[CONFORMED COPY
WITH EXHIBITS D, E & G
CONFORMED AS EXECUTED]
CREDIT AGREEMENT
dated as of
June 21, 2000,
among
Tekni-Plex, Inc.,
The Guarantors Party Hereto,
The Lenders Party Hereto,
The LC Issuing Banks Referred to Herein,
and
Xxxxxx Guaranty Trust Company of New York,
as Agent
-------------------------------
X.X. Xxxxxx Securities Inc.,
as Arranger
-------------------------------
$444,000,000
TABLE OF CONTENTS
Page
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ARTICLE I Definitions......................................................1
SECTION 1.01. Definitions............................................1
SECTION 1.02. Accounting Terms and Determinations...................27
ARTICLE II The Credits.....................................................28
SECTION 2.01. Commitments to Lend...................................28
SECTION 2.02. Minimum Borrowing Amounts, etc.; Pro rata
Borrowings........................................30
SECTION 2.03. Method of Borrowing...................................30
SECTION 2.04. Maturity of Loans.....................................31
SECTION 2.05. Interest Rates........................................32
SECTION 2.06. Method of Electing Interest Rates.....................33
SECTION 2.07. Fees..................................................34
SECTION 2.08. Optional Termination or Reduction of Commitments......34
SECTION 2.09. Mandatory Reduction of Commitments....................34
SECTION 2.10. Mandatory Repayments..................................35
SECTION 2.11. Optional Prepayments..................................40
SECTION 2.12. General Provisions as to Payments.....................41
SECTION 2.13. Funding Losses........................................42
SECTION 2.14. Computation of Interest and Fees......................42
SECTION 2.15. Notes.................................................42
SECTION 2.16. Letters of Credit.....................................44
ARTICLE III Conditions......................................................48
SECTION 3.01. Conditions Precedent to Initial Credit Events.........48
SECTION 3.02. Conditions Precedent to All Credit Events.............54
ARTICLE IV Representations and Warranties..................................55
SECTION 4.01. Corporate Existence and Power.........................55
SECTION 4.02. Corporate and Governmental Authorization;
No Contravention..................................55
SECTION 4.03. Binding Effect........................................55
SECTION 4.04. Financial Information.................................55
SECTION 4.05. Litigation............................................56
SECTION 4.06. Compliance with ERISA.................................56
SECTION 4.07. Environmental Compliance..............................56
SECTION 4.08. Taxes.................................................57
SECTION 4.09. Subsidiaries..........................................58
SECTION 4.10. No Regulatory Restrictions on Borrowing...............58
SECTION 4.11. Full Disclosure.......................................58
SECTION 4.12. Representations of Guarantors.........................58
(i)
SECTION 4.13. Intellectual Property.................................59
SECTION 4.14. Solvency..............................................59
SECTION 4.15. Labor Relations.......................................60
SECTION 4.16. Subordinated Notes; etc...............................60
ARTICLE V Covenants.......................................................60
SECTION 5.01. Information...........................................60
SECTION 5.02. Payment of Obligations................................62
SECTION 5.03. Maintenance of Property; Insurance....................63
SECTION 5.04. Conduct of Business and Maintenance of Existence......63
SECTION 5.05. Compliance with Laws..................................64
SECTION 5.06. Inspection of Property, Books and Records.............64
SECTION 5.07. Mergers and Sales of Assets...........................64
SECTION 5.08. Use of Proceeds; Compliance with Margin Regulations...65
SECTION 5.09. Negative Pledge.......................................65
SECTION 5.10. Limitation on Debt....................................66
SECTION 5.11. Fixed Charge Coverage Ratio...........................68
SECTION 5.12. Leverage Ratio........................................69
SECTION 5.13. Minimum Consolidated EBITDA...........................70
SECTION 5.14. Restricted Payments...................................71
SECTION 5.15. Investments; Restricted Acquisitions..................71
SECTION 5.16. Transactions with Affiliates..........................75
SECTION 5.17. Limitation on Restrictions Affecting Subsidiaries.....75
SECTION 5.18. Limitation on Issuance of Capital Stock...............76
SECTION 5.19. Limitation on Voluntary Payments and Modifications
of Indebtedness...................................76
SECTION 5.20. Limitation on Fixed-Price Contracts...................77
SECTION 5.21. End of Fiscal Years; Fiscal Quarters..................77
SECTION 5.22. Further Assurances....................................77
SECTION 5.23. De Minimis Subsidiaries...............................79
ARTICLE VI Defaults........................................................79
SECTION 6.01. Events of Defaults....................................79
SECTION 6.02. Notice of Default.....................................82
ARTICLE VII The Agent.......................................................82
SECTION 7.01. Appointment and Authorization.........................82
SECTION 7.02. Agent and Affiliates..................................82
SECTION 7.03. Action by Agent.......................................82
SECTION 7.04. Consultation with Experts.............................83
SECTION 7.05. Liability of Agent....................................83
SECTION 7.06. Indemnification.......................................83
SECTION 7.07. Credit Decision.......................................83
SECTION 7.08. Successor Agent.......................................84
(ii)
SECTION 7.09. Agent's Fee...........................................84
ARTICLE VIII Change in Circumstances.........................................84
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair.........................................84
SECTION 8.02. Illegality............................................85
SECTION 8.03. Increased Cost and Reduced Return.....................85
SECTION 8.04. Taxes.................................................86
SECTION 8.05. Base Rate Loans Substituted for Affected
Euro-Dollar Loans.................................89
SECTION 8.06. Replacement of Lender.................................89
ARTICLE IX Guaranty........................................................90
SECTION 9.01. The Guaranty..........................................90
SECTION 9.02. Guaranty Unconditional................................90
SECTION 9.03. Discharge Only upon Payment in Full; Reinstatement
in Certain Circumstances..........................91
SECTION 9.04. Waiver by Each Guarantor..............................91
SECTION 9.05. Subrogation and Contribution..........................91
SECTION 9.06. Stay of Acceleration..................................92
SECTION 9.07. Limit of Liability....................................92
SECTION 9.08. Release upon Sale.....................................92
SECTION 9.09. Additional Guarantors.................................92
ARTICLE X Miscellaneous...................................................92
SECTION 10.01. Notices..............................................92
SECTION 10.02. No Waivers...........................................93
SECTION 10.03. Expenses; Indemnification............................93
SECTION 10.04. Sharing of Payments..................................94
SECTION 10.05. Amendment or Waiver; etc.............................94
SECTION 10.06. Benefit of Agreement; Assignments; Participation.....95
SECTION 10.07. Governing Law; Submission to Jurisdiction............97
SECTION 10.08. Counterparts; Integration; Effectiveness;
Amendment and Restatement.........................97
SECTION 10.09. Confidentiality......................................98
SECTION 10.10. Waiver of Jury Trial.................................98
SECTION 10.11. Register.............................................98
SECTION 10.12. Survival.............................................99
(iii)
Schedule 1 -- Commitments
Schedule 2 -- Debt to Remain Outstanding
Schedule 3 -- Subsidiaries
Schedule 4 -- Existing Liens
Schedule 5 -- Mortgaged Properties
Schedule 6 -- Insolvent Subsidiaries/Subsidiaries not in Good
Standing
Exhibit A-1 -- Form of Tranche A Term Note
Exhibit A-2 -- Form of Tranche B Term Note
Exhibit A-3 -- Form of Revolving Note
Exhibit A-4 -- Form of Swingline Note
Exhibit B. -- Opinion of Counsel for the Borrower
Exhibit C. -- Assignment and Assumption Agreement
Exhibit D. -- Form of Security Agreement
Exhibit E. -- Form of Pledge Agreement
Exhibit F. -- Forms of Mortgage, Deed of Trust and Deed to Secure Debt
Exhibit G. -- Form of Solvency Certificate
(iv)
CREDIT AGREEMENT, dated as of June 21, 2000, among TEKNI-PLEX, INC., the
GUARANTORS party hereto, the LENDERS party hereto, the LC ISSUING BANKS
referred to herein and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. The following terms, as used herein, have the
following meanings:
"Additional Debt Incurrence" means the incurrence of any Debt by the
Borrower or any of its Subsidiaries (other than Debt which is permitted under
Section 5.10).
"Adjusted London Interbank Offered Rate" applicable to any Interest Period
means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (i) the applicable
London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar Reserve
Percentage.
"Administrative Questionnaire" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Agent, completed by
such Lender and returned to the Agent (with a copy to the Borrower).
"Affected Euro-Dollar Loan" shall have the meaning set forth in Section
2.10(h).
"Affiliate" means with respect to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person; provided that for purposes of Section 5.16, an
Affiliate of the Borrower shall include any Person that directly or indirectly
owns more than 10% of any class of capital stock of the Borrower. A Person
shall be deemed to control another Person if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such other Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" means MGT in its capacity as agent for the Lenders hereunder, and
its successors in such capacity appointed pursuant to Section 7.08.
"Aggregate LC Exposure" means, at any time, the sum, without duplication,
of (i) the aggregate Stated Amount of all Letters of Credit outstanding at such
time and (ii) the aggregate unpaid amount of all LC Reimbursement Obligations
at such time.
"Agreement" means this Credit Agreement, as modified, supplemented or
amended (including any amendment and restatement) from time to time.
"Applicable Base Rate Margin" means a percentage per annum equal to (i) in
the case of Tranche A Term Loans and Revolving Loans maintained as Base Rate
Loans, 2.00%, less the then applicable Reduction Discount, if any, and (ii) in
the case of Tranche B Term Loans maintained as Base Rate Loans, 2.50%, less the
then applicable Reduction Discount, if any.
"Applicable Commitment Fee Percentage" means 1/2 of 1% per annum less the
then applicable Reduction Discount, if any.
"Applicable Euro-Dollar Margin" means a percentage per annum equal to (i)
in the case of Tranche A Term Loans and Revolving Loans maintained as
Euro-Dollar Loans, 3.00%, less the then applicable Reduction Discount, if any,
and (ii) in the case of Tranche B Term Loans maintained as Euro-Dollar Loans,
3.50%, less the then applicable Reduction Discount, if any.
"Applicable Lending Office" means, with respect to any Lender, (i) in the
case of its Base Rate Loans and its participations in Letters of Credit, its
Domestic Lending Office and (ii) in the case of its Euro-Dollar Loans, its
Euro-Dollar Lending Office.
"Applicable Period" shall mean each period which shall commence on a date
on which the financial statements are delivered pursuant to Section 5.01(a) or
(b) (or, in the case of any period commencing in the first Fiscal Quarter, the
earlier of (x) delivery, no later than 45 days after the end of such Fiscal
Quarter of either (A) unaudited versions of the financial statements required
by Section 5.01(a) certified by the chief financial officer of the Borrower or
(B) a certificate, signed by the chief financial officer of the Borrower,
setting forth in reasonable detail the calculation of the Leverage Ratio for
such Fiscal Quarter and the other information required under Section 5.01(c)
and (y) delivery of the financial statements pursuant to Section 5.01(a)), as
the case may be, and which shall end on the earlier of (i) the date of actual
delivery of the next financial statements pursuant to Section 5.01(a) or (b)
(or, in the case of any period ending in the first Fiscal Quarter, the delivery
of the financial statements or officer's certificate set forth in the
immediately preceding parenthetical), as the case may be, and (ii) the latest
date on which the next financial statements are required to be delivered
pursuant to Section 5.01(a) or (b), as the case may be; provided that for
purposes of the definition of Reduction Discount, no Applicable Period shall
commence on a date occurring prior to the date of delivery of financial
statements pursuant to Section 5.01(b) in respect of the fiscal quarter ending
the Friday closest to December 31, 2000; provided further, in the case the
Applicable Period commences on the date set forth in clause (x) of the first
parenthetical to this definition, (i) the Borrower's obligation to deliver the
financial statements pursuant to Section 5.01(a) will not be affected and (ii)
to the extent the financial statements delivered pursuant to Section 5.01(a)
and the corresponding statements delivered pursuant to Section 5.01(d) would
result in a Reduction Discount different from that established for such Fiscal
Quarter, the Reduction Discount shall be retroactively adjusted to correspond
to the financial statements delivered pursuant to Section 5.01(a).
"Applicable Repayment Percentage" means (i) in respect of an Asset Sale or
Additional Debt Incurrence, 100%, (ii) in respect of an Equity Issuance, 75%
and (iii) in respect of Excess Cash Flow, 50% (provided that, if on the last
day of any Excess Cash Flow Period (x) no Default then exists and (y) the
Leverage Ratio is less than or equal to 4.00 to 1.00, then no
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mandatory repayment shall be required from Excess Cash Flow for such Excess
Cash Flow Period).
"Asset Sale" means any sale, lease (other than (i) operating leases
existing on the Effective Date and (ii) such additional operating leases to the
extent generating gross revenues not exceeding $2,500,000 in the aggregate for
all such additional leases in any fiscal year of the Borrower) or other
disposition (including any such transaction effected by way of merger or
consolidation) by the Borrower or any of its Subsidiaries of any asset,
including, without limitation, (x) any sale-leaseback transaction, whether or
not involving a capital lease, and (y) any capital stock or other securities of
another Person (but excluding the sale by such Person of its own capital
stock), whether in a single transaction or a series of related transactions in
which the Net Cash Proceeds therefrom are in excess of $500,000.
Notwithstanding the foregoing, the following will not be deemed to be Asset
Sales: (i) dispositions of inventory, cash, Cash Equivalents and other cash
management investments, (ii) dispositions to the Borrower or a Domestic
Subsidiary of the Borrower and dispositions from a Foreign Subsidiary to a
Foreign Subsidiary and (iii) any sale at fair market value of certain
non-strategic assets identified to the Lenders prior to the Effective Date.
"Assignment and Assumption Agreement" shall mean an Assignment and
Assumption Agreement substantially in the form of Exhibit C (appropriately
completed).
"Available Domestic JV Basket Amount" shall mean, on any date of
determination, an amount equal to the sum of (i) $15,000,000 minus (ii) the
aggregate amount of Investments made by the Borrower or any of its Domestic
Subsidiaries (other than the respective Domestic Joint Venture) (net of Debt
and, without duplication, Capitalized Lease Obligations assigned to, and
assumed by, the respective Domestic Joint Venture in connection therewith),
pursuant to Section 5.15(xi) after the Initial Borrowing Date, minus (iii) the
aggregate amount of Debt or other obligations (whether absolute, accrued,
contingent or otherwise and whether or not due) of any Domestic Joint Venture
for which the Borrower or any of its Domestic Subsidiaries (other than the
respective Domestic Joint Venture) is liable, minus (iv) all payments made by
the Borrower or any of its Domestic Subsidiaries (other than the respective
Domestic Joint Venture) in respect of Debt or other obligations of the
respective Domestic Joint Venture after the Initial Borrowing Date, plus (v)
the amount of any increase to the Available Domestic JV Basket Amount made
after the Initial Borrowing Date in accordance with the provisions of Section
5.15(xi). In connection with the foregoing, it is understood that the
acquisition of a Person which has ownership interests in one or more Domestic
Joint Ventures, pursuant to a Permitted Acquisition effected in accordance with
the relevant requirements of this Agreement shall not be deemed to constitute
an Investment pursuant to Section 5.15(xi) and the Available Domestic JV Basket
Amount shall not be reduced as a result of the payment of consideration owing
to effect the Permitted Acquisition (although the Available Domestic JV Basket
Amount would be affected to the extent preceding clauses (iii) or (iv) apply
after the date of such Permitted Acquisition with respect to the Joint Venture
so acquired or to the extent additional Investments are made in the respective
Joint Venture pursuant to Section 5.15(xi)).
"Available ECF Amount" shall initially mean zero, (x) and shall be
increased on each Excess Cash Payment Date by the amount of Excess Cash Flow
permitted to be retained by
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the Borrower with respect to the Excess Cash Flow Period then ended (y) and
shall be reduced by (i) Dividends permitted to be paid pursuant to Section
5.14(z) and (ii) Permitted Acquisitions pursuant to Section 5.15(ix).
"B Lenders" shall have the meaning provided in Section 2.10(i).
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy," as amended.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal
Funds Rate for such day.
"Base Rate Borrowing" shall mean a Borrowing of Base Rate Loans.
"Base Rate Loan" means each Loan which bears interest at the Base Rate as
provided Section 2.05(a).
"Borrower" means Tekni-Plex, Inc., a Delaware corporation, and its
successors.
"Borrowing" means a borrowing of one Type of Loan pursuant to a single
Tranche by the Borrower from all Lenders having Commitments of the respective
Tranche on a given date (or resulting from conversions on a given date), having
in the case of Euro-Dollar Loans the same Interest Period, provided that Base
Rate Loans incurred pursuant to Article VIII shall be considered part of the
related Borrowing of Euro-Dollar Loans. A Borrowing is a "Base Rate Borrowing"
if such Borrowing is comprised of Loans maintained as Base Rate Loans or a
"Euro-Dollar Borrowing" if such Borrowing is comprised of Loans maintained as
Euro-Dollar Loans.
"Bridge Financing" shall have the meaning provided in Section
3.01(d)(vii).
"Bridge Financing Documents" means any and all documents executed and
delivered in connection with the Bridge Financing.
"Business Day" means (i) for all purposes other than as covered by clause
(ii) below, any day excluding Saturday, Sunday and any day which shall be in
New York City a legal holiday or a day on which banking institutions are
authorized or required by law or other governmental actions to close and (ii)
with respect to all notices and determinations in connection with, and payments
of principal and interest on, Euro-Dollar Loans, any day which is a Business
Day described in clause (i) above and is also a day for trading by and between
banks in U.S. dollar deposits in the interbank Euro-Dollar market.
"Capital Expenditures" means, for any Person for any period, the additions
to property, plant and equipment and other capital expenditures of such Person
for such period, as the same are or would be set forth in a consolidated
statement of cash flows of such Person for such period in accordance with GAAP.
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"Capital Stock" of any Person shall mean any and all shares, interests,
rights to purchase, warrants, options, participation or other equivalents of or
interests in (however designated) equity of such Person, including any
preferred stock, any limited or general partnership interest and any limited
liability company membership interest.
"Capitalized Lease Obligations" of any Person shall mean all rental
obligations which, under generally accepted accounting principles, are or will
be required to be capitalized on the books of such Person, in each case taken
at the amount thereof accounted for as indebtedness in accordance with such
principles.
"Cash Equivalents" shall mean, as to any Person, (i) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than one
year from the date of acquisition, (ii) Dollar denominated time deposits and
certificates of deposit of any commercial bank having, or which is the
principal banking subsidiary of a bank holding company having, a long-term
unsecured debt rating of at least "A" or the equivalent thereof from S&P or
"A2" or the equivalent thereof from Xxxxx'x with maturities of not more than
one year from the date of acquisition by such Person, (iii) repurchase
obligations for underlying securities of the types described in clause (i)
above entered into with any bank meeting the qualifications specified in clause
(ii) above, (iv) commercial paper issued by any Person incorporated in the
United States rated at least A-1 or the equivalent thereof by S&P or at least
P-1 or the equivalent thereof by Xxxxx'x and in each case maturing not more
than one year after the date of acquisition by such Person, (v) marketable
direct obligations issued by the District of Columbia or any State of the
United States or any political subdivision of any such State or any public
instrumentality thereof maturing within one year from the date of acquisition
and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Xxxxx'x, (vi) investments in money market funds
substantially all of whose assets are comprised of securities of the types
described in clauses (i) through (v) above and (vii) in the case of Investments
by foreign Subsidiaries, other short-term investments in accordance with normal
investment practices for cash management of a type analogous to the foregoing.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time, and regulations
promulgated thereunder.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and rulings issued thereunder. Section
references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" means all of the "Collateral" as defined in each of the
Collateral Documents.
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"Collateral Account" means an account in the name and under the control of
the Agent into which there shall be deposited from time to time amounts
required to be delivered to the Agent pursuant to Section 2.10 or 6.01 of this
Agreement.
"Collateral Agent" shall mean the Agent acting as the collateral agent or
secured party pursuant to the Collateral Documents.
"Collateral Documents" means the Pledge Agreement, the Security Agreement,
the Mortgages, any additional pledges, security agreements or mortgages
delivered pursuant to the Loan Documents and any instruments of assignment or
other instruments or agreements executed pursuant to the foregoing.
"Commitment" means any of the commitments of any Lender, i.e., whether the
Tranche A Term Loan Commitment, the Tranche B Term Loan Commitment or the
Revolving Loan Commitment.
"Commitment Fee" shall have the meaning set forth in Section 2.07(a).
"Consolidated Capital Expenditures" means, for any period, the amount of
Capital Expenditures made during such period by the Borrower and its
Consolidated Subsidiaries, determined on a consolidated basis.
"Consolidated Cash Interest Expense" shall mean Consolidated Interest
Expense excluding any non-cash interest expense for such period.
"Consolidated Debt" means, at any date, the consolidated Debt of the
Borrower and its Consolidated Subsidiaries as of such date.
"Consolidated EBITDA" means, for any period, Consolidated Net Income for
such period plus, to the extent deducted in determining Consolidated Net Income
for such period, the aggregate amount of (i) Consolidated Interest Expense,
(ii) income tax expense and (iii) depreciation, amortization and other similar
non-cash charges; provided that for purposes of calculating Consolidated EBITDA
of the Borrower and its Subsidiaries for any Test Period which includes one or
more of the Fiscal Quarters ending December 31, 1999, March 31, 2000 and June
30, 2000, Consolidated EBITDA shall be increased by $6,300,000.
"Consolidated Interest Expense" means, for any period, the interest
expense of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis, for such period.
"Consolidated Net Income" means, for any period, the net income of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis
for such period, adjusted to exclude the effect of any extraordinary or other
non-recurring gain (but not loss).
"Consolidated Net Working Investment" means at any date (i) consolidated
current assets of the Borrower and its Consolidated Subsidiaries (exclusive of
cash and Cash Equivalents) minus (ii) the consolidated current liabilities of
the Borrower and its Consolidated Subsidiaries (exclusive of Debt), all
determined as of such date.
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"Consolidated Subsidiary" means, at any date, any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower
in its consolidated financial statements if such statements were prepared in
accordance with GAAP as of such date.
"Control Group" means any member of the board of directors of the Borrower
as of the Initial Borrowing Date, Tekni-Plex Partners LLC, MST/TP Partners,
LLC, any Affiliate of or partner or member in any of the foregoing and any
trust for the benefit of any of the foregoing and, in the case of any of the
foregoing who is an individual Person, upon the death of such Person, heirs or
testamentary legatees of such Person (including any Person receiving common
stock of the Borrower upon a distribution by any of the foregoing limited
liability companies, whether a member or designated by a member for purposes of
estate or similar personal planning), or any group if the majority of the
shares of common stock of the Borrower owned by such group are beneficially
owned directly or indirectly by any or all of the foregoing and their Related
Persons and Affiliates.
"Credit Event" means the making of any Loan or the issuance of any Letter
of Credit.
"De Minimis Subsidiary" shall mean each Subsidiary of the Borrower
existing on the Initial Borrowing Date to the extent that (i) it holds no
capital stock of any other Subsidiary that is not a De Minimis Subsidiary, (ii)
the fair market value of all assets held by such Subsidiary (including, without
limitation, its Subsidiaries) is less than $500,000 and (iii) the net income
for such Subsidiary and all of its Subsidiaries for the last 12 months then
ended is less than $500,000.
"Debt" of any Person means, at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee which are
capitalized in accordance with GAAP, (v) all non-contingent obligations (and,
for purposes of Sections 5.09 and the definitions of Material Debt and Material
Financial Obligations, all contingent obligations) of such Person to reimburse
any bank or other Person in respect of amounts paid under a letter of credit or
similar instrument, (vi) all Debt secured by a Lien on any asset of such
Person, whether or not such Debt is otherwise an obligation of such Person, and
(vii) all Guarantees by such Person of Debt of another Person.
"Debt to be Refinanced" means, collectively, all Debt of the Borrower and
its Subsidiaries (other than (i) the Debt described on Schedule 2 and (ii) Debt
otherwise permitted pursuant to Section 5.10).
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
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"Defaulting Lender" means any Lender with respect to which a Lender
Default is in effect.
"Derivatives Obligations" of any Person means all obligations of such
Person in respect of any interest rate swap transaction, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity index
swap, equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with respect to
any of the foregoing transactions) or any combination of the foregoing
transactions.
"Dividends" shall have the meaning set forth in Section 5.14.
"Documents" means, collectively, (i) the Loan Documents, (ii) the
Refinancing Documents, (iii) the Recapitalization Documents, (iv) the New
Senior Subordinated Note Documents, (v) the Bridge Financing Documents (if
any), (vi) the Existing 9 1/4% Senior Subordinated Notes Tender Offer Documents
and the Existing 9 1/4% Senior Subordinated Notes Indenture and (vii) the
Existing 11 1/4% Senior Subordinated Notes Tender Offer Documents and the
Existing 11 1/4% Senior Subordinated Notes Indenture.
"Dollars" and the sign "$" each means fully transferable lawful money of
the United States.
"Domestic Joint Venture" means any Joint Venture existing under the laws
of the United States or any state thereof.
"Domestic Lending Office" means, as to each Lender, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Agent.
"Domestic Subsidiary" means each Subsidiary of the Borrower that is
organized under the laws of the United States or any state thereof.
"Effective Date" shall have the meaning set forth in Section 10.08.
"Eligible Transferee" shall mean and include a commercial bank, investment
company, financial institution, any fund that invests in bank loans or any
other "accredited investor" (as defined in Regulation D of the Securities Act).
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to the
environment or the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment, including (without limitation) ambient air,
surface water, ground water or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage,
-8-
disposal, transport or handling of pollutants, contaminants, Hazardous
Substances or wastes or the clean-up or other remediation thereof.
"Environmental Liabilities" means all liabilities in connection with or
relating to the business, assets presently or previously owned, leased or
operated, activities (including, without limitation, off-site disposal) or
operations of the Borrower and each Subsidiary, whether vested or unvested,
contingent or fixed, actual or potential, known or unknown, which arise under
or relate to matters covered by Environmental Laws.
"Equity Investors" means, collectively, the Existing Shareholders and the
New Shareholders.
"Equity Issuance" means the issuance of any Capital Stock by the Borrower
or any of its Subsidiaries (other than equity securities issued to the Borrower
or any of its Subsidiaries by any other Subsidiary of the Borrower).
"Equity Payment" means the payment by the Equity Investors of an aggregate
amount of at least $100,000,000 in cash in exchange for direct or indirect
common equity interests of the Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Code.
"Euro-Dollar Borrowing" shall mean a Borrowing of Euro-Dollar Loans.
"Euro-Dollar Lending Office" means, as to each Lender, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Lender as it may hereafter designate as its Euro-Dollar Lending Office by
notice to the Borrower and the Agent.
"Euro-Dollar Loan" means each Loan which bears interest at a Euro-Dollar
Rate as provided in Section 2.05(b).
"Euro-Dollar Rate" means a rate of interest determined pursuant to Section
2.05(b) on the basis of a London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" means, for any day, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
-9-
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of any Lender
to United States residents).
"Events of Default" shall have the meaning set forth in Section 6.01.
"Evergreen Letter of Credit" means a Letter of Credit that is
automatically extended unless the relevant LC Issuing Bank gives notice to the
beneficiary thereof stating that the expiration date of such Letter of Credit
will not be extended.
"Excess Cash Flow" means, for any period the excess (if any) of: (a) the
sum of (i) Consolidated Net Income for such period plus (ii) to the extent
deducted in determining Consolidated Net Income for such period, depreciation,
amortization and other similar noncash charges plus (iii) any increase (or
minus any decrease) during such period in deferred tax liabilities of the
Borrower and its Consolidated Subsidiaries, taken as a whole, for such fiscal
period, plus (iv) any decrease in Consolidated Net Working Investment between
the beginning and the end of such period; minus (b) the sum of (i) an amount
equal to Consolidated Capital Expenditures made during such period that are not
financed with Debt (other than Loans) for such period, (ii) any increase in
Consolidated Net Working Investment between the beginning and the end of such
period, (iii) mandatory prepayments and repayments of long-term Debt of the
Borrower and its Consolidated Subsidiaries (other than repayments of (x) Loans,
provided that repayments of Loans shall be deducted in determining Excess Cash
Flow if such payments were (x) required as a result of a Scheduled Repayment
under Section 2.10(b) or (c) or (y) made as a voluntary prepayment (but in the
case of a voluntary repayment of Revolving Loans, only to the extent
accompanied by a voluntary and permanent reduction to the Total Revolving Loan
Commitment) and (y) Debt (other than the Loans) made with proceeds of other
Debt or with proceeds of Asset Sales or equity issuances) during such period,
(iv) to the extent included in Consolidated Net Income for such period, the
amount of any gain or disposition of an asset if such disposition constitutes
an Asset Sale and (v) cash Dividends paid during such period on Qualified
Preferred Stock (to the extent permitted by Section 5.14).
"Excess Cash Flow Period" means, with respect to the repayment required on
each Excess Cash Payment Date, (i) the period from and including the first day
of the first fiscal quarter commencing after the Initial Borrowing Date to and
including the last Business Day of the Borrower's Fiscal Year ending in June,
2001 and (ii) thereafter, the Fiscal Year ended immediately prior to such
Excess Cash Payment Date.
"Excess Cash Payment Date" means each date occurring 95 days after the
last day of each Fiscal Year ended after the Initial Borrowing Date (commencing
with the Fiscal Year ending on the last Friday closest to June 30, 2001).
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
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"Existing Credit Agreement" means the Credit Agreement, dated as of March
3, 1998, among the Borrower, the guarantors party thereto, the banks party
thereto, the LC issuing banks party thereto and MGT, as agent, as in effect on
the Initial Borrowing Date.
"Existing 11 1/4% Senior Subordinated Notes" means the Borrower's 11 1/4%
Senior Subordinated Notes due 2007, issued pursuant to the Existing 11 1/4%
Senior Subordinated Note Indenture..
"Existing 11 1/4% Senior Subordinated Notes Indenture" shall mean that
certain Indenture, dated as of April 1, 1997, between the Borrower, Dolco
Packaging Corp. and Marine Midland Bank, as trustee, as the same may be amended
by the Existing 11 1/4% Senior Subordinated Notes Indenture Supplement, in each
case as in effect on the Initial Borrowing Date and as the same may be amended,
modified or supplemented from time to time pursuant to the terms thereof and
hereof.
"Existing 11 1/4% Senior Subordinated Notes Indenture Supplement" means
the Supplemental Indenture to the Existing 11 1/4 % Senior Subordinated Notes
Indenture in form and substance satisfactory to the Agent and entered into by
the Borrower and the Trustee for the Existing 11 1/4 Senior Subordinated Notes
in connection with the Existing 11 1/4 Senior Subordinated Notes Tender
Offer/Consent Solicitation.
"Existing 11 1/4% Senior Subordinated Notes Tender Offer/Consent
Solicitation" shall have the meaning set forth in Section 3.01(d)(ix)).
"Existing 11 1/4% Senior Subordinated Notes Tender Offer Documents" means
the Existing 11 1/4 % Senior Subordinated Notes Indenture Supplement, and the
Existing 11 1/4% Senior Subordinated Notes Tender Offer/Consent Solicitation,
as in effect on the Initial Borrowing Date and as the same may be amended,
modified or supplemented from time to time pursuant to the terms thereof and
hereof.
"Existing 11 1/4% Senior Subordinated Notes Tender Offer Repurchases"
shall have the meaning set forth in Section 3.01(d)(ix).
"Existing 9 1/4% Senior Subordinated Notes" means the Borrower's 9 1/4%
Senior Subordinated Notes due 2008, issued pursuant to the existing 9 1/4%
Senior Subordinated Notes Indenture.
"Existing 9 1/4% Senior Subordinated Notes Indenture" shall mean that
certain Indenture, dated as of March 1, 1998, between the Borrower, as issuer
and Marine Midland Bank, as trustee, as the same may be amended by the Existing
9 1/4% Senior Subordinated Notes Indenture Supplement, in each case as in
effect on the Initial Borrowing Date and as the same may be amended, modified
or supplemented from time to time pursuant to the terms thereof and hereof.
"Existing 9 1/4% Senior Subordinated Notes Indenture Supplement" means the
Supplemental Indenture to the Existing 9 1/4% Senior Subordinated Notes
Indenture in form and substance satisfactory to the Agent and entered into by
the Borrower and the trustee for the
-11-
Existing 9 1/4% Senior Subordinated Notes in connection with the Existing 9
1/4% Senior Subordinated Notes Tender Offer/Consent Solicitation.
"Existing 9 1/4% Senior Subordinated Notes Tender Offer/Consent
Solicitation" shall have the meaning set forth in Section 3.01(d)(viii).
"Existing 9 1/4% Senior Subordinated Notes Tender Offer Documents" means
the Existing 9 1/4% Senior Subordinated Notes Indenture Supplement and the
Existing 9 1/4% Senior Subordinated Notes Tender Offer/Consent Solicitation, as
in effect on the Initial Borrowing Date and as the same may be amended,
modified or supplemented from time to time pursuant to the terms thereof and
hereof.
"Existing 9 1/4% Senior Subordinated Notes Tender Offer Repurchases" shall
have the meaning set forth in Section 3.01(d)(viii).
"Existing Senior Subordinated Notes" shall mean (i) the Existing 9 1/4%
Senior Subordinated Notes and (ii) the Existing 11 1/4% Senior Subordinated
Notes.
"Existing Shareholders" means certain existing direct and indirect
shareholders of the Borrower (including the Management Investors) disclosed to
the Agent.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (i) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day
and (ii) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate quoted to the
Agent on such day from three Federal funds brokers of recognized standing
selected by the Agent.
"Fiscal Quarter" means a fiscal quarter of the Borrower.
"Fiscal Year" means a fiscal year of the Borrower.
"Fixed Charge Coverage Ratio" means, for any period, the ratio of (i) the
remainder of (A) Consolidated EBITDA for such period minus (B) Consolidated
Capital Expenditures for such period to (ii) Consolidated Cash Interest Expense
for such period.
"Foreign Joint Venture" means any Joint Venture of the Borrower and/or its
Subsidiaries other than a Domestic Joint Venture.
"Foreign Subsidiary" means any Subsidiary of the Borrower and/or its
Subsidiaries other than a Domestic Subsidiary.
"Fronting Fee" shall have the meaning provided in Section 2.07(b).
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"GAAP" means generally accepted accounting principles as in effect from
time to time, applied on a basis consistent (except for changes concurred in by
the Borrower's independent public accountants) with the most recent audited
consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Lenders.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial statement conditions or
otherwise), (ii) to reimburse a bank for amounts drawn under a letter of credit
for the purpose of paying such Debt or (iii) entered into for the purpose of
assuring in any other manner the holder of such Debt or other obligation of the
payment thereof or to protect such holder against loss in respect thereof (in
whole or in part); provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The
term Guarantee used as a verb has a corresponding meaning. The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of such Debt or other obligation in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
"Guaranteed Derivatives Agreement" shall have the meaning provided in the
definition of "Guaranteed Obligations."
"Guaranteed Obligations" shall mean all obligations of the Borrower (i) to
each Lender Party for the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of the principal and interest on
each Note issued by the Borrower to such Lender Party, and Loans made, under
this Agreement and all LC Reimbursement Obligations with respect to Letters of
Credit, together with all other amounts (including, without limitation,
indemnities, fees and interest thereon) of the Borrower owing to such Lender
Party now existing or hereafter incurred under, arising out of or in connection
with the Credit Agreement or any other Loan Document and (ii) to each Lender
Party and each Affiliate of a Lender Party which enters into an agreement with
respect to Derivatives Obligations with the Borrower which agreement is
designated by the Borrower and such Lender Party as a "Guaranteed Derivatives
Agreement," and the full and prompt payment when due (whether by acceleration
or otherwise) of all obligations of the Borrower owing under any such
Guaranteed Derivatives Agreement whether now in existence or hereafter arising.
"Guarantor" means, subject to Section 9.08, each Subsidiary of the
Borrower that has executed this Agreement as a guarantor.
"Hazardous Substance" means any toxic, radioactive, caustic or otherwise
hazardous substance, including petroleum, its derivatives, by-products and
other hydrocarbons, or any substance having any constituent elements displaying
any of the foregoing characteristics.
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"Indemnitee" has the meaning set forth in Section 10.03(b).
"Information Memorandum" means the confidential descriptive memorandum
dated June, 2000 furnished to the Lenders in connection with the transactions
contemplated hereby.
"Initial Borrowing Date" shall mean the date occurring on or
after the Effective Date on which the initial Borrowing of Loans occurs
hereunder.
"Initial Directors" shall have the meaning set forth in Section 6.01(m).
"Initial Public Offering" shall mean an initial registered public offering
of the common stock of the Borrower.
"Interest Period" means, with respect to each Euro-Dollar Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in an applicable Notice of Interest Rate
Election and ending one, two, three or six months thereafter, as the Borrower
may elect in such notice; provided that:
(a) any Interest Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding
Business Day;
(b) any Interest Period which begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (c) below, end on the last Business
Day of a calendar month; and
(c) any Interest Period for a Borrowing under a Tranche which
would otherwise end after the respective Maturity Date for such
Tranche shall end on the respective Maturity Date for such Tranche.
"Investment" means any investment in any Person, whether by
means of share purchase, capital contribution, loan, Guarantee, time deposit or
otherwise (but not including any demand deposit).
"Investor Purchase Agreement" means (i) the Investor Purchase Agreement,
dated as of April 12, 2000, among Tekni-Plex Partners LLC, X.X. Xxxxxx Capital
Corporation, Weston Presidio Capital III L.P., WPC Entrepreneur Fund L.P.,
Tekni-Plex Management LLC, Dr. F. Xxxxxxx Xxxxx, Xxxxxx X. Xxxx and Xxxxxxx
X.X. Xxxxx and for purposes of Section 4(d) of such agreement, the Borrower and
(ii) the Investor Purchase Agreement, dated as of June 21, 2000 among
Tekni-Plex Partners LLC, BancBoston Capital, Inc., Private Equity Portfolio
Fund II, LLC, Mellon Ventures II, L.P., GS Private Equity Partners II, L.P., GS
Private Equity Partners II Offshore, L.P., GS Private Equity Partners II -
Direct Investment Fund, L.P., The Travelers Insurance Company, The Travelers
Indemnity Company, The Travelers Life and Annuity Company, Primerica Life
Insurance Company, National City Venture Corporation, Great Lakes
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Capital Investments II, LLC, Xxxxxxxx X. Xxxxxxx, Massachusetts Mutual Life
Insurance Company, Pantheon International Participations PLC, Teachers
Insurance and Annuity Association of America Western Presidio Capital IV, L.P.,
WPC Entrepreneur II, L.P. and for purposes of Section 4(d) of such agreement,
the Borrower.
"Investors' Agreement" means the Investors' Agreement, dated as of June
21, 2000, among the Borrower, Tekni-Plex Partners LLC, MST/TP Partners LLC, Dr.
F. Xxxxxxx Xxxxx, Xxxxxxx X. Xxxxxx and Tekni-Plex Management LLC.
"Joint Venture" means any Person, other than an individual or
a Wholly-Owned Subsidiary of the Borrower, in which the Borrower or a
Subsidiary of the Borrower holds or acquires an ownership interest (whether by
way of capital stock, partnership or limited liability company interest, or
other evidence of ownership).
"LC Fee" shall have the meaning provided in Section 2.07(b).
"LC Indemnitees" has the meaning set forth in Section 2.16(k).
"LC Issuing Bank" means MGT (and any other RL Lender which, at the
Borrower's request, shall have agreed to issue Letters of Credit hereunder and
confirmed such agreement in a notice to the Agent), each in its capacity as an
LC Issuing Bank under the letter of credit facility described in Section 2.16.
"LC Office" means, with respect to any LC Issuing Bank, the office at
which it books any Letter of Credit issued by it.
"LC Payment Date" has the meaning set forth in Section 2.16(g).
"LC Reimbursement Due Date" has the meaning set forth in
Section 2.16(h).
"LC Reimbursement Obligations" means, at any time, all obligations of the
Borrower to reimburse the LC Issuing Banks for amounts paid by the LC Issuing
Banks in respect of drawings under Letters of Credit, including any portion of
any such obligations to which a RL Lender has become subrogated pursuant to
Section 2.16(i).
"Lender" means each Person listed on Schedule 1 hereto, as well as any
Person which becomes a Lender pursuant to Section 8.06 or 10.06(b).
"Lender Default" shall mean (i) the refusal (which has not been retracted)
or the failure of a Lender to make available its portion of any Borrowing
(including any Mandatory Borrowing) or to fund its portion of any unreimbursed
payment under Section 2.16(i) or (ii) a Lender having notified in writing the
Borrower and/or the Agent that such Lender does not intend to comply with its
obligations under Section 2.01 or 2.16.
"Lender Parties" means the Lenders, the LC Issuing Banks and the Agent.
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"Letter of Credit" means a letter of credit issued hereunder by an LC
Issuing Bank.
"Leverage Ratio" means, at any time, the ratio of (i) (a) Consolidated
Debt at such time less (b) cash and Cash Equivalents held by the Borrower and
its Consolidated Subsidiaries at such time to (ii) Consolidated EBITDA for the
then most recently ended Test Period. For purposes of determining Consolidated
EBITDA at any time during the first four Fiscal Quarters ending after a Fiscal
Quarter in which a Permitted Acquisition has been made, Consolidated EBITDA
shall be increased for any Fiscal Quarter which began prior to such Permitted
Acquisition by the amount of EBITDA which the Borrower (with the consent of the
Agent, such consent not be unreasonably withheld or delayed) shall determine
would have been attributable to the acquired assets for the Fiscal Quarter most
recently ended on or prior to the date of such Permitted Acquisition; provided
that for the Fiscal Quarter in which the Permitted Acquisition has occurred,
such increase shall be prorated to reflect only the days during such Fiscal
Quarter prior to the consummation of the Permitted Acquisition.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, security title or encumbrance of any kind, or any
other type of preferential arrangement that has substantially the same
practical effect as a security interest, in respect of such asset. For purposes
hereof, the Borrower or any Subsidiary shall be deemed to own subject to a Lien
any asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means each Tranche A Term Loan, each Tranche B Term Loan, each
Revolving Loan and each Swingline Loan.
"Loan Documents" means this Agreement, the Notes and the Collateral
Documents.
"London Interbank Offered Rate" applicable to any Interest Period means
the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of
the respective rates per annum at which deposits in dollars are offered to each
of the Reference Lenders in the London interbank market at approximately 11:00
A.M. (London time) two Business Days before the first day of such Interest
Period in an amount approximately equal to the principal amount of the
Euro-Dollar Loan of such Reference Lender to which such Interest Period is to
apply and for a period of time comparable to such Interest Period.
"MST/TP Partners LLC Agreement" means the Limited Liability Company
Agreement of MST/TP Partners LLC, dated as of June 21, 2000 among MST Partners,
L.P., MST Offshore Partners C.V., MST/TP Holding, Inc., Tekni-Plex Management
LLC, Dr. F. Xxxxxxx Xxxxx, Xxxxxxx X.X. Xxxxx, Xxxxxx X. Xxxx and J. Xxxxxx
XxXxxxx, Xxxxxxxxx Xxxxx and Xxxxxx Xxxxx.
"Major Casualty Proceeds" means (i) the aggregate insurance proceeds
received by the Borrower or any of its Subsidiaries in connection with one or
more related events under
-16-
any insurance policy maintained by the Borrower or any of its Subsidiaries
covering losses with respect to tangible real or personal property or
improvements or losses from business interruption or (ii) any award or other
compensation with respect to any condemnation of property (or any transfer or
disposition of property in lieu of condemnation) received by the Borrower or
any of its Subsidiaries, provided that no insurance proceeds, award or other
compensation set forth in preceding clauses (i) and (ii) shall be Major
Casualty Proceeds unless the aggregate amount of such insurance proceeds, award
or other compensation exceeds $2,500,000.
"Majority Lenders" of any Tranche shall mean those Non-Defaulting Lenders
which would constitute the Required Lenders under, and as defined in, this
Agreement if all outstanding Obligations of the other Tranches under this
Agreement were repaid in full and all Commitments with respect thereto were
terminated.
"Management Investors" means Dr. F. Xxxxxxx Xxxxx, Xxxxxxx X.X. Xxxxx and
other members of management of the Borrower owning direct or indirect equity
interests (including options to purchase equity interests) in the Borrower and
its Subsidiaries immediately prior to giving effect to the Recapitalization.
"Mandatory Borrowing" shall have the meaning set forth in Section 2.01(e).
"Margin Regulations" shall mean Regulations T, U and X.
"Margin Stock" shall have the meaning set forth in Regulation U.
"Material Adverse Effect" means (i) any material adverse effect upon the
business, property, assets, liabilities, financial condition, or prospects of
the Borrower or of the Borrower and its Subsidiaries, taken as a whole; (ii) a
material adverse effect on the ability of the Borrower or any other Person to
consummate the transactions contemplated hereby to occur on the Initial
Borrowing Date; (iii) a material adverse effect on the ability of the Borrower
or any other Obligor to perform under this Agreement and the Notes and the
other Loan Documents; or (iv) a material adverse effect on the rights and
remedies of the Agent and the Lenders under this Agreement, the Notes or the
other Loan Documents.
"Material Debt" means Debt (except Debt outstanding hereunder) of the
Borrower and/or one or more of its Subsidiaries, arising in one or more related
or unrelated transactions, in an aggregate principal or face amount exceeding
$15,000,000.
"Material Financial Obligations" means a principal or face
amount of Debt (other than the Loans and LC Reimbursement Obligations) and/or
payment or collateralization obligations in respect of Derivatives Obligations
of the Borrower and/or one or more of its Subsidiaries, arising in one or more
related or unrelated transactions, exceeding in the aggregate $15,000,000.
"Maturity Date" shall mean, with respect to any Tranche of Loans, the
Tranche A Maturity Date, the Tranche B Maturity Date or the Revolving Loan
Maturity Date, as the case may be.
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"Maximum Swingline Amount" means $10,000,000.
"MGT" means Xxxxxx Guaranty Trust Company of New York in its individual
capacity.
"Minimum Borrowing Amount" means (i) for Base Rate Loans (other than
Swingline Loans), $1,000,000, (ii) for Euro-Dollar Loans, $5,000,000 in the
case of the initial Borrowing, and $2,500,000 thereafter and (iii) for
Swingline Loans, $250,000.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means each mortgage, deed of trust, deed to secure debt,
amendment to mortgage or amendment to deed of trust, substantially in the
respective form included in Exhibit F hereto between each Obligor party
thereto, as mortgagor or trustor, and the Agent, as mortgagee or beneficiary,
entered into as of the Initial Borrowing Date and relating to the Borrower's
and its Subsidiaries' facilities in the locations listed in Schedule 5 hereto,
and any mortgage, deed of trust, deed to secure debt, amendment to mortgage or
amendment to deed of trust entered into pursuant hereto after the Initial
Borrowing Date, in each case as amended from time to time.
"Multiemployer Plan" means, at any time, an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"Net Cash Proceeds" means, with respect to any Repayment Event, an amount
equal to the gross cash proceeds received by the Borrower or any of its
Domestic Subsidiaries from or in respect of such Repayment Event (including any
cash proceeds, received as income or other proceeds, of any noncash proceeds of
any Asset Sale, as and when received), less (x) any fees, costs and expenses
reasonably incurred by such Person in respect of such Repayment Event and (y)
in the case of an Asset Sale, (I) the amount of any Debt secured by a Lien on
any asset disposed of in such Asset Sale and discharged from the proceeds
thereof, (II) any incremental taxes actually paid or to be payable by such
Person (as estimated by a senior financial or accounting officer of the
Borrower, giving effect to the overall tax position of the Borrower) in respect
of such Asset Sale and (III) amounts provided as a reserve, in accordance with
GAAP, against any liabilities that are directly attributable to such Asset
Sale, provided that, unless theretofore applied against actual liabilities
giving rise to such reserve, such amounts shall be deemed Net Cash Proceeds
upon the earlier to occur of (i) the date which is 365 days after receipt of
such proceeds pursuant to such Asset Sale and (ii) the occurrence of an Event
of Default.
"New Senior Subordinated Note Documents" means the New Senior Subordinated
Notes Indenture and the New Senior Subordinated Notes, as in effect on the
Initial Borrowing Date (or, if such New Senior Subordinated Notes are not
issued on the Initial Borrowing Date, in the form last delivered to the Agent
and prior to the Initial Borrowing Date)
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and as the same may be amended, modified or supplemented from time to time
pursuant to the terms thereof and hereof.
"New Senior Subordinated Notes" means the Borrower's 12 3/4% Senior
Subordinated Notes due 2010, issued in accordance with the terms of the New
Senior Subordinated Notes Indenture, including exchange notes issued pursuant
to the terms of the New Senior Subordinated Notes Indenture.
"New Senior Subordinated Notes Indenture" means that certain indenture,
dated as of June 21, 2000, between the Borrower, as issuer, and HSBC Bank USA,
as trustee, as in effect on the Initial Borrowing Date (or if the New Senior
Subordinated Notes have not been issued on the Initial Borrowing Date, in the
form delivered to the Agent on the Initial Borrowing Date) and as the same may
be amended, modified or supplemented from time to time pursuant to the terms
thereof and hereof.
"New Shareholders" means direct and indirect shareholders of the Borrower
and disclosed to the Agent who were not direct or indirect shareholders of the
Borrower prior to the Recapitalization.
"Non-Defaulting Lender" means and includes each Lender other than a
Defaulting Lender.
"Note" means each Tranche A Term Note, each Tranche B Term Note, each
Revolving Note, and the Swingline Note.
"Notice of Borrowing" shall have the meaning set forth in Section 2.03.
"Notice of Interest Rate Election" shall have the meaning set forth in
Section 2.06.
"Obligations" shall mean all amounts owing to the Agent or any Lender by
any Obligor pursuant to the terms of this Agreement or any other Loan Document.
"Obligors" means the Borrower and the Guarantors, and "Obligor" means any
of them.
"Payment Office" shall mean the office of the Agent located at 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other office as the Agent may
designate to the Borrower and the Lenders from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Acquisition" shall have the meaning set forth in Section
5.15(ix).
"Person" means an individual, a corporation, a limited liability company,
a partnership, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
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"Plan" means, at any time, an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code and
either (i) is maintained by, or contributed to by, any member of the ERISA
Group for employees of any member of the ERISA Group or (ii) has at any time
within the preceding five years been maintained by, or contributed to, by any
Person which was at such time a member of the ERISA Group for employees of any
Person which was at such time a member of the ERISA Group.
"Pledge Agreement" means the pledge agreement substantially in the form of
Exhibit E hereto between each Obligor party thereto and the Agent entered into
as of the Closing Date, as amended from time to time.
"Prime Rate" means the rate of interest publicly announced by MGT in New
York City from time to time as its Prime Rate.
"Qualified Additional Equity" means Qualified Preferred Stock and
additional common equity of the Borrower to the extent such issuance does not
result in a default pursuant to Section 6.01(m).
"Qualified Preferred Stock" of any Person means any preferred stock of
such Person other than preferred stock which, (x) requires any cash payment of
Dividends (other than pursuant to provisions that expressly provide that no
such payment can be made in violation of this Agreement) or (y) by its terms
(or by the terms of any security into which it is convertible or for which it
is exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the holder thereof, in whole or in part, on or
prior to the final maturity of the Obligations (other than pursuant to change
of control provisions similar to those set forth herein, provided that such
provisions expressly provide that no payment can be made on such stock in
violation of this Agreement).
"Quarterly Payment Date" means the last Business Day of each March, June,
September and December occurring after the Initial Borrowing Date.
"Recapitalization" means the transactions contemplated by the
Recapitalization Documents.
"Recapitalization Agreement" means the Recapitalization Agreement, dated
as of April 12, 2000, among Tekni-Plex, Inc., Tekni-Plex Partners LLC, MST/TP
Partners L.P., MST/TP Holding, Inc., MST Partners, L.P., MST Offshore Partners
C.V., MST Management, L.P., MST Offshore Management N.V., Weston Presidio
Capital III L.P., WPC Entrepreneur Fund L.P., SBIC Partners L.P., X.X. Xxxxxx
Capital Corporation, Tekni-Plex Management LLC, Dr. F. Xxxxxxx Xxxxx, Xxxxxxx
X.X. Xxxxx, Xxxxxx X. Xxxx, and Xxxxxxx X. Xxxxxxxxx and for purposes of
Section 2.01(k) of such agreement, J. Xxxxxx XxXxxxx, Xxxxx X. Xxxxxxx, Xxxxxxx
X. Xxxxxx for purposes of Section 2.01(n) of such agreement, J. Xxxxxx XxXxxxx
for purposes of Section 3.01 of such agreement, Xxxxxxx X. Xxxxxxx, Xxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxxx,
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Xxxxxxx X. Xxxxxxxx and for purposes of Section 3.03(a)(iv) of such agreement,
J. Xxxxxx XxXxxxx, Xxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxx.
"Recapitalization Documents" means (i) the Recapitalization Agreement,
(ii) the Tekni-Plex Partners LLC Agreement, (iii) the Investor Purchase
Agreement, (iv) the MST/TP Partners LLC Agreement, (v) the Investors' Agreement
and (vi) any other document executed and delivered in connection with the
Recapitalization.
"Reduction Discount" shall mean initially zero, provided that during any
Applicable Period the Reduction Discount shall be the respective percentage per
annum with respect to Tranche A Term Loans, Revolving Loans, Tranche B Term
Loans and Commitment Fees, respectively, as set forth below, but only if, as of
the Test Date with respect to such Applicable Period, the Leverage Ratio for
such percentage below is met:
Tranche A Term Loans and Tranche B
Leverage Ratio Revolving Loans Term Loans Commitment Fees
-------------- ----------------------- ---------- ---------------
Less than or equal to 4.75:1.00 but 0.25% 0.00% 0.00%
greater than 4.50:1.00
Less than or equal to 4.50:1.00 but 0.50% 0.25% 0.00%
greater than 4.00:1.00
Less than or equal to 4.00:1.00 but 0.75% 0.25% 0.125%
greater than 3.50:1.00
Less than or equal to 3.50:1.00 but 1.00% 0.25% 0.125%
greater than 3.00:1.00
Less than or equal to 3.00:1.00 1.25% 0.25% 0.125%
"Reference Lenders" means the principal London offices of The Bank of Nova
Scotia, LaSalle Bank National Association and MGT, and "Reference Lender" means
any one of such Reference Lenders; provided that upon the resignation of any
Reference Lender, the Agent and the Borrower shall designate a mutually
satisfactory substitute Reference Lender.
"Reference Period" shall have the meaning set forth in Section 5.15(ix) of
this Agreement.
"Refinancing" means and includes the refinancing and repayment in full of
all amounts outstanding under, and the termination of all commitments and
letters of credit in respect of, the Debt to be Refinanced.
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"Refinancing Documents" means all documents, instruments and agreements
entered into in connection with the Refinancing.
"Register" shall have the meaning set forth in Section 10.11.
"Regulated Activity" means any generation, treatment, storage, recycling,
transportation or disposal of any Hazardous Substance.
"Regulation T" shall mean Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Related Persons" of any Person means any other Person directly or
indirectly owning (a) 5% or more of the outstanding common stock of such Person
(or, in the case of a Person that is not a corporation, 5% or more of the
equity in such Person) or (b) 5% or more of the combined voting power of the
voting stock of such Person.
"Release" means any discharge, emission or release, including a Release as
defined in CERCLA at 42 U.S.C. Section 9601(22). The term "Released" has a
corresponding meaning.
"Repayment Event" means (i) any Asset Sale, (ii) any Additional Debt
Incurrence or (iii) any Equity Issuance. The description of any transaction as
falling within the above definition does not affect any limitation on such
transaction imposed by Article 5 of this Agreement.
"Replaced Lender" shall have the meaning set forth in Section 8.06.
"Replacement Lender" shall have the meaning set forth in Section 8.06.
"Required Lenders" means Non-Defaulting Lenders the sum of whose
outstanding Term Loans and Revolving Loan Commitments (or, if after the Total
Revolving Loan Commitment has been terminated, outstanding Revolving Loans and
RL Percentages of outstanding Swingline Loans and the Aggregate LC Exposure)
represents an amount greater than 50% of the sum of (i) the total outstanding
Term Loans of Non-Defaulting Lenders and (ii) the Total Revolving Loan
Commitment less the aggregate Revolving Loan Commitments of Defaulting Lenders
(or, if after the Total Revolving Loan Commitment has been terminated, the then
total outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate
RL Percentages of all Non-Defaulting Lenders of the then total outstanding
Swingline Loans and the Aggregate LC Exposure at such time).
"Restricted Acquisition" means any acquisition, whether in a single
transaction or series of related transactions, by the Borrower or any one or
more Subsidiaries, or any combination
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thereof, of (i) all or a substantial part of the assets, all or any substantial
part of a going business or division, of any Person, whether through purchase
of assets or securities, by merger or otherwise, (ii) control of securities of
an existing corporation or other Person having ordinary voting power (apart
from rights accruing under special circumstances) to elect a majority of the
board of directors of such corporation or other Person or (iii) control of a
greater than 50% ownership interest in any existing partnership, joint venture
or other Person.
"Restricted Payment" means (i) any dividend or other distribution on any
of the Borrower's or any Subsidiary's Capital Stock (except dividends or
distributions payable solely in shares of its common stock or Qualified
Preferred Stock or in options, warrants or other rights to acquire shares of
its common stock or Qualified Preferred Stock or as permitted pursuant to the
provisos contained in clause (ii) of this definition) or (ii) any payment on
account of the purchase, redemption, retirement or acquisition of any of the
Borrower's or any Subsidiary's Capital Stock (but not including payments of
principal, premium (if any) or interest made pursuant to the terms of
convertible debt securities prior to conversion); provided that payments in an
aggregate amount not to exceed $15,000,000 in respect of (i) the repurchase,
redemption or other acquisition or retirement of the Capital Stock of the
Borrower or any Subsidiary from present or former employees or directors of the
Borrower and its Subsidiaries, Tekni-Plex Partners LLC or MST/TP Partners LLC
and (ii) dividends paid to Tekni-Plex Partners LLC or MST/TP Partners LLC all
the proceeds of which are applied to repurchase, redeem or otherwise retire
membership interests of Tekni-Plex Partners LLC and/or MST/TP Partners LLC held
by members of Tekni-Plex Partners LLC or MST/TP Partners LLC, and their estates
shall not be Restricted Payments provided further, that no more than
$5,000,000, in the aggregate, may be used in respect of such repurchases and
dividends in any fiscal year of the Borrower.
"Retained Asset Sale Proceeds" shall have the meaning provided in Section
2.10(d).
"Revolving Credit Period" means the period from and including the Initial
Borrowing Date to but not including the Revolving Loan Maturity Date.
"Revolving Loan" shall have the meaning provided in Section 2.01(c).
"Revolving Loan Commitment" means, for each Lender, the amount set forth
opposite such Lender's name in Schedule 1 directly below the column entitled
"Revolving Loan Commitment," as the same may be (x) reduced from time to time
pursuant to Sections 2.08, 2.09 and/or 6.01 and (y) adjusted from time to time
as a result of assignments to or from such Lender pursuant to Section 8.06 or
Section 10.06(b).
"Revolving Loan Maturity Date" means the sixth anniversary of the Initial
Borrowing Date.
"Revolving Note" shall have the meaning set forth in Section 2.15(a).
"RL Lender" means, at any time, each Lender with a Revolving Loan
Commitment or outstanding Revolving Loans at such time.
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"RL Percentage" means, at any time with respect to any RL Lender, the
percentage obtained by dividing such RL Lender's Revolving Loan Commitment at
such time by the Total Revolving Loan Commitment at such time, provided that if
the RL Percentage of any RL Lender is to be determined after the Total
Revolving Loan Commitment has been terminated, then the RL Percentages of each
RL Lender shall be determined by dividing such RL Lender's Revolving Loan
Commitment as in effect immediately prior to such termination by the Total
Revolving Loan Commitment in effect immediately prior to such termination.
"S&P" means Standard & Poor's Rating Services.
"Scheduled Repayment" means each Tranche A Scheduled Repayment and each
Tranche B Scheduled Repayment.
"SEC" means the Securities and Exchange Commission or any successor
thereto.
"Secured Creditors" shall have the meaning assigned that term in the
respective Collateral Documents.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Security Agreement" means the security agreement substantially in the
form of Exhibit D hereto between each Obligor party thereto and the Agent
entered into as of the Initial Borrowing Date, as amended from time to time.
"Start Date" shall mean the first day of any Applicable Period.
"Stated Amount" of each Letter of Credit means at any time the maximum
amount available to be drawn thereunder (regardless of whether any conditions
for drawing could then be met).
"Subsidiary" means, as to any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) are at the time directly or indirectly owned
by such Person. Unless otherwise specified, "Subsidiary" means a Subsidiary of
the Borrower.
"Supermajority Lenders" of any Tranche means those Non-Defaulting Lenders
which would constitute the Required Lenders under, and as defined in, this
Agreement if (x) all outstanding Obligations of the other Tranches under this
Agreement were repaid in full and all Commitments with respect thereto were
terminated and (y) the percentage "50%" contained therein were changed to
"66-2/3%."
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"Swingline Expiry Date" means the date which is five (5) Business Days
prior to the Revolving Loan Maturity Date.
"Swingline Lender" means MGT in its individual capacity.
"Swingline Loan" shall have the meaning provided in Section 2.01(d).
"Swingline Note" shall have the meaning set forth in Section 2.15(a).
"Taxes" shall have the meaning set forth in Section 8.04(a).
"Tekni-Plex Partners LLC Agreement" means the Amended and Restated Limited
Liability Company Agreement of Tekni-Plex Partners LLC, dated as of June 21,
2000 among Tekni-Plex Management LLC, WPC Tekni-Plex Rollover LLC, Weston
Presidio Capital III L.P., WPC Entrepreneur Fund L.P., Western Presidio Capital
I.V. L.P., WPC Entrepreneur II, L.P., Xxxxxxx Xxxxxxx & Xxxxx X.X., X.X. Xxxxxx
Capital Corporation, BancBoston Capital, Inc., Private Equity Portfolio Fund
II, LLC, Mellon Ventures II, L.P., GS Private Equity Partners II, L.P., GS
Private Equity Partners II Offshore, L.P., GS Private Equity Partners II -
Direct Investment Fund, L.P., The Travelers Insurance Company, The Travelers
Indemnity Company, The Travelers Life and Annuity Company, Primerica Life
Insurance Company, National City Venture Corporation, Great Lakes Capital
Investments II, LLC, Xxxxxxxx X. Xxxxxxx, Massachusetts Mutual Life Insurance
Company, Pantheon International Participations PLC, and Teachers Insurance
Annuity Association of America, Dr. F. Xxxxxxx Xxxxx, Xxxxxxx X.X. Xxxxx and
Xxxxxx X. Xxxx, .
"Tender Offer/Consent Solicitations" means (i) the Existing 9 1/4% Senior
Subordinated Notes Tender Offer/Consent Solicitation and (ii) the Existing 11
1/4 Senior Subordinated Notes Tender Offer/Consent Solicitation.
"Term Loan" means each Tranche A Term Loan and each Tranche B Term Loan.
"Term Loan Commitments" shall mean and include Tranche A Term Loan
Commitments and Tranche B Term Loan Commitments.
"Test Date" shall mean, with respect to any Applicable Period, the last
day of the most recent Fiscal Quarter or Fiscal Year, as the case may be, ended
immediately prior to the Start Date with respect to such Applicable Period.
"Test Period" means the four consecutive Fiscal Quarters then last ended
(taken as one accounting period).
"Total Commitment" means the sum of the Total Term Loan Commitment and the
Total Revolving Loan Commitment.
"Total Revolving Loan Commitment" shall mean, at any time, the sum of the
Revolving Loan Commitments of each of the RL Lenders.
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"Total Term Loan Commitment" shall mean, at any time, the sum of the
Tranche A Term Loan Commitment and Tranche B Term Loan Commitment.
"Total Tranche A Term Loan Commitment" means the sum of the Tranche A Term
Loan Commitments of each of the Lenders.
"Total Tranche B Term Loan Commitment" means the sum of the Tranche B Term
Loan Commitments of each of the Lenders.
"Total Unutilized Revolving Loan Commitment" shall mean, at any time, an
amount equal to the remainder of (x) the Total Revolving Loan Commitment then
in effect minus (y) the sum of the aggregate principal amount of all Revolving
Loans and Swingline Loans then outstanding plus the Aggregate LC Exposure at
such time.
"Tranche" means the respective facility and commitments utilized in making
Loans hereunder, with these being four separate Tranches, i.e., Tranche A Term
Loans, Tranche B Term Loans, Revolving Loans and Swingline Loans.
"Tranche A Maturity Date" means the sixth anniversary of the Initial
Borrowing Date.
"Tranche A Scheduled Repayment" shall have the meaning set forth in
Section 2.10(b).
"Tranche A Scheduled Repayment Date" shall have the meaning set forth in
Section 2.10(b).
"Tranche A Term Loan" shall have the meaning provided in Section 2.01(a).
"Tranche A Term Loan Commitment" means, for each Lender, the amount set
forth opposite such Lender's name in Schedule 1 directly below the column
entitled "Tranche A Term Loan Commitment," as the same may be (x) reduced from
time to time pursuant to Sections 2.09 and/or 6.01 and (y) adjusted from time
to time as a result of assignments to or from such Lender pursuant to Section
8.06 or 10.06(b).
"Tranche A Term Note" shall have the meaning set forth in Section 2.15(a).
"Tranche B Maturity Date" means the eighth anniversary of the Initial
Borrowing Date.
"Tranche B Scheduled Repayment" shall have the meaning set forth in
Section 2.10(c).
"Tranche B Scheduled Repayment Date" shall have the meaning set forth in
Section 2.10(c).
"Tranche B Term Loan" shall have the meaning provided in Section 2.01(b).
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"Tranche B Term Loan Commitment" means, for each Lender, the amount set
forth opposite such Lender's name on Schedule 1 directly below the column
entitled "Tranche B Term Loan Commitment," as the same may be (x) reduced from
time to time pursuant to Sections 2.09 and/or 6.01 and (y) adjusted from time
to time as a result of assignments to or from such Lender pursuant to Section
8.06 or 10.06(b).
"Tranche B Term Note" shall have the meaning set forth in Section 2.15(a).
"Transaction" means, collectively, (i) the issuance by the Borrower of the
New Senior Subordinated Notes and/or the Bridge Financing, (ii) the
consummation of the Refinancing, (iii) the consummation of the Tender
Offer/Consent Solicitations, the making of the Existing 9 1/4% Senior
Subordinated Notes Tender Offer Repurchases and the Existing 11 1/4% Senior
Subordinated Notes Tender Offer Repurchases pursuant thereto, and the
amendments to the Existing 9 1/4% Senior Subordinated Notes Indenture and the
Existing 11 1/4% Senior Subordinated Notes Indenture as contemplated therein,
(iv) the Recapitalization and the incurrence of Loans on the Initial Borrowing
Date and (v) the payment of fees and expenses owing in connection with the
foregoing.
"Transaction Date" shall have the meaning set forth in Section 5.15(ix) of
this Agreement.
"Type" means the type of Loan determined with regard to the interest
option applicable thereto, i.e., whether a Base Rate Loan or a Eurodollar Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time in
the relevant jurisdiction.
"United States" means the United States of America.
"Unutilized Revolving Loan Commitment" means, with respect to any Lender,
at any time, such Lender's Revolving Loan Commitment at such time less the sum
of (x) the aggregate principal amount of all Revolving Loans made by such
Lender then outstanding and (y) such Lender's RL Percentage of the Aggregate LC
Exposure at such time.
"Waivable Mandatory Repayment" shall have the meaning set forth in Section
2.10(i).
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose Capital Stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time.
SECTION 1.02. Accounting Terms and Determinations. The definitions in
Section 1.01 shall apply equally to both the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include,"
"includes" and "including" shall be deemed to be followed by the
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phrase "without limitation." All references herein to Articles, Sections,
Exhibits and Schedules shall be deemed references to Articles and Sections of,
and Exhibits and Schedules to, this Agreement unless the context shall
otherwise require. Except as otherwise expressly provided herein, (a) any
reference in this Agreement to any Loan Document shall mean such document as
amended, restated, supplemented or otherwise modified from time to time and (b)
all terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time, provided that, if the Borrower
notifies the Agent that the Borrower wishes to amend any provision hereof to
eliminate the effect of any change in GAAP (or if the Agent notifies the
Borrower that the Required Lenders wish to amend any provision hereof for such
purpose), then such provision shall be applied on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such provision is amended in a manner satisfactory
to the Borrower and the Required Lenders.
ARTICLE II
The Credits
SECTION 2.01. Commitments to Lend. (a) Subject to and upon the terms and
conditions set forth herein, each Lender with a Tranche A Term Loan Commitment
severally agrees to make, on the Initial Borrowing Date, a term loan or term
loans (each, a "Tranche A Term Loan" and, collectively, the "Tranche A Term
Loans") to the Borrower, which Tranche A Term Loans (i) shall be denominated in
Dollars, (ii) shall, at the option of the Borrower, be incurred and maintained
as, and/or converted into, Base Rate Loans or Euro-Dollar Loans, provided that
all Tranche A Term Loans comprising the same Borrowing of Tranche A Term Loans
shall, unless otherwise specifically provided herein, consist of Tranche A Term
Loans of the same Type and (iii) shall be made by each such Lender in that
initial aggregate principal amount as is equal to the Tranche A Term Loan
Commitment of such Lender on the Initial Borrowing Date (after giving effect to
any termination thereof pursuant to Section 2.09(a), but prior to any reduction
thereto pursuant to Section 2.09(b)). Once repaid, Tranche A Term Loans
incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each
Lender with a Tranche B Term Loan Commitment severally agrees to make, on the
Initial Borrowing Date, a term loan or term loans (each, a "Tranche B Term
Loan" and, collectively, the "Tranche B Term Loans") to the Borrower, which
Tranche B Term Loans (i) shall be denominated in Dollars, (ii) shall, at the
option of the Borrower, be incurred and maintained as, and/or converted into,
Base Rate Loans or Euro-Dollar Loans, provided that all Tranche B Term Loans
comprising the same Borrowing of Tranche B Term Loans shall, unless otherwise
specifically provided herein, consist of Tranche B Term Loans of the same Type
and (iii) shall be made by each such Lender in that initial aggregate principal
amount as is equal to the Tranche B Term Loan Commitment of such Lender on the
Initial Borrowing Date (after giving effect to any termination thereof pursuant
to Section 2.09(a), but prior to any reduction thereto pursuant to Section
2.09(c)). Once repaid, Tranche B Term Loans incurred hereunder may not be
reborrowed.
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(c) Subject to and upon the terms and conditions set forth herein, each
Lender with a Revolving Loan Commitment severally agrees, at any time and from
time to time during the Revolving Credit Period, to make a revolving loan or
revolving loans (each, a "Revolving Loan" and, collectively, the "Revolving
Loans") to the Borrower, which Revolving Loans (i) shall be denominated in
Dollars, (ii) shall, at the option of the Borrower, be incurred and maintained
as and/or converted into Base Rate Loans or Euro-Dollar Loans, provided that
all Revolving Loans made as part of the same Borrowing shall, unless otherwise
specifically provided herein, consist of Revolving Loans of the same Type,
(iii) may be repaid and reborrowed in accordance with the provisions hereof and
(iv) shall not exceed for any Lender at any time outstanding that aggregate
principal amount which, when combined with the sum of (I) the aggregate
principal amount of all other then outstanding Revolving Loans made by such
Lender and (II) the product of (A) such Lender's RL Percentage multiplied by
(B) the sum of (x) the Aggregate LC Exposure (exclusive of LC Reimbursement
Obligations which are paid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) at such time and
(y) the aggregate principal amount of all Swingline Loans (exclusive of
Swingline Loans which are repaid with the proceeds of, and simultaneously with
the incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Revolving Loan Commitment of such Lender at such time.
(d) Subject to and upon the terms and conditions set forth herein, the
Swingline Lender agrees to make at any time and from time to time after the
Initial Borrowing Date and prior to the Swingline Expiry Date, a revolving loan
or revolving loans to the Borrower (each, a "Swingline Loan" and, collectively,
the "Swingline Loans"), which Swingline Loans (i) shall be made and maintained
as Base Rate Loans, (ii) shall be denominated in Dollars, (iii) may be repaid
and reborrowed in accordance with the provisions hereof, (iv) shall not exceed
in aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Loans then outstanding and the
Aggregate LC Exposure (exclusive of LC Reimbursement Obligations which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Swingline Loans) at such time, an amount equal to the
Total Revolving Loan Commitment then in effect and (v) shall not exceed in
aggregate principal amount at any time outstanding the Maximum Swingline
Amount. The Swingline Lender shall not be obligated to make any Swingline Loans
at a time when a Lender Default exists unless the Swingline Lender has entered
into arrangements satisfactory to it and the Borrower to eliminate the
Swingline Lender's risk with respect to the Defaulting Lender's or Lenders'
participation in such Swingline Loans, including by cash collateralizing such
Defaulting Lender's or Lenders' RL Percentage of the outstanding Swingline
Loans. The Swingline Lender will not make a Swingline Loan after it has
received written notice from the Borrower or the Required Lenders stating that
a Default exists until such time as the Swingline Lender shall have received a
written notice of (i) rescission of such notice from the party or parties
originally delivering the same or (ii) a waiver of such Default from the
Required Lenders.
(e) On any Business Day, the Swingline Lender may, in its sole discretion,
give notice to the RL Lenders that its outstanding Swingline Loans shall be
funded with a Borrowing of Revolving Loans (provided that each such notice
shall be deemed to have been automatically given upon occurrence of a Default
under Section 6.01(g) or (h) or upon the exercise of any remedies provided in
the last paragraph of Section 6.01), in which case a Borrowing of Revolving
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Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all RL
Lenders pro rata based on each RL Lender's RL Percentage, and the proceeds
thereof shall be applied directly to repay the Swingline Lender for such
outstanding Swingline Loans. Each such Lender hereby irrevocably agrees to make
Base Rate Loans upon one Business Day's notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified in writing by the Swingline Lender notwithstanding
(i) that the amount of the Mandatory Borrowing may not comply with the Minimum
Borrowing Amount otherwise required hereunder, (ii) whether any conditions
specified in Section 3.02 are then satisfied, (iii) whether a Default or an
Event of Default has occurred and is continuing, (iv) the date of such
Mandatory Borrowing and (v) any reduction in the Total Revolving Loan
Commitment after any such Swingline Loans were made. In the event that a
Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the commencement
of a proceeding under the Bankruptcy Code in respect of the Borrower), each RL
Lender (other than the Swingline Lender) hereby agrees that it shall forthwith
purchase from the Swingline Lender (without recourse or warranty) such
assignment of the outstanding Swingline Loans as shall be necessary to cause
the RL Lenders to share in such Swingline Loans ratably based upon their
respective RL Percentages, provided that all interest payable on the Swingline
Loans shall be for the account of the Swingline Lender until the date the
respective assignment is purchased and, to the extent attributable to the
purchased assignment, shall be payable to the RL Lender purchasing same from
and after such date of purchase.
SECTION 2.02. Minimum Borrowing Amounts, etc.; Pro rata Borrowings. (a)
The aggregate principal amount of each Borrowing of Loans under any Tranche
shall not be less than the respective Minimum Borrowing Amount for such
Tranche; provided that Mandatory Borrowings shall be made in amounts required
by Section 2.01(e). More than one Borrowing may occur on the same date, but at
no time shall there be outstanding more than [15] Borrowings of Euro-Dollar
Loans.
(b) All Borrowings of Tranche A Term Loans, Tranche B Term Loans and
Revolving Loans under this Agreement shall be incurred from the Lenders pro
rata on the basis of their Tranche A Term Loan Commitments, Tranche B Term Loan
Commitments or Revolving Loan Commitments, as the case may be. It is understood
that no Lender shall be responsible for any default by any other Lender of its
obligation to make Loans hereunder and that each Lender shall be obligated to
make the Loans to be made by it hereunder, regardless of the failure of any
other Lender to make its Loans hereunder.
SECTION 2.03. Method of Borrowing. (a) Whenever the Borrower desires to
incur Loans hereunder (excluding Borrowings of Swingline Loans and Loans
incurred pursuant to a Mandatory Borrowing) it shall give the Agent notice (a
"Notice of Borrowing") no later than 11:00 A.M. (New York City time) on (x) the
date of each Base Rate Borrowing and (y) the third Business Day before each
Euro-Dollar Borrowing. Each such Notice of Borrowing shall be given by written
communication (or telephonic communication promptly confirmed in writing) and
shall specify:
(i) the date of such Borrowing (which shall be a Business Day);
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(ii) the aggregate principal amount of the Loans to be incurred
pursuant to such Borrowing;
(iii) whether the Loans being incurred pursuant to such Borrowing shall
constitute Tranche A Term Loans, Tranche B Term Loans or Revolving Loans;
(iv) whether the Loans comprising such Borrowing are to bear interest
initially at the Base Rate or a Euro-Dollar Rate; and
(v) in the case of a Euro-Dollar Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
(b) Promptly after receiving a Notice of Borrowing, the Agent shall notify
each Lender which is required to make Loans of the Tranche specified in the
respective Notice of Borrowing of the contents thereof and of such Lender's
ratable share of such Borrowing, and such Notice of Borrowing shall not
thereafter be revocable by the Borrower.
(c) (i) Whenever the Borrower desires to incur Swingline Loans hereunder,
it shall give the Swingline Lender, not later than 2:00 P.M. (New York City
time) on the day such Swingline Loan is to be made, written notice (or
telephonic notice promptly confirmed in writing) of each Swingline Loan to be
made hereunder. Each such notice shall be irrevocable and shall specify in each
case (x) the date of such Borrowing (which shall be a Business Day) and (y) the
aggregate principal amount of the Swingline Loan to be made pursuant to such
Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 2.01(e), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of Mandatory Borrowings as set forth in such
Section 2.01(e).
(d) No later than 1:00 P.M. (New York City time) on the date of each
Borrowing (or (x) in the case of Swingline Loans, no later than 2:00 P.M. (New
York City time) on the date specified in Section 2.03(c)(i) or (y) in the case
of Revolving Loans incurred pursuant to Mandatory Borrowings, no later than
12:00 Noon (New York City time) on the date specified in Section 2.01(e)), each
Lender with a Commitment of the respective Tranche shall make available its
ratable share of such Borrowing (or, in the case of Swingline Loans, the
Swingline Lender will make available the full amount thereof), in Federal or
other funds immediately available in New York City, to the Agent at its address
specified in or pursuant to Section 10.01. Unless the Agent determines that any
applicable condition specified in Article 3 has not been satisfied, the Agent
will make any funds so received from the Lenders available to the Borrower in
Federal or other funds immediately available in New York City no later than
2:00 P.M. (or, in the case of Swingline Loans, 3:00 P.M.) (New York City time)
on the date of such Borrowing by credit to an account of the Borrower at the
Agent's aforesaid address or to such other account of the Borrower in New York
City as may have been specified in the applicable Notice of Borrowing and as
shall be reasonably acceptable to the Agent.
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(e) Unless the Agent shall have received notice from a Lender before the
date of any Borrowing that such Lender will not make available to the Agent
such Lender's share of such Borrowing, the Agent may assume that such Lender
has made such share available to the Agent on the date of such Borrowing in
accordance with subsection (d) of this Section, and the Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such share available to the Agent, such Lender and the Borrower severally
agree to repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the Agent, at
(i) if such amount is repaid by the Borrower, a rate per annum equal to the
interest rate applicable thereto pursuant to Section 2.05 and (ii) if such
amount is repaid by such Lender, the Federal Funds Rate. If such Lender shall
repay to the Agent such corresponding amount, the Borrower shall not be
required to repay such amount and the amount so repaid by such Lender shall
constitute such Lender's Loan included in such Borrowing for purposes of this
Agreement.
SECTION 2.04. Maturity of Loans. Subject to earlier maturity pursuant to
the terms of this Agreement, each Loan shall mature, and the principal amount
thereof shall be due and payable (together with interest accrued thereon), on
(x) in the case of Swingline Loans, the Swingline Expiry Date and (y) in the
case of Term Loans and Revolving Loans, the respective Maturity Date.
SECTION 2.05. Interest Rates. (a) Each Base Rate Loan shall bear interest
on the outstanding principal amount thereof, for each day from the date such
Loan is made until the earlier of (i) the maturity thereof (whether by
acceleration or otherwise) and (ii) the conversion of such Base Rate Loan into
a Euro-Dollar Loan pursuant to Section 2.06, at a rate per annum equal to the
sum of (x) the Applicable Base Rate Margin plus (y) the Base Rate for such day.
Such interest shall be payable quarterly in arrears on each Quarterly Payment
Date and, with respect to the principal amount of any Base Rate Loan converted
to a Euro-Dollar Loan, on the date such amount is so converted. Any overdue
principal of or interest on any Base Rate Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 2% plus
the Applicable Base Rate Margin for such day plus the Base Rate for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for each day during each Interest Period applicable thereto
until the earlier of (i) the maturity thereof (whether by acceleration or
otherwise) and (ii) the conversion of such Euro-Dollar Loan into a Base Rate
Loan pursuant to Section 2.06 or Article 8, as applicable, at a rate per annum
equal to the sum of (x) the Applicable Euro-Dollar Margin plus (y) the Adjusted
London Interbank Offered Rate applicable to such Interest Period. Such interest
shall be payable (x) on the date of any conversion into a Base Rate Loan
pursuant to Section 2.06 or Article 8, as applicable (on the amount so
converted) and (y) for each Interest Period, on the last day thereof and, if
such Interest Period is longer than three months, at intervals of three months
after the first day thereof.
(c) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the higher of (i) the sum of 2% plus the Applicable Euro-Dollar Margin
plus the Adjusted London Interbank
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Offered Rate applicable to such Loan on the day before such payment was due and
(ii) the sum of 2% plus the Applicable Base Rate Margin plus the Base Rate for
such day (or, if the circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the sum of 2% plus the
Applicable Base Rate Margin plus the Base Rate for such day).
(d) The Agent shall determine each interest rate applicable to the Loans
hereunder. The Agent shall promptly notify the Borrower and the participating
Lenders of each rate of interest so determined, and its determination thereof
shall be conclusive in the absence of manifest error.
(e) Each Reference Lender agrees to use its best efforts to furnish
quotations to the Agent as contemplated by the definition of London Interbank
Offered Rate. If any Reference Lender does not furnish a timely quotation, the
Agent shall determine the relevant interest rate on the basis of the quotation
or quotations furnished by the remaining Reference Lender or Lenders or, if
none of such quotations is available on a timely basis, the provisions of
Section 8.01 shall apply.
SECTION 2.06. Method of Electing Interest Rates. (a) The Loans included in
each Borrowing shall bear interest initially at the rate applicable to Loans of
the Type specified by the Borrower in the applicable Notice of Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
interest rate option applicable to each Borrowing (subject to subsection (d) of
this Section and the provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect
to convert such Loans to Euro-Dollar Loans as of any Business Day, and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may
elect to convert such Loans to Base Rate Loans or elect to continue
such Loans as Euro-Dollar Loans for an additional Interest Period,
subject to Section 2.13 if any such conversion is effective on any day
other than the last day of an Interest Period applicable to such
Loans.
Each such election shall be made by delivering a notice (a "Notice of
Interest Rate Election") to the Agent no later than 11:00 A.M. (New York City
time) on the third Business Day before the conversion or continuation selected
in such notice is to be effective. A Notice of Interest Rate Election may, if
it so specifies, apply to only a portion of the aggregate principal amount of
the relevant Borrowing; provided that (i) such portion shall be allocated
ratably among the Loans comprising such Borrowing and (ii) the portion to which
such Notice applies, and the remaining portion to which it does not apply,
shall each be at least equal to the Minimum Borrowing Amount applicable
thereto. If no such notice is timely received before the end of an Interest
Period for any Borrowing of Euro-Dollar Loans, the Borrower shall be deemed to
have elected that such Borrowing of Euro-Dollar be converted to Base Rate Loans
at the end of such then current Interest Period.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Borrowing (or portion thereof) to which such notice
applies;
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(ii) the date on which the conversion or continuation selected
in such notice is to be effective, which shall comply with the
applicable clause of subsection (a) above;
(iii) if the Loans comprising such Borrowing are to be
converted, the new Type of Loans and, if the Loans resulting from such
conversion are to be Euro-Dollar Loans, the duration of the next
succeeding Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans
for an additional Interest Period, the duration of such additional
Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Promptly after receiving a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Agent shall notify each Lender
of the contents thereof and such notice shall not thereafter be revocable by
the Borrower.
(d) The Borrower shall not be entitled to elect to convert any Loans to,
or continue any Loans for an additional Interest Period as, Euro-Dollar Loans
if (i) the aggregate principal amounts of any Borrowing of Euro-Dollar Loans
created or continued as a result of such election would be less than the
Minimum Borrowing Amount applicable thereto or (ii) a Default shall have
occurred and be continuing when the Borrower delivers notice of such election
to the Agent.
SECTION 2.07. Fees. (a) The Borrower shall pay to the Agent, for the
account of each RL Lender that is a Non-Defaulting Lender, a commitment fee
(the "Commitment Fee") computed at the rate for each day equal to the
Applicable Commitment Fee Percentage on the daily Unutilized Revolving Loan
Commitment for such Lender. The Commitment Fee shall accrue from and including
the Effective Date to but excluding the date on which the Total Revolving Loan
Commitment terminates in its entirety.
(b) The Borrower shall pay to the Agent, for the several account of each
RL Lender that is a Non-Defaulting Lender ratably in proportion to their RL
Percentages, a letter of credit fee (the "LC Fee") for each day computed at a
rate per annum equal to the Applicable Margin for Revolving Loans maintained as
Euro-Dollar Loans on the aggregate Stated Amounts under all Letters of Credit
outstanding at the close of business on such day. The Borrower shall pay to
each LC Issuing Bank a fronting fee (the "Fronting Fee") for each day of 0.25%
per annum on the aggregate Stated Amounts under all Letters of Credit issued by
such LC Issuing Bank and outstanding at the close of business on such day, and
other reasonable and customary processing charges.
(c) Fees accrued for the several accounts of the Lenders under this
Section shall be payable quarterly in arrears on each Quarterly Payment Date
and on the day on which the Total Revolving Loan Commitment terminates in its
entirety.
(d) The Borrower shall pay when due to the Agent, for its own account,
such other fees as have been agreed to in writing by the Borrower and the
Agent.
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SECTION 2.08. Optional Termination or Reduction of Commitments. (a) The
Borrower may (without premium or penalty), upon at least three Business Days'
notice to the Agent, terminate or partially reduce the Total Unutilized
Revolving Loan Commitments, provided that (i) each such reduction shall apply
proportionately to permanently reduce the Revolving Loan Commitment of each RL
Lender and (ii) any partial reduction to the Total Unutilized Revolving Loan
Commitment pursuant to this Section 2.08 shall be in an amount of at least
$5,000,000 and, if greater, in integral multiples of $1,000,000. Promptly after
receiving a notice pursuant to this Section, the Agent shall notify each Lender
of the contents thereof.
SECTION 2.09. Mandatory Reduction of Commitments. (a) The Total Commitment
(and the Tranche A Term Loan Commitment, the Tranche B Term Loan Commitment and
the Revolving Loan Commitment of each Lender) shall terminate in its entirety
on August 31, 2000 unless the Initial Borrowing Date shall have occurred on or
prior to such date.
(b) In addition to any other mandatory commitment reductions pursuant to
this Section 2.09, the Total Tranche A Term Loan Commitment (and the Tranche A
Term Loan Commitment of each Bank) shall terminate in its entirety on the
Initial Borrowing Date (after giving effect to the making of the Tranche A Term
Loans on such date).
(c) In addition to any other mandatory commitment reductions pursuant to
this Section 2.09, the Total Tranche B Term Loan Commitment (and the Tranche B
Term Loan Commitment of each Lender) shall terminate in its entirety on the
Initial Borrowing Date (after giving effect to the making of the Tranche B Term
Loans on such date).
(d) In addition to any other mandatory commitment reductions pursuant to
this Section 2.09, the Total Revolving Loan Commitment (and the Revolving Loan
Commitment of each Lender) shall terminate in its entirety on the Revolving
Loan Maturity Date.
(e) In addition to any other mandatory commitment reductions pursuant to
this Section 2.09, on each date after the Initial Borrowing Date upon which a
mandatory prepayment of Term Loans pursuant to Section 2.10(d) through (f),
inclusive, is required (and exceeds in amount the aggregate principal amount of
Term Loans then outstanding) or would be required if Term Loans were then
outstanding, the Total Revolving Loan Commitment shall be permanently reduced
by the amount, if any, by which the amount required to be applied pursuant to
said Sections (determined as if an unlimited amount of Term Loans were actually
outstanding) exceeds the aggregate principal amount of Term Loans then
outstanding.
(f) Each reduction to the Total Tranche A Term Loan Commitment, the Total
Tranche B Term Loan Commitment and the Total Revolving Loan Commitment pursuant
to this Section 2.09 (or pursuant to Section 2.10) shall be applied
proportionately to reduce the Tranche A Term Loan Commitment, the Tranche B
Term Loan Commitment or the Revolving Loan Commitment, as the case may be, of
each Lender with such a Commitment.
SECTION 2.10. Mandatory Repayments. (a) On any day on which the sum of (i)
the aggregate outstanding principal amount of the Revolving Loans and Swingline
Loans (after giving effect to all other repayments thereof on such date) and
(ii) the Aggregate LC Exposure
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exceeds the Total Revolving Loan Commitment as then in effect, the Borrower
shall prepay on such date principal of Swingline Loans and to the extent no
Swingline Loans are or remain outstanding, Revolving Loans, in an amount equal
to such excess. If, after giving effect to the prepayment of all outstanding
Swingline Loans and Revolving Loans, the Aggregate LC Exposure exceeds the
Total Revolving Loan Commitment as then in effect, the Borrower agrees to pay
to the Agent an amount in cash and/or Cash Equivalents equal to such excess (up
to the amount of the Aggregate LC Exposure at such time) and the Agent shall
hold such payment as security for the obligations of the Borrower hereunder
pursuant to a cash collateral agreement to be entered into in form and
substance reasonably satisfactory to the Agent, provided that if the Revolving
Loan Commitments shall have been terminated, all other amounts payable
hereunder shall have been paid in full and no Default shall have occurred and
be continuing, the Agent shall from time to time upon the request of the
Borrower return to the Borrower such portion of such amount as the Agent in its
sole discretion determines is no longer needed to secure the Aggregate LC
Exposure and related fees and expenses payable under this Agreement.
(b) In addition to any other mandatory repayments or commitment reductions
pursuant to this Section 2.10, on each date set forth below, the Borrower shall
be required to repay that principal amount of Tranche A Term Loans, to the
extent then outstanding, as is set forth opposite such date (each such
repayment, as the same may be reduced as provided in Sections 2.10(g) and 2.11,
a "Tranche A Scheduled Repayment," and each such date, a "Tranche A Scheduled
Repayment Date"):
Tranche A Scheduled Repayment Date Amount
---------------------------------- ----------
September 30, 2000 $1,250,000
December 31, 2000 $1,250,000
March 31, 2001 $1,250,000
June 30, 2001 $1,250,000
September 30, 2001 $1,250,000
December 31, 2001 $1,250,000
March 31, 2002 $1,250,000
June 30, 2002 $1,250,000
September 30, 2002 $2,500.000
December 31, 2002 $2,500,000
March 31, 2003 $2,500,000
June 30, 2003 $2,500,000
September 30, 2003 $2,500,000
December 31, 2003 $2,500,000
March 31, 2004 $2,500,000
June 30, 2004 $2,500,000
September 30, 2004 $8,750,000
December 31, 2004 $8,750,000
March 31, 2005 $8,750,000
June 30, 2005 $8,750,000
September 30, 2005 $8,750,000
December 31, 2005 $8,750,000
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Tranche A Scheduled Repayment Date Amount
---------------------------------- ----------
March 31, 2006 $8,750,000
Tranche A Maturity Date $8,750,000
(c) In addition to any other mandatory repayments pursuant to this Section
2.10, on each date set forth below, the Borrower shall be required to repay
that principal amount of Tranche B Term Loans, to the extent then outstanding,
as is set forth opposite such date (each such repayment, as the same may be
reduced as provided in Sections 2.10(g) and 2.11, a "Tranche B Scheduled
Repayment," and each such date, a "Tranche B Scheduled Repayment Date"):
Tranche B Scheduled Repayment Date Amount
---------------------------------- -----------
September 30, 2000 $610,000
December 31, 2000 $610,000
March 31, 2001 $610,000
June 30, 2001 $610,000
September 30, 2001 $610,000
December 31, 2001 $610,000
March 31, 2002 $610,000
June 30, 2002 $610,000
September 30, 2002 $610,000
December 31, 2002 $610,000
March 31, 2003 $610,000
June 30, 2003 $610,000
September 30, 2003 $610,000
December 31, 2003 $610,000
March 31, 2004 $610,000
June 30, 2004 $610,000
September 30, 2004 $610,000
December 31, 2004 $610,000
March 31, 2005 $610,000
June 30, 2005 $610,000
September 30, 2005 $610,000
December 31, 2005 $610,000
March 31, 2006 $610,000
June 30, 2006 $610,000
September 30, 2006 $28,670,000
December 31, 2006 $28,670,000
March 31, 2007 $28,670,000
June 30, 2007 $28,670,000
September 30, 2007 $28,670,000
December 31, 2007 $28,670,000
March 31, 2008 $28,670,000
Tranche B Maturity Date $28,670,000
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(d) In addition to any other mandatory repayments pursuant to this Section
2.10, on each date on or after the Effective Date upon which the Borrower or
any of its Subsidiaries receives any cash proceeds from any Repayment Event, an
amount equal to the Applicable Repayment Percentage of the Net Cash Proceeds
therefrom shall be applied as a mandatory repayment of principal of Term Loans
in accordance with the requirements of Sections 2.10(g) and (h); provided that
with respect to (i) the disposition of obsolete, unused or unnecessary
equipment in the ordinary course of business and (ii) no more than $25,000,000
in the aggregate for any Fiscal Year and $50,000,000 in the aggregate during
the term of this Agreement, in each case, of Net Cash Proceeds (other than sale
proceeds held in reserve which thereafter become Net Sale Proceeds in
accordance with clause (y)(III) of the definition of "Net Sale Proceeds")
received in connection with any Asset Sale (other than pursuant to the
immediately preceding clause (i)), the Net Cash Proceeds therefrom (such Net
Cash Proceeds actually received and not used to make repayments described
above, the "Retained Asset Sale Proceeds") shall not be required to be so
applied on such date to the extent no Default then exists and the Borrower
delivers a certificate to the Agent on or prior to such date stating that such
Retained Asset Sale Proceeds shall be used (or contractually committed to be
used) for reinvestment in other assets owned or to be owned by the Borrower or
a Subsidiary of the Borrower within 360-days following the date of such Asset
Sale (which certificate shall set forth the estimates of the proceeds to be so
expended) or to make Permitted Acquisitions in compliance with this Agreement;
provided further, that if all or any portion of the Retained Asset Sale
Proceeds not required to be so applied as provided in the preceding proviso are
not so used or contractually committed to be so used within such 360-day period
(or, to the extent contractually committed to be so used, such contract expires
or terminates without such portion being so used), such remaining portion of
the Net Cash Proceeds shall be applied on the last day of such 360-day period
or, to the extent contractually committed to be used on the last day of such
360-day period, on any date thereafter upon which the respective contract
expires or terminates without such portion being so used) as a mandatory
repayment of principal of Term Loans as provided above in this Section 2.10(d)
(without regard to the first proviso herein); provided further, that the
proceeds of the Equity Payment and, so long as no Event of Default exists and
is continuing at the time of such sale or the receipt of such proceeds, the
sale of any Qualified Additional Equity shall be exempt from the repayment
provisions of this Section 2.10(d) and, to the extent the New Senior
Subordinated Notes were not issued on or prior to the Initial Borrowing Date,
any required payment under this Section 2.10 with Net Cash Proceeds arising
from the issuance of the New Senior Subordinated Notes shall be applied first
to the redemption of the Bridge Financing, with such required payment of Term
Loans under this Section 2.10 to be reduced by the amount of the proceeds of
such issuance of the New Senior Subordinated Notes actually applied to
refinance such bridge financing.
(e) In addition to any other mandatory repayments pursuant to this Section
2.10, on each Excess Cash Payment Date, an amount equal to the Applicable
Repayment Percentage of Excess Cash Flow 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 Term Loans in accordance with the
requirements of Sections 2.10(g) and (h).
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(f) In addition to any other mandatory repayments pursuant to this Section
2.10, within 10 days following each date after the Effective Date on which the
Borrower or any of its Subsidiaries receives any Major Casualty Proceeds, an
amount equal to 100% of such Major Casualty Proceeds shall be applied as a
mandatory repayment of principal of Term Loans in accordance with the
requirements of Sections 2.10(g) and (h); provided that so long as no Default
then exists, such Major Casualty Proceeds shall not be required to be so
applied on such date to the extent the Borrower has delivered a certificate to
the Agent stating that such Major Casualty Proceeds shall be expended or
committed to be expended to replace or restore the asset or assets in respect
of which such payment or award was made, or to acquire assets of a type
permitted pursuant to Section 5.04, within 270 days following the date of
receipt of such Major Casualty Proceeds. The Major Casualty Proceeds not
required to be applied as a mandatory repayment of Term Loans as provided in
the proviso to the preceding sentence shall be deposited with the Agent in the
Collateral Account whereby such Major Casualty Proceeds shall be disbursed to
the Borrower from time to time as needed to pay actual costs incurred by it in
connection with the replacement or restoration of the respective assets, or to
acquire assets of a type permitted pursuant to Section 5.04 (subject to
reasonable certification requirements as may be established by the Agent),
provided that at any time that a Default has occurred and is continuing, the
Required Lenders may direct the Agent to apply any or all of such Major
Casualty Proceeds then on deposit in the Collateral Account to the repayment of
Term Loans as provided in this Section 2.10(f) (without regard to the first
proviso herein), provided further, that if all or any portion of such Major
Casualty Proceeds not required to be applied to the repayment of Term Loans
pursuant to the proviso in the preceding sentence are not used or committed to
be used within 270 days following the date on which the Borrower or such
Subsidiary received such Major Casualty Proceeds, such remaining portion of the
Major Casualty Proceeds shall be applied on the last day of such 270 day period
as a mandatory repayment of principal of Term Loans as provided above in this
Section 2.10(f) (without regard to the proviso in the first sentence herein).
(g) Subject to the provisions of Section 2.10(i), each amount required to
be applied as a mandatory repayment of Term Loans pursuant to Sections 2.10(d)
through (f), inclusive, shall be applied pro rata to each Tranche of Term Loans
based upon the then remaining principal amounts of the respective Tranches
(with each Tranche of Term Loans to be allocated that percentage of the amount
to be applied as is equal to a fraction (expressed as a percentage) the
numerator of which is the then outstanding principal amount of such Tranche of
Term Loans and the denominator of which is equal to the then outstanding
principal amount of all Term Loans); provided that if the amount of the Net
Cash Proceeds in respect of any Repayment Event is less than $5,000,000, such
repayment shall be made upon receipt of proceeds such that, together with all
other such amounts not previously applied, the amount of such Net Cash Proceeds
is equal to at least $5,000,000. The amount of each repayment of Tranche A Term
Loans and Tranche B Term Loans as required by this Section 2.10(g) shall be
applied to reduce the then remaining Scheduled Repayments of the respective
Tranche pro rata based upon the then remaining principal amounts of the
Scheduled Repayments of the respective Tranche, after giving effect to all
prior reductions thereto.
(h) With respect to each repayment of Loans pursuant to Sections 2.10(d)
through 2.10(f), inclusive, the Borrower may designate the Types of Loans of
the respective Tranche which are to be repaid and, in the case of Euro-Dollar
Loans, the specific Borrowing or Borrowings
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of the respective Tranche pursuant to which made, provided that: (i) repayments
of Euro-Dollar Loans pursuant to this Section 2.10 may only be made on the last
day of an Interest Period applicable thereto unless all Euro-Dollar Loans of
the respective Tranche with Interest Periods ending on such date of required
repayment and all Base Rate Loans of the respective Tranche have been paid in
full; (ii) if any repayment of Euro-Dollar Loans made pursuant to a single
Borrowing shall reduce the outstanding Euro-Dollar Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, such Borrowing shall be converted at the end of the then current
Interest Period into a Borrowing of Base Rate Loans; and (iii) each repayment
of any Loans comprising a Borrowing shall be applied pro rata among such Loans.
In the absence of a designation by the Borrower as described in the preceding
sentence, the Agent shall, subject to the above, make such designation in its
sole discretion with a view, but no obligation, to minimize breakage costs
owing under Section 2.13. Notwithstanding the foregoing provisions of this
Section 2.10, if at any time the mandatory repayment of Term Loans pursuant to
Sections 2.10(d) through (f) above would result, after giving effect to the
procedures set forth above, in the Borrower incurring breakage costs under
Section 2.13 as a result of Euro-Dollar Loans being prepaid other than on the
last day of an Interest Period applicable thereto (the "Affected Euro-Dollar
Loans"), then the Borrower may, in its sole discretion and so long as no
Default then exists, initially deposit a portion (up to 100%) of the amounts
that otherwise would have been paid in respect of the Affected Euro-Dollar
Loans with the Agent (which deposit must be equal in amount to the amount of
Affected Euro-Dollar Loans not immediately prepaid) to be held as security for
the obligations of the Borrower hereunder in the Collateral Account, with such
cash collateral to be directly applied upon the first occurrence (or
occurrences) thereafter of the last day of an Interest Period applicable to the
relevant Term Loans that are Euro-Dollar Loans (or such earlier date or dates
as shall be requested by the Borrower), to repay an aggregate principal amount
of such Term Loans equal to the Affected Euro-Dollar Loans not initially repaid
pursuant to this sentence. Notwithstanding anything to the contrary contained
in the immediately preceding sentence, all amounts deposited as cash collateral
pursuant to the immediately preceding sentence shall be held for the sole
benefit of the Lenders whose Term Loans would otherwise have been immediately
repaid with the amounts deposited and upon the taking of any action by the
Agent or the Lenders pursuant to the remedial provisions of Section 6.01, any
amounts held as cash collateral pursuant to this Section 2.10(h) shall, subject
to the requirements of applicable law, be immediately applied to such
respective Tranches of Term Loans.
(i) Notwithstanding anything to the contrary contained in this Section
2.10 or elsewhere in this Agreement, at any time that Tranche A Term Loans are
outstanding, Lenders with outstanding Tranche B Term Loans ("B Lenders") shall
have the option to waive a mandatory repayment of such Loans pursuant to
Sections 2.10(d) through 2.10(f), inclusive (each such repayment, a "Waivable
Mandatory Repayment"), upon the terms and provisions set forth in this Section
2.10(i). Upon the occurrence of a Waivable Mandatory Repayment, the Agent shall
provide to the B Lenders prompt written notice of such Waivable Mandatory
Repayment (indicating in such notice the amount of such repayment to be applied
to each such Lender's outstanding Tranche B Term Loans). In the event any such
B Lender desires to waive such Lender's right to receive any such Waivable
Mandatory Repayment in whole or in part, such Lender shall so advise the Agent
no later than the close of business two Business Days after the
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date of such notice from the Agent, which notice from such B Lender shall also
include the amount such Lender desires to receive in respect of such repayment.
If any Lender does not reply to the Agent within the two Business Days, it will
be deemed not to have waived any part of such repayment. If any Lender does not
specify an amount it wishes to receive, it will be deemed to have accepted 100%
of the total payment. In the event that any such Lender waives all or part of
such right to receive any such Waivable Mandatory Repayment, the Agent shall
apply 100% of the amount so waived by such Lender to repayment of the Tranche A
Term Loans in accordance with Section 2.10(g).
SECTION 2.11. Optional Prepayments. (a) The Borrower shall have the right
to prepay the Loans made to it, in whole or in part, without premium or
penalty, at any time and from time to time on the following terms and
conditions: (i) the Borrower shall give the Agent written notice (or telephonic
notice promptly confirmed in writing) of its intent to prepay such Loans,
whether such Loans are Term Loans, Revolving Loans or Swingline Loans, the
amount of such prepayment and the Types of Loans to be prepaid and, in the case
of Euro-Dollar Loans, the specific Borrowing or Borrowings pursuant to which
made, which notice shall be given by the Borrower prior to 11:00 A.M. (New York
City time) (x) on the date of such prepayment in the case of Term Loans or
Revolving Loans maintained as Base Rate Loans, (y) on the date of such
prepayment in the case of Swingline Loans and (z) at least three Business Days
prior to the date of such prepayment in the case of Loans maintained as
Euro-Dollar Loans; (ii) each prepayment made pursuant to this Section 2.11
shall be in an aggregate principal amount of at least $1,000,000 (or $250,000
in the case of Swingline Loans), provided that no partial prepayment of
Euro-Dollar Loans made pursuant to a Borrowing shall reduce the aggregate
principal amount of Euro-Dollar Loans outstanding pursuant to such Borrowing to
an amount less than the Minimum Borrowing Amount applicable thereto; (iii) each
prepayment of Loans made pursuant to a Borrowing pursuant to this Section 2.11
shall be applied pro rata among such Loans; (iv) each prepayment of Term Loans
pursuant to this Section 2.11 shall be applied to each Tranche of Term Loans on
a pro rata basis (based on the then outstanding principal amount of such
Tranche of Term Loans); (v) each prepayment of Tranche A Term Loans pursuant to
this Section 2.11 shall be applied to reduce the then remaining Tranche A
Scheduled Repayments on a pro rata basis (based on the then remaining principal
amount of each Tranche A Schedule Repayment); and (vi) each prepayment of
Tranche B Term Loans pursuant to this Section 2.11 shall be applied to reduce
the then remaining Tranche B Scheduled Repayments on a pro rata basis (based on
the then remaining principal amount of each Tranche B Scheduled Repayment).
(b) Promptly after receiving a notice of prepayment of Loans (other than
Swingline Loans) pursuant to this Section, the Agent shall notify each Lender
entitled to receive the proceeds thereof of the contents thereof and of such
Lender's ratable share of such prepayment, and such notice shall not thereafter
be revocable by the Borrower.
SECTION 2.12. General Provisions as to Payments. (a) Except as otherwise
specifically provided herein, the Borrower shall make each payment of principal
of, and interest on, the Loans and LC Reimbursement Obligations and each
payment of fees hereunder (other than fees payable directly to the LC Issuing
Banks) not later than 1:00 P.M. (New York City time) on the date when due, in
Federal or other funds immediately available in New York City, to the Agent at
its address specified in or pursuant to Section 10.01. Any payments under this
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Agreement which are made later than 1:00 P.M. (New York City time) shall be
deemed to have been made on the next succeeding Business Day. The Agent will
promptly distribute to each Lender its ratable share of each such payment
received by the Agent for the account of the Lenders. Whenever any payment of
principal of, or interest on, the Loans or LC Reimbursement Obligations or of
fees shall be due on a day which is not a Business Day, the date for payment
thereof shall be extended to the next succeeding Business Day, unless, in the
case of payments in respect of Euro-Dollar Loans, such Business Day falls in
another calendar month, in which case the date for payment thereof shall be the
next preceding Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be payable
for such extended time.
(b) Unless the Borrower notifies the Agent before the date on which any
payment is due to the Lenders hereunder that the Borrower will not make such
payment in full, the Agent may assume that the Borrower has made such payment
in full to the Agent on such date, and the Agent may, in reliance on such
assumption, cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent that the
Borrower shall not have so made such payment, each Lender shall repay to the
Agent forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Agent, at the
Federal Funds Rate.
SECTION 2.13. Funding Losses. If the Borrower makes any payment of
principal with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is
converted to a different Type of Loan (whether such payment or conversion is
pursuant to Article 2, 6 or 8 or otherwise) on any day other than the last day
of an Interest Period applicable thereto, or if the Borrower fails to borrow,
prepay, convert or continue any Euro-Dollar Loan after notice has been given to
any Bank in accordance with Section 2.03, 2.06 or 2.11, the Borrower shall
reimburse each Lender within 15 days after demand by such Lender for any
resulting loss or expense incurred by it (or, without duplication, by an
existing or prospective participant in the related Loan), including (without
limitation) any loss incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the period after such
payment or conversion or failure to borrow, prepay, convert or continue;
provided that such Lender shall have delivered to the Borrower a certificate as
to the amount of such loss or expense and its method of calculation, which
certificate shall be conclusive in the absence of manifest error.
SECTION 2.14. Computation of Interest and Fees. All interest (other than
interest on Base Rate Loans) and fees shall be computed on the basis of a year
of 360 days and paid for the actual number of days elapsed (including the first
day but excluding the last day). All interest on Base Rate Loans shall be
computed on the basis of a year of 365 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
SECTION 2.15. Notes. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans made to it by each Lender shall be evidenced (i)
if Tranche A Term Loans, by a promissory note duly executed and delivered by
the Borrower substantially in the form of Exhibit A-1 with blanks appropriately
completed in conformity herewith (each, a "Tranche A Term Note" and,
collectively, the "Tranche A Term Notes"), (ii) if Tranche B Term Loans, by a
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promissory note duly executed and delivered by the Borrower substantially in
the form of Exhibit A-2 with blanks appropriately completed in conformity
herewith (each, a "Tranche B Term Note" and, collectively, the "Tranche B Term
Notes"), (iii) if Revolving Loans, by a promissory note duly executed and
delivered by the Borrower substantially in the form of Exhibit A-3, with blanks
appropriately completed in conformity herewith (each, a "Revolving Note" and,
collectively, the "Revolving Notes") and (iv) if Swingline Loans, by a
promissory note duly executed and delivered by the Borrower substantially in
the form of Exhibit A-4 with blanks appropriately completed in conformity
herewith (the "Swingline Note").
(b) The Tranche A Term Note issued to each Lender that has a Tranche A
Term Loan Commitment or outstanding Tranche A Term Loans shall (i) be executed
by the Borrower, (ii) be payable to the order of such Lender and be dated the
Initial Borrowing Date (or, if issued after the Initial Borrowing Date, the
date of issuance thereof), (iii) be in a stated principal amount equal to the
Tranche A Term Loans made by such Lender on the Initial Borrowing Date (or, if
issued after the Initial Borrowing Date, be in a stated principal amount equal
to the outstanding principal amount of Tranche A Term Loans of such Lender at
such time) and be payable in Dollars in the outstanding principal amount of
Tranche A Term Loans evidenced thereby, (iv) mature on the Tranche A Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 2.05
in respect of the Base Rate Loans and Euro-Dollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 2.11 and mandatory repayment as provided in Section 2.10 and (vii) be
entitled to the benefits of this Agreement and the other Loan Documents.
(c) The Tranche B Term Note issued to each Lender that has a Tranche B
Term Loan Commitment or outstanding Tranche B Term Loans shall (i) be executed
by the Borrower, (ii) be payable to the order of such Lender and be dated the
Initial Borrowing Date (or, if issued after the Initial Borrowing Date, the
date of issuance thereof), (iii) be in a stated principal amount equal to the
Tranche B Term Loans made by such Lender on the Initial Borrowing Date (or, if
issued after the Initial Borrowing Date, be in a stated principal amount equal
to the outstanding principal amount of Tranche B Term Loans of such Bank at
such time) and be payable in Dollars in the outstanding principal amount of
Tranche B Term Loans evidenced thereby, (iv) mature on the Tranche B Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 2.05
in respect of the Base Rate Loans and Euro-Dollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 2.11 and mandatory repayment as provided in Section 2.10 and (vii) be
entitled to the benefits of this Agreement and the other Loan Documents.
(d) The Revolving Note issued to each Lender that has a Revolving Loan
Commitment or outstanding Revolving Loans shall (i) be executed by the
Borrower, (ii) be payable to the order of such Lender and be dated the Initial
Borrowing Date (or, if issued after the Initial Borrowing Date, the date of
issuance thereof), (iii) be in a stated principal amount equal to the Revolving
Loan Commitment of such Bank (or, if issued after the termination thereof, be
in a stated principal amount equal to the outstanding Revolving Loans of such
Lender at such time) and be payable in Dollars in the outstanding principal
amount of the Revolving Loans evidenced thereby, (iv) mature on the Revolving
Loan Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 2.05 in respect of the Base Rate Loans and Euro-Dollar Loans, as
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the case may be, evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 2.11 and mandatory repayment as provided in Section 2.10
and (vii) be entitled to the benefits of this Agreement and the other Loan
Documents.
(e) The Swingline Note issued to the Swingline Lender shall (i) be
executed by the Borrower, (ii) be payable to the order of the Swingline Lender
and be dated the Initial Borrowing Date, (iii) be in a stated principal amount
equal to the Maximum Swingline Amount and be payable in Dollars in the
outstanding principal amount of the Swingline Loans evidenced thereby, (iv)
mature on the Swingline Expiry Date, (v) bear interest as provided in Section
2.05 in respect of the Base Rate Loans evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 2.11 and mandatory repayment as
provided in Section 2.10(a) and (vii) be entitled to the benefits of this
Agreement and the other Loan Documents.
(f) 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 schedule forming a part thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation or any error in any such notation or endorsement shall not affect
the Borrower's obligations in respect of such Loans.
SECTION 2.16. Letters of Credit. (a) Issuance. Each LC Issuing Bank
agrees, on the terms and conditions set forth in this Agreement, to issue
Letters of Credit hereunder at the request of the Borrower from time to time
prior to the date that is 30 days before the Revolving Loan Maturity Date;
provided that, immediately after each such Letter of Credit is issued and
participations therein are sold to the Banks as provided in this subsection:
(i) the Aggregate LC Exposure shall not exceed $20,000,000; and
(ii) the sum of (i) the Aggregate LC Exposure and (ii) the
aggregate principal amount of all Revolving Loans and Swingline Loans
then outstanding shall not exceed the Total Revolving Loan Commitment
as then in effect.
Whenever an LC Issuing Bank issues a Letter of Credit hereunder, such LC
Issuing Bank shall be deemed, without further action by any party hereto, to
have sold to each other RL Lender, and each such RL Lender shall be deemed,
without further action by any party hereto, to have purchased from such LC
Issuing Bank, without recourse or warranty, a participation in such Letter of
Credit, on the terms specified in this Section, equal to such RL Lender's RL
Percentage thereof.
(b) Notice of Proposed Issuance. With respect to each Letter of Credit,
the Borrower shall give the respective LC Issuing Bank and the Agent at least
five (5) Business Days' prior notice (i) specifying the date such Letter of
Credit is to be issued and (ii) describing the proposed terms of such Letter of
Credit and the nature of the transactions to be supported thereby. Promptly
after it receives such notice, the Agent shall notify each RL Lender of the
contents thereof.
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(c) Conditions to Issuance. No LC Issuing Bank shall issue any Letter of
Credit unless:
(i) such Letter of Credit shall be satisfactory in form and substance
to such LC Issuing Bank,
(ii) the Borrower shall have executed and delivered such other
instruments and agreements relating to such Letter of Credit as such
LC Issuing Bank shall have reasonably requested,
(iii) such LC Issuing Bank shall have confirmed with the Agent
on the date of such issuance that the limitations specified in clauses
(i) and (ii) of subsection (a) of this Section will not be exceeded
immediately after such Letter of Credit is issued, and
(iv) such LC Issuing Bank shall not have been notified in writing by
the Borrower, the Required Lenders or the Agent expressly to the effect
that any condition specified in clause (c) or (d) of Section 3.02 is not
satisfied at the time such Letter of Credit is to be issued.
(d) Expiry Dates. No Letter of Credit shall have an expiry date later than
the fifth (5th) Business Day before the Revolving Loan Maturity Date. Subject
to the preceding sentence, each Letter of Credit issued hereunder shall expire
on or before the first anniversary of the date of such issuance; provided that
the expiry date of any Letter of Credit may be extended from time to time (i)
at the Borrower's request for a period not exceeding one year or (ii) in the
case of an Evergreen Letter of Credit, automatically, in each case so long as
such extension is granted (or the last day on which notice can be given to
prevent such extension occurs) no earlier than three (3) months before the then
existing expiry date thereof.
(e) Notice of Proposed Extensions of Expiry Dates. The relevant LC Issuing
Bank shall give the Agent at least three (3) Business Days' notice before such
LC Issuing Bank extends (or allows an automatic extension of) the expiry date
of any Letter of Credit issued by it. Such notice shall identify such Letter of
Credit, the date on which it is to be extended (or the last day on which notice
can be given to prevent such extension) and the date to which it is to be
extended. Promptly after it receives such notice, the Agent shall notify each
RL Lender of the contents thereof. No LC Issuing Bank shall extend (or allow
the extension of) the expiry date of any Letter of Credit if (x) such extension
does not comply with subsection (d) of this Section, (y) such LC Issuing Bank
shall not have confirmed with the Agent on the date of such extension that the
limitations specified in clauses (i) and (ii) of subsection (a) of this Section
will not be exceeded immediately after such Letter of Credit is extended, or
(z) such LC Issuing Bank shall have been notified by the Borrower, the Required
Lenders or the Agent expressly to the effect that any condition specified in
clause (c) or (d) of Section 3.02 is not satisfied at the time of such proposed
extension.
(f) Notice of Actual Issuances and Extensions. Promptly after it issues
any Letter of Credit or extends any Letter of Credit (or allows any Evergreen
Letter of Credit to be extended), the relevant LC Issuing Bank will notify the
Agent of the date, face amount, beneficiary
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or beneficiaries and expiry date or extended expiry date of such Letter of
Credit. Promptly after it receives such notice, the Agent shall notify each RL
Bank of the contents thereof and the amount of such RL Lender's participation
in such Letter of Credit. Promptly after it issues any Letter of Credit, the
relevant LC Issuing Bank will send a copy of such Letter of Credit to the
Agent.
(g) Drawings. If an LC Issuing Bank receives a demand for payment under
any Letter of Credit issued by it and determines that such demand should be
honored, such LC Issuing Bank shall (i) promptly notify the Borrower and the
Agent as to the amount to be paid by such LC Issuing Bank as a result of such
demand and the date of such payment (an "LC Payment Date") and (ii) make such
payment in accordance with the terms of such Letter of Credit.
(h) Reimbursement by the Borrower. (A) If any amount is drawn under any
Letter of Credit, the Borrower irrevocably and unconditionally agrees to
reimburse the relevant LC Issuing Bank for such amount, together with any and
all reasonable charges and expenses which such LC Issuing Bank may pay or incur
relative to such drawing. Such reimbursement shall be due and payable (the date
on which it is due and payable being an "LC Reimbursement Due Date") by 2:00
P.M. (New York City time) on the relevant LC Payment Date or the date on which
such LC Issuing Bank notifies the Borrower of such drawing, whichever is later;
provided that, if such notice is given after 12:00 Noon (New York City time) on
the later of such dates, such reimbursement shall be due and payable on the
next succeeding Business Day; provided further, that, notwithstanding anything
to the contrary contained above, if, on the relevant LC Payment Date, any Event
of Default shall exist pursuant to Section 6.01(g) or (h) with respect to the
Borrower, such LC Payment Date shall constitute the date upon which such
reimbursement shall be due and payable and notwithstanding anything to the
contrary contained above, if an Event of Default as specified in Section
6.01(g) or (h) with respect to the Borrower does not exist on the relevant LC
Payment Date but occurs prior to the date which would otherwise constitute the
respective LC Reimbursement Due Date, then the date of the occurrence of such
Default shall instead constitute the respective LC Reimbursement Due Date.
(B) In addition, the Borrower agrees to pay, on the applicable LC
Reimbursement Due Date, interest on each amount drawn under a Letter of Credit,
for each day from and including the LC Payment Date to but excluding such LC
Reimbursement Due Date, at a rate per annum equal to the sum of the Applicable
Base Rate Margin for Revolving Loans plus the Base Rate for such day.
(C) Each payment by the Borrower pursuant to this subsection (h) shall be
made to the relevant LC Issuing Bank in Federal funds or other funds
immediately available to it at its address specified in or pursuant to Section
10.01.
(i) Payments by Lenders. (A) If the Borrower fails to pay any LC
Reimbursement Obligation in full when due, the relevant LC Issuing Bank may
notify the Agent of the unreimbursed amount and request that the RL Lenders
reimburse such LC Issuing Bank for their respective RL Percentages thereof.
Promptly after it receives any such notice, the Agent shall notify each RL
Lender of the unreimbursed amount and such RL Lender's RL Percentage thereof.
Upon receiving such notice from the Agent, each RL Lender shall make available
to
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such LC Issuing Bank, at its address specified in or pursuant to Section 10.01,
an amount equal to such RL Lender's RL Percentage of such unreimbursed amount,
in Federal or other funds immediately available to such LC Issuing Bank, by
3:00 P.M. (New York time) (i) on the day such RL Lender receives such notice if
it is received at or before 12:00 Noon (New York time) on such day or (ii) on
the next Business Day if such notice is received after 12:00 Noon (New York
City time) on the date of receipt, in each case together with interest on such
amount for each day from and including the relevant LC Payment Date to but
excluding the day such payment is due from such RL Lender at the Federal Funds
Rate for such day. Upon payment in full thereof, such RL Lender shall be
subrogated to the rights of such LC Issuing Bank against the Borrower to the
extent of such RL Lender's RL Percentage of the related LC Reimbursement
Obligation (including interest accrued thereon).
(B) If any RL Lender fails to pay when due any amount to be paid by it
pursuant to clause (A) of this subsection, interest shall accrue on such RL
Lender's obligation to make such payment, for each day from and including the
date such payment became due to but excluding the date such RL Lender makes
such payment, at a rate per annum equal to (x) for each day from the day such
payment is due to the third (3rd) succeeding Business Day, inclusive, the
Federal Funds Rate for such day and (y) for each day thereafter the sum of 2%
plus the Applicable Base Rate Margin for Revolving Loans plus the Base Rate for
such day.
(C) If the Borrower shall reimburse any LC Issuing Bank for any drawing
with respect to which any RL Lender shall have made funds available to such LC
Issuing Bank in accordance with clause (A) of this subsection, such LC Issuing
Bank shall promptly upon receipt of such reimbursement distribute to such RL
Lender its RL Percentage thereof, including interest, in Dollars to the extent
received by such LC Issuing Bank.
(j) Exculpatory Provisions. The obligations of the Borrower and the RL
Lenders under this Section shall be absolute and unconditional under any and
all circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower or any RL Lender may have or have had against any LC
Issuing Bank, any RL Lender, any beneficiary of any Letter of Credit, the Agent
or any other Person. The Borrower assumes all risks of the acts or omissions of
any beneficiary of any Letter of Credit with respect to the use of such Letter
of Credit by such beneficiary. None of the LC Issuing Banks, the RL Lenders,
the Agent and their respective officers, directors, employees and agents shall
be responsible for, and the obligations of each RL Lender to make payments to
each LC Issuing Bank and of the Borrower to reimburse each LC Issuing Bank for
drawings pursuant to this Section (other than obligations resulting solely from
the gross negligence or willful misconduct of the relevant LC Issuing Bank)
shall not be excused or affected by, among other things, (i) the use which may
be made of any Letter of Credit or any acts or omissions of any beneficiary or
transferee in connection therewith; (ii) the validity, sufficiency or
genuineness of documents presented under any Letter of Credit or of any
endorsements thereon, even if such documents should in fact prove to be in any
or all respects invalid, insufficient, fraudulent or forged; (iii) payment by
any LC Issuing Bank against presentation of documents to it which do not comply
with the terms of the relevant Letter of Credit; or (iv) any dispute between or
among the Borrower, any beneficiary of any Letter of Credit or any other Person
or any claims or defenses whatsoever of the Borrower or any other Person
against any beneficiary of any Letter of Credit. No LC Issuing Bank shall be
liable for any error,
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omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of
Credit. Any action taken or omitted by the Agent, any LC Issuing Bank or any RL
Lender in connection with any Letter of Credit and the related drafts and
documents, if done without willful misconduct or gross negligence, shall be
binding on the Borrower and shall not place the Agent, any LC Issuing Bank or
any RL Lender under any liability to the Borrower.
(k) Indemnification by Borrower. The Borrower agrees to indemnify and hold
harmless each RL Lender, each LC Issuing Bank and the Agent (collectively, the
"LC Indemnitees") from and against any and all claims, damages, losses,
liabilities, costs or expenses (including, without limitation, the reasonable
fees and disbursements of counsel) which such LC Indemnitee may reasonably
incur (or which may be claimed against such LC Indemnitee by any Person
whatsoever) by reason of or in connection with any execution and delivery or
transfer of or payment or failure to pay under any Letter of Credit or any
actual or proposed use of any Letter of Credit, including any claims, damages,
losses, liabilities, costs or expenses which any LC Issuing Bank may incur by
reason of any RL Lender's failure to comply with its obligations to such LC
Issuing Bank hereunder in connection with any Letter of Credit (but nothing
herein contained shall affect any rights the Borrower may have against such
defaulting RL Lender); provided that the Borrower shall not be required to
indemnify any LC Issuing Bank for any claims, damages, losses, liabilities,
costs or expenses to the extent, but only to the extent, caused by (i) the
willful misconduct or gross negligence of such LC Issuing Bank in determining
whether a request presented under any Letter of Credit issued by it complied
with the terms of such Letter of Credit or (ii) such LC Issuing Bank's failure
to pay under any Letter of Credit issued by it after the presentation to it of
a request strictly complying with the terms and conditions of such Letter of
Credit. Nothing in this subsection is intended to limit the obligations of the
Borrower under any other provision of this Section.
(l) Indemnification by RL Lenders. The RL Lenders shall, ratably in
proportion to their RL Percentages, indemnify each LC Issuing Bank (to the
extent not reimbursed by the Borrower) against any claims, damages, losses,
liabilities, reasonable costs and reasonable expenses (including, without
limitation, reasonable fees and disbursements of counsel) that any such
indemnitee may suffer or incur in connection with this Section or any action
taken or omitted by such indemnitee under this Section; provided that the RL
Lenders shall not be required to indemnify any LC Issuing Bank for any such
claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, caused by (i) its own gross negligence or willful misconduct,
(ii) its failure to pay under any Letter of Credit issued by it after the
presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit or (iii) its liabilities under any Letter
of Credit issued by it in contravention of subsection (c)(iii) of this Section
or extended by it in contravention of clause (y) of the last sentence of
subsection (e) of this Section (to the extent that the limitations referred to
therein were in fact exceeded).
(m) Liability for Damages. Nothing in this Section shall preclude the
Borrower or any RL Lender from asserting against any LC Issuing Bank any claim
for direct (but not consequential) damages suffered by the Borrower or such RL
Lender to the extent, but only to the extent, caused by (A) the willful
misconduct or gross negligence of such LC Issuing Bank in determining whether a
request presented under any Letter of Credit issued by it complied with
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the terms thereof or (B) such LC Issuing Bank's failure to pay under any such
Letter of Credit after the presentation to it of a request strictly complying
with the terms and conditions thereof.
(n) Dual Capacities. In its capacity as a Lender, each LC Issuing Bank
shall have the same rights and obligations under this Section as any other
Lender.
(o) Information to be Provided to Agent. The LC Issuing Banks shall
furnish to the Agent upon request such information as the Agent shall
reasonably request in order to calculate (i) the Aggregate LC Exposure existing
from time to time and (ii) the amount of any fee payable for the account of the
Lenders under Section 2.07(b).
ARTICLE III
Conditions
SECTION 3.01. Conditions Precedent to Initial Credit Events. The
obligation of each Lender to make Loans, and the obligation of each LC Issuing
Bank to issue Letters of Credit, on the Initial Borrowing Date, is subject to
the satisfaction of the following conditions:
(a) On or prior to the Initial Borrowing Date, the Effective Date shall
have occurred;
(b) receipt by the Agent, on or prior to the Initial Borrowing Date, (i)
for the account of each of the Lenders the appropriate Tranche A Term Note,
Tranche B Term Note and/or Revolving Note and (ii) of the Swingline Note for
the account of the Swingline Lender, in each case executed by the Borrower and
in the amount, maturity and as otherwise provided herein;
(c) receipt by the Agent of an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel
for the Obligors, substantially in the form of Exhibit B hereto and covering
such additional matters relating to the transactions contemplated hereby as the
Agent may reasonably request;
(d) (i) on the Initial Borrowing Date and contemporaneously with giving
effect to the Loans incurred on the Initial Borrowing Date, the
Recapitalization shall have been consummated in accordance with the
Recapitalization Documents and all applicable laws, and all material conditions
precedent to the consummation of the Recapitalization shall have been satisfied
and not waived, except with the consent of the Agent;
(ii) on the Initial Borrowing Date and contemporaneously with giving
effect to the Recapitalization and the Loans incurred on the Initial Borrowing
Date, the Management Investors shall in the aggregate own at least a 25% direct
or indirect equity interest in the Borrower;
(iii) the Management Investors shall have rolled-over 100% of their
existing direct or indirect equity interests in the Borrower and its
Subsidiaries (including, without limitation, the value of stock options
outstanding immediately prior to the Recapitalization) with
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an aggregate value, when combined with the value of all other roll-over equity
of the Existing Shareholders pursuant to the Recapitalization and the Equity
Payment required by clause (iv) below, of not less than $270,000,000;
(iv) on the Initial Borrowing Date, the Equity Investors shall have made
the Equity Payment;
(v) on the Initial Borrowing Date, Tekni-Plex Partners LLC shall have
contractual capital call arrangements with certain Equity Investors previously
disclosed to the Agent, giving Tekni-Plex Partners LLC the right to require
such investors to invest at least an aggregate of $85 million in cash for
additional membership interests in Tekni-Plex Partners LLC on terms and
pursuant to documentation reasonably satisfactory to the Agent;
(vi) (x) on the Initial Borrowing Date and contemporaneously with giving
effect to the Loans incurred on the Initial Borrowing Date, the total
commitments in respect of the Debt to be Refinanced shall have been terminated,
and all loans with respect thereto shall have been repaid in full, together
with interest thereon, all letters of credit issued thereunder shall have been
terminated and all other amounts (including premiums) owing pursuant to the
Debt to be Refinanced shall have been repaid in full; and
(y) on the Initial Borrowing Date and contemporaneously with giving effect
to the Loans incurred on the Initial Borrowing Date, the creditors in respect
of the Debt to be Refinanced shall have terminated and released all security
interests and Liens on the assets owned by the Obligors; and the Agent shall
have received such releases of security interests in and Liens on the assets
owned by the Obligors as may have been requested by the Agent, which releases
shall be in form and substance reasonably satisfactory to the Agent; without
limiting the foregoing, there shall have been delivered (i) proper termination
statements (Form UCC-3 or the appropriate equivalent) for filing under the UCC
of each jurisdiction where a financing statement (Form UCC-1 or the appropriate
equivalent) was filed with respect to the Obligors in connection with the
security interests created with respect to the Debt to be Refinanced and the
documentation related thereto, (ii) termination or reassignment of any security
interest in, or Lien on, any patents, trademarks, copyrights, or similar
interests of the Obligors on which filings have been made, (iii) terminations
of all mortgages, leasehold mortgages, deeds of trust and leasehold deeds of
trust created with respect to property of the Obligors, in each case, to secure
the obligations in respect of the Debt to be Refinanced, all of which shall be
in form and substance reasonably satisfactory to the Agent, and (iv) all
collateral owned by the Obligors in the possession of any of the creditors in
respect of the Debt to be Refinanced or any collateral agent or trustee under
any related security document shall have been returned to the Obligors;
(vii) on or prior to the Initial Borrowing Date, (i) the Borrower shall
have received gross cash proceeds of $275 million from the issuance of a like
aggregate principal amount of New Senior Subordinated Notes, provided that (x)
in the event that any Existing Senior Subordinated Notes remain outstanding on
the Initial Borrowing Date (after giving effect to the consummation of the
Tender Offer/Consent Solicitations), the aggregate principal amount of New
Senior Subordinated Notes required to be issued pursuant to this Section
3.01(d)(vii) shall be reduced by an amount equal to the amount which would have
been paid to the holders of such
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Existing Senior Subordinated Notes had the same been tendered pursuant to the
Tender Offer/Consent Solicitations, and (y) such amount shall be further
reduced by the amount of any cash proceeds received by the Borrower from the
issuance by the Borrower of Qualified Preferred Stock in connection with the
Transaction, provided further, that any such issuance of Qualified Preferred
Stock shall be on terms and conditions, and subject to documentation,
reasonably satisfactory to the Agent, (ii) the New Senior Subordinated Notes
shall not be secured by any assets of the Borrower or any of its Subsidiaries,
(iii) the Borrower shall have utilized the full amount of the net cash proceeds
received from the issuance of the New Senior Subordinated Notes to make
payments owing in connection with the Transaction prior to or contemporaneously
with utilizing any proceeds of the Loans for such purpose and (iv) the issuance
of the New Senior Subordinated Notes shall have been consummated in accordance
with the terms and conditions of the New Senior Subordinated Note Documents and
all applicable laws and each of the conditions precedent to the issuance
thereof shall have been satisfied and not waived, except with the consent of
the Agent, to the satisfaction of the Agent; provided further, that,
notwithstanding the foregoing provisions of this Section 3.01 (d)(vii), the
Borrower may incur senior subordinated bridge financing in an aggregate
principal amount equal to the amount of New Senior Subordinated Notes otherwise
required to be issued pursuant to this Section 3.01(d)(vii) (the "Bridge
Financing") on the Initial Borrowing Date in lieu of the New Senior
Subordinated Notes, to be subsequently refinanced with the issuance of New
Senior Subordinated Notes and/or Qualified Additional Equity, with such Bridge
Financing to be issued on terms and conditions, and subject to documentation,
reasonably satisfactory to the Agent;
(viii) on or prior to the Initial Borrowing Date (i) the Borrower shall
have consummated a tender offer/consent solicitation with respect to the
outstanding Existing 9 1/4% Senior Subordinated Notes (the "Existing 9 1/4%
Senior Subordinated Notes Tender Offer/Consent Solicitation"), pursuant to
which (1) the Borrower shall offer, subject to the terms and conditions
contained in the Existing 9 1/4% Senior Subordinated Notes Tender Offer
Documents, to purchase all of the outstanding Existing 9 1/4% Senior
Subordinated Notes at the cash price set forth in the Existing 9 1/4% Senior
Subordinated Notes Tender Offer Documents and (2) consents shall be solicited
to a proposed amendment to the Existing 9 1/4% Senior Subordinated Notes
Indenture, on terms and conditions satisfactory to the Agent, which amendment
shall provide for the substantial elimination of the financial and certain
operating covenants contained in the Existing 9 1/4% Senior Subordinated Notes
Indenture (including, without limitation, limitations on the incurrence of
liens, restricted payments, transactions with affiliates and indebtedness);
(ii) all terms and conditions of the Existing 9 1/4% Senior Subordinated Notes
Tender Offer/Consent Solicitation shall be reasonably satisfactory to the
Agent, and the period for tendering Existing 9 1/4% Senior Subordinated Notes
pursuant thereto shall terminate on or prior to the Initial Borrowing Date;
(iii) to the extent any 9 1/4% Senior Subordinated Notes are to remain
outstanding after the Initial Borrowing Date, the Borrower shall have received
sufficient consents to authorize the execution and delivery of the Existing 9
1/4% Senior Subordinated Notes Indenture Supplement and the Borrower and the
trustee under the Existing 9 1/4% Senior Subordinated Notes Indenture shall
have duly executed and delivered the Existing 9 1/4% Senior Subordinated Notes
Indenture Supplement; (iv) the Borrower shall have repurchased or committed to
repurchase the Existing 9 1/4% Senior Subordinated Notes tendered, and not
theretofore withdrawn, pursuant to the Existing 9 1/4% Senior Subordinated
Notes Tender
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Offer/Consent Solicitation (the "Existing 9 1/4% Senior Subordinated Notes
Tender Offer Repurchases"); and (v) the Existing 9 1/4% Senior Subordinated
Notes Tender Offer/Consent Solicitation shall have been consummated in
accordance with the Existing 9 1/4% Senior Subordinated Notes Tender Offer
Documents and all applicable laws;
(ix) on or prior to the Initial Borrowing Date (i) the Borrower shall have
consummated a tender offer/consent solicitation with respect to the outstanding
Existing 11 1/4% Senior Subordinated Notes (the "Existing 11 1/4% Senior
Subordinated Notes Tender Offer/Consent Solicitation"), pursuant to which (1)
the Borrower shall offer, subject to the terms and conditions contained in the
Existing 11 1/4% Senior Subordinated Notes Tender Offer Documents, to purchase
all of the outstanding Existing 11 1/4% Senior Subordinated Notes at the cash
price set forth in the Existing 11 1/4% Senior Subordinated Notes Tender Offer
Documents and (2) consents shall be solicited to a proposed amendment to the
Existing 11 1/4% Senior Subordinated Notes Indenture, on terms and conditions
satisfactory to the Agent, which amendment shall provide for the substantial
elimination of the financial and certain operating covenants contained in the
Existing 11 1/4% Senior Subordinated Notes Indenture (including, without
limitation, limitations on the incurrence of liens, restricted payments,
transactions with affiliates and indebtedness); (ii) all terms and conditions
of the Existing 11 1/4% Senior Subordinated Notes Tender Offer/Consent
Solicitation shall be satisfactory to the Agent, and the period for tendering
Existing 11 1/4% Senior Subordinated Notes pursuant thereto shall terminate on
or prior to the Initial Borrowing Date; (iii) to the extent any 11 1/4% Senior
Subordinated Notes are to remain outstanding after the Initial Borrowing Date,
the Borrower shall have received sufficient consents to authorize the execution
and delivery of the Existing 11 1/4% Senior Subordinated Notes Indenture
Supplement and the Borrower and the trustee under the Existing 11 1/4% Senior
Subordinated Notes Indenture shall have duly executed and delivered the
Existing 11 1/4% Senior Subordinated Notes Indenture Supplement; (iv) the
Borrower shall have repurchased or committed to repurchase the Existing 11 1/4%
Senior Subordinated Notes tendered, and not theretofore withdrawn, pursuant to
the Existing 11 1/4% Senior Subordinated Notes Tender Offer/Consent
Solicitation (the "Existing 11 1/4% Senior Subordinated Notes Tender Offer
Repurchases"); and (v) the Existing 11 1/4% Senior Subordinated Notes Tender
Offer/Consent Solicitation shall have been consummated in accordance with the
Existing 11 1/4% Senior Subordinated Notes Tender Offer Documents and all
applicable laws;
(x) on the Initial Borrowing Date and after giving effect to the
Transaction and the Loans incurred on the Initial Borrowing Date, (A) neither
the Borrower nor any of its Subsidiaries shall have any Debt outstanding except
for (i) Debt created under this Agreement and the other Loan Documents, (ii)
the New Senior Subordinated Notes (or the Bridge Financing, as the case may
be), (iii) the Existing Senior Subordinated Notes (to the extent not tendered
pursuant to the Tender Offer/Consent Solicitations), (iv) approximately
$7,500,000 of existing foreign debt and (v) such other Debt, if any, as shall
be permitted to remain outstanding by the Agent and is permitted pursuant to
Section 5.10 and (B) after giving effect to the Transaction and the other
transactions contemplated hereby there shall be no default or events of default
existing under the Existing Senior Subordinated Notes and the New Senior
Subordinated Notes (or the Bridge Financing, as the case may be) or arising as
a result of the Transaction and the other transactions contemplated hereby; and
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(xi) on or prior to the Initial Borrowing Date, there shall have been
delivered to the Agent true and correct copies of the Documents and all of the
terms and conditions of the Documents, as well as the structure of the
Transaction (including the corporate and capital structure of the Borrower and
its Subsidiaries after giving effect to the Transaction), shall be in form and
substance reasonably satisfactory to the Agent;
(e) receipt by the Agent of duly executed counterparts of each of the
Collateral Documents, together with (i) evidence satisfactory to the Agent of
the effectiveness and perfection (to the extent required thereby) of the Liens
contemplated thereby (including the filing of UCC-1's or the appropriate local
equivalent in each jurisdiction as may be necessary to perfect the security
interests created by the Collateral Documents and the delivery of any
promissory notes (duly endorsed in blank) and stock certificates (accompanied
by duly executed and undated stock powers) comprising the Collateral) or, with
respect to the Mortgages, arrangements satisfactory to the Agent for the prompt
recording thereof; (ii) opinions of local counsel and other counsel to the
Obligors and/or the Agent satisfactory to the Agent, which opinions shall cover
such matters incident to the transactions contemplated herein and in the other
Loan Documents as the Agent may reasonably request and shall be in form and
substance reasonably satisfactory to the Agent; (iii) with respect to each
property subject to a Mortgage, policies of title insurance (or irrevocable and
binding commitments, dated and recertified as of the Initial Borrowing Date, to
issue such policies), on forms issued by the American Land Title Association
and otherwise in form and substance reasonably satisfactory to the Agent and
issued by such title insurance company or companies as are acceptable to the
Agent, with all premiums, expenses and fees paid or caused to be paid by the
Borrower, insuring (or committing to insure) the Liens created under each
Mortgage, in such amounts as the Agent shall request, subject only to Liens
permitted under the Loan Documents, containing such endorsements and
affirmative assurances as are satisfactory to the Agent, and reinsured in
amounts and under reinsurance agreements in form and substance satisfactory to
the Agent, and (iv) such estoppel letters, landlord waiver letters,
non-disturbance letters and similar assurances as may have been requested by
the Agent, which letters shall be in form and substance reasonably satisfactory
to the Agent;
(f) receipt by the Agent of evidence satisfactory to it of the insurance
coverage required by Section 5.03 and the Collateral Documents;
(g) receipt by the Agent of a certificate substantially in the form of
Exhibit G hereto of the chief operating officer or other senior financial
officer of the Borrower, setting forth the conclusions that, after giving
effect to the Transaction and the incurrence of all the financing contemplated
herein, the Borrower and its Subsidiaries, taken as a whole, are not insolvent
and will not be rendered insolvent by the indebtedness incurred in connection
with the Transaction, and will not be left with unreasonably small capital with
which to engage in their businesses and will not have incurred debts beyond
their ability to pay such debts as they mature;
(h) receipt by the Agent of all documents the Agent may reasonably request
relating to the existence of the Obligors, the corporate authority for and the
validity of the Documents, and any other matters relevant hereto (including,
without limitation, a certificate of incumbency of officers signing any Loan
Documents), all in form and substance satisfactory to the Agent;
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(i) receipt by the Agent of payment in full of all costs,
fees, expenses (including, without limitation, reasonable legal fees and
expenses, title premiums, survey charges and recording taxes and fees) and
other amounts payable for the account of the Lenders or the Agent in the
amounts previously agreed upon to be payable on or before the Initial Borrowing
Date;
(j) there shall not be pending or, to the best of the Borrower's
knowledge, threatened, any action, suit or other proceeding (1) with respect to
which, in the judgment of the Agent, there is a reasonable possibility of a
decision which could reasonably be expected to have a Material Adverse Effect
or (2) which, in the judgment of the Agent, in any manner draws into question
the validity or enforceability of the Loan Documents;
(k) receipt by the Agent and the Banks of (1) satisfactory quarterly
consolidated financial statements for the Borrower and its Subsidiaries
commencing with the Fiscal Quarter ending September 30, 1999, to and including
the Fiscal Quarter most recently ended on or prior to the Initial Borrowing
Date and (2) a pro forma consolidated balance sheet and consolidated statement
of operations of the Borrower and its Consolidated Subsidiaries, which pro
forma financial statements shall be satisfactory to the Agent and demonstrate
that the Borrower is in compliance with the covenants contained in Sections
5.11 to 5.13, inclusive, after giving effect to the Transaction and all
Borrowings and issuances of Letters of Credit on the Initial Borrowing Date;
(l) nothing shall have occurred (and the Agent shall not have become aware
of any facts or conditions not previously known to it) which the Agent shall
reasonably determine has had, or could reasonably be expected to have, a
Material Adverse Effect;
(m) on or prior to the Initial Borrowing Date, all necessary governmental
(domestic and foreign) and third party approvals and/or consents in connection
with the Transaction and the other transactions contemplated by the Loan
Documents and otherwise referred to herein or therein shall have been obtained
and remain in effect (other than immaterial approvals and/or consents with
respect to the Recapitalization), and all applicable waiting periods with
respect thereto shall have expired without any action being taken by any
competent authority which restrains, prevents or imposes materially adverse
conditions upon, the consummation of the Transaction or the other transactions
contemplated by the Loan Documents or otherwise referred to herein or therein;
and 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
the Transaction or the other transactions contemplated by the Loan Documents.
SECTION 3.02. Conditions Precedent to All Credit Events. The obligation of
each Lender to make a Loan (including the Loans made on the Initial Borrowing
Date, but excluding Mandatory Borrowings to be made thereafter, which shall be
made as provided in Section 2.01(e)) on the occasion of any Borrowing, and the
obligation of any LC Issuing Bank to issue (or extend or allow an extension of
the expiry date of) any Letter of Credit, are each subject to the satisfaction
of the following conditions:
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(a) receipt by the Agent of a Notice of Borrowing as required by Section
2.03, or receipt by the relevant LC Issuing Bank of a notice of proposed
issuance or extension as required by Section 2.16(b) or 2.16(e), as the case
may be;
(b) immediately after such Credit Event, the sum of (i) the aggregate
principal amount of Revolving Loans and Swingline Loans then outstanding plus
(ii) the Aggregate LC Exposure, will not exceed the Total Revolving Loan
Commitment;
(c) immediately before and after such Credit Event, no Default shall have
occurred and be continuing; and
(d) the representations and warranties of the Obligors contained in this
Agreement and the other Loan Documents shall be true and correct in all
material respects on and as of the date of such Credit Event as though such
representations and warranties had been made on the date of such Credit Event,
unless such representations and warranties relate to a specific earlier date in
which case such representations and warranties shall be true and correct in all
material respects as of such earlier date.
The occurrence of each Credit Event shall be deemed to be a representation and
warranty by the Borrower on the date of such Credit Event as to the facts
specified in clauses (b), (c) and (d) of this Section and by each Obligor, with
respect to itself only, as to the facts specified in clause (d) of this Section
3.02.
ARTICLE IV
Representations and Warranties
The Borrower represents and warrants, and each Guarantor represents and
warrants (in the case of each Guarantor, with respect to itself only, as to the
matters set forth in Section 4.12), that:
SECTION 4.01. Corporate Existence and Power. The Borrower is a corporation
duly incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has all corporate powers and all
material governmental licenses, consents, authorizations and approvals required
to carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by the Borrower of the Loan Documents
to which it is a party are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, and require no action by or
in respect of, or filing with, any governmental body, agency or official (other
than filings which have been made on or prior to the Initial Borrowing Date and
other than UCC-1 financing statements and Mortgage recordings which will be
filed upon the occurrence of the Initial Borrowing Date (in which case, if this
representation and warranty is being made more than 15 days after the Initial
Borrowing Date, all such filings or recordings have been made)). The execution,
delivery and performance by the Borrower of the Loan Documents to which it is a
party do not (i) contravene any provision of applicable law or
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regulation or of the Borrower's certificate of incorporation or by-laws, (ii)
contravene, or constitute a default under, any agreement, judgment, injunction,
order, decree or other instrument binding upon the Borrower or any Subsidiary,
the consequences of which contravention or default, singly or in the aggregate,
could reasonably be expected to have a Material Adverse Effect, or (iii) except
as contemplated by the Collateral Documents, result in the creation or
imposition of any Lien on any asset of the Borrower or any Subsidiary.
SECTION 4.03. Binding Effect. The Borrower has duly executed and delivered
each of the Loan Documents to which it is a party and each of the Loan
Documents (other than the Notes) to which the Borrower is a party constitutes a
valid and binding agreement of the Borrower and each Note constitutes a valid
and binding obligation of the Borrower, in each case enforceable in accordance
with its terms except (i) as may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally, (ii) as rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability, and (iii) as limited by legal or
equitable principles of reasonableness, good faith and fair dealing.
SECTION 4.04. Financial Information. (a) The consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of July 2, 1999 and the
related consolidated statements of operations, cash flows and stockholders'
equity for the Fiscal Year then ended, reported on by BDO Xxxxxxx, LLP, a copy
of which has been delivered to each of the Lenders, fairly present, in all
material respects, in conformity with GAAP, the consolidated financial position
of the Borrower and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such Fiscal Year.
(b) The unaudited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of March 31, 2000 and the related unaudited
consolidated statements of operations, cash flows and stockholders' equity for
the nine months then ended, a copy of which has been delivered to the Lenders,
fairly present, in all material respects, in conformity with GAAP, the
consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and
cash flows for such nine-month period.
(c) Since July 2, 1999 there has occurred no Material Adverse Effect.
SECTION 4.05. Litigation. There is no action, suit or proceeding pending
against, or to the best of the Borrower's knowledge threatened against or
affecting, the Borrower or any Subsidiary before any court or arbitrator or any
governmental body, agency or official (i) in which there is a reasonable
possibility of an adverse decision which could have a Material Adverse Effect
or (ii) which in any manner draws into question the validity or enforceability
of the Loan Documents.
SECTION 4.06. Compliance with ERISA. (a) Each member of ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect to
each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Code in respect of any Plan, (ii)
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failed to make any contribution or payment to any Plan or Multiemployer Plan,
or made any amendment to any Plan, which has resulted or could reasonably be
expected to result in the imposition of a Lien or the posting of a bond or
other security under ERISA or the Code or (iii) incurred any liability under
Title IV of ERISA other than a liability to the PBGC for premiums under Section
4007 of ERISA.
SECTION 4.07. Environmental Compliance. (a) Except (x) to the extent
addressed by prior remediation activities by the Borrower and its Subsidiaries
or by third parties pursuant to contractual obligations or (y) to the extent
that the Environmental Liabilities of the Borrower and its Subsidiaries, taken
as a whole, that relate to or can reasonably be expected to result from the
matters referred to in clauses (i) through (vii), would not exceed $10,000,000
for any individual issue arising at or relating to a particular facility, or
$25,000,000 in the aggregate:
(i) no notice, notification, demand, request for information,
citation, summons, complaint or order has been received, no complaint
has been served, no penalty has been assessed and, to the best of the
Borrower's knowledge, no investigation or review is pending or
threatened by any governmental or other entity with respect to any (A)
alleged violation by the Borrower or any Subsidiary of any
Environmental Law, (B) alleged failure by the Borrower or any
Subsidiary to have any environmental permit, certificate, license,
approval, registration or authorization required in connection with
the conduct of its business, (C) Regulated Activity or (D) Release of
Hazardous Substances;
(ii) other than Regulated Activity undertaken in compliance
with all applicable Environmental Laws, (A) neither the Borrower nor
any Subsidiary has engaged in any Regulated Activity and (B) no
Regulated Activity has occurred at or on any property now or
previously owned, leased or operated by the Borrower or any Subsidiary
during the period of such ownership, lease or operation by the
Borrower or any Subsidiary;
(iii) to the best of the Borrower's knowledge, no
polychlorinated biphenyls, radioactive material, urea formaldehyde,
lead, asbestos, asbestos-containing material or underground storage
tank (active or abandoned) is or has been present at any property now
or previously owned, leased or operated by the Borrower or any
Subsidiary during the period of such ownership, lease or operation by
the Borrower or any Subsidiary;
(iv) no Hazardous Substance has been Released (and no written
notification of such Release has been filed) or is present (whether or
not in a reportable or threshold planning quantity) at, on or under
any property now or previously owned, leased or operated by the
Borrower or any Subsidiary during the period of such ownership, lease
or operation by the Borrower or any Subsidiary;
(v) to the best of the Borrower's knowledge, no property now
or previously owned, leased or operated by the Borrower or any
Subsidiary or any property to which the Borrower or any Subsidiary
has, directly or indirectly, transported or arranged for the
transportation of any Hazardous Substances, is listed or, to the best
of the Borrower's knowledge, proposed for listing, on the National
Priorities List promulgated pursuant to CERCLA, on CERCLIS (as defined
in CERCLA) or on any similar federal, state or foreign list of sites
requiring investigation or clean-up;
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(vi) there are no liens under Environmental Laws on any of the
real property or other assets owned or leased by the Borrower or any
Subsidiary, to the best of the Borrower's knowledge no government
actions have been taken or are in process which could subject any of
such properties or assets to such liens, and neither the Borrower nor
any Subsidiary would be required to place any notice or restriction
relating to Hazardous Substances at any property owned by it in any
deed to such property; and
(vii) there has been no environmental investigation, study,
audit, test, review or other analysis conducted of which the Borrower
has knowledge in relation to the current or prior business of the
Borrower or any property or facility now or previously owned, leased
or operated by the Borrower or any Subsidiary, access to which has not
been provided to the Lenders at least five (5) days prior to the date
hereof.
(b) For purposes of this Section, the terms "Borrower" and "Subsidiary"
shall include any business or business entity (including a corporation) which
is a predecessor, in whole or in part, of the Borrower or any Subsidiary.
SECTION 4.08. Taxes. The Borrower and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes and assessments
payable by it which have become due pursuant to such returns or pursuant to any
material assessment received by the Borrower or any Subsidiary, except any such
taxes or charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves have been provided for
on the financial statements of the Borrower and its Subsidiaries to the extent
required by and in accordance with GAAP.
SECTION 4.09. Subsidiaries. (a) Each of the Borrower's Subsidiaries is a
corporation or other legal entity duly incorporated or organized, validly
existing and, except as set forth in Schedule 6, in good standing under the
laws of its jurisdiction of organization, and has all corporate or other
organizational powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
(b) Schedule 3 lists all of the Subsidiaries of the Borrower as of the
Initial Borrowing Date (after giving effect to the consummation of the
Transaction), and identifies each De Minimis Subsidiary. Each Domestic
Subsidiary of the Borrower is a Guarantor, and each Guarantor is a direct or
indirect Subsidiary of the Borrower.
SECTION 4.10. No Regulatory Restrictions on Borrowing. The Borrower is not
(i) an "investment company" within the meaning of the Investment Company Act of
1940, as amended, (ii) a "holding company" or a "subsidiary company" of a
holding company within the meaning of the Public Utility Holding Company Act of
1935, as amended, or (iii) otherwise subject to any regulatory scheme which
restricts its ability to incur debt.
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SECTION 4.11. Full Disclosure. (a) All information heretofore furnished by
the Borrower to the Agent or any Lender for purposes of or in connection with
this Agreement or any transaction contemplated hereby is, and all such
information hereafter furnished by the Borrower to the Agent or any Lender will
be, to the best of the Borrower's knowledge, true and accurate in all material
respects on the date as of which such information is stated or certified and
not incomplete by omitting to state any fact necessary to make such information
not misleading in any material respect at such time in light of the
circumstances under which such information was provided. The Borrower has, to
the best of the Borrower's knowledge, disclosed to the Lenders in writing any
and all facts which materially and adversely affect, or may affect (to the
extent the Borrower can now reasonably foresee), the business, operations or
financial condition of the Borrower and its Consolidated Subsidiaries, taken as
a whole, or the Obligors' ability to perform their obligations under the Loan
Documents.
(b) The projected financial statements set forth in the Information
Memorandum were based on assumptions believed by the Borrower to be reasonable
as of their date and as of their date represented the reasonable best estimate
of future performance of the Borrower and its Subsidiaries. During the period
from the respective dates as of which information is stated in the Information
Memorandum to and including the Initial Borrowing Date, to the best of the
Borrower's knowledge, no event has occurred and no condition has come into
existence which would have caused the projected financial statements therein to
be materially misleading.
SECTION 4.12. Representations of Guarantors. Each Guarantor is a
corporation duly incorporated, validly existing and, except as set forth in
Schedule 6, in good standing under the laws of the jurisdiction of its
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted. The execution, delivery and performance by each
Guarantor of the Loan Documents to which it is a party are within such
Guarantor's corporate powers, have been duly authorized by all necessary
corporate action, and require no action by or in respect of, or filing with,
any governmental body, agency or official (other than filings which have been
made on or prior to the Initial Borrowing Date and other than UCC-1 financing
statements and Mortgage recordings which will be filed upon the occurrence of
the Initial Borrowing Date (in which case, if this representation is being made
more than 15 days after the Initial Borrowing Date, all such filings or
recordings have been made)). The execution, delivery and performance by the
Obligors of the Loan Documents to which they are parties do not (i) contravene
any provision of applicable law or regulation or of the certificate of
incorporation or by-laws of such Guarantor, (ii) contravene, or constitute a
default under, any agreement, judgment, injunction, order, decree or other
instrument binding upon such Guarantor the consequences of which contravention
or default, singly or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or (iii) except as contemplated by the Collateral
Documents, result in the creation or imposition of any Lien on any asset of
such Guarantor. Each Guarantor has duly executed and delivered each of the Loan
Documents to which it is a party and the Loan Documents to which each Guarantor
is a party constitute valid and binding agreements of such Guarantor, in each
case enforceable against such Guarantor in accordance with their respective
terms except (i) as may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally, (ii) as rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability, and (iii) as may be limited by legal or equitable
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principles of reasonableness, good faith and fair dealing. Each of the
representations and warranties of each Guarantor contained in the Loan
Documents (other than this Agreement) to which such Guarantor is a party is
true and correct.
SECTION 4.13. Intellectual Property. The Borrower and each of its
Subsidiaries owns, possesses or holds under valid licenses all patents,
trademarks, service marks, trade names, copyrights, licenses and other
intellectual property rights that are necessary for the operation of their
respective properties and businesses, and neither the Borrower nor any of its
Subsidiaries is in violation of any provision thereof. Neither the Borrower nor
its Subsidiaries has received actual notice of, or knows of any valid basis
for, any claim of infringement of any material license, patent, trademark,
trade name, service xxxx, copyright, trade secret or any other intellectual
property right of others, and, to the best knowledge of the Borrower, there is
no infringement or claim of infringement by others of any material license,
patent, trademark, trade name, service xxxx, copyright, trade secret or other
intellectual property right of the Borrower and its Subsidiaries.
SECTION 4.14. Solvency. Subject to Section 9.07 hereof, except as set
forth in Schedule 6, as of the Initial Borrowing Date after giving effect to
the transactions contemplated hereby to occur on the Initial Borrowing Date,
and at all times thereafter: (i) the aggregate fair market value of the assets
of the Borrower and each Guarantor will exceed its respective liabilities
(including contingent, subordinated, unmatured and unliquidated liabilities),
(ii) the Borrower and each Guarantor will have sufficient cash flow to enable
it to pay its respective debts as they mature and (iii) neither the Borrower
nor any Guarantor will have unreasonably small capital for the business in
which it is engaged.
SECTION 4.15. Labor Relations. Neither the Borrower 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 unfair labor
practice complaint pending against the Borrower or any of its Subsidiaries or,
to the best knowledge of the Borrower, threatened against any of them, before
the National Labor Relations Board, and no grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against the Borrower or any of its Subsidiaries or, to the best knowledge of
the Borrower, threatened against any of them, (ii) no strike, labor dispute,
slowdown or stoppage pending against the Borrower or any of its Subsidiaries
or, to the best knowledge of the Borrower, threatened against the Borrower or
any of its Subsidiaries and (iii) no union representation question existing
with respect to the employees of the Borrower 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.
SECTION 4.16. Subordinated Notes; etc. All Obligations hereunder and under
the other Loan Documents are within the definitions of "Senior Debt" and
"Designated Senior Debt," as the case may be, included in such provisions of
the Existing 9 1/4% Senior Subordinated Note Indenture, the Existing 11 1/4%
Senior Subordinated Note Indenture and the New Senior Subordinated Notes
Indenture (or the Bridge Financing, as the case may be). This Agreement
constitutes the "Credit Agreement" under, and as defined in, each of the
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Existing 9 1/4% Senior Subordinated Note Indenture, the Existing 11 1/4% Senior
Subordinated Note Indenture, the New Senior Subordinated Notes Indenture and,
if applicable, the Bridge Financing Documents.
ARTICLE V
Covenants
The Borrower hereby covenants and agrees that, on and after the Effective
Date and until the Total Commitment and all Letters of Credit have terminated
and the Loans, Notes and LC Reimbursement Obligations, together with interest,
fees and all other Obligations (other than indemnities for which no claim for
payment has been made) incurred hereunder and under the other Loan Documents,
are paid in full:
SECTION 5.01. Information. The Borrower will deliver to each of the
Lenders:
(a) as soon as available and in any event within 90 days
after the end of each Fiscal Year, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such
Fiscal Year and the related consolidated statements of operations,
cash flows and stockholders' equity for such Fiscal Year, setting
forth in each case in comparative form the figures for the previous
Fiscal Year, all audited and reported on in a manner which would be
acceptable to the SEC by BDO Xxxxxxx, LLP or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 45 days
after the end of each of the first three Fiscal Quarters of each
Fiscal Year, a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such Fiscal Quarter, the
related consolidated statement of operations for such Fiscal Quarter
and the related consolidated statements of cash flows for the portion
of the Fiscal Year ended at the end of such Fiscal Quarter, setting
forth in the case of each such statement of cash flows in comparative
form the figures for the corresponding period in the previous Fiscal
Year, all certified (subject to normal year-end adjustments) as to
fairness of presentation and consistency with GAAP by the Borrower's
chief executive officer or chief accounting officer;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above (or any
certificate establishing the Leverage Ratio as described in the
definition of Applicable Period), a certificate of the Borrower's
chief executive officer or chief accounting officer (i) setting forth
in reasonable detail the calculations required to establish whether
the Borrower was in compliance with the requirements of Sections 2.10
and 5.09 through 5.15, inclusive, on the date of such financial
statements, (ii) stating whether any Default exists on the date of
such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Borrower is taking or
proposes to take with respect thereto and (iii) in respect of the
delivery of the financial statements set forth in clause (a) above,
setting forth the amount of, and calculations required to establish
the amount of, Excess Cash Flow;
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(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i)
stating whether anything has come to their attention to cause them to
believe that any Default existed on the date of such statements, and
(ii) confirming the calculations set forth in the officer's
certificate delivered simultaneously therewith pursuant to clause (c)
above;
(e) within five (5) Business Days after any officer of the
Borrower obtains knowledge of any Default, if such Default is then
continuing, a certificate of the Borrower's chief executive officer or
chief accounting officer setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect
thereto;
(f) as soon as reasonably practicable after any officer of
the Borrower obtains knowledge thereof, notice of any event or
condition (including, without limitation, any litigation, governmental
investigation or other proceeding) which has had or threatens to have
a Material Adverse Effect and the nature of such Material Adverse
Effect;
(g) promptly after the mailing thereof to the Borrower's
shareholders, copies of all financial statements, reports and proxy
statements so mailed;
(h) promptly after the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) filed by the Borrower
with the SEC;
(i) promptly, if and when any member of the ERISA Group (i)
gives or is required to give notice to the PBGC of any "reportable
event" (as defined in Section 4043 of ERISA) with respect to any Plan
which might reasonably constitute grounds for a termination of such
Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given
or required to be given to the PBGC; (ii) receives notice of complete
or partial withdrawal liability under Title IV of ERISA or notice that
any Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate, impose liability
(other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer any Plan, a copy of such notice;
(iv) applies for a waiver of the minimum funding standard under
Section 412 of the Code, a copy of such application; (v) gives notice
of intent to terminate any Plan under Section 4041 of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives
notice of withdrawal from any Plan pursuant to Section 4063 of ERISA,
a copy of such notice or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or makes any amendment
to any Plan which has resulted or could reasonably result in the
imposition of a Lien or the posting of a bond or other security, a
certificate of the Borrower's chief executive officer or chief
accounting officer setting forth details as to such occurrence and the
action, if any, which the Borrower or applicable member of the ERISA
Group is required or proposes to take ( a "Reporting Certificate");
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(j) promptly, upon receipt of any complaint, order, citation,
notice or other written communication from any Person with respect to,
or upon the Borrower's obtaining knowledge of, (i) the existence or
alleged existence of a violation of any applicable Environmental Law
or any Environmental Liability in connection with any property now or
previously owned, leased or operated by the Borrower or any of its
Subsidiaries, (ii) any Release of any Hazardous Substance on such
property or any part thereof in a quantity that is reportable under
any applicable Environmental Law, and (iii) any pending or threatened
proceeding for the termination, suspension or non-renewal of any
permit required under any applicable Environmental Law, in each case
(x) which could result in liability or expenses in excess of
$10,000,000 for any individual issue arising at or relating to a
particular facility, or $25,000,000 in the aggregate or (y) which
individually or in the aggregate could have a Material Adverse Effect;
and
(k) from time to time such additional information regarding
the financial position or business of the Borrower and its
Subsidiaries (including, without limitation, any Guarantor) as the
Agent, at the request of any Lender, may reasonably request.
SECTION 5.02. Payment of Obligations. The Borrower will pay and discharge,
and will cause each Subsidiary to pay and discharge, at or before maturity, all
of their respective material obligations and liabilities (including, without
limitation, tax liabilities and claims of materialmen, warehousemen and the
like which if unpaid might by law give rise to a Lien other than inchoate
statutory liens in respect of obligations not yet due and payable), except
where the same are contested in good faith by appropriate proceedings, and will
maintain, and will cause each Subsidiary to maintain, in accordance with GAAP,
any appropriate reserves for the accrual thereof.
SECTION 5.03. Maintenance of Property; Insurance. (a) The Borrower will
keep, and will cause each Subsidiary to keep, all material property useful and
necessary in its business in good working order and condition, ordinary wear
and tear excepted.
(b) The Borrower will, and will cause each Subsidiary to, maintain (either
in the Borrower's name or in such Subsidiary's own name) with financially sound
and responsible insurance companies, insurance on all their respective
properties in at least such amounts, against at least such risks and with no
greater risk retention as are usually maintained, insured against or retained,
as the case may be, in the same general area by companies of established repute
engaged in the same or a similar business. The Borrower will furnish to the
Lenders, upon request from the Agent, information presented in reasonable
detail as to the insurance so carried.
SECTION 5.04. Conduct of Business and Maintenance of Existence. The
Borrower and its Subsidiaries will engage in business activities involving the
manufacture and distribution of packaging products and materials, plastics
products and materials, specialty chemicals, other disposable products, and
related materials and related businesses, and will preserve, renew and keep in
full force and effect their respective corporate existences and their
respective rights, privileges and franchises necessary or desirable in the
normal conduct of business; provided that nothing in this Section shall
prohibit:
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(i) the merger of a Subsidiary into the Borrower, with the
Borrower being the corporation surviving such merger if, after giving
effect thereto, no Default shall have occurred and be continuing;
(ii) the merger or consolidation of a Subsidiary with or into
a Person other than the Borrower if the corporation surviving such
consolidation or merger is a Subsidiary and, after giving effect
thereto, no Default shall have occurred and be continuing; provided
that if any Person subject to such merger or consolidation is a
Guarantor, the surviving corporation of such merger or consolidation
shall be a Guarantor;
(iii) the merger or consolidation of the Borrower with or into
any other Person if the corporation surviving such consolidation or
merger is the Borrower and, after giving effect thereto, no Default
shall have occurred and be continuing;
(iv) the termination of the corporate existence of a
Subsidiary if the Borrower in good faith determines that such
termination is in the best interest of the Borrower and is not
materially disadvantageous to the Lenders; or
(v) sales permitted by Section 5.07(b).
The Borrower will not, and will not permit any of its Subsidiaries to,
engage in any line or lines of business activity other than those engaged in on
the Initial Borrowing Date and any other line or lines of business activity
involving the manufacture and distribution of packaging products and materials,
plastics products and materials, specialty chemicals, other disposable
products, and related materials and related businesses.
SECTION 5.05. Compliance with Laws. The Borrower will comply, and will
cause each Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, orders and requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA and
the rules and regulations thereunder), except where the necessity or manner of
compliance therewith is contested in good faith by appropriate proceedings.
SECTION 5.06. Inspection of Property, Books and Records. The Borrower will
keep, and will cause each Subsidiary to keep, proper books of record and
account in which full and correct entries shall be made of all dealings and
transactions in relation to its business and activities; and will permit, and
will cause each Subsidiary to permit, representatives of any Lender at such
Lender's expense to visit and inspect any of their respective properties, to
examine and make abstracts from any of their respective books and records and
to discuss their respective affairs, finances and accounts with their
respective officers, employees and independent public accountants, all at such
reasonable times and as often as may reasonably be requested.
SECTION 5.07. Mergers and Sales of Assets. (a) The Borrower will not, and
will not permit any Subsidiary to, consolidate or merge with or into any other
Person; provided that (i) mergers expressly permitted pursuant to the
provisions of Section 5.04 shall be permitted pursuant to this Section 5.07 and
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(ii) any merger of a Subsidiary shall be permitted to the extent such merger
constitutes an Asset Sale permitted by Subsection (b) below.
(b) No Obligor will sell, lease or otherwise transfer, directly or
indirectly, any Collateral or other assets except for (i) dispositions of
inventory, cash, Cash Equivalents and other cash management investments and
obsolete, unused or unnecessary equipment, in each case in the ordinary course
of business, (ii) operating leases of Collateral and/or assets existing on the
Effective Date and additional operating leases of Collateral and/or assets to
the extent such additional leases do not generate revenues in excess of
$2,500,000 in the aggregate for all such leases in any fiscal year of the
Borrower, (iii) dispositions to the Borrower or a Guarantor, (iv) dispositions
from a Foreign Subsidiary to any other Subsidiary, (v) dispositions pursuant to
Restricted Payments permitted pursuant to Section 5.14 and dispositions
permitted pursuant to the provisos to the definition of "Restricted Payment",
(vi) the sale of certain non-strategic assets described to the Lenders prior to
the Effective Date and (vii) Asset Sales not otherwise permitted hereunder,
provided that (x) the aggregate Net Cash Proceeds therefrom shall not exceed
$25,000,000 in any Fiscal Year and $50,000,000 in the aggregate during the term
of this Agreement, (y) any such Asset Sale is for at least 75% (calculated
without giving effect to any assumed liabilities otherwise permitted to be
incurred hereunder) in cash or Cash Equivalents or for assets which constitute
or are part of businesses which are related to the business of the Borrower or
its Subsidiaries permitted pursuant to Section 5.04 or which assets consist of
the issued and outstanding Capital Stock of a person the assets of which are
principally comprised of such assets and at fair market value (as determined in
good faith by the board of directors or any member of senior management of the
Person selling such assets) and (z) the Net Cash Proceeds therefrom are applied
to repay Term Loans as provided in Section 2.10(d) or reinvested or used to
make Permitted Acquisitions to the extent permitted by Section 2.10(d).
SECTION 5.08. Use of Proceeds; Compliance with Margin Regulations. (a) The
proceeds of Term Loans shall be utilized to finance the Transaction and to pay
fees and expenses incurred in connection therewith.
(b) The proceeds of Revolving Loans and Swingline Loans shall be utilized
for the general corporate and working capital purposes of the Borrower and its
Subsidiaries, including, without limitation, payment of amounts owing in
connection with the Transaction.
(c) Neither the making of any Loan hereunder nor the use of the proceeds
thereof, nor the occurrence of any other Credit Event, will violate or be
inconsistent with the provisions of the Margin Regulations. Neither any
proceeds of the Loans nor any Letter of Credit will be used, directly or
indirectly, for the purpose, whether immediate, incidental or ultimate, of
buying or carrying any Margin Stock.
SECTION 5.09. Negative Pledge. Neither the Borrower nor any Subsidiary
will create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except:
(a) any Lien of the Borrower and its Subsidiaries in existence
on the Effective Date and listed on Schedule 4;
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(b) any Lien on any asset securing Debt in an aggregate
principal amount at any time outstanding not to exceed $10,000,000
incurred or assumed for the purpose of financing all or any part of
the cost of acquiring, constructing or improving such asset, provided
that such Lien attaches to such asset concurrently with or within 180
days after the acquisition thereof;
(c) any Lien on any asset of any Person existing at the time
such Person is merged or consolidated with or into the Borrower or a
Subsidiary, or at the time such Person becomes a Subsidiary or at the
time such asset is acquired and not created in contemplation of such
event (and so long as the respective such Lien does not extend to, or
attach to any additional asset, as a result of (or after giving effect
to) the respective merger or consolidation) and if securing Debt, such
Debt is permitted under Section 5.10(b)(y);
(d) any Lien arising out of the refinancing, extension,
renewal or refunding (including successive refinancings, extensions,
renewals or refundings) of any Debt secured by any Lien permitted by
any of the foregoing clauses of this Section, provided that such Debt
is not secured by any additional assets and the principal amount of
such Debt is not increased (except for the amount of any premium
required to be paid pursuant to the terms of such Debt, plus expenses
reasonably incurred by the issuer of such Debt, in connection with
such refinancing, extension, renewal or refunding);
(e) Liens arising in the ordinary course of business which
(i) do not secure Debt or Derivatives Obligations and (ii) do not
secure any single obligation or liability (or class of obligations or
liabilities having a common cause) in an amount exceeding $5,000,000;
(f) Liens created by the Collateral Documents;
(g) Permitted Encumbrances (as defined in the Mortgages) and
those Liens permitted to be contested under Section 2.06 of the
Mortgages;
(h) Liens to secure Debt owed to the Borrower or a Guarantor;
(i) Liens to secure Debt of a Foreign Subsidiary permitted
under Section 5.10(f);
(j) Liens in favor of the trustee under the Existing 11 1/4%
Senior Subordinated Notes Indenture as provided for in the Existing 11
1/4% Senior Subordinated Notes Indenture on money or property held or
collected by such trustee in its capacity as trustee under the
Existing 11 1/4% Senior Subordinated Notes Indenture in connection
with the defeasance or discharge of the Existing 11 1/4% Senior
Subordinated Notes and Liens in favor of the trustee under the
Existing 9 1/4% Senior Subordinated Notes Indenture on money or
property held or collected by such trustee in its capacity as trustee
under the Existing 9 1/4% Senior Subordinated Notes Indenture in
connection with the defeasance or discharge of the Existing 9 1/4%
Senior Subordinated Notes;
(k) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
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appropriate proceedings for which adequate reserves have been
established in accordance with GAAP;
(l) Liens arising out of judgments, decrees or attachments
not exceeding $10,000,000 in the aggregate at any time outstanding
with respect to which the Borrower and/or its Subsidiaries shall in
good faith be prosecuting an appeal or proceedings for review,
provided that no cash or other property shall be pledged by the
Borrower or any Subsidiary as security therefor; and
(m) Liens to secure Debt or other obligations in an aggregate
amount at no time exceeding $1,000,000.
SECTION 5.10. Limitation on Debt. The Borrower will not, and will not
permit any of its Subsidiaries to, incur or at any time be liable with respect
to any Debt except:
(a) Debt under this Agreement;
(b) Debt of a Person (x) secured by Liens permitted by
Section 5.09(b) or (y) existing at the time such Person is merged or
consolidated with or into the Borrower or a Subsidiary, or at the time
such Person becomes a Subsidiary or at the time such asset is
acquired, so long as the principal amount of Debt under this clause
(y) does not exceed $30,000,000 at any time outstanding and was not
incurred in contemplation of such merger, consolidation or asset
acquisition, and any subsequent extensions, renewals or replacements
thereof so long as the principal amount thereof is not increased above
the amount outstanding immediately prior thereto (except for the
amount of any premium required to be paid pursuant to the terms of
such Debt, plus expenses reasonably incurred by the issuer of such
Debt, in connection with such extension, renewal or replacement);
(c) Debt of the Borrower owed to a Guarantor, or Debt of a
Guarantor owed to the Borrower or another Guarantor;
(d) Debt of the Borrower, which may be guaranteed by any
Guarantor on a senior subordinated basis to the extent required by the
terms of the Existing 9 1/4% Senior Subordinated Notes Indenture or
the Existing 11 1/4% Senior Subordinated Notes Indenture, as the case
may be, evidenced by the respective Existing Senior Subordinated
Notes, to the extent such Existing Senior Subordinated Notes were not
tendered pursuant to the Tender Offer/Consent Solicitations, in an
aggregate outstanding principal amount, when combined with the
aggregate outstanding principal amount of the New Senior Subordinated
Notes (or the Bridge Financing, as the case may be) permitted pursuant
to Section 5.10(e), not to exceed $280,000,000 (less the amount of
principal repayments thereof after the Initial Borrowing Date);
(e) Debt of the Borrower, which may be guaranteed by any
Guarantor on a senior subordinated basis by one or more Guarantors to
the extent required by the terms of the New Senior Subordinated Notes
Indenture or any similar indenture described in clause (ii) below,
evidenced by (i) the New Senior Subordinated Notes and/or the Bridge
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Financing, as the case may be, in an aggregate outstanding principal
amount not to exceed, when combined with the aggregate outstanding
principal amount of the Existing Senior Subordinated Notes pursuant to
Section 5.10(d), $280,000,000 (less the amount of principal repayments
thereof after the Initial Borrowing Date); and (ii) agreements and
documents on terms and provisions which are substantially identical to
or more favorable to the Lenders (in the reasonable judgment of the
Agent) than those set forth in the New Senior Subordinated Notes
Documents in an amount not to exceed $100 million (less the amount of
principal repayments thereof after the date of incurrence thereof);
(f) Debt of Foreign Subsidiaries in an aggregate amount not to
exceed $25,000,000;
(g) Debt of the Borrower and its Subsidiaries not otherwise
permitted by this Section 5.10 incurred after the Initial Borrowing
Date in an aggregate principal amount at any time outstanding not to
exceed $15,000,000; provided that the aggregate principal amount of
Debt incurred by all Subsidiaries pursuant to this clause (g) shall
not exceed $7,500,000 at any time outstanding;
(h) the Borrower or any Subsidiary may guaranty Debt and
other obligations of its Domestic Subsidiaries or Foreign Subsidiaries
(which guaranty shall be included as an Investment in such Domestic
Subsidiary or Foreign Subsidiary, as applicable) which are permitted
under the provisions of this Agreement and any Guarantor may guaranty
Debt and other obligations of the Borrower which are permitted under
the provisions of this Agreement;
(i) Debt of a Foreign Subsidiary owed to a Foreign Subsidiary;
(j) Debt outstanding as of the Effective Date and listed on
Schedule 2, plus any subsequent extensions, renewals or replacements
thereof, provided that, after giving effect to any extensions,
renewals or replacements, Debt permitted pursuant to this Section
5.10(j) does not exceed the respective amount listed on Schedule 2 as
of the Effective Date; and
(k) Debt consisting of obligations in respect of performance
and surety bonds and completion guaranties incurred in the ordinary
course of business not to exceed $5,000,000 in aggregate amount at any
time outstanding.
SECTION 5.11. Fixed Charge Coverage Ratio. For any Test Period, in each
case taken as one accounting period, ending on the last day of a Fiscal Quarter
set forth below, the Fixed Charge Coverage Ratio will not be less than the
ratio set forth below opposite such period below:
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Fiscal Quarter Ending Closest to Ratio
-------------------------------- -----
September 2000 1.05:1
December 2000 1.05:1
March 2001 1.05:1
June 2001 1.05:1
September 2001 1.05:1
December 2001 1.05:1
March 2002 1.10:1
June 2002 1.10:1
September 2002 1.15:1
December 2002 1.15:1
March 2003 1.20:1
June 2003 1.20:1
September 2003 1.20:1
December 2003 1.20:1
March 2004 1.25:1
June 2004 1.30:1
September 2004 1.30:1
December 2004 1.30:1
March 2005 1.35:1
June 2005 1.40:1
September 2005 1.40:1
December 2005 1.40:1
March 2006 1.40:1
June 2006 1.40:1
September 2006 1.40:1
December 2006 1.40:1
March 2007 1.40:1
June 2007 1.40:1
September 2007 1.40:1
December 2007 and each Fiscal Quarter 1.40:1
thereafter
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SECTION 5.12. Leverage Ratio. At no time during any period set forth below
shall the Leverage Ratio be greater than the ratio set forth opposite such
period below:
Fiscal Quarter Ending Closest to Ratio
-------------------------------- -----
September 2000 6.50:1
December 2000 6.50:1
March 2001 6.50:1
June 2001 6.25:1
September 2001 6.00:1
December 2001 6.00:1
March 2002 6.00:1
June 2002 5.75:1
September 2002 5.75:1
December 2002 5.75:1
March 2003 5.75:1
June 2003 5.50:1
September 2003 5.50:1
December 2003 5.50:1
March 2004 5.25:1
June 2004 5.00:1
September 2004 5.00:1
December 2004 5.00:1
March 2005 4.75:1
June 2005 4.50:1
September 2005 4.50:1
December 2005 4.50:1
March 2006 4.50:1
June 2006 4.50:1
September 2006 4.50:1
December 2006 4.50:1
March 2007 4.50:1
June 2007 4.50:1
September 2007 4.50:1
December 2007 and each Fiscal Quarter 4.50:1
thereafter
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SECTION 5.13. Minimum Consolidated EBITDA. Consolidated EBITDA for any
Test Period ending on the last day of a Fiscal Quarter set forth below will not
be less than the amount set forth opposite such period below:
Fiscal Quarter Ending Closest to Amount
-------------------------------- ------
September 2000 $98,500,000
December 2000 $100,000,000
March 2001 $102,500,000
June 2001 $105,000,000
September 2001 $107,500,000
December 2001 $110,000,000
March 2002 $112,500,000
June 2002 $115,000,000
September 2002 $117,500,000
December 2002 $117,500,000
March 2003 $120,000,000
June 2003 $122,500,000
September 2003 $122,500,000
December 2003 $122,500,000
March 2004 $125,000,000
June 2004 $125,000,000
September 2004 $125,000,000
December 2004 $125,000,000
March 2005 $125,000,000
June 2005 $125,000,000
September 2005 $125,000,000
December 2005 $125,000,000
March 2006 $125,000,000
June 2006 $125,000,000
September 2006 $125,000,000
December 2006 $125,000,000
March 2007 $125,000,000
June 2007 $125,000,000
September 2007 $125,000,000
December 2007 and each Fiscal Quarter $125,000,000
thereafter
SECTION 5.14. Restricted Payments. Neither the Borrower nor any Subsidiary
will declare or make any Restricted Payment, except that any Subsidiary of the
Borrower (x) may pay cash dividends or other distributions ("Dividends") to the
Borrower or any Wholly-Owned Subsidiary of the Borrower, (y) if the Subsidiary
is not a Wholly-Owned Subsidiary, may pay cash Dividends to its shareholders
generally so long as the Borrower or any such Subsidiary which owns the equity
interest or interests in the Subsidiary paying such Dividends receives at least
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its proportionate share thereof (based on its relative holdings of equity
interests in the Subsidiary paying such Dividends and taking into account the
relative preferences, if any, of the various classes of equity interests in
such Subsidiary) and (z) after an Initial Public Offering, the Borrower may pay
Dividends in an amount not to exceed the lesser of (i) $5,000,000 in any Fiscal
Year and (ii) the Available ECF Amount. In addition, the Recapitalization shall
be permitted.
SECTION 5.15. Investments; Restricted Acquisitions. Neither the Borrower
nor any Subsidiary will (a) hold, make or acquire any Investment or (b)
consummate or agree to consummate any Restricted Acquisition except:
(i) the Borrower and its Subsidiaries may acquire and hold
accounts receivables owing to any of them, if created or acquired in
the ordinary course of business and payable or dischargeable in
accordance with customary terms;
(ii) the Borrower and its Subsidiaries may acquire and hold
cash and Cash Equivalents;
(iii) the Borrower and its Subsidiaries may enter into
agreements relating to Derivatives Obligations which are determined in
good faith by the Borrower to be non-speculative in nature;
(iv) any Guarantor may make intercompany loans and advances
to, and other Investments in the Borrower or any other Guarantor (and
may make Restricted Acquisitions of any other Guarantor), and the
Borrower may make intercompany loans and advances to, and other
Investments in and Restricted Acquisitions of any Guarantor;
(v) any Subsidiary may make Investments and Restricted
Acquisitions to the extent permitted by Section 5.04(ii);
(vi) any Foreign Subsidiary may make any Investment in or
Restricted Acquisition of any other Foreign Subsidiary;
(vii) the Borrower and its Subsidiaries may acquire and own
Investments received 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;
(viii) the Borrower and its Subsidiaries may make Investments
in and Restricted Acquisitions of Foreign Subsidiaries and Foreign
Joint Ventures in an amount not to exceed $30,000,000 minus (i) the
aggregate amount of Investments made by the Borrower or any of its
Domestic Subsidiaries, net of Debt and, without duplication,
Capitalized Lease Obligations assigned to, and assumed by, the
respective Foreign Subsidiary or Foreign Joint Venture in connection
therewith pursuant to this Section 5.15(viii) after the Initial
Borrowing Date, minus (ii) the aggregate amount of Debt or other
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obligations (whether absolute, accrued, contingent or otherwise and
whether or not due) of any Foreign Subsidiary or Foreign Joint Venture
for which the Borrower or any of its Domestic Subsidiaries is liable,
minus (iii) all payments made by the Borrower or any of its Domestic
Subsidiaries in respect of Debt or other obligations of the respective
Foreign Subsidiary or Foreign Joint Venture after the Initial
Borrowing Date, plus (iv) to the extent the Borrower or one or more
other Obligors (after the respective Investment has been made)
receives a cash return from the respective Foreign Subsidiary or
Foreign Joint Venture of amounts previously invested pursuant to this
clause (viii) (which cash return may be made by way of sale or other
disposition of such investment or repayment of principal in the case
of loans and cash equity returns (whether as a distribution, dividend
or redemption) in the case of equity investments), then the amount of
such return of investment shall apply to increase the available basket
hereunder, provided that the aggregate amount of increases to the
available basket hereunder shall not exceed the amount of returned
investment and, in no event, shall the amount of the increases made to
the available basket hereunder in respect of any Investment exceed the
amount previously invested pursuant to this clause (viii);
(ix) additional Investments and Restricted Acquisitions
provided that:
(a)immediately after any such Investment or Restricted
Acquisition is made or acquired (any such Investment or Restricted
Acquisition permitted by this clause (x), a "Permitted Acquisition")
is consummated, the sum, without duplication, of the aggregate amount
expended by the Borrower and its Domestic Subsidiaries with respect to
Permitted Acquisitions (including the value of Capital Stock of the
Borrower used to make Permitted Acquisitions) after the date hereof
does not in the aggregate exceed the sum of (w) the proceeds of any
issuance of Capital Stock not required to be applied to the repayment
of Loans pursuant to Section 2.10(d) and actually used to pay
consideration owing in connection with such Permitted Acquisition, (x)
the Available ECF Amount, (y) Retained Asset Sale Proceeds received in
connection with Asset Sales to the extent not reinvested in other
assets pursuant to the first proviso in Section 2.10(d) and sale
proceeds received from the sale of certain non-strategic assets
identified to the Lenders prior to the Effective Date to the extent
permitted by Section 5.07(b)(vi) and (z) an additional aggregate
amount for all such Permitted Acquisitions equal to $150,000,000; and
(b) in the case of a Permitted Acquisition, (A) the Person
whose assets, securities or other equity interests are acquired by the
Borrower or its Subsidiaries is engaged in substantially the same line
of business activity as the Borrower and its Subsidiaries or any other
line or lines of business activity involving the manufacture and
distribution of packaging products and materials, plastic products and
materials, specialty chemicals, other disposable products, and related
materials and related businesses; (B) immediately after such Permitted
Acquisition is consummated, the Unutilized Revolving Loan Commitment
shall not be less than $20,000,000; (C) if the Permitted Acquisition
is structured as an acquisition of capital stock or other equity
interest of another Person, the Borrower and/or its Domestic
Subsidiaries shall own all of the capital stock or other equity
interests of the Person so acquired; and (D) no Default shall exist
and be continuing at the time of the consummation of such Permitted
Acquisition immediately prior to giving effect thereto and the
Borrower would be in compliance with Sections 5.11 through 5.13,
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inclusive, after the Fixed Charge Coverage Ratio, Leverage Ratio and
Consolidated EBITDA are each adjusted with respect to such Permitted
Acquisition on the date of consummation or proposed consummation
thereof (the "Transaction Date") as follows: in calculating
Consolidated EBITDA, Consolidated Interest Expense and Consolidated
Capital Expenditures, (1) the incurrence of any Debt incurred in
connection with such Permitted Acquisition and the application of the
proceeds therefrom shall be assumed to have occurred on the first day
of the period of four consecutive Fiscal Quarters (or other period)
for which such amounts are required to be determined in accordance
with the definitions of Fixed Charge Coverage Ratio and Leverage Ratio
(the "Reference Period"), (2) pro forma effect shall be given to any
Permitted Acquisition (including adjustments to operating results
permitted to be made in accordance with generally accepted accounting
principles and any pro forma cost savings which the Borrower
reasonably expects to realize and the inclusion of which the Agent
(and, if such expected pro forma cost savings are in excess of
$5,000,000, the Required Lenders) have consented (such consents not to
be unreasonably withheld or delayed)) which occurs during the
Reference Period or subsequent to the Reference Period and prior to
the Transaction Date as if such Permitted Acquisition had occurred on
the first day of the Reference Period, (3) the incurrence of any Debt
during the Reference Period or subsequent to the Reference Period and
prior to the Transaction Date and the application of the proceeds
therefrom shall be assumed to have occurred on the first day of such
Reference Period and (4) Consolidated Interest Expense attributable to
any Debt (whether existing or being incurred) bearing a floating
interest rate shall be computed on a pro forma basis as if the rate in
effect on the date of computation had been the applicable rate for the
entire period, unless such Person or any of its Subsidiaries is a
party to an interest rate swap or cap or similar agreement (which
shall remain in effect for the twelve month period after the
Transaction Date) which has the effect of fixing the interest rate on
the date of computation, in which case such rate (whether higher or
lower) shall be used.
At least twenty days prior to the closing date for any Permitted
Acquisition (or, in the case of any Permitted Acquisition that occurs
within 20 days after the Initial Borrowing Date, within such time as
the Borrower and the Agent agree), the Borrower shall have delivered
to the Lenders (i) a compliance certificate certifying the Borrower's
compliance with the provisions of this Agreement, including, without
limitation, Sections 5.11 through 5.13, inclusive, after giving effect
on a pro forma basis to such Permitted Acquisition and (ii) a report
of the chief executive officer or chief accounting officer of the
Borrower, in a form and providing sufficient detail and justification
for the information provided therein, including assumptions, as shall
be found to be reasonable by the Agent in its good faith discretion
after completion of reasonable due diligence, establishing (x) the
basis for such certification and (y) that after giving effect to such
Permitted Acquisition and the financing therefor, the Borrower shall
be in compliance at the end of each Fiscal Year until the Termination
Date with the covenants contained in Sections 5.11 through 5.13,
inclusive.
(x) the Borrower and its Subsidiaries may acquire and hold
debt and/or other similar non-cash consideration in connection with
Asset Sales permitted pursuant to Section 5.07(b)(iii);
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(xi) so long as no Default or Event of Default exists or
would exist immediately after giving effect to the respective
Investment, the Borrower and its Domestic Subsidiaries shall be
permitted to make Investments in any Domestic Joint Venture on any
date in an amount not to exceed the Available Domestic JV Basket
Amount on such date (after giving effect to all prior and
contemporaneous adjustments thereto, except as a result of such
Investment), it being understood and agreed that to the extent the
Borrower or one or more other Obligors (after the respective
Investment has been made) receives a cash return from the respective
Joint Venture of amounts previously invested pursuant to this clause
(xi) (which cash return may be made by way of sale or other
disposition of such investment or repayment of principal in the case
of loans and cash equity returns (whether as a distribution, dividend
or redemption) in the case of equity investments), then the amount of
such return of investment shall apply to increase the Available
Domestic JV Basket Amount, provided that the aggregate amount of
increases to the Available Domestic JV Basket Amount described above
shall not exceed the amount of returned investment and, in no event,
shall the amount of the increases made to the Available Domestic JV
Basket Amount in respect of any Investment exceed the amount
previously invested pursuant to this clause (xi);
(xii) so long as no Default then exists or would result
therefrom, in addition to the Investments permitted pursuant to
preceding clauses (i) through (xi), the Borrower and its Subsidiaries
may make additional Investments in one or more Persons, so long as all
such Investments (determined without regard to any write-downs or
write-offs) do not exceed in aggregate amount $10,000,000 at any time
outstanding;
(xiii) loans and advances to employees of the Borrower or any of
its Subsidiaries in the ordinary course of business not to exceed
$1,000,000 in aggregate principal amount at any time outstanding; and
(xiv) any Investment of the Borrower or any of its Subsidiaries
existing as of the Effective Date.
SECTION 5.16. Transactions with Affiliates. The Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, pay any funds to or
for the account of, make any investment in (whether by acquisition of stock or
indebtedness, by loan, advance, transfer of property, guarantee or other
agreement to pay, purchase or service, directly or indirectly, any Debt, or
otherwise), lease, sell, transfer or otherwise dispose of any assets, tangible
or intangible, to, or participate in, or effect, any transaction with, any
Affiliate except on an arms-length basis on terms at least as favorable to the
Borrower or such Subsidiary as could have been obtained from a third party that
was not an Affiliate; provided that the foregoing provisions of this Section
shall not prohibit (i) Restricted Payments to the extent permitted by Section
5.14 and payments permitted pursuant to the proviso to the definition of
"Restricted Payments", (ii) Loans made and other transactions entered into
between the Borrower and its Subsidiaries, or between such Subsidiaries, to the
extent permitted by Sections 5.10 and 5.15, (iii) transactions among the
Borrower and the Guarantors, (iv) transactions among Foreign Subsidiaries, (v)
reasonable fees and compensation paid to, and indemnities provided on behalf
of, officers, directors and employees of the Borrower and its Subsidiaries as
determined in good faith by the board of directors of the Borrower or an
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authorized executive officer, as the case may be, or (vi) so long as no Default
has occurred and is continuing, payments by the Borrower, not exceeding
$600,000 in the aggregate in any Fiscal Year, required to be made to Tekni-Plex
Partners LLC or MST/TP Partners LLC or their respective affiliates, partners or
members.
SECTION 5.17. Limitation on Restrictions Affecting Subsidiaries. Neither
the Borrower nor any of its Subsidiaries will enter into, or suffer to exist,
any agreement with any Person, other than this Agreement or the other Loan
Documents, which prohibits or limits the ability of any Subsidiary to (a) pay
dividends or make other distributions to, or pay any Debt owed to, the Borrower
or any Subsidiary, (b) make loans or advances to the Borrower or any
Subsidiary, (c) transfer any of its properties or assets to the Borrower or any
Subsidiary or (d) create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired
(other than, in the case of clause (c) or (d) above, with respect to assets
subject to consensual Liens permitted under Section 5.09); provided that the
foregoing shall not apply to (i) restrictions existing under or by reason of
applicable law, (ii) customary provisions restricting subletting or assignment
of any lease governing a leasehold interest of the Borrower or a Subsidiary of
the Borrower, (iii) customary provisions restricting assignment of any
licensing agreement entered into by the Borrower or any Subsidiary of the
Borrower in the ordinary course of business, (iv) restrictions in effect on the
date of this Agreement contained in the New Senior Subordinated Notes
Indenture, the Existing 9 1/4% Senior Subordinated Notes Indenture, the
Existing 11 1/4% Senior Subordinated Notes Indenture, or any other Debt
existing on the Effective Date (and any replacement or refinancing of the
foregoing so long as (x) such refinancing is permitted by Section 5.10, (y) the
principal amount of such refinancing Debt does not exceed the principal amount
of the Debt being refinanced (except for the amount of any premium required to
be paid pursuant to the terms of such Debt, plus expenses reasonably incurred
by the issuer of such Debt, in connection with such replacement or refinancing)
and (z) such restrictions are no more restrictive than those relating to the
Debt being refinanced), (v) restrictions applicable to an acquired entity or
its assets in effect at the acquisition thereof by the Borrower or a Subsidiary
and not incurred (or modified) in contemplation of such acquisition, (vi)
restrictions in any agreement or instrument evidencing Debt permitted by
Section 5.10(f) or 5.10 (g) and (vii) customary provisions contained in an
agreement which has been entered into for the sale or disposition of all or
substantially all of the capital stock or assets of any Subsidiary to the
extent such sale is permitted pursuant to Section 5.07.
SECTION 5.18. Limitation on Issuance of Capital Stock. (a) The Borrower
shall not issue (i) any preferred stock (other than Qualified Preferred Stock)
or (ii) any redeemable common stock (except to the extent redeemable only at
the option of the Borrower).
(b) No Subsidiary of the Borrower shall issue, or permit any of their
Subsidiaries to issue, any capital stock (including by way of sales of treasury
stock) or any options or warrants to purchase, or securities convertible into,
capital stock, except (i) for transfers and replacements of then outstanding
shares of capital stock, (ii) for stock splits, stock dividends and additional
issuances which do not decrease the percentage ownership of the Borrower or any
of its Subsidiaries in any class of the capital stock of such Subsidiary and
(iii) to qualify directors or issuances to foreign nationals, in each case to
the extent required by applicable law; provided, the foregoing shall not
prohibit Investments and Restricted Acquisitions in Foreign Joint Ventures and
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Domestic Joint Ventures permitted pursuant to Section 5.15(viii) and 5.15(xi),
respectively. All capital stock issued in accordance with this Section 5.18
shall, to the extent required by the Pledge Agreement, be delivered to the
Agent for pledge pursuant to the Pledge Agreement.
SECTION 5.19. Limitation on Voluntary Payments and Modifications of
Indebtedness. The Borrower will not, and will not permit any of its
Subsidiaries to:
(i) 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 New Senior
Subordinated Notes (it being understood that such notes may be
exchanged for new New Senior Subordinated Notes in accordance with the
exchange provisions of the New Senior Subordinated Notes Documents) or
Bridge Financing, except, in the case of payments of the Bridge
Financing in accordance with Section 2.10(d), with the proceeds of New
Senior Subordinated Notes or Qualified Additional Equity, in each case
issued after the Initial Borrowing Date, or any Existing Senior
Subordinated Notes, provided (x) to the extent the aggregate
outstanding principal balance of Existing Senior Subordinated Notes
does not exceed $2,500,000, prepayments of the Existing Senior
Subordinate Notes may be made in an aggregate amount not to exceed
$2,500,000 and (ii) the Existing 9 1/4 Senior Subordinated Notes
Tender Offer Repurchases and Existing 11 1/4% Senior Subordinated
Notes Tender Offer Repurchases may be consummated pursuant to Section
3.01(viii) and (ix);
(ii) make (or give any notice in respect of) any prepayment or
redemption of New Senior Subordinated Notes, Bridge Financing or
Existing Senior Subordinated Notes as result of any asset sale, change
of control or similar event (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
New Senior Subordinated Notes, Bridge Financing or Existing Senior
Subordinated Notes; provided that the proviso to preceding clause (i)
shall be equally applicable to this clause (ii); or
(iii) amend or modify, or permit the amendment or modification
of, any provision of any New Senior Subordinated Note Document, Bridge
Financing Document, the Existing 9 1/4% Senior Subordinated Notes
Indenture or the Existing 11 1/4% Senior Secured Notes Indenture,
except (i) if only the respective trustee's consent is required
pursuant to the respective indenture, the consent of the Agent (and
not the Required Lenders) shall be required to permit any of the
foregoing and (ii) if consent of any noteholders is required pursuant
to the respective indenture, the consent of the Required Lenders (not
to be unreasonably withheld) shall be required to permit any of the
foregoing.
SECTION 5.20. Limitation on Fixed-Price Contracts. Excluding contracts,
purchase orders and arrangements in respect of which and to the extent the
Borrower or any Subsidiary has entered into non-speculative option, swap or
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other hedging arrangements, the Borrower will not, and will not permit any of
its Subsidiaries to, enter into any contract, purchase order or other
arrangement providing for delivery more than 15 months after the effective date
thereof pursuant to which the Borrower or any Subsidiary agrees to manufacture,
produce, supply, sell, distribute or otherwise transfer any material or product
at a fixed price that may not be adjusted to reflect fluctuations in market
conditions and such Person's cost of goods sold if the aggregate contract price
to be paid under all such arrangements during any fiscal year would exceed 10%
of the consolidated net sales of the Borrower and its Subsidiaries during such
year.
SECTION 5.21. End of Fiscal Years; Fiscal Quarters. The Borrower will, for
financial reporting purposes, cause each of its Fiscal Years to end on the
Friday closest to the last Business Day in June of each year and (ii) each of
its fiscal quarters to end the Friday closest to the last Business Day in each
September, December, March and June; provided that the Borrower may change its
financial reporting periods one time after the Initial Borrowing Date so long
as the Borrower and the Agent agree on new dates (if the Agent deems new test
dates to be appropriate) to test the financial covenants under this Agreement
(and thereafter distribute such revised dates to the Lenders and such covenants
shall be deemed amended to incorporate such revised dates).
SECTION 5.22. Further Assurances. (a) The Borrower will, and will cause
each of the other Obligors to, at the Borrower's sole cost and expense, do,
execute, acknowledge and deliver all such further acts, deeds, conveyances,
mortgages, assignments, notices of assignment and transfers as the Agent shall
from time to time request, which may be necessary in the reasonable judgment of
the Agent from time to time to assure, perfect, convey, assign and transfer to
the Agent the property and rights conveyed or assigned pursuant to the
Collateral Documents, or which may facilitate the performance of the terms of
the Collateral Documents, or the filing, registering or recording of the
Collateral Documents. Without limiting the foregoing, the Borrower shall, if
requested by the Agent, use all reasonable efforts to deliver to the Agent
waivers of contractual and statutory landlord's, landlord's mortgagee's and
warehouseman's Liens in form and substance satisfactory to the Agent under each
existing lease, warehouse agreement or similar agreement to which the Borrower
is a party and each amendment, renewal or extension thereof, and with respect
to each new lease to which the Borrower becomes a party.
(b) All costs and expenses in connection with the grant of any security
interests under the Collateral Documents, including, without limitation,
reasonable legal fees and other reasonable costs and expenses in connection
with the granting, perfecting and maintenance of any security interests under
the Collateral Documents or the preparation, execution, delivery, recordation
or filing of documents and any other acts as the Agent may reasonably request
in connection with the grant of such security interests, shall be paid by the
Borrower promptly upon demand.
(c) The Borrower will not, and will not permit any of its Subsidiaries to,
enter into or become subject to any agreement which would impair their ability
to comply, or which would purport to prohibit them from complying, with the
provisions of this Section.
(d) The Borrower will cause each Domestic Subsidiary acquired, established
or created after the Initial Borrowing Date (i) to become a party to this
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Agreement as guarantor by executing a supplement hereto in form and substance
satisfactory to the Agent and (ii) to enter into a Security Agreement and any
other agreements as may be necessary or desirable in order to grant (subject to
and to the extent permitted by restrictions permitted by Section 5.17 hereof,
and subject to Liens permitted by Section 5.09 hereof) perfected first priority
security interests upon all of its assets to secure its obligations hereunder.
In addition, the Borrower will pledge, or cause to be pledged, pursuant to a
Pledge Agreement (or a comparable pledge agreement in form and substance
satisfactory to the Agent), all of the capital stock or other equity interests
of each Subsidiary (or, in the case of a Foreign Subsidiary, 66-2/3% of the
voting stock and all non-voting stock or other equity interests) owned by the
Borrower or any Domestic Subsidiary. The Borrower shall cause each such
Subsidiary to take such actions as may be necessary or desirable to effect the
foregoing within 30 days after such Subsidiary is acquired, including, without
limitation, causing such Subsidiary to (x) execute and deliver to the Agent
such number of copies as the Agent may specify of such supplements, Security
Agreement, Pledge Agreement and other documents creating security interests and
(y) deliver such certificates, evidences of corporate action or other documents
as the Agent may reasonably request, all in form and substance satisfactory to
the Agent, relating to the satisfaction of the Borrower's obligations under
this Section. Upon compliance by the Borrower with the provisions of this
subsection (d), Schedule 3 shall be deemed to have been amended to reflect that
such Subsidiary is a Guarantor.
(e) On or before the 30th day following the Initial Borrowing Date,
Plastic Specialties and Technologies Investments, Inc. shall have pledged to
the Agent pursuant to the Pledge Agreement or other documentation reasonably
satisfactory in form and substance to the Collateral Agent, 65% of the voting
stock and 100% of the non-voting stock, in each case, to the extent owned by
Plastic Specialties and Technologies Investments, Inc. on the Initial Borrowing
Date, of Colorite Plastics Canada Ltd., Teckni-Plex Europe, N.V. and Colorite
Europe Limited; provided that the stock of Colorite Europe Limited shall not be
required to be pledged pursuant hereto to the extent such stock has been
transferred to Tekni-Plex Europe, N.V. in accordance with the provisions hereof
on or prior to the 30th day following the Initial Borrowing Date.
(f) The Borrower shall cause to be delivered to Lender's counsel within 60
days of the Closing Date: Surveys relating to Xxxxxxx County, Tennessee and
Xxxxxxxx County, North Carolina properties which are recent "as-built" surveys
that comply with the current Minimum Standard Detail Requirements for ALTA/ACSM
Land Title Surveys relating to Xxxxxxx County, Tennessee and Xxxxxxxx County,
North Carolina properties and that are otherwise in form and substance
reasonably satisfactory to the Agent.
SECTION 5.23. De Minimis Subsidiaries. Notwithstanding anything to the
contrary stated herein, a De Minimis Subsidiary of the Borrower shall not be
required to comply with any of the covenants set forth in this Article V (other
than Section 5.10) or the representations and warranties set forth in Article
IV; provided, however, that the amount of Investments into any De Minimis
Subsidiary shall not exceed $250,000 and the aggregate amount of all
Investments into De Minimis Subsidiaries shall not exceed $1,000,000.
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ARTICLE VI
Defaults
SECTION 6.01. Events of Defaults. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of
any Loan or any LC Reimbursement Obligation, or shall fail to pay
within five days of the date when due any interest, fee or other
amount payable by it hereunder;
(b) the Borrower shall fail to observe or perform any
covenant contained in Article 5, other than those contained in
Sections 5.01 through 5.06, or any Obligor shall fail to observe or
perform any covenant contained in Section 4(A) or 4(J) of the Security
Agreement or Section 5(B) of the Pledge Agreement;
(c) any Obligor shall fail to observe or perform any covenant
or agreement (other than those covered by clause (a) or (b) above)
contained in the Loan Documents and such default shall continue
unremedied for a period of at least 15 days after the Agent gives
notice thereof to the Borrower at the request of any Lender;
(d) any representation, warranty, certification or statement
made by any Obligor in any Loan Document or in any certificate,
financial statement or other document delivered pursuant to any Loan
Document shall prove to have been incorrect in any material respect
when made (or deemed made);
(e) the Borrower or any Subsidiary shall fail to make one or
more payments in respect of Material Financial Obligations when due or
within any applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (or, with
the giving of notice or lapse of time or both, would enable) the
holder of such Debt or any Person acting on such holder's behalf to
accelerate the maturity thereof;
(g) the Borrower or any Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment
for the benefit of creditors, or shall fail generally to pay its debts
as they become due, or shall take any corporate action to authorize
any of the foregoing;
(h) an involuntary case or other proceeding shall be
commenced against the Borrower or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
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effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order
for relief shall be entered against the Borrower or any Subsidiary
under the federal bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due
an amount or amounts aggregating in excess of $12,500,000 which it
shall have become liable to pay under Title IV of ERISA; or notice of
intent to terminate a material Plan shall be filed under Title IV of
ERISA by any member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate, to impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer, any material Plan; or a
condition described in Section 4042(a)(1)-(3) or ERISA shall exist by
reason of which the PBGC would be entitled to obtain a decree
adjudicating that any material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the
meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which causes one or more members of the ERISA
Group to incur a current payment obligation in excess of $12,500,000
and such payment obligation shall continue unsatisfied and unstayed
for a period of 15 days;
(j) judgments or orders for the payment of money exceeding
$12,500,000 in aggregate amount shall be rendered against the Borrower
or any Subsidiary and such judgments or orders shall continue
unsatisfied and unstayed for a period of 30 days;
(k) any Lien created by any of the Collateral Documents shall
at any time fail to constitute a valid and (to the extent required by
the Collateral Documents) perfected Lien prior to all other Liens
except for Permitted Liens (as defined in the Security Agreement) on
any material part of the Collateral purported to be subject thereto,
securing the obligations purported to be secured thereby, with the
priority required by the Loan Documents, or any Obligor shall so
assert in writing;
(l) the Borrower or any Subsidiary of the Borrower incurs
after the date hereof Environmental Liabilities in excess of
$12,500,000 in the aggregate, which Environmental Liabilities would,
under GAAP, be reflected in the financial statements (or the footnotes
thereto) of the Borrower;
(m) (1) so long as Tekni-Plex Partners, LLC has not
liquidated or unwound or otherwise distributed its shares of capital
stock of the Borrower, Tekni-Plex Management LLC ceases to be the sole
managing member of Tekni-Plex Partners LLC; (2) at any time prior to
an Initial Public Offering, members of the Control Group shall cease
to own, directly or indirectly, more than fifty percent (50%) of the
economic interest in the Borrower; (3) members of the Control Group
shall cease to control directly or indirectly more than fifty percent
(50%) of the shares of capital stock of the Borrower entitled
(excluding stock that is entitled to vote only upon the occurrence of
a contingency that has not yet occurred) to vote in the election of a
majority of the members of the board of directors of the Borrower;
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provided that on or after an Initial Public Offering, such voting
stock interest in the Borrower held by members of the Control Group
may be reduced to not less than a thirty percent (30%) voting stock
interest in the Borrower; (4) any person or group of persons (within
the meaning of Section 13 or 14 of the Exchange Act), excluding from
such group any members of the Control Group, shall have acquired after
the date hereof, beneficial ownership (within the meaning of Rule
13d-3 promulgated by the SEC under said Act) of the lesser of (x) more
than 40% of the outstanding shares of common stock of the Borrower or
(y) a greater voting stock interest in the Borrower than is held by
members of the Control Group; or (5) during any period of twelve
consecutive calendar months, individuals who were directors of the
Borrower on the first day of such period ("Initial Directors") or who
were nominated for election by a majority of the Initial Directors
(other than any such Initial Directors who shall have died, become
incapacitated or resigned for family, health or other personal reasons
prior to such nomination), shall cease to constitute a majority of the
Borrower's board of directors; or (6) a "change of control" or similar
event shall occur under the New Senior Subordinated Notes Indenture or
the Bridge Financing Documents; provided that in no event shall a
"Governance Change", within the meaning of the Tekni-Plex Partners LLC
Agreement or the MST/TP Partners LLC Agreement, in each case as in
effect on the Effective Date, be deemed to be a Change of Control
hereunder; or
(n) at any time Tekni-Plex Partners LLC shall make any
Investment financed with the proceeds of Capital Contributions (as
defined in the Tekni-Plex Partners LLC Agreement) made in respect of
Remaining Capital Commitments (as defined in the Tekni-Plex Partners
LLC Agreement) outstanding on the Effective Date immediately after
giving effect to the Transaction, other than Investments in the
Borrower and the Borrower's Subsidiaries or Investments in cash or
Cash Equivalents;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Agent shall, upon the written request of
the Required Lenders, by written notice to the Borrower, take any or all of the
following actions, without prejudice to the rights of the Agent or any Lender
to enforce its claims against any Obligor, except as otherwise specifically
provided for in this Agreement (provided, that if an Event of Default specified
in Section 6.01(g) or (h) shall occur with respect to the Borrower, the result
which would occur upon the giving of written notice by the Agent as specified
in clauses (i) and (ii) below shall occur automatically without the giving of
any such notice): (i) declare the Total Commitment terminated, whereupon the
Commitment of each Lender shall forthwith terminate immediately and any
Commitment Fees shall forthwith become due and payable without any other notice
of any kind; (ii) declare the principal of and any accrued interest in respect
of all Loans and all Obligations owing hereunder (including LC Reimbursement
Obligations) to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; (iii) enforce, as Agent, any or all of the
Liens and security interests created pursuant to the Collateral Documents; (iv)
terminate any Letter of Credit which may be terminated in accordance with its
terms; (v) direct the Borrower to pay (and the Borrower hereby agrees upon
receipt of such notice, or upon the occurrence of any Event of Default
specified in Section 6.01(g) or (h) with respect to the Borrower, it will pay)
to the Agent at the Payment Office such additional amounts of cash, to be held
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as security for the Borrower's reimbursement obligations in respect of Letters
of Credit then outstanding, as is equal to the Stated Amount of all Letters of
Credit then outstanding; and (vi) apply any cash collateral held in the
Collateral Account pursuant to Section 2.10 in satisfaction of the Obligations.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
Borrower under Section 6.01(c) promptly upon being requested to do so by any
Lender and shall thereupon notify all the Lenders thereof.
ARTICLE VII
The Agent
SECTION 7.01. Appointment and Authorization. Each Lender irrevocably
appoints and authorizes the Agent to enter into and act as its agent in
connection with the Collateral Documents and to take such action as agent on
its behalf and to exercise such powers under the Loan Documents as are
delegated to the Agent by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. The Agent shall have the same rights
and powers under the Loan Documents as any other Lender and may exercise or
refrain from exercising the same as though it were not the Agent, and the Agent
and its affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or affiliate of the
Borrower as if it were not the Agent and the terms "Lender" and "Required
Lenders" shall include the Agent in its individual capacity.
SECTION 7.03. Action by Agent. The obligations of the Agent hereunder are
only those expressly set forth herein. Without limiting the generality of the
foregoing, the Agent shall not be required to take any action with respect to
any Default, except as expressly provided in Article 6.
SECTION 7.04. Consultation with Experts. The Agent may consult with legal
counsel (who may be counsel for any obligor), independent public accountants
and other experts selected by it and shall not be liable for any action taken
or omitted to be taken by it in good faith in accordance with the advice of
such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of its
affiliates or any of their respective directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Lenders (or such
different number of Lenders as any provision hereof expressly requires for such
consent or request) or (ii) in the absence of its own gross negligence or
willful misconduct. Neither the Agent nor any of its affiliates nor any of
their respective directors, officers, agents or employees shall be responsible
for or have any duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with the Loan Documents or any
borrowing hereunder; (ii) the performance or observance of any of the covenants
or agreements of any Obligor; (iii) the satisfaction of any condition specified
in Article 3, except receipt of items required to be delivered to the Agent; or
(iv) the validity, effectiveness or genuineness of the Loan Documents or any
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other instrument or writing furnished in connection herewith. The Agent shall
not incur any liability by acting in reliance upon any notice, consent,
certificate, statement or other writing (which may be a bank wire, telex,
facsimile or similar writing) believed by it to be genuine or to be signed by
the proper party or parties. Without limiting the generality of the foregoing,
the use of the term "agent" or "Agent" in this Agreement with reference to the
Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead, such
term is used merely as a matter of market custom and is intended to create or
reflect only an administrative relationship between independent contracting
parties.
SECTION 7.06. Indemnification. The Lenders shall, ratably in accordance
with their respective "percentages" as used in determining Required Lenders
(computed without adjustment for Non-Defaulting Lenders and Defaulting Lenders)
indemnify the Agent, its affiliates and their respective directors, officers,
agents and employees (each an "indemnitee") (to the extent not reimbursed by
the Borrower) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from such indemnitee's gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with the Loan Documents or any
action taken or omitted by such indemnitees thereunder. The agreements in this
Section 7.06 should survive the termination of this Agreement and the other
Loan Documents and the payment of all Obligations.
SECTION 7.07. Credit Decision. Each Lender acknowledges that it has,
independently and without reliance on the Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and to make Loans
hereunder. Each Lender also acknowledges that it will, independently and
without reliance on the Agent 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 any action under the Loan
Documents. The Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business,
operations, assets, property, financial condition, prospects or
creditworthiness of the Borrower or any of its Subsidiaries which may come into
the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates.
SECTION 7.08. Successor Agent. Subject to the appointment of and
acceptance of appointment by a successor Agent as provided below, the Agent may
resign at any time by giving notice thereof to the Lenders and the Borrower.
Upon receipt of such notice, the Required Lenders shall have the right with, so
long as no Default has occurred and is continuing, the consent of the Borrower
(not to be unreasonably withheld or delayed), to appoint a successor Agent. If
no successor Agent shall have been so appointed by the Required Lenders within
30 days after the retiring Agent gives notice of resignation, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be
a commercial bank organized or licensed under the laws of the United States or
of any State thereof and having a combined capital and surplus of at least
$100,000,000. Upon the acceptance of its appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
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retiring Agent resigns as Agent hereunder, the provisions of this Article shall
inure to its benefit as to actions taken or omitted to be taken by it while it
was Agent.
SECTION 7.09. Agent's Fee. The Borrower shall pay to the Agent, for its
own account, fees in the amounts and at the times previously agreed upon by the
Borrower and the Agent.
ARTICLE VIII
Change in Circumstances
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair. If
on or before the first day of any Interest Period for any Euro-Dollar Loan:
(a) The Agent is advised by the Reference Lenders that
deposits in dollars (in the applicable amounts) are not being offered
to the Reference Lenders in the London interbank market for such
Interest Period, or
(b) Lenders holding 50% or more of the aggregate principal
amount of the affected Loans advise the Agent that the Adjusted London
Interbank Offered Rate as determined by the Agent will not adequately
and fairly reflect the cost to such Lenders of funding their
Euro-Dollar Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Lenders,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, (i) the obligations of the Lenders to
make Euro-Dollar Loans or to continue or convert outstanding Loans as or into
Euro-Dollar Loans shall be suspended and (ii) each outstanding Euro-Dollar Loan
shall be converted into a Base Rate Loan on the last day of the then current
Interest Period applicable thereto. Unless the Borrower notifies the Agent at
least two (2) Business Days before the date of any affected Borrowing for which
a Notice of Borrowing has previously been given that it elects not to borrow on
such date, such Borrowing shall instead be made as a Base Rate Borrowing.
SECTION 8.02. Illegality. If, on or after the date hereof, the adoption of
any applicable law, rule or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender (or its Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency, shall make it unlawful or impossible for any Lender (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans and
such Lender shall so notify the Agent, the Agent shall forthwith give notice
thereof to the other Lenders and the Borrower, whereupon until such Lender
notifies the Borrower and the Agent that the circumstances giving rise to such
suspension no longer exist, the obligation of such Lender to make Euro-Dollar
Loans, or to convert outstanding Loans into Euro-Dollar Loans or continue
outstanding Loans as Euro-Dollar Loans, shall be suspended. Before giving any
notice to the Agent pursuant to this Section, such Lender shall designate a
different Euro-Dollar Lending Office if such designation will
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avoid the need for giving such notice and will not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender. If such notice is given,
each Euro-Dollar Loan of such Lender then outstanding shall be converted to a
Base Rate Loan either (a) on the last day of the then current Interest Period
applicable to such Euro-Dollar Loan if such Bank may lawfully continue to
maintain and fund such Loan as a Euro-Dollar Loan to such day or (b)
immediately if such Bank shall determine that it may not lawfully continue to
maintain and fund such Loan as a Euro-Dollar Loan to such day.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after the
date hereof, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Applicable Lending Office) or any
LC Issuing Bank with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency, shall impose,
modify or deem applicable any reserve (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System,
but excluding with respect to any Euro-Dollar Loan any such requirement
included in an applicable Euro-Dollar Reserve Percentage), special deposit,
insurance assessment or similar requirement against assets of, deposits with or
for the account of, or credit (including letters of credit and participations
therein) extended by, any Lender (or its Applicable Lending Office) or any LC
Issuing Bank or shall impose on any Lender (or its Applicable Lending Office)
or any LC Issuing Bank or the London interbank market any other condition
affecting its Euro-Dollar Loans, its Notes or its obligation to make
Euro-Dollar Loans or its obligations hereunder in respect of Letters of Credit
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) or such LC Issuing Bank of making or
maintaining any Euro-Dollar Loan or issuing or participating in any Letter of
Credit, or to reduce the amount of any sum received or receivable by such
Lender (or its Applicable Lending Office) or such LC Issuing Bank under this
Agreement or under its Note with respect thereto, by an amount deemed by such
Bank or LC Issuing Bank to be material, then, within 15 days after demand by
such Lender or LC Issuing Bank (with a copy to the Agent), the Borrower shall
pay to such Lender or LC Issuing Bank such additional amount or amounts as will
compensate such Lender or LC Issuing Bank for such increased cost or reduction.
(b) If any Lender shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Lender (or its parent) as a consequence of such Lender's obligations
hereunder to a level below that which such Lender (or its parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, within 15 days
after demand by such Lender (with a copy to the Agent), the Borrower shall pay
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to such Lender such additional amount or amounts as will compensate such Lender
(or its parent) for such reduction.
(c) Each Lender and LC Issuing Bank will promptly notify the Borrower and
the Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender or LC Issuing Bank to compensation
pursuant to this Section and will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the judgment of such Lender or LC Issuing
Bank, be otherwise disadvantageous to it. A certificate of any Lender or LC
Issuing Bank claiming compensation under this section and setting forth the
additional amount or amounts to be paid to it hereunder and the basis therefor
shall be conclusive in the absence of manifest error; provided that no Lender
shall be required to disclose information that it considers in its sole
discretion to be confidential. In determining such amount, such Lender or LC
Issuing Bank may use any reasonable averaging and attribution methods.
SECTION 8.04. Taxes. (a) For the purposes of this Section, the following
terms have the following meanings:
"Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings with respect to
any payment by any Obligor pursuant to this Agreement or under any
Note, and all liabilities with respect thereto, excluding (i) in the
case of each Lender Party, taxes imposed on its net income, and
franchise or similar taxes imposed on it, by a jurisdiction under the
laws of which it is organized or in which its principal executive
office is located or, in which its Applicable Lending Office is
located and (ii) in the case of each Lender, any United States
withholding tax imposed on such payment, but not excluding any portion
of such tax that exceeds the United States withholding tax which would
have been imposed on such a payment to such Bank under the laws and
treaties in effect when such Lender first becomes a party to this
Agreement.
"Other Taxes" means any present or future stamp or
documentary taxes and any other excise or property taxes, or similar
charges or levies, which arise from any payment made pursuant to this
Agreement or under any Note or from the execution, delivery,
registration or enforcement of, or otherwise with respect to, any Loan
Document.
(b) Subject to Section 8.04(e), all payments by any Obligor to or for the
account of any Lender Party hereunder or under any Note shall be made without
deduction for any Taxes or Other Taxes; provided that, if any Obligor shall be
required by law to deduct any Taxes or Other Taxes from any such payment, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) such Lender Party receives an amount equal to the sum it
would have received had no such deductions been made, (ii) such Obligor shall
make such deductions, (iii) such Obligor shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with
applicable law and (iv) such Obligor shall promptly furnish to the Agent, at
its address specified in or pursuant to Section 10.01, to the extent available,
the original or a certified copy of a receipt evidencing payment thereof or any
other document reasonably requested by the Agent.
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(c) Subject to Section 8.04(e), Obligors agree to indemnify each Lender
Party for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section) paid by such Lender Party and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be paid within 15 days after such Lender
Party makes demand therefor, which demand shall be accompanied by a statement
providing an explanation of the facts and calculations that form the basis for
such demand. Such statement shall be final, conclusive and binding on the
Obligors absent manifest error.
(d) (i) if a Lender is a "bank" within the meaning of Section 881(c)(3)(A)
of the Code, then each such Lender organized under the laws of a jurisdiction
outside the United States, before it signs and delivers this Agreement in the
case of each Lender listed on the signature pages hereof and before it becomes
a Lender in the case of each other Lender, and, from time to time thereafter,
before any Lender designates a new Euro-Dollar Lending Office which is an
Affiliate or if requested in writing by the Borrower (but only so long as such
Lender remains lawfully able to do so), shall provide each of the Borrower and
the Agent with Service Form W-8ECI or Form W-8BEN, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying that such
Lender is entitled to benefits under an income tax treaty to which the United
States is a party which exempts such Lender from United States withholding tax
or reduces the rate of withholding tax on payments of interest for the account
of such Lender or certifying that the income receivable by it pursuant to this
Agreement is effectively connected with the conduct of a trade or business in
the United States or (ii) if such Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and which intends to claim exemption from U.S.
Federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest", then each such Lender, at such times
specified in clause (i) above as are appropriate, shall provide each of the
Borrower and the Agent with a Form W-8BEN, or any subsequent versions thereof
or successors thereto (and, if such non-U.S. Lender delivers a Form W-8, a
certificate representing that such non-U.S. Lender is not a bank for purposes
of Section 881(c) of the Code, and is not a 10-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Code of the Borrower), properly
completed and duly executed by such non-U.S. Lender claiming complete exemption
from, or a reduced rate of, U.S. Federal withholding tax on payments of
interest by the Borrower under this Agreement and the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide
the Borrower or the Agent with the appropriate form referred to in Section
8.04(d) (unless such failure is due to a change in treaty, law or regulation
occurring after the date on which such form originally was required to be
provided), no Obligor shall be required to increase any payment to such Lender
pursuant to Section 8.04(b)(i) and such Lender shall not be entitled to
indemnification under Section 8.04(b) or 8.04(c) with respect to Taxes imposed
by the United States; provided that if a Lender that is otherwise exempt from,
or subject to a reduced rate of, withholding tax becomes subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower
shall, at such Lender's expense, take such steps as such Lender shall
reasonably request to assist such Lender to recover such Taxes.
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(f) If any Obligor is required to pay additional amounts to or for the
account of any Lender pursuant to this Section as a result of a change in law
or treaty occurring after such Lender first became a party to this Agreement,
then such Lender will, at the Borrower's request and expense, change the
jurisdiction of its Applicable Lending Office if, in the sole judgment of such
Lender, such change (i) will eliminate or reduce any such additional payment
which may thereafter accrue and (ii) is not otherwise disadvantageous to such
Lender.
(g) Upon the reasonable request of the Borrower, and at the Borrower's
expense, a Lender Party shall use reasonable efforts to cooperate with the
Borrower with a view to obtain a refund of any Taxes or Other Taxes which were
not correctly or legally imposed and for which the Borrower has indemnified
such Lender Party under this Section 8.04 if obtaining such refund would not,
in the sole judgment of the Lender Party, be disadvantageous to such Lender
Party; provided that nothing in this Section 8.04(g) shall be construed to
require any Lender Party to institute any administrative proceeding (other than
the filing of a claim for any such refund) or judicial proceeding to obtain any
such refund. If a Lender Party shall receive a refund from a taxing authority
(as a result of any error in the imposition of Taxes or Other Taxes by such
taxing authority) of any Taxes or Other Taxes paid by the Borrower pursuant to
subsection 8.04(b) or (c) above, such Lender Party shall promptly pay to the
Borrower the amount so received without interest (other than interest received
from the taxing authority with respect to such refund) and net of out-of-pocket
expenses; provided that such Lender Party shall only be required to pay to the
Borrower such amounts as such Lender Party in its sole discretion, determines
are attributable to Taxes or Other Taxes paid by the Borrower. In the event
such Lender Party or the Agent is required to repay the amount of such refund
(including interest, if any), the Borrower, upon the request of such Lender
Party or the Agent (as the case may be), agrees to promptly return to such
Lender Party or the Agent the amount of such refund and interest, if any (plus
penalties, interest and other charges imposed in connection with the repayment
of such amounts by such Lender Party or the Agent).
(h) Notwithstanding the foregoing, nothing in this Section 8.04 shall be
construed to (i) entitle the Borrower or any other persons to any information
determined by any Lender Party or the Agent, in its sole discretion, to be
confidential or proprietary information of such Lender Party or the Agent, to
any tax or financial information of any Lender Party or the Agent or to inspect
or review any books and records of any Lender Party or the Agent, or (ii)
interfere with the rights of any Lender Party or the Agent to conduct its
fiscal or tax affairs in such manner as it deems fit.
SECTION 8.05. Base Rate Loans Substituted for Affected Euro-Dollar Loans.
If (i) the obligation of any Lender to make, or to continue or convert
outstanding Loans as or to, Euro-Dollar Loans has been suspended pursuant to
Section 8.02 or (ii) any Lender has demanded compensation under Section 8.03 or
8.04 with respect to its Euro-Dollar Loans, and in any such case the Borrower
shall, by at least five Business Days' prior notice to such Lender, then,
unless and until such Lender notifies the Borrower that the circumstances
giving rise to such suspension or demand for compensation no longer exist, all
Loans which would otherwise be made by such Lender as (or continued as or
converted to) Euro-Dollar Loans shall instead be Base Rate Loans (on which
interest and principal shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Lender). If such Lender notifies the Borrower
that the circumstances giving rise to such suspension or demand for
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compensation no longer exist, the principal amount of each such Base Rate Loan
shall be converted into a Euro-Dollar Loan on the first day of the next
succeeding Interest Period applicable to the related Euro-Dollar Loans of the
other Lender.
SECTION 8.06. Replacement of Lender. (x) If any Lender becomes a
Defaulting Lender, (y) upon the occurrence of any event giving rise to the
operation of Section 8.03 or 8.04 with respect to any Lender which results in
such Lender charging to the Borrower increased costs or other compensation in
excess of those being generally charged by the other Lender or any Lender's
obligations are suspended pursuant to Section 8.02 or (z) in the case of a
refusal by a Lender to consent to a proposed change, waiver, discharge or
termination with respect to this Agreement which has been approved by the
Required Lenders as provided in Section 10.05(b), the Borrower shall have the
right, if no Default then exists, to replace such Lender (the "Replaced
Lender") with one or more other Eligible Transferee or Transferees, none of
whom shall constitute a Defaulting Lender at the time of such replacement
(collectively, the "Replacement Lender") reasonably acceptable to the Agent,
provided that (i) any replacement pursuant to this Section 8.06 shall be
required to comply with the requirements of Section 10.06(b) and at the time of
any replacement pursuant to this Section 8.06, the Replacement Lender shall
enter into one or more Assignment and Assumption Agreements pursuant to Section
10.06(b) (and with all fees payable pursuant to said Section 10.06(b) to be
paid by the Replacement Lender) pursuant to which the Replacement Lender shall
acquire all of the Commitments and outstanding Loans of, and participations in
Letters of Credit by, the Replaced Lender and, in connection therewith, shall
pay to (x) the Replaced Lender in respect thereof an amount equal to the sum of
(A) the principal of, and all accrued interest on, all outstanding Loans of the
Replaced Lender, (B) all LC Reimbursement Obligations that have been funded by
(and not reimbursed to) such Replaced Lender, together with all then unpaid
interest with respect thereto at such time and (C) all accrued, but theretofore
unpaid fees owing to the Replaced Lender pursuant to Section 2.07, (y) the
respective LC Issuing Bank an amount equal to such Replaced Lender's RL
Percentage of any LC Reimbursement Obligation (which at such time remains an LC
Reimbursement Obligation) with respect to a Letter of Credit issued by it to
the extent such amount was not theretofore funded by such Replaced Lender and
(z) the Swingline Lender an amount equal to such Replaced Lender's RL
Percentage of any Mandatory Borrowing to the extent such amount was not
theretofore funded by such Replaced Lender, and (ii) all obligations
(including, without limitation, all such amounts, if any, due and owing under
Section 2.13) of the Borrower due and owing to the Replaced Lender (other than
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 and Assumption Agreements, the
payment of amounts referred to in clauses (i) and (ii) above, recordation of
the assignment on the Register by the Agent pursuant to Section 10.11 and, if
so requested by the Replacement Lender, delivery to the Replacement Lender of
the appropriate Note or Notes executed by the Borrower, (x) the Replacement
Lender shall become a Lender hereunder and the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to indemnification
provisions under this Agreement (including, without limitation, Sections 2.13,
7.06, 8.03, 8.04 and 10.03), which shall survive as to such Replaced Lender and
(y) Schedule I hereto shall be deemed modified to reflect the changed
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Commitments (and/or outstanding Term Loans, as the case may be) resulting from
the assignment from the Replaced Lender to the Replacement Lender.
ARTICLE IX
Guaranty
SECTION 9.01. The Guaranty. Each Guarantor hereby, jointly and severally,
unconditionally and irrevocably guarantees the full and punctual payment
(whether at stated maturity, upon acceleration or otherwise) of any and all of
the Guaranteed Obligations. Upon failure by the Borrower or any other Guarantor
to pay punctually any such amount, each Guarantor shall forthwith on demand pay
the amount not so paid at the place and in the manner specified in this
Agreement or the other Loan Documents or the respective Guaranteed Derivatives
Agreement. This Guaranty constitutes a guaranty of payment and not of
collection. This Guaranty is a continuing one and shall be deemed ratified and
recertified upon the receipt of any Investment in a Guarantor by the Borrower
or any Subsidiary 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.
SECTION 9.02. Guaranty Unconditional. The obligations of each Guarantor
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any Guaranteed Obligation, by operation of law or
otherwise;
(ii) any modification or amendment of or supplement to any
Guaranteed Obligation;
(iii) to the extent permitted by law, any release, impairment,
non-perfection or invalidity of any direct or indirect security for any
Guaranteed Obligation;
(iv) any change in the corporate existence, structure or
ownership of the Borrower or any other Guarantor, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the
Borrower, any other Guarantor or their respective assets or any
resulting release or discharge of any Guaranteed Obligation;
(v) the existence of any claim, set-off or other rights which
such Guarantor may have at any time against the Borrower, any other
Guarantor, the Agent, any LC Issuing Bank, any Lender or any other
Person, whether in connection herewith or any unrelated transactions,
provided that nothing herein shall prevent the assertion of any such
claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability of all or any part of
the Guaranteed Obligations, or any provision of applicable law or
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regulation purporting to prohibit the payment by the Borrower or any
other Guarantor of all or any part of the Guaranteed Obligations; or
(vii) any other act or omission to act or delay of any kind by
the Borrower, any other Guarantor, the Agent, any LC Issuing Bank, any
Lender or any other Person or any other circumstance whatsoever which
might, but for the provisions of this paragraph, constitute a legal or
equitable discharge of the Guarantor's obligations hereunder.
SECTION 9.03. Discharge Only upon Payment in Full; Reinstatement in
Certain Circumstances. Each Guarantor's obligations hereunder shall remain in
full force and effect until the Total Commitment and all Guaranteed Derivatives
Agreements have been terminated, no Note or Letter of Credit remains
outstanding and all Guaranteed Obligations shall have been paid in full. If at
any time any amount paid in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of any Obligor or otherwise, each Guarantor's obligations
hereunder with respect to such payment shall be reinstated at such time as
though such payment had been due but not made at such time.
SECTION 9.04. Waiver by Each Guarantor. Each Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and any notice not provided for
herein, as well as any requirement that at any time any action be taken by any
Person against the Borrower or any other Guarantor or any other Person.
SECTION 9.05. Subrogation and Contribution. Until all
Guaranteed Obligations shall have been paid in full, each Guarantor agrees not
to enforce or exercise any and all rights to which it may be entitled, by
operation of law or otherwise, upon making any payment hereunder (i) to be
subrogated to the rights of the payee against the Borrower with respect to such
payment or against any direct or indirect security therefor, or otherwise to be
reimbursed, indemnified or exonerated by or for the account of the Borrower in
respect thereof or (ii) to receive any payment, in the nature of contribution
or for any other reason, from any other Guarantor with respect to such payment.
SECTION 9.06. Stay of Acceleration. If acceleration of the time for
payment of any Guaranteed Obligation is stayed upon insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration shall nonetheless be payable by each Guarantor hereunder forthwith
on demand by the Agent made at the request of the Required Lenders or, after
all Obligations have been repaid in full and the Total Commitment has been
terminated, a majority of the holders of all outstanding obligations under
Guaranteed Derivatives Agreements.
SECTION 9.07. Limit of Liability. It is the desire and intent of each
Guarantor that this Guaranty shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. If and to the extent that the obligations of each
Guarantor under this Guaranty 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, which laws would determine the solvency of each Guarantor by
reference to the full amount of the Guaranteed Obligations at the time of the
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execution and delivery of this Guaranty), then the amount of the Guaranteed
Obligations shall be deemed to be reduced and each Guarantor agrees to pay the
maximum amount of the Guaranteed Obligations which would be permissible under
applicable law.
SECTION 9.08. Release upon Sale. Upon any sale by the Borrower or any of
its Subsidiaries of any Guarantor owned by the Borrower and/or any of its
Subsidiaries, in each case pursuant to a transaction permitted by this
Agreement, such Guarantor shall automatically and without further action by any
Lender or the Agent be released from its obligations as a Guarantor hereunder.
SECTION 9.09. Additional Guarantors. It is understood and agreed that any
Subsidiary of the Borrowers that is required to execute a counterpart of this
Agreement after the date hereof pursuant to Section 5.22(d) shall promptly
become a Guarantor hereunder by executing a counterpart hereof and delivering
the same to the Agent. It is further understood and agreed that any failure by
any Subsidiary to execute a counterpart of this Agreement as otherwise required
pursuant to the terms hereof shall not affect the obligations of the Borrower
or any other Guarantor.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. All notices, requests and other communications to
any party under any Loan Document shall be in writing (including bank wire,
facsimile or similar writing) and shall be given to such party: (a) in the case
of the Borrower or the Agent, at its address or facsimile number set forth on
the signature pages hereof, (b) in the case of any Guarantor, in care of the
Borrower, (c) in the case of any Lender, at its address or facsimile number set
forth in its Administrative Questionnaire or (d) in the case of any party, at
such other address or facsimile number as such party may hereafter specify for
the purpose by notice to the Agent and the Borrower. Each such notice, request
or other communication shall be effective (i) if given by facsimile, when
transmitted to the facsimile number referred to in this Section and
confirmation of receipt is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when delivered at
the address referred to in this Section; provided that notices to the Agent or
any LC Issuing Bank under Article 2 or Article 8, shall not be effective until
received.
SECTION 10.02. No Waivers. No failure or delay by any Lender Party in
exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 10.03. Expenses; Indemnification. (a) The Borrower shall pay (i)
all out-of-pocket expenses of the Agent, including reasonable fees and
disbursements of special counsel for the Agent, in connection with the
preparation and administration of the Loan Documents, any waiver or consent
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thereunder or any amendment thereof or any Default or alleged Default
thereunder and (ii) if an Event of Default occurs, all out-of-pocket expenses
incurred by each Lender Party, including (without duplication) the fees and
disbursements of outside counsel and the allocated cost of inside counsel, in
connection with such Event of Default and collection, bankruptcy, insolvency
and other enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify each Lender Party, its respective
affiliates and the respective directors, officers, agents and employees of the
foregoing (each an "Indemnitee") and hold each Indemnitee harmless from and
against any and all liabilities, losses, damages, costs and expenses of any
kind, including, without limitation, the reasonable fees and disbursements of
counsel, which may be incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) brought or threatened relating
to or arising out of the Loan Documents or any actual or proposed use of any
Letter of Credit or any proceeds of Loans hereunder; provided that no
Indemnitee shall have the right to be indemnified hereunder to the extent of
such Indemnitee's own gross negligence or willful misconduct as determined by
final judgment of a court of competent jurisdiction.
(c) The Borrower hereby indemnifies each Indemnitee from and against and
agrees to hold each of them harmless from any and all liabilities, losses,
damages, costs and expenses of any kind (including, without limitation,
reasonable expenses of investigation by engineers, environmental consultants
and similar technical personnel and reasonable fees and disbursements of
counsel) of any Indemnitee arising out of, in respect of or in connection with
any and all Environmental Liabilities. Without limiting the generality of the
foregoing, the Borrower hereby waives all rights for contribution or any other
rights of recovery with respect to liabilities, losses, damages, costs and
expenses arising under or related to Environmental Laws that it might have by
statute or otherwise against any Indemnitee.
(d) To the extent that the undertaking to indemnify, pay or hold harmless
any Indemnitee pursuant to this Section 10.03 may be unenforceable because it
is violative of any law or public policy, the Borrower shall make the maximum
contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law.
SECTION 10.04. Sharing of Payments. Each of the Lenders agrees that, if it
should receive any amount hereunder (whether by voluntary payment, by
realization upon security, by the exercise of the right of setoff or banker's
lien, by counterclaim or cross action, by the enforcement of any right under
the Loan Documents, or otherwise) which is applicable to the payment of the
principal of, or interest on the Loans, LC Reimbursement Obligations or fees,
of a sum which with respect to the related sum or sums received by other
Lenders is a greater proportion than the total of such Obligation then owed and
due to such Lender bears to the total of such Obligation then owed and due to
all of the Lenders immediately prior to such receipt, then such Lender
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Lenders an interest in the Obligations of the
respective Obligor to such Lenders in such amount as shall result in a
proportional participation by all of the Lenders in such amount; provided that
if all or any portion of such excess amount is thereafter recovered from such
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Lender, such purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest.
SECTION 10.05. Amendment or Waiver; etc. (a) Neither this Agreement nor
any other Loan Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination
is in writing signed by the respective Obligor party thereto and the Required
Lenders, provided that no such change, waiver, discharge or termination shall,
without the consent of each Lender (with Obligations being directly affected in
the case of following clause (i)), (i) extend the final scheduled maturity of
any Loan or Note, or reduce the rate of interest or fees or extend the time of
payment of interest or fees, or reduce the principal amount thereof (except to
the extent repaid in cash) (it being understood that any amendment or
modification to the definitions of "Leverage Ratio" and "Reduction Discount"
set forth in this Agreement or to Section 1.02 may not result in a reduction in
any rate of interest or fees for the purposes of this clause (i) without the
consent of each Lender), (ii) release all or substantially all of the
Collateral (except as expressly provided in the Loan Documents) under all the
Collateral Documents, (iii) amend, modify or waive any provision of this
Section 10.05, (iv) reduce the percentage specified in the definition of
Required Lenders (it being understood that, with the consent of the Required
Lenders, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Required Lenders on substantially the same
basis as the extensions of Term Loans and Revolving Loan Commitments are
included on the Effective Date) or (v) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement;
provided further, that no such change, waiver, discharge or termination shall
(1) 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, covenants, Defaults or Events of Default
or of a mandatory reduction in the Total Commitment 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 of the
Commitment of such Lender), (2) without the consent of the Agent, amend, modify
or waive any provision of Article 7 or any other provision as same relates to
the rights or obligations of the Agent, (3) without the consent of the
Swingline Lender, amend, modify or waive any provision relating to the rights
or obligations with respect to Swingline Loans (including, without limitation,
the obligations of other RL Lenders to fund Mandatory Borrowings), (4) without
the consent of each LC Issuing Bank, amend, modify or waive any provision of
Section 2.16 or alter its rights or obligations with respect to Letters of
Credit, (5) except in cases where additional extensions of term loans are being
afforded substantially the same treatment afforded to the Term Loans pursuant
to this Agreement as originally in effect, without the consent of the Majority
Lenders of each Tranche which is being allocated a lesser prepayment, repayment
or commitment reduction as a result of the actions described below (or without
the consent of the Majority Lenders of each Tranche in the case of an amendment
to the definition of Majority Lenders), amend the definition of Majority
Lenders or alter the required application of any prepayments or repayments (or
commitment reductions), as between the various Tranches pursuant to Section
2.10 or 2.11 (excluding Sections 2.10(b) and (c)) (although the Required
Lenders may waive, in whole or in part, any such prepayment, repayment or
commitment reduction so long as the application, as amongst the various
Tranches, of any such prepayment, repayment or commitment reduction which is
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still required to be made is not altered) or (6) without the consent of the
Supermajority Lenders of the respective Tranche, amend the definition of
Supermajority Lenders or waive or decrease the amount of any Scheduled
Repayment of such affected Tranche.
(b) If, in connection with any proposed change to, waiver, discharge or
termination of any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 10.05(a),
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, the Borrower
shall have the right, so long as all non-consenting Lenders whose individual
consent is required are treated as described below, to replace each such
non-consenting Lender or Lenders with one or more Replacement Lenders pursuant
to Section 8.06 so long as at the time of such replacement, each such
Replacement Lender consents to the proposed change, waiver, discharge or
termination, provided that in any event the Borrower shall not have the right
to replace a Lender solely as a result of the exercise of such Lender's rights
(and the withholding of any required consent by such Lender) pursuant to the
second proviso to Section 10.05(a).
SECTION 10.06. Benefit of Agreement; Assignments; Participation. (a) This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto; provided,
however, that, except with respect to assignments effected pursuant to a sale
or disposition permitted pursuant to Section 5.07, neither any Guarantor (with
assets in excess of $10,000,000 on the date of any such assignment), nor the
Borrower may assign or transfer any of its rights, obligations or interest
hereunder without the prior written consent of the Lenders and, provided
further, that, although any Lender may transfer or grant participations in its
rights hereunder, such Lender shall remain a "Lender" for all purposes
hereunder (and may not transfer or assign all or any portion of its Revolving
Loan Commitments and/or outstanding Term Loans hereunder except as provided in
Sections 8.06 and 10.06(b)) and the transferee, assignee or participant, as the
case may be, shall not constitute a "Lender" hereunder and, provided further,
that no Lender shall transfer or grant any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Loan Document except to the extent such amendment or
waiver would (i) extend the final scheduled maturity of any Loan or Note in
which such participant is participating, or reduce the rate or extend the time
of payment of interest or fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that
a waiver of any Default, or of a mandatory reduction in the Total Commitment,
shall not constitute a change in the terms of such participation, and that an
increase in any Commitment or Loan shall be permitted without the consent of
any participant if the participant's participation is not increased as a result
thereof), (ii) consent to the assignment or transfer by the Borrower, of any of
its rights and obligations under this Agreement or (iii) release all or
substantially all of the Collateral under all of the Collateral Documents
(except as expressly provided in the Loan Documents) supporting the Loans
hereunder in which such participant is participating. In the case of any such
participation, the participant shall not have any rights under this Agreement
or any of the other Loan Documents (the participant's rights against such
Lender in respect of such participation to be those set forth in the agreement
executed by such Lender in favor of the participant relating thereto) and all
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amounts payable by the Borrower hereunder shall be determined as if such Lender
had not sold such participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender together with
one or more other Lenders) may (x) assign all or a portion of its Commitments
and related outstanding Obligations (or, if the Commitments with respect to the
relevant Tranche have terminated, outstanding Obligations) hereunder to its
parent company and/or any Affiliate of such Lender which is at least 50% owned
by such Lender or its parent company or to one or more other Lenders (or in the
case of any Lender that is a fund that invests in bank loans, any other fund
that invests in bank loans and is managed by such Lender or the same investment
advisor of such Lender or by an Affiliate of such investment advisor) or (y)
assign all, or if less than all, a portion equal to at least (A) in the case of
assignments of Tranche A Term Loans or a portion of the Total Revolving Loan
Commitment (or, if the Total Revolving Loan Commitment has terminated, related
outstanding obligations), $5,000,000 of such Tranche A Term Loans or Revolving
Commitments and/or related outstanding Obligations (or, if less, the entire
remaining amount of such assignors Tranche A Term Loans and Revolving Loan
Commitment) and (B) in the case of assignments of Tranche B Term Loans,
$2,000,000 of such Tranche B Term Loans hereunder (or, if less, the entire
remaining amount of such assignor's Tranche B Term Loans) to one or more
Eligible Transferees (treating any fund that invests in bank loans and any
other fund that invests in bank loans and is managed by the same investment
advisor of such fund or by an Affiliate of such investment advisor as a single
Eligible Transferee), each of which assignees shall become a party to this
Agreement as a Lender by execution of an Assignment and Assumption Agreement,
provided that, (i) at such time Schedule I shall be deemed modified to reflect
the Commitments (or outstanding Term Loans, as the case may be) of such new
Lender and of the existing Lenders, (ii) upon the surrender of the relevant
Notes by the assigning Lender (or receipt of a customary indemnity agreement in
the case of lost or misplaced notes), new Notes will be issued, at the
Borrower's expense, to such new Lender and to the assigning Lender upon the
request of such new Lender or assigning Lender, such new Notes to be in
conformity with the requirements of Section 2.15 (with appropriate
modifications) to the extent needed to reflect the revised Commitments (or
outstanding Term Loans, as the case may be), (iii) the consent of the Agent
and, so long as no Default then exists, the Borrower shall be required in
connection with any assignment to an Eligible Transferee pursuant to clause (y)
above other than with respect to assignments effected by MGT within 10 days of
the Initial Borrowing Date pursuant to the primary syndication (each of which
consents shall not be unreasonably withheld or delayed), (iv) the consent of
the Swingline Lender and each LC Issuing Bank shall be required in connection
with any assignment of all or any portion of the Revolving Loan Commitments
(such consents not to be unreasonably withheld or delayed), (v) the Agent shall
receive at the time of each such assignment, from the assigning or assignee
Lender, the payment of a non-refundable assignment fee of $3,500, and (vi) no
such transfer or assignment will be effective until recorded by the Agent on
the Register pursuant to Section 10.11. To the extent of any assignment
pursuant to this Section 10.06(b), the assigning Lender shall be relieved of
its obligations hereunder with respect to its assigned Commitments. At the time
of each assignment pursuant to this Section 10.06(b) to a Person which is not
already a Lender hereunder and which is not a person (as such term is defined
in Section 7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Lender shall, to the extent legally entitled to do so,
-97-
provide to the Borrower the appropriate Internal Revenue Service Forms
described in Section 8.04(d). To the extent that an assignment of all or any
portion of a Lender's Commitments and related outstanding Obligations pursuant
to Section 8.06 or this Section 10.06(b) would, at the time of such assignment,
result in increased costs under Article 8 from those being charged by the
respective assigning Lender prior to such assignment, then the Borrower shall
not be obligated to pay such increased costs (although the Borrower, in
accordance with and pursuant to the other provisions of this Agreement, shall
be obligated to pay any other increased costs of the type described above
resulting from changes after the date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Lender from
pledging its Loans and Notes hereunder to a Federal Reserve Bank in support of
borrowings made by such Lender from such Federal Reserve Bank and, with the
consent of the Agent, any Lender which is a fund may pledge all or any portion
of its Loans or Notes to its trustee in support of its obligations to its
trustee. No pledge pursuant to this clause (c) shall release the transferor
Lender from any of its obligations hereunder.
SECTION 10.07. Governing Law; Submission to Jurisdiction. This Agreement
and each Note shall be governed by and construed in accordance with the laws of
the State of New York. Each Obligor hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York State court sitting in New York City for purposes
of all legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. Each Obligor irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
SECTION 10.08. Counterparts; Integration; Effectiveness; Amendment and
Restatement. This Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement constitutes
the entire agreement and understanding among the parties hereto and supersedes
any and all prior agreements and understandings, oral or written, relating to
the subject matter hereof. This Agreement shall become effective on the date
(the "Effective Date") when the Agent has received from each of the parties
hereto a counterpart hereof signed by such party or facsimile or other written
confirmation satisfactory to the Agent confirming that such party has signed a
counterpart hereof. If all of the lenders under the Existing Credit Agreement
are or become Lenders under this Agreement on the Effective Date, then the
Existing Credit Agreement shall be amended and restated in its entirety to be
this Agreement, and should be superseded hereby.
SECTION 10.09. Confidentiality. Each Lender Party agrees to keep any
information delivered or made available by the Borrower pursuant to or in
connection with this Agreement confidential from anyone other than persons
employed or retained by such Lender Party who are engaged in evaluating,
approving, structuring or administering the credit facility contemplated
hereby; provided that nothing herein shall prevent any Lender Party from
disclosing such information (a) to any other Lender Party, (b) to any other
Person if reasonably incidental to the administration of the credit facility
contemplated hereby, (c) upon the order of any court or administrative agency
-98-
or as otherwise required by law, (d) upon the request or demand of any
regulatory agency or authority, (e) which had been publicly disclosed other
than as a result of a disclosure by any Lender Party prohibited by this
Agreement, (f) in connection with any litigation to which any Lender Party or
its subsidiaries or Parent may be a party, (g) to the extent necessary in
connection with the exercise of any remedy hereunder, (h) to legal counsel and
independent auditors and (i) subject to obtaining a prior written agreement for
the benefit of the Borrower on terms substantially similar to those contained
in this Section, to any actual or proposed participant in the Loan or Assignee.
SECTION 10.10. Waiver of Jury Trial. EACH OBLIGOR AND EACH LENDER PARTY
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 10.11. Register. The Borrower hereby designates the Agent to serve
as the Borrower's agent, solely for the purposes of this Section 10.11, to
maintain a register (the "Register") on which it will record the Commitments
from time to time of each of the Lenders, the Loans made by each of the Lenders
and each repayment in respect of the principal amount of the Loans of each
Lenders. Failure to make any such recordation, or any error in such recordation
shall not affect the Borrower'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
Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Agent with respect to ownership of such Commitments
and Loans and prior to such recordation all amounts owing to the transferor
with respect to such Commitments and Loans shall be recorded by the Agent on
the Register only upon the acceptance by the Agent of a properly executed and
delivered Assignment and Assumption Agreement pursuant to Section 10.06(b).
Coincident with the delivery of such an Assignment and Assumption Agreement to
the 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 the Note evidencing such Loan, and thereupon
one or more new Notes in the same aggregate principal amount shall be issued to
the assigning or transferor Lender and/or the new Lender. The Borrower agrees
to indemnify the Agent from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted against or
incurred by the Agent in performing its duties under this Section 10.11 except
to the extent of the Agent's gross negligence or willful misconduct.
SECTION 10.12. Survival. All indemnities set forth herein including,
without limitation, in Sections 2.13, 7.06 and 10.03 and in Article 8 shall
survive the execution, delivery and termination of this Agreement and the Notes
and the making and repayment of the Obligations.
-99-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
TEKNI-PLEX, INC., as Borrower
By /s/ Dr. F. Xxxxxxx Xxxxx
---------------------------
Name: F. Xxxxxxx Xxxxx
Title: Chief Executive Officer
Address: 000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Dr. F. Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
PURETEC CORPORATION
XXXXXX HOLDINGS, INC.
TRI-SEAL HOLDINGS, INC.
PLASTIC SPECIALITIES AND TECHNOLOGIES, INC.
BURLINGTON RESINS, INC.
PLASTIC SPECIALTIES AND TECHNOLOGIES
INVESTMENTS, INC.
PURE TECH APR, INC.
MULTI CONTAINER RECYCLER, INC.
COAST RECYCLING NORTH, INC.
DISTRIBUTORS RECYCLING, INC.
REI DISTRIBUTORS, INC.
PURE TECH RECYCLING OF CALIFORNIA
ALUMET SMELTING CORPORATION,
as Guarantors
By /s/ Dr. F. Xxxxxxx Xxxxx
-----------------------------------------
Name: F. Xxxxxxx Xxxxx
Title: Chief Executive Officer
Address: 000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Dr. F. Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Lender,
Agent and LC Issuing Bank
By /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Address: 00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
SCHEDULE 1
COMMITMENTS
Tranche Tranche Revolving
A Term Loan B Term Loan Loan
Lender Commitment Commitment Commitment
------ ---------- ---------- ----------
Xxxxxx Guaranty Trust
Company of New York
$100,000,000 $244,000,000 $100,000,000
Total: $100,000,000 $244,000,000 $100,000,000
============ ============ ============
SCHEDULE 2
DEBT TO REMAIN OUTSTANDING
AMOUNT
OUTSTANDING
AS OF
DEBT INSTRUMENTS EFFECTIVE DATE
--------------------------------------------------------------------------------
1. Loan agreement dated as of December 24, 1996 between N.V. $426,980
Generale Bank ("Generale") and Action Technology Belgium N.V.
("ATB"); letter agreement dated November 30, 1995 from Plastic
Specialties and Technologies, Inc. and Plastic Specialties and
Technologies Investments, Inc. to Generale; basic agreement for
middle long term and long term Loans dated as of December 11,
1995 between Generale and ATB; credit facility dated as of
January 21, 1997 between Generale and ATB; credit facility dated
as of March 4, 1994 between Bank Brussel Xxxxxxx and ATB
--------------------------------------------------------------------------------
2. Conditional sale contract dated March 4, 1996 between Pomini $688,489
SpA and Action Technology Italia SpA ("ATI"); conditional sale
contract dated June 14, 1996 between Rutil S.R.L. and ATI;
conditional sale contract dated December 19, 1995 between C.E.A.B.
SRL and ATI; and conditional sale contract dated December 21, 1995
between Proteo SRL and ATI, each relating to the financing provided
by Mediocredito Xxxxxxxx SpA; and loan agreement dated May 29, 1997
between Generale and ATI and the documents related thereto,
including, without limitation, the Guarantee by ATB
--------------------------------------------------------------------------------
3. Facility letter dated as of October 1, 1997 among $1,369,890
Ulster Bank Markets Limited, Ulster Bank Limited, Colorite
Europe Limited and PureTec Corporation and the documents related
thereto, including, without limitation, the Guarantee by PureTec
Corporation
--------------------------------------------------------------------------------
4. Loan facility dated as of May 23, 1996 between Colorite $3,760,727
Europe Limited ("CEL") and the Industrial Development Board for
Northern Ireland and the documents related thereto, including,
without limitation, the Guarantee by Pure Tech International
Inc. and Ozite Corporation, the written undertakings by Pure
Tech International Inc. and the letter of comfort from Pure Tech
International Inc.
--------------------------------------------------------------------------------
5. Cdn $1,000,000 Pureplast (Canada) Letter of Credit issued by $95,952
the Bank of Montreal on October 30, 1997
--------------------------------------------------------------------------------
SCHEDULE 3
DOMESTIC SUBSIDIARIES
1. PureTec Corporation (Delaware)
2. Plastic Specialties and Technologies, Inc. (Delaware)
3. Burlington Resins, Inc. (Delaware)
4. Plastic Specialties and Technologies Investments, Inc. (Delaware)
5. Pure Tech APR, Inc.* (New York)
6. Multi Container Recycler, Inc.* (Michigan)
7. Coast Recycling North, Inc.* (California)
8. Distributors Recycling, Inc. (New Jersey)
9. REI Distributors, Inc. (New Jersey)
10. Pure Tech Recycling of California* (California)
11. Alumet Smelting Corporation* (New Jersey)
12. Xxxxxx Holdings, Inc. (Delaware)
13. Tri-Seal Holdings, Inc. (Delaware)
______________
* De Minimis Subsidiary
FOREIGN SUBSIDIARIES
1. Colorite Plastics Canada Ltd. (Canada)
2. Tekni-Plex, Europe, N.V. (Belgium)
3. Action Technology Italia SpA (Italy)
4. Colorite Europe Limited (N. Ireland)
5. PurePlast Acquisition Limited (Canada)
CORPORATE ORGANIZATION
List of the Direct Subsidiaries of the Borrower and Each Subsidiary
Tekni-Plex, Inc. (Delaware):
---------------------------
PureTec Corporation (Delaware)
PurePlast Acquisition Limited (Canada)
Xxxxxx Holdings, Inc. (Delaware)
Tri-Seal Holdings, Inc. (Delaware)
PureTec Corporation (Delaware):
------------------------------
Plastic Specialties and Technologies, Inc. (Delaware)
Burlington Resins, Inc. (Delaware)
Plastic Specialties and Technologies, Inc. (Delaware)
-----------------------------------------------------
Pure Tech APR, Inc.* (New York)
Multi Container Recycler, Inc.* (Michigan)
Pure Tech Recycling of California* (California)
REI Distributors, Inc. (New Jersey)
Plastic Specialties and Technologies Investments, Inc. (Delaware)
Pure Tech Recycling of California* (California):
-----------------------------------------------
Coast Recycling North, Inc.* (California)
REI Distributors, Inc. (New Jersey):
-----------------------------------
Distributors Recycling, Inc. (New Jersey)
Alumet Smelting Corporation* (New Jersey)
Plastic Specialties and Technologies Investments, Inc. (Delaware):
-----------------------------------------------------------------
Colorite Plastics Canada Ltd. (Canada)
Tekni-Plex, Europe, N.V. (Belgium)
Colorite Europe Limited** (N. Ireland)
Tekni-Plex, Europe, N.V. (Belgium):
----------------------------------
Action Technology Italia SpA (Italy)
Colorite Europe Limited** (N. Ireland)
_______________
* De Minimis Subsidiary
** The Preferred Stock of Colorite Europe Limited is owned by Tekni-Plex,
Europe, N.V. The Common Stock of Colorite Europe Limited is owned by Plastic
Specialties and Technologies Investments, Inc., but will be transferred to
Tekni-Plex, Europe, N.V. on or about July 1, 2000.
SCHEDULE 4
EXISTING LIENS
------------------------------------------------------------------------------------------------------------------------------------
Debtor Name Secured Party Jurisdiction File Number File Date
------------------------------------------------------------------------------------------------------------------------------------
Alumet Smelting Midlantic National Bank Essex County, NJ 58394, 58394 08/26/88,
Corporation (assignee of New Jersey (continuation) 08/09/93
Economic Development Authority)
------------------------------------------------------------------------------------------------------------------------------------
Alumet Smelting Midlantic National Bank Secretary of State, NJ 1210526, 1210526 08/25/88,
Corporation (assignee of New Jersey (continuation) 08/11/93
Economic Development Authority)
------------------------------------------------------------------------------------------------------------------------------------
American Gasket Siemens Credit Corp. Secretary of State, IL 003445684 09/12/95
& Rubber
------------------------------------------------------------------------------------------------------------------------------------
Burlington Citicorp Dealer Finance Secretary of State, NJ 1730317 10/28/96
Resins, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Distributors Xxxxx Incorporated Secretary of State, NJ 1496991 02/22/93
Recycling, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Distributors UJB Leasing Corporation Secretary of State, NJ 1502563 03/24/93
Recycling, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Distributors UJB Leasing Corporation Secretary of State, NJ 1515592 06/15/93
Recycling, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Distributors Caterpillar Financial Secretary of State, NJ 15276819 08/23/93
Recycling, Inc. Services Corporation
------------------------------------------------------------------------------------------------------------------------------------
Distributors UJB Leasing Corporation Secretary of State, NJ 1502563 03/24/93
Recycling, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Dolco Packaging Petula Associates, Ltd. Xxxxxx Xxxxxx, XX 000000 07/01/98
Corp.
------------------------------------------------------------------------------------------------------------------------------------
Dolco Packaging Toyota Motor Credit Corp. Department of 00-000-0000 02/08/93
Corp. Licensing, WA
------------------------------------------------------------------------------------------------------------------------------------
Dolco Packaging VISY Recycling Inc. Gwinett County, GA 00-0000-0000 08/09/95
Corp.
------------------------------------------------------------------------------------------------------------------------------------
Dolco Packaging Xxxxx X. Xxxxxx, MD Gwinett County, GA BK 903 PG 022 5/28/98
Corp. VS. Xxxxxxx X. Xxxxxx c/o
Dolco Packaging
------------------------------------------------------------------------------------------------------------------------------------
Dolco Packaging Caterpillar Financial Secretary of State, NJ 1912809 06/16/99
Corp. Services Corp.
------------------------------------------------------------------------------------------------------------------------------------
Dolco Packaging Caterpillar Financial Secretary of State, NJ 1930666 09/17/99
Corp. Services Corp.
------------------------------------------------------------------------------------------------------------------------------------
Dolco Packaging Xxxx-Xxxxxxx Associates Secretary of State, TX 124400 06/25/93
Corp. & Petula Associates, Ltd.
------------------------------------------------------------------------------------------------------------------------------------
Dolco Packaging Xxxx-Xxxxxxx Associates Secretary of State, TX 682518 07/01/98
Corp. & Petula Associates, Ltd.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Orange County Tax Collector Orange County, CA 92-792412 11/19/92
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Orange County Tax Collector Orange County, CA 92-792413 11/19/92
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties San Xxxx, Puerto Rico
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Hyster Credit Company Secretary of State, CA 0000000000 05/19/97
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Xxxxxxxx / XxXxxxxx Secretary of State, IL 3014098, 3644570 07/29/92,
and Technologies, Inc. Associates, Inc. (continuation) 01/29/97
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Siemans Credit Corporation Secretary of State, IL 3303697 09/09/94
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Siemans Credit Corporation Secretary of State, IL 3445684 09/12/95
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Associates Leasing Inc. Secretary of State, IL 3571172 07/26/96
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Citicorp Dealer Finance Secretary of State, NJ 1624155 03/16/95
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Associates Leasing, Inc. Secretary of State, NJ 1645182 07/07/95
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties IBM Credit Corporation Secretary of State, NJ 1662101 10/13/95
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Associates Leasing, Inc. Secretary of State, NJ 1663608 10/20/95
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Associates Leasing, Inc. Secretary of State, NJ 1663610 10/20/95
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Associates Leasing, Inc. Secretary of State, NJ 1669477 11/28/95
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Associates Leasing, Inc. / V Secretary of State, NJ 1669502 11/30/95
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Associates Leasing, Inc. / V Secretary of State, NJ 1682280 02/14/96
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Siemens Credit Corporation Secretary of State, NJ 1686200 03/07/96
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Associates Leasing, Inc. Secretary of State, NJ 1695666 05/01/96
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Associates Leasing, Inc. / V Secretary of State, NJ 1706439 06/24/96
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Caterpillar Financial Services Secretary of State, NJ 1718584 08/23/96
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Crown Credit Company Secretary of State, NJ 1720169 09/05/96
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Hyster Credit Company Secretary of State, NJ 1741521 12/27/96
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Xxxxxxx Company Secretary of State, NJ 1765654 05/09/97
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Associates Leasing, Inc. Secretary of State, NJ 1786419 08/15/97
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Siemens Credit Corporation Secretary of State, NJ 1814892 11/24/97
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Caterpillar Financial Secretary of State, NV 9613519 08/26/96
and Technologies, Inc. Services Corporation
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Toyota Motor Credit Corp. Secretary of State of NY 069662 04/02/98
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties and Toyota Motor Credit Corp. Xxxxxxx Xxxxxx, XX 00-00000 04/01/98
Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties and Sun Financial Group Inc. Secretary of State, TX 9300123155, 06/24/93,
Technologies, Inc. 9300123155 05/19/94
(assignment to The
CIT Group/Equipment
Financing, Inc.)
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties and Xxxxxxx Company; D/B/A G.H. Secretary of State, TX 9600175203 09/03/96
Technologies, Inc. Xxxxxxx Company
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Huntington National Bank Secretary of State, WV 0485818 01/09/98
and Technologies, Inc.*
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties Xxxxx Credit Corp. Xxxxxxxxx Xxxxxx, XX 000000 10/31/94
and Technologies, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Plastron Crown Credit Company Secretary of State, CA 9524360204 08/28/95
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech APR, Inc. Yale Financial Services, Inc. Secretary of State, NJ 1517444 06/25/93
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech APR, Inc. Yale Financial Services, Inc. Secretary of State, NJ 1517448 06/25/93
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech APR, Inc. Yale Financial Services, Inc. Secretary of State, NJ 1517449 06/25/93
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech Wasco Funding Corp. Secretary of State, NJ 1505856 04/16/93
International, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech Yale Financial Services, Inc. Secretary of State, NJ 1577626 06/23/94
International, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech NCS Plastics, Inc., as plaintiff Suffolk County, NY CEC-95-1653 12/15/97
International, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech Plastics Toyota Motor Credit Corp. Xxxxxxx Xxxxxx, XX 000000 04/02/98
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech Plastics Toyota Motor Credit Corp. Secretary of State, NY 069662 04/02/98
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech SPP Judgement - MA Department Hamden County, MA Bk10614 P584 12/17/98
Corporation of Revenue
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech SPP Judgement - MA Department Hamden County, MA Bk10779 P029 05/25/99
Corporation of Revenue
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech SPP STL - MA Department of Revenue Secretary of 050056 12/17/98
Corporation Commonwealth, MA
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech SPP STL - MA Department of Revenue Secretary of 052643 5/12/99
Corporation Commonwealth, MA
------------------------------------------------------------------------------------------------------------------------------------
PurePlast, Inc. Bank of Montreal Ontario Province, 000000000 10/05/93
Canada
------------------------------------------------------------------------------------------------------------------------------------
Tekni-Plex, Inc. Energy Capital and Services, L.P. Secretary of State, NJ 1683909 02/26/96
------------------------------------------------------------------------------------------------------------------------------------
Tri-Seal International Wasco Funding Corp. Xxxxxxxxx xx Xxxxx, XX 000000 12/1796
------------------------------------------------------------------------------------------------------------------------------------
Tri-Seal International Wasco Funding Corp. Secretary of State, NY 057188 03/21/97
------------------------------------------------------------------------------------------------------------------------------------
Debtor Name Collateral
------------------------------------------------------------------------------------------------------------------------------------
Alumet Smelting Corporation All funds deposited from time
to time in the 'Project
Fund' established pursuant
to "Indenture of Trust"
dated as of December 1,
1980
------------------------------------------------------------------------------------------------------------------------------------
Alumet Smelting Corporation All funds deposited from time
to time in the 'Project
Fund' established pursuant
to "Indenture of Trust"
dated as of December 1,
1980
------------------------------------------------------------------------------------------------------------------------------------
American Gasket & Rubber Copy on backorder
------------------------------------------------------------------------------------------------------------------------------------
Burlington Resins, Inc. Four used Kalmar model #ACE50 with 83X130"
Mast, 42" Forks, and Sideshifter; Six new
GNB Batteries model #18-85C23
------------------------------------------------------------------------------------------------------------------------------------
Distributors Recycling, Inc. One Caterpillar model 916, serial number
2XB1668, and all attachments and
accessories together with proceeds,
contract rights and chattel paper arising
out of the sale, lease or other
dispositions by the Debtor of the
foregoing described property; nothing
herein shall be construed as authorization
to dispose of the described collateral by
Debtor
------------------------------------------------------------------------------------------------------------------------------------
Distributors Recycling, Inc. Equipment described on attached Annex A
(screening machines, steel sheets,
channels, plates, etc...) to Schedule No.
001 to Master Lease Agreement dated as of
March 18, 1993, Master Lease No. 64738,
and to further include (i) all owners
manuals, operating instructions,
maintenance logs and warranties together
with all documents relating thereto, (ii)
all improvements, additions, attachments,
substitutions and replacements, now owned
or hereafter acquired
------------------------------------------------------------------------------------------------------------------------------------
Distributors Recycling, Inc. One 1984 Mikropul model 289S-12-20TRH dust
collector, s/n 840139, and to further
include (i) all owners manuals, operating
instructions, maintenance logs and
warranties together with all documents
relating thereto, (ii) all improvements,
additions, attachments, substitutions and
replacements, now owned or hereafter
acquired
------------------------------------------------------------------------------------------------------------------------------------
Distributors Recycling, Inc. One Caterpillar 916 Wheel Loader, S/n
2XB01668, and substitutions, replacements,
additions and accessions thereto now owned
or hereafter acquired and proceeds thereof
------------------------------------------------------------------------------------------------------------------------------------
Distributors Recycling, Inc. Equipment described on attached Annex A
(storage xxxxxx, rotary glass dryer,
etc...), and to further include (i) all
owners manuals, operating instructions,
maintenance logs and warranties together
with all documents relating thereto, (ii)
all improvements, additions, attachments,
substitutions and replacements, now owned
or hereafter acquired
------------------------------------------------------------------------------------------------------------------------------------
Dolco Packaging Corp. All types of goods, inventory, equipment,
fixtures, furniture, improvements, chattel
paper, products, and general intangibles,
and other personal property of Tenant now,
or hereafter situated on or relating to
Tenant's use of the premisses located at
0000 Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX.
There is a landlord's lien that has been
filed as a result of litigation between
Dolco and Petula. A court judgment has
been entered in favor of Dolco permitting
it to own the property in question. There
is no outstanding debt in relation to this
Lien.
------------------------------------------------------------------------------------------------------------------------------------
Dolco Packaging Corp. Two 5FG15 forklifts #75479 and #75489
------------------------------------------------------------------------------------------------------------------------------------
Dolco Packaging Corp. Selco V5-R 60" Vertical Baler
------------------------------------------------------------------------------------------------------------------------------------
Dolco Packaging Corp. Judgment for $12,328.97 entered against
Xxxxxxx Xxxxxx c/o Dolco Packaging. Xx.
Xxxxxx'x wages have been garnished. Dolco
owes no monies under the judgment and was
incorrectly named as a defendant. Dolco
and the State Court of Gwinett County are
working to have Dolco removed from the
judgment.
------------------------------------------------------------------------------------------------------------------------------------
Dolco Packaging Corp. (1) Caterpillar GC 25-LP Lift Truck S/N:
4EM90627and Substitutions, Replacements,
Additions, & Accessions thereto, no owned
or hereafter acquired, and proceeds
thereof. - 2 page Attachment
------------------------------------------------------------------------------------------------------------------------------------
Dolco Packaging Corp. (1) Caterpillar FC-40 Lift Truck S/N:
5FB03350 and Substitutions, Replacements,
Additions, & Accessions thereto, no
owned or hereafter acquired, and proceeds
thereof. - 2 page Attachment
------------------------------------------------------------------------------------------------------------------------------------
Dolco Packaging Corp. All types (or items) of property described
in attached paragraph 24 entitled
"Landlord's Lien" of property located at
0000 Xxxxxxxxxxxx Xx., Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Dolco Packaging Corp. Amendment to Secured Party's Address -
All types (or items) of property described
in attached paragraph 24 entitled
"Landlord's Lien" of property located at
0000 Xxxxxxxxxxxxx Xxxx, Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. Judgment lien in the amount of $6,544.25
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. Judgment lien in the amount of $6,285.16
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. Currently awaiting lien search results in
this jurisdiction.
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. One Hyster Lift Truck model with wheels,
tires, and all other attachments and
accessories
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. Computer, data processing,
telecommunications and other equipment
together with all attachments,
accessories, replacements, products and
proceeds thereof, from time to time leased
by Lessor to Lessee pursuant to Master
Equipment Lease Agreement No. F17486 dated
July 8, 1992 and various Schedules entered
into pursuant thereto; this filing is for
informational purposes only and shall not
of itself be a factor in determining
whether or not a lease is intended as
security
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. The property covered under Leasing
Schedule #000-0000000-000 to Master
Equipment Lease Agreement #000-0000000-000
between Debtor and Secured Party,
including ROLM 9200 model 230 Phone
System, and all accessories, attachments,
replacements, substitutions,
modifications, and additions thereto, now
or hereafter acquired, and all proceeds
thereof (including insurance proceeds)
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. The property covered under Leasing
Schedule #000-0000000-000 to Master
Equipment Lease Agreement #000-0000000-000
between Debtor and Secured Party,
including ROLM 9200 model 230 Phone System
as described in Vendor Quote FVGCIXU and
Installation Change Order, and all
accessories, attachments, replacements,
substitutions, modifications, and
additions thereto, now or hereafter
acquired, and all proceeds thereof
(including insurance proceeds)
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. One New Komatsu forklift model FB18SH-6
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. One Nissan Model 50KLP Forklift
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. One New Advance Sweeper model 5100-6, s/n
0558567; together with all present and
future attachments, accessories,
replacement parts, additions, and all
chattel paper, documents, intangibles,
instruments, accounts, contract rights,
and leases now existing or hereafter
arising with respect to the above
collateral, and all rental payments, and
other income relating thereto or arising
therefrom, and all cash and non-cash
proceeds thereof
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. IBM equipment (including all addtions,
accessions, upgrades, and replacements)
referenced on IBM sup #229856 dated
09/22/95; filed pursuant to ss. 9-408 of the
UCC
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. One Hyster S50XL Forklift s/n:
C187V11860S, GM LPG; Lever; 189" 3 Stage;
Sideshift; Lights; together with all
present and future attachments,
accessories, replacement parts, additions,
and all chattel paper, documents,
intangibles, instruments, accounts,
contract rights, and leases now existing
or hereafter arising with respect to the
above collateral, and all rental payments,
and other income relating thereto or
arising therefrom, and all cash and
non-cash proceeds thereof
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. Two Hyster S50XL Forklifts s/n:
C187V13650S, C187V13651S; GM LPG; Lever;
189" 3 Stage; Sideshift; Lights; 4 Way
Valve & Hose Group; together with all
present and future attachments,
accessories, replacement parts, additions,
and all chattel paper, documents,
intangibles, instruments, accounts,
contract rights, and leases now existing
or hereafter arising with respect to the
above collateral, and all rental payments,
and other income relating thereto or
arising therefrom, and all cash and
non-cash proceeds thereof
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. One Hyster S50XL Forklift Truck s/n:
C187V15059S, GM; LPG; Lever; 189" 3 Stage;
Sideshift; together with all present and
future attachments, accessories,
replacement parts, additions, and all
chattel paper, documents, intangibles,
instruments, accounts, contract rights,
and leases now existing or hereafter
arising with respect to the above
collateral, and all rental payments, and
other income relating thereto or arising
therefrom, and all cash and non-cash
proceeds thereof
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. One Advance Scrubber model 5100, s/n
1078258
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. Seven Nissan forklifts model C50KLP, s/n
905862, 906163, 906164, 906165, 906166,
906167, 906168
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. The property covered under Leasing
Schedule #000-0000000-000 to Master
Equipment Lease Agreement #000-0000000-000
between Debtor and Secured Party,
including ROLM 9200 model 230 Phone
System, and all accessories, attachments,
replacements, substitutions,
modifications, and additions thereto, now
or hereafter acquired, and all proceeds
thereof (including insurance proceeds)
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. Two Nissan model E30Y s/n 950078 and s/n
950079
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. One Nissan model E30Y s/n 906799
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. One New Caterpillar GP25LP Lift Truck s/n
4EM90406 and, substitutions, replacements,
additions and accessions thereto, now
owned or hereafter acquired, and proceeds
thereof. This is a precautionary filing
and is not to be deemed as an admission by
any party that the lease agreement is
other than a true lease
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. One Daewoo Model GS25S-188, Serial #0602555
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. Four New Hyster E30XM forklifts s/n
D114V01837T; D114V01841T; D114V01842T;
D114V01853T; 36 Volt; 171.5" 3 Stage;
Sideshift; Four Batteries; Four Chargers;
This filing is for informational purposes
only
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. Xxxxxxx Model 1868 Power Sweeper, equipped
with brush, located at 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxxx, XX
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. One 1997 Nissan model C50KLP, s/n 909128
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. The property covered under Leasing
Schedule #000-0000000-000 to Master
Equipment Lease Agreement #000-0000000-000
between Debtor and Secured Party,
including ROLM 9200 model 230 Phone
System, and all accessories, attachments,
replacements, substitutions,
modifications, and additions thereto, now
or hereafter acquired, and all proceeds
thereof (including insurance proceeds)
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. One New Caterpillar GP25LP Lift Truck s/n
4EM90406 and substitutions, replacements,
additions and accessions thereto, now
owned or hereafter acquired, and proceeds
thereof; this is a precautionary filing
and is not to be deemed as an admission by
any party that the lease agreement is
other than a true lease
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. 3 New Toyota Forklift, Model 42-6FGCU-25
S#72355, 72336, 72341, Dual Fuel gas &
LPG, fork 42" side shifter
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. 3 New Toyota Forklift, Model 42-6FGCU-25
S#72355, 72336, 72341, Dual Fuel gas &
LPG, fork 42" side shifter
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. Forklift equipment located and described
below, leased pursuant to Lease Order No.
01, dated April 9, 1993 under Master Lease
Agreement dated April 9, 1993 between
Plastic Specialities and Technologies,
Inc, as Lessee, and Sun Financial Group,
Inc., as original Lessor; three C-50
Nissan cushion tire forklifts located at
000 Xxxxxx Xxxxxx, Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. Xxxxxxx model 5700 XP Power Scrubber equipped
with Scrub head 700 D, Squeegee assembly,
standard batteries, standard charger, two
polypropylene brushes, located at 000
Xxxxx Xx., Xxxx, XX
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc.* Attached Exhibit A - All goods, machinery,
equipment, furniture, fixtures, now owned
or hereafter acquired by Debtor, including
but not limited to, the items described on
attached Exhibits A-1 (bale breaker
conveyor, flake wash equipment, blue
washer, etc...) and A-2 (washers,
cylinders, silos, air compressors,
etc...); all replacements, attachments,
accessories, parts, equipment and tools
belonging thereto or for use in connection
with said Collateral, as well as all
substitutions, additions, and accessions;
all proceeds (including insurance proceeds
on the Collateral) arising from said
Collateral now owned or hereafter acquired
------------------------------------------------------------------------------------------------------------------------------------
Plastic Specialties
and Technologies, Inc. One New Xxxxx XX 15 Battery Powered, s/n
TM247-0765-9058; 188" Xxxxxx Xxxxx
Xxxxxxx, 00" Xxxxx, XX 00-000-00 battery,
Hobart 880C3-18 charger
------------------------------------------------------------------------------------------------------------------------------------
Plastron 1 Crown Life Truck Model RR3520-35 Serial
#1A158938
1 Deka Battery Model 00-000-00
Serial#1451GE
1 Hobart Charger Model 750M1-18 Serial
#295C508722
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech APR, Inc. Two Yale Forklifts GLP040A with
sideshifter and all accessions, additions,
replacements and substitutions thereto and
therefor, and all proceeds, including
insurance proceeds, thereof
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech APR, Inc. One new Yale Gas Forklift GLP040A with
sideshifter and all accessions, additions,
replacements and substitutions thereto and
therefor, and all proceeds, including
insurance proceeds thereof
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech APR, Inc. One Yale Forklift GLP040A with sideshifter
and all accessions, additions,
replacements and substitutions thereto and
therefor, and all proceeds, including
insurance proceeds thereof
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech International, Inc. One Panasonic DBS System w/VSR Voice Mail
System
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech International, Inc. All equipment now or hereafter leased by
Lessor to Lessee, including, with
limitation, the following: one used Yale
Forklift GLP040A; and all accessions,
additions, replacements and substitutions
thereto and therefore and all proceeds,
including insurance proceeds, thereof
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech International, Inc. Judgment lien in the amount of $11,737.03.
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech Plastics 3 New Toyota Forklift, Model
42-6FGCU-25 S#72355, 72336, 72341, Dual
Fuel gas & LPG, fork 42" side shifter
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech Plastics 3 New Toyota Forklift, Model
42-6FGCU-25 S#72355, 72336, 72341,
Dual Fuel gas & LPG, fork 42" side
shifter
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech SPP Corporation $35,790.39
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech SPP Corporation $90.15
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech SPP Corporation $35,790.39
------------------------------------------------------------------------------------------------------------------------------------
Pure Tech SPP Corporation $90.15
------------------------------------------------------------------------------------------------------------------------------------
PurePlast, Inc. UCC-1/Continuation
Inventory/Equipment/Accounts/Other/Motor
Vehicle Included
------------------------------------------------------------------------------------------------------------------------------------
Tekni-Plex, Inc. Certain energy efficiency equipment and
contract rights defined in the Energy
Services Lease Agreement dated October 29,
1992, Notice of and Consent to Assignment
dated 12/22/95, and First Amendment to the
Energy Services Lease Agreement dated
12/22/95, for facility located at Church
Street Extension, Flemington, NJ
------------------------------------------------------------------------------------------------------------------------------------
Tri-Seal International Equipment (Schedule not included in Search
result)
------------------------------------------------------------------------------------------------------------------------------------
Tri-Seal International Equipment (Schedule not included in Search
result)
------------------------------------------------------------------------------------------------------------------------------------
---------
* The Debt secured by these Liens has been repaid in full and commitments with
respect thereto have been terminated. The Borrower shall use its best efforts
to file terminations within 30 days of the Initial Borrowing Date and, in no
event, more than 60 days following the Initial Borrowing Date.
SCHEDULE 5
PURETEC PROPERTIES OWNED
Location Owner/Mortgagor
000 Xxxxxxxxxxx Xxxxxxxxxx Xxxx. Plastic Specialties and Technologies
Dalton, Georgia Inc. ("PST")
0000 Xxxxx 00 Xxxx XXX
Xxxxxxx, Xxxxxxxx
[9509 and] 0000 Xxxxxx Xxxxxx XXX
Xxxxxxxx Xxxx, Xxxxxxxx
00 Xxxxxxx Xxxx Xxxxxxxxxx Resins, Inc.
Burlington, New Jersey
000 Xxxxxxxx Xxxxxx XXX
Xxxxxxxxxx, Xxx Xxxxxx 00000
00 Xxxxx Xxxx Xxxx XXX
Xxxxxxxx, Xxx Xxxxxx
000 Xxxxx Xxxxx PST
Xxx 0, Xxxxx 0,
Xxxxx Xxxxxxx Xxxxxxxx
Xxxx, Xxxxx
000 Xxxxxxx Xxxx XXX
XxXxxxxx, Xxxxxxxxx 00000
TEKNI-PLEX PROPERTIES OWNED
Location Owner/Mortgagor
00 Xxxxxxxxxx Xxxxxxx Tekni-Plex, Inc.
Xxxxxxxxxx, Xxx Xxxxxx 00000
Branchburg Township
112 Church Stret Tekni-Plex, Inc.
Xxxxxxxxxx, Xxx Xxxxxx 00000
Raritan Township
0000 Xxxxxxxxx Xxxxxx Xxxxx-Xxxx, Inc.
Decatur, Indiana
252 Xxxxx Road Tekni-Plex, Inc.
Xxxxxxxxxxxxx, Xxxxxxx 00000
0000 Xxxxx Xxxxxxxx Xxxxxx Tekni-Plex, Inc.
Xxxxxxxxx, Xxxxxxxxxx 00000
XXXXXX PROPERTIES OWNED
Location Owner/Mortgagor
8720 U,S, Highway 70 Xxxxxx Holdings, Inc.
Xxxxxxx, Xxxxx Xxxxxxxx 00000
SCHEDULE 6
SUBSIDIARIES THAT ARE NOT IN GOOD STANDING
1. Distributors Recycling, Inc.
2. REI Distributors, Inc.
3. Alumet Smelting Corporation
4. Coast Recycling North, Inc.
5. Pure Tech Recycling of California
6. Multi Container Recycler, Inc.
INSOLVENT SUBSIDIARIES(1)
1. Distributors Recycling, Inc.
2. REI Distributors, Inc.
3. Alumet Smelting Corporation
4. Coast Recycling North, Inc.
5. Pure Tech Recycling of California
6. Multi Container Recycler, Inc.
7. PureTec Corporation
8. Pure Tech APR, Inc.
______________
(1)The reason for the insolvency in the case of each of these subsidiaries is
intercompany debt and not debt with relation to third parties.
EXHIBIT D
[CONFORMED AS EXECUTED]
SECURITY AGREEMENT
AGREEMENT dated as of June 21, 2000 between TEKNI-PLEX, INC.
(with its successors, the "Borrower" and, together with any other Person which
becomes a Grantor pursuant to Section 3(B), the "Grantors" and each a "Grantor")
and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Collateral Agent (with its
successor in such capacity, the "Collateral Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, certain lenders (the "Lenders") and
Xxxxxx Guaranty Trust Company of New York, as Agent for such Lenders, are
parties to a Credit Agreement of even date herewith (as the same may be amended
from time to time, the "Credit Agreement"); and
WHEREAS, in order to induce said Lenders and Xxxxxx Guaranty
Trust Company of New York, as Agent for such Lenders, to enter into the Credit
Agreement, each Grantor has agreed to grant a continuing security interest in
and to the Collateral (as hereafter defined) to secure the Grantors' obligations
under the Credit Agreement and the obligations of the Borrower under the Notes
issued pursuant thereto;
WHEREAS, the Borrowers may from time to time be party to one
or more agreements with respect to Derivatives Obligations (each such agreement
with respect to Derivatives Obligations with a Derivatives Creditor (as defined
below), a "Derivatives Obligations Agreement") with any Lender or Lenders or an
affiliate of Lender (even if any such Lender ceases to be a Lender under the
Credit Agreement for any reason) and in each case their subsequent assigns
(collectively, the "Derivatives Creditors" and together with the Lenders, the
"Secured Creditors");
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions
Terms defined in the Credit Agreement and not otherwise
defined herein have, as used herein, the respective meanings provided for
therein. The following additional terms, as used herein, have the following
respective meanings:
"Accounts" means all "accounts" (as defined in the UCC) now
owned or hereafter acquired by any Grantor, and shall also mean and
include all accounts receivable, contract rights, book debts and other
obligations or indebtedness owing to any Grantor arising from the sale,
lease or exchange of goods or other property by it and/or the
performance of services by it (including, without limitation, any such
obligation which might be characterized as an account, contract right
or general intangible under the Uniform Commercial Code in effect in
any jurisdiction) and all of any Grantor's rights in, to and under all
purchase orders for goods, services or other property, and all of any
Grantor's rights to any goods, services or other property represented
by any of the foregoing (including returned or repossessed goods and an
unpaid seller's right of rescission, replevin, reclamation and rights
to stoppage in transit) and all monies due to or to become due to any
Grantor under all contracts for the sale, lease or exchange of goods or
other property and/or the performance of services by it (whether or not
yet earned by performance on the part of such Grantor), in each case
whether now in existence or hereafter arising or acquired including,
without limitation, the right to receive the proceeds of said purchase
orders and contracts and all collateral security and guarantees of any
kind given by any Person with respect to any of the foregoing.
"Class" shall have the meaning provided in Section 16 of this
Agreement.
"Collateral" has the meaning set forth in Section 3.
"Copyright License" means any agreement now or hereafter in
existence granting to any Grantor, or pursuant to which any Grantor has
granted to any other Person, any right to use, copy, reproduce,
distribute, prepare derivative works based upon, display or publish any
records or other materials on which a Copyright is in existence or may
come into existence.
"Copyrights" means all the following: (i) all copyrights under
the laws of the United States or any other country (whether or not the
underlying works of authorship have been published), all registrations
and recordings thereof, all intellectual property rights to works of
authorship (whether or not published), and all applications for
copyrights under the laws of the United States or any other country,
including, without limitation, registrations, recordings and
applications in the United States Copyright Office or in any similar
office or agency of the United States, any State thereof or any other
country or any political subdivision thereof, including, without
limitation, those described in Schedule 1 to Exhibit E hereto, (ii) all
reissues, renewals and extensions thereof, (iii) all claims for, and
rights to xxx for, past or future infringements of any of the
foregoing, and (iv) all income, royalties, damages and payments now or
hereafter due or payable with respect to any of the foregoing,
including, without limitation, damages and payments for past or future
infringements thereof.
"Copyright Security Agreement" means a Copyright Security
Agreement executed and delivered by a Grantor in favor of the
Collateral Agent, for the benefit of the Lenders, substantially in the
form of Exhibit E hereto, as the same may be amended from time to time.
"Documents" means all "documents" (as defined in the UCC) or
other receipts covering, evidencing or representing goods, now owned or
hereafter acquired by any Grantor.
"Equipment" means all "equipment" (as defined in the UCC) now
owned or hereafter acquired by any Grantor, including, without
limitation, all motor vehicles, trucks, trailers and Rolling Stock
(including Leased Rolling Stock).
"General Intangibles" means all "general intangibles" (as
defined in the UCC) now owned or hereafter acquired by any Grantor,
including, without limitation, (i) all obligations or indebtedness
owing to any Grantor (other than Accounts) from whatever source
arising, (ii) all Copyrights, Copyright Licenses, Patents, Patent
Licenses, Trademarks, Trademark Licenses, rights in intellectual
property, goodwill, trade names, brand names, service marks, trade
secrets, permits and licenses, (iii) all rights or claims in respect of
refunds for taxes paid, and (iv) all rights in respect of any pension
plan or similar arrangement maintained for employees of any member of
the ERISA Group.
"Instruments" means all "instruments", "chattel paper" or
"letters of credit" (each as defined in the UCC) evidencing,
representing, arising from or existing in respect of, relating to,
securing or otherwise supporting the payment of, any of the Accounts,
including (but not limited to) promissory notes, drafts, bills of
exchange and trade acceptances, now owned or hereafter acquired by any
Grantor.
"Inventory" means all "inventory" (as defined in the UCC), now
owned or hereafter acquired by any Grantor, wherever located, and shall
also mean and include, without limitation, all raw materials and other
materials and supplies, work-in-process and finished goods and any
products made or processed therefrom and all substances, if any,
commingled therewith or added thereto.
"LC Exposure" means, with respect to any Lender at any time,
an amount equal to its ratable share of the Aggregate LC Exposure.
"Leased Rolling Stock" has the meaning set forth in Section
3(A).
"Loan Document Obligations" shall have the meaning provided in
the definition of Secured "Obligations" in this Section 1.
"Patent License" means any agreement now or hereafter in
existence granting to any Grantor, or pursuant to which any Grantor has
granted to any other Person, any right with respect to any Patent or
any invention now or hereafter in existence, whether patentable or not,
whether a patent or application for patent is in existence on such
invention or not, and whether a patent or application for patent on
such invention may come into existence.
"Patents" means all of the following: (i) all letters patent
and design letters patent of the United States or any other country and
all applications for letters patent and design letters patent of the
United States or any other country, including, without limitation,
applications in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any
other country or any political subdivision thereof, including, without
limitation, those described in Schedule 1 to Exhibit C hereto, (ii) all
reissues, divisions, continuations, continuations-in-part, renewals and
extensions thereof, (iii) all claims for, and rights to xxx for, past
or future infringements of any of the foregoing, and (iv) all income,
royalties, damages and payments now or hereafter due or payable with
respect to any of the foregoing, including, without limitation, damages
and payments for past or future infringements thereof.
"Patent Security Agreement" means the Patent Security
Agreement executed and delivered by each Grantor in favor of the
Collateral Agent, for the benefit of the Lenders, substantially in the
form of Exhibit C hereto, as the same may be amended from time to time.
"Perfection Certificate" means a certificate substantially in
the form of Exhibit A, completed and supplemented with the schedules
and attachments contemplated thereby to the satisfaction of the
Collateral Agent, and duly executed by the chief executive officer of
each Grantor.
"Permitted Liens" means the Security Interests and the Liens
on the Collateral permitted to be created, to be assumed or to exist
pursuant to Section 5.09 of the Credit Agreement.
"Pledgee" shall have the meaning provided in the Pledge
Agreement.
"Proceeds" means all proceeds of, and all other profits,
products, rents or receipts, in whatever form, arising from the
collection, sale, lease, exchange, assignment, licensing or other
disposition of, or other realization upon, Collateral, including,
without limitation, all claims of each Grantor against third parties
for loss of, damage to or destruction of, or for proceeds payable
under, or unearned premiums with respect to, policies of insurance in
respect of, any Collateral, and any condemnation or requisition
payments with respect to any Collateral, in each case whether now
existing or hereafter arising.
"Requisite Creditors" shall have the meaning provided in
Section 16 of this Agreement.
"Rolling Stock" means all railcars, barges and other water
carrier equipment, and all accessions, appurtenances and parts
installed on and additions thereto, and replacements thereof, now owned
or hereafter acquired by the Company.
"Rolling Stock Leases" has the meaning set forth in Section
3(A).
"Rolling Stock Revenues" means any monies, revenues, payments
or credits now owned or hereafter acquired by any Grantor which are
generated by or attributable to the Rolling Stock or Leased Rolling
Stock, including, without limitation, railcar hire payments, mileage
allowances, per diem mileage payments, empty mileage allowances,
mileage credits and excess mileage credits, in each case whether now
existing or hereafter arising.
"Secured Obligations" means (i) the full and prompt payment
when due (whether at 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 Grantor, now existing or hereafter incurred under
any Loan Document to which it is a party (all such obligations and
liabilities under this clause (i) being herein collectively called the
"Loan Document 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 Grantor, now existing or hereafter incurred under,
arising out of or in connection with any Derivatives Obligations
Agreement designated by such Grantor and the related Derivatives
Creditor as a "Secured Derivatives Obligations Agreement", including
all obligations, if any, under a Guaranty in respect of any Derivatives
Obligations Agreement (all such obligations and indebtedness under this
clause (ii) being herein collectively called the "Secured Derivatives
Obligations"); (iii) any and all sums advanced by the Collateral Agent
in order to preserve the Collateral or preserve its security interest
in the Collateral in accordance with Section 11; (iv) in the event of
any proceeding for the collection or enforcement of any indebtedness,
obligations, or liabilities of each Grantor referred to in clauses (i),
(ii) and (iii) above after an Event of Default shall have occurred and
be continuing, the reasonable expenses of re-taking, holding, preparing
for sale or lease, selling or otherwise disposing of or realizing on
the Collateral, or of any exercise by the 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 11 of this
Agreement.
"Security Interests" means the security interests in the
Collateral granted hereunder securing the Secured Obligations.
"Trademark License" means any agreement now or hereafter in
existence granting to any Grantor, or pursuant to which any Grantor has
granted to any other Person, any right to use any Trademark.
"Trademarks" means all of the following: (i) all trademarks,
trade names, corporate names, company names, business names, fictitious
business names, trade styles, service marks, logos, brand names, trade
dress, prints and labels on which any of the foregoing have appeared or
appear, package and other designs, and any other source or business
identifiers, and general intangibles of like nature, and the rights in
any of the foregoing which arise under applicable law, (ii) the
goodwill of the business symbolized thereby or associated with each of
them, (iii) all registrations and applications in connection therewith,
including, without limitation, registrations and applications in the
United States Patent and Trademark Office or in any similar office or
agency of the United States, any State thereof or any other country or
any political subdivision thereof, including, without limitation, those
described in Schedule 1 to Exhibit D hereto, (iv) all reissues,
extensions and renewals thereof, (v) all claims for, and rights to xxx
for, past or future infringements of any of the foregoing, and (vi) all
income, royalties, damages and payments now or hereafter due or payable
with respect to any of the foregoing, including, without limitation,
damages and payments for past or future infringements thereof.
"Trademark Security Agreement" means the Trademark Security
Agreement executed and delivered by each Grantor in favor of the
Collateral Agent, for the benefit of the Lenders, substantially in the
form of Exhibit D hereto, as the same may be amended from time to time.
"UCC" means the Uniform Commercial Code as in effect on the
date hereof in the State of New York; provided that if by reason of
mandatory provisions of law, the perfection or the effect of perfection
or non-perfection of the Security Interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction
other than New York, "UCC" means the Uniform Commercial Code as in
effect in such other jurisdiction for purposes of the provisions hereof
relating to such perfection or effect of perfection or non-perfection.
SECTION 2. Representations and Warranties
Each Grantor represents and warrants as follows:
(A) The Grantors have good and marketable title to all of the
Collateral, free and clear of any Liens other than Permitted Liens.
Each Grantor has taken all actions necessary under the UCC to perfect
its interest in any Accounts purchased or otherwise acquired by it, as
against its assignors and creditors of its assignors.
(B) No Grantor has performed any acts which would prevent the
Collateral Agent from enforcing any of the terms of this Agreement or
which would limit the Collateral Agent in any such enforcement. Other
than financing statements or other similar or equivalent documents or
instruments with respect to the Security Interests and Permitted Liens
and other than documents or instruments in respect of which a
termination statement or other termination document has been filed, no
financing statement, mortgage, security agreement or similar or
equivalent document or instrument covering all or any part of the
Collateral is on file or of record in any jurisdiction in which such
filing or recording would be effective to perfect a Lien on such
Collateral. No Collateral is in the possession of any Person (other
than the Grantors) asserting any claim thereto or security interest
therein, except that the Collateral Agent or its designee may have
possession of Collateral as contemplated hereby and warehousemen,
carriers or other bailees may from time to time assert claims to or
security interests in Collateral in their possession.
(C) On or prior to the Initial Borrowing Date under the Credit
Agreement, the Grantors shall deliver a Perfection Certificate to the
Collateral Agent. The information set forth therein shall be correct
and complete.
(D) To the extent that the Collateral is subject to the UCC,
the Security Interests constitute valid security interests under the
UCC securing the Secured Obligations. When UCC financing statements in
the form specified in Exhibit A shall have been filed in the offices
specified in the Perfection Certificate, and this Agreement and any
amendments hereto in appropriate form have been filed in the office of
the Secretary of the Interstate Commerce Commission, with respect to
any Rolling Stock, Leased Rolling Stock or Rolling Stock Leases, the
Security Interests shall constitute perfected security interests in the
Collateral (except Inventory in transit) to the extent that a security
interest therein may be perfected by filing pursuant to the UCC and the
Interstate Commerce Act, prior to all other Liens and rights of others
therein except for the Permitted Liens. When the Patent Security
Agreement and the Trademark Security Agreement have been filed with the
United States Patent and Trademark Office, the Security Interests shall
constitute perfected security interests in all right, title and
interest of the Grantors in Patents and Trademarks, prior to all other
Liens and rights of others therein except for Permitted Liens. When a
Copyright Security Agreement has been filed with the United States
Copyright Office, the Security Interests shall constitute perfected
security interests in all right, title and interest of the Grantors in
Copyrights, prior to all other Liens and rights of others therein
except for Permitted Liens.
(E) The Inventory and Equipment are insured in accordance with
the requirements of the Credit Agreement.
(F) The Grantors have produced or will produce all Inventory
produced by them in compliance with the applicable requirements of the
Fair Labor Standards Act, as amended.
SECTION 3. The Security Interests
(A) In order to secure the full and punctual payment of the
Secured Obligations in accordance with the terms thereof, and to secure the
performance of all of the obligations of the Grantors hereunder and under the
Credit Agreement, the Grantors hereby grant to the Collateral Agent for the
ratable benefit of the Lenders a continuing security interest in and to all of
the following property of the Grantors, whether now owned or existing or
hereafter acquired or arising and regardless of where located (all being
collectively referred to as the "Collateral"):
(1) Accounts;
(2) Inventory;
(3) General Intangibles;
(4) Documents;
(5) Instruments;
(6) Equipment;
(7) All books and records (including, without limitation,
customer lists, marketing information, credit files, price lists,
operating records, vendor and supplier price lists, sales literature,
computer programs, printouts and other computer materials and records)
of any Grantor pertaining to any of the Collateral;
(8) All insurance policies;
(9) All right, title, claims and benefits now owned or
hereafter acquired by any Grantor in and to any railcar leases,
subleases, rental agreements and car hire contracts in which any
Grantor shall at any time have any interest, and any right, title,
claim and benefits of any Grantor now owned or hereafter acquired in
and to any management agreement concerning all such leases and
agreements (collectively, "Rolling Stock Leases"); and all right, title
and interest of any Grantor in the railcars and equipment provided
pursuant to any Rolling Stock Leases ("Leased Rolling Stock"); in each
case, including, without limitation, all rights of any Grantor to
receive and apply any Rolling Stock Revenues attributable to any Leased
Rolling Stock or pursuant to any Rolling Stock Leases;
(10) All rights now owned or hereafter acquired by any Grantor
to receive and collect any Rolling Stock Revenues; and
(11) All Proceeds of all or any of the Collateral described in
Clauses 1 through 10 hereof.
(B) The Borrower will cause any Domestic Subsidiary acquired
or established after the Effective Date to take appropriate steps to (i) become
a Guarantor pursuant to Section 5.22(d) of the Credit Agreement and a Grantor
hereunder and (ii) immediately grant to the Collateral Agent for the ratable
benefit of the Lenders a first priority security interest (subject to Permitted
Liens and to restrictions permitted by Section 5.17 of the Credit Agreement)
upon all of its assets that constitute Collateral as additional security for the
Secured Obligations.
(C) The Security Interests are granted as security only and
shall not subject the Collateral Agent or any Lender to, or transfer or in any
way affect or modify, any obligation or liability of any Grantor with respect to
any of the Collateral or any transaction in connection therewith.
SECTION 4. Further Assurances; Covenants
(A) No Grantor will change its name, identity or corporate
structure in any manner unless it shall have given the Collateral Agent not less
than 30 days' prior notice thereof and, if requested by the Collateral Agent,
delivered an opinion of counsel with respect thereto in accordance with Section
4(L). No Grantor will change the location of (i) its chief executive office or
chief place of business or (ii) the locations where it keeps or holds any
Collateral or any records relating thereto from the applicable location
described in the Perfection Certificate unless it shall have given the
Collateral Agent not less than 30 days' prior notice thereof and, if requested
by the Collateral Agent, delivered an opinion of counsel with respect thereto in
accordance with Section 4(L). The Grantors shall not in any event change the
location of any Collateral if such change would cause the Security Interests in
such Collateral to lapse or cease to be perfected, it being understood, however,
that the Grantors shall be able to transfer cash to the extent permitted by the
other provisions of this Agreement and the other Loan Documents.
(B) Each Grantor will, from time to time, at its expense,
execute, deliver, file and record any statement, assignment, instrument,
document, agreement or other paper and take any other action, (including,
without limitation, any filings with the United States Patent and Trademark
Office, any filings with the United States Copyright Office, any filings with
the Interstate Commerce Commission, any filings of financing or continuation
statements under the UCC and any filings in, or agreements governed by the laws
of, foreign jurisdictions) that from time to time may be necessary, or that the
Collateral Agent may reasonably request, in order to create, preserve, perfect,
confirm or validate the Security Interests or to enable the Collateral Agent and
the Lenders to obtain the full benefits of this Agreement, or to enable the
Collateral Agent to exercise and enforce any of its rights, powers and remedies
hereunder with respect to any of the Collateral. To the extent permitted by
applicable law, each Grantor hereby authorizes the Collateral Agent to execute
and file financing statements or continuation statements without such Grantor's
signature appearing thereon. The Grantors agree that a carbon, photographic,
photostatic or other reproduction of this Agreement or of a financing statement
is sufficient as a financing statement. The Grantors shall pay the costs of, or
incidental to, any recording or filing of any financing or continuation
statements concerning the Collateral.
(C) If any Collateral is at any time in the possession or
control of any warehouseman, bailee or any of a Grantor's agents or processors,
such Grantor, if any Event of Default shall have occurred and be continuing and
if requested to do so by the Collateral Agent acting on the instructions of the
Required Lenders, shall notify such warehouseman, bailee, agent or processor of
the Security Interests created hereby and to hold all such Collateral for the
Collateral Agent's account subject to the Collateral Agent's instructions.
(D) Each Grantor shall keep full and accurate books and
records relating to the Collateral, and stamp or otherwise xxxx such books and
records in such manner as the Required Lenders may reasonably require in order
to reflect the Security Interests.
(E) Each Grantor will immediately deliver and pledge each
Instrument to the Collateral Agent, appropriately endorsed to the Collateral
Agent, provided that so long as no Event of Default shall have occurred and be
continuing, each Grantor may retain for collection in the ordinary course any
Instruments received by it in the ordinary course of business, and the
Collateral Agent shall, promptly upon request of a Grantor, make appropriate
arrangements for making any other Instrument pledged by such Grantor available
to it for purposes of presentation, collection or renewal (any such arrangement
to be effected, to the extent deemed appropriate to the Collateral Agent,
against trust receipt or like document).
(F) Each Grantor shall use all reasonable efforts to cause to
be collected from its account debtors, as and when due, any and all amounts
owing under or on account of each Account (including, without limitation,
Accounts which are delinquent, such Accounts to be collected in accordance with
lawful collection procedures) and shall apply forthwith upon receipt thereof all
such amounts as are so collected to the outstanding balance of such Account.
Subject to the rights of the Collateral Agent and the Lenders hereunder if an
Event of Default shall have occurred and be continuing, each Grantor may allow
in the ordinary course of business as adjustments to amounts owing under its
Accounts (i) an extension or renewal of the time or times of payment, or
settlement for less than the total unpaid balance, which such Grantor finds
appropriate in accordance with sound business judgment and (ii) a refund or
credit due as a result of returned or damaged merchandise, all in accordance
with such Grantor's ordinary course of business consistent with its or the
Borrower's historical collection practices. The costs and expenses (including,
without limitation, attorney's fees) of collection, whether incurred by the
Grantors or the Collateral Agent, shall be borne by the Grantors.
(G) Upon the occurrence and during the continuance of any
Event of Default, upon request of the Required Lenders through the Collateral
Agent, each Grantor will promptly notify (and each Grantor hereby authorizes the
Collateral Agent so to notify) each account debtor in respect of any Account or
Instrument that such Collateral has been assigned to the Collateral Agent
hereunder, and that any payments due or to become due in respect of such
Collateral are to be made directly to the Collateral Agent or its designee.
(H) Each Grantor shall, (i) as soon as practicable after the
date hereof, in the case of Equipment now owned in which a security interest is
perfected by a notation on the certificate of title or similar evidence of the
ownership of such goods and (ii) within 10 days of acquiring any other similar
Equipment, in each case, (a) having a value in excess of $100,000, or (b) having
a value in excess of $50,000, if the aggregate of all such items owned by the
Grantors at any time is greater than $500,000, deliver to the Collateral Agent
any and all certificates of title, applications for title or similar evidence of
ownership of such Equipment and shall cause the Collateral Agent to be named as
lienholder on any such certificate of title or other evidence of ownership. Each
Grantor shall promptly inform the Collateral Agent of any additions to or
deletions from the Equipment exceeding $250,000 in the aggregate and shall not
permit any such items to become a fixture to real estate except pursuant to the
Mortgages or an accession to other personal property except such other property
that is Collateral.
(I) Each Grantor shall as soon as practicable after the date
hereof, at its own cost and expense, cause to be plainly, distinctly,
permanently and conspicuously placed, fastened or painted upon each side of each
item of Rolling Stock a legend bearing such words as the Collateral Agent may
request indicating the Lien over and security interest in such Rolling Stock
created hereby in letters not less than one inch in height. The Grantors may
permit the Rolling Stock to be operated within the United States, but shall not
permit the Rolling Stock to be operated outside the boundaries of the
continental United States.
(J) Subject to Section 12, without the prior written consent
of the Required Lenders, no Grantor will (a) sell, lease, exchange, assign or
otherwise dispose of, or grant any option with respect to, any Collateral,
except to the extent permitted by Section 5.07 of the Credit Agreement, subject
to the rights of the Collateral Agent and the Lenders hereunder if an Event of
Default shall have occurred and be continuing, whereupon, in the case of such a
sale or exchange, the Security Interests created hereby in such item (but not in
any Proceeds arising from such sale or exchange) shall cease immediately without
any further action on the part of the Collateral Agent; or (b) create, incur or
suffer to exist any Lien with respect to any Collateral, except for Permitted
Liens.
(K) Prior to the Initial Borrowing Date under the Credit
Agreement, each Grantor will cause the Collateral Agent to be named as an
insured party on each insurance policy covering risks relating to any of its
Inventory and Equipment. Each Grantor will deliver to the Collateral Agent, upon
request of the Collateral Agent, the insurance policies for such insurance or
certificates of insurance evidencing such coverage. Each such insurance policy
shall include effective waivers by the insurer of all claims for insurance
premiums against the Collateral Agent or any Lender, provide for coverage to the
Collateral Agent regardless of the breach by relevant Grantor of any warranty or
representation made therein, not be subject to co-insurance, and provide that no
cancellation, termination or material modification thereof shall be effective
until at least 30 days (or, in the case of non-payment of premiums, at least 10
days) after receipt by the Collateral Agent of notice thereof.
(L) Each Grantor will, promptly upon request, provide to the
Collateral Agent all information and evidence it may reasonably request
concerning the Collateral to enable the Collateral Agent to enforce the
provisions of this Agreement.
(M) Each Grantor shall notify the Collateral Agent promptly if
it knows, or has reason to know, that any application or registration relating
to any Copyright, Patent or Trademark may become abandoned. In the event that
any Grantor receives notice of or becomes aware that any right to a Copyright,
Copyright License, Patent, Patent License, Trademark or Trademark License has
been infringed, misappropriated or diluted by a third party, such Grantor shall
notify the Collateral Agent promptly after it learns thereof and shall, unless
such Grantor shall reasonably determine that any such action would be of
insufficient economic value, promptly take such other actions as such Grantor
shall reasonably deem appropriate under the circumstances to protect such
Copyright, Copyright License, Patent, Patent License, Trademark or Trademark
License. Within thirty (30) days after having filed an application for the
registration of any Copyright with the United States Copyright Office or any
Patent or Trademark with the United States Patent and Trademark Office, or with
any similar office or agency in any other country or any political subdivision
thereof, upon request of the Collateral Agent, each Grantor shall execute and
deliver any and all agreements, instruments, documents and papers the Collateral
Agent may request to evidence the Security Interests in such Copyright, Patent
or Trademark and the goodwill and general intangibles of such Grantor relating
thereto or represented thereby. Each Grantor hereby appoints the Collateral
Agent its attorney-in-fact to execute and file all such writings for the
foregoing purposes, all acts of such attorney being hereby ratified and
confirmed; such power, being coupled with an interest, shall be irrevocable
until the Secured Obligations are paid in full. The Collateral Agent shall
provide copies to each Grantor of any writings in which the Collateral Agent has
acted as attorney-in-fact within 30 days after the execution of such writings.
(N) Not more than four months nor less than 10 days prior to
(i) as to all Collateral, each anniversary of the date hereof during the term of
the Credit Agreement, if requested to do so by the Collateral Agent acting on
the instructions of the Required Lenders, and (ii) as to the Collateral affected
by such action, each date on which it proposes to take any action contemplated
by Section 4(A), each Grantor shall, if requested by the Collateral Agent, and
at such Grantor's cost and expense, cause to be delivered to the Lenders an
opinion of counsel, satisfactory to the Collateral Agent, substantially in the
form of Exhibit B to the effect that all financing statements and amendments or
supplements thereto, continuation statements and other documents required to be
recorded or filed in order to perfect and protect the Security Interests, to the
extent such Security Interests can be perfected by recording or filing, for a
period, specified in such opinion, continuing until a date not earlier than six
months from the date of such opinion, against all creditors of and purchasers
from such Grantor have been filed in each filing office necessary for such
purpose and that all filing fees and taxes, if any, payable in connection with
such filings have been paid in full.
(O) Within five (5) Business Days of entering into, amending,
modifying or terminating any Rolling Stock Lease, each Grantor will deliver a
copy of such Rolling Stock Lease, amendment or modification or notice of such
termination to the Collateral Agent.
(P) From time to time upon request by the Collateral Agent,
each Grantor shall, at its cost and expense, cause to be delivered to the
Lenders an opinion of counsel satisfactory to the Collateral Agent as to such
matters relating to the transactions contemplated hereby as the Required Lenders
may reasonably request.
(Q) This Agreement is made with full recourse to such Grantor
and pursuant to and upon all the warranties, representations, covenants, and
agreements on the part of such Grantor contained herein, in the Derivatives
Obligations Agreements and otherwise in writing in connection herewith or
therewith.
SECTION 5. General Authority
Each Grantor hereby irrevocably appoints the Collateral Agent
its true and lawful attorney, with full power of substitution, in the name of
the Grantors, the Collateral Agent, the Lenders or otherwise, for the sole use
and benefit of the Collateral Agent and the Lenders, but at such Grantor's
expense, to the extent permitted by law to exercise at any time and from time to
time while an Event of Default has occurred and is continuing, all or any of the
following powers with respect to all or any of the Collateral:
(i) to demand, xxx for, collect, receive and give acquittance for
any and all monies due or to become due thereon or by virtue thereof,
(ii) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto,
(iii) to sell, transfer, assign or otherwise deal in or with the
same or the proceeds or avails thereof, as fully and effectually as if
the Collateral Agent were the absolute owner thereof, and
(iv) to extend the time of payment of any or all thereof and to
make any allowance and other adjustments with reference thereto;
provided that the Collateral Agent shall give each Grantor not
less than thirty (30) days' prior notice of the time and place of any
sale or other intended disposition of any of the Collateral, except any
Collateral which is perishable or threatens to decline speedily in
value or is of a type customarily sold on a recognized market. The
Collateral Agent and each Grantor agree that such notice constitutes
"reasonable notification" within the meaning of Section 9-504(3) of the
UCC.
SECTION 6. Remedies upon Event of Default
(A) If any Event of Default has occurred and is continuing,
the Collateral Agent may exercise on behalf of the Lenders all rights of a
secured party under the UCC (whether or not in effect in the jurisdiction where
such rights are exercised), and, in addition, the Collateral Agent may, without
being required to give any notice, except as herein provided or as may be
required by mandatory provisions of law, (i) apply cash, if any, then held by it
as Collateral as specified in Section 8 and (ii) if there shall be no such cash
or if such cash shall be insufficient to pay all the Secured Obligations in
full, sell the Collateral or any part thereof at public or private sale, for
cash, upon credit or for future delivery, and at such price or prices as the
Collateral Agent may deem satisfactory. The Collateral Agent or any Lender may
be the purchaser of any or all of the Collateral so sold at any public sale (or,
if the Collateral is of a type customarily sold in a recognized market or is of
a type which is the subject of widely distributed standard price quotations, at
any private sale). Each Grantor will execute and deliver such documents and take
such other action as the Collateral Agent deems necessary or advisable in order
that any such sale may be made in compliance with law. Upon any such sale the
Collateral Agent shall have the right to deliver, assign and transfer to the
purchaser thereof the Collateral so sold. Each purchaser at any such sale shall
hold the Collateral so sold to it absolutely and free from any claim or right of
whatsoever kind, including any equity or right of redemption of any Grantor
which may be waived, and each Grantor, to the extent permitted by law, hereby
specifically waives all rights of redemption, stay or appraisal which it has or
may have under any law now existing or hereafter adopted. The notice (if any) of
such sale required by Section 5 shall (1) in the case of a public sale, state
the time and place fixed for such sale, and (2) in the case of a private sale,
state the day after which such sale may be consummated. Any such public sale
shall be held at such time or times within ordinary business hours and at such
place or places as the Collateral Agent may fix in the notice of such sale. At
any such sale the Collateral may be sold in one lot as an entirety or in
separate parcels, as the Collateral Agent may determine. The Collateral Agent
shall not be obligated to make any such sale pursuant to any such notice. The
Collateral Agent may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for the sale, and such sale may be made at any time
or place to which the same may be so adjourned. In the case of any sale of all
or any part of the Collateral on credit or for future delivery, the Collateral
so sold may be retained by the Collateral Agent until the selling price is paid
by the purchaser thereof, but the Collateral Agent shall not incur any liability
in the case of the failure of such purchaser to take up and pay for the
Collateral so sold and, in the case of any such failure, such Collateral may
again be sold upon like notice. The Collateral Agent, instead of exercising the
power of sale herein conferred upon it, may proceed by a suit or suits at law or
in equity to foreclose the Security Interests and sell the Collateral, or any
portion thereof, under a judgment or decree of a court or courts of competent
jurisdiction.
(B) For the purpose of enforcing any and all rights and
remedies under this Agreement, if any Event of Default has occurred and is
continuing, the Collateral Agent may (i) require each Grantor to, and each
Grantor agrees that it will, at its expense and upon the request of the
Collateral Agent, forthwith assemble all or any part of the Collateral as
directed by the Collateral Agent and make it available at a place designated by
the Collateral Agent which is, in its opinion, reasonably convenient to the
Collateral Agent and such Grantor, whether at the premises of such Grantor or
otherwise, (ii) to the extent permitted by applicable law, enter, with or
without process of law and without breach of the peace, any premise where any of
the Collateral is or may be located, and without charge or liability to it seize
and remove such Collateral from such premises, (iii) have access to and use each
Grantors' books and records relating to the Collateral and (iv) prior to the
disposition of the Collateral, store or transfer it without charge in or by
means of any storage or transportation facility owned or leased by the relevant
Grantor, process, repair or recondition it or otherwise prepare it for
disposition in any manner and to the extent the Collateral Agent deems
appropriate and, in connection with such preparation and disposition, use
without charge any trademark, trade name, brand name, copyright, patent or
technical process used by the Borrower. The Collateral Agent may also render any
or all of the Collateral unusable at any Grantor's premises and may dispose of
such Collateral on such premises without liability for rent or costs.
(C) Without limiting the generality of the foregoing, if any
Event of Default has occurred and is continuing,
(i) subject to any outstanding licenses or sublicenses to or by
any Grantor, the Collateral Agent may license or sublicense, whether
general, special or otherwise, and whether on an exclusive or
non-exclusive basis, any Copyrights, Patents or Trademarks included in
the Collateral throughout the world for such term or terms, on such
conditions and in such manner as the Collateral Agent shall in its sole
discretion determine;
(ii) the Collateral Agent may (without assuming any obligations
or liability thereunder), at any time and from time to time, in its
sole discretion, enforce (and shall have the exclusive right to
enforce) against any licensee or sublicensee all rights and remedies of
each Grantor in, to and under any Copyright Licenses, Patent Licenses
or Trademark Licenses and take or refrain from taking any action under
any thereof, and each Grantor hereby releases the Collateral Agent and
each of the Lenders from, and agrees to hold the Collateral Agent and
each of the Lenders free and harmless from and against any claims and
expenses arising out of, any lawful action so taken or omitted to be
taken with respect thereto; and
(iii) upon request by the Collateral Agent, each Grantor will
execute and deliver to the Collateral Agent a power of attorney, in
form and substance satisfactory to the Collateral Agent, for the
implementation of any lease, assignment, license, sublicense, grant of
option, sale or other disposition of a Copyright, Patent or Trademark
or any action related thereto. In the event of any such disposition
pursuant to this Section, each Grantor shall supply its know-how and
expertise relating to the manufacture and sale of the products bearing
Trademarks or the products or services made or rendered in connection
with Patents, and its customer lists and other records relating to such
Patents and Trademarks and to the distribution of said products, to the
Collateral Agent.
SECTION 7. Limitation on Duty of Collateral Agent in Respect
of Collateral
Beyond the exercise of reasonable care in the custody thereof,
the Collateral Agent shall have no duty as to any Collateral in its possession
or control or in the possession or control of any agent or bailee or any income
thereon or as to the preservation of rights against prior parties or any other
rights pertaining thereto. The Collateral Agent shall be deemed to have
exercised reasonable care in the custody of the Collateral in its possession if
the Collateral is accorded treatment substantially equal to that which it
accords its own property, and shall not be liable or responsible for any loss or
damage to any of the Collateral, or for any diminution in the value thereof, by
reason of the act or omission of any warehouseman, carrier, forwarding agency,
consignee or other agent or bailee selected by the Collateral Agent in good
faith.
SECTION 8. Application of Proceeds
(A) Upon the occurrence and during the continuance of an Event
of Default, the proceeds of any sale of, or other realization upon, all or any
part of the Collateral shall be applied by the Collateral Agent in the following
order of priorities:
first, to payment of the expenses of such sale or other
realization, including reasonable compensation to agents and counsel
for the Collateral Agent, and all expenses, liabilities and advances
incurred or made by the Collateral Agent in connection therewith, and
any other unreimbursed expenses for which the Collateral Agent or any
Lender is to be reimbursed pursuant to Section 10.03 of the Credit
Agreement or Section 11 hereof and unpaid fees owing to the Collateral
Agent under the Credit Agreement;
second, to the ratable payment of unpaid principal of the
Secured Obligations;
third, to the ratable payment of accrued but unpaid interest
on the Secured Obligations in accordance with the provisions of the
Credit Agreement;
fourth, to the ratable payment of all other Secured
Obligations, until all Secured Obligations shall have been paid in
full; and
finally, to payment to the Grantors or their successors or
assigns, or as a court of competent jurisdiction may direct, of any
surplus then remaining from such proceeds.
(B) The Collateral Agent may make distributions hereunder in
cash or in kind or, on a ratable basis, in any combination thereof. The
Collateral Agent shall invest all amounts to be applied to LC Exposures in Cash
Equivalents selected by it and hold such amounts in trust for application to
future drawings under the Letters of Credit notified to it by the LC Issuing
Banks in the order in which such drawings are made. If the Collateral Agent
holds any amounts which were distributable in respect of LC Exposures after the
Letters of Credit have expired and all amounts payable with respect thereto have
been paid, such amounts shall be applied in the order set forth in subsection
(A) above.
(C) In making the determinations and allocations required by
this Section, the Collateral Agent shall have no liability to any of the Lenders
for actions taken in reliance on information supplied by the Lenders as to the
amounts of the Secured Obligations held by them. All distributions made by the
Collateral Agent pursuant to this Section shall be final, and the Collateral
Agent shall have no duty to inquire as to the application by the Lenders of any
amount distributed to them. However, if at any time the Collateral Agent
determines that an allocation or distribution previously made pursuant to this
Section was based on a mistake of fact (including, without limiting the
generality of the foregoing, mistakes based on any assumption that principal or
interest has been paid by payments which are subsequently recovered from the
recipient thereof through the operation of any bankruptcy, reorganization,
insolvency or other laws or otherwise), the Collateral Agent may in its
discretion, but shall not be obligated to, adjust subsequent allocations and
distributions hereunder so that, on a cumulative basis, the Collateral Agent and
the Lenders receive the distributions to which they would have been entitled if
such mistake of fact had not been made.
(D) All payments required to be made to the (i) Lenders
hereunder shall be made to the Collateral Agent for the account of the
respective Lenders and (ii) Derivatives Creditors hereunder shall be made to the
paying agent under the applicable Derivatives Obligations Agreement or, in the
case of Derivatives Obligations Agreements without a paying agent, directly to
the applicable Derivatives Creditor.
(E) For purposes of applying payments received in accordance
with this Section 8, the Collateral Agent shall be entitled to rely upon (i) the
Agent for a determination (which the Agent agrees to provide upon request to the
Collateral Agent) of the outstanding Loan Document Obligations and (ii) upon any
Derivatives Creditor for a determination (which each Derivatives Creditor agrees
to provide upon request to the Collateral Agent) of the outstanding Secured
Derivatives Obligations owed to such Derivatives Creditor. Unless it has actual
knowledge (including by way of written notice from a Secured Creditor) to the
contrary, the Agent under the Credit Agreement, in furnishing information
pursuant to the preceding sentence, and the Collateral Agent, in acting
hereunder, shall be entitled to assume that (x) no Loans Document Obligations
other than principal, interest and regularly accruing fees are owing to any
Lender and (y) no Derivatives Obligations Agreements or Secured Derivatives
Obligations with respect thereto are in existence.
(F) Remedies Cumulative. Each and every right, power and
remedy hereby specifically given to the Collateral Agent shall be in addition to
every other right, power and remedy specifically given under this Agreement, any
Derivatives Obligations Agreement or 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 the Collateral Agent. All such rights, powers and
remedies shall be cumulative and the exercise or the beginning of exercise of
one shall not be deemed a waiver of the right to exercise of any other or
others. No delay or omission of the Collateral Agent in the exercise of any such
right, power or remedy and no renewal or extension of any of the Secured
Obligations shall impair any such right, power or remedy or shall be construed
to be a waiver of any Default or Event of Default or an acquiescence therein. In
the event that the Collateral Agent shall bring any suit to enforce any of its
rights hereunder and shall be entitled to judgment, then in such suit the
Collateral Agent may recover reasonable expenses, including reasonable
attorneys' fees, and the amounts thereof shall be included in such judgment.
SECTION 9. Concerning the Collateral Agent
The provisions of Article 7 of the Credit Agreement shall
inure to the benefit of the Collateral Agent in respect of this Agreement and
shall be binding upon the parties to the Credit Agreement in such respect. In
furtherance and not in derogation of the rights, privileges and immunities of
the Collateral Agent therein set forth:
(A) The Collateral Agent is authorized to take all such action
as is provided to be taken by it as Collateral Agent hereunder and all
other action reasonably incidental thereto. As to any matters not
expressly provided for herein (including, without limitation, the
timing and methods of realization upon the Collateral) the Collateral
Agent shall act or refrain from acting in accordance with written
instructions from the Required Lenders or, in the absence of such
instructions, in accordance with its discretion.
(B) The Collateral Agent shall not be responsible for the
existence, genuineness or value of any of the Collateral or for the
validity, perfection, priority or enforceability of the Security
Interests in any of the Collateral, whether impaired by operation of
law or by reason of any action or omission to act on its part
hereunder. The Collateral Agent shall have no duty to ascertain or
inquire as to the performance or observance of any of the terms of this
Agreement by any Grantor.
SECTION 10. Appointment of Co-Collateral Agents
At any time or times, in order to comply with any legal
requirement in any jurisdiction, the Collateral Agent may appoint another bank
or trust company or one or more other persons, either to act as co-agent or
co-agents, jointly with the Collateral Agent, or to act as separate agent or
agents on behalf of the Lenders with such power and authority as may be
necessary for the effectual operation of the provisions hereof and may be
specified in the instrument of appointment (which may, in the discretion of the
Collateral Agent, include provisions for the protection of such co-agent or
separate agent similar to the provisions of Section 9).
SECTION 11. Expenses
In the event that any Grantor fails to comply with the
provisions of the Credit Agreement or this Agreement, such that the value of any
Collateral or the validity, perfection, rank or value of any Security Interest
is thereby diminished or potentially diminished or put at risk, the Collateral
Agent if requested by the Required Lenders may, but shall not be required to,
effect such compliance on behalf of such Grantor, and such Grantor shall
reimburse the Collateral Agent for the costs thereof on demand. The Grantors
jointly and severally agree that all insurance expenses and all expenses of
protecting, storing, warehousing, appraising, insuring, handling, maintaining
and shipping the Collateral, any and all excise, property, sales and use taxes
imposed by any state, federal or local authority on any of the Collateral, or in
respect of periodic appraisals and inspections of the Collateral to the extent
the same may reasonably be requested by the Required Lenders from time to time,
or in respect of the sale or other disposition thereof shall be borne and paid
by the Grantors; and if the Grantors fail to promptly pay any portion thereof
when due, the Collateral Agent or any Lender may, at its option, but shall not
be required to, pay the same and charge any Grantor's account therefor, and the
Grantors jointly and severally agree to reimburse the Collateral Agent or such
Lender therefor on demand. All sums so paid or incurred by the Collateral Agent
or any Lender for any of the foregoing and any and all other sums for which any
Grantor may become liable hereunder and all costs and expenses (including
attorneys' fees, legal expenses and court costs) reasonably incurred by the
Collateral Agent or any Lender in enforcing or protecting the Security Interests
or any of their rights or remedies under this Agreement, shall, together with
interest thereon until paid at the rate applicable to Base Rate Loans plus 2%,
be additional Secured Obligations hereunder.
SECTION 12. Termination of Security Interests; Release of
Collateral. (a) After the termination of the Total Commitment and all
Derivatives Obligations Agreements, when no Note or Letter of Credit is
outstanding and when all Loans and other Obligations (other than contingent
indemnity obligations) have been paid in full, this Agreement shall terminate
(provided that all indemnities set forth herein including, without limitation,
in Section 11 hereof shall survive such termination), and the Collateral Agent,
at the request and expense of the relevant Grantor, will execute and deliver to
such Grantor a proper instrument or instruments (including Uniform Commercial
Code termination statements on form UCC-3) acknowledging the satisfaction and
termination of this Agreement, and will duly assign, transfer and deliver to
such Grantor (without recourse and without any representation or warranty) such
of the Collateral as may be in the possession of the Collateral Agent and as has
not theretofore been sold or otherwise applied or released pursuant to this
Agreement.
(b) The Collateral Agent shall, at the request of the relevant
Grantor evidence the release of any or all of the Collateral pursuant to Section
4(J) provided that (x) such release is permitted by the terms of the Credit
Agreement (it being agreed for such purposes that a release will be deemed
"permitted by the terms of the Credit Agreement" if the proposed transaction
constitutes an exception to Section 5.07 of the Credit Agreement) or otherwise
has been approved in writing by the Required Lenders and (y) the proceeds of
such Collateral are applied as required pursuant to the Credit Agreement or any
consent or waiver with respect thereto.
(c) At any time that the relevant Grantor desires that the
Collateral Agent take any action to give effect to any release of Collateral
pursuant to clause (x) of the foregoing Section 12(b), it shall deliver to the
Collateral Agent a certificate signed by an authorized officer describing the
Collateral to be sold and the relevant provision of Section 5.07 of the Credit
Agreement on which it is relying to make such sale. In the event that any part
of the Collateral is released as provided in the preceding paragraph (b), the
Collateral Agent, at the request and expense of such Grantor, will duly release
such Collateral and assign, transfer and deliver to such Grantor or its designee
(without recourse and without any representation or warranty) such of the
Collateral as is then being (or has been) so sold and as may be in the
possession of the Collateral Agent and has not theretofore been released
pursuant to this Agreement. The Collateral Agent shall have no liability
whatsoever to any Secured Creditor as the result of any release of Collateral by
it as permitted by this Section 12. Upon any release of Collateral pursuant to
Section 12(a) or (b), none of the Secured Creditors shall have any continuing
right or interest in such Collateral, or the proceeds thereof.
SECTION 13. Notices
All notices, communications and distributions hereunder shall
be given in accordance with Section 10.01 of the Credit Agreement.
SECTION 14. Waivers; Non-Exclusive Remedies
No failure on the part of the Collateral Agent to exercise,
and no delay in exercising and no course of dealing with respect to, any right
under this Agreement shall operate as a waiver thereof; nor shall any single or
partial exercise by the Collateral Agent of any right under the Credit Agreement
or this Agreement preclude any other or further exercise thereof or the exercise
of any other right. The rights in this Agreement and the Credit Agreement are
cumulative and are not exclusive of any other remedies provided by law.
SECTION 15. Successors and Assigns
This Agreement is for the benefit of the Collateral Agent and
the Lenders and their successors and assigns, and in the event of an assignment
of all or any of the Secured Obligations, the rights hereunder, to the extent
applicable to the indebtedness so assigned, may be transferred with such
indebtedness. This Agreement shall be binding on each Grantor and its successors
and assigns.
SECTION 16. Changes in Writing
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 the Agent (with the consent of the Required Lenders or, to the
extent required by Section 10.05 of the Credit Agreement, all of the Lenders)
and each Grantor affected thereby (it being understood that the addition or
release of any Grantor hereunder shall not constitute a change, waiver,
modification or variance affecting any Grantor other than the Borrower and the
Grantor so added or released) provided that (i) no such change, waiver,
modification or variance shall be made to Section 8(A) or this Section 16
without the consent of each Secured Creditor adversely affected thereby, and
(ii) any change, waiver, modification or variance affecting the rights and
benefits of a single Class of Secured Creditors (and not all Secured Creditors
in a like or similar manner) shall require the written consent of the Requisite
Creditors of such Class of Secured Creditors. For the purpose of this Agreement,
the term "Class" shall mean each class of Secured Creditors, i.e., whether (x)
the Lenders as holders of the Loan Document Obligations or (y) the Derivatives
Creditors as holders of the Secured Derivatives Obligations. For the purpose of
this Agreement, the term "Requisite Creditors" of any Class shall mean each of
(x) with respect to the Loan Document Obligations, the Required Lenders and (y)
with respect to the Secured Derivatives Obligations, the holders of at least a
majority of all obligations outstanding from time to time under the Derivatives
Obligations Agreements.
SECTION 17. New York Law
This Agreement shall be construed in accordance with and
governed by the laws of the State of New York, except as otherwise required by
mandatory provisions of law and except to the extent that remedies provided by
the laws of any jurisdiction other than New York are governed by the laws of
such jurisdiction.
SECTION 18. Severability
If any provision hereof is invalid or unenforceable in any
jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of the Collateral Agent and the Lenders in
order to carry out the intentions of the parties hereto as nearly as may be
possible; and (ii) the invalidity or unenforceability of any provision hereof in
any jurisdiction shall not affect the validity or enforceability of such
provision in any other jurisdiction.
SECTION 19. Counterparts
This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument, and
any of the parties hereto may execute this Agreement by signing any such
counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
TEKNI-PLEX, INC.
PURETEC CORPORATION
XXXXXX HOLDINGS, INC.
TRI-SEAL HOLDINGS, INC.
PLASTIC SPECIALITIES AND
TECHNOLOGIES, INC.
BURLINGTON RESINS, INC.
PLASTIC SPECIALTIES AND TECH-
NOLOGIES INVESTMENTS, INC.
PURE TECH APR, INC.
MULTI CONTAINER RECYCLER, INC.
COAST RECYCLING NORTH, INC.
DISTRIBUTORS RECYCLING, INC.
REI DISTRIBUTORS, INC.
PURE TECH RECYCLING OF
CALIFORNIA
ALUMET SMELTING CORPORATION
By: /s/ Dr. F. Xxxxxxx Xxxxx
-------------------------
Title: CHIEF Executive Officer
XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Collateral Agent
By: /s/ Xxxxxxx Xxxxx
----------------------
Title: Vice President
Exhibit A
to Security
Agreement
Page 4
PERFECTION CERTIFICATE
The undersigned, the chief executive officer of TEKNI-PLEX, INC., a
Delaware corporation (the "Borrower"), hereby certify with reference to the
Security Agreement dated as of June 21, 2000 among the Borrower, each other
Grantor listed therein and Xxxxxx Guaranty Trust Company of New York, as
Collateral Agent (terms defined therein being used herein as therein defined),
to the Collateral Agent and each Lender as follows:
1. Names. (a) The exact corporate name of the Borrower as it
appears in its certificate of incorporation is as follows:
Tekni-Plex, Inc.
(b) Set forth below is each other corporate name the Borrower has
had since its organization, together with the date of the relevant change:
TP ACQUISITION COMPANY, INC. -- By Certificate of Merger, dated
March 18, 1994, TEKNI-PLEX, INC. merged into TP ACQUISITION COMPANY, INC., which
amended its Certificate of Incorporation to change its name to TEKNI-PLEX, INC.
(c) Except as set forth in Schedule 1, the Borrower has not
changed its identity or corporate structure in any way within the past five
years. Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature or
jurisdiction of corporate organization.
(d) The following is a list of all other names (including trade
names or similar appellations) used by the Borrower or any of its divisions or
other business units at any time during the past five years:
Dolco Packaging Corp.
2. Current Locations. (a) The chief executive office of the
Borrower is located at the following address:
Mailing Address County State
201 Industrial Parkway Somerset NJ
Xxxxxxxxxx, XX 00000
(b) The following are all the locations where the Borrower
maintains any books or records relating to any Accounts:
Mailing Address County State
000 Xxxxxxxxxx Xxxxxxx Xxxxxxxx XX
Xxxxxxxxxx, XX 00000
000 Xxxxxx Xx. Xxxxxxxxx Xxxxxxxxx XX
Xxxxxxxxxx, XX 00000
000 Xxxxx Xxxx Xxxxxxxx XX
Xxxxxxxxxxxxx, XX 00000
0000 Xxxxxxxxx Xxxxxx Xxxxx XX
Xxxxxxx, XX 00000
0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxx XX
Xxxxxxxxx, XX 00000
0000 Xxxxx Xxxxxxxxxxxx Xx. Xxxxxx XX
Dallas, TX 75237-1629
(c) The following are all the places of business of the Borrower
in the not identified above:
Mailing Address County State
000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxx XX
Xxxxxxxxx, XX 00000
0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxx XX
Xxxxxxxxx, XX 00000
0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxx XX
Xxxxxxxxx, XX 00000
Tin Shed on Xxxx Xxxxxx Xxxxxx XX
Xxxxxxxxx, XX 00000
Part of the SW Quarter of Xxxxx IN
Section 4, Township 27 North,
Range 14 East
Tekni-Plex, Inc. also owns five small parcels of undeveloped land in Wenatchee,
WA.
(d) The following are all the locations where the Borrower
maintains any Inventory, not identified above:
Mailing Address County State
Xxxxxx Warehouse Xxxxx IN
Progress Xxxxxxxxxxxx Xxxxxx #0 Xxxxxxxx XX
0000 Xxxxxx Xxxx, Xxxxx X
Xxxxxxxxxxxxx, XX 00000
000 Xxxxxxx Xxxxxx Xxxxxxxx XX
Xxxxxxxxxx, XX 00000
1751 'C' Xxxxx Xxxxxxxxx Xxxxxx Xxxxxx XX
Xxxxxxxxx, XX 00000
West Half of Second Floor Xxxxx OH
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
(e) The following are the names and addresses of all Persons other
than the Grantors which have possession of any of the Borrower's Inventory:
Name Mailing Address County State
M.C.B. Brokers 00 Xxxxx Xxxxxx Xxxxx XX
Xxxxxxxxx, XX 00000
3. Prior Locations. (a) Set forth below is the information
required by subparagraphs 2(a), 2(b) and 2(c) above with respect to each
location or place of business maintained by the Borrower at any time during the
past five years:
2(a) The chief executive office of the Borrower was located at the
following address during the past five years:
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
0000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000
00000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxx, XX 00000
2(b)The following are all the other locations where the Borrower
maintained any books or records relating to any Accounts during the past five
years:
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
000 Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
000 Xxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000-0000
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
0000 000xx Xxxxxx, XX
Xxxxx 000
Xxxxxxxx, XX 00000-0000
0000 Xxxxx Xxxxxxxxxxxx Xx.
Xxxxxx, XX 00000-0000
2(c)The following are all the prior places of business of the
Borrower not identified above during the past 5 years:
00 00xx Xxxxxx
Xxxxxxxx, XX 00000
00 Xxxxx Xxxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxxx, XX 00000
(b) Set forth below is the information required by subparagraphs
2(d) and 2(e) above with respect to each location or bailee where or with whom
Inventory has been lodged at any time during the past four months:
2(d)The following are all the locations where the Borrower
maintained any Inventory not identified above during the last four months:
None.
2(e) The following are the names and addresses of all Persons
other than the Grantors which have had possession of any of the Borrower's
Inventory during the last four months:
T.P.C. Metals Inc.
000 Xxxxxxxxxxxxx Xxx.
Xxxxxx, XX 00000
Xxxxx Metals Inc.
0000 Xxxxxxx Xxxx
Xxxxx, XX 00000
M.C.B. Brokers
00 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
4. Unusual Transactions. All Accounts have been originated by the
Borrower and all Inventory and Equipment has been acquired by the Borrower in
the ordinary course of its business.
5. File Search Reports. Attached hereto as Schedule 5(A) is a true
copy of a file search report from the Uniform Commercial Code filing officer in
each jurisdiction identified in paragraph 2 above with respect to the
appropriate name set forth in paragraph 1 above. Attached hereto as Schedule
5(B) is a true copy of each financing statement or other filing identified in
such file search reports.
6. UCC Filings. A duly signed financing statement on Form UCC-1 in
substantially the form of Schedule 6(A) hereto has been duly filed in the
Uniform Commercial Code filing office in each jurisdiction identified in
paragraph 2 hereof. Attached hereto as Schedule 6(B) is a true copy of each such
filing duly acknowledged by the filing officer.
7. Schedule of Filings. Attached hereto as Schedule 7 is a
schedule setting forth filing information with respect to the filings described
in paragraph 6 above.
8. Filing Fees. All filing fees and taxes payable in connection
with the filings described in paragraph 6 above have been paid.
9. Patents, Trademarks, Copyrights. All patents, trademarks and
copyrights owned by the Borrower as of the date hereof and all patent licenses,
trademark licenses and copyright licenses to which the Borrower is a party as of
the date hereof are listed on Schedule 9 hereto.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of
June, 2000.
By: /s/ Dr. F. Xxxxxxx Xxxxx
-------------------------
Title: Chief Executive Officer
SCHEDULE 1
CHANGES IN IDENTITY OR CORPORATE STRUCTURE
By the Asset Purchase Agreement dated 12/22/95 between Tekni-Plex, Inc. and
Xxxxxx Flexible Packaging Corp., Tekni-Plex, Inc. purchased the Flemington
operation.
In February 1996, the Borrower acquired Dolco Packaging Corp. as a wholly-owned
subsidiary.
The Borrower owns all the issued and outstanding stock of Dolco Packaging Ltd.,
a shell corporation which is organized under the laws of British Columbia and
which has no assets and conducts no business. Dolco Packaging Ltd. has filed for
dissolution under the laws of British Columbia.
In July 1997, the Borrower acquired PurePlast Acquisition Limited, a Canadian
corporation, as a wholly-owned subsidiary.
In August 1997, Dolco Packaging Corp. merged into Tekni-Plex, Inc., with
Tekni-Plex as the surviving corporation.
SCHEDULE 5(A)
ON FILE WITH WHITE & CASE LLP
FILE SEARCH REPORTS
SCHEDULE 5(B)
ON FILE WITH WHITE & CASE LLP
COPIES OF FINANCING STATEMENTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 6(A)
DESCRIPTION OF COLLATERAL
All accounts, chattel paper, contract rights, general intangibles,
inventory, equipment and documents, now owned or hereafter acquired, wherever
located, and all proceeds thereof.
SCHEDULE 7
SCHEDULE OF FILINGS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 9
PATENTS, TRADEMARKS AND COPYRIGHTS
PATENTS
A. U.S. Patents
Patent Patent No. Issue Date
Four Cell Food Tray D353,765 12/27/94
Food Tray D358,955 06/06/95
Trays for Holding Food Products 5,597,073 01/28/97
Packaging Tray with Thick Curvilinear
Perimeter Edges 5,265,756 11/30/93
Method for Blending Diverse Blowing Agents 5,823,669 10/20/98
Method for Forming an Opening in a Container 5,256,356 10/26/93
Egg Carton 5,494,164 02/27/96
Method for Die Cutting Plastic Foam 4,856,393 08/15/89
Processor Tray 5,934,472 08/09/99
Egg Carton 6,012,583 01/11/00
Design for Food Tray D360,808 08/01/95
Molded Plastic Overwrap Tray 5,018,623 05/28/91
Method for Blending Diverse Blowing Agents 5,423,607 6/13/95
Vented Bowl and Cover Assembly 5,894,953 04/20/99
Molded Plastic Overwrap Tray 5,503,858 04/02/96
Egg Carton D308,822 06/26/90
Foam Egg Carton 4,382,536 05/10/83
Food Container D322,757 12/31/91
Snaplock Thermoformed Container 4,915,251 04/10/90
Egg Carton D306,138 02/20/90
Spring-Oriented Rotary Shear Key for Use
in a Mold 5,162,123 11/10/92
Packaging Container D296,192 06/14/88
B. Patents Pending
Patent Serial No. Filing Date
System and Apparatus for Forming Plastic 09/535,674 03/23/00
Articles
Packing Tray 60/183,854 02/22/00
Stacking Overwrap Egg Containers 09/542,642 04/03/00
C. Foreign Patents
Patent Country Patent No. Issue Date
Molded Plastic Overwrap Tray Canada 2,032,404 02/21/95
D. Foreign Patents Pending
Patent Country Patent No. Issue Date
Processor Tray Mexico 992908 03/26/99
Egg Carton Mexico 998,427 09/14/99
Processor Tray Canada 2,266,296 03/18/99
Egg Carton Canada 2,282,136 09/14/99
U.S. TRADEMARKS
A. U.S. Trademarks
Xxxx Reg. No. Reg. Date
---- -------- ---------
Durapreg 750,589 06/04/63
Foamseal 926,056 12/28/71
Kool-Pak 1,245,310 07/12/83
Frangiseal 1,965,749 04/02/96
Kraftseal 913,546 06/08/71
Tekni-Plex & design 1,316,950 01/29/85
Vaposeal 647,209 06/18/57
Sunny Day 2,330,295 03/14/00
Vinylseal 909,590 03/09/71
Vaposeal S 913,544 06/08/71
Tekniseal 1,316,952 01/29/85
Teklar 2,285,334 10/12/99
Solvseal 913,545 06/08/71
Saraseal 921,959 10/12/71
Pouchpak (stylized) 613,180 09/27/55
B. U.S. Trademark Applications
Xxxx Application No. Filing Date
---- --------------- -----------
Xxxxxx & design 74/582,918 11/04/98
Cylon 75/463,961 04/07/98
Tekniflex 75/909,252 02/03/00
Teklar 75/851,761 11/17/99
Tekni-films 75/766,319 08/02/99
Tekniflex 75/154,629 08/22/96
Plastron 75/676,382 04/07/99
C. Foreign Trademarks
Country Xxxx Reg No. Reg. Date
------- ---- ------- ---------
South Korea Tekniflex 415715 08/12/98
EU Tekniflex 428,227 07/02/98
China Tekniflex 1168806 04/20/98
D. Foreign Trademark Applications
Country Xxxx Application No. Filing Date
------- ---- --------------- -----------
Japan Tekni-Films 11-107663 11/24/99
Japan Tekniflex 11-097718 10/26/99
Japan Teklar 11-097717 10/26/99
India Tekniflex 753215 01/22/97
Canada Tekni-Films 1,029,035 09/15/99
Argentina Teklar 2283887 04/28/00
Argentina Tekni-Films 2283889 04/28/00
Argentina Tekni-Plex 2283888 04/28/00
COPYRIGHTS
None.
Exhibit A
to Security
Agreement
PERFECTION CERTIFICATE
The undersigned, the chief executive officer of ALUMET SMELTING
CORPORATION, a New Jersey corporation (the "Company"), hereby certify with
reference to the Security Agreement dated as of June 21, 2000 among Tekni-Plex,
Inc., the Company, each other Grantor listed therein and Xxxxxx Guaranty Trust
Company of New York, as Collateral Agent (terms defined therein being used
herein as therein defined), to the Collateral Agent and each Lender as follows:
1. Names. (a) The exact corporate name of the Company as it
appears in its certificate of incorporation is as follows:
Alumet Smelting Corporation
(b) Set forth below is each other corporate name the Company has
had since its organization, together with the date of the relevant change:
None.
(c) Except as set forth in Schedule 1, the Company has not changed
its identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature or
jurisdiction of corporate organization.
(d) The following is a list of all other names (including trade
names or similar appellations) used by the Company or any of its divisions or
other business units at any time during the past five years:
None.
2. Current Locations. (a) The chief executive office of the
Company is located at the following address:
Mailing Address County State
201 Industrial Parkway Somerset NJ
Xxxxxxxxxx, XX 00000
(b) The following are all the locations where the Company
maintains any books or records relating to any Accounts:
Mailing Address County State
101 Railroad Avenue Bergen NJ
Xxxxxxxxxx, XX 00000
(c) The following are all the places of business of the Company
not identified above:
Mailing Address County State
None.
(d) The following are all the locations where the Company
maintains any Inventory not identified above:
Mailing Address County State
None.
(e) The following are the names and addresses of all Persons other
than the Grantors which have possession of any of the Company's Inventory:
Name Mailing Address County State
Automated Recycling 000 Xxxx Xxxxxx Xxxxx XX
Technologies Inc. Street, Xxxxxx, XX 00000
3. Prior Locations. (a) Set forth below is the information
required by subparagraphs 2(a), 2(b) and 2(c) above with respect to each
location or place of business maintained by the Company at any time during the
past five years:
2(a) The chief executive office of the Company was located at the
following address during the past five years:
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
b) The following are all the other locations where the Company
maintained any books or records relating to any Accounts during the past five
years:
None.
2(c) The following are all the prior places of business of the
Company not identified above during the past five years:
None.
(b) Set forth below is the information required by subparagraphs
2(d) and 2(e) above with respect to each location or bailee where or with whom
Inventory has been lodged at any time during the past four months:
2(d) The following are all the locations where the Company
maintained
any Inventory not identified above during the last four months:
None.
2(e) The following are the names and addresses of all Persons
other than the Grantors which have had possession of any of the Company's
Inventory during the last four months:
None.
4. Unusual Transactions. All Accounts have been originated by the
Company and all Inventory and Equipment has been acquired by the Company in the
ordinary course of its business.
5. File Search Reports. Attached hereto as Schedule 5(A) is a true
copy of a file search report from the Uniform Commercial Code filing officer in
each jurisdiction identified in paragraph 2 above with respect to the name set
forth in paragraph 1(a) above. Attached hereto as Schedule 5(B) is a true copy
of each financing statement or other filing identified in such file search
reports.
6. UCC Filings. A duly signed financing statement on Form UCC-1 in
substantially the form of Schedule 6(A) hereto has been duly filed in the
Uniform Commercial Code filing office in each jurisdiction identified in
paragraph 2 hereof. Attached hereto as Schedule 6(B) is a true copy of each such
filing duly acknowledged by the filing officer.
7. Schedule of Filings. Attached hereto as Schedule 7 is a
schedule setting forth filing information with respect to the filings described
in paragraph 6 above.
8. Filing Fees. All filing fees and taxes payable in connection
with the filings described in paragraph 6 above have been paid.
9. Patents, Trademarks, Copyrights. All patents, trademarks and
copyrights owned by the Company as of the date hereof and all patent licenses,
trademark licenses and copyright licenses to which the Company is a party as of
the date hereof are listed on Schedule 9 hereto.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of June,
2000.
By: /s/ Dr. F. Xxxxxxx Xxxxx
-------------------------
Title: Chief Executive Officer
SCHEDULE 1
CHANGES IN IDENTITY OR CORPORATE STRUCTURE
None.
SCHEDULE 5(A)
FILE SEARCH REPORTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 5(B)
COPIES OF FINANCING STATEMENTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 6(A)
DESCRIPTION OF COLLATERAL
All accounts, chattel paper, contract rights, general intangibles,
inventory, equipment and documents, now owned or hereafter acquired, wherever
located, and all proceeds thereof.
SCHEDULE 7
SCHEDULE OF FILINGS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 9
PATENTS, TRADEMARKS AND COPYRIGHTS
None.
Exhibit A
to Security
Agreement
PERFECTION CERTIFICATE
The undersigned, the chief executive officer of PURE TECH APR, INC., a
New York corporation (the "Company"), hereby certify with reference to the
Security Agreement dated as of June 21, 2000 among Tekni-Plex, Inc., the
Company, each other Grantor and Xxxxxx Guaranty Trust Company of New York, as
Collateral Agent (terms defined therein being used herein as therein defined),
to the Collateral Agent and each Lender as follows:
1. Names. (a) The exact corporate name of the Company as it
appears in its certificate of incorporation is as follows:
Pure Tech APR, Inc.
(b) Set forth below is each other corporate name the Company has
had since its organization, together with the date of the relevant change:
APR Plastic Processing, Inc.
(c) Except as set forth in Schedule 1, the Company has not changed
its identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature or
jurisdiction of corporate organization.
(d) The following is a list of all other names (including trade
names or similar appellations) used by the Company or any of its divisions or
other business units at any time during the past five years:
None.
2. Current Locations. (a) The chief executive office of the
Company is located at the following address:
Mailing Address County State
201 Industrial Parkway Somerset NJ
Xxxxxxxxxx, XX 00000
(b) The following are all the locations where the Company
maintains any books or records relating to any Accounts:
Mailing Address County State
101 Railroad Avenue Bergen NJ
Xxxxxxxxxx, XX 00000
(c) The following are all the places of business of the Company
not identified above:
Mailing Address County State
None.
(d) The following are all the locations where the Company
maintains any Inventory not identified above:
Mailing Address County State
None.
(e) The following are the names and addresses of all Persons other
than the Grantors which have possession of any of the Company's Inventory:
Name Mailing Address County State
None.
3. Prior Locations. (a) Set forth below is the information
required by subparagraphs 2(a), 2(b) and 2(c) above with respect to each
location or place of business maintained by the Company at any time during the
past five years:
2(a) The chief executive office of the Company was located at the
following address during the past five years:
00 Xxxx Xxxxxxx Xxxx
Xxxx Xxxxxxxxxxx, XX 00000
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
2(b) The following are all the other locations where the Company
maintained any books or records relating to any Accounts during the past five
years:
None.
2(c) The following are all the prior places of business of the
Company not identified above during the past five years:
None.
(b) Set forth below is the information required by subparagraphs
2(d) and 2(e) above with respect to each location or bailee where or with whom
Inventory has been lodged at any time during the past four months:
2(d) The following are all the locations where the Company
maintained any Inventory not identified above during the last four months:
None.
2(e) The following are the names and addresses of all Persons
other than the Grantors which have had possession of any of the Company's
Inventory during the last four months:
None.
4. Unusual Transactions. All Accounts have been originated by the
Company and all Inventory and Equipment has been acquired by the Company in the
ordinary course of its business.
5. File Search Reports. Attached hereto as Schedule 5(A) is a true
copy of a file search report from the Uniform Commercial Code filing officer in
each jurisdiction identified in paragraph 2 above with respect to the name set
forth in paragraph 1(a) above. Attached hereto as Schedule 5(B) is a true copy
of each financing statement or other filing identified in such file search
reports.
6. UCC Filings. A duly signed financing statement on Form UCC-1 in
substantially the form of Schedule 6(A) hereto has been duly filed in the
Uniform Commercial Code filing office in each jurisdiction identified in
paragraph 2 hereof. Attached hereto as Schedule 6(B) is a true copy of each such
filing duly acknowledged by the filing officer.
7. Schedule of Filings. Attached hereto as Schedule 7 is a
schedule setting forth filing information with respect to the filings described
in paragraph 6 above.
8. Filing Fees. All filing fees and taxes payable in connection
with the filings described in paragraph 6 above have been paid.
9. Patents, Trademarks, Copyrights. All patents, trademarks and
copyrights owned by the Company as of the date hereof and all patent licenses,
trademark licenses and copyright licenses to which the Company is a party as of
the date hereof are listed on Schedule 9 hereto.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of
June, 2000.
By: /s/ Dr. F. Xxxxxxx Xxxxx
-------------------------
Title: Chief Executive Officer
SCHEDULE 1
CHANGES IN IDENTITY OR CORPORATE STRUCTURE
None.
SCHEDULE 5(A)
FILE SEARCH REPORTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 5(B)
COPIES OF FINANCING STATEMENTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 6(A)
DESCRIPTION OF COLLATERAL
All accounts, chattel paper, contract rights, general intangibles,
inventory, equipment and documents, now owned or hereafter acquired, wherever
located, and all proceeds thereof.
SCHEDULE 7
SCHEDULE OF FILINGS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 9
PATENTS, TRADEMARKS AND COPYRIGHTS
None.
Exhibit A
to Security
Agreement
PERFECTION CERTIFICATE
The undersigned, the chief executive officer of BURLINGTON RESINS,
INC., a Delaware corporation (the "Company"), hereby certify with reference to
the Security Agreement dated as of June 21, 2000 among Tekni-Plex, Inc., the
Company, each other Grantor listed therein and Xxxxxx Guaranty Trust Company of
New York, as Collateral Agent (terms defined therein being used herein as
therein defined), to the Collateral Agent and each Lender as follows:
1. Names. (a) The exact corporate name of the Company as it
appears in its certificate of incorporation is as follows:
Burlington Resins, Inc.
(b) Set forth below is each other corporate name the Company has
had since its organization, together with the date of the relevant change:
None.
(c) Except as set forth in Schedule 1, the Company has not changed
its identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature or
jurisdiction of corporate organization.
(d) The following is a list of all other names (including trade
names or similar appellations) used by the Company or any of its divisions or
other business units at any time during the past five years:
Colorite Specialty Resins
Ozite Corporation
2. Current Locations. (a) The chief executive office of the
Company is located at the following address:
Mailing Address County State
201 Industrial Parkway Somerset NJ
Xxxxxxxxxx, XX 00000
(b) The following are all the locations where the Company
maintains any books or records relating to any Accounts:
Mailing Address County State
000 Xxxxxxxx Xxxxxx Xxxxxx XX
Xxxxxxxxxx, XX 00000
00 Xxxxxxx Xxxx Xxxxxxxxxx XX
Xxxxxxxxxx, XX 00000
(c) The following are all the places of business of the Company
not identified above:
Mailing Address County State
36 Xxxxxxx Road Burlington NJ
Xxxxxxxxxx, XX 00000
(d) The following are all the locations where the Company
maintains any Inventory not identified above:
Mailing Address County State
000 Xxxxxxxxxx Xxxx Xxxxxxxxxx XX
Xxxxxxx, XX 00000
(e) The following are the names and addresses of all Persons other
than the Grantors which have possession of any of the Company's Inventory:
Name Mailing Address County State
None.
3. Prior Locations. (a) Set forth below is the information
required by subparagraphs 2(a), 2(b) and 2(c) above with respect to each
location or place of business maintained by the Company at any time during the
past five years:
2(a) The chief executive office of the Company was located at the
following address during the past five years:
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
2(b) The following are all the other locations where the Company
maintained any books or records relating to any Accounts during the past five
years:
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
00 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
2(c) The following are all the prior places of business of the Company
not identified above during the past five years:
None.
(b) Set forth below is the information required by subparagraphs
2(d) and 2(e) above with respect to each location or bailee where or with whom
Inventory has been lodged at any time during the past four months:
2(d) The following are all the locations where the Company
maintained any Inventory not identified above during the last four months:
None.
2(e) The following are the names and addresses of all Persons
other than the Grantors which have had possession of any of the Company's
Inventory during the last four months:
None.
4. Unusual Transactions. All Accounts have been originated by the
Company and all Inventory and Equipment has been acquired by the Company in the
ordinary course of its business.
5. File Search Reports. Attached hereto as Schedule 5(A) is a true
copy of a file search report from the Uniform Commercial Code filing officer in
each jurisdiction identified in paragraph 2 above with respect to the name set
forth in paragraph 1(a) above. Attached hereto as Schedule 5(B) is a true copy
of each financing statement or other filing identified in such file search
reports.
6. UCC Filings. A duly signed financing statement on Form UCC-1 in
substantially the form of Schedule 6(A) hereto has been duly filed in the
Uniform Commercial Code filing office in each jurisdiction identified in
paragraph 2 hereof. Attached hereto as Schedule 6(B) is a true copy of each such
filing duly acknowledged by the filing officer.
7. Schedule of Filings. Attached hereto as Schedule 7 is a
schedule setting forth filing information with respect to the filings described
in paragraph 6 above.
8. Filing Fees. All filing fees and taxes payable in connection
with the filings described in paragraph 6 above have been paid.
9. Patents, Trademarks, Copyrights. All patents, trademarks and
copyrights owned by the Company as of the date hereof and all patent licenses,
trademark licenses and copyright licenses to which the Company is a party as of
the date hereof are listed on Schedule 9 hereto.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of
June, 2000.
By: /s/ Dr. F Xxxxxxx Xxxxx
---------------------------
Title: Chief Executive Officer
SCHEDULE 1
CHANGES IN IDENTITY OR CORPORATE STRUCTURE
None.
SCHEDULE 5(A)
FILE SEARCH REPORTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 5(B)
COPIES OF FINANCING STATEMENTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 6(A)
DESCRIPTION OF COLLATERAL
All accounts, chattel paper, contract rights, general intangibles,
inventory, equipment and documents, now owned or hereafter acquired, wherever
located, and all proceeds thereof.
SCHEDULE 7
SCHEDULE OF FILINGS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 9
PATENTS, TRADEMARKS AND COPYRIGHTS
None.
Exhibit A
to Security
Agreement
PERFECTION CERTIFICATE
The undersigned, the chief executive officer of COAST RECYCLING NORTH,
INC., a California corporation (the "Company"), hereby certify with reference to
the Security Agreement dated as of June 21, 2000 among Tekni-Plex, Inc., the
Company, each other Grantor listed therein and Xxxxxx Guaranty Trust Company of
New York, as Collateral Agent (terms defined therein being used herein as
therein defined), to the Collateral Agent and each Lender as follows:
1. Names. (a) The exact corporate name of the Company as it
appears in its certificate of incorporation is as follows:
Coat Recycling North, Inc.
(b) Set forth below is each other corporate name the Company has
had since its organization, together with the date of the relevant change:
None.
(c) Except as set forth in Schedule 1, the Company has not changed
its identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature or
jurisdiction of corporate organization.
(d) The following is a list of all other names (including trade
names or similar appellations) used by the Company or any of its divisions or
other business units at any time during the past five years:
None.
2. Current Locations. (a) The chief executive office of the
Company is located at the following address:
Mailing Address County State
201 Industrial Parkway Somerset NJ
Xxxxxxxxxx, XX 00000
(b) The following are all the locations where the Company
maintains any books or records relating to any Accounts:
Mailing Address County State
101 Railroad Avenue Bergen NJ
Xxxxxxxxxx, XX 00000
(c) The following are all the places of business of the Company
not identified above:
Mailing Address County State
None.
(d) The following are all the locations where the Company
maintains any Inventory, not identified above:
Mailing Address County State
None.
(e) The following are the names and addresses of all Persons other
than the Grantors which have possession of any of the Company's Inventory:
Name Mailing Address County State
None.
3. Prior Locations. (a) Set forth below is the information
required by subparagraphs 2(a), 2(b) and 2(c) above with respect to each
location or place of business maintained by the Company at any time during the
past five years:
2(a) The chief executive office of the Company was located at the
following address during the past five years:
000 Xxxxxxxxxxx Xxxx
Xxxxx X
Xxxxxx, XX 00000
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
2(b) The following are all the other locations where the Company
maintained any books or records relating to any Accounts during the past five
years:
None.
2(c) The following are all the prior places of business of the
Company not identified above during the past five years:
000 Xxxxx Xxxxx
Xxxxxx, XX 00000
0000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
00000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
00000X Xxx Xxxxx Xxxxxxxxx
Xxxxxx, XX 00000
000X Xxxxx Xxxx
Xxxx Xxxxxxx, XX 00000
(b) Set forth below is the information required by subparagraphs
2(d) and 2(e) above with respect to each location or bailee where or with whom
Inventory has been lodged at any time during the past four months:
2(d) The following are all the locations where the Company
maintained any Inventory not identified above during the last four months:
None.
2(e) The following are the names and addresses of all Persons
other than the Grantors which have had possession of any of the Company's
Inventory during the last four months:
None.
4. Unusual Transactions. All Accounts have been originated by the
Company and all Inventory and Equipment has been acquired by the Company in the
ordinary course of its business.
5. File Search Reports. Attached hereto as Schedule 5(A) is a true
copy of a file search report from the Uniform Commercial Code filing officer in
each jurisdiction identified in paragraph 2 above with respect to the name set
forth in paragraph 1(a) above. Attached hereto as Schedule 5(B) is a true copy
of each financing statement or other filing identified in such file search
reports.
6. UCC Filings. A duly signed financing statement on Form UCC-1 in
substantially the form of Schedule 6(A) hereto has been duly filed in the
Uniform Commercial Code filing office in each jurisdiction identified in
paragraph 2 hereof. Attached hereto as Schedule 6(B) is a true copy of each such
filing duly acknowledged by the filing officer.
7. Schedule of Filings. Attached hereto as Schedule 7 is a
schedule setting forth filing information with respect to the filings described
in paragraph 6 above.
8. Filing Fees. All filing fees and taxes payable in connection
with the filings described in paragraph 6 above have been paid.
9. Patents, Trademarks, Copyrights. All patents, trademarks and
copyrights owned by the Company as of the date hereof and all patent licenses,
trademark licenses and copyright licenses to which the Company is a party as of
the date hereof are listed on Schedule 9 hereto.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of June,
2000.
By: /s/ Dr. F. Xxxxxxx Xxxxx
-------------------------
Title: Chief Executive Officer
SCHEDULE 1
CHANGES IN IDENTITY OR CORPORATE STRUCTURE
None.
SCHEDULE 5(A)
FILE SEARCH REPORTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 5(B)
COPIES OF FINANCING STATEMENTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 6(A)
DESCRIPTION OF COLLATERAL
All accounts, chattel paper, contract rights, general intangibles,
inventory, equipment and documents, now owned or hereafter acquired, wherever
located, and all proceeds thereof.
SCHEDULE 7
SCHEDULE OF FILINGS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 9
PATENTS, TRADEMARKS AND COPYRIGHTS
None.
Exhibit A
to Security
Agreement
PERFECTION CERTIFICATE
The undersigned, the chief executive officer of PURE TECH RECYCLING OF
CALIFORNIA, a California corporation (the "Company"), hereby certify with
reference to the Security Agreement dated as of June 21, 2000 among Tekni-Plex,
Inc., the Company, each other Grantor listed therein and Xxxxxx Guaranty Trust
Company of New York, as Collateral Agent (terms defined therein being used
herein as therein defined), to the Collateral Agent and each Lender as follows:
1. Names. (a) The exact corporate name of the Company as it
appears in its certificate of incorporation is as follows:
Pure Tech Recycling of California
(b) Set forth below is each other corporate name the Company has
had since its organization, together with the date of the relevant change:
None.
(c) Except as set forth in Schedule 1, the Company has not changed
its identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature or
jurisdiction of corporate organization.
(d) The following is a list of all other names (including trade
names or similar appellations) used by the Company or any of its divisions or
other business units at any time during the past five years:
None.
2. Current Locations. (a) The chief executive office of the
Company is located at the following address:
Mailing Address County State
201 Industrial Parkway Somerset NJ
Xxxxxxxxxx, XX 00000
(b) The following are all the locations where the Company
maintains any books or records relating to any Accounts:
Mailing Address County State
101 Railroad Avenue Bergen NJ
Xxxxxxxxxx, XX 00000
(c) The following are all the places of business of the Company
not identified above:
Mailing Address County State
None.
(d) The following are all the locations where the Company
maintains any Inventory not identified above:
Mailing Address County State
None.
(e) The following are the names and addresses of all Persons other
than the Grantors which have possession of any of the Company's Inventory:
Name Mailing Address County State
None.
3. Prior Locations. (a) Set forth below is the information
required by subparagraphs 2(a), 2(b) and 2(c) above with respect to each
location or place of business maintained by the Company at any time during the
past five years:
2(a) The chief executive office of the Company was located at the
following address during the past five years:
000 Xxxxxxxxxxx Xxxx
Xxxxx X
Xxxxxx, XX 00000
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
2(b) The following are all the other locations where the Company
maintained any books or records relating to any Accounts during the past five
years:
None.
2(c) The following are all the prior places of business of the Company
not identified above during the past five years:
0000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
(b) Set forth below is the information required by subparagraphs
2(d) and 2(e) above with respect to each location or bailee where or with whom
Inventory has been lodged at any time during the past four months:
2(d) The following are all the locations where the Company
maintained any Inventory not identified above during the last four months:
None.
2(e) The following are the names and addresses of all Persons
other than the Grantors which have had possession of any of the Company's
Inventory during the last four months:
None.
4. Unusual Transactions. All Accounts have been originated by the
Company and all Inventory and Equipment has been acquired by the Company in the
ordinary course of its business.
5. File Search Reports. Attached hereto as Schedule 5(A) is a true
copy of a file search report from the Uniform Commercial Code filing officer in
each jurisdiction identified in paragraph 2 above with respect to the name set
forth in paragraph 1(a) above. Attached hereto as Schedule 5(B) is a true copy
of each financing statement or other filing identified in such file search
reports.
6. UCC Filings. A duly signed financing statement on Form UCC-1 in
substantially the form of Schedule 6(A) hereto has been duly filed in the
Uniform Commercial Code filing office in each jurisdiction identified in
paragraph 2 hereof. Attached hereto as Schedule 6(B) is a true copy of each such
filing duly acknowledged by the filing officer.
7. Schedule of Filings. Attached hereto as Schedule 7 is a
schedule setting forth filing information with respect to the filings described
in paragraph 6 above.
8. Filing Fees. All filing fees and taxes payable in connection
with the filings described in paragraph 6 above have been paid.
9. Patents, Trademarks, Copyrights. All patents, trademarks and
copyrights owned by the Company as of the date hereof and all patent licenses,
trademark licenses and copyright licenses to which the Company is a party as of
the date hereof are listed on Schedule 9 hereto.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of
June, 2000.
By: /s/ Dr. F. Xxxxxx Xxxxx
------------------------------
Title: Chief Executive Officer
SCHEDULE 1
CHANGES IN IDENTITY OR CORPORATE STRUCTURE
None.
SCHEDULE 5(A)
FILE SEARCH REPORTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 5(B)
COPIES OF FINANCING STATEMENTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 6(A)
DESCRIPTION OF COLLATERAL
All accounts, chattel paper, contract rights, general intangibles,
inventory, equipment and documents, now owned or hereafter acquired, wherever
located, and all proceeds thereof.
SCHEDULE 7
SCHEDULE OF FILINGS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 9
PATENTS, TRADEMARKS AND COPYRIGHTS
None.
Exhibit A
to Security
Agreement
PERFECTION CERTIFICATE
The undersigned, the chief executive officer of DISTRIBUTORS RECYCLING,
INC., a New Jersey corporation (the "Company"), hereby certify with reference to
the Security Agreement dated as of June 21, 2000 among Tekni-Plex, Inc., the
Company, each other Grantor listed therein and Xxxxxx Guaranty Trust Company of
New York, as Collateral Agent (terms defined therein being used herein as
therein defined), to the Collateral Agent and each Lender as follows:
1. Names. (a) The exact corporate name of the Company as it
appears in its certificate of incorporation is as follows:
Distributors Recycling, Inc.
(b) Set forth below is each other corporate name the Company has
had since its organization, together with the date of the relevant change:
None.
(c) Except as set forth in Schedule 1, the Company has not changed
its identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature or
jurisdiction of corporate organization.
(d) The following is a list of all other names (including trade
names or similar appellations) used by the Company or any of its divisions or
other business units at any time during the past five years:
None.
2. Current Locations. (a) The chief executive office of the
Company is located at the following address:
Mailing Address County State
201 Industrial Parkway Somerset NJ
Xxxxxxxxxx, XX 00000
(b) The following are all the locations where the Company
maintains any books or records relating to any Accounts:
Mailing Address County State
101 Railroad Avenue Bergen NJ
Xxxxxxxxxx, XX 00000
(c) The following are all the places of business of the Company
not identified above:
Mailing Address County State
None.
(d) The following are all the locations where the Company
maintains any Inventory not identified above:
Mailing Address County State
None.
(e) The following are the names and addresses of all Persons other
than the Grantors which have possession of any of the Company's Inventory:
Name Mailing Address County State
None.
3. Prior Locations. (a) Set forth below is the information
required by subparagraphs 2(a), 2(b) and 2(c) above with respect to each
location or place of business maintained by the Company at any time during the
past five years:
2(a) The chief executive office of the Company was located at the
following address during the past five years:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
2(b) The following are all the other locations where the Company
maintained any books or records relating to any Accounts during the past five
years:
None.
2(c) The following are all the prior places of business of the
Company not identified above during the past five years:
Xxxx Xxxxxx & Xxxxxx Xxxxxx
Xxxxxxxx, XX
(b) Set forth below is the information required by subparagraphs
2(d) and 2(e) above with respect to each location or bailee where or with whom
Inventory has been lodged at any time during the past four months:
2(d) The following are all the locations where the Company
maintained any Inventory not identified above during the last four months:
None.
2(e) The following are the names and addresses of all Persons
other than the Grantors which have had possession of any of the Company's
Inventory during the last four months:
Automated Recycling Technologies, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
4. Unusual Transactions. All Accounts have been originated by the
Company and all Inventory and Equipment has been acquired by the Company in the
ordinary course of its business.
5. File Search Reports. Attached hereto as Schedule 5(A) is a true
copy of a file search report from the Uniform Commercial Code filing officer in
each jurisdiction identified in paragraph 2 above with respect to the name set
forth in paragraph 1(a) above. Attached hereto as Schedule 5(B) is a true copy
of each financing statement or other filing identified in such file search
reports.
6. UCC Filings. A duly signed financing statement on Form UCC-1 in
substantially the form of Schedule 6(A) hereto has been duly filed in the
Uniform Commercial Code filing office in each jurisdiction identified in
paragraph 2 hereof. Attached hereto as Schedule 6(B) is a true copy of each such
filing duly acknowledged by the filing officer.
7. Schedule of Filings. Attached hereto as Schedule 7 is a
schedule setting forth filing information with respect to the filings described
in paragraph 6 above.
8. Filing Fees. All filing fees and taxes payable in connection
with the filings described in paragraph 6 above have been paid.
9. Patents, Trademarks, Copyrights. All patents, trademarks and
copyrights owned by the Company as of the date hereof and all patent licenses,
trademark licenses and copyright licenses to which the Company is a party as of
the date hereof are listed on Schedule 9 hereto.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of
June, 2000.
By: /s/ Dr. F. Xxxxxxx Xxxxx
-------------------------
Title: Chief Executive Officer
SCHEDULE 1
CHANGES IN IDENTITY OR CORPORATE STRUCTURE
None.
SCHEDULE 5(A)
FILE SEARCH REPORTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 5(B)
COPIES OF FINANCING STATEMENTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 6(A)
DESCRIPTION OF COLLATERAL
All accounts, chattel paper, contract rights, general intangibles,
inventory, equipment and documents, now owned or hereafter acquired, wherever
located, and all proceeds thereof.
SCHEDULE 7
SCHEDULE OF FILINGS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 9
PATENTS, TRADEMARKS AND COPYRIGHTS
None.
Exhibit A
to Security
Agreement
PERFECTION CERTIFICATE
The undersigned, the chief executive officer of MULTI CONTAINER
RECYCLER, INC., a New Jersey corporation (the "Company"), hereby certify with
reference to the Security Agreement dated as of June 21, 2000 among Tekni-Plex,
Inc., the Company, each other Grantor listed therein and Xxxxxx Guaranty Trust
Company of New York, as Collateral Agent (terms defined therein being used
herein as therein defined), to the Collateral Agent and each Lender as follows:
1. Names. (a) The exact corporate name of the Company as it
appears in its certificate of incorporation is as follows:
Multi Container Recycler, Inc.
(b) Set forth below is each other corporate name the Company has
had since its organization, together with the date of the relevant change:
None.
(c) Except as set forth in Schedule 1, the Company has not changed
its identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature or
jurisdiction of corporate organization.
(d) The following is a list of all other names (including trade
names or similar appellations) used by the Company or any of its divisions or
other business units at any time during the past five years:
None.
2. Current Locations. (a) The chief executive office of the
Company is located at the following address:
Mailing Address County State
201 Industrial Parkway Somerset NJ
Xxxxxxxxxx, XX 00000
(b) The following are all the locations where the Company
maintains any books or records relating to any Accounts:
Mailing Address County State
101 Railroad Avenue Bergen NJ
Xxxxxxxxxx, XX 00000
(c) The following are all the places of business of the Company
not identified above:
Mailing Address County State
None.
(d) The following are all the locations where the Company
maintains any Inventory, not identified above:
Mailing Address County State
None.
(e) The following are the names and addresses of all Persons other
than the Grantors which have possession of any of the Company's Inventory:
Name Mailing Address County State
None.
3. Prior Locations. (a) Set forth below is the information
required by subparagraphs 2(a), 2(b) and 2(c) above with respect to each
location or place of business maintained by the Company at any time during the
past five years:
2(a) The chief executive office of the Company was located at the
following address during the past five years:
00000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
2(b) The following are all the other locations where the Company
maintained any books or records relating to any Accounts during the past five
years:
None.
2(c) The following are all the prior places of business of the
Company not identified above during the past five years:
000 Xxxxx XxXxxxxxx Xxxxx
Xxxxxx, XX 00000
X-0000 Xxxx Xxxxxxx Xxxx
Xxxxx, XX 00000
0000 Xxxxxxxx
Xxxxx Xxxxxx, XX 00000
(b) Set forth below is the information required by subparagraphs
2(d) and 2(e) above with respect to each location or bailee where or with whom
Inventory has been lodged at any time during the past four months:
2(d) The following are all the locations where the Company maintained
any Inventory not identified above during the last four months:
None.
2(e) The following are the names and addresses of all Persons other
than the Grantors which have had possession of any of the Company's Inventory
during the last four months:
None.
4. Unusual Transactions. All Accounts have been originated by the
Company and all Inventory and Equipment has been acquired by the Company in the
ordinary course of its business.
5. File Search Reports. Attached hereto as Schedule 5(A) is a true
copy of a file search report from the Uniform Commercial Code filing officer in
each jurisdiction identified in paragraph 2 above with respect to the name set
forth in paragraph 1(a) above. Attached hereto as Schedule 5(B) is a true copy
of each financing statement or other filing identified in such file search
reports.
6. UCC Filings. A duly signed financing statement on Form UCC-1 in
substantially the form of Schedule 6(A) hereto has been duly filed in the
Uniform Commercial Code filing office in each jurisdiction identified in
paragraph 2 hereof. Attached hereto as Schedule 6(B) is a true copy of each such
filing duly acknowledged by the filing officer.
7. Schedule of Filings. Attached hereto as Schedule 7 is a
schedule setting forth filing information with respect to the filings described
in paragraph 6 above.
8. Filing Fees. All filing fees and taxes payable in connection
with the filings described in paragraph 6 above have been paid.
9. Patents, Trademarks, Copyrights. All patents, trademarks and
copyrights owned by the Company as of the date hereof and all patent licenses,
trademark licenses and copyright licenses to which the Company is a party as of
the date hereof are listed on Schedule 9 hereto.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of
June, 2000.
By: /s/ Dr. F. Xxxxxxx Xxxxx
-------------------------
Title: Chief Executive Officer
SCHEDULE 1
CHANGES IN IDENTITY OR CORPORATE STRUCTURE
None.
SCHEDULE 5(A)
FILE SEARCH REPORTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 5(B)
COPIES OF FINANCING STATEMENTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 6(A)
DESCRIPTION OF COLLATERAL
All accounts, chattel paper, contract rights, general intangibles,
inventory, equipment and documents, now owned or hereafter acquired, wherever
located, and all proceeds thereof.
SCHEDULE 7
SCHEDULE OF FILINGS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 9
PATENTS, TRADEMARKS AND COPYRIGHTS
None.
Exhibit A
to Security
Agreement
PERFECTION CERTIFICATE
The undersigned, the chief executive officer of XXXXXX HOLDINGS, INC.,
a Delaware corporation (the "Company"), hereby certify with reference to the
Security Agreement dated as of June 21, 2000 among Tekni-Plex, Inc., the
Company, each other Grantor listed therein and Xxxxxx Guaranty Trust Company of
New York, as Collateral Agent (terms defined therein being used herein as
therein defined), to the Collateral Agent and each Lender as follows:
1. Names. (a) The exact corporate name of the Company as it
appears in its certificate of incorporation is as follows:
Xxxxxx Holdings, Inc.
(b) Set forth below is each other corporate name the Company has
had since its organization, together with the date of the relevant change:
None
(c) Except as set forth in Schedule 1, the Company has not changed
its identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers, consolidations
and acquisitions, as well as any change in the form, nature or jurisdiction of
corporate organization.
(d) The following is a list of all other names (including trade
names or similar appellations) used by the Company or any of its divisions or
other business units at any time during the past five years:
None
2. Current Locations. (a) The chief executive office of the
Company is located at the following address:
Mailing Address County State
201 Industrial Parkway Somerset New Jersey
Xxxxxxxxxx, XX 00000
(b) The following are all the locations where the Company
maintains any books or records relating to any Accounts:
Xxxxxxx Xxxxxxx Xxxxxx Xxxxx
0000 X.X. 00 Xxxx Xxxxxxxx Xxxxx Xxxxxxxx
Xxxxxxx, XX 00000
0000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxx
Xxxxxxxx, XX 00000
(c) The following are all the places of business of the Company
not identified above:
Mailing Address County State
None
(d) The following are all the locations where the Company
maintains any Inventory, not identified above:
Mailing Address County State
None
(e) The following are the names and addresses of all Persons other
than the Grantors which have possession of any of the Company's Inventory:
Name Xxxxxxx Xxxxxxx Xxxxxx Xxxxx
Xxxx
0. Prior Locations. (a) Set forth below is the information
required by subparagraphs 2(a), 2(b) and 2(c) above with respect to each
location or place of business maintained by the Company at any time during the
past five years:
2(a) The chief executive office of the Company was located at the
following address during the past five years:
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
0000 X.X. 00 Xxxx
Xxxxxxx, XX 00000
000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
2(b) The following are all the other locations where the Company
maintained any books or records relating to any Accounts during the past five
years:
2(c) The following are all the prior places of business of the Company
not identified above during the past five years:
None
(b) Set forth below is the information required by subparagraphs 2(d) and
2(e) above with respect to each location or bailee where or with whom Inventory
has been lodged at any time during the past four months:
2(d) The following are all the locations where the Company maintained
any Inventory not identified above during the last four months:
2(e) The following are the names and addresses of all Persons other
than the Grantors which have had possession of any of the Company's Inventory
during the last four months:
None
4. Unusual Transactions. All Accounts have been originated by the
Company and all Inventory and Equipment has been acquired by the Company in the
ordinary course of its business.
5. File Search Reports. Attached hereto as Schedule 5(A) is a true
copy of a file search report from the Uniform Commercial Code filing officer in
each jurisdiction identified in paragraph 2 above with respect to the name set
forth in paragraph 1(a) above. Attached hereto as Schedule 5(B) is a true copy
of each financing statement or other filing identified in such file search
reports.
6. UCC Filings. A duly signed financing statement on Form UCC-1 in
substantially the form of Schedule 6(A) hereto has been duly filed in the
Uniform Commercial Code filing office in each jurisdiction identified in
paragraph 2 hereof. Attached hereto as Schedule 6(B) is a true copy of each such
filing duly acknowledged by the filing officer.
7. Schedule of Filings. Attached hereto as Schedule 7 is a
schedule setting forth filing information with respect to the filings described
in paragraph 6 above.
8. Filing Fees. All filing fees and taxes payable in connection
with the filings described in paragraph 6 above have been paid.
9. Patents, Trademarks, Copyrights. All patents, trademarks and
copyrights owned by the Company as of the date hereof and all patent licenses,
trademark licenses and copyright licenses to which the Company is a party as of
the date hereof are listed on Schedule 9 hereto.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of
June, 2000.
By: /s/ Dr. F. Xxxxxxx Xxxxx
-------------------------
Title: Chief Executive Officer
SCHEDULE 1
CHANGES IN IDENTITY OR CORPORATE STRUCTURE
SCHEDULE 5(A)
FILE SEARCH REPORTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 5(B)
COPIES OF FINANCING STATEMENTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 6(A)
DESCRIPTION OF COLLATERAL
All accounts, chattel paper, contract rights, general intangibles,
inventory, equipment and documents, now owned or hereafter acquired, wherever
located, and all proceeds thereof.
SCHEDULE 7
SCHEDULE OF FILINGS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 9
PATENTS, TRADEMARKS AND COPYRIGHTS
See Schedule 9A.
Exhibit A
to Security
Agreement
SCHEDULE 9A
PATENTS
-------
-----------------------------------------------------------------------------------------------------------
Entity Patent Jurisdiction Status App. No. App. Date Patent No. Issue Date
------------------------------------------------------------------------------------------------------------
Plastics Vacuum Cleaner United Issued 07/947,596 12/30/1986 4,756,045 07/12/1988
Specialties and Hose Having States
Technologies, Alternating
Inc. Height
Corrugations
Plastics Aquatic Vacuum United Issued 07/932,726 11/19/1986 4,747,621 05/31/1988
Specialties and Hose Swivel Cuff States
Technologies,
Inc.
Plastics Multiple Canada Pending 2,662,791 01/13/1998
Specialties and Compartment
Technologies, Corrugated Hose
Inc.
Plastics Multiple United Issued 08/790,423 01/30/1997 5,996,639 12/07/1999
Specialties and Compartment States
Technologies, Corrugated Hose
Inc.
Plastics Aquatic Vacuum United Issued 07/665,391 10/26/1984 4,558,889 12/17/1985
Specialties and Hose Swivel Cuff States
Technologies,
Inc.
Plastics Kink Resistant United Issued 684,010 07/23/1996 5,682,925 11/04/1997
Specialties and Hose for Spraying States
Technologies Water
Investments,
Inc.
Plastics Kink Impeding Canada Issued 607,593 08/04/1989 1,310,595 11/24/1992
Specialties and Hose for Spraying
Technologies Water
Investments,
Inc.
Plastics Kink Impeding South Korea Issued 90-700712 08/03/1999 147074 05/14/1998
Specialties and Hose and Coupling
Technologies
Investments,
Inc.
Plastics Kink Impeding United Issued 228,983 08/05/1988 4,867,485 09/19/1989
Specialties and Hose and Coupling States
Technologies
Investments,
Inc.
Plastics Aeration Pipe and United Issued 720,078 09/27/1996 5,811,164 09/22/1998
Specialties and Method of Making States
Technologies Same
Investments,
Inc.
Plastics Kink Impeding Japan Issued 509667/89 08/03/1989 2744831 02/06/1998
Specialties and Hose for Spraying
Technologies Water
Investments,
Inc.
Plastics Hose Fitting United Issued n/a 5,498,043 03/12/1996
Specialties and Having Ferrule States
Technologies, Anti-Rotation
Inc. Ratchet Teeth
Plastics Making A Kink United Issued 883,687 05/12/1992 5,315,748 05/31/1994
Specialties and Impeding Hose States
Technologies
Investments,
Inc.
Plastics Soaker Hose United Issued 565,037 08/09/1990 5,368,235 11/29/1994
Specialties and Assembly States
Technologies
Investments,
Inc.
Plastics Kink Impeding United Issued 386,197 08/01/1989 4,923,223 05/08/1990
Specialties and Hose for Spraying States
Technologies Water
Investments,
Inc.
Plastics Method of United Issued 722,506 09/27/1996 5,811,038 09/22/1998
Specialties and Blending States
Technologies Components for
Investments, Porous Plastic
Inc. Pipe Processing
Xxxxxx Holdings, Tri-Layer Tubing United Issued N/A 4,627,844 12/09/1986
Inc. States
High Barrier European Pending 98932931.3 02/09/20900
Closure Liner Patent
with Oxygen Convent
Absorbing
Capabilities
Tri-Seal High Barrier Canada Pending 2,295,299 12/14/2000
Holdings, Inc. Closure Liner
with Oxygen
Absorbing
Capabilities
Tri-Seal Improved United Pending 08/715,210 09/17/1996
Holdings, Inc. Separating States
Closure Liner
with Pressure
Sensitive
Adhesive
Tri-Seal Improved Mexico Pending 976730 09/04/1997
Holdings, Inc. Separating
Closure Liner
with Pressure
Sensitive
Adhesive
Tri-Seal Improved European Pending 97202702 09/02/1997
Holdings, Inc. Separating Patent
Closure Liner Convent
with Pressure
Sensitive
Adhesive
Tri-Seal High Barrier United Pending 08/889,917 07/10/1997
Holdings, Inc. Closure Liner States
with Oxygen
Absorbing
Capabilities
Tri-Seal Improved Brazil Pending 9702875-4 09/15/1997
Holdings, Inc. Separating
Closure Liner
with Pressure
Sensitive
Adhesive
Tri-Seal Cap Liner for Hot European Issued 92307085.8 08/03/1992 0530977 08/03/1992
Holdings, Inc. Filled Container Patent
and Method Convent
Tri-Seal Improved Argentina Pending 970104155 09/10/1997
Holdings, Inc. Separating
Closure Liner
with Pressure
Sensitive
Adhesive
Tri-Seal High Barrier WIPO Pending pct/us99/ 01/26/1999
Holdings, Inc. Closure Liner for 00396
Carbonated
Beverage
Containers and
the Like
Tri-Seal Improved Canada Pending 2214339 09/16/1997
Holdings, Inc. Separating
Closure Liner
with Pressure
Sensitive
Adhesive
Tri-Seal High Barrier WIPO Pending pct/us98/ 07/07/1998
Holdings, Inc. Closure Liner 13435
with Oxygen
Absorbing
Capabilities
Tri-Seal Method of Making United Issued n/a 5,626,807 05/06/1997
Holdings, Inc. Retention Walls States
and Product
Therefrom
Tri-Seal Cap Liner For Hot United Issued 442,037 05/16/1995 5,598,940 02/04/1997
Holdings, Inc. Filled Container States
and Method of
Making
Tri-Seal Cap Liner for Hot Mexico Issued 9205101 09/04/1992 189352 07/15/1998
Holdings, Inc. Filled Container
and Method
Tri-Seal Cap Liner for Hot Canada Issued 2074387-5 07/22/1992 2,074,387 11/23/1999
Holdings, Inc. Filled Container
and Method
Tri-Seal Cap Liner for Hot Brazil Issued PI9203446-2 09/03/1992 P19203466 11/24/1998
Holdings, Inc. Filled Container
and Method
Tri-Seal Cap Liner for Hot United Issued 214,273 03/16/1994 5,615,789 04/01/1997
Holdings, Inc. Filled Container States
and Method of
Making
Tri-Seal Cap Liner and United Issued 08/378,763 07/12/1989 5,057,365 10/15/1991
Holdings, Inc. Process for Using States
Cap Liner to Seal
Containers
Tri-Seal High Barrier United Pending 09/013,918 01/27/1998
Holdings, Inc. Closure Liner for States
Carbonated
Beverage
Containers and
the Like
Tri-Seal Innerseal With United Pending 60/205,981 05/19/2000
Holdings, Inc. Easy Lift Tab States
Tri-Seal Cap Liner for Hot United Issued 755,733 09/06/1991 5,601,200 02/11/1997
Holdings, Inc. Filled Container States
and Method
TRADEMARKS
-----------
---------------------------------------------------------------------------------------------------------------
Entity Xxxx App. No. Reg. No. Jurisdiction Status File Date Reg. Date
---------------------------------------------------------------------------------------------------------------
Xxxxxx Holdings, XXXXXX 74/537,629 United Abandoned 08/17/1998
Inc. States
Xxxxxx Holdings, N & Design 75/582,911 United Abandoned 04/11/1998
Inc. States
Xxxxxx Holdings, XXXXXX & Design 74/582,918 United Pending 11/04/1998
Inc. States
Xxxxxx Holdings, E-MF 74/641,127 2,000,761 United Registered 03/02/1995 09/17/1996
Inc. States
Xxxxxx Holdings, RYLON 74/634,425 2,055,965 United Registered 02/15/1995 04/22/1997
Inc. States
Xxxxxx Holdings, E-MF TOUCH-LOK 74/192,980 1,784,124 United Registered 08/09/1991 07/27/1993
Inc. States
Plastic COLORITE 75/207,603 2,213,716 United Registered 12/03/1996 12/29/1998
Specialties and POLYMERS States
Technologies,
Inc.
Plastic SELF-FROSTING 74/101,224 United Abandoned 09/28/1990
Specialties and States
Technologies,
Inc.
Plastic COLORITE 75/206,355 2,220,816 United Registered 12/02/1996 01/26/1999
Specialties and States
Technologies,
Inc.
Plastic ELASTOCHEM 74/080,909 United Abandoned 07/23/1990
Specialties and States
Technologies,
Inc.
Plastic MULTI CHEM 74/080,666 United Abandoned 07/23/1990
Specialties and States
Technologies,
Inc.
Plastic GARDEN MATE 069,875 687,976 United Lapsed 03/19/1959 11/10/1959
Specialties and States
Technologies,
Inc.
Plastic THERMO-RUBBER 019,140 1,005,819 United Registered 04/18/1974 03/04/1975
Specialties and States
Technologies,
Inc.
Plastic GLADE 188,727 792,573 United Registered 03/16/1964 07/13/1965
Specialties and States
Technologies,
Inc.
Plastic ABLEX 114,441 729,302 United Registered 02/27/1961 04/03/1962
Specialties and States
Technologies,
Inc.
Plastic DURO-TRED 143,375 1,096,751 United Lapsed 10/03/1977 07/18/1978
Specialties and States
Technologies,
Inc.
Plastic COLORITE & 73/011,158 1,007,883 United Registered 01/17/1974 04/01/1975
Specialties and Design States
Technologies,
Inc.
Plastic DUROLAST 74/686,898 2,037,827 United Registered 06/09/1995 02/11/1997
Specialties and States
Technologies,
Inc.
Plastic SUNSHIELD & 261,009 1,175,146 United Registered 05/05/1980 10/27/1981
Specialties and Design States
Technologies,
Inc.
Plastic XXXXXX 171,028 773,898 United Registered 06/14/1963 07/28/1964
Specialties and States
Technologies,
Inc.
Plastic STARS & STRIPES 74/352,418 1,869,562 United Registered 01/25/1993 12/27/1994
Specialties and States
Technologies,
Inc.
Plastic AUTOMOIST 74/676,921 2,037,792 United Transfer 05/19/1995 02/11/1997
Specialties and States
Technologies,
Inc.
Plastic GARDEN QUEEN & 34,787 662,588 United Lapsed 08/01/1957 06/03/1958
Specialties and Design States
Technologies,
Inc.
Plastic FLEETWOOD 72/188,728 792,574 United Registered 07/13/1965
Specialties and States
Technologies,
Inc.
Plastic SPIRALCAST 722,451 1,512,689 United Registered 04/15/1988 11/15/1988
Specialties and States
Technologies,
Inc.
Plastic HOSE LINKS 73/828,399 1,645,242 United Registered 09/29/1989 05/21/1991
Specialties and States
Technologies,
Inc.
Plastic COLORITE 72/022,359 653,086 United Registered 01/10/1957 10/15/1957
Specialties and States
Technologies,
Inc.
Plastic UNICHEM 73/647,066 1,486,598 United Registered 05/03/1988
Specialties and States
Technologies,
Inc.
Plastic IRRIGATOR & 446,068 978,601 United Lapsed 01/15/1973 02/12/1974
Specialties and Design States
Technologies,
Inc.
Plastic A-FLEX TUBING 74/288,776 1,808,473 United Registered 06/25/1992 11/30/1993
Specialties and States
Technologies,
Inc.
Plastic COLORITE 73/748,033 1,628,320 United Registered 08/24/1988 12/18/1990
Specialties and WATERWORKS States
Technologies,
Inc.
Plastic IRRIGATOR 74/501,200 2,074,584 United Registered 03/14/1994 06/24/1997
Specialties and States
Technologies,
Inc.
Plastic SOFT'N FLEXIBLE 74/474,797 1,856,460 United Registered 12/30/1993 09/27/1994
Specialties and States
Technologies,
Inc.
Plastic COLOR-BRITE 74/134,440 1,668,518 United Registered 01/29/1991 12/17/1991
Specialties and States
Technologies,
Inc.
Plastic ULTRALITE 74/401,942 1,825,140 United Registered 06/15/1993 03/08/1994
Specialties and States
Technologies,
Inc.
Plastic HOZEGARD 74/342,053 1,793,680 United Cancelled 12/18/1992 09/21/1993
Specialties and States
Technologies,
Inc.
Plastic FINGERTITE 74/342,052 1,838,680 United Registered 12/18/1992 06/07/1994
Specialties and States
Technologies,
Inc.
Plastic CP & Design 649,998 1,488,020 United Registered 03/18/1987 05/17/1988
Specialties and States
Technologies,
Inc.
Plastic XL FORMULA 100 & 258,840 857,487 United Registered 11/16/1966 09/24/1968
Specialties and Design States
Technologies,
Inc.
Plastic HEAVY SILVER 508,696 1,355,348 United Registered 11/14/1984 08/20/1985
Specialties and States
Technologies,
Inc.
Plastic COLORITE 266,853 528,184 Mexico Registered 06/28/1996 08/09/1996
Specialties and WATERWORKS
Technologies,
Inc.
Plastic PLASMED 70260 California Registered 07/27/1983
Specialties and
Technologies,
Inc.
Plastic PLASMED 436,404 1,296,200 United Registered 07/26/1983 09/18/1984
Specialties and States
Technologies,
Inc.
Plastic ABLEX 599316 European Pending 08/07/1997
Specialties and Union (CTM)
Technologies
Investments,
Inc.
Plastic SR-TUBING 1271451 European Pending 02/09/1999
Specialties and Union (CTM)
Technologies
Investments,
Inc.
Plastic SR-TUBING 932204 Benelux Pending 02/09/1999
Specialties and
Technologies
Investments,
Inc.
Plastic NSC 598821 598821 European Registered 08/07/1997 08/16/1999
Specialties and Union (CTM)
Technologies
Investments,
Inc.
Plastic NSC 898991 615266 Benelux Registered 08/07/1997 04/01/1988
Specialties and
Technologies
Investments,
Inc.
Plastic ABLEX 896990 615265 Benelux Registered 08/07/1997 04/01/1998
Specialties and
Technologies
Investments,
Inc.
Plastic EVENFLOW 73/835,682 1,806,098 United Registered 11/02/1989 11/23/1993
Specialties and States
Technologies
Investments,
Inc.
Plastic COLORITE 821,631 480716 Canada Registered 08/26/1996 08/15/1997
Specialties and WATERWORKS
Technologies
Investments,
Inc.
Plastic FLEXFORM 75/163,251 United Abandoned 09/09/1996
Specialties and States
Technologies
Investments,
Inc.
Plastic AUTOMOST 75/252,604 2,191,922 United Transfer 03/06/1997 09/29/1998
Specialties and States
Technologies
Investments,
Inc.
Plastic FLEXRITE 850277 496007 Canada Registered 07/09/1997 06/15/1998
Specialties and
Technologies
Investments,
Inc.
Plastic COLOR-BRITE 823859 482677 Canada Registered 09/23/1996 09/19/1997
Specialties and
Technologies
Investments,
Inc.
Plastic FLEXRITE 75/163,250 2,110,026 United Registered 09/09/1996 10/28/1997
Specialties and States
Technologies
Investments,
Inc.
Plastic COLORITE 266,852 Mexico Pending 06/28/1996
Specialties and
Technologies
Investments,
Inc.
Plastic COLORITE 201,392 201,392 European Registered 04/01/1996 08/31/1998
Specialties and Union (CTM)
Technologies
Investments,
Inc.
Plastic COLORITE 821,632 480717 Canada Registered 08/26/1996 08/15/1997
Specialties and
Technologies
Investments,
Inc.
PureTec FLEXCHEM 75/275,251 2,163,785 United Registered 04/16/1997 06/09/1998
Corporation States
PureTec CYBERSHIELD 74/398,229 1,821,345 United Registered 06/07/1993 02/15/1984
Corporation States
PureTec CYBERTECH 74/398,692 1,821,347 United Registered 06/07/1993 02/15/1994
Corporation (stylized) States
PureTec CYBERTECH 74/398,693 1,821,348 United Registered 06/07/1993 02/15/1994
Corporation States
PureTec CYBERTUFF 74/398,016 1,822,761 United Registered 06/07/1993 02/22/1994
Corporation States
PureTec CYBERCELL 74/398,676 1,821,346 United Registered 06/07/1993 02/15/1994
Corporation States
PureTec CYBEREX 74/398,566 1,822,764 United Registered 06/07/1993 02/15/1994
Corporation States
PureTec CYBERMOLD 74/398,017 1,822,762 United Registered 06/07/1993 02/22/1994
Corporation States
PureTec COLORITE POLYMERS 75/007,049 2,052,098 United Registered 10/11/1995 04/15/1997
Corporation States
PureTec SELF-FROSTING 74/241,186 1,731,102 United Registered 01/29/1992 11/10/1992
Corporation States
PureTec CYBERLAST 74/398,228 1,822,763 United Registered 06/07/1993 02/22/1994
Corporation States
PureTec COLORITE 368,811 368,811 European Registered 09/06/1996 08/17/1998
Corporation Union (CTM)
PureTec MULTICHEM 74/241,188 1,721,946 United Registered 01/29/1992 10/06/1992
Corporation States
PureTec ELASTICHEM 75/099,673 2,126,655 United Registered 05/06/1996 01/06/1998
Corporation States
Tri-Seal SOR 330,246 1,252,942 United Registered 09/29/1981 10/04/1983
Holdings, Inc. States
Tri-Seal TRI-SEAL 652,824 1,463,496 United Registered 04/03/1987 11/03/1987
Holdings, Inc. States
Tri-Seal TRI-COLA 75/445,201 United Abandoned 03/05/1998
Holdings, Inc. States
Tri-Seal TRI-SHIELD 942,953 European Pending 09/22/1998
Holdings, Inc. Union (CTM)
Tri-Seal TRI-SHIELD 75/547,698 United Pending 09/03/1998
Holdings, Inc. States
Tri-Seal BARRIER KING 75/628,603 United Allowed 01/25/1999
Holdings, Inc. States
Tri-Seal TRI-FLEX 73/819,428 1,595,367 United Lapsed 08/15/1989 05/08/1990
Holdings, Inc. States
Tri-Seal TRI-FOIL 423,389 1,305,889 United Registered 04/27/1983 11/20/1984
Holdings, Inc. States
Tri-Seal TRI-GARD SPP 75/347,691 2,214,222 United Registered 08/27/1997 12/29/1998
Holdings, Inc. States
Tri-Seal TRI-GARD SPET 75/347,685 2,216,083 United Registered 08/27/1997 01/05/1999
Holdings, Inc. States
Tri-Seal TRI-XXX 612,054 1,486,151 United Registered 07/30/1986 04/26/1988
Holdings, Inc. States
Tri-Seal Design 244,253 1,116,546 United Registered 12/27/1979 08/25/1981
Holdings, Inc. States
Tri-Seal TRI-GARD SPE 75/347,686 2,271,443 United Registered 08/27/1997 08/24/1999
Holdings, Inc. States
Tri-Seal TRI-SEAL & Design 228,047 1,184,757 United Registered 08/20/1979 01/05/1982
Holdings, Inc. States
Tri-Seal F-219 942,706 European Pending 09/22/1998
Holdings, Inc. Union (CTM)
Tri-Seal F-217 74/035,714 1,675,065 United Registered 03/07/1990 02/11/1992
Holdings, Inc. States
Tri-Seal F-217 921,064 European Abandoned 09/03/1998
Holdings, Inc. Union (CTM)
Tri-Seal F-8268 942,771 European Pending 09/22/1998
Holdings, Inc. Union (CTM)
Tri-Seal TRI-SO2RB 75/358,345 2,240,374 United Registered 09/17/1997 04/20/1999
Holdings, Inc. States
Tri-Seal TRI-SO2RB 942,870 European Pending 09/22/1998
Holdings, Inc. Union (CTM)
Tri-Seal F-828 942,748 European Pending 09/22/1998
Holdings, Inc. Union (CTM)
Tri-Seal TRI-GARD 423,390 1,278,994 United Registered 04/27/1983 05/22/1984
Holdings, Inc. States
Tri-Seal TRI-GARD 942,813 European Pending 09/22/1998
Holdings, Inc. Union (CTM)
Tri-Seal TRI-SEAL 921,023 European Pending 09/03/1998
Holdings, Inc. Union (CTM)
Tri-Seal TRI-SEAL 670,703 1,240,715 France Registered 07/12/1983 07/12/1983
Holdings, Inc.
Exhibit A
to Security
Agreement
PERFECTION CERTIFICATE
The undersigned, the chief executive officer of PLASTIC SPECIALITIES AND
TECHNOLOGIES INVESTMENTS, INC., a Delaware corporation (the "Company"), hereby
certify with reference to the Security Agreement dated as of June 21, 2000
among Tekni-Plex, Inc., the Company, each other Grantor listed therein and
Xxxxxx Guaranty Trust Company of New York, as Collateral Agent (terms defined
therein being used herein as therein defined), to the Collateral Agent and each
Lender as follows:
1. Names. (a) The exact corporate name of the Company as it appears in its
certificate of incorporation is as follows:
Plastic Specialties and Technologies Investments, Inc.
(b) Set forth below is each other corporate name the Company has had since
its organization, together with the date of the relevant change:
None.
(c) Except as set forth in Schedule , the Company has not changed its
identity or corporate structure in any way within the past five years. Changes
in identity or corporate structure would include mergers, consolidations and
acquisitions, as well as any change in the form, nature or jurisdiction of
corporate organization.
(d) The following is a list of all other names (including trade names or
similar appellations) used by the Company or any of its divisions or other
business units at any time during the past five years:
Action Technology Belgium NV
Action Technology Italia SpA
Colorite Europe Ltd
Colorite Plastics Canada Ltd
Tekni-Plex, Europe, NV
2. Current Locations. (a) The chief executive office of the Company is
located at the following address:
Mailing Address County State
201 Industrial Parkway Somerset NJ
Xxxxxxxxxx, XX 00000
(b) The following are all the locations where the Company maintains any
books or records relating to any Accounts:
Mailing Address County State
101 Railroad Avenue Bergen NJ
Xxxxxxxxxx, XX 00000
(c) The following are all the places of business of the Company not
identified above:
Xxxxxxx Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxxxx 0,
X-0000 Xxxxxxxxxxx
Xxxxxxx
Xxx X. Xxxxx 00
0-00000 Xxxxxxxx (XX)
Xxxxx
Xxx X. Xxxxx 00/00
0-00000 Xxxxxx (XX)
Xxxxx
Xxxxxxxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx Xxxx
Xxxxxxx XX00 0XX
Northern Ireland
0000 Xxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx
Xxxxxx
(d) The following are all the locations where the Company maintains any
Inventory, not identified above:
Mailing Address County State
None.
(e) The following are the names and addresses of all Persons other than
the Grantors which have possession of any of the Company's Inventory:
Name Mailing Address County State
None.
3. Prior Locations. (a) Set forth below is the information required by
subparagraphs 2(a), 2(b) and 2(c) above with respect to each location or place
of business maintained by the Company at any time during the past five years:
2(a) The chief executive office of the Company was located at the
following address during the past five years:
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx XX 00000
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx XX 00000
2(b) The following are all the other locations where the Company
maintained any books or records relating to any Accounts during the past five
years:
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx XX 00000
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx XX 00000
Xxxxxxxxxxxxx 0,
X-0000 Xxxxxxxxxxx
Xxxxxxx
Xxx X. Xxxxx 00
0-00000 Xxxxxxxx (XX)
Xxxxx
Xxx X. Xxxx 00/00
0-00000 Xxxxxx (XX)
Xxxxx
Xxxxxxxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx Xxxx
Xxxxxxx XX00 0XX
Northern Ireland
0000 Xxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx
Xxxxxx
2(c) The following are all the prior places of business of the Company not
identified above during the past five years:
None.
(b) Set forth below is the information required by subparagraphs 2(d) and
2(e) above with respect to each location or bailee where or with whom Inventory
has been lodged at any time during the past four months:
2(d) The following are all the locations where the Company maintained any
Inventory not identified above during the last four months:
None.
2(e) The following are the names and addresses of all Persons other than
the Grantors which have had possession of any of the Company's Inventory during
the last four months:
None.
4. Unusual Transactions. All Accounts have been originated by the Company
and all Inventory and Equipment has been acquired by the Company in the
ordinary course of its business.
5. File Search Reports. Attached hereto as Schedule 5(A) is a true copy of
a file search report from the Uniform Commercial Code filing officer in each
domestic jurisdiction identified in paragraph 2 above with respect to the name
set forth in paragraph 1(a) above. Attached hereto as Schedule 5(B) is a true
copy of each financing statement or other filing identified in such file search
reports.
6. UCC Filings. A duly signed financing statement on Form UCC-1 in
substantially the form of Schedule 6(A) hereto has been duly filed in the
Uniform Commercial Code filing office in each domestic jurisdiction identified
in paragraph 2 hereof. Attached hereto as Schedule 6(B) is a true copy of each
such filing duly acknowledged by the filing officer.
7. Schedule of Filings. Attached hereto as Schedule 7 is a schedule setting
forth filing information with respect to the filings described in paragraph 6
above.
8. Filing Fees. All filing fees and taxes payable in connection with the
filings described in paragraph 6 above have been paid.
9. Patents, Trademarks, Copyrights. All patents, trademarks and copyrights
owned by the Company as of the date hereof and all patent licenses, trademark
licenses and copyright licenses to which the Company is a party as of the date
hereof are listed on Schedule 9 hereto.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of June,
2000.
By: /s/ Dr. F. Xxxxxxx Xxxxx
--------------------------------
Title: Chief Executive Officer
SCHEDULE 1
CHANGES IN IDENTITY OR CORPORATE STRUCTURE
None.
SCHEDULE 5(A)
FILE SEARCH REPORTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 5(B)
COPIES OF FINANCING STATEMENTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 6(A)
DESCRIPTION OF COLLATERAL
All accounts, chattel paper, contract rights, general intangibles,
inventory, equipment and documents, now owned or hereafter acquired, wherever
located, and all proceeds thereof.
SCHEDULE 7
SCHEDULE OF FILINGS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 9
PATENTS, TRADEMARKS AND COPYRIGHTS
See Schedule 9A.
Exhibit A
to Security
Agreement
PERFECTION CERTIFICATE
The undersigned, the chief executive officer of PLASTIC SPECIALTIES AND
TECHNOLOGIES, INC., a Delaware corporation (the "Company"), hereby certify with
reference to the Security Agreement dated as of June 21, 2000 among Tekni-Plex,
Inc., the Company, each other Grantor listed therein and Xxxxxx Guaranty Trust
Company of New York, as Collateral Agent (terms defined therein being used
herein as therein defined), to the Collateral Agent and each Lender as follows:
1. Names. (a) The exact corporate name of the Company as it appears in its
certificate of incorporation is as follows:
Plastic Specialties and Technologies, Inc.
(b) Set forth below is each other corporate name the Company has had since
its organization, together with the date of the relevant change:
None.
(c) Except as set forth in Schedule 1, the Company has not changed its
identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature or
jurisdiction of corporate organization.
(d) The following is a list of all other names (including trade names or
similar appellations) used by the Company or any of its divisions or other
business units at any time during the past five years:
Action Technology
American Gasket & Rubber
Colorite Plastics
Colorite Polymers
Colorite Waterworks
Cybertech Products
Precision Porous Pipe
Plastron
Pure Tech Plastics
Unichem
2. Current Locations. (a) The chief executive office of the Company is
located at the following address:
Mailing Address County State
201 Industrial Parkway Somerset NJ
Xxxxxxxxxx XX 00000
(b) The following are all the locations where the Company maintains any
books or records relating to any Accounts:
Mailing Xxxxxxx Xxxxxx Xxxxx
Xxxxx 00 Xxxx
Xxxxxxx, XX 00000 Xxxxxx IL
00 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX Xxxxxx NJ
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000 Erie NY
000 Xxxxx Xxxxx
Xxxx, XX 00000 McLennan TX
000 Xxxxxxx Xxxx
XxXxxxxx, XX 00000 Xxxxxxx TN
000 Xxxxxxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000 Xxxxxxxxx GA
00000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000 Wayne MI
00 Xxxx Xxxxxxx Xxxx
Xxxx Xxxxxxxxxxx, XX 00000 Suffolk NY
0000 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Androscoggin ME
000 Xxxx Xxxxxxxx Xxxx
Xxxxxx, XX Washoe NV
00000 Xxxx Xxxxxx Xxxxxx
Xxxx xx Xxxxxxxx, XX 00000 Los Angeles CA
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Bergen NJ
0000 Xxxxxx
Xxxxxxxx Xxxx, XX Xxxx XX
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxx IL
(c) The following are all the places of business of the Company not
identified above:
Mailing Address Xxxxxx Xxxxx
Xx. 00 Xxxx
Xxxxxxx XX 00000 XxXxxx IL
00 Xxxxx Xxxx Xxxx
Xxxxxxxx XX 00000 Xxxxxx NJ
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxxx XX 00000 Xxxx IL
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx XX 00000 Bergen NJ
0000 Xxxxxxxx Xxxx
Xxxxxxx XX 00000 Erie NY
000 X. Xxxxxxxx Xxxx
Xxxxxx XX 00000 Washoe NV
000 Xxxxxxx Xxxx
XxXxxxxx XX 00000 Xxxxxxx TN
000 Xxxxx Xxxxx
Xxxx XX 00000 McLennan TX
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx XX 00000 Middlesex NJ
00000 X. Xxxxxx Xxxxxx
Xxxx xx Xxxxxxxx XX 00000 Los Angeles CA
000 Xxxxxxxxxxx Xxxxxxxxxx Xxxx.
Xxxxxx XX 00000 Xxxxxxxxx GA
00 X. Xxxxxxx Xxxx
X. Xxxxxxxxxxx XX 00000 Suffolk NY
0000 Xxxxx Xxxxxx
Xxxxxx XX 00000 Androscoggin ME
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx XX 00000 Wayne MI
(d) The following are all the locations where the Company maintains any
Inventory, not identified above:
Mailing Xxxxxxx Xxxxxx Xxxxx
000 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000 Burlington NJ
000 Xxxxx Xxxxxx
Xxxxxxxxxx XX 00000 Bergen NJ
000 Xxxxxxxx Xxxxxx
Xxxx XX 00000 McLennan TX
0000 Xxxxxxxxx Xxxx
Xxxxx Xxxx XX 00000 Orange CA
00000 Xxxxxxx Xxxx.
Xxxxxxxx XX 00000 Los Angeles CA
0000 00xx Xxxxxx
Xxx Xxxxx XX 00000 San Diego CA
Puerta de Xxxxxx Xxxxxx #00
Xxxxxxxxx Xxxxx Xxxxxx
Xxx Xxxx Xxxxxx Xxxx 00000 San Xxxx PR
00000 X. 00xx Xxxxxx
Xxxxxx XX 00000 Xxxxx CO
000 Xxxxxxx Xxxxxx
Xxxxxxx XX 00000 Bristol City VA
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Wayne MI
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Suffolk NY
4735 Leyden
Xxxxxx, XX 00000 Jefferson CO
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000 Columbiana OH
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Los Angeles CA
000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Washington VA
000 Xxxx 0xx Xxxxxx
Xxxxx, XX 00000 Tescarawas OH
000 Xxxxx 00xx Xxxxxx
Xxxxxxx, XX 00000 Maricopa AZ
000 Xxxxxxxx Xxxxxx
Xxxx, XX 00000 McLennan TX
000-000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Bergen NJ
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Montgomery OH
0000 Xxxxxxxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000 Xxxx TX
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000 Portage OH
Xxxxxxxx 0, Xxx 0 & 00 X XX 2.4
Pueblo Viejo, Guaynabo Puerto Rico 00906 PR
000 Xxxx Xxxxxxx Xxxxxx
Xxxx, XX 00000 York SC
00000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Los Angeles CA
0000 00xx Xxxxxx
Xxx Xxxxx, XX 00000 San Diego CA
000 Xxxxx Xxxxxx
Xxxxxx XX 00000 Montgomery OH
X.X. Xxx 00000
Xxxxxx, XX 00000 Xxxxx OH
(e) The following are the names and addresses of all Persons other than
the Grantors which have possession of any of the Inventory of any Grantor:
Name Mailing Address County State
None.
3. Prior Locations. (a) Set forth below is the information required by
subparagraphs 2(a), 2(b) and 2(c) above with respect to each location or place
of business maintained by the Company at any time during the past five years:
2(a) The chief executive office of the Company was located at the
following address during the past five years:
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
2(b) The following are all the other locations where the Company
maintained any books or records relating to any Accounts during the past five
years:
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
000 Xxxxx Xxxxx
Xxxx, XX 00000
000 Xxxxxxx Xxxx
XxXxxxxx, XX 00000
000 Xxxxxxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
00000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
00 Xxxx Xxxxxxx Xxxx
Xxxx Xxxxxxxxxxx, XX 00000
0000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
000 Xxxx Xxxxxxxx Xxxx
Xxxxxx, XX 00000
00000 Xxxx Xxxxxx Xxxxxx
Xxxx xx Xxxxxxxx, XX 00000
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxx 00 Xxxx
Xxxxxxx, XX 00000
00 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
0000 Xxxxxx
Xxxxxxxx Xxxx, XX
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
2(c) The following are all the prior places of business of the Company not
identified above during the past five years:
Schiller Park IL
(b) Set forth below is the information required by subparagraphs 2(d) and
2(e) above with respect to each location or bailee where or with whom Inventory
has been lodged at any time during the past four months:
2(d) The following are all the locations where the Company maintained any
Inventory not identified above during the last four months:
None.
2(e) The following are the names and addresses of all Persons other than
the Grantors which have had possession of any of the Company's Inventory during
the last four months:
None.
4. Unusual Transactions. All Accounts have been originated by the Company
and all Inventory and Equipment has been acquired by the Company in the
ordinary course of its business.
5. File Search Reports. Attached hereto as Schedule 5(A) is a true copy of
a file search report from the Uniform Commercial Code filing officer in each
jurisdiction identified in paragraph 2 above with respect to the name set forth
in paragraph 1(a) above. Attached hereto as Schedule 5(B) is a true copy of each
financing statement or other filing identified in such file search reports.
6. UCC Filings. A duly signed financing statement on Form UCC-1 in
substantially the form of Schedule 6(A) hereto has been duly filed in the
Uniform Commercial Code filing office in each jurisdiction identified in
paragraph 2 hereof. Attached hereto as Schedule 6(B) is a true copy of each such
filing duly acknowledged by the filing officer.
7. Schedule of Filings. Attached hereto as Schedule 7 is a schedule setting
forth filing information with respect to the filings described in paragraph 6
above.
8. Filing Fees. All filing fees and taxes payable in connection with the
filings described in paragraph 6 above have been paid.
9. Patents, Trademarks, Copyrights. All patents, trademarks and copyrights
owned by the Company as of the date hereof and all patent licenses, trademark
licenses and copyright licenses to which the Company is a party as of the date
hereof are listed on Schedule 9 hereto.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of June,
2000.
By: /s/ F. Xxxxxxx Xxxxx
----------------------------------
Title: Chief Executive Officer
SCHEDULE 1
CHANGES IN IDENTITY OR CORPORATE STRUCTURE
None.
SCHEDULE 5(A)
FILE SEARCH REPORTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 5(B)
COPIES OF FINANCING STATEMENTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 6(A)
DESCRIPTION OF COLLATERAL
All accounts, chattel paper, contract rights, general intangibles,
inventory, equipment and documents, now owned or hereafter acquired, wherever
located, and all proceeds thereof.
SCHEDULE 7
SCHEDULE OF FILINGS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 9
PATENTS, TRADEMARKS AND COPYRIGHTS
See Schedule 9A.
Exhibit A
to Security
Agreement
PERFECTION CERTIFICATE
The undersigned, the chief executive officer of PURETEC CORPORATION, a New
Jersey corporation (the "Company"), hereby certify with reference to the
Security Agreement dated as of June 21, 2000 among Tekni-Plex, Inc., the
Company, each other Grantor listed therein and Xxxxxx Guaranty Trust Company of
New York, as Collateral Agent (terms defined therein being used herein as
therein defined), to the Collateral Agent and each Lender as follows:
1. Names. (a) The exact corporate name of the Company as it appears in its
certificate of incorporation is as follows:
PureTec Corporation
(b) Set forth below is each other corporate name the Company has had since
its organization, together with the date of the relevant change:
PureTec Corporation
(name as of March 1996)
Pure Tech Newco, Inc.
(original name - 1994)
Pure Tech International, Inc.
(name as of July, 1995)
(c) Except as set forth in Schedule 1, the Company has not changed its
identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature or
jurisdiction of corporate organization.
(d) The following is a list of all other names (including trade names or
similar appellations) used by the Company or any of its divisions or other
business units at any time during the past five years:
Pure Tech Plastics, Inc.
Pure Tech APR, Inc.
Multi Container Recycling, Inc.
Pure Tech SPP, Inc.
MCRI of Maine, Inc.
Styrex Industries, Inc.
Coast Recycling North, Inc.
Pure Tech Recycling of California
REI Distributors, Inc.
Alumet Smelting Corporation
Distributors Recycling, Inc.
Action Technology
Colorite Plastics
Colorite Polymers
Pure Tech Plastics
Action Technology Belgium NV
Action Technology Italia SpA
Colorite Europe Ltd
Colorite Plastics Canada Ltd
Burlington Resins, Inc.
2. Current Locations. (a) The chief executive office of the Company is
located at the following address:
Mailing Address County State
201 Industrial Parkway Somerset NJ
Xxxxxxxxxx, XX 00000
(b) The following are all the locations where the Company maintains any
books or records relating to any Accounts:
Mailing Address County State
101 Railroad Avenue Bergen NJ
Xxxxxxxxxx, XX 00000
(c) The following are all the places of business of the Company not
identified above:
Mailing Address County State
None.
(d) The following are all the locations where the Company maintains any
Inventory, not identified above:
Mailing Address County State
None.
(e) The following are the names and addresses of all Persons other than
the Grantors which have possession of any of the Company's Inventory:
Name Mailing Address County State
None.
3. Prior Locations. (a) Set forth below is the information required by
subparagraphs 2(a), 2(b) and 2(c) above with respect to each location or place
of business maintained by the Company at any time during the past five years:
2(a) The chief executive office of the Company was located at the
following address during the past five years:
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx XX 00000
2(b) The following are all the other locations where the Company
maintained any books or records relating to any Accounts during the past five
years:
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx XX 00000
2(c) The following are all the prior places of business of the Company not
identified above during the past five years:
None.
(b) Set forth below is the information required by subparagraphs 2(d) and
2(e) above with respect to each location or bailee where or with whom Inventory
has been lodged at any time during the past four months:
2(d) The following are all the locations where the Company maintained any
Inventory not identified above during the last four months:
None.
2(e) The following are the names and addresses of all Persons other than
the Grantors which have had possession of any of the Company's Inventory during
the last four months:
None.
4. Unusual Transactions. All Accounts have been originated by the Company
and all Inventory and Equipment has been acquired by the Company in the
ordinary course of its business.
5. File Search Reports. Attached hereto as Schedule 5(A) is a true copy of
a file search report from the Uniform Commercial Code filing officer in each
jurisdiction identified in paragraph 2 above with respect to the name set forth
in paragraph 1(a) above. Attached hereto as Schedule 5(B) is a true copy of
each financing statement or other filing identified in such file search
reports.
6. UCC Filings. A duly signed financing statement on Form UCC-1 in
substantially the form of Schedule 6(A) hereto has been duly filed in the
Uniform Commercial Code filing office in each jurisdiction identified in
paragraph 2 hereof. Attached hereto as Schedule 6(B) is a true copy of each
such filing duly acknowledged by the filing officer.
7. Schedule of Filings. Attached hereto as Schedule 7 is a schedule
setting forth filing information with respect to the filings described in
paragraph 6 above.
8. Filing Fees. All filing fees and taxes payable in connection with the
filings described in paragraph 6 above have been paid.
9. Patents, Trademarks, Copyrights. All patents, trademarks and copyrights
owned by the Company as of the date hereof and all patent licenses, trademark
licenses and copyright licenses to which the Company is a party as of the date
hereof are listed on Schedule 9 hereto.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of June,
2000.
By: /s/ Dr. F. Xxxxxxx Xxxxx
-------------------------------
Title: Chief Executive Officer
SCHEDULE 1
CHANGES IN IDENTITY OR CORPORATE STRUCTURE
None.
SCHEDULE 5(A)
FILE SEARCH REPORTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 5(B)
COPIES OF FINANCING STATEMENTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 6(A)
DESCRIPTION OF COLLATERAL
All accounts, chattel paper, contract rights, general intangibles,
inventory, equipment and documents, now owned or hereafter acquired, wherever
located, and all proceeds thereof.
SCHEDULE 7
SCHEDULE OF FILINGS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 9
PATENTS, TRADEMARKS AND COPYRIGHTS
See Schedule 9A.
Exhibit A
to Security
Agreement
PERFECTION CERTIFICATE
The undersigned, the chief executive officer of REI DISTRIBUTORS, INC., a
New Jersey corporation (the "Company"), hereby certify with reference to the
Security Agreement dated as of June 21, 2000 among Tekni-Plex, Inc., the
Company, each other Grantor listed therein and Xxxxxx Guaranty Trust Company of
New York, as Collateral Agent (terms defined therein being used herein as
therein defined), to the Collateral Agent and each Lender as follows:
1. Names. (a) The exact corporate name of the Company as it appears in its
certificate of incorporation is as follows:
REI Distributors, Inc.
(b) Set forth below is each other corporate name the Company has had since
its organization, together with the date of the relevant change:
None.
(c) Except as set forth in Schedule 1, the Company has not changed its
identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature or
jurisdiction of corporate organization.
(d) The following is a list of all other names (including trade names or
similar appellations) used by the Company or any of its divisions or other
business units at any time during the past five years:
Alumet Smelting Corporation
Distributors Recycling, Inc.
2. Current Locations. (a) The chief executive office of the Company is
located at the following address:
Mailing Address County State
201 Industrial Parkway Somerset NJ
Xxxxxxxxxx, XX 00000
(b) The following are all the locations where the Company maintains any
books or records relating to any Accounts:
Mailing Address County State
101 Railroad Avenue Bergen NJ
Xxxxxxxxxx XX 00000
(c) The following are all the places of business of the Company not
identified above:
Mailing Address County State
None.
(d) The following are all the locations where the Company maintains any
Inventory not identified above:
Mailing Address County State
None.
(e) The following are the names and addresses of all Persons other than
the Grantors which have possession of any of the Company's Inventory:
Name Mailing Address County State
None.
3. Prior Locations. (a) Set forth below is the information required by
subparagraphs 2(a), 2(b) and 2(c) above with respect to each location or place
of business maintained by the Company at any time during the past five years:
2(a) The chief executive office of the Company was located at the
following address during the past five years:
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx XX 00000
000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx XX 00000
2(b) The following are all the other locations where the Company
maintained any books or records relating to any Accounts during the past five
years:
None.
2(c) The following are all the prior places of business of the Company not
identified above during the past five years:
None.
(b) Set forth below is the information required by subparagraphs and above
with respect to each location or bailee where or with whom Inventory has been
lodged at any time during the past four months:
2(d) The following are all the locations where the Company maintained any
Inventory not identified above during the last four months:
None.
2(e) The following are the names and addresses of all Persons other than
the Grantors which have had possession of any of the Company's Inventory during
the last four months:
Automated Recycling Technologies, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxx XX 00000
4. Unusual Transactions. All Accounts have been originated by the Company
and all Inventory and Equipment has been acquired by the Company in the
ordinary course of its business.
5. File Search Reports. Attached hereto as Schedule 5(A) is a true copy of
a file search report from the Uniform Commercial Code filing officer in each
jurisdiction identified in paragraph 2 above with respect to the name set forth
in paragraph 1(a) above. Attached hereto as Schedule 5(B) is a true copy of each
financing statement or other filing identified in such file search reports.
6. UCC Filings. A duly signed financing statement on Form UCC-1 in
substantially the form of Schedule 6(A) hereto has been duly filed in the
Uniform Commercial Code filing office in each jurisdiction identified in
paragraph 2 hereof. Attached hereto as Schedule 6(B) is a true copy of each such
filing duly acknowledged by the filing officer.
7. Schedule of Filings. Attached hereto as Schedule 7 is a schedule setting
forth filing information with respect to the filings described in paragraph 6
above.
8. Filing Fees. All filing fees and taxes payable in connection with the
filings described in paragraph 6 above have been paid.
9. Patents, Trademarks, Copyrights. All patents, trademarks and copyrights
owned by the Company as of the date hereof and all patent licenses, trademark
licenses and copyright licenses to which the Company is a party as of the date
hereof are listed on Schedule 9 hereto.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of June,
2000.
By: /s/ Dr. F. Xxxxxxx Xxxxx
------------------------------
Title: Chief Executive Officer
SCHEDULE 1
CHANGES IN IDENTITY OR CORPORATE STRUCTURE
None.
SCHEDULE 5(A)
FILE SEARCH REPORTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 5(B)
COPIES OF FINANCING STATEMENTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 6(A)
DESCRIPTION OF COLLATERAL
All accounts, chattel paper, contract rights, general intangibles,
inventory, equipment and documents, now owned or hereafter acquired, wherever
located, and all proceeds thereof.
SCHEDULE 7
SCHEDULE OF FILINGS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 9
PATENTS, TRADEMARKS AND COPYRIGHTS
None.
Exhibit A
to Security
Agreement
PERFECTION CERTIFICATE
The undersigned, the chief executive officer of TRI-SEAL HOLDINGS, INC., a
Delaware corporation (the "Company"), hereby certify with reference to the
Security Agreement dated as of June 21, 2000 among Tekni-Plex, Inc., the
Company, each other Grantor listed therein and Xxxxxx Guaranty Trust Company of
New York, as Collateral Agent (terms defined therein being used herein as
therein defined), to the Collateral Agent and each Lender as follows:
1. Names. (a) The exact corporate name of the Company as it appears in its
certificate of incorporation is as follows:
Tri-Seal Holdings, Inc.
(b) Set forth below is each other corporate name the Company has had since
its organization, together with the date of the relevant change:
None
(c) Except as set forth in Schedule 1, the Company has not changed its
identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature or
jurisdiction of corporate organization.
(d) The following is a list of all other names (including trade names or
similar appellations) used by the Company or any of its divisions or other
business units at any time during the past five years:
None
2. Current Locations. (a) The chief executive office of the Company is
located at the following address:
Mailing Address County State
201 Industrial Parkway Somerset New Jersey
Xxxxxxxxxx, XX 00000
(b) The following are all the locations where the Company maintains any
books or records relating to any Accounts:
Mailing Address County State
217 Xxxxxxx Xxxx Road Rockland New York
Xxxxxxxx, NY 10913
(c) The following are all the places of business of the Company not
identified above:
Mailing Address County State
None
(d) The following are all the locations where the Company maintains any
Inventory, not identified above:
Mailing Address County State
None
(e) The following are the names and addresses of all Persons other than
the Grantors which have possession of any of the Company's Inventory:
Name Xxxxxxx Xxxxxxx Xxxxxx Xxxxx
Xxxx
0. Prior Locations. (a) Set forth below is the information required by
subparagraphs 2(a), 2(b) and 2(c) above with respect to each location or place
of business maintained by the Company at any time during the past five years:
2(a) The chief executive office of the Company was located at the
following address during the past five years:
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
2(b) The following are all the other locations where the Company
maintained any books or records relating to any Accounts during the past five
years:
000 Xxxxxxx Xxxx Xxxx0
Xxxxxxxx, XX 00000
_______________
1 This location is in the process of being re-designated by municipal
officials as 000 Xxxxxxx Xxxx Xxxx.
2(c) The following are all the prior places of business of the Company not
identified above during the past five years:
None
(b) Set forth below is the information required by subparagraphs and above
with respect to each location or bailee where or with whom Inventory has been
lodged at any time during the past four months:
2(d) The following are all the locations where the Company maintained any
Inventory not identified above during the last four months:
2(e) The following are the names and addresses of all Persons other than
the Grantors which have had possession of any of the Company's Inventory during
the last four months:
None
4. Unusual Transactions. All Accounts have been originated by the Company
and all Inventory and Equipment has been acquired by the Company in the
ordinary course of its business.
5. File Search Reports. Attached hereto as Schedule 5(A) is a true copy of
a file search report from the Uniform Commercial Code filing officer in each
jurisdiction identified in paragraph 2 above with respect to the name set forth
in paragraph 1(a) above. Attached hereto as Schedule 5(B) is a true copy of
each financing statement or other filing identified in such file search
reports.
6. UCC Filings. A duly signed financing statement on Form UCC-1 in
substantially the form of Schedule 6(A) hereto has been duly filed in the
Uniform Commercial Code filing office in each jurisdiction identified in
paragraph 2 hereof. Attached hereto as Schedule 6(B) is a true copy of each such
filing duly acknowledged by the filing officer.
7. Schedule of Filings. Attached hereto as Schedule 7 is a schedule setting
forth filing information with respect to the filings described in paragraph 6
above.
8. Filing Fees. All filing fees and taxes payable in connection with the
filings described in paragraph above have been paid.
9. Patents, Trademarks, Copyrights. All patents, trademarks and copyrights
owned by the Company as of the date hereof and all patent licenses, trademark
licenses and copyright licenses to which the Company is a party as of the date
hereof are listed on Schedule 9 hereto.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of June,
2000.
By: /s/ Dr. F. Xxxxxxx Xxxxx
------------------------------
Title: Chief Executive Officer
SCHEDULE 1
CHANGES IN IDENTITY OR CORPORATE STRUCTURE
Incorporated December 17, 1998.
SCHEDULE 5(A)
FILE SEARCH REPORTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 5(B)
COPIES OF FINANCING STATEMENTS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 6(A)
DESCRIPTION OF COLLATERAL
All accounts, chattel paper, contract rights, general intangibles,
inventory, equipment and documents, now owned or hereafter acquired, wherever
located, and all proceeds thereof.
SCHEDULE 7
SCHEDULE OF FILINGS
ON FILE WITH WHITE & CASE LLP
SCHEDULE 9
PATENTS, TRADEMARKS AND COPYRIGHTS
See Schedule 9A.
Exhibit B
to Security
Agreement
PATENT SECURITY AGREEMENT
(PATENT APPLICATIONS AND PATENT LICENSES)
[Note: To be provided by the Borrower for each Grantor]
WHEREAS, Tekni-Plex, Inc., a Delaware corporation (herein referred to as
"Grantor") owns the Patents (as defined in the Security Agreement referred to
below) (including design patents and applications for patents) listed on
Schedule 1 annexed hereto, and is a party to the Patent Licenses (as defined in
the Security Agreement referred to below) identified in Schedule 1 annexed
hereto;
WHEREAS, Grantor, certain lenders and Xxxxxx Guaranty Trust Company of New
York, as Agent for such lenders, are parties to a Credit Agreement of even date
herewith (as the same may be amended and in effect from time to time among said
parties and such lenders (the "Lenders") as may from time to time be parties
thereto, the "Credit Agreement");
WHEREAS, pursuant to the terms of the Security Agreement of even date
herewith (as said Agreement may be amended and in effect from time to time, the
"Security Agreement") between Grantor, other grantors party thereto and Xxxxxx
Guaranty Trust Company of New York, as Collateral Agent for the secured parties
referred to therein (in such capacity, together with its successors in such
capacity, "Grantee"), Grantor has granted to Grantee for the benefit of such
secured parties a continuing security interest in substantially all the assets
of Grantor, including all right, title and interest of Grantor in, to and under
the Patent Collateral (as defined herein) whether now owned or existing or
hereafter acquired or arising, to secure the Secured Obligations (as defined in
the Security Agreement);
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor does hereby grant to
Grantee a continuing security interest in all of Grantor's right, title and
interest in, to and under the following (all of the following items or types of
property being herein collectively referred to as the "Patent Collateral"),
whether now owned or existing or hereafter acquired or arising:
(i) each Patent (including each design patent and patent
application), including, without limitation, each Patent (including each
design patent and patent application) referred to in Schedule 1 annexed
hereto;
(ii) each Patent License, including, without limitation, each Patent
License identified in Schedule 1 annexed hereto; and
(iii) all proceeds of and revenues from the foregoing, including,
without limitation, all proceeds of and revenues from any claim by Grantor
against third parties for past, present or future infringement of any
Patent (including any design patent), including, without limitation, any
Patent referred to in Schedule 1 annexed hereto (including, without
limitation, any such Patent issuing from any application referred to in
Schedule 1 annexed hereto), and all rights and benefits of Grantor under
any Patent License, including, without limitation, any Patent License
identified in Schedule 1 annexed hereto.
Grantor hereby irrevocably constitutes and appoints Grantee and any
officer or agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full power and authority in the name of Grantor or
in its name, from time to time, in Grantee's discretion, so long as any Event
of Default (as defined in the Credit Agreement) has occurred and is continuing,
to take with respect to the Patent Collateral any and all appropriate action
which Grantor might take with respect to the Patent Collateral and to execute
any and all documents and instruments which may be necessary or desirable to
carry out the terms of this Patent Security Agreement and to accomplish the
purposes hereof.
Except to the extent not prohibited in the Security Agreement, Grantor
agrees not to sell, license, exchange, assign or otherwise transfer or dispose
of, or grant any rights with respect to, or mortgage or otherwise encumber, any
of the foregoing Patent Collateral.
This security interest is granted in conjunction with the security
interests granted to Grantee pursuant to the Security Agreement. Grantor does
hereby further acknowledge and affirm that the rights and remedies of Grantee
with respect to the security interest in the Patent Collateral made and granted
hereby are more fully set forth in the Security Agreement, the terms and
provisions of which are incorporated by reference herein as if fully set forth
herein.
IN WITNESS WHEREOF, Grantor has caused this Patent Security Agreement to
be duly executed by its officer thereunto duly authorized as of the ____ day of
____________, 2000.
TEKNI-PLEX, INC.
By:___________________________
Title:
Acknowledged:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as Agent
By:_________________________
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, ______________________, a Notary Public in and for said County, in the
State aforesaid, DO HEREBY CERTIFY, that _________________________,
_______________ of [NAME OF COMPANY], personally known to me to be the same
person whose name is subscribed to the foregoing instrument as such
_________________, appeared before me this day in person and acknowledged that
(s)he signed, executed and delivered the said instrument as her/his own free
and voluntary act and as the free and voluntary act of said Company, for the
uses and purposes therein set forth being duly authorized so to do.
GIVEN under my hand and Notarial Seal this ___ day of
_______________, 2000.
[Seal]
_______________________________
Signature of notary public
My Commission expires __________
SCHEDULE 1
to PATENT
SECURITY AGREEMENT
PATENTS
A. U.S. Patents and Design Patents
Patent Patent No. Issue Date
------ ---------- ----------
_____________________
EXHIBIT C
TO SECURITY
AGREEMENT
TRADEMARK SECURITY AGREEMENT
(TRADEMARKS, TRADEMARK REGISTRATIONS, TRADEMARK
APPLICATIONS AND TRADEMARK LICENSES)
[Note: To be provided by the Borrower for each Guarantor]
WHEREAS, Tekni-Plex, Inc., a Delaware corporation (herein referred to as
"Grantor"), owns the Trademarks (as defined in the Security Agreement referred
to below) listed on Schedule 1 annexed hereto, and is a party to the Trademark
Licenses (as defined in the Security Agreement referred to below) identified in
Schedule 1 annexed hereto;
WHEREAS, Grantor, certain Lenders and Xxxxxx Guaranty Trust Company of New
York, as Agent for such Lenders, are parties to a Credit Agreement of even date
herewith (as the same may be amended and in effect from time to time among said
parties and such lenders (the "Lenders") as may from time to time be parties
thereto, the "Credit Agreement");
WHEREAS, pursuant to the terms of the Security Agreement of even date
herewith (as said Agreement may be amended and in effect from time to time, the
"Security Agreement") between Grantor and Xxxxxx Guaranty Trust Company of New
York as Collateral Agent for the secured parties referred to therein (in such
capacity, together with its successors in such capacity, "Grantee"), Grantor
has granted to Grantee for the benefit of such secured parties a security
interest in substantially all the assets of Grantor, including all right, title
and interest of Grantor in, to and under the Trademark Collateral (as defined
herein), whether now owned or existing or hereafter acquired or arising, to
secure the Secured Obligations (as defined in the Security Agreement);
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor does hereby grant to
Grantee a continuing security interest in all of Grantor's right, title and
interest in, to and under the following (all of the following items or types of
property being herein collectively referred to as the "Trademark Collateral"),
whether now owned or existing or hereafter acquired or arising:
(i) each Trademark, including, without limitation, each Trademark
application referred to in Schedule 1 annexed hereto, and all of the
goodwill of the business connected with the use of, or symbolized by, each
such Trademark;
(ii) each Trademark License, including, without limitation, each
Trademark License identified in Schedule 1 annexed hereto, and all of the
goodwill of the business connected with the use of, or symbolized by, each
Trademark licensed pursuant thereto; and
(iii) all proceeds of and revenues from the foregoing, including,
without limitation, all proceeds of and revenues from any claim by Grantor
against third parties for past, present or future unfair competition with,
or violation of intellectual property rights in connection with or injury
to, or infringement or dilution of, any Trademark, including, without
limitation, any Trademark referred to in Schedule 1 hereto, and all rights
and benefits of Grantor under any Trademark License, including, without
limitation, any Trademark License identified in Schedule 1 hereto, or for
injury to the goodwill associated with any of the foregoing.
Grantor hereby irrevocably constitutes and appoints Grantee and any
officer or agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full power and authority in the name of Grantor or
in its name, from time to time, in Grantee's discretion, so long as any Event
of Default (as defined in the Credit Agreement) has occurred and is continuing,
to take with respect to the Trademark Collateral any and all appropriate action
which Grantor might take with respect to the Trademark Collateral and to
execute any and all documents and instruments which may be necessary or
desirable to carry out the terms of this Trademark Security Agreement and to
accomplish the purposes hereof.
Except to the extent not prohibited in the Security Agreement, Grantor
agrees not to sell, license, exchange, assign or otherwise transfer or dispose
of, or grant any rights with respect to, or mortgage or otherwise encumber, any
of the foregoing Trademark Collateral.
This security interest is granted in conjunction with the security
interests granted to Grantee pursuant to the Security Agreement. Grantor does
hereby further acknowledge and affirm that the rights and remedies of Grantee
with respect to the security interest in the Trademark Collateral made and
granted hereby are more fully set forth in the Security Agreement, the terms
and provisions of which are incorporated by reference herein as if fully set
forth herein.
IN WITNESS WHEREOF, Grantor has caused this Trademark Security Agreement
to be duly executed by its officer thereunto duly authorized as of the ____ day
of __________, 2000.
TEKNI-PLEX, INC.
By:___________________________
Title:
Acknowledged:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as Agent
By:_________________________
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, ______________________, a Notary Public in and for said County, in the
State aforesaid, DO HEREBY CERTIFY, that _________________________,
_______________ of [NAME OF COMPANY], personally known to me to be the same
person whose name is subscribed to the foregoing instrument as such
_________________, appeared before me this day in person and acknowledged that
(s)he signed, executed and delivered the said instrument as her/his own free
and voluntary act and as the free and voluntary act of said Company, for the
uses and purposes therein set forth being duly authorized so to do.
GIVEN under my hand and Notarial Seal this ___ day of
_______________, 2000.
[Seal]
__________________________________
Signature of notary public
My Commission expires __________
SCHEDULE 1
TO TRADEMARK
SECURITY AGREEMENT
U.S. TRADEMARKS AND TRADEMARK REGISTRATIONS1
A. U.S. Trademarks and Trademark Registrations
Xxxx Reg. No. Reg. Date
---- ------- ---------
B. U.S. Trademark Applications
----------------
1 To be updated.
EXHIBIT D
TO SECURITY
AGREEMENT
COPYRIGHT SECURITY AGREEMENT
(COPYRIGHTS, COPYRIGHT REGISTRATIONS, COPYRIGHT
APPLICATIONS AND COPYRIGHT LICENSES)
[Note: To be provided by the Borrower for each Guarantor]
WHEREAS, _______________, a [__________] corporation (herein referred to
as "Grantor") owns the Copyrights (as defined in the Security Agreement
referred to below) listed on Schedule 1 annexed hereto, and is a party to the
Copyright Licenses (as defined in the Security Agreement referred to below)
identified in Schedule 1 annexed hereto;
WHEREAS, Grantor, [Tekni-Plex, Inc.,] certain banks and Xxxxxx Guaranty
Trust Company of New York, as Agent for such lenders, are parties to a Credit
Agreement of even date herewith (as the same may be amended and in effect from
time to time among said parties and such lenders (the "Lenders") as may from
time to time be parties thereto, the "Credit Agreement");
WHEREAS, pursuant to the terms of the Security Agreement of even date
herewith (as said Agreement may be amended and in effect from time to time, the
"Security Agreement") between Grantor and Xxxxxx Guaranty Trust Company of New
York, as Collateral Agent for the secured parties referred to therein (in such
capacity, together with its successors in such capacity, the "Grantee"),
Grantor has granted to Grantee for the benefit of such secured parties a
security interest in substantially all the assets of the Grantor, including all
right, title and interest of Grantor in, to and under the Copyright Collateral
(as defined herein), whether now owned or existing or hereafter acquired or
arising, to secure the Secured Obligations (as defined in the Security
Agreement);
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor does hereby grant to
Grantee a continuing security interest in all of Grantor's right, title and
interest in, to and under the following (all of the following items or types of
property being herein collectively referred to as the "Copyright Collateral"),
whether now owned or existing or hereafter acquired or arising:
(i) each Copyright, including, without limitation, each Copyright
referred to in Schedule 1 annexed hereto;
(ii) each Copyright License, including, without limitation, each
Copyright License identified in Schedule 1 annexed hereto; and
(iii) all proceeds of and revenues from the foregoing, including,
without limitation, all proceeds of and revenues from any claim by Grantor
against third parties for past, present or future infringement of any
Copyright, including, without limitation, any Copyright referred to in
Schedule 1 annexed hereto, and all rights and benefits of Grantor under
any Copyright License, including, without limitation, any Copyright
License identified in Schedule 1 annexed hereto.
Grantor hereby irrevocably constitutes and appoints Grantee and any
officer or agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full power and authority in the name of Grantor or
in its name, from time to time, in Grantee's discretion, so long as any Event
of Default (as defined in the Credit Agreement) has occurred and is continuing,
to take with respect to the Copyright Collateral any and all appropriate action
which Grantor might take with respect to the Copyright Collateral and to
execute any and all documents and instruments which may be necessary or
desirable to carry out the terms of this Copyright Security Agreement and to
accomplish the purposes hereof.
Except to the extent not prohibited in the Security Agreement, Grantor
agrees not to sell, license, exchange, assign or otherwise transfer or dispose
of, or grant any rights with respect to, or mortgage or otherwise encumber, any
of the foregoing Copyright Collateral.
This security interest is granted in conjunction with the security
interests granted to Grantee pursuant to the Security Agreement. Grantor does
hereby further acknowledge and affirm that the rights and remedies of Grantee
with respect to the security interest in the Copyright Collateral made and
granted hereby are more fully set forth in the Security Agreement, the terms
and provisions of which are incorporated by reference herein as if fully set
forth herein.
IN WITNESS WHEREOF, Grantor has caused this Copyright Security Agreement
to be duly executed by its officer thereunto duly authorized as of the ____ day
of _______, 2000.
[COMPANY]
By:___________________________
Title:
Acknowledged:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as Agent
By:_________________________
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, ______________________, a Notary Public in and for said County, in the
State aforesaid, DO HEREBY CERTIFY, that _________________________,
_______________ of [NAME OF COMPANY], personally known to me to be the same
person whose name is subscribed to the foregoing instrument as such
_________________, appeared before me this day in person and acknowledged that
(s)he signed, executed and delivered the said instrument as her/his own free
and voluntary act and as the free and voluntary act of said Company, for the
uses and purposes therein set forth being duly authorized so to do.
GIVEN under my hand and Notarial Seal this ___ day of _______________,
2000.
[Seal]
_________________________________
Signature of notary public
My Commission expires __________
SCHEDULE 1
TO COPYRIGHT
SECURITY AGREEMENT
COPYRIGHTS AND COPYRIGHT REGISTRATION
Registration No. Reg. Date Title
---------------- --------- -----
COPYRIGHT APPLICATIONS
Serial No. Date Filed Title
---------- ---------- -----
COPYRIGHT LICENSES
Name of Parties Date of Subject
Agreement Licensor/Licensee Agreement Matter
--------- ----------------- --------- ------
F-59
EXHIBIT E
[CONFORMED AS EXECUTED]
FORM OF PLEDGE AGREEMENT
AGREEMENT dated as of June 21, 2000 between TEKNI-PLEX, INC. (with its
successors, the "Borrower", and, together with any other Person which becomes a
Grantor pursuant to Section 3(B), the "Grantors" and each a "Grantor") and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Agent (with its successors in
such capacity, the "Pledgee").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, certain guarantors (the "Guarantors"), certain
lenders (the "Lenders") and Xxxxxx Guaranty Trust Company of New York, as Agent
for such Lenders, are parties to a Credit Agreement of even date herewith (as
the same may be amended from time to time, the "Credit Agreement"); and
WHEREAS, in order to induce said Lenders and Xxxxxx Guaranty Trust Company
of New York, as Agent for such Lenders, to enter into the Credit Agreement,
each Grantor has agreed to grant a continuing security interest in and to the
Collateral (as hereafter defined) to secure its obligations under the Credit
Agreement and the obligations of the Borrower under the Notes issued pursuant
thereto;
WHEREAS, the Borrower may from time to time be a party to one or more
agreements with respect to Derivatives Obligations (each such agreement with
respect to Derivatives Obligations with a Derivatives Creditor (as defined
below), a "Derivatives Obligations Agreement") with any Lender or Lenders or an
affiliate of a Lender (even if any such Lender ceases to be a Lender under the
Credit Agreement for any reason) and in each case their subsequent assigns
(collectively, the "Derivatives Creditors" and together with the Lenders and
the Agent, the "Creditors");
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions.
Terms defined in the Credit Agreement and not otherwise defined herein
have, as used herein, the respective meanings provided for therein. The
following additional terms, as used herein, have the following respective
meanings:
"Certificated Security" has the meaning given such term in Section
8-102(a)(4) of the UCC.
"Class" has the meaning assigned to such term in Section 20.
Exhibit E
Page 2
"Clearing Corporation" has the meaning given such term in Section
8-102(a)(5) of the UCC.
"Collateral" has the meaning assigned to such term in Section 3(A).
"Investment Property" has the meaning given such term in Section 9-115(f)
of the UCC.
"Issuer" means (i) each of the Subsidiaries listed on Schedule I hereto
and (ii) any other Person which becomes a Domestic Subsidiary after the date of
this Agreement.
"Limited Liability Company Interests" means the entire limited liability
company membership interests at any time owned by any Grantor in any limited
liability company.
"Partnership Interest" means the entire general partnership interest or
limited partnership interest at any time owned by any Grantor in any general
partnership or limited partnership.
"Pledged Instruments" means (i) all intercompany notes listed on Schedule
I hereto and (ii) any instrument required to be pledged to the Pledgee pursuant
to Section 3(B).
"Pledged Securities" means the Pledged Instruments and the Pledged Stock.
"Pledged Stock" means (i) the Subsidiaries Shares and (ii) any other
capital stock or interests required to be pledged to the Pledgee pursuant to
Section 3(B).
"Requisite Creditors" has the meaning ascribed to such term in Section 21.
"Secured Obligations" means (i) the full and prompt payment when due
(whether at 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 Grantor, now
existing or hereafter incurred under any Loan Document to which it is a party
(all such obligations and liabilities under this clause (i) being herein
collectively called the "Loan Document 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 Grantor, now existing or hereafter incurred under, arising out of or in
connection with any Derivatives Obligations Agreement designated by such
Grantor and the related Derivatives Creditor as a "Secured Derivatives
Obligations Agreement", including all obligations, if any, under a Guaranty in
respect of any Derivatives Obligations Agreement (all such obligations and
indebtedness under this clause (ii) being herein collectively called the
"Secured Derivatives Obligations"); (iii) any and all sums advanced by the
Pledgee in order to preserve the Collateral or preserve its security interest
in the Collateral in accordance with Section 11; (iv) in the event of any
proceeding for the collection or enforcement of any indebtedness, obligations,
or liabilities of each Grantor referred to in clauses (i), (ii) and (iii) above
after an Event of Default shall have occurred and be continuing, the reasonable
expenses of re-taking, holding, preparing for sale or lease, selling or
otherwise disposing of or realizing on
Exhibit E
Page 3
the Collateral, or of any exercise by the Pledgee 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 11 of this Agreement.
"Security Interests" means the security interests in the Collateral
granted hereunder securing the Secured Obligations.
"Subsidiaries Shares" means all shares of capital stock of the
Subsidiaries listed on Schedule I hereto.
Unless otherwise defined herein, or unless the context otherwise requires,
all terms used herein which are defined in the New York Uniform Commercial Code
as in effect on the date hereof shall have the meanings therein stated.
Section 2. Representations and Warranties.
Each Grantor represents and warrants as follows:
(A) Title to Pledged Securities. The Grantors own all of the Pledged
Securities, free and clear of any Liens other than the Security Interests. The
Pledged Stock includes all of the issued and outstanding capital stock of each
Issuer owned by the Grantors. All of the Pledged Stock has been duly authorized
and validly issued, and is fully paid and non-assessable, and is subject to no
options to purchase or similar rights of any Person. No Grantor is or will
become a party to or otherwise bound by any agreement, other than this
Agreement, which restricts in any manner the rights of any present or future
holder of any of the Pledged Securities with respect thereto.
(B) Validity, Perfection and Priority of Security Interests. Upon the
delivery of the Pledged Instruments and certificates representing the Pledged
Stock to the Pledgee in accordance with Section 4 hereof, the Pledgee will have
valid and perfected security interests in the Collateral subject to no prior
Lien other than Permitted Liens. No registration, recordation or filing with
any governmental body, agency or official is required in connection with the
execution or delivery of this Agreement or necessary for the validity or
enforceability hereof or for the perfection or enforcement of the Security
Interests. Neither the Borrower nor any of its Subsidiaries has performed or,
subject to bankruptcy, insolvency, reorganization and other laws relating to
the rights or relief of debtors, will perform any acts which might prevent the
Pledgee from enforcing any of the terms and conditions of this Agreement or
which would limit the Pledgee in any such enforcement.
(C) UCC Filing Locations. The chief executive office of the Borrower and
each of the Guarantors is located at its address set forth on the signature
pages of the Credit Agreement. Under the Uniform Commercial Code as in effect
in the State in which such office is located, no local filing is required to
perfect a security interest in collateral consisting of general intangibles.
Exhibit E
Page 4
Section 3. The Security Interests.
In order to secure the full and punctual payment of the Secured
Obligations in accordance with the terms thereof, and to secure the performance
of all the obligations of the Grantors hereunder:
(A) Each Grantor hereby assigns and pledges to and with the Pledgee for
the benefit of the Creditors and grants to the Pledgee for the benefit of the
Creditors security interests in the Pledged Securities, and all of its rights
and privileges with respect to the Pledged Securities, and all income and
profits thereon, and all interest, dividends and other payments and
distributions with respect thereto, and all proceeds of the foregoing (the
"Collateral"). Contemporaneously with the execution and delivery hereof, the
Borrower is delivering the intercompany notes constituting the Pledged
Instruments and certificates representing the Subsidiaries Shares in pledge
hereunder.
(B) In the event that any Person becomes an Issuer, or any Issuer at any
time issues any additional or substitute shares of capital stock, membership
interests or partnership interests of any class to a Grantor, or issues any
substitute note, or owes any other Debt to a Grantor evidenced by an
instrument, the relevant Grantor will immediately pledge and deposit with the
Pledgee certificates representing all such shares, Limited Liability Company
Interests, Partnership Interests and/or such note (as the case may be) or an
instrument evidencing such other Debt (or take such other action as required by
Section 4 below) held by such Grantor as additional security for the Secured
Obligations. All such shares, interests, notes and instruments constitute
Pledged Securities and are subject to all provisions of this Agreement.
(C) The Security Interests are granted as security only and shall not
subject the Pledgee or any Creditor to, or transfer or in any way affect or
modify, any obligation or liability of the Borrower or any of its Subsidiaries
with respect to any of the Collateral or any transaction in connection
therewith.
Section 4. Delivery of Pledged Securities; Procedures.
(a) To the extent that any Grantor at any time or from time to time owns,
acquires or obtains any right, title or interest in any Collateral, such
Collateral shall automatically (and without the taking of any action by the
respective Grantor) be pledged pursuant to Section 3 of this Agreement and, in
addition thereto, such Grantor shall as promptly as practicable take the
following actions as set forth below for the benefit of the Creditors:
(i) with respect to a Certificated Security (other than a
Certificated Security credited on the books of a Clearing Corporation),
the respective Grantor shall physically deliver such Certificated Security
to the Pledgee, endorsed to the Pledgee or endorsed in blank;
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing Corporation),
the respective Grantor shall cause the issuer of such Uncertificated
Security to duly authorize and execute, and deliver
Exhibit E
Page 5
to the Pledgee, an agreement for the benefit of the Pledgee and the
Secured Creditors substantially in the form of Annex A hereto
(appropriately completed to the satisfaction of the Pledgee and with such
modifications, if any, as shall be satisfactory to the Pledgee) pursuant
to which such issuer agrees to comply with any and all instructions
originated by the Pledgee without further consent by the registered owner
and not to comply with instructions regarding such Uncertificated Security
(and any Partnership Interests and Limited Liability Company Interests
issued by such issuer) originated by any other Person other than a court
of competent jurisdiction;
(iii) with respect to a Certificated Security, Uncertificated
Security, Partnership Interest or Limited Liability Company Interest
credited on the books of a Clearing Corporation (including a Federal
Reserve Bank, Participants Trust Company or The Depository Trust Company),
the respective Grantor shall promptly notify the Pledgee thereof and shall
promptly take all actions required (i) to comply with the applicable rules
of such Clearing Corporation and (ii) to perfect the security interest of
the Pledgee under applicable law (including, in any event, under Sections
9-115 (4)(a) and (b), 9-115 (1)(e) and 8-106 (d) of the UCC). The Grantor
further agrees to take such actions as the Pledgee deems necessary or
desirable to effect the foregoing;
(iv) with respect to a Partnership Interest or a Limited Liability
Company Interest (other than a Partnership Interest or Limited Liability
Interest credited on the books of a Clearing Corporation), (1) if such
Partnership Interest or Limited Liability Company Interest is represented
by a certificate, the procedure set forth in Section 3.2(a)(i) hereof, and
(2) if such Partnership Interest or Limited Liability Company Interest is
not represented by a certificate, the procedure set forth in Section
3.2(a)(ii) hereof;
(v) with respect to any Pledged Instrument, physical delivery of such
Pledged Instrument to the Pledgee, endorsed to the Pledgee or endorsed in
blank; and
(vi) with respect to cash, (i) establishment by the Pledgee of a cash
account in the name of such Grantor over which the Pledgee shall have
exclusive and absolute control and dominion (and no withdrawals or
transfers may be made therefrom by any Person except with the prior
written consent of the Pledgee) and (ii) deposit of such cash in such cash
account.
(b) In addition to the actions required to be taken pursuant to proceeding
Section 4(a) hereof, each Grantor shall take the following additional actions
with respect to the Pledged Securities and Collateral :
(i) with respect to all Collateral of such Grantor whereby or with
respect to which the Pledgee may obtain "control" thereof within the
meaning of Section 8-106 of the UCC (or under any provision of the UCC as
same may be amended or supplemented from time to time, or under the laws
of any relevant State other than the State of New York), the respective
Grantor shall take all actions as may be requested from time to time by
the Pledgee so that "control" of such Collateral is obtained and at all
times held by the Pledgee; and
Exhibit E
Page 6
(ii) each Grantor shall from time to time cause appropriate financing
statements (on Form UCC-1 or other appropriate form) under the Uniform
Commercial Code as in effect in the various relevant States, on form
covering all Collateral hereunder (with the form of such financing
statements to be satisfactory to the Pledgee), to be filed in the relevant
filing offices so that at all times the Pledgee has a security interest in
all Investment Property and other Collateral which is perfected by the
filing of such financing statements (in each case to the maximum extent
perfection by filing may be obtained under the laws of the relevant
States, including, without limitation, Section 9-115(4)(b) of the UCC).
Section 5. Further Assurances.
(A) Each Grantor agrees that it will, at its expense and in such manner
and form as the Pledgee may reasonably require, execute, deliver, file and
record any financing statement, specific assignment or other paper and take any
other action that may be necessary or desirable, or that the Pledgee may
request, in order to create, preserve, perfect or validate any Security
Interest or to enable the Pledgee to exercise and enforce its rights hereunder
with respect to any of the Collateral. To the extent permitted by applicable
law, each Grantor hereby authorizes the Pledgee to execute and file, in the
name of the Borrower or otherwise, Uniform Commercial Code financing statements
(which may be carbon, photographic, photostatic or other reproductions of this
Agreement or of a financing statement relating to this Agreement) which the
Pledgee in its sole discretion may deem necessary or appropriate to further
perfect the Security Interests.
(B) Each Grantor agrees that it will not change (i) its name, identity or
corporate structure in any manner or (ii) the location of its chief executive
office unless it shall have given the Pledgee not less than 30 days' prior
notice thereof.
Section 6. Record Ownership of Pledged Stock.
The Pledgee may at any time or from time to time during the continuance of
an Event of Default, in its sole discretion, cause any or all of the Pledged
Stock to be transferred of record into the name of the Pledgee or its nominee.
Each Grantor will promptly give to the Pledgee copies of any notices or other
communications received by it with respect to Pledged Stock registered in its
name, and the Pledgee will promptly give to the Borrower copies of any notices
and communications received by the Pledgee with respect to Pledged Stock
registered in the name of the Pledgee or its nominee.
Section 7. Right to Receive Distributions on Collateral.
During the continuance of any Event of Default, the Pledgee shall have the
right to receive and to retain as Collateral hereunder all dividends, interest
and other payments and distributions made upon or with respect to the
Collateral, and each Grantor shall take all such action as the Pledgee may deem
necessary or appropriate to give effect to such right. All such dividends,
interest and other payments and distributions which are received by a Grantor
shall be received in trust for the benefit of the Pledgee and the Lenders (but,
unless an Event of Default shall have occurred and be continuing, may be used
by such Grantor as permitted by the other
Exhibit E
Page 7
provisions of this Agreement and the other Loan Documents). If the Pledgee so
directs during the continuance of an Event of Default, such dividends, interest
and other payments and distributions shall be segregated from other funds of
such Grantor and shall, forthwith upon demand by the Pledgee during the
continuance of an Event of Default, be paid over to the Pledgee as Collateral
in the same form as received (with any necessary endorsement). After all Events
of Default have been cured, the Pledgee's right to retain dividends, interest
and other payments and distributions under this Section 7 shall cease, and the
Pledgee shall pay over to such Grantor any such Collateral retained by it
during the continuance of an Event of Default.
Section 8. Right to Vote Pledged Stock.
Unless an Event of Default shall have occurred and be continuing, each
Grantor shall have the right, from time to time, to vote and to give consents,
ratifications and waivers with respect to the Pledged Stock, and the Pledgee
shall, upon receiving a written request from such Grantor accompanied by a
certificate signed by the principal executive officer or principal financial
officer of the Borrower stating that no Event of Default has occurred and is
continuing, deliver to such Grantor or as specified in such request such
proxies, powers of attorney, consents, ratifications and waivers in respect of
any of the Pledged Stock which is registered in the name of the Pledgee or its
nominee as shall be specified in such request and be in form and substance
satisfactory to the Pledgee.
If an Event of Default shall have occurred and be continuing, the Pledgee
shall have the right to the extent permitted by law and each Grantor shall take
all such action as may be necessary or appropriate to give effect to such
right, to vote and to give consents, ratifications and waivers, and take any
other action with respect to any or all of the Pledged Stock with the same
force and effect as if the Pledgee were the absolute and sole owner thereof.
Section 9. General Authority.
Each Grantor hereby irrevocably appoints the Pledgee its true and lawful
attorney, with full power of substitution, in the name of the Grantors, the
Pledgee, the Lenders or otherwise, for the sole use and benefit of the Pledgee
and Lenders, but at the expense of such Grantor, to the extent permitted by law
to exercise, at any time and from time to time while an Event of Default has
occurred and is continuing, all or any of the following powers with respect to
all or any of the Collateral:
(i) to demand, xxx for, collect, receive and give acquittance for any
and all monies due or to become due upon or by virtue thereof,
(ii) to settle, compromise, compound, prosecute or defend any action
or proceeding with respect thereto,
(iii) to sell, transfer, assign or otherwise deal in or with the same
or the proceeds or avails thereof, as fully and effectually as if the
Pledgee were the absolute owner thereof, and
Exhibit E
Page 7
(iv) to extend the time of payment of any or all thereof and to make
any allowance and other adjustments with reference thereto;
provided that the Pledgee shall give the relevant Grantor not less than thirty
(30) days' prior written notice of the time and place of any sale or other
intended disposition of any of the Collateral. The Pledgee and the Grantors
agree that such notice constitutes "reasonable notification" within the meaning
of Section 9-504(3) of the Uniform Commercial Code.
Section 10. Remedies upon Event of Default.
If any Event of Default shall have occurred and be continuing, the Pledgee
may exercise on behalf of the Lenders all the rights of a secured party under
the Uniform Commercial Code (whether or not in effect in the jurisdiction where
such rights are exercised), and, in addition, the Pledgee may, without being
required to give any notice, except as herein provided or as may be required by
mandatory provisions of law, (i) apply the cash, if any, then held by it as
Collateral as specified in Section 13 and (ii) if there shall be no such cash
or if such cash shall be insufficient to pay all the Secured Obligations in
full, after not less than thirty (30) days' prior written notice to the
relevant Grantor, sell the Collateral or any part thereof at public or private
sale or at any broker's board or on any securities exchange, for cash, upon
credit or for future delivery, and at such price or prices as the Pledgee may
deem satisfactory. Any Lender may be the purchaser of any or all of the
Collateral so sold at any public sale (or, if the Collateral is of a type
customarily sold in a recognized market or is of a type which is the subject of
widely distributed standard price quotations, at any private sale). The Pledgee
is authorized, in connection with any such sale, if it deems it advisable so to
do, (i) to restrict the prospective bidders on or purchasers of any of the
Pledged Securities to a limited number of sophisticated investors who will
represent and agree that they are purchasing for their own account for
investment and not with a view to the distribution or sale of any of such
Pledged Securities, (ii) to cause to be placed on certificates for any or all
of the Pledged Securities or on any other securities pledged hereunder a legend
to the effect that such security has not been registered under the Securities
Act of 1933 and may not be disposed of in violation of the provisions of said
Act, and (iii) to impose such other limitations or conditions in connection
with any such sale as the Pledgee deems necessary or advisable in order to
comply with said Act or any other law. Each Grantor will execute and deliver
such documents and take such other action as the Pledgee reasonably deems
necessary or advisable in order that any such sale may be made in compliance
with law. Upon any such sale the Pledgee shall have the right to deliver,
assign and transfer to the purchaser thereof the Collateral so sold. Each
purchaser at any such sale shall hold the Collateral so sold absolutely and
free from any claim or right of whatsoever kind, including any equity or right
of redemption of the Grantors which may be waived, and each Grantor, to the
extent permitted by law, hereby specifically waives all rights of redemption,
stay or appraisal which it has or may have under any law now existing or
hereafter adopted. The notice of such sale required by Section 9 and this
Section 10 shall (1) in the case of a public sale, state the time and place
fixed for such sale, (2) in the case of a sale at a broker's board or on a
securities exchange, state the board or exchange at which such sale is to be
made and the day on which the Collateral, or the portion thereof so being sold,
will first be offered for sale at such board or exchange, and (3) in the case
of a private sale, state the day after which such sale may be consummated. Any
such public sale shall be held at such time or times within ordinary business
hours and at such
Exhibit E
Page 9
place or places as the Pledgee may fix in the notice of such sale. At any such
sale the Collateral may be sold in one lot as an entirety or in separate
parcels, as the Pledgee may determine. The Pledgee shall not be obligated to
make any such sale pursuant to any such notice. The Pledgee may, without notice
or publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for the
sale, and such sale may be made at any time or place to which the same may be
so adjourned. In the case of any sale of all or any part of the Collateral on
credit or for future delivery, the Collateral so sold may be retained by the
Pledgee until the selling price is paid by the purchaser thereof, but the
Pledgee shall not incur any liability in the case of the failure of such
purchaser to take up and pay for the Collateral so sold and, in the case of any
such failure, such Collateral may again be sold upon like notice. The Pledgee,
instead of exercising the power of sale herein conferred upon it, may proceed
by a suit or suits at law or in equity to foreclose the Security Interests and
sell the Collateral, or any portion thereof, under a judgment or decree of a
court or courts of competent jurisdiction.
Section 11. Expenses.
The Grantors jointly and severally agree that they will forthwith upon
demand pay to the Pledgee:
(i) the amount of any taxes which the Pledgee may have been required
to pay by reason of the Security Interests or to free any of the
Collateral from any Lien thereon, and
(ii) the amount of any and all reasonable out-of-pocket expenses,
including the fees and disbursements of counsel and of any other experts,
which the Pledgee may incur in connection with (w) the administration or
enforcement of this Agreement, including such expenses as are incurred to
preserve the value of the Collateral and the validity, perfection, rank
and value of any Security Interest, (x) the collection, sale or other
disposition of any of the Collateral, (y) the exercise by the Pledgee of
any of the rights conferred upon it hereunder or (z) any Default or Event
of Default.
Any such amount not paid within five business days after demand shall bear
interest at the rate applicable to Base Rate Loans plus 2% and shall be an
additional Secured Obligation hereunder.
Section 12. Limitation on Duty of Pledgee in Respect of Collateral.
Beyond the exercise of reasonable care in the custody thereof, the Pledgee
shall have no duty as to any Collateral in its possession or control or in the
possession or control of any Pledgee or bailee or any income thereon or as to
the preservation of rights against prior parties or any other rights pertaining
thereto. The Pledgee shall be deemed to have exercised reasonable care in the
custody and preservation of the Collateral in its possession if the Collateral
is accorded treatment substantially equal to that which it accords its own
property, and the Pledgee shall not be liable or responsible for any loss or
damage to any of the Collateral, or for any diminution in the value thereof, by
reason of the act or omission of any Pledgee or bailee selected by the Pledgee
in good faith.
Exhibit E
Page 10
Section 13. Application of Proceeds.
Upon the occurrence and during the continuance of an Event of Default, the
proceeds of any sale of, or other realization upon, all or any part of the
Collateral and any cash held shall be applied by the Pledgee in the following
order of priorities:
first, to payment of the expenses of such sale or other realization,
including reasonable compensation to Pledgees and counsel for the Pledgee,
and all expenses, liabilities and advances incurred or made by the Pledgee
in connection therewith, and any other unreimbursed expenses for which the
Pledgee or any Lender is to be reimbursed pursuant to Section 10.03 of the
Credit Agreement or Section 11 hereof and unpaid fees owing to the Pledgee
under the Credit Agreement;
second, to the ratable payment of unpaid principal of the Secured
Obligations;
third, to the ratable payment of accrued but unpaid interest on the
Secured Obligations in accordance with the provisions of the Credit
Agreement;
fourth, to the ratable payment of all other Secured Obligations,
until all Secured Obligations shall have been paid in full; and
finally, to payment to the Grantors or their successors or assigns,
or as a court of competent jurisdiction may direct, of any surplus then
remaining from such proceeds.
The Pledgee may make distributions hereunder in cash or in kind or,
on a ratable basis, in any combination thereof.
Section 14. Concerning the Pledgee.
The provisions of Article VII of the Credit Agreement shall inure to the
benefit of the Pledgee in respect of this Agreement and shall be binding upon
the parties to the Credit Agreement in such respect. In furtherance and not in
derogation of the rights, privileges and immunities of the Pledgee therein set
forth:
(A) The Pledgee is authorized to take all such action as is provided
to be taken by it as Pledgee hereunder and all other action reasonably
incidental thereto. As to any matters not expressly provided for herein
(including, without limitation, the timing and methods of realization upon
the Collateral), the Pledgee shall act or refrain from acting in
accordance with written instructions from the Required Lenders or, in the
absence of such instructions, in accordance with its discretion.
(B) The Pledgee shall not be responsible for the existence,
genuineness or value of any of the Collateral or for the validity,
perfection, priority or enforceability of the Security Interests in any of
the Collateral, whether impaired by operation of law or by reason of any
action or omission to act on its part hereunder. The Pledgee shall have no
Exhibit E
Page 11
duty to ascertain or inquire as to the performance or observance of any of
the terms of this Agreement by the Grantors.
Section 15. Appointment of Co-Pledgees.
At any time or times, in order to comply with any legal requirement in any
jurisdiction, the Pledgee may appoint another bank or trust company or one or
more other persons, either to act as co-Pledgee or co-Pledgees, jointly with
the Pledgee, or to act as separate Pledgee or Pledgees on behalf of the
Lenders, with such power and authority as may be necessary for the effectual
operation of the provisions hereof and may be specified in the instrument of
appointment (which may, in the discretion of the Pledgee, include provisions
for the protection of such co-Pledgee or separate Pledgee similar to the
provisions of Section 14).
Section 16. Termination of Security Interests; Release of Collateral.
(a) After the termination of the Total Commitment and all Derivatives
Obligations Agreements, when no Note or Letter of Credit is outstanding and
when all Loans and other Obligations (other than contingent indemnity
obligations) have been paid in full, this Agreement shall terminate (provided
that all indemnities set forth herein including, without limitation, in Section
11 hereof shall survive such termination), and the Pledgee, at the request and
expense of the relevant Grantor, will execute and deliver to such Grantor a
proper instrument or instruments acknowledging the satisfaction and termination
of this Agreement, and will duly assign, transfer and deliver to such Grantor
(without recourse and without any representation or warranty) such of the
Collateral as may be in the possession of the Pledgee and as has not
theretofore been sold or otherwise applied or released pursuant to this
Agreement.
(b) In the event that any part of the Collateral is sold in connection
with a sale permitted by Section 5.07 of the Credit Agreement (it being agreed
for such purposes that a release will be deemed "permitted by Section 5.07 of
the Credit Agreement" if the proposed transaction constitutes an exception to
Section 5.07 of the Credit Agreement) or is otherwise released at the direction
of the Required Lenders (or all the Lenders if required by Section 10.05 of the
Credit Agreement), and the proceeds of such sale or sales or from such release
are applied in accordance with the terms of the Credit Agreement to the extent
required to be so applied, the Pledgee, at the request and expense of the
respective Grantor will release such Collateral from this Agreement, duly
assign, transfer and deliver to such Grantor (without recourse and without any
representation or warranty) such of the Collateral as is then being (or has
been) so sold or released and as may be in possession of the Pledgee and has
not theretofore been released pursuant to this Agreement.
(c) At any time that the relevant Grantor desires that the Pledgee take
any action to give effect to any release of Collateral pursuant to the
foregoing Section 16(b), it shall deliver to the Collateral Agent a certificate
signed by an authorized officer describing the Collateral to be sold and the
relevant provision of Section 5.07 of the Credit Agreement on which it is
relying to make such sale. In the event that any part of the Collateral is
released as provided in the preceding paragraph (b), the Pledgee, at the
request and expense of such Grantor, will duly release such Collateral and
assign, transfer and deliver to such Grantor or its designee (without
Exhibit E
Page 12
recourse and without any representation or warranty) such of the Collateral as
is then being (or has been) so sold and as may be in the possession of the
Pledgee and not theretofore been released pursuant to this Agreement. The
Pledgee shall have no liability whatsoever to any Secured Creditor as the
result of any release of Collateral by it as permitted by this Section 16. Upon
any release of Collateral pursuant to Section 16(a) or (b), none of the Secured
Creditors shall have any continuing right or interest in such Collateral, or
the proceeds thereof.
Section 17. Notices.
All notices hereunder shall be given in accordance with Section 10.01 of
the Credit Agreement.
Section 18. Waivers, Non-exclusive Remedies.
No failure on the part of the Pledgee to exercise, and no delay in
exercising and no course of dealing with respect to, any right under this
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise by the Pledgee of any right under the Credit Agreement or this
Agreement preclude any other or further exercise thereof or the exercise of any
other right. The rights in this Agreement and the Credit Agreement are
cumulative and are not exclusive of any other remedies provided by law.
Section 19. Successors and Assigns.
This Agreement is for the benefit of the Pledgee and the Lenders and their
successors and assigns, and in the event of an assignment of all or any of the
Secured Obligations, the rights hereunder, to the extent applicable to the
indebtedness so assigned, may be transferred with such indebtedness. This
Agreement shall be binding on the Pledgee, the Lenders, the Grantors and their
respective successors and assigns.
Section 20. Waiver; Amendment. 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 the Pledgee (with the consent of the Required
Lenders or, to the extent required by Section 10.05 of the Credit Agreement,
all of the Lenders), and each Grantor affected thereby (it being understood
that the addition or release of any Grantor hereunder shall not constitute a
change, waiver, discharge or variance affecting any Grantor other than the
Company and the Grantor so added or released) provided that (i) no such change,
waiver, modification or variance shall be made to Section 13 hereof (directly
or indirectly by modifying Section 8(A) of the Security Agreement), or this
Section 20 without the consent of each Secured Creditor adversely affected
thereby and (ii) that any change, waiver, modification or variance affecting
the rights and benefits of a single Class of Secured Creditors (and not all
Secured Creditors in a like or similar manner) shall require the written
consent of the Requisite Creditors of such Class of Secured Creditors. For the
purpose of this Agreement, the term "Class" shall mean each class of Secured
Creditors, i.e., whether (x) the Lenders and Pledgee as holders of the Loan
Document Obligations or (y) the Derivatives Creditors as holders of the
Interest Rate Obligations. For the purpose of this Agreement, the term
"Requisite Creditors" of any Class shall mean each of (x) with respect to each
of the Loan Document Obligations, the Required Lenders and (y) with
Exhibit E
Page 13
respect to the Interest Rate Obligations, the holders of at least a majority of
all obligations outstanding from time to time under the Derivatives Obligations
Agreements.
Section 21. Pledgee Not A Partner Or Limited Liability Company Member. (a)
Nothing herein shall be construed to make the Pledgee or any other Creditor
liable as a member of any limited liability company or as a partner of any
partnership and neither the Pledgee nor any other Creditor by virtue of this
Agreement or otherwise (except as referred to in the following sentence) shall
have any of the duties, obligations or liabilities of a member of any limited
liability company or partnership. The parties hereto expressly agree that,
unless the Pledgee shall become the absolute owner of Collateral consisting of
a Limited Liability Company Interest or Partnership Interest pursuant hereto,
this Agreement shall not be construed as creating a partnership or joint
venture among the Pledgee, any other Creditor, any Grantor and/or any other
Person.
(b) Except as provided in the last sentence of paragraph (a) of this
Section 21, the Pledgee, by accepting this Agreement, did not intend to become
a member of any limited liability company or a partner of any partnership or
otherwise be deemed to be a co-venturer with respect to any Grantor, any
limited liability company, partnership and/or any other Person either before or
after an Event of Default shall have occurred. The Pledgee shall have only
those powers set forth herein and the Creditors shall assume none of the
duties, obligations or liabilities of a member of any limited liability company
or as a partner of any partnership or any Grantor except as provided in the
last sentence of paragraph (a) of this Section 12.
(c) The Pledgee and the other Creditors shall not be obligated to perform
or discharge any obligation of any Grantor as a result of the pledge hereby
effected.
(d) The acceptance by the Pledgee of this Agreement, with all the rights,
powers, privileges and authority so created, shall not at any time or in any
event obligate the Pledgee or any other Creditor to appear in or defend any
action or proceeding relating to the Collateral to which it is not a party, or
to take any action hereunder or thereunder, or to expend any money or incur any
expenses or perform or discharge any obligation, duty or liability under the
Collateral.
Section 22. New York Law.
This Agreement shall be construed in accordance with and governed by the
laws of the State of New York, except as otherwise required by mandatory
provisions of law and except to the extent that remedies provided by the laws
of any jurisdiction other than New York are governed by the laws of such
jurisdiction.
Section 23. Severability.
If any provision hereof is invalid or unenforceable in any jurisdiction,
then, to the fullest extent permitted by law, (i) the other provisions hereof
shall remain in full force and effect in such jurisdiction and shall be
liberally construed in favor of the Pledgee and the Lenders in order to carry
out the intentions of the parties hereto as nearly as may be possible; and (ii)
the
Exhibit E
Page 14
invalidity or unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other
jurisdiction.
Section 24. Attachment.
Each Grantor acknowledges that (i) value has been given, (ii) it has
rights in the Collateral (other than after-acquired Collateral), (iii) it has
not agreed to postpone the time of attachment of the Security Interest and (iv)
it has received a duplicate original copy of this Pledge Agreement
* * *
EXHIBIT E
Page 15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
TEKNI-PLEX, INC.
PURETEC CORPORATION
XXXXXX HOLDINGS, INC.
TRI-SEAL HOLDINGS, INC.
PLASTIC SPECIALITIES AND TECHNOLOGIES, INC.
BURLINGTON RESINS, INC.
PLASTIC SPECIALTIES AND TECHNOLOGIES INVESTMENTS,
INC.
PURE TECH APR, INC.
MULTI CONTAINER RECYCLER, INC.
COAST RECYCLING NORTH, INC.
DISTRIBUTORS RECYCLING, INC.
REI DISTRIBUTORS, INC.
PURE TECH RECYCLING OF CALIFORNIA
ALUMET SMELTING CORPORATION
By: /s/ Dr. F. Xxxxxxx Xxxxx
------------------------------
Title: Chief Executive Officer
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Collateral Agent
By: /s/ Xxxxxxx Xxxxx
------------------------------
Title: Vice President
SCHEDULE 1
SUBSIDIARIES/PLEDGED STOCK
1. PureTec Corporation (Delaware)
2. Ozite Corporation (Delaware)
3. PTI Plastics, Inc. (Delaware)
4. Plastic Specialties and Technologies, Inc. (Delaware)
5. Burlington Resins, Inc. (Delaware)
6. Plastic Specialties and Technologies Investments, Inc. (Delaware)
7. Pure Tech APR, Inc. (New York)
8. Multi Container Recycler, Inc. (Michigan)
9. Coast Recycling North, Inc. (California)
10. Distributors Recycling, Inc. (New Jersey)
11. REI Distributors, Inc. (New Jersey)
12. Pure Tech Recycling of California (California)
13. Alumet Smelting Corporation (New Jersey)
14. Conconre Corp. (Connecticut)
15. Xxxxxx Holdings, Inc. (Delaware)
16. Tri-Seal Holdings, Inc. (Delaware)
INTERCOMPANY NOTES
None.
ANNEX A
Form of Agreement Regarding Uncertificated Securities, Limited Liability
Company Interests and Partnership Interests
AGREEMENT (as amended, modified or supplemented from time to time, this
"Agreement"), dated as of _______ __, ____, among each of the undersigned
pledgors (each a "Grantor" and, collectively, the "Grantors"), Xxxxxx Guaranty
Trust Company of New York, not in its individual capacity but solely as
Collateral Agent (the "Pledgee"), and __________, as the issuer of the
Uncertificated Securities, Limited Liability Company Interests and/or
Partnership Interests (each as defined below) (the "Issuer").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, each Grantor and the Pledgee have entered into a Pledge
Agreement, dated as of June 21, 2000 (as amended, amended and restated,
modified or supplemented from time to time, the "Pledge Agreement"), under
which, among other things, in order to secure the payment of the Obligations
(as defined in the Pledge Agreement), each Grantor will pledge to the Pledgee
for the benefit of the Secured Creditors (as defined in the Pledge Agreement),
and grant a security interest in favor of the Pledgee for the benefit of the
Secured Creditors in, all of the right, title and interest of such Grantor in
and to any and all (1) "uncertificated securities" (as defined in Section
8-102(a)(18) of the Uniform Commercial Code, as adopted in the State of New
York) ("Uncertificated Securities"), (2) Partnership Interests (as defined in
the Pledge Agreement) and (3) Limited Liability Company Interests (as defined
in the Pledge Agreement), in each case issued from time to time by the Issuer,
whether now existing or hereafter from time to time acquired by such Grantor
(with all of such Uncertificated Securities, Partnership Interests and Limited
Liability Company Interests being herein collectively called the "Issuer
Pledged Interests"); and
WHEREAS, each Grantor desires the Issuer to enter into this Agreement in
order to perfect the security interest of the Pledgee under the Pledge
Agreement in the Issuer Pledged Interests, to vest in the Pledgee control of
the Issuer Pledge Interests and to provide for the rights of the parties under
this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual promises
and agreements contained herein, and for other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Each Grantor hereby irrevocably authorizes and directs the Issuer, and
the Issuer hereby agrees, to comply with any and all instructions and orders
originated by the Pledgee (and its successors and assigns) regarding any and
all of the Issuer Pledged Interests without the further consent by the
registered owner (including the respective Grantor), and not to comply with any
instructions or orders regarding any or all of the Issuer Pledged Interests
originated by
any person or entity other than the Pledgee (and its successors and assigns) or
a court of competent jurisdiction.
2. The Issuer hereby certifies that (i) no notice of any security
interest, lien or other encumbrance or claim affecting the Issuer Pledged
Interests (other than the security interest of the Pledgee) has been received
by it, and (ii) the security interest of the Pledgee in the Issuer Pledged
Interests has been registered in the books and records of the Issuer.
3. The Issuer hereby represents and warrants that (i) the pledge by the
Grantors of, and the granting by the Grantors of a security interest in, the
Issuer Pledged Interests to the Pledgee, for the benefit of the Secured
Creditors, does not violate the charter, by-laws, partnership agreement,
membership agreement or any other agreement governing the Issuer or the Issuer
Pledged Interests, and (ii) the Issuer Pledged Interests are fully paid and
nonassessable.
4. All notices, statements of accounts, reports, prospectuses, financial
statements and other communications to be sent to any Grantor by the Issuer in
respect of the Issuer will also be sent to the Pledgee at the following
address:
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ______________
Tel: (212) ______________
Fax: (212)______________
5. Except as expressly provided otherwise in Section 4, all notices,
instructions, orders and communications hereunder shall be sent or delivered by
mail, telex, telecopy or overnight courier service and all such notices and
communications shall, when mailed, telexed, telecopied or sent by overnight
courier, be effective when deposited in the mails or delivered to the overnight
courier, prepaid and properly addressed for delivery on such or the next
Business Day, or sent by telex or telecopier, except that notices and
communications to the Pledgee shall not be effective until received by the
Pledgee. All notices and other communications shall be in writing and addressed
as follows:
(a) if to any Grantor, at:
------------------------
------------------------
------------------------
Attention: _______________
Tel.: ___________________
Fax: ___________________
(b) if to the Pledgee, at:
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ______________
Tel: (212) ______________
Fax: (212)______________
(c) if to the Issuer, at:
------------------------
------------------------
------------------------
Attention: ______________
Telephone No.:___________
Telecopier No.:___________
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder. As used in this
Section 5, "Business Day" means any day other than a Saturday, Sunday, or other
day in which banks in New York are authorized to remain closed.
6. This Agreement shall be binding upon the successors and assigns of each
Grantor and the Issuer and shall inure to the benefit of and be enforceable by
the Pledgee and its successors and assigns. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of
which shall constitute one instrument. In the event that any provision of this
Agreement shall prove to be invalid or unenforceable, such provision shall be
deemed to be severable from the other provisions of this Agreement which shall
remain binding on all parties hereto. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
except in writing signed by the Pledgee, the Issuer and any Grantor which at
such time owns any Issuer Pledged Interests.
7. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to its principles of conflict
of laws.
IN WITNESS WHEREOF, each Grantor, the Pledgee and the Issuer have caused
this Agreement to be executed by their duly elected officers duly authorized as
of the date first above written.
[ ],
------------------------------
as a Grantor
By
-----------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
not in its individual capacity but solely
as Collateral Agent and Pledgee
By
-----------------------------
Name:
Title:
[ ],
------------------------------
By
-----------------------------
Name:
Title:
FORM OF TRANCHE A TERM NOTE
$_____________ New York New York
June 21, 2000
FOR VALUE RECEIVED, TEKNI-PLEX, INC., a Delaware corporation, and its
successors (the "Borrower"), hereby promises to pay to the order of __________
(the "Lender"), in lawful money of the United States of America in immediately
available funds, at the office of Xxxxxx Guaranty Trust Company of New York
(the "Agent") located at 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 on the Tranche A
Maturity Date (as defined in the Agreement referred to below) the principal sum
of ___________ or, if less, the then unpaid principal amount of all Tranche A
Term Loans (as defined in the Agreement) made by the Lender pursuant to the
Agreement.
The Borrower promises also to pay interest on the unpaid principal amount
hereof in like money at said office from the date hereof until paid at the
rates and at the times provided in Section 2.05 of the Agreement.
This Note is one of the Tranche A Term Notes referred to in the Credit
Agreement, dated as of June 21, 2000, among Tekni-Plex, Inc., the Guarantors
party thereto, the Lenders from time to time party thereto, the LC Issuing
Banks (as defined in the Agreement) from time to time party thereto and Xxxxxx
Guaranty Trust Company of New York, as Agent, (as amended, modified or
supplemented from time to time, the "Agreement"), and is entitled to the
benefits thereof and of the other Loan Documents (as defined in the Agreement).
This Note is secured by the Collateral Documents (as defined in the Agreement)
and is entitled to the benefits of the Guaranties (as defined in the
Agreement). As provided in the Agreement, this Note is subject to voluntary
prepayment as per Section 2.11 of the Agreement, and mandatory repayment as per
Section 2.10 of the Agreement, prior to the Tranche A Maturity Date, in whole
or in part.
In case an Event of Default (as defined in the Agreement) shall occur and
be continuing, the principal of and accrued interest on this Note may be
declared to be due and payable in the manner and with the effect provided in
the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
TEKNI-PLEX, Inc.
By
--------------------------------
Name:
Title:
FORM OF TRANCHE B TERM NOTE
$_____________ New York New York
June 21, 2000
FOR VALUE RECEIVED, TEKNI-PLEX, INC., a Delaware corporation, and its
successors (the "Borrower"), hereby promises to pay to the order of ___________
(the "Lender"), in lawful money of the United States of America in immediately
available funds, at the office of Xxxxxx Guaranty Trust Company of New York
(the "Agent") located at 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 on the Tranche B
Maturity Date (as defined in the Agreement referred to below) the principal sum
of ____________ or, if less, the then unpaid principal amount of all Tranche B
Tenn Loans (as defined in the Agreement) made by the Lender pursuant to the
Agreement.
The Borrower promises also to pay interest on the unpaid principal amount
hereof in like money at said office from the date hereof until paid at the
rates and at the times provided in Section 2.05 of the Agreement.
This Note is one of the Tranche B Term Notes referred to in the Credit
Agreement, dated as,of June 21, 2000, among Tekni-Plex, Inc., the Guarantors
party thereto, the Lenders from time to time party thereto, the LC Issuing
Banks (as defined in the Agreement) from time to time party thereto and Xxxxxx
Guaranty Trust Company of New York, as Agent (as amended, modified or
supplemented from time to time, the "Agreement"), and is entitled to the
benefits thereof and of the other Loan Documents (as defined in the Agreement).
This Note is secured by the Collateral Documents (as defned in the Agreement)
and is entitled to the benefits of the Guaranties (as defined in the
Agreement). As provided in the Agreement, this Note is subject to voluntary
prepayment as per Section 2.11 of the Agreement, and mandatory repayment as per
Section 2.10 of the Agreement, prior to the Tranche B Maturity Date, in whole or
in part.
In case an Event of Default (as defined in the Agreement) shall occur and
be continuing, the principal of and accrued interest on this Note may be
declared to be due and payable in the manner and with the effect provided in
the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
TEKNI-PLEX, Inc.
By
--------------------------------
Name:
Title:
FORM OF REVOLVING NOTE
$_____________ New York New York
June 21, 2000
FOR VALUE RECEIVED, TEKNI-PLEX, INC., a Delaware corporation, and its
successors (the "Borrower"), hereby promises to pay to the order of ___________
(the "Lender"), in lawful money of the United States of America in immediately
available funds, at the office of Xxxxxx Guaranty Trust Company of New York
(the "Agent") located at 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 on the Revolving
Loan Maturity Date (as defined in the Agreement referred to below) the
principal sum of _______________ or, if less, the then unpaid principal amount
of all Revolving Loans (as defined in the Agreement) made by the Lender
pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal amount
hereof in like money at said office from the date hereof until paid at the
rates and at the times provided in Section 2.05 of the Agreement.
This Note is one of the Revolving Notes referred to in the Credit
Agreement, dated as of June 21, 2000, among Tekni-Plex, Inc., the Guarantors
party thereto, the Lenders from time to time party thereto, the LC Issuing
Banks (as defined in the Agreement) from time to time party thereto and Xxxxxx
Guaranty Trust Company of New York, as Agent (as amended, modified or
supplemented from time to time, the "Agreement"), and is entitled to the
benefits thereof and of the other Loan Documents (as defined in the Agreement).
This Note is secured by the Collateral Documents (as defined in the Agreement)
and is entitled to the benefits of the Guaranties (as defined in the
Agreement). As provided in the Agreement, this Note is subject to voluntary
prepayment as per Section 2.11 of the Agreement, and mandatory repayment as per
Section 2.10 of the Agreement, prior to the Ravolving Loan Maturity Date, in
whole or in part.
In case an Event of Default (as defined in the Agreement) shall occur and
be continuing, the principal of and accrued interest on this Note may be
declared to be due and payable in the manner and with the effect provided in
the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
TEKNI-PLEX, Inc.
By
--------------------------------
Name:
Title:
FORM OF SWINGLINE NOTE
$10,000,000 New York New York
June 21, 2000
FOR VALUE RECEIVED, TEKNI-PLEX, INC., a Delaware corporation, and its
successors (the "Borrower"), hereby promises to pay to the order of XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK (the "Swingline Lender"), in lawful money
of the United States of America in immediately available funds, at the office
of Xxxxxx Guaranty Trust Company of New York (the "Agent") located at 00 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000 on the Swingline Expiry Date (as defined in the
Agreement referred to below) the principal sum of TEN MILLION DOLLARS
($10,000,000) or, if less, the then unpaid principal amount of all Swingline
Loans (as defined in the Agreement) made by the Lender pursuant to the
Agreement.
The Borrower promises also to pay interest on the unpaid principal amount
hereof in like money at said office from the date hereof until paid at the
rates and at the times provided in Section 2.05 of the Agreement.
This Note is one of the Swingline Notes referred to in the Credit
Agreement, dated as of June 21, 2000, among Tekni-Plex, Inc., the Guarantors
party thereto, the Lenders from time to time party thereto, the LC Issuing
Banks (as defined in the Agreement) from time to xxxx party thereto and Xxxxxx
Guaranty Trust Company of New York, as Agent (as amended, modified or
supplemented from time to time, the "Agreement"), and is entitled to the
benefits thereof and of the other Loan Documents (as defined in the Agreement).
This Note is secured by the Collateral Documents (as defined in the Agreement)
and is entitled to the benefits of the Guaranties (as defined in the
Agreement). As provided in the Agreement, this Note is subject to voluntary
prepayment as per Section 2.11 of the Agreement, and mandatory repayment as
per Section 2.10 of the Agreement, prior to the Swingline Maturity Date, in
whole or in part.
In case an Event of Default (as defined in the Agreement) shall occur and
be continuing, the principal of and accrued interest on this Note may be
declared to be due and payable in the manner and with the effect provided in
the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCLPLES OF CONFLICT OF LAWS.
TEKNI-PLEX, Inc.
By
--------------------------------
Name:
Title:
This instrument was prepared by the
attorney described below in consultation
with counsel in the State in which
the Property is located and, when
recorded, the recorded counterparts
should be returned to:
Xxxxxxx X. Xxxxxx, Esq.
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
1122556-0024
===============================================================================
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
dated as of _______ __, 2000
by
[_______________],
the Mortgagor,
to
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Agent for the Lenders,
the Mortgagee
Property:
County of_________
State of _________
===============================================================================
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS AND SECURES
OBLIGATIONS CONTAINING PROVISIONS FOR CHANGES IN INTEREST RATES. THIS
INSTRUMENT ALSO SECURES FUTURE ADVANCES.
EXHIBIT F-1
THIS MORTGAGE, ASSIGNMENT OF LEASES AND) RENTS, SECURITY AGREEMENT AND
FIXTURE FILING (this "Mortgage") dated as of ______, 2000 by ____________ a
__________________ corporation,having an address at _______________________(the
"Mortgagor"), to XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, a New York banking
corporation, as Agent for the Lenders (hereinafter defined), having an address
at 000 Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 (the "Mortgagee").
WITNESSETH:
RECITALS
A. Credit Agreement. Reference is hereby made to the Credit Agreement (as
amended from time to time, the "Credit Agreement"), dated May 8, 1997, as
amended and restated as of March 3, 1998 and as further amended and restated as
of ' 2000 among Tekni-Plex, Inc. (the "Borrower"), each Guarantor which is or
may hereafter become a party thereto, each Lender which is or may hereafter
become a party thereto, the LC Issuing Banks referred to therein, X.X. Xxxxxx
Securities Inc., as Arranger and Xxxxxx Guaranty Trust Company of New York, as
Agent (the "Agent") providing for the making of loans to the Borrower and the
issuance of, and participation in, letters of credit for the account of the
Borrowers, as contemplated therein in the maximum principal amount of
$440,000,000.
B. Mortgage. The lien of this Mortgage is being granted to secure payment,
performance and observance of the following indebtedness, liabilities and
obligations, whether now or hereafter owed or owing, hereinafter referred to
collectively as the "Secured Obligations":
(i) (a) all principal of and interest (including any interest which
accrues after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of any Obligor)
on any Note or Loan, and any LC Reimbursement Obligation arising under the
Credit Agreement, and any Guaranteed Derivatives Agreement (b) all other
amounts payable by the Mortgagor hereunder or under any other Loan
Document and (c) any renewals or extensions of any of the foregoing; and
(ii) the performance and observance of each other term, covenant,
agreement, obligation, requirement, condition and provision to be
performed or observed by the Mortgagor under this Mortgage or any other
Loan Document.
GRANTING CLAUSES
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, for the purpose of securing the due and punctual payment,
performance and observance of the Secured Obligations and intending to be bound
hereby, the Mortgagor does hereby GRANT, BARGAIN, SELL, CONVEY, MORTGAGE,
ASSIGN, TRANSFER and WARRANT to the Mortgagee and its successors under the Loan
Documents, with power of sale and right of entry as hereinafter provided, and
(to the extent covered by the Local UCC) does hereby GRANT AND WARRANT to the
Mortgagee and its successors under the Loan Documents, a continuing first
security interest in and to all of the property and rights described in the
following Granting Clauses (all of which property and rights are collectively
called the "Mortgaged Property") to wit:
GRANTING CLAUSE I.
Land. The parcel or parcels of land located in ___________ County, State of
______________ and more particularly described in Exhibit A annexed hereto
(the "Land").
GRANTING CLAUSE II.
Improvements. All estate, right, title and interest of the Mortgagor in,
to, under or derived from: all buildings, structures, facilities and other
improvements of every kind and description now or hereafter located on the
Land, including all parking areas, roads, driveways, walks, fences, walls and
terms; all estate, right, title and interest of the Mortgagor, if any, in, to,
under or derived from: all recreation, drainage and lighting facilities and
other site improvements; all water, sanitary and storm sewer, drainage,
electricity, steam, gas, telephone, telecommunications and other utility
equipment and facilities; all plumbing, lighting, heating, ventilating,
air-conditioning, refrigerating, incinerating, compacting, fire protection and
sprinkler, surveillance and security, vacuum cleaning, public address and
communications equipment and systems; all kitchen and laundry appliances; all
walls, screens, awnings, floor coverings, partitions, elevators, escalators,
motors, electrical, computer and other wiring, machinery, pipes, fittings and
racking and shelving; and all other items of fixtures, equipment and personal
property of every kind and description, in each case now or hereafter located
on the Land or affixed (actually or constructively) to the Improvements which
by the nature of their location thereon or affixation thereto are real property
under applicable law; and including all materials intended for the
construction, reconstruction, repair, replacement, alteration, addition or
improvement of or to such buildings, equipment, fixtures, structures and
improvements, all of which materials shall be deemed to be part of the
Mortgaged Property immediately upon delivery thereof on the Land and to be part
of the Improvements immediately upon their incorporation therein (the foregoing
being collectively called the "Improvements").
3
GRANTING CLAUSE III.
Equipment. All estate, right, title and interest of the Mortgagor, if any,
in, to, under or derived from: all fixtures, chattels and articles of personal
property owned or leased by the Mortgagor or in which the Mortgagor has or
shall acquire an interest, wherever situated, and now or hereafter located on
or in the Land or the Improvements, whether or not affixed thereto (actually or
constructively) and which are not real property under applicable law, including
all cabinets, lockers, bookcases, shelving, keys or other entry systems,
partitions, shades, blinds, curtains, drapes, draperies, carpets, rugs,
furniture and furnishings, china, glassware, silverware, pots, pans, utensils,
linens, stoves, refrigerators, freezers, dishwashers, laundry and kitchen
appliances and equipment; all heating, lighting, plumbing, ventilating, air
conditioning, reffigerating, gas, steam, electrical, incinerating and
compacting plants, systems, fixtures and equipment, buts and bells; all
elevators, stoves, ranges, vacuum and other cleaning systems, floor cleaning,
waxing and polishing equipment, intercom, paging and call systems,
switchboards, sprinkler systems and other fire prevention, alarm and
extinguishing apparatus and materials; all pictures, paintings, works of art
and decorations; all pipes, conduits, dynamos, engines, compressors,
generators, boilers, stokers, furnaces, pumps, trunks, ducts, utensils, tools,
implements and fittings; and all other furniture, appliances, equipment,
supplies, and tangible property of every kind and nature whatsoever owned or
leased by the Mortgagor, or in which the Mortgagor has or shall have an
interest, now or hereinafter located upon the Land, or appurtenances thereto,
or usable in connection with the present or future operation or occupancy of
the Land or the Improvements, and including any of the foregoing that is
temporarily removed from the Land or Improvements to be repaired and later
reinstalled thereon or therein (the foregoing being collectively called the
"Equipment"; and the Land with the Improvements thereon and the Equipment
therein being collectively called the "Property"). If the Lien of this Mortgage
is subject to a security interest covering any Property described in this
GRANTING CLAUSE III, then all of the right, title and interest of the Mortgagor
in and to any and all such Property is hereby assigned to the Mortgagee,
together with the benefits of all deposits and payments now or hereafter made
thereon by or on behalf of the Mortgagor.
GRANTING CLAUSE IV.
Appurtenant Rights. All estate, right, title and interest of the
Mortgagor, if any, in, to, under or derived from all tenements, hereditaments
and appurtenances now or hereafter relating to the Property; the sweets, roads,
sidewalks and alleys abutting the Property; all strips and gores within or
adjoining the Land; all land in the bed of any body of water adjacent to the
Land; all land adjoining the Land created by artificial means or by accretion;
all air space and rights to use air space above the Land; all development or
similar rights now or hereafter appurtenant to the Land; all rights of ingress
and egress now or hereafter appertaining to the Property; all easements and
rights of way now or hereafter appertaining to the Property; and all royalties
and other rights now or hereafter appertaining to the use and enjoyment of the
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Property, including alley, party walls, support, drainage, crop, timber,
agricultural, horticultural, oil, gas and other mineral, water stock, riparian
and other water rights.
GRANTING CLAUSE V.
Agreements. All estate, right, title and interest of the Mortgagor, if
any, in, to, under or derived from: all Insurance Policies (including all
unearned premiums and dividends thereunder), any zoning lot agreements and air
rights and development rights which may be vested in the Mortgagor, all
guarantees and warranties relating to the Property, all supply and service
contracts for water, sanitary and storm sewer, drainage, electricity, steam,
gas, telephone and other utilities now or hereafter relating to the Property
and all other contract rights, now or hereafter relating to the use or
operation of the Property (the foregoing being collectively called the
"Agreements").
GRANTING CLAUSE VI.
Leases. All estate, right, title and interest of the Mortgagor, if any,
in, to, under or derived from all Leases now or hereafter in effect, whether or
not of record, for the use or occupancy of all or any part of the Property,
together with all amendments, supplements, consolidations, replacements,
extensions, renewals and other modifications of any thereof.
GRANTING CLAUSE VII.
Rents, Issues and Profits. All estate, right, title and interest of the
Mortgagor, if any, in, to, under or derived from: all rents, royalties, issues,
profits, receipts, revenue, income and other benefits now or hereafter,
including during any period of redemption, accruing with respect to the
Property, including all rents and other sums now or hereafter, including during
any period of redemption, payable pursuant to the Leases; all other sums now or
hereafter, including during any period of redemption, payable with respect to
the use, occupancy, management, operation or control of the Property; and all
other claims, rights and remedies now or hereafter, including during any period
of redemption, belonging or accruing with respect to the Property, including
fixed, additional and percentage rents, occupancy charges, security deposits,
parking, maintenance, common area, tax, insurance, utility and service charges
and contributions (whether collected under the Leases or otherwise), proceeds
of sale of electricity, gas, heating, air-conditioning and other utilities and
services (whether collected under the Leases or otherwise), and deficiency
rents and liquidated damages following default or cancellation (the foregoing
rents and other sums described in this Granting Clause being collectively
called the "Rents"), all of which the Mortgagor hereby irrevocably directs be
paid to the Mortgagee, subject to the license granted to the Mortgagor pursuant
to Section 5.07(b), to be held, applied and disbursed as provided in this
Mortgage.
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GRANTING CLAUSE VIII.
Permits. All estate, right, title and interest of the Mortgagor, if any,
in, to, under or derived from all licenses, authorizations, certificates,
variances, concessions, grants, franchises, consents, approvals and other
permits now or hereafter pertaining to the owership, management or operation
of the Property (the foregoing being collectively called the "Permits").
GRANTING CLAUSE IX.
Proceeds and Awards. All estate, right, title and~ interest of the
Mortgagor, if any, in, to, under or derived from all proceeds of any Transfer,
financing, refinancing or conversion into cash or liquidated claims, whether
voluntary or involuntary, of any of the Mortgaged Property, including all
Insurance Proceeds, Awards and title insurance proceeds under any title
insurance policy now or hereafter held by the Mortgagor, and all rights,
dividends and other claims of any kind whatsoever (including damage, secured,
unsecured, priority and bankruptcy claims) now or hereafter relating to any of
the Mortgaged Property, all of which the Mortgagor hereby irrevocably directs
be paid to the Mortgagee to the extent provided hereunder, to be held, applied
and disbursed as provided in this Mortgage.
GRANTING CLAUSE X.
Books and Records. All books and records (including customer lists, credit
files, computer programs, print outs and other computer materials and records)
of the Mortgagor, if any, now or hereafter pertaining to the ownership,
management or operation of the Property.
GRANTING CLAUSE XI.
Other Intangible Property. All estate, fight, title and interest of the
Mortgagor, if any, in, to, under or derived from all intangible property, to
the extent not described in the foregoing Granting Clauses, now or hereafter
necessary to operate the Property as a going concern.
GRANTING CLAUSE XII.
Additional Property. All greater, additional or other estate, right, title
and interest of the Mortgagor in, to, under or derived from the Mortgaged
Property now or hereafter acquired by the Mortgagor, including all right, title
and interest of the Mortgagor in, to, under or derived from all extensions,
improvements, betterments, renewals, substitutions and replacements of, and
additions and appurtenances to, any of the Mortgaged Property hereafter
acquired by or released to the Mortgagor or constructed or located on, or
affixed to, the Property, in each case, immediately upon such acquisition,
release, construction, location or affixation; all estate, right, title and
interest of the Mortgagor in, to, under or derived from
6
any other property and rights which are, by the provisions of the Loan
Documents, required to be subjected to the Lien hereof, all estate, right,
title and interest of the Mortgagor in, to, under or derived from any other
property and rights which are necessary to maintain the Property and the
Mortgagor's business or operations conducted therein as a going concern, in each
case, to the fullest extent permitted by law, without any further conveyance,
Mortgage, assignment or other act by the Mortgagor; and all estate, right,
title and interest of the Mortgagor in, to, under or derived from all other
property and rights which are by any instrument or otherwise subjected to the
Lien hereof by the Mortgagor or anyone acting on its behalf.
GRANTING CLAUSE XIII.
Refunds, Credits or Reimbursements. All of the Mortgagor's right, title
and interest in and to any and all of the real estate tax refunds payable to
the Mortgagor with respect to the Land or the Improvements, and refunds,
credits or reimbursements payable with respect to bonds, escrow accounts or
other sums payable in connection with the use, development, or ownership of the
Land or Improvements.
TO HAVE AND TO HOLD the Mortgaged Property, together with all estate,
right, title and interest of the Mortgagor and anyone claiming by, through or
under the Mortgagor in, to, under or derived from the Mortgaged Property and
all rights and appurtenances relating thereto, to the Mortgagee, forever.
PROVIDED ALWAYS that this Mortgage is upon the express condition that the
Mortgaged Property shall be released from the Lien of this Mortgage in full or
in part in the manner and at the time provided in Section 7.02
THE MORTGAGOR ADDITIONALLY COVENANTS AND AGREES WITH THE MORTGAGEE AS
FOLLOWS:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.01. Definitions. (a) Capitalized terms used in this Mortgage, but
not otherwise defined herein, are defined in, or are defined by reference to,
the Credit Agreement and have the same meanings her6n as therein.
(b) In addition, as used herein, the following terms have the following
meanings:
"Agreements" is defined in Granting Clause V.
"Awards" means, at any time, all awards or payments received or receivable
by reason of any Condemnation, including all amounts received
7
or receivable with respect to any Transfer in lieu or anticipation of
Condemnation or in connection with any agreement with any condemning
authority which has been made in settlement of any proceeding relating to
a Condemnation.
"Bankruptcy Code" means the Bankruptcy Code of 1978, as amended.
"Casualty" means any damage to, or destruction of, the Property.
"Condemnation" means any condemnation or other taking or temporary or
permanent requisition of the Property, any interest therein or right
appurtenant thereto, or any change of grade affecting the Property, as the
result of the exercise of any right of condemnation or eminent domain. A
Transfer to a governmental authority in lieu or anticipation of Condemnation
shall be deemed to be a Condemnation.
"Credit Agreement" is defined in the Recitals.
"Equipment" is defined in Granting Clause III.
"Impositions" means all taxes (including real estate taxes, transfer taxes
and sales and use taxes), assessments (including all assessments for public
improvements or benefits, whether or not commenced or completed prior to the
date hereof), water, sewer or other rents, rates and charges, excises, levies,
license fees, permit fees, inspection fees and other authorization fees and
other charges, in each case whether general or special, ordinary or
extraordinary, foreseen or unforeseen, of every character (including all
interest and penalties thereon), which at any time may be assessed, levied,
confirmed or imposed on or in respect of, or be a Lien upon, (i) the Property,
any other Mortgaged Property or any interest therein, (ii) any occupancy, use
or possession of, or activity conducted on, the Property to the extent that the
failure to pay the same would create a Lien on the Property, (iii) the Rents
from the Property or the use or occupancy thereof to the extent that the
failure to pay the same would create a Lien on the Property, or (iv) the Secured
Obligations or the Loan Documents, but excluding income, excess profits,
franchise, capital stock, estate, inheritance, succession, gift or similar
taxes of the Mortgagor or the Mortgagee or any other Secured Party, except to
the extent that such taxes of the Mortgagor or the Mortgagee or any other
Secured Party are imposed in whole or in part in lieu of, or as a substitute
for, any taxes which are or would otherwise be Impositions.
8
"Improvements" is defined in Granting Clause II.
"Insurance Policies" means the insurance policies and coverages required
to be maintained by the Mortgagor with respect to the Property pursuant to the
Credit Agreement.
"Insurance Premiums: means all premiums payable under the Insurance
Policies.
"Insurance Proceeds" means, at any time, all insurance proceeds (except
proceeds of business interruption insurance) or payments to which the Mortgagor
may be or become entitled under the Insurance Policies by reason of any
Casualty plus all insurance proceeds and payments to which the Mortgagor may be
or become entitled by reason of any Casualty under any other insurance policies
or coverages maintained by the Mortgagor with respect to the Property.
"Insurance Requirements" means all provisions of the Insurance Policies,
all requirements of the issuer of any of the Insurance Policies and all orders,
rules, regulations and any other requirements of the National Board of Fire
Underwriters (or any other body exercising similar functions) binding upon the
Mortgagor and applicable to the Property, any adjoining vaults, sidewalks,
parking areas or driveways or any use or condition thereof.
"Land" is defined in Granting Clause I.
"Lease" means each lease, sublease, tenancy, subtenancy, license,
franchise, concession or other occupancy agreement relating to the Property,
together with any guarantee of the obligations of the tenant or occupant
thereunder or any fight to possession under any federal or state bankruptcy
code in the event of the rejection of any sublease by the sublandlord thereof
or its Mortgagee pursuant to said code.
"Legal Requirements" means all provisions of the Leases, the Agreements,
the Permitted Liens, and the Permits and all applicable laws, statutes, codes,
ace, ordinances, orders, judgments, decrees, injunctions, rules, regulations,
directions and requirements of, and agreements with, governmental bodies,
agencies or officials, now or hereafter applicable to the Property, any
adjoining vaults, sidewalks, streets or ways, or any use or condition thereof.
"Local UCC" means the Uniform Commercial Code as in effect in the State in
which the Property is located.
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"Material Adverse Effect" is defined in the Credit Agreement.
"Mortgage" is defined in the Preamble.
"Mortgaged Property" is defined in the Granting clauses.
"Mortgagee" is defined in the Preamble.
"Mortgagor" is defined in the Preamble.
"National Flood Insurance Program" means the National Flood Insurance Act
of 1968 and the Flood Disaster Protection Act of 1973 (42 U.S.C. Sections 4001
et seq.).
"Permits" is defined in Granting Clause VIII.
"Permitted Disposition" means any (i) Transfer in connection with a
Condemnation, (ii) Transfer of obsolete unused, or unnecessary Equipment in the
ordinary course of business or (iii) easement or similar encumbrance with
respect to the Property granted by the Mortgagor to any adjoining landowner or
any railroad, telephone, cable television, water, sewer, utility or similar
company, municipality or other governmental subdivision in the ordinary course
of business.
"Permitted Liens" means (i) any Liens permitted under clauses (g),(h) and
(k) of Section 5.09 of the Credit Agreement and, with respect to Equipment,
clauses (a) through (f) of Section 509 of the (Credit Agreement, (ii) Liens
being contested pursuant to Section 2.06 and (iii) Permitted Encumbrances.
"Permitted Encumbrances" means those matters set forth on Exhibit B
annexed hereto.
"Post-Default Rate" means, with respect to any amount payable by the
Mortgagor hereunder which is not paid when due, a rate per annum equal to the
sum of 2% plus the Applicable Base Rate Margin for such day plus the Base Rate
for such day.
"Property" is defined in Granting Clause III.
"Receiver" is defined in Section 5.02(a)(iv).
"Rents" is defined in Granting Clause VII.
"Restoration" means the restoration, repair, replacement or rebuilding of
the Property after a Casualty or Condemnation, and "Restore" means to restore,
repair, replace or rebuild the Property after a
10
Casualty or Condemnation, in each case to a utility and condition adequate
to the Mortgagor's use as conducted immediately prior to the Casualty or
Condemnation.
"Secured Obligations" is defined in the Recitals.
"Secured Parties" means the Mortgagee and all other holders of any of the
Secured Obligations (including all Persons to whom any of the Secured
Obligations may be payable from time to time).
"Transfer" means, when used as a noun, any sale, conveyance, assignment,
lease, or other transfer and, when used as a verb, to sell, convey, assign,
lease, or otherwise transfer, in each case (i) whether voluntary or
involuntary, (ii) whether direct or indirect and (iii) including any agreement
providing for a Transfer or granting any right or option providing for a
Transfer.
"Unavoidable Delays" means delays due to acts of God, fire, flood,
earthquake, explosion or other Casualty, inability to procure or shortage of
labor, equipment, facilities, sources of energy (including electricity, steam,
gas or gasoline), materials or supplies, failure of transportation, strikes,
lockouts, action of labor unions, Condemnation, litigation relating to Legal
Requirements, inability to obtain Permits or other causes beyond the reasonable
control of the Mortgagor, provided that lack of funds shall not be deemed to
be a cause beyond the control of the Mortgagor.
(c) In this Mortgage, unless otherwise specified, references to this
Mortgage or to Agreements, Leases, Permits, the Credit Agreement, the Security
Agreement, Notes, Loan Documents and Collateral Documents include all
amendments, supplements, consolidations, replacements, restatements,
extensions, renewals and other modifications thereof, in whole or in part.
SECTION 1.02. Interpretation. In this Mortgage, unless otherwise
specified, (i) singular words include the plural and plural words include the
singular; (ii) words which include a number of constituent parts, things or
elements, including the terms Leases, Improvements, Land, Secured Obligations,
Property and Mortgaged Property, shall be construed as referring separately to
each constituent part, thing or element thereof, as well as to all of such
constituent parts, things or elements as a whole; (iii) words importing any
gender include the other genders; (iv) references to any Person include such
Person's successors and assigns and in the case of an individual, the word
"successors" includes such Person's heirs, devisees, legatees, executors,
administrators and personal representatives; (v) references to any statute or
other law include all applicable rules, regulations and orders adopted or made
thereunder and all statutes or other laws amending, consolidating or replacing
the statute or law referred to; (vi) the words "consent", "approve", "agree"
and "request", and derivations
11
thereof or words of similar import, mean the prior written consent, approval,
agreement or request of the Person in question; (vii) the words "include" and
"including", and words of similar import, shall be deemed to be followed by the
words "without limitation"; (viii) the words "hereto", "herein", "hereof" and
"hereunder", and words of similar import, refer to this Mortgage in its
entirety; (ix) references to Articles, Sections, Schedules, Exhibits,
subsections, paragraphs and clauses are to the Articles, Sections, Schedules,
Exhibits, subsections, paragraphs and clauses of this Mortgage; (x) the
Schedules and Exhibits to this Mortgage are incorporated herein by reference;
(xi) the titles and headings of Articles, Sections, Schedules, Exhibits,
subsections, paragraphs and clauses are inserted as a matter of convenience and
shall not affect the construction of this Mortgage; (xii) all obligations of
the Mortgagor hereunder shall be satisfied by the Mortgagor at the Mortgagor's
sole cost and expense; and (xiii) all rights and powers granted to the
Mortgagee hereunder shall be deemed to be coupled with an interest and be
irrevocable; and (xiv) all capitalized terms used herein and not otherwise
defined shall have the meaning ascribed to such terms in the Credit Agreement.
SECTION 1.03. Resolution of Drafting Ambiguities. The Mortgagor
acknowledges that it was represented by counsel in connection with this
Mortgage, that it and its counsel reviewed and participated in the preparation
and negotiation of this Mortgage and that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party or the
Mortgagee shall not be employed in the interpretation of this Mortgage.
ARTICLE II
CERTAIN WARRANTIES AND COVENANTS OF THE MORTGAGOR
SECTION 2.01. Title. (a) The Mortgagor warrants that, as of the date
hereof, (i) (x) the Mortgagor has good and marketable title to the fee simple
interest in the Land and the Improvements thereon, (y) the Mortgagor is the
owner of, or has a valid leasehold interest in, the Equipment and all other
items constituting the Mortgaged Property, and (z) this Mortgage constitutes a
valid, binding and enforceable first Lien on the Mortgaged Property, in each
case subject only to Permitted Encumbrances with respect thereto; and (ii) the
Permitted Encumbrances do not materially interfere with the enjoyment, use or
operation of the Property or materially, adversely affect the value thereof.
(b) The Mortgagor shall forever preserve, protect, warrant and defend (i)
the estate, right, title and interest of the Mortgagor in and to the Mortgaged
Property; (ii) the validity, enforceability and priority of the Lien of this
Mortgage on the Mortgaged Property; and (iii) the right, title and interest of
the Mortgagee, and any purchaser at any sale of the Mortgaged Property
hereunder or relating hereto, in each case against all other Liens and claims
whatsoever, subject only to Permitted Liens.
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(c) The Mortgagor, at its sole cost and expense, shall (i) promptly correct
any defect or error which may be discovered in this Mortgage or any financing
statement or other document relating hereto; and (ii) promptly execute,
acknowledge, deliver, record and re-record, register and re-register, and file
and re-file this Mortgage and any financing statements or other documents which
the Mortgagee may require from time to time (all in form and substance
reasonably satisfactory to the Mortgagee) in order (A) to effectuate, complete,
perfect, continue or preserve the Lien of this Mortgage as a first Lien on the
Mortgaged Property, whether now owned or hereafter acquired, subject only to
the Permitted Liens, or (B) to effectuate, complete, perfect, continue or
preserve any right, power or privilege granted or intended to be granted to the
Mortgagee hereunder or otherwise accomplish the purposes of this Mortgage,
provided the same does not, in any material respect, increase the obligations
of, or diminish the rights reserved to, the Mortgagor hereunder. To the extent
permitted by law, the Mortgagor hereby authorizes the Mortgagee to execute and
file financing statements or continuation statements without the Mortgagor's
signature appearing thereon. The Mortgagor shall pay within fifteen (15) days
of demand therefor the costs of, or incidental to, any recording or filing of
any financing or continuation statement, or amendment thereto, concerning the
Mortgaged Property.
(d) Nothing herein shall be construed to subordinate the Lien of this
Mortgage to any Permitted Lien to which the Lien of this Mortgage is not
otherwise subordinate.
SECTION 2.02. Secured Obligations. The Mortgagor shall duly and punctually
pay, perform and observe the Secured Obligations to the extent required of the
Mortgagor in accordance with the terms and provisions of the Loan Documents.
SECTION 2.03. Impositions. The Mortgagor shall (i) subject to Section
2.06, duly and punctually pay all material Impositions, including any accrued
interest on the unpaid balance of any Imposition which is being paid in
installments prior to the delinquency date thereof, (ii) subject to Section
2.06, duly and punctually file all returns and other statements required to be
filed with respect to any material Imposition prior to the delinquency date
thereof, (iii) promptly notify the Mortgagee of the receipt by the Mortgagor of
any notice of default in the payment of any material Imposition or in the
filing of any return or other statement relating to any material Imposition and
simultaneously furnish to the Mortgagee a copy of such notice of default; and
(iv) not make deduction from or claim any credit on any Secured Obligation by
reason of any Imposition and, to the extent permitted under applicable law,
hereby irrevocably waives any right to do so, provided, however, that if any
such Imposition may be paid in installments (whether or not interest shall
accrue on the unpaid balance thereof), the Mortgagor may pay the same in
installments (together with any accrued interest payable on the unpaid balance
thereof) as the same respectively become due, before any fine or penalty,
attaches thereto, and provided further, that if the Mortgagor in good faith
contests the validity or amount of any such Imposition or claim by appropriate
proceedings and
13
in accordance with Section 2.06, the Mortgagor may defer payment thereof during
the pendency of such contest including any appeal period.
SECTION 2.04. Legal and Insurance Requirements. (a) The Mortgagor
represents and warrants that as of the date hereof, (i) to the best of the
Mortgagor's knowledge, (x) the Property and the use and operation thereof
comply with all Insurance Requirements and all material Legal Requirements, and
(y) there is no default under any Legal Requirement or Insurance Requirement
which would have a material adverse effect on the use or operation of the
Property, and (ii) the execution, delivery and performance of this Mortgage
will not contravene any provision of or constitute a default under any Legal
Requirement or Insurance Requirement.
(b) The Mortgagor shall (i) duly and punctually comply with all material
Legal Requirements and Insurance Requirements other than Legal Requirements and
Insurance Requirements the validity or applicability of which are being
contested pursuant to Section 2.06; (ii) procure, maintain and duly and
punctually comply with all Permits required for any construction,
reconstruction, repair, alteration, addition, improvement, maintenance,
management, use and operation of the Property as then conducted other than
Permits the necessity of which are being contested pursuant to Section 2.06;
(iii) promptly notify the Mortgagee of the receipt by the Mortgagor of any
notice of default regarding any Legal Requirement, Insurance Requirement or
Permit or any possible or actual termination of any Permit or Insurance Policy
and furnish to the Mortgagee a copy of such notice of default or termination,
except with respect to any default or termination which would not have a
material adverse effect on the use or operation of the Property as then
conducted; and (iv) promptly after obtaining knowledge thereof notify the
Mortgagee of any condition which, with or without the giving of notice or the
passage of time or both, would constitute a default regarding any Legal
Requirement or Insurance Requirement or a termination of any Permit or
Insurance Policy which default or termination would have a material adverse
effect on the use or operation of the Property as then conducted and the action
being taken to remedy such condition.
SECTION 2.05. Status of the Property. The Mortgagor represents and
warrants that, to the best of the Mortgagor's knowledge, (i) the Property is
served by all necessary water, sanitary and storm sewer, drainage, electric,
steam, gas, telephone and other utilities and utility facilities, which utility
facilities have capacities which are sufficient to serve the current use and
occupancy of the Property; (ii) subject to Section 2.06, the Mortgagor will pay
when due all utility charges which are incurred by the Mortgagor for the
benefit of the Mortgaged Property or which may become a charge or hen against
the Mortgaged Property for gas, electricity, steam, water or sewer services
furnished to the Mortgaged Property and all other assessments or charges of a
similar nature, whether public or private, affecting the Mortgaged Property
whether or not such taxes, assessments or charges are liens thereon; (iii) the
Property has legal access to all streets, roads or alleys adjacent to the
Property (including, as appropriate, access over properly granted, perpetual,
private right-of-way or easement
14
Agreements) sufficient to serve the current use and operation of the Property;
(iv) the Improvements are not located in an area designated as "flood prone"
(as defined under the regulations adopted under the National Flood Insurance
Program), or to the extent the Improvements are located in an area designated
as "flood prone", the Mortgagor maintains in full force and effect flood
insurance under the National Flood Insurance Program to the extent and in the
minimum amounts required by applicable law; and (v) to the best of the
Mortgagor's knowledge since the date of the survey described on Exhibit B,
there have been no additions to or any alterations of the Improvements that
encroach upon any adjoining property or that fail to comply with applicable
zoning laws.
SECTION 2.06. Permitted Contests. After prior notice to the Mortgagee, the
Mortgagor may contest, by appropriate proceedings conducted in good faith and
with due diligence, any Legal Requirement, any Insurance Requirement or any
Imposition, provided that (i) no Event of Default has occurred and is continuing
(it being agreed that the failure to comply with such Legal Requirement or
Insurance Requirement, or to pay such Imposition or to discharge such Lien
during such contest shall not constitute an Event of Default, provided that the
Mortgagor is otherwise in compliance with this Section); (ii) no Mortgaged
Property or interest therein is in danger of being sold, forfeited or lost, or
the priority of the Lien of the Mortgagee is not at risk, as a result of such
contest or proceedings; (iii) in the case of any Legal Requirement, the
Mortgagee and the other Secured Parties are not in danger of any criminal or
material civil penalty or any other liability for failure to comply therewith
and no Mortgaged Property or interest therein is subject to the imposition of
any Lien as a result of such failure which is not properly contested pursuant
to this Section; and (iv) in the case of any Insurance Requirement, no
Insurance Policy or coverage is in danger of being forfeited or lost as a
result of such contest or proceedings, unless replaced, and provided further
that the Mortgagor establishes any reserve or other appropriate provision
required with respect to such contest under generally accepted accounting
principles consistently applied.
SECTION 2.07. Liens. Subject to the rights of contest provided the
Mortgagor in Section 2.06, the Mortgagor shall not create or permit to be
created or to remain, any Lien on the Mortgaged Property or any interest
therein and shall cause to be discharged any such Lien within forty-five (45)
days following receipt of notice of such Lien, in each case (i) whether
voluntarily or involuntarily created, (ii) whether directly or indirectly a
Lien thereon and (iii) whether subordinated hereto, except Permitted Liens. The
provisions of this Section shall apply to each and every Lien (other than
Permitted Liens) on the Mortgaged Property or any interest therein, regardless
of whether a consent to, or waiver of a right to consent to, any other Lien
thereon has been previously obtained in accordance with the terms of the Loan
Documents. Nothing herein shall obligate the Mortgagor to remove any inchoate
statutory Lien in respect of obligations not yet due and payable.
SECTION 2.08. Transfer. The Mortgagor shall not Transfer, or suffer any
Transfer of, the Mortgaged Property or any part thereof or interest therein,
except Permitted Dispositions. The provisions of this Section shall apply to
each and every Transfer of the
15
Mortgaged Property or any interest therein, regardless of whether a consent to,
or waiver of a right to consent to, any other Transfer thereof has been
previously obtained in accordance with the terms of the Loan Documents.
SECTION 2.09. Agreements. The Mortgagor has not entered into any contract
or other agreement providing for the transfer, conveyance or encumbrance of the
Mortgaged Property or any part thereof or interest therein except as may be
permitted by the Credit Agreement.
SECTION 2.10. Maintenance, Repair, Alterations, Etc. The Mortgagor will:
keep and maintain the Mortgaged Property in good working order and condition
(ordinary wear and tear excepted); subject to Section 3.02(c), make or cause to
be made, as and when necessary, all repairs, renewals and replacements,
structural and nonstructural, exterior and interior; ordinary and
extraordinary, foreseen and unforeseen which are necessary to so maintain the
Mortgaged Property, except to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect; comply with all
applicable statutes, regulations and orders of and all applicable restrictions
imposed by, all governmental bodies, domestic and foreign (collectively, a
"Law") now or hereafter affecting this Mortgaged Property or any part thereof
or the use thereof or requiring any alterations or improvements, except to the
extent such non-compliances could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; not commit or
permit any waste or deterioration (ordinary wear and tear excepted) of the
Mortgaged Property; not permit the Improvements to be demolished or
substantially altered; comply with the provisions of any lease, easement or
other agreement affecting all or any part of the Mortgaged Property except to
the extent that the failure to do so could not reasonably be expected to result
in a Material Adverse Effect; and not permit the Improvements or any part
thereof to become abandoned.
SECTION 2.11. Actions Affecting this Mortgaged Property. The Mortgagor
will appear in and contest any action or proceeding brought by any third
parties unrelated to the Mortgagee purporting to affect the security hereof or
the rights or powers of the Mortgagee hereunder; and the Mortgagor will pay all
costs and expenses incurred by the Mortgagor, including cost of evidence of
title and reasonable attorneys' fees, in any such action or proceeding. The
Mortgagor shall give the Mortgagee prompt notice in writing of any such action
or proceeding.
SECTION 2.12. Environmental Protection Matters. The Mortgagor shall comply
with the provisions of die Credit Agreement relating to environmental matters,
including, but not limited to, Section 4.07 of the Credit Agreement, which
provision is incorporated herein by reference.
SECTION 2.13. The Credit Agreement and The Security Agreement. This
Mortgage is made pursuant to the Credit Agreement, and this Mortgage is subject
to all of the provisions of the Credit Agreement including, without limitation,
the provisions of the Credit Agreement entitling the Mortgagee, the Lenders
and/or the other Secured Creditors to declare the
16
respective indebtedness secured hereby to be immediately due and payable, as
the case may be, all of which provisions are incorporated herein with the same
force and with like effect as if they were fully set forth herein at length and
made a part hereof In the event of a conflict between any of the provisions of
the Credit Agreement and the Security Agreement on the one hand and any of the
provisions of this Mortgage, on the other, the provisions of the Credit
Agreement and the Security Agreement shall control.
SECTION 2.14. Brokers. The Mortgagor represents and warrants that it has
not dealt with any broker in connection with this transaction and that it knows
of no other Person who is entitled to a commission in connection with this
transaction. The Mortgagor hereby agrees to indemnify, defend and hold the
Indemnitees harmless fi7orn and against any and all claims, liabilities,
damages, demands, costs, expenses (including, without limitation, the costs and
expenses of defending or settling any such claims and all attorneys' fees and
disbursements) or causes of action arising out of a breach of the
representations, warranties or agreements contained in this Section 2.14. The
representations, warranties and agreements contained in this Section 2.14 shall
survive repayment of the Obligations and discharge of this Mortgage.
SECTION 2.15. Recordation of Mortgage and Financing Statements. The
Mortgagor will execute, acknowledge and deliver any financing statements,
continuation statements and other instruments in addition or supplemental
hereto, including, without limitation, contracts, licenses and permits
affecting the Mortgaged Property, which may be necessary or reasonably
requested by the Mortgagee from time to time in order to perfect and maintain
the validity and effectiveness of this Mortgage and the lien and security
thereof to the Mortgagee and in such manner and places and within such times,
in each case as is commercially reasonable and as may be necessary or
appropriate to accomplish such purposes and to preserve and protect the rights
and remedies of the Mortgagee. The Mortgagor or its agents will furnish
reasonably satisfactory evidence of every such recording, filing and
registration to the Mortgagee. The Mortgagor hereby appoints the Mortgagee as
its true and lawful attorney-in-fact to file, with the Mortgagor's signature,
or without Mortgagor's signature in the state and county where the Mortgaged
Property is located and any other jurisdiction in which such filing may
lawfully and effectively be made without the Mortgagor's signature, any and all
Uniform Commercial Code financing and continuation statements which the
Mortgagee may reasonably deem necessary or appropriate to file with respect to
this Mortgage.
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SECTION 2.16. Changes to Mortgage or Related Loan Documents. if the
Obligations or any part thereof are extended or varied or if any part of the
security is released, all persons now or at any time hereafter liable therefor,
or whose consent to this Mortgage was obtained, shall be held to assent to such
extension, variation or release, and their liability and the hen and all
provisions hereof shall continue in full force, the right of recourse, if any,
against all such persons being expressly reserved by the Mortgagee,
notwithstanding such extension, variation or release. Any person or entity
taking a junior mortgage or other Hen upon the Mortgaged Property or any
interest therein, shall take said lien subject to the rights of the Mortgagee
to amend, modify, and supplement, restate and consolidate this Mortgage and/or
the other Loan Documents and to impose additional fees and other charges, and
to extend the maturity of said indebtedness, and to grant partial releases of
the lien of this Mortgage, in each and every case without obtaining the consent
of the holder of such lien and without the hen of this Mortgage losing its
priority over the rights of any such junior lien. Nothing contained in this
Section shall be construed as waiving any provision contained herein which
provides, among other things, that it shall constitute an Event of Default if
the Mortgaged Property be sold, conveyed, or encumbered unless permitted by
this Mortgage and/or the other Loan Documents.
ARTICLE III
INSURANCE, CASUALTY AND CONDEMNATION
SECTION 3.01. Insurance. (a) The Mortgagor shall maintain in full force
and effect Insurance Policies with respect to the Property as required by the
Credit Agreement.
The physical damage insurance maintained with respect to the Property shall
name the Mortgagee as an insured party and shall provide that all property
losses insured against shall be adjusted by the Mortgagor, subject to the
Mortgagee's rights pursuant to Section 3.03(a) hereof and the Credit Agreement.
All insurance maintained by the Mortgagor with respect to the Property shall
provide that no cancellation or material change thereof shall be effective
until at least 30 days after receipt by the Mortgagee of written notice
thereof, and all losses shall be payable notwithstanding any foreclosure or
other action or proceeding taken pursuant to this Mortgage.
(b) The Mortgagor shall furnish to the Mortgagee from time to time not
later than 15 days prior to the expiration date of each policy required to be
maintained by the Mortgagor hereunder, an insurance certificate or certificates
executed by the insurer or its authorized agent with respect to the new or
extended policy. If the Mortgagor fails to maintain the Insurance Policies
required to be maintained under this Section, the Mortgagee shall have the
right to obtain such Insurance Policies and pay the premiums therefor. If the
Mortgagee obtains such Insurance Policies or pays the premiums therefor, upon
demand, the Mortgagor shall reimburse the Mortgagee Or its reasonable expenses
in connection therewith, together with interest thereon, pursuant to Section
4.01.
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(c) The Mortgagor may effect such coverage under subsection (a) of this
Section under blanket insurance policies covering other properties of the
Mortgagor, provided that (i) any such blanket insurance policy shall specify
therein, or the insurer under such policy shall certify to the Mortgagee, (A)
the maximum amount of the total insurance afforded by the blanket policy
allocated to the Property, and (B) any sublimits in such blanket policy
applicable to the Property, which sublimits shall not be less than the amounts
required pursuant to this Section; (ii) any such blanket insurance policy shall
comply in all respects with the other provisions of this Section; and (iii) the
protection afforded under any such blanket insurance policy shall be no less
than that which would have been afforded under a separate policy relating only
to the Property.
(d) The Mortgagor shall not maintain additional or separate insurance
concurrent in form or contributing in the event of loss with the insurance
required under this Section, unless (i) the policies providing such additional
or separate insurance are submitted to the Mortgagee for its approval, which
approval shall not be unreasonably withheld; (ii) the insurers under such
policies and the terms thereof are approved by the Mortgagee, which approval
shall not be unreasonably withheld; and (iii) the Mortgagee and the other
Secured Parties are included in such policies as additional insureds.
SECTION 3.02. Casualty and Condemnation. (a) The Mortgagor represents and
warrants that, as of the date hereof, (i) there is no Casualty or Condemnation
affecting in any material respect the use and occupancy of the Property, (ii)
there are no negotiations or proceedings presently pending in connection with a
Condemnation and (iii) to the knowledge of the Mortgagor, no Condemnation is
proposed or threatened.
(b) If any Casualty occurs, the Mortgagor shall immediately take such
action as is required by the Credit Agreement and the Other Loan Documents.
(c) If any Casualty or Condemnation occurs (and provided the applicable
Insurance Proceeds or Awards have not been applied to the prepayment of the
Loans in accordance with Section 2.10(f) of the Credit Agreement and have been
made available to the Mortgagor), the Mortgagor shall promptly commence and
diligently pursue to completion the Restoration of such Property, subject to
Unavoidable Delays, whether or not the Insurance Proceeds or Awards with
respect to such Casualty or Condemnation are sufficient for such purpose;
provided that (i) any such Restoration shall be effected with due diligence,
in a good and workmanlike manner, in compliance with all applicable Legal
Requirements and Insurance Requirements; (ii) any such Restoration shall be
conducted under the supervision of an architect or engineer if customary for
such Restoration; (iii) any such Restoration shall be located wholly on the
Land and, unless consented to by the Mortgagee and by the owner of the adjacent
property, shall be independent of and not connected with improvements located
on adjacent property; (iv) each such Restoration shall be promptly and fully
paid for by the Mortgagor except to the extent that any such payment is being
contested in good faith; and (vi) the Mortgagor shall procure prior to the
commencement of any such Restoration, and maintain
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throughout the continuation of the work involved, such insurance and
performance and payment bonds as are customary for the type of construction and
work involved.
SECTION 3.03. Insurance Claims and Proceeds; Condemnation Awards. (a) If
any Casualty occurs, (i) the Mortgagor shall promptly make proof of loss under
the applicable Insurance Policies and diligently pursue to conclusion its claim
for the Insurance Proceeds payable thereunder and any suit, action or other
proceeding necessary or appropriate to obtain payment of such Insurance
Proceeds and (ii) all such Insurance Proceeds shall be paid to the Mortgagor in
accordance with the Credit Agreement. If such Insurance Proceeds are required
to be delivered by the Mortgagor to the Mortgagee, then, until so delivered,
any such Insurance Proceeds received by the Mortgagor shall be held in trust by
the Mortgagor for and as the property of the Mortgagee and the other Secured
Parties and shall not be commingled with any other funds or property of the
Mortgagor.
(b) If any Condemnation occurs, or if any negotiation or proceeding is
commenced which might in the reasonable judgment of the Mortgagor result in a
Condemnation, or if any Condemnation is proposed or threatened, the Mortgagor
shall, promptly after receiving notice or obtaining knowledge thereof, do all
things deemed reasonably necessary or appropriate by the Mortgagor to preserve
the Mortgagor's interest in such Property and promptly make claim for the
Awards payable with respect thereto and dilig6ntly pursue to conclusion such
claim for such Awards and any suit, action or other proceeding necessary or
appropriate to obtain payment thereof. All Awards with respect to any
Condemnation shall be paid to the Mortgagor in accordance with the Credit
Agreement. If such Awards are required to be delivered by the Mortgagor to the
Mortgagee, then, until so delivered, any such Awards received by the Mortgagor
shall be held in trust by the Mortgagor for and as the property of the
Mortgagee and the other Secured Parties and shall not be commingled with any
other funds or property of the Mortgagor.
ARTICLE IV
CERTAIN SECURED OBLIGATIONS
SECTION 4.01. Interest After Default. If, pursuant to the terms of this
Mortgage, the Mortgagee shall make any payment on behalf of the Mortgagor
(including any payment made by the Mortgagee pursuant to Section 5.10), or
shall incur hereunder any expense for which the Mortgagee is entitled to
reimbursement pursuant to the terms of the Loan Documents, such Secured
Obligation shall be payable within fifteen (15) days of notice and any amounts
not paid within fifteen (15) days of notice shall bear interest from the date
incurred until paid at the Post-Default Rate. Such interest, and any other
interest on the Secured Obligations payable at the Post-Default Rate pursuant
to the terms of the Loan Documents, shall accrue through the date paid
notwithstanding any intervening judgment of
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foreclosure or sale. All such interest shall be part of the Secured Obligations
and shall be secured by this Mortgage.
SECTION 4.02. Changes in the Laws Regarding Taxation. If, after the date
hereof, there shall be enacted any applicable law deducting from the value of
the Property for the purpose of taxation the Lien of any Collateral Document or
changing in any way the applicable law for the taxation of mortgages, deeds of
trust or other Liens or obligations secured thereby, or the manner of
collection of such taxes, so as to adversely affect this Mortgage, the Secured
Obligations or any Secured Party, upon demand by the Mortgagee or any other
affected Secured Party and to the extent permitted under applicable law, the
Mortgagor shall pay all taxes, assessments or other charges resulting therefrom
or shall reimburse such Secured Party for all such taxes, assessments or other
charges which such Secured Party is obligated to pay as a result thereof.
SECTION 4.03. Indemnification. (a) The Mortgagor shall protect, indemnify
and defend each of Be Mortgagee and the other Secured Parties and their
respective successors, assigns, employees, agents and servants from and against
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever
(including reasonable attorneys' fees and expenses) which may be imposed on,
incurred by or asserted against any Secured Party by reason or on account of,
or in connection with (a) the Mortgagee's exercise of any of its rights and
remedies hereunder; (b) any accident, injury to or death of persons or loss of
or damage to property occurring in, on or about the Mortgaged Property or any
part thereof or on the adjoining sidewalks, curbs, adjacent property or
adjacent parking areas, street or ways; (c) any failure on the part of the
Mortgagor to perform or comply with any of the terms of this Mortgage; (d) the
performance of any labor or services or the furnishing of any materials or
other property in respect of the Mortgaged Property or any part thereof, or (e)
any other conduct or misconduct of the Mortgagor, any lessee of any of the
Mortgaged Property, or any of their respective agents, contractors,
subcontractors, servants, employees, licensees or invitee; provided, however,
that any claims caused by the willful misconduct or gross negligence of any
Secured Party as determined by a court of competent jurisdiction shall be
excluded from the foregoing indemnification of such Secured Party. Any amount
payable under this Section will be deemed a demand obligation and will bear
interest pursuant to Section 4.01. The obligations of the Mortgagor under this
Section shall survive the termination of this Mortgage.
(b) All sums payable by the Mortgagor hereunder shall be paid without
counterclaim, set-off, or deduction and without abatement, suspension,
deferment, diminution or reduction, and the obligations and liabilities of the
Mortgagor hereunder shall in no way be released, discharged or otherwise
affected (except as expressly provided herein) by reason of; (i) any damage or
any condemnation of the Mortgaged Property or any part thereof; (ii) any
restriction or prevention of or interference with any use of the Mortgaged
Property or any part thereof; (iii) any title defect or encumbrance or any
eviction from the Mortgaged Property or any part thereof by title paramount or
otherwise; (iv) any bankruptcy, insolvency, reorganization, composition,
adjustment,
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dissolution, liquidation or other like proceeding relating to the Mortgagee, or
the Mortgagor, or any action taken with respect to this Mortgage by any agent
or receiver of the Mortgagee; (v) any claim which the Mortgagor has or might
have against the Mortgagee; (vi) any default or failure on the part of the
Mortgagee to perform or comply with any of the terms hereof or of any other
Loan Documents; or (vii) any other occurrence whatsoever, whether similar or
dissimilar to the foregoing, whether or not the Mortgagor shall have notice or
knowledge of any of the foregoing. The Mortgagor waives, to the extent
permitted by law, all fights now or hereafter conferred by statute or otherwise
to any abatement, suspension, deferment, diminution or reduction of any of the
Obligations.
(c) Any amounts paid by any Indemnitee as to which such Indemnitee has the
right to reimbursement shall constitute Obligations secured by the Mortgaged
Property. The indemnity obligations of the Mortgagor contained in this Section
4.03 shall continue in full force and effect notwithstanding the full payment
of ail the notes issued under the Credit Agreement, and the payment of all
other Secured Obligations and notwithstanding the discharge thereof.
ARTICLE V
DEFAULTS, REMEDIES AND RIGHTS
SECTION 5.01. Events of Default. Any Event of Default under the Credit
Agreement shall constitute an Event of Default hereunder. All notice and cure
periods provided in the Credit Agreement and the other Loan Documents shall run
concurrently with any notice or cure periods provided under applicable law.
SECTION 5.02. Remedies. (a) Upon the occurrence and continuance of an
Event of Default, the Mortgagee shall have the right and power to exercise any
of the following remedies and rights, subject to mandatory provisions of
applicable law, to wit:
(i) to institute a proceeding or proceedings, by advertisement,
judicial process or otherwise as provided under applicable law, for the
complete or partial f6reclosure of this Mortgage or the complete or
partial sale of the Mortgaged Property under the power of sale hereunder
or under any applicable provision of law; or
(ii) to sell the Mortgaged Property, and all estate, right, title,
interest, claim and demand of the Mortgagor therein and thereto, and all
rights of redemption thereof, at one or more sales, as an entirety or in
parcels, with such elements of real or personal property, at such time and
place and upon such terms as the Mortgagee may deem expedient or as may be
required under applicable law, and in the event of a sale hereunder or
under any applicable provision of law of less than all of the Mortgaged
22
Property, this Mortgage shall continue as a Lien on the remaining
Mortgaged Property; or
(iii) to institute a suit, action or proceeding for the specific
performance of any of the provisions of this Mortgage; or
(iv) to be entitled to the appointment of a receiver, supervisor,
Mortgagee, liquidator, conservator or other custodian (a "Receiver") of
the Mortgaged Property, without notice to Mortgagor, to the fullest extent
permitted by law, as a matter of fight and without regard to, or the
necessity to disprove, the adequacy of the security for the Secured
Obligations or the solvency of the Mortgagor or any other Obligor, and the
Mortgagor hereby, to the fullest extent permitted by applicable law,
irrevocably waives such necessity and consents to such appointment,
without notice, said appointee to be vested with the fullest powers
permitted under applicable law, including to the extent permitted under
applicable law those under clause (v) of this subsection (a); or
(v) to enter upon the Property, by the Mortgagee or a Receiver
(whichever is the Person exercising the fights under this clause), and, to
the extent permitted by applicable law, exclude the Mortgagor and its
managers, employees, contractors, agents and other representatives
therefrom in accordance with applicable law, without liability for
trespass, damages or otherwise, and take possession of all other Mortgaged
Property and all books, records and accounts relating thereto, and upon
demand the Mortgagor shall surrender possession of the Property, the other
Mortgaged Property and such books, records and accounts to the Person
exercising the rights under this clause; and having and holding the same,
the Person exercising the rights under this clause may use, operate,
manage, preserve, control and otherwise deal therewith and conduct the
business thereof, either personally or by its managers, employees,
contractors, agents or other representatives, without interference from
the Mortgagor or its managers, employees, contractors, agents and other
representatives; and, upon each such entry and from time to time
thereafter, at the expense of the Mortgagor and the Mortgaged Property,
without interference by the Mortgagor or its managers, employees,
contractors, agents and other representatives, the Person exercising the
rights under this clause may, as such Person deems expedient, (A) insure
or reinsure the Property, (B) make all reasonably necessary or proper
repairs, renewals, replacements, alterations, additions, Restorations,
betterments and improvements to the Property and (C) in such Person's own
name or, at the option of such Person, in the Mortgagor's name, exercise
all fights, powers and privileges of the Mortgagor with respect to
23
the Mortgaged Property, including the right to enter into Leases with
respect to the Property, including Leases extending beyond the time of
possession by the Person exercising the rights under this clause; and the
Person exercising the rights under this clause shall not be liable to
account for any action taken hereunder, other than for Rents actually
received by such Person, and shall not be liable for any loss sustained by
the Mortgagor resulting from any failure to let the Property or from any
other act or omission of such Person, except to the extent, in any case,
such loss is caused by such Person's own willful misconduct or gross
negligence; or
(vi) with or, to the fullest extent permitted by applicable law,
without entry upon the Property, in the name of the Mortgagee or a
Receiver as required by law (whichever is the Person exercising the rights
under this clause) or, at such Person's option, in the name of the
Mortgagor, to collect, receive, xxx Or and recover all Rents and proceeds
of or derived from the Mortgaged Property, and after deducting therefrom
all costs, expenses and liabilities of every character incurred by the
Person exercising the rights under this clause in collecting the same and
in using, operating, managing, preserving and controlling the Mortgaged
Property and otherwise in exercising the rights under clause (v) of this
subsection (a) or any other rights hereunder, including all amounts
necessary to pay Impositions, Rents, Insurance Premiums and other costs,
expenses and liabilities relating to the Property, as well as reasonable
compensation for the services of such Person and its managers, employees,
contractors, agents or other representatives, and to apply the remainder
as provided in Section 5.06;or
(vii) to take any action with respect to any Mortgaged Property
permitted under the Local UCC; or
(viii) by notice to the Mortgagor (to the extent such notice is
required to be given under the Credit Agreement), but without formal
demand, presentment, notice of intention to accelerate or of acceleration,
protest or notice of protes; all of which aare hereby waived by the
Mortgago, declare all of the indebtedness secured hereby to be immediately
due and payable, and upon such declaration a of such indebtedness shall
become and be immediately due and payable, anything in this Mortgage or
the other Credit Documents to the contrary notwithstanding; or
24
(ix) to take any other action, or pursue any other remedy or fight,
as the Mortgagee may have under applicable law, including the fight to
foreclosure through court action, and the Mortgagor does hereby grant the
sarne to the Mortgagee (as the case may be).
(b) To the fullest extent permitted by applicable law,
(i) each remedy or fight hereunder shall be in addition to, and not
exclusive or in limitation of, any other remedy or fight hereunder, under
any other Loan Document or under apphcable law;
(ii) every remedy or right hereunder, under any other Loan Document
or under applicable law may be exercised concurrently or independently and
whenever and as often as deemed appropriate by the Mortgagee;
(iii) no failure to exercise or delay in exercising any remedy or
fight hereunder, under any other Loan Document or under applicable law
shall be construed as a waiver of any Default or other occurrence
hereunder or under any other Loan Document;
(iv) no waiver of, failure to exercise or delay in exercising any
remedy or right hereunder, under any other Loan Document or under
applicable law upon any Default or other occurrence hereunder or under any
other Loan Document shall be construed as a waiver of, or otherwise limit
the exercise of, such remedy or fight upon any other or subsequent Default
or other or subsequent occurrence hereunder or under any other Loan
Document;
(v) no single or partial exercise of any remedy or right hereunder,
under any other Loan Document or under apphcaWe law upon any Default or
other occurrence hereunder or under any other Loan Document shall preclude
or otherwise limit the exercise of any other remedy or right hereunder,
under any other Loan Document or under applicable law upon such Default or
occurrence or upon any other or subsequent Default or other or subsequent
occurrence hereunder or under any other Loan Document;
(vi) the acceptance by the Mortgagee or any other Secured Party of
any payment less than the amount of the Secured Obligation in question
shall be deemed to be an acceptance on account only and shall not be
25
construed as a waiver of any Default hereunder or under any other Loan
Document with respect thereto; and
(vii) the acceptance by the Mortgagee or any other Secured Party of
any payment of, or on account of, any Secured Obligation shall not be
deemed to be a waiver of any Default or other occurrence hereunder or
under any other Loan Document with respect to any other Secured
Obligation.
(c) If the Mortgagee has proceeded to enforce any remedy or right
hereunder or with respect hereto by foreclosure, sale, entry or otherwise, it
may compromise, discontinue or abandon such proceeding for any reason without
notice to the Mortgagor or any other Person (except other Secured Parties to
the extent required by the other Loan Documents); and, if any such proceeding
shall be discontinued, abandoned or determined adversely for any reason, the
Mortgagor and the Mortgagee shall retain and be restored to their former
positions and fights hereunder with respect to the Mortgaged Property, subject
to the Lien hereof except to the extent any such adverse determination
specifically provides to the contrary.
(d) For the purpose of carrying out any provisions of Section 5.02(a)(v),
5.02(a)(vi), 5.05, 5.07, 5.10 or 6.01 or, if an Event of Default has occurred,
any other provision hereunder authorizing the Mortgagee or any other Person to
perform any action on behalf of the Mortgagor, the Mortgagor hereby irrevocably
appoints the Mortgagee or a Receiver appointed pursuant to Section 5.02(a)(iv)
or such other Person as the attorney-in-fact of the Mortgagor (with a power to
substitute any other Person in its place as such attorney-in-fact) to act in
the name of the Mortgagor or, at the option of the Person appointed to act
under this subsection, in such Person's own name, to take the action authorized
under Section 5.02(a)(v), 5.02(a)(vi), 5.05, 5.07, 5.10 or 6.01 or such other
provision, and to execute, acknowledge and deliver any document in connection
therewith or to take any other action incidental thereto as the Person
appointed to act under this subsection shall deem appropriate in its discretion
(subject to the provisions of this Mortgage); and the Mortgagor hereby
irrevocably authorizes and directs any other Person to rely and act on behalf
of the foregoing appointment and a certificate of the Person appointed to act
under this subsection that such Person is authorized to act under this
subsection.
SECTION 5.03. WAIVERS BY THE MORTGAGOR. TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW, THE MORTGAGOR SHALL NOT ASSERT, AND HEREBY IRREVOCABLY
WAIVES, ANY RIGHT OR DEFENSE THE MORTGAGOR MAY HAVE UNDER ANY STATUTE OR RULE
OF LAW OR EQUITY NOW OR HEREAFTER IN EFFECT RELATING TO (I) APPRAISEMENT,
VALUATION, HOMESTEAD EXEMPTION, EXTENSION, MORATORIUM, STAY, STATUTE OF
LIMITATIONS, REDEMPTION, MARSHALLING OF THE MORTGAGED PROPERTY OR THE OTHER
ASSETS OF THE MORTGAGOR, SALE OF THE MORTGAGED PROPERTY IN ANY ORDER OR NOTICE
OF DEFICIENCY OR INTENTION TO
26
ACCELERATE AINTY SECURED OBLIGATION; (II) IMPAIRMENT OF ANY RIGHT OF
SUBROGATION OR REIMBURSEMENT; (III) ANY REQUIREMENT THAT AT ANY TIME ANY ACTION
MUST BE TAKEN AGAINST ANY OTHER PERSON, ANY PORTION OF THE MORTGAGED PROPERTY
OR ANY OTHER ASSET OF THE MORTGAGOR OR ANY OTHER PERSON; (IV) ANY PROVISION
BARRING OR LIMITING THE RIGHT OF THE MORTGAGEE TO SELL ANY MORTGAGED
PROPERT AFTER ANY OTHER SALE OF ANY OTHER MORTGAGED PROPERTY OR ANY OTHER
ACTION AGAINST THE MORTGAGOR OR ANY OTHER PERSON; (V) ANY PROVISION BARRING OR
LIMITING THE RECOVERY BY THE MORTGAGEE OF A DEFICIENCY AFTER ANY SALE OF THE
MORTGAGED PROPERTY; OR (VI) THE RIGHT OF THE MORTGAGEE TO FORECLOSE THIS
MORTGAGE IN ITS OWN NAME ON BEHALF OF ALL OF THE SECURED PARTIES BY JUDICIAL
ACTION AS THE REAL PARTY IN INTEREST WITHOUT THE NECESSITY OF JOINING ANY OTHER
SECURED PARTY. NOTHING HEREIN, HOWEVER, SHALL BE CONSTRUED TO IMIT ANY RIGHTS,
INCLUDING RIGHT TO NOTICE, AFFORDED TO THE MORTGAGOR UNDER THE LOAN DOCUMENTS.
SECTION 5.04. Jurisdiction and Process. (a) To the extent permitted under
applicable law, in any suit, action or proceeding arising out of or relating to
this Mortgage or any other Collateral Document as it relates to any Mortgaged
Property, the Mortgagor (i) irrevocably consents to the non-exclusive
jurisdiction of any state or federal court sitting in the State in which the
Property is located and irrevocably waives any defense or objection which it
may now or hereafter have to the jurisdiction of such court or the venue of
such court or the convenience of such court as the forum for any such suit,
action or proceeding; and (ii) irrevocably consents to the service of (A) any
process in any such suit, action or proceeding, or (B) any notice relating to
any sale, or the exercise of any other remedy by the Mortgagee hereunder by
mailing a copy of such process or notice by United States registered or
certified mail, postage prepaid, return receipt requested to the Mortgagor at
its address specified in or pursuant to Section 703, such service to be
eHictiive when such process or notice is mailed as aforesaid.
(b) Nothing in this Section shall affect the right of the Mortgagee to
bring any suit, action or proceeding arising out of or relating to this
Mortgage or any other Collateral Document in any court having jurisdiction
under the provisions of any other Collateral Document or applicable law or to
serve any process, notice of sale or other notice in any manner permitted by
any other Collateral Document or applicable law.
SECTION 5.05. Sales. Except as otherwise provided herein, to the fullest
extent permitted under applicable law, at the election of the Mortgagee, the
following provisions shall apply to any sale of the Mortgaged Property
hereunder, whether made pursuant to the power of sale hereunder, any judicial
proceeding or any judgment or decree of foreclosure or sale or otherwise:
27
(a) The Mortgagee or the court officer (whichever is the Person conducting
any sale) may conduct any number of sales from time to time. The power of sale
hereunder or with respect hereto shall not be exhausted by any sale as to any
pan or parcel of the Mortgaged Property which is not sold, unless and until the
Secured Obligations shall have been paid in full, and shall not be exhausted or
impaired by any sale which is not completed or is defective. Any sale may be as
a whole or in part or parcels and, as provided in Section 5.03, the Mortgagor
has waived its right to direct the order in which the Mortgaged Property or any
part or parcel thereof is sold.
(b) Any sale may be postponed or adjourned by public announcement at the
time and place appointed for such sale or for such postponed or adjourned sale
without further notice.
(c) After each sale, the Person conducting such sale shall execute and
deliver to the purchaser or purchasers at such sale a good and sufficient
instrument or instruments granting, conveying, assigning, Transferring and
delivering all right, tide and interest of the Mortgagor in and to the
Mortgaged Property sold and shall receive the proceeds of such sale and apply
the same as provided in Section 5.06. The Mortgagor hereby irrevocably appoints
the Person conducting such sale as the attorney-in-fact of the Mortgagor (with
full power to substitute any other Person in its place as such attomey-in-fact)
to act in the name of the Mortgagor or, at the option of the Person conducting
such sale, in such Person's own name, to make without warranty by such Person
any conveyance, assignment, Transfer or delivery of the Mortgaged Property
sold, and to execute, acknowledge and deliver any instrument of conveyance,
assignment, Transfer or delivery or other document in connection therewith or
to take any other action incidental thereto, as the Person conducting such sale
shall deem appropriate in its discretion; and the Mortgagor hereby irrevocably
authorizes and directs any other Person to rely and act upon the foregoing
appointment and a certificate of the Person conducting such sale that such
Person is authorized to act hereunder. Nevertheless, upon the request of such
attorney-in-fact the Mortgagor shall promptly execute, acknowledge and deliver
any documentation which such attorney-in-fact may require for the purpose of
ratifying, confirming or effectuating the powers granted hereby or any such
conveyance, assignment, Transfer or delivery by such attorney-in-fact.
(d) Any statement of fact or other recital made in any instrument
referred to in Section 5.05(c) given by the Person conducting any sale as
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to the nonpayment of any Secured Obligation, the occurrence of any Event of
Default, the amount of the Secured Obligations due and payable, the request to
the Mortgagee to sell, the notice of the time, place and terms of sale and of
the Mortgaged Property to be sold having been duly given, the refusal, failure
or inability of the Mortgagee to act, the appointment of any substitute or
successor agent, any other act or thing having been duly done by the Mortgagor,
the Mortgagee or any other such Person, shall be taken as conclusive and
binding against all other Persons as evidence of the truth of the facts so
stated or recited.
(e) The receipt by the Person conducting any sale of the purchase money
paid at such sale shall be sufficient discharge therefor to any purchaser of
any Mortgaged Property sold, and no such purchaser, or its representatives,
grantees or assigns, after paying such purchase price and receiving such
receipt, shall be bound to see to the application of such purchase price or any
part thereof upon or for any trust or purpose of this Mortgage or the other
Loan Documents, or, in any manner whatsoever, be answerable for any loss,
misapplication or nonapplication of any such purchase money or be bound to
inquire as to the authorization, necessity, expediency or regularity of such
sale.
(f) Subject to mandatory provisions of applicable law, any sale shall
operate to divest all of the estate, right, title, interest, claim and demand
whatsoever, whether at law or in equity, of the Mortgagor in and to the
Mortgaged Property sold, and shall be a perpetual bar both at law and in equity
against the Mortgagor and any and all Persons claiming such Mortgaged Property
or any interest therein by, through or under the Mortgagor.
(g) At any sale, the Mortgagee may bid for and acquire the Mortgaged
Property sold and, in lieu of paying cash therefor, may make settlement for the
purchase price by causing the Secured Parties to credit against the Secured
Obligations, including the expenses of the sale and the cost of any enforcement
proceeding hereunder, the amount of the bid made therefor to the extent
necessary to satisfy such bid.
(h) If the Mortgagor or any Person claiming by, through or under the
Mortgagor shall transfer or fail to surrender possession of the Mortgaged
Property, after the exercise by the Mortgagee of the Mortgagee's remedies under
Section 5.02(a)(v) or after any sale of the Mortgaged Property pursuant hereto,
then the Mortgagor or such Person shall be deemed a tenant at sufferance of the
purchaser at such sale, subject to eviction by means of summary process for
possession of land, or
29
subject to any other right or remedy available hereunder or under
applicable law.
(i) Upon any sale, it shall not be necessary for the Person conducting
such sale to have any Mortgaged Property being sold present or constructively
in its possession.
(j) If a sale hereunder shall be commenced by the Mortgagee, the Mortgagee
may at any time before the sale abandon the sale, and may institute suit for
the collection of the Secured Obligations or for the foreclosure of this
Mortgage; or if the Mortgagee shall institute a suit for collection of the
Secured Obligations or the foreclosure of this Mortgage, the Mortgagee may at
any time before the entry of final judgment in said suit dismiss tile same and
sell the Mortgaged Property in accordance with the provisions of this Mortgage.
SECTION 5.06. Proceeds. Except as otherwise provided herein or required
under apphcable law, upon being instructed to do so in an Enforcement Notice,
the proceeds of any sale of, or other realization upon, the Mortgaged Property
hereunder, whether made pursuant to the power of sale hereunder, any judicial
proceeding or any judgment or decree of foreclosure or sale or otherwise, shall
be applied and paid as follows:
(a) First: to the payment of all expenses of such sale or other
realization, including compensation for the Person conducting such sale
(which may include the Mortgagee), the cost of title searches, foreclosure
certificates and attorneys' fees and expenses incurred by such Person,
together with interest on any such expenses paid by such Person at the
Post-Default Rate from the date of demand through the date repaid to such
Person;
(b) Second: to the payment of the expenses and other amounts payable
under Sections 4.02 and 5.10, if any;
(c) Third: to the payment of the other Secured Obligations in the order
and priority set forth in Section 8 of the Security Agreement, until all
Secured Obligations shall have been paid in full; and
(d) Fourth: to pay to the Mortgagor or its successors and assigns, or
as a court of competent jurisdiction may direct, any surplus then
remaining from such proceeds.
SECTION 5.07. Assignment of Leases. (a) Subject to paragraph (d) below, the
assignments of the Leases and the Rents under Granting Clauses VI and VII are
and shall
30
be present, absolute and irrevocable assignments by the Mortgagor to the
Mortgagee and, subject to the license to the Mortgagor under Section 5.07(b), a
Receiver appointed pursuant to Section 5.02(a)(iv) (whichever is the Person
exercisIg the rights under this Section) shall have the absolute, immediate and
continuing right to collect and receive all Rents now or hereafter, including
during any period of redemption, accruing with respect to the Property. At the
request of the Mortgagee or such Receiver, the Mortgagor shall promptly
execute, acknowledge, deliver, record, register and file any additional general
assignment of the Leases or specific assignment of any Lease which the
Mortgagee or such Receiver may require from time to time (all in form and
substance satisfactory to the Mortgagee or such Receiver) to effectuate,
complete, perfect, continue or preserve the assignments of the Leases and the
Rents under Granting Clauses VI and VII.
(b) The Mortgagor shall have a license granted hereby to collect and
receive all Rents and apply the same subject to the provisions of the Loan
Documents, such license to be terminable by the Mortgagee as provided in
Section 5.07(c).
(c) Upon the occurrence and continuance of an Event of Default, the
Mortgagee or a Receiver appointed pursuant to Section 5.02(a)(iv) (whichever is
the Person exercising the rights under this Section) shall have the right to
terminate the license granted under Section 5.07(b) by notice to the Mortgagor
and to exercise the rights and remedies provided under Section 5.07(a), under
Sections 5.02(a)(v) and (vi) or under applicable law. Upon demand by the Person
exercising the rights under this Section, the Mortgagor shall promptly pay to
such Person all security deposits under the Leases and all Rents allocable to
any period after such demand. Subject to Sections 5.02(a)(v) and (vi) and any
applicable requirement of law, any Rents received hereunder by such Person
shall be promptly paid to the Mortgagee, and any Rents received hereunder by
the Mortgagee shall be deposited in the Collateral Account, to be held as
provided in the Credit Agreement, provided that, subject to Sections 5.02(a)(v)
and (vi) and any applicable requirement of law, any security deposits actually
received by such Person shall be promptly paid to the Mortgagee, and any
security deposits actually received by the Mortgagee shall be held, applied and
disbursed as provided in the applicable Leases and applicable law. Once the
Event of Default is remedied, the license granted in Section 5.07(b) shall
automatically be reinstated.
(d) Nothing herein shall be construed to be an assumption by the Person
exercising the rights under this Section, or otherwise to make such Person
liable for the performance, of any of the obligations of the Mortgagor under
the Leases, provided that such Person shall be accountable as provided in
Section 5.07(c) for any Rents or security deposits actually received by such
Person.
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SECTION 5.08. Dealing With the Mortgaged Property. Subject to Section 7.02,
the Mortgagee shall have the right to release any portion of the Mortgaged
Property, or grant or consent to the granting of any Lien affecting any portion
of the Mortgaged Property, to or at the request of the Mortgagor, for such
consideration as the Mortgagee may require without, as to the remainder of the
Mortgaged Property, in any way impairing or affecting the Lien or priority of
this Mortgage, or improving the position of any subordinate lienholder with
respect thereto, or the position of any guarantor, endorser, co-maker or other
obligor of the Secured Obligations, except to the extent that the Secured
Obligations shall have been reduced by any actual monetary consideration
received for such release and applied to the Secured Obligations, and may accept
by assignment, pledge or otherwise any other property in place thereof as the
Mortgagee may require without being accountable therefor to any other
lienholder.
SECTION 5.09. Right of Entry. The Mortgagee and the representatives of the
Mortgagee shall have the right, upon being instructed to do so by the Required
Lenders (i) without notice, if an Event of Default has occurred and is
continuing, (ii) with simultaneous notice, if any payment or performance is
required in the reasonable opinion of the Mortgagee to preserve the Mortgagee's
rights under this Mortgage or with respect to the Mortgaged Property, or (iii)
after reasonable notice, in all other cases, to enter upon the Property at
reasonable times, and with reasonable frequency, to inspect the Mortgaged
Property or, subject to the provisions hereof, to exercise any right, power or
remedy of the Mortgagee hereunder, provided that any Person so entering the
Property shall not unreasonably interfere with the ordinary conduct of the
Mortgagor's business, and provided further that no such entry on the Property,
for the purpose of performing obligations under Section 5.10 or for any other
purpose, shall be construed to be (x) possession of the Property by such Person
or to constitute such Person as a mortgagee in possession, unless such Person
exercises its right to take possession of the Property under Section
5.02(a)(v), or (y) a cure of any Default or waiver of any Default or Secured
Obligation. The expense of any inspection pursuant to clause (iii) above shall
be borne by the Mortgagee unless an Event of Default shall have occurred and be
continuing at the time of such inspection, in which case the Mortgagor shall
pay, or reimburse the Mortgagee for, such expense.
SECTION 5.10. Right to Perform Obligations. If the Mortgagor fails to pay
or perform any obligation of the Mortgagor hereunder, the Mortgagee and the
representatives of the Mortgagee shall have the right upon being instructed to
do so by the Required Lenders at any time, to pay or perform such obligation
(i) without notice, if an Event of Default has occurred and is continuing, (ii)
with simultaneous notice, if such payment or performance is required in the
reasonable opinion of the Mortgagee to preserve the Mortgagee's rights under
this Mortgage or with respect to the Mortgaged Property or (iii) after notice
given reasonably in advance to allow the Mortgagor an opportunity to pay or
perform such obligation, provided that the Mortgagor is not contesting payment
or performance in accordance with the terms hereof and further provided that no
such payment or performance shall be construed to be a cure of any Default or
waiver of any Default or Secured Obligation. The Mortgagor shall
32
reimburse the Mortgagee on demand for the reasonable costs of performing any
such obligations and any amounts not paid on demand shall bear interest,
payable on demand, for each day until paid at the Post-Default Rate for such
day.
SECTION 5.11. Concerning the Mortgagee. (a) The provisions of Article 7 of
the Credit Agreement shall inure to the benefit of the Mortgagee in respect of
this Mortgage and shall be binding upon the parties to the Credit Agreement in
such respect. In furtherance and not in derogation of the rights, privileges
and immunities of the Mortgagee therein set forth:
(i) The Mortgagee is authorized to take all such action as is
provided to be taken by it as Mortgagee hereunder and all other action
reasonably incidental thereto. As to any matters not expressly provided
for herein (including the timing and methods of realization upon the
Mortgaged Property) the Mortgagee shall act or refrain from acting in
accordance with written instructions from the Required Lenders or, in the
absence of such instructions, in accordance with its discretion.
(ii) The Mortgagee shall not be responsible for the existence,
genuineness or value of any of the Mortgaged Property or for the validity,
perfection, priority or enforceability of the Lien of this Mortgage on any
of the Mortgaged Property, whether impaired by operation of law or by
reason of any action or omission to act on its part hereunder. The
Mortgagee shall have no duty to ascertain or inquire as to the performance
or observance of any of the terms of this Mortgage by the Mortgagor.
(b) At any time or times, in order to comply with any legal requirement in
any jurisdiction, the Mortgagee may appoint another bank or trust company or
one or more other Persons, either to act as co-agent or co-agents, jointly with
the Mortgagee, or to act as sepaxate agent or agents on behalf of the Secured
Parties with such power and authority as may be necessary for the effectual
operation of the provisions hereof and may be specified in the instrument of
appointment (which may, in the discretion of the Mortgagee, include provisions
for the protection of such co-agent or separate agent similar to the provisions
of this Section 5.11). References to the Mortgagee in Section 5.12 shall be
deemed to include any co-agent or separate agent appointed pursuant to this
Section 5.11.
SECTION 5.12. Expenses. The Mortgagor agrees that it will within fifteen
15) days of demand pay to the Mortgagee (i) the amount of any taxes which the
Mortgagee may have been required to pay by reason of the Lien of this Mortgage
and has failed to pay or to free any of the Mortgaged Property from any Lien
thereon (other than Permitted Liens), (ii) the amount of any and all reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel and of any other experts, which the Mortgagee may incur in connection
with preserving the value of the Mortgaged Property and the validity,
perfection,
33
rank and value of the Lien of this Mortgage and (iii) the amount of any and all
out-of-pocket expenses, including the fees and disbursements of counsel and of
any other experts, which the Mortgagee mayy incur in connection with the
collection, sale or other disposition of any of the Mortgaged Property.
ARTICLE VI
SECURITY AGREEMENT AND FIXTURE FILING
SECTION 6.01. Security Agreement. To the extent that the Mortgaged
Property constitutes or includes tangible or intangible personal property,
including goods or items of personal property which are or are to become
fixtures under applicable law, the Mortgagor hereby grants a security interest
therein and this Mortgage shall also be construed as a pledge and a security
agreement under the Local UCC; and, upon the occurrence and con6nuance of an
Event of Debult, the Mortgagee shall be entitled to exercise with respect to
such tangible or intangible personal property all remedies available under the
Local UCC and all other remedies available under applicable law. Without
limiting the foregoing, any personal property may, at the Mortgagee's option
and, except as otherwise required by applicable law, without the giving of
notice, (i) be sold hereunder, (ii) be sold pursuant to the Local UCC or (iii)
be dealt with by the Mortgagee in any other manner permitted under applicable
law. The Mortgagee may require the Mortgagor to assemble the personal property
and make it available to the Mortgagee at a place to be designated by the
Mortgagee. At any time and from time to time upon the occurrence and
continuance of an Event of Default, the Mortgagee shall be the attorney-in-fact
of the Mortgagor with respect to any and all matters pertaining to the personal
property with full power and authority to give instructions with respect to the
collection and remittance of payments, to endorse checks, to enforce the rights
and remedies of the Mortgagor and to execute on behalf of the Mortgagor and in
Mortgagor's name any instruction, agreement or other writing required therefor.
The Mortgagor acknowledges and agrees that a disposition of the personal
property in accordance with the Mortgagee's rights and remedies in respect to
the Property as heretofore provided is a commercially reasonable disposition
thereof Notwithstanding the foregoing, to the extent that the Mortgaged
Property includes personal property covered by the Security Agreement the
provisions of the Security Agreement shall govern with respect to such personal
property.
SECTION 6.02. Fixture Filing. To the extent that the Mortgaged Property
includes goods or items of personal property which are or are to become
fixtures under applicable law, and to the extent permitted under appHcable law,
the filing of this Mortgage in the real estate records of the county in which
the Mortgaged Property is located shall also operate from the time of filing as
a fixture filing with respect to such Mortgaged Property, and the following
information is applicable for the purpose of such fixture filing, to wit:
(a) Name and Address of the debtor:
34
---------------------------------
---------------------------------
---------------------------------
(b) Name and Address of the secured party:
Xxxxxx Guaranty Trust Company of New York, as Agent
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
(c) This document covers goods or items of personal property which are or
are to become fixtures upon the Property.
(d) The name of the record owner of the real estate on which such fixtures
are or are to be located is________________________________
SECTION 6.03. Survival of Security Agreement. Notwithstanding any release
of any or all of the property included in the Mortgaged Property which is
deemed "real property", or any proceedings to foreclose this Mortgage or its
satisfaction of record, the terms hereof shall survive as a security agreement
with respect to the security interest created hereby and referred to above
until the repayment or satisfaction in full of the Secured Obligations.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Revolving Loans. The Secured Obligations secured by this
Mortgage include Loans made and LC Reimbursement Obligations relating to
Letters of Credit issued or extended under the Credit Agreement which are
advanced, paid and readvanced from time to time. Notwithstanding the amount
outstanding at any particular time, this Mortgage secures the total amount of
Secured Obligations. The unpaid balance of the Loans and the unpaid balance of
the LC Reimbursement Obligations may at certain times be, or be reduced to,
zero. A zero balance, by itself, does not affect any Lender's or LC Issuing
Bank's obligation to issue or extend Letters of Credit or to make payments upon
draws under Letters of Credit, or any Lender's obligation to advance Revolving
Loans which are obligatory subject to the conditions stated in the Credit
Agreement. Each of the security interest of the Mortgagee hereunder and the
priority of the Lien of this Mortgage will remain in full force and effect with
respect to all of the Secured Obligations notwithstanding such a zero balance
of the Loans or the LC Reimbursement Obligations, and the Lien of this Mortgage
will not be extinguished until this Mortgage has been terminated pursuant to
Section 7.02(a).
SECTION 7.02. Release of Mortgaged Property. (a) This Mortgage shall
cease, terminate and thereafter be of no further force or effect (except as
provided in Section 4.03) upon payment in full of all Secured Obligations, the
expiration of all Letters of Credit
35
issued under the Credit Agreement and the termination of all Commitments under
the Credit Agreement. At any time and from time to time prior to such
termination of this Mortgage, the Mortgagee may release any of the Mortgaged
Property with the consent of the Required Lenders, provided that if such
release is in connection with the release of all or substantially all of the
collateral granted to secure the Secured Obligations, such release shall
require the consent of all Lenders. In addition, the Mortgagee shall release
any and all Mortgaged Property required in connection with any transaction, or
sale, transfer, assignment or other disposition of the Mortgaged Property,
consummated by the Mortgagor and not prohibited by any Loan Document, and shall
be fully protected in relying on a certificate of an authorized officer of the
Mortgagor to such effect.
(b) Any termination or release under this Section 7.02 shall be at the
Mortgagor's request and expense and either in the statutory form or in a form
reasonably satisfactory to the Mortgagee.
SECTION 7.03. Notices. All notices, requests and other communications
required or permitted to be given under this Mortgage shall be in writing
(including facsimile transmission or similar writing) and shall be given to the
Mortgagor or the Mortgagee as specified in Section 10.01 of the Credit
Agreement. Except as otherwise provided herein, each notice, request or other
communication shall be effective as determined by Section 10.01 of the Credit
Agreement.
SECTION 7.04. Amendments in Writing. No provision of this Mortgage shall
be modified, waived or terminated, and no consent to any departure by the
Mortgagor from any provision of this Mortgage shall be effective, unless the
same shall be by an instrument in writing, signed by the Mortgagor and the
Mortgagee in accordance with Section 10.05 of the Credit Agreement. Any such
waiver or consent shall be effective only in the specific instance and Ar the
specific purpose for which given.
SECTION 7.05. Severability. All rights, powers and remedies provided in
this Mortgage may be exercised only to the extent that the exercise thereof
does not violate applicable law, and all the provisions of this Mortgage are
intended to be subject to all mandatory provisions of applicable law and to be
limited to the extent necessary so that they will not render this Mortgage
illegal, invalid, unenforceable or not entitled to be recorded, registered or
filed under applicable law. If any provision of this Mortgage or the
application thereof to any Person or circumstance shall, to any extent, be
illegal, invalid or unenforceable, or cause this Mortgage not to be entitled to
be recorded, registered or filed, the remaining provisions of this Mortgage or
the application of such provision to other Persons or circumstances shall not
be affected thereby, and each provision of this Mortgage shall be valid and be
enforced to the fullest extent permitted under applicable law.
36
SECTION 7.06. Binding Effect. (a) The provisions of this Mortgage shall be
binding upon and inure to the benefit of each of the parties hereto and their
respective successors and assigns.
(b) To the fullest extent permitted under applicable law, the provisions
of this Mortgage binding upon the Mortgagor shall be xxxxxx.xx be covenants
which run with the land.
(c) Nothing in this Section shall be construed to permit the Mortgagor to
Transfer or xxxxx x Xxxx upon the Mortgaged Property contrary to the provisions
of the Credit Agreement.
SECTION 7.07. GOVERNING LAW. THIS MORTGAGE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS
LOCATED.
SECTION 7.08. Non-Agricultural Property. The Mortgaged Property is not
used for agricultural or farming purposes.
SECTION 7.09. Statute of Frauds Provision. ORAL AGREEMENTS OR ORAL
COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT
OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
SECTION 7.10. Commercial Purposes. The obligations and indebtedness
secured by this Mortgage were incurred primarily for commercial, investment or
business purposes and not for personal, family or household purposes.
SECTION 7.11. Counteparts. This Agreement may be signed in any number of
counterparts each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 7.12. Last Dollars Secured. This Mortgage secures only a portion
of the Secured Obligations owing or which may become owing by the Mortgagor
Notwithstanding anything to the contrary contained in the Loan Documents, the
parties agree that any payments or repayments of such Secured Obligations by
the Mortgagor shall be deemed to apply first to the portion of the Secured
Obligations that is not secured hereby, it being the parties' intent that the
portion of the Secured Obligations last remaining unpaid shall be deemed
secured hereby.
SECTION 7.13. Obligations Absolute. The obligations of the Mortgagor
hereunder shall remain in ffill force and effect without regard to, and shall
not be impaired by, (a) any bankruptcy, insolvency4 reorganization,
arrangement, readjustment, composition, liquidation or the like of the
Mortgagor; (b) any exercise or non-exercise, or any waiver of, any right,
remedy,
37
power or privilege under or in respect of this Mortgage or any other Financing
Document; or (c) any amendment to or modification of any Financing Document or
any security for any of the Obligations; whether or not the Mortgagor shall
have notice or knowledge of any of the foregoing.
SECTION 7.14. Further Assurances. The Mortgagor, at its own expense, will
execute, acknowledge and deliver all such instruments and take all such action
as may be necessary to assure to the Mortgagee the interest in the Mortgaged
Roperty herein described and the rights intended to be provided to the
Mortgagee herein.
SECTION 7.15. Remedies Cumulative. Each and every right, power and remedy
hereby specifically given to the Mortgagee shall be in addition to every other
right, power and remedy specifically given under this Mortgage 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 the Mortgagee. All such rights, powers and remedies
shall be cumulative and the exercise or the beginning of exercise of one shall
not be deemed a waiver of the right to exercise of any other or others. No
delay or ornission of the Mortgagee in the exercise of any such right, power or
remedy and no renewal or extension of any of the Obligations shall impair any
such right, power or remedy or shall be construed to be a waiver of any default
or Event of Default or an acqLuescence therein. In the event the Mortgagee
shall seek to enforce its rights hereunder and shall be entitled to judgmenq
then in such suit the Mortgagee may recover reasonable expenses, including
attorneys' fees, and the amounts thereof shall be included in such judgment.
SECTION 7.16. Partial Invalidity If any of the provisions of this Mortgage
or the application thereof to any person, party or circumstances shall to any
extent be invalid or unenforceable, the remainder of this Mortgage, or the
application of such provision or provisions to persons, parties or
circumstances other than those as to whom or which it is held invalid or
unenforceable, shall not be affected thereby, and every provision of this
Mortgage shall be valid and enforceable to the fullest extent permitted by law.
SECTION 7.17. Priority. This Mortgage is intended to and shall be valid
and have priority over all subsequent liens and encumbrances, including
statutory liens, excepting solely taxes and assessments levied on the real
estate, to the extent of the maximum amount secured hereby.
SECTION 7.18. Full Recourse. This Mortgage is made with full recourse to
the Mortgagor (including as to all assets of the Mortgagor, including the
Secured Mortgaged Property) and pursuant to and upon the representations,
warranties, covenants and the agreements on the part of the Mortgagor contained
herein, in the other Loan Documents and otherwise in writing in connection
herewith or therewith.
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SECTION 7.19. Acknowledgment of Receipt. The Mortgagor hereby acknowledges
receipt of a true copy of this Mortgage.
[SECTION 7.20. Open-End Mortgage. This Mortgage is given to secure the
Mortgagor's obligations under, or in respect of, the Loan Documents and the
Guaranteed Derivatives Agreement to which the Mortgagor is "party" and shall
secure not only obligations with respect to presently existing indebtedness
under the foregoing documents and agreements but also any and all other
indebtedness now owing or which may hereafter be owing by the Mortgagor to the
Secured Creditors, however incurred, whether interest, discount or otherwise,
and whether the same shall be deferred, accrued or capitalized, including
future advances and re-advances, pursuant to the Credit Agreement, whether such
advances are obligatory or to be made at the option of the Lenders, or
otherwise, to the same extent as if such future advances were made on the date
of the execution of this Mortgage. The lien of this Mortgage shall be valid as
to all indebtedness secured hereby, including future advances, from the time of
its filing for record in the recorder's office of the county in which the
Mortgaged Property is located. This Mortgage is intended to and shall be valid
and have priority over all subsequent hens and encumbrances, including
statutory liens, excepting solely taxes and assessments levied on the real
estate, to the extent of the maximum amount secured hereby.]
SECTION 7.21. Leases. Any foreclosure of this Mortgage and any other
transfer of all or any part of the Mortgaged Property in extinguishment of all
or any part of the Obligations may, at the Mortgagee's option, be subject to
any or all leases of all or any part of the Mortgaged Property and the rights
of tenants under such leases. No failure to make any such tenant a defendant in
any foreclosure proceedings or to foreclose or otherwise terminate any such
lease and the rights of any such tenant in connection with any such foreclosure
or transfer shall be, or be asserted to be, a defense or hindrance to any such
foreclosure or transfer or to any proceedings seeking collection of all or any
part of the Obligations (including, without limitation, any deficiency
remaining unpaid after completion of any such foreclose or transfer).
SECTION 7.22. Limitation on Interest. Notwithstanding anything contained
in this Mortgage to the contrary, the Mortgagee shall never be deemed to have
contracted for or be entitled to receive, collect or apply as interest of the
indebtedness secured hereby, any amount in excess of the amount perrnitted and
calculated at the highest lawful rate, and, in the event the Mortgagee ever
receives, collects or applies as interest any amount in excess of the amount
permitted and calculated at the highest lawful rate, such amount which would be
excessive interest shall be applied to the reduction of the unpadd principal
balance of the indebtedness secured hereby, and, if the principal balance of
the indebtedness secured hereby is paid in full, any remaining excess shall
forthwith be paid to the Mortgagor. In determining whether or not the interest
paid or payable under any specific contingency exceeds the amount of interest
permitted and calculated at the highest lawful rate, the Mortgagor and the
Mortgagee shall, to the maximum extent permitted under applicable law, (i)
characterize any non-principal payment (other than payments which are expressly
designated as interest payments hereunder) as an expense, fee, or premium,
rather than as interesst, (ii) exclude voluntary prepayments and the effect
thereof, and (iii) spread the total amount of
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interest throughout the entire contemplated term of the indebtedness and
other Obligations secured hereby.
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IN WITNESS WHEREOF, the Mortgagor has executed and delivered this Mortgage
as of the day first set forth above.
[MORTGAGOR]
[Seal]
By:
-------------------------------
Name:
Title:
41
STATE OF )
)ss.
COUNTY OF )
I certify that I know or have satisfactory evidence tha____________________
the person who appeared before me, and said person acknowledged that he or she
signed this instrument, on oath stated that he or she was authorized to execute
the instrument and acknowledged it as the ________________________________ of
[__________________________________] to be the free and voluntary act of such
party for the uses and purposes mentioned in this instrument.
DATED: ------------------------------------
[Notary Signature]
------------------------------------
[Type or Print Name of Notary]
NOTARY PUBLIC for the State of
___________________, residing
at__________________________________
My appointment expires:
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1
EXHIBIT A
DESCRIPTION OF THE LAND
2
EXHIBIT B
Permitted Encumbrances
3