a result of the occurrence of such events listed in subclauses (a) and (c) of this clause (ii)
could reasonably be expected to have a Material Adverse Effect;
(m) Dissolution. Any order, judgment or decree shall be entered against Company or any of its Subsidiaries decreeing its
-----------
involuntary dissolution or split up and such order shall remain undischarged and unstayed for a period in excess of sixty (60) days;
or Company or any Subsidiaries shall otherwise dissolve or cease to exist except as specifically permitted by this Agreement; or
(n) Change of Control. There shall occur a Change of Control.
-----------------
If any of the foregoing Events of Default shall have occurred and be continuing, Administrative Agent, at the
written direction of the Required Lenders, shall take one or more of the following actions: (i) by written or oral or telephonic
notice (in the case of oral or telephonic notice confirmed in writing immediately thereafter) to Company declare all or any part of
the Total Commitments to be terminated whereupon the Total Commitments (or the part thereof so declared) shall forthwith terminate,
(ii) by written or oral or telephonic notice (in the case of oral or telephonic notice confirmed in writing immediately thereafter)
to Company declare all or any part of the sums then owing by each Credit Party hereunder and under the Loan Documents to be forthwith
due and payable, whereupon all such sums shall become and be immediately due and payable without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived by Company on behalf of itself and its Subsidiaries, or (iii) terminate
any Letter of Credit in accordance with its terms, (iv) direct Company to pay (and Company agrees that upon receipt of such notice,
or upon the occurrence of any Event of Default specified in Section 10.1(e) or Section 10.1(f) with respect to Company it will pay)
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to Administrative Agent at the Payment Office such additional amount of cash, to be held as security by Administrative Agent, as is
equal to the aggregate Stated Amount of all Letters of Credit issued for the account of Company and its Subsidiaries and then
outstanding, and (v) enforce, as Administrative Agent, all of the Liens and security interests created pursuant to the Security
Documents. In cases of any occurrence of any Event of Default described in Section 10.1(e) or Section 10.1(f), the Loans, together
--------------- ----------------
with accrued interest thereon, shall become due and payable forthwith without the requirement of any such acceleration or request,
and without presentment, demand, protest or other notice of any kind, all of which are expressly waived by Company on behalf of
itself and its Subsidiaries, any provision of this Agreement or any other Loan Document to the contrary notwithstanding, and other
amounts payable by each Credit Party hereunder shall also become immediately due and payable all without notice of any kind.
Anything in this Section 10.1 to the contrary notwithstanding, Administrative Agent shall, at the request of the
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Required Lenders, promptly rescind and annul any acceleration of the Loans by written instrument filed with Company; provided that at
the time such acceleration is so rescinded and annulled: (A) all past due interest and principal, if any, on the Loans and all other
sums payable under this Agreement and the other Loan Documents shall have been duly paid, and (B) no other Event of Default shall
have occurred and be continuing which shall not have been waived in accordance with the provision of Section 12.1 hereof.
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1.85 Rights Not Exclusive. The rights provided for in this Agreement and the other Loan Documents are cumulative and are not
---------------------
exclusive of any other rights, powers, privileges or remedies provided by law or in equity, or under any other instrument, document
or agreement now existing or hereafter arising.
11.
THE AGENTS
In this Article XI, the Lenders, Facing Agent and Administrative Agent agree among themselves (and no Credit Party
----------
shall have any rights as a third party beneficiary of such provisions) as follows:
1.86 Appointment. Each of the Lenders hereby appoint DB to act on its behalf as Administrative Agent hereunder and as Collateral
-----------
Agent under all applicable Security Documents (for purposes of this Agreement, the term "Administrative Agent" shall include DB in
its capacity as Collateral Agent pursuant to the Security Documents) to act as herein specified herein and in the other Loan
Documents. Each Lender hereby irrevocably authorizes and each holder of any Note by the acceptance of such Note shall be deemed to
irrevocably authorize Administrative Agent to take such action on its behalf under the provisions hereof, the other Loan Documents
(including, without limitation, to give notices and take such actions on behalf of the Required Lenders as are consented to in
writing by the Required Lenders) and any other instruments, documents and agreements referred to herein or therein and to exercise
such powers hereunder and thereunder as are specifically delegated to Administrative Agent or Collateral Agent by the terms hereof
and thereof and such other powers as are reasonably incidental thereto. Administrative Agent may perform any of its duties hereunder
and under the other Loan Documents, by or through its officers, directors, agents, employees or affiliates.
1.87 Nature of Duties. Administrative Agent shall have no duties or responsibilities except those expressly set forth in this
----------------
Agreement. The duties of Administrative Agent shall be mechanical and administrative in nature. EACH LENDER HEREBY ACKNOWLEDGES AND
AGREES THAT ADMINISTRATIVE AGENT SHALL NOT HAVE, BY REASON OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, A FIDUCIARY RELATIONSHIP TO
OR IN RESPECT OF ANY LENDER. Nothing in any of the Loan Documents, expressed or implied, is intended to or shall be so construed as
to impose upon Administrative Agent any obligations in respect of any of the Loan Documents except as expressly set forth herein or
therein. Each Lender shall make its own independent investigation of the financial condition and affairs of the Credit Parties in
connection with the making and the continuance of the Loans hereunder and shall make its own appraisal of the credit worthiness of
the Credit Parties, and Administrative Agent shall have no duty or responsibility, either initially or on a continuing basis, to
provide any Lender with any credit or other information with respect thereto, whether coming into its possession before making of the
Loans or at any time or times thereafter. Administrative Agent will promptly notify each Lender at any time that the Required
Lenders have instructed it to act or refrain from acting pursuant to Article X.
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1.88 Exculpation, Rights Etc. Neither Administrative Agent nor any of its officers, directors, agents employees or affiliates
------------------------
shall be liable for any action taken or omitted by them hereunder or under any of the other Loan Documents, or in connection herewith
or therewith, unless caused by its or their gross negligence or willful misconduct. Administrative Agent shall not be responsible to
any Lender for any recitals, statements, representations or warranties herein or for the execution, effectiveness, genuineness,
validity, enforceability, collectibility, or sufficiency of any of the Loan Documents or any other document or the financial
condition of any Credit Party. Administrative Agent shall not be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement or any of the Loan Documents or any other Document or the
financial condition of any Credit Party, or the existence or possible existence of any Unmatured Event of Default or Event of Default
unless requested to do so by the Required Lenders. Administrative Agent may at any time request instructions from the Lenders with
respect to any actions or approvals (including the failure to act or approve) which by the terms of any of the Loan Documents,
Administrative Agent is permitted or required to take or to grant, and if such instructions are requested, Administrative Agent shall
be absolutely entitled to refrain from taking any action or to withhold any approval and shall not be under any liability whatsoever
to any Person for refraining from any action or withholding any approval under any of the Loan Documents until it shall have received
such instructions from the Required Lenders or all Lenders, as applicable. Without limiting the foregoing, no Lender shall have any
right of action whatsoever against Administrative Agent as a result of Administrative Agent acting, approving or refraining from
acting or approving under any of the Loan Documents in accordance with the instructions of the Required Lenders or, to the extent
required by Section 12.1, all of the Lenders.
------------
1.89 Reliance. Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any notice,
--------
writing, resolution notice, statement, certificate, order or other document (including any electronic message, internet or intranet
website posting or other distribution) or any telephone, telex, teletype or telecopier message believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person, and, with respect to all matters pertaining herein or to any of
the other Loan Documents and its duties hereunder or thereunder, upon advice of counsel selected by Administrative Agent.
1.90 Indemnification. To the extent Administrative Agent is not, for any reason, indefeasibly reimbursed and indemnified by
---------------
Company as required pursuant to Section 12.4, the Lenders will reimburse and indemnify Administrative Agent, on an after-tax basis,
------------
for and against any and all liabilities, obligations, losses, damages, claims, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against Administrative Agent,
acting pursuant hereto in such capacity in any way relating to or arising out of this Agreement or any of the other Loan Documents or
any action taken or omitted by Administrative Agent under this Agreement or any of the other Loan Documents, in proportion to each
Lender's Aggregate Pro Rata Share of the Total Commitment; provided, however, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, claims, penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from Administrative Agent's gross negligence or willful misconduct. The obligations of the Lenders under this Section 11.5 shall
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survive the payment in full of the Notes and the termination of this Agreement.
For purposes hereof, "Aggregate Pro Rata Share" means, when used with reference to any Lender and any described aggregate or
total amount, an amount equal to the result obtained by multiplying such desired aggregate or total amount by a fraction the
numerator of which shall be the aggregate principal amount of such Lender's Loans and the denominator of which shall be the aggregate
of all of the Loans outstanding hereunder.
1.91 Administrative Agent In Its Individual Capacity. With respect to its Loans and Commitments, Administrative Agent shall have
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and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set
forth herein for any other Lender or holder of Obligations. The terms "Lenders", "holder of Obligations" or "Required Lenders" or
any similar terms shall, unless the context clearly otherwise indicates, include Administrative Agent in its individual capacity as a
Lender, one of the Required Lenders or a holder of Obligations. Administrative Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with any Credit Party or any Subsidiary or affiliate of any Credit
Party as if it were not acting as Administrative Agent hereunder or under any other Loan Document, including, without limitation, the
acceptance of fees or other consideration for services without having to account for the same to any of the Lenders.
1.92 Notice of Default. Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of
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Default or Unmatured Event of Default hereunder unless Administrative Agent has received written notice from a Lender or Company
referring to this Agreement, describing such Event of Default or Unmatured Event of Default and stating that such notice is a "notice
of default". In the event that Administrative Agent receives such a notice, Administrative Agent shall give prompt notice thereof to
the Lenders.
1.93 Holders of Obligations. Administrative Agent may deem and treat the payee of any Obligation as reflected on the books and
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records of Administrative Agent as the owner thereof for all purposes hereof unless and until a written notice of the assignment or
transfer thereof shall have been filed with Administrative Agent pursuant to Section 12.8(c). Any request, authority or consent of
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any Person who, at the time of making such request or giving such authority or consent, is the holder of any Obligation shall be
conclusive and binding on any subsequent holder, transferee or assignee of such Obligation or of any Obligation or Obligations
granted in exchange therefor.
1.94 Resignation by Administrative Agent. (a) Administrative Agent may resign from the performance of all its functions and
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duties hereunder at any time by giving fifteen (15) Business Days' prior written notice to Company and the Lenders. Such resignation
shall take effect upon the acceptance by a successor Administrative Agent of appointment pursuant to clauses (b) and (c) below or as
otherwise provided below.
(b) Upon any such notice of resignation, the Required Lenders shall appoint a successor Administrative Agent who shall be
satisfactory to Company and shall be an incorporated bank or trust company.
(c) If a successor Administrative Agent shall not have been so appointed within said fifteen (15) Business Day period,
Administrative Agent, with the consent of Company, may then appoint a successor Administrative Agent who shall serve as
Administrative Agent until such time, if any, as the Required Lenders, with the consent of Company, appoint a successor
Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant to clause (b) or (c) by the twentieth (20th) Business Day
after the date such notice of resignation was given by Administrative Agent, Administrative Agent's resignation shall become
effective and the Required Lenders shall thereafter perform all the duties of Administrative Agent hereunder until such time, if any,
as the Required Lenders, with the consent of Company, appoint a successor Administrative Agent as provided above.
1.95 The Lead Arranger, Book Manager, Syndication Agent and Co-Documentation Agents. Notwithstanding any other provision of this
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Agreement or any provision of any other Loan Document, each of the Lead Arranger, Book Manager, Syndication Agent and
Co-Documentation Agents are named as such for recognition purposes only, and in their respective capacities as such shall have no
powers, duties, responsibilities or liabilities with respect to this Agreement or the other Loan Documents or the transactions
contemplated hereby and thereby; it being understood and agreed that the Lead Arranger, Book Manager, Syndication Agent and
Co-Documentation Agents shall be entitled to all indemnification and reimbursement rights in favor of "Agents" as provided for under
Section 11.5. Without limitation of the foregoing, none of Lead Arranger, Book Manager, Syndication Agent or Co-Documentation Agents
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shall, solely by reason of this Agreement or any other Loan Documents, have any fiduciary relationship in respect of any Lender or
any other Person.
12.
MISCELLANEOUS
1.96 No Waiver; Modifications in Writing.
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(a) No failure or delay on the part of Administrative Agent or any Lender in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and
are not exclusive of any remedies that may be available to Administrative Agent or any Lender at law or in equity or otherwise.
Neither this Agreement nor any terms hereof may be amended, modified, supplemented, waived, discharged, terminated or otherwise
changed unless such amendment, modification, supplement, waiver, discharge, termination or other change is in writing signed by the
respective Credit Parties party thereto and the Required Lenders, provided that no such amendment, modification, supplement, waiver,
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discharge, termination or other change shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations
directly affected thereby in the case of the following clause (i)),
(i) extend the final scheduled maturity of any Loan or Note (or extend the stated maturity of any Letter of Credit beyond the
Revolver Termination Date), or reduce the rate or extend the time of payment of interest or fees thereon, or reduce the principal
amount thereof,
(ii) release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as expressly
provided in the Security Documents),
(iii) amend, modify or waive any provision of this Section 12.1(a), or reduce the percentage specified in the definition of
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Required Lenders;
(iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement; or
(v) amend the definition of "Interest Period" so as to permit periods in excess of six months without regard to availability by
each applicable Lender;
provided, further, that no such amendment, modification, supplement, waiver, discharge, termination or other change shall
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(A) increase the Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being
understood that waivers or modifications of conditions precedent, representations, warranties, covenants, Events of Default or
Unmatured Events of Default shall not constitute an increase of the Commitment of any Lender, and that an increase in the available
portion of any Commitment of any Lender shall not constitute an increase in the Commitment of such Lender),
(B) without the consent of Administrative Agent and Facing Agent, amend, modify or waive any provision of Section 2.8 or alter
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the rights or obligations of Facing Agent with respect to Letters of Credit,
(C) without the consent of Administrative Agent, amend, modify or waive any provision of Article XI as same applies to
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Administrative Agent or any other provisions as same relates to the rights or obligations of Administrative Agent,
(D) without the consent of Administrative Agent, amend, modify or waive any provisions relating to the rights or obligations of
Administrative Agent under the other Loan Documents,
(E) without the consent of the Majority Lenders of each Facility which is being allocated a lesser prepayment, repayment or
commitment reduction, alter the required application of any prepayments or repayments (or commitment reduction), as between the
various Facilities pursuant to Section 4.5(a) (although the Required Lenders may waive in whole or in part, any such prepayment,
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repayment or commitment reduction so long as the application, as amongst the various Facilities, of any such prepayment, repayment or
commitment reduction which is still required to be made is not altered),
(F) without the consent of the Majority Lenders of each Facility amend the definition of Majority Lenders,
(G) without the consent of the Majority Lenders of the Term Facility affected thereby, amend the definition of Term Pro Rata
Share,
(H) without the consent of the Majority Lenders of the Revolving Facility, amend the definition of Revolver Pro Rata Share,
(I) without the consent of the Majority Lenders of the applicable Facility, amend the definition of Scheduled Term Repayments
for such Facility in a manner that decreases or delays any Scheduled Term Repayment.
In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of Administrative Agent, Holdings,
Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing or modification
of all outstanding Term Loans of any Term Facility ("Refinanced Term Loans") with one or more replacement or modified Term Facilities
----------------------
hereunder ("Replacement Term Loans"), provided that (a) any Lender that does not consent to the amendment and that holds Refinanced
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Term Loans receives payment in full of the principal amount of and interest accrued on each Refinanced Term Loan made by it or is
replaced as provided in Section 3.7, (b) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate
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principal amount of such Refinanced Term Loans unless the Required Lenders (treating the Refinanced Loans of any Lender that does not
provide Replacement Term Loans as having been paid in full immediately prior to the amendment) shall approve such increase, (c) the
Applicable Margin for Eurocurrency Loans and the Applicable Margin for Base Rate Loans for the Replacement Term Loans shall not be
higher than such applicable margins for the relevant Term Facility of Refinanced Term Loans unless the Required Lenders (treating the
Refinanced Loans of any Lender that does not provide Replacement Term Loans as having been paid in full immediately prior to the
amendment) shall approve such increase, (d) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter
than the Weighted Average Life to Maturity of the Refinanced Term Loans at the time of such amendment and (e) all other terms
applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such
Replacement Term Loans than those applicable to such Refinanced Term Loans except to the extent necessary to provide for covenants
and other terms applicable to any period after the latest final maturity of Term Loans in effect immediately prior to such amendment
unless the Required Lenders (treating the Refinanced Loans of any Lender that does not provide Replacement Term Loans as having been
paid in full immediately prior to the amendment) shall approve such terms.
(b) If, in connection with any proposed change, waiver, discharge or termination of any of the provisions of this Agreement as
contemplated by clauses (a)(i) through (v), inclusive, of the first proviso to the third sentence of Section 12.1(a) or (E) through
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(J) of the second proviso to such sentence, the consent of the Required Lenders is obtained but the consent of one or more of such
other Lenders whose consent is required is not obtained, then Company shall have the right to replace each such non-consenting Lender
or Lenders (or, at the option of Company if the respective Lender's consent is required with respect to less than all Loans, to
replace only the respective Loans of the respective non-consenting Lender which gave rise to the need to obtain such Lender's
individual consent) with one or more Replacement Lenders pursuant to Section 3.7 so long as at the time of such replacement, each
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such Replacement Lender consents to the proposed amendment, modification, supplement. waiver, discharge, termination or other
change.
1.97 Further Assurances. Company agrees, on behalf of itself and its Subsidiaries, to do such further acts and things and to
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execute and deliver to Administrative Agent such additional assignments, agreements, powers and instruments, as Administrative Agent
may reasonably require or deem advisable to evidence, perfect or otherwise implement the guarantees and security for repayment of the
Obligations contemplated by the Loan Documents.
1.98 Notices, Etc. (a) Except where telephonic instructions or notices are authorized herein to be given (and except as provided
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in paragraph (b) below), all notices, demands, instructions and other communications required or permitted to be given to or made
upon any party hereto or any other Person shall be in writing and shall be personally delivered or sent by registered or certified
mail, postage prepaid, return receipt requested, or by a reputable overnight or courier delivery service, or by telecopier, and shall
be deemed to be given for purposes of this Agreement when received or in the case of notice delivered by telecopy, upon completion of
transmission with a copy of such notice also being delivered under any of the methods provided above, all in accordance with the
provisions of this Section 12.3. Unless otherwise specified in a notice sent or delivered in accordance with the foregoing
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provisions of this Section 12.3, notices, demands, instructions and other communications in writing shall be given to or made upon
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the respective parties hereto at their respective addresses (or to their respective telecopier numbers) indicated on Schedule 12.3
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attached hereto or, in the case of any Assignee, on its signature page to its Assignment and Assumption Agreement and, in the case of
telephonic instructions or notices, by calling the telephone number or numbers indicated for such party on Schedule 12.3 attached
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hereto or such Assignment and Assumption Agreement, as the case may be.
(b) Notices and other communications to or by the Administrative Agent, the Lenders and the Facing Agent hereunder may be
delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures
approved by Administrative Agent, provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise
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agreed by Administrative Agent and the applicable Lender and, to the extent applicable, the Facing Agent. Administrative Agent or
Company may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or
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communications.
Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed
received upon the sender's receipt of an acknowledgement from the intended recipient (such as by the "return receipt requested"
function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is sent
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after 5:00 p.m. (New York City time), such notice or communication shall be deemed to have been sent at the opening of business on
the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the website address therefor.
1.99 Costs and Expenses; Indemnification.
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(a) Generally. Company agrees to pay promptly upon request by Administrative Agent (or any Lender in connection with any
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enforcement or atonement as provided below) (i) all reasonable out of pocket costs and expenses in connection with the negotiation,
preparation, printing, typing, reproduction, syndication, execution and delivery of this Agreement and the other Loan Documents and
the documents and instruments referred to herein and therein and any amendment, waiver or consent relating hereto or thereto or other
modifications of (or supplements to) any of the foregoing and any and all other documents and instruments furnished pursuant hereto
or thereto or in connection herewith or therewith (whether or not the transactions contemplated hereby or thereby are consummated),
including without limitation, the reasonable fees and out-of-pocket expenses of independent public accountants and other outside
experts retained by Administrative Agent and of Winston & Xxxxxx LLP, special counsel to Administrative Agent, and any local counsel
retained by Administrative Agent relative thereto and other Attorney Costs, in connection with the administration of this Agreement
and the other Loan Documents, and all search fees, appraisal fees and expenses, title insurance policy fees, costs and expenses and
filing and recording fees, (ii) all reasonable out-of-pocket expenses incurred by any Facing Agent in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all costs and expenses
incurred by the Administrative Agent, any Lender or any Facing Agent, including the fees, charges and Attorney Costs in connection
with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents, including its rights
under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit. In addition,
Company shall pay any and all present and future stamp, transfer, excise and other similar taxes payable or determined to be payable
in connection with the execution and delivery of this Agreement, any Loan Document, or the making of any Loan, and each agrees to
save and hold Administrative Agent and each Lender harmless from and against any and all liabilities with respect to or resulting
from any delay by Company in paying, or omission by Company to pay, such taxes. Any portion of the foregoing fees, costs and
expenses which remains unpaid more than forty-five (45) days following Administrative Agent's or any Lender's statement and request
for payment thereof shall bear interest from the date of such statement and request to the date of payment at the Default Rate.
(b) Indemnification. Company will indemnify and hold harmless Administrative Agent and each Lender and each director, officer,
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employee, agent, attorney and Affiliate of Administrative Agent and each Lender (each such Person an "Indemnified Person" and
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collectively, the "Indemnified Persons") from and against all losses, claims, damages, obligations (including Remedial Actions),
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expenses or liabilities to which such Indemnified Person may become subject or which may be asserted against such Indemnified Person
by any third party or by any Credit Party, insofar as such losses, claims, damages, penalties, obligations (including Remedial
Actions), expenses or liabilities (or actions, suits or proceedings including any inquiry or investigation or claims in respect
thereof (whether or not Administrative Agent or any Lender is a party thereto)) arise out of, in any way relate to, or result from
(i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations hereunder or the consummation of the transactions
contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by the
Facing Agent to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (iii) any violation of or liability arising under any Environmental Laws or
Environmental Permits or for the Release or threatened Release of any Contaminants into the environment for which Company or any of
its Subsidiaries has any liability or which occurs upon the Mortgaged Property or which is related to any property currently or
formerly owned, leased or operated by or on behalf of Company or any of its Subsidiaries, or by reason of the imposition of any
Environmental Lien or which occurs by a breach of any of the representations, warranties or covenants relating to environmental
matters contained herein, including, without limitation, by reason of any matters disclosed in Schedule 6.19, provided that, with
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respect to any liabilities arising from acts or failure to act for which Company or any of its Subsidiaries is strictly liable under
any Environmental Law or Environmental Permit, Company's obligation to each Indemnified Person under this indemnity shall likewise be
without regard to fault on the part of Company or any such Subsidiary or (iv) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether brought by a third
party or by a Credit Party and regardless of whether any Indemnified Person is a party thereto, and to reimburse each Indemnified
Person upon their demand, for any Attorney Costs or other reasonable expenses actually incurred in connection with investigating,
preparing to defend or defending any such loss, claim, damage, liability, action or claim; provided, however,
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(i) that no Indemnified Person shall have the right to be so indemnified hereunder for any loss, claim, damage, penalties,
obligations, expense or liability to the extent it arises or results from the gross negligence or willful misconduct of such
Indemnified Person as finally determined by a court of competent jurisdiction;
(ii) that nothing contained herein shall affect the express contractual obligations of the Lenders to any Credit Party contained
herein or in the other Loan Documents; and
(iii) that such Indemnified Person shall promptly refund such amount to the extent that there is a final judicial or arbitral
determination that such Indemnified Person was not entitled to indemnification or contribution rights with respect to such payment
hereunder.
If any action, suit or proceeding arising from any of the foregoing is brought against Administrative Agent, any Lender or any other
Person indemnified or intended to be indemnified pursuant to this Section 12.4, Company will, if requested by Administrative Agent,
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any Lender or any such Indemnified Person, resist and defend such action, suit or proceeding or cause the same to be resisted and
defended by counsel reasonably satisfactory to the Person or Persons indemnified or intended to be indemnified. Each Indemnified
Person shall, unless Administrative Agent, a Lender or other Indemnified Person has made the request described in the preceding
sentence and such request has been complied with, have the right to employ its own counsel (or (but not as well as) staff counsel) to
investigate and control the defense of any matter covered by such indemnity and the reasonable fees and expenses of such counsel
shall be at the expense of the indemnifying party.
If Company shall fail to do any act or thing which it has covenanted to do hereunder or any representation or warranty on the part of
Company or any of its Subsidiaries contained herein or in any other Loan Document shall be breached, Administrative Agent may (but
shall not be obligated to) do the same or cause it to be done or remedy any such breach, and may expend its funds for such purpose,
and will use its best efforts to give prompt written notice to Company that it proposes to take such action. Any and all amounts so
expended by Administrative Agent shall be repaid to it by Company promptly upon Administrative Agent's demand therefor, with interest
at the Default Rate in effect from time to time during the period including the date so expended by Administrative Agent to the date
of repayment. To the extent that the undertaking to indemnify, pay or hold harmless Administrative Agent or any Lender as set forth
in this Section 12.4 may be unenforceable because it is violative of any law or public policy, Company shall make the maximum
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contribution to the payment and satisfaction of each of the indemnified liabilities which is permissible under applicable law. The
obligations of Company under this Section 12.4 shall survive the termination of this Agreement and the discharge of Company's other
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Obligations hereunder.
(c) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, Company shall not assert, and
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hereby waives, any claim against any Indemnified Person, 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, any other
Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter
of Credit or the use of the proceeds thereof. No Indemnified Person referred to in paragraph (b) above shall be liable for any
damages arising from the use by unintended recipients of any information transmission systems in connection with this Agreement or
the other Loan Documents or the transactions contemplated hereby or thereby.
1.100 Confirmations. Each of Company and each holder of any portion of the Obligations agrees from time to time, upon written
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request received by it from the other, to confirm to the other in writing (with a copy of each such confirmation to Administrative
Agent) the aggregate unpaid principal amount of the Loan or Loans and other Obligations then outstanding.
1.101 Adjustment; Setoff.
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(a) If any lender (a "Benefited Lender") shall at any time receive any payment of all or part of its Loans, or interest thereon,
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or receive any collateral in respect thereof (whether voluntarily or involuntarily, by setoff, pursuant to events or proceedings of
the nature referred to in Section 10.1(e) or Section 10.1(f) hereof, or otherwise) in a greater proportion than any such payment to
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and collateral received by any other Lender in respect of such other Lender's Loans or interest thereon, such Benefited Lender shall
(i) notify Administrative Agent of that fact and (ii) purchase for cash at face value from the other Lenders such portion of each
such other Lender's Loans, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with
each Lender; provided, however, that (x) if all or any portion of such excess payment or benefits is thereafter recovered from such
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Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but
without interest and (y) this Section 12.6(a) shall not apply to (1) any payment made by a Credit Party pursuant to and in accordance
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with the express terms of this Agreement or (2) any payment obtained by a Lender as consideration for the assignment or sale of a
participation to any assignee or participant, other than to any Credit Party or any Subsidiary thereof. Company agrees that each
Lender so purchasing a portion of another Lender's Loans may exercise all rights of payment (including, without limitation, rights of
setoff) with respect to such portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior
notice to Company or any of its Subsidiaries, any such notice being expressly waived by Company, on behalf of itself and its
Subsidiaries, upon the occurrence and during the continuance of an Event of Default, to setoff and apply against any Obligations,
whether matured or unmatured, of Company or any Credit Party to such Lender, any amount owing from such Lender to Company or any of
its Subsidiaries, at or at any time after, the happening of any of the above-mentioned events, and the aforesaid right of setoff may
be exercised by such Lender against Company or any Credit Party or against any trustee in bankruptcy, debtor in possession, assignee
for the benefit of creditors, receivers, administrator, administrative receiver, court appointed monitor or other similar official,
or execution, judgment or attachment creditor of Company or any Credit Party, or against anyone else claiming through or against,
Company or any Credit Party or such trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receivers,
administrator, administrative receiver, court appointed monitor or other similar official, or execution, judgment or attachment
creditor, notwithstanding the fact that such right of setoff shall not have been exercised by such Lender prior to the making, filing
or issuance, or service upon such Lender of, or of notice of, any such petition, assignment for the benefit of creditors, appointment
or application for the appointment of a receiver, administrator, administrative receiver, court appointed monitor or other similar
official, or issuance of execution, subpoena, order or warrant. Each Lender agrees promptly to notify Company and Administrative
Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the
validity of such setoff and application.
(c) Company expressly agrees, on behalf of itself and its Subsidiaries, that to the extent Company or any other Credit Party
makes a payment or payments and such payment or payments, or any part thereof, are subsequently invalidated, declared to be
fraudulent or preferential, set aside or are required to be repaid to a trustee, receiver, administrator, administrative receiver,
court appointed monitor or other similar official, or any other party under any bankruptcy act, state or federal law, common law or
equitable cause in any jurisdiction, then to the extent of such payment or repayment, the Indebtedness to the Lenders or part thereof
intended to be satisfied shall be revived and continued in full force and effect as if said payment or payments had not been made.
1.102 Execution in Counterparts; Electronic Execution; Effectiveness.
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(a) This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each
of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken
together, shall constitute but one and the same Agreement. Delivery of an executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.
(b) This Agreement shall become effective on the date (the "Effective Date") on which Holdings, Company and each of the Lenders
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shall have signed a counterpart of this Agreement (whether the same or different counterparts) and shall have delivered the same to
the Administrative Agent at the Notice Office (or to Administrative Agent's counsel as directed by such counsel) or, in the case of
the Lenders, shall have given to Administrative Agent or telephonic (confirmed in writing), written, telex or facsimile notice
(actually received) at such office or the office of Administrative Agent's counsel that the same has been signed and mailed to it.
Administrative Agent will give Holdings, Company and each Lender prompt written notice of the occurrence of the Effective Date.
1.103 Binding Effect; Assignment; Addition and Substitution of Lenders.
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(a) This Agreement shall be binding upon, and inure to the benefit of, Company and each other Credit Party hereto,
Administrative Agent, the Lenders, all future holders of the Notes and their respective successors and assigns; provided, however,
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that neither Company nor any other Credit Party may assign its rights or obligations hereunder or in connection herewith or any
interest herein (voluntarily, by operation of law or otherwise) without the prior written consent of Administrative Agent and all of
the Lenders.
(b) Each Lender may at any time sell to one or more banks or other entities ("Participants") participating interests in all or
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any portion of its Commitment and Loans or participation in Letters of Credit or any other interest of such Lender hereunder (in
respect of any Lender, its "Credit Exposure"). In the event of any such sale by a Lender of participating interests to a
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Participant, such Lender's obligations under this Agreement shall remain unchanged, such Lender shall remain solely responsible for
the performance thereof, and the Credit Parties and Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement. At the time of the sale of a participating interest,
the Lender transferring the interest (i) shall cause the Participant to provide the forms required under Section 4.7(d) as if such
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Participant became a Lender on the date of the sale and (ii) shall, if required under applicable law, deliver revised forms in
accordance Section 4.7(d) reflecting the portion of the interest sold and the portion of the interest retained. Further, the
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Participant shall be subject to the obligations of Section 3.6 and Section 4.7 as if such Participant was a Lender. Company and each
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other Credit Party hereto agrees that if amounts outstanding under this Agreement or any of the Loan Documents are due or unpaid, or
shall have been declared or shall have become due and payable upon the occurrence and during the continuance of an Event of Default,
each Participant shall be deemed to have the right of setoff in respect of its participating interest in amounts owing under this
Agreement and the Loan Documents to the same extent as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement or any other Loan Document; provided, however, that such right of setoff shall be subject to the
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obligation of such Participant to share with the Lenders, and the Lenders agree to share with such Participant, as provided in
Section 12.6. Company and each other Credit Party hereto also agrees that each Participant shall be entitled to the benefits of
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Section 3.6 and Section 4.7 with respect to its participation in the Loans outstanding from time to time, as if such Participant
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becomes a Lender on the date it acquired an interest pursuant to this Section 12.8(b). Each Lender agrees that any agreement between
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such Lender and any such Participant in respect of such participating interest shall not restrict such Lender's right to approve or
agree to any amendment, restatement, supplement or other modification to, waiver of, or consent under, this Agreement or any of the
Loan Documents except to the extent that any of the forgoing would (i) extend the final scheduled maturity of any Loan or Note in
which such Participant is participating (it being understood that amending the definition of any Scheduled Term Repayment (other than
any Term Maturity Date), shall not constitute an extension of the final scheduled maturity of any Loan or Note) or extend the stated
maturity of any Letter of Credit in which such Participant is participating beyond the Revolver Termination Date, or reduce the rate
or extend the time of payment of interest or fees on any such Loan, Note or Letter of Credit (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the amount of the
Participant's participation over the amount thereof then in effect (it being understood that waivers or modifications of conditions
precedent, covenants, representations, warranties, Events of Default or Unmatured Events of Default or of a mandatory reduction in
Commitments shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be
permitted without the consent of any Participant if the Participant's participation is not increased as a result thereof), (ii)
consent to the assignment or transfer by Company or any other Credit Party of any of its rights and obligations under this Agreement
or (iii) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the
Loan Documents) supporting the Loans and/or Letters of Credit hereunder in which such Participant is participating.
(c) Any Lender may at any time assign to one or more Eligible Assignees, including an Affiliate thereof (each an "Assignee"),
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all or any part of its Credit Exposure pursuant to an Assignment and Assumption Agreement, provided that any assignment of all or any
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portion of any Lender's Credit Exposure to an Assignee other than an Affiliate of such Lender or another Lender, or in the case of a
Lender that is a Fund, any Related Fund of any Lender (i) shall be an assignment of its Credit Exposure in an amount not less than
$1,000,000 (treating any Fund and its Related Funds as a single Eligible Assignee) (or if less the entire amount of Lender's Credit
Exposure with respect to such Facility, provided, that, if such Lender and its Affiliates (or in the case of a Fund and its Related
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Funds) collectively hold Credit Exposure at least equal to such minimum amounts, such Affiliates and/or Related Funds must
simultaneously assign Credit Exposure such that the aggregate Credit Exposure assigned satisfies such minimum amount) and (ii) shall
require the prior written consent of Administrative Agent (not to be unreasonably withheld) and, provided no Event of Default then
exists and is continuing, Company (the consent of Company not to be unreasonably withheld or delayed; provided, however, that prior
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to the Syndication Date, assignments by Administrative Agent shall not require the consent of Company), and; provided, further, that
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notwithstanding the foregoing limitations, any Lender may at any time assign all or any part of its Credit Exposure to any Affiliate
of such Lender or to any other Lender (or in the case of a Lender which is a Fund, to any Related Fund of such Lender). Upon
execution of an Assignment and Assumption Agreement and the payment of a nonrefundable assignment fee of $3,500 (provided that no
such fee shall be payable upon assignments by any Lender which is a Fund to one or more Related Funds) in immediately available funds
to Administrative Agent at its Payment Office in connection with each such assignment, written notice thereof by such transferor
Lender to Administrative Agent and the recording by Administrative Agent of such assignment and the resulting effect upon the Loans
and Revolving Commitment of the assigning Lender and the Assignee, the Assignee shall have, to the extent of such assignment, the
same rights, benefits and obligations as it would have if it were a Lender hereunder and the holder of the Obligations (provided that
Company and Administrative Agent shall be entitled to continue to deal solely and directly with the assignor Lender in connection
with the interests so assigned to the Assignee until written notice of such assignment, together with payment instructions, addresses
and related information with respect to the Assignee, shall have been given to Company, and Administrative Agent by the assignor
Lender and the Assignee) and, if the Assignee has expressly assumed, for the benefit of Company or any other Credit Party hereto,
some or all of the transferor Lender's obligations hereunder, such transferor Lender shall be relieved of its obligations hereunder
to the extent of such assignment and assumption, and except as described above, no further consent or action by Company, the Lenders,
or Administrative Agent shall be required. At the time of each assignment pursuant to this Section 12.8(c) to a Person which is not
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already a Lender hereunder, the respective Assignee shall provide to Company and Administrative Agent the appropriate forms and
certificates as provided in Section 4.7(d), if applicable. Each Assignee shall take such Credit Exposure subject to the provisions
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of this Agreement and to any request made, waiver or consent given or other action taken hereunder, prior to the receipt by
Administrative Agent and Company of written notice of such transfer, by each previous holder of such Credit Exposure. Such
Assignment and Assumption Agreement shall be deemed to amend this Agreement and Schedule 1.1(a) hereto, to the extent, and only to
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the extent, necessary to reflect the addition of such Assignee as a Lender and the resulting adjustment of all or a portion of the
rights and obligations of such transferor Lender under this Agreement, the Maximum Commitment, the determination of its Term Pro Rata
Share, or Revolver Pro Rata Share, as the case may be (in each case, rounded to twelve decimal places), the Loans, any outstanding
Letters of Credit and any new Notes, if requested, to be issued, at Company's expense, to such Assignee, and no further consent or
action by Company or the Lenders shall be required to effect such amendments.
(d) Company authorizes each Lender to disclose to any Participant, Assignee or permitted pledgee under clause (e) below (each, a
"Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning Company and any
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of its Subsidiaries which has been delivered to such Lender by Company pursuant to this Agreement or which has been delivered to such
Lender by Company in connection with such Lender's credit evaluation of Company prior to entering into this Agreement, provided that,
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such Transferee or prospective Transferee agrees to treat any such information which is not public as confidential in accordance with
the terms of Section 12.15 hereof.
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(e) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time pledge or assign all or any
portion of its rights under this Agreement and the other Loan Documents (including, without limitation, the Notes held by it,) to any
Federal Reserve Bank in accordance with Regulation A of the Federal Reserve Board without notice to, or the consent of, any Credit
Party, provided that, no such pledge or assignment of a security interest under this Section 12.8(e) shall release a Lender from any
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obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. Any Lender which is a fund may
pledge all or any portion of its Notes or Loans to its trustee in support of its obligations to its trustee. No such pledge or
assignment shall release the transferor Lender from its obligations hereunder.
1.104 CONSENT TO JURISDICTION; MUTUAL WAIVER OF JURY TRIAL.
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(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX
XXX XXXXX XX XXX XXXX SITTING IN NEW YORK, NEW YORK OR COURTS OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH CREDIT PARTY HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH CREDIT PARTY FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH CREDIT PARTY, AT THE ADDRESS PROVIDED FOR IN SECTION 12.3, SUCH
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SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ADMINISTRATIVE AGENT UNDER
THIS AGREEMENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST EACH CREDIT PARTY IN ANY OTHER JURISDICTION.
(b) EACH CREDIT PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT BROUGHT IN THE
COURTS REFERRED OF IN CLAUSE (A) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT
ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY COURT OR
JURISDICTION, INCLUDING WITHOUT LIMITATION THOSE REFERRED TO IN CLAUSE (A) ABOVE, IN RESPECT TO ANY MATTER ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(d) THIS AGREEMENT AND EACH NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF SAID STATE, INCLUDING SECTIONS S-1401 AND S-1402 OF
THE NEW YORK GENERAL OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAWS RULES.
1.105 Severability of Provisions. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall,
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as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
1.106 Transfers of Notes. In the event that the holder of any Note (including any Lender) shall transfer such Note, it shall
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immediately advise Administrative Agent and Company of such transfer, and Administrative Agent and Company shall be entitled
conclusively to assume that no transfer of any Note has been made by any holder (including any Lender) unless and until
Administrative Agent and Company shall have received written notice to the contrary. Except as otherwise provided in this Agreement
or as otherwise expressly agreed in writing by all of the other parties hereto, no Lender shall, by reason of the transfer of a Note
or otherwise, be relieved of any of its obligations hereunder. Each transferee of any Note shall take such Note subject to the
provisions of this Agreement and to any request made, waiver or consent given or other action taken hereunder, prior to the receipt
by Administrative Agent and Company of written notice of such transfer, by each previous holder of such Note, and, except as
expressly otherwise provided in such transfer, Administrative Agent and Company shall be entitled conclusively to assume that the
transferee named in such notice shall hereafter be vested with all rights and powers under this Agreement with respect to the Pro
Rata Share of the Loans of the Lender named as the payee of the Note which is the subject of such transfer.
1.107 Registry. Company hereby designates Administrative Agent to serve as Company's agent, solely for purposes of this Section
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12.12 to maintain a register (the "Register") on which it will record the Commitment from time to time of each of the Lenders, the
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Loans made by each of the Lenders and each repayment in respect of the principal amount of the Loans of each Lender. Failure to make
any such recordation, or any error in such recordation shall not affect any Credit Party's obligations in respect of such Loans.
With respect to any Lender, the transfer of the Commitments of such Lender and the rights to the principal of, and interest on, any
Loan made pursuant to such Commitment shall not be effective until such transfer is recorded on the Register maintained by
Administrative Agent with respect to ownership of such Commitment and Loans and prior to such recordation all amounts owing to the
transferor with respect to such Commitments and Loans shall remain owing to the transferor. The registration of assignment or
transfer of all or part of any Commitment and Loans shall be recorded by Administrative Agent on the Register only upon the
acceptance by Administrative Agent of a properly executed and delivered Assignment and Assumption Agreement pursuant to Section
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12.8. Coincident with the delivery of such an Assignment and Assumption Agreement to Administrative Agent for acceptance and
registration of assignment or transfer of all or part of a Loan, or as soon thereafter as practicable, the assigning or transferor
Lender shall surrender any Note evidencing such Loan, and thereupon, if requested by the assigning or transferor Lender or New
Lender, one or more new Notes in the same aggregate principal amount then owing to such assignor or transferor Lender shall be issued
to the assigning or transferor Lender and/or the new Lender.
1.108 Headings. The Table of Contents and Article and Section headings used in this Agreement are for convenience of reference
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only and shall not affect the construction of this Agreement.
1.109 Termination of Agreement. This Agreement shall terminate when the Commitment of each Lender has terminated and all
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outstanding Obligations and Loans have been indefeasibly paid in full and all Letters of Credit have expired or been terminated;
provided, however, that the rights and remedies of Administrative Agent and each Lender with respect to any representation and
warranty made by Company pursuant to this Agreement or any other Loan Document, and the indemnification and expense reimbursement
provisions contained in this Agreement and any other Loan Document, shall be continuing and shall survive any termination of this
Agreement or any other Loan Document.
1.110 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the Lenders and each Facing Agent
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agrees to maintain the confidentiality of the Information (as defined below) in accordance with its customary practices for handling
such information, except that information may be disclosed (a) to its and its Affiliates' directors, officers, 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), (b) to the extent
requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any
other Loan Document or the enforcement or any action or proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and
obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Company or any other Credit Party and its obligations, (g) with the consent of the Company or (h) to the
extent such information (x) becomes publicly available other than as a result of a breach of this section or (y) becomes available to
the Administrative Agent, any Lender or the Issuing Bank or any of their respective Affiliates on a nonconfidential basis from a
source other than Company.
For purposes of this Section, "Information" means all information received from, or on behalf of, Holdings, Company
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or any of its Subsidiaries relating to Holdings, Company or any of its Subsidiaries or any of their respective businesses, other than
any such information that is available to the Administrative Agent, any Lender or the Issuing Bank on a nonconfidential basis prior
to disclosure by Company or any of its Subsidiaries. Notwithstanding the foregoing sentence, to the extent necessary to avoid
application of Treasury Regulation section 1.6011-4 (and in particular 1.6011-4(b)(3) with respect to confidential transactions), any
such information shall not be treated as "Information." Any Person required to maintain the confidentiality of Information as
provided in this Section 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 to its own confidential information.
In addition, Administrative Agent may disclose to any agency or organization that assigns standard identification numbers to loan
facilities such basic information describing the facilities provided hereunder as is necessary to assign unique identifiers (and, if
requested, supply a copy of this Agreement), it being understood that the Person to whom such disclosure is made will be informed of
the confidential nature of information and instructed to make available in the course of its business of assigning identification
numbers.
1.111 Concerning the Collateral and the Loan Documents.
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(a) Authority. Each Lender authorizes and directs DB to act as collateral agent and to enter into the Loan Documents relating
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to the Collateral for the benefit of the Lenders and the other secured parties. Each Lender agrees that any action taken by the
Administrative Agent or the Required Lenders (or, where required by the express terms, hereof, a different proportion of the Lenders)
in accordance with the provisions hereof or of the other Loan Documents, and the exercise by the Administrative Agent, the Collateral
Agent or the Required Lenders (or, where so required, such different proportion) of the powers set forth herein or therein, together
with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. Without
limiting the generality of the foregoing, the Administrative Agent and Collateral Agent shall have the sole and exclusive right and
authority to (i) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in
connection herewith and with the Loan Documents relating to the Collateral; (ii) execute and deliver each Loan Document relating to
the Collateral and accept delivery of each such agreement delivered by Company or any of its Subsidiaries, (iii) act as collateral
trustee for the Lenders for purposes stated therein to the extent such action is provided for under the Loan Documents, provided,
however, the Administrative Agent hereby appoints, authorizes and directs each Lender to act as collateral sub-agent for the
Administrative Agent and the Lenders for purposes of the perfection of all security interests and Liens with respect to Company's and
its Subsidiaries' respective deposit accounts maintained with, and cash and Cash Equivalents held by, such Lender; (iv) manage,
supervise and otherwise deal with the Collateral; (v) take such action as is necessary or desirable to maintain the perfection and
priority of the security interests and liens created or purported to be created by the Loan Documents, and (vi) except as may be
otherwise specifically restricted by the terms hereof or of any other Loan Document, exercise all remedies given to the
Administrative Agent or the Lenders with respect to the Collateral under the Loan Documents relating thereto, applicable law or
otherwise.
(b) Release of Collateral.
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(i) The Administrative Agent and the Lenders hereby direct the Administrative Agent and Collateral Agent to release, in
accordance with the terms hereof, any Lien held by the Administrative Agent or Collateral Agent, under the Security Documents:
(A) against all of the Collateral, promptly upon termination of this Agreement as provided in Section 12.16;
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(B) against any part of the Collateral sold or disposed of by Company or any of its Subsidiaries to the extent such sale or
disposition is permitted hereby (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited hereby);
(C) against any Collateral acquired by Company or any of its Subsidiaries after the Initial Borrowing Date financed with
Indebtedness secured by a Lien permitted by Section 8.1(d);
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(D) so long as no Event of Default or Unmatured Event of Default has occurred and is continuing, in the sole discretion of the
Administrative Agent upon the request of Company, against any part of the Collateral with a fair market value of less than
$10,000,000 in the aggregate during the term of this Agreement as such fair market value may be certified to the Administrative Agent
by Company in an officer's certificate acceptable in form and substance to the Administrative Agent; and
(E) against a part of the Collateral which release does not require the consent of all of the Lenders as set forth in Section
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12.1(a)(ii), if such release is consented to by the Required Lenders;
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provided, however, that (y) Administrative Agent shall not be required to execute any such document on terms which, in its opinion,
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would expose it to liability or create any obligation or entail any consequence other than the release of such Liens without recourse
or warranty, and (z) such release shall not in any manner discharge, affect or impair the Obligations or any Liens upon (or
obligations of any Credit Party in respect of) all interests retained by Company and/or any of its Subsidiaries, including (without
limitation) the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(ii) Each of the Lenders hereby directs Administrative Agent to execute and deliver or file such termination and partial release
statements and such other things as are necessary to release Liens to be released pursuant to this Section 12.16 promptly upon the
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effectiveness of any such release or enter into intercreditor agreements contemplated or permitted herein.
(c) No Obligation. The Administrative Agent shall not have any obligation whatsoever to any Lender or to any other Person to
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assure that the Collateral exists or is owned by Company or any of its Subsidiaries or is cared for, protected or insured or has been
encumbered or that the Liens granted to the Administrative Agent herein or pursuant to the Loan Documents have been properly or
sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all
or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights,
authorities and powers granted or available to Administrative Agent in any of the Loan Documents, it being understood and agreed that
in respect of the Collateral, or any act, omission or event related thereto, Administrative Agent may act in any manner it may deem
appropriate, in its sole discretion, given the Administrative Agent's own interests in the Collateral as one of the Lenders and that
the Administrative Agent shall not have any duty or liability whatsoever to any Lender, provided, that, notwithstanding the
foregoing, the Administrative Agent shall be responsible for its grossly negligent actions or actions constituting intentional
misconduct.
1.112 Certain Provisions Regarding Pledge of Capital Stock of Netherlands Antilles Subsidiary.
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(a) Without prejudice to the provisions of this Agreement, and for the purpose of ensuring and preserving the validity and
continuity of the security rights granted and to be granted by Company under or pursuant to the Foreign Security Agreement governed
by Netherlands Antilles law, Company hereby irrevocably and unconditionally undertakes to pay to Collateral Agent amounts equal to
and in the currency of the Obligations from time to time due in accordance with and under the same terms and conditions as the
Obligations under this Agreement (such payment undertakings and the obligations and liabilities which are the result thereof
hereinafter referred to as the "Parallel Debt").
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(b) Company and the Collateral Agent acknowledge that (i) for this purpose, the Parallel Debt constitutes undertakings,
obligations and liabilities of Company to the Collateral Agent which are separate and independent from, and without prejudice to, the
corresponding Obligations which Company has to any of the Lenders and (ii) that the Parallel Debt represents the Collateral Agent's
own claims (vorderingen op naam) to receive payment of the Parallel Debt, provided that the total amount of the Parallel Debt shall
never exceed the total amount of the Obligations.
(c) Every payment of monies made by Company to the Collateral Agent shall (conditionally upon such payment not subsequently
being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, liquidation or similar laws of
general application) be in satisfaction pro tanto of the covenant by Company contained in Clause (i), provided that, if any such
payment as is mentioned above is subsequently avoided or reduced by virtue of any provisions or enactments relating to bankruptcy,
insolvency, liquidation or similar laws of general application, the Collateral Agent shall be entitled to receive a corresponding
amount as Parallel Debt under Clause (i) from Company and Company shall remain liable to satisfy such Parallel Debt and such Parallel
Debt shall be deemed not to have been discharged.
(d) Subject to the provision in (i), but notwithstanding any of the other provisions of this Clause:
(i) the total amount due and payable as Parallel Debt under this Clause shall be decreased to the extent Company shall have paid
any amounts to the Lenders or any of them to reduce the outstanding Obligations or any of the Lenders otherwise receives any amount
in payment of the Obligations; and
(ii) to the extent that Company shall have paid any amounts to the Collateral Agent under the Parallel Debt or the Collateral
Agent otherwise shall have received monies in payment of the Parallel Debt, the total amount due and payable under the Obligations
shall be decreased as if said amounts were received directly in payment of the Obligations.
(e) For the avoidance of doubt, in the event that Company is in default in respect of the Obligations as set forth in this
Agreement, Company shall, at the same time, be deemed in default in respect of its obligations under the Parallel Debt.
13.
HOLDINGS GUARANTY
1.113 The Guaranty. In order to induce the Lenders to enter into this Agreement and to extend credit hereunder and in recognition
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of the direct and indirect benefits to be received by Holdings from the proceeds of the Loans and the issuance of the Letters of
Credit, Holdings hereby agrees with the Lenders as follows: Holdings hereby unconditionally and irrevocably guarantees as primary
obligor and not merely as surety the full and prompt payment when due, whether upon maturity, acceleration or otherwise, of any and
all of the Guaranteed Obligations of each other Credit Party to the Guaranteed Creditors. If any or all of the Guaranteed
Obligations of any Credit Party to the Guaranteed Creditors becomes due and payable hereunder, Holdings unconditionally promises to
pay such Guaranteed Obligations or order, on demand, together with any and all expenses which may be incurred by the Administrative
Agent or the Lenders in collecting any of the Guaranteed Obligations. If claim is ever made upon any Guaranteed Creditor for
repayment or recovery of any amount or amounts received in payment or on account of any of the Guaranteed Obligations and any of the
aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body
having jurisdiction over such payee or any of its property or (ii) any settlement or compromise of any such claim effected by such
payee with any such claimant (including Company), then and in such event Holdings agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon Holdings, notwithstanding any revocation of this guaranty or other instrument
evidencing any liability of any Credit Party, and Holdings shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
1.114 Insolvency. Additionally, Holdings unconditionally and irrevocably guarantees the payment of any and all of the Guaranteed
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Obligations of Company to the Guaranteed Creditors whether or not due or payable by Company upon the occurrence of any of the events
specified in Sections 10.1(e) or (f), and unconditionally promises to pay such Guaranteed Obligations to the Guaranteed Creditors, or
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order, on demand, in lawful money of the United States.
1.115 Nature of Liability. The liability of Holdings hereunder is exclusive and independent of any security for or other guaranty
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of the Guaranteed Obligations of Company whether executed by Holdings, any other guarantor or by any other party, and the liability
of Holdings hereunder is not affected or impaired by (a) any direction as to application of payment by Company or by any other party;
or (b) any other continuing or other guaranty, undertaking or maximum liability of a guarantor or of any other party as to the
Guaranteed Obligations of Company; or (c) any payment on or in reduction of any such other guaranty or undertaking; or (d) any
dissolution, termination or increase, decrease or change in personnel by Company; or (e) any payment made to any Guaranteed Creditor
on the Guaranteed Obligations which any such Guaranteed Creditor repays to Company pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding in any jurisdiction, and Holdings waives any right to the
deferral or modification of its obligations hereunder by reason of any such proceeding.
1.116 Independent Obligation. The obligations of Holdings hereunder are independent of the obligations of any other guarantor,
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any other party or Company, and a separate action or actions may be brought and prosecuted against Holdings whether or not action is
brought against any other guarantor, any other party or Company and whether or not any other guarantor, any other party or Company be
joined in any such action or actions. Holdings waives, to the full extent permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof. Any payment by Company or other circumstance which operates to toll
any statute of limitations as to Company shall operate to toll the statute of limitations as to any guarantor.
1.117 Authorization. Any Guaranteed Creditor may (to the fullest extent permitted by applicable law) at any time and from time to
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time in accordance with the applicable provisions of the Credit Agreement without the consent of, or notice to, Holdings, without
incurring responsibility to Holdings and without impairing or releasing the obligations of Holdings under this Article XIII, upon or
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without any terms or conditions and in whole or in part:
(a) change the manner, place or terms of payment of, and/or change or extend the time of payment of, renew, increase, accelerate
or alter, any of the Guaranteed Obligations (including any increase or decrease in the rate of interest thereon), any security
therefor, or any liability incurred directly or indirectly in respect thereof, and the guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed Obligations and sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by whomsoever at any time pledged or mortgaged to secure, or
howsoever securing, the Guaranteed Obligations or any liabilities (including any of those hereunder) incurred directly or indirectly
in respect thereof or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against Company or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, Company or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof
to the payment of any liability (whether due or not) of Company to its creditors other than the Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to any liability or liabilities of Company to the Guaranteed
Creditors regardless of what liability or liabilities of Holdings or Company remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default under, this Agreement or any of the instruments or
agreements referred to herein; and/or
(h) take any other action which would, under otherwise applicable principles of common law, give rise to a legal or equitable
discharge of Holdings from its liabilities under this Article XIII.
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1.118 Reliance. It is not necessary for any Guaranteed Creditor to inquire into the capacity or powers of Company or the
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officers, directors, partners or agents acting or purporting to act on their behalf, and any Guaranteed Obligations made or created
in reliance upon the professed exercise of such powers shall be guaranteed hereunder.
1.119 Subordination. Any of the indebtedness of Company now or hereafter owing to Holdings is hereby subordinated to the
-------------
Guaranteed Obligations of Company owing to the Guaranteed Creditors; and if the Administrative Agent so requests at a time when an
Event of Default shall have occurred and is continuing, all such indebtedness relating to the Guaranteed Obligations of Company to
Holdings shall be collected, enforced and received by Holdings for the benefit of the Guaranteed Creditors and be paid over to the
Administrative Agent on behalf of the Guaranteed Creditors on account of the Guaranteed Obligations of Company to the Guaranteed
Creditors, but without affecting or impairing in any manner the liability of Holdings under the other provisions of this Article
--------
XIII. Prior to the transfer by Holdings of any note or negotiable instrument evidencing any of the indebtedness relating to the
Guaranteed Obligations of Company to Holdings, Holdings shall xxxx such note or negotiable instrument with a legend that the same is
subject to this subordination. Without limiting the generality of the foregoing, Holdings hereby agrees with the Guaranteed
Creditors that it will not exercise any right of subrogation which it may at any time otherwise have as a result of this guaranty
(whether contractual, under Section 509 of the Bankruptcy Code or otherwise) until all Guaranteed Obligations have been irrevocably
paid in full in cash and all Commitments have been terminated.
1.120 Waiver.
------
(a) Holdings waives any right (except as shall be required by applicable statute and cannot be waived) to require any Guaranteed
Creditor to (i) proceed against Company, any other guarantor or any other party, (ii) proceed against or exhaust any security held
from Company, any other guarantor or any other party or (iii) pursue any other remedy in any Guaranteed Creditor's power whatsoever.
Holdings waives to the fullest extent permitted by law any defense based on or arising out of any defense of Company, any other
guarantor or any other party, other than payment in full of the Guaranteed Obligations, based on or arising out of the disability of
Company, any other guarantor or any other party, or the validity, legality or unenforceability of the Guaranteed Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of Company other than payment in full of the Guaranteed
Obligations. The Guaranteed Creditors may, at their election, foreclose on any security held by Administrative Agent, or any other
Guaranteed Creditor by one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable (to the extent such sale is permitted by applicable law), or exercise any other right or remedy the Guaranteed Creditors
may have against Company or any other party, or any security, without affecting or impairing in any way the liability of Holdings
hereunder except to the extent the Guaranteed Obligations have been paid. Holdings waives any defense arising out of any such
election by the Guaranteed Creditors, even though such election operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of Holdings against Company or any other party or any security.
(b) Holdings waives all presentments, demands for performance, protests and notices, including without limitation notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance of this guaranty, and notices of the existence,
creation or incurring of new or additional Guaranteed Obligations. Holdings assumes all responsibility for being and keeping itself
informed of Company's financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations and the nature, scope and extent of the risks which Holdings assumes and incurs hereunder, and agrees that the
Administrative Agent and the Lenders shall have no duty to advise Holdings of information known to them regarding such circumstances
or risks.
1.121 Nature of Liability. It is the desire and intent of Holdings and the Lenders that this Article XIII shall be enforced
-------------------- -------------
against Holdings to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which
enforcement is sought. If, however, and to the extent that, the obligations of Holdings under this Article XIII shall be adjudicated
------------
to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating
to fraudulent conveyances or transfers), then the amount of the Guaranteed Obligations of Holdings shall be deemed to be reduced and
Holdings shall pay the maximum amount of the Guaranteed Obligations which would be permissible under applicable law.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers
thereunto duly authorized, as of the date first above written.
U.S. CAN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------------------------------
Title: Chief Financial Officer and Sr. Vice President
-------------------------------------------------------
UNITED STATES CAN COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------------------------------
Title: Chief Financial Officer and Sr. Vice President
-------------------------------------------------------
DEUTSCHE BANK TRUST COMPANY AMERICAS, in its individual capacity and as
Administrative Agent
By: /s/ Xxxxx XxXxxxx
----------------------------------------------------------
Name: Xxxxx XxXxxxx
--------------------------------------------------------
Title: Director
-------------------------------------------------------
By: /s/ Xxxxxxxxxx Xxxxxx
----------------------------------------------------------
Name: Xxxxxxxxxx Xxxxxx
--------------------------------------------------------
Title: Vice President
-------------------------------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------------------
Name: Xxxxx X. Xxxxx
--------------------------------------------------------
Title: First Vice President
-------------------------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxxx
---------------------------------------------------------
Name: Xxxxx Xxxxxxx
--------------------------------------------------------
Title: Duly Authorized Signatory
-------------------------------------------------------
XXXXXXX XXXXX CAPITAL, a division of Xxxxxxx Xxxxx Business Financial Services
Inc.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
--------------------------------------------------------
Title: Vice President
-------------------------------------------------------
Exhibit 2.1(c)
FORM OF
SWING LINE LOAN PARTICIPATION CERTIFICATE
---------------, -----
[Name of Lender]
======================
----------------------
Dear Sir or Madam:
Pursuant to Section 2.1(c)(iii) of the Credit Agreement dated as of June ___, 2004 among U.S. Can Corporation, a
--------------------
Delaware corporation, United States Can Company, a Delaware corporation, the financial institutions from time to time party thereto
and Deutsche Bank Trust Company Americas, as administrative agent, the undersigned hereby acknowledges receipt from you of
$__________ as payment for a participating interest in the following Swing Line Loan:
Date of Swing Line Loan: ___________________
Principal Amount of Swing Line Loan: $___________________________
Very truly yours,
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:___________________________________
Name:_________________________________
Title:__________________________________
Exhibit 2.2(a)(1)
FORM OF
TERM NOTE
________________ New York, New York
--------------, -----
FOR VALUE RECEIVED, the undersigned, United States Can Company, a Delaware corporation ("Company"), hereby
-------
unconditionally promises to pay to the order of ____________________ (the "Lender") at the office of Deutsche Bank Trust Company
------
Americas located at 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000, in Dollars and in immediately available funds on the
Term [B] Maturity Date (as defined in the Credit Agreement referred to below) the principal sum of _______________ (_____________)
or, if less, the then unpaid principal amount of all Term [B] Loans (as defined in the Credit Agreement) made by the Lender to
Company pursuant to Section 2.1(a) of the Credit Agreement, payable at such times and in such amounts as are specified in the Credit
--------------
Agreement. Company further agrees to pay interest in like money at such office on the unpaid principal amount hereof from time to
time outstanding at the applicable interest rate per annum determined as provided in, and payable as specified in, Articles III and
------------
IV of the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement dated as of June ___, 2004 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement") among Company, U.S. Can Corporation, a Delaware
-----------------
corporation, the financial institutions from time to time party thereto and Deutsche Bank Trust Company Americas, as administrative
agent, and is entitled to the benefits thereof and of the other Loan Documents (as defined in the Credit Agreement). As provided in
the Credit Agreement, this Note is subject to optional and mandatory prepayment prior to the Term Maturity Date, in whole or in
part. Terms defined in the Credit Agreement are used herein with their defined meanings unless otherwise defined herein.
Upon the occurrence of any one or more of the Events of Default specified in the Credit Agreement, all amounts then
remaining unpaid on this Note may become, or may be declared to be, immediately due and payable, all as provided therein.
All parties now and hereafter liable with respect to this Note, whether maker, principal, surety, guarantor,
endorser or otherwise, hereby waive presentment, demand, protest and all other notices of any kind.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL
BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF SAID STATE, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAWS RULES.
(A) UNITED STATES CAN COMPANY
By:__________________________
Name:________________________
Title:_________________________
Exhibit 2.2(a)(2)
FORM OF
REVOLVING NOTE
________________ New York, New York
--------------, -----
FOR VALUE RECEIVED, the undersigned, United States Can Company, a Delaware corporation ("Company"), hereby
-------
unconditionally promises to pay to the order of ____________________ (the "Lender") at the office of Deutsche Bank Trust Company
------
Americas located at 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000, in Dollars and in immediately available funds on the
Revolver Termination Date (as defined in the Credit Agreement referred to below) the principal sum of _______________ (_____________)
or, if less, the then unpaid principal amount of all Revolving Loans (as defined in the Credit Agreement) made by the Lender to
Company pursuant to Section 2.1(b) of the Credit Agreement, payable at such times and in such amounts as are specified in the Credit
--------------
Agreement. Company further agrees to pay interest in like money at such office on the unpaid principal amount hereof from time to
time outstanding at the applicable interest rate per annum determined as provided in, and payable as specified in, Articles III and
------------
IV of the Credit Agreement.
This Revolving Note is one of the Notes referred to in the Credit Agreement dated as of June ___, 2004 (as amended,
restated, supplemented or otherwise modified from time to time, the "Credit Agreement") among Company, U.S. Can Corporation, a
-----------------
Delaware corporation, the financial institutions from time to time party thereto and Deutsche Bank Trust Company Americas, as
administrative agent, and is entitled to the benefits thereof and of the other Loan Documents (as defined in the Credit Agreement).
As provided in the Credit Agreement, this Note is subject to optional and mandatory prepayment prior to the Revolver Termination
Date, in whole or in part. Terms defined in the Credit Agreement are used herein with their defined meanings unless otherwise
defined herein.
Upon the occurrence of any one or more of the Events of Default specified in the Credit Agreement, all amounts then
remaining unpaid on this Note may become, or may be declared to be, immediately due and payable, all as provided therein.
All parties now and hereafter liable with respect to this Note, whether maker, principal, surety, guarantor,
endorser or otherwise, hereby waive presentment, demand, protest and all other notices of any kind.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL
BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF SAID STATE, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAWS RULES.
(B) UNITED STATES CAN COMPANY
By:__________________________
Name:________________________
Title:_________________________
Exhibit 2.5
FORM OF
NOTICE OF BORROWING1
-
Date:
--------------------------
Deutsche Bank Trust Company Americas,
as [Administrative Agent][Swing Line Lender]
00 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention:
---------------------
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June ___, 2004 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement") by and among U.S. Can Corporation, a Delaware corporation, United
-----------------
States Can Company, a Delaware corporation, the financial institutions from time to time party thereto and Deutsche Bank Trust
Company Americas, as administrative agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings
set forth in the Credit Agreement. The undersigned hereby gives notice pursuant to Section 2.5 of the Credit Agreement of their
-----------
request for the Lenders to make a Loan as follows.
1. Amount to be Borrowed2 ______________.
-
2. The Business Date of the Borrowing is __________________ (the "Borrowing Date").
--------------
3. Specify type of Loan or combination thereof 3:
-
4. If Borrowing is to include Eurocurrency Loans indicate:
Eurocurrency Loan
-----------------
Initial Interest Period4
- ---------------------------
The undersigned hereby certifies on behalf of the Credit Parties and not in his individual capacity that the following
statements are true on the date hereof, and will be true on the Borrowing Date:
(A) the representation and warranties contained in the Credit Agreement and the other Loan Documents are and will be
true and correct in all material respects, at and as of such time, as though made on and as of such time, except to the extent
such representations and warranties are expressly made as of a specified date, in which event such representations and warranties
shall be true and correct in all material respects as of such specified date; and
(B) no Unmatured Event of Default or Event of Default has occurred and is continuing, or would occur after giving effect
to such Credit Event.
Very truly yours,
UNITED STATES CAN COMPANY
By:__________________________
Name:________________________
Title:_________________________
Exhibit 2.6
FORM OF
NOTICE OF CONVERSION OR CONTINUATION5
-
Deutsche Bank Trust Company Americas, Date:
-
as Administrative Agent
00 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention:
--------------------------------
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of June ___, 2004 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement") among U.S. Can Corporation, a Delaware corporation, United States Can
-----------------
Company, a Delaware corporation, the financial institutions from time to time party thereto and Deutsche Bank Trust Company Americas,
as administrative agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the
Credit Agreement. The undersigned hereby gives notice pursuant to Section 2.6 of the Credit Agreement that they (a) elect to convert
-----------
Base Rate Loans or any portion thereof into Eurocurrency Loans or (b) elect to convert Eurocurrency Loans or any portion thereof into
Base Rate Loans or to continue such Eurocurrency Loans under the Credit Agreement and in that connection sets forth below the terms
on which such conversion or continuation is requested to be made:
1. Date of conversion or continuation (which date is a
Business Day and, if a conversion from or continuation
of Eurocurrency Loans, which date is the last day of the
Interest Period therefor): __________________
2. Aggregate Amount of Eurocurrency Loans
or Base Rate Loans to be converted or continued6: __________________
-
3. Type of the proposed Conversion or Continuation: __________________
4. Interest Period (in the case of a conversion to or
a continuation of Eurocurrency Loans)7: __________________
-
5. Such conversion or continuation is made with respect
to [Term B Loans] [Revolving Loans]
[Swing Line Loans]:
------------------
Very truly yours,
UNITED STATES CAN COMPANY
By:__________________________
Name:________________________
Title:_________________________
Exhibit 2.8(c)
FORM OF
LETTER OF CREDIT REQUEST
Deutsche Bank Trust Company Americas, Date: ___________8
-
as Administrative Agent
00 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention:
________________________9, as Facing Agent
-
-----------------
------------, ---------- --------
Attention:
Ladies and Gentlemen:
The undersigned, United States Can Company, a Delaware corporation ("Company"), refers to the credit agreement dated
-------
as of June ___, 2004 (as amended, restated, supplemented or otherwise modified from time to time, the "Credit Agreement") among U.S.
-----------------
Can Corporation, a Delaware corporation, Company, the financial institutions from time to time party thereto and Deutsche Bank Trust
Company Americas, as administrative agent. For purposes of this Letter of Credit Request, unless otherwise defined herein, all
capitalized terms used herein shall have the respective meanings provided in the Credit Agreement.
The undersigned hereby requests that the Facing Agent issue a [ ] Standby [ ] Commercial Letter of Credit on
__________ ___, ____ (the "Date of Issuance") in the aggregate Stated Amount of ____________.10
---------------- --
The beneficiary of the requested Letter of Credit will be _______________11 and the Letter of Credit will have a
--
stated expiration date of ______________________.12 The Letter of Credit supports .13
-- -------------------------------- --
The undersigned hereby certifies on behalf of the Company and not in his individual capacity that the following
statements are true and correct on the date hereof, and will be true and correct on the date of issuance:
(A) the representations and warranties contained in the Credit Agreement or the other Loan Documents are and
will be true and correct in all material respects, at and as of such time, as though made on the date of issuance, except to
the extent such representations and warranties are expressly made as of a specified date in which event such representations
and warranties shall be true and correct in all material respects as of such specified date; and
(B) no Unmatured Event of Default or Event of Default has occurred and is continuing, or would result after
giving effect to such Credit Event.
A statement of the purpose of the requested Letter of Credit and copies of all documentation which the Facing Agent
has reasonably requested with respect to the supported transaction are attached hereto.
UNITED STATES CAN COMPANY
By:__________________________
Name:________________________
Title:_________________________
Exhibit 4.7(d)
FORM OF
SECTION 4.7(d)(i) CERTIFICATE
-----------------------------
Reference is hereby made to the Credit Agreement dated as of June ___, 2004 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement") among U.S. Can Corporation, a Delaware corporation, United States Can
-----------------
Company, a Delaware corporation, the financial institutions from time to time party thereto and Deutsche Bank Trust Company Americas,
as administrative agent. Capitalized terms used herein and not otherwise defined herein shall have the meaning set forth in the
Credit Agreement. Pursuant to the provisions of Section 4.7(d)(i) of the Credit Agreement, the undersigned (the "Undersigned")
------------------ -----------
hereby certifies that:
1. The Undersigned is not a "bank" for purposes of Section 881(c)(3)(A) of the Internal Revenue Code of 1986,
as amended (the "Code").
----
2. The Undersigned is not subject to regulatory or other legal requirements as a "bank" in any jurisdiction
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.
3. The Undersigned meets all of the requirements under Code Section 871(h) or 881(c) to be eligible for a
complete exemption from withholding of United States Taxes on interest payments made to it under the Credit Agreement.
4. The Undersigned shall promptly notify the Company and the Administrative Agent if any of the
representations and warranties made herein are no longer true and correct.
[NAME OF LENDER]
By:_________________________________
Title: _______________________________
Date: ________________________, ______
Note: The Undersigned is also to deliver two (or more as reasonably requested by Company or Administrative Agent) accurate and
properly completed original signed copies of IRS Form W-8BEN (or successor forms) certifying to the Undersigned's complete exemption
from United States withholding tax with respect to payments to be made under the Credit Agreement and under any Note.
- 170 -
Exhibit 5.1(a)(ii)
SUBSIDIARY GUARANTY
THIS SUBSIDIARY GUARANTY, dated as of June 21, 2004 (as amended, restated, supplemented or otherwise modified from
time to time, this "Guaranty"), is made by each of the undersigned (each, a "Guarantor" and, together with any other entity that
-------- ---------
becomes a party hereto pursuant to Section 25 hereof, collectively, the "Guarantors"). Except as otherwise defined herein, terms
---------- ----------
used herein and defined in the Credit Agreement (as defined below) shall be used herein as therein defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, U.S. Can Corporation, a Delaware corporation ("Holdings"), United States Can Company, a Delaware
--------
corporation ("Company"), the financial institutions from time to time party thereto (collectively, the "Lenders" and each
------- -------
individually a "Lender") and Deutsche Bank Trust Company Americas, as administrative agent ("Administrative Agent") for the Lenders,
------ ---------------------
are contemporaneously entering into a credit agreement, dated as of the date hereof, providing for the making of Loans and the
issuance of, and participation in, Letters of Credit as contemplated therein (as used herein, the term "Credit Agreement" means the
-----------------
Credit Agreement described above in this paragraph, as the same may be amended, modified, extended, renewed, replaced, restated or
supplemented from time to time, and including any agreement extending the maturity of, or restructuring all or any portion of the
Indebtedness under such agreement or any successor agreements) (the Lenders, the Administrative Agent and the Collateral Agent are
herein called the "Bank Creditors");
--------------
WHEREAS, each Guarantor may at any time and from time to time enter into, or guarantee, one or more (A) interest
rate protection agreements (including, without limitation, interest rate swaps, caps, floors, collars and similar agreements) and/or
(B) foreign exchange contracts, currency swap agreements or other similar agreements or arrangements designed to protect against the
fluctuations in currency values (collectively, the "Hedging Agreements"), in each case, with a Lender or Lenders or any Affiliate of
-------------------
such Lender or Lenders (even if the respective Lender subsequently ceases to be a Lender under the Credit Agreement) (collectively,
the "Other Creditors", and together with the Bank Creditors, the "Guaranteed Creditors");
--------------- --------------------
WHEREAS, each Guarantor is a Domestic Subsidiary of Company;
WHEREAS, it is a condition to the making of Loans under the Credit Agreement that each Guarantor shall have executed
and delivered this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the incurrence of Loans by the Credit Parties under the Credit
Agreement and the entering into of Interest Rate Agreements or Hedging Agreements and, accordingly, desires to execute this Guaranty
in order to satisfy the conditions described in the preceding paragraph and to induce the Lenders to make Loans to the Credit Parties
and Other Creditors and to enter into Interest Rate Agreements or Hedging Agreements with the Credit Parties and/or their
Subsidiaries;
NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to each Guarantor, the receipt and
sufficiency of which are hereby acknowledged, each Guarantor hereby makes the following representations and warranties to the
Guaranteed Creditors and hereby covenants and agrees with each Guaranteed Creditor as follows:
1. Each Guarantor hereby unconditionally and irrevocably guarantees as primary obligor and not merely as
surety (i) to the Bank Creditors the full and prompt payment when due (whether at stated maturity, by acceleration or otherwise) of
the principal and interest (whether such interest is allowed as a claim in a bankruptcy proceeding with respect to Company or
otherwise) on each Note issued by Company to each Lender, and all Loans made under the Credit Agreement and all reimbursement
obligations and Unpaid Drawings with respect to Letters of Credit, together with all other obligations (including obligations which,
but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and liabilities (including, without
limitation, indemnities, fees and interest thereon) of Company to the Bank Creditors now existing or hereafter incurred under,
arising out of or in connection with the Credit Agreement or any other Loan Documents and the due performance and compliance with all
terms, conditions and agreements contained in the Loan Documents by Company, (all such principal, interest, liabilities and
obligations under this clause (i), except to the extent consisting of obligations or liabilities with respect to Hedging Agreements,
being herein collectively called the "Loan Document Obligations") and (ii) to each Other Creditor the full and prompt payment when
---------------------------
due (whether at the stated maturity, by acceleration or otherwise) of all obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and liabilities owing by each Borrower now existing or
hereafter incurred under, arising out of or in connection with any Hedging Agreement, whether such Hedging Agreement is now in
existence or hereafter arising, and the due performance and compliance by each Credit Party with all of the terms, conditions and
agreements contained therein (all such obligations and liabilities being herein collectively called the "Other Obligations", and
------------------
together with the Loan Document Obligations are herein collectively called the "Guaranteed Obligations"), provided that the maximum
----------------------- --------
amount payable by each Guarantor hereunder shall at no time exceed the Maximum Amount (as hereinafter defined) of such Guarantor. As
used herein, "Maximum Amount" of any Guarantor means the lesser of the amount of the Guaranteed Obligations and the highest amount of
--------------
aggregate liability under this Guaranty which is valid and enforceable as determined in any action or proceeding involving any state,
federal or foreign bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer or other law affecting the rights of creditors
generally. Subject to the proviso in the second preceding sentence, each Guarantor understands, agrees and confirms that the
Guaranteed Creditors may enforce this Guaranty up to the full amount of the Guaranteed Obligations against each Guarantor without
proceeding against any other Guarantor or Company, or against any security or collateral for the Guaranteed Obligations, or under any
other guaranty covering all or a portion of the Guaranteed Obligations. All payments by each Guarantor under this Guaranty shall be
made on the same basis, and subject to the same limitations, as payments by Company are made under Sections 4.6 and 4.7 of the Credit
------------ ---
Agreement. If any or all of the Guaranteed Obligations of any Credit Party to the Guaranteed Creditors becomes due and payable
hereunder, each Guarantor unconditionally promises to pay such Guaranteed Obligations or order, on demand, together with any and all
expenses which may be incurred by the Administrative Agent or the Lenders in collecting any of the Guaranteed Obligations. If claim
is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts received in payment or on account of any
of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree
or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant (including Company), then and in such event each Guarantor
agrees that any such judgment, decree, order, settlement or compromise shall be binding upon each Guarantor, notwithstanding any
revocation of this guaranty or other instrument evidencing any liability of any Credit Party, and each Guarantor shall be and remain
liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
2. Additionally, each Guarantor, jointly and severally, unconditionally and irrevocably, guarantees the
payment of any and all Guaranteed Obligations of each Credit Party to the Guaranteed Creditors whether or not due or payable by any
Credit Party upon the occurrence of any of the events specified in Sections 10.1(e) or (f) of the Credit Agreement with respect to
----------------- ---
such Credit Party, and unconditionally, jointly and severally, promises to pay such Guaranteed Obligations of such Credit Party to
the Guaranteed Creditors, or order, on demand, in lawful money of the United States.
3. The liability of each Guarantor hereunder is exclusive and independent of any security or collateral for or
other guaranty of the Guaranteed Obligations of any Credit Party whether executed by such Guarantor, any other Guarantor, any other
guarantor or by any other party, and the liability of each Guarantor hereunder shall not be affected or impaired by (i) any direction
as to application of payment by any Credit Party or by any other party, (ii) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Guaranteed Obligations of any Credit Party, (iii) any payment on or
in reduction of any such other guaranty or undertaking, (iv) any dissolution, termination or increase, decrease or change in
personnel by any Credit Party or (v) any payment made to any Guaranteed Creditor on the Guaranteed Obligations which any Guaranteed
Creditor repays any Credit Party pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding in any jurisdiction.
4. The obligations of each Guarantor hereunder are independent of the obligations of any other Guarantor, any
other guarantor or any Credit Party, and a separate action or actions may be brought and prosecuted against each Guarantor whether or
not action is brought against any other Guarantor, any other guarantor or any Credit Party and whether or not any other Guarantor,
any other guarantor of any Credit Party or any Credit Party be joined in any such action or actions. Each Guarantor waives, to the
fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement
thereof. Any payment by any Credit Party or other circumstance which operates to toll any statute of limitations as to any Credit
Party shall operate to toll the statute of limitations as to each Guarantor.
5. Each Guarantor hereby waives (to the fullest extent permitted by applicable law) notice of acceptance of
this Guaranty and notice of any liability to which it may apply, and waives promptness, diligence, presentment, demand of payment,
protest, notice of dishonor or nonpayment of any such liabilities, suit or taking of other action by the Administrative Agent or any
other Guaranteed Creditor against, and any other notice to, any party liable thereon (including such Guarantor or any other guarantor
or any Credit Party).
6. Any Guaranteed Creditor may (to the fullest extent permitted by applicable law) at any time and from time
to time in accordance with the applicable provisions of the Credit Agreement without the consent of, or notice to, Guarantor, without
incurring responsibility to such Guarantor and without impairing or releasing the obligations of such Guarantor hereunder, upon or
without any terms or conditions and in whole or in part:
(a) change the manner, place or terms of payment of, and/or change or extend the time of payment of, renew,
increase, accelerate or alter, any of the Guaranteed Obligations, any security or collateral therefor, or any liability
incurred directly or indirectly in respect thereof (other than any agreement between any Guaranteed Creditor and one or more
Guarantors specifically modifying or amending the terms of this Guaranty), and the guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended, renewed or altered;
(b) sell, exchange, release, surrender, realize upon or otherwise deal with in any manner and in any order any
property by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the Guaranteed Obligations or any
liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any
offset there against;
(c) exercise or refrain from exercising any rights against any Credit Party or others or otherwise act or
refrain from acting;
(d) settle or compromise any of the Guaranteed Obligations, any security therefor or any liability (including
any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all
or any part thereof to the payment of any liability (whether due or not) of any Credit Party to creditors of any Credit
Party;
(e) apply any sums by whomsoever paid or howsoever realized to any liability or liabilities of any Credit Party
to the Guaranteed Creditors regardless of what liabilities of any Credit Party remain unpaid;
(f) consent to or waive any breach of, or any act, omission or default under, any of the Hedging Agreements,
the Loan Documents or any of the instruments or agreements referred to therein, or otherwise amend, modify or supplement any
of the Hedging Agreements, the Loan Documents (other than this Guaranty) or any of such other instruments or agreements;
and/or
(g) act or fail to act in any manner referred to in this Guaranty which may deprive such Guarantor of its right
to subrogation against any Credit Party to recover full indemnity for any payments made pursuant to this Guaranty.
7. No invalidity, irregularity or unenforceability of all or any part of the Guaranteed Obligations or of any security
therefor shall affect, impair or be a defense to this Guaranty, and this Guaranty shall be primary, absolute and unconditional
notwithstanding the occurrence of any event or the existence of any other circumstances which might constitute a legal or equitable
discharge of a surety or guarantor except payment in full of the Guaranteed Obligations.
8. This Guaranty is a continuing one and all liabilities to which it applies or may apply under the terms hereof shall
be conclusively presumed to have been created in reliance hereon. No failure or delay on the part of any Guaranteed Creditor in
exercising any right, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein expressly specified are cumulative and not exclusive of any rights or remedies which any
Guaranteed Creditor would otherwise have. No notice to or demand on any Guarantor in any case shall entitle such Guarantor to any
other further notice or demand in similar or other circumstances or constitute a waiver of the rights of any Guaranteed Creditor to
any other or further action in any circumstances without notice or demand. It is not necessary for any Guaranteed Creditor to
inquire into the capacity or powers of any Credit Party or any of its Subsidiaries or the officers, directors, partners or agents
acting or purporting to act on its behalf, and any indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
9. Any indebtedness of any Credit Party now or hereafter held by any Guarantor is hereby subordinated to the
indebtedness of each Credit Party to the Guaranteed Creditors; and such indebtedness of any Credit Party to any Guarantor, if the
Administrative Agent, after an Event of Default has occurred and is continuing, so requests, shall be collected, enforced and
received by such Guarantor as trustee for the Guaranteed Creditors and be paid over to the Guaranteed Creditors on account of the
indebtedness of any Credit Party to the Guaranteed Creditors, but without affecting or impairing in any manner the liability of such
Guarantor under the other provisions of this Guaranty. Notwithstanding the foregoing, so long as (i) no Event of Default has
occurred and is continuing and (ii) the applicable Credit Party has not received the request from the Administrative Agent referred
to in the previous sentence, a Credit Party may pay, and a Guarantor may accept and retain for itself (without any obligation to pay
over to the Guaranteed Creditors), any and all payments on account of any indebtedness of such Credit Party now or hereafter to a
Guarantor. Without limiting the generality of the foregoing, each Guarantor hereby agrees with the Guaranteed Creditors that it will
not exercise any right of subrogation which it may at any time otherwise have as a result of this Guaranty (whether contractual,
under Section 509 of the Bankruptcy Code or otherwise) until all Guaranteed Obligations have been irrevocably paid in full in cash
and all Commitments and other obligations under the Credit Agreement have been terminated (other than indemnity and other contingent
obligations which expressly survive termination and for which no claim has been asserted).
10. (a) Each Guarantor waives (to the fullest extent permitted by applicable law) any right to require the Guaranteed
Creditors to: (i) proceed against any Credit Party, any other Guarantor, any other guarantor of any Credit Party or any other party;
(ii) proceed against or exhaust any security or collateral held from any Credit Party, any other Guarantor, any other guarantor of
any Credit Party or any other party; or (iii) pursue any other remedy in the Guaranteed Creditors' power whatsoever. Each Guarantor
waives (to the fullest extent permitted by applicable law) any defense based on or arising out of any defense of any Credit Party,
any other Guarantor, any other guarantor of any Credit Party or any other party other than payment in full of the Guaranteed
Obligations, including, without limitation, any defense based on or arising out of the disability of any Credit Party, any other
Guarantor, any other guarantor of any Credit Party or any other party, or the unenforceability of the Guaranteed Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of any Credit Party other than payment in full of the
Guaranteed Obligations. The Guaranteed Creditors may, at their election, foreclose on any security or collateral held by the
Administrative Agent, the Collateral Agent or the other Guaranteed Creditors by one or more judicial or nonjudicial sales, (to the
extent such sale is permitted by applicable law), or exercise any other right or remedy the Guaranteed Creditors may have against any
Credit Party or any other party, or any security, without affecting or impairing in any way the liability of any Guarantor hereunder
except to the extent the Guaranteed Obligations have been irrevocably paid in full in cash and all Commitments and other obligations
under the Credit Agreement have been terminated (other than indemnity and other contingent obligations which expressly survive the
termination of the Credit Agreement with respect to which no claim has been asserted). Each Guarantor waives any defense arising out
of any such election by the Guaranteed Creditors, even though such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of such Guarantor against any Credit Party or any other party or any security.
(b) Each Guarantor waives all presentments, demands for performance, protests and notices, including, without
limitation, notices of nonperformance, notices of protest, notices of dishonor, notices of acceptance of this Guaranty, and notices
of the existence, creation or incurring of new or additional indebtedness. Each Guarantor assumes all responsibility for being and
keeping itself informed of each Credit Party's financial condition and assets, and of all other circumstances bearing upon the risk
of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks which such Guarantor assumes and incurs
hereunder, and agrees that the Guaranteed Creditors shall have no duty to advise any Guarantor of information known to them regarding
such circumstances or risks.
11. The Guaranteed Creditors agree that this Guaranty may be enforced only by the action of the Administrative Agent or
the Collateral Agent, in each case acting upon the instructions of the Required Lenders (or, after the date on which all Loan
Document Obligations have been irrevocably paid in full in cash and all obligations under the Credit Agreement have been terminated
(other than indemnity and other contingent obligations which survive the termination and for which no claim has been asserted), the
holders of at least a majority of the outstanding Other Obligations) and that no other Guaranteed Creditor shall have any right
individually to seek to enforce or to enforce this Guaranty or to realize upon the security to be granted by the Security Documents,
it being understood and agreed that such rights and remedies may be exercised by the Administrative Agent or the Collateral Agent or
the holders of at least a majority of the outstanding Other Obligations, as the case may be, for the benefit of the Guaranteed
Creditors upon the terms of this Guaranty and the Security Documents. The Guaranteed Creditors further agree that this Guaranty may
not be enforced against any director, officer, employee, or stockholder of any Guarantor (except to the extent such stockholder is
also a Guarantor hereunder).
12. In order to induce the Lenders to make Loans and issue Letters of Credit pursuant to the Credit Agreement, and in
order to induce the Other Creditors to execute, deliver and perform the Hedging Agreements, each Guarantor represents, warrants and
covenants that:
(a) Such Guarantor (i) is a duly organized and validly existing organization and is in good standing under the
laws of the jurisdiction of its organization, and has all necessary corporate or other organizational power and authority to
own its property and assets and to transact the business in which it is engaged and (ii) is duly qualified and is authorized
to do business and is in good standing in each jurisdiction where the conduct of its business requires such qualification
except for failures to be so qualified, authorized or in good standing which, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.
(b) Such Guarantor has all necessary power and authority to execute and deliver this Guaranty and to perform
its obligations hereunder and has taken all necessary action to authorize the execution, delivery and performance by it of
this Guaranty. Such Guarantor has duly executed and delivered this Guaranty and this Guaranty constitutes the legal, valid
and binding obligation of such Guarantor enforceable in accordance with its terms, except to the extent that the
enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or
at law).
(c) The execution and delivery by such Guarantor of this Guaranty and the performance of such Guarantor's
obligations hereunder do not (i) contravene any applicable provision of any Requirement of Law applicable to such Guarantor,
(ii) conflict with or result in any breach of, or constitute a default under, or result in the creation or imposition of (or
the obligation to create or impose) any Lien (other than pursuant to the Security Documents) upon any of the property or
assets of such Guarantor pursuant to the terms of any Contractual Obligation, except for such contraventions, conflicts,
breaches or defaults that could not reasonably be expected to have a Material Adverse Effect, (iii) violate any provision of
any Organizational Document of such Guarantor or (iv) require any approval of stockholders or any material approval or
consent of any Person (other than a Governmental Authority) except filings, consents, or notices which have been made,
obtained or given and except as set forth on Schedule 6.3 of the Credit Agreement.
------------
(d) Except for filings necessary to create or perfect security interests in the Collateral, no material order,
consent, approval, license, authorization or validation of, or filing, recording or registration with (except as have been
obtained or made prior to the date on which such Guarantor becomes party to this Guaranty), or exemption by, any
Governmental Authority is required to authorize, or is required in connection with, (i) the execution and delivery of this
Guaranty or the performance of the obligations hereunder or (ii) the legality, validity, binding effect or enforceability of
this Guaranty.
(e) There are no actions, suits or proceedings pending or, to the knowledge of such Guarantor, threatened (i)
against such Guarantor challenging the validity of any material provision of this Guaranty or (ii) that would reasonably be
expected to have a Material Adverse Effect.
13. Each Guarantor covenants and agrees that on and after the date hereof and until the termination of the
Total Commitment and when no Loan, Note or Letter of Credit remains outstanding (other than Letters of Credit, together with all fees
that have accrued and will accrue thereon through the stated termination date of such Letters of Credit, which have been supported in
a manner satisfactory to the issuer of the Letter of Credit in its sole and absolute discretion) and all Guaranteed Obligations owing
to the Bank Creditors have been irrevocably paid in full in cash (other than indemnities described in Section 12.4 of the Credit
------------
Agreement and analogous provisions in the Security Documents which are not then due and payable and which survive the termination of
the Credit Agreement and for which no claim has been made), such Guarantor shall take, or will refrain from taking, as the case may
be, all actions that are necessary to be taken or not taken so that no violation of any provision, covenant or agreement contained in
Articles VII or VIII of the Credit Agreement relating to such Guarantor or any of its Subsidiaries, and so that no Event of Default,
------------ ----
is caused by the actions of such Guarantor or any of its Subsidiaries.
14. The Guarantors hereby jointly and severally agree to pay all reasonable out-of-pocket costs and expenses of
each Guaranteed Creditor in connection with the enforcement of this Guaranty and any amendment, waiver or consent relating hereto
(including, without limitation, the reasonable fees and disbursements of counsel (including in-house counsel) employed by any of the
Guaranteed Creditors).
15. This Guaranty shall be binding upon each Guarantor and its successors and assigns and shall inure to the
benefit of the Guaranteed Creditors and their successors and assigns.
16. Neither this Guaranty nor any provision hereof may be changed, waived, discharged or terminated except with
the written consent of each Guarantor directly affected thereby and either (i) the Required Lenders (or to the extent required by
Section 12.1 of the Credit Agreement, with the written consent of each Lender) at all times prior to the time on which all Loan
-------------
Document Obligations have been irrevocably paid in full in cash or (ii) the holders of at least a majority of the outstanding Other
Obligations at all times after the time on which all Loan Document Obligations have been irrevocably paid in full in cash; provided,
--------
however, that any change, waiver, modification or variance affecting the rights and benefits of a single Class (as defined below) of
-------
Guaranteed Creditors (and not all Guaranteed Creditors in a like or similar manner) shall require the written consent of the
Requisite Guaranteed Creditors (as defined below) of such Class of Guaranteed Creditors (it being understood that the addition or
release of any Guarantor hereunder shall not constitute a change, waiver, discharge or termination affecting any Guarantor other than
the Guarantor so added or released). For the purpose of this Guaranty the term "Class" shall mean each class of Guaranteed
-----
Creditors, i.e., whether (A) the Guaranteed Creditors as holders of the Loan Document Obligations or (B) the Other Creditors as the
----
holders of the Other Obligations. For the purpose of this Guaranty, the term "Requisite Guaranteed Creditors" of any Class shall
--------------------------------
mean each of (i) with respect to the Loan Document Obligations, the Required Lenders and (ii) with respect to the Other Obligations,
the holders of at least a majority of all obligations outstanding from time to time under the Hedging Agreements.
17. Each Guarantor acknowledges that an executed (or conformed) copy of each of the Loan Documents and Hedging
Agreements in existence as of the date hereof has been made available to its principal executive officers and such officers are
familiar with the contents thereof.
18. In addition to any rights now or hereafter granted under applicable law (including, without limitation,
Section 151 of the New York Debtor and Creditor Law) and not by way of limitation of any such rights, upon the occurrence and during
the continuance of an Event of Default (such term to mean any "Event of Default" as defined in the Credit Agreement or any payment
default under any Hedging Agreement continuing after any applicable grace period), each Guaranteed Creditor is hereby authorized at
any time or from time to time, without notice to any Guarantor or to any other Person, any such notice being expressly waived, to set
off and to appropriate and apply any and all deposits (general or special) and any other indebtedness at any time held or owing by
such Guaranteed Creditor to or for the credit or the account of such Guarantor, against and on account of the obligations and
liabilities of such Guarantor to such Guaranteed Creditor under this Guaranty, irrespective of whether or not such Guaranteed
Creditor shall have made any demand hereunder.
19. All notices, requests, demands or other communications pursuant hereto shall be deemed to have been given
or made when delivered to the Person to which such notice, request, demand or other communication is required or permitted to be
given or made under this Guaranty, addressed to such party at (i) in the case of any Bank Creditor, as provided in the Credit
Agreement, (ii) in the case of any Guarantor, c/o United States Can Company as provided in the Credit Agreement and (iii) in the case
of any other Guaranteed Creditor, at such address as such other Guaranteed Creditor shall have specified in writing to the Guarantor;
or in any case at such other address as any of the Persons listed above may hereafter notify the others in writing.
20. If claim is ever made upon any Guaranteed Creditor for repayment or recovery of any amount or amounts
received in payment or on account of any of the Guaranteed Obligations and any of the aforesaid payees repays all or part of said
amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any
of its property or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including the
Credit Parties), then and in such event each Guarantor agrees that any such judgment, decree, order, settlement or compromise shall
be binding upon such Guarantor, notwithstanding any revocation hereof or other instrument evidencing any liability of any Credit
Party, and such Guarantor shall be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the
same extent as if such amount had never originally been received by any such payee.
21. (a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT MAY BE
BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN NEW YORK, NEW YORK OR COURTS OF THE UNITED STATES FOR THE SOUTHERN DISTRICT
OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS GUARANTY, EACH PARTY HERETO HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH PARTY HERETO FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY, AT THE ADDRESS PROVIDED FOR IN SECTION
--------
12.3 OF THE CREDIT AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF ADMINISTRATIVE AGENT UNDER THIS GUARANTY, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST EACH GUARANTOR IN ANY OTHER JURISDICTION.
(b) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT
BROUGHT IN THE COURTS REFERRED OF IN CLAUSE (A) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY
SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS GUARANTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN
ANY COURT OR JURISDICTION, INCLUDING WITHOUT LIMITATION THOSE REFERRED TO IN CLAUSE (A) ABOVE, IN RESPECT TO ANY MATTER ARISING OUT
OF OR RELATING TO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(d) THIS GUARANTY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF SAID STATE, INCLUDING SECTIONS S-1401 AND S-1402 OF
THE NEW YORK GENERAL OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAWS RULES.
22. In the event that all of the capital stock of one or more Guarantors is sold, transferred or otherwise
disposed of or liquidated in compliance with the requirements of clause (e) of Section 8.3 or Section 8.4 of the Credit Agreement (or
----------- -----------
such sale or other disposition or liquidation has been approved in writing by the Required Lenders (or all Lenders if required by
Section 12.1 of the Credit Agreement)) and the proceeds of such sale, disposition or liquidation are applied in accordance with the
------------
provisions of the Credit Agreement, to the extent applicable, such Guarantor shall automatically and without further action be
released from this Guaranty and this Guaranty shall, as to each such Guarantor or Guarantors, terminate, and have no further force or
effect (it being understood and agreed that the sale of one or more Persons that own, directly or indirectly, all of the capital
stock or partnership interests of any Guarantor shall be deemed to be a sale of such Guarantor for the purposes of this Section 22).
----------
23. This Guaranty may be executed in any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and
the same instrument. A set of counterparts executed by all the parties hereto shall be lodged with the Credit Parties and the
Administrative Agent.
24. All payments made by any Guarantor hereunder will be made without setoff, counterclaim or other defense.
25. It is understood and agreed that any Subsidiary of Company that is required to become a party to this
Guaranty after the Closing Date pursuant to Sections 7.11 of the Credit Agreement shall automatically become a Guarantor hereunder
-------------
upon the execution and delivery by such Subsidiary of an instrument in the form of Exhibit A hereto and the delivery of same to the
---------
Administrative Agent, with the same force and effect as if originally named as a party herein. The execution and delivery of any
instrument adding an additional party to this Guaranty shall not require the consent of any party hereunder or of any Guaranteed
Creditor. The rights and obligations of each party hereunder shall remain in full force and effect notwithstanding the addition of
any new party hereto.
26. On the Termination Date, this Guaranty shall automatically terminate (provided that all indemnities set
forth herein shall survive such termination) and the Collateral Agent, at the request and expense of the relevant Guarantor, will
promptly execute and deliver to such Guarantor a proper instrument or instruments acknowledging the satisfaction and termination of
this Guaranty. As used in this Guaranty, "Termination Date" shall mean the date upon which the Collateral Agent receives evidence
-----------------
satisfactory to it that all Guaranteed Obligations owing to the Bank Creditors have terminated, that there remain no obligations of
any kind whatsoever of Company or any other Credit Party with respect thereto (other than contingent indemnification obligations as
to which no claims shall have accrued or be pending) and that all obligations and commitments of all Bank Creditors under the Credit
Agreement and other Loan Documents have been terminated.
[signature page follows]
Signature page to
Subsidiary Guaranty
CHI:1354223.12
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed and delivered as of the date first above
written.
USC MAY VERPACKUNGEN HOLDING INC.
By:
--------------------------------------------------
Name: _________________________________
Title: __________________________________
Accepted and Agreed to:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent and Collateral Agent
By:
--------------------------------------------------
Name:
--------------------------------------------
Title:
-----------------------------------------------
EXHIBIT A
TO SUBSIDIARY GUARANTY
----------------------
ADDITION OF NEW GUARANTOR TO SUBSIDIARY GUARANTY (this "Instrument"), dated as of ___________ __, ______, amending that
----------
certain Subsidiary Guaranty, dated as of June ___, 2004 (as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Agreement"), by the Guarantors (the "Guarantors") party thereto in favor of the Guaranteed Creditors.
--------- ----------
Reference is made to the credit agreement, dated as of June ___, 2004, among U.S. Can Corporation, a Delaware corporation
("Holdings"), United States Can Company, a Delaware corporation ("Company"), the financial institutions from time to time party
---------- -------
thereto and Deutsche Bank Trust Company Americas, as administrative agent ("Administrative Agent") for the Lenders, providing for the
---------------------
making of Loans and the issuance of, and participation in, Letters of Credit as contemplated therein (as used herein, the term
"Credit Agreement" means the Credit Agreement described above in this paragraph, as the same may be amended, modified, extended,
------------------
renewed, replaced, restated or supplemented from time to time, and including any agreement extending the maturity of, or
restructuring all or any portion of the Indebtedness under such agreement or any successor agreements).
Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the
Agreement or, if not therein defined, in the Credit Agreement.
The Guarantors have entered into the Agreement in order to induce the Lenders to extend credit pursuant to the Credit
Agreement and to induce the Other Creditors to extend Interest Rate Agreements or other Hedging Agreements. Pursuant to Section 25
----------
of the Agreement, the undersigned is required to enter into the Agreement as a Guarantor. Section 25 of the Agreement provides that
----------
additional parties may become Guarantors under the Agreement by execution and delivery of an instrument in the form of this
Instrument. The undersigned (the "New Party") is executing this Instrument in accordance with the requirements of the Credit
---------
Agreement to become a Guarantor under the Agreement in order to induce the Lenders to extend and continue the extension of credit
pursuant to the Credit Agreement.
Accordingly, the New Party agrees as follows:
SECTION 1. In accordance with the Agreement, the New Party by its signature below becomes a party to the Agreement as
of the date hereof with the same force and effect as if originally named therein as a party and the New Party hereby (a) agrees to
all the terms applicable to it and warrants that the representations and warranties made by it as a party thereunder are true and
correct in all material respects on and as of the date hereof. Each reference to a "Guarantor" in the Agreement shall be deemed to
include the New Party. The Agreement is hereby incorporated herein by reference.
SECTION 2. The New Party represents and warrants to the Administrative Agent and the Guaranteed Creditors that this
Instrument 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 to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).
SECTION 3. This Instrument may be executed in counterparts, each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Instrument shall become effective when the Administrative Agent
shall have received a counterpart of this Instrument that bears the signature of the New Party.
SECTION 4. Except as expressly supplemented hereby, the Agreement shall remain in full force and effect.
SECTION 5. THIS INSTRUMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF SAID STATE, INCLUDING SECTIONS 5-1401 AND 5-1402 OF
THE NEW YORK GENERAL OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES.
SECTION 6. All communications and notices hereunder shall be in writing and given as provided in the Agreement. All
communications and notices hereunder to the New Party shall be given to it at the address set forth in Section 19 of the Agreement.
----------
IN WITNESS WHEREOF, the New Party has duly executed this Addition of New Guarantor to Subsidiary Guaranty as of the day and
year first above written.
[NAME OF NEW PARTY],
By:___________________________
Name:______________________________
Title:_______________________________
-----------------------------------
>
Exhibit 5.1(a)(iii)
SECURITY AGREEMENT
among
U.S. CAN CORPORATION,
UNITED STATES CAN COMPANY,
CERTAIN SUBSIDIARIES OF UNITED STATES CAN COMPANY,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent
Dated as of June __, 2004
iii
Table of contents
Page
----
ARTICLE I SECURITY INTERESTS.................................................................................2
Section 1.1. Grant of Security Interests......................................................................2
Section 1.2. Power of Attorney................................................................................3
ARTICLE II GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS...................................................3
Section 2.1. Security Interest; Necessary Filings.............................................................3
Section 2.2. Title; No Liens..................................................................................4
Section 2.3. Other Financing Statements.......................................................................5
Section 2.4. Chief Executive Office; Records..................................................................5
Section 2.5. Location of Inventory and Equipment..............................................................5
Section 2.6. Organizational Names; Jurisdictions of Organization..............................................6
Section 2.7. Transportation Assets............................................................................6
Section 2.8. Commercial Tort Claims...........................................................................6
Section 2.9. Farm Products, Health Care Insurance Receivables.................................................7
Section 2.10. Bringdown of Representations and Warranties.....................................................7
Section 2.11. Recourse........................................................................................7
ARTICLE III PROVISIONS CONCERNING ALL COLLATERAL................................................................7
Section 3.1. Protection of Collateral Agent's Security........................................................7
Section 3.2. Changes in Locations, Names, Reincorporations....................................................7
Section 3.3. Right to Initiate Judicial Proceedings, etc......................................................8
Section 3.4. Appointment of a Receiver........................................................................8
Section 3.5. Further Actions..................................................................................8
Section 3.6. Financing Statements.............................................................................8
ARTICLE IV............................................. SPECIAL PROVISIONS CONCERNING ACCOUNTS; CONTRACT RIGHTS;
INSTRUMENTS..............................................................................9
Section 4.1. Additional Representations and Warranties........................................................9
Section 4.2. Maintenance of Records...........................................................................9
Section 4.3. Disposition or Collection of Accounts............................................................9
ARTICLE V SPECIAL PROVISIONS CONCERNING INTELLECTUAL PROPERTY..................................................9
Section 5.1. Additional Representations and Warranties.......................................................10
Section 5.2. Divestitures....................................................................................10
Section 5.3. Infringements...................................................................................10
Section 5.4. Preservation of Significant Intellectual Property...............................................11
Section 5.5. Future Intellectual Property....................................................................11
Section 5.6. Remedies........................................................................................11
ARTICLE VI PROVISIONS CONCERNING PLEDGED SECURITIES AND
OTHER " CONTROL" COLLATERAL.............................................................11
Section 6.1. Pledge of Notes.................................................................................12
Section 6.2. Pledged Stock...................................................................................12
Section 6.3. Instruments; Tangible Chattel Paper.............................................................13
Section 6.4. Control Over Certain Collateral.................................................................13
Section 6.5. Dividends; Payments on Investment Property......................................................13
ARTICLE VII REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT........................................................13
Section 7.1. Remedies; Obtaining the Collateral Upon Default.................................................13
Section 7.2. Remedies; Disposition of the Collateral.........................................................15
Section 7.3. Waiver of Claims................................................................................15
Section 7.4. Application of Proceeds.........................................................................16
Section 7.5. Remedies Cumulative.............................................................................17
Section 7.6. Discontinuance of Proceedings...................................................................18
ARTICLE VIII INDEMNITY AND EXPENSES..............................................................................18
Section 8.1. Indemnity.......................................................................................18
Section 8.2. Compensation and Expenses.......................................................................19
Section 8.3. Stamp and Other Taxes...........................................................................20
Section 8.4. Filing Fees, Excise Taxes, Etc..................................................................20
Section 8.5. Indemnity and Expense Obligations Secured by Collateral; Survival...............................20
ARTICLE IX COLLATERAL AGENT.....................................................................................20
Section 9.1. Exculpatory Provisions..........................................................................20
Section 9.2. Delegation of Duties............................................................................21
Section 9.3. Reliance by Collateral Agent....................................................................21
Section 9.4. Limitations on Duties of Collateral Agent.......................................................22
Section 9.5. Collateral to Be Held for Benefit of Secured Parties............................................22
Section 9.6. Resignation and Removal of Collateral Agent.....................................................22
Section 9.7. Merger of Collateral Agent......................................................................24
Section 9.8. Additional Co-Agents; Separate Agents...........................................................24
ARTICLE X TERMINATION; REINSTATEMENT; RELEASES OF COLLATERAL
UPON SATISFACTION.......................................................................25
Section 10.1. Release of Certain Security....................................................................25
Section 10.2. Termination Upon Satisfaction..................................................................25
ARTICLE XI MISCELLANEOUS......................................................................................26
Section 11.1. Notices, Etc...................................................................................26
Section 11.2. Waiver; Amendment..............................................................................26
Section 11.3. Obligations Absolute...........................................................................27
Section 11.4. Successors and Assigns.........................................................................27
Section 11.5. Headings Descriptive...........................................................................27
Section 11.6. Severability...................................................................................28
Section 11.7. GOVERNING LAW..................................................................................28
Section 11.8. Assignor's Duties..............................................................................28
Section 11.9. No Action by Secured Parties...................................................................28
Section 11.10. Counterparts..................................................................................28
Section 11.11. Definitions; Interpretation...................................................................28
Schedule A Pledged Intercompany Notes
Schedule B Pledged Stock
Schedule 2.4 Chief Executive Offices
Schedule 2.5 Inventory and Equipment Locations
Schedule 2.6 Trade, Fictitious and Other Names; Jurisdiction of Formation
Schedule 2.7 Transportation Assets
Schedule 2.8 Commercial Tort Claims
Schedule 5.1 Intellectual Property
ANNEX A Definitions
ANNEX B Assignment of Security Interest in U.S.
Trademarks and Patents
ANNEX C Assignment of Security Interest in U.S. Copyrights
ANNEX D Form of Supplement Regarding Addition of New Assignor
Exhibit A Form of Intercompany Note
29
CHI:1354223.12
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement"), dated as of June __, 2004, is by and among each of the undersigned (each,
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an "Assignor" and, together with any other entity that becomes a party hereto pursuant to Section 14.2 hereof, collectively, the
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"Assignors") and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent (the "Collateral Agent") for the benefit of (i) the Lenders
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and the Administrative Agent under the Credit Agreement hereinafter referred to; and (ii) if one or more Lenders (or any Affiliate
thereof) has heretofore entered into or hereafter enters into one or more (A) interest rate protection agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar agreements) and/or (B) foreign exchange contracts, currency swap
agreements or other similar agreements or arrangements designed to protect against the fluctuations in currency values (collectively,
the "Hedging Agreements"), in each case, with, or guaranteed by, an Assignor, any such Lender or Lenders or any Affiliate of such
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Lender or Lenders (even if the respective Lender subsequently ceases to be a Lender under the Credit Agreement for any reason) so
long as any such Lender or Affiliate participates in the extension of such Hedging Agreements and their subsequent assigns, if any
(collectively the "Secured Parties" or the "Secured Party"). Except as otherwise defined herein, terms used herein and defined in
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the Credit Agreement shall be used herein as so defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, U.S. Can Corporation, a Delaware corporation ("Holdings"), United States Can Company, a Delaware
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corporation ("Company"), the financial institutions (the "Lenders") from time to time party thereto and Deutsche Bank Trust Company
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Americas, as administrative agent (together with any successor agent, "Administrative Agent"), are contemporaneously herewith
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entering into a Credit Agreement, dated as of the date hereof (the "Credit Agreement", as the same may hereafter be amended,
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modified, extended, renewed, replaced, restated, waived or supplemented from time to time, and including any agreement extending the
maturity of or restructuring of all or any portion of the Indebtedness under such agreement or any successor agreements);
WHEREAS, the Assignors may at any time and from time to time enter into, or guarantee, one or more Hedging
Agreements;
WHEREAS, pursuant to the Subsidiary Guaranty, each Assignor (other than Company and Holdings) has jointly and
severally guaranteed to the Secured Parties the payment when due of all obligations of Company under or with respect to the Loan
Documents and the Hedging Agreements;
WHEREAS, Holdings has guaranteed to the Secured Parties the payment when due of all obligations of Company under or
with respect to the Loan Documents and the Hedging Agreements; and
WHEREAS, each Assignor desires to execute this Agreement in order to satisfy the conditions under the Credit
Agreement.
NOW, THEREFORE, in consideration of the extensions of credit to be made to each Assignor and other benefits accruing
to each Assignor, the receipt and sufficiency of which are hereby acknowledged, each Assignor hereby makes the following
representations and warranties to Collateral Agent for the benefit of the Secured Parties and hereby covenants and agrees with
Collateral Agent for the benefit of the Secured Parties as follows:
14.
SECURITY INTERESTS
1.122 Grant of Security Interests. (a) As collateral security for the prompt and complete payment and performance when due by
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each Assignor of all of such Assignor's Obligations, each such Assignor does hereby pledge, assign and transfer unto Collateral
Agent, and does hereby grant to Collateral Agent for the benefit of the Secured Parties, a continuing security interest in, all of
the right, title and interest of such Assignor in, to and under all of the following, whether now existing or hereafter from time to
time acquired: (i) all Accounts, Chattel Paper (including Electronic Chattel Paper and Tangible Chattel Paper), Documents, Equipment,
Fixtures, General Intangibles, Health Care Insurance Receivables, Farm Products, Goods, Instruments, Inventory, Investment Property,
Leases, Letter-of-Credit Rights and Supporting Obligations, (ii) all Money, Deposit Accounts, securities accounts, cash collateral
accounts and insurance policies in the possession or under the control of such Assignor or its respective bailees and any deposits,
securities or other interests contained therein, (iii) all Contracts and all Contract Rights arising thereunder, (iv) all Commercial
Tort Claims, from time to time set forth on Schedule 2.11 hereto, (v) all Marks, together with the registrations and right to all
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renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks, (vi) all Patents and Copyrights, and all
reissues, renewals or extensions thereof, (vii) all computer programs and all intellectual property rights therein and all other
proprietary information, including, but not limited to, Trade Secrets, (viii) all vehicles, aircraft, vessels, barges, railcars,
rolling stock and fixtures, together with accessions thereto and replacement parts therefor, (ix) (A) all Intercompany Notes
described in Schedule A (as it may, from time to time, be supplemented in accordance with the terms hereof), all other Intercompany
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Notes and all other promissory notes which are pledged to Collateral Agent or otherwise become a part of the Collateral; (B) all
shares of Capital Stock described in Schedule B (as it may, from time to time, be supplemented in accordance with the terms hereof)
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and all other shares of Capital Stock; and (C) all Stock Rights, (x) all books and records, customer lists, ledger cards, credit
files, print-outs, and other materials and records pertaining to any of the foregoing, whether now owned or hereafter acquired, (xi)
all other personal property of such Assignor, whether now owned or hereafter acquired, (xii) all documents of title evidencing or
issued with respect to any of the foregoing, and (xiii) all Proceeds and products of any and all of the foregoing (including, without
limitation, all insurance and claims for insurance effected or held for the benefit of such Assignor in respect thereof) (all of the
above, as limited below, collectively, the "Collateral"); provided, however, that the security interests granted hereunder shall not
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cover any Assignor's right, title and interest in any (1) Contract, permit license or franchise that validly prohibits the creation
by such Assignor of a security interest therein (or in any rights or property obtained by Assignor thereunder) the existence of which
does not constitute an Unmatured Event of Default or Event of Default under the Credit Agreement ("Excluded Intangibles"), but shall
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cover the proceeds of such Excluded Intangibles or the monetary value of the goodwill and other General Intangibles of such Assignor
relating thereto unless the Excluded Intangible in question so prohibits, provided, that (a) such Excluded Intangible was not entered
into or obtained by such Assignor with the intent of avoiding the requirement that a security interest be granted therein and (b)
such prohibition is not rendered ineffective by Section 9-408 or in any other section of the Uniform Commercial Code, (2) rights or
property to the extent that any valid, effective and enforceable law or regulation applicable thereto prohibits the creation of a
security interest therein, but shall cover the proceeds of such rights or property or the monetary value of the goodwill and other
General Intangibles of such Assignor relating thereto unless the law or regulation in question so prohibits; and (3) Capital Stock of
Foreign Subsidiaries not required pursuant to Section 7.11 of the Credit Agreement to be pledged hereunder.
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(b) The assignments and security interests under this Agreement granted to Collateral Agent shall not relieve any Assignor from
the performance of any term, covenant, condition or agreement on such Assignor's part to be performed or observed under or in respect
of any of the Collateral pledged by it hereunder or from any liability to any Person under or in respect of any of such Collateral or
impose any obligation on Collateral Agent to perform or observe any such term, covenant, condition or agreement on such Assignor's
part to be so performed or observed or impose any liability on Collateral Agent for any act or omission on the part of such Assignor
relative thereto or for any breach of any representation or warranty on the part of such Assignor contained in this Agreement or any
other Loan Document, or in respect of the Collateral pledged by it hereunder or made in connection herewith or therewith. The
obligations of each Assignor contained in this paragraph shall survive the termination of this Agreement and the discharge of such
Assignor's other obligations hereunder.
(c) The security interests of Collateral Agent under this Agreement extend to all Collateral of the kind which is the subject of
this Agreement which any Assignor may acquire at any time during the continuation of this Agreement.
1.123 Power of Attorney. To the extent permitted by applicable law, each Assignor hereby constitutes and appoints Collateral
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Agent its true and lawful attorney, irrevocably, with full power after the occurrence of and during the continuance of an Event of
Default (in the name of such Assignor or otherwise), in Collateral Agent's discretion, to take any action and to execute any
instrument which Collateral Agent may reasonably deem necessary or advisable to accomplish the purposes of this Agreement, which
appointment as attorney is coupled with an interest.
15.
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which representations, warranties and covenants shall survive
execution and delivery of this Agreement, as follows:
1.124 Security Interest; Necessary Filings. (a) This Agreement (together, with respect to the shares of capital stock of Foreign
-------------------------------------
Subsidiaries, such other necessary or advisable pledge agreements or other security agreements or instruments properly executed,
delivered, recorded and registered by the holder of such shares under all applicable foreign laws) creates security interests which
are enforceable against such Assignor in all Collateral now owned and hereafter acquired by such Assignor and which are, upon filing
of all appropriate financing statements, intellectual property filings and railcar filings, perfected security interests (other than
in the Excluded Transportation Assets).
(b) All documents and instruments for all filings, registrations and recordings necessary or appropriate to create and perfect
the security interests granted by the Assignors to Collateral Agent hereby in respect of the Collateral have been delivered by the
Assignors to Collateral Agent, and, upon Collateral Agent's accomplishing of all such filings, registrations and recordings, the
security interests granted to Collateral Agent pursuant to this Agreement in and to the Collateral constitute or shall constitute
perfected security interests therein prior to the rights of all other Persons therein and subject to no other Liens except for
Permitted Liens and is or shall be entitled to all the rights, priorities and benefits afforded by the Uniform Commercial Code or
other relevant law as enacted in any relevant jurisdiction to perfected security interests; provided, however, that the parties agree
that no Assignor shall have any obligation hereunder to take any actions to perfect the security interests granted by such Assignor
to Collateral Agent hereunder in any Excluded Transportation Assets except as provided in Section 2.6. The Pledged Intercompany
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Notes listed on Schedule A and the certificates representing the Pledged Stock listed on Schedule B (other than the shares of capital
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stock of Foreign Subsidiaries which are not certificated) have been delivered to Collateral Agent together with appropriate undated
note powers and stock powers duly executed in blank on or before the date hereof. The pledge, assignment and delivery of such
Pledged Stock to or on behalf of Collateral Agent pursuant to this Agreement creates valid, continuing, first priority perfected
Liens on such Pledged Stock in favor of Collateral Agent, for the benefit of Collateral Agent and the Secured Parties. Each Assignor
indicated on Schedule B as owning shares in a Foreign Subsidiary has executed and delivered and will use its best efforts to promptly
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following the date hereof record and register, any and all pledges, charges and other instruments necessary to create valid,
continuing, perfected Liens (or the equivalent rights under the applicable laws of the relevant foreign jurisdictions) on such
Pledged Stock under applicable foreign law in favor of Collateral Agent, for the benefit of Collateral Agent and the Secured Parties.
1.125 Title; No Liens. (a) Each Assignor is, and as to Collateral acquired by it from time to time after the date hereof, will
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be, the owner of or otherwise has the right to use all Collateral free from any Lien or other right, title or interest of any Person
(other than Liens created hereby and Permitted Liens), and such Assignor shall defend the Collateral against all claims and demands
of all Persons at any time claiming the same or any interest therein adverse to Collateral Agent.
(b) such Assignor is the direct and sole legal and equitable owner of any and all Pledged Intercompany Notes indicated on
Schedule A as being owned by it. Such Assignor has good and marketable title to such Pledged Intercompany Notes and has all
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requisite rights, power, and authority to pledge and deliver such Pledged Intercompany Notes to Collateral Agent pursuant hereto.
Such Assignor has not amended any term of or waived any rights under the Pledged Intercompany Notes held by it; and
(c) such Assignor is the record and beneficial owner of each share of the Pledged Stock indicated on Schedule B as being owned
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by it. With respect to Pledged Stock issued by Holdings or any of its Subsidiaries, (i) such Pledged Sock represents the percentage
(on a fully diluted basis) of the issued and oustanding Capital Stock of its issuer as set forth on Schedule B and (ii) such shares
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of Pledged Stock are duly authorized, validly issued, fully paid and non-assessable (or, with respect to Foreign Subsidiaries, to the
extent such concepts are applicable under the laws under which such Subsidiaries are organized). With respect to Pledged Stock
issued by a Person other than Holdings or any of its Subsidiaries, (i) to the knowledge of Company and its Subsidiaries, such Pledged
Stock represents the percentage (on a fully diluted basis) of the issued and oustanding Capital Stock of its issuer as set forth on
Schedule B and (ii) such shares of Pledged Stock are, to the knowledge of Company and its Subsidiaries, duly authorized and validly
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issued and are fully paid and non-assessable (or, with respect to Foreign Subsidiaries, to the extent such concepts are applicable
under the laws under which such Subsidiaries are organized). Such Assignor has good and marketable title to such Pledged Stock and
has all requisite rights, power, and authority to pledge and deliver such Pledged Stock to Collateral Agent pursuant hereto (or, with
respect to the shares of capital stock of any Foreign Subsidiaries that are not certificated, to execute, deliver, record and
register any and all pledges or charges on such shares which are reasonably necessary to create a first priority perfected security
interest in such shares under applicable foreign law). Such Pledged Stock is free and clear of all Liens, options, warrants, puts,
calls, or other rights of third persons, other than Permitted Liens.
1.126 Other Financing Statements. There is no financing statement (or similar statement or instrument of registration under the
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law of any jurisdiction) on file or of record in any relevant jurisdiction covering or purporting to cover any interest of any kind
in the Collateral, except for (i) those evidencing Permitted Liens and (ii) financing statements for which valid termination
statements have been previously filed or delivered to Collateral Agent on the date hereof and, so long as any of the Secured
Obligations are in effect, no Assignor will execute or authorize to be filed in any public office any financing statement (or similar
statement or instrument of registration under the law of any jurisdiction) or statements relating to the Collateral, except financing
statements filed or to be filed in respect of and covering the security interests granted hereby by such Assignor or for those
evidencing Permitted Liens.
1.127 Chief Executive Office; Records. The chief executive office of each Assignor is located at the address indicated on
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Schedule 2.4 hereto for such Assignor. No Assignor will move its chief executive office except to such new location as such Assignor
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may establish in accordance with Section 3.2.
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1.128 Location of Inventory and Equipment. All Inventory and Equipment held on the date hereof by each Assignor with an aggregate
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value in excess of $500,000 is located at one of the locations shown on Schedule 2.5 hereto. Each Assignor agrees that all Inventory
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and Equipment (other than Inventory in transit in the ordinary course of business) with an aggregate value in excess of $500,000 now
held or subsequently acquired by it shall be kept at (or shall be in transport to) any one of the locations shown on Schedule 2.5
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hereto or such new location as such Assignor may establish in accordance with Section 3.2. Each Assignor agrees that if any
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warehouse receipt or receipt in the nature of a warehouse receipt is issued with respect to any of its Inventory, such warehouse
receipt or receipt in the nature thereof shall either (a) not be "negotiable" (as such term is used in Section 7-104 of the Code as
in effect in any relevant jurisdiction or under other relevant law), or (b) if negotiable, the security interests of Collateral Agent
in such warehouse receipt shall be perfected to the reasonable satisfaction of Collateral Agent. Where any Collateral with a fair
market value of greater than $500,000 is in the possession of a third party, each Assignor will join with Collateral Agent in
notifying the third party of Collateral Agent's security interests as described in Section 9-313 of the Uniform Commercial Code and
will use its commercially reasonable efforts to obtain an acknowledgement from the third party that it is holding the Collateral for
the benefit of Collateral Agent.
1.129 Organizational Names; Jurisdictions of Organization. No Assignor has or operates in any jurisdiction under, or in the
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preceding 12 months has had or has operated in any jurisdiction under, any trade names, fictitious names or other names (including,
without limitation, any names of divisions or operations) except its legal name and such other trade, fictitious or other names as
are listed on Schedule 2.6 hereto. The corporation identification number or other applicable formation identification number, the
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exact legal name as it appears in official filings in the state of its incorporation or organization and the jurisdiction of
incorporation or organization of each Assignor is set forth on Schedule 2.6 hereto. No Assignor shall change its legal name except
------------
as provided in Section 3.2. Without limiting the prohibitions on mergers involving the Assignors contained in the Credit Agreement,
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no Assignor shall reincorporate or reorganize itself under the laws of any jurisdiction other than the jurisdiction in which it is
incorporated or organized as of the date hereof except as provided in Section 3.2.
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1.130 Transportation Assets. All Transportation Assets owned by each Assignor (other than the Excluded Transportation Assets) are
----------------------
identified under such Assignor's name on Schedule 2.7. Each Assignor agrees that in the event it acquires or otherwise holds title
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to any Transportation Assets (other than the Excluded Transportation Assets) not otherwise identified on Schedule 2.7, such Assignor
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shall (A) give Collateral Agent prompt written notice thereof, clearly describing such new Transportation Assets, and shall provide
such other information in connection therewith as Collateral Agent may reasonably request, and (B) take all actions reasonably
satisfactory to Collateral Agent to cause the security interests in the Collateral granted by it hereby to be, and continue at all
times to be, fully perfected and in full force and effect. Collateral Agent hereby agrees, on behalf of the Secured Parties, that
the Assignors shall not be obligated to perfect Collateral Agent's security interests in Excluded Transportation Assets; provided,
however, that each Assignor agrees, within ten (10) Business Days of its receipt of a written request from Collateral Agent after the
occurrence and during the continuance of an Event of Default, to take any and all actions necessary or reasonably requested by
Collateral Agent, including the execution and delivery of all documents, certificates of title and instruments reasonably requested
by Collateral Agent, to perfect Collateral Agent's security interests in any or all Excluded Transportation Assets owned by such
Assignor.
1.131 Commercial Tort Claims. Except for matters disclosed on Schedule 2.8 hereto, as of the date hereof no Assignor owns any
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Material Commercial Tort Claims. To the extent any Material Commercial Tort Claim has been instituted and has not previously been
disclosed on Schedule 2.8 hereto, the Assignors shall promptly deliver to Collateral Agent an amended Schedule 2.8 which contains a
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written description of the nature of the case, the parties and the case number if one has been assigned by the applicable court, and
such amended Schedule 2.8 shall be deemed to be a part hereof from and after such delivery without any action required on the part of
------------
Collateral Agent.
1.132 Farm Products, Health Care Insurance Receivables. No Assignor owns any Farm Products or Health Care Insurance Receivables
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and none of the Collateral constitutes Proceeds of the foregoing.
1.133 Bringdown of Representations and Warranties. Each Assignor hereby acknowledges and agrees that it has received a copy of
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the Credit Agreement and hereby (x) reaffirms all representations and warranties contained therein to the extent applicable to it and
(y) agrees to comply with all covenants and agreements contained therein to the extent applicable to it and as the same may be
amended or modified from time to time in accordance with the terms of the Credit Agreement.
1.134 Recourse. This Agreement is made with full recourse to each Assignor and pursuant to and upon all the warranties,
--------
representations, covenants and agreements on the part of such Assignor contained herein, in the other Loan Documents and, as
applicable the Hedging Agreements and otherwise in connection herewith or therewith.
16.
PROVISIONS CONCERNING ALL COLLATERAL
From the date hereof and continuing thereafter until this Agreement is terminated pursuant to Section 10.2, each
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Assignor covenants and agrees with Collateral Agent and the Secured Parties as follows:
1.135 Protection of Collateral Agent's Security. Each Assignor covenants that it will do nothing to impair the rights of
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Collateral Agent in the Collateral. If any Assignor shall fail to insure any material portion of Inventory and Equipment
constituting Collateral in accordance with the terms of Section 7.8 of the Credit Agreement, Collateral Agent shall have the right
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(but shall be under no obligation) to procure such commercially reasonable insurance and such Assignor agrees to reimburse Collateral
Agent for all reasonable costs and expenses of procuring such commercially reasonable insurance, and Collateral Agent may apply any
proceeds of such insurance in accordance with Section 8.4. Each Assignor assumes all liability and responsibility in connection with
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the Collateral acquired by it and the liability of such Assignor to satisfy its Secured Obligations shall in no way be affected or
diminished by reason of the fact that such Collateral may be lost, destroyed, stolen, damaged or for any reason whatsoever
unavailable to such Assignor, except due to the gross negligence or willful misconduct of Collateral Agent.
1.136 Changes in Locations, Names, Reincorporations. No Assignor shall (a) establish a new location for its chief executive
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office, (b) change its legal name or (c) reincorporate or reorganize itself under the laws of any jurisdiction other than the
jurisdiction in which it is incorporated or organized on the date hereof, in each case, unless (i) it shall have given to Collateral
Agent not less than 10 Business Days' prior written notice of its intention so to do, (ii) it shall have taken all action to maintain
the security interests of Collateral Agent in the Collateral intended to be granted hereby at all times fully perfected and in full
force and effect, (iii) at the request of Collateral Agent, it shall have furnished an opinion of counsel reasonably acceptable to
Collateral Agent to the effect that all financing or continuation statements and amendments or supplements thereto have been filed in
the appropriate filing office or offices, and (iv) Collateral Agent shall have received such other information in connection
therewith as Collateral Agent may reasonably request.
1.137 Right to Initiate Judicial Proceedings, etc. Upon the occurrence and continuation of an Event of Default, Collateral Agent
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shall have the right and power to institute and maintain such suits and proceedings as it may reasonably determine necessary or
appropriate to protect and enforce the rights vested in it by this Agreement for the benefit of the Secured Parties.
1.138 Appointment of a Receiver. After the occurrence and during the continuance of an Event of Default, Collateral Agent may be
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appointed as a receiver of any or all of the Collateral in a judicial proceeding. Notwithstanding the appointment of a receiver,
Collateral Agent shall be entitled to retain possession and control of all cash held by or deposited with it or its agents or
co-agents pursuant to any provision of this Agreement or any Mortgage after the occurrence and during the continuance of an Event of
Default.
1.139 Further Actions. Subject to the last sentence of Section 2.6, each Assignor will, at its own expense, make, execute,
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endorse, acknowledge, file and/or deliver to Collateral Agent from time to time such lists, descriptions and designations of its
Collateral, warehouse receipts, receipts in the nature of warehouse receipts, bills of lading, documents of title, vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further steps relating to the Collateral and other property
or rights covered by the security interests hereby granted by such Assignor, which Collateral Agent deems reasonably appropriate or
advisable to perfect, preserve or protect its security interests in the Collateral within ten Business Days after any request by
Collateral Agent or such earlier date as may be required by law or necessary to preserve or protect the security interests in the
Collateral granted by such Assignor pursuant to this Agreement. Each Assignor (a) agrees to update all Schedules hereto
simultaneously with the delivery of the quarterly financial statements under the Credit Agreement to reflect any new information that
would be disclosed thereon if a existence on the date hereof and will deliver such updated Schedules to Collateral Agent and (b)
within 30 days following the institution of any action, claim or proceeding that could reasonably be expected to result in a Material
Commercial Tort Claim, will deliver an amended Schedule 2.11 (which Schedule shall be deemed to be amended upon such delivery)
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setting forth a brief description of the nature of the case, the parties and the case number if one has been assigned by the
applicable court.
1.140 Financing Statements. Each Assignor agrees to authorize and deliver to Collateral Agent such financing statements, in form
---------------------
reasonably acceptable to Collateral Agent, as Collateral Agent may from time to time request as are necessary or desirable in the
reasonable opinion of Collateral Agent to establish and maintain valid, enforceable, perfected security interests, in its Collateral
(except that no Assignor shall be required to perfect the security interests granted by it hereunder in any Excluded Transportation
Assets except as required under Section 2.6) as provided herein and the other rights and security contemplated hereby all in
------------
accordance with the Uniform Commercial Code as enacted in any and all relevant jurisdictions or any other relevant law or
regulation. Each Assignor will pay any applicable filing fees, recordation taxes and reasonable out-of-pocket expenses related to
its Collateral. Each Assignor authorizes Collateral Agent to file and deliver any such financing statements without the signature of
such Assignor where permitted by law. The Assignors authorize the filing of any financing statement that Collateral Agent deems
reasonably necessary or advisable and such financing statements may include descriptions of collateral as "all assets", "all personal
property" or any other similar generic description.
17.
SPECIAL PROVISIONS CONCERNING ACCOUNTS;
CONTRACT RIGHTS; INSTRUMENTS
From the date hereof and continuing thereafter until this Agreement is terminated pursuant to Section 10.2, each
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Assignor covenants and agrees with Collateral Agent and the Secured Parties as follows:
1.141 Additional Representations and Warranties. The Assignors hereby agree with respect to the Accounts that as of the time when
-------------------------------------------
each Account arises, each Assignor shall be deemed to have represented and warranted that such Account, and all records, papers and
documents relating thereto (if any) are, to their knowledge, genuine and in all material respects what they purport to be, and that
all papers and documents (if any) relating thereto (i) will, to the best of such Assignor's knowledge, represent the genuine, legal,
valid and binding obligation of the account debtor evidencing indebtedness unpaid and owed by the respective account debtor arising
out of the performance of labor or services or the sale or lease and delivery of the merchandise listed therein, or both; and (ii)
will, to the best of such Assignor's knowledge, evidence true and valid obligations, enforceable in accordance with their respective
terms.
1.142 Maintenance of Records. Each Assignor will keep and maintain at its own cost and expense satisfactory and complete records
----------------------
of its Accounts and Contracts in a manner consistent with its existing practices, including, but not limited to, the originals (where
available) of all documentation (including each Contract) with respect thereto, records of all payments received, all credits granted
thereon, all merchandise returned and all other dealings therewith. Upon Collateral Agent's reasonable request, each Assignor shall
legend, in form and manner reasonably satisfactory to Collateral Agent, the books, records and documents of such Assignor evidencing
or pertaining to Accounts and Contracts with an appropriate reference to the fact that such Accounts and Contracts have been assigned
to Collateral Agent and that Collateral Agent has security interests therein.
1.143 Disposition or Collection of Accounts. No Assignor shall sell any material Account or Contract, or interest therein, owned
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by it without the prior written consent of Collateral Agent, except as permitted by Section 8.4 of the Credit Agreement. Except as
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it shall otherwise determine in its sound business judgment, each Assignor will duly fulfill all obligations on its part to be
fulfilled under or in connection with its Accounts and Contracts and no Assignor will do anything to impair the rights of Collateral
Agent in the Accounts or Contracts in any material respect.
18.
SPECIAL PROVISIONS CONCERNING INTELLECTUAL PROPERTY
From the date hereof and continuing thereafter until this Agreement is terminated pursuant to Section 10.2, each
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Assignor covenants and agrees with Collateral Agent and the Secured Parties as follows:
1.144 Additional Representations and Warranties. Each Assignor represents and warrants as of the date hereof (or, in the case of
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an Assignor made party hereto pursuant to its execution of a supplement hereto in accordance with Section 14.2(d), as of the date of
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such supplement) that the Copyrights, Marks and Patents listed under its name in Schedule 5.1 include all the registrations or
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pending applications in the United States Copyright Office and the United States Patent and Trademark Office that such Assignor now
owns in connection with its business. Each Assignor represents and warrants that, to its knowledge, it owns or is licensed to use
all Significant Intellectual Property that it uses. Each Assignor further warrants that, except as indicated on Schedule 5.1, it is
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aware of no third party claim that any aspect of such Assignor's present or contemplated business operations infringes or will
infringe any Copyright, Xxxx or Patent or has misappropriated any Trade Secrets or proprietary information in any manner that could
reasonably be expected to cause a Material Adverse Effect. Each Assignor represents and warrants that upon the recordation of each
Grant of Security Interest in United States Trademarks and Patents in the form of Annex B hereto in the United States Patent and
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Trademark Office and the recordation of a Grant of Security Interest in United States Copyrights in the form of Annex C hereto in the
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United States Copyright Office, together with filings of appropriate UCC financing statements pursuant to this Agreement, all
filings, registrations and recordings necessary or appropriate to perfect the security interests granted to Collateral Agent in the
United States Trademarks, the United States Patents and United States Copyrights covered by this Agreement under federal law will
have been accomplished to the extent such perfection may be obtained under federal law. Each Assignor agrees to execute such a Grant
of Security Interest in United States Trademarks and Patents covering all right, title and interest in each United States Patent of
such Assignor and to record the same, and to execute such a Grant of Security Interest in United States Copyrights covering all
right, title and interest in each United States Copyright of such Assignor and to record the same. Each Assignor hereby grants to
Collateral Agent an absolute power of attorney to sign, upon the occurrence and during the continuance of an Event of Default, any
document which may be required by the United States Patent and Trademark Office or United States Copyright Office in order to effect
an absolute assignment of all right, title and interest in each Copyright, Xxxx and Patent and associated goodwill, and record the
same.
1.145 Divestitures. Each Assignor hereby agrees not to divest itself of any material right under any Significant Intellectual
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Property absent prior written approval of Collateral Agent, except in accordance with Section 8.6 of the Credit Agreement.
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1.146 Infringements. Each Assignor agrees, promptly upon learning thereof, to notify Collateral Agent in writing of the name and
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address of, and to furnish such pertinent information that may be available with respect to, any party who may be infringing or
otherwise violating any of such Assignor's rights in and to any Significant Intellectual Property, or with respect to any party
claiming that such Assignor's use of any Significant Intellectual Property violates any property right of that party, or with respect
to any misappropriation of any Trade Secret or any claim that such Assignor's practice of any Trade Secret violates any property
rights of a third party, in each case to the extent that such Assignor reasonably believes that, with respect to such infringement or
violation, if determined adversely to such Assignor, could reasonably be expected to have a Material Adverse Effect. Each Assignor
further agrees, consistent with good business practice, to diligently prosecute any Person infringing any Significant Intellectual
Property or any Person misappropriating any of such Assignor's Trade Secrets to the extent that such Assignor reasonably believes
that such infringement or misappropriation is material to its business.
1.147 Preservation of Significant Intellectual Property. Each Assignor shall have the duty to: (a) prosecute diligently any Xxxx,
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Patent or Copyright application pending as of the date hereof or hereafter which would be or is Significant Intellectual Property;
(b) make application for Marks, Patents and Copyrights which are or would be Significant Intellectual Property; and (c) use
commercially reasonable efforts to maintain in full force and effect all Significant Intellectual Property. At its own expense, each
Assignor shall make timely payment of all post-issuance fees required pursuant to 35 X.X.X.xx. 41 to maintain in force rights under
each Significant Patent.
1.148 Future Intellectual Property. Each Assignor shall, simultaneously with the delivery of the quarterly financial statements
-----------------------------
under the Credit Agreement, deliver to Collateral Agent if applicable (a) a copy of each Significant Intellectual Property issued
after the date hereof to such Assignor, and (b) a grant of security in such Significant Intellectual Property to Collateral Agent,
confirming the grant thereof hereunder, the form of such grant to be substantially the same as the form hereof.
1.149 Remedies. If an Event of Default shall occur and be continuing, Collateral Agent may, by written notice to the relevant
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Assignor, take any or all of the following actions, in each case, to the extent permitted by applicable law and to the extent such
actions do not affect the validity of the Copyrights, Marks and Patents in question: (i) declare the entire right, title and interest
of such Assignor in and to each of its Copyrights, Marks and Patents together with the goodwill of the business associated therewith,
vested in Collateral Agent for the benefit of the Secured Parties, in which event such rights, title and interest shall immediately
vest, in Collateral Agent for the benefit of the Secured Parties, in which case Collateral Agent shall be entitled to exercise the
power of attorney referred to in Section 4.1 to execute, cause to be acknowledged and notarized and record said absolute assignment
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with the applicable agency; (ii) take, practice and use or sell the Copyrights, Marks and Patents together with the goodwill of such
Assignor's business symbolized by the Copyrights, Marks and Patents and the right to carry on the business and use the assets of such
Assignor in connection with which the Copyrights, Marks and Patents have been used; and (iii) direct such Assignor to refrain, in
which event such Assignor shall refrain, from using or practicing the Copyrights, Marks and Patents in any manner whatsoever,
directly or indirectly, and execute such other and further documents that Collateral Agent may request to further confirm this and to
transfer ownership of the Copyrights, Marks and Patents and registrations and any pending applications in the United States Copyright
Office or the United States Patent and Trademark Office or any equivalent government agency or office in any foreign jurisdiction to
Collateral Agent.
19.
PROVISIONS CONCERNING PLEDGED SECURITIES
AND OTHER " CONTROL" COLLATERAL
From the date hereof and continuing thereafter until this Agreement is terminated pursuant to Section 10.2, each Assignor
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covenants and agrees with Collateral Agent and the Secured Parties as follows:
1.150 Pledge of Notes. If any Assignor shall acquire in any manner any additional Intercompany Notes, such Assignor shall
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forthwith (and without the necessity for any request or demand by Collateral Agent or any Secured Party) deliver such Intercompany
Notes to or for the benefit of Collateral Agent in the same manner as described in Section 2.3(b), together with a supplement to
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Schedule A reflecting the addition of such additional Intercompany Notes, whereupon such additional Intercompany Notes shall be
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deemed to be Pledged Intercompany Notes for all purposes hereunder.
1.151 Pledged Stock.
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(a) Pledge of Additional Stock. To the extent required by Section 7.11 of the Credit Agreement, if any Assignor shall at any
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time acquire any additional shares of the capital stock of any class of Pledged Stock, whether such acquisition shall be by purchase,
exchange, reclassification, dividend, or otherwise, or acquire any new shares of capital stock of any newly formed or acquired
Subsidiary (as defined under and to the extent permitted by the Credit Agreement), such Assignor shall forthwith (and without the
necessity for any request or demand by Collateral Agent or any Secured Party) (a) unless such shares are uncertificated shares,
deliver such shares (or, with respect to any Foreign Subsidiary, such percentage of the shares as may be required by Section 7.11 of
the Credit Agreement) to or for the benefit of Collateral Agent in the same manner as described in Section 2.3(c), or (b) if such
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shares are uncertificated shares of capital stock, take all actions necessary under applicable law to grant to Collateral Agent, a
perfected security interest in such shares (including the execution, delivery, recording and registering of a pledge or charge on
shares with any and all appropriate company or governmental offices), together with, in either case a supplement to Schedule B
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reflecting the addition of such additional shares of stock, whereupon such additional shares of stock shall be deemed to be Pledged
Stock for all purposes hereunder.
(b) Changes in Capital Structure of Issuers. Subject to mandatory requirements of applicable law then in effect, no Assignor
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will (i) to the extent such Assignor has control or veto rights with respect thereto, permit or suffer any issuer of its Pledged
Stock to dissolve, liquidate or merge or consolidate with any other entity, except as permitted by Section 8.3 of the Credit
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Agreement, or (ii) vote any of the Pledged Stock in favor of any of the foregoing.
(c) Issuance of Additional Stock. Except as permitted by Section 8.6 of the Credit Agreement, no Assignor will cause or, to the
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extent controlled by it, permit the issuer of any of its Pledged Stock to issue any stock, any right to receive stock or any right to
receive earnings, except to an Assignor or in a manner that does not dilute Assignor's ownership interest or rights in such issuer.
(d) Instructions to Issuers. Each Assignor hereby authorizes and instructs each issuer of any Investment Property pledged
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hereunder to comply with any written instruction from Collateral Agent stating that an Event of Default has occurred and is
continuing without further instructions from such Assignor.
1.152 Instruments; Tangible Chattel Paper. If any Assignor owns or acquires any Instrument or Tangible Chattel Paper with a face
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amount of $250,000 or more constituting Collateral, such Assignor will within ten (10) days notify Collateral Agent thereof, and upon
request by Collateral Agent will promptly deliver such Instrument or Chattel Paper to the Collateral Agent appropriately endorsed to
the order of Collateral Agent.
1.153 Control Over Certain Collateral. Upon request of Collateral Agent, each Assignor will cooperate with Collateral Agent in
--------------------------------
obtaining control with respect to Collateral consisting of: (i) Investment Property (to the extent "control" within the meaning of
Sections 8-106 and 9-106 of the UCC can be obtained with respect to such Investment Property); (ii) Letter-of-Credit Rights; and
(iii) Electronic Chattel Paper. In the event any Assignor is the beneficiary of any individual letter of credit in excess of
$100,000 (or letters of credit in excess of $250,000 in the aggregate), such Assignor shall obtain from the issuer or confirmation
bank for such letter of credit with respect to a written consent to the assignment of proceeds of such letter of credit to Collateral
Agent under Section 5-114(c) of the Uniform Commercial Code or otherwise applicable law or practice pursuant to which such issuer or
confirmation bank agrees to direct all payments thereunder to the Collateral Account. Upon request of Collateral Agent after the
occurrence and during the continuance of an Event of Default, each Assignor will cooperate with Collateral Agent in obtaining control
with respect to all Deposit Accounts of each Assignor and thereafter shall not establish any new Deposit Account unless Collateral
Agent has control of such Deposit Account.
1.154 Dividends; Payments on Investment Property. Unless and until an Event of Default shall have occurred and be continuing,
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each Assignor shall be entitled to receive all cash dividends or other distributions on all Investment Property and all Proceeds
therefrom except (i) distributions made in Capital Stock on the Pledged Stock resulting from stock dividends on or subdivision,
combination or reclassification of the outstanding Capital Stock of any corporation or as a result of any merger, consolidation,
acquisition or other exchange of assets of any corporation; (ii) all sums paid on any Pledged Stock upon liquidation or dissolution
or reduction of capital, repurchase, retirement or redemption and (iii) Proceeds from the sale or other disposition of such
Investment Property to the extent such sale or other disposition of such Investment Property was not permitted by the terms of this
Agreement or the Credit Agreement. All such sums, dividends, distributions, proceeds or property described in the immediately
preceding clauses (i), (ii) and (iii) shall, if received by any Person other than Collateral Agent, be held for the benefit of the
Secured Parties and shall forthwith be delivered to Collateral Agent for the benefit of the Secured Parties (accompanied by proper
instruments of assignment and/or stock powers executed by each Assignor to the extent applicable) to be held subject to the terms of
this Agreement.
20.
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
1.155 Remedies; Obtaining the Collateral Upon Default. Each Assignor agrees that, if any Event of Default shall have occurred and
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be continuing, then and in every such case, subject to any mandatory requirements of applicable law then in effect, Collateral Agent,
shall have, in addition to any rights now or hereafter existing under applicable law, all rights as a secured creditor under the
Uniform Commercial Code in all relevant jurisdictions and may:
(a) personally, or by agents or attorneys, immediately take or retake, as the case may be, possession of the Collateral or any
part thereof, from such Assignor or any other person who then has possession of any part thereof with or without notice or process of
law, and for that purpose may, to the extent permitted by applicable law, enter upon such Assignor's premises where any of the
Collateral is located and remove the same and use in connection with such removal any and all services, supplies, aids and other
facilities of such Assignor; and
(b) instruct the obligor or obligors on any agreement, instrument or other obligation (including, without limitation, the
Accounts and the Contracts) constituting the Collateral to make any payment required by the terms of such agreement, instrument or
other obligation directly to Collateral Agent and may exercise any and all remedies of such Assignor in respect of such Collateral;
and
(c) withdraw all monies, securities and instruments in any cash collateral account for application to the Secured Obligations in
accordance with Section 8.4 hereof; and
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(d) sell, assign or otherwise liquidate, or direct such Assignor to sell, assign or otherwise liquidate, any or all of the
Collateral or any part thereof, and take possession of the proceeds of any such sale or liquidation; and
(e) take possession of the Collateral or any part thereof, by directing the relevant Assignor in writing to deliver the same to
Collateral Agent at any place or places designated by Collateral Agent, in which event such Assignor shall at its own expense:
(i) forthwith cause the same to be moved to the place or places so designated by Collateral Agent and there
delivered to Collateral Agent, and
(ii) store and keep any Collateral so delivered to Collateral Agent at such place or places pending further
action by Collateral Agent as provided in Section 8.2 hereof, and
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(iii) while the Collateral shall be so stored and kept, provide such guards and maintenance services (in a manner
consistent with the Assignor's existing practices) in order to protect the same and to preserve and maintain them in
the same or similar condition as when delivered; and
(f) license or sublicense (to the extent not in violation of the license), whether on an exclusive or nonexclusive basis, any
Marks (together with associated goodwill), Patents or Copyrights included in the Collateral for such term and on such conditions and
in such manner as Collateral Agent shall in its reasonable judgment determine; and
(g) receive any and all dividends, distributions and other payments or other Proceeds paid in respect of any Investment Property
and register any or all of the Pledged Stock in the name of Collateral Agent or its nominee and Collateral Agent or its nominee may
thereafter, upon notice to the applicable Assignor, exercise (i) all voting and other rights pertaining to such Pledged Stock and
(ii) any and all rights of conversion, exchange, subscription and other rights and privileges or options pertaining to such Pledged
Stock and associated Stock Rights, all without liability except as provided in Section 8.1;
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it being understood that each Assignor's obligation so to deliver the Collateral is of the essence of this Agreement and that,
accordingly, upon application to a court of equity having jurisdiction, Collateral Agent shall be entitled to a decree requiring
specific performance by such Assignor of said obligation.
1.156 Remedies; Disposition of the Collateral. Any Collateral repossessed by Collateral Agent under or pursuant to Section 8.1
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hereof and any other Collateral whether or not so repossessed by Collateral Agent, may, without demand or performance or other
demand, presentment, protest, advertisement or notice of any kind (except as required by applicable law), be sold, assigned, leased
or otherwise disposed of under one or more contracts or as an entirety, in a public or private sale and without the necessity of
gathering at the place of sale the property to be sold, and in general in such manner, at such time or times, at such place or places
and on such terms as Collateral Agent may, in compliance with any mandatory requirements of applicable law, determine to be
commercially reasonable. Any of the Collateral may be sold, leased or otherwise disposed of, in the condition in which the same
existed when taken by Collateral Agent or after any repair at the expense of the relevant Assignor which Collateral Agent shall
determine to be commercially reasonable. If any notice of a proposed sale or other disposition of Collateral shall be required by
law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition. To the
extent not prohibited by any applicable law, Collateral Agent or any Secured Party may bid for and become the purchaser of the
Collateral or any item thereof, offered for sale in accordance with this Section 8.2 without accountability to the relevant
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Assignor. Each Assignor agrees to do or cause to be done all such other acts and things as may be reasonably necessary to make such
sale or sales of all or any portion of the Collateral valid and binding and in compliance with any and all applicable laws,
regulations, orders, writs, injunctions, decrees or awards of any and all courts, arbitrators or governmental instrumentalities,
domestic or foreign, having jurisdiction over any such sale or sales, all at such Assignor's expense.
1.157 Waiver of Claims. Except as otherwise provided in this Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY
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APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH COLLATERAL AGENT'S TAKING POSSESSION OR COLLATERAL AGENT'S DISPOSITION
OF ANY OF THE COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES,
and each Assignor hereby further waives, to the extent permitted by law:
(a) all damages occasioned by such taking of possession except any damages which are the result of Collateral Agent's gross
negligence or willful misconduct;
(b) all other requirements as to the time, place and terms of sale or other requirements with respect to the enforcement of
Collateral Agent's rights hereunder; and
(c) all rights of redemption, appraisement, valuation, stay, extension or moratorium now or hereafter in force under any
applicable law in order to prevent or delay the enforcement of this Agreement or the absolute sale of the Collateral or any portion
thereof, and each Assignor, for itself and all who may claim under it, insofar as it or they now or hereafter lawfully may, hereby
waives the benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization upon, any Collateral shall operate to divest all right,
title, interest, claim and demand, either at law or in equity, of the relevant Assignor therein and thereto, and shall be a perpetual
bar both at law and in equity against such Assignor and against any and all Persons claiming or attempting to claim the Collateral so
sold, optioned or realized upon, or any part thereof, from, through and under such Assignor.
1.158 Application of Proceeds.
-----------------------
(a) All moneys collected by Collateral Agent (or, to the extent this Agreement or any Mortgage to which any Assignor is a party
requires proceeds of Collateral under such agreement to be applied in accordance with the provisions of this Agreement, or Mortgagee
under such other agreement) upon any sale or other disposition of the Collateral, together with all other moneys received by
Collateral Agent hereunder, shall be applied as follows:
(i) first, to the payment of all amounts owing to Collateral Agent or Administrative Agent of the type described in clauses (iv)
and (v) of the definition of "Secured Obligations" set forth in Annex A hereto;
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(ii) second, to the extent proceeds remain after the application pursuant to the preceding clause (i), an amount equal to the
outstanding Primary Obligations shall be paid to the Secured Parties as provided in Section 7.4(d) hereof, with each Secured Party
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receiving an amount equal to such outstanding Primary Obligations or, if the proceeds are insufficient to pay in full all such
Primary Obligations, its Pro Rata Share of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the application pursuant to the preceding clauses (i) and (ii), an amount equal
to the outstanding Secondary Obligations shall be paid to the Secured Parties as provided in Section 7.4(d), with each Secured Party
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receiving an amount equal to its outstanding Secondary Obligations or, if the proceeds are insufficient to pay in full all such
Secondary Obligations, its Pro Rata Share of the amount remaining to be distributed; and
(iv) fourth, to the extent proceeds remain after the application pursuant to the preceding clauses (i) through (iii), inclusive,
and following the termination of this Agreement pursuant to Section 10.2, to the relevant Assignor or to whomever may be lawfully
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entitled to receive such surplus.
(b) For purposes of this Agreement (i) "Pro Rata Share" shall mean, when calculating a Secured Party's portion of any
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distribution or amount, that amount (expressed as a percentage) equal to a fraction the numerator of which is the then unpaid amount
of such Secured Party's Primary Obligations or Secondary Obligations, as the case may be, and the denominator of which is the then
outstanding amount of all Primary Obligations or Secondary Obligations, as the case may be, (ii) "Primary Obligations" shall mean (A)
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in the case of the Credit Agreement Obligations, all principal of, and interest on, all Loans (together with all interest accrued
thereon) under the Credit Agreement, and all fees, (B) in the case of the Other Obligations, all amounts due under the Hedging
Agreements (other than indemnities, fees (including, without limitation, attorneys' fees) and similar obligations and liabilities)
and (iii) "Secondary Obligations" shall mean all Secured Obligations other than Primary Obligations.
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(c) If any payment to any Secured Party of any distribution would result in overpayment to such Secured Party, such excess
amount shall instead be distributed in respect of the unpaid Primary Obligations or Secondary Obligations, as the case may be, of the
other Secured Parties, with each Secured Party whose Primary Obligations or Secondary Obligations, as the case may be, have not been
paid in full to receive an amount equal to such excess amount multiplied by a fraction the numerator of which is the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of such Secured Party and the denominator of which is the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of all Secured Parties entitled to such distribution.
(d) All payments required to be made hereunder shall be made (i) if to the Lenders or the Administrative Agent, to the
Administrative Agent under the Credit Agreement for the account of the Lenders or the Administrative Agent, as the case may be, and
(ii) if to any other Secured Party, to such applicable Secured Party.
(e) For purposes of applying payments received in accordance with this Section 7.4, Collateral Agent shall be entitled to rely
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upon (i) the Administrative Agent under the Credit Agreement, and (ii) the other applicable Secured Parties for a determination
(which the Administrative Agent, and the other Secured Parties agree (or shall agree) to provide upon request of Collateral Agent) of
the outstanding Primary Obligations and Secondary Obligations owed to the Administrative Agent, Lenders or the other applicable
Secured Parties, as the case may be. Unless it has actual knowledge (including by way of written notice from a Secured Party to the
contrary), the Administrative Agent and each other applicable Secured Party, in furnishing information pursuant to the preceding
sentence, and Collateral Agent, in acting hereunder, shall be entitled to assume that no Secondary Obligations are outstanding.
(f) It is understood and agreed that the Assignors shall remain liable to the extent of any deficiency between the amount of the
proceeds of the Collateral hereunder and the aggregate amount of the sums referred to in clauses (i) through (iii), inclusive, of
Section 7.4(a).
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1.159 Remedies Cumulative. Each and every right, power and remedy hereby specifically given to Collateral Agent shall be in
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addition to every other right, power and remedy specifically given under this Agreement, the Hedging Agreements, the other Loan
Documents, or now or hereafter existing at law or in equity, or by statute and each and every right, power and remedy whether
specifically herein given or otherwise existing may be exercised from time to time or simultaneously and as often and in such order
as may be deemed expedient by Collateral Agent. All such rights, powers and remedies shall be cumulative and the exercise or the
beginning of the exercise of one shall not be deemed a waiver of the right to exercise any other or others. No delay or omission of
Collateral Agent in the exercise of any such right, power or remedy and no renewal or extension of any of the Secured Obligations and
no course of dealing between the relevant Assignor and Collateral Agent or any holder of any of the Secured Obligations shall impair
any such right, power or remedy or shall be construed to be a waiver of any Event of Default or an acquiescence therein. No notice
to or demand on any Assignor in any case shall entitle it to any other or further notice or demand in similar or other circumstances
or constitute a waiver of any of the rights of Collateral Agent to any other or further action in any circumstances without notice or
demand. In the event that Collateral Agent shall bring any suit to enforce any of its rights hereunder and shall be entitled to
judgment, then in such suit Collateral Agent may recover expenses, including reasonable attorneys' fees, and the amounts thereof
shall be included in such judgment.
1.160 Discontinuance of Proceedings. In case Collateral Agent shall have instituted any proceeding to enforce any right, power or
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remedy under this Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall have been discontinued or abandoned
for any reason or shall have been determined adversely to Collateral Agent, then and in every such case the relevant Assignor,
Collateral Agent and each holder of any of the Secured Obligations shall be restored to their former positions and rights hereunder
with respect to the Collateral subject to the security interests created under this Agreement, and all rights, remedies and powers of
Collateral Agent shall continue as if no such proceeding had been instituted.
21.
INDEMNITY AND EXPENSES
1.161 Indemnity. (a) Each Assignor jointly and severally agrees to indemnify, reimburse and hold Collateral Agent, each Secured
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Party and each Secured Party's respective successors, assigns, employees, agents and servants (hereinafter in this Section 9.1
-----------
referred to individually as "Indemnitee," and collectively as "Indemnitees") harmless from any and all liabilities, obligations,
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damages, injuries, penalties, claims, demands, actions, suits, judgments and any and all costs, expenses or disbursements (including
reasonable attorneys' fees and expenses) (for the purposes of this Section 9.1 the foregoing are collectively called "expenses") of
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whatsoever kind and nature imposed on, asserted against or incurred by any of the Indemnitees in any way relating to or arising out
of this Agreement, any other Loan Document, or any other document executed in connection herewith or therewith or in any other way
connected with the administration of the transactions contemplated hereby or thereby or the enforcement of any of the terms of, or
the preservation of any rights under any thereof, or in any way relating to or arising out of the manufacture, ownership, ordering,
purchase, delivery, control, acceptance, lease, financing, possession, operation, condition, sale, return or other disposition, or
use of the Collateral (including, without limitation, latent or other defects, whether or not discoverable), any contract claim or,
to the maximum extent permitted under applicable law, the violation of the laws of any country, state or other governmental body or
unit, or any tort (including, without limitation, claims arising or imposed under the doctrine of strict liability, or for or on
account of injury to or the death of any Person (including any Indemnitee), or property damage); provided that no Indemnitee shall be
indemnified pursuant to this Section 8.1(a) for expenses to the extent it arises or results from the bad faith, gross negligence or
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willful misconduct of such Indemnitee as determined by a court of competent jurisdiction. Each Assignor agrees that upon written
notice by any Indemnitee of the assertion of such a liability, obligation, damage, injury, penalty, claim, demand, action, suit or
judgment, the relevant Assignor shall assume full responsibility for the defense thereof. Each Indemnitee agrees to use its best
efforts to promptly notify the relevant Assignor of any such assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 8.1(a) hereof, each Assignor agrees, jointly and severally, to pay, or reimburse
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Collateral Agent for any and all reasonable fees, costs and expenses of whatever kind or nature incurred in connection with the
creation, preservation or protection of Collateral Agent's Liens on, and security interests in, the Collateral, including, without
limitation, all reasonable fees and taxes in connection with the recording or filing of instruments and documents in public offices,
payment or discharge of any taxes or Liens upon or in respect of the Collateral, premiums for insurance with respect to the
Collateral and all other reasonable fees, costs and expenses in connection with protecting, maintaining or preserving the Collateral
and Collateral Agent's interests therein, whether through judicial proceedings or otherwise, or in defending or prosecuting any
actions, suits or proceedings arising out of or relating to the Collateral.
(c) Without limiting the application of Section 8.1(a) or (b) hereof, each Assignor agrees, jointly and severally, to pay,
-------------- ---
indemnify and hold each Indemnitee harmless from and against any loss, costs, damages and expenses which such Indemnitee may suffer,
expend or incur in consequence of or growing out of any misrepresentation by any Assignor in this Agreement, any other Loan Document,
any Hedging Agreement or in any writing contemplated by or made or delivered pursuant to or in connection with this Agreement, any
other Loan Document, or any Hedging Agreement.
(d) If and to the extent that the obligations of any Assignor under this Section 8.1 are unenforceable for any reason, such
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Assignor hereby agrees to make the maximum contribution to the payment and satisfaction of such obligations which is permissible
under applicable law.
1.162 Compensation and Expenses.
-------------------------
(a) The Assignors, jointly and severally, hereby agree to pay to Collateral Agent, upon acceptance by Collateral Agent of the
obligations created by this Agreement and thereafter until all Proceeds are distributed and this Agreement is terminated, from time
to time, upon demand, all of the reasonable costs and expenses of Collateral Agent (including the reasonable fees and disbursements
of its counsel and such special counsel as Collateral Agent reasonably elects to retain) (i) arising in connection with the
preparation, execution, delivery, modification, restatement, amendment or termination of this Agreement, each Mortgage and each
Security Document or the enforcement (whether in the context of a civil action, adversary proceeding, bankruptcy, workout or
otherwise) of any of the provisions hereof or thereof or (ii) incurred or required to be advanced in connection with the
preservation, protection or defense of the Collateral, the Mortgaged Property and all collateral under any and all other Security
Documents (collectively, the "Collateral Agent Costs"). Collateral Agent's compensation shall not be limited by any law relating to
----------------------
compensation of a collateral agent.
(b) When Collateral Agent incurs expenses or renders services after an order for relief with respect to any Assignor shall have
been entered under any applicable bankruptcy, insolvency or other similar law, the expense and any compensation agreed upon for
Collateral Agent's services are intended to constitute expenses of administration under any bankruptcy law.
1.163 Stamp and Other Taxes. Each Assignor agrees to indemnify and hold harmless Collateral Agent and each Secured Party from and
---------------------
against any present or future claim for liability for any stamp or other similar tax and any penalties or interest with respect
thereto which may be assessed, levied or collected by any jurisdiction in connection with this Agreement, the Mortgages and all other
Security Documents, or the attachment or perfection of the security interests granted to Collateral Agent by such Assignor in the
Collateral, the Mortgaged Property and all collateral under any and all other Security Documents. The obligations of the Assignors
under this Section 10.3 shall survive the termination of the other provisions of this Agreement, the Mortgages and the other Security
------------
Documents.
1.164 Filing Fees, Excise Taxes, Etc. Each Assignor agrees to pay or to reimburse Collateral Agent and each Secured Party for any
---------------------------------
and all amounts in respect of all search, filing, recording and registration fees, taxes (other than Excluded Taxes), excise taxes,
sales taxes and other similar imposts which may be payable or reasonably determined to be payable in respect of the execution,
delivery, performance and enforcement of this Agreement, each Mortgage and the other Security Documents and agrees to save Collateral
Agent and each Secured Person harmless from and against any and all liabilities with respect to or resulting from any delay in paying
or omission to pay such taxes and fees. The obligations of the Assignors under this Section 10.4 shall survive the termination of
------------
the other provisions of this Agreement, the Mortgages and the other Security Documents.
1.165 Indemnity and Expense Obligations Secured by Collateral; Survival. The indemnity and expense reimbursement obligations of
-------------------------------------------------------------------
each Assignor contained in this Article VIII shall continue in full force and effect notwithstanding the full payment of all the Term
------------
Notes issued under the Credit Agreement, the termination of all Hedging Agreements and the payment of all other Secured Obligations
and notwithstanding the discharge thereof or any other termination of this Agreement, including pursuant to Section 12.2.
------------
22.
COLLATERAL AGENT
1.166 Exculpatory Provisions.
----------------------
(a) Collateral Agent shall not be responsible in any manner whatsoever for the correctness of any recitals, statements,
representations or warranties contained herein, in the Mortgages or in any other Security Document. Collateral Agent makes no
representations as to the value or condition of the Collateral or any part thereof, or as to the title of the respective Assignors
thereto or as to the security afforded by the Mortgages or this Agreement, or as to the validity, execution (except its own
execution), enforceability, legality or sufficiency of this Agreement, any Mortgage or of the Secured Obligations, and Collateral
Agent shall incur no liability or responsibility in respect of any such matters. Collateral Agent shall not be responsible for
insuring the Collateral or for the payment of taxes, charges, assessments or liens upon the Collateral or otherwise as to the
maintenance of the Collateral, except that (i) in the event Collateral Agent enters into possession of a part or all of the
Collateral, Collateral Agent shall preserve the part in its possession and (ii) Collateral Agent will promptly, and at its own
expense, take such action as may be necessary to duly remove and discharge (by bonding or otherwise) any lien on any part of the
Collateral resulting from claims against it (whether individually or as Collateral Agent) not related to the administration of the
Collateral or (if so related) resulting from negligence or willful misconduct on its part. Collateral Agent shall not be obligated
to preserve or protect any rights with respect to the Pledged Intercompany Notes or the Pledged Stock or to receive or give any
notice with respect thereto whether or not Collateral Agent is deemed to have knowledge of such matters.
(b) Collateral Agent shall not be required to ascertain or inquire as to the performance by any Assignor of any of the covenants
or agreements contained herein, in any Mortgage or in any Loan Document. Whenever it is necessary, or in the opinion of Collateral
Agent advisable, for Collateral Agent to ascertain the amount of, or whether the term "Fully Paid" applies to, any Secured
Obligations, Collateral Agent may rely on a certificate of the respective Secured Party with respect thereto. Each Secured Party
agrees to promptly provide any such certificate so requested by Collateral Agent, to the extent such information is contained on the
books and records of the party requested to deliver such certificate, and to notify Collateral Agent when those Secured Obligations
owed to it are Fully Paid.
(c) Beyond its duties set forth in this Agreement and as may be required by law as to the custody of the Collateral and the
accounting to each Assignor and the Secured Parties for moneys received by it hereunder, Collateral Agent shall not have any duty to
any Assignor or to the Secured Parties as to any of the Collateral in its possession or control or in the possession or control of
any agent or nominee of it or any income thereof or as to the preservation of rights against prior parties or any other rights
pertaining thereto, except as required by Requirements of Law. To the extent, however, that Collateral Agent or an agent or nominee
of Collateral Agent maintains possession or control of any of the Collateral at any office of any Assignor, Collateral Agent shall or
shall instruct such agent or nominee to, grant such Assignor access to (but not possession of) such Collateral that such Assignor
requires for the normal conduct of its business, which right of access may be revoked by Collateral Agent at any time an Event of
Default has occurred and is continuing.
1.167 Delegation of Duties. Collateral Agent may execute any of the powers hereof and perform any duty hereunder either directly
--------------------
or by or through agents, nominees or attorneys-in-fact. Collateral Agent shall be entitled to advice of counsel concerning all
matters pertaining to such powers and duties. Collateral Agent shall not be responsible for the negligence or misconduct of any
agents, nominees or attorneys-in-fact selected by it without gross negligence or willful misconduct.
1.168 Reliance by Collateral Agent.
----------------------------
(a) Whenever in the administration of this Agreement Collateral Agent shall deem it necessary or desirable that a matter be
proved or established with respect to any Assignor in connection with the taking, suffering or omitting of any action hereunder by
Collateral Agent, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be
conclusively provided or established by a certificate of a Responsible Officer of such Assignor.
(b) Collateral Agent may rely, and shall be fully protected in acting, upon any resolution, statement, certificate, instrument,
opinion, report, notice, request, consent, order, bond or other paper or document which it believes in good faith to be genuine and
to have been signed or presented by the proper party or parties or, in the case of telecopies, to have been sent by the proper party
or parties. In the absence of its gross negligence or willful misconduct, Collateral Agent may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to Collateral Agent
and conforming to the requirements of this Agreement, any Mortgage or any other Security Document, or as set forth on such Person's
books and records.
(c) If Collateral Agent has been requested to take any action pursuant to this Agreement, any Mortgage or any other Security
Document, Collateral Agent shall not be under any obligation to exercise any of the rights or powers vested in Collateral Agent by
this Agreement or any Mortgage unless Collateral Agent shall have been provided, by the party making such request, adequate security
against the costs, expenses and liabilities which may be incurred by it in compliance with such request or direction, including such
reasonable advances as may be requested by Collateral Agent.
1.169 Limitations on Duties of Collateral Agent.
-----------------------------------------
(a) Collateral Agent shall be obliged to perform such duties and only such duties as are specifically set forth in this
Agreement, in any Mortgage or any other Security Document.
(b) Collateral Agent shall furnish to the Secured Parties promptly upon receipt thereof a copy of each material certificate or
other paper furnished to Collateral Agent by any Assignor under, in respect of or pursuant to this Agreement, any Mortgage or any of
the Collateral, unless by the terms hereof or of any Mortgage or other Security Document, a copy of the same is required to be
furnished by some other Person directly to the Secured Parties or Collateral Agent shall have determined that the same has already
been so furnished.
1.170 Collateral to Be Held for Benefit of Secured Parties. All Collateral received by Collateral Agent under or pursuant to any
-----------------------------------------------------
provision of this Agreement or any Mortgage shall be held for the benefit of the Secured Parties for the purposes for which they were
paid or are held, but Collateral, including Proceeds, need not be segregated from other property held by Collateral Agent except to
the extent required by law or as necessary to preserve the Liens with respect to the Collateral. Collateral Agent shall have no
liability for interest on any money received by Collateral Agent hereunder except to the extent actually received by it from time to
time from investments made in accordance with the provisions hereof, the Mortgages or any other Security Document.
1.171 Resignation and Removal of Collateral Agent.
-------------------------------------------
(a) Collateral Agent may at any time, by giving thirty (30) days' prior written notice to the Lenders, the Administrative Agent
and the Assignors, resign and be discharged of the responsibilities hereby created, such resignation to become effective upon the
appointment of a successor agent or agents and the acceptance of such appointment by such successor agent or agents. The appointment
of a successor agent or agents shall be within the discretion of Administrative Agent. Collateral Agent may be removed at any time
and a successor agent appointed by Administrative Agent; provided that Collateral Agent shall be entitled to its fees and expenses to
--------
the date of removal. If no agent or agents shall be appointed and approved within thirty (30) days from the date of the giving of
the aforesaid notice of resignation or within (30) days from the date of such removal, Collateral Agent shall, or the Administrative
Agent may, apply to any court of competent jurisdiction to appoint a successor agent or agents to act until such time, if any, as a
successor agent or agents shall have been appointed as above provided. Any successor agent or agents so appointed by such court
shall immediately and without further act be superseded by any successor agent or agents appointed by the Administrative Agent as
above provided.
(b) If at any time Collateral Agent shall become incapable of acting, or if at any time a vacancy shall occur in the office of
Collateral Agent for any other cause, a successor agent or agents may be appointed by the Administrative Agent, and the powers,
duties, authority and title of the predecessor agent or agents terminated and canceled without procuring the resignation of such
predecessor agent or agents, and without any formality (except as may be required by applicable law) other than the appointment and
designation of a successor agent or agents in writing, duly acknowledged, delivered to the predecessor agent or agents, and filed for
record in each public office, if any, in which this Agreement is required to be filed. If no agent or agents shall be appointed and
approved within thirty (30) days from the date Collateral Agent becomes incapable of acting or a vacancy shall occur in the office of
Collateral Agent, any Assignor or any Secured Party may apply to any court of competent jurisdiction to appoint a successor agent or
agents to act until such time, if any, as a successor agent or agents shall have been appointed as above provided. Any successor
agent or agents so appointed by such court shall immediately and without further act be superseded by any successor agent or agents
approved by the Administrative Agent as above provided.
(c) The appointment and designation referred to in Section 10.6(a) or 10.6(b) shall, after any required filing, be full evidence
--------------- -------
of the right and authority to make the same and of all the facts therein recited, and this Agreement shall vest in such successor
agent or agents, without any further act, deed or conveyance, all of the estate and title of its predecessor or their predecessors,
and upon such filing for record the successor agent or agents shall become fully vested with all the estates, properties, rights,
powers, trusts, duties, authority and title of its predecessor or their predecessors; but such predecessor or predecessors shall,
nevertheless, on the written request of the Administrative Agent, or its or their successor agent or agents, execute and deliver an
instrument transferring to such successor or successors all the estates, properties, rights, powers, trusts, duties, authority and
title of such predecessor or predecessors hereunder and shall deliver all securities and moneys held by it or them to such successor
agent or agents. Should any deed, conveyance or other instrument in writing from any Assignor or from the Secured Parties, as
applicable, be required by any successor agent or agents for more fully and certainly vesting in such successor agent or agents the
estates, properties, rights, powers, trusts, duties, authority and title vested or intended to be vested in the predecessor agent or
agents, any and all such deeds, conveyances and other instruments in writing shall, on request of such successor agent or agents, be
executed, acknowledged and delivered by such Assignor and the Secured Parties, as applicable.
(d) Any required filing for record of the instrument appointing a successor agent or agents as hereinabove provided shall be at
the joint and several expense of the Assignors. The resignation of any agent or agents and the instrument or instruments removing
any agent or agents, together with all other instruments, deeds and conveyances provided for in this Article IX shall, if required by
----------
law, be forthwith recorded, registered and filed by and at the joint and several expense of the Assignors, wherever this Agreement is
recorded, registered and filed.
(e) Collateral Agent's obligations hereunder are limited to the extent set forth in Section 12.16(c) of the Credit Agreement.
--------
1.172 Merger of Collateral Agent. Any corporation into which Collateral Agent shall be merged, or with which it shall be
----------------------------
consolidated, or any corporation resulting from any merger or consolidation to which Collateral Agent shall be a party, shall be
Collateral Agent under this Agreement without the execution or filing of any paper or any further act on the part of the parties
hereto.
1.173 Additional Co-Agents; Separate Agents.
-------------------------------------
(a) If at any time or times it shall be necessary in order to conform to any applicable law of any jurisdiction in which any of
the Collateral shall be located, or Collateral Agent shall be advised by counsel, satisfactory to it, that it is so necessary in the
interest of the Secured Parties, or the Administrative Agent shall in writing so request, or Collateral Agent shall deem it desirable
for its own protection in the performance of its duties hereunder, each Assignor shall execute and deliver all instruments and
agreements reasonably necessary or proper to constitute another bank or trust company, or one or more Persons approved by Collateral
Agent and the Administrative Agent either to act as co-agent or co-agents of all or any of the Collateral, jointly with Collateral
Agent originally named herein or any successor or successors, or to act as separate agent or agents of any such property.
(b) Every separate agent and every co-agent, other than any agent which may be appointed as successor to Collateral Agent,
shall, to the extent permitted by law, be appointed and act and be such, subject to the following provisions and conditions, namely:
(i) all rights, powers, duties and obligations conferred upon Collateral Agent in respect of the custody, control and management
of moneys, papers or securities shall be exercised solely by Collateral Agent, or its successors as Collateral Agent hereunder;
(ii) all rights, powers, duties and obligations conferred or imposed upon Collateral Agent hereunder shall be conferred or
imposed and exercised or performed by Collateral Agent and such separate agent or separate agents or co-agent or co-agents, except to
the extent that under any law of any jurisdiction in which any particular act or acts are to be performed Collateral Agent shall be
incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations shall be exercised
and performed by such separate agent or separate agents or co-agent or co-agents;
(iii) notwithstanding anything to the contrary contained herein, no power given or provided hereby to any such co-agent or
co-agents or separate agents may be exercised by it or them, except jointly with, or with the consent in writing of, Collateral Agent;
(iv) no agent hereunder shall be personally liable by reason of any act or omission of any other agent hereunder; and
(v) Collateral Agent, at any time by an instrument in writing, executed by Collateral Agent, may accept for itself and on behalf
of the Secured Parties the resignation of or remove any such separate agent or co-agent, and in that case, by an instrument in
writing executed by Collateral Agent, may appoint a successor to such separate agent or co-agent, as the case may be, anything herein
contained to the contrary notwithstanding. The Secured Parties hereby irrevocably appoint Collateral Agent, their agent and attorney
to act for them in respect of such separate agent or co-agent or separate agents or co-agents as above provided.
23.
TERMINATION; REINSTATEMENT;
RELEASES OF COLLATERAL UPON SATISFACTION
1.174 Release of Certain Security. Subject to the provisions of Section 12.16 of the Credit Agreement, upon receipt by Collateral
--------------------------- -------------
Agent from time to time of a request from an Assignor for the release of any specific portion of the Collateral or the Liens in any
Collateral granted by such Assignor pursuant to any of the documents included in or pertaining to the Collateral (including, without
limitation, Liens on Collateral being sold in accordance with Section 8.6 of the Credit Agreement), together with a certificate of a
-----------
Responsible Officer of such Assignor certifying, with appropriate calculations where necessary, compliance with Section 12.16 of the
-------------
Credit Agreement, all right, title and interest of Collateral Agent in, to and under such Collateral and the Liens of Collateral
Agent therein shall automatically terminate and shall revert to the applicable Assignor. Following such termination or release,
Collateral Agent shall, upon the written request of such Assignor, or upon the written request or instructions of the Administrative
Agent, promptly execute such instruments and take such other actions as are necessary or desirable to terminate such Liens and
otherwise effectuate and evidence the release of the specified portions of the Collateral (including, without limitation, delivering
to the respective Assignor all Collateral in the possession of Collateral Agent). Any such delivery shall be without warranty of, or
recourse to, Collateral Agent, other than a representation that there are no Liens on such property attributable to Collateral
Agent. Such termination and release shall be without prejudice to the rights of Collateral Agent to charge and be reimbursed for any
reasonable expenditure which it may incur in connection with the foregoing.
1.175 Termination Upon Satisfaction. Upon receipt by Collateral Agent of evidence satisfactory to it that all Credit Agreement
-------------------------------
Obligations are Fully Paid, this Agreement shall (except with respect to any provisions which expressly survive such termination)
terminate and all right, title and interest of Collateral Agent in, to and under the Collateral and the Liens of Collateral Agent
therein shall automatically be released and terminated and shall revert to the respective Assignors and Collateral Agent shall have
no further obligations hereunder. In such event, Collateral Agent, at the request and expense of the Assignors, will promptly
execute and deliver to the Assignors, a proper instrument or instruments acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to the respective Assignors all of the Collateral held by Collateral Agent
hereunder. Such termination and release shall be without prejudice to the right of Collateral Agent to charge and be reimbursed for
any reasonable expenditure which it might incur in connection therewith. As used in this Agreement, the term "Termination Date"
-----------------
shall mean the date upon which this Agreement shall have terminated in accordance with the first sentence of this Section 10.2.
------------
24.
MISCELLANEOUS
1.176 Notices, Etc. All notices, requests, demands or other communications pursuant hereto shall be deemed to have been given or
-------------
made when delivered to the Person to which such notice, request, demand or other communication is required or permitted to be given
or made under this Agreement, addressed to such party at (i) in the case of the Collateral Agent, as provided in the Credit
Agreement, (ii) in the case of any Assignor, c/o United States Can Company as provided in the Credit Agreement and (iii) in the case
of any other Secured Party, at such address as such Secured Party shall have specified in writing to the Assignors and Collateral
Agent; or in any case at such other address as any of the Persons listed above may hereafter notify the others in writing.
1.177 Waiver; Amendment.
-----------------
(a) Subject to Section 11.2(c), none of the terms and conditions of this Agreement may be changed, waived, modified or varied in
---------------
any manner whatsoever unless in writing duly signed by each Assignor directly affected thereby and Collateral Agent (with the written
consent of the Required Lenders, or to the extent required by Section 12.1 of the Credit Agreement, all the Lenders).
-------------
Notwithstanding the foregoing, any change, waiver, modification or variance materially adversely affecting the rights and benefits of
a class of Secured Party (and not all classes of Secured Parties in a like or similar manner) shall require the written consent of
all holders of obligations in such class of Secured Party.
(b) The Assignors and Collateral Agent, at any time and from time to time, may enter into additional security documents or one
or more agreements supplemental hereto or to any Mortgage for the purpose of subjecting additional property to a lien in favor of
Collateral Agent for the benefit of any or all of the Secured Parties.
(c) Notwithstanding the provisions of Section 11.2(a) hereof, and without the consent of any Person, Collateral Agent and the
---------------
Assignors may, from time to time, enter into written agreements supplemental hereto or to the Mortgages for the purpose of (w)
supplementing the information set forth in any Schedule hereto, (x) making any ministerial or clarifying modification to this
Agreement or any Mortgage, including, but not limited to, clarifying or correcting clerical or typographical errors in this Agreement
or any Mortgage; (y) permitting the release of Collateral Agent's Liens in or on any Asset ("Release (Correction)") that was never
---------------------
owned by the applicable Assignor or that was never intended by the parties hereto to have been pledged or given as security pursuant
hereto or the Mortgages or (z) releasing Collateral from the security interests of this Agreement pursuant to the terms hereof. At
least ten (10) Business Days (or such shorter period as may be acceptable to Collateral Agent) prior to executing any supplemental
agreement pursuant to the terms of this Section 11.2(c), the effect of which agreement is to permit a Release (Correction),
----------------
Collateral Agent and the Secured Parties shall be entitled to receive a certificate (upon which Collateral Agent may conclusively
rely) from a Responsible Officer of the respective Assignor certifying (i) that such property was never owned by such Assignor or
(ii) that such property was never intended to have been pledged or given as security pursuant hereto or the Mortgages. Any such
supplemental agreement shall be binding upon each Assignor, the Secured Parties, Collateral Agent and their respective successors and
assigns.
(d) Notwithstanding the foregoing, any Person who hereafter becomes a Domestic Subsidiary of the Company shall, in accordance
with Section 7.11 of the Credit Agreement become a party to this Agreement by execution of a supplement to this Agreement in the form
------------
of Annex D (with only such changes thereto as are agreed to by Collateral Agent), whereupon such Person shall be deemed an Assignor
-------
for all purposes hereunder.
(e) Assignors may amend and supplement the Schedules hereto to reflect changes resulting from transactions to the extent
permitted by the Credit Agreement (and the other Loan Documents) and as provided in Section 3.2 provided that notice and copies of
-----------
any such amendments and supplements are provided to Collateral Agent and the Administrative Agent.
1.178 Obligations Absolute. To the extent permitted by applicable laws, the obligations of each Assignor hereunder shall remain
---------------------
in full force and effect without regard to, and shall not be impaired by, (a) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or the like of such Assignor; (b) any exercise or non-exercise, or any waiver of,
any right, remedy, power or privilege under or in respect of this Agreement, any other Loan Document or any Hedging Agreement except
as specifically set forth in a waiver granted pursuant to Section 14.2 hereof; or (c) any amendment to or modification of any Loan
------------
Document or any Hedging Agreement or any security for any of the Secured Obligations, whether or not any Assignor shall have notice
or knowledge of any of the foregoing.
1.179 Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective successors and assigns
----------------------
and shall inure to the benefit of Collateral Agent, each Secured Party and each Assignor and their respective successors and assigns,
provided that no Assignor may transfer or assign any or all of its rights or obligations hereunder without the written consent of the
Required Lenders. All agreements, statements, representations and warranties made by each Assignor herein or in any certificate or
other instrument delivered by such Assignor or on its behalf under this Agreement shall be considered to have been relied upon by the
Secured Parties and shall survive the execution and delivery of this Agreement, the other Loan Documents and the Hedging Agreements
regardless of any investigation made by the Secured Parties or on their behalf.
1.180 Headings Descriptive. The headings of the several sections of this Agreement are inserted for convenience only and shall
---------------------
not in any way affect the meaning or construction of any provision of this Agreement.
1.181 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such
------------
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
1.182 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
--------------
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF SAID STATE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW (EXCEPT SECTION 5-1401 OF THE GENERAL SECURED OBLIGATIONS LAW).
1.183 Assignor's Duties. It is expressly agreed, anything herein contained to the contrary notwithstanding, that each Assignor
------------------
shall remain liable to perform all of the obligations, if any, assumed by it with respect to the Collateral and Collateral Agent
shall not have any obligations or liabilities with respect to any Collateral by reason of or arising out of this Agreement, nor shall
Collateral Agent be required or obligated in any manner to perform or fulfill any of the obligations of any Assignor under or with
respect to any Collateral in each case except to the extent expressly provided in this Agreement.
1.184 No Action by Secured Parties. The Secured Parties agree not to take any action whatsoever to enforce any term or provision
-----------------------------
hereof, of any Mortgage or of any other Security Document or to enforce any rights in respect of the Collateral, except through
Collateral Agent and in accordance with this Agreement.
1.185 Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate
------------
counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and
the same instrument.
1.186 Definitions; Interpretation.
---------------------------
(a) Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings ascribed thereto in Annex
------
A or, if not defined herein or in Annex A, as defined in the Credit Agreement.
-------
(b) The definitions set forth in Annex A shall be equally applicable to both the singular and plural forms of the defined
-------
terms. The words "herein", "hereof", "hereto" and words of similar import as used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision in this Agreement. References to "Articles", "Sections", "Subsections", "paragraphs",
"Exhibits", "Schedules" and "Annexes" in this Agreement shall refer to Articles, Sections, Subsections, paragraphs, Exhibits,
Schedules and Annexes of this Agreement unless otherwise expressly provided; references to Persons include their respective permitted
successors and assigns or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all
references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by
their duly authorized officers as of the date first above written.
U.S. CAN CORPORATION,
as an Assignor
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
UNITED STATES CAN COMPANY,
as an Assignor
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
USC MAY VERPACKUNGEN HOLDING INC.,
as an Assignor
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
----------------------------------------------
Schedule A
to
Agreement
---------
PLEDGED INTERCOMPANY NOTES
--------------------------
Schedule B
to
Agreement
---------
PLEDGED STOCK
-------------
Schedule 2.4
to
Agreement
---------
CHIEF EXECUTIVE OFFICES
-----------------------
Schedule 2.5
to
Agreement
---------
INVENTORY AND EQUIPMENT LOCATIONS
---------------------------------
Schedule 2.6
to
Agreement
---------
SCHEDULE OF NAME, TRADE, FICTITIOUS AND OTHER NAMES;
-----------------------------------------------------
CORPORATE IDENTIFICATION NUMBERS
--------------------------------
Exact Legal Name of Each Assignor Jurisdiction of FEIN Delaware Organization
--------------------------------- ---------------- ---- ---------------------
Incorporation Number
------------- ------
Schedule 2.7
to
Agreement
---------
TRANSPORTATION ASSETS
---------------------
Schedule 2.8
to
Agreement
---------
COMMERCIAL TORT CLAIMS
----------------------
Schedule 5.1
to
Agreement
---------
SCHEDULE OF THIRD PARTY INTELLECTUAL PROPERTY CLAIMS
I. SCHEDULE OF U.S. TRADEMARK REGISTRATIONS
----------------------------------------
Registered Xxxx Registration No. Filing Date
--------------- ---------------- -----------
II. SCHEDULE OF PENDING APPLICATIONS FOR U.S. TRADEMARK
---------------------------------------------------
REGISTRATION ON THE BASIS OF INTENT TO USE THE
----------------------------------------------
XXXX IN COMMERCE UNDER 17 USCss.1051(b)
---------------------------------------
Xxxx Serial Filing Date
---- ------ -----------
Schedule 5.1
to
Agreement
---------
III. SCHEDULE OF PATENTS AND APPLICATIONS
------------------------------------
Schedule 5.1
to
Agreement
---------
IV. SCHEDULE OF UNITED STATES COPYRIGHTS
------------------------------------
Annex A
to
Agreement
---------
DEFINITIONS
-----------
The following terms shall have the meanings herein specified. Such definitions shall be equally applicable to the
singular and plural forms of the terms defined.
"Accounts" shall mean any "account" as such term is defined in Article 9 of the Uniform Commercial Code, now or
--------
hereafter owned by any Assignor and, in any event, shall include, but shall not be limited to, all of such Assignor's rights to
payment of a monetary obligation, whether or not earned by performance, including, without limitation, rights evidenced by an
account, note, contract, security agreement, chattel paper, or other evidence of indebtedness or security, together with (i) all
security pledged, assigned, hypothecated or granted to or held by such Assignor to secure the foregoing, (ii) all of such Assignor's
right, title and interest in and to any goods, the sale of which gave rise thereto, (iii) all guarantees, endorsements and
indemnifications on, or of, any of the foregoing, (iv) all powers of attorney for the execution of any evidence of indebtedness or
security or other writing in connection therewith, (v) all books, records, ledger cards, and invoices relating thereto, (vi) all
evidences of the filing of financing statements and other statements and the registration of other instruments in connection
therewith and amendments thereto, notices to other creditors or secured parties, and certificates from filing or other registration
officers, (vii) all credit information, reports and memoranda relating thereto, and (viii) all other writings related in any way to
the foregoing.
"Administrative Agent" shall have the meaning provided in the recitals to this Agreement.
--------------------
"Agreement" shall mean this Security Agreement, as the same may be modified, supplemented, extended, renewed,
---------
replaced, restated or amended from time to time in accordance with its terms.
"Assignor" shall have the meaning provided in the first paragraph of this Agreement.
--------
"Bankruptcy Code" means Title II of the United States Bankruptcy Code, 11 X.X.X.xx.xx. seq., as amended from time to
---------------- --------
time.
"Capital Stock" means, any and all shares, interests, participations, rights in or other equivalents (however
--------------
designated) of capital stock, partnership interests, membership interests or other equivalent interests and any rights (other than
debt securities convertible into or exchangeable for capital stock), warrants or options exchangeable for or convertible into such
capital stock or other equity interests.
"Chattel Paper" shall have the meaning provided in Article 9 of the Uniform Commercial Code.
-------------
"Collateral" shall have the meaning provided in Section 1.1(a) of this Agreement.
---------- --------------
"Collateral Agent" means Deutsche Bank Trust Company Americas, in its capacity as collateral agent under the
-----------------
Agreement for each of the Secured Parties, until one or more successors are appointed pursuant to Article XI of the Agreement and
thereafter shall mean such successor or successors and all successors thereto.
"Collateral Agent Costs" shall have the meaning provided in Section 8.2 of this Agreement.
---------------------- -----------
"Commercial Tort Claim" shall have the meaning provided in Article 9 of the Uniform Commercial Code, and shall
----------------------
include any such claim that is listed on Schedule 2.8 (as such Schedule may be amended from time to time in accordance with Section
------------ --------
2.8 or otherwise).
---
"Company" shall have the meaning provided in the recitals to this Agreement.
-------
"Contract Rights" shall mean all rights of any Assignor (including, without limitation, all rights to payment) under
---------------
each Contract.
"Contracts" shall mean all contracts between any Assignor and one or more additional parties (including, without
---------
limitation, (i) each partnership agreement to which such Assignor is a party and (ii) any Hedging Agreements.
"Control" shall have the meaning provided in Articles 8 and 9 of the Uniform Commercial Code.
-------
"Copyrights" shall mean any registrations of any Copyrights in the United States Copyright Office which any Assignor
----------
now owns or hereafter acquires, as well as any application for a United States copyright registration now or hereafter made with the
United States Copyright Office by any Assignor.
"Credit Agreement" shall have the meaning provided in the recitals to this Agreement.
----------------
"Credit Agreement Obligations" shall have the meaning provided in the definition of "Secured Obligations" in this
------------------------------
Annex A.
-------
"Deposit Accounts" shall have the meaning provided in Article 9 of the Uniform Commercial Code and, in any event,
-----------------
shall include any demand, time, savings, passbook or like account maintained with a bank, savings and loan association, credit union
or like organization.
"Documents" shall have the meaning provided in Article 9 of the Uniform Commercial Code.
---------
"Electronic Chattel Paper" shall have the meaning provided in Article 9 of the Uniform Commercial Code.
------------------------
"Equipment" shall have the meaning provided in Article 9 of the Uniform Commercial Code and, in any event, shall
---------
include, but shall not be limited to, all machinery, equipment, furnishings and fixtures, including movable trade fixtures now or
hereafter owned by any Assignor and any and all additions, substitutions and replacements of any of the foregoing, wherever located,
together with all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.
"Event of Default" shall mean any Event of Default under, and as defined in, the Credit Agreement.
----------------
"Excluded Transportation Assets" means, titled vehicles, vessels and other assets and properties owned by Assignors
-------------------------------
in which a security interest may not be perfected through the filing of financing statements under the UCC and which have an
aggregate fair market value from time to time of less than $2,500,000 for all Assignors together.
"Farm Products" shall have the meaning provided in Article 9 of the Uniform Commercial Code.
-------------
"Fixtures" shall have the meaning provided in Article 9 of the Uniform Commercial Code.
--------
"Fully Paid" means with respect to any Secured Obligations, that the respective obligee of such Obligation (which
----------
obligee shall be, in the case of the Credit Agreement Obligations, the Administrative Agent), shall have certified to Collateral
Agent that such Obligation has terminated, that there remain no obligations of any kind whatsoever of any Assignor with respect
thereto (other than contingent indemnification obligations as to which no claims shall have accrued or be pending) and that all
obligations and commitments of all Secured Parties under the documents evidencing such Secured Obligations have been terminated.
"General Intangibles" shall have the meaning provided in Article 9 of the Uniform Commercial Code and shall in any
--------------------
event include all Payment Intangibles of any Assignor and all of any Assignor's claims, rights, powers, privileges, authority,
options, security interests, liens and remedies under any partnership agreement to which such Assignor is a party or with respect to
any partnership of which such Assignor is a partner.
"Goods" shall have the meaning provided in Article 9 of the Uniform Commercial Code.
-----
"Health Care Insurance Receivables" shall have the meaning provided in Article 9 of the Uniform Commercial Code.
---------------------------------
"Hedging Agreements" shall have the meaning provided in the first paragraph of this Agreement.
------------------
"Indemnitee" shall have the meaning provided in Section 8.1 of this Agreement.
---------- -----------
"Instrument" shall have the meaning provided in Article 9 of the Uniform Commercial Code.
----------
"Intercompany Notes" means a promissory note evidencing indebtedness of a Subsidiary to Holdings or Company or an
-------------------
unsecured promissory note of Company evidencing indebtedness to Holdings or a Subsidiary, in any case, in the form of Exhibit A
---------
hereto (with only changes thereto as are reasonably agreed to by Collateral Agent).
"Inventory" shall have the meaning provided in Article 9 of the Uniform Commercial Code and, in any event, shall
---------
include, but shall not be limited to, all merchandise, inventory and goods, and all additions, substitutions and replacements
thereof, wherever located, together with all goods, supplies, incidentals, packaging materials, labels, materials and any other items
used or usable in manufacturing, processing, packaging or shipping same; in all stages of production -- from raw materials through
work-in-process to finished goods -- and all products and proceeds of whatever sort and wherever located and any portion thereof
which may be returned, rejected, reclaimed or repossessed by Collateral Agent from any Assignor's customers.
"Investment Property" shall have the meaning provided in Article 9 of the Uniform Commercial Code and shall include,
-------------------- ---------
without limitation (i) all Capital Stock and other securities, whether certificated or uncertificated; (ii) all securities
entitlements of any Assignor, including without limitation, the rights of any Assignor to any securities account and the financial
assets held by a securities intermediary in such securities account and any free credit balance or other money owing by any
securities intermediary with respect to that account; (iii) all securities accounts held by any Assignor; (iv) all commodity
contracts held by any Assignor; and (v) all commodity accounts held by any Assignor.'
"Leases" shall have the meaning provided in Article 9 of the Uniform Commercial Code.
------
"Lenders" shall have the meaning provided in the recitals to this Agreement.
-------
"Letter-of-Credit Rights" shall have the meaning as provided in Article 9 of the Uniform Commercial Code.
-----------------------
"Marks" shall mean all right, title and interest in and to any trademarks and service marks and trade names now held
-----
or hereafter acquired by any Assignor, which are registered in the United States Patent and Trademark Office or in any similar office
or agency of the United States or any state thereof or any political subdivision thereof and any application for such trademarks and
service marks, as well as any unregistered marks used by any Assignor in the United States and trade dress including logos, designs,
trade names, company names, business names, fictitious business names and other business identifiers in connection with which any of
these registered or unregistered marks are used in the United States.
"Material Commercial Tort Claim" shall mean all claims for an amount in excess of $1,000,000.
------------------------------
"Other Obligations" shall have the meaning provided in the definition of "Secured Obligations" in this Annex A.
----------------- -------
"Patents" shall mean any United States patent now or hereafter owned by any Assignor, as well as any application for
-------
a United States patent now or hereafter owned by any Assignor.
"Payment Intangibles" shall have the meaning provided in Article 9 of the Uniform Commercial Code.
-------------------
"Permitted Liens" shall have the meaning provided in the Credit Agreement.
---------------
"Pledged Intercompany Notes" means the Intercompany Notes described on Schedule B hereto, as it may, from time to
---------------------------- ----------
time, be supplemented in accordance with the terms of this Agreement.
"Pledged Securities" means, collectively, the Pledged Stock, any pledged promissory notes and the Pledged
-------------------
Intercompany Notes, if any.
"Pledged Stock" means Capital Stock described in Schedule C hereto, as it may, from time to time, be supplemented in
------------- ----------
accordance with the terms of the Agreement, and any other shares of capital stock pledged to Collateral Agent hereunder or which
otherwise become a part of the Collateral.
"Post-Petition Interest" shall mean interest accruing in respect of Secured Obligations after the commencement of
-----------------------
any bankruptcy, insolvency, receivership or similar proceedings by or against the Company, at the rate applicable to such Secured
Obligations pursuant to the applicable Loan Documents, whether or not such interest is allowed as a claim enforceable against the
Company in a bankruptcy case under the Bankruptcy Code, and any other interest that would have accrued but for the commencement of
such proceedings.
"Primary Obligations" shall have the meaning provided in Section 7.4(b) of this Agreement.
------------------- --------------
"Proceeds" shall have the meaning provided in Article 9 of the Uniform Commercial Code or under other relevant law
--------
and, in any event, shall include, but not be limited to, (i) any and all proceeds of any insurance, indemnity, warranty or guarantee
payable to Collateral Agent or any Assignor from time to time with respect to any of the Collateral, (ii) any and all payments (in
any form whatsoever) made or due and payable to any Assignor from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral by any governmental authority (or any person acting under
color of governmental authority) and (iii) any and all other amounts from time to time paid or payable under or in connection with
any of the Collateral.
"Pro Rata Share" shall have the meaning provided in Section 7.4(b) of this Agreement.
-------------- --------------
"Secondary Obligations" shall have the meaning provided in Section 7.4(b) of this Agreement.
--------------------- --------------
"Secured Obligations" shall mean (i) the full and prompt payment when due (whether at the stated maturity, by
--------------------
acceleration or otherwise) of all obligations (including, without limitation, all "Obligations" as such term is defined in the Credit
Agreement and all obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and
liabilities of each Assignor now existing or hereafter incurred under, arising out of or in connection with the Credit Agreement or
any other Loan Document to which such Assignor is a party and the due performance and compliance by each Assignor with all of the
terms, conditions and agreements contained in each such Loan Document (all such obligations and liabilities being herein collectively
called the "Credit Agreement Obligations"); (ii) the full and prompt payment when due (whether at the stated maturity, by
------------------------------
acceleration or otherwise) of all obligations (including obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities of each Assignor now existing or hereafter incurred under, arising out of or in
connection with any Hedging Agreement (including, in the case of Assignors other than the Company, all obligations of such Assignor
under its Guarantee in respect of Hedging Agreements), and the due performance and compliance by each Assignor with all of the terms,
conditions and agreements contained therein (all such obligations and liabilities described in this clause (ii) being herein
collectively called the "Other Obligations"); (iii) any and all sums advanced by Collateral Agent in order to preserve the Collateral
------------------
or preserve its security interests in the Collateral; (iv) in the event of any proceeding for the collection or enforcement of any
indebtedness, obligations, or liabilities of any Assignor referred to in clauses (i), (ii) and (iii), after an Event of Default shall
have occurred and be continuing, the reasonable expenses of taking, holding, preparing for sale or lease, selling or otherwise
disposing of or realizing on the Collateral, or of any exercise by Collateral Agent of its rights hereunder, together with reasonable
attorneys' fees and court costs; and (v) all amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement under Section 8.1 of this Agreement. It is acknowledged and agreed that the "Secured Obligations" shall include
-----------
extensions of credit of the types described above, whether outstanding on the date of this Agreement or extended from time to time
after the date of this Agreement.
"Secured Party" shall have the meaning provided in the first paragraph of this Agreement.
-------------
"Significant Copyrights" shall mean, at any time, those Copyrights which the relevant Assignor believes in its
-----------------------
reasonable judgment to be material to its business at such time.
"Significant Intellectual Property" shall mean the Significant Copyrights, Significant Marks and Significant Patents.
---------------------------------
"Significant Marks" shall mean, at any time, those Marks which the relevant Assignor believes in its reasonable
------------------
judgment to be material to its business at such time.
"Significant Patents" shall mean, at any time, those Patents which the relevant Assignor believes in its judgment to
--------------------
be material to its business at such time.
"Software" shall have the meaning provided in Article 9 of the Uniform Commercial Code.
--------
"Stock Rights" means any stock, any dividend or other distribution and any other right or property which an Assignor
------------
shall receive or shall become entitled to receive for any reason whatsoever with respect to, in substitution for or in exchange for
any shares of Pledged Stock and any stock, any right to receive stock and any right to receive earnings, in which an Assignor now has
or hereafter acquires any right, issued by an issuer of the Pledged Stock.
"Supporting Obligations" shall have the meaning provided in Article 9 of the Uniform Commercial Code.
----------------------
"Tangible Chattel Paper" shall have the meaning provided in Article 9 of the Uniform Commercial Code.
----------------------
"Termination Date" shall have the meaning provided in Section 10.2 of this Agreement.
---------------- ------------
"Trade Secrets" shall mean any know-how, technology, product formulations, procedures and product and manufacturing
-------------
specifications or standards now or hereafter utilized in the relevant Assignor's business.
"Transportation Assets" shall mean any aircraft, vehicles, vessels, barges, railcars or rolling stock or similar
----------------------
assets.
"Uniform Commercial Code" or "UCC" shall mean the Uniform Commercial Code as now or hereafter in effect from time to
------------------------ ---
time in the State of New York; provided, however, that if by reason of mandatory provisions of law, any or all of the attachment,
-------- -------
perfection or priority of, or remedies with respect to, Collateral Agent's security interests in any Collateral is governed by the
Uniform Commercial Code as enacted and in effect in any other jurisdiction, the term "Uniform Commercial Code" or "UCC" shall mean
the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof
relating to such attachment, perfection, priority or remedies.
"Unmatured Event of Default" shall have the meaning set forth in the Credit Agreement.
--------------------------
The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms.
In the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including" and
the words "to" and "until" each mean "to but excluding." The words "herein," "hereof" and words of similar import as used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision in this Agreement. References to "Articles",
"Sections", "paragraphs", "Exhibits" and "Schedules" in this Agreement shall refer to Articles, Sections, paragraphs, Exhibits and
Schedules of this Agreement unless otherwise expressly provided; references to Persons include their respective permitted successors
and assigns or, in the case of governmental Persons, Persons succeeding to the relevant functions of such persons; and all references
to statutes and related regulations shall include any amendments of same and any successor statutes and regulations.
Annex B
to
Agreement
---------
GRANT OF SECURITY INTEREST IN
UNITED STATES TRADEMARKS AND PATENTS
------------------------------------
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of which are hereby acknowledged, [NAME OF GRANTOR], a
__________ corporation (the "Grantor") with principal offices at ____________________________, hereby grants to Deutsche Bank Trust
-------
Company Americas, as Collateral Agent, with principal offices at [__________________________________________] (the "Grantee"), a
-------
security interest in (i) all of the Grantor's right, title and interest in and to the United States trademarks, trademark
registrations and trademark applications (the "Marks") set forth on Schedule B attached hereto, (ii) all of the Grantor's right,
----- ----------
title and interest in and to the United States patents (the "Patents") set forth on Schedule C attached hereto, in each case together
------- ----------
with (iii) all Proceeds (as such term is defined in the Security Agreement referred to below) of the Marks and Patents, (iv) the
goodwill of the businesses symbolized by the Marks and (v) all causes of action arising prior to or after the date hereof for
infringement of any of the Marks and Patents or unfair competition regarding the same.
THIS GRANT is made to secure the full and prompt performance and payment of all the Secured Obligations of the Grantor, as
such term is defined in the Security Agreement between the Grantor, the other assignors party thereto and the Grantee, dated as of
_______ __, 2003 (as amended, restated, supplemented or otherwise modified from time to time, the "Security Agreement"). Upon the
-------------------
occurrence of the Termination Date (as defined in the Security Agreement), the Grantee shall, promptly upon such satisfaction,
execute, acknowledge, and deliver to the Grantor an instrument in writing releasing the security interest in and re-assigning the
Marks and Patents acquired under this Grant to the Grantor.
This Grant has been granted in conjunction with the security interest granted to the Grantee under the Security Agreement.
The rights and remedies of the Grantee with respect to the security interest granted herein are more fully set forth in the Security
Agreement, all terms and provisions of which are incorporated herein by reference. In the event that any provisions of this Grant
are deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall govern.
[signature page follows]
IN WITNESS WHEREOF, the undersigned have executed this Grant of Security Interest as of the __th day of ________________, 2004.
[NAME OF GRANTOR],
as Grantor
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Grantee
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
--------------------------------------------
STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On this __th day of _____________, 2004 before me personally came _______________, who being duly sworn, did depose and say that he
is ___________________ of [Name of Grantor], that he is authorized to execute the foregoing Grant of Security Interest on behalf of
said corporation and that he did so by authority of the Board of Directors of said Corporation.
Notary Public
STATE OF ___________ )
) ss.:
COUNTY OF __________ )
On this )__ day of _____________, 2004 before me personally came _________________ who, being by me duly sworn, did state as follows:
that s/he is ________________ of Deutsche Bank Trust Company Americas, that s/he is authorized to execute the foregoing Grant of
Security Interest on behalf of said corporation and that s/he did so by authority of the Board of Directors of said corporation.
Notary Public
CHI:1354223.12
Schedule B
----------
U.S. Trademark Registration
---------------------------
Registered Xxxx Registration No. Registration Date
--------------- ---------------- -----------------
Schedule C
----------
All patents are encumbered with security interests.
Patent Number Date Issued Title
------------- ----------- -----
2
Annex C
to
Agreement
---------
GRANT OF SECURITY INTEREST
IN UNITED STATES COPYRIGHTS
---------------------------
WHEREAS, [NAME OF GRANTOR], a _________ corporation (the "Grantor"), having its chief executive office at
-------
_________________________, is the owner of all right, title and interest in and to the United States copyrights and associated United
States copyright registrations and applications for registration set forth in Schedule B attached hereto;
----------
WHEREAS, DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent, having its principal offices at
[____________________________________] (the "Grantee"), desires to acquire a security interest in, and lien on, all of Grantor's
-------
right, title and interest in and to Grantor's copyrights and copyright registrations and applications therefor described above; and
WHEREAS, the Grantor is willing to assign to the Grantee, and to grant to the Grantee a security interest in and
lien upon the copyrights and copyright registrations and applications therefor described above;
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, and subject to the
terms and conditions of the Security Agreement, dated as of ___________, 2003, between the Grantor, the other assignors from time to
time party thereto and the Grantee (as amended, restated, supplemented or otherwise modified from time to time, the "Security
---------
Agreement"), the Grantor hereby assigns to the Grantee, and grants to the Grantee a security interest in and a lien upon, all of
---------
Grantor's right, title and interest in and to Grantor's copyrights and copyright registrations and applications more particularly set
forth on Schedule B attached hereto, (the "Copyrights") together with (i) all Proceeds (as such term is defined in the Security
---------- ----------
Agreement referred to below) of the Copyrights, and (ii) all causes of action arising prior to or after the date hereof for
infringement of any Copyright.
This GRANT OF SECURITY INTEREST is made to secure the satisfactory performance and payment of all the Secured
Obligations (as such term is defined in the Security Agreement) of the Grantor and shall be effective as of the date of the Security
Agreement. Upon the occurrence of the Termination Date (as defined in the Security Agreement), the Grantee shall, upon such
satisfaction, promptly execute, acknowledge, and deliver to Grantor an instrument in writing releasing the security interest in the
Copyrights acquired under this Grant of Security Interest.
This Grant of Security Interest has been granted in conjunction with the security interest granted to Grantee under
the Security Agreement. The rights and remedies of the Grantee with respect to the security interest granted herein are more fully
set forth in the Security Agreement, all terms and provisions of which are incorporated herein by reference. In the event that any
provisions of this Grant of Security Interest are deemed to conflict with the Security Agreement, the provisions of the Security
Agreement shall govern.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have executed this Grant as of the __th day of _____________, 2004.
[NAME OF GRANTOR],
as Grantor
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Collateral Agent Grantee
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
--------------------------------------------
STATE OF ___________ )
) ss.:
COUNTY OF ___________ )
On this __th day of ______________, 2004, before me personally came _________________ who, being by me duly sworn,
did state as follows: that he is _______________ of [Name of Grantor], that he is authorized to execute the foregoing Grant of
Security Interest on behalf of said corporation and that he did so by authority of the Board of Directors of said corporation.
-----------------------------------
Notary Public
STATE OF ___________ )
) ss.:
COUNTY OF ___________ )
On this __th day of _____________, 2004, before me personally came ____________________ who, being by me duly sworn,
did state as follows: that s/he is ______________ of Deutsche Bank Trust Company Americas, that s/he is authorized to execute the
foregoing Grant of Security Interest on behalf of said corporation and that he did so by authority of the Board of Directors of said
corporation.
------------------------------------
Notary Public
Schedule B
----------
UNITED STATES COPYRIGHTS
------------------------
- 11 -
Annex D
to
Agreement
---------
ADDITION OF NEW ASSIGNOR
TO SECURITY AGREEMENT
---------------------
ADDITION OF NEW ASSIGNOR TO SECURITY AGREEMENT (this "Instrument"), dated as of _______, 2004, amending that certain
----------
Security Agreement, dated as of ________, 2004 (as the same may be amended, restated, supplemented or otherwise modified from time to
time, the "Agreement") by and among the Assignors (the "Assignors") party thereto and Deutsche Bank Trust Company Americas, as
--------- ---------
Collateral Agent (the "Collateral Agent") for the Secured Parties.
----------------
Reference is made to the Credit Agreement dated as of ____________, 2004 (as may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among U.S. Can Corporation, a Delaware corporation ("Holdings"),
----------------- --------
United States Can Company, a Delaware corporation ("Company"), the financial institutions (the "Lenders") from time to time party
------- -------
thereto and Deutsche Bank Trust Company Americas, as administrative agent (together with any successor agent, "Administrative Agent").
--------------------
Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the
Agreement and the Credit Agreement.
The Assignors have entered into the Agreement in order to induce the Lenders to extend credit pursuant to the Credit
Agreement and to induce the other Secured Parties to extend Hedging Agreements, as the case may be. Pursuant to Section 7.11 of the
------------
Credit Agreement, the undersigned is required to enter into the Agreement as an Assignor. Section 14.2(d) of the Agreement provides
---------------
that additional parties may become an Assignor under the Agreement by execution and delivery of an instrument in the form of this
Instrument. The undersigned (the "New Party") is executing this Instrument in accordance with the requirements of the Credit
---------
Agreement to become an Assignor under the Agreement in order to induce the Lenders to extend and continue the extension of credit
pursuant to the Credit Agreement.
Accordingly, the New Party agrees as follows:
SECTION 1. In accordance with the Agreement, the New Party by its signature below becomes a party to the Agreement
with the same force and effect as if originally named therein as a party and the New Party hereby (a) agrees to all the terms
applicable to it and warrants that the representations and warranties made by it as a party thereunder are true and correct in all
material respects on and as of the date hereof after giving effect to the disclosures attached hereto as Annex I. Each reference to
-------
an "Assignor" in the Agreement shall be deemed to include the New Party. The Agreement is hereby incorporated herein by reference.
SECTION 2. The New Party represents and warrants to Collateral Agent and the Secured Parties that this Instrument 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 to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws generally affecting creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law).
SECTION 3. This Instrument may be executed in counterparts, each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Instrument shall become effective when Collateral Agent shall
have received a counterpart of this Instrument that bears the signatures of the New Party.
SECTION 4. Except as expressly supplemented hereby, the Agreement shall remain in full force and effect.
SECTION 5. THIS INSTRUMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF SAID STATE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAW.
SECTION 6. All communications and notices hereunder shall be in writing and given as provided in the Agreement. All
communications and notices hereunder to the New Party shall be given to it at the address set forth under its signature below.
IN WITNESS WHEREOF, the New Party has duly executed this Addition of New Assignor to the Security Agreement as of the day
and year first above written.
[NAME OF NEW PARTY],
By:________________________________
Name:______________________________
Title:_______________________________
Address:____________________________
===================================
Exhibit 5.1(b)(i)
FORM OF
PERFECTION CERTIFICATE
The undersigned, the ___________________ of ________________________________, a ___________ [corporation/limited liability
company/limited partnership] (the "Company"), hereby certifies as follows on behalf of the Company:
-------
1. Names. (a) The exact name of the Company as that name appears on its Certificate of Incorporation, Certificate of
-----
Limited Partnership or Limited Liability Company Certificate, as applicable is as follows:
--------------------------------------
Source: UCCss.503(a)(i)
(b) The following is a list of all other names (including trade names or similar appellations) used by the Company, or
any other business or organization to which the Company became the successor by merger, consolidation, acquisition, change in form,
nature or jurisdiction of organization or otherwise, now or at any time during the past five years:
--------------------------------------
Source: UCCss.9-507
(c) The following is the Company's federal employer identification number:
------------------
(d) The following is the Company's corporation identification number or other applicable formation identification
number.
---------------------------
-------------------------------------
Source: UCCss.9-516(b)(5)
2. Current Locations. (a) The chief executive office and principal mailing address of the Company is:
-----------------
======================================
--------------------------------------
Source: UCCss.ss.9-516(b)(5), 9-301
(b) The following are all other locations in the United States of America in which the Company maintains any books or
records relating to any of the Collateral with a fair market value of $250,000 or more consisting of accounts, contract rights,
chattel paper, general intangibles or mobile goods:
--------------------------------------
--------------------------------------
Source: UCCss.ss.9-516(b)(5), 9-301
(c) The following are all other places of business of the Company in the United States of America:
--------------------------------------
--------------------------------------
Source: UCCss.9-301, 9-501
(d) The following are all other locations in the United States of America where any of the Collateral consisting of
inventory or equipment with a fair market value of $250,000 or more is located:
--------------------------------------
--------------------------------------
Source: UCCss.9-301, 9-501
(e) The following is a list of all owned and leased real property held by the Company:
Owned Property
--------------
--------------------------------------
--------------------------------------
Leased Property
---------------
--------------------------------------
--------------------------------------
(f) The following are the names and addresses of all persons or entities other than the Company, such as lessees,
consignees, warehousemen or purchasers of chattel paper, which have possession or are intended to have possession of any of the
Collateral consisting of chattel paper, inventory or equipment:
--------------------------------------
--------------------------------------
Source: UCCss.ss.9-301 and 9-312; see also UCCss.ss.2-326(3), 9-306, 9-330 and 9-505
3. Prior Locations. (a) Set forth below is the information required by subparagraphs (a)-(e) ofss.2 with respect to
----------------
each location at which, or other person or entity with which, any of the Collateral has been previously held or any place of business
previously maintained by the Company, in each case, at any time during the past twelve months:
--------------------------------------
--------------------------------------
Source: UCCss.ss.9-316
4. Fixtures. Set forth below is the information required by UCCss.9-502(b)(3) and (b)(4) of each state in which any of
--------
the Collateral consisting of fixtures with a fair market value in excess of $250,000 are or are to be located and the name and
address of each real estate recording office where a mortgage on the real estate on which such fixtures are or are to be located
would be recorded:
--------------------------------------
--------------------------------------
Source: UCCss.ss.9-501(a) and 9-502
5. Intellectual Property. The following is a complete list of all patents, copyrights, trademarks, trade names and
----------------------
service marks registered or for which applications are pending in the name of the Company:
UNITED STATES:
a. Patents Registration Number
------- -------------------
------------------------------------------------
b. Copyrights Registration Number
---------- -------------------
------------------------------------------------
c. Trademarks, Trade Name and
Service Marks Registration Number
-------------------------------------- -------------------
------------------------------------------------
FOREIGN:
a. Patents Registration Number
------- -------------------
------------------------------------------------
b. Copyrights Registration Number
---------- -------------------
------------------------------------------------
c. Trademarks, Trade Name
and Service Marks Registration Number
----------------- -------------------
------------------------------------------------
6. Investment Property: Instruments. The following is a complete list of all stock, bonds, debentures,
----------------------------------
notes, commodity contracts and other securities owned by the Company (provide name of issuer, a description of security and value)
and all securities accounts and commodity accounts owned by the Company (provide name of intermediary and value):
------------------------------------------------
7. Motor Vehicles. The following is a complete list of all motor vehicles with an aggregate fair market value
---------------
of at least $100,000 individually or $2,500,000 in the aggregate owned by the Company (describe each vehicle by make, model, and year
and indicate for each the state in which registered and the state in which based):
------------------------------------------------
8. Vessels. The following is a complete list of all vessels of the Company which are subject to any
-------
certificate of title or other registration statute of the United States, any state or any other jurisdiction:
------------------------------------------------
9. Other Titled Collateral. The following is a complete list of all aircraft and all other inventory,
-------------------------
equipment and other goods of the Company which are subject to any certificate of title or other registration statute of the United
States, any state or any other jurisdiction (provide description of covered goods and indicate registration system and jurisdiction):
------------------------------------------------
10. Deposit Accounts. The following is a complete list of all Deposit accounts maintained by the Company
-----------------
(provide name and address of depository bank, type of account and account number):
------------------------------------------------
11. Commercial Tort Claims. The following is a complete list of claims for $250,000 or more arising in tort
-----------------------
with respect to which the Company is claimant and which arose in the course of the Company's business; together with case file
numbers or other identification of such claim:
------------------------------------------------
Source: UCCss.ss.9-102(a)(13), 9-108, 9-504
12. Timber. The following are all of the locations in the United States of America in which the Company
------
possesses any timber to be cut:
--------------------------------------
--------------------------------------
Source: UCCss.9-301(3)(B) and Official Comment 5(c) to 9-301.
13. Extracted Collateral. The following are all of the locations in the United States of America in which the
---------------------
Company possesses any wellhead or minehead used in the extraction of minerals:
--------------------------------------
--------------------------------------
Source: UCCss.9-301(4) and Official Comment 5(d) to 9-301.
14. Farm Products. The following are all of the locations in the United States of America in which the Company
--------------
possesses any farm products as defined in UCCss.9-102(34):
--------------------------------------
--------------------------------------
Source: UCCss.9-302.
[signature page follows]
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
, 2004.
------------------------------------
[COMPANY]
By:
--------------------------------------------
Name:
Title:
Exhibit 5.1(d)
June 21, 2004
To Deutsche Bank Trust Company Americas,
as Administrative Agent, the other Agents
and each Lender from time to time party to the
Credit Agreement referred to below
Ladies and Gentlemen:
This opinion is being furnished to you pursuant to the Credit Agreement, dated as of the date hereof (the "Credit
-------
Agreement"), by and among United States Can Company, a Delaware corporation (the "Company"), U.S. Can Corporation, a Delaware
-------
corporation ("Holdings"), the Lenders party thereto from time to time and Deutsche Bank Trust Company Americas, as Administrative
--------
Agent. Unless otherwise defined herein, capitalized terms used herein shall have the meanings set forth in the Credit Agreement.
We have acted as counsel to Holdings, the Company and USC May Verpackungen Holding Inc., a Delaware corporation
("USC May") in connection with the (1) Credit Agreement, (2) the Security Agreement, (3) the Subsidiary Guaranty, (4) the Grant of
---------
Security Interest in United States Trademarks and Patents dated as of June 21, 2004 made by the Company in favor of the
Administrative Agent for the benefit of Lenders (the "Trademark and Patent Grant"), (5) the Grant of Security Interest in United
--------------------------
States Copyrights dated as of June 21, 2004 made by the Company in favor of the Administrative Agent for the benefit of Lenders (the
"Copyright Grant"), (6) the Notes being executed and delivered today, and (7) the Intercreditor Agreement (which Agreements and
----------------
instruments are collectively referred to herein as the "Credit Documents") and in connection with the mortgages set forth on Schedule
---------------- ---------
1 attached hereto (the "Mortgages") being delivered by the Company contemporaneously herewith and the agreements set forth on
- ---------
Schedule 2 attached hereto (the "Foreign Security Documents").
---------- --------------------------
We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents and
records and have made such investigation of fact and such examination of law as we have deemed appropriate in order to enable us to
render the opinions set forth herein. In conducting such investigation, we have relied, without independent verification, upon
certificates of officers of Holdings, the Company and USC May, public officials and other appropriate persons, and on the
representations and warranties as to matters of fact and on the covenants as to the application of proceeds contained in the Credit
Documents.
The opinions expressed herein are limited to matters governed by the laws of the State of New York, the General
Corporation Law of the State of Delaware and the federal laws of the United States of America and, in the case of paragraph 10 below,
Article 9 of the Delaware Uniform Commercial Code ("Delaware Article 9").
------------------
Based upon and subject to the foregoing and subject to the additional qualifications set forth below, we are of the
opinion that:
1. Each of Holdings, the Company and USC May (a) is a corporation validly existing in good standing under the laws of the State
of Delaware and (b) has the corporate power and authority under the General Corporation Law of the State of Delaware to own its
property, to conduct the business in which it is engaged, to execute and deliver each of the Credit Documents and the Mortgages
to which it is a party and to perform its obligations thereunder. The exact legal name of each of the Credit Parties is as
follows: U.S. Can Corporation, United States Can Company and USC May Verpackungen Holding Inc.
2. Each of Holdings, the Company, and USC May has duly authorized, executed and delivered each of the Credit Documents to which
it is party and (subject to the qualifications set forth in the unnumbered paragraphs at the end hereof) each such Credit
Document constitutes the legal, valid and binding obligation of such of the foregoing persons as is party thereto and is
enforceable against each such person in accordance with its terms.
3. Each of the Mortgages and the Foreign Security Documents has been duly authorized, executed and delivered by the Company and
USC May, as applicable.
4. The execution and delivery by Holdings, the Company, and USC May of the Credit Documents, the Mortgages and the Foreign
Security Documents to which each such person is party and the performance by each such person of its obligations thereunder,
including, without limitation, the granting of Liens pursuant to the Security Agreement, (a) will not violate any provision of
any New York or federal law, statute, rule or regulation or of the General Corporation Law of the State of Delaware (b) will not
result in a breach or violation of, or constitute a default (or an event that with notice or the lapse of time, or both, would
constitute a default), result in the creation of a Lien or require the repurchase of securities under, any of the agreements,
instruments, court orders, judgments or decrees, if any, listed on Exhibit A hereto or the acceleration of any indebtedness of
---------
Holdings, the Company or USC May and (c) will not violate or require the repurchase of securities under the governing documents
of Holdings, the Company and USC May.
5. Except as may be required in order to perfect the Liens contemplated by the Security Agreement or the Mortgages, no consent,
approval, license or exemption by, or order or authorization of, or filing, recording or registration with, any governmental
authority under New York or federal law or the General Corporation Law of the State of Delaware is required to be obtained by
Holdings, the Company or USC May in connection with the execution and delivery of the Credit Documents or the Mortgages to which
such person is party or the performance by each such person of its obligations thereunder.
6. To our knowledge, after having made inquiry of officers of Holdings, the Company and USC May but without having made any
other investigation, none of Holdings, the Company or USC May is a party to any action, suit or proceeding which places in
question the validity or enforceability of, or seeks to enjoin the performance of, the Credit Documents or the Mortgages.
7. None of Holdings, the Company, nor USC May is an "investment company" within the meaning of the Investment Company Act of
1940, as amended, or a "holding company," or a "subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company" within the meaning of the Public Utility Holding Company Act of
1935, as amended.
8. Neither the making of the loans under the Credit Agreement, nor the application of the proceeds thereof as provided in the
Credit Agreement, will violate Regulations T, U or X of the Board of Governors of the Federal Reserve System.
9. The Security Agreement creates a valid security interest in favor of the Administrative Agent for the benefit of the Secured
Creditors in the Collateral described therein to the extent that such security interest can be created under Article 9 of the New
York Uniform Commercial Code ("New York Article 9") to secure the Secured Obligations (as defined in the Security Agreement).
------------------
10. Each of the financing statements attached as Exhibit B (collectively, the "Delaware Financing Statements") is in appropriate
--------- -----------------------------
form for filing in the Office of the Secretary of State of the State of Delaware (the "Delaware Filing Office"). The description
----------------------
of the Collateral set forth in the Delaware Financing Statements is sufficient to perfect a security interest in the items and
types of Collateral in which a security interest may be perfected by the filing of a financing statement under Delaware Article
9. Upon the proper filing of the Delaware Financing Statements in the Delaware Filing Office, the security interest in favor of
the Administrative Agent for the benefit of the Secured Creditors in the Collateral described in the Delaware Financing
Statements will be perfected to the extent a security interest in such Collateral can be perfected under Delaware Article 9 by
the filing of a financing statement in the Delaware Filing Office.
11. After giving effect to the delivery in the State of New York to the Administrative Agent of the Pledged Stock (as defined in
the Security Agreement) listed on Exhibit C hereto and the related stock powers pursuant to the Security Agreement, and assuming
---------
that neither the Lenders nor the Administrative Agent had "notice of an adverse claim" (as such term is used in the New York
Uniform Commercial Code) with respect to the Pledged Stock at the time the Pledged Stock is delivered to the Administrative
Agent, the respective security interests in such Pledged Stock created in favor of the Administrative Agent for the benefit of
the Secured Creditors under the Security Agreement constitute perfected security interests in such Pledged Stock, free of any
"adverse claim" (as so defined).
12. After giving effect to the delivery in the State of New York to the Administrative Agent of any pledged promissory notes and
any Pledged Intercompany Notes (as defined in the Security Agreement) (the "Pledged Debt") listed on Exhibit D hereto and the
------------ ---------
related assignments pursuant to the Security Agreement, the security interests in such Pledged Debt created in favor of the
Administrative Agent for the benefit of the Secured Creditors under the Security Agreement constitute perfected security
interests.
13. Subject to the qualifications set forth in the unnumbered paragraphs at the end hereof, the subordination provisions
contained in the Indenture dated as of October 4, 2000 among the Company, Holdings, USC May and Bank One Trust Company, as
Trustee are enforceable against the Company and Holdings in accordance with their terms, and the Obligations are within the
definition of "Designated Senior Indebtedness" and "Designated Senior Indebtedness of Guarantors" included in such subordination
provisions.
14. The Obligations are First Lien Indebtedness as defined in the Lien Intercreditor Agreement dated as of July 22, 2003 among
Xxxxx Fargo Bank, National Association, as trustee and collateral agent, Bank of America, N.A. in its capacity as agent, the
Company and certain of its Subsidiaries.
Our opinion set forth in paragraph 13 above and our opinion that the Credit Documents to which Holdings, the Company
or USC May are party constitute the legal, valid and binding obligation of such of the foregoing persons as are party thereto,
enforceable against each such person party thereto in accordance with its terms, is subject to (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting the rights and remedies of
creditors and secured parties, (ii) general principles of equity, and (iii) the right of a court of competent jurisdiction to make
other equitable provisions to effectuate the subordination provisions set forth in the Subordinated Note Indenture.
The opinions expressed herein do not purport to cover, and we express no opinion with respect to, the applicability
of Section 548 of the federal Bankruptcy Code or any comparable provision of state law.
The opinions expressed herein are subject to the qualification that the enforceability of provisions in the Credit
Documents providing for indemnification or contribution may be limited by public policy considerations. In addition, we express no
opinion as to (i) the extent to which broadly worded waivers may be enforced, (ii) the enforceability of any provision of the Credit
Documents which purports to grant the right of setoff to an affiliate of a lender or a purchaser of a participation in the loans
outstanding thereunder, which permits the exercise of a right of setoff against amounts not then due or which provides for interest
on interest or automatic compounding of interest, or (iii) the extent to which provisions providing for conclusive presumptions or
determinations, non-effectiveness of oral modifications, arbitration, submission to jurisdiction, waiver of or consent to service of
process and venue or waiver of offset or defenses will be enforced.
In addition, certain provisions contained in the Subsidiary Guaranty and the Security Agreement, including the grant
of powers of attorney thereunder, may be unenforceable in whole or in part but the inclusion of such provisions in the Subsidiary
Guaranty and the Security Agreement does not affect the validity of any of the other provisions thereof, and the remaining provisions
of the Subsidiary Guaranty and the Security Agreement are sufficient for the practical realization of the benefits intended to be
provided thereby.
We further express no opinion as to the existence of, or as to the title of any person who has granted a security
interest in any Collateral to, any item of Collateral or (except to the extent set forth in paragraph 11 above) as to the priority or
(except to the extent set forth in paragraphs 10, 11 and 12 above) the perfection of any security interest in the Collateral. For
purposes of paragraphs 9 and 10 above, we express no opinion with respect to (a) security interests in any commercial tort claims or
(b) security interests in goods which are in accession to, or commingled or processed with other goods to the extent that a security
interest is limited by New York Article 9 (including without limitation Section 9-336 thereof). We call your attention to the fact
that your security interest in certain Collateral described in the Security Agreement may not be able to be perfected by the filing
of financing statements under Delaware Article 9 and that under certain circumstances set forth in Delaware Article 9 the filings
referred to in paragraph 10 become ineffective as a result of changes occurring after the date hereof and will terminate after five
years after the original filing date unless appropriate continuation statements are duly filed. In addition, Section 552 of the
Bankruptcy Code limits the extent to which property acquired by a debtor after the commencement of a case under the Bankruptcy Code
may be subject to a lien resulting from any security agreement entered into by the debtor before the commencement of the case.
This opinion is being furnished only to the addressees and is solely for their benefit and the benefit of their
participants and assignees permitted by the Credit Agreement. This opinion may not be relied upon for any other purpose or by any
other person, without our prior written consent.
Very truly yours,
Ropes & Xxxx LLP
Exhibit A
Agreements
----------
1. Indenture, dated October 17, 1996 relating to Holdings' 10 1/8% Senior Subordinated Notes Due 2006.
2. Holdings' 10 1/8% Senior Subordinated Notes Due 2006.
3. Indenture dated as of October 4, 2000 among the Company, Holdings, USC May and Bank One Trust Company, N.A. as trustee.
4. The Company's 12 3/8 Senior Subordinated Notes Due 2010.
5. Indenture dated as of July 22, 2003 among the Company, Holdings and Xxxxx Fargo Bank, National Association (successor by
merger to Xxxxx Fargo Minnesota, National Association), as trustee.
6. The Company's 10 7/8% Senior Secured Notes Due 2010.
7. Lien Intercreditor Agreement dated as of July 23, 2003 among Xxxxx Fargo Bank, National Association, as trustee and
collateral agent, Bank of America, N.A., in its capacity as agent, the Company and certain of its Subsidiaries.
8. Stockholders Agreement dated as of October 4, 2000 by and among U.S. Can Corporation and its stockholders.
9. Lease by the Company of premises at Xxxxx-Xxx-Xxxxxxx 00, Xxxxxxxx, Xxxxxxx, expires January 1, 2020.
Exhibit B
Delaware Financing Statements
-----------------------------
Exhibit C
Pledged Stock
-------------
Pledgor: U.S. CAN CORPORATION
Name of
Subsidiary Number of Shares Certificate Number
---------- ---------------- ------------------
United States Can Company 1000 7
Pledgor: UNITED STATES CAN COMPANY
Name of
Subsidiary Number of Shares Certificate Number
---------- ---------------- ------------------
USC May
Verpackungen Holding Inc. 100 1
Exhibit D
Pledged Debt
------------
1. Intercompany Note dated June 21, 2004 among the Company, Holdings and their
2. Subsidiaries.
3. Intercompany Note dated June 21, 2004 between the Company and UK Can Ltd.
Schedule 1
Mortgages
---------
1. Deed to Secure Debt and Security Agreement dated as of the 21st day of June, 2004, by and between United States Can Company,
as "Grantor", and Deutsche Bank Trust Company Americas, as "Administrative Agent", with respect to certain real property
located in Xxxxxxxx County, Georgia.
2. Mortgage, Assignment of Rents and Leases and Security Agreement dated as of the 21st day of June, 2004, by and between
United States Can Company, as "Borrower", and Deutsche Bank Trust Company Americas, as "Administrative Agent", with respect
to certain real property located in Vermilion County, Illinois.
3. Mortgage, Assignment of Rents and Leases and Security Agreement dated as of the 21st day of June, 2004, by and between
United States Can Company, as "Borrower", and Deutsche Bank Trust Company Americas, as "Administrative Agent", with respect
to certain real property located in Xxxx County, Illinois.
4. Deed of Trust and Security Agreement dated as of the 21st day of June, 2004, by and between United States Can Company, as
"Borrower", and Deutsche Bank Trust Company Americas, as "Administrative Agent", with respect to certain real property
located in Baltimore County, Maryland.
5. Open-End Mortgage and Security Agreement dated as of the 21st day of June, 2004, by and between United States Can Company,
as "Borrower", and Deutsche Bank Trust Company Americas, as "Administrative Agent", with respect to certain real property
located in Trumbull County, Ohio.
6. Open-End Mortgage and Security Agreement dated as of the 21st day of June, 2004, by and between United States Can Company,
as "Borrower", and Deutsche Bank Trust Company Americas, as "Administrative Agent", with respect to certain real property
located in Xxxxxxxxxx County, Pennsylvania.
7. Open-End Mortgage and Security Agreement dated as of the 21st day of June, 2004, by and between United States Can Company,
as "Borrower", and Deutsche Bank Trust Company Americas, as "Administrative Agent", with respect to certain real property
located in Xxxxxxxx County, Pennsylvania.
Schedule 2
Foreign Security Documents
--------------------------
1. Pledge of Partnership Interests of May Verpackungen GmbH & Co. KG, between USC May Verpackungen Holding Inc., as pledgor,
and Deutsche Bank Trust Company Americas, as pledgee, dated as of June 21, 2004.
2. Pledge Agreement on Shares of USC Europe N.V. between United States Can Company, as pledgor, and Deutsche Bank Trust Company
Americas, as pledgee, dated as of June 21, 2004.
Exhibit 5.1(e)(i)
FORM OF
OFFICER'S CERTIFICATE
The undersigned does hereby certify on behalf of United States Can Company, a Delaware corporation ("Company"), that:
-------
1. This Officer's Certificate is furnished pursuant to Section 5.1(e) of the credit agreement, dated as of
---------------
June ___, 2004, among U.S. Can Corporation, a Delaware corporation, Company, the financial institutions from time to time party
thereto and Deutsche Bank Trust Company Americas, as administrative agent (such credit agreement, as in effect on the date of this
Officer's Certificate, being herein called the "Credit Agreement"). Unless otherwise defined herein, capitalized terms used in this
----------------
Officer's Certificate shall have the meanings set forth in the Credit Agreement.
2. The representations and warranties of the Company set forth in Article VI of the Credit Agreement and in
----------
the other Loan Documents are true and correct as of the date hereof except to the extent such representations and warranties are
expressly made as of a specified date in which event such representations and warranties were true and correct as of such specified
date.
3. No Event of Default or Unmatured Event of Default has occurred and is continuing.
4. The conditions of Section 5.1 of the Credit Agreement have been fully satisfied or waived (except that no
-----------
opinion is expressed as to Administrative Agent's or Required Lenders' satisfaction with any document, instrument or other matter).
5. To the knowledge of the undersigned, no Liens (except for Permitted Liens) have been placed against the
Collateral or the Mortgaged Property since the respective dates of the searches of financing statements filed under the UCC and
delivered pursuant to Section 5.1.
-----------
[signature page follows]
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of June, 2004.
UNITED STATES CAN COMPANY
By:__________________________
Name:________________________
Title:_________________________
CHI:1354223.12
Exhibit 5.1(e)(ii)
FORM OF
SECRETARY'S CERTIFICATE
[APPLICABLE CREDIT PARTY]
-------------------------
Secretary's Certificate
I, ____________________, hereby certify that I am the duly elected, qualified and acting Secretary of [APPLICABLE
CREDIT PARTY], a ___________ corporation (the "Company"), and that, as such, I am authorized to execute and deliver this Secretary's
-------
Certificate, dated as of June ___, 2004 (this "Certificate"), on behalf of the Company. This Certificate is being delivered pursuant
-----------
to Section 5.1(e)(ii) of that certain credit agreement, dated as of June ___, 2004 (the "Credit Agreement"), by and among the
------------------- ------------------
Company, certain subsidiaries of the Company, various institutions from time to time parties thereto (the "Lenders") and Deutsche
-------
Bank Trust Company Americas, as Administrative Agent. Capitalized terms used herein and not defined herein shall have their
respective meanings set forth in the Credit Agreement.
I hereby further certify, as of the date hereof, that:
1. Attached hereto as Exhibit A is a true and correct copy of the Articles of Incorporation of the Company, certified
---------
by the Secretary of State of the State of Delaware as of the date listed thereon, together with all amendments
thereto through the date hereof;
2. Attached hereto as Exhibit B is a true and correct copy of the by-laws of the Company, together with all amendments
---------
thereto through the date hereof, and said by-laws are in full force and effect on and as of the date hereof;
3. Attached hereto as Exhibit C is a true and correct copy of the resolutions duly adopted by the board of directors of
---------
the Company on _____________, 2004 and said resolutions have not been amended or repealed, are in full force and
effect on and as of the date hereof and constitute the only action taken by the board of directors of the Company
with respect to the subject matter thereof;
4. Each of the persons named on Exhibit D is a duly elected and qualified officer of the Company with such person
---------
holding the respective office or offices set forth opposite such person's name and the signature set forth opposite
the name of each such person is his or her genuine signature. Each such person is authorized to execute and deliver,
on
behalf of the Company, the Loan Documents to which it is a party and any certificate or other document to be
executed and delivered by the Company pursuant to the Loan Documents; and
5. Prior to receipt by the Administrative Agent of a new certificate of the corporate secretary of the Company amending
this Certificate to add or delete the name or names of authorized officers and submitting the signatures of the
officers named in such new certificate, the Administrative Agent and the Lenders may rely on this Certificate in
connection with the execution and delivery, on behalf of the Company, of the Loan Documents and other certificates
or documents to be executed and delivered by the Company pursuant to the Loan Documents.
[signature page follows]
IN WITNESS WHEREOF, I have hereunto set my hand to this Certificate as of the date first written above.
[--------------------]
By: _____________________________
Name:
Title: Secretary
I, _______________, the undersigned, [Applicable Officer] of the Company, do hereby certify that _______________ is
the duly elected and qualified Secretary of the Company and the signature above is her genuine signature.
By: _____________________________
Name:
Title: [Applicable Officer]
Exhibit D
---------
to Secretary's Certificate
Incumbency and Specimen Signatures for the Company
Name Title Specimen Signature
---- ----- ------------------
[Applicable Officer]
------------------ ------------------------
[Applicable Officer]
------------------ ------------------------
[Applicable Officer]
------------------ ------------------------
Exhibit 7.2(a)
FORM OF
COMPLIANCE CERTIFICATE PURSUANT TO SECTION 7.2(a)
--------------
The undersigned, [Name] the [Responsible Financial Officer] of United States Can Company, a Delaware corporation
("Company"), does hereby certify on behalf of Company that:
---------
1. This Certificate is furnished pursuant to Section 7.2(a) of that certain credit agreement, dated as of June
--------------
___, 2004 (as amended, restated, supplemented or otherwise modified from time to time, the "Credit Agreement"), among U.S. Can
-----------------
Corporation, a Delaware corporation, United States Can Company, a Delaware corporation, the financial institutions from time to time
party thereto and Deutsche Bank Trust Company Americas, as administrative agent. Unless otherwise defined herein, capitalized terms
used in this Certificate have the meanings set forth in the Credit Agreement.
2. (A) I have reviewed the financial statements delivered pursuant to Section [7.1[(b)]] [7.1[(c)]] and
--------- -------- --------
attached hereto as Exhibit A and to the best of my knowledge, the financial statements present fairly in all material aspects, in
---------
accordance with GAAP, the financial condition and results of operations of Company and its Subsidiaries for the period of such
financial statements (subject, in the case of the financial statements delivered pursuant to Section 7.1(b), to normal recurring
--------------
adjustments and the absence of footnotes).
3. No Event of Default or Unmatured Event of Default has occurred [, except for _________, and Company
proposes to take the following action with respect thereto:]
4. Set forth below are detailed computations which establish Company's compliance with the covenants set forth
in Article IX of the Credit Agreement, as of ________ ___, ____ (the "Computation Date") and for the period consisting of the four
---------- -----------------
consecutive Fiscal Quarters commencing on __________ ___, ____ and ending on the Computation Date (such period, the "Computation
------------
Period"):
------
As of the Computation Date:
A. The Interest Coverage Ratio was ____:1.00, as computed on Attachment 1 hereto. The minimum Interest Coverage Ratio
permitted pursuant to Section 9.2 of the Credit Agreement on the Computation Date was ____:1.00.
-----------
B. The Total Leverage Ratio was ____:1.00, as computed on Attachment 2 hereto. The minimum Total Leverage Ratio
permitted pursuant to Section 9.3 of the Credit Agreement on the Computation Date was ____:1.00.
-----------
C. The First Lien Leverage Ratio was ____:1.00, as computed on Attachment 3 hereto. The minimum First Lien Leverage
Ratio permitted pursuant to Section 9.4 of the Credit Agreement on the Computation Date was _____:1.00.
-----------
IN WITNESS WHEREOF, Company has caused this Compliance Certificate to be executed and delivered, and the certification and
warranties contained herein to be made, by its [Responsible Financial Officer] on this ____ day of ____________, _____.
UNITED STATES CAN COMPANY
-------------------------
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Attachment 1
(to __/__/__ Compliance Certificate)
INTEREST COVERAGE RATIO
-----------------------
on ____________ ___, _____
(the "Computation Date")
----------------
Interest Coverage Ratio
1. Consolidated EBITDA for the Computation Period, on a consolidated basis for Company
and its Subsidiaries, the sum of the amounts for the Computation Period, without
duplication, of:
(a) Consolidated Net Income:
(i) the aggregate of the net income (loss) of Company and its Subsidiaries
determined in accordance with GAAP on a consolidated basis for the
Computation Period............................................... $___________
(ii) the net income (loss) of any other Person in which such Person or any
of the Subsidiaries has an interest (which interest does not cause the
net income of such other Person to be consolidated with the net income
of such person and its Subsidiaries in accordance with GAAP), except
to the extent of the amount of dividends or other distributions
actually paid to Company or any of its Wholly-Owned Subsidiaries by
such Person during such period...................................
$-----------
(iii) Consolidated Net Income: Item 1(a)(i) minus Item 1(a)(ii)........
------------ -------------
$-----------
(b) To the extent deducted in computing Consolidated Net Income, Consolidated
Interest Expense.......................................................... $___________
(c) To the extent deducted in computing Consolidated Net Income, charges against
income for foreign, federal, state and local taxes based on income and for
franchise taxes........................................................... $___________
(d) To the extent deducted in computing Consolidated Net Income, depreciation expense
$-----------
(e) To the extent deducted in computing Consolidated Net Income, amortization
expense, including, without limitation, amortization of good will and other
intangible assets, fees, costs and expenses in connection with the execution,
delivery and performance of any of the Transaction Documents and other fees,
costs and expenses in connection with Permitted Acquisitions..............
$-----------
(f) To the extent deducted in computing Consolidated Net Income, write-off of
deferred financing costs originally incurred in connection with Indebtedness
being repaid under the Refinancing $___________
(g) To the extent deducted in computing Consolidated Net Income, any non-cash
charges resulting from any write-down of assets $___________
(h) To the extent deducted in computing Consolidated Net Income, any non-cash
charges not payable in cash in such period $___________
(i) To the extent deducted in computing Consolidated Net Income, cash charges
incurred (1) on or prior to June 30, 2006 not to exceed (i) $1,200,000 for
termination payments due to Mr. Xxxx Xxxxxxx and (ii) $4,000,000 for
restructuring costs and expenses to the extent incurred in connection with
plant closings or other rationalization of business assets and (2) prior to the
Initial Borrowing Date not to exceed $1,500,000 for payments associated with
planned headcount reductions in France and Germany, of which $522,000 was
incurred in the first Fiscal Quarter of the 2004 Fiscal Year and $976,000 was
incurred in the second Fiscal Quarter of the 2004 Fiscal Year
$-----------
(j) To the extent deducted in computing Consolidated Net Income, Management Fees
paid to Berkshire Partners to the extent permitted to be paid pursuant to
Section 8.5(e)............................................................ $___________
(k) The sum of Items 1(b) through 1(j)........................................ $___________
---------- ---
(l) To the extent added (deducted) in computing Consolidated Net Income, the gain
(or plus the loss) (net of any tax effect) resulting from the sale of any
----
capital assets other than in the ordinary course of business..............
$-----------
(m) To the extent added (deducted) in computing Consolidated Net Income,
extraordinary or non-cash nonrecurring after-tax gains (or minus extraordinary
-----
or non-cash nonrecurring after-tax losses) $___________
(n) To the extent added (deducted) in computing Consolidated Net Income, any gain
resulting from any write-up of assets (other than with respect to any company
owned life insurance program)............................................. $___________
(o) The sum of Items 1(l) through 1(n)........................................ $___________
---------- ---
(p) Cash expenditures during the period in respect of reserves or accruals due to
any non-cash charges or losses added back in determining Consolidated EBITDA in
prior periods $___________
(q) Consolidated EBITDA: the sum of Item 1(a)(iii) and Item 1(k) minus Item 1(o)
-------------- --------- ---------
minus Item 1(p)........................................................... $___________
---------
2. Consolidated Interest Expense of Company and its Subsidiaries accrued during such
period............................................................................
(a) Consolidated Interest Expense:
(i) total interest expense (including that attributable to Capitalized
Leases in accordance with GAAP) of such Person and its Subsidiaries on
a consolidated basis with respect to all outstanding Indebtedness of
such Person and its Subsidiaries, all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers'
acceptance financing.............................................
$------------
(ii) amortization of deferred financing costs, all as determined on a
consolidated basis for such Person and its Subsidiaries in accordance
with GAAP........................................................ $____________
(iii) interest component of any lease payments under Attributable Debt
transactions of such Person and its Subsidiaries.................
$------------
(iv) interest income of such Person and its Subsidiaries on a consolidated
basis in accordance with GAAP.................................... $____________
(v) Consolidated Interest Expense: Item 2(a)(i) minus Item 2(a)(ii) plus
----------- -------------
Item 2(a)(iii) minus Item 2(a)(iv)............................... $____________
-------------- --------------------------------------------
3. INTEREST COVERAGE RATIO: ratio of Item 1(q) to Item 2(a)(v)...................... ____:1.00
--------- ------------
Attachment 2
(to __/__/__ Compliance Certificate)
TOTAL LEVERAGE RATIO
--------------------
on ____________ ___, _____
(the "Computation Date")
Total Leverage Ratio:
--------------------
1. Consolidated Debt for the Computation Period of Company ..........................
(a) all Indebtedness of such Person and its Subsidiaries determined on a
consolidated basis in accordance with GAAP $____________
(b) Indebtedness related to Permitted Preferred Stock and Common Stock to the
extent such amount is characterized as debt due to SFAS 150..............
$------------
(c) all Attributable Debt of such Person and its Subsidiaries determined on a
consolidated basis....................................................... $____________
(d) Consolidated Debt: Item 1(a) minus Item 1(b) plus Item 1(c).............. $____________
--------- --------- ---------
2. Consolidated EBITDA : (see Item 1(q) of Attachment 1).......................... $____________
---------
3. Total Leverage Ratio: ratio of Item 1(d) to Item 2.............................. ____:1.00
--------- ------
Attachment 3
(to __/__/__ Compliance Certificate)
FIRST LIEN LEVERAGE RATIO
-------------------------
on ____________ ___, _____
(the "Computation Date")
First Lien Leverage Ratio:
-------------------------
1. Consolidated First Lien Debt......................................................
(a) all Consolidated Debt of such Person that is secured by Liens senior to or
pari passu with the Liens granted under the Security Documents...........
$------------
(b) all Obligations under the Credit Agreement............................... $____________
(c) Consolidated First Lien Debt: Item 1(a) plus Item 1(b)................... $____________
--------- ---------
2. Consolidated EBITDA (see Item 1(q) of Attachment 1)............................ $____________
---------
3. First Lien Leverage Ratio: ratio of Item 1(c) to Item 2.......................... ____:1.00
--------- ------
Attachment 4
(to __/__/__ Compliance Certificate)
CAPITAL EXPENDITURES
--------------------
for the ____________ Fiscal Year
Capital Expenditures during the Fiscal Year14 were $___________. The maximum permitted Capital Expenditures during such
Fiscal Year was $______________.15
--------------------------------------------------------------------------------- -----------------------
(1) Permitted Annual Capital Expenditures $25,000,00016
--------------------------------------------------------------------------------- -----------------------
--------------------------------------------------------------------------------- -----------------------
(2) Rollover amount from prior Annual Compliance Certificate delivered in $__________
connection with the last financial statements delivered pursuant to
Section 7.1(c)
--------------
--------------------------------------------------------------------------------- -----------------------
--------------------------------------------------------------------------------- -----------------------
(3) Maximum permitted Capital Expenditures17 ((1) plus (2)) $__________
----
--------------------------------------------------------------------------------- -----------------------
--------------------------------------------------------------------------------- -----------------------
(4) Gross Capital Expenditures $__________
--------------------------------------------------------------------------------- -----------------------
--------------------------------------------------------------------------------- -----------------------
(5) Capital Expenditures with Net Sale Proceeds or with proceeds of
Recovery Events $__________
--------------------------------------------------------------------------------- -----------------------
--------------------------------------------------------------------------------- -----------------------
(6) Net Capital Expenditures ((4) minus (5)) $__________
-----
--------------------------------------------------------------------------------- -----------------------
--------------------------------------------------------------------------------- -----------------------
(7) (1) minus (6) $__________
-----
--------------------------------------------------------------------------------- -----------------------
--------------------------------------------------------------------------------- -----------------------
(8) 50% times (7) $__________
-----
--------------------------------------------------------------------------------- -----------------------
--------------------------------------------------------------------------------- -----------------------
(9) 25% times (1) $__________
-----
--------------------------------------------------------------------------------- -----------------------
--------------------------------------------------------------------------------- -----------------------
(10) Rollover Amount to next year (lesser of (8) or (9)) $__________
--------------------------------------------------------------------------------- -----------------------
Exhibit 7.2(g)
FORM OF
NEGATIVE COVENANT REPORT PURSUANT TO SECTION 7.2(g)
--------------
The undersigned, [Name] the [Responsible Financial Officer] of United States Can Company, a Delaware corporation
("Company"), does hereby report on behalf of Company that:
---------
1........This report is furnished pursuant to Section 7.2(g) of that certain credit agreement, dated as of June ___,
--------------
2004 (as amended, restated, supplemented or otherwise modified from time to time, the "Credit Agreement"), among U.S. Can
-----------------
Corporation, a Delaware corporation, United States Can Company, a Delaware corporation, the financial institutions from time to time
party thereto and Deutsche Bank Trust Company Americas, as administrative agent. Unless otherwise defined herein, capitalized terms
used in this report have the meanings set forth in the Credit Agreement.
2........Set forth below are detailed computations which establish Company's position regarding certain of the
covenants set forth in Article VIII of the Credit Agreement, as of ________ ___, ____ (the "Computation Date") and for the Fiscal
------------ -----------------
Year ended December 31, 200__ (such period, the "Computation Period")18:
------------------
Section 8.1 - Liens
Liens securing Indebtedness of Foreign Subsidiaries permitted pursuant to
Section 8.1(g) $15,000,000
.........Actual amount of such Indebtedness secured by such Liens $_________
Section 8.2 - Indebtedness
(a) Actual indebtedness permitted pursuant to Section 8.2(d) $_________
(b) Actual indebtedness permitted pursuant to Section 8.2(e) $_________
(c) Actual indebtedness permitted pursuant to Section 8.2(f) $_________
(d) Actual indebtedness permitted pursuant to Section 8.2(m) must be less
than $15,000,000 $_________
(e) Actual indebtedness permitted pursuant to Section 8.2(o) must be less
than $15,000,000 $_________
(f) (a) plus (c) - Must be less than $15,000,00019 $_________
(g) (a) plus (b) plus (c) plus (o) - Must be less than $40,000,000 $_________
Section 8.4 - Asset Dispositions
Net Sales of Accounts Receivable and Receivables Assets permitted pursuant
to Section 8.4(b)(ii) $20,000,000
Actual sale of Accounts Receivable and Receivables Assets permitted
pursuant to Section 8.4(b)(ii) $__________
Asset Dispositions (other than Asset Dispositions of Accounts Receivable)
during the Fiscal Year $10,000,000
Actual Asset Dispositions (other than Asset Dispositions of Accounts
Receivable) permitted in any Fiscal Year $_________
Asset Dispositions (other than Asset Dispositions of Accounts Receivable)
permitted since Initial Borrowing Date $40,000,000
Actual Asset Dispositions (other than Asset Dispositions of Accounts
Receivable) since Initial Borrowing Date $_________
Section 8.5 - Restricted Payments
Restricted Payments upon termination of employment, death, disability, etc.
permitted pursuant to Section 8.5(a) since Initial Borrowing Date excluding
amounts paid using proceeds of "keyman" policies or in the form of
forgiveness of indebtedness $2,500,000
Actual amount of such Restricted Payments since Initial Borrowing Date $_________
Purchases or redemption of Subordinated Notes (or any notes issued in any
Permitted Refinancing thereof) permitted pursuant to Section 8.5(c)20 (plus
accrued interest on such debt so purchased or redeemed) $30,000,000
Actual amount of such purchases or redemptions (net of accrued interest on
such debt so purchased or redeemed) $_________
(ii)
Dividends to Holdings for corporate and overhead expenses permitted
pursuant to Section 8.5(d) in any Fiscal Year $200,000
Actual amount of such Dividends to Holdings during Fiscal Year $_________
Payments by Holdings and its Subsidiaries of management or other fees
permitted pursuant to Section 8.5(e) in any Fiscal Year $750,000
Actual amount of such payments to Holdings during Fiscal Year $_________
Section 8.7 - Loans, Investments and Acquisitions
Advances by Company or its Subsidiaries made to employees in the ordinary $3,000,000 in the
course of business permitted pursuant to Section 8.7(c)21 aggregate
Actual amount of such advances by Company $_________
Investments by Company and its Subsidiaries in the Capital Stock of a
Person who is a Subsidiary that is not a Credit Party or in the form of
loans, contributions to capital, Guarantee Obligations or advanced
permitted pursuant to Sections 8.7(g) and (h) $10,000,000
Actual amount of such Investments by Company $_________
Foreign Investments permitted pursuant to Section 8.7(j) $15,000,000
Actual amount of such Foreign Investments $_________
Other Investments permitted pursuant to Section 8.7(l) $10,000,000
Actual amount of such other Investments $_________
Permitted Acquisitions
Aggregate Investment (including Consolidated Debt) for all Acquisitions
after the Closing Date (excluding the Formametal Acquisition) $[10,000,000]22
Actual Investments in Acquisitions since the Closing Date $_________
[signature page follows]
IN WITNESS WHEREOF, the Company has caused this report to be executed and delivered by its [Responsible Financial
Officer] on this ____ day of _____________, ______.
(A) UNITED STATES CAN COMPANY
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
Exhibit 12.8(c)
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT23
Date __________, ____
This Assignment and Assumption Agreement (this "Assignment"), is dated as of the Effective Date set forth below and
----------
is entered into by and between [the] [each] Assignor identified in item 1 below ([the] [each an] "Assignor") and [the] [each]
--------
Assignee identified in [item 2] [item 3] below ([the] [each an] "Assignee"). [It is understood and agreed that the rights and
--------
obligations of such Assignee [Assignor] hereunder are several and not joint.] Capitalized terms used herein but not defined herein
shall have the meanings given to them in the Credit Agreement identified below (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), receipt of a copy of which is hereby acknowledged by [the] [each] Assignee. The Standard
----------------
Terms and Conditions set forth in Annex 1 hereto (the "Standard Terms and Conditions") are hereby agreed to and incorporated herein
------- ------------------------------
by reference and made a part of this Assignment as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to [the] [each] Assignee, and [the]
[each] Assignee hereby irrevocably purchases and assumes from [the] [each such] Assignor, subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated
below, the interest in and to all of the Assignor's rights and obligations under the Credit Agreement and any other documents or
instruments delivered pursuant thereto that represents the amount and percentage interest identified below of all of the Assignor's
outstanding rights and obligations under the respective facilities identified below (including, to the extent included in any such
facilities, Letters of Credit and Swing Line Loans) (the "Assigned Interest"). [Each] [Such] sale and assignment is without recourse
------------------
to [the] [each such] Assignor and, except as expressly provided in this Assignment, without representation or warranty by [the] [each
such] Assignor.
1. Assignor:..................
-----------------------------------
[2. Assignee:.................. ]24
------------------------------------
[2][3]. Credit Agreement: Credit Agreement dated as of June ___, 2004 among U.S. Can Corporation, a Delaware corporation,
United States Can Company, a Delaware corporation, the financial institutions from time to time
party thereto and Deutsche Bank Trust Company Americas, as administrative agent.
[3. Assigned Interest:25
---------------------- --------------- --------------------------------- ----------------------------------
Aggregate Amount of Amount of Commitment/Loans
----------------
Facility Commitment/Loans for all Lenders Assigned
--------- -------------------------------- --------
Assignee assigned
-------- --------
---------------------- --------------- --------------------------------- ----------------------------------
---------------------- --------------- --------------------------------- ----------------------------------
[Name of Assignee]
---------- ----------
---------------------- --------------- --------------------------------- ----------------------------------
---------------------- --------------- --------------------------------- ----------------------------------
[Name of Assignee]
---------- ----------
---------------------- --------------- --------------------------------- ----------------------------------
[4. Assigned Interest:26
------------------------------ ---------------------------------------- -----------------------------------
Aggregate Amount of Commitment/Loans Amount of Commitment/Loans
for all Lenders Assigned
------- --------
Facility assigned
-----------------
------------------------------ ---------------------------------------- -----------------------------------
------------------------------ ---------------------------------------- -----------------------------------
Revolving Commitments
$-------------- $--------------
------------------------------ ---------------------------------------- -----------------------------------
------------------------------ ---------------------------------------- -----------------------------------
Term B Loans
$-------------- $--------------
------------------------------ ---------------------------------------- -----------------------------------
------------------------------ ---------------------------------------- -----------------------------------
Swing Line Loans
$-------------- $--------------
------------------------------ ---------------------------------------- -----------------------------------
------------------------------ ---------------------------------------- -----------------------------------
Letters of Credit
$-------------- $--------------
------------------------------ ---------------------------------------- -----------------------------------
Effective Date ___________ ____, 200__
ASSIGNOR INFORMATION
Payment Instructions: _____________________
=====================
---------------------
Reference:
Notice Instructions:
=====================
---------------------
Reference:
ASSIGNEE INFORMATION
Payment Instructions: _____________________
=====================
---------------------
Reference:
Notice Instructions:
=====================
---------------------
Reference:
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR ASSIGNEE
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]27
By: By:
----------------------------------------- ---------------------------------------
Name: Name:
Title: Title:
[Additional Signature lines as necessary] [Additional Signature lines as necessary]
By: By:
----------------------------------------- ---------------------------------------
Name: Name:
Title: Title:
[Consented to and]28 Accepted:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
By: DB Services New Jersey, Inc.
By:
----------------------------------------
Name:
Title:
UNITED STATES CAN COMPANY29
By:
----------------------------------------
Name:
Title:
ANNEX FOR ASSIGNMENT AND ASSUMPTION AGREEMENT
ANNEX I
UNITED STATES CAN COMPANY
CREDIT AGREEMENT
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT
1. Representations and Warranties.
------------------------------
1.1. Assignor. [Each] [The] Assignor (a) represents and warrants that (i) it is the legal and
--------
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to
consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with any Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any other instrument or document delivered pursuant thereto,
other than this Assignment, or any collateral thereunder, (iii) the financial condition of the Company or any of its Subsidiaries or
Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Company or any
of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Documents.
1.2. Assignee. [Each] [The] Assignee (a) represents and warrants that (i) it has full power and
--------
authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit
Agreement, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements delivered pursuant to Section 7.1 thereof, as applicable, and such other
-----------
documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and
to purchase the Assigned Interest on the basis of which it has made such analysis and decision and (v) has sent to Company if
required to be delivered to Company or attached to this Assignment if required to be delivered to Administrative Agent any
documentation required to be delivered by it to Company and/or Administrative Agent pursuant to the terms of the Credit Agreement,
duly completed and executed by [the] [each such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the
Administrative Agent, [the] [each such] 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, (ii)
appoints and authorizes each of the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under the Loan Agreement and the other Loan Documents as are delegated to or otherwise conferred upon the
Administrative Agent or the Collateral Agent, as the case may be, by the terms thereof, together with such powers as are reasonably
incidental thereto; and (iii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.
2. Payment. Subject to the terms of the Credit Agreement, from and after the Effective Date, the
-------
Administrative Agent shall make all payment in respect to the Assigned Interest (including payments of principal, interest, fees and
other amounts) to [the] [each such] Assignor for amounts which have accrued to but excluding the Effective Date and to [the] [each]
Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment shall be binding upon, and inure to the benefit of, the parties hereto
-------------------
and their respective successors and assigns. This Assignment may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment by telecopy shall be effective
as delivery of a manually executed counterpart of the Assignment. THIS ASSIGNMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF SAID
STATE, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND
CONFLICTS OF LAWS RULES.
--------
1 Such written notice (or telephonic notice promptly confirmed in writing) must be given to [Administrative Agent][Swing Line
Lender] (i) prior to 1:00 P.M., New York City time, three Business Days prior to the requested borrowing date, if all or any part
of the requested Loans are to be Eurocurrency Loans, (ii) prior to 1:00 P.M., New York City time, one Business Day prior to the
requested borrowing date, with respect to Base Rate Loans (provided, however, that a Notice of Borrowing with respect to
-------- -------
Borrowings of Base Rate Loans to be made on the Initial Borrowing Date may, at the discretion of Administrative Agent, be
delivered later than the time specified above) and (iii) prior to 12:00 noon, New York City time, on the requested borrowing
date, with respect to Swing Line Loans.
2 Each Borrowing shall be in an amount equal to (i) with respect to Base Rate Loans, at least Five Hundred Thousand Dollars
($500,000) and, if greater, shall be in integral multiples of $100,000 above such minimum, (ii) with respect to Eurocurrency
Loans, at least One Million Dollars ($1,000,000) and, if greater, shall be in integral multiples of $100,000 above such minimum
and (iii) with respect to Swing Line Loans, Five Hundred Thousand Dollars ($500,000) or greater.
3 Specify whether Loans are to be Eurocurrency Loans, Base Rate Loans or Swing Line Loans.
4 Which shall be subject to the definition of "Interest Period" set forth in the Credit Agreement and shall end on or before the
applicable Term Maturity Date for any Term Loan and the Revolver Termination Date for any Revolving Loan.
5 This written notice must be given to Administrative Agent not later than 1:00 P.M. (New York City time) at least three Business
Days' (or one Business Day in the case of a conversion into Base Rate Loans) in advance of the date of conversion or continuation.
6 The aggregate principal amount of the Eurocurrency Loans for each Interest Period must be equal to at least One Million Dollars
($1,000,000) and, if greater, shall be in integral multiples of One Hundred Thousand Dollars ($100,000) above such minimum.
7 Which shall be subject to the definition of "Interest Period" set forth in the Credit Agreement and shall end on or before the
applicable Term Maturity Date for any Term Loan and the Revolver Termination Date for any Revolving Loan.
8 At least three Business Days' prior written notice is required and such notice must be given prior to 1:00 P.M. (New York City
time) or such shorter period as agreed to by the Facing Agent.
9 Insert name of Facing Agent - If a Standby Letter of Credit is to be issued by the Administrative Agent, insert "Deutsche Bank
Trust Company Americas." If a Commercial Letter of Credit is to be issued by the Administrative Agent, insert "Deutsche Bank AG,
New York Branch." If any Letter of Credit is to be issued by a Lender other than the Administrative Agent, insert the name of
applicable Facing Agent.
10 Insert U.S. Dollar Stated Amount of Letter of Credit.
11 Insert name and address of beneficiary.
12 Expiration date for Standby Letters of Credit must not be later than one year or less after date of issuance or ten (10) days
prior to the Revolver Termination Date and the expiration date for Commercial Letters of Credit must not be later than180 days
after the issuance or thirty (30) days prior to the Revolver Termination Date.
13 In the case of Standby Letters of Credit, insert a brief description of the LC Supportable Indebtedness. In the case of
Commercial Letters of Credit, insert a brief description of supported trade obligation.
14 Excluding Capital Expenditures with Net Sale Proceeds or with proceeds of Recovery Events to the extent set forth in Section
--------
9.1(e).
------
15 Required only for Compliance Certificate delivered in connection with the financial statements delivered pursuant to Section
--------
7.1(c).
------
16 If Total Leverage Ratio equals 5.0:1.0 or less, such annual amount shall increase to $30,000,000.
5 Excluding Capital Expenditures with Net Sale Proceeds or with proceeds of Recovery Events to the extent set forth in Section
--------
9.1(e).
------
18 This report is required if the Total Leverage Ratio for the most recently completed Fiscal Year of Holdings, as set forth on the
Compliance Certificate, equals 5.0:1.0 or more and will be delivered concurrently with the delivery of the financial statements
referred to in Section 7.2(g).
--------------
19 If the First Lien Leverage Ratio for any Test Period after the Closing Date equals 2.5:1.0 or less, such aggregate amount shall
increase to $20,000,000.
20 Also must have pro forma Senior Secured Leverage Ratio of 4.5:1.0 or less and Total Available Revolving Commitments of
$35,000,000 or more after giving effect to such repurchases.
21 No more than $1,000,000 may be advanced to any one Person.
22 If First Lien Leverage Ratio equals 2.5:1.0 or less, such aggregate amount shall increase to $30,000,000.
23 This Form of Assignment and Assumption Agreement should be used by for an assignment to one or more Eligible Assignees including
an Affiliate thereof.
24 Item 1 and Item 2 should be filled in as appropriate.
25 Insert this chart if this Form of Assignment and Assumption Agreement is being used for assignment to or from funds managed by
the same or related investment managers. The amount of an assignment of such Lender's Credit Exposure shall be not less than
$1,000,000 (or less the entire amount of Lender's Credit Exposure with respect to such Facility, provided, that if such Lender
and its Affiliates (or in the case of a Funds and its Related Funds) collectively hold Credit Exposure at least equal to such
minimum amounts, such Affiliates and/or Related Funds must simultaneously assign Credit Exposure such that the aggregate Credit
Exposure assigned satisfies such minimum amount).
26 Insert this chart if this Form of Assignment and Assumption Agreement is being used by a Lender for an assignment to a single
Assignee. The amount of an assignment of such Lender's Credit Exposure shall be not less than $1,000,000 (or less the entire
amount of Lender's Credit Exposure with respect to such Facility, provided, that if such Lender and its Affiliates collectively
hold Credit Exposure at least equal to such minimum amounts, such Affiliates must simultaneously assign Credit Exposure such
that the aggregate Credit Exposure assigned satisfies such minimum amount).
27 Add additional signature blocks, as needed, if this Form of Assignment and Assumption Agreement is being used by funds managed by
the same or related investment managers.
28 Insert only if assignment is being made to an Assignee other than an Affiliate or another Lender, or, in the case of a Lender
that is a Fund, any Related Fund of any Lender.
29 Do not insert if assignment is being made when an Event of Default is continuing, if assignment is being made to an Assignee that
is an Affiliate or another Lender, or, in the case of a Lender that is a Fund, any Related Fund of any Lender or if the
assignment is being made by Administrative Agent prior to Syndication Date.
