AMENDMENT NO. 1 AND waiver to credit agreement
THIS AMENDMENT NO. 1 AND WAIVER TO CREDIT AGREEMENT (this "Amendment"), dated as of October 1, 2004, is made by and
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among U.S. Can Corporation, a Delaware corporation ("Holdings"), United States Can Company, a Delaware corporation ("Company"), the
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financial institutions signatory hereto and Deutsche Bank Trust Company Americas, as administrative agent ("Administrative Agent").
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W I T N E S S E T H:
WHEREAS, Holdings, Company, Administrative Agent and certain financial institutions (each, a "Lender"; collectively,
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the "Lenders") are parties to that certain Credit Agreement dated as of June 21, 2004 (as amended, the "Credit Agreement").
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WHEREAS, Company has requested that Administrative Agent and the Lenders enter into this Amendment in order to amend
and waive certain provisions of the Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the recitals herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. Unless otherwise specified herein, capitalized terms used in this Amendment shall have the meanings ascribed
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to them by the Credit Agreement.
SECTION 2. WAIVER
2.1. Waiver. On the Effective Date (as defined below), Administrative Agent and Required Lenders hereby waive (such waiver
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retroactive to September 26, 2004) any Event of Default or Unmatured Event of Default set forth on Schedule A (the "Scheduled
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Matters"); provided, that such waiver shall cease to be effective and such Events of Default and Unmatured Events of Default shall be
reinstated if Company has not furnished to Administrative Agent the financial information required under Section 7.1(a) of the Credit
Agreement for the fiscal months ended August 1, 2004 and August 29, 2004 and the financial information required under Section 7.1(b)
of the Credit Agreement for the Fiscal Quarter ended July 4, 2004 and related Compliance Certificate, in each case by November 5,
2004.
SECTION 3. AMENDMENT
3.1. Amendments. As of the Effective Date (as defined below), Administrative Agent and Required Lenders hereby amend the Credit
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Agreement as follows:
(a) The definition of "Applicable Base Rate Margin" in Section 1.1 of the Credit Agreement is hereby amended by deleting such
definition in its entirety and replacing such definition with the following:
"'Applicable Base Rate Margin' means at any date, (i) with respect to Revolving Loans, 2.75% and
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(ii) with respect to Term B Loans, 2.75%."
(b) The definition of "Applicable Eurocurrency Margin" in Section 1.1 of the Credit Agreement is hereby amended by deleting such
definition in its entirety and replacing such definition with the following:
"'Applicable Eurocurrency Margin' means at any date, (i) with respect to Revolving Loans, 3.75%
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and (ii) with respect to Term B Loans, 3.75%."
(c) Section 5.2(a) of the Credit Agreement is hereby amended to add the following clause at the conclusion of such subsection:
"and except to the extent such representations or warranties are not true or correct for the reasons set forth under the title
'Representations and Warranties' on Schedule A attached to Amendment No. 1 and Waiver to Credit Agreement dated as of October 1,
2004 by and among Company, Holdings, Administrative Agent and the Lenders."
(d) Section 8.5(e) of the Credit Agreement is hereby amended by deleting such subsection in its entirety and replacing such
subsection with the following:
"Holdings and its Subsidiaries may (i) pay management or other fees to Berkshire Partners in an
amount not to exceed $187,500 per Fiscal Quarter provided that such management fees for the period
fromDecember 31, 2004 to December 31, 2005 shall accrue (and not be payable in cash) ("Accrued Management
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Fees") and (ii) pay Accrued Management Fees after December 31, 2005 provided that after giving effect to
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the payment of such Accrued Management Fees as if paid on the first day of the most recently completed
Fiscal Quarter for which financial statements have been delivered pursuant to Section 7.1(a) or (b), the
First Lien Leverage Ratio for the most recently completed four Fiscal Quarters is less than 2.75:1.00 and
no Event of Default or Unmatured Event of Default exists and is continuing."
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1. Representations and Warranties. In order to induce the Administrative Agent and the Required Lenders to enter into this
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Amendment, Holdings and Company hereby represent and warrant to Administrative Agent and the Lenders, in each case after giving
effect to this Amendment, as follows:
(a) Incorporation of Representations and Warranties from the Credit Agreement. After giving effect to this Amendment, the
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representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material
respects at and as of the Effective Date, as though made on and as of such date, except to the extent expressly made as of a
specified date, in which event such representation and warranty is true and correct in all material respects as of such date and
except to the extent such representations or warranties are not true or correct due to the Scheduled Matters.
(b) No Violation or Conflict. The execution and delivery of this Amendment by Holdings and Company will not (i) contravene any
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provision of any Requirement of Law applicable to any Credit Party or (ii) conflict with or result in a breach by any Credit Party
of any Organizational Document of any of them.
(c) No Additional Consents Required. No authorization or approval or other action by, and no notice to or filing or
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registration with, any Governmental Authority or other Person is required in connection with the execution and delivery of this
Amendment.
(d) Absence of Default. No Event of Default or Unmatured Event of Default will exist or be continuing.
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(e) Good Standing. On the Effective Date, each Credit Party is a duly organized and validly existing entity in good standing in
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its jurisdiction of incorporation or formation.
SECTION 5. AMENDMENT FEE
5.1. Amendment Fee. In consideration of the execution of this Amendment by the Lenders, Company hereby agrees to pay on the
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Effective Date, without setoff, deduction or counterclaim, to Administrative Agent on account of each Lender that has executed and
delivered (including delivery by way of facsimile) a copy of this Amendment to the attention of Xxxxx Xxxxx at Xxxxxxx & Xxxxxx, 00
Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, telecopy number 000-000-0000, at or prior to 5:00 p.m. (Central Time) on October 1, 2004
(the "Delivery Date"), a non-refundable amendment fee (the "Amendment Fee") in an amount equal to 0.25% of the sum of such Lender's
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Revolving Commitment and Term B Loans as of the Delivery Date.
SECTION 6. CONDITIONS PRECEDENT
6.1. Conditions to Effectiveness of Amendment. This Amendment shall become effective upon satisfaction of the following
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conditions precedent (the "Effective Date"):
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(a) Execution and Delivery of Amendment. Holdings, Company, Administrative Agent and the Required Lenders shall have executed
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and delivered this Amendment.
(b) Certified Copy of Amendment to Berkshire Management Agreement. Company shall deliver to Administrative Agent a certified
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copy of an agreement of Berkshire Partners in form and substance acceptable to Administrative Agent that confirms the payment
obligations of the Company under the Berkshire Management Agreement will be limited as set forth in Section 3.1(d) hereof.
(c) Approvals. All necessary governmental (domestic and foreign) and third party approvals in connection with this Amendment,
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if any, shall have been obtained and remain in effect, and any 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
this Amendment or the other transactions contemplated by the Loan 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 materially adverse conditions upon all or any part
of this Amendment or by the Loan Documents.
(d) Litigation. No litigation by any entity (private or governmental) shall be pending or, to the best knowledge of Company,
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threatened, with respect to this Amendment, any other Loan Document or any documentation executed in connection herewith or
therewith, or which the Administrative Agent or the Required Lenders shall determine could reasonably be expected to have a Material
Adverse Effect.
(e) Adverse Change. Nothing shall have occurred (and the Lenders shall have become aware of no facts or conditions previously
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unknown) which has or could reasonably be expected to have a Material Adverse Effect.
(f) No Defaults. After giving effect to this Amendment, no Event of Default or Unmatured Event of Default under the Credit
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Agreement shall have occurred and be continuing.
(g) Representations and Warranties. After giving effect to this Amendment, the representations and warranties of Company and
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the other Credit Parties contained in this Amendment, the Credit Agreement and the other Loan Documents shall be true and correct in
all material respects as of the Effective Date, with the same effect as though made on such date, except to the extent specifically
made with regard to a particular date, in which case such representation and warranty is true and correct as of such date and except
to the extent such representations or warranties are untrue for the reasons set forth under the title "Representations and
Warranties" on Schedule A attached hereto.
(h) Fees. Company shall have paid to the Administrative Agent (i) the Amendment Fee set forth in Section 5.1 and (ii) all
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costs, fees and expenses (including, without limitation, reasonable legal fees and expenses) payable to the Administrative Agent to
the extent then due and payable.
(i) Other Matters. Administrative Agent shall have received such other instruments and documents as Administrative Agent or the
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Required Lenders may reasonably request in connection with the execution of this Amendment, and all such instruments and documents
shall be reasonably satisfactory in form and substance to Administrative Agent.
SECTION 7. MISCELLANEOUS
7.1. Miscellaneous. The parties hereto hereby further agree as follows:
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(a) Fees, Costs, Expenses and Taxes. Company agrees to pay all reasonable fees, costs and expenses of Administrative Agent
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incurred in connection with the negotiation, preparation and execution of this Amendment and the transactions contemplated hereby,
including, without limitation, the reasonable fees and expenses of Winston & Xxxxxx LLP, counsel to Administrative Agent.
(b) Counterparts. This Amendment may be executed in one or more counterparts, each of which, when executed and delivered, shall
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be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same document with the
same force and effect as if the signatures of all of the parties were on a single counterpart, and it shall not be necessary in
making proof of this Amendment to produce more than one (1) such counterpart.
(c) Headings. Headings used in this Amendment are for convenience of reference only and shall not affect the construction of
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this Amendment.
(d) Integration. This Amendment and the Credit Agreement constitute the entire agreement among the parties hereto with respect
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to the subject matter hereof.
(e) Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
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PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF SAID STATE WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
(f) Binding Effect. This Amendment shall be binding upon and inure to the benefit of and be enforceable by Holdings, Company,
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Administrative Agent and the Lenders and their respective successors and assigns. Except as expressly set forth to the contrary
herein, this Amendment shall not be construed so as to confer any right or benefit upon any Person other than Holdings, Company,
Administrative Agent and the Lenders and their respective successors and permitted assigns.
(g) Limitations. Except as expressly provided herein, the execution and delivery of this Amendment shall not: (a) constitute an
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extension, modification, or waiver of any aspect of the Credit Agreement or the other Loan Documents; (b) extend the terms of the
Credit Agreement or the due date of any of the Obligations; (c) give rise to any obligation on the part of the Administrative Agent
and the Lenders to extend, modify or waive any term or condition of the Credit Agreement or any of the other Loan Documents; or (d)
give rise to any defenses or counterclaims to the right of Administrative Agent and the Lenders to compel payment of the Obligations
or to otherwise enforce its rights and remedies under the Credit Agreement and the other Loan Documents.
(h) Reference to and Effect on the Credit Agreement. The parties hereto agree and acknowledge that nothing contained in this
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Amendment in any manner or respect limits or terminates any of the provisions of the Credit Agreement or any of the other Loan
Documents other than as expressly set forth herein and further agree and acknowledge that the Credit Agreement and each of the other
Loan Documents remain and continue in full force and effect and are hereby ratified and confirmed. Except to the extent expressly
set forth herein, the execution, delivery and effectiveness of this Amendment shall not operate as an amendment of any rights, power
or remedy of the Lenders or the Administrative Agent under the Credit Agreement or any other Loan Document, nor constitute an
amendment of any provision of the Credit Agreement or any other Loan Document. No delay on the part of any Lender or Administrative
Agent in exercising any of their respective rights, remedies, powers and privileges under the Credit Agreement or any of the Loan
Documents or partial or single exercise thereof, shall constitute an amendment thereof. On and after the Effective Date each
reference in the Credit Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of like import, and each reference
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to the Credit Agreement in the Loan Documents and all other documents delivered in connection with the Credit Agreement shall mean
and be a reference to the Credit Agreement giving effect to this Amendment. Holdings and Company acknowledge and agree that this
Amendment constitutes a "Loan Document" for purposes of the Credit Agreement. None of the terms and conditions of this Amendment
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may be changed, waived, modified or varied in any manner, whatsoever, except in accordance with Section 12.1 of the Credit Agreement.
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[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers
thereunto duly authorized, as of the date first written above.
U.S. CAN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Sr. Vice-President and CFO
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UNITED STATES CAN COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Sr. Vice-President and CFO
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DEUTSCHE BANK TRUST COMPANY AMERICAS, individually as a Lender and as
Administrative Agent
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
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Title: Director
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XXX XXXXXX SENIOR INCOME TRUST, as a Lender
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: Executive Director
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XXX XXXXXX SENIOR LOAN FUND, as a Lender
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: Executive Director
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SANKATY HIGH YIELD PARTNERS II, L.P., as a Lender
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: Senior Vice President
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SANKATY HIGH YIELD PARTNERS III, L.P., as a Lender
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: Senior Vice President
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AMMC CDO I, LIMITED, as Collateral Manager
By: /s/ Xxxxxxx X. Eng
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Name: Xxxxxxx X. Eng
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Title: Senior Vice President
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AMMC CDO II, LIMITED, as Collateral Manager
By: /s/ Xxxxxxx X. Eng
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Name: Xxxxxxx X. Eng
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Title: Senior Vice President
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AMMC CDO III, LIMITED, as Collateral Manager
By: /s/ Xxxxxxx X. Eng
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Name: Xxxxxxx X. Eng
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Title: Senior Vice President
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XXXXXXX XXXXX CAPITAL, a division of Xxxxxxx Xxxxx Business Financial
Services, Inc., as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Vice President
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LONG LANE MASTER TRUST IV, as a Lender
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Authorized Agent
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ING PRIME RATE TRUST, as a Lender
By: /s/ Xxxxxxx X. XxXxxxx
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Name: Xxxxxxx X. XxXxxxx, CFA
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Title: Vice President
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ING SENIOR INCOME FUND, as a Lender
By: /s/ Xxxxxxx X. XxXxxxx
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Name: Xxxxxxx X. XxXxxxx, CFA
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Title: Vice President
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SUNAMERICA LIFE INSURANCE COMPANY, as Investment Advisor
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Vice President
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GALAXY CLO 1999-1, LTD., as Investment Advisor
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Vice President
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GALAXY CLO 2003-1, LTD., as Investment Advisor
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Vice President
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GALAXY III CLO, LTD., as Investment Advisor
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Vice President
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CDL FUNDING LLC, as a Lender
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: Attorney-In-Fact
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COOKSMILL, as a Lender
By: /s/ C.H. Sinnamon
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Name: C.H. Sinnamon
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Title: Authorized Signatory
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NORTHWOODS CAPITAL III, LIMITED, as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Managing Director
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NORTHWOODS CAPITAL IV, LIMITED, as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Managing Director
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GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Duly Authorized Signatory
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KZH CYPRESSTREE-1 LLC, as a Lender
By: /s/ Xxxxx Xxxxxx-Xxxxxx
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Name: Xxxxx Xxxxxx-Xxxxxx
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Title: Authorized Agent
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KZH PONDVIEW LLC, as a Lender
By: /s/ Xxxxx Xxxxxx-Xxxxxx
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Name: Xxxxx Xxxxxx-Xxxxxx
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Title: Authorized Agent
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KZH SOLEIL LLC, as a Lender
By: /s/ Xxxxx Xxxxxx-Xxxxxx
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Name: Xxxxx Xxxxxx-Xxxxxx
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Title: Authorized Agent
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KZH SOLEIL-2 LLC, as a Lender
By: /s/ Xxxxx Xxxxxx-Xxxxxx
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Name: Xxxxx Xxxxxx-Xxxxxx
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Title: Authorized Agent
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KZH STERLING LLC
By: /s/ Xxxxx Xxxxxx-Xxxxxx
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Name: Xxxxx Xxxxxx-Xxxxxx
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Title: Authorized Agent
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TRS THEBE LLC
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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CANADIAN IMPERIAL BANK OF COMMERCE, as a Lender
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
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Title: Authorized Signatory
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VENTURE IV CDO, Limited
By its investment advisor MJX Asset Management LLC
By: /s/M.E.W.
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Name:
-
Title:
-
VENTURE III CDO, Limited
By its investment advisor MJX Asset Management LLC
By: /s/M.E.W.
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Name:
-
Title:
-
VENTURE II CDO, Limited
By its investment advisor MJX Asset Management LLC
By: /s/ M.E.W.
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Name:
-
Title:
-
VENTURE CDO 2002, Limited
By its investment advisor MJX Asset Management LLC
By: /s/M.E.W.
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Name:
-
Title:
-
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: First Vice President
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SENIOR DEBT PORTFOLIO
Boston Management and Research as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXX XXXXX SENIOR INCOME TRUST
By Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXX XXXXX INSTITUTIONAL SENIOR
By Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXX XXXXX CDO III, LTD.
By Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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COSTANTINDO XXXXX XXXXX
CDO V, LTD.
By Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXX XXXXX CDO VI, LTD.
By Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXXXX & CO.
By Boston Management and Research as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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THE NORINCHUKIN BANK, NEW YORK BRANCH, through State Street Bank and
Trust Company N.A. as Fiduciary Custodian
By Xxxxx Xxxxx Management, Attorney-in-fact
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXX XXXXX LIMITED DURATION INCOME FUND
By Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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XXXXX XXXXX SENIOR FLOATING-RATE TRUST
By Xxxxx Xxxxx Management as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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TRS ARIA LLC
By: /s/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
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Title: Vice President
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BLACK DIAMOND CLO 2000-1 LTD, as a Lender
By: /s/ R.V.
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Name:
Title:
SCHEDULE A
A. Representations and Warranties. Any Event of Default or Unmatured Event of Default now existing or hereafter arising
--------------------------------
resulting from any of the following representations or warranties having been incorrect in any material respect when made or deemed
made:
1. The representations set forth in Sections 6.5(a)(i) and 6.5(a)(ii) of the Credit Agreement to the extent that such
representations are or were untrue as a result of the inaccuracy of the financial statements for U.S.C. France Holding, S.A.S. and
its Subsidiaries (collectively, "USC France").
2. The representations set forth in Sections 6.5(c) and (d) of the Credit Agreement, including Schedule 6.5(d), to the
extent that such representations are or were untrue as a result of liabilities of USC France which were not reflected on the
financial statements or the failure to take into account material information with respect to USC France.
3. The representations set forth in Section 6.5(e) of the Credit Agreement to the extent that such representations are
or were untrue because the projections delivered on the Initial Borrowing Date were misleading or failed to take into account
material information with respect to USC France.
4. The representations set forth in Section 6.7 of the Credit Agreement to the extent that such representations are or
were untrue as a result of factual information delivered on or prior to the Effective Date containing an untrue statement of fact or
omitting to state a material fact pertaining to the business, condition, assets, liabilities, operations or prospects of USC France.
5. The representations set forth in Section 6.9 of the Credit Agreement to the extent that such representations are or
were untrue as a result of the possible failure by USC France to pay VAT taxes for periods prior to the Effective Date in an amount
not in excess of 2,500,000 Euros; provided, that such taxes are promptly paid by USC France as soon as practicable after a
determination of the amount so due.
B. Affirmative Covenants. Any Event of Default or Unmatured Event of Default now existing or hereafter arising resulting from
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the default in the performance or observance of any of the following covenants:
1. The requirements of Sections 7.1 and 7.2(a) of the Credit Agreement to the extent that the Company failed to (i)
deliver the unaudited balance sheets for the fiscal months ended August 1, 2004 and August 29, 2004 and the related statements of
income and (ii) deliver the unaudited balance sheets and the related statements of income for the Fiscal Quarter ended July 4, 2004;
and, to the extent required, the accompanying Compliance Certificate or any other certificate required to be delivered therewith;
provided, that each of the foregoing shall be delivered no later than November 5, 2004.
2. The requirements of Section 7.3(a) of the Credit Agreement to the extent that Company or USC France failed to timely
notify Administrative Agent of the occurrence of any Event of Default or Unmatured Event of Default that occurred prior to the
Effective Date as a direct or indirect result of the inaccuracy of the financial statements for USC France within five (5) Business
Days after an officer of USC France or Company obtained knowledge thereof.
4. The requirements of Section 7.5 of the Credit Agreement to the extent that USC France failed to pay or discharge its
obligations arising prior to the Effective Date prior to maturity or before they became delinquent; provided, that such obligations
are promptly paid by USC France as soon as practicable after a determination of the amount so due or delinquent.
5. The requirements of Section 7.6 of the Credit Agreement to the extent that USC France failed to keep adequate or
complete records and books of account in accordance with GAAP prior to the Effective Date.
C. Negative Covenants. In the event that this Amendment is not effective prior to 2:00 p.m. (New York time) on October 1,
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2004, any Event of Default as a result of Company making its regularly scheduled interest payment on the Subordinated Notes on
October 1, 2004 to the extent such payment was not permitted under Section 8.5(b) of the Credit Agreement.
