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EXHIBIT 4.5(a)
EXECUTION COPY
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$1.55 BILLION
CREDIT AGREEMENT
among
TENNECO INC.
(to be renamed TENNECO AUTOMOTIVE INC.),
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
COMMERZBANK
and
BANK OF AMERICA, N.A.,
as Co-Documentation Agents,
CITICORP USA, INC.,
as Syndication Agent,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of September 30, 1999
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CHASE SECURITIES INC., as Lead Arranger and Book Manager
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS.......................................................2
1.1 Defined Terms...................................................2
1.2 Other Definitional Provisions..................................24
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS..................................25
2.1 Term Commitments...............................................25
2.2 Procedure for Term Loan Borrowing..............................25
2.3 Repayment of Term Loans........................................25
2.4 Revolving Commitments..........................................27
2.5 Procedure for Revolving Loan Borrowing.........................27
2.6 Swingline Commitment...........................................28
2.7 Procedure for Swingline Borrowing; Refunding of
Swingline Loans..............................................28
2.8 Commitment Fees, etc. .........................................30
2.9 Termination or Reduction of Commitments........................30
2.10 Optional Prepayments..........................................30
2.11 Mandatory Prepayments and Commitment Reductions...............31
2.12 Conversion and Continuation Options...........................33
2.13 Limitations on Eurodollar Tranches............................34
2.14 Interest Rates and Payment Dates..............................34
2.15 Computation of Interest and Fees..............................35
2.16 Inability to Determine Interest Rate..........................35
2.17 Pro Rata Treatment and Payments...............................36
2.18 Requirements of Law...........................................37
2.19 Taxes.........................................................38
2.20 Indemnity.....................................................40
2.21 Change of Lending Office......................................40
2.22 Replacement of Lenders........................................41
SECTION 3. LETTERS OF CREDIT................................................41
3.1 L/C Commitment.................................................41
3.2 Procedure for Issuance of Letter of Credit.....................42
3.3 Fees and Other Charges.........................................42
3.4 L/C Participations.............................................42
3.5 Reimbursement Obligation of the Borrower.......................43
3.6 Obligations Absolute...........................................43
3.7 Letter of Credit Payments......................................44
3.8 Applications...................................................44
SECTION 4. REPRESENTATIONS AND WARRANTIES...................................44
4.1 Financial Condition............................................44
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4.2 No Change......................................................45
4.3 Corporate Existence; Compliance with Law.......................45
4.4 Corporate Power; Authorization; Enforceable Obligations........46
4.5 No Legal Bar...................................................46
4.6 Litigation.....................................................46
4.7 No Default.....................................................46
4.8 Ownership of Property; Liens...................................47
4.9 Intellectual Property..........................................47
4.10 Taxes.........................................................47
4.11 Federal Regulations...........................................47
4.12 Labor Matters.................................................47
4.13 ERISA.........................................................47
4.14 Investment Company Act; Other Regulations.....................48
4.15 Subsidiaries..................................................48
4.16 Use of Proceeds...............................................48
4.17 Environmental Matters.........................................48
4.18 Accuracy of Information, etc..................................49
4.19 Security Documents............................................50
4.20 Solvency......................................................50
4.21 Year 2000 Matters.............................................50
4.22 Senior Indebtedness...........................................51
4.23 Certain Documents.............................................51
SECTION 5. CONDITIONS PRECEDENT.............................................51
5.1 Conditions to Signing Date.....................................51
5.2 Conditions to Effective Date...................................52
5.3 Conditions to Initial Extensions of Credit.....................52
5.4 Conditions to Each Extension of Credit.........................56
SECTION 6. AFFIRMATIVE COVENANTS............................................56
6.1 Financial Statements...........................................56
6.2 Certificates; Other Information................................57
6.3 Payment of Obligations.........................................58
6.4 Maintenance of Existence; compliance...........................58
6.5 Maintenance of Property; Insurance.............................58
6.6 Inspection of Property; Books and Records; Discussions.........58
6.7 Notices........................................................58
6.8 Environmental Laws.............................................59
6.9 Interest Rate Protection.......................................59
6.10 Additional Collateral, etc....................................59
SECTION 7. NEGATIVE COVENANTS...............................................61
7.1 Financial Condition Covenants..................................61
7.2 Indebtedness...................................................62
7.3 Liens..........................................................63
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7.4 Fundamental Changes............................................65
7.5 Disposition of Property........................................65
7.6 Restricted Payments............................................66
7.7 Capital Expenditures...........................................67
7.8 Investments....................................................67
7.9 Optional Payments and Modifications of Senior
Subordinated Notes. .......................................68
7.10 Transactions with Affiliates..................................68
7.11 Sales and Leasebacks..........................................69
7.12 Changes in Fiscal Periods.....................................69
7.13 Negative Pledge Clauses.......................................69
7.14 Lines of Business.............................................69
7.15 Amendments to Spin-Off Documents..............................69
SECTION 8. EVENTS OF DEFAULT................................................69
SECTION 9. THE AGENTS.......................................................73
9.1 Appointment....................................................73
9.2 Delegation of Duties...........................................73
9.3 Exculpatory Provisions.........................................73
9.4 Reliance by Administrative Agent...............................73
9.5 Notice of Default..............................................74
9.6 Non-Reliance on Agents and Other Lenders.......................74
9.7 Indemnification................................................75
9.8 Agent in Its Individual Capacity...............................75
9.9 Successor Administrative Agent.................................75
9.10 Co-Documentation Agents and Syndication Agent.................76
SECTION 10. MISCELLANEOUS...................................................76
10.1 Amendments and Waivers........................................76
10.2 Notices.......................................................77
10.3 No Waiver; Cumulative Remedies................................78
10.4 Survival of Representations and Warranties....................78
10.5 Payment of Expenses and Taxes.................................78
10.6 Successors and Assigns; Participations and Assignments........79
10.7 Adjustments; Set-off..........................................82
10.8 Counterparts..................................................83
10.9 Severability..................................................83
10.10 Integration..................................................83
10.11 GOVERNING LAW................................................83
10.12 Submission To Jurisdiction; Waivers..........................83
10.13 Acknowledgments..............................................84
10.14 Releases of Guarantees and Liens.............................84
10.15 Confidentiality..............................................85
10.16 WAIVERS OF JURY TRIAL........................................85
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ANNEX:
A Pricing Grid
SCHEDULES:
1.1A Commitments
1.1B Mortgaged Property
4.4 Consents, Authorizations, Filings and Notices
4.15 Subsidiaries
4.19(a) UCC Filing Jurisdictions
4.19(b) Mortgage Filing Jurisdictions
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
7.5 Dispositions
7.8(i) Existing Investments
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Mortgage
E Form of Assignment and Acceptance
F Form of Legal Opinion of Jenner & Block (Signing Date)
G Form of Prepayment Option Notice
H Form of Exemption Certificate
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CREDIT AGREEMENT, dated as of September 30, 1999, among
TENNECO INC., a Delaware corporation (the "Borrower"), the several banks and
other financial institutions or entities from time to time parties to this
Agreement (the "Lenders"), COMMERZBANK, AG and BANK OF AMERICA, N.A., as
co-documentation agents (in such capacity, the "Co-Documentation Agents"),
CITICORP USA, INC., as syndication agent (in such capacity, the "Syndication
Agent"), and THE CHASE MANHATTAN BANK, as administrative agent.
RECITALS
1. Pursuant to the Distribution Agreement (such term and the
other capitalized terms used in these recitals having the meaning set forth in
this Agreement unless the context otherwise requires) between the Borrower and
Tenneco Packaging Inc., a Delaware corporation ("Packaging") which is a direct
wholly owned Subsidiary of the Borrower, the Borrower has agreed to separate and
divide the existing businesses of the Borrower so that (a) the Packaging
Business shall be owned directly and indirectly by Packaging, and (b) the
Automotive Business shall be directly and indirectly owned by the Borrower, and
the Borrower will be renamed Tenneco Automotive, Inc. immediately following the
separation and division described above and prior to the distribution described
in the succeeding paragraph.
2. Following the separation and division described in the
preceding paragraph 1 the Borrower shall distribute, as a dividend to the
holders of the shares of its common stock, all of the capital stock of Packaging
(the transactions described in paragraph 1 above and this paragraph 2, as more
particularly described in the Spin-Off SEC Filings (as defined below), the
"Spin-Off").
3. Packaging intends to sell the 43% of the common stock of
Packaging Corporation of America, a Delaware corporation ("PCA"), owned by it to
the public in a registered public offering (the "PCA IPO"). The PCA IPO may
occur before or after the Spin-Off and is not a condition to the Spin-Off.
4. Pursuant to the Distribution Agreement and in connection
with the Spin-Off, certain pre-existing indebtedness of the Borrower and
Packaging and certain of their respective Subsidiaries will be paid in full and
canceled, or realigned through some combination of tender offers, exchange
offers, prepayments and other refinancings (the Spin-Off and the other
transactions to be performed pursuant to and in connection with the Spin-Off,
the "Spin-Off Transactions").
5. The Borrower has requested that the Lenders, the
Co-Documentation Agents, the Administrative Agent and the Syndication Agent
enter this Agreement in order to make available to the Borrower the
$1,550,000,000 credit facilities described herein on the terms and conditions
set forth herein.
The parties hereto hereby agree as follows:
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SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed
in this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in
effect on such day, and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by Chase as its prime
rate in effect at its principal office in New York City (the Prime Rate not
being intended to be the lowest rate of interest charged by Chase in connection
with extensions of credit to debtors). Any change in the ABR due to a change in
the Prime Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate, or
the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is
based upon the ABR.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": Chase, together with its affiliates,
as the arranger of the Commitments and as the administrative agent for the
Lenders under this Agreement and the other Loan Documents, together with any of
its successors.
"Affiliate": as to any Person, any other Person that, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person means
the power, directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Syndication Agent,
the Co-Documentation Agents and the Administrative Agent.
"Aggregate Exposure": with respect to any Lender at any time,
an amount equal to (a) until the Funding Date, the aggregate amount of such
Lender's Commitments at such time and (b) thereafter, the sum of (i) the
aggregate then unpaid principal amount of such Lender's Term Loans and (ii) the
amount of such Lender's Revolving Commitment then in effect or, if the Revolving
Commitments have been terminated, the amount of such Lender's Revolving
Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at
any time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the Aggregate Exposure of all Lenders at such time.
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"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Margin": for each Type of Loan, the rate per annum
set forth under the relevant column heading below:
ABR Loans Eurodollar Loans
Revolving Loans and Swingline Loans 1.75% 2.75%
Tranche A Term Loans 1.75% 2.75%
Tranche B Term Loans 2.25% 3.25%
Tranche C Term Loans 2.50% 3.50%
; provided, that on and after the first Adjustment Date occurring after the
first anniversary of the Funding Date, the Applicable Margin with respect to
Revolving Loans, Swingline Loans and Tranche A Term Loans will be determined
pursuant to the Pricing Grid.
"Applicable Prepayment Percentage": (a) with respect to any
prepayment of the Term Loans required pursuant to Section 2.11(a)(i) in
connection the issuance of any Capital Stock, 50%; (b) with respect to any
prepayment of the Term Loans required pursuant to Section 2.11(a)(i) in
connection with the issuance or incurrence of any Indebtedness (i) 100% if the
Consolidated Leverage Ratio is equal to or more than 3.0 to 1.0 as of the last
day of the most recently ended fiscal quarter, (ii) 75% if the Consolidated
Leverage Ratio is less than 3.0 to 1.0 as of the last day of the most recently
ended fiscal quarter and (iii) 50% if the Consolidated Leverage Ratio is less
than 2.5 to 1.0 as of the last day of the most recently ended fiscal quarter;
(c) with respect to any prepayment of the Term Loans required pursuant to
Section 2.11(b) in connection with any Asset Sale or Recovery Event (i) if the
Borrower's senior unsecured long-term debt rating is at least investment grade
from each of Xxxxx'x Investors Service, Inc. and Standard & Poor's Rating Group
and one of such ratings is higher than BAA3 or BBB-, as applicable, 50% or (ii)
otherwise, 100%; and (d) with respect to any prepayment of the Term Loans
required pursuant to Section 2.11(c) for any fiscal year (i) 75% if the
Consolidated Leverage Ratio is equal to or more than 3.0 to 1.0 as of the last
day of the most recently ended fiscal quarter and (ii) 50% if the Consolidated
Leverage Ratio is less than 3.0 to 1.0 as of the last day of the most recently
ended fiscal quarter.
"Application": an application, in such form as the Issuing
Lender may specify from time to time, requesting the Issuing Lender to open a
Letter of Credit.
"Approved Fund": with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"Asset Sale": any Disposition of property or series of related
Dispositions of property (excluding any such Disposition permitted by clause
(a), (b), (c), (d), (e), (f), (h) or (i) of Section 7.5) that yields Net Cash
Proceeds to the Borrower or any of its Subsidiaries in excess of $2,000,000.
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"Assignee": as defined in Section 10.6(c).
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit E.
"Assignor": as defined in Section 10.6(c).
"Automotive Business": as defined in the Distribution
Agreement.
"Available Revolving Commitment": as to any Revolving Lender
at any time, an amount equal to the excess, if any, of (a) such Lender's
Revolving Commitment then in effect over (b) such Lender's Revolving Extensions
of Credit then outstanding; provided, that in calculating any Lender's Revolving
Extensions of Credit for the purpose of determining such Lender's Available
Revolving Commitment pursuant to Section 2.8(a), the aggregate principal amount
of Swingline Loans then outstanding shall be deemed to be zero.
"Benefitted Lender": as defined in Section 10.7(a).
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower
as a date on which the Borrower requests the relevant Lenders to make Loans
hereunder.
"Business": as defined in Section 4.17(b).
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close, provided, that with respect to notices and determinations in
connection with, and payments of principal and interest on, Eurodollar Loans,
such day is also a day for trading by and between banks in Dollar deposits in
the interbank eurodollar market.
"Capital Expenditures": for any period, with respect to any
Person, the aggregate of all expenditures by such Person and its Subsidiaries
for the acquisition or leasing (pursuant to a capital lease) of fixed or capital
assets or additions to equipment (including replacements, capitalized repairs
and improvements during such period) that should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.
"Capital Lease Obligations": as to any Person, the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
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"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States or any state thereof having combined capital and
surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at least A-1 by Standard & Poor's Ratings Services ("S&P") or P-1 by Xxxxx'x
Investors Service, Inc. ("Moody's"), or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and maturing
within six months from the date of acquisition; (d) repurchase obligations of
any Lender or of any commercial bank satisfying the requirements of clause (b)
of this definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of this
definition; or (g) shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition.
"Chase": The Chase Manhattan Bank.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Co-Documentation Agents": as defined in the preamble hereto.
"Collateral": all property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any Security
Document.
"Commitment": as to any Lender, the sum of the Tranche A Term
Commitment, the Tranche B Term Commitment, the Tranche C Term Commitment and the
Revolving Commitment of such Lender.
"Commitment Fee Rate": 1/2 of 1% per annum; provided, that on
and after the first Adjustment Date occurring after the first anniversary of the
Funding Date, the Commitment Fee Rate will be determined pursuant to the Pricing
Grid.
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"Commonly Controlled Entity": an entity, whether or not
incorporated, that is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential
Information Memorandum dated July 1999 and furnished to the Lenders, as
supplemented by letter dated September 10, 1999 from the Borrower to the
Lenders.
"Consolidated Current Assets": at any date, all amounts (other
than cash and Cash Equivalents) that would, in conformity with GAAP, be set
forth opposite the caption "total current assets" (or any like caption) on a
consolidated balance sheet of the Borrower and its Subsidiaries at such date.
"Consolidated Current Liabilities": at any date, all amounts
that would, in conformity with GAAP, be set forth opposite the caption "total
current liabilities" (or any like caption) on a consolidated balance sheet of
the Borrower and its Subsidiaries at such date, but excluding (a) the current
portion of any Funded Debt of the Borrower and its Subsidiaries and (b) without
duplication of clause (a) above, all Indebtedness consisting of Revolving Loans
or Swingline Loans to the extent otherwise included therein.
"Consolidated EBITDA": for any period, Consolidated Net Income
for such period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the sum
of (a) income tax expense, (b) interest expense, amortization or writeoff of
debt discount and debt issuance costs and commissions, discounts and other fees
and charges associated with Indebtedness (including the Loans), (c) depreciation
and amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (e) any extraordinary, unusual or
non-recurring non-cash expenses or losses (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, non-cash losses on sales of assets outside of the ordinary
course of business), and (f) any other non-cash charges (excluding any such
charge that constitutes an accrual of or a reserve for cash charges for any
future period), and minus, to the extent taken into account in calculating
Consolidated Net Income for such period, the sum of (a) interest income, (b) any
non-cash extraordinary, unusual or non-recurring income or gains (including,
whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, gains on the sales of assets outside of
the ordinary course of business) and (c) any other non-cash income, all as
determined on a consolidated basis. For the purposes of calculating Consolidated
EBITDA for any period of four consecutive fiscal quarters (each, a "Reference
Period") pursuant to any determination of the Consolidated Leverage Ratio, if
during such Reference Period the Borrower or any Subsidiary shall have made a
Material Acquisition, Consolidated EBITDA for such Reference Period shall be
calculated after giving pro forma effect thereto as if such Material Acquisition
occurred on the first day of such Reference Period. As used in this definition,
"Material Acquisition" means any
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acquisition of property or series of related acquisitions of property that (a)
constitutes assets comprising all or substantially all of an operating unit of a
business or constitutes all or substantially all of the common stock of a Person
and (b) involves the payment of consideration by the Borrower and its
Subsidiaries in excess of $5,000,000. Notwithstanding the forgoing, (i) the
Consolidated EBITDA for the fiscal quarters ended June 30, 1999 and September
30, 1999 shall be deemed to be $124,000,000 and $91,000,000, respectively, and
(ii) with respect to the fiscal quarter ended December 31, 1999, Consolidated
EBITDA shall be increased by (x) the amount (such amount not to be in excess of
$55,000,000) of restructuring charges associated with the Borrower's
cost-reduction plan included in the calculation of Consolidated Net Income for
such quarter and (y) the amount (such amount not to be in excess of
$400,000,000) of transaction fees and expenses and debt realignment costs
(including certain taxes related thereto) incurred in connection with the
Spin-Off included in the calculation of Consolidated Net Income for such
quarter.
"Consolidated Fixed Charge Coverage Ratio": for any period,
the ratio of (a) Consolidated EBITDA for such period less the aggregate amount
actually paid by the Borrower and its Subsidiaries during such period on account
of Capital Expenditures to (b) Consolidated Interest Expense for such period.
"Consolidated Interest Coverage Ratio": for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Interest
Expense for such period.
"Consolidated Interest Expense": for any period, total cash
interest expense (including that attributable to Capital Lease Obligations but
net of interest income) of the Borrower and its Subsidiaries for such period
with respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries (including all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers? acceptance financing and net
costs under Hedge Agreements in respect of interest rates to the extent such net
costs are allocable to such period in accordance with GAAP).
"Consolidated Leverage Ratio": as at the last day of any
period, the ratio of (a) Consolidated Total Debt on such day to (b) Consolidated
EBITDA for such period.
"Consolidated Net Income": for any period, the consolidated
net income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the date it
becomes a Subsidiary of the Borrower or is merged into or consolidated with the
Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person
(other than a Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under any Loan
Document) or Requirement of Law applicable to such Subsidiary.
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"Consolidated Total Assets": at any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption "total assets"
(or any like caption) on a consolidated balance sheet of the Borrower and its
Subsidiaries at such date.
"Consolidated Total Debt": at any date, the aggregate
principal amount of all Indebtedness of the Borrower and its Subsidiaries at
such date, determined on a consolidated basis in accordance with GAAP.
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets on such date over Consolidated Current Liabilities
on such date.
"Continuing Directors": the directors of the Borrower on the
Funding Date, after giving effect to the Spin-Off and the other Transactions
contemplated hereby, and each other director, if, in each case, such other
director's nomination for election to the board of directors of the Borrower is
recommended by at least a majority of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Disposition": with respect to any property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other disposition
thereof (other than any transaction for purposes of collateral or security to
the extent permitted hereunder). The terms "Dispose" and "Disposed of" shall
have correlative meanings.
"Distribution Agreement": the Distribution Agreement to be
entered into between the Borrower and Packaging substantially in the form
included in Amendment No.2 to the Form S-4 Filing, as amended, modified or
supplemented from time to time in accordance with Section 7.15.
"Dollars" and "$": dollars in lawful currency of the United
States.
"Domestic Subsidiary": any Subsidiary of the Borrower
organized under the laws of any jurisdiction within the United States.
"Effective Date": the date on which the conditions precedent
set forth in Section 5.2 shall have been satisfied.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
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"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Dow Xxxxx Markets screen as of 11:00 a.m., London time, two
Business Days prior to the beginning of such Interest Period. In the event that
such rate does not appear on Page 3750 of the Dow Xxxxx Markets screen (or
otherwise on such screen), the "Eurodollar Base Rate" shall be determined by
reference to such other comparable publicly available service for displaying
eurodollar rates as may be selected by the Administrative Agent or, in the
absence of such availability, by reference to the rate at which the
Administrative Agent is offered Dollar deposits at or about 11:00 a.m., New York
City time, two Business Days prior to the beginning of such Interest Period in
the interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):
Eurodollar Base Rate
------------------------------------------
1.00 --- Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar
Loans under a particular Facility the then current Interest Periods with respect
to all of which begin on the same date and end on the same later date (whether
or not such Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the
excess, if any, of (a) the sum, without duplication, of (i) Consolidated Net
Income for such fiscal year, (ii) an amount equal to the amount of all non-cash
charges (including depreciation and amortization)
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deducted in arriving at such Consolidated Net Income, (iii) decreases in
Consolidated Working Capital for such fiscal year, and (iv) an amount equal to
the aggregate net non-cash loss on the Disposition of property by the Borrower
and its Subsidiaries during such fiscal year (other than sales of inventory in
the ordinary course of business), to the extent deducted in arriving at such
Consolidated Net Income over (b) the sum, without duplication, of (i) an amount
equal to the amount of all non-cash credits included in arriving at such
Consolidated Net Income, (ii) the aggregate amount actually paid by the Borrower
and its Subsidiaries in cash during such fiscal year on account of Capital
Expenditures (excluding the principal amount of Indebtedness incurred in
connection with such expenditures, any such expenditures financed with the
proceeds of any Reinvestment Deferred Amount and any Capital Expenditures with
respect to which the Borrower delivered a certificate pursuant to the
immediately following clause (iii) in connection with the calculation of Excess
Cash Flow for the last fiscal year), (iii) the aggregate amount of Capital
Expenditures that the Borrower or any of its Subsidiaries became obligated to
make but that are not made during such fiscal year, provided that the Borrower
shall deliver a certificate to the Administrative Agent not later than 90 days
after the end of such fiscal year, signed by a Responsible Officer of the
Borrower and certifying that such Capital Expenditure will be made in the
following fiscal year and the aggregate amount of all such Capital Expenditures
shall not exceed the limitations set forth in Section 7.7 for such fiscal year,
(iv) the net amount of all prepayments of Revolving Loans and Swingline Loans
and other revolving credit facilities during such fiscal year and all optional
prepayments of the Term Loans during such fiscal year, (v) the aggregate amount
of all regularly scheduled principal payments of Funded Debt (including the Term
Loans) of the Borrower and its Subsidiaries made during such fiscal year, (vi)
increases in Consolidated Working Capital for such fiscal year, and (vii) an
amount equal to the aggregate net non-cash gain on the Disposition of property
by the Borrower and its Subsidiaries during such fiscal year (other than sales
of inventory in the ordinary course of business), to the extent included in
arriving at such Consolidated Net Income.
"Excess Cash Flow Application Date": as defined in Section
2.11(c).
"Exchange Act": the Securities Exchange Act of 1934, as
amended.
"Excluded Subsidiary": (i) any Foreign Subsidiary, (ii) any
other Subsidiary if and at such time as the Borrower and its Subsidiaries own
Capital Stock representing less than 80% of the ordinary voting power of such
other Subsidiary, (iii) any Immaterial Subsidiary and (iv) any Finance
Subsidiary if the execution and delivery of any Loan Document by such Finance
Subsidiary would materially adversely affect the treatment of any Permitted
Receivables Financing as a true sale transaction.
"Facility": each of (a) the Tranche A Term Commitments and the
Tranche A Term Loans made thereunder (the "Tranche A Term Facility"), (b) the
Tranche B Term Commitments and the Tranche B Term Loans made thereunder (the
"Tranche B Term Facility"), (c) the Tranche C Term Commitments and the Tranche C
Term Loans made thereunder (the "Tranche C Term Facility"), (d) the Revolving
Commitments and the extensions of credit made thereunder (the "Revolving
Facility"), and (e) each other credit facility that may be added to this
Agreement after the date hereof.
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"Federal Funds Effective Rate": for any day, the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average of
the quotations for the day of such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing selected by it.
"Finance Subsidiary": Tenneco Automotive RSA Company and any
other Wholly Owned Subsidiary of the Borrower that is formed for the sole
purpose of engaging in Permitted Receivables Financings.
"Foreign Subsidiary": any Subsidiary of the Borrower that is
not a Domestic Subsidiary.
"Form S-4 Filing": the Registration Statement on Form S-4
filed by Packaging with the SEC on July 15, 1999 with respect to the Spin-Off
Transactions, as amended from time to time thereafter.
"Form 10 Filing": the General Form for Registration of
Securities on Form 10 filed by Packaging with the SEC on July 15, 1999 with
respect to the Spin-Off Transactions, as amended from time to time thereafter.
"Funded Debt": as to any Person, all Indebtedness of such
Person that matures more than one year from the date of its creation or matures
within one year from such date but is renewable or extendible, at the option of
such Person, to a date more than one year from such date or arises under a
revolving credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year from such date, including
all current maturities and current sinking fund payments in respect of such
Indebtedness whether or not required to be paid within one year from the date of
its creation and, in the case of the Borrower, Indebtedness in respect of the
Loans.
"Funding Date": the date on which the conditions precedent set
forth in Section 5.3 shall have been satisfied.
"Funding Office": the office of the Administrative Agent
specified in Section 10.2 or such other office as may be specified from time to
time by the Administrative Agent as its funding office by written notice to the
Borrower and the Lenders.
"GAAP": generally accepted accounting principles in the United
States as in effect from time to time, except that for purposes of Section 7.1
and the definition of "Applicable Prepayment Percentage," GAAP shall be
determined on the basis of such principles in effect on the date hereof and
consistent with those used in the preparation of the most recent audited
financial statements delivered pursuant to Section 4.1, provided that, if the
Borrower notifies the Administrative Agent within one year after the
effectiveness of any applicable Accounting Change (as defined below) that the
Borrower requests an amendment to any provision hereof to eliminate the effect
of such Accounting Change or in the application thereof
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on the operation of such provision (or if the Administrative Agent notifies the
Borrower within one year after the effectiveness of any such Accounting Change
that the Administrative Agent requests an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given before or after
such Accounting Change or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied immediately before
such Accounting Change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith. "Accounting
Change" refers to a change after the date hereof in accounting principles
required by the promulgation of any rule, regulation, pronouncement or opinion
by the Financial Accounting Standards Board of the American Institute of
Certified Public Accountants or, if applicable, the SEC.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Granting Bank": as defined in Section 10.6(d).
"Guarantee and Collateral Agreement": the Guarantee and
Collateral Agreement to be executed and delivered by the Borrower and each
Subsidiary Guarantor, substantially in the form of Exhibit A, as the same may be
amended, supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including any bank under any letter of credit) to induce the creation of which
the guaranteeing person has issued a reimbursement, counter indemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or
(2) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such
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guaranteeing person?s maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
"Guarantors": the collective reference to the Subsidiary
Guarantors and any other Person that guarantees payment of all or a portion of
the Obligations.
"Hedge Agreements": all interest rate swaps, caps or collar
agreements or similar arrangements dealing with interest rates or currency
exchange rates or the exchange of nominal interest obligations, either generally
or under specific contingencies.
"Immaterial Subsidiary": at any time, any Domestic Subsidiary
of the Borrower having total assets (as determined in accordance with GAAP) in
an amount of less than 1% of Consolidated Total Assets of the Borrower and its
Domestic Subsidiaries; provided, however, that the total assets (as so
determined) of all Immaterial Subsidiaries shall not exceed 5% of Consolidated
Total Assets of the Borrower and its Domestic Subsidiaries. In the event that
total assets of all Immaterial Subsidiaries exceed 5% of Consolidated Total
Assets of the Borrower and its Domestic Subsidiaries, the Borrower will
designate Domestic Subsidiaries which would otherwise constitute Immaterial
Subsidiaries to be excluded as Immaterial Subsidiaries until such 5% threshold
is met.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than any such obligations incurred in the ordinary course of
such Person?s business maturing less than one (1) year from the creation
thereof), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments (other than an operating lease,
synthetic lease or similar arrangement), (d) for the purposes of Sections 7.2
and 8(e) only, all indebtedness created or arising under any conditional sale or
other title retention agreement (other than an operating lease) with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) for the purposes of Sections 7.2 and
8(e) only, all Capital Lease Obligations of such Person, (f) for the purposes of
Sections 7.2 and 8(e) only, all obligations of such Person, contingent or
otherwise, as an account party under acceptances, surety bonds or similar
arrangements (other than obligations arising out of endorsements of instruments
for deposit or collection in the ordinary course of business), (g) all unpaid
reimbursement obligations of such Person in respect of drawings under letters of
credit and, for purposes of Sections 7.2 and 8(e) only, the face amount of all
letters of credit issued for the account of such Person, (h) for the purposes of
Sections 7.2 and 8(e) only, all Guarantee Obligations of such Person in respect
of obligations of the kind referred to in clauses (a) through (f) above, (i)
without limitation of the foregoing, all obligations of the kind referred to in
clauses (a) through (h) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured by) any
Lien on property (including accounts and contract rights) owned by such Person,
whether or not such Person has assumed or become liable for the payment of such
obligation, provided that the amount of any such obligation shall be deemed to
be the lesser of the face principal amount thereof and the fair market value of
the property subject to such Lien and (j) for the purposes of Sections 7.2 and
8(e) only, all obligations of such Person in respect of Hedge Agreements.
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"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including copyrights, copyright licenses, patents, patent licenses, trademarks,
trademark licenses, technology, know-how and processes, and all rights to xxx at
law or in equity for any infringement or other impairment thereof, including the
right to receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer
than three months, each day that is three months, or a whole multiple thereof,
after the first day of such Interest Period and the last day of such Interest
Period and (d) as to any Loan (other than any Revolving Loan that is an ABR Loan
and any Swingline Loan), the date of any repayment or prepayment made in respect
thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last day of
the then current Interest Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding
Business Day;
(ii) the Borrower may not select an Interest Period
under a particular Facility that would extend beyond the Revolving
Termination Date or beyond the date final payment is due on the Tranche
A Term Loans, the Tranche B Term Loans or the Tranche C Term Loans, as
the case may be;
(iii) any Interest Period that 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
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month at the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"Investments": as defined in Section 7.8.
"Issuing Lender": Chase, Chase Manhattan Bank (Delaware) or
any other Lender which agrees to act as an Issuing Lender hereunder, in its
capacity as issuer of any Letter of Credit.
"Joint Venture": any Person in which the Borrower and/or its
Subsidiaries hold less than a majority of the Capital Stock, and which does not
constitute a Subsidiary of the Borrower, whether direct or indirect.
"L/C Fee Payment Date": the last day of each March, June,
September and December and the last day of the Revolving Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit that have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": the collective reference to all the
Revolving Lenders other than the Issuing Lender.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Security Documents and
the Notes.
"Loan Parties": the Borrower and each Subsidiary of the
Borrower that is a party to a Loan Document.
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the Term
Loans or the Total Revolving
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Extensions of Credit, as the case may be, outstanding under such Facility (or,
in the case of the Revolving Facility, prior to any termination of the Revolving
Commitments, the holders of more than 50% of the Total Revolving Commitments).
"Material Adverse Effect": a material adverse effect on (a)
the Transaction or (b) the business, property, operations or condition
(financial or otherwise) of the Borrower and its Subsidiaries taken as a whole,
after giving effect to the Spin-Off Transactions.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.
"Mortgaged Properties": the real properties listed on Schedule
1.1B, as to which the Administrative Agent for the benefit of the Lenders shall
be granted a Lien pursuant to the Mortgages, and any other real properties
required to be mortgaged pursuant to Section 6.10.
"Mortgages": each of the mortgages and deeds of trust made by
any Loan Party in favor of, or for the benefit of, the Administrative Agent for
the benefit of the Lenders, substantially in the form of Exhibit D (with such
changes thereto as shall be advisable under the law of the jurisdiction in which
such mortgage or deed of trust is to be recorded), as the same may be amended,
supplemented or otherwise modified from time to time.
"Multiemployer Plan": a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such Asset
Sale or Recovery Event, net of attorneys? fees, accountants? fees, investment
banking fees, amounts required to be applied to the repayment of Indebtedness
secured by a Lien expressly permitted hereunder on any asset that is the subject
of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security
Document) and other fees and expenses actually incurred in connection therewith
and net of taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any available tax credits or deductions and any tax
sharing arrangements) and (b) in connection with any issuance or sale of Capital
Stock or any incurrence of Indebtedness, the cash proceeds received from such
issuance or incurrence, net of attorneys? fees, investment banking fees,
accountants? fees, underwriting discounts and commissions and other fees and
expenses actually incurred in connection therewith.
"Non-Excluded Taxes": as defined in Section 2.19(a).
"Non-U.S. Lender": as defined in Section 2.19(d).
"Notes": the collective reference to any promissory note
evidencing Loans.
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"Obligations": the unpaid principal of and interest on
(including interest accruing after the maturity of the Loans and Reimbursement
Obligations and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans and all other
obligations and liabilities of the Borrower to the Administrative Agent or to
any Lender (or, in the case of Hedge Agreements, any affiliate of any Lender),
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any other Loan Document, the Letters of Credit, any Hedge
Agreement entered into with any Lender or any affiliate of any Lender or any
other document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including all fees, charges and disbursements of
counsel to the Administrative Agent or to any Lender that are required to be
paid by the Borrower pursuant hereto) or otherwise.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder (exclusive of any franchise tax
or any tax assessment on the overall net income of a recipient) or from the
execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document.
"Packaging": as defined in the recitals hereto.
"Packaging Business": as defined in the Distribution
Agreement.
"Participant": as defined in Section 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"PCA": as defined in the recitals hereto.
"PCA IPO": as defined in the recitals hereto.
"Permitted Receivables Financing": (a) any sale by the
Borrower or a Domestic Subsidiary of accounts receivable to a Finance Subsidiary
intended to be (and which shall be treated for the purposes hereof as) a true
sale transaction with customary limited recourse based upon the collectibility
of the receivables sold and the corresponding sale or pledge of such accounts
receivable (or an interest therein) by the Finance Subsidiary, in each case
without any guarantee by the Borrower or any other Subsidiary thereof ,
provided, however, that (i) the terms, conditions and structure (including the
legal and organizational structure of the Finance Subsidiary and the
restrictions imposed on its activities) of and the documentation incident to any
such transactions entered into after the date hereof must be reasonably
acceptable to the Administrative Agent and (b) any sale or financing by any
Foreign Subsidiary to or with local buyers or lenders of accounts receivable in
the ordinary course of business, in each case without any guarantee by the
Borrower or any Domestic Subsidiary. The aggregate principal amount of
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the receivables sold or financed and which remain uncollected in all
transactions described in the preceding clauses (a) and (b) will not exceed
$150,000,000 at any time and from time to time.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan": at a particular time, any employee benefit plan that
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Pro Forma Balance Sheet": as defined in Section 4.1(a).
"Properties": as defined in Section 4.17(a).
"Recovery Event": any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding relating
to any asset of the Borrower or any of its Subsidiaries.
"Refunded Swingline Loans": as defined in Section 2.7.
"Refunding Date": as defined in Section 2.7.
"Register": as defined in Section 10.6(e).
"Regulation U": Regulation U of the Board as in effect from
time to time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Reinvestment Deferred Amount": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the Borrower or
any of its Subsidiaries in connection therewith that are not applied to prepay
the Term Loans or reduce the Term Commitments pursuant to Section 2.11(b) as a
result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in
respect of which the Borrower has delivered a Reinvestment Notice and for which
the Borrower or a Subsidiary has received the Net Cash Proceeds.
"Reinvestment Notice": a written notice executed by a
Responsible Officer stating that no Event of Default has occurred and is
continuing and that the Borrower (directly or indirectly through a Subsidiary)
intends and expects to use all or a specified portion of the Net Cash Proceeds
of an Asset Sale or Recovery Event to acquire assets useful in its business.
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"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended prior to the relevant Reinvestment Prepayment Date to acquire
assets useful in the Borrower's business.
"Reinvestment Prepayment Date": with respect to any
Reinvestment Event, the earlier of (a) the date occurring 12 months after such
Reinvestment Event and (b) the date on which the Borrower shall have determined
not to acquire assets useful in the Borrower's business with all or any portion
of the relevant Reinvestment Deferred Amount.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of
PBGC Reg. sec. 4043.
"Required Lenders": at any time, the holders of more than 50%
of (a) until the Funding Date, the Commitments then in effect and (b)
thereafter, the sum of (i) the aggregate unpaid principal amount of the Term
Loans then outstanding and (ii) the Total Revolving Commitments then in effect
or, if the Revolving Commitments have been terminated, the Total Revolving
Extensions of Credit then outstanding.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the chief executive officer, president
or chief financial officer of the Borrower or any other applicable Loan Party,
but in any event, with respect to financial matters, the chief financial
officer, Treasurer and Controller of the Borrower or such Loan Party, as the
case may be.
"Restricted Payments": as defined in Section 7.6.
"Revolving Commitment": as to any Lender, the obligation of
such Lender, if any, to make Revolving Loans and participate in Swingline Loans
and Letters of Credit in an aggregate principal and/or face amount not to exceed
the amount set forth under the heading "Revolving Commitment" opposite such
Lender's name on Schedule 1.1A or in the Assignment and Acceptance pursuant to
which such Lender became a party hereto, as the same may be changed from time to
time pursuant to the terms hereof. The original amount of the Total Revolving
Commitments is $500,000,000.
"Revolving Commitment Period": the period from and including
the Funding Date to the Revolving Termination Date.
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"Revolving Extensions of Credit": as to any Revolving Lender
at any time, an amount equal to the sum of (a) the aggregate principal amount of
all Revolving Loans held by such Lender then outstanding, (b) such Lender's
Revolving Percentage of the L/C Obligations then outstanding and (c) such
Lender's Revolving Percentage of the aggregate principal amount of Swingline
Loans then outstanding.
"Revolving Lender": each Lender that has a Revolving
Commitment or that holds Revolving Loans.
"Revolving Loans": as defined in Section 2.4(a).
"Revolving Percentage": as to any Revolving Lender at any
time, the percentage which such Lender's Revolving Commitment then constitutes
of the Total Revolving Commitments (or, at any time after the Revolving
Commitments shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Revolving Loans then outstanding constitutes
of the aggregate principal amount of the Revolving Loans then outstanding).
"Revolving Termination Date": the date which is the sixth
anniversary of the Funding Date.
"SEC": the Securities and Exchange Commission, any successor
thereto and any analogous Governmental Authority.
"Security Documents": the collective reference to the
Guarantee and Collateral Agreement and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any property of any
Person to secure the obligations and liabilities of any Loan Party under any
Loan Document.
"Senior Subordinated Note Indenture": the Indenture to be
entered into by the Borrower and certain of its Subsidiaries in connection with
the issuance of the Senior Subordinated Notes, which shall contain the terms set
forth in the Preliminary Offering Memorandum therefor, with such changes as are
approved by the Administrative Agent, such approval not to unreasonably
withheld, together with all instruments and other agreements entered into by the
Borrower or such Subsidiaries in connection therewith, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
Section 7.9.
"Senior Subordinated Notes": the subordinated notes of the
Borrower issued on the Funding Date pursuant to the Senior Subordinated Note
Indenture.
"Signing Date": the date on which the conditions precedent set
forth in Section 5.1 shall have been satisfied.
"Single Employer Plan": any Plan that is covered by Title IV
of ERISA, but that is not a Multiemployer Plan.
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"Solvent": when used with respect to any Person, means that,
as of any date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person will, as of such date, exceed the amount of
all "liabilities of such Person, contingent or otherwise", as of such date, as
such quoted terms are determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim," and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
"SPC": as defined in Section 10.6(d).
"Specified Change of Control": a "Change of Control" as
defined in the Senior Subordinated Note Indenture.
"Spin-Off": as defined in the recitals hereto.
"Spin-Off Documents": collectively (i) the Distribution
Agreement and all schedules, exhibits and annexes thereto and all side letters
and agreements affecting the terms thereof or entered into in connection
therewith and (ii) the Ancillary Agreements (as defined in the Distribution
Agreement as in effect on the date hereof, in each case as amended, supplemented
or otherwise modified from time to time in accordance with Section 7.15.
"Spin-Off SEC Filings": the collective reference to the Form
S-4 Filing and the Form 10 Filing.
"Spin-Off Transactions": as defined in the recitals hereto.
"Stub Debt": as defined in subsection 2.11(a)(iv)
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified (i)
all references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower and (ii) each Finance
Subsidiary shall be deemed not to be a Subsidiary of the Borrower.
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"Subsidiary Guarantor": each Subsidiary of the Borrower other
than any Excluded Subsidiary.
"Swingline Commitment": the obligation of the Swingline Lender
to make Swingline Loans pursuant to Section 2.6 in an aggregate principal amount
at any one time outstanding not to exceed $50,000,000.
"Swingline Lender": Chase, in its capacity as the lender of
Swingline Loans.
"Swingline Loans": as defined in Section 2.6.
"Swingline Participation Amount": as defined in Section 2.7.
"Syndication Agent": as defined in the preamble hereto.
"Term Commitments": the collective reference to the Tranche A
Term Commitments, the Tranche B Term Commitments and the Tranche C Term
Commitments of the Lenders.
"Term Lenders": the collective reference to the Tranche A Term
Lenders, the Tranche B Term Lenders and the Tranche C Term Lenders.
"Term Loans": the collective reference to the Tranche A Term
Loans, Tranche B Term Loans and Tranche C Term Loans.
"Total Revolving Commitments": at any time, the aggregate
amount of the Revolving Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the
aggregate amount of the Revolving Extensions of Credit of the Revolving Lenders
outstanding at such time.
"Tranche A Final Maturity Date": the date which is the sixth
anniversary of the Funding Date.
"Tranche A Term Commitment": as to any Lender, the obligation
of such Lender, if any, to make a Tranche A Term Loan to the Borrower hereunder
in a principal amount not to exceed the amount set forth under the heading
"Tranche A Term Commitment" opposite such Lender's name on Schedule 1.1A. The
original aggregate amount of the Tranche A Term Commitments is $450,000,000.
"Tranche A Term Lender": each Lender that has a Tranche A Term
Commitment or is the holder of a Tranche A Term Loan.
"Tranche A Term Loan": as defined in Section 2.1.
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"Tranche A Term Percentage": as to any Tranche A Term Lender
at any time, the percentage which such Lender's Tranche A Term Commitment then
constitutes of the aggregate Tranche A Term Commitments (or, at any time after
the Funding Date, the percentage which the aggregate principal amount of such
Lender's Tranche A Term Loans then outstanding constitutes of the aggregate
principal amount of the Tranche A Term Loans then outstanding).
"Tranche B Final Maturity Date": the date which is the eighth
anniversary of the Funding Date.
"Tranche B Term Commitment": as to any Lender, the obligation
of such Lender, if any, to make a Tranche B Term Loan to the Borrower hereunder
in a principal amount not to exceed the amount set forth under the heading
"Tranche B Term Commitment" opposite such Lender's name on Schedule 1.1A. The
original aggregate amount of the Tranche B Term Commitments is $300,000,000.
"Tranche B Term Lender": each Lender that has a Tranche B Term
Commitment or that holds a Tranche B Term Loan.
"Tranche B Term Loan": as defined in Section 2.1.
"Tranche B Term Percentage": as to any Tranche B Term Lender
at any time, the percentage which such Lender's Tranche B Term Commitment then
constitutes of the aggregate Tranche B Term Commitments (or, at any time after
the Funding Date, the percentage which the aggregate principal amount of such
Lender's Tranche B Term Loans then outstanding constitutes of the aggregate
principal amount of the Tranche B Term Loans then outstanding); provided, that
solely for purposes of calculating the amount of each installment of Tranche B
Term Loans (other than the last installment) payable to a Tranche B Term Lender,
such Term Lender's Tranche B Term Percentage shall be calculated without giving
effect to any portion of any prior mandatory or optional prepayment attributable
to such Term Lender's Tranche B Term Loans that shall have been declined by such
Term Lender (or, in the case of any Term Lender that shall have acquired its
Tranche B Term Loans by assignment from another Person, by such other Person).
"Tranche C Final Maturity Date": the date which is eight and
one-half years after the Funding Date.
"Tranche C Term Commitment": as to any Lender, the obligation
of such Lender, if any, to make a Tranche C Term Loan to the Borrower hereunder
in a principal amount not to exceed the amount set forth under the heading
"Tranche C Term Commitment" opposite such Lender's name on Schedule 1.1A. The
original aggregate amount of the Tranche C Term Commitments is $300,000,000.
"Tranche C Term Lender": each Lender that has a Tranche C Term
Commitment or that holds a Tranche C Term Loan.
"Tranche C Term Loan": as defined in Section 2.1.
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"Tranche C Term Percentage": as to any Tranche C Term Lender
at any time, the percentage which such Lender's Tranche C Term Commitment then
constitutes of the aggregate Tranche C Term Commitments (or, at any time after
the Funding Date, the percentage which the aggregate principal amount of such
Lender's Tranche C Term Loans then outstanding constitutes of the aggregate
principal amount of the Tranche C Term Loans then outstanding); provided, that
solely for purposes of calculating the amount of each installment of Tranche C
Term Loans (other than the last installment) payable to a Tranche C Term Lender,
such Term Lender's Tranche C Term Percentage shall be calculated without giving
effect to any portion of any prior mandatory or optional prepayment attributable
to such Term Lender's Tranche C Term Loans that shall have been declined by such
Term Lender (or, in the case of any Term Lender that shall have acquired its
Tranche C Term Loans by assignment from another Person, by such other Person).
"Transaction": the collective reference to (i) the Spin-Off
and the other Spin-Off Transactions (exclusive of the PCA IPO), (ii) the
issuance of the Senior Subordinated Notes and the use of the proceeds thereof
and (iii) the entering into, and creating security interests in Collateral
under, the Loan Documents and the use of the proceeds of the Loans.
"Transferee": any Assignee or Participant.
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"United States": the United States of America.
"Wholly Owned Subsidiary": as to any Person, any other Person
all of the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other Wholly
Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor
that is a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP, (ii)
the words "include," "includes" and "including" shall be deemed to be followed
by the phrase "without limitation," (iii) the word "incur" shall be construed to
mean incur, create, issue, assume, become liable in respect of or suffer to
exist (and the words "incurred" and "incurrence" shall have correlative
meanings), and (iv) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, Capital Stock, securities, revenues,
accounts, leasehold interests and contract rights.
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(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Commitments. Subject to the terms and conditions
hereof, (a) each Tranche A Term Lender severally agrees to make a term loan (a
"Tranche A Term Loan") to the Borrower on the Funding Date in an amount
requested by the Borrower not to exceed the amount of the Tranche A Term
Commitment of such Lender, (b) each Tranche B Term Lender severally agrees to
make a term loan (a "Tranche B Term Loan") to the Borrower on the Funding Date
in an amount requested by the Borrower not to exceed the amount of the Tranche B
Term Commitment of such Lender and (c) each Tranche C Term Lender severally
agrees to make a term loan (a "Tranche C Term Loan") to the Borrower on the
Funding Date in an amount requested by the Borrower not to exceed the amount of
the Tranche C Term Commitment of such Lender. The Term Loans may from time to
time be Eurodollar Loans or ABR Loans, as determined by the Borrower and
notified to the Administrative Agent in accordance with Sections 2.2 and 2.12.
2.2 Procedure for Term Loan Borrowing. The Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 10:00 a.m., New York City time, one Business
Day prior to the anticipated Funding Date in the case of ABR Loans or three
Business Days prior to the anticipated Funding Date in the case of Eurodollar
Loans) requesting that the Term Lenders make the Term Loans on the Funding Date
and specifying the amount to be borrowed. Upon receipt of such notice the
Administrative Agent shall promptly notify each Term Lender thereof. Not later
than 12:00 Noon, New York City time, on the Funding Date each Term Lender shall
make available to the Administrative Agent at the Funding Office an amount in
immediately available funds equal to the Term Loan or Term Loans to be made by
such Lender. The Administrative Agent shall credit the account of the Borrower
on the books of such office of the Administrative Agent with the aggregate of
the amounts made available to the Administrative Agent by the Term Lenders in
immediately available funds. The proceeds of the Term Loans will then be
promptly made available to the Borrower by the Administrative Agent by wire
transfer in accordance with written instructions provided to the Administrative
Agent by the Borrower.
2.3 Repayment of Term Loans. (a) The Tranche A Term Loan of
each Tranche A Lender shall be payable in 18 consecutive equal quarterly
installments, commencing on September 30, 2001, with the last installment being
made on the Revolving Termination Date, each of which installments shall be in
an amount equal to such Lender's Tranche A Term Percentage multiplied by the
amount of $25,000,000.
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(b) The Tranche B Term Loan of each Tranche B Term Lender
shall be payable in 26 consecutive quarterly installments, commencing on
September 30, 2001, each of which shall be in an amount equal to such Lender's
Tranche B Term Percentage multiplied by the amount set forth below opposite such
installment:
Installment Amount Installment Amount
September 30, 2001 $750,000 March 31, 2005 $750,000
December 31, 2001 $750,000 June 30, 2005 $750,000
September 30, 2005 $750,000
March 31, 2002 $750,000 December 31, 2005 $750,000
June 30, 2002 $750,000
September 30, 2002 $750,000 March 31, 2006 $750,000
December 31, 2002 $750,000 June 30, 2006 $750,000
September 30, 2006 $750,000
March 31, 2003 $750,000 December 31, 2006 $750,000
June 30, 2003 $750,000
September 30, 2003 $750,000 March 31, 2007 $70,875,000
December 31, 2003 $750,000 June 30, 2007 $70,875,000
September 30, 2007 $70,875,000
March 31, 2004 $750,000 Tranche B Final Maturity Date $70,875,000
June 30, 2004 $750,000
September 30, 2004 $750,000
December 31, 2004 $750,000
(c) The Tranche C Term Loan of each Tranche C Term Lender
shall be payable in 28 consecutive quarterly installments, commencing on
September 30, 2001, each of which shall be in an amount equal to such Lender's
Tranche C Term Percentage multiplied by the amount set forth below opposite such
installment:
Installment Amount Installment Amount
September 30, 2001 $750,000 March 31, 2005 $750,000
December 31, 2001 $750,000 June 30, 2005 $750,000
September 30, 2005 $750,000
March 31, 2002 $750,000 December 31, 2005 $750,000
June 30, 2002 $750,000
September 30, 2002 $750,000 March 31, 2006 $750,000
December 31, 2002 $750,000 June 30, 2006 $750,000
September 30, 2006 $750,000
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March 31, 2003 $750,000 December 31, 2006 $750,000
June 30, 2003 $750,000
September 30, 2003 $750,000 March 31, 2007 $750,000
December 31, 2003 $750,000 June 30, 2007 $750,000
September 30, 2007 $750,000
March 31, 2004 $750,000 December 31, 2007 $750,000
June 30, 2004 $750,000
September 30, 2004 $750,000 March 31, 2008 $140,250,000
December 31, 2004 $750,000 Tranche C Final Maturity Date $140,250,000
(d) In the event the Tranche A Term Commitments, Tranche B
Term Commitments or Tranche C Term Commitments are reduced on or prior to the
Funding Date in accordance with Section 2.11(a) or (b), each of the applicable
principal installment amounts set forth in this Section 2.3 shall be ratably
reduced.
2.4 Revolving Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Lender severally agrees to make revolving
credit loans ("Revolving Loans") to the Borrower from time to time at the
Borrower's request during the Revolving Commitment Period in an aggregate
principal amount at any one time outstanding which, when added to such Lender's
Revolving Percentage of the sum of (i) the L/C Obligations then outstanding and
(ii) the aggregate principal amount of the Swingline Loans then outstanding does
not exceed the amount of such Lender's Revolving Commitment. During the
Revolving Commitment Period the Borrower may use the Revolving Commitments by
borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing,
all in accordance with the terms and conditions hereof. The Revolving Loans may
from time to time be Eurodollar Loans or ABR Loans, as determined by the
Borrower and notified to the Administrative Agent in accordance with Sections
2.5 and 2.12.
(b) The Borrower shall repay all outstanding Revolving Loans
on the Revolving Termination Date.
2.5 Procedure for Revolving Loan Borrowing. The Borrower may
borrow under the Revolving Commitments during the Revolving Commitment Period on
any Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
(a) prior to 12:00 Noon, New York City time, three Business Days prior to the
requested Borrowing Date, in the case of Eurodollar Loans, or (b) prior to 12:00
Noon, New York City time one Business Day prior to the requested Borrowing Date
(or, if same day borrowing is requested, prior to 10:00 a.m., New York City
time, on the requested Borrowing Date), in the case of ABR Loans), specifying
(i) the amount and Type of Revolving Loans to be borrowed, (ii) the requested
Borrowing Date and (iii) in the case of Eurodollar Loans, the respective amounts
of each such Type of Loan and the respective lengths of the initial Interest
Period therefor. Each borrowing under the Revolving Commitments shall be in an
amount equal to (x) in the case of ABR Loans, $1,000,000 or a whole multiple
thereof (or, if the then aggregate Available Revolving Commitments are less than
$1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$5,000,000 or a whole multiple of
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$1,000,000 in excess thereof; provided, that the Swingline Lender may request,
on behalf of the Borrower, borrowings under the Revolving Commitments that are
ABR Loans in other amounts pursuant to Section 2.7. Upon receipt of any such
notice from the Borrower, the Administrative Agent shall promptly notify each
Revolving Lender thereof. Each Revolving Lender will make the amount of its pro
rata share of each borrowing available to the Administrative Agent for the
account of the Borrower at the Funding Office prior to 12:00 Noon, New York City
time, on the Borrowing Date requested by the Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent crediting the account of
the Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Revolving Lenders and in like funds
as received by the Administrative Agent.
2.6 Swingline Commitment. (a) Subject to the terms and
conditions hereof, the Swingline Lender agrees to make a portion of the credit
otherwise available to the Borrower under the Revolving Commitments from time to
time during the Revolving Commitment Period by making swing line loans
("Swingline Loans") to the Borrower; provided that (i) the aggregate principal
amount of Swingline Loans outstanding at any time shall not exceed the Swingline
Commitment then in effect (notwithstanding that the Swingline Loans outstanding
at any time, when aggregated with the Swingline Lender's other outstanding
Revolving Loans hereunder, may exceed the Swingline Commitment then in effect)
and (ii) the Borrower shall not request, and the Swingline Lender shall not
make, any Swingline Loan if, after giving effect to the making of such Swingline
Loan, the aggregate amount of the Available Revolving Commitments would be less
than zero. During the Revolving Commitment Period, the Borrower may use the
Swingline Commitment by borrowing, repaying and reborrowing, all in accordance
with the terms and conditions hereof. Swingline Loans shall be ABR Loans only.
(b) The Borrower shall repay all outstanding Swingline Loans
on the Revolving Termination Date.
2.7 Procedure for Swingline Borrowing; Refunding of Swingline
Loans. (a) Whenever the Borrower desires that the Swingline Lender make
Swingline Loans it shall give the Swingline Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swingline Lender not later than 1:00 p.m., New York City time, on the proposed
Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested
Borrowing Date (which shall be a Business Day during the Revolving Commitment
Period). Each borrowing under the Swingline Commitment shall be in an amount
equal to $100,000 or a whole multiple of $100,000 in excess thereof. Not later
than 3:00 p.m., New York City time, on the Borrowing Date specified in a notice
in respect of Swingline Loans, the Swingline Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately available
funds equal to the amount of the Swingline Loan to be made by the Swingline
Lender. The Administrative Agent shall make the proceeds of such Swingline Loan
available to the Borrower on such Borrowing Date by depositing such proceeds in
the account of the Borrower with the Administrative Agent on such Borrowing Date
in immediately available funds.
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(b) The Swingline Lender, at any time and from time to time in
its sole and absolute discretion may, on behalf of the Borrower (which hereby
irrevocably directs the Swingline Lender to act on its behalf), on one Business
Day's notice given by the Swingline Lender no later than 12:00 Noon, New York
City time, request each Revolving Lender to make, and each Revolving Lender
hereby agrees to make, a Revolving Loan, in an amount equal to such Revolving
Lender's Revolving Percentage of the aggregate amount of the Swingline Loans
(the "Refunded Swingline Loans") outstanding on the date of such notice, to
repay the Swingline Lender. Each Revolving Lender shall make the amount of such
Revolving Loan available to the Administrative Agent at the Funding Office in
immediately available funds, not later than 10:00 a.m., New York City time, one
Business Day after the date of such notice. The proceeds of such Revolving Loans
shall be immediately made available by the Administrative Agent to the Swingline
Lender for application by the Swingline Lender to the repayment of the Refunded
Swingline Loans. The Borrower irrevocably authorizes the Swingline Lender to
charge the Borrower's accounts with the Administrative Agent (up to the amount
available in each such account) in order to immediately pay the amount of such
Refunded Swingline Loans to the extent amounts received from the Revolving
Lenders are not sufficient to repay in full such Refunded Swingline Loans.
(c) If prior to the time a Revolving Loan would have otherwise
been made pursuant to Section 2.7(b), one of the events described in Section
8(f) shall have occurred and be continuing with respect to the Borrower or if
for any other reason, as determined by the Swingline Lender in its sole
discretion, Revolving Loans may not be made as contemplated by Section 2.7(b),
each Revolving Lender shall, on the date such Revolving Loan was to have been
made pursuant to the notice referred to in Section 2.7(b) (the "Refunding
Date"), purchase for cash an undivided participating interest in the then
outstanding Swingline Loans by paying to the Swingline Lender an amount (the
"Swingline Participation Amount") equal to (i) such Revolving Lender's Revolving
Percentage times (ii) the sum of the aggregate principal amount of Swingline
Loans then outstanding that were to have been repaid with such Revolving Loans.
(d) Whenever, at any time after the Swingline Lender has
received from any Revolving Lender such Lender's Swingline Participation Amount,
the Swingline Lender receives any payment on account of the Swingline Loans, the
Swingline Lender will distribute to such Lender its Swingline Participation
Amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participating interest was outstanding
and funded and, in the case of principal and interest payments, to reflect such
Lender's pro rata portion of such payment if such payment is not sufficient to
pay the principal of and interest on all Swingline Loans then due); provided,
however, that in the event that such payment received by the Swingline Lender is
required to be returned, such Revolving Lender will return to the Swingline
Lender any portion thereof previously distributed to it by the Swingline Lender.
(e) Each Revolving Lender's obligation to make the Loans
referred to in Section 2.7(b) and to purchase participating interests pursuant
to Section 2.7(c) shall be absolute and unconditional and shall not be affected
by any circumstance, including (i) any setoff, counterclaim, recoupment, defense
or other right that such Revolving Lender or the Borrower may have against the
Swingline Lender, the Borrower or any other Person for any reason
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whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the failure to satisfy any of the other conditions specified in
Section 5; (iii) any adverse change in the condition (financial or otherwise) of
the Borrower; (iv) any breach of this Agreement or any other Loan Document by
the Borrower, any other Loan Party or any other Revolving Lender; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
2.8 Commitment Fees, etc. (a) The Borrower agrees to pay to
the Administrative Agent for the account of each Lender a commitment fee for the
period from and including the Signing Date to the last day of the Revolving
Commitment Period, computed at the Commitment Fee Rate on the average daily
unused portion of (i) the Revolving Commitment, the Tranche A Term Commitment,
the Tranche B Term Commitment and the Tranche C Term Commitment of such Lender
prior to the Funding Date and (ii) the Available Revolving Commitment of such
Lender thereafter, in each case during the period for which payment is made,
payable on the Funding Date and thereafter quarterly in arrears on the last day
of each March, June, September and December and on the Revolving Termination
Date, commencing on the first of such dates to occur after the Funding Date.
(b) The Borrower agrees to pay to the Administrative Agent the
fees in the amounts and on the dates previously agreed to in writing by the
Borrower and the Administrative Agent.
2.9 Termination or Reduction of Commitments. (a) The Borrower
shall have the right prior to the Funding Date, upon not less than three
Business Days'R notice to the Administrative Agent, to terminate the Tranche A
Term Commitments, the Tranche B Term Commitments and/or the Tranche C Term
Commitments or, from time to time, to reduce the amount of the Tranche A Term
Commitments, Tranche B Term Commitments or Tranche C Term Commitments. Any such
reduction shall be in an amount equal to $1,000,000 or a whole multiple thereof
and shall permanently reduce the applicable Commitments then in effect.
(b) The Borrower shall have the right, upon not less than
three Business Days' notice to the Administrative Agent, to terminate the
Revolving Commitments or, from time to time, to reduce the amount of the
Revolving Commitments; provided that no such termination or reduction of
Revolving Commitments shall be permitted if, after giving effect thereto and to
any prepayments of the Revolving Loans and Swingline Loans made on the effective
date thereof, the Total Revolving Extensions of Credit would exceed the Total
Revolving Commitments. Any such reduction shall be in an amount equal to
$1,000,000, or a whole multiple thereof, and shall reduce permanently the
Revolving Commitments then in effect.
2.10 Optional Prepayments. The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty (except as set forth below), upon irrevocable notice delivered to the
Administrative Agent at least three Business Days prior thereto in the case of
Eurodollar Loans and at least one Business Day prior thereto in the case of ABR
Loans, which notice shall specify the date and amount of prepayment and whether
the prepayment is of Eurodollar Loans or ABR Loans; provided, that if a
Eurodollar Loan is prepaid on any day other than the last day of the Interest
Period applicable thereto, the
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Borrower shall also pay any amounts owing pursuant to Section 2.20 provided,
however, that the Tranche B Term Loans and the Tranche C Term Loans may only be
prepaid at a price equal to (i) 102% of the principal amount thereof prior to
the first anniversary of the Funding Date and (ii) 101% of the principal amount
thereof on or after the first anniversary and prior to the second anniversary of
the Funding Date. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein, together with (except in the case of Revolving Loans that are ABR Loans
and Swingline Loans) accrued interest to such date on the amount prepaid.
Partial prepayments of Term Loans and Revolving Loans shall be in an aggregate
principal amount of $1,000,000 or a whole multiple thereof. Partial prepayments
of Swingline Loans shall be in an aggregate principal amount of $100,000 or a
whole multiple thereof. Any optional prepayments of the Term Loans shall be
applied to the Tranche A Term Loans, Tranche B Term Loans and Tranche C Term
Loans, ratably based on the respective outstanding principal amounts thereof,
subject to Section 2.11(e).
2.11 Mandatory Prepayments and Commitment Reductions. (a) (i)
If any Capital Stock or Indebtedness shall be issued or incurred by the Borrower
or any of its Subsidiaries after the Funding Date (excluding (A) any Capital
Stock issued by the Borrower in connection with employee compensation
arrangements, and (B) any Indebtedness incurred in accordance with Section 7.2),
an amount equal to the Applicable Prepayment Percentage of the Net Cash Proceeds
thereof shall be applied on the date of such issuance or incurrence toward the
prepayment of the Term Loans as set forth in Section 2.11(d).
(ii) Notwithstanding the foregoing paragraph (i), if the PCA
IPO occurs on or prior to the Funding Date, the Borrower shall be entitled to
retain and hold in escrow for such purpose a portion of the Net Cash Proceeds
thereof required to satisfy any tax liabilities in connection therewith within
12 months of the Funding Date and the balance of any such Net Cash Proceeds held
in escrow for such tax liabilities not used to pay taxes due to the PCA IPO
within 12 months of the Funding Date shall be applied first, to repay any
outstanding Revolving Loans (without reducing the Total Revolving Commitments)
and, second, to reduce the Tranche A Term Commitments, the Tranche B Term
Commitments and the Tranche C Term Commitments, ratably based on the respective
principal amounts thereof.
(iii) Notwithstanding the foregoing paragraph (i), if the
Senior Subordinated Notes are issued in an aggregate principal amount in excess
of $500,000,000, then the Net Cash Proceeds of such excess shall be applied to
reduce the Term Commitments on the Funding Date (or, if such issuance occurs
after the Funding Date, to repay Term Loans on such later date) as follows: 50%
of such amount shall be applied to reduce the Tranche A Term Commitments (or
prepay Tranche A Term Loans); 25% of such amount shall be applied to reduce the
Tranche B Term Commitments (or prepay Tranche B Term Loans); and 25% of such
amount shall be applied to reduce the Tranche C Term Commitments (or prepay
Tranche C Term Loans) unless the Required Lenders agree to a different
allocation.
(iv) Notwithstanding the foregoing paragraph (i), if any
indebtedness with respect to the existing publicly traded notes and debentures
of the Borrower intended to be paid in full and canceled or realigned through
the Spin-Off is not paid in full and canceled or realigned (such
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remaining indebtedness, the "Stub Debt") on the Funding Date, then the
Term Commitments shall be reduced on the Funding Date in an aggregate amount
equal to the aggregate amount of the Stub Debt in excess of $150,000,000 as
follows: 50% of such amount shall be applied to reduce the Tranche A Term
Commitments; 25% of such amount shall be applied to reduce the Tranche B Term
Commitments; and 25% of such amount shall be applied to reduce the Tranche C
Term Commitments unless the Required Lenders agree to a different allocation.
(b) (i) If on any date on or after the Funding Date the
Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any
Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be
delivered in respect thereof, the Applicable Prepayment Percentage of such Net
Cash Proceeds shall be applied on such date toward the prepayment of the Term
Loans as set forth in Section 2.11(d); provided that, notwithstanding the
foregoing, on each Reinvestment Prepayment Date, an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event
shall be applied toward the prepayment of the Term Loans as set forth in Section
2.11(d).
(ii) If the Borrower or any of its Subsidiaries (other than
the Packaging Business) shall receive Net Cash Proceeds from Asset Sales and
Recovery Events (other than in connection with the corporate restructuring of
the Borrower as part of the Spin-Off Transactions set forth in the Distribution
Agreement) during the period from July 8, 1999 to but excluding the Funding Date
in excess of $50,000,000, then on each date on which any such excess Net Cash
Proceeds are received, unless a Reinvestment Notice shall be delivered in
respect thereof, such Net Cash Proceeds shall be applied on such date to reduce
the Tranche A Term Commitments, the Tranche B Term Commitments and the Tranche C
Term Commitments, ratably based on the respective principal amounts thereof;
provided that, notwithstanding the foregoing, on each Reinvestment Prepayment
Date, an amount equal to the Reinvestment Prepayment Amount with respect to the
Reinvestment Event shall be applied toward reduction of the Tranche A Term
Commitments, Tranche B Term Commitments or Tranche C Term Commitments, as
provided above, or, if after the Funding Date, to the prepayment of the Term
Loans as set forth in Section 2.11(d).
(c) If, for any fiscal year of the Borrower commencing with
the fiscal year ending December 31, 2000, there shall be Excess Cash Flow, the
Borrower shall, on the relevant Excess Cash Flow Application Date, apply the
Applicable Prepayment Percentage of such Excess Cash Flow toward the prepayment
of the Term Loans as set forth in Section 2.11(d). Each such prepayment shall be
made on a date (an "Excess Cash Flow Application Date") no later than five days
after the earlier of (i) the date on which the financial statements of the
Borrower referred to in Section 6.1(a), for the fiscal year with respect to
which such prepayment is made, are required to be delivered to the Lenders and
(ii) the date such financial statements are actually delivered.
(d) The application of any prepayment pursuant to Section 2.11
shall be made within any Facility, first, to ABR Loans and second, to Eurodollar
Loans. Each prepayment of the Loans under Section 2.11 shall be accompanied by
accrued interest to the date of such prepayment on the amount prepaid. Except as
provided in Sections 2.11(a)(iii) and 2.11(a)(iv), prepayments of the Term Loans
shall be applied as set forth in Section 2.17(b).
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(e) Notwithstanding anything to the contrary in Section 2.10,
2.11(d) or 2.17, with respect to the amount of any optional prepayment described
in Section 2.10 (at the Borrower's option) or with respect to the amount of any
mandatory prepayment described in Section 2.11, in each case that would be
allocated to Tranche B Term Loans or Tranche C Term Loans (such amounts, the
"Tranche B Prepayment Amount" and the "Tranche C Prepayment Amount,"
respectively), at any time when Tranche A Term Loans remain outstanding, the
Borrower will, in lieu of applying such amount to the prepayment of Tranche B
Term Loans and Tranche C Term Loans, respectively, as provided in paragraph (d)
above, on the date specified in Section 2.11 for such prepayment, give the
Administrative Agent telephonic notice (promptly confirmed in writing)
requesting that the Administrative Agent prepare and provide to each Tranche B
Term Lender and Tranche C Term Lender a notice (each, a "Prepayment Option
Notice") as described below. As promptly as practicable after receiving such
notice from the Borrower, the Administrative Agent will send to each Tranche B
Term Lender and Tranche C Term Lender a Prepayment Option Notice, which shall be
in the form of Exhibit G, and shall include an offer by the Borrower to prepay
on the date (each an "Applicable Prepayment Date") that is five Business Days
after the date of the Prepayment Option Notice, the relevant Term Loans of such
Lender by an amount equal to the portion of the Prepayment Amount indicated in
such Lender's Prepayment Option Notice as being applicable to such Lender's
Tranche B Term Loans or Tranche C Term Loans, as the case may be. Each Tranche B
Term Lender and Tranche C Term Lender shall give notice to the Administrative
Agent prior to the Applicable Prepayment Date if it elects to accept such
prepayment, and each Tranche B Term Lender and Tranche C Term Lender which has
not notified the Administrative Agent of whether or not it elects to accept such
prepayment shall be deemed to have accepted such prepayment. On the Applicable
Prepayment Date (i) the Borrower shall pay to the relevant Tranche B Term
Lenders and Tranche C Term Lenders the aggregate amount necessary to prepay that
portion of the outstanding relevant Term Loans in respect of which such Lenders
have accepted prepayment as described above and (ii) the Borrower shall pay to
the Tranche A Term Lenders an amount equal to the portion of the Tranche B
Prepayment Amount and the Tranche C Prepayment Amount not accepted by the
relevant Lenders, and such amount shall be applied to the prepayment of the
Tranche A Term Loans.
2.12 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans by giving
the Administrative Agent at least three Business Days' prior irrevocable notice
of such election (which notice shall specify the length of the initial Interest
Period therefor), provided that no ABR Loan under a particular Facility may be
converted into a Eurodollar Loan when any Event of Default has occurred and is
continuing and the Administrative Agent or the Majority Facility Lenders in
respect of such Facility have determined in its or their sole discretion not to
permit such conversions. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof.
(b Any Eurodollar Loan which is a Term Loan shall be continued
as such upon the expiration of the then current Interest Period with respect
thereto unless the Borrower gives
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irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1, of
a different length of the next Interest Period to be applicable to such Loans or
elects to convert such Loan to an ABR Loan, provided that no Eurodollar Loan
under a particular Facility may be continued as such when any Event of Default
has occurred and is continuing and the Administrative Agent has or the Majority
Facility Lenders in respect of such Facility have determined in its or their
sole discretion not to permit such continuations, and provided, further, that if
such continuation is not permitted pursuant to the preceding proviso such Loans
shall be automatically converted to ABR Loans on the last day of such then
expiring Interest Period. Any Eurodollar Loan which is a Revolving Loan may be
continued as such upon the expiration of the then current Interest Period with
respect thereto by the Borrower giving irrevocable notice to the Administrative
Agent, in accordance with the applicable provisions of the term "Interest
Period" set forth in Section 1.1, of the length of the next Interest Period to
be applicable to such Loans, provided that no Eurodollar Loan under a particular
Facility may be continued as such when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Majority Facility Lenders in
respect of such Facility have determined in its or their sole discretion not to
permit such continuations, and provided, further, that if the Borrower shall
fail to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans shall
be automatically converted to ABR Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
2.13 Limitations on Eurodollar Tranches. Notwithstanding
anything to the contrary in this Agreement, all borrowings, conversions and
continuations of Eurodollar Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, (a) after giving effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal
to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no
more than twenty (20) Eurodollar Tranches shall be outstanding at any one time.
2.14 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any
Loan or Reimbursement Obligation shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), all outstanding Loans and
Reimbursement Obligations (whether or not overdue) shall bear interest at a rate
per annum equal to (x) in the case of the Loans, the rate that would otherwise
be applicable thereto pursuant to the foregoing provisions of this Section plus
2% or (y) in the case of Reimbursement Obligations, the rate applicable to ABR
Loans under the Revolving Facility plus 2%, and (ii) if all or a portion of any
interest payable on any Loan or Reimbursement Obligation or any commitment fee
or other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue
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amount shall bear interest at a rate per annum equal to the rate then applicable
to ABR Loans under the relevant Facility plus 2% (or, in the case of any such
other amounts that do not relate to a particular Facility, the rate then
applicable to ABR Loans under the Revolving Facility plus 2%), in each case,
with respect to clauses (i) and (ii) above, from the date of such non-payment
until such amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
Section shall be payable from time to time on demand.
2.15 Computation of Interest and Fees. (a) Interest and fees
payable pursuant hereto shall be calculated on the basis of a 360-day year for
the actual days elapsed, except that, with respect to ABR Loans the rate of
interest on which is calculated on the basis of the Prime Rate, the interest
thereon shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of each determination
of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Lenders of the effective date and the amount of each
such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to Section
2.14(a).
2.16 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Facility Lenders in respect of the relevant Facility that
the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as ABR Loans,
(y) any Loans under the relevant Facility that were to have been
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converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as ABR Loans and (z) any outstanding Eurodollar Loans under the
relevant Facility shall be converted, on the last day of the then-current
Interest Period, to ABR Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans under the relevant Facility
shall be made or continued as such, nor shall the Borrower have the right to
convert Loans under the relevant Facility to Eurodollar Loans.
2.17 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on account
of any commitment fee and any reduction of the Commitments of the Lenders shall
be made pro rata according to the respective Tranche A Term Percentages, Tranche
B Term Percentages, Tranche C Term Percentages or Revolving Percentages, as the
case may be, of the relevant Lenders (except as otherwise provided in Sections
2.11(a) and (b)).
(b) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Term Loans shall be made pro rata
according to the respective outstanding principal amounts of the Term Loans then
held by the Term Lenders (except as otherwise provided in Section 2.11(e)).
Except as otherwise provided in Section 2.11, the amount of each principal
prepayment of the Term Loans shall be applied to reduce the then remaining
installments of the Tranche A Term Loans, Tranche B Term Loans and Tranche C
Term Loans, as the case may be, pro rata based upon the then remaining principal
amount thereof provided, however, that the Tranche B Term Loans and the Tranche
C Term Loans may only be prepaid at a price equal to (i) 102% of the principal
amount thereof prior to the first anniversary of the Funding Date and (ii) 101%
of the principal amount thereof on or after the first anniversary and prior to
the second anniversary of the Funding Date. Amounts prepaid on account of the
Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Revolving Loans shall be made pro
rata according to the respective outstanding principal amounts of the Revolving
Loans then held by the Revolving Lenders.
(d) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Funding Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day. If any payment on a Eurodollar Loan becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day. In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension.
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(e) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
ABR Loans under the relevant Facility, on demand, from the Borrower.
(f) Unless the Administrative Agent shall have been notified
in writing by the Borrower prior to the date of any payment being made hereunder
that the Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective pro rata shares
of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the Borrower.
2.18 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any Application
or any Eurodollar Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded
Taxes covered by Section 2.19 and changes in the rate of tax on the
overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
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(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand and delivery of the calculation of such amount, any additional
amounts necessary to compensate such Lender for such increased cost or reduced
amount receivable. If any Lender becomes entitled to claim any additional
amounts pursuant to this paragraph, it shall promptly notify the Borrower (with
a copy to the Administrative Agent) of the event by reason of which it has
become so entitled together with a calculation of such amount claimed.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction;
provided that the Borrower shall not be required to compensate a Lender pursuant
to this paragraph for any amounts incurred more than three months prior to the
date that such Lender notifies the Borrower of such Lender's intention to claim
compensation therefor; and provided further that, if the circumstances giving
rise to such claim have a retroactive effect, then such three-month period shall
be extended to include the period of such retroactive effect.
(c) A certificate as to any additional amounts payable
pursuant to this Section submitted by any Lender to the Borrower (with a copy to
the Administrative Agent) shall be conclusive in the absence of manifest error.
The obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.19 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding income taxes and franchise taxes (imposed on the overall
net income of the recipient) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or
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taxing authority thereof or therein (other than any such connection arising
solely from the Administrative Agent or such Lender having executed, delivered
or performed its obligations or received a payment under, or enforced, this
Agreement or any other Loan Document). If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings ("Non-Excluded
Taxes") or Other Taxes are required to be withheld from any amounts payable to
the Administrative Agent or any Lender hereunder, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that the Borrower shall not be required to increase any such amounts
payable to any Lender with respect to any Non-Excluded Taxes (i) that are
attributable to such Lender's failure to comply with the requirements of
paragraph (d) or (e) of this Section or (ii) that are United States withholding
taxes imposed on amounts payable to such Lender at the time the Lender becomes a
party to this Agreement, except to the extent that such Lender's assignor (if
any) was entitled, at the time of assignment, to receive additional amounts from
the Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure.
(d) Each Lender (or Transferee) that is not a citizen or
resident of the United States of America, a corporation, partnership or other
entity created or organized in or under the laws of the United States of America
(or any jurisdiction thereof), or any estate or trust that is subject to federal
income taxation regardless of the source of its income (a "Non-U.S. Lender")
shall deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form 1001 or Form
4224, or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest," a statement substantially in the form of
Exhibit H and a Form W-8, or any subsequent versions thereof or successors
thereto, 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
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or
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invalidity of any form previously delivered by such Non-U.S. Lender.
Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.
(e) A Lender that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate, provided that such
Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender's judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.
(f) The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.20 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment of or conversion from Eurodollar Loans after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurodollar Loans on a day that is not the last day of
an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest that would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) that would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. A certificate as to any
amounts payable pursuant to this Section submitted to the Borrower by any Lender
shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.21 Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.18 or
2.19(a) with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
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object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of any Borrower or the rights of any Lender
pursuant to Section 2.18 or 2.19(a).
2.12 Replacement of Lenders. The Borrower shall be permitted
to replace any Lender that (a) requests reimbursement for amounts owing pursuant
to Section 2.18 or 2.19(a) or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial institution; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such replacement,
(iii) prior to any such replacement, such Lender shall have taken no action
under Section 2.21 so as to eliminate the continued need for payment of amounts
owing pursuant to Section 2.18 or 2.19(a), (iv) the replacement financial
institution shall purchase, at par, all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement, (v) the Borrower shall
be liable to such replaced Lender under Section 2.20 if any Eurodollar Loan
owing to such replaced Lender shall be purchased other than on the last day of
the Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 10.6 (provided that the
Borrower shall be obligated to pay the registration and processing fee referred
to therein), (viii) until such time as such replacement shall be consummated,
the Borrower shall pay all additional amounts (if any) required pursuant to
Section 2.18 or 2.19(a), as the case may be, and (ix) any such replacement shall
not be deemed to be a waiver of any rights that the Borrower, the Administrative
Agent or any other Lender shall have against the replaced Lender.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other Revolving
Lenders set forth in Section 3.4(a), agrees to issue letters of credit ("Letters
of Credit") for the account of the Borrower on any Business Day during the
Revolving Commitment Period in such form as may be approved from time to time by
the Issuing Lender; provided that the Issuing Lender shall have no obligation to
issue any Letter of Credit if, after giving effect to such issuance, the
aggregate amount of the Available Revolving Commitments would be less than zero.
Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no
later than the earlier of (x) the first anniversary of its date of issuance and
(y) the date that is five Business Days prior to the Revolving Termination Date,
provided that any Letter of Credit with a one-year term may provide for the
renewal thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (y) above). Notwithstanding the foregoing,
the aggregate undrawn amount of outstanding Letters of Credit and unpaid
Reimbursement Obligations shall not exceed $250,000,000 at any time.
(b) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed by,
any applicable Requirement of Law.
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3.2 Procedure for Issuance of Letter of Credit. The Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender at its address for notices specified herein
an Application therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof. The
Issuing Lender shall promptly furnish to the Administrative Agent, which shall
in turn promptly furnish to the Lenders, notice of the issuance of each Letter
of Credit (including the amount thereof).
3.3 Fees and Other Charges. (a) The Borrower will pay a fee on
all outstanding Letters of Credit at a per annum rate equal to the Applicable
Margin then in effect with respect to Eurodollar Loans under the Revolving
Facility, shared ratably among the Revolving Lenders and payable quarterly in
arrears on each L/C Fee Payment Date after the issuance date. In addition, the
Borrower shall pay to the Issuing Lender for its own account a fronting fee in
an amount per annum separately agreed with the Issuing Lender on the undrawn and
unexpired amount of each Letter of Credit, payable quarterly in arrears on each
L/C Fee Payment Date after the issuance date.
(b) In addition to the foregoing fees, the Borrower shall pay
or reimburse the Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by the Issuing Lender in issuing, negotiating,
effecting payment under, amending or otherwise administering any Letter of
Credit.
3.4 L/C Participations. (a) The Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
the Issuing Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Percentage in the Issuing Lender's obligations and
rights under each Letter of Credit issued hereunder and the amount of each draft
paid by the Issuing Lender thereunder. Each L/C Participant unconditionally and
irrevocably agrees with the Issuing Lender that, if a draft is paid under any
Letter of Credit for which the Issuing Lender is not reimbursed in full by the
Borrower in accordance with the terms of this Agreement, such L/C Participant
shall pay to the Issuing Lender upon demand at the Issuing Lender's address for
notices specified herein an amount equal to such L/C Participant's Revolving
Percentage of the amount of such draft, or any part thereof, that is not so
reimbursed.
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(b) If any amount required to be paid by any L/C Participant
to the Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Lender under any Letter of Credit is
paid to the Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to the Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 3.4(a) is not made available to the Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, the
Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to ABR Loans under the Revolving Facility. A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing under this Section shall be conclusive in the absence of
manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with Section 3.4(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by the Issuing Lender), or any payment of interest on account thereof, the
Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; provided, however, that in the event that any such payment received by
the Issuing Lender shall be required to be returned by the Issuing Lender, such
L/C Participant shall return to the Issuing Lender the portion thereof
previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Lender for the amount of (a) such draft
so paid and (b) any taxes, fees, charges or other costs or expenses incurred by
the Issuing Lender in connection with such payment. Each such payment shall be
made to the Issuing Lender at its address for notices specified herein in lawful
money of the United States and in immediately available funds. Interest shall be
payable on any and all amounts remaining unpaid by the Borrower under this
Section from the date such amounts become payable (whether at stated maturity,
by acceleration or otherwise) until payment in full at the rate set forth in (i)
until the second Business Day following the date of the applicable drawing,
Section 2.14(b) and (ii) thereafter, Section 2.14(c).
3.6 Obligations Absolute. The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
that the Borrower may have or may have had against the Issuing Lender, any
beneficiary of a Letter of Credit or any other Person. The Borrower also agrees
with the Issuing Lender that the Issuing Lender shall not be responsible for,
and the Borrower's Reimbursement Obligations under Section 3.5 shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even though
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such documents shall in fact prove to be invalid, fraudulent or forged,
or any dispute between or among the Borrower and any beneficiary of
any Letter of Credit or any other party to which such Letter of Credit may be
transferred or any claims whatsoever of the Borrower against any beneficiary of
such Letter of Credit or any such transferee. The Issuing Lender shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit, except for errors or omissions found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the Issuing Lender. The
Borrower agrees that any action taken or omitted by the Issuing Lender under or
in connection with any Letter of Credit or the related drafts or documents, if
done in the absence of gross negligence or willful misconduct and in accordance
with the standards of care specified in the Uniform Commercial Code of the State
of New York, shall be binding on the Borrower and shall not result in any
liability of the Issuing Lender to the Borrower. The foregoing shall not be
construed to excuse the Issuing Lender from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Lender's
failure to exercise the agreed standard of care (as set forth in Section 3.7
below) in determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that the Issuing Bank shall have exercised the agreed standard of care in
the absence of gross negligence or wilful misconduct on the part of the Issuing
Lender.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the Issuing Lender shall promptly notify
the Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans and issue or participate in the
Letters of Credit, the Borrower hereby represents and warrants to the
Administrative Agent and each Lender that (it being agreed that prior to the
Funding Date the only representations and warranties that will be made by the
Borrower are the following, which will be made on the Signing Date: Sections 4.3
through 4.21, inclusive, with references to the Borrower and its Subsidiaries
therein being deemed to refer to the Borrower and its Subsidiaries as they will
exist after giving effect to the Spin-Off):
4.1 Financial Condition. (a) The unaudited pro forma
consolidated balance sheet of the Borrower as at June 30, 1999 (including the
notes thereto) (the "Pro Forma Balance
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Sheet") included in the Form S-4 Filing has been prepared giving effect
(as if such events had occurred on such date) to (i) the consummation of
the Spin-Off Transactions (other than the PCA IPO), (ii) the Loans to be
made and the Senior Subordinated Notes to be issued on the Funding
Date and the use of proceeds thereof and (iii) the payment of estimated fees and
expenses in connection with the foregoing. The Pro Forma Balance Sheet has been
prepared based on the best information available to the Borrower as of the date
of delivery thereof, and presents fairly on a pro forma basis the estimated
financial position of the Borrower and its consolidated Subsidiaries as at June
30, 1999, assuming that the events specified in the preceding sentence had
actually occurred at such date and based upon the assumptions and adjustments in
the notes accompanying the Pro Forma Balance Sheet.
(b) The audited consolidated balance sheets of the Borrower as
at December 31, 1998 and December 31, 1997, and the related consolidated
statements of income and of cash flows for the fiscal years ended on such dates,
reported on by and accompanied by an unqualified report from Xxxxxx Xxxxxxxx LLP
and reflecting the Packaging Business as a discontinued operation, present
fairly the consolidated financial condition of the Borrower as at such date, and
the consolidated results of its operations and its consolidated cash flows for
the respective fiscal years then ended. The unaudited consolidated balance sheet
of the Borrower as at June 30, 1999 (and, if available as of the Funding Date,
as at September 30, 1999), and the related unaudited consolidated statements of
income and cash flows for the six-month (and, if applicable, nine-month) period
ended on such date, present fairly the consolidated financial condition of the
Borrower as at such date, and the consolidated results of its operations and its
consolidated cash flows for the six-month (and, if applicable, nine-month)
period then ended (subject to normal year-end audit adjustments and reflecting
the Packaging Business as a discontinued operation). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by the aforementioned firm of accountants and
disclosed therein). The Borrower and its Subsidiaries (after giving effect to
the Spin-Off Transactions) do not have any material Guarantee Obligations,
contingent liabilities and liabilities for taxes, or any long-term leases or
unusual forward or long-term commitments, including any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, that are not reflected in the most recent financial statements
referred to in this paragraph, other than income taxes payable in connection
with the PCA IPO. During the period from June 30, 1999 (or, if applicable,
September 30, 1999) to and including the date hereof there has been no
Disposition (other than as contemplated by the Spin-Off Transactions) by the
Borrower of any material part of its business or property.
4.2 No Change. Since December 31, 1998 there has been no
development or event that has had or would reasonably be expected to have a
Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of the
Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of
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property or the conduct of its business requires such qualification and (d) is
in compliance with all Requirements of Law except, in the case of clauses (c)
and (d), to the extent that the failure to be qualified or comply would not,
in the aggregate, reasonably be expected to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and, in the
case of the Borrower, to borrow hereunder. Each Loan Party has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Loan Documents to which it is a party and, in the case of the Borrower,
to authorize the borrowings on the terms and conditions of this Agreement. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the Transaction and the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the Loan Documents, except (i) consents, authorizations, filings and
notices described in Schedule 4.4, which consents, authorizations, filings and
notices have been obtained or made and are in full force and effect or will have
been obtained or made and be in full force and effect on the Funding Date and
(ii) the filings referred to in Section 4.19. Each Loan Document has been duly
executed and delivered on behalf of each Loan Party party thereto. This
Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan Party party
thereto, enforceable against each such Loan Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors? rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of
this Agreement and the other Loan Documents, the issuance of Letters of Credit,
the borrowings hereunder and the use of the proceeds thereof will not violate
any Requirement of Law or any Contractual Obligation of the Borrower or any of
its Subsidiaries and will not result in, or require, the creation or imposition
of any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens
created by the Security Documents). No Requirement of Law or Contractual
Obligation applicable to the Borrower or any of its Subsidiaries would
reasonably be expected to have a Material Adverse Effect.
4.6 Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of their respective properties or revenues (a) with
respect to any of the Loan Documents or any of the transactions contemplated
hereby or thereby, or (b) that would reasonably be expected to have a Material
Adverse Effect.
4.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect that would reasonably
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be expected to have a Material Adverse Effect. No Default or Event of Default
has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Borrower and its
Subsidiaries (other than Foreign Subsidiaries, as to which no representation is
made) has title in fee simple to, or a valid leasehold interest in, all its real
property, and good title to, or a valid leasehold interest in, all its other
property, and none of such property is subject to any Lien except as permitted
by Section 7.3.
4.9 Intellectual Property. The Borrower and each of its
Subsidiaries owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted. No material claim has
been asserted and is pending by any Person challenging or questioning the use of
any Intellectual Property or the validity or effectiveness of any Intellectual
Property, nor does the Borrower know of any valid basis for any such claim. The
use of Intellectual Property by the Borrower and its Subsidiaries does not
infringe on the rights of any Person in any material respect.
4.10 Taxes. Each of the Borrower and each of its Subsidiaries
has filed or caused to be filed all Federal, state and other material tax
returns that are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Borrower, no claim is being asserted,
with respect to any such tax, fee or other charge.
4.11 Federal Regulations. No part of the proceeds of any Loans
will be used for "buying" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect or for any purpose that violates the provisions of the
Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1, as applicable, referred to in Regulation U.
4.12 Labor Matters. Except as, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect: (a) there are no
strikes or other labor disputes against the Borrower or any of its Subsidiaries
pending or, to the knowledge of the Borrower, threatened; (b) hours worked by
and payment made to employees of the Borrower and its Subsidiaries have not been
in violation of the Fair Labor Standards Act or any other applicable Requirement
of Law dealing with such matters; and (c) all payments due from the Borrower or
any of its Subsidiaries on account of employee health and welfare insurance have
been paid or accrued as a liability on the books of the Borrower or the relevant
Subsidiary.
4.13 ERISA. Neither a Reportable Event which could give rise
to a material liability nor an "accumulated funding deficiency" (within the
meaning of Section 412 of the
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Code or Section 302 of ERISA) has occurred during the five-year period prior
to the date on which this representation is made or deemed made with respect
to any Plan, and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code. No termination of a Single
Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period. The present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used
to fund such Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the
value of the assets of such Plan allocable to such accrued benefits by an
amount which would reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan that has
resulted or would reasonably be expected to result in a material liability
under ERISA, and neither the Borrower nor any Commonly Controlled Entity
would become subject to any material liability under ERISA if the Borrower
or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding
the date on which this representation is made or deemed made. No such
Multiemployer Plan is in Reorganization or Insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party
is an "investment company," or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
4.15 Subsidiaries. Except as disclosed to the Administrative
Agent by the Borrower in writing from time to time after the Signing Date, (a)
Schedule 4.15 sets forth the name and jurisdiction of incorporation of each
Subsidiary and, as to each such Subsidiary, the percentage of each class of
Capital Stock owned by any Loan Party and (b) there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or
commitments (other than stock options granted to employees or directors and
directors? qualifying shares) of any nature relating to any Capital Stock of the
Borrower or any Subsidiary, except as created by the Loan Documents.
4.16 Use of Proceeds. The proceeds of the Term Loans shall be
used to refinance certain existing Indebtedness of the Borrower and its
Subsidiaries, to pay fees and expenses relating to the Transaction and for
general corporate purposes. The proceeds of the Revolving Loans and the
Swingline Loans, and the Letters of Credit, shall be used for general corporate
purposes.
4.17 Environmental Matters. Except as, in the aggregate, would
not reasonably be expected to have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by
the Borrower or any of its Subsidiaries (the "Properties") do not
contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations or under
circumstances that constitute or constituted a violation of, or could
give rise to liability under, any Environmental Law;
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(b) neither the Borrower nor any of its Subsidiaries has
received or is aware of any written notice of violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard
to any of the Properties or the business operated by the Borrower or
any of its Subsidiaries (the "Business"), nor does the Borrower have
knowledge or reason to believe that any such notice will be received or
is being threatened;
(c) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a
manner or to a location that could give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower, threatened,
under any Environmental Law to which the Borrower or any Subsidiary is
or will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with
respect to the Properties or the Business;
(e) there has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of the Borrower or any
Subsidiary in connection with the Properties or otherwise in connection
with the Business, in violation of or in amounts or in a manner that
could give rise to liability under Environmental Laws;
(f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with
all applicable Environmental Laws, and there is no contamination at,
under or about the Properties or violation of any Environmental Law
with respect to the Properties or the Business; and
(g) neither the Borrower nor any of its Subsidiaries has
assumed any liability of any other Person under Environmental Laws.
4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or written statement
(including the Spin-Off SEC filings) furnished by or on behalf of any Loan Party
to the Administrative Agent or the Lenders, or any of them, for use in
connection with the transactions contemplated by this Agreement or the other
Loan Documents, contained as of the date such statement, information, document
or certificate was so furnished (or, in the case of the Confidential Information
Memorandum, as of the date of this Agreement), any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements contained herein or therein, when taken as a whole, not materially
misleading. The projections and pro forma financial information contained in the
materials referenced above are based upon good faith estimates and assumptions
believed by management
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of the Borrower to be reasonable at the time made, it being recognized by the
Lenders that such financial information as it relates to future events is not to
be viewed as fact and that actual results during the period or periods covered
by such financial information may differ from the projected results set forth
therein by a material amount. As of the Funding Date, the representations and
warranties contained in the Spin-off Documents and the Spin-Off SEC Filings are
true and correct in all material respects. There is no fact known to any Loan
Party that would reasonably be expected to have a Material Adverse Effect that
has not been expressly disclosed herein, in the other Loan Documents, in the
Confidential Information Memorandum or in any other documents, certificates and
statements furnished to the Administrative Agent and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan
Documents.
4.19 Security Documents. (a) The Guarantee and Collateral
Agreement is effective to create in favor of the Administrative Agent, for the
benefit of the Lenders, a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof. In the case of the Pledged
Stock described in the Guarantee and Collateral Agreement, when stock
certificates representing such Pledged Stock are delivered to the Administrative
Agent, and in the case of the other Collateral described in the Guarantee and
Collateral Agreement, when financing statements and other filings specified on
Schedule 4.19(a) in appropriate form are filed in the offices specified on
Schedule 4.19(a), the Guarantee and Collateral Agreement shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the Loan Parties in such Collateral and the proceeds thereof, as security for
the Obligations (as defined in the Guarantee and Collateral Agreement), in each
case prior and superior in right to any other Person (except, in the case of
Collateral other than Pledged Stock, Liens permitted by Section 7.3).
(b) Each of the Mortgages is effective to create in favor of
the Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof, and when the Mortgages are filed in the offices specified on Schedule
4.19(b), each such Mortgage shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Mortgaged Properties and the proceeds thereof, as security for the Obligations
(as defined in the relevant Mortgage), in each case prior and superior in right
to any other Person. As of the Funding Date, Schedule 1.1B lists each of the
real properties in the United States owned in fee simple by the Borrower or any
of its Subsidiaries having a value, in the reasonable opinion of the Borrower,
in excess of $1,000,000.
4.20 Solvency. Each Loan Party is, and after giving effect to
the Spin-Off and the other Transactions and the incurrence of all Indebtedness
and obligations being incurred in connection herewith and therewith will be and
will continue to be, Solvent.
4.21 Year 2000 Matters. Any reprogramming required to permit
the proper functioning (but only to the extent that such proper functioning
would otherwise be impaired by the occurrence of the year 2000) in and following
the year 2000 of computer systems and other equipment containing embedded
microchips, in either case owned or operated by the Borrower or
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any of its Subsidiaries or used or relied upon in the conduct of their business
(including any such systems and other equipment supplied by others or with which
the computer systems of the Borrower or any of its Subsidiaries interface), and
the testing of all such systems and other equipment as so reprogrammed, will be
completed by October 31, 1999 to the extent the failure to so reprogram and test
would reasonably be expected to have a Material Adverse Effect. The costs to the
Borrower and its Subsidiaries that have not been incurred as of the date hereof
for such reprogramming and testing and for the other reasonably foreseeable
consequences to them of any improper functioning of other computer systems and
equipment containing embedded microchips due to the occurrence of the year 2000
would not reasonably be expected to result in a Default or Event of Default or
to have a Material Adverse Effect. Except for any reprogramming referred to
above, the computer systems of the Borrower and its Subsidiaries are and, with
ordinary course upgrading and maintenance, will continue for the term of this
Agreement to be, sufficient for the conduct of their business as currently
conducted.
4.22 Senior Indebtedness. The Obligations constitute "Senior
Debt" of the Borrower under and as defined in the Senior Subordinated Note
Indenture and the obligations of each Subsidiary Guarantor under the Guarantee
and Collateral Agreement constitute "Guarantor Senior Debt" of such Subsidiary
Guarantor under and as defined in the Senior Subordinated Note Indenture.
4.23 Certain Documents. Prior to the Effective Date, the
Borrower will have delivered to the Administrative Agent a complete and correct
copy of the Spin-off Documents, the Spin-Off SEC Filings and the Senior
Subordinated Note Indenture including any amendments, supplements or
modifications with respect to any of the foregoing.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Signing Date. The agreement of each Lender
to execute this Agreement is subject to the fulfillment on or before September
30, 1999 of the following conditions precedent:
(a) Credit Agreement. The Administrative Agent shall have
received this Agreement, executed and delivered by the Borrower.
(b) Lien Searches. The Administrative Agent shall have
received the results of a recent lien search in each of the
jurisdictions where assets of the Loan Parties are located, and such
search shall reveal no liens on any of the assets of the Borrower or
its Subsidiaries except for liens permitted by Section 7.3 or which
will be discharged on or prior to the Funding Date.
(c) Environmental Audit. The Administrative Agent shall have
received available environmental information requested by the
Administrative Agent with respect to the real properties of the
Borrower and its Subsidiaries specified by the Administrative Agent.
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(d) Fees. The Lenders and the Administrative Agent shall have
received all fees required to be paid, and all expenses for which
invoices have been presented (including the reasonable fees and
expenses of legal counsel), on or before the Signing Date.
(e) Legal Opinions. The Administrative Agent shall have
received the executed legal opinion of Jenner & Block, counsel to the
Borrower and the other Loan Parties, substantially in the form of
Exhibit F, and such legal opinion shall cover such other matters
incident to the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.
The Administrative Agent shall solely determine when the conditions to the
Signing Date have been fulfilled and will provide immediate notification thereof
to the Borrower and the Lenders.
5.2 Conditions to Effective Date. The occurrence of the
Effective Date is subject to the fulfillment on or before November 30, 1999 of
the following conditions precedent:
(a) Signing Date. The Signing Date shall
have occurred.
(b) Financial Statements. The Lenders shall have
received the financial statements of the Borrower referred to in
Section 4.1 (which may be delivered in the form included in the Form
S-4 Filing) and such financial statements shall not be materially
different from the financial statements included in the Form S-4 Filing
unless such material differences are satisfactory to all the Lenders.
(c) Fees. The Lenders and the Administrative Agent
shall have received all fees required to be paid, and all expenses
for which invoices have been presented (including the reasonable
fees and expenses of legal counsel), on or before the Effective Date.
(d) Solvency Opinion. The Administrative Agent shall
have received a satisfactory solvency opinion from an independent
valuation firm satisfactory to the Administrative Agent which shall
document the solvency of the Borrower and its Subsidiaries after giving
effect to the Transaction and the other transactions contemplated
hereby.
(e) Tax Status. The Borrower shall have received a
tax ruling from the Internal Revenue Service or an opinion from its
outside legal counsel to the effect that the Spin-Off will be free
of federal income taxes payable by the Borrower.
The Administrative Agent will, after consultation with the Lenders, determine
when the conditions to the Effective Date have been met and will provide
immediate written notification thereof to the Borrower and the Lenders.
5.3 Conditions to Initial Extensions of Credit on Funding
Date. The agreement of each Lender to make the initial extension of credit
requested to be made by it is subject to the
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satisfaction, prior to or concurrently with the making of such extension of
credit on the Funding Date (but in any event no later than November 30, 1999),
of the following conditions precedent:
(a) Effective Date. The Effective Date shall have
occurred.
(b) Guarantee and Collateral Agreement. The
Administrative Agent shall have received (i) the Guarantee and
Collateral Agreement, executed and delivered by the Borrower and each
Subsidiary Guarantor and (ii) an Acknowledgment and Consent in the form
attached to the Guarantee and Collateral Agreement, executed and
delivered by each Issuer (as defined therein), if any, that is not a
Loan Party.
(c) Senior Subordinated Notes. The Borrower shall
have issued at least $500,000,000 of Senior Subordinated Notes and
shall have received the net proceeds thereof. The Senior Subordinated
Notes will be issued at par or at a discount not to exceed 1/4%.
(d) Spin-Off. The Administrative Agent shall have
received a certificate from a Responsible Officer of the Borrower
certifying that, to the best of such Responsible Officer's knowledge
after due inquiry, the Spin-Off and other Spin-Off Transactions have
been consummated (or shall be consummated substantially simultaneously
on the Funding Date) on substantially the terms set forth in the
Spin-Off SEC Filings, as filed with the SEC on the date hereof, and
without giving effect to any material amendments thereto (other than
any amendment to the extent relating to the Packaging Business) unless
approved by the Required Lenders (which approval will not be
unreasonably withheld or delayed) . The consolidated financial
condition of the Borrower on the Funding Date shall not be materially
different from that set forth in the Pro Forma Balance Sheet.
(e) Approvals. All governmental and third party
approvals necessary in connection with the Transaction, the continuing
operations of the Borrower and its Subsidiaries and the transactions
contemplated hereby shall have been obtained and be in full force and
effect, and all applicable waiting periods shall have expired without
any action being taken or threatened by any competent authority that
would restrain, prevent or otherwise impose adverse conditions on the
Transaction or the financing contemplated hereby.
(f) Fees. The Lenders and the Administrative Agent
shall have received all fees required to be paid, and all expenses for
which invoices have been presented (including the reasonable
fees and expenses of legal counsel), on or before the Funding Date.
(g) Closing Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate
of each Loan Party, dated the Funding Date, substantially in the form
of Exhibit C, with appropriate insertions and attachments.
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(h) Legal Opinions. The Administrative Agent shall
have received the following executed legal opinions:
(i) the legal opinion of Jenner & Block, counsel to
the Borrower and the other Loan Parties, in form and substance
reasonably satisfactory to the Administrative Agent and its counsel;
(ii) the legal opinion of special New York counsel
to the Borrower and the other Loan Parties, in form and substance
reasonably satisfactory to the Administrative Agent and its counsel;
(iii) the legal opinion of the General Counsel of
the Borrower and the other Loan Parties, in form and substance
reasonably satisfactory to the Administrative Agent and its
counsel; and
(iv) to the extent consented to by the relevant
counsel, each legal opinion, if any, delivered in connection with the
Spin-Off Documents, accompanied by a reliance letter in favor of the
Lenders.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
(i) Pledged Stock; Stock Powers. The Administrative
Agent shall have received the certificates representing the shares of
Capital Stock pledged pursuant to the Guarantee and Collateral
Agreement, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the
pledgor thereof and executed Uniform Commercial Code Financing
Statements covering such Capital Stock.
(j) Filings, Registration and Recordings. Each
document (including any Uniform Commercial Code financing statement)
required by the Security Documents or under law or reasonably requested
by the Administrative Agent to be filed, registered or recorded in
order to create in favor of the Administrative Agent, for the benefit
of the Lenders, a perfected Lien on the Collateral described therein,
prior and superior in right to any other Person (other than with
respect to Liens expressly permitted by Section 7.3), shall be in
proper form for filing, registration or recordation.
(k) Mortgages, etc. (i) The Administrative Agent
shall have received a Mortgage with respect to each Mortgaged Property,
executed and delivered by a duly authorized officer of each party
thereto.
(ii) If requested by the Administrative Agent, the
Administrative Agent shall have received, and the title
insurance company issuing the policy referred to in clause
(iii) below (the "Title Insurance Company") shall have
received, maps or plats of an as-built survey of the sites of
the Mortgaged Properties certified to the Administrative Agent
and the Title Insurance Company in a manner satisfactory to
them, dated a date satisfactory to the Administrative Agent
and the Title Insurance
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Company by an independent professional licensed land surveyor
satisfactory to the Administrative Agent and the Title
Insurance Company.
(iii) The Administrative Agent shall have received in
respect of each Mortgaged Property a mortgagee's title
insurance policy (or policies) or marked up unconditional
binder for such insurance. Each such policy shall (A) be in an
amount satisfactory to the Administrative Agent; (B) be issued
at ordinary rates; (C) insure that the Mortgage insured
thereby creates a valid first Lien on such Mortgaged Property
free and clear of all defects and encumbrances, except those
defects and encumbrances which would not materially detract
from the value of the Mortgaged Property or the present use
thereof; (D) name the Administrative Agent for the benefit of
the Lenders as the insured thereunder; (E) be in the form of
ALTA Loan Policy - 1970 (Amended 10/17/70 and 10/17/84) (or
equivalent policies); (F) contain such endorsements and
affirmative coverage as the Administrative Agent may
reasonably request and (G) be issued by title companies
satisfactory to the Administrative Agent (including any such
title companies acting as co-insurers or reinsurers, at the
option of the Administrative Agent). The Administrative Agent
shall have received evidence satisfactory to it that all
premiums in respect of each such policy, all charges for
mortgage recording tax, and all related expenses, if any, have
been paid.
(iv) If requested by the Administrative Agent, the
Administrative Agent shall have received (A) a policy of flood
insurance that (1) covers any parcel of improved real property
that is encumbered by any Mortgage (2) is written in an amount
not less than the outstanding principal amount of the
indebtedness secured by such Mortgage that is reasonably
allocable to such real property or the maximum limit of
coverage made available with respect to the particular type of
property under the National Flood Insurance Act of 1968,
whichever is less, and (3) has a term ending not later than
the maturity of the Indebtedness secured by such Mortgage and
(B) confirmation that the Borrower has received the notice
required pursuant to Section 208(e)(3) of Regulation H of the
Board.
(v) The Administrative Agent shall have received a
copy of all recorded documents referred to, or listed as
exceptions to title in, the title policy or policies referred
to in clause (iii) above and a copy of all other material
documents affecting the Mortgaged Properties.
(l) Availability. On the Funding Date the aggregate
Available Revolving Commitments (calculated by excluding Letters of
Credit outstanding on the Funding Date) shall be at least the lesser of
(i) $500,000,000 and (ii) $350,000,000 plus the aggregate amount of
Stub Debt less the aggregate amount of optional reductions of the Term
Commitments made by the Borrower on or prior to the Funding Date, in
each case, adjusted downward as agreed by the Borrower and the
Administrative Agent to be appropriate to take into account the daily
working capital needs of the Automotive Business on the Funding Date.
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(m) Permitted Receivables Financings. The Borrower
and its Subsidiaries shall have no Permitted Receivables Financings
in effect.
5.4 Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made by it on any
date (including its initial extension of credit) is subject to the satisfaction
of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant to
the Loan Documents shall be true and correct on and as of such date as
if made on and as of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.4 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or the Administrative Agent hereunder, the
Borrower shall and shall cause each of its Subsidiaries to (it being agreed that
prior to the Funding Date the Borrower and its Subsidiaries shall only be
required to comply with Sections 6.2(d), 6.2(f), 6.4, 6.7 and 6.8):
6.1 Financial Statements. Furnish to the Administrative Agent
and each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the
audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related audited
consolidated statements of income and of cash flows (or such other
similar or additional statement then required by the SEC for annual
reports filed pursuant to the Exchange Act) for such year, setting
forth in each case in comparative form the figures for the previous
year, reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, or
other material qualification or exception, by Xxxxxx Xxxxxxxx LLP or
other independent certified public accountants of nationally recognized
standing; and
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income and
of cash flows (or such other or similar or additional statement then
required by the SEC for quarterly reports filed pursuant to the
Exchange Act) for such quarter and the portion of
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the fiscal year through the end of such quarter, setting forth in each
case in comparative form the figures for the previous year, certified
by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to the
Administrative Agent and each Lender (or, in the case of clause (f), to the
relevant Lender):
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Event of Default arising as a result of
non-compliance with Section 7.1, except as specified in such
certificate;
(b) within 10 days after the delivery of any financial
statements pursuant to Section 6.1, (i) a certificate of a Responsible
Officer stating that, to the best of each such Responsible Officer's
knowledge, each Loan Party during such period has observed or performed
all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and the other Loan Documents to
which it is a party to be observed, performed or satisfied by it, and
that such Responsible Officer has obtained no knowledge of any Default
or Event of Default except as specified in such certificate and (ii) in
the case of quarterly or annual financial statements, a Compliance
Certificate containing all information and calculations necessary for
determining compliance by the Borrower and its Subsidiaries with the
provisions of this Agreement referred to therein as of the last day of
the fiscal quarter or fiscal year of the Borrower, as the case may be;
(c) within 60 days after the end of each of the first three
(3) fiscal quarters of the Borrower, a narrative discussion and
analysis of the financial condition and results of operations of the
Borrower and its Subsidiaries for such fiscal quarter and for the
period from the beginning of the then current fiscal year to the end
of such fiscal quarter, as compared to the comparable periods of the
previous year (or such other or similar additional statement then
required by the SEC for quarterly reports filed pursuant to the
Exchange Act);
(d) no later than three (3) Business Days prior to the
effectiveness thereof, copies of substantially final drafts of any
proposed amendment, supplement, waiver or other modification with
respect to the Senior Subordinated Note Indenture or the Spin-off
Documents;
(e) promptly upon the mailing thereof, copies of all financial
statements and reports that the Borrower sends to the holders of any
class of its debt securities or public
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equity securities and, within five days after the same are filed,
copies of all financial statements and reports that the Borrower may
make to, or file with, the SEC; and
(f) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case
may be, all its material obligations of whatever nature, except where the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings and in conformity with GAAP with respect thereto
have been provided on the books of the Borrower or its Subsidiaries, as the case
may be.
6.4 Maintenance of Existence; Compliance. (a)(i) Preserve,
renew and keep in full force and effect its corporate existence and (ii) take
all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of the Business, except, in each
case, as otherwise permitted by Section 7.4 and except, in the case of
clause (ii) above, to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect; and (b) comply with all Contractual
Obligations and Requirements of Law except to the extent that failure
to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all property
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted and (b) maintain with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually insured
against in the same general area by companies engaged in the same or a similar
business.
6.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and accounts in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities and (b)
permit representatives of any Lender, upon prior written notice, to make
reasonable visits to and inspections of any of its properties and examine and
make abstracts from any of its books and records at any reasonable time and as
often as may reasonably be desired and to discuss the business, operations,
properties and financial and other condition of the Borrower and its
Subsidiaries with officers of the Borrower and its Subsidiaries.
6.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default upon
obtaining knowledge thereof;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding that may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
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Authority, that in either case, if not cured or if adversely
determined, as the case may be, would reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or
any of its Subsidiaries in which the amount involved is $15,000,000 or
more and not covered by insurance or in which injunctive or similar
relief is sought;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence of any Reportable Event with respect to any Plan, a
failure to make any required contribution to a Plan, the creation of
any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action
by the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; and
(e) any development or event that has had or would reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary proposes
to take with respect thereto.
6.8 Environmental Laws. (a) Comply in all material respects
with, and ensure compliance in all material respects by all tenants and
subtenants, if any, with, all applicable Environmental Laws, and obtain and
comply in all material respects with and maintain, and ensure that all tenants
and subtenants obtain and comply in all material respects with and maintain,
any and all licenses, approvals, notifications, registrations or permits
required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws.
6.9 Interest Rate Protection. In the case of the Borrower,
within 180 days after the Funding Date, enter into Hedge Agreements to the
extent necessary to provide interest rate protection for at least 50% of the
aggregate principal amount of all Funded Debt of the Borrower and its
Subsidiaries through the use of interest rate swaps, caps, floors or other
appropriate hedging arrangements is subject to either a fixed interest rate or
interest rate protection for a period of not less than three years, which Hedge
Agreements shall have terms and conditions reasonably satisfactory to the
Administrative Agent.
6.10 Additional Collateral, etc. (a) With respect to any
property acquired after the Funding Date by the Borrower or any of its
Subsidiaries (other than an Excluded Subsidiary) (other than (x) any property
described in paragraph (b), (c) or (d) below and (y) any property
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subject to a Lien expressly permitted by Section 7.3(g)) as to which the
Administrative Agent, for the benefit of the Lenders, does not have a perfected
Lien, promptly (i) execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement or such other documents
as the Administrative Agent deems necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a security interest in
such property and (ii) take all actions necessary or advisable to grant to
the Administrative Agent, for the benefit of the Lenders, a perfected
first priority security interest in such property, including the filing
of Uniform Commercial Code financing statements in such jurisdictions
as may be required by the Guarantee and Collateral Agreement or by law
or as may be requested by the Administrative Agent.
(b) With respect to any fee interest in any real property
having a value (together with improvements thereof) of at least $1,000,000
acquired after the Funding Date by the Borrower or any of its Subsidiaries
(other than (x) any such real property subject to a Lien expressly permitted by
Section 7.3(g) and (z) real property acquired by any Excluded Subsidiary),
promptly (i) execute and deliver a first priority Mortgage, in favor of the
Administrative Agent, for the benefit of the Lenders, covering such real
property, (ii) if requested by the Administrative Agent, provide the Lenders
with (x) title and extended coverage insurance covering such real property in an
amount at least equal to the purchase price of such real property (or such other
amount as shall be reasonably specified by the Administrative Agent) as well as
a current ALTA survey thereof, together with a surveyor's certificate and (y)
any consents or estoppels reasonably deemed necessary or advisable by the
Administrative Agent in connection with such mortgage or deed of trust, each of
the foregoing in form and substance reasonably satisfactory to the
Administrative Agent and (iii) if requested by the Administrative Agent, deliver
to the Administrative Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
(c) With respect to any new Subsidiary (other than a Foreign
Subsidiary) created or acquired after the Funding Date by the Borrower or any of
its Subsidiaries (which, for the purposes of this paragraph (c), shall include
any existing Subsidiary that ceases to be an Excluded Subsidiary), promptly (i)
execute and deliver to the Administrative Agent such amendments to the Guarantee
and Collateral Agreement as the Administrative Agent deems necessary or
advisable to grant to the Administrative Agent, for the benefit of the Lenders,
a perfected first priority security interest in the Capital Stock of such new
Subsidiary that is owned by the Borrower or any of its Subsidiaries, (ii)
deliver to the Administrative Agent the certificates representing such Capital
Stock, together with undated stock powers, in blank, executed and delivered by a
duly authorized officer of the Borrower or such Subsidiary, as the case may be,
and take such other action as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the Administrative Agent's security
interest therein, (iii) cause such new Subsidiary (other than Excluded
Subsidiaries) (A) to become a party to the Guarantee and Collateral Agreement
and (B) to deliver to the Administrative Agent a certificate of such Subsidiary,
substantially in the form of Exhibit C, with appropriate insertions and
attachments, and (iv) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
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(d) With respect to any new Foreign Subsidiary created or
acquired after the Funding Date by the Borrower or any of its Subsidiaries,
promptly (i) execute and deliver to the Administrative Agent such amendments to
the Guarantee and Collateral Agreement as the Administrative Agent deems
necessary or advisable to grant to the Administrative Agent, for the benefit of
the Lenders, a perfected first priority security interest in the Capital Stock
of such new Subsidiary that is owned by the Borrower or any of its Subsidiaries
(provided that in no event shall more than 65% of the total outstanding Capital
Stock of any such new Subsidiary be required to be so pledged, provided,
further, that the Borrower shall not be obligated to pledge the Capital Stock of
a Foreign Subsidiary to the extent such pledge would violate the laws of the
jurisdiction of such Foreign Subsidiary's organization), (ii) deliver to the
Administrative Agent the certificates representing such Capital Stock, together
with undated stock powers, in blank, executed and delivered by a duly authorized
officer of the Borrower or such Subsidiary, as the case may be, and take such
other action as may be necessary or, in the opinion of the Administrative Agent,
desirable to perfect the Administrative Agent's security interest therein, and
(iii) if requested by the Administrative Agent, deliver to the Administrative
Agent legal opinions relating to the matters described above, which opinions
shall be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding or any Loan or other
amount is owing to any Lender or the Administrative Agent hereunder, the
Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly (it being agreed that prior to the Funding Date the Borrower and its
Subsidiaries shall only be required to comply with Section 7.15):
7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio as at the last day of any period of four consecutive fiscal
quarters of the Borrower ending with any fiscal quarter during any fiscal year
set forth below, commencing with the fiscal quarter ending on or about March 31,
2000, to exceed the ratio set forth below opposite such fiscal year:
Consolidated
Fiscal Year Leverage Ratio
----------- --------------
2000 4.75
2001 4.25
2002 3.75
2003 3.50
2004 3.50
2005 3.50
2006 3.50
2007 3.50
2008 3.50
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(b) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters of the Borrower ending with any fiscal quarter during any fiscal year
set forth below, commencing with the fiscal quarter ending on or about March 31,
2000, to be less than the ratio set forth below opposite such fiscal year:
Consolidated Interest
Fiscal Year Coverage Ratio
----------- ---------------------
2000 2.00
2001 2.25
2002 2.75
2003 3.25
2004 3.50
2005 3.50
2006 3.50
2007 3.50
2008 3.50
; provided that for the purposes of determining the ratio described for the
periods ending March 31, 2000, June 30, 2000 and September 30, 2000, such
determinations shall be made for the one, two or three consecutive fiscal
quarters, respectively, ending with such fiscal quarter.
(c) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower ending with any fiscal quarter during any fiscal
year set forth below, commencing with the fiscal quarter ending on or about
December 31, 2000, to be less than the ratio set forth below opposite such
fiscal year:
Consolidated Fixed
Fiscal Year Charge Coverage Ratio
----------- ---------------------
2000 1.00
2001 1.00
2002 1.25
2003 1.50
2004 1.75
2005 1.75
2006 1.75
2007 1.75
2008 1.75
7.2 Indebtedness. Create, issue, incur, assume, become liable
in respect of or suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
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(b) Indebtedness of the Borrower to any of its Subsidiaries
and of any Subsidiary to the Borrower or any other Subsidiary of the
Borrower;
(c) Guarantee Obligations incurred in the ordinary course of
business by the Borrower or any of its Subsidiaries of obligations of
any Subsidiary in an aggregate amount not to exceed $50,000,000 at any
time, unless otherwise permitted hereunder;
(d) Indebtedness outstanding on the date hereof (or to become
outstanding after the date hereof) and listed on Schedule 7.2(d) and
any refinancings, refundings, renewals or extensions thereof (without
increasing, or shortening the maturity of, the principal amount
thereof);
(e) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 7.3(g) or (i) in an
aggregate principal amount not to exceed $75,000,000 at any one time
outstanding;
(f) (i) Indebtedness of the Borrower in respect of the Senior
Subordinated Notes in an aggregate principal amount not to exceed
$750,000,000 and any refinancings, refundings, renewals or extensions
thereof on terms and conditions no more restrictive to the Borrower and
its Subsidiaries unless approved by the Administrative Agent, provided,
that the Borrower shall not, in any case, increase, or shorten the
maturity of, the principal amount thereof, or alter the subordination
provisions thereof without the consent of the Administrative Agent and
(ii) Guarantee Obligations of any Subsidiary Guarantor in respect of
such Indebtedness, provided, that such Guarantee Obligations are
subordinated to the same extent as the obligations of the Borrower in
respect of the Senior Subordinated Notes;
(g) Hedge Agreements in respect of (i) Indebtedness that bears
interest at a floating rate, so long as such agreements are not entered
into for speculative purposes and (ii) currencies as long as such
agreements are entered into to hedge actual exposure and not entered
into for speculative purposes;
(h) additional Indebtedness of Foreign Subsidiaries of the
Borrower under lines of credit in an aggregate principal amount not to
exceed the local currency equivalent of $100,000,000 at any time;
(i) Indebtedness of the Borrower or any of its Subsidiaries in
respect of Stub Debt; and
(j) additional Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount (for the Borrower and all
Subsidiaries) not to exceed $50,000,000 at any one time outstanding.
7.3 Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, whether now owned or hereafter acquired, except for:
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(a) Liens for taxes not yet due or that are being contested in
good faith by appropriate proceedings, provided that adequate reserves
with respect thereto are maintained on the books of any Loan Party or
any Excluded Subsidiary, as the case may be, in conformity with GAAP;
(b) statutory liens of landlords and liens of carriers',
warehousemen's, mechanics', materialmen's, repairmen's or other like
Liens arising in the ordinary course of business that are not overdue
for a period of more than 30 days or that are being contested in good
faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and that do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(f) Liens in existence on the date hereof (or to be entered
into after the date hereof) listed on Schedule 7.3(f), securing
Indebtedness permitted by Section 7.2(d), provided that no such Lien is
spread to cover any additional property after the Funding Date and that
the amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness incurred pursuant to Section
7.2(e) on property at the time it is acquired by any the Borrower or
any of its Subsidiaries, provided that such Liens do not spread to
cover other properties;
(h) Liens arising solely by virtue of any statutory or common
law provisions related to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts;
(i) Liens securing Indebtedness of the Borrower or any
Subsidiary incurred pursuant to Section 7.2(e) to finance the
acquisition of fixed or capital assets, provided that (i) such Liens do
not at any time encumber any property other than the property financed
by such Indebtedness and (ii) the amount of Indebtedness secured
thereby is not increased;
(j) Liens created pursuant to the Security Documents;
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(k) Liens consisting of judgment or judicial attachment Liens
and Liens securing contingent obligations on appeal and other bonds in
connection with court proceedings or judgments up to the aggregate at
any time outstanding of $15,000,000;
(l) any interest or title of a lessor under any lease entered
into by the Borrower or any other Subsidiary in the ordinary course of
its business and covering only the assets so leased;
(m) Permitted Receivables Financings;
(n) Liens not otherwise permitted by this Section so long as
neither (i) the aggregate outstanding principal amount of the
obligations secured thereby nor (ii) the aggregate fair market value
(determined as of the date such Lien is incurred) of the assets subject
thereto exceeds (as to the Borrower and all Subsidiaries) $50,000,000
at any one time; and
(o) Liens on property of Foreign Subsidiaries securing
Indebtedness permitted by Section 7.2(h).
7.4 Fundamental Changes. Enter into any merger, consolidation
or amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of, all or substantially all of its
property or business, except that:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving corporation) or with or into any
Wholly Owned Subsidiary Guarantor (provided that the Wholly Owned
Subsidiary Guarantor shall be the continuing or surviving corporation);
(b) any Subsidiary of the Borrower may Dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to the Borrower
or any Wholly Owned Subsidiary Guarantor;
(c) any Subsidiary in which the Borrower and its Subsidiaries
own Capital Stock representing less than 80% of the ordinary voting
power of such Subsidiary may be liquidated as long as the proceeds of
such liquidation (after satisfying all Contractual Obligations of such
Subsidiary) are distributed to the holders of the Capital Stock of such
Subsidiary on an approximately ratable basis (based on their respective
equity ownership interests in such Subsidiary); and
(d) the Spin-Off Transactions may be consummated in accordance
with the Spin-Off Documents.
7.5 Disposition of Property. Dispose of any of its property,
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's Capital Stock to any Person,
except:
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(a) the Disposition of obsolete or worn out property in the
ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.4(b);
(d) the sale or issuance of any Subsidiary's Capital Stock to
the Borrower or any Wholly Owned Subsidiary Guarantor;
(e) any Permitted Receivables Financing;
(f) Dispositions listed and described on Schedule 7.5 attached
hereto;
(g) the Disposition of other property not described in clauses
(a) - (f) above for fair market value as long as (i) at least 80% of
the consideration consists of cash and cash equivalents and (ii) the
aggregate fair market value of such property so disposed of does not
exceed the sum of (A) 10% of the Consolidated Total Assets of the
Borrower as determined on the Funding Date plus (B) the proceeds of all
Reinvestment Deferred Amounts with respect to Dispositions reinvested
in the business of the Borrower and its Subsidiaries after the Funding
Date; provided, that neither the Borrower nor any Subsidiary Guarantor
shall make Dispositions, the proceeds of which are reinvested in
Subsidiaries that are not Subsidiary Guarantors, with respect to
property having an aggregate fair market value in excess of 25% of the
Consolidated Total Assets of the Borrower as determined on the Funding
Date;
(h) the Spin-Off Transactions may be consummated in accordance
with the Spin-Off Documents; and
(i) the PCA IPO.
7.6 Restricted Payments. Declare or pay any dividend (other
than dividends payable solely in common stock of the Person making such
dividend) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any Capital Stock of the Borrower or any
Subsidiary, whether now or hereafter outstanding, or make any other distribution
in respect thereof, either directly or indirectly, whether in cash or property
or in obligations of the Borrower or any Subsidiary (collectively, "Restricted
Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the
Borrower or any Subsidiary;
(b) the Borrower may purchase the Borrower's common stock or
common stock options from present or former officers or employees of
the Borrower or any Subsidiary, provided, that the aggregate amount of
payments under this paragraph after the Funding Date (net of any
proceeds received by the Borrower after the Funding Date in connection
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with resales of any common stock or common stock options so purchased)
shall not exceed $10,000,000;
(c) the Borrower and its Subsidiaries may make Restricted
Payments required in order to consummate the Spin-Off;
(d) the Borrower may pay tax liabilities within 12 months of
the Funding Date arising from the PCA IPO;
(e) the Borrower may pay dividends in the fourth quarter of
fiscal year 1999 in an aggregate amount not to exceed $2,500,000; and
(f) so long as no Default or Event of Default shall have
occurred and be continuing or would result therefrom, the Borrower may
pay dividends and repurchase its Capital Stock in any fiscal year
(beginning with fiscal year 2000) in an aggregate amount not to exceed
$15,000,000.
7.7 Capital Expenditures. Make or commit to make any Capital
Expenditure, except (a) Capital Expenditures of the Borrower and its
Subsidiaries in the ordinary course of business, together with any Investments
in Joint Ventures in excess of $25,000,000 under subsection 7.8(h), not
exceeding (a) $75,000,000 from the Funding Date through December 31, 1999 and
(b) $275,000,000 per fiscal year thereafter; provided, that (i) up to 50% of any
such amount not so expended in the period for which it is permitted may be
carried over for expenditure in the next succeeding fiscal year only and (ii)
Capital Expenditures made pursuant to this clause (a) during any fiscal year
(beginning with fiscal year 2000) shall be deemed made, first, in respect of
amounts permitted for such fiscal year as provided above and, second, in respect
of amounts carried over from the prior fiscal year pursuant to subclause (i)
above and (b) Capital Expenditures made with the proceeds of any Reinvestment
Deferred Amount.
7.8 Investments. Make any advance, loan, extension of credit
(by way of guaranty or otherwise) or capital contribution to, or purchase any
Capital Stock, bonds, notes, debentures or other debt securities of, or any
assets constituting a business unit of, or make any other investment in, any
Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to employees of the Borrower or any
Subsidiary of the Borrower in the ordinary course of business
(including for travel, entertainment and relocation expenses) in an
aggregate amount for the Borrower or any Subsidiary of the Borrower not
to exceed $10,000,000 at any one time outstanding;
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(e) the Spin-off Transactions consummated substantially in
accordance with the Spin-Off Documents;
(f) Investments made by the Borrower or any of its
Subsidiaries in the Borrower or any of its Subsidiaries with the
proceeds of any Reinvestment Deferred Amount;
(g) intercompany Investments by the Borrower or any of its
Subsidiaries in the Borrower or any Person that, prior to such
investment, is a Subsidiary;
(h) Investments in Joint Ventures in an aggregate amount not
to exceed (x) $8,000,000 from the Funding Date through December 31,
1999 and (y) $50,000,000 in each fiscal year thereafter; provided, that
(i) up to 50% of any such amount not so invested in the period for
which it is permitted may be carried over for investment in the next
succeeding fiscal year only and (ii) Investments made pursuant to this
clause (h) during any fiscal year (beginning with fiscal year 2000)
shall be deemed made, first, in respect of amounts permitted for such
fiscal year as provided above and, second, in respect of amounts
carried over from the prior fiscal year pursuant to subclause (i)
above; provided, further, that any such Investments in excess of
$25,000,000 together with any Capital Expenditures shall not exceed the
amounts permitted under Section 7.7;
(i) Investments in existence on the date hereof listed on
Schedule 7.8(i), provided that no such Investment is increased except
as permitted by the other provisions of this Section 7.8; and
(j) in addition to Investments otherwise expressly permitted
by this Section, Investments by the Borrower or any of its Subsidiaries
in an aggregate amount (valued at cost) not to exceed $25,000,000
during the term of this Agreement.
7.9 Optional Payments and Modifications of Senior Subordinated
Notes. (a) Make or offer to make any optional or voluntary payment, prepayment,
repurchase or redemption of or otherwise optionally or voluntarily defease or
segregate funds with respect to the Senior Subordinated Notes, (b) amend,
modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of the Senior
Subordinated Notes or the Senior Subordinated Indenture (other than any such
amendment, modification, waiver or other change that (i) would extend the
maturity or reduce the amount of any payment of principal thereof or reduce the
rate or extend any date for payment of interest thereon and (ii) does not
involve the payment of a consent fee), or (c) designate any Indebtedness (other
than obligations of the Loan Parties pursuant to the Loan Documents) as
"Designated Senior Debt" for the purposes of the Senior Subordinated Note
Indenture.
7.10 Transactions with Affiliates. Enter into or suffer to
exist any transaction, including any purchase, sale, lease or exchange of
property, the rendering of any service or the payment of any management,
advisory or similar fees, with any non-consolidated Affiliate unless such
transaction is upon fair and reasonable terms no less favorable to the Borrower
or such Subsidiary, as the case may be, than it would obtain in a comparable
arm's length transaction with a Person that is not a non-consolidated Affiliate.
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7.11 Sales and Leasebacks. Enter into or suffer to exist any
arrangement with any Person providing for the leasing by the Borrower or any
Subsidiary of real or personal property that has been or is to be sold or
transferred by the Borrower or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or such
Subsidiary.
7.12 Changes in Fiscal Periods. Permit the fiscal year of the
Borrower to end on a day other than December 31 or change the Borrower's method
of determining fiscal quarters.
7.13 Negative Pledge Clauses. Enter into or suffer to exist or
become effective any agreement that prohibits or limits the ability of the
Borrower or any of its Subsidiaries to create, incur, assume or suffer to exist
any Lien upon any of its property or revenues, whether now owned or hereafter
acquired, to secure its obligations under the Loan Documents to which it is a
party other than (a) this Agreement and the other Loan Documents, (b) any
agreements governing any purchase money Liens or Capital Lease Obligations
otherwise permitted hereby (in which case, any prohibition or limitation shall
only be effective against the assets financed thereby), (c) customary
non-assignment provisions of any contract and (d) customary restrictions on the
creation of Liens on any property or assets arising under a security agreement
governing a Lien permitted under this Agreement.
7.14 Lines of Business. Enter into any business, either
directly or through any Subsidiary, except for those businesses in which the
Borrower and its Subsidiaries are engaged on the date of this Agreement (after
giving effect to the Spin-Off) or that are reasonably related thereto.
7.15 Amendments to Spin-Off Documents. Amend, supplement or
otherwise modify the terms and conditions of the Spin-Off Documents or any other
documents delivered in connection therewith except for any such amendment,
supplement or modification that could not reasonably be expected to have a
Material Adverse Effect or to adversely affect the ability of the Borrower and
its Subsidiaries to perform their respective obligations under the Credit
Documents or the Spin-off Documents.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan
or Reimbursement Obligation when due in accordance with the terms
hereof; or the Borrower shall fail to pay any interest on any Loan or
Reimbursement Obligation, or any other amount payable hereunder or
under any other Loan Document, within five days after any such interest
or other amount becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or that is contained in
any certificate, document or financial or other written statement
furnished by it at any time under or in connection
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with this Agreement or any such other Loan Document shall prove to have
been inaccurate in any material respect on or as of the date made or
deemed made; or
(c) any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii) of Section
6.4(a) (with respect to the Borrower only), Section 6.7(a) or Section 7
of this Agreement or Sections 5.5 and 5.7(b) of the Guarantee and
Collateral Agreement; or
(d) any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Loan Document (other than as provided in paragraphs (a) through
(c) of this Section), and such default shall continue unremedied for a
period of 30 days after notice to the Borrower from the Administrative
Agent or the Required Lenders; or
(e) the Borrower or any of its Subsidiaries shall (i) default
in making any payment of any principal of any Indebtedness (including
any Guarantee Obligation, but excluding the Loans) on the scheduled or
original due date with respect thereto; or (ii) default in making any
payment of any interest on any such Indebtedness beyond the period of
grace, if any, provided in the instrument or agreement under which such
Indebtedness was created; or (iii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case
of any such Indebtedness constituting a Guarantee Obligation) to become
payable; provided, that a default, event or condition described in
clause (i), (ii) or (iii) of this paragraph (e) shall not at any time
constitute an Event of Default unless, at such time, one or more
defaults, events or conditions of the type described in clauses (i),
(ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the aggregate outstanding
principal amount of which exceeds in the aggregate $50,000,000 for the
Borrower and its Subsidiaries; or an event of default shall occur and
be continuing under the Senior Subordinated Note Indenture; or
(f) (i) the Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any substantial part of its assets, or the Borrower or
any of its Subsidiaries shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above that (A) results in the
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entry of an order for relief or any such adjudication or appointment or
(B) remains undismissed, undischarged or unbonded for a period of 60
days; or (iii) there shall be commenced against the Borrower or any of
its Subsidiaries any case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets that results in the
entry of an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Borrower or any of its Subsidiaries shall
take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Borrower or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due; or
(g) (i) any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could, in the sole judgment of the
Required Lenders, reasonably be expected to have a Material Adverse
Effect; or
(h) one or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate for
the Borrower and its Subsidiaries a liability (not paid or fully
covered by insurance as to which the relevant insurance company has
acknowledged coverage) of $75,000,000 or more, and all such judgments
or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 30 days from the entry thereof; or
(i) any of the Security Documents shall cease, for any reason,
to be in full force and effect, or any Loan Party or any Affiliate of
any Loan Party shall so assert, or any Lien created by any of the
Security Documents shall cease to be enforceable and of the same effect
and priority purported to be created thereby if the aggregate value of
the affected Collateral is more than $5,000,000; or
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(j) the guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason, to be in full force
and effect or any Loan Party shall so assert; or
(k) (i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), shall become, or obtain
rights (whether by means or warrants, options or otherwise) to become,
the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under
the Exchange Act), directly or indirectly, of more than 25% of the
outstanding common stock of the Borrower; or (ii) the board of
directors of the Borrower shall cease to consist of a majority of
Continuing Directors; or (iii) a Specified Change of Control shall
occur; or
(l) the Senior Subordinated Notes or any guarantee thereof
shall cease, for any reason, to be validly subordinated to the
Obligations or the obligations of the Subsidiary Guarantors under the
Guarantee and Collateral Agreement, as the case may be, as provided in
the Senior Subordinated Note Indenture, or any Loan Party, any
Affiliate of any Loan Party, the trustee in respect of the Senior
Subordinated Notes or the holders of at least 25% in aggregate
principal amount of the Senior Subordinated Notes shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately
become due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with the consent of
the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower
declare the Revolving Commitments to be terminated forthwith, whereupon the
Revolving Commitments shall immediately terminate; and (ii) with the consent of
the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents (including all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the Borrower shall at such time deposit
in a cash collateral account opened by the Administrative Agent an amount equal
to the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied
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and all other obligations of the Borrower hereunder and under the other Loan
Documents shall have been paid in full, the balance, if any, in such cash
collateral account shall be returned to the Borrower (or such other Person as
may be lawfully entitled thereto). Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived by the Borrower.
SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agents under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Agents shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
9.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution,
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notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including counsel to
the Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the other Loan Documents in accordance with a request
of the Required Lenders (or, if so specified by this Agreement, all Lenders),
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Loans.
9.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender, the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders (or, if so specified by this
Agreement, all Lenders); provided that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereinafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. Each Lender represents to the Agents that
it has, independently and without reliance upon any Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any 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 analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except
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for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Loan Party or any
affiliate of a Loan Party that may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify each Agent
in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section (or, if indemnification is sought
after the date upon which the Commitments shall have terminated and the Loans
shall have been paid in full, ratably in accordance with such Aggregate Exposure
Percentages immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever that may at any time
(whether before or after the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent's gross negligence or
willful misconduct. The agreements in this Section shall survive the payment of
the Loans and all other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with any Loan Party as though such Agent was not an Agent. With
respect to its Loans made or renewed by it and with respect to any Letter of
Credit issued or participated in by it, each Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 20 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8(a) or Section
8(f) with respect to the Borrower shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights,
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powers and duties as Administrative Agent shall be terminated, without any other
or further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 20 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall assume and perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Section 9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement and the other Loan Documents.
9.10 Co-Documentation Agents and Syndication Agent. Neither
the Co-Documentation Agents nor the Syndication Agent shall have any duties or
responsibilities hereunder in their capacities as such.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement, any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may,
or, with the written consent of the Required Lenders, the Administrative Agent
and each Loan Party party to the relevant Loan Document may, from time to time,
(a) enter into written amendments, supplements or modifications hereto and to
the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) eliminate or reduce any voting rights under
this Section 10.1, forgive the principal amount or extend the final scheduled
date of maturity of any Loan or extend any L/C Participant's interest in the
Issuing Lender's obligations and rights under any Letter of Credit beyond the
Revolving Termination Date, extend the scheduled date of any amortization
payment in respect of any Term Loan, reduce the stated rate of any interest or
fee payable hereunder (except (x) in connection with the waiver of applicability
of any post-default increase in interest rates and (y) that any amendment or
modification in the financial definitions in this Agreement shall not constitute
a reduction in the rate of interest or commitment fee for purposes of this
clause (i)) or extend the scheduled date of any payment thereof, or increase the
amount or extend the expiration date of any Lender's Revolving Commitment, in
each case without the consent of each Lender directly affected thereby; (ii)
reduce any percentage specified in the definition of Required Lenders, consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents, release all or
substantially all of the Collateral or release all or substantially all of the
Subsidiary Guarantors from their obligations under the Guarantee and Collateral
Agreement, in each case without the consent of all Lenders; (iii) amend, modify
or waive any provision of Section 2.17 without the consent of the Majority
Facility Lenders in respect of each Facility adversely affected thereby;
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(iv) reduce the amount of Net Cash Proceeds or Excess Cash Flow required to be
applied to prepay Loans under this Agreement without the consent of the Majority
Facility Lenders under each Facility adversely affected thereby; (v) reduce the
percentage specified in the definition of Majority Facility Lenders with respect
to any Facility without the consent of all Lenders under such Facility; (vi)
amend, modify or waive (A) the second proviso of the first sentence of Section
2.10, (B) the proviso of Section 2.17(b) or (C) Section 2.11(e), in each case
without the consent of the Majority Facility Lenders of the Tranche B Facility
and the Tranche C Facility; (vii) amend, modify or waive any provision of
Section 9 without the consent of the Administrative Agent; (viii) amend, modify
or waive any provision of Section 2.6 or 2.7 without the consent of the
Swingline Lender; (ix) amend, modify or waive any provision of Section 3 without
the consent of the Issuing Lender; (x) or amend, modify or waive any provision
of Section 5.2(b) without the consent of each Lender directly affected thereby
(it being agreed that, with the consent of the Required Lenders, additional
extensions of credit and tranches and increases in the amount of the Facilities
may be added to this Agreement and may share in any payments, prepayments,
Collateral and voting rights on a pro rata basis and corresponding amendments to
the Loan Documents may be made); provided further that prior to the Funding Date
the amounts of the Facilities may be reallocated with the written consent of the
Required Lenders. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Administrative Agent and all future
holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders
and the Administrative Agent shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
The Borrower: Tenneco Automotive Inc.
000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
Attention: Xxxx Novas
Telecopy: 000-000-0000
Telephone: 000-000-0000
with a copy to: Tenneco Automotive Inc.
000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: 000-000-0000
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Telephone: 000-000-0000
The Administrative Agent: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
with a copy to: One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all its out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
other Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby and
thereby, including the reasonable fees and disbursements of counsel to the
Administrative Agent and filing and recording fees and expenses, (b) to pay or
reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including the fees and disbursements of counsel (including the
allocated fees and expenses of in-house counsel) to each Lender and of counsel
to the Administrative Agent, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, that may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
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supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender and the Administrative Agent and their
respective officers, directors, trustees, employees, affiliates, agents and
controlling persons (each, an "Indemnitee") harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents, including any of the foregoing relating to the use of proceeds of the
Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower or any of its
Subsidiaries or any of the Properties and the reasonable fees and expenses of
legal counsel in connection with claims, actions or proceedings by any
Indemnitee against any Loan Party under any Loan Document (all the foregoing in
this clause (d), collectively, the "Indemnified Liabilities"), provided, that
the Borrower shall have no obligation hereunder to any Indemnitee with respect
to Indemnified Liabilities to the extent such Indemnified Liabilities are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of such
Indemnitee. Without limiting the foregoing, and to the extent permitted by
applicable law, the Borrower agrees not to assert and to cause its Subsidiaries
not to assert, and hereby waives and agrees to cause its Subsidiaries to so
waive, all rights for contribution or any other rights of recovery with respect
to all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses of whatever kind or nature, under or related to Environmental
Laws, that any of them might have by statute or otherwise against any
Indemnitee. All amounts due under this Section 10.5 shall be payable promptly
after written demand therefor. The agreements in this Section 10.5 shall survive
repayment of the Loans and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent, all future holders of the Loans
and their respective successors and assigns, except that the Borrower may not
assign or transfer any of its rights or obligations under this Agreement without
the prior written consent of each Lender (except in a transaction permitted by
Section 7.4).
(b) Any Lender may, without the consent of the Borrower or the
Administrative Agent, in accordance with applicable law, at any time sell to one
or more banks, financial institutions or other entities (each, a "Participant")
participating interests in any Loan owing to such Lender, any Commitment of such
Lender or any other interest of such Lender hereunder and under the other Loan
Documents. In the event of any such sale by a Lender of a participating interest
to a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. In no event shall
any Participant under any such participation have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party
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therefrom, except to the extent that such amendment, waiver or consent would
reduce the principal of, or interest on, the Loans or any fees payable
hereunder, or postpone the date of the final maturity of the Loans, in each case
to the extent subject to such participation. The Borrower agrees that if amounts
outstanding under this Agreement and the Loans are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.18, 2.19 and 2.20 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Lender; provided that, in the case of Section 2.19, such Participant
shall have complied with the requirements of said Section and provided, further,
that no Participant shall be entitled to receive any greater amount pursuant to
any such Section than the transferor Lender would have been entitled to receive
in respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with
applicable law, at any time and from time to time assign to any Lender, any
affiliate of any Lender or any Approved Fund or, with the consent of the
Borrower and the Administrative Agent (which, in each case, shall not be
unreasonably withheld or delayed), to an additional bank, financial institution
or other entity (an "Assignee") all or any part of its rights and obligations
under this Agreement pursuant to an Assignment and Acceptance, executed by such
Assignee, such Assignor and any other Person whose consent is required pursuant
to this paragraph, and delivered to the Administrative Agent for its acceptance
and recording in the Register; provided that (i) no such assignment to an
Assignee (other than any Lender, any affiliate of any Lender or any Approved
Fund) shall be in an aggregate principal amount of less than $5,000,000 (other
than in the case of an assignment of all of a Lender's interests under this
Agreement) and (ii) after giving effect to any such assignment, such Lender and
its affiliates (including any Approved Funds) shall retain Commitments and Term
Loans in an aggregate principal amount of $5,000,000 (other than in the case of
an assignment of all of a Lender's interests under this Agreement), in each case
unless otherwise agreed by the Borrower and the Administrative Agent. For
purposes of the proviso contained in the preceding sentence, the amount
described therein shall be aggregated in respect of each Lender and its related
Approved Funds, if any (other than in the case of an assignment of all of a
Lender's interests under this Agreement). Any such assignment need not be
ratable as among the Facilities. Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be deemed a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Commitment and/or Loans as
set forth therein, and (y) the Assignor thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of an
Assignor's rights and obligations under this Agreement, such Assignor shall
cease to be a party hereto). Notwithstanding any provision of this Section 10.6,
the consent of the Borrower shall not be required for any assignment that
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occurs when an Event of Default pursuant to Sections 8(a) or 8(f) shall have
occurred and be continuing with respect to the Borrower.
(d) Notwithstanding anything to the contrary contained herein,
any Lender which is a bank (a "Granting Bank") may grant to a special purpose
funding vehicle (an "SPC"), identified as such in writing from time to time by
the Granting Bank to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Loan which such Granting Bank
would otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided, that (i) nothing herein shall constitute a commitment by any SPC to
make any Loan and (ii) if an SPC elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Bank shall be
obligated to make such Loan pursuant to the terms hereof. The making of a Loan
by an SPC hereunder shall utilize the Commitment of the Granting Bank to the
same extent, and as if, such Loan were made by such Granting Bank. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation hereunder (all liability for which shall remain with the
Granting Bank). In furtherance of the foregoing, each party hereto agrees (which
agreement shall survive termination of this Agreement) that in the event of any
such grant by a Granting Bank to an SPC of the option to provide to the Borrower
all or any part of its Loan, (i) such Granting Bank's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged and such
Granting Bank shall remain solely responsible for the performance of such
obligations under this Agreement and the other Loan Documents, (ii) such
Granting Bank shall remain the holder of such Loan for all purposes under this
Agreement and the other Loan Documents and nothing contained in this Section
10.6(d) is intended to excuse the Granting Bank from the full performance of its
obligations hereunder and thereunder or otherwise diminish the duties and
liabilities of the Granting Bank under this Agreement or the other Loan
Documents (other than it being understood that any payment obligation on the
part of such Granting Bank to make a Loan hereunder shall, if such Loan is made
by any SPC, be deemed to have been satisfied upon the making of such Loan by
such SPC), (iii) the Borrower and the Administrative Agent shall continue to
deal solely and directly with such Granting Bank in connection with such
Granting Bank's rights and obligations under this Agreement and the other Loan
Documents, (iv) in no event shall any SPC have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, or be included in any determination of
the Required Lenders or the Majority Facility Lenders hereunder for any purpose,
(v) prior to the date that is one year and one day after the payment in full of
all outstanding commercial paper or other senior Indebtedness of any SPC, it
will not institute against, or join any other Person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section
10.6(d), any SPC may (X) with notice to, but without prior written consent of,
the Borrower and the Administrative Agent (subject, however, to the approval of
the financial institution as set forth below), assign all or a portion of its
interests in any Loan to the Granting Bank or to a financial institution
(previously approved in writing by the Borrower and the Administrative Agent)
providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of the Loans and (Y) subject to Section 10.15
hereof, disclose on a confidential basis any non-public information relating to
its Loans to any rating agency as
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specifically provided for in Section 10.15 hereof. This Section 10.6 may not be
amended without the prior written consent of the SPC, the Borrower and the
Administrative Agent.
(e) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 10.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitment of, and
the principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, each other Loan Party, the Administrative Agent and the
Lenders shall treat each Person whose name is recorded in the Register as the
owner of the Loans and any Notes evidencing the Loans recorded therein for all
purposes of this Agreement. Any assignment of any Loan, whether or not evidenced
by a Note, shall be effective only upon appropriate entries with respect thereto
being made in the Register (and each Note shall expressly so provide). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the Register only upon surrender for registration of assignment or
transfer of the Note evidencing such Loan, accompanied by a duly executed
Assignment and Acceptance, and thereupon one or more new Notes shall be issued
to the designated Assignee.
(f) Upon its receipt of an Assignment and Acceptance executed
by an Assignor, an Assignee and any other Person whose consent is required by
Section 10.6(c), together with payment to the Administrative Agent of a
registration and processing fee of $3,500 (which shall not be an obligation of
the Borrower), the Administrative Agent shall (i) promptly accept such
Assignment and Acceptance and (ii) record the information contained therein in
the Register on the effective date determined pursuant thereto.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section 10.6 concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including any pledge or
assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
(h) The Borrower, upon receipt of written notice from the
relevant Lender, agrees to issue Notes to any Lender requiring Notes to
facilitate transactions of the type described in paragraph (g) above.
10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular Lender
or to the Lenders under a particular Facility, if any Lender (a "Benefitted
Lender") shall, at any time after the Loans and other amounts payable hereunder
shall immediately become due and payable pursuant to Section 8, receive any
payment of all or part of the Obligations owing to it, or receive any collateral
in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant
to events or proceedings of the nature referred to in Section 8(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, such Benefitted Lender shall purchase for cash from the other
Lenders a participating interest in such portion of the Obligations owing to
each such other Lender, or shall provide such other Lenders with the benefits of
any such collateral, as shall be necessary to cause
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such Benefitted Lender to share the excess payment or benefits of such
collateral ratably with each of the Lenders; provided, however, that if all or
any portion of such excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise), to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower, as the case may be.
Each Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such setoff and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.
10.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed signature page of this
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrower and the Administrative Agent.
10.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
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(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States for
the Southern District of New York, and appellate courts from any
thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower, as the case may be at its address set forth
in Section 10.2 or at such other address of which the Administrative
Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
10.13 Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent and Lenders, on one
hand, and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
10.14 Releases of Guarantees and Liens. (a) Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
Administrative Agent is hereby irrevocably authorized by each Lender (without
requirement of notice to or consent of any Lender except as expressly required
by Section 10.1) to take any action requested by the Borrower having the effect
of releasing any Collateral or guarantee obligations (i) to the extent necessary
to permit consummation of any transaction not prohibited by any Loan Document or
that has been
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consented to in accordance with Section 10.1 or (ii) under the circumstances
described in paragraph (b) or (c) below.
(b) At such time as the Loans, the Reimbursement Obligations
and the other obligations under the Loan Documents (other than obligations under
or in respect of Hedge Agreements) shall have been paid in full, the Commitments
have been terminated and no Letters of Credit shall be outstanding, the
Collateral shall be released from the Liens created by the Security Documents,
and the Security Documents and all obligations (other than those expressly
stated to survive such termination) of the Administrative Agent and each Loan
Party under the Security Documents shall terminate, all without delivery of any
instrument or performance of any act by any Person.
(c) At such time as (i)the Borrower's senior unsecured
long-term debt rating is at least BAA3 from Xxxxx'x Investors Service, Inc. and
BBB- from Standard & Poor's Rating Group or equivalent rating from any successor
rating agency and (ii) the Tranche B Term Loans and the Tranche C Term Loans
have been paid in full, the Liens created by the Security Documents on the
Collateral shall be terminated and the Administrative Agent is hereby
irrevocably authorized by each Lender (without requirement of notice or consent
of any Lender) to take any action requested by the Borrower to release the
Collateral from such Liens.
10.15 Confidentiality. Each of the Administrative Agent and
each Lender agrees to keep confidential all non-public information provided to
it by any Loan Party pursuant to this Agreement that is designated by such Loan
Party as confidential; provided that nothing herein shall prevent the
Administrative Agent or any Lender from disclosing any such information (a) to
the Administrative Agent, any other Lender, any affiliate of any Lender or any
Approved Fund, (b) to any Transferee or prospective Transferee that agrees to
comply with the provisions of this Section, (c) to its employees, directors,
agents, attorneys, accountants and other professional advisors or those of any
of its affiliates, (d) upon the request or demand of any Governmental Authority,
(e) in response to any order of any court or other Governmental Authority or as
may otherwise be required pursuant to any Requirement of Law, (f) if requested
or required to do so in connection with any litigation or similar proceeding,
(g) that has been publicly disclosed, (h) to the National Association of
Insurance Commissioners or any similar organization or any nationally recognized
rating agency that requires access to information about a Lender's investment
portfolio in connection with ratings issued with respect to such Lender, (i) in
connection with the exercise of any remedy hereunder or under any other Loan
Document or (j) to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor (so long as
such contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provisions of this Section 10.15).
10.16 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
91
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
TENNECO INC.
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By:
-----------------------------------------
Name:
Title:
CITICORP USA, INC., as Syndication Agent
By:
-----------------------------------------
Name:
Title:
92
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
TENNECO INC.
By:
-----------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CITICORP USA, INC., as Syndication Agent
By:
-----------------------------------------
Name:
Title:
93
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
TENNECO INC.
By:
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CITICORP USA, INC., as Syndication Agent
By: /s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Managing Director
Attorney-in-fact
00
XXXXXXXXXXX, XX, Xxx Xxxx and Grand Cayman
Branches, as Co-Documentation Agent and as
a Lender
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
BANK OF AMERICA, N.A., as Co-Documentation
Agent and as a Lender
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
00
XXXXXXXXXXX, XX, Xxx Xxxx and Grand Cayman
Branches, as Co-Documentation Agent and as
a Lender
By:
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
By:
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
BANK OF AMERICA, N.A., as Co-Documentation
Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
96
ALLSTATE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory
97
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory
98
BALANCED HIGH-YIELD FUND I LTD.
By: BHF (USA) Capital Corporation
As Attorney-In-Fact
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Associate
99
BHF (USA) CAPITAL CORPORATION
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Associate
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
000
XXXX XX XXXXXXX, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
000
XXXX XX XXXXXX
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
102
BOEING CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Senior Documentation Officer
103
BANK OF MONTREAL
By: /s/ Xxxxxxx X. Turf
-----------------------------------------
Name: Xxxxxxx X. Turf
Title: Director
000
XXX XXXX XX XXX XXXX
By: /s/ Xxxx-Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx-Xxxx Xxxxxxx
Title: Vice President
000
XXX XXXX XX XXXX XXXXXX
By: /s/ M. D. Xxxxx
-----------------------------------------
Name: M. D. Xxxxx
Title: Agent Operations
000
XXXX XXX, XXXXXXXX
By: /s/ Xxxx X. XxXxxxx
-----------------------------------------
Name: Xxxx X. XxXxxxx
Title: Vice President
107
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ X. Xxxxxxxxxx
-----------------------------------------
Name: X. Xxxxxxxxxx
Title: Vice President
108
CITICORP USA, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Managing Director
109
COMERICA BANK
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
110
COMMERZBANK AG
NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
111
KZH CNC LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
112
KZH CNC LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
113
WINGED FOOT FUNDING TRUST
By: /s/ Xxxxx x. Xxxxxx
-----------------------------------------
Name: Xxxxx x. Xxxxxx
Title: Authorized Agent
114
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
115
NORTH AMERICAN SENIOR FLOATING RATE FUND
BY: CYPRESS TREE INVESTMENT MANAGEMENT
COMPANY, INC. AS PORTFOLIO MANAGER
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
116
CYPRESS TREE SENIOR FLOATING RATE FUND
BY: CYPRESS TREE INVESTMENT MANAGEMENT
COMPANY, INC. AS PORTFOLIO MANAGER
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
117
CYPRESS TREE INVESTMENT FUND, LLC
BY: CYPRESS TREE INVESTMENT MANAGEMENT
COMPANY, INC. ITS MANAGING MEMBER
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
118
KZH CYPRESSTREE-1 LLC
By: /s/ Xxxxx Xxxx
-----------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
119
THE DAI-ICHI KANGYO BANK, LIMITED
By: /s/ Naoki Yamamori
-----------------------------------------
Name: Naoki Yamamori
Title: Senior Vice President and
Department Head
120
DRESDNER BANK AG, NEW YORK &
GRAND CAYMAN BRANCHES
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
121
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG - NEW YORK BRANCH
By: /s/ Xxxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: First Vice President
122
FIRST UNION NATIONAL BANK
By: /s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
123
FRANKLIN FLOATING RATE TRUST
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
124
FREMONT INVESTMENT AND LOAN
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
125
THE FUJI BANK, LIMITED
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President & Group Head
126
KZH WATERSIDE LLC
By: /s/ Xxxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
127
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
000
XXXXXXXXXX XXXX-XXX XXXXXXXXXXX XX,
XXX XXXX BRANCH
By: /s/ Xxxxx Xxxxx xxx Xxxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxx xxx Xxxxxxxxxx
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
000
XXX XXXXXXXX XXXXXXXXXXXXX XX,
XXXXXXXXXX BRANCH
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Director
By: /s/ Xxxxxxx Ziwey
-------------------------------
Name: Xxxxxxx Ziwey
Title: Director
130
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
CHICAGO BRANCH
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Joint General Manager
131
ING (U.S.) CAPITAL LLC
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
132
KZH ING - 1 LLC
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
133
KZH ING - 2 LLC
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
134
FLOATING RATE PORTFOLIO
By: INVESCO Senior Secured Management Inc.
as Attorney-in-Fact
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
135
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
136
THE MITSUBISHI TRUST AND BANKING CORPORATION
By: /s/ Xxxxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice President
137
XXXXXX XXXXXXX XXXX XXXXXX PRIME
INCOME TRUST
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
138
NATEXIS BANQUE BFCE
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Associate
By: /s/ Xxxxx X. Xxxxxx, Xx.
----------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President & Group Manager
139
NATIONAL CITY BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
140
NEW YORK LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
141
ORIX USA CORPORATION
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Executive Vice President
142
PPM SPYGLASS FUNDING TRUST
By: /s/ Xxxxx x. Xxxxxx
------------------------------
Name: Xxxxx x. Xxxxxx
Title: Authorized Agent
143
PRINCIPAL LIFE INSURANCE COMPANY
BY: PRINCIPAL CAPITAL MANAGEMENT,
LLC, A DELAWARE LIMITED LIABILITY
COMPANY, ITS AUTHORIZED SIGNATORY
By: /s/ Xxx Xxxxx
--------------------------------------
Name: Xxx Xxxxx
Title: Counsel
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: Counsel
144
XXXXXX FLOATING RATE FUND
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President
145
OLYMPIC FUNDING TRUST, SERIES 1999-1
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Agent
146
KZH RIVERSIDE 1 LLC
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
147
SOCIETE GENERALE, NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
148
KZH III LLC
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
149
STERLING ASSET MANAGEMENT, L.L.C.
By: /s/ Xxxxx X. Pistecchia
---------------------------------------
Name: Xxxxx X. Pistecchia
Title: Executive Vice President
150
GALAXY CLO 1999-1, LTD.
BY: SAI INVESTMENT ADVISER, INC.,
ITS COLLATERAL MANAGER
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Agent
151
KZH SOLEIL LLC
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
152
KZH SOLEIL-2 LLC
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
153
KZH CRESCENT LLC
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
154
KZH CRESCENT-2 LLC
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
155
KZH CRESCENT-3 LLC
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
156
CONTINENTAL ASSURANCE COMPANY
SEPARATE ACCOUNT (E)
By: TCW Asset Management Company
as Attorney-in-Fact
By: /s/ Xxxx X. Gold
---------------------------------------
Name: Xxxx X. Gold
Title: Managing Director
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Assistant Vice President
157
SEQUILS I, LTD.
By: TCW Advisors, Inc. as its
Collateral Manager
By: /s/ Xxxx X. Gold
-----------------------------------
Name: Xxxx X. Gold
Title: Managing Director
By: /s/ Xxxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Assistant Vice President
158
UNITED OF OMAHA LIFE INSURANCE COMPANY
By: TCW Asset Management Company,
its Investment Advisor
By: /s/ Xxxx X. Gold
---------------------------------------
Name: Xxxx X. Gold
Title: Managing director
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Assistant Vice President
000
XXXXXXX-XXXXXXXX (XXXXX), INC.
By: /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
160
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
161
XXX XXXXXX SENIOR FLOATING RATE FUND
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
162
XXX XXXXXX CLO I, LIMITED
BY: XXX XXXXXX MANAGEMENT INC.,
as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
163
Annex A
PRICING GRID FOR REVOLVING LOANS, SWINGLINE LOANS,
TRANCHE A TERM LOANS AND COMMITMENT FEES
Consolidated Leverage Ratio Applicable Margin Applicable Margin Commitment Fee Rate
for Eurodollar Loans for ABR Loans
Greater than or equal to 4.5 to 1.0 3.00% 2.00% .500%
Less than 4.5 to 1.0 and greater than or equal 2.75% 1.75% .500%
to 4.0 to 1.0
Less than 4.0 to 1.0 and greater than or equal 2.50% 1.50% .500%
to 3.5 to 1.0
Less than 3.5 to 1.0 and greater than or equal 2.25% 1.25% .375%
to 3.0 to 1.0
Less than 3.0 to 1.0 and greater than or equal 2.00% 1.00% .375%
to 2.5 to 1.0
Less than 2.5 to 1.0 1.75% .75% .375%
Changes in the Applicable Margin with respect to Revolving Loans, Swingline
Loans and Tranche A Loans or in the Commitment Fee Rate resulting from changes
in the Consolidated Leverage Ratio shall become effective on the date (the
"Adjustment Date") on which financial statements are delivered to the Lenders
pursuant to Section 6.1 (but in any event not later than the 45th day after the
end of each of the first three quarterly periods of each fiscal year or the 90th
day after the end of each fiscal year, as the case may be) and shall remain in
effect until the next change to be effected pursuant to this paragraph. If any
financial statements referred to above are not delivered within the time periods
specified above, then, until such financial statements are delivered, the
Consolidated Leverage Ratio as at the end of the fiscal period that would have
been covered thereby shall for the purposes of this definition be deemed to be
greater than 4.5 to 1.0. In addition, at all times while an Event of Default
shall have occurred and be continuing, the Consolidated Leverage Ratio shall for
the purposes of this definition be deemed to be greater than 4.5 to 1.0. Each
determination of the Consolidated Leverage Ratio pursuant to this pricing grid
shall be made with respect to (or, in the case of Consolidated Total Debt, as at
the end of) the period of four consecutive fiscal quarters of the Borrower
ending at the end of the period covered by the relevant financial statements.
164
SCHEDULE 1.1A
COMMITMENTS
REVOLVING TRANCHE A TRANCHE B TRANCHE C
INSTITUTION COMMITMENT COMMITMENT COMMITMENT COMMITMENT TOTAL
----------- ----------- ----------- ----------- ----------- ------------
THE CHASE MANHATTAN BANK $50,000,000 $45,000,000 $83,750,000 $83,750,000 $262,500,000
BANK OF AMERICA, N.A. $39,470,000 $35,530,000 $ 2,500,000 $ 2,500,000 $ 80,000,000
CITICORP USA, INC. $39,470,000 $35,530,000 $ 0 $ 0 $ 75,000,000
COMMERZBANK, AG, NEW YORK AND
GRAND CAYMAN BRANCHES $39,470,000 $35,530,000 $ 0 $ 0 $ 75,000,000
TORONTO DOMINION (TEXAS), INC. $23,680,000 $21,320,000 $ 3,750,000 $ 3,750,000 $ 52,500,000
THE BANK OF NOVA SCOTIA $23,680,000 $21,320,000 $ 2,500,000 $ 2,500,000 $ 50,000,000
BANK ONE, MICHIGAN $23,680,000 $21,320,000 $ 2,500,000 $ 2,500,000 $ 50,000,000
FIRST UNION NATIONAL BANK $23,680,000 $21,320,000 $ 2,500,000 $ 2,500,000 $ 50,000,000
BANK OF MONTREAL $23,680,000 $21,320,000 $ 2,500,000 $ 2,500,000 $ 50,000,000
THE BANK OF NEW YORK $23,680,000 $21,320,000 $ 0 $ 0 $ 45,000,000
ING (U.S.) CAPITAL LLC $23,680,000 $21,320,000 $ 0 $ 0 $ 45,000,000
CREDIT SUISSE FIRST BOSTON $23,680,000 $21,320,000 $ 0 $ 0 $ 45,000,000
BANK OF TOKYO-MITSUBISHI TRUST COMPANY $23,680,000 $21,320,000 $ 0 $ 0 $ 45,000,000
165
REVOLVING TRANCHE A TRANCHE B TRANCHE C
INSTITUTION COMMITMENT COMMITMENT COMMITMENT COMMITMENT TOTAL
----------- -------------- -------------- ------------ ------------- --------------
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, CHICAGO BRANCH $23,684,210.53 $21,315,789.47 $ 0.00 $ 0.00 $45,000,000.00
SOCIETE GENERALE,
NEW YORK BRANCH $23,684,210.53 $21,315,789.47 $ 0.00 $ 0.00 $45,000,000.00
THE MITSUBISHI TRUST &
BANKING CORPORATION $10,526,315.79 $ 9,473,684.21 $2,500,000.00 $2,500,000.00 $25,000,000.00
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES $10,526,315.79 $ 9,473,684.21 $ 0.00 $ 0.00 $20,000,000.00
COMERICA BANK $10,526,315.79 $ 9,473,684.21 $ 0.00 $ 0.00 $20,000,000.00
BANK OF HAWAII $10,526,315.79 $ 9,473,684.21 $ 0.00 $ 0.00 $20,000,000.00
ERSTE BANK DER
OESTERREICHISCHEN
SPARKASSEN AG--NEW YORK BRANCH $ 7,894,736.84 $ 7,105,263.16 $ 0.00 $ 0.00 $15,000,000.00
IKB DEUTSCHE INDUSTRIEBANK AG,
LUXEMBOURG BRANCH $ 5,263,157.89 $ 4,736,842.11 $2,500,000.00 $2,500,000.00 $15,000,000.00
NATEXIS BANQUE BFCE $ 5,263,157.89 $ 4,736,842.11 $2,500,000.00 $2,500,000.00 $15,000,000.00
NATIONAL CITY BANK $ 5,263,157.89 $ 4,736,842.11 $ 0.00 $ 0.00 $10,000,000.00
THE FUJI BANK, LIMITED $ 5,263,157.89 $ 4,736,842.11 $ 0.00 $ 0.00 $10,000,000.00
166
REVOLVING TRANCHE A TRANCHE B TRANCHE C
INSTITUTION COMMITMENT COMMITMENT COMMITMENT COMMITMENT TOTAL
----------- ---------- ---------- -------------- -------------- --------------
BAYERISCHE HYPO-UND VEREINSBANK
AG, NEW YORK BRANCH $0.00 $0.00 $15,000,000.00 $15,000,000.00 $30,000,000.00
METROPOLITAN LIFE
INSURANCE COMPANY $0.00 $0.00 $15,000,000.00 $15,000,000.00 $30,000,000.00
FRANKLIN FLOATING
RATE TRUST $0.00 $0.00 $15,000,000.00 $15,000,000.00 $30,000,000.00
GALAXY CLO 1999-1, LTD $0.00 $0.00 $10,000,000.00 $10,000,000.00 $20,000,000.00
XXXXXXX XXXXX SENIOR
FLOATING RATE FUND $0.00 $0.00 $ 7,500,000.00 $ 7,500,000.00 $15,000,000.00
BOEING CAPITAL CORPORATION $0.00 $0.00 $ 7,500,000.00 $ 7,500,000.00 $15,000,000.00
XXX XXXXXX SENIOR FLOATING RATE $0.00 $0.00 $ 7,500,000.00 $ 7,500,000.00 $15,000,000.00
ORIX USA CORPORATION $0.00 $0.00 $ 6,250,000.00 $ 6,250,000.00 $12,500,000.00
PRINCIPAL LIFE INSURANCE COMPANY $0.00 $0.00 $ 6,250,000.00 $ 6,250,000.00 $12,500,000.00
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST $0.00 $0.00 $ 5,000,000.00 $ 5,000,000.00 $10,000,000.00
KZH WATERSIDE LLC $0.00 $0.00 $ 5,000,000.00 $ 5,000,000.00 $10,000,000.00
STERLING ASSET
MANAGEMENT, L.L.C. $0.00 $0.00 $ 5,000,000.00 $ 5,000,000.00 $10,000,000.00
167
REVOLVING TRANCHE A TRANCHE B TRANCHE C
INSTITUTION COMMITMENT COMMITMENT COMMITMENT COMMITMENT TOTAL
----------- ---------- ---------- ---------- ---------- -----------
DAI-ICHI KANGYO BANK $0 $0 $5,000,000 $5,000,000 $10,000,000
NEW YORK LIFE INSURANCE COMPANY $0 $0 $5,000,000 $5,000,000 $10,000,000
XXXXXX FINANCIAL, INC. $0 $0 $5,000,000 $5,000,000 $10,000,000
KZH SOLEIL LLC $0 $0 $5,000,000 $5,000,000 $10,000,000
KZH SOLEIL-2 LLC $0 $0 $5,000,000 $5,000,000 $10,000,000
SEQUILS I, LTD. $0 $0 $4,750,000 $4,750,000 $ 9,500,000
OLYMPIC FUNDING TRUST, SERIES 1999-1 $0 $0 $4,375,000 $4,375,000 $ 8,750,000
ALLSTATE LIFE INSURANCE COMPANY $0 $0 $4,000,000 $4,000,000 $ 8,000,000
XXX XXXXXX SENIOR INCOME TRUST $0 $0 $4,000,000 $4,000,000 $ 8,000,000
XXX XXXXXX CLO I, LIMITED $0 $0 $3,500,000 $3,500,000 $ 7,000,000
BALANCED HIGH YIELD FUND I, LTD. $0 $0 $3,000,000 $3,000,000 $ 6,000,000
KZH CRESCENT-2 LLC $0 $0 $2,750,000 $2,750,000 $ 5,500,000
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND II, INC. $0 $0 $2,500,000 $2,500,000 $ 5,000,000
168
REVOLVING TRANCHE A TRANCHE B TRANCHE C
INSTITUTION COMMITMENT COMMITMENT COMMITMENT COMMITMENT TOTAL
----------- ---------- ---------- ---------- ---------- ----------
KZH ING-2 LLC $0 $0 $2,500,000 $2,500,000 $5,000,000
KZH CNC LLC $0 $0 $2,500,000 $2,500,000 $5,000,000
WINGED FOOT FUNDING TRUST $0 $0 $2,500,000 $2,500,000 $5,000,000
FREMONT INVESTMENT AND LOAN $0 $0 $2,500,000 $2,500,000 $5,000,000
PPM SPYGLASS FUNDING TRUST $0 $0 $2,500,000 $2,500,000 $5,000,000
KZH CRESCENT LLC $0 $0 $2,000,000 $2,000,000 $4,000,000
KZH III LLC $0 $0 $2,000,000 $2,000,000 $4,000,000
BHF (USA) CAPITAL CORPORATION $0 $0 $2,000,000 $2,000,000 $4,000,000
KZH CRESCENT-3 LLC $0 $0 $2,000,000 $2,000,000 $4,000,000
FLOATING RATE PORTFOLIO $0 $0 $1,500,000 $1,500,000 $3,000,000
XXXXXX FLOATING RATE FUND $0 $0 $1,250,000 $1,250,000 $2,500,000
ALLSTATE INSURANCE COMPANY $0 $0 $1,000,000 $1,000,000 $2,000,000
KZH ING - 1 LLC $0 $0 $1,000,000 $1,000,000 $2,000,000
UNITED OF OMAHA LIFE INSURANCE COMPANY $0 $0 $1,000,000 $1,000,000 $2,000,000
169
REVOLVING TRANCHE A TRANCHE B TRANCHE C
INSTITUTION COMMITMENT COMMITMENT COMMITMENT COMMITMENT TOTAL
----------- ------------ ------------ ------------ ------------ --------------
NORTH AMERICAN SENIOR FLOATING
RATE FUND $ 0 $ 0 $ 1,000,000 $ 1,000,000 $ 2,000,000
KZH CYPRESSTREE-1 LLC $ 0 $ 0 $ 500,000 $ 500,000 $ 1,000,000
CYPRESSTREE SENIOR FLOATING
RATE FUND $ 0 $ 0 $ 500,000 $ 500,000 $ 1,000,000
CONTINENTAL ASSURANCE COMPANY $ 0 $ 0 $ 500,000 $ 500,000 $ 1,000,000
CYPRESSTREE INVESTMENT FUND, LLC $ 0 $ 0 $ 500,000 $ 500,000 $ 1,000,000
------------ ------------ ------------ ------------ --------------
TOTAL $500,000,000 $450,000,000 $300,000,000 $300,000,000 $1,550,000,000
============ ============ ============ ============ ==============
170
DRAFT 9/23/99
SCHEDULE 1.1B
MORTGAGED PROPERTY
Manufacturing Plant
000 Xxxxxxxx Xxxxx
Xxxxx, XX 00000
Building
0000 Xxxxxxxxxx
Xxxxxx, Xxxxxxx 00000
Building (Pending Sale)
000 Xxxxxxx Xx.
Industrial Park S.
Xxxxx 0, Xxx 00-X
Xxxxxxxxxx, Xxxxxxx 00000
Aftermarket Manufacturing Plant
0000 Xxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Aftermarket DC
0000 Xxxxx Xx.
Xxxxxxxxxx, XX 00000
Aftermarket Manufacturing Plant & Returned Goods Center
0000 Xxxxxxx 00 X Xxxxx
Xxxxxxxxx, XX 00000
Aftermarket DC
0000 X. Xxxxxx Xx.
Xxxxxxxxx, XX 00000
Aftermarket Manufacturing Plant
X.X. Xxx 000
X. Xxxxxxx 00
Xxxxxx, XX 00000-0000
Original Equipment Headquarters
0 Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
171
Original Equipment Manufacturing Plant
Route 424 (11800 State Xxxxx 000)
Xxxxxxxx, XX 00000
Milan Engineering Facility & Original Equipment Manufacturing Plant
00 Xxxxxxxx Xxxx
Xxxxx, XX 00000
Original Equipment Manufacturing Plant
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Original Equipment Manufacturing Plant
000 XxXxxxxx Xxxxx
Xxxxxxxx, XX 00000
Manufacturing Plant
000 Xxxx Xxxxx Xxxxxx
P. O. Xxx 000
Xxxxxxxxxx, XX 00000
Original Equipment Manufacturing Plant
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxxx Engineering Facility (JEF)
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Original Equipment Engineering Facility
0000 Xxxxxx Xxxx (P.O. Xxx 000)
Xxxxx Xxxx, XX 00000
Original Equipment Manufacturing Plant
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Manufacturing Plant
000 X. Xxxx Xxxxxx
Xxxxxx, XX 00000
Building
00000 X. Xxxxx Xx.
Xxxxxxx, XX 00000
-2-
000
Xxxxxxxx
000 Xxxxxxx 0X Xxxxx
Xxxxxxxx, XX 00000
Document Number : 367153
Version : 03
-3-
173
DRAFT 9/22/99
SCHEDULE 4.4
CONSENTS, AUTHORIZATIONS, FILINGS AND NOTICES
------------------------------------------------------------------------------------------------------------------------
U.S. ENTITY NATURE OF CONSENT, ACTION NECESSARY
AUTHORIZATION, NOTICE
OR FILING
------------------------------------------------------------------------------------------------------------------------
Securities and Exchange Tenneco Packaging Inc.'s Clearance for filing and to go
Commission Form S-4 Registration effective by SEC.
Statement under the Securities
Act of 1933
------------------------------------------------------------------------------------------------------------------------
Securities and Exchange Tenneco Packaging Inc.'s Clearance for filing by SEC.
Commission Form 10, General Form for
Registration of Securities
------------------------------------------------------------------------------------------------------------------------
Internal Revenue Service IRS Letter Ruling of August Continued effectiveness at IRS
20, 1999 letter ruling to the effect that
the Spin-off will be tax free to
Tenneco and its stockholders.
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
FOREIGN ENTITY NATURE OF CONSENT, ACTION NECESSARY
AUTHORIZATION,
NOTICE OR FILING
------------------------------------------------------------------------------------------------------------------------
Various Foreign Governments Foreign Governmental Obtain consent.
Consents by Various Foreign
Authorities
------------------------------------------------------------------------------------------------------------------------
Various Foreign Lenders Consents by Various Foreign Obtain consent.
Lenders to Various Tenneco
Inc. Foreign Subsidiaries
------------------------------------------------------------------------------------------------------------------------
174
SCHEDULE 4.15
SUBSIDIARIES
Draft 9/24/99
TENNECO INC. (DELAWARE) (to be renamed Tenneco Automotive Inc.)
Tenneco Automotive Inc. (to be renamed)...........................................................100 %
Beijing Monroe Automobile Shock Absorber Company Ltd. (Peoples
Republic of China)........................................................................51
(Tenneco Automotive Inc. owns 51%; and Beijing Automotive Industry
Corporation, an unaffiliated company, owns 49%)
Dalian Xxxxxx-Xxxxxx Muffler Co. Ltd. (Peoples Republic of China)..............................55
(Tenneco Automotive Inc. owns 55%; and non-affiliates own 45%)
XxXxxxxxx Strut Company Inc. (Delaware).......................................................100
Precision Modular Assembly Corp. (Delaware)...................................................100
Shanghai Xxxxxx Exhaust Company, Ltd. (Peoples Republic of China)..............................55
(Tenneco Automotive Inc. owns 55%; and Shanghai Tractor and Internal
Combustion Engine Company, Ltd., an unaffiliated company, owns 45%)
Tenneco Asheville Inc. (Delaware).............................................................100
Tenneco Asia Inc. (Delaware)..................................................................100
Tenneco Automotive Foreign Sales Corporation Limited (Jamaica)................................100
Tenneco Automotive Japan Ltd. (Japan).........................................................100
Tenneco Automotive Nederlands B.V. (Netherlands)..............................................100
Tenneco Automotive RSA Company (Delaware).....................................................100
Tenneco Automotive Trading Company (Delaware).................................................100
Tenneco Brake, Inc. (Delaware)................................................................100
Tenneco Europe Limited (Delaware).............................................................100
Wimetal S. A. (France)....................................................................*1
(Tenneco Europe Limited owns 1 share; Xxxxxx Limited owns 1 share;
Xxxxxx France S.A. owns 99%; and each of Xxxxx Xxxxxxxx, Xxxxxx
xxx Xxxxxxx, Xxxxxx Xxxxx, Xxxxxx Xxxxxxxxx, Xxxxxx Xxxxxxx and
Xxxx Xxxxxx, affiliated persons, owns 1 share)
Tenneco Inc. (Nevada).........................................................................100
Tenneco International Finance Limited (United Kingdom)1/......................................100
Tenneco International Holding Corp. (Delaware)................................................100
Monroe Australia Pty. Limited (Australia)................................................100
Monroe Springs (Australia) Pty. Ltd. (Australia).....................................100
Monroe Superannuation Pty. Ltd. (Australia)..........................................100
Xxxxxx Australia Pty. Limited (Australia)............................................100
Tenneco Automotive Europe N.V. (Belgium).................................................100
Monroe Amortisor Imalat Ve Ticaret A.S. (Turkey)......................................99.85
(Tenneco Automotive Europe N.V. owns 99.85%; and various
unaffiliated individual stockholders own 0.15%)
Monroe Packaging N.V. (Belgium).......................................................99.9
(Tenneco Automotive Europe N.V. owns 99.9%; and Tenneco
Automotive France S.A. owns 0.1%)
Tenneco Automotive Europe Coordination Center N.V. (Belgium)..........................99.9
(Tenneco Automotive Europe N.V. owns 99.9%; and Tenneco
Automotive France S.A. owns 0.1%)
* = less than
-1-
175
SUBSIDIARIES OF TENNECO INC.
SUBSIDIARIES OF TENNECO AUTOMOTIVE INC.
SUBSIDIARIES OF TENNECO INTERNATIONAL HOLDING CORP.
Tenneco Automotive Italia S.r.l. (Italy)..................................................85
(Tenneco International Holding Corp. owns 85%; and Tenneco
Automotive France S.A. owns 15%)
Tenneco Automotive Polska Sp. z.O.O........................................................1
(Tenneco International Holding Corp. owns 1%; and Tenneco Global Holdings
Inc. owns 99%)
Tenneco Romania Srl (Romania)..............................................................0.14
(Tenneco International Holding Corp. owns 0.14%; and Tenneco Global
Holdings Inc. owns 99.86%)
Tenneco Automotive Sverige A.B. (Sweden).................................................100
Tenneco Canada Inc. (Ontario)............................................................100
Tenneco Global Holdings Inc. (Delaware)..................................................100
Fric-Rot S.A.I.C. (Argentina).........................................................55
(Tenneco Global Holdings Inc. owns 55%; Maco Inversiones S.A.
owns 44.85%; and unaffiliated parties own .15%)
Maco Inversiones S.A. (Argentina)....................................................100
Fric-Rot S.A.I.C. (Argentina).....................................................44.85
(Maco Inversiones S.A. owns 44.85%; Tenneco Global Holdings
Inc. owns 55%; and unaffiliated parties own .15%)
Monroe Springs (New Zealand) Pty. Ltd. (New Zealand).................................100
Monroe Czechia s.r.o. (Czech Republic)...............................................100
Tenneco Automotive Iberica, S.A. (Spain).............................................100
Tenneco Automotive Polska Sp. z.O.O. (Poland).........................................99
(Tenneco Global Holdings Inc. owns 99%; and Tenneco International
Holding Corp. owns 1%)
Tenneco Romania Srl (Romania).........................................................99.86
(Tenneco Global Holdings Inc. owns 99.86%; and Tenneco International
Holding Corp. owns 0.14%)
Tenneco Mauritius Limited (Mauritius)................................................100
Hydraulics Limited (India)........................................................51
(Tenneco Mauritius Limited owns 51% and Bangalore Union
Services Limited, an unaffiliated company, owns 49%)
Renowned Automotive Products Manufacturers Ltd. (India)......................83
(Hydraulics Limited owns 83%; and non-affiliates own 17%)
Tenneco Automotive India Private Limited (India).................................100
Xxxxxx Exhaust India Private Limited (India)...............................*100
(Tenneco Automotive India Private Limited owns
less than 100%; and an unaffiliated party owns
the balance)
Tenneco Holdings Danmark A/S (Denmark)...................................................100
Gillet Exhaust Technologie (Proprietary) Limited (South Africa)......................100
Gillet Lazne Belohrad, s.r.o. (Czech Republic)..................................... 100
Kinetic Ltd. (Australia).............................................................>99
(Tenneco Holdings Danmark A/S owns 99%+; and unaffiliated
entities own less than 1%)
* = less than
1/ In dissolution.
-2-
176
SUBSIDIARIES OF TENNECO INC.
SUBSIDIARIES OF TENNECO AUTOMOTIVE INC.
SUBSIDIARIES OF TENNECO INTERNATIONAL HOLDING CORP.
SUBSIDIARIES OF TENNECO HOLDINGS DANMARK A/S
Tenneco Automotive Holdings South Africa Pty. Ltd. (South Africa).....................51
(Tenneco Holdings Danmark A/S owns 51%; and an unaffiliated
party owns 49%)
Xxxxxxxxx Hydraulics South Africa (Pty.) Ltd. (South Africa).....................100
Xxxxxxxxx Properties (Pty.) Ltd. (South Africa)..................................100
Monroe Manufacturing (Pty.) Ltd. (South Africa)..................................100
Smiths Industrial (SWA) (Pty.) Ltd. (South Africa)...............................100
Tenneco Automotive Port Xxxxxxxxx (Proprietary) Limited
(South Africa)...................................................................100
Tenneco Automotive Portugal - Componentes para Automovel, S.A.
(Portugal).......................................................................100
Xxxxxx Danmark A/S (Denmark).........................................................100
Tenneco Automotive France S.A. (France).................................................*100
(Tenneco International Holding Corp. owns 470,371 shares; Xxxxxx
Xxxxxxxxx owns 16 shares; Xxxxxx Xxxxxxxxx owns 8 shares; and
each of Xxxxxx Europe, Inc., Xxxxx Xxxxxxxxx, Xxxxxxxx
Xxxxxx, Xxx Xxxxxxxx and Xxxxx Xxxxxxxx owns 1 share)
Gillet Tubes Technologies G.T.T. (France)............................................100
Monroe Packaging N.V. (Belgium)........................................................0.01
(Tenneco Automotive Europe N.V. owns 99.9%; and Tenneco
Automotive France S.A. owns 0.1%)
Tenneco Automotive Europe Coordination Center N.V. (Belgium)...........................0.01
(Tenneco Automotive Europe N.V. owns 99.9%; and Tenneco
Automotive France S.A. owns 0.1%)
Tenneco Automotive Italia S.r.l. (Italy)..............................................15
(Tenneco International Holding Corp. owns 85%; and Tenneco
Automotive France S.A. owns 15%)
Xxxxxx France Constructeurs S.A.R.L. (France)........................................100
Wimetal S.A. (France).................................................................99
(Tenneco Automotive France S.A. owns 99%; Tenneco Europe Limited
owns 1 share, Xxxxxx Limited owns 1 share; and each of Xxxxx Xxxxxxxx,
Xxxxxx xxx Xxxxxxx, Xxxxxx Xxxxx, Xxxxxx Xxxxxxxxx, Xxxxxx Xxxxxxx
and Xxxx Xxxxxx, affiliated persons, owns 1 share)
The Pullman Company (Delaware)................................................................100
Autopartes Xxxxxx X.X. de C.V. (Mexico).................................................100
Consorcio Xxxxxxxxx X.X. de C.V. (Mexico).............................................99.99
(Autopartes Xxxxxx X.X. de C.V. owns 99.99%; and Josan
Latinamericana S.A. de C.V., an unaffiliated company, owns 0.01%)
Monroe-Mexico S.A. de C.V. (Mexico)..................................................100
Tenneco Automotive Servicios de Mexico, S.A. de C.V. (Mexico)......................0.01
(Monroe-Mexico, S.A. de C.V. owns 1 share; and Proveedora
Xxxxxx S. de X.X. de C.V. owns 49,999 shares)
* = less than
1/ In dissolution.
-3-
177
SUBSIDIARIES OF TENNECO INC.
SUBSIDIARIES OF TENNECO AUTOMOTIVE INC.
SUBSIDIARIES OF THE PULLMAN COMPANY
SUBSIDIARIES OF AUTOPARTES XXXXXX X.X. DE C.V. (MEXICO)
Proveedora Xxxxxx S. de X.X. de C.V. (Mexico) ........................................99.99
(Autopartes Xxxxxx X.X. de C.V.owns 99.99%; and Pullmex S. de
X.X. de C.V. owns .01%)
Pullmex S. de X.X. de C.V. (Mexico)................................................0.01
(Proveedora Xxxxxx S. de X.X. de C.V. owns 0.01% and
Autopartes Xxxxxx X.X. de C.V. owns 99.99%)
Tenneco Automotive Servicios de Mexico, S.A. de C.V. (Mexico).....................99.99
(Proveedora Xxxxxx S. de X.X. de C.V. owns 49,999 shares, and
Monroe-Mexico, S.A. de C.V. owns 1 share)
Pullmex S. de X.X. de C.V.............................................................99.99
(Autopartes Xxxxxx X.X. de C.V. owns 99.9%; and Proveedora
Xxxxxx S. de X.X. de C.V. owns 0.1%)
Proveedora Xxxxxx S. de X.X. de C.V. (Mexico) .....................................0.01
(Pullmex S. de X.X. de C.V. owns 0.01%; and Autopartes
Xxxxxx X.X. de C.V. owns 99.99%)
Clevite Industries Inc. (Delaware).......................................................100
Peabody International Corporation (Delaware).............................................100
Barasset Corporation (Ohio)..........................................................100
Peabody Galion Corporation (Delaware)................................................100
Peabody Xxxxxx-Xxxxx, Inc. (Delaware)................................................100
Peabody N.E., Inc. (Delaware)........................................................100
Peabody World Trade Corporation (Delaware)...........................................100
Xxxxxxx-Xxxxx Corporation (Illinois).................................................100
Pullman Canada Ltd. (Canada)..........................................................61
(Peabody International Corporation owns 61%; and The Pullman
Company owns 39%)
Pullman Canada Ltd. (Canada)..............................................................39
(The Pullman Company owns 39%; and Peabody International
Corporation owns 61%)
Pullman Standard Inc. (Delaware).........................................................100
Tenneco Brazil Ltda. (Brazil)............................................................100
Tenneco Automotive Brasil Ltda. (Brazil).............................................100
Xxxxxxxx and Stammers Dunmow (Number 6) Limited (United Kingdom)..............................100
Xxxxxxxx and Stammers Dunmow (Number 7) Limited (United Kingdom)..............................100
TMC Texas Inc. (Delaware).....................................................................100
Xxxxxx Electronic Silencing Inc. (Delaware)...................................................100
Xxxxxx Europe, Inc. (Delaware)................................................................100
Tenneco Automotive France S.A. (France)...................................................*1
(Tenneco International Holding Corp. owns 470,371 shares; Xxxxxx
Xxxxxxxxx owns 16 shares; Xxxxxx Xxxxxxxxx owns 8 shares; and
each of Xxxxxx Europe, Inc., Xxxxx Xxxxxxxxx, Xxxxxxxx
Xxxxxx, Xxx Xxxxxxxx and Xxxxx Xxxxxxxx owns 1 share)
Xxxxxx Limited (United Kingdom)...............................................................100
* = less than
1/ In dissolution.
-4-
178
SUBSIDIARIES OF TENNECO INC.
SUBSIDIARIES OF TENNECO AUTOMOTIVE INC.
SUBSIDIARIES OF XXXXXX LIMITED (UNITED KINGDOM)
Gillet Torsmaskiner UK Limited (United Kingdom)...........................................50
(Xxxxxx Limited owns 100 A Ordinary Shares, 50% of total equity; and
AB Torsmaskiner, an unaffiliated company, owns 100 B Ordinary
Shares, 50% of total equity)
Exhaust Systems Technology Limited (United Kingdom)...................................99.99
(Gillet Torsmaskiner UK Limited owns 99.99%; and Xxxxxxxx
Xxxxxx GmbH & Co. KG owns .01%)
Tenneco Automotive UK Limited (United Kingdom)...........................................100
Gillet Exhaust Manufacturing Limited (United Kingdom)................................100
Gillet Pressings Cardiff Limited (United Kingdom)....................................100
Xxxxxx (UK) Limited (United Kingdom).................................................100
X.X. Xxxxxxx (Motor Trade) Limited (United Kingdom)..............................100
Tenneco - Xxxxxx (U.K.) Ltd. (United Kingdom)....................................100
Tenneco Management (Europe) Limited (United Kingdom).....................................100
Wimetal S. A. (France)....................................................................*1
(Xxxxxx Limited owns 1 share; Tenneco Europe Limited owns 1
share; Tenneco Automotive France S.A. owns 99%; and each of
Xxxxx Xxxxxxxx, Xxxxxx xxx Xxxxxxx, Xxxxxx Xxxxx, Xxxxxx
Xxxxxxxxx, Xxxxxx Xxxxxxx and Xxxx Xxxxxx, affiliated
persons, owns 1 share)
Xxxxxx Manufacturing Company (Delaware).......................................................100
Ced's Inc. (Illinois)....................................................................100
Xxxxxx Norge A/S (Norway).....................................................................100
Tenneco Deutschland Holdinggesellschaft mbH (Germany)..............................................99.97
(Tenneco Inc. owns 99.97%; and Atlas Vermoegensverwaltung, an
unaffiliated company, owns 0.03%)
GILLET Unternehmesverwaltungs GmbH (Germany)..................................................100
Xxxxxxxx Xxxxxx GmbH & Co. KG (Germany)....................................................0.1
(GILLET Unternehmesverwaltungs GmbH owns 0.1%; and Tenneco
Deutschland Holdinggesellschaft mbH owns 99.9%. The
subsidiaries of Xxxxxxxx Xxxxxx GmbH & Co. KG are listed
below.)
Xxxxxxxx Xxxxxx GmbH & Co. KG (Germany)........................................................99.9
(Tenneco Deutschland Holdinggesellschaft mbH owns 99.9%; and
GILLET Unternehmesverwaltungs GmbH owns 0.1%)
ELGIRA Montagebetrieb fur Abgasanlagen Rastatt GmbH (Germany).............................50
(Xxxxxxxx Xxxxxx GmbH & Co. KG owns 50%; and an unaffiliated
party owns 50%)
Exhaust Systems Technology Limited (United Kingdom)........................................0.01
(Xxxxxxxx Xxxxxx GmbH & Co. KG owns 0.01%; and Gillet Torsmaskiner
UK Limited owns 99.99%)
Gillet-Abgassysteme Zickau Gmbh (Germany)................................................100
Elagest AB (Sweden)...................................................................50
(Gillet-Abgassysteme Zickau GmbH owns 50%; and an
unaffiliated party owns 50%)
* = less than
1/ In dissolution.
-5-
179
SUBSIDIARIES OF TENNECO INC.
SUBSIDIARIES OF TENNECO DEUTSCHLAND HOLDINGGESELLSCHAFT MBH
SUBSIDIARIES OF XXXXXXXX XXXXXX GMBH & CO. KG
Mastra-Gillet Industria e Comercio Ltda. (Brazil).........................................50
(Xxxxxxxx Xxxxxx GmbH & Co. KG owns 50%; and Mastra Industria e
Comercio Ltda., an unaffiliated company, owns 50%)
Montagewerk Abgastechnik Emden GmbH (Germany).............................................50
(Xxxxxxxx Xxxxxx GmbH & Co. KG owns 50%; and an unaffiliated
party owns 50%)
Tenneco Automotive Deutschland GmbH (Germany).................................................100
WALKER GILLET (Europe) GmbH (Germany).........................................................100
1/ In dissolution.
-6-
180
SCHEDULE 4.19(a)
UCC FILING JURISDICTIONS
=================================== =========================================== ===== ======== =========== ========
FIXTURE
JURISDICTION NAMES TO SEARCH UCC TAX LIEN JUDGMENT FILING
=================================== =========================================== ===== ======== =========== ========
ALABAMA S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
WINSTON COUNTY, AL Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
ARKANSAS S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
XXXXXX COUNTY, AR Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
CALIFORNIA S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X N/A N/A N/A
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X N/A N/A N/A
------------------------------------------------------------------------------------------
Rancho Industries X N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
LOS ANGELES COUNTY, CA Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
------------------------------------------------------------------------------------------
Rancho Industries X X X X
-------------------------------------------------------------------------------------------------------------------------------
181
=================================== =========================================== ===== ======== =========== ========
FIXTURE
JURISDICTION NAMES TO SEARCH UCC TAX LIEN JUDGMENT FILING
=================================== =========================================== ===== ======== =========== ========
MARIN COUNTY, CA Tenneco Automotive Inc. f/k/a Monroe Auto X X X N/A
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X N/A
-------------------------------------------------------------------------------------------------------------------------------
CONNECTICUT S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X N/A N/A N/A
------------------------------------------------------------------------------------------
The Pullman Company X N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
MILFORD COUNTY, CT Tenneco Automotive Inc. f/k/a Monroe Auto X X X N/A
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X N/A
-------------------------------------------------------------------------------------------------------------------------------
LITCHFIELD COUNTY, CT Tenneco Automotive Inc. f/k/a Monroe Auto X X X N/A
Equipment Company
------------------------------------------------------------------------------------------
The Pullman Company X X X N/A
-------------------------------------------------------------------------------------------------------------------------------
DELAWARE S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
NEW CASTLE COUNTY, DE Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
FLORIDA S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X N/A N/A N/A
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
BROWARD COUNTY, FL Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
-2-
182
=================================== =========================================== ===== ======== =========== ========
FIXTURE
JURISDICTION NAMES TO SEARCH UCC TAX LIEN JUDGMENT FILING
=================================== =========================================== ===== ======== =========== ========
DADE COUNTY, FL Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
HILLSBOROUGH COUNTY, FL Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
GEORGIA S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
XXXX COUNTY, GA Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
ILLINOIS S/S Tenneco Automotive Inc. f/k/a Monroe Auto X X N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X N/A N/A
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X N/A N/A
------------------------------------------------------------------------------------------
Ced's Inc. X X N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
DUPAGE COUNTY, IL Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Ced's Inc. X X X X
-------------------------------------------------------------------------------------------------------------------------------
WILL COUNTY, IL Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
-3-
183
=================================== =========================================== ===== ======== =========== ========
FIXTURE
JURISDICTION NAMES TO SEARCH UCC TAX LIEN JUDGMENT FILING
=================================== =========================================== ===== ======== =========== ========
LAKE COUNTY, IL Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
INDIANA S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X N/A N/A N/A
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X N/A N/A N/A
------------------------------------------------------------------------------------------
Clevite Industries X N/A N/A N/A
------------------------------------------------------------------------------------------
The Pullman Company X N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
NOBLE COUNTY, IN Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
STEUBEN COUNTY, IN Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
------------------------------------------------------------------------------------------
Clevite Industries Inc. X X X X
-------------------------------------------------------------------------------------------------------------------------------
XXXXXXXX COUNTY, IN Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
ELKHART COUNTY, IN Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
MARYLAND S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Electronic Silencing X N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
-4-
184
=================================== =========================================== ===== ======== =========== ========
FIXTURE
JURISDICTION NAMES TO SEARCH UCC TAX LIEN JUDGMENT FILING
=================================== =========================================== ===== ======== =========== ========
XXXX ARUNDEL COUNTY, MD Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Electronic Silencing X X X X
-------------------------------------------------------------------------------------------------------------------------------
MICHIGAN S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X N/A N/A N/A
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X N/A N/A N/A
------------------------------------------------------------------------------------------
Clevite Industries Inc. X N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
OAKLAND COUNTY, MI Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
------------------------------------------------------------------------------------------
Clevite Industries Inc. X X X X
-------------------------------------------------------------------------------------------------------------------------------
XXXXXXX COUNTY, MI Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
MACOMB COUNTY, MI Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
-------------------------------------------------------------------------------------------------------------------------------
XXXXXXX COUNTY, MI Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
HILLSDALE COUNTY, MI Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
MONROE COUNTY, MI Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
-5-
185
=================================== =========================================== ===== ======== =========== ========
FIXTURE
JURISDICTION NAMES TO SEARCH UCC TAX LIEN JUDGMENT FILING
=================================== =========================================== ===== ======== =========== ========
MISSISSIPPI S/S Tenneco Automotive Inc. f/k/a Monroe Auto X X N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
MONROE COUNTY, MS Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
MISSOURI S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
-------------------------------------------------------------------------------------------------------------------------------
XXXXXXX COUNTY, MO Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
-------------------------------------------------------------------------------------------------------------------------------
NEBRASKA S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X N/A N/A N/A
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
XXXXXX COUNTY, NE Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
XXXXXX COUNTY, NE Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
NORTH CAROLINA S/S Tenneco Automotive Inc. f/k/a Monroe Auto X X N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
WAKE COUNTY, NC Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
-6-
186
=================================== =========================================== ===== ======== =========== ========
FIXTURE
JURISDICTION NAMES TO SEARCH UCC TAX LIEN JUDGMENT FILING
=================================== =========================================== ===== ======== =========== ========
OHIO S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X N/A N/A N/A
------------------------------------------------------------------------------------------
The Pullman Company X N/A N/A N/A
------------------------------------------------------------------------------------------
Clevite Industries Inc. X N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
XXXXX COUNTY, OH Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
HURON COUNTY, OH Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
CUYAHOGA COUNTY, OH Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
------------------------------------------------------------------------------------------
The Pullman Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
RICHLAND COUNTY, OH Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
------------------------------------------------------------------------------------------
The Pullman Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
ERIE COUNTY, OH Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
------------------------------------------------------------------------------------------
Clevite Industries Inc. X X X X
-------------------------------------------------------------------------------------------------------------------------------
-7-
187
=================================== =========================================== ===== ======== =========== ========
FIXTURE
JURISDICTION NAMES TO SEARCH UCC TAX LIEN JUDGMENT FILING
=================================== =========================================== ===== ======== =========== ========
XXXXX COUNTY, OH Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
------------------------------------------------------------------------------------------
Clevite Industries Inc. X X X X
-------------------------------------------------------------------------------------------------------------------------------
SOUTH CAROLINA S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
XXXXXXXX COUNTY, SC Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
TENNESSEE S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
DEKALB COUNTY, TN Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
TEXAS S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X N/A N/A N/A
------------------------------------------------------------------------------------------
Tenneco Business Services, Inc. X N/A N/A N/A
------------------------------------------------------------------------------------------
Pullmex, S.A. X N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
DALLAS COUNTY, TX Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
-8-
188
=================================== =========================================== ===== ======== =========== ========
FIXTURE
JURISDICTION NAMES TO SEARCH UCC TAX LIEN JUDGMENT FILING
=================================== =========================================== ===== ======== =========== ========
XXXXXX COUNTY, TX Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
XXXXXX COUNTY, TX Tenneco Business Services, Inc. X X X X
-------------------------------------------------------------------------------------------------------------------------------
XXXXXXX COUNTY, TX Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
------------------------------------------------------------------------------------------
Pullmex, S.A. X X X X
-------------------------------------------------------------------------------------------------------------------------------
XXXXXXXXXX COUNTY, TX Tenneco Business Services, Inc. X X X X
-------------------------------------------------------------------------------------------------------------------------------
VIRGINIA S/S Tenneco Automotive Inc. f/k/a Monroe Auto X X N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X N/A N/A
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
ROANOKE (INDEPENDENT CITY) Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Monroe Auto Equipment Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
VIRGINIA BEACH (INDEPENDENT CITY) Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
-------------------------------------------------------------------------------------------------------------------------------
HARRISONBURG (INDEPENDENT CITY) Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
WISCONSIN S/S Tenneco Automotive Inc. f/k/a Monroe Auto X N/A N/A N/A
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------------------
-9-
189
=================================== =========================================== ===== ======== =========== ========
FIXTURE
JURISDICTION NAMES TO SEARCH UCC TAX LIEN JUDGMENT FILING
=================================== =========================================== ===== ======== =========== ========
XXXXXX COUNTY, WI Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
RACINE COUNTY, WI Tenneco Automotive Inc. f/k/a Monroe Auto X X X X
Equipment Company
------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company X X X X
-------------------------------------------------------------------------------------------------------------------------------
Notes: Monroe Auto Equipment Company changed its name to Tenneco Automotive Inc.
effective 10/31/96.
Xxxxxx Manufacturing Company and Monroe Auto Equipment (Company) both
operated as divisions of Tenneco Automotive Inc. until 10/21/98.
Rancho Industries is a division of Tenneco Automotive Inc. in California
only.
-10-
190
DRAFT 9/23/99
SCHEDULE 4.19(b)
MORTGAGE FILING JURISDICTIONS
FACILITY: Paragould, Arkansas
ADDRESS: 0000 Xxxxxxx 00X Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
COUNTY SITUATED IN: Xxxxxx
OWNED BY: Monroe
FACILITY: Aberdeen, Mississippi
ADDRESS: 000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
COUNTY SITUATED IN: Monroe
OWNED BY: Xxxxxx
FACILITY: Harrisonburg, VA
ADDRESS: 0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
COUNTY SITUATED IN: Harrisonburg (City)
OWNED BY: Xxxxxx
FACILITY: Harrisonburg, VA
ADDRESS: 0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
COUNTY SITUATED IN: Harrisonburg (City)
OWNED BY: Xxxxxx
FACILITY: Seward, NE
ADDRESS: X.X. Xxx 000 - X. Xxxxxxx 00
Xxxxxx, XX 00000
COUNTY SITUATED IN: Xxxxxx
OWNED BY: Xxxxxx
FACILITY: Monroe, Michigan
ADDRESS: 00000 Xxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
COUNTY SITUATED IN: Monroe
OWNED BY: Monroe Lodge
191
DRAFT 9/23/99
FACILITY: Monroe, Michigan
ADDRESS: 0 Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
COUNTY SITUATED IN: Monroe
OWNED BY: Monroe
FACILITY: Cozad, Nebraska
ADDRESS: 000 Xxxxxxxx Xx.
Xxxxx, Xxxxxxxx 00000
COUNTY SITUATED IN: Xxxxxx
OWNED BY: Monroe
FACILITY: Napolean, Ohio
ADDRESS: Xxxxx 000
Xxxxxxxx, Xxxx 00000
COUNTY SITUATED IN: Xxxxx
OWNED BY: Monroe-Clevite
FACILITY: Milan, Ohio
ADDRESS: 00 Xxxxxxxx Xx.
Xxxxx, Xxxx 00000
COUNTY SITUATED IN: Ashland
OWNED BY: Monroe-Clevite
FACILITY: Angola, Indiana
ADDRESS: 000 Xxxxxxxxxxx Xx.
Xxxxxx, Xxxxxxx 00000
COUNTY SITUATED IN: Stueben
OWNED BY: Monroe-Clevite
FACILITY: Hartwell, Georgia
ADDRESS: 000 XxXxxxxx Xx.
Xxxxxxxx, Xxxxxxx 00000
COUNTY SITUATED IN: Xxxx
OWNED BY: Monroe
FACILITY: Smithville, Tennessee
ADDRESS: 000 Xxx Xxxxx Xx.
Xxxxxxxxxxx, Xxxxxxxxx 00000
COUNTY SITUATED IN: Dekalb
OWNED BY: Xxxxxx
-2-
192
DRAFT 9/23/99
FACILITY: Litchfield, Michigan
ADDRESS: 000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
COUNTY SITUATED IN: Hillsdale
OWNED BY: Xxxxxx
FACILITY: Jackson Engineering Facility
ADDRESS: 0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
COUNTY SITUATED IN: Xxxxxxx
OWNED BY: Xxxxxx
FACILITY: Grass Lake, Michigan
ADDRESS: 0000 Xxxxxx Xxxx
Xxxxx Xxxx, Xxxxxxxx 00000
COUNTY SITUATED IN: Xxxxxxx
OWNED BY: Xxxxxx
FACILITY: Elkhart, Indiana
ADDRESS: 0000 Xxxxxxx Xx.
Xxxxxxx, Xxxxxxx 00000
COUNTY SITUATED IN: Elkhart
OWNED BY: Xxxxxx
FACILITY: Culver, Indiana
ADDRESS: 000 X. Xxxx Xx.
Xxxxxx, Xxxxxxx 00000
COUNTY SITUATED IN: Xxxxxxxx
OWNED BY: Xxxxxx
FACILITY: Norwalk, Ohio
ADDRESS: 000 Xxxxxxxx
Xxxxxxx, Xxxx 00000
COUNTY SITUATED IN: Huron
OWNED BY: Monroe
-3-
193
SCHEDULE 7.2(D)
DOMESTIC INDEBTEDNESS
Capital Lease Obligations of Clevite Industries, Inc. aggregating $1,226,031.
Guaranties by Tenneco Inc. of Indebtedness of Foreign Subsidiaries listed
on Schedule 7.2(d) (Foreign Indebtedness)
Letters of Credit on attached list.
Guaranty by Tenneco Inc. of the Tenneco Automotive Inc. plant lease for the
Ligonier, Indiana facility.
Guaranty by Tenneco Inc. of the Tenneco lease for the Lake Forest, Illinois
facility.
Guaranties by Tenneco Inc. of Environmental obligations relating to the
following facilities:
Buckeye........................................................$100,000
Harrisonburg...................................................$293,290
Paragould-Xxxxx Road Landfill, Paragrould, AR................$2,800,000
000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx...........................x000,000
Guaranties of Speedy Muffler King Leases on attached list by Tenneco Automotive
Inc.
Guaranty by Tenneco Automotive of obligations to Vanstar Corporation for
services provided to Foreign Subsidiaries.
194
$2,226,000.00 $2,056,330.00 $32,981,717.00 $3,313,297.00
BofA (Continental) Chase NationsBank Chase Manhattan Letters of Credit, originally issued
#7224604 P.26216 #130995 by Manufacturers or Chemical
PCA Travellers of Illinois Cigna, et al
Michigan environmental Astro Valoovi WCGI/Auto Insurance/Surety Leases Miscellaneous
$2,226,000.00 $1,000,000.00 $29,481,717.00
G149925 P290 101 (T245911) G235675
Bank of America NationsBank Gulf Insurance Charter Financial CIBC (import bond)
C7340834 #120796 $250,000.00 $34,312.50 $25,000.00
Citibank, as Agent Inc.
Lake Forest HQ lease "employee benefits" G155402 T252405 G132797
$1,056,330 $3,000,000.00 Liberty Mutual Charter Financial State of NJ
$700,000.00 $60,488.75 $750,000.00
Chase
P.395778 G166933 P132 797 (T 247 389)
Inc. & Greenmoni National Surety Charter Financial
Vermont Ins. Comm $1,000,000.00 $204,856.25
Equity guarantee
$500,000.00 T249948
Cargill Leasing
$288,639.50
As of June 16, 1999
$40,577,344.00
195
Co 0116
38A(3)
INFORMATION PROVIDED FROM XXXX XXXXX (XXXXXXXX XXXXXX - TA LEGAL SECRETARY)
BY SPEEDY CAR-X OFFICES IN CHICAGO, ILLINOIS
LOCATION CONTRACT CONTRACT #MOS MONTHLY TOTAL GRAND TOTAL
START END LEFT PMT LEASE
------------ -------- -------- ---- ------- ------- -----------
674 NORWALK 09/01/86 08/31/91 0 4.583 0
09/01/91 08/31/96 0 5.125 0
09/01/96 08/31/01 20 6.067 121.333
1912 REISTERTOWN, PA 02/21/86 02/20/91 0 1.667 0
02/21/91 02/20/96 0 1.833 0
02/21/96 02/20/01 26 2.017 52.433
02/21/01 02/20/05 60 2.218 133.100
02/21/06 02/20/11 50 2.440 146.410
02/21/11 02/20/16 60 2.684 161.060
1913 RADALLSTOWN, MD 03/13/87 03/12/92 0 4.708 0
03/13/92 03/12/97 0 5.415 0
03/13/97 03/12/02 39 6.227 242.844
03/13/02 03/12/07 60 7.161 429.647
03/13/07 03/12/12 60 8.235 494.094
03/13/12 03/12/17 60 9.470 568.208
2104 PONTIAC, MI 09/01/73 09/01/85 0 0 0
09/02/85 09/01/90 0 0 0
09/02/90 09/01/95 0 0 0
10/01/95 09/30/95 0 2.500 0
10/01/96 09/30/97 0 2.500 0
10/01/97 09/30/98 0 2.600 0
0000 XXXXXXXX, XX 06/14/73 06/14/86 0 0 0
06/15/65 06/14/90 0 0 0
06/15/90 06/14/95 0 0 0
06/15/95 06/30/96 0 0 0
06/01/96 06/01/01 31 3.100 98.100
0000 XXXXXX, XX 07/01/74 06/30/86 0 0 0
07/01/86 06/30/91 0 0 0
07/01/91 06/30/96 0 0 0
07/01/96 09/01/01 31 3.000 93.000
0000 X XXXXXX, XX 02/01/85 01/31/87 0 1.775 0
02/01/87 01/31/90 0 2.041 0
01/01/90 01/31/95 0 2.763 0
02/01/95 01/31/00 13 2.952 38.374
02/01/00 01/31/05 60 3.394 203.665
02/01/05 01/31/10 60 3.904 234.215
0000 XXXXXX XXXXXX, XX 03/01/86 02/28/90 0 1.500 0
03/01/90 01/28/95 0 1.800 0
03/01/95 02/28/00 14 2.160 30.240
03/01/00 02/28/05 60 2.592 156.520
03/01/05 02/28/10 60 3.110 186.624
3135 SMITHTOWN, NY 05/01/86 04/30/90 0 1.667 0
05/01/90 04/30/95 0 1.917 0
05/01/95 04/30/00 16 2.204 35.287
05/01/00 04/30/06 60 2.756 165.315
05/01/05 04/30/10 60 3.444 206.640
05/01/10 04/30/15 60 4.305 258.300
3136 CNTRCH 03/01/85 02/28/90 0 2.000 0
03/01/90 02/28/95 0 2.300 0
03/01/95 02/28/00 14 2.645 37.030
03/01/00 02/28/05 60 2.439 206.310
03/01/06 02/28/10 60 Appraised 0
0000 XXXXX XXXXXX, XX 06/01/86 02/28/90 0 6.700 0
03/01/90 02/28/93 0 9.300 0
03/01/93 02/28/95 0 9.500 0
03/01/96 09/29/00 21 11.833 248.493
3140 UTICA, MI 05/01/85 04/30/91 0 3.000 0
05/01/91 04/30/96 0 3.600 0
196
06/01/96 04/30/01 28 4.320 120.960
05/01/01 04/30/06 60 5.616 336.980
05/01/05 04/30/11 60 7.301 438.048
3141 XXXX PAGE, NY 12/15/86 12/14/91 0 4.000 0
12/15/91 12/14/96 0 4.850 0
12/15/96 12/14/01 35 5.650 203.400
0000 XXXX XXXX, XX 07/01/87 06/03/92 0 2.750 0
07/01/92 06/03/97 0 2.300 0
07/01/97 06/03/92 41 3.950 161.950
07/01/02 06/03/07 50 4.750 285.000
3143 CORONA, NY 10/01/67 06/03/91 0 2.200 0
07/01/91 06/03/98 0 2.530 0
07/01/96 06/03/01 17 2.910 49.462
07/01/01 06/03/06 60 3.348 200.756
3750 MONROEVILLE, PA 07/15/85 07/14/91 0 4.000 0
07/15/91 07/14/96 0 4.400 0
07/15/96 07/14/01 31 4.850 150.360
07/16/01 07/14/06 60 5.335 320.100
07/15/06 07/14/11 60 5.870 352.200
07/15/11 07/14/16 60 5.450 387.600
0000 XXXXXXXX, XX 08/22/86 09/21/85 0 3.292 0
09/22/88 09/21/91 0 3.628 0
09/22/81 09/21/96 0 4.000 0
09/22/96 09/21/01 33 4.600 151.800
09/22/01 09/21/06 60 5.520 331.200
09/22/06 09/21/11 60 5.624 397.440
0000 XXXXXXXXXX, XX 01/12/83 11/30/92 0 3.333 0
12/01/92 11/30/97 0 3.750 0
12/01/97 11/30/02 0 4.167 0
----------
18,431,440
197
SCHEDULE 7.2(D) DRAFT 09/24/99
(FOREIGN INDEBTEDNESS)
-----------------------------------------------------------------------------------------------------------------------------------
COUNTRY ENTITY BANK LIMIT(1) LIMIT(2) PURPOSE LIEN
-----------------------------------------------------------------------------------------------------------------------------------
1 Argentina Fric Rot Galicia Bank ARS 500K 500 Overdraft Right of set-off, right to
S.A.I.C. facility -- preferential payment or other
Working Capital encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ------------- ------ ---------------- ------------------------------
2 Australia Monroe Westpac Banking AUD 250K 160 Overdraft Right of set-off, right to
Australia/ Corp facility preferential payment or other
Monroe Springs encumbrance on deposits or
Australia/Xxxxxx other assets in bank's
Australia possession from time to
time(3)
--- -------------- ---------------- ---------------- ------------- ------ ---------------- ------------------------------
3 Australia Monroe Westpac Banking AUD 13.5M 8,659 Standby Right of set-off, right to
Australia/ Corp overdraft preferential payment or other
Monroe Springs facility encumbrance on deposits or
Australia/Xxxxxx other assets in bank's
Australia possession from time to
time(3)
--- -------------- ---------------- ---------------- ------------- ------ ---------------- ------------------------------
4 Australia Monroe Westpac Banking AUD 1.6M 1,026 Guarantee Right of set-off, right to
Australia/ Corp facility preferential payment or other
Monroe Springs encumbrance on deposits or
Australia/Xxxxxx other assets in bank's
Australia possession from time to
time(3)
--- -------------- ---------------- ---------------- ------------- ------ ---------------- ------------------------------
5 Australia Monroe Westpac Banking AUD 247K 158 Long term lease Right of set-off, right to
Australia/ Corp facility preferential payment or other
Monroe Springs encumbrance on deposits or
Australia/Xxxxxx other assets in bank's
Australia possession from time to
time(3)
--- -------------- ---------------- ---------------- ------------- ------ ---------------- ------------------------------
6 Australia Monroe Westpac Banking AUD 300K 192 Trade finance Right of set-off, right to
Australia/ Corp facility preferential payment or other
Monroe Springs encumbrance on deposits or
Australia/Xxxxxx other assets in bank's
Australia possession from time to
time(3)
--- -------------- ---------------- ---------------- ------------- ------ ---------------- ------------------------------
7 Belgium Tenneco Artesia BEF 155M 3,983 Short term Right of set-off, right to
Automotive credit facility preferential payment or other
Europe NV -- Working encumbrance on deposits or
Capital other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ------------- ------ ---------------- ------------------------------
8 Belgium Tenneco Bank Brussels BEF 150M 3,855 Short term Right of set-off, right to
Automotive Xxxxxxx credit facility preferential payment or other
Europe NV -- Working Capital encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ------------- ------ ---------------- ------------------------------
198
-----------------------------------------------------------------------------------------------------------------------------------
COUNTRY ENTITY BANK LIMIT(1) LIMIT(2) PURPOSE LIEN
-----------------------------------------------------------------------------------------------------------------------------------
9 Belgium Tenneco A.S.L.K. BEF 25M 642 Short term Right of set-off, right to
Automotive credit facility preferential payment or other
Europe NV - Working encumbrance on deposits or
Capital other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
10 Brazil Tenneco HSBC Bamerindus Drawn: BRL 1.31M 700 Overdraft Right of set-off, right to
Automotive facility - preferential payment or other
Brazil Ltda Working Capital encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
11 Brazil Tenneco HSBC Bamerindus BRL 5M 2,671 Short term Right of set-off, right to
Automotive credit facility preferential payment or other
Brazil Ltda - Working encumbrance on deposits or
Capital other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
12 Brazil Tenneco Banco ABC Brasil BRL 10M 5,342 Short term Right of set-off, right to
Automotive credit facility preferential payment or other
Brazil Ltda encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
13 Brazil Tenneco Banco Real S/A BRL 450K 240 Overdraft -- Right of set-off, right to
Automotive Working Capital preferential payment or other
Brazil Ltda encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
14 Brazil Tenneco Banco Real S/A BRL 3.6M 1,923 Short term Right of set-off, right to
Automotive credit facility preferential payment or other
Brazil Ltda - Working encumbrance on deposits or
Capital other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
15 Brazil Tenneco Banco Real BRL 7M 3,739 Short term Right of set-off, right to
Automotive Investimentos credit facility preferential payment or other
Brazil Ltda encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
16 Brazil Tenneco Dresdner Bank BRL 7M 3,739 Short term Right of set-off, right to
Automotive credit facility preferential payment or other
Brazil Ltda encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
17 Brazil Tenneco Unibanco BRL 5M 2,671 Short term Right of set-off, right to
Automotive credit preferential payment or other
Brazil Ltda encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
18 Brazil Tenneco Banco Sudameris BRL 1.3M 694 Export Line Right of set-off, right to
Automotive preferential payment or other
Brazil Ltda encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
19 Brazil Tenneco Citibank BRL 395K 211 BNDES Financing Right of set-off, right to
Automotive preferential payment or other
Brazil Ltda encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
20 Canada TCI-Automotive Bank of Montreal USD 10M# 10,000 Undocumented Right of set-off, right to
line, advised preferential payment or other
limit, includes encumbrance on deposits or
drawings in CAD other assets in bank's
and USD possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
2
199
-----------------------------------------------------------------------------------------------------------------------------------
COUNTRY ENTITY BANK LIMIT(1) LIMIT(2) PURPOSE LIEN
-----------------------------------------------------------------------------------------------------------------------------------
21 China Beijing Monroe Finance Bureau, RMB 750K 91 Short term Right of set-off, right to
Shock Absorber China working capital preferential payment or other
Company loan encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
22 China Beijing Monroe Industrial & Drawn: RMB 9.1M 1,099 Short term Pledge over assets
Shock Absorber Commercial Bank working capital
Company of China loan
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
23 China Beijing Monroe Dai-ichi Kangyo USD 1.5M 1,500 Short term Right of set-off, right to
Shock Absorber Bank working capital preferential payment or other
Company loan supported encumbrance on deposits or
by Tenneco Inc. other assets in bank's
guarantee possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
24 China Beijing Monroe Localization RMB 5M 604 Long term capex Right of set-off, right to
Shock Absorber loan/Planning loan preferential payment or other
Company committee encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
25 China Beijing Monroe Localization Drawn: RMB 6M 725 Long term capex Right of set-off, right to
Shock Absorber loan/CBC loan preferential payment or other
Company encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
26 China Dalian Xxxxxx- Industrial & Drawn: RMB 12.3M 1,486 Short term Pledge over assets
Gillet Auto Commercial Bank, working capital
Muffler Company China loan
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
00 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx Xxxxx XXX 20M 570 Overdraft Right of set-off, right to
Liberec facility -- preferential payment or other
Working Capital encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
00 Xxxxxxx Xxxxxx Xxxxxxx Xxx Xxxxxx Xxxx XXX 20M 2,794 Overdraft Right of set-off, right to
A/S facility -- preferential payment or other
Working Capital encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
00 Xxxxxxx Xxxxxx Xxxxxxx Xxx Xxxxxx Xxxx XXX 3.8M 531 Multi-currency Right of set-off, right to
A/S overdraft preferential payment or other
facility encumbrance on deposits or
(EUR/DEM/NLG) other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
30 France Gillet Tubes SODIEST Drawn: FRF 2.99M 472 Long term loan, Right of set-off, right to
Technologies (Development matures May 2002 preferential payment or other
Agency) Capital encumbrance on deposits or
Expenditure other assets in bank's
Finance possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
31 France Gillet Tubes SODIEST Drawn: FRF 330K 52 Long term loan, Right of set-off, right to
Technologies (Development matures January preferential payment or other
Agency) 2001 Capital encumbrance on deposits or
Expenditure other assets in bank's
Finance possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
32 France Wimetal Banque Nationale FRF 150M 23,685 Xxxx discounting Without recourse discounting
de Paris -- Working facility
Capital
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
33 France Wimetal Sogenal FRF 40M 6,316 Overdraft Right of set-off, right to
facility preferential payment or other
encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
3
200
-----------------------------------------------------------------------------------------------------------------------------------
COUNTRY ENTITY BANK LIMIT(1) LIMIT(2) PURPOSE LIEN
-----------------------------------------------------------------------------------------------------------------------------------
34 France Wimetal Sogenal FRF 150M 23,685 Xxxx discounting Without recourse discounting
facility -- facility
without
recourse
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
35 Germany Tenneco Commerzbank, DEM 16.3M 8,631 German cashpool Right of set-off, right to
Deutschland Neustadt overdraft preferential payment or other
Holdings facility (plus encumbrance on deposits or
Gesellschaft mbH DEM 8.9 million other assets in bank's
daylight possession from time to
overdraft), time(3)
guaranteed by
Tenneco Inc.
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
36 Germany Xxxxxxxx Xxxxxx Commerzbank See #36 Overdraft Right of set-off, right to
GmbH & Co. KG (ledger balance) preferential payment or other
Part of German encumbrance on deposits or
cashpool other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
37 Germany Tenneco Commerzbank See #36 Overdraft Right of set-off, right to
Automotive (ledger balance) preferential payment or other
Deutschland Part of German encumbrance on deposits or
cashpool other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
38 India Hydraulics Ltd Citibank INR 25M 575 Working Capital Right of set-off, right to
facility, preferential payment or other
guaranteed by encumbrance on deposits or
Tenneco Inc. other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
39 India Hydraulics Ltd Citibank Drawn: INR 35M 805 Working Capital Right of set-off, right to
facility, preferential payment or other
guaranteed by encumbrance on deposits or
Tenneco Inc. other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
40 India Hydraulics Ltd Bank of America INR 150M 3,450 Long term loan Right of set-off, right to
supported by preferential payment or other
Tenneco Inc. encumbrance on deposits or
guarantee, other assets in bank's
matures in June possession from time to
2000 time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
41 India Hydraulics Ltd Bank of America INR 225M 5,175 Short term Right of set-off, right to
working capital preferential payment or other
loan, Tenneco encumbrance on deposits or
Inc. guarantee other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
42 India Renowned Auto Various INR 5.2M 120 Long term Right of set-off, right to
Products loan -- Working preferential payment or other
Manufacturers Capital encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
43 India Renowned Auto SIPCOT INR 5,140 0 Term loan -- Right of set-off, right to
Products matures June preferential payment or other
Manufacturers 2000 Sales Tax encumbrance on deposits or
Financing other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
44 India Renowned Auto SIPCOT INR 3.8M 87 Term loan, Right of set-off, right to
Products matures June preferential payment or other
Manufacturers 2000 Working encumbrance on deposits or
Capital other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
45 India Xxxxxx Exhaust Bank of America INR 110M 2,530 Term loan Right of set-off, right to
India Pvt. Ltd. supported by preferential payment or other
Tenneco Inc. encumbrance on deposits or
guarantee other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
4
201
-----------------------------------------------------------------------------------------------------------------------------------
COUNTRY ENTITY BANK LIMIT(1) LIMIT(2) PURPOSE LIEN
-----------------------------------------------------------------------------------------------------------------------------------
46 India Xxxxxx Exhaust Bank of America INR 35M 805 Short term Right of set-off, right to
India Pvt. Ltd working capital preferential payment or other
loan supported encumbrance on deposits or
by Tenneco Inc. other assets in bank's
guarantee possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
47 Italy Tenneco Credito Italiano ITL 180M 4,140 Overdraft Right of set-off, right to
Automotive SpA facility -- preferential payment or other
Italia Srl Working Capital encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
48 New Zealand Monroe Springs Westpac Banking NZD 250K 130 Overdraft Right of set-off, right to
New Zealand Corp facility -- preferential payment or other
Working Capital encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
49 Poland Tenneco Citibank, Poland PLN 35M 8,550 Short term Right of set-off, right to
Automotive credit facility preferential payment or other
Polska supported by encumbrance on deposits or
Tenneco Inc. other asset in bank's
guarantee -- possession from time to
Working Capital time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
50 Singapore Tenneco Asia Bank of America, SGD 500K 294 Overdraft Right of set-off, right to
Singapore facility preferential payment or other
supported by encumbrance on deposits or
Tenneco Inc. other assets in bank's
letter of possession from time to
comfort time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
51 Singapore Tenneco Citibank, USD 1M 1,000 Overdraft Right of set-off, right to
Automotive Asia Singapore facility preferential payment or other
(T.A.T.C) supported by encumbrance on deposits or
Tenneco Inc. other assets in bank's
guarantee possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
52 South Africa Armstrong First National ZAR 10M 1,643 Short term Right of set-off, right to
Hydraulics Bank working capital preferential payment or other
line supported encumbrance on deposits or
by Tenneco other assets in bank's
Automotive possession from time to
Holdings SA time(3)
guarantee
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
53 South Africa Armstrong ABSA Bank ZAR 9M 1,479 Short term Right of set-off, right to
Hydraulics working capital preferential payment or other
facility encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
54 Spain Tenneco Banco Santander ESP 3.3BN 20,543 Long term Secured by underlying assets
Automotive capital lease --
Iberica matures Sept
2009 (to be
signed before
Spin-Off)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
55 Spain Tenneco Banco Santander ESP 150M 933 Guarantee Right of set-off, right to
Automotive facility preferential payment or other
Iberica encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
56 Spain Tenneco Banco Santander ESP 178M 1,108 Finance lease Secured by underlying asset
Automotive for plant
Iberica machinery
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
57 Sweden Tenneco Sparbanken SEK 5M 604 Overdraft Right of set-off, right to
Automotive facility -- preferential payment or other
Sweden Working Capital encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
-------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
5
202
-----------------------------------------------------------------------------------------------------------------------------------
COUNTRY ENTITY BANK LIMIT(1) LIMIT(2) PURPOSE LIEN
-----------------------------------------------------------------------------------------------------------------------------------
58 Turkey Monroe Amortisor Iktisat Bankasi TRL 85BN 184 Overdraft -- Right of set-off, right to
Working Capital preferential payment or other
encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
59 Turkey Monroe Amortisor Is Bankasi TRL 100BN 217 Short term Right of set-off, right to
credit facility preferential payment or other
(overdraft/ encumbrance on deposits or
guarantees) other assets in bank's
supported by possession from time to
TMEL letter of time(3)
comfort
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
60 UK Tenneco Walker Barclays Bank GBP 2.5M 4,051 Overdraft Right of set-off, right to
UK facility -- cross preferential payment or other
guarantee Part encumbrance on deposits or
of UK cashpool other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
61 UK Tenneco Barclays Bank GBP 500K 810 Overdraft Right of set-off, right to
Automotive UK facility -- cross preferential payment or other
Ltd guarantee Part encumbrance on deposits or
of UK cashpool other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
62 UK Tenneco Europe Bank of America GBP 100K 162 Overdraft Right of set-off, right to
Ltd facility preferential payment or other
encumbrance on deposits or
other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
63 UK Tenneco Bank of America, USD 25M 25,000 Credit facility Right of set-off, right to
Management London supported by preferential payment or other
(Europe) Limited Tenneco Inc. encumbrance on deposits or
guarantee other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
64 UK Tenneco KBC Bank, London USD 25M 25,000 Credit facility Right of set-off, right to
Management supported by preferential payment or other
(Europe) Limited Tenneco Inc. encumbrance on deposits or
comfort letter other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
65 France Tenneco Banque Nationale FRF 100M 15,790 Credit facility Right of set-off, right to
Management de Paris, Laval supported by preferential payment or other
(Europe) Limited Tenneco Inc. encumbrance on deposits or
comfort letter other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
66 UK Tenneco Banque Nationale USD 25M 25,000 Credit facility Right of set-off, right to
Management de Paris, London supported by preferential payment or other
(Europe) Limited Tenneco Inc. encumbrance on deposits or
comfort letter other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
67 UK Tenneco Barclays Bank GBP 2M 3,240 Overdraft -- Right of set-off, right to
Management Plc, London Cross Guarantee preferential payment or other
(Europe) Limited Part of UK encumbrance on deposits or
cashpool other assets in bank's
possession from time to
time(3)
--- -------------- ---------------- ---------------- ---------------- ------ ---------------- ------------------------------
TOTAL: 276,771
(1) In local currency.
(2) In U.S. dollars (000), using the following exchange rates as of
September 20, 1999:
6
203
1 ARS = 1.0002 USD
1 AUD = .6414 USD
1 BEF = .0257 USD
1 BRL = .5342 USD
1 CAD = .6764 USD
1 RMD = .1208 USD
1 CZK = .02849 USD
1 DKK = .1397 USD
1 FRF = .1579 USD
1 DEM = .5295 USD
1 INR = .02300 USD
1 ITL = .0005349 USD
1 NZD = .5218 USD
1 PLN = .2443 USD
1 PTE = .005166 USD
1 SGD = .5872 USD
1 ZAR = .1643 USD
1 ESP = .006225 USD
1 SEK = .1207 USD
1 TRL = .00000217 USD
1 GBP = 1.6202 USD
3 Under applicable law the various rights may or may not constitute Liens.
7
204
SCHEDULE 7.3(F)
DOMESTIC LIENS
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Arkansas S/S Tenneco Automotive Connell Equipment Leasing Co. 1167585 01/19/1999 Forklifts, Cascade Fork
One International Drive 45 Cardinal Drive Positioner
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Arkansas S/S Tenneco Automotive Connell Equipment Leasing Co. 1173103 02/22/1999 Deka batteries, chargers
One International Drive 45 Cardinal Drive
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Arkansas S/S Monroe Auto Equipment Hyster Credit Co. 934421 12/02/1994 One Hyster S40XL2 S/N
Company P. O. Box 4366 C187V06515P
1601 Hwy 49-B North Portland, OR 97208
Paragould, AR 72450
------------------------------------------------------------------------------------------------------------------------------------
Arkansas S/S Monroe Auto Equipment Hyster Credit Co. 944097 02/09/1995 One Hyster E30XL S/N
Company P. O. Box 4366 C114V03686K
1601 Hwy 49-B North Portland, OR 97208
Paragould, AR 72450
------------------------------------------------------------------------------------------------------------------------------------
Arkansas S/S Monroe Auto Equipment Caterpillar Financial 998407 01/22/1996 2 Lift Trucks and Fork
Company Services Corporation Positioners as enumerated
One International Drive 4975 Preston Park, Suite 280 thereon
Monroe, MI 48161 Plano, TX 75093
------------------------------------------------------------------------------------------------------------------------------------
Arkansas S/S Monroe Auto Equipment Caterpillar Financial 1003395 02/26/1996 1 Lift Truck as enumerated
Company Services Corporation thereon
One International Drive 4975 Preston Park, Suite 280
Monroe, MI 48161 Plano, TX 75093
------------------------------------------------------------------------------------------------------------------------------------
Arkansas S/S Monroe Auto Equipment Caterpillar Financial 1003396 02/26/1996 1 Lift Truck and Fork
Company Services Corporation Positioner as enumerated
One International Drive 4975 Preston Park, Suite 280 thereon
Monroe, MI 48161 Plano, TX 75093
------------------------------------------------------------------------------------------------------------------------------------
1
205
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Arkansas S/S Monroe Auto Equipment Caterpillar Financial 1018748 05/21/1996 1 Cascade Fork Positioner
Company Services Corporation Model 100F-HB-B041, S/N
One International Drive 4975 Preston Park, Suite 280 100F-HB-001-00054S
Xxxxxx, XX 00000 Xxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
Arkansas S/S Monroe Auto Equipment Caterpillar Financial 1018749 05/21/1996 1 Caterpillar Lift Truck
Company Services Corporation equipped with 2 batteries
One International Drive 0000 Xxxxxxx Xxxx, Xxxxx 000 and one charger
Xxxxxx, XX 00000 Xxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
Arkansas S/S Monroe Auto Equipment Caterpillar Financial 1029129 07/24/1996 1 Caterpillar Lift Truck
Company Services Corporation S/N 6EM01280
One International Drive 0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000 Xxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
Arkansas S/S Monroe Auto Equipment Hyster Credit Company 1067979 04/08/1997 Six Hyster S60XM's
Company XX Xxx 0000
Xxx Xxxxxxxxxxxxx Xxxxx Xxxxxxxx, XX 00000
Xxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
Arkansas S/S Monroe Auto Equipment Hyster Credit Company 1094652 09/22/1997 Two Hyster S60XM's
Company XX Xxx 0000
Xxx Xxxxxxxxxxxxx Xxxxx Xxxxxxxx, XX 00000
Xxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
Arkansas S/S Monroe Auto Equipment Caterpillar Financial 1123359 03/30/1998 1 Caterpillar Lift Truck
Company Services Corporation equipped with One Xxxxx
One International Drive 4975 Preston Park, Suite 280 Fork Positioner
Xxxxxx, XX 00000 Xxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
Arkansas S/S Tenneco Inc. d/b/a Hyster Credit Company 1160505 11/20/1998 1 Hyster S40XM
Monroe Auto Equipment XX Xxx 0000
Xx. Xxxxxxxx, XX 00000
0000 Xxx 00X
Xxxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
Xxxxxx County, AR Tenneco Automotive Inc. Xxxxxxx Equipment Leasing Co. 73 01/19/1999 Forklifts, Cascade Fork
One International Drive 00 Xxxxxxxx Xxxxx Xxxxxxxxxx
Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
Xxxxxx County, AR Tenneco Automotive Xxxxxxx Equipment Leasing Co. 254 02/22/1999 Deka batteries, chargers
Xxx Xxxxxxxxxxxxx Xxxxx 00 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
2
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Xxxxxx County, AR Tenneco Inc. d/b/a Hyster Credit Company 2061 11/20/1998 One Hyster S40XM
Monroe Auto P. O. Box 4366 S/N D187V12130V
Equipment Company Xxxxxxxx, XX 00000
0000 Xxx 00X
Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx County, AR Monroe Auto Equipment Caterpillar Financial 1597 09/14/1994 1 Caterpillar lift truck
Company Services Corporation equipped with 2 batteries
One International Drive 0000 Xxxxxxx Xxxx, Xxxxx 000 and 1 charger
Xxxxxx, XX 00000 Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx County, AR Monroe Auto Equipment Hyster Credit Company 2197 11/30/1994 One Hyster S40XL2
Company P. O. Xxx 0000 S/N C187V06515P
0000 Xxx 00-X Xxxxx Xxxxxxxx, XX 00000
Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx County, AR Monroe Auto Equipment Hyster Credit Company 261 02/08/1995 One Hyster E30XL
Company P. O. Xxx 0000 S/N C114V03686K
0000 Xxx 00-X Xxxxx Xxxxxxxx, XX 00000
Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx County, AR Monroe Auto Equipment Caterpillar Financial 135 01/22/1996 2 Caterpillar lift trucks
Company Services Corporation equipped with 2 Fork
One International Drive 0000 Xxxxxxx Xxxx, Xxxxx 000 Xxxxxxxxxxx
Xxxxxx, XX 00000 Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx County, AR Monroe Auto Equipment Caterpillar Financial 330 02/23/1996 1 Caterpillar lift truck
Company Services Corporation equipped with 2 batteries
One International Drive 0000 Xxxxxxx Xxxx, Xxxxx 000 and 1 charger
Xxxxxx, XX 00000 Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx County, AR Monroe Auto Equipment Caterpillar Financial 331 02/23/1999 1 Caterpillar lift truck
Company Services Corporation equipped with fork
One International Drive 0000 Xxxxxxx Xxxx, Xxxxx 000 positioner and 3
Xxxxxx, XX 00000 Xxxxx, XX 00000 Caterpillar lift trucks
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx County, AR Monroe Auto Equipment Caterpillar Financial 873 05/20/1996 1 Caterpillar lift truck
Company Services Corporation equipped with 2 batteries
One International Drive 0000 Xxxxxxx Xxxx, Xxxxx 000 and 1 charger
Xxxxxx, XX 00000 Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx County, AR Monroe Auto Equipment Caterpillar Financial 874 05/20/1996 1 Cascade Fork Positioner
Company Services Corporation Model 100F-HB-B041 S/N
One International Drive 0000 Xxxxxxx Xxxx, Xxxxx 000 100F-HB-001-00054S
Xxxxxx, XX 00000 Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
3
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Xxxxxx County, AR Monroe Auto Equipment Hyster Credit Company 568 04/07/1997 Six Hyster S60XM
Company P. O. Xxx 0000
Xxx Xxxxxxxxxxxxx Xxxxx Xxxxxxxx, XX 00000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx County, AR Monroe Auto Equipment Hyster Credit Company 1537 09/18/1997 Two Hyster S60XM
Company P. O. Xxx 0000
Xxx Xxxxxxxxxxxxx Xxxxx Xxxxxxxx, XX 00000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx County, AR Monroe Auto Equipment Caterpillar Financial 594 03/31/1998 1 Caterpillar Lift Truck
Company Services Corporation equipped with 1 Xxxxx Fork
One International Drive 0000 Xxxxxxx Xxxx, Xxxxx 000 Xxxxxxxxxx
Xxxxxx, XX 00000 Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx County, AR Xxxxx Xxxxxxx - #28976 Xxxxxx Xxxxxxx & Xxxxx Xxxx 89-258 04/16/1990 Default Judgment against
and d/b/a Garnishee in the amount of
Monroe Auto Equipment Xxxxxxx & Bird Radiology $87.00
Co., Inc.
Xx #0 Xxx 000
Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
California S/S Tenneco Automotive Inc. Nissan Motor Acceptance Corp. 9802760404 01/22/1998 8 Barretts SG-124DF Serial
17150 Margay 000 X. 000xx Xxxxxx nos. 37-62457, 37-62476,
Xxxxxx, XX 00000 Xxxxxxxx, XX 00000 37-62477, 38-62504,
38-62505, 38-62506,
38-62507 and 38-62508
------------------------------------------------------------------------------------------------------------------------------------
California S/S Tenneco Automotive Inc. Toyota Motor Credit Corp. 9802860645 01/23/1998 One used Drexel Model
17150 Margay P. O. Box 3457 SLT30, S/N 00000-0-00,
Xxxxxx, XX 00000 Xxxxxxxx, XX 00000 88/205" Mast, 42" Forks,
Exide Battery and Exide
Charger
------------------------------------------------------------------------------------------------------------------------------------
California S/S Tenneco Automotive Inc. Toyota Motor Credit Corp. 9805460383 02/17/1998 One new Toyota Forklift
17150 Margay P. O. Box 3457 Model 42-6FGCU30, S/N:
Xxxxxx, XX 00000 Xxxxxxxx, XX 00000 61218; One new Toyota
Forklift Model 42-6FGCU25,
S/N: 69962
------------------------------------------------------------------------------------------------------------------------------------
Delaware S/S Monroe Auto Equipment Xxxxxxx Finance Company, Inc. 9502229 02/13/1995 Forklifts, batteries and
0000 Xxxxxxxx Xxxxx 00 Xxxxxxxx Xxxxx xxxxxxxx
Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
4
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
New Castle Monroe Auto Equipment Xxxxxxx Finance Company, Inc. 25403 10/21/1994 Forklifts, batteries and
County, DE 0000 Xxxxxxxx Xxxxx 00 Xxxxxxxx Xxxxx xxxxxxxx
Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Florida S/S Xxxxxx Manufacturing Forum Financial Group, Inc. 960000247763 11/25/1996 Equipment Schedule 2220-48;
Company 0000 Xxxxxxxxxx Xxxxx, Xxxxx equipment located at 4949
0000 X. Xxxxxxxx Xxxx. 000 Xxxxxxxxxx, XX 00000 Distribution Drive, Tampa,
Xxxxxx, XX 00000 Assigned to: FL 33605
Colorado National Leasing,
Inc.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Illinois S/S Xxxxxx Manufacturing LaSalle Equipment 3396583 05/04/1995 Computer Equipment per
Company, Limited Partnership Schedule covered under
a division of Tennessee 00 Xxxxxx Xxxx., Xxxxx 000 Master Lease #213 dated
Gas Pipeline Company Xxxxxxxxxx, XX 00000 5/1/86 together with
0000 Xxxxxxxx Xxxx. Assigned to: Schedule #33 dated 12/17/93
Xxxxxx, XX 00000 Manufacturers Bank 0000000 05/25/1995
0000 X. Xxxxxxx Xxx. (Xxxxxxxxxx)
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Illinois S/S Xxxxxx Manufacturing Ameritech Credit Corporation 3667213 03/24/1997 Collateral description on
Company, 0000 Xxxx Xxxx Xxxx attachment
a division of Tenneco Xxxxxxx Xxxxxxx, XX 00000
Automotive Inc.
000 X. Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Illinois S/S Xxxxxx Manufacturing LaSalle Equipment Limited 3681562 04/23/1997 Computer Equipment per
Company, Partnership Schedule covered under
a division of Tenneco 00 Xxxxxx Xxxx., Xxxxx 000 Master Lease #213 dated
Automotive Inc. Xxxxxxxxxx, XX 00000 5/1/86 together with
0000 Xxxxxxxx Xxxx. Schedule #44 dated 3/4/97
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Illinois S/S Xxxxxx Manufacturing LaSalle Equipment Limited 3717237 07/16/1997 Computer Equipment per
Company, Partnership Schedule covered under
a division of Tenneco 00 Xxxxxx Xxxx., Xxxxx 000 Master Lease #213 dated
Automotive Inc. Xxxxxxxxxx, XX 00000 5/1/86 together with
0000 Xxxxxxxx Xxxx. Assigned to: 3725008 08/06/1997 Schedule #43 dated 2/24/97
Xxxxxx, XX 00000 Manufacturers Bank (Assignment)
0000 X. Xxxxxxx Xxx.
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
5
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Illinois S/S Xxxxxx Manufacturing Forum Financial Services, 3769868 12/03/1997 Equipment Schedule 5010-09
Company, Inc. for computer equipment
a division of Tenneco 0000 Xxxxxxxxxx Xxxxx located at Xxxxxx Mfg. Co.,
Automotive Inc. Suite 270 335 Crossroads Pkwy., Ste.
0000 Xxxxxxxx Xxxx. Xxxxxxxxxx, XX 00000 A, Xxxxxxxxxxx, XX 00000
Xxxxxx, XX 00000 Assigned to:
Texas Central Bank, N.A.
0000 Xxxxxx Xxxx Xx., #00
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
Illinois S/S Tenneco Automotive International Software 3597736 10/11/1996 Computer Software
000 Xxxxxxxxx Xxxx Finance Corp.
Xxxxxxxxx, XX 00000 000 Xxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Assigned to:
Sterling Bank & Trust
Xxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Illinois S/S Tenneco Automotive Inc. TMC Texas Inc. 3629475 12/19/1996 Accounts receivables,
000 Xxxxxxxxx Xxxx 0000 Xxx Xxxxxx Xxxxx receivables and related
Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000 property now or hereafter
Amended to: sold or otherwise
000 Xxxxx Xxxxx Xxxxx 3832254 04/10/1998 transferred to the Secured
Xxxx Xxxxxx, XX 00000 (Amendment) Party - See Exhibit A
Assigned to: Amendment - Address of
Tenneco Automotive RSA 4008393 03/22/1999 Debtor amended
Company (Assignment)
0000 Xxx Xxxxxx Xxxxx 4008395 03/22/1999 Collateral Description
Xxx Xxxxxxxxx, XX 00000 (Amendment) amended - see Exhibit A
------------------------------------------------------------------------------------------------------------------------------------
Illinois S/S Tenneco Automotive Ramblin Corp. 3736534 09/08/1997 One New Xxxxxx Group
Xxxxxx Manufacturing Olympia Centre-Suite 1550 Vertical Hydraulic Baling
000 Xxxxxxxxxx Xxxxxxx 000 X. Xxxxxxxx Xxxxxx Xxxxx Xxxxx Model VS-6 --
Suite A Xxxxxxx, XX 00000 Serial #099765679
Xxxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Illinois S/S Tenneco Automotive Inc. AT&T Credit Corporation 3750717 10/14/1997 Equipment under Lease No.
000 Xxxxxxxxx Xxxx 0 Xxxxxxxx Xxxxx X000000
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 3766108 11/20/1997 Lease number amended to:
(Amendment) M114693
------------------------------------------------------------------------------------------------------------------------------------
6
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Illinois S/S Tenneco Automotive Inc. Somerset Capital Group, Ltd. 3759280 11/04/1997 See Schedule A for
000 Xxxxxxxxx Xxxx 0000 Xxxxx Xxxxxx-Xxxxx 201 collateral description
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Assigned to:
Summit Bank
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Illinois S/S Tenneco Automotive Inc. Yale Financial Services, Inc. 3826421 04/01/1998 All equipment now or
000 Xxxxx Xxxxx Xxxxx 15 Junction Road hereafter leased by Lessor
Xxxx Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 to Lessee; and all
accessions, additions,
replacements and
substitutions thereto and
therefor and all proceeds,
including insurance
proceeds, thereof.
------------------------------------------------------------------------------------------------------------------------------------
Illinois S/S Tenneco Automotive Inc. AT&T Credit Corporation 3827882 04/02/1998 Lease No. M114693, Octel
000 Xxxxxxxxx Xxxx 2 Gatehall Drive 350 Voice Mail System and
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 all attachments
------------------------------------------------------------------------------------------------------------------------------------
Illinois S/S Tenneco Automotive Inc. CoreStates Bank, N.A., as 0000000 06/29/1998 Equipment under Master
000 Xxxxx Xxxxx Xxxxx Agent Lease No. 1931, Supplement
Xxxx Xxxxxx, XX 00000 0000 Xxxxxxxx Xxxxxx No. 0
Xxxxxxx Xxxxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Assigned to: 3914072 09/24/1998
Fleet Bank, N.A. as Agent
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xx
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Illinois S/S Tenneco Automotive Xxxxx Xxxxxxx Xx. & Co., Inc. 3891155 08/07/1998 All equipment now leased
(Lessee) 000 Xxxx Xxxx Xxxx under Supplement No. 1 to
One International Drive Suite 300 Master Lease Agreement
Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000 dated June 9, 1998 - See
Exhibit A - Computer
Equipment
------------------------------------------------------------------------------------------------------------------------------------
Illinois S/S Tenneco Automotive Inc. Tenneco Automotive RSA 3967821 01/06/1999 See Exhibit A for
000 Xxxxx Xxxxx Xxxxx Company collateral description
Xxxx Xxxxxx, XX 00000 0000 Xxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
7
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Illinois S/S Tenneco Automotive Inc. Tenneco Automotive RSA 3967822 01/06/1999 See Exhibit A for
000 Xxxxx Xxxxx Xxxxx Company collateral description
Xxxx Xxxxxx, XX 00000 0000 Xxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Illinois S/S Tenneco Automotive Inc. Tenneco Automotive RSA 3983088 02/03/1999 See Exhibit A for
000 Xxxxx Xxxxx Xxxxx Company collateral description
Xxxx Xxxxxx, XX 00000 0000 Xxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Illinois S/S Tenneco Automotive Inc. Tenneco Automotive RSA 3983089 02/03/1999 See Exhibit A for
000 Xxxxx Xxxxx Xxxxx Company collateral description
Xxxx Xxxxxx, XX 00000 0000 Xxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Illinois S/S Tenneco Automotive Inc. Leasing Solutions, Inc. 3992769 02/22/1999 Equipment under Master
000 Xxxxx Xxxxx Xxxxx 00 Xxxxxxx Xxxx., Xxxxx 0000 Lease Agreement Xx. 0000,
Xxxx Xxxxxx, XX 00000 Xxx Xxxx, XX 00000 Supplement No. 2.
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S Tenneco Automotive Xxxxxxx Equipment Leasing Co. 2123628 05/09/1997 Xxxxx Lift Truck (Sup. #14)
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S Tenneco Automotive, Inc. Somerset Capital Group, Inc. 2155255 11/04/1997 See attached equipment
000 Xxxxxxxxx Xxxx 0000 Xxxxx Xxxxxx-Xxxxx 201 Schedule #1 to Master Lease
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 dated 09/11/1997
Assigned to:
Summit Bank
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S Tenneco Automotive KMH Systems, Inc. 2197467 06/15/1998 (1) Yale GLP060TGNUAE087SS
Xxxxxx Manufacturing Co. 0000 XX 000 X X/X X000X00000X
0000 Xxxxxx Xxxxxx Xxxx Xxxxx, XX 00000
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S Tenneco Automotive KMH Systems, Inc. 2201078 07/02/1998 (1) Yale
Xxxxxx Manufacturing Co. 0000 XX 000 X XXX000XXXXXX000
0000 Xxxxxx Xxxxxx Xxxx Xxxxx, XX 00000 S/N B818D02344U
Ligonier, IN 46767
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S Tenneco Automotive Inc. Lease Corporation of America 2241781 02/28/1999 See Schedule A (not
0000 X. Xxxxxxxxxx Xxxxx 000 X Xxx Xxxxxx Xx. #000 attached)
Xxxxxx, XX 00000 Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
8
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Indiana S/S Pullman Company DBA Advanta Leasing Corp. 1905809 04/06/1994 Software
Conforma Clad 0000 Xxxxxxxxx Xxxx (Expired)
000 Xxxx Xxxx Xxxx. Xxxxxxxx, XX 00000-0000
Xxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S The Pullman Company St. Xxxxx Leasing Ltd. 1937158 09/09/1994 Equipment listed on
3 Xxxxxx Way-Suite 200 323 Riverside Avenue - Suite Schedule A attached for
Xxxxxxx, XX 00000 300 equipment located at:
Xxxxxxxx, XX 00000 Clevite Elastomers
Assigned to: 000 Xxxxxxxxxxx Xxxxxx
Xxxxxx Xxxxxx Bank Angola, IN 46703
00 X. Xxxxx Xxxxxx-Xxxxx 000
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S The Pullman Company St. Xxxxx Leasing Ltd. 1940726 09/28/1994 Equipment listed on
3 Xxxxxx Way-Suite 200 323 Riverside Avenue - Suite Schedule A attached for
Xxxxxxx, XX 00000 300 equipment located at:
Xxxxxxxx, XX 00000 Clevite Elastomers
Assigned to: 000 Xxxxxxxxxxx Xxxxxx
Xxxxxx Xxxxxx Bank Angola, IN 46703
00 X. Xxxxx Xxxxxx-Xxxxx 000
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S The Pullman Company St. Xxxxx Leasing Ltd. 1984955 05/04/1995 Equipment listed on
0 Xxxxxx Xxx, Xxxxx 000 323 Riverside Avenue - Suite Schedule A attached for
Xxxxxxx, XX 00000 300 equipment located at:
Xxxxxxxx, XX 00000 1996873 06/27/1995 Clevite Elastomers
Assigned to: (Amendment) 000 Xxxxxxxxxxx Xxxxxx
Charter Financial, Inc. Xxxxxx, XX 00000
000 Xxxx 00xx Xxxxxx-00xx Additional equipment added
Floor by amendment
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S The Pullman Company St. Xxxxx Leasing Ltd. 1995191 06/19/1995 Equipment listed on
0 Xxxxxx Xxx, Xxxxx 000 323 Riverside Avenue - Suite Schedule A attached for
Xxxxxxx, XX 00000 300 equipment located at:
Xxxxxxxx, XX 00000 Clevite Elastomers
Assigned to: 000 Xxxxxxxxxxx Xxxxxx
Charter Financial, Inc. Xxxxxx, XX 00000
000 Xxxx 00xx Xxxxxx-00xx
Xxxxx
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
9
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Indiana S/S The Pullman Company St. Xxxxx Leasing Ltd. 1995192 06/19/1995 Equipment listed on
0 Xxxxxx Xxx, Xxxxx 000 323 Riverside Avenue - Suite Schedule A attached for
Xxxxxxx, XX 00000 300 equipment located at:
Xxxxxxxx, XX 00000 Clevite Elastomers
Assigned to: 000 Xxxxxxxxxxx Xxxxxx
Charter Financial, Inc. Xxxxxx, XX 00000
000 Xxxx 00xx Xxxxxx-00xx
Xxxxx
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S The Pullman Company, Kimco Leasing 2004539 08/16/1995 Minolta Model 3170 Copy
Inc. 0000 Xx. Xxx Xxxxxx Xxxx Machine
dba Clevite Elastomers Suite 12
503 Weatherhead Xxxx Xxxxx, XX 00000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S The Pullman Company, Kimco Leasing 2026611 12/29/1995 Canon 7000 Fax Machine
Inc. 0000 Xx. Xxx Xxxxxx Xxxx
dba Clevite Elastomers Suite 12
503 Weatherhead Xxxx Xxxxx, XX 00000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S The Pullman Company St. Xxxxx Leasing Ltd. 2041185 05/04/1995 Equipment listed on
0 Xxxxxx Xxx, Xxxxx 000 323 Riverside Avenue - Suite Schedule A attached for
Xxxxxxx, XX 00000 300 equipment located at:
Xxxxxxxx, XX 00000 Clevite Elastomers
Assigned to: 000 Xxxxxxxxxxx Xxxxxx
Charter Financial, Inc. Xxxxxx, XX 00000
000 Xxxx 00xx Xxxxxx-00xx
Xxxxx
Xxx Xxxx, XX 00000
Assigned to: 2045549 04/03/1996
United Jersey Bank (Assignment)
00 X. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S The Pullman Company Yale Financial Services, Inc. 2126212 05/22/1997 Forklift GLC050 with
Conforma Clad Division 00 Xxxxxxxx Xxxx sideshifter located at:
0000 X. Xxxxxxx Xxxxxxxxxx, XX 00000 000 Xxxx Xxxx Xxxx.
Xxxxxxxxxxx XX 00000 Xxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S Xxxxxx Manufacturing NBD Leasing Inc. 1914047 05/12/1994 Sharp copier
Company, 000 X. Xxxxxxxx Xx. (EXPIRED)
a Division of Tenneco, Xxxxxxxxxxxx, XX 00000
Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
10
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Indiana S/S Perfection Xxxxxxx Leasing Corporation 1919264 06/06/1994 Fork Trucks and Batteries
Automotive/Goshen 00 Xxxxx Xxxxx Xxxxxx (EXPIRED) and Chargers
Industries Xxxxxx, XX 00000
0000 X. Xxxxxxxxxx
Xxxxxx, XX 00000
Amended to Change Name
to:
Xxxxxx Manufacturing
Company
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S Xxxxxx Manufacturing Texas Central Bank N.A. 0000000 08/19/1994 Equipment Schedule 2220-30;
0000 Xxxxxxxx Xxxx. 0000 Xxxxxx Xxxx Xx. LB94 equipment located at:
Xxxxxx, XX 00000 Xxxxxx, XX 00000-0000 000 Xxxx Xxxx Xxxxxx
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S Xxxxxx Manufacturing Xxxxxxx Finance Company, Inc. 1961271 01/17/1995 7 Hyster Forklifts
Company 00 Xxxxxxxx Xxxxx (Supplement 1)
0000 Xxxxxxxx Xxxx. Xxxxxxxxx, XX 00000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S Xxxxxx Manufacturing Xxxxxxx Finance Company, Inc. 1967461 02/14/1995 1 Hyster Forklifts
Company 00 Xxxxxxxx Xxxxx (Supplement 2)
0000 Xxxxxxxx Xxxx. Xxxxxxxxx, XX 00000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S Xxxxxx Manufacturing Texas Central Bank N.A. 0000000 02/14/1995 Equipment Lease Schedule
0000 Xxxxxxxx Xxxx. 0000 Xxxxxx Xxxx Xx. LB94 2220-37; equipment located
Xxxxxx, XX 00000 Xxxxxx, XX 00000-0000 in Ligonier and Culver, IN
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S Xxxxxx Manufacturing Xxxxxxx Finance Company, Inc. 1974634 03/22/1995 1 Cascade Clamp
Company 00 Xxxxxxxx Xxxxx (Supplement 3)
0000 Xxxxxxxx Xxxx. Xxxxxxxxx, XX 00000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S Xxxxxx Manufacturing Xxxxxxx Finance Company, Inc. 1977853 04/05/1995 1 Hyster Truck
Company 00 Xxxxxxxx Xxxxx (Supplement 4)
0000 Xxxxxxxx Xxxx. Xxxxxxxxx, XX 00000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S Xxxxxx Manufacturing Xxxxxxx Finance Company, Inc. 2099188 03/20/1997 1 Silent Hoist Lift Truck;
Company 00 Xxxxxxxx Xxxxx 0 Xxxx Shifter Spreader
0000 Xxxxxxxx Xxxx. Xxxxxxxxx, XX 00000 (Supplement 10)
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Indiana S/S Xxxxxx Manufacturing NBD Equipment Finance, Inc. 2128406 06/03/1997 1 New Advance Scrubber
Co., Inc. 00000 Xxxxxxx Xxxx Xxxxx 6 238 Amp Hr Batteries
a Division of Xxxx, XX 00000 1 36 V Automatic Charger
Tenneco 2 Mid Lite Grit Bruches
000 X. Xxxx Xxxxxx
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
11
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Indiana S/S Xxxxxx Manufacturing Ameritech Credit Corporation 2112653 05/20/1997 All telecommunications and
Company, a 0000 Xxxx Xxxx Xxxx data equipment under Lease
Division of Tenneco Xxxxxxx Xxxxxxx, XX 00000 000-0000000-000 dated
Automotive Inc. 1/21/1997.
000 X. Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Elkhart County, Perfection Associated Material Handling 92082 06/03/1994 2 Xxxxxxx Model Reach Fork
IN Automotive/Goshen Industries Inc. (EXPIRED) Trucks; 4 General Mode
Industries 0000 Xxxxxxxxxxx Xxxxx Batteries; 2 Xxxxxxx
0000 X. Xxxxxxxxxx Xxxxx Xxxxxxxxxxxx, XX 00000 Chargers
Xxxxxx, XX 00000 Assigned to: 98942 12/26/1995
Amended to: Xxxxxxx Leasing Corporation Amendment
Xxxxxx Manufacturing 00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Elkhart County, Xxxxxx Manufacturing Xxxxxxx Finance Company, Inc. 02488 11/25/1996 1 Silent Hoist Lift Truck;
IN Company 00 Xxxxxxxx Xxxxx 0 Xxxx Shifter Spreader
000 Xxxxxxxxx Xxxx Xxxxxxxxx, XX 00000 (Supplement 10)
Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Noble County, IN Xxxxxx Manufacturing Xxxxxxx Finance Company, Inc. 57513 01/13/1995 7 Hyster Forklifts
Company 00 Xxxxxxxx Xxxxx (Supplement 1)
0000 Xxxxxxxx Xxxx. Xxxxxxxxx, XX 00000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Noble County, IN Xxxxxx Manufacturing Texas Central Bank N.A. 57631 02/10/1995 Equipment Lease Schedule
0000 Xxxxxxxx Xxxx. 0000 Xxxxxx Xxxx Xx. LB94 2220-37; equipment located
Xxxxxx, XX 00000 Xxxxxx, XX 00000-0000 in Ligonier and Culver, IN
------------------------------------------------------------------------------------------------------------------------------------
Noble County, IN Xxxxxx Manufacturing Xxxxxxx Finance Company, Inc. 57636 02/13/1995 1 Hyster Forklifts
Company 00 Xxxxxxxx Xxxxx (Supplement 2)
0000 Xxxxxxxx Xxxx. Xxxxxxxxx, XX 00000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Noble County, IN Xxxxxx Manufacturing Xxxxxxx Finance Company, Inc. 57782 03/16/1995 1 Cascade Clamp
Company 00 Xxxxxxxx Xxxxx (Supplement 3)
0000 Xxxxxxxx Xxxx. Xxxxxxxxx, XX 00000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Noble County, IN Xxxxxx Manufacturing Xxxxxxx Finance Company, Inc. 57877 04/03/1995 1 Hyster Truck
Company 00 Xxxxxxxx Xxxxx (Supplement 4)
0000 Xxxxxxxx Xxxx. Xxxxxxxxx, XX 00000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
12
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Michigan S/S Xxxxxx Manufacturing LaSalle Systems Leasing, Inc. 83698B 03/11/1997 Computer Equipment per
Co., a division 00 Xxxxxx Xxxx., Xxxxx 000 Schedule #41 dated
of Tenneco Automotive Xxxxxxxxxx, XX 00000 12/16/1996 to Master Lease
Inc. Assigned to: D320856A 12/30/1997 #213 dated 05/01/86
0000 Xxxxxxxx Xxxx. Manufacturers Bank Assignment
Xxxxxx, XX 00000 0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Xxxxxx Manufacturing LaSalle Systems Leasing, Inc. 83699B 03/11/1997 Computer Equipment per
Co., a division 00 Xxxxxx Xxxx., Xxxxx 000 Schedule #42 dated
of Tenneco Automotive Xxxxxxxxxx, XX 00000 01/24/1997 to Master Lease
Inc. Assigned to: D320856 12/30/1997 #213 dated 05/01/86
0000 Xxxxxxxx Xxxx. Manufacturers Bank Assignment
Xxxxxx, XX 00000 0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Monroe Auto Equipment Tenneco Credit Corporation 16925B 12/26/1991 Account receivables
Company 0000 Xxxxx Xxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 00000 81199B 12/26/1996
Xxxxxx, Xxxxxxxx 00000 Assigned to: Continuation
Asset Securitization
Amended to: Cooperative Corp. 84677B 05/02/1997
Monroe Auto Equipment c/o Canadian Imperial Bank Amendment
Company, a division of of Commerce
Tenneco Automotive Inc. 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Asset Securitization
Group
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Monroe Auto Equipment TMC Texas Inc. 81038B 12/18/1996 Account receivables
Company, a 0000 Xxx Xxxxxx Xxxxx
division of Tenneco Xxx Xxxxxxxxx, XX 00000
Automotive Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Tenneco Automotive Inc. Sanwa Business Credit D452001 12/07/1998 6 New 1998 Caterpillar
One International Drive Corporation Forklifts
Xxxxxx, XX 00000 Xxx X. Xxxxxx Xxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
13
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Michigan S/S Monroe Auto Equipment Caterpillar Financial C883793 09/14/1994 1 Caterpillar lift truck; 2
Company Services Corporation Batteries and 1 Charger
One International Drive 0000 Xxxxxxx Xxxx #000
Xxxxxx, Xxxxxxxx 00000 Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Monroe Auto Equipment Caterpillar Financial D054996 01/22/1996 2 Caterpillar lift trucks
Company Services Corporation equipped with fork
Xxx Xxxxxxxxxxxxx Xxxxx 0000 Xxxxxxx Xxxx #000 positioners
Xxxxxx, Xxxxxxxx 00000 Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Monroe Auto Equipment Caterpillar Financial D067012 02/27/1994 1 Caterpillar lift truck
Company Services Corporation equipped with fork
Xxx Xxxxxxxxxxxxx Xxxxx 0000 Xxxxxxx Xxxx #280 D097755 05/20/1996 positioner and 0
Xxxxxx, Xxxxxxxx 00000 Xxxxx, XX 00000 Amendment (EXPIRED) Caterpillar lift trucks
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Monroe Auto Equipment Caterpillar Financial D067013 02/27/1996 1 Caterpillar lift truck
Company Services Corporation equipped with 2 batteries
Xxx Xxxxxxxxxxxxx Xxxxx 0000 Xxxxxxx Xxxx #000 and 1 charger
Xxxxxx, Xxxxxxxx 00000 Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Monroe Auto Equipment Caterpillar Financial D097698 05/20/1996 1 Caterpillar lift truck; 2
Company Services Corporation Batteries and 1 Charger
One International Drive 0000 Xxxxxxx Xxxx #000
Xxxxxx, Xxxxxxxx 00000 Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Monroe Auto Equipment Caterpillar Financial D097699 05/20/1996 1 Cascade fork positioner
Company Services Corporation
One International Drive 0000 Xxxxxxx Xxxx #000
Xxxxxx, Xxxxxxxx 00000 Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Monroe Auto Equipment Caterpillar Financial D354675 03/26/1998 1 Caterpillar lift truck
Company Services Corporation equipped with 1 Xxxxx fork
Xxx Xxxxxxxxxxxxx Xxxxx 0000 Xxxxxxx Xxxx #000 positioner
Xxxxxx, Xxxxxxxx 00000 Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
14
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Michigan S/S Monroe Auto Equipment Caterpillar Financial D044133 12/18/1995 1 Caterpillar lift truck
Company Services Corporation equipped with 1 Cascade
0000 Xxxxxxx 00 0000 Xxxxxxx Xxxx #000 D367143 04/27/1998 fork positioner
Xxxxxxxxx, XX 00000 Xxxxx, XX 00000 Amendment Amendment added add'l
debtor: Xxxxx X. Xxxxx Co.
of Memphis, Inc., 0000 Xxx
Xxxxxxx Xxxx, Xxxxxxx, XX
00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Tenneco Automotive Inc. Sanwa Business Credit 86192B 07/23/1997 4 Used Caterpillar forklifts
Xxx Xxxxxxxxxxxxx Xxxxx Xxxxxxxxxxx
Xxxxxx, XX 00000 Xxx X. Xxxxxx Xxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Tenneco Automotive Inc. Sanwa Business Credit D396603 07/19/1998 5 New Caterpillar
One International Drive Corporation forklifts; equipment
Xxxxxx, XX 00000 One X. Xxxxxx Drive located at 000 Xxxxxxxx,
00xx Xxxxx Xxxxx, XX 00000
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Tenneco Automotive Inc. Sanwa Business Credit D409066 08/12/1998 1 New 1998 Xxxxxx Forklift
Xxx Xxxxxxxxxxxxx Xxxxx Xxxxxxxxxxx
Xxxxxx, XX 00000 One X. Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Tenneco Automotive Inc. Sanwa Business Credit D447698 11/24/1998 1 New Caterpillar forklift
Xxx Xxxxxxxxxxxxx Xxxxx Xxxxxxxxxxx
Xxxxxx, XX 00000 One X. Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Tenneco Automotive Xxxxxxx Equipment Leasing D504579 04/19/1999 8 TCM Forklifts; 1 TCM
0 Xxxxxxxxxxxxx Xxxxx 00 Xxxxxxxx Xxxxx Xxxxxxxx; 0 XXX Xxxxxxx;
Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000 Supplement 37 to Lease
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Xxxxxx Manufacturing Forum Financial Services, D287838 10/03/1997 Computer Equipment located
Co., a division Inc. at: Xxxxxx Manufacturing
of Tenneco Automotive 0000 Xxxxxxxxxx Xxxxx, Xxxxx Xx., 0000 Xxxxx Xxxxxxx
0000 Xxxxxxxx Xxxx. 000 Xxxx, Xxxxxxx, XX 00000
Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Assigned to:
Texas Central Bank, N.A.
0000 Xxxxxx Xxxx Xxxx, X-X 00
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
15
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Michigan S/S Tenneco Automotive Inc. Yale Financial Services, Inc. D355143 03/27/1998 All equipment now or
Group 00 Xxxxxxxx Xxxx hereafter leased by Lessor
000 Xxxxx Xxxxx Xxxxx Xxxxxxxxxx, XX 00000 to Lessee...
Xxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Precision Modular T & W Finance Corp IV C972496 05/19/1995 Lease #1493701 dated
Assembly Corp., a P. O. Box 3028 05/15/1995 -- 1 Lister Iveco
wholly-owned subsidiary Xxxxxxx Xxx, XX 00000 AIFO Emergency
of Monroe Auto Assigned to: Generator Set, Model #8281,
Equipment Company, a Corestates Bank S/N 158120
wholly-owned division T & E Dept.
of Tenneco Automotive 0000 Xxxxxx Xx., 00xx Xxxxx
Inc. Xxxxxxxxxxxx, XX 00000
0000 00 Xxxx Xxxx
Xxxxxxxx Xxxxxxx, XX
00000
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxx X/X Xxxxxx Xxxxxxxxxxxxx XXX Xxxxxxxxxxx X000000 11/18/1994 Lease #01053, Schedule #4
Divison of Tenneco 00000 Xxxxxxx Xxxx Computer Equipment
0000 Xxxxxx Xxxx Xxxxxxxx, XX 00000
Xxxxx Xxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Monroe Auto Equipment Hyster Credit Company C845154 05/23/1994 1 New Hyster Lift Truck,
Company P. O. Box 4366 (EXPIRED) Forks, Battery and Charger
0000 00 Xxxx Xxxx Xxxxxxxx, XX 00000
Xxxxxxxx Xxxxxxx, XX
00000
-----------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Monroe Auto Equipment Hyster Credit Company C845155 05/23/1994 1 New Hyster Lift Truck,
Company P. O. Box 4366 (EXPIRED) Forks, Battery and Charger
0000 00 Xxxx Xxxx Xxxxxxxx, XX 00000
Xxxxxxxx Xxxxxxx, XX
00000
-----------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Xxxxxx Manufacturing Forum Financial Services, C866715 07/25/1994 Equipment Lease Schedule
0000 Xxxxxxxx Xxxx. Inc. (EXPIRED) 2220-34 for equipment
Xxxxxx, XX 00000 0000 Xxxxxxxxxx Xxxxx, located at 0000 Xxxxxx
Xxxxx 000 Xxxx, Xxxxx Xxxx, XX 00000
Xxxxxxxxxx, XX 00000
Assigned to:
Texas Central Bank, N.A.
0000 Xxxxxx Xxxx Xxxx, X-X 00
Xxxxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Xxxxxx Manufacturing Forum Financial Services, C866716 07/25/1994 Equipment Lease Schedule
0000 Xxxxxxxx Xxxx. Inc. (EXPIRED) 2220-30 for equipment
Xxxxxx, XX 00000 0000 Xxxxxxxxxx Xxxxx, located at 000 Xxxxxxxxxx
Xxxxx 000 Xxxx, Xxxxxxxx, XX 00000
Xxxxxxxxxx, XX 00000
Assigned to:
Texas Central Bank, N.A.
0000 Xxxxxx Xxxx Xxxx, X-X 00
Xxxxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------------------------------------------
16
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Michigan S/S Xxxxxx Manufacturing LaSalle Systems Leasing, Inc. 45266B 07/26/1994 Computer Equipment per
Co., a division 00 Xxxxxx Xxxx., Xxxxx 000 Schedule #35 dated
of Tennessee Gas Xxxxxxxxxx, XX 00000 04/12/1994 to Master Lease
Pipeline Company Assigned to: C878245 09/13/1994 #213 dated 05/01/86
0000 Xxxxxxxx Xxxx. Manufacturers Bank Assignment (EXPIRED)
Xxxxxx, XX 00000 0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Xxxxxx Manufacturing LaSalle Systems Leasing, Inc. 45267B 07/26/1994 Computer Equipment per
Co., a division 00 Xxxxxx Xxxx., Xxxxx 000 Schedule #37 dated
of Tennessee Gas Xxxxxxxxxx, XX 00000 04/04/1994 to Master Lease
Pipeline Company Assigned to: C878246 09/13/1994 #213 dated 05/01/86
0000 Xxxxxxxx Xxxx. Manufacturers Bank Assignment (EXPIRED)
Xxxxxx, XX 00000 0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Xxxxxx Manufacturing LaSalle Systems Leasing, Inc. 46727B 09/15/1994 Computer Equipment per
Co., a division 00 Xxxxxx Xxxx., Xxxxx 000 Schedule #35A dated
of Tennessee Gas Xxxxxxxxxx, XX 00000 08/04/1994 to Master Lease
Pipeline Company Assigned to: #213 dated 05/01/86
0000 Xxxxxxxx Xxxx. LaSalle Equipment Limited
Xxxxxx, XX 00000 Partnership
00 Xxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Xxxxxx Manufacturing Forum Financial Services, C930482 01/27/1995 Equipment Lease Schedule
0000 Xxxxxxxx Xxxx. Inc. 2220-37 for equipment
Xxxxxx, XX 00000 0000 Xxxxxxxxxx Xxxxx, located at 0000 Xxxxxx
Xxxxx 000 Xxxx, Xxxxx Xxxx, XX 00000
Xxxxxxxxxx, XX 00000
Assigned to:
Texas Central Bank, N.A.
0000 Xxxxxx Xxxx Xxxx, X-X 00
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Xxxxxx Manufacturing Xxxxxxx Finance Company, Inc. D026161 10/26/1995 6 TCM Lift Trucks; 1 CBI
Company 00 Xxxxxxxx Xxxxx Rotator (Supplement 6)
0000 Xxxxxxxx Xxxx. Xxxxxxxxx, XX 00000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
17
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Michigan S/S Xxxxxx Manufacturing Forum Financial Services, D030798 11/08/1995 Equipment Lease Schedule
0000 Xxxxxxxx Xxxx. Inc. 2220-41 for equipment
Xxxxxx, XX 00000 0000 Xxxxxxxxxx Xxxxx, Xxxxx located at 000 Xxxxxxxxxx
000 Xxxx, Xxxxxxxx, XX 00000
Xxxxxxxxxx, XX 00000
Assigned to:
Texas Central Bank, N.A.
0000 Xxxxxx Xxxx Xxxx, X-X 00
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Tennessee Gas Pipeline Ameritech Credit Corporation D033356 11/14/1995 Equipment under Lease
Company Div-Xxxxxx 0000 Xxxx Xxxx Xxxx #000-0000000-000, 010 and
Manufacturing Company Xxxxxxx Xxxxxxx, XX 00000 011 dated 12/10/1993
0000 Xxxxxxxx Xxxx.
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Xxxxxx Manufacturing Co. Forum Financial Services, D150439 10/16/1996 Equipment Lease Schedule
0000 Xxxxxxxx Xxxx. Inc. 2220-45 for equipment
Xxxxxx, XX 00000 0000 Xxxxxxxxxx Xxxxx, Xxxxx located at 0000 Xxxxxx
000 Xxxx, Xxxxx Xxxx, XX 00000
Xxxxxxxxxx, XX 00000 and 000 Xxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Xxxxxx Manufacturing Co. Forum Financial Services, D287838 10/03/1997 Equipment Lease Schedule
a Division of Tenneco Inc. 5010-06 for equipment
Automotive 0000 Xxxxxxxxxx Xxxxx, Xxxxx located at 2701 North
0000 Xxxxxxxx Xxxx. 000 Xxxxxxx Xxxx, Xxxxxxx, XX
Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 49201
Assigned to:
Texas Central Bank, N.A.
0000 Xxxxxx Xxxx Xxxx, X-X 00
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Xxxxxx Manufacturing Englewood Electrical Supply D237860 05/28/1997 Electrical material and
Division Co. supplies for consignment
Tennessee Gas Pipeline Division of WESCO inventor itemized on
000 Xxxxxxxx Xxxx Distribution, Inc. attachment
Xxxxxxxxxx, XX 00000 Attn: Xxxxx Xxxxxxx
0000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Tennessee Gas Pipeline Xxxxxxx Company D276339 09/04/1997 Tennant Model 8400 Power
Co. 701 N. Lilac Sweep/Scrubber
Xxxxxx Manufacturing P. O. Box 1452
Co. Div. Xxxxxxxxxxx, XX 00000-0000
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
18
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Michigan S/S Tennessee Gas Pipeline El Camino Resources, Ltd. D074726 03/18/1996 Master Lease No. 2366,
Company acting through 00000 Xxxxxx Xxxxxx Xxxx Schedule No. 006 -
its Xxxxxx Xxxxxxxx Xxxxx, XX 00000 Equipment located at 3901
Manufacturing Division Xxxxxx Road, Grass Lake, MI
Tenneco Building 49240
0000 Xxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Xxxxxx Manufacturing Co. Fort Xxxxx Financial Corp. D410109 08/14/1998 1 Xxxxxxx Toledo Panther
000 Xxxxxxxx Xxxx X. X. Xxx 00000 S/N 50048595PZ and 1
Xxxxxxxxxx, XX 00000 Xxxx Xxxxx, XX 00000 Xxxxxxx Toledo Model 2256
Assigned to: S/N 10736651PZ
Fort Xxxxx National Bank
000 X. Xxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Michigan S/S Xxxxxx Manufacturing Xxxxxxx Finance Company, Inc. D067020 02/27/1996 1 KALMAR Lift Truck Model
Company 00 Xxxxxxxx Xxxxx Xx. X000X; S/N 061392A
000 Xxxxxxxxx Xxxx Xxxxxxxxx, XX 00000 (Supplement 8)
Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Hillsdale Xxxxxx Manufacturing Xxxxxxx Finance Company, Inc. 98794 01/29/1996 1 KALMAR Lift Truck Model
County, MI Company 00 Xxxxxxxx Xxxxx Xx. X000X; S/N 061392A
000 Xxxxxxxxx Xxxx Xxxxxxxxx, XX 00000 (Supplement 8)
Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Hillsdale Tenneco Automotive Inc. Xxxxxxx Finance Company, Inc. 99431 08/08/1996 1 TCM Lift Truck Model No.
County, MI 000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx XXX00X0X; S/N A15G03226
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000 (Supplement 9)
------------------------------------------------------------------------------------------------------------------------------------
Hillsdale Tenneco Automotive Inc. Xxxxxxx Finance Company, Inc. 99657 11/21/1996 1 TCM Lift Truck Model No.
County, MI 000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx XXX00X0X; S/N A15G03822
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000 (Supplement 11)
------------------------------------------------------------------------------------------------------------------------------------
Macomb County, MI Tenneco Automotive Xxxxxxx Finance Company, Inc. 68363 11/22/1996 1 Yale Lift Truck, Model
0000 00 Xxxx Xxxx 00 Xxxxxxxx Xxxxx Xx. XXX000XXXXXX000 S/N
Sterling Heights, MI Xxxxxxxxx, XX 00000 B818D02093T (Supplement 4)
48312
------------------------------------------------------------------------------------------------------------------------------------
19
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Macomb County, MI Tenneco Automotive Xxxxxxx Finance Company, Inc. 68736 12/10/1996 1 Advance Rider Scrubber,
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx Xxxxx Xx. 0000X, S/N
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000 1065762 (Supplement 2)
Equipment located at 0000
00 Xxxx Xxxx, Xxxxxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Macomb County, MI Tenneco Automotive Xxxxxxx Finance Company, Inc. 68737 12/10/1996 1 Yale Lift Truck, Model
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx Xx. XXX000XXXXXX000 X/X
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000 E187V01807T (Supplement 3);
Equipment located at 0000
00 Xxxx Xxxx, Xxxxxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Mississippi S/S Xxxxxx Manufacturing Manufacturers Bank 819121 07/26/1994 Equipment pursuant to Lease
Co., Division of 0000 X. Xxxxxxx Xxx. (EXPIRED) #213-35 for equipment
Tennessee Gas Pipeline Chicago, IL located at 000
Xxxxxxx Xxx 00 Xxxxx, Xxxxxxxx, XX
0000 Xxxxxxxx Xxxx.
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Mississippi S/S Xxxxxx Manufacturing Co. Forum Financial Group, Inc. 937927 11/10/1995 Equipment Schedule 2220-41;
0000 Xxxxxxxx Xxxx. 0000 Xxxxxxxxxx Xxxxx, Xxxxx equipment located at 704
Xxxxxx, XX 00000 000 Xxx 00 Xxxxx, Xxxxxxxx, XX
Xxxxxxxxxx, XX 00000
Assigned to:
Texas Central Bank, N.A.
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Mississippi S/S Xxxxxx Manufacturing Concord Commercial 647412 07/21/92 Schedule 1 (MS) to Lease
Company Corporation 1092874 04/11/1997 #OL-6346 (WI) as more fully
Division of Tennessee 0000 Xxxx Xxxxxx, Xxxxx 000 (continuation) described on Exhibit A
Gas Pipeline Company Xxxxxx, XX 00000 attached (computer
000 Xxx 00 Xxxxx equipment).
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Mississippi S/S Xxxxxx Manufacturing Xxxxx/Xxxxxxxx Equipment 1093097 04/14/1997 Equipment (description
Company Co., Inc. unclear)
Xxxxxx Mfg. P. O. Box 410050
000 Xxx 00 Xxxxx Xxxxxxxxx, XX 00000
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
20
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Mississippi S/S Xxxxxx Manufacturing Co. Forum Financial Group, Inc. 894479 05/24/1995 Equipment Schedule 2220-42;
0000 Xxxxxxxx Xxxx. 0000 Xxxxxxxxxx Xxxxx, Xxxxx equipment located at 704
Xxxxxx, XX 00000 000 Xxx 00 Xxxxx, Xxxxxxxx, XX
Xxxxxxxxxx, XX 00000
Assigned to:
Texas Central Bank, N.A.
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Mississippi S/S Xxxxxx Manufacturing Co. Forum Financial Group, Inc. 861159 01/27/1995 Equipment Schedule 2220-37;
0000 Xxxxxxxx Xxxx. 0000 Xxxxxxxxxx Xxxxx, Xxxxx equipment located at 704
Xxxxxx, XX 00000 000 Xxx 00 Xxxxx, Xxxxxxxx, XX
Xxxxxxxxxx, XX 00000
Assigned to:
Texas Central Bank, N.A.
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Mississippi S/S Xxxxxx Manufacturing Co. Forum Financial Group, Inc. 1043929 10/14/1996 Equipment Schedule 2220-45;
0000 Xxxxxxxx Xxxx. 0000 Xxxxxxxxxx Xxxxx, Xxxxx equipment located at 704
Xxxxxx, XX 00000 000 Xxx 00 Xxxxx, Xxxxxxxx, XX
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Mississippi S/S Xxxxxx Manufacturing Co. Forum Financial Group, Inc. 1051973 11/13/1996 Equipment Schedule 2220-48;
0000 Xxxxxxxx Xxxx. 1475 Xxxxxxxxxx Drive, Suite equipment located at
Xxxxxx, XX 00000 000 Xxxxxxx Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000 Xxxxxxxx 00-0, Xxxxxxx, XX
Assigned to: 39756
Colorado National Leasing,
Inc.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Mississippi S/S Xxxxxx Manufacturing Co. Forum Financial Group, Inc. 857120 01/10/1995 Equipment Schedule 2220-33;
0000 Xxxxxxxx Xxxx. 1475 Xxxxxxxxxx Drive, Suite equipment located at
Xxxxxx, XX 00000 000 Xxxxxxx Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000 Xxxxxxxx 00-0, Xxxxxxx, XX
Assigned to: 39756
Texas Central Bank, N.A.
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
21
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Mississippi S/S Xxxxxx Manufacturing LaSalle Systems Leasing, Inc. 899281 06/13/1995 Computer Equipment under
Co., a Division 00 Xxxxxx Xxxx., Xxxxx 000 Master Lease #213 dated
of Tennessee Gas Xxxxxxxxxx, XX 00000 05/01/1986 together with
Pipeline Company Assigned to: Schedule #39 dated
0000 Xxxxxxxx Xxxx. LaSalle Equipment Limited 05/12/1995
Xxxxxx, XX 00000 Partnership
00 Xxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Assigned to:
Manufacturers Bank
0000 X. Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Monroe County, XX Xxxxxx Manufacturing Amplicon, Inc. 92-1590 07/20/1992 Schedule 1 to Lease
Company 0 Xxxxxx Xxxxxx Xxxxx, Xxxxx #XX-0000 -- Schedule 1
Division of Tennessee 500 amended
Gas Pipeline Xxxxx Xxx, XX 00000 Continuation 04/18/1997
Company Assigned to:
000 Xxxxxxx 00 Xxxxx Xxxxxxx Commercial Corp.
Xxxxxxxx, XX 00000 0000 Xxxx Xxxxxx, Xxxxx 000
Name Amended to: Xxxxxx, XX 00000
Tennessee Gas Pipeline
Company
Xxxxxx Manufacturing
Company Division
------------------------------------------------------------------------------------------------------------------------------------
Monroe County, XX Xxxxxx Manufacturing LaSalle Systems Leasing, 94-1695 07/25/1994 Computer Equipment per
Co., a Division of Inc. (EXPIRED) schedule #35 dated April
Tennessee Gas Pipeline Assigned to: 12, 1994 to Master Lease
Company LaSalle Equipment Limited 213 dated May 1, 1986; copy
0000 Xxxxxxxx Xxxx. Partnership of schedule attached
Xxxxxx, XX 00000 00 Xxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Assigned to:
Manufacturers Bank
0000 X. Xxxxxxx Xxx.,
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Monroe County, XX Xxxxxx Manufacturing Forum Financial Group, Inc. 95-66 01/10/1995 Equipment Schedule 2220-33
0000 Xxxxxxxx Xxxx. Assigned to: -- See attachment
Xxxxxx, XX 00000 Texas Central Bank, N.A.
0000 Xxxxxx Xxxx Xxxx, XX-00
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
22
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Monroe County, XX Xxxxxx Manufacturing Forum Financial Group, Inc. 95-205 01/26/1995 Equipment Lease Schedule
0000 Xxxxxxxx Xxxx. Assigned to: 2220-37 for equipment
Xxxxxx, XX 00000 Texas Central Bank, N.A. located at 000 Xxxxxxx 00
0000 Xxxxxx Xxxx Xxxx, XX-00 Xxxxx, Xxxxxxxx, XX 00000
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
Monroe County, XX Xxxxxx Manufacturing Forum Financial Group, Inc. 95-1124 05/24/1995 Equipment Lease Schedule
0000 Xxxxxxxx Xxxx. Assigned to: 2220-42 for equipment
Xxxxxx, XX 00000 Texas Central Bank, N.A. located at 000 Xxxxxxx 00
0000 Xxxxxx Xxxx Xxxx, XX-00 Xxxxx, Xxxxxxxx, XX 00000
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
Monroe County, XX Xxxxxx Manufacturing LaSalle Systems Leasing, 95-1260 06/12/1995 Computer Equipment per
Co., a Division of Inc. schedule #39 dated May 12,
Tennessee Gas Pipeline Assigned to: 1995 to Master Lease 213
Company LaSalle Equipment Limited dated May 1, 1986; copy of
0000 Xxxxxxxx Xxxx. Partnership schedule attached
Xxxxxx, XX 00000 00 Xxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Assigned to:
Manufacturers Bank
0000 X. Xxxxxxx Xxx.,
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Monroe County, XX Xxxxxx Manufacturing Forum Financial Group, Inc. 95-2724 11/03/1995 Equipment Lease Schedule
0000 Xxxxxxxx Xxxx. Assigned to: 2220-41 for equipment
Xxxxxx, XX 00000 Texas Central Bank, N.A. located at 000 Xxxxxxx 00
0000 Xxxxxx Xxxx Xxxx, XX-00 Xxxxx, Xxxxxxxx, XX 00000
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
Monroe County, XX Xxxxxx Manufacturing Forum Financial Group, Inc. 95-2725 11/03/1995 Equipment Lease Schedule
0000 Xxxxxxxx Xxxx. Assigned to: 2220-42 for equipment
Xxxxxx, XX 00000 Texas Central Bank, N.A. located at 000 Xxxxxxx 00
0000 Xxxxxx Xxxx Xxxx, XX-00 Xxxxx, Xxxxxxxx, XX 00000
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
Monroe County, XX Xxxxxx Manufacturing Forum Financial Group, Inc. 96-4021 10/15/1996 Equipment Lease Schedule
0000 Xxxxxxxx Xxxx. 0000 Xxxxxxxxxx Xxxxx, Xxxxx 0000-00 for equipment
Xxxxxx, XX 00000 270 located at 000 Xxxxxxx 00
Xxxxxxxxxx, XX 00000 South, Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
23
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Monroe County, XX Xxxxxx Manufacturing Xxxxx/Xxxxxxxx Equipment 97-1091 04/14/1997 Replacement parts consigned
Company Co., Inc. from time to time
000 Xxxxxxx 00 X P. O. Xxx 000000
Xxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Monroe Automotive Xxxxxxx Leasing Corporation 9995672905 11/07/1995 Equipment, Products of
Equipment Co. 00 Xxxxx Xxxxx Xxxxxx Collateral and Proceeds of
000 Xxxxxxxx Xxx. Xxxxxx, XX 00000 Collateral
Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Monroe Auto Equipment Midlands Rental & Machinery 9996686856 03/26/1996 Forklift, battery, charger
Company Inc. S/N TM247-1088-8865
One International Drive 0000 X Xxxxxx
Xxxxxx, XX 00000 Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Monroe Auto Equipment Midlands Rental & Machinery 9996686857 03/26/1996 Forklift, battery, charger
Company Inc. S/N TM###-##-####
One International Drive 0000 X Xxxxxx
Xxxxxx, XX 00000 Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Xxxxxxx Equipment Leasing Co. 0000000000 04/28/1997 Equipment
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Xxxxxxx Equipment Leasing Co. 9997734912 06/09/1997 Equipment
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Xxxxxxx Equipment Leasing Co. 9997735495 06/13/1997 Equipment
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Xxxxxxx Equipment Leasing Co. 9997738599 07/17/1997 Equipment
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Xxxxxxx Equipment Leasing Co. 9998756596 01/20/1998 Equipment
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Xxxxxxx Equipment Leasing Co. 0000000000 03/06/1998 Equipment
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
24
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Nebraska S/S Tenneco Automotive Xxxxxxx Equipment Leasing Co. 9998763659 02/23/1998 Equipment
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Xxxxxxx Equipment Leasing Co. 9998765924 04/10/1998 Equipment
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Xxxxxxx Equipment Leasing Co. 9998768395 05/01/1998 Equipment
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Xxxxxxx Equipment Leasing Co. 9998768396 05/01/1998 Equipment
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Xxxxxxx Equipment Leasing Co. 9998768403 05/01/1998 Equipment
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Inc. Xxxxxx Material Handling 9998771659 06/02/1998 Equipment
000 Xxxxxxxx Xxxxxx 0000 Xxxxx 000xx Xxxxxx Proceeds of Collateral
Cozad, NE 69130 Xxxxx, XX 00000 Products of Collateral
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Xxxxxxx Equipment Leasing Co. 9998772842 06/12/1998 Equipment
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Inc. Sanwa Business Credit 9998775855 07/09/1998 Equipment
000 Xxxxxxxx Xxxxxxxxxxx
Xxxxx, XX 00000 Xxx Xxxxx Xxxxxx Xxxxx 00xx
Xxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Xxxxxxx Equipment Leasing Co. 9998785984 10/26/1998 Equipment
000 Xxxxxxxxx Xxxx 00 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Inc. Sanwa Business Credit 9998789064 11/25/1998 Equipment
000 Xxxxxxxx Xxxxxxxxxxx Xxxxx
Xxxxx, XX 00000 Xxx Xxxxx Xxxxxx Xxxxx 00xx
Xxxxx
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
25
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Nebraska S/S Tenneco Automotive Inc. Xxxxxxx Equipment Leasing Co. 9999805540 05/03/1999 10 Exide Batteries; 5 Exide
0 Xxxxxxxxxxxxx Xxxxx 00 Xxxxxxxx Xxxxx Chargers; Supplement 41 to
Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000 Lease
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Inc. Xxxxxxx Equipment Leasing Co. 0000000000 05/10/1999 1 MultiShift Xxxxxxx
0 Xxxxxxxxxxxxx Xxxxx 00 Xxxxxxxx Xxxxx Xxxxxxxx System, Model No.
Monroe, MI 48161 Xxxxxxxxx, XX 00000 MSII-40; Supplement 33 to
Lease
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Inc. Forum Financial Services, 9999809846 06/10/1999 Equipment Lease Schedule
000 Xxxxx Xxxxx Xxxxx Inc. 5010-23; Equipment located
Xxxx Xxxxxx, XX 00000 0000 Xxxxxxxxxx Xx., Xxxxx xx Xxxxxxx #0 Xxxxx, Xx. 2,
000 Xxxxxx, XX
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Inc. Xxxxxxx Equipment Leasing Co. 0000000000 06/21/1999 3 Drexel Swing Forklifts; 2
0 Xxxxxxxxxxxxx Xxxxx 00 Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxxx;
Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000 Supplement 47 to Lease
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Tenneco Automotive Inc. Xxxxxxx Equipment Leasing Co. 9999812132 07/01/1999 21 Xxxxxxx Easi Order
1 International Drive 00 Xxxxxxxx Xxxxx Pickers; Supplement 38 to
Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000 Lease Agreement
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Xxxxxx Manufacturing LaSalle Systems Leasing, Inc. 9994628802 07/25/1994 Computer equipment per
Co., Division 00 Xxxxxx Xxxx., Xxxxx 000 schedule attached covered
of Tennessee Gas Xxxxxxxxxx, XX 00000 under Master Lease #213
Pipeline Company Assigned to: dated 05/01/1986 together
0000 Xxxxxxxx Xxxx. LaSalle Equipment Limited with Schedule #35 dated
Xxxxxx, XX 00000 Partnership 04/12/1994
00 Xxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxx, XX 00000 9994633012 09/12/1994
Assigned to: (Assignment) (EXPIRED)
Manufacturers Bank
0000 X. Xxxxxxx Xxx.,
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Xxxxxx Manufacturing Forum Financial Group, Inc. 9994629649 08/04/1994 Equipment Lease Schedule
0000 Xxxxxxxx Xxxx. 0000 X. Xxxxxxx Xxxxx #000 (EXPIRED) #2220-30 IBM Printer
Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 located at: Highway 15 and
Assigned to: X-00, Xxxxxx, XX 00000
Texas Central Bank N.A.
0000 Xxxxxx Xxxx Xx XX00
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
26
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Nebraska S/S Xxxxxx Manufacturing Forum Financial Group, Inc. 9995643459 01/09/1995 Equipment Schedule 2220-33;
0000 Xxxxxxxx Xxxx. 0000 X. Xxxxxxx Xxxxx #000 equipment located at
Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 X.X.Xxx 000, Xxxxx 0,
Assigned to: Xxxxxx, NE
Texas Central Bank N.A.
0000 Xxxxxx Xxxx Xx XX00
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Xxxxxx Manufacturing Forum Financial Group, Inc. 9995645381 01/27/1995 Equipment Schedule 2220-37;
0000 Xxxxxxxx Xxxx. 0000 X. Xxxxxxx Xxxxx #000 computer equipment located
Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 at P. O. Xxx 000, Xxxxx 0,
Assigned to: Xxxxxx, NE
Texas Central Bank N.A.
0000 Xxxxxx Xxxx Xx XX00
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Xxxxxx Manufacturing Forum Financial Group, Inc. 9995649216 03/06/1995 SNAC Interace SYNC RS232
0000 Xxxxxxxx Xxxx. 0000 X. Xxxxxxx Xxxxx #000 located at P. X. Xxx 000,
Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 Xxxxx 0, Xxxxxx, XX 00000
Assigned to:
Colorado National Leasing,
Inc.
000 00xx Xx., Xxxxx 0000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Xxxxxx Manufacturing Forum Financial Group, Inc. 0000000000 05/30/1995 Equipment Schedule 2220-40;
0000 Xxxxxxxx Xxxx. 0000 X. Xxxxxxx Xxxxx #000 located at Xxxxx 0, Xxxxxx,
Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 XX 00000
Assigned to:
Texas Central Bank N.A.
0000 Xxxxxx Xxxx Xx XX00
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Xxxxxx Manufacturing Co. Forum Financial Group, Inc. 9995672717 11/06/1995 Equipment Schedule 2220-41;
0000 Xxxxxxxx Xxxx. 0000 X. Xxxxxxx Xxxxx #000 computer equipment
Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Assigned to:
Texas Central Bank N.A.
0000 Xxxxxx Xxxx Xx XX00
Xxxxxx, XX 00000-0000
------------------------------------------------------------------------------------------------------------------------------------
27
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Nebraska S/S Xxxxxx Manufacturing Co. Forum Financial Group, Inc. 9996707951 10/15/1996 Equipment Schedule 2220-45;
0000 Xxxxxxxx Xxxx. 0000 X. Xxxxxxx Xxxxx #000 computer equipment
Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Nebraska S/S Xxxxxx Manufacturing Co. Forum Financial Group, Inc. 9996710808 11/12/1996 Equipment Schedule 2220-48;
0000 Xxxxxxxx Xxxx. 0000 X. Xxxxxxx Xxxxx #000 computer equipment
Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Assigned to:
Colorado National Leasing,
Inc.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Ohio S/S Tenneco Automotive Inc. Somerset Capital Group, Ltd. AP0000325 11/05/1997 See Schedule A for list of
000 Xxxxxxxxx Xxxx 0000 Xxxxx Xxxxxx, Xxxxx 000 Specific Equipment
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Assigned to: Summit Bank
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Ohio S/S Tenneco Automotive Inc. Caterpillar Financial AP0076208 08/17/1998 Xxxxxxx Scrubber 5700 S/N:
00 Xxxxxxxx Xxxx Services Corporation 5700-5235; equipment
Xxxxx, XX 00000 901 Warrenville Road, Suite 19990570115 02/16/1999 location: Xxxxx 000 Xxxx,
000 Xxxxxxxxx Xxxxxxxx, XX 00000
Xxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Ohio S/S Tenneco Automotive Inc. Star Bank, N.A. AP0104161 12/04/1998 All equipment now or
00 Xxxxxxxx Xxxx Equipment Finance Division hereafter leased under
Xxxxx, XX 00000 000 Xxxxxx Xx., #0000 Equipment Leasing Agreement
Lessee #305.1857.01 Xxxxxxxxxx, XX 00000 dated 10/20/98; See
Schedule C-1 attached
------------------------------------------------------------------------------------------------------------------------------------
Ohio S/S Tenneco Automotive Inc. Star Bank, N.A. XX0000000 12/04/1998 All equipment now or
00 Xxxxxxxx Xxxx Equipment Finance Division hereafter leased under
Xxxxx, XX 00000 000 Xxxxxx Xx., #0000 Equipment Leasing Agreement
Lessee #305.1857.02 Xxxxxxxxxx, XX 00000 dated 10/20/98; See
Schedule C-1 attached
------------------------------------------------------------------------------------------------------------------------------------
28
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Ohio S/S The Pullman Company St. Xxxxx Leasing, Ltd. AL21305 08/12/1994 Equipment described in
0 Xxxxxx Xxx - Xxxxx 000 323 Riverside Avenue - Suite Schedule 7 to Lease
Xxxxxxx, XX 00000 300 Agreement dated 11/28/1989
Xxxxxxxx, XX 00000
Assigned to:
United Jersey Bank
00 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Ohio S/S The Pullman Company St. Xxxxx Leasing, Ltd. AL31434 09/27/1994 Equipment described in
0 Xxxxxx Xxx - Xxxxx 000 323 Riverside Avenue - Suite Schedule 11 to Lease
Xxxxxxx, XX 00000 300 Agreement dated 11/28/1989
Xxxxxxxx, XX 00000
Assigned to:
United Jersey Bank
00 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Ohio S/S The Pullman Company St. Xxxxx Leasing, Ltd. AL36900 10/21/1994 Equipment described in
0 Xxxxxx Xxx - Xxxxx 000 323 Riverside Avenue - Suite Schedule 9 to Lease
Xxxxxxx, XX 00000 300 Agreement dated 11/28/1989
Xxxxxxxx, XX 00000
Assigned to:
United Jersey Bank
00 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Ohio S/S The Pullman Company St. Xxxxx Leasing, Ltd. AL79280 04/20/1995 Equipment described in
0 Xxxxxx Xxx - Xxxxx 000 323 Riverside Avenue - Suite Schedule 17 to Lease
Xxxxxxx, XX 00000 300 Agreement dated 11/28/1989
Xxxxxxxx, XX 00000
Assigned to:
Charter Financial, Inc.
000 Xxxx 00xx Xxxxxx-00xx
Xxxxx
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Ohio S/S The Pullman Company, Caterpillar Financial AL80575 04/25/1995 Caterpillar lift truck
Clevite Services Corporation located at Rt. 424,
Elastomers Division 000 Xxxxxxxxxxx Xxxx #000 7289506126 07/28/1995 Xxxxxxxx, XX 00000
0 Xxxxxx Xxx Xxxxx, XX 00000 (amendment) Amendment listed serial
Xxxxxxx, XX 00000 numbers of equipment
------------------------------------------------------------------------------------------------------------------------------------
29
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Ohio S/S The Pullman Company, Caterpillar Financial AL84985 05/11/1995 Caterpillar lift truck
Clevite Services Corporation located at 33 Xxxxxxxx
Elastomers Division 000 Xxxxxxxxxxx Xxxx #000 7289506127 00/00/0000 Xxxx, Xxxxx, XX 00000
0 Xxxxxx Xxx Xxxxx, XX 00000 (amendment) Amendment listed serial
Xxxxxxx, XX 00000 numbers of equipment
------------------------------------------------------------------------------------------------------------------------------------
Ohio S/S The Pullman Company St. Xxxxx Leasing, Ltd. AL93327 06/14/1995 Equipment described in
0 Xxxxxx Xxx - Xxxxx 000 323 Riverside Avenue - Suite Schedule 21 to Lease
Xxxxxxx, XX 00000 300 Agreement dated 11/28/1989
Xxxxxxxx, XX 00000
Assigned to:
Charter Financial, Inc.
000 Xxxx 00xx Xxxxxx-00xx
Xxxxx
Xxx Xxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Ohio S/S The Pullman Company, Caterpillar Financial AM27907 11/08/1995 Caterpillar lift truck
Clevite Services Corporation located at 33 Xxxxxxxx
Elastomers Division 000 Xxxxxxxxxxx Xxxx #000 Xxxx, Xxxxx, XX 00000
0 Xxxxxx Xxx Xxxxx, XX 00000
Xxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Ohio S/S The Pullman Company, Kimco Leasing AM58021 03/19/1996 Fax Machine S/N 51394
Inc. 0000 Xx. Xxx Xxxxxx Xxxx
dba Clevite Elastomers Xxxxx 00
Xxxxx 000 Xxxx Xxxxx, XX 00000
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Erie County, OH Tenneco Automotive, Inc. Somerset Capital Group, Ltd. 16717 11/06/1997 Equipment Schedule 1 to
000 Xxxxxxxxx Xxxx 0000 Xxxxx Xxxxxx-Xxxxx 201 Master Lease Agreement
Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000 dated 09/11/1997
Assigned to:
Summit Bank
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
------------------------------------------------------------------------------------------------------------------------------------
Erie County, OH Tenneco Automotive Inc. Xxxx Xxxx, XX 00000 11/12/1998 Equipment leased pursuant
00 Xxxxxxxx Xxxxx Equipment Finance Division to Equipment Leasing
Xxxxx, XX 00000 000 Xxxxxx Xxxxxx, #0000 Agreement # 000-0000-00
Xxxxxxxxxx, XX 00000 dated 10/20/1998
------------------------------------------------------------------------------------------------------------------------------------
Erie County, OH Tenneco Automotive Inc. Xxxx Xxxx, XX 00000 11/12/1998 Equipment leased pursuant
00 Xxxxxxxx Xxxxx Equipment Finance Division to Equipment Leasing
Xxxxx, XX 00000 000 Xxxxxx Xxxxxx, #0000 Agreement # 000-0000-00
Xxxxxxxxxx, XX 00000 dated 10/20/1998
------------------------------------------------------------------------------------------------------------------------------------
30
000
XXXXXXXXXXXX XXXXXX SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Xxxxx County, OH Tenneco Automotive, Inc. Caterpillar Financial 10152 08/17/1998 1 Xxxxxxx Scrubber No.
33 Xxxxxxxx Drive Services Corporation 5700; Equipment located at:
Milan, OH 44846 901 Warrenville Road, Suite Route 424 East, Napoleon,
304 OH 43545; Amended to
Lisle, IL 61532 include S/N 5700-5235 on
02/16/1999
------------------------------------------------------------------------------------------------------------------------------------
Tennessee S/S Tenneco Automotive Inc. Connell Equipment Leasing Co. 983609875 10/19/1998 2 Caterpillar forklifts;
111 Pfingsten Road 45 Cardinal Drive S/Ns 4EM09104, 4EM09105
Deerfield, IL 60015 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Tennessee S/S Tenneco Automotive Inc. Connell Equipment Leasing Co. 983610941 10/26/1998 2 Caterpillar forklifts;
111 Pfingsten Road 45 Cardinal Drive S/Ns 6EM02267, 6EM02260
Deerfield, IL 60015 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Tennessee S/S Tenneco Automotive Inc. Connell Equipment Leasing Co. 993000735 01/05/1999 1 Caterpillar forklift; S/N
1 International Drive 45 Cardinal Drive 2EM05977
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Tennessee S/S Walker Manufacturing Forum Financial Group, Inc. 940338206 08/03/1994 Equipment Lease Schedule
1201 Michigan Blvd. 2201 N. Central Expwy #148 (EXPIRED) 2220-30; Equipment located
Racine, WI 53402 Richardson, TX 75080 in Smithville, TN
Assigned to:
Texas Central Bank NA
8144 Walnut Hill Ln, LB94
Dallas, TX 75231-4316
------------------------------------------------------------------------------------------------------------------------------------
Tennessee S/S Walker Manufacturing Forum Financial Group, Inc. 950403006 02/27/1995 Equipment Lease Schedule
1201 Michigan Blvd. 2201 N. Central Expwy #148 2220-37; Equipment located
Racine, WI 53402 Richardson, TX 75080 in Smithville, TN
Assigned to:
Texas Central Bank NA
8144 Walnut Hill Ln, LB94
Dallas, TX 75231-4316
------------------------------------------------------------------------------------------------------------------------------------
Tennessee S/S Walker Manufacturing Connell Finance Company, Inc. 950434347 05/24/1995 3 Caterpillar lift trucks,
Company 45 Cardinal Drive S/Ns 4EM01384, 4EM00815,
1201 Michigan Blvd. Westfield, NJ 07090 4EM00814
Racine, WI 53402
------------------------------------------------------------------------------------------------------------------------------------
31
235
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Tennessee S/S Walker Manufacturing Forum Financial Group, Inc. 950438432 06/06/1995 Equipment Lease Schedule
1201 Michigan Blvd. 2201 N. Central Expwy #148 2220-43; Equipment located
Racine, WI 53402 Richardson, TX 75080 in Smithville, TN
Assigned to:
Texas Central Bank NA
8144 Walnut Hill Ln, LB94
Dallas, TX 75231-4316
------------------------------------------------------------------------------------------------------------------------------------
Tennessee S/S Walker Manufacturing Utilase Systems Inc. 950447635 07/03/1995 GTAW TIG Cell Model
Company 20201 Hoover Road PTS-TIG; GMAW MIG Cell
645 East Broad Street Detroit, MI 48205-1031 Model 1RMWSTP
Smithville, TN 37166
------------------------------------------------------------------------------------------------------------------------------------
Tennessee S/S Walker Manufacturing Forum Financial Group, Inc. 950487677 11/03/1995 Equipment Lease Schedule
1201 Michigan Blvd. 2201 N. Central Expwy #148 2220-41; Equipment located
Racine, WI 53402 Richardson, TX 75080 in Smithville, TN
Assigned to:
Texas Central Bank NA
8144 Walnut Hill Ln, LB94
Dallas, TX 75231-4316
------------------------------------------------------------------------------------------------------------------------------------
Tennessee S/S Walker Manufacturing Connell Finance Company, Inc. 960507731 01/09/1996 1 Caterpillar lift trucks,
Company 45 Cardinal Drive S/Ns 4EM03358
1201 Michigan Blvd. Westfield, NJ 07090
Racine, WI 53402
------------------------------------------------------------------------------------------------------------------------------------
DeKalb County, TN Walker Manufacturing Brad Elliott Johnson 7343 06/27/1997 $7,858.55 which has been
Company, a division of (Judgment) satisfied and released.
Tenneco Inc. and Cigna
Insurance Companies
------------------------------------------------------------------------------------------------------------------------------------
DeKalb County, TN Walker Manufacturing, Lisa Pyles 7081 and 11/15/1995 $14,616.00 which has been
Inc., a division of 7082 satisfied and released.
Tenneco Inc. and
Connecticut General
Life Insurance Company
a/k/a Cigna Insurance
Companies
------------------------------------------------------------------------------------------------------------------------------------
DeKalb County, TN Tenneco Inc., a Nevada Kimberly Carol Cantrell 7138 02/29/1996 $19,978.72 which has been
corporation, and Cigna satisfied and released.
Insurance Company
------------------------------------------------------------------------------------------------------------------------------------
DeKalb County, TN Tenneco Inc., a Nevada Shannon Cantrell 7434 01/27/1998 $13,353.30 which has been
corporation and Cigna satisfied and released.
Insurance Company
------------------------------------------------------------------------------------------------------------------------------------
DeKalb County, TN Tenneco, Inc., a Nevada Micheal W. Bowman 7557 09/18/1998 $20,578.00 which has been
corporation d/b/a satisfied and released.
Walker Manufacturing
Company and Cigna
Insurance Company
------------------------------------------------------------------------------------------------------------------------------------
32
236
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Texas S/S Monroe Auto Equipment Hyster Credit Company 95-00026315 02/09/1995 One used Hyster E30XL S/N
Company P. O. Box 4366 C114V03686K
1601 Hwy 49 North Portland, OR 97208
Paragould, AR 72450
------------------------------------------------------------------------------------------------------------------------------------
Texas S/S Tenneco Business Forsythe/McCarthur 97-00099751 05/22/1997 Computer equipment under
Services Inc. Associates, Inc. Master Lease #F8628 dated
8401 New Trails Drive 7500 Frontage Road 3/20/1997.
The Woodlands, TX 77381 Skokie, IL 60077
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Walker Manufacturing LaSalle Systems Leasing, Inc. 940421 7707 04/21/1994 Computer Equipment per
Co., Division of 40 Skokie Blvd., Suite 310 (EXPIRED) schedule attached part of
Tennessee Gas Pipeline Northbrook, IL 60062 Master Lease #213 dated
Company 05/01/1986 with Schedule
1201 Michigan Blvd. #34A dated 02/23/1994
Racine, WI 53402
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Walker Manufacturing Capital Associates 940502 7241 05/09/1994 Lease #080901-R02 -
Co., Division of International, Inc. (EXPIRED) equipment subject to
Tennessee Gas Pipeline 7175 W. Jefferson Avenue, Renewal No. 2 for Equipment
Company Suite 3000 Schedule No. 1 to Master
1201 Michigan Blvd. Lakewood, CO 80235 Lease dated 09/16/1988
Racine, WI 53402
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Walker Manufacturing Capital Associates 940531 7055 05/31/1994 Restated Master Lease dated
Company International, Inc. 09/15/1992 #174601-R02
1201 Michigan Boulevard 7175 W. Jefferson Avenue, 970718 7830 07/18/1997 Debtor name changed to:
Racine, WI 53402 Suite 3000 (Amendment) (EXPIRED) Walker Manufacturing
Lakewood, CO 80235 Company, a Division of
Tenneco Automotive Inc.
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Walker Manufacturing LaSalle Equipment Limited 940725 7704 07/25/1994 Computer equipment as per
Co., Division of Partnership schedule attached - Master
Tennessee Gas Pipeline 40 Skokie Blvd., Suite 310 Lease #213 dated 05/01/1986
Company Northbrook, IL 60062 940912 7720 09/12/1994 together with Schedule #35
1201 Michigan Blvd. Assigned to: (Assignment) (EXPIRED) dated 04/12/1994
Racine, WI 53402 Manufacturers Bank
1200 N. Ashland Ave.
Chicago, IL 60622
------------------------------------------------------------------------------------------------------------------------------------
33
237
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Virginia S/S Walker Manufacturing Forum Financial Group, Inc. 950109 7063 01/09/1995 Equipment Schedule 2220-33
1201 Michigan Boulevard 2201 North Central
Racine, WI 53402 Expressway #148
Richardson, TX 75080
Assigned to:
Texas Central Bank, N.A.
8144 Walnut Hill Ln. LB-94
Dallas, TX 75231-4316
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Walker Manufacturing Forum Financial Group, Inc. 650306 7352 03/06/1995 See attachment/ Equipment
1201 Michigan Boulevard 2201 North Central Schedule 2220-36 (computer
Racine, WI 53402 Expressway #148 equipment)
Richardson, TX 75080
Assigned to:
Colorado National Leasing,
Inc.
950 17th St., Suite 2400
Denver, CO 80202
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Walker Manufacturing PaineWebber Preferred Yield 961015 7178 10/15/1996 (copy missing - to follow)
1201 Michigan Boulevard Fund II
Racine, WI 53402 Weehauken, NJ
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Walker Manufacturing Forum Financial Group, Inc. 961015 7281 10/16/1996 Equipment Lease Schedule
Company 1475 Richardson Drive, Suite 2220-45 (computer
1201 Michigan Boulevard 270 equipment) for location:
Racine, WI 53402 Richardson, TX 75080 3160 Abbott Lane
Harrisonburg, VA
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Walker Manufacturing LaSalle Systems Leasing, Inc. 970311 7809 03/11/1997 Computer equipment as per
Co., a Division of 40 Skokie Blvd., Suite 310 schedule attached - Master
Tenneco Automotive Inc. Northbrook, IL 60062 Lease #213 dated 05/01/1986
1201 Michigan Blvd. Assigned to: 970404 7802 Filing date together with Schedule #40
Racine, WI 53402 Manufacturers Bank (Assignment) unclear dated 11/14/1996
1200 N. Ashland Ave.
Chicago, IL 60622
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Tenneco Automotive Inc. Connell Equipment Leasing Co. 970428 7238 04/28/1997 Lift trucks, cascades,
111 Pfingsten Road 45 Cardinal Drive batteries (Sup. #12)
Deerfield, IL 60015 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
34
238
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Virginia S/S Tenneco Automotive Inc. Connell Equipment Leasing Co. 970814 7043 08/14/1997 Lift trucks, cascades,
111 Pfingsten Road 45 Cardinal Drive batteries (Sup. #15)
Deerfield, IL 60015 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Tenneco Automotive Inc. Connell Equipment Leasing Co. 981228 7532 12/28/1998 Order pickers, batteries,
1 International Drive 45 Cardinal Drive chargers (Sup. #31)
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Tenneco Automotive Inc. Yale Financial Services, Inc. 980706 7157 07/06/1998 Leased equipment at
500 North Field Drive 15 Junction Road location: 4500 Early Road
Lake Forest, IL 60045 Flemington, NJ 08822 Harrisonburg, VA 22801
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Tenneco Automotive Inc. Connell Equipment Leasing Co. 990330 7156 03/30/1999 4 Raymond Forklifts; 8
111 Pfingsten Road 45 Cardinal Drive Exide Batteries; 4 Exide
Deerfield, IL 60015 Westfield, NJ 07090 Chargers
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Tenneco Automotive Connell Equipment Leasing Co. 990419 7113 04/19/1999 2 Exide Chargers (Sup. #36)
1 International Drive 45 Cardinal Drive
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Tenneco Automotive Connell Equipment Leasing Co. 990419 7114 04/19/1999 Original filing is missing
1 International Drive 45 Cardinal Drive in the jurisdiction.
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Tenneco Automotive Connell Equipment Leasing Co. 990419 7577 04/19/1999 1 Multi Shifter Battery
1 International Drive 45 Cardinal Drive Handling System (Sup. #35)
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Tenneco Automotive Connell Equipment Leasing Co. 990503 7210 05/03/1999 1 Exide Battery; 1 Exide
1 International Drive 45 Cardinal Drive Charger (Sup. #40)
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Tenneco Automotive Connell Equipment Leasing Co. 990518 7157 05/18/1999 12 GNB Batteries; 5 GNB
1 International Drive 45 Cardinal Drive Batteries (Sup. #44)
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Tenneco Automotive Connell Equipment Leasing Co. 990518 7158 05/18/1999 2 Yale Forklifts; 10 Yale
1 International Drive 45 Cardinal Drive Forklifts (Sup. #39)
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
35
239
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Virginia S/S Tenneco Automotive Connell Equipment Leasing Co. 990518 7159 05/18/1999 2 GNB Chargers (Sup. #43)
1 International Drive 45 Cardinal Drive
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Tenneco Automotive The Summit Group, Inc. 990528 7101 05/28/1999 9406-720 AS/400 720-2063 -
Incorporated 4215 Edison Lakes Parkway Serial #00219BM7852-4OZ
4500 Early Road Mishawaka, IN 46546-5106 Model - Serial #42N5624)
Harrisonburg, VA 22801
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Tenneco Automotive Connell Equipment Leasing Co. 990607 7346 06/07/1999 10 Install 90" Overhead
1 International Drive 45 Cardinal Drive Guards on Yale Model
Monroe, MI 48161 Westfield, NJ 07090 ESCO30ABN24TE083
(Sup. #42)
------------------------------------------------------------------------------------------------------------------------------------
Virginia S/S Tenneco Automotive Connell Equipment Leasing Co. 990609 7055 06/09/1999 2 GNB Batteries Model No.
1 International Drive 45 Cardinal Drive 24-95-21 (Sup. #45)
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Independent City Walker Manufacturing Michael G. McCray (Plaintiff) 62/79 05/12/1998 Judgment in the sum of
- Harrisonburg, Company $63,564 which includes
VA Tenneco Automotive Inc. interest thereon from the
(Defendants) 17th day of May 1995 until
paid and costs of proceeding
------------------------------------------------------------------------------------------------------------------------------------
Independent City Tenneco Automotive Inc. Connell Equipment Leasing Co. 47538 04/28/1997 2 Yale Lift Trucks, 2
- Harrisonburg, 111 Pfingsten Road 45 Cardinal Drive Cascades, 6 Exide
VA Deerfield, IL 60015 Westfield, NJ 07090 Batteries, 2 Exide Chargers
------------------------------------------------------------------------------------------------------------------------------------
Independent City Tenneco Automotive Inc. Connell Equipment Leasing Co. 48004 08/14/1997 3 Yale Forklifts, 3 Cascade
- Harrisonburg, 111 Pfingsten Road 45 Cardinal Drive Fork Positioners, 9 Exide
VA Deerfield, IL 60015 Westfield, NJ 07090 Batteries, 3 Exide Chargers
------------------------------------------------------------------------------------------------------------------------------------
Independent City Tenneco Automotive Inc. Yale Financial Services, Inc. 49418 07/10/1998 All of the equipment now or
- Harrisonburg, 500 North Field Drive 15 Junction Road hereafter leased by Lessor
VA Lake Forest, IL 60045 Flemington, NJ 08822 to Lessee; located at 4500
Early Road, Harrisonburg, VA
------------------------------------------------------------------------------------------------------------------------------------
Independent City Tenneco Automotive Inc. Connell Equipment Leasing Co. 50125 01/04/1999 19 Raymond Order Pickers, 7
- Harrisonburg, 1 International Drive 45 Cardinal Drive Raymond Order Pickers
VA Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
36
240
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Independent City Tenneco Automotive Inc. Connell Equipment Leasing Co. 50410 03/30/1999 4 Raymond Forklifts, 8
- Harrisonburg, VA 1 International Drive 45 Cardinal Drive Exide Batteries, 4 Exide
Monroe, MI 48161 Westfield, NJ 07090 Chargers
---------------------------------------------------------------------------------------------------------------------------------
Independent City Walker Manufacturing Co IBM Corporation 42461 10/20/1993 IBM Equipment
- Harrisonburg, VA 3160 Abbot Lane Dept. C4E MS 222
Harrisonburg, VA 250 Harbor Drive
22801-9750 Stamford, CT 06904
---------------------------------------------------------------------------------------------------------------------------------
Independent City Walker Manufacturing Co IBM Corporation 42478 10/26/1993 IBM Equipment
- Harrisonburg, VA 3160 Abbot Lane Dept. C4E MS 222
Harrisonburg, VA 250 Harbor Drive
22801-9750 Stamford, CT 06904
---------------------------------------------------------------------------------------------------------------------------------
Independent City Tennessee Gas Pipeline Amplicon, Inc. 42511 11/02/1993 Schedule 6 to Lease No.
- Harrisonburg, VA Company 5 Hutton Centre Drive, OL-6346 (VA)(WI)
Walker Manufacturing Ste. 500
Company Division Santa Ana, CA 92707
1201 Michigan Blvd. Assigned to: Amended by: Filed:
Racine, WI 53402 Deutsche Credit Corporation 42511 01/25/1994
2333 Waukegan Road (EXPIRED)
Deerfield, IL 60015
---------------------------------------------------------------------------------------------------------------------------------
Independent City Walker Manufacturing LaSalle Systems Leasing, inc. 42755 01/19/1994 Computer Equipment per
- Harrisonburg, VA Co., a Division 40 Skokie Blvd., Suite 310 schedule attached covered
of Tennessee Gas Northbrook, IL 60062 under Master Lease #213
Pipeline Company Assigned to: dated 5/1/1986 together
1201 Michigan Blvd. LaSalle Equipment Limited with Schedule #34 dated
Racine, WI 53402 Partnership 12/03/1993
40 Skokie Blvd., Suite 310
Northbrook, IL 60062
Assigned to: Assignment Filed:
Manufacturers Bank 42755 03/08/1994
1200 N. Ashland Avenue (EXPIRED)
Chicago, IL 60622
---------------------------------------------------------------------------------------------------------------------------------
37
241
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Independent City Walker Manufacturing LaSalle Systems Leasing, inc. 43210 04/22/1994 Computer Equipment per
- Harrisonburg, VA Co., a Division 40 Skokie Blvd., Suite 310 (EXPIRED) schedule attached covered
of Tennessee Gas Northbrook, IL 60062 under Master Lease #213
Pipeline Company Assigned to: dated 5/1/1986 together
1201 Michigan Blvd. LaSalle Equipment Limited with Schedule #34A dated
Racine, WI 53402 Partnership 02/23/1994
40 Skokie Blvd., Suite 310
Northbrook, IL 60062
------------------------------------------------------------------------------------------------------------------------------------
Independent City Walker Manufacturing Capital Associates 43259 05/04/1994 Lease #080901-R02;
- Harrisonburg, VA Co., a Division International, Inc. (EXPIRED) Equipment described on
of Tennessee Gas 7175 W. Jefferson Avenue, attachment to UCC-1
Pipeline Company Suite 3000
1201 Michigan Blvd. Lakewood, CO 80235
Racine, WI 53402
------------------------------------------------------------------------------------------------------------------------------------
Independent City Walker Manufacturing Capital Associates 43391 06/06/1994 Lease #174601-R02;
- Harrisonburg, VA Co., a Division International, Inc. Amended by: Filed on: Equipment described on
of Tennessee Gas 7175 W. Jefferson Avenue, 43391 01/22/1998 attachment to UCC-1
Pipeline Company Suite 3000 (EXPIRED)
1201 Michigan Blvd. Lakewood, CO 80235
Racine, WI 53402
------------------------------------------------------------------------------------------------------------------------------------
Independent City Walker Manufacturing LaSalle Systems Leasing, inc. 43588 08/01/1994 Computer Equipment per
- Harrisonburg, VA Co., a Division 40 Skokie Blvd., Suite 310 schedule attached covered
of Tennessee Gas Northbrook, IL 60062 under Master Lease #213
Pipeline Company Assigned to: dated 5/1/1986 together
1201 Michigan Blvd. LaSalle Equipment Limited with Schedule #35 dated
Racine, WI 53402 Partnership 04/12/1994
40 Skokie Blvd., Suite 310
Northbrook, IL 60062
Assigned to: Assignment Filed:
Manufacturers Bank 43588 09/13/1994
1200 N. Ashland Avenue (EXPIRED)
Chicago, IL 60622
------------------------------------------------------------------------------------------------------------------------------------
Independent City Walker Manufacturing Forum Financial Group, Inc. 44103 01/19/1995 Equipment Schedule 2220-33
- Harrisonburg, VA 1201 Michigan Blvd. 2201 North Central
Racine, WI 53402 Expressway, Ste 148
Richardson, TX 75080
Assigned to:
Texas Central Bank, N.A.
8144 Walnut Hill Lane, LB-94
Dallas, TX 75231-4316
------------------------------------------------------------------------------------------------------------------------------------
38
242
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Independent City Walker Manufacturing Forum Financial Group, Inc. 46552 10/11/1996 Equipment Schedule 2220-45
- Harrisonburg, VA 1201 Michigan Blvd. 1475 Richardson Drive, Suite
Racine, WI 53402 270
Richardson, TX 75080
------------------------------------------------------------------------------------------------------------------------------------
Independent City Walker Manufacturing LaSalle Systems Leasing, inc. 47286 03/11/1997 Computer Equipment per
- Harrisonburg, VA Co., a Division 40 Skokie Blvd., Suite 310 schedule attached covered
of Tennessee Gas Northbrook, IL 60062 under Master Lease #213
Pipeline Company Assigned to: Assignment Filed: dated 5/1/1986 together
1201 Michigan Blvd. Manufacturers Bank 47286 04/07/1997 with Schedule #40 dated
Racine, WI 53402 1200 N. Ashland Avenue 11/14/1996
Chicago, IL 60622
------------------------------------------------------------------------------------------------------------------------------------
Independent City Tenneco Automotive Connell Equipment Leasing Co. 50482 04/19/1999 1 Multi Shifter Battery
- Harrisonburg, VA 1 International Drive 45 Cardinal Drive Handling System (Sup. #35)
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Independent City Tenneco Automotive Connell Equipment Leasing Co. 50485 04/20/1999 2 Exide Chargers (Sup. #36)
- Harrisonburg, VA 1 International Drive 45 Cardinal Drive
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Independent City Tenneco Automotive Connell Equipment Leasing Co. 50505 04/22/1999 11 Raymond Easi Order
- Harrisonburg, VA 1 International Drive 45 Cardinal Drive Pickers; 22 Exide
Monroe, MI 48161 Westfield, NJ 07090 Batteries; 9 Exide Chargers
(Sup. #34)
------------------------------------------------------------------------------------------------------------------------------------
Independent City Tenneco Automotive Connell Equipment Leasing Co. 50539 04/30/1999 1 Exide Battery and 1 Exide
- Harrisonburg, VA 1 International Drive 45 Cardinal Drive Charger (Sup. #40)
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Independent City Tenneco Automotive Connell Equipment Leasing Co. 50600 05/17/1999 2 GNB Chargers (Sup. #43)
- Harrisonburg, VA 1 International Drive 45 Cardinal Drive
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Independent City Tenneco Automotive Connell Equipment Leasing Co. 50604 05/17/1999 2 Yale Forklifts; 10 Yale
- Harrisonburg, VA 1 International Drive 45 Cardinal Drive Forklifts (Sup. #39)
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Independent City Tenneco Automotive Connell Equipment Leasing Co. 50605 05/17/1999 12 GNB Batteries; 5 GNB
- Harrisonburg, VA 1 International Drive 45 Cardinal Drive Batteries (Sup. #44)
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
39
243
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Independent City Tenneco Automotive The Summit Group, Inc. 50655 05/28/1999 9406-720 AS/400 720-2063 -
- Harrisonburg, VA Incorporated 4215 Edison Lake Parkway Serial #00219BM7852; 4OZ
4500 Early Road Mishawaka, IN 46546-5106 Modem - Serial #42N5624
Harrisonburg, VA 22801
------------------------------------------------------------------------------------------------------------------------------------
Independent City Tenneco Automotive Connell Equipment Leasing Co. 50694 06/07/1999 2 GNB Batteries (Sup. #45)
- Harrisonburg, VA 1 International Drive 45 Cardinal Drive
Monroe, MI 48161 Westfield, NJ 07090
------------------------------------------------------------------------------------------------------------------------------------
Independent City Tenneco Automotive Connell Equipment Leasing Co. 50696 06/07/1999 10 Install 90" Overhead
- Harrisonburg, VA 1 International Drive 45 Cardinal Drive Guards on Yale Model (Sup.
Monroe, MI 48161 Westfield, NJ 07090 42)
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing Forum Financial Services, 1668948 05/05/1997 Schedule #5010-03
1201 Michigan Blvd. Inc.
Racine, WI 53402 1475 Richardson Drive,
Suite 270
Richardson, TX 75080
Assigned to: 1693405 08/11/1997
Texas Central Bank, N.A. Assignment
8144 Walnut Hill Lane,
Ste 180
Dallas, Texas 7231
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing LaSalle Systems Leasing, Inc. 1666264 04/24/1997 Master Lease #213 dated
Co., a division 40 Skokie Blvd., Suite 310 05/01/1986 Schedule #44
of Tenneco Automotive, Northbrook, IL 60062 dated 03/04/1997
Inc. Assigned to:
1201 Michigan Blvd. LaSalle Equipment Limited
Racine, WI 53402 Partnership
40 Skokie Blvd., Suite 310
Northbrook, IL 60062
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing LaSalle Systems Leasing, Inc. 1654648 03/11/1997 Master Lease #213 dated
Co., a division 40 Skokie Blvd., Suite 310 05/01/1986 Schedule #40
of Tenneco Automotive, Northbrook, IL 60062 dated 11/14/1996
Inc. Assigned to: 1666252 04/24/1997
1201 Michigan Blvd. Manufacturers Bank Assignment
Racine, WI 53402 1200 North Ashland Avenue
Chicago, IL 60622
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing LaSalle Systems Leasing, Inc. 1654647 03/11/1997 Master Lease #213 dated
Co., a division 40 Skokie Blvd., Suite 310 05/01/1986 Schedule #41
of Tenneco Automotive, Northbrook, IL 60062 dated 12/16/1996
Inc.
1201 Michigan Blvd.
Racine, WI 53402
------------------------------------------------------------------------------------------------------------------------------------
40
244
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Wisconsin S/S Walker Manufacturing LaSalle Systems Leasing, Inc. 1654646 03/11/1997 Master Lease #213 dated
Co., a division 40 Skokie Blvd., Suite 310 05/01/1986 Schedule #42
of Tenneco Automotive, Northbrook, IL 60062 dated 01/24/1997
Inc.
1201 Michigan Blvd.
Racine, WI 53402
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing Capital Associates 1432623 05/31/1994 Master Lease dated
Company International, Inc. 09/15/1992 Schedule 1
1201 Michigan Blvd. 7175 W. Jefferson Ave. #4000 Lease #174601-R01 & R02
Racine, WI 53402 Lakewood, CO 80235 1687792 07/18/1997
Amended to: Amendment (EXPIRED)
Walker Manufacturing
Company, a
division of Tenneco
Automotive Inc.
111 Pfingsten Road
Deerfield, IL 60015
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing Tenneco Credit Corporation 1248481 12/26/1991 Account receivables
Company 1010 Milam Street
1201 Michigan Boulevard Houston, Texas 77002
Racine, WI 53402 Assigned to: Asset
Amended to: Securitization 1635911 12/19/1996
Walker Manufacturing Cooperative Corporation Amendment
Company, a c/o Canadian Imperial Bank
division of Tenneco of Commerce 1637223 12/26/1996
Automotive Inc. 425 Lexington Avenue Continuation
New York, NY 10017
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing Amplicon, Inc. 1295190 08/03/1992 Schedule 1 (MS) to Lease
Company/ 5 Hutton Centre Drive, Suite #OL-6346
Division of Tennessee 500
Gas Pipeline Santa Ana, CA 92707 1325564 01/11/1993
Company Assigned to: Assignment
1201 Michigan Blvd. Concord Commercial 1325565 01/11/1993
Racine, WI 53402 Corporation Amendment
Name amended to: 2010 Main Street, Suite 500 1663541 04/14/1997
Tennessee Gas Pipeline Irvine, CA 92714 Continuation
Company, Walker
Manufacturing
Company/Division
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Tennessee Gas Pipeline Amplicon, Inc. 1380746 09/22/1993 Schedule 5 to Lease
Company, 5 Hutton Centre Drive, Suite #OL-6346 (WI); leased
Walker Manufacturing 500 1748494 04/03/1998 property located at Walker
Company Division Santa Ana, CA 92707 Continuation Exhaust
1201 Michigan Blvd. Assigned to: 500 Connestoga Blvd.
Racine, WI 53402 Concord Commercial Cambridge, Ontario, M1R 5T7
Corporation Canada
2010 Main Street, Suite 500
Irvine, CA 92714
------------------------------------------------------------------------------------------------------------------------------------
41
245
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Wisconsin S/S Walker Manufacturing Pacific Atlantic Systems 1412879 03/02/1994 All Equipment pursuant to
Co., a Div. of Leasing Inc. (EXPIRED) Lease Agreement dated
Tennessee Gas Pipeline 11811 N. Tatum Blvd. Suite 04/27/1993, Schedule 15
Company 2000
1201 Michigan Blvd. Phoenix, AZ 85028
Racine, WI 53402
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing Forum Financial Group, Inc. 1418657 03/28/1994 Equipment Lease Schedule
1201 Michigan Blvd. 2201 N. Central Expwy. #148 (EXPIRED) 2220-26
Racine, WI 53402 Richardson, TX 75080
Assigned to:
Texas Central Bank
8144 Walnut Hill LB94
Dallas, TX 7231-4316
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing Co. LaSalle Systems Leasing, Inc. 1424180 04/21/1994 Master Lease #213 dated
Division of Tennessee 40 Skokie Blvd., Suite 310 (EXPIRED) 05/01/1986, Schedule #34A
Gas Pipeline Northbrook, IL 60062 dated 02/23/1994; Equipment
Company Assigned to: located at 3160 Abbott
1201 Michigan Blvd. LaSalle Equipment Limited Lane, Harrisonburg,
Racine, WI 53402 Partnership VA 22801
40 Skokie Blvd., Suite 310
Northbrook, IL 60062
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing Capital Associates 1426397 05/02/1994 Lease #080901-R01 & R02
Company, a International, Inc. (EXPIRED) dated 09/16/1988
Division of Tennessee 7175 W. Jefferson Avenue,
Gas Pipeline Suite 3000
Company Lakewood, CO 80235
1201 Michigan Blvd.
Racine, WI 53402
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Tennessee Gas Pipeline Amplicon, Inc. 1428941 05/12/1994 Schedule 1 to Lease
Company 5 Hutton Centre Drive #500 (EXPIRED) Agreement OL-8006
Walker Manufacturing Santa Ana, CA 92707
Company Division
1201 Michigan Blvd.
Racine, WI 53402
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing LaSalle Systems Leasing, Inc. 1444719 07/25/1994 Master Lease #213 dated
Co., Division 40 Skokie Blvd., Suite 310 05/01/1986, Schedule #37
of Tennessee Gas Northbrook, IL 60062 dated 04/04/1994
Pipeline Company Assigned to: 1454728 09/12/1994
1201 Michigan Blvd. Manufacturers Bank Assignment (EXPIRED)
Racine, WI 53402 1200 N. Ashland Avenue
Chicago, IL 60622
------------------------------------------------------------------------------------------------------------------------------------
42
246
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Wisconsin S/S Walker Manufacturing LaSalle Systems Leasing, Inc. 1444720 07/25/1994 Master Lease #213 dated
Co., Division 40 Skokie Blvd., Suite 310 05/01/1986, Schedule #35
of Tennessee Gas Northbrook, IL 60062 dated 04/12/1994
Pipeline Company Assigned to: 1454727 09/12/1994
1201 Michigan Blvd. Manufacturers Bank Assignment (EXPIRED)
Racine, WI 53402 1200 N. Ashland Avenue
Chicago, IL 60622
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing Forum Financial Group, Inc. 1444423 07/25/1994 Equipment Lease Schedule
1201 Michigan Blvd. 2201 N. Central Expwy. #148 (EXPIRED) 2220-30
Racine, WI 53402 Richardson, TX 75080
Assigned to:
Texas Central Bank
8144 Walnut Hill LB94
Dallas, TX 7231-4316
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing First Equipment Company 1450491 08/22/1994 Schedule "A" Sub-Schedule
Company 4851 Keller Springs Road, (EXPIRED) No. 1,6,7,10,11 to Master
1201 Michigan Blvd. #100 Lease Agreement Number
Racine, WI 53402 Dallas, Texas 75248 D01342 dated 02/02/1993
Assigned to:
Bank IV Oklahoma, N.A.
POB 2360
Tulsa, OK 74101
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing LaSalle Systems Leasing, Inc. 1456253 09/19/1994 Master Lease #213 dated
Co., Division 40 Skokie Blvd., Suite 310 05/01/1986, Schedule
of Tennessee Gas Northbrook, IL 60062 #35A dated 08/04/1994;
Pipeline Company Assigned to: equipment located at 904
1201 Michigan Blvd. LaSalle Equipment Limited Industrial Road, Marshall,
Racine, WI 53402 Partnership MI 49068
40 Skokie Blvd., Suite 310
Northbrook, IL 60062
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Tennessee Gas Pipeline Amplicon, Inc. 1459982 10/06/1994 Schedule 7 to Lease
Company 5 Hutton Centre Drive #500 Agreement OL-6346; leased
Walker Manufacturing Santa Ana, CA 92707 property located at 3160
Company Division Abbott Lane, Harrisonburg,
1201 Michigan Blvd. VA 22801
Racine, WI 53402
------------------------------------------------------------------------------------------------------------------------------------
43
247
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Wisconsin S/S Tennessee Gas Pipeline Ameritech Credit Corporation 1460003 10/06/1994 Lease No. 001-0127159-008
Company 2550 W. Golf Road dated 12/10/1993
Walker Manufacturing Rolling Meadows, IL 60008
Company
1010 Milar
Houston, TX 77002
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing LaSalle Systems Leasing, Inc. 1461193 10/12/1994 Master Lease #213 dated
Co., Division 40 Skokie Blvd., Suite 310 05/01/1986, Schedule #38
of Tennessee Gas Northbrook, IL 60062 dated 09/09/1994
Pipeline Company Assigned to: 1476895 12/27/1994
1201 Michigan Blvd. Manufacturers Bank Assignment
Racine, WI 53402 1200 N. Ashland Avenue
Chicago, IL 60622
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing Advanta Leasing Corp. 1463653 10/24/1994 Schedule "A" to Lease
Company, Div. of TN Gas P. O. Box 1228-UCC Agreement dated 09/28/1994
Pipeline Co. Voorhees, NJ 08043
1201 Michigan Boulevard
Racine, WI 53402
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing American Industrial 1457476 09/26/1994 Copiers
Division of Co. Leasing
Tennessee Gas Pipeline P. O. Box 683
1201 Michigan Blvd. Brookfield, WI 53008
Racine, WI 53402 Assigned to: 1470839 11/28/1994
M & I Marshall Ilsley Bank Assignment
770 N. Water St.
Milwaukee, WI 53202
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Tennessee Gas Pipeline El Camino Resources, Ltd. 1483648 01/27/1995 Master Lease #2366,
Company acting through 21051 Warner Center Lane Schedule #001
its Walker Woodland Hills, CA 91367
Manufacturing Division,
Tenneco Bldg., 1010
Milan, Houston, TX 77002
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing Forum Financial Group, Inc. 1483551 01/27/1995 Equipment Lease Schedule
1201 Michigan Blvd. 2201 N. Central Expwy. #148 2220-37
Racine, WI 53402 Richardson, TX 75080
Assigned to:
Texas Central Bank
8144 Walnut Hill LB94
Dallas, TX 7231-4316
------------------------------------------------------------------------------------------------------------------------------------
44
248
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Wisconsin S/S Walker Manufacturing Forum Financial Group, Inc. 1491558 03/06/1995 Equipment Lease Schedule
1201 Michigan Blvd. 2201 N. Central Expwy. #148 2220-36
Racine, WI 53402 Richardson, TX 75080
Assigned to:
Colorado National Leasing,
Inc.
950 17th St. #1400
Denver, CO 80202
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Tennessee Gas Pipeline Ameritech Credit Corporation 1542853 10/27/1995 Lease No.
Company Div- 2550 W. Golf Road 001-0127159-009,010 and 011
Walker Manufacturing Rolling Meadows, IL 60008 dated 12/10/1993
Company
1201 Michigan Blvd.
Racine, WI 53402
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing Equis Financial Group 1620744 10/14/1996 Master Lease Agmt. No.
Company 98 North Washington Street 8906WIG377
1201 Michigan Blvd. Boston, MA 02114
Racine, WI 53402 Assigned to:
PaineWebber Preferred Yield
Fund II
PaineWebber Incorporated
1200 Harbor Boulevard
Weehawken, NJ 07087
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing Co. Forum Financial Group, Inc. 1544841 11/06/1995 Equipment Lease Schedule
1201 Michigan Blvd. 2201 N. Central Expwy. #148 2220-41
Racine, WI 53402 Richardson, TX 75080
Assigned to:
Texas Central Bank
8144 Walnut Hill LB94
Dallas, TX 7231-4316
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Tennessee Gas Pipeline Ameritech Credit Corporation 1556583 01/05/1996 Lease No. 001-0127159-012
Company Div- 2550 W. Golf Road dated 12/10/1993
Walker Manufacturing Rolling Meadows, IL 60008
Company
1201 Michigan Blvd.
Racine, WI 53402
------------------------------------------------------------------------------------------------------------------------------------
45
249
JURISDICTION DEBTOR SECURED PARTY FILE NUMBER DATE FILED COLLATERAL
------------ ------ ------------- ----------- ---------- ----------
Wisconsin S/S Walker Manufacturing Data Sales Co., Inc. 1473650 12/12/1994 Lease 6-9600, Schedule 3A
Company, a 3450 West Burnsville Parkway
Division of Tennessee Burnsville, MN 55337
Gas Pipeline Assigned to: 1512522 06/02/1995
Company Manufacturers Bank Assignment
1201 Michigan Blvd. 1200 North Ashland Avenue
Racine, WI 53402 Chicago, IL 60622
Assigned to: 1592896 06/10/1996
Monroe Bank & Trust Assignment
102 E. Front Street
Monroe, MI 48161
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing Forum Financial Group, Inc. 1627798 11/11/1996 Equipment Lease Schedule
1201 Michigan Blvd. 2201 N. Central Expwy. #148 2220-48
Racine, WI 53402 Richardson, TX 75080
Assigned to:
Colorado National Leasing,
Inc.
950 17th St. #1400
Denver, CO 80202
------------------------------------------------------------------------------------------------------------------------------------
Wisconsin S/S Walker Manufacturing Co. Forum Financial Group, Inc. 1705108 10/03/1997 Equipment Lease Schedule
1201 Michigan Blvd. 2201 N. Central Expwy. #148 5010-07
Racine, WI 53402 Richardson, TX 75080
Assigned to:
Texas Central Bank
8144 Walnut Hill LB94
Dallas, TX 7231-4316
------------------------------------------------------------------------------------------------------------------------------------
46
250
SCHEDULE 7.3(F) DRAFT 09/24/99
(FOREIGN LIENS)
COUNTRY ENTITY BANK LIMIT(1) LIMIT(2) PURPOSE LIEN
---- ---------- ---------------- ------------- ------------ -------- ----------- ------------------------------------------
1 Argentina Fric Rot Galicia Bank ARS 500K 500 Overdraft Right of set-off, right to preferential
S.A.I.C. facility -- payment or other encumbrance on deposits
Working or other assets in bank's possession
Capital from time to time(3)
---- ---------- ---------------- ------------- ------------ -------- ----------- ------------------------------------------
2 Australia Monroe Westpac AUD 250K 160 Overdraft Right of set-off, right to preferential
Australia/Monroe Banking Corp facility payment or other encumbrance on deposits
Springs or other assets in bank's possession
Australia/Walker from time to time(3)
Australia
---- ---------- ---------------- ------------- ------------ -------- ----------- ------------------------------------------
3 Australia Monroe Westpac AUD 13.5M 8,659 Standby Right of set-off, right to preferential
Australia/Monroe Banking Corp overdraft payment or other encumbrance on deposits
Springs facility or other assets in bank's possession
Australia/Walker from time to time(3)
Australia
---- ---------- ---------------- ------------- ------------ -------- ----------- ------------------------------------------
4 Australia Monroe Westpac AUD 1.6M 1,026 Guarantee Right of set-off, right to preferential
Australia/Monroe Banking Corp facility payment or other encumbrance on deposits
Springs or other assets in bank's possession
Australia/Walker from time to time(3)
Australia
---- ---------- ---------------- ------------- ------------ -------- ----------- ------------------------------------------
5 Australia Monroe Westpac AUD 247K 158 Long term Right of set-off, right to preferential
Australia/Monroe Banking Corp lease payment or other encumbrance on deposits
Springs facility or other assets in bank's possession
Australia/Walker from time to time(3)
Australia
---- ---------- ---------------- ------------- ------------ -------- ----------- ------------------------------------------
6 Australia Monroe Westpac AUD 300K 192 Trade Right of set-off, right to preferential
Australia/Monroe Banking Corp finance payment or other encumbrance on deposits
Springs facility or other assets in bank's possession
Australia/Walker from time to time(3)
Australia
---- ---------- ---------------- ------------- ------------ -------- ----------- ------------------------------------------
7 Belgium Tenneco Artesia BEF 155M 3,983 Short term Right of set-off, right to preferential
Automotive credit payment or other encumbrance on deposits
Europe NV facility -- or other assets in bank's possession
Working from time to time(3)
Capital
---- ---------- ---------------- ------------- ------------ -------- ----------- ------------------------------------------
8 Belgium Tenneco Bank BEF 150M 3,855 Short term Right of set-off, right to preferential
Automotive Brussels credit payment or other encumbrance on deposits
Europe NV Lambert facility -- or other assets in bank's possession
Working from time to time(3)
Capital
251
COUNTRY ENTITY BANK LIMIT(1) LIMIT(2) PURPOSE LIEN
---- ---------- --------------- ------------- ------------ -------- -------------- ------------------------------------------
9 Belgium Tenneco A.S.L.K. BEF 25M 642 Short term Right of set-off, right to preferential
Automotive credit payment or other encumbrance on deposits
Europe NV facility - or other assets in bank's possession
Working from time to time(3)
Capital
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
10 Brazil Tenneco HSBC Drawn: BRL 700 Overdraft Right of set-off, right to preferential
Automotive Bamerindus 1.31M facility - payment or other encumbrance on deposits
Brazil Ltda Working or other assets in bank's possession
Capital from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
11 Brazil Tenneco HSBC BRL 5M 2,671 Short term Right of set-off, right to preferential
Automotive Bamerindus credit payment or other encumbrance on deposits
Brazil Ltda facility - or other assets in bank's possession
Working from time to time(3)
Capital
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
12 Brazil Tenneco Banco ABC BRL 10M 5,342 Short term Right of set-off, right to preferential
Automotive Brasil credit payment or other encumbrance on deposits
Brazil Ltda facility or other assets in bank's possession
from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
13 Brazil Tenneco Banco Real BRL 450K 240 Overdraft - Right of set-off, right to preferential
Automotive S/A Working payment or other encumbrance on deposits
Brazil Ltda Capital or other assets in bank's possession
from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
14 Brazil Tenneco Banco Real BRL 3.6M 1,923 Short term Right of set-off, right to preferential
Automotive S/A credit payment or other encumbrance on deposits
Brazil Ltda facility - or other assets in bank's possession
Working from time to time(3)
Capital
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
15 Brazil Tenneco Banco Real BRL 7M 3,739 Short term Right of set-off, right to preferential
Automotive Investimentos credit payment or other encumbrance on deposits
Brazil Ltda facility or other assets in bank's possession
from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
16 Brazil Tenneco Dresdner BRL 7M 3,739 Short term Right of set-off, right to preferential
Automotive Bank credit payment or other encumbrance on deposits
Brazil Ltda facility or other assets in bank's possession
from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
17 Brazil Tenneco Unibanco BRL 5M 2,671 Short term Right of set-off, right to preferential
Automotive credit payment or other encumbrance on deposits
Brazil Ltda or other assets in bank's possession
from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
18 Brazil Tenneco Banco BRL 1.3M 694 Export Line Right of set-off, right to preferential
Automotive Sudameris payment or other encumbrance on deposits
Brazil Ltda or other assets in bank's possession
from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
19 Brazil Tenneco Citibank BRL 395K 211 BNDES Right of set-off, right to preferential
Automotive Financing payment or other encumbrance on deposits
Brazil Ltda or other assets in bank's possession
from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
20 Canada TCI-Automotive Bank of USD 10M 10,000 Undocumented Right of set-off, right to preferential
Montreal line, payment or other encumbrance on deposits
advised or other assets in bank's possession
limit, from time to time(3)
includes
drawings in
CAD and USD
2
252
COUNTRY ENTITY BANK LIMIT(1) LIMIT(2) PURPOSE LIEN
---- ---------- --------------- ------------- ------------ ------ ------------- ------------------------------------------
21 China Beijing Finance RMB 750K 91 Short term Right of set-off, right to preferential
Monroe Shock Bureau, working payment or other encumbrance on deposits
Absorber China capital loan or other assets in bank's possession
Company from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
22 China Beijing Industrial & Drawn: 1,099 Short term Pledge over assets
Monroe Shock Commercial RMB 9.1M working
Absorber Bank of capital loan
Company China
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
23 China Beijing Dai-ichi USD 1.5M 1,500 Short term Right of set-off, right to preferential
Monroe Shock Kangyo Bank working payment or other encumbrance on deposits
Absorber capital loan or other assets in bank's possession
Company supported by from time to time(3)
Tenneco Inc.
guarantee
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
24 China Beijing Localization RMB 5M 604 Long term Right of set-off, right to preferential
Monroe Shock loan/Planning capex loan payment or other encumbrance on deposits
Absorber committee or other assets in bank's possession
Company from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
25 China Beijing Localization Drawn: 725 Long term Right of set-off, right to preferential
Monroe Shock loan/CBC RMB 6M capex loan payment or other encumbrance on deposits
Absorber or other assets in bank's possession
Company from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
26 China Dalian Industrial & Drawn: 1,486 Short term Pledge over assets
Walker-Gillet Commercial RMB 12.3M working
Auto Muffler Bank, China capital loan
Company
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
27 Czech Monroe Czechia Komercni CZK 20M 570 Overdraft Right of set-off, right to preferential
Republic Banka facility - payment or other encumbrance on deposits
Liberec Working or other assets in bank's possession
Capital from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
28 Denmark Walker Den Danske DKK 20M 2,794 Overdraft Right of set-off, right to preferential
Danmark A/S Bank facility/ payment or other encumbrance on deposits
Working or other assets in bank's possession
Capital from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
29 Denmark Walker Den Danske DKK 3.8M 531 Multi-currency Right of set-off, right to preferential
Danmark A/S Bank overdraft payment or other encumbrance on deposits
facility or other assets in bank's possession
(EUR/DEM/NLG) from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
30 France Gillet Tubes SODIEST Drawn: 472 Long term Right of set-off, right to preferential
Technologies (Development FRF 2.99M loan, payment or other encumbrance on deposits
Agency) matures May or other assets in bank's possession
2002 from time to time(3)
Capital
Expenditure
Finance
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
31 France Gillet Tubes SODIEST Drawn: 52 Long term Right of set-off, right to preferential
Technologies (Development FRF 330K loan, payment or other encumbrance on deposits
Agency) matures or other assets in bank's possession
January 2001 from time to time(3)
C apital
Expenditure
Finance
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
32 France Wimetal Banque FRF 150M 23,685 Bill Without recourse discounting facility
Nationale discounting -
de Paris Working
Capital
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
33 France Wimetal Sogenal FRF 40M 6,316 Overdraft Right of set-off, right to preferential
facility payment or other encumbrance on deposits
or other assets in bank's possession from
time to time(3)
3
253
COUNTRY ENTITY BANK LIMIT(1) LIMIT(2) PURPOSE LIEN
---- ---------- --------------- ------------- ------------ -------- -------------- ------------------------------------------
34 France Wimetal Sogenal FRF 150M 23,685 Bill Without recourse discounting facility
discounting
facility --
without
recourse
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
35 Germany Tenneco Commerzbank, DEM 16.3M 8,631 German Right of set-off, right to preferential
Deutschland Neustadt cashpool payment or other encumbrance on deposits
Holdings overdraft or other assets in bank's possession
Gesellschaft facility from time to time(3)
mbH (plus DEM
8.9 million
daylight
overdraft),
guaranteed by
Tenneco Inc.
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
36 Germany Heinrich Commerzbank See #36 Overdraft Right of set-off, right to preferential
Gillet GmbH & (ledger payment or other encumbrance on deposits
Co. KG balance) or other assets in bank's possession
Part of from time to time(3)
German
cashpool
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
37 Germany Tenneco Commerzbank See #36 Overdraft Right of set-off, right to preferential
Automotive (ledger payment or other encumbrance on deposits
Deutschland balance) or other assets in bank's possession
Part of from time to time(3)
German
cashpool
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
38 India Hydraulics Ltd Citibank INR 25M 575 Working Right of set-off, right to preferential
Capital payment or other encumbrance on deposits
facility, or other assets in bank's possession
guaranteed from time to time(3)
by Tenneco
Inc.
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
39 India Hydraulics Ltd Citibank Drawn: 805 Working Right of set-off, right to preferential
INR 35M Capital payment or other encumbrance on deposits
facility, or other assets in bank's possession
guaranteed from time to time(3)
by Tenneco
Inc.
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
40 India Hydraulics Ltd Bank of INR 150M 3,450 Long term Right of set-off, right to preferential
America loan payment or other encumbrance on deposits
supported by or other assets in bank's possession
Tenneco Inc. from time to time(3)
guarantee,
matures in
June 2000
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
41 India Hydraulics Ltd Bank of INR 225M 5,175 Short term Right of set-off, right to preferential
America working payment or other encumbrance on deposits
capital or other assets in bank's possession
loan, from time to time(3)
Tenneco Inc.
guarantee
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
42 India Renowned Auto Various INR 5.2M 120 Long term Right of set-off, right to preferential
Products loan -- payment or other encumbrance on deposits
Manufacturers Working or other assets in bank's possession
Capital from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
43 India Renowned Auto SIPCOT INR 5,140 0 Term loan-- Right of set-off, right to preferential
Products matures June payment or other encumbrance on deposits
Manufacturers 2000 or other assets in bank's possession
Sales Tax from time to time(3)
Financing
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
44 India Renowned Auto SIPCOT INR 3.8M 87 Term loan, Right of set-off, right to preferential
Products matures June payment or other encumbrance on deposits
Manufacturers 2000 or other assets in bank's possession
Working from time to time(3)
Capital
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
45 India Walker Bank of INR 110M 2,530 Term loan Right of set-off, right to preferential
Exhaust India America supported by payment or other encumbrance on deposits
Pvt. Ltd. Tenneco Inc. or other assets in bank's possession
guarantee from time to time(3)
4
254
COUNTRY ENTITY BANK LIMIT(1) LIMIT(2) PURPOSE LIEN
---- ---------- --------------- ------------- ------------ -------- -------------- ------------------------------------------
46 India Walker Bank of INR 35M 805 Short term Right of set-off, right to preferential
Exhaust India America working payment or other encumbrance on deposits
Pvt. Ltd capital loan or other assets in bank's possession
supported by from time to time(3)
Tenneco Inc.
guarantee
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
47 Italy Tenneco Credito ITL 180M 4,140 Overdraft Right of set-off, right to preferential
Automotive Italiano SpA facility -- payment or other encumbrance on deposits
Italia Srl Working or other assets in bank's possession
Capital from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
48 New Monroe Westpac NZD 250K 130 Overdraft Right of set-off, right to preferential
Zealand Springs New Banking Corp facility -- payment or other encumbrance on deposits
Zealand Working or other assets in bank's possession
Capital from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
49 Poland Tenneco Citibank, PLN 35M 8,550 Short term Right of set-off, right to preferential
Automotive Poland credit payment or other encumbrance on deposits
Polska facility or other assets in bank's possession
supported by from time to time(3)
Tenneco Inc.
guarantee --
Working
Capital
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
50 Singapore Tenneco Asia Bank of SGD 500K 294 Overdraft Right of set-off, right to preferential
America, facility payment or other encumbrance on deposits
Singapore supported by or other assets in bank's possession
Tenneco Inc. from time to time(3)
letter of
comfort
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
51 Singapore Tenneco Citibank, USD 1M 1,000 Overdraft Right of set-off, right to preferential
Automotive Singapore facility payment or other encumbrance on deposits
Asia supported by or other assets in bank's possession
(T.A.T.C) Tenneco Inc. from time to time(3)
guarantee
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
52 South Armstrong First ZAR 10M 1,643 Short term Right of set-off, right to preferential
Africa Hydraulics National working payment or other encumbrance on deposits
Bank capital line or other assets in bank's possession
supported by from time to time(3)
Tenneco
Automotive
Holdings SA
guarantee
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
53 South Armstrong ABSA Bank ZAR 9M 1,479 Short term Right of set-off, right to preferential
Africa Hydraulics working payment or other encumbrance on deposits
capital or other assets in bank's possession
facility from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
54 Spain Tenneco Banco ESP 3.3BN 20,543 Long term Secured by underlying assets
Automotive Santander capital
Iberica lease --
matures Sept
2009 (to be
signed
before
Spin-Off)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
55 Spain Tenneco Banco ESP 150M 933 Guarantee Right of set-off, right to preferential
Automotive Santander facility payment or other encumbrance on deposits
Iberica or other assets in bank's possession
from time to time(3)
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
56 Spain Tenneco Banco ESP 178M 1,108 Finance Secured by underlying asset
Automotive Santander lease for
Iberica plant
machinery
---- ---------- --------------- ------------- ------------ ------ -------------- ------------------------------------------
57 Sweden Tenneco Sparbanken SEK 5M 604 Overdraft Right of set-off, right to preferential
Automotive facility -- payment or other encumbrance on deposits
Sweden Working or other assets in bank's possession
Capital from time to time(3)
5
255
COUNTRY ENTITY BANK LIMIT(1) LIMIT(2) PURPOSE LIEN
--- -------- ------------- ---------- ---------- -------- -------------- ----------------------------------------
58 Turkey Monroe Iktisat TRL 85BN 184 Overdraft-- Right of set-off, right to preferential
Amortisor Bankasi Working payment or other encumbrance on deposits
Capital or other assets in bank's possession
from time to time(3)
--- -------- ------------- ---------- ---------- -------- -------------- ----------------------------------------
59 Turkey Monroe Is Bankasi TRL 100BN 217 Short term Right of set-off, right to preferential
Amortisor credit payment or other encumbrance on deposits
facility or other assets in bank's possession
(overdraft/ from time to time(3)
guarantees
supported by
TMEL letter
of comfort
--- -------- ------------- ---------- ---------- -------- -------------- ----------------------------------------
60 UK Tenneco Barclays GBP 2.5M 4,051 Overdraft Right of set-off, right to preferential
Walker UK Bank facility-- payment or other encumbrance on deposits
cross or other assets in bank's possession
guarantee from time to time(3)
Part of UK
cashpool
--- -------- ------------- ---------- ---------- -------- -------------- ----------------------------------------
61 UK Tenneco Barclays GBP 500K 810 Overdraft Right of set-off, right to preferential
Automotive UK Bank facility-- payment or other encumbrance on deposits
Ltd cross or other assets in bank's possession
guarantee from time to time(3)
Part of UK
cashpool
--- -------- ------------- ---------- ---------- -------- -------------- ----------------------------------------
62 UK Tenneco Bank of GBP 100K 162 Overdraft Right of set-off, right to preferential
Europe Ltd America facility payment or other encumbrance on deposits
or other assets in bank's possession
from time to time(3)
--- -------- ------------- ---------- ---------- -------- -------------- ----------------------------------------
63 UK Tenneco Bank of USD 25M 25,000 Credit Right of set-off, right to preferential
Management America, facility payment or other encumbrance on deposits
(Europe) London supported by or other assets in bank's possession
Limited Tenneco Inc. from time to time(3)
guarantee
--- -------- ------------- ---------- ---------- -------- -------------- ----------------------------------------
64 UK Tenneco KBC Bank, USD 25M 25,000 Credit Right of set-off, right to preferential
Management London facility payment or other encumbrance on deposits
(Europe) supported by or other assets in bank's possession
Limited Tenneco Inc. from time to time(3)
comfort
letter
--- -------- ------------- ---------- ---------- -------- -------------- ----------------------------------------
65 France Tenneco Banque FRF 100M 15,790 Credit Right of set-off, right to preferential
Management Nationale facility payment or other encumbrance on deposits
(Europe) de Paris, supported by or other assets in bank's possession
Limited Laval Tenneco Inc. from time to time(3)
comfort
letter
--- -------- ------------- ---------- ---------- -------- -------------- ----------------------------------------
66 UK Tenneco Banque USD 25M 25,000 Credit Right of set-off, right to preferential
Management Nationale facility payment or other encumbrance on deposits
(Europe) de Paris, supported by or other assets in bank's possession
Limited London Tenneco Inc. from time to time(3)
comfort
letter
--- -------- ------------- ---------- ---------- -------- -------------- ----------------------------------------
67 UK Tenneco Barclays GBP 2M 3,240 Overdraft-- Right of set-off, right to preferential
Management Bank Plc, Cross payment or other encumbrance on deposits
(Europe) London Guarantee or other assets in bank's possession
Limited Part of UK from time to time(3)
cashpool
--- -------- ------------- ---------- ---------- -------- -------------- ----------------------------------------
TOTAL: 276,771
(1) In local currency.
(2) In U.S. dollars (000), using the following exchange rates as of September
20, 1999:
6
256
1 ARS = 1.0002 USD
1 AUD = .6414 USD
1 BEF = .0257 USD
1 BRL = .5342 USD
1 CAD = .6764 USD
1 RMD = .1208 USD
1 CZK = .02849 USD
1 DKK = .1397 USD
1 FRF = .1579 USD
1 DEM = .5295 USD
1 INR = .02300 USD
1 ITL = .0005349 USD
1 NZD = .5218 USD
1 PLN = .2443 USD
1 PTE = .005166 USD
1 SGD = .5872 USD
1 ZAR = .1643 USD
1 ESP = .006225 USD
1 SEK = .1207 USD
1 TRL = .00000217 USD
1 GBP = 1.6202 USD
3 Under applicable law the various rights may or may not constitute Liens.
7
257
SCHEDULE 7.5
PLANNED DISPOSITIONS
None.
-3-
258
SCHEDULE 7.8(I)
INVESTMENTS
Owner Description Value
Tenneco Canada Inc. Preferred Stock in Carquest $2,010,600
Tenneco Canada Inc. Notes Receivable from $10,440,607
BrakePro
Tenneco Automotive Inc. Notes Receivable from $11,683,832
BrakePro
Existing Investments by the Borrower and its Subsidiaries in Subsidiaries
and Joint Ventures.
-4-
259
EXHIBIT A
TO THE CREDIT AGREEMENT
================================================================================
GUARANTEE AND COLLATERAL AGREEMENT
made by
TENNECO AUTOMOTIVE INC.
[OTHER GRANTORS]
in favor of
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of ____________, 1999
================================================================================
260
TABLE OF CONTENTS
Page
SECTION 1 DEFINED TERMS.......................................................2
1.1 Definitions..........................................................2
1.2 Other Definitional Provisions........................................6
SECTION 2. GUARANTEE..........................................................6
2.1 Guarantee............................................................7
2.2 Right of Contribution................................................7
2.3 No Subrogation.......................................................8
2.4 Amendments, etc. with respect to the Borrower Obligations............8
2.5 Guarantee Absolute and Unconditional.................................8
2.6 Reinstatement........................................................9
2.7 Payments.............................................................9
SECTION 3. GRANT OF SECURITY INTEREST.........................................9
SECTION 4. REPRESENTATIONS AND WARRANTIES....................................10
4.1 Title; No Other Liens...............................................10
4.2 Perfected First Priority Liens......................................10
4.3 Chief Executive Office..............................................11
4.4 Inventory and Equipment.............................................11
4.5 Farm Products.......................................................11
4.6 Investment Property.................................................11
4.7 Receivables.........................................................11
4.8 Intellectual Property...............................................12
SECTION 5. COVENANTS.........................................................12
5.1 Delivery of Instruments, Certificated Securities and Chattel Paper..12
5.2 Maintenance of Insurance............................................12
5.3 Payment of Obligations..............................................13
5.4 Maintenance of Perfected Security Interest; Further Documentation...13
5.5 Changes in Locations, Name, etc.....................................14
5.6 Notices.............................................................14
5.7 Investment Property.................................................14
5.8 Receivables.........................................................15
5.9 Intellectual Property...............................................16
SECTION 6. REMEDIAL PROVISIONS...............................................17
6.1 Certain Matters Relating to Receivables.............................17
6.2 Communications with Obligors; Grantors Remain Liable................18
6.3 Pledged Stock.......................................................18
6.4 Proceeds to be Turned Over To Administrative Agent..................19
i
261
Page
6.5 Application of Proceeds....................................... 20
6.6 Code and Other Remedies....................................... 20
6.7 Registration Rights........................................... 21
6.8 Waiver; Deficiency............................................ 22
SECTION 7. THE ADMINISTRATIVE AGENT.................................... 22
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc... 22
7.2 Duty of Administrative Agent.................................. 24
7.3 Execution of Financing Statements............................. 24
7.4 Authority of Administrative Agent............................. 24
SECTION 8. MISCELLANEOUS............................................... 25
8.1 Amendments in Writing......................................... 25
8.2 Notices....................................................... 25
8.3 No Waiver by Course of Conduct; Cumulative Remedies........... 25
8.4 Enforcement Expenses; Indemnification......................... 25
8.5 Successors and Assigns........................................ 26
8.6 Set-Off....................................................... 26
8.7 Counterparts.................................................. 26
8.8 Severability.................................................. 26
8.9 Section Headings.............................................. 27
8.10 Integration................................................... 27
8.11 GOVERNING LAW................................................. 27
8.12 Submission To Jurisdiction; Waivers........................... 27
8.13 Acknowledgements.............................................. 28
8.14 Additional Grantors........................................... 28
8.15 Releases.......................................................28
8.16 WAIVER OF JURY TRIAL...........................................29
SCHEDULES
Schedule 1 Notice Addresses
Schedule 2 Investment Property
Schedule 3 Perfection Matters
Schedule 4 Jurisdictions of Organization and Chief Executive Offices
Schedule 5 Inventory and Equipment Locations
Schedule 6 Intellectual Property
ANNEX
Annex 1 Assumption Agreement
ii
262
GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of November 4, 1999, made by
each of the signatories hereto (together with any other entity that may become a
party hereto as provided herein, the "GRANTORS"), in favor of THE CHASE
MANHATTAN BANK, as Administrative Agent (in such capacity, the "ADMINISTRATIVE
AGENT") for the banks and other financial institutions (the "LENDERS") from time
to time parties to the Credit Agreement, dated as of September 30, 1999 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among Tenneco Inc., a Delaware corporation (the "BORROWER"), the
Lenders, Commerzbank, AG and Bank of America, N.A., as co-documentation agents,
Citicorp USA, Inc., as syndication agent, and the Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make extensions of credit to the Borrower upon the terms and subject
to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of companies that
includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreement will be used in part to enable the Borrower to make valuable transfers
to one or more of the other Grantors in connection with the operation of their
respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in related
businesses, and each Grantor will derive substantial direct and indirect benefit
from the making of the extensions of credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders to
make their respective extensions of credit to the Borrower under the Credit
Agreement that the Grantors shall have executed and delivered this Agreement to
the Administrative Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Borrower
thereunder, each Grantor hereby agrees with the Administrative Agent, for the
ratable benefit of the Lenders, as follows:
263
2.
SECTION 1. DEFINED TERMS
1.1 DEFINITIONS. (a) Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement, and the following terms are used herein as defined in the
New York UCC: Accounts, Certificated Security, Chattel Paper, Documents,
Equipment, Farm Products, Instruments and Inventory.
(b) The following terms shall have the following meanings:
"AGREEMENT": this Guarantee and Collateral Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
"BORROWER OBLIGATIONS": the collective reference to the unpaid
principal of and interest on the Loans and Reimbursement Obligations and
all other obligations and liabilities of the Borrower (including, without
limitation, interest accruing at the then applicable rate provided in the
Credit Agreement after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in
the Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to the Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) to the Administrative Agent or any
Lender (or, in the case of any Lender Hedge Agreement, any Affiliate of any
Lender), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, the Credit Agreement, this Agreement, the
other Loan Documents, any Letter of Credit, any Lender Hedge Agreement or
any other document made, delivered or given in connection with any of the
foregoing, in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to
the Administrative Agent or to the Lenders that are required to be paid by
the Borrower pursuant to the terms of any of the foregoing agreements).
"COLLATERAL": as defined in Section 3.
"COLLATERAL ACCOUNT": any collateral account established by the
Administrative Agent as provided in Section 6.1 or 6.4.
"COPYRIGHTS": (i) all copyrights arising under the laws of the United
States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished (including,
without limitation, those listed in SCHEDULE 6), all registrations and
recordings thereof, and all applications in connection therewith,
including, without limitation, all registrations, recordings and
applications in the United States Copyright Office, and (ii) the right to
obtain all renewals thereof.
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3.
"COPYRIGHT LICENSES": any written agreement naming any Grantor as
licensor or, any written agreement naming any Grantor as licensee to the
extent such agreement permits the Grantor to grant a security interest in
its rights thereunder, including, without limitation, those listed in
SCHEDULE 6, granting any right under any Copyright, including, without
limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"DEPOSIT ACCOUNT": as defined in the Uniform Commercial Code of any
applicable jurisdiction and, in any event, including, without limitation,
any demand, time, savings, passbook or like account maintained with a
depositary institution.
"FOREIGN SUBSIDIARY": any Subsidiary organized under the laws of any
jurisdiction outside the United States of America.
"FOREIGN SUBSIDIARY VOTING STOCK": the voting Capital Stock of any
Foreign Subsidiary.
"GENERAL INTANGIBLES": all "general intangibles" as such term is
defined in Section 9-106 of the New York UCC and, in any event, including,
without limitation, with respect to any Grantor, all contracts, agreements,
instruments and indentures in any form, and portions thereof, to which such
Grantor is a party or under which such Grantor has any right, title or
interest or to which such Grantor or any property of such Grantor is
subject, as the same may from time to time be amended, supplemented or
otherwise modified, including, without limitation, (i) all rights of such
Grantor to receive moneys due and to become due to it thereunder or in
connection therewith, (ii) all rights of such Grantor to damages arising
thereunder and (iii) all rights of such Grantor to perform and to exercise
all remedies thereunder.
"GUARANTOR OBLIGATIONS": with respect to any Guarantor, all
obligations and liabilities of such Guarantor which may arise under or in
connection with this Agreement (including, without limitation, Section 2)
or any other Loan Document to which such Guarantor is a party, in each case
whether on account of guarantee obligations, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative
Agent or to the Lenders that are required to be paid by such Guarantor
pursuant to the terms of this Agreement or any other Loan Document).
"GUARANTORS": the collective reference to each Grantor other than the
Borrower.
"IMMATERIAL FOREIGN SUBSIDIARY": at any time, any Foreign Subsidiary
of the Borrower having total assets (as determined in accordance with GAAP)
in an amount of less than 1% of Consolidated Total Assets of the Borrower;
provided, however, that the total assets (as so determined) of all
Immaterial Foreign Subsidiaries shall not exceed 5% of Consolidated Total
Assets of the Borrower. In the event that the total assets of all
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4.
Immaterial Foreign Subsidiaries exceed 5% of Consolidated Total Assets
of the Borrower, the Borrower will designate Foreign Subsidiaries which
would otherwise constitute Immaterial Foreign Subsidiaries to be executed
as Immaterial Foreign Subsidiaries until such 5% threshold is met.
"INTELLECTUAL PROPERTY": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, the Copyrights, the Copyright Licenses, the
Patents, the Patent Licenses, the Trademarks and the Trademark Licenses,
and all rights to sue at law or in equity for any infringement or other
impairment thereof, including the right to receive all proceeds and damages
therefrom.
"INTERCOMPANY NOTE": any promissory note evidencing loans made by any
Grantor to the Borrower or any of its Subsidiaries.
"INVESTMENT PROPERTY": the collective reference to (i) all "investment
property" as such term is defined in Section 9-115 of the New York UCC
(other than any Foreign Subsidiary Voting Stock excluded from the
definition of "Pledged Stock") and (ii) whether or not constituting
"investment property" as so defined, all Pledged Notes and all Pledged
Stock.
"ISSUERS": the collective reference to each issuer of any Investment
Property.
"LENDER HEDGE AGREEMENTS": all interest rate swaps, caps or collar
agreements or similar arrangements entered into by the Borrower with any
Lender (or any Affiliate of any Lender) providing for protection against
fluctuations in interest rates or currency exchange rates or the exchange
of nominal interest obligations, either generally or under specific
contingencies.
"NEW YORK UCC": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"OBLIGATIONS": (i) in the case of the Borrower, the Borrower
Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
"PATENTS": (i) all letters patent of the United States, any other
country or any political subdivision thereof, all reissues and extensions
thereof and all goodwill associated therewith, including, without
limitation, any of the foregoing referred to in SCHEDULE 6, (ii) all
applications for letters patent of the United States or any other country
and all divisions, continuations and continuations-in-part thereof,
including, without limitation, any of the foregoing referred to in SCHEDULE
6, and (iii) all rights to obtain any reissues or extensions of the
foregoing.
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5.
"PATENT LICENSE": all agreements, whether written or oral, providing
for (i) the grant by any Grantor of any right to manufacture, use or sell
any invention covered in whole or in part by a Patent and (ii) the grant to
any Grantor of any right to manufacture, use or sell any invention covered
in whole or in part by a Patent (to the extent such agreement permits the
Grantor to grant a security interest in its rights thereunder), including,
without limitation, any of the foregoing referred to in SCHEDULE 6.
"PLEDGED NOTES": all promissory notes listed on SCHEDULE 2, all
Intercompany Notes at any time issued to any Grantor and all other
promissory notes issued to or held by any Grantor (other than promissory
notes issued in connection with extensions of trade credit by any Grantor
in the ordinary course of business).
"PLEDGED STOCK": the shares of Capital Stock listed on SCHEDULE 2,
together with any other shares, stock certificates, options or rights of
any nature whatsoever in respect of the Capital Stock of any Person that
may be issued or granted to, or held by, any Grantor while this Agreement
is in effect other than the Capital Stock of any Immaterial Foreign
Subsidiary; PROVIDED that in no event shall more than 66% of the total
outstanding Foreign Subsidiary Voting Stock of any Foreign Subsidiary be
required to be pledged hereunder, provided, further, that the Borrower
shall not be obligated to pledge the Capital Stock of a Foreign Subsidiary
to the extent such pledge would violate the laws of the jurisdiction of
such Foreign Subsidiary's organization.
"PROCEEDS": all "proceeds" as such term is defined in Section 9-306(1)
of the New York UCC and, in any event, shall include, without limitation,
all dividends or other income from the Investment Property, collections
thereon or distributions or payments with respect thereto.
"RECEIVABLE": any right to payment for goods sold or leased or for
services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account).
"SECURITIES ACT": the Securities Act of 1933, as amended.
"TRADEMARKS": (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and all
goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications in
connection therewith, whether 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, or
otherwise, and all common-law rights related thereto, including, without
limitation, any of the foregoing referred to in SCHEDULE 6, and (ii) the
right to obtain all renewals thereof.
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6.
"TRADEMARK LICENSE": any agreement, whether written or oral, providing
for (i) the grant by any Grantor of any right to use any Trademark and (ii)
the grant to any Grantor of any right to use any Trademark (to the extent
such agreement permits the Grantor to grant a security interest in its
rights thereunder), including, without limitation, any of the foregoing
referred to in SCHEDULE 6.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) The words "hereof," "herein",
"hereto" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section and Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof, when used in relation to a Grantor, shall refer to such
Grantor's Collateral or the relevant part thereof.
SECTION 2. GUARANTEE
2.1 GUARANTEE. (a) Each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees to the Administrative
Agent, for the ratable benefit of the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by such Guarantor under applicable federal and state laws relating to the
insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2).
(c) Each Guarantor agrees that the Borrower Obligations may at any
time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 2 or
affecting the rights and remedies of the Administrative Agent or any Lender
hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Borrower Obligations and the obligations of each
Guarantor under the guarantee contained in this Section 2 shall have been
satisfied by payment in full, no Letter of Credit shall be outstanding and the
Commitments shall be terminated, notwithstanding that from time to time
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during the term of the Credit Agreement the Borrower may be free from any
Borrower Obligations.
(e) No payment made by the Borrower, any of the Guarantors, any other
guarantor or any other Person or received or collected by the Administrative
Agent or any Lender from the Borrower, any of the Guarantors, any other
guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Borrower Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall, notwithstanding any such payment (other than any payment
made by such Guarantor in respect of the Borrower Obligations or any payment
received or collected from such Guarantor in respect of the Borrower
Obligations), remain liable for the Borrower Obligations up to the maximum
liability of such Guarantor hereunder until the Borrower Obligations are paid in
full, no Letter of Credit shall be outstanding and the Commitments are
terminated.
2.2 RIGHT OF CONTRIBUTION. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Section 2.3. The provisions of
this Section 2.2 shall in no respect limit the obligations and liabilities of
any Guarantor to the Administrative Agent and the Lenders, and each Guarantor
shall remain liable to the Administrative Agent and the Lenders for the full
amount guaranteed by such Guarantor hereunder.
2.3 NO SUBROGATION. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by the
Administrative Agent or any Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against the Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by the Administrative Agent or any Lender for
the payment of the Borrower Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the Borrower or any
other Guarantor in respect of payments made by such Guarantor hereunder, until
all amounts owing to the Administrative Agent and the Lenders by the Borrower on
account of the Borrower Obligations are paid in full, no Letter of Credit shall
be outstanding and the Commitments are terminated. If any amount shall be paid
to any Guarantor on account of such subrogation rights at any time when all of
the Borrower Obligations shall not have been paid in full, such amount shall be
held by such Guarantor in trust for the Administrative Agent and the Lenders,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Administrative Agent in the exact form
received by such Guarantor (duly indorsed by such Guarantor to the
Administrative Agent, if required), to be applied against the Borrower
Obligations, whether matured or unmatured, in such order as the Administrative
Agent may determine.
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2.4 AMENDMENTS, ETC. WITH RESPECT TO THE BORROWER OBLIGATIONS. Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Borrower
Obligations made by the Administrative Agent or any Lender may be rescinded by
the Administrative Agent or such Lender and any of the Borrower Obligations
continued, and the Borrower Obligations, or the liability of any other Person
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Lender, and the
Credit Agreement and the other Loan Documents and any other documents executed
and delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or the Required
Lenders or all Lenders, as the case may be) may deem advisable from time to
time, and any collateral security, guarantee or right of offset at any time held
by the Administrative Agent or any Lender for the payment of the Borrower
Obligations may be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Borrower Obligations or for the guarantee contained in this Section 2 or any
property subject thereto.
2.5 GUARANTEE ABSOLUTE AND UNCONDITIONAL. Each Guarantor waives any
and all notice of the creation, renewal, extension or accrual of any of the
Borrower Obligations and notice of or proof of reliance by the Administrative
Agent or any Lender upon the guarantee contained in this Section 2 or acceptance
of the guarantee contained in this Section 2; the Borrower Obligations, and any
of them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon the
guarantee contained in this Section 2; and all dealings between the Borrower and
any of the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon the guarantee contained in this Section 2.
Each Guarantor waives diligence, presentment, protest, demand for payment and
notice of default or nonpayment to or upon the Borrower or any of the Guarantors
with respect to the Borrower Obligations. Each Guarantor understands and agrees
that the guarantee contained in this Section 2 shall be construed as a
continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity or enforceability of the Credit Agreement or any other Loan
Document, any of the Borrower Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any Lender, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrower or any other Person against the Administrative Agent or any Lender, or
(c) any other circumstance whatsoever (with or without notice to or knowledge of
the Borrower or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower for the Borrower
Obligations, or of such Guarantor under the guarantee contained in this
Section 2, in bankruptcy or in any other instance. When making any demand
hereunder or otherwise pursuing its rights and remedies hereunder against any
Guarantor, the Administrative Agent or any Lender may, but shall be under
no obligation to,
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make a similar demand on or otherwise pursue such rights and remedies as it may
have against the Borrower, any other Guarantor or any other Person or against
any collateral security or guarantee for the Borrower Obligations or any right
of offset with respect thereto, and any failure by the Administrative Agent or
any Lender to make any such demand, to pursue such other rights or remedies or
to collect any payments from the Borrower, any other Guarantor or any other
Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the Borrower, any other
Guarantor or any other Person or any such collateral security, guarantee or
right of offset, shall not relieve any Guarantor of any obligation or liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Administrative Agent or
any Lender against any Guarantor. For the purposes hereof "demand" shall include
the commencement and continuance of any legal proceedings.
2.6 REINSTATEMENT. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Borrower Obligations is rescinded or
must otherwise be restored or returned by the Administrative Agent or any Lender
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
the Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
2.7 PAYMENTS. Each Guarantor hereby guarantees that payments hereunder
will be paid to the Administrative Agent without set-off or counterclaim in
Dollars at the office of the Administrative Agent located at 270 Park Avenue,
New York, New York 10017.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the Administrative Agent,
and hereby grants to the Administrative Agent, for the ratable benefit of the
Lenders, a security interest in, all of the following property now owned or at
any time hereafter acquired by such Grantor or in which such Grantor now has or
at any time in the future may acquire any right, title or interest
(collectively, the "COLLATERAL"), as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of such Grantor's Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
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(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property;
(i) all Inventory;
(j) all Investment Property;
(k) all other property not otherwise described above;
(l) all books and records pertaining to the Collateral; and
(m) to the extent not otherwise included, all Proceeds and products of
any and all of the foregoing and all collateral security and guarantees given by
any Person with respect to any of the foregoing.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into the
Credit Agreement and to induce the Lenders to make their respective extensions
of credit to the Borrower thereunder, each Grantor hereby represents and
warrants to the Administrative Agent and each Lender that:
4.1 TITLE; NO OTHER LIENS. Except for the security interest granted to
the Administrative Agent for the ratable benefit of the Lenders pursuant to this
Agreement and the other Liens permitted to exist on the Collateral by the Credit
Agreement, such Grantor owns each item of the Collateral free and clear of any
and all Liens or claims of others. No financing statement or other public notice
with respect to all or any part of the Collateral is on file or of record in any
public office, except such as have been filed in favor of the Administrative
Agent, for the ratable benefit of the Lenders, pursuant to this Agreement or as
are permitted by the Credit Agreement.
4.2 PERFECTED FIRST PRIORITY LIENS. The security interests granted
pursuant to this Agreement (a) upon completion of the filings and other actions
specified on SCHEDULE 3 (which, in the case of all filings and other documents
referred to on said Schedule, have been delivered to the Administrative Agent in
completed and duly executed form) will constitute valid perfected security
interests in all of the Collateral in favor of the Administrative Agent, for the
ratable benefit of the Lenders, as collateral security for such Grantor's
Obligations, enforceable in accordance with the terms hereof against all
creditors of such Grantor and any Persons purporting
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to purchase any Collateral from such Grantor and (b) are prior to all other
Liens on the Collateral in existence on the date hereof except as are permitted
by the Credit Agreement and except for unrecorded Liens permitted by the Credit
Agreement which have priority over the Liens on the Collateral by operation of
law.
4.3 CHIEF EXECUTIVE OFFICE. On the date hereof, such Grantor's
jurisdiction of organization and the location of such Grantor's chief executive
office or sole place of business are specified on SCHEDULE 4.
4.4 INVENTORY AND EQUIPMENT. On the date hereof, the Inventory and the
Equipment (other than mobile goods) are kept at the locations listed on
SCHEDULE 5.
4.5 FARM PRODUCTS. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
4.6 INVESTMENT PROPERTY. (a) The shares of Pledged Stock pledged by
such Grantor hereunder constitute all the issued and outstanding shares of all
classes of the Capital Stock of each Issuer owned by such Grantor or, in the
case of Foreign Subsidiary Voting Stock, if less, 66% of the outstanding Foreign
Subsidiary Voting Stock of each relevant Issuer.
(b) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
(c) Each of the Pledged Notes constitutes the legal, valid and binding
obligation of the obligor with respect thereto, enforceable in accordance with
its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(d) Such Grantor is the record and beneficial owner of, and has good
and marketable title to, the Investment Property pledged by it hereunder, free
of any and all Liens or options in favor of, or claims of, any other Person,
except the security interest created by this Agreement.
4.7 RECEIVABLES. (a) No amount payable to such Grantor under or in
connection with any Receivable is evidenced by any Instrument or Chattel Paper
which has not been delivered to the Administrative Agent.
(b) None of the obligors on any Receivables is a Governmental
Authority.
(c) The amounts represented by such Grantor to the Lenders from time
to time as owing to such Grantor in respect of the Receivables will at such
times be accurate.
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12.
4.8 INTELLECTUAL PROPERTY. (a) SCHEDULE 6 lists all Intellectual
Property owned by such Grantor in its own name on the date hereof.
(b) On the date hereof, all material Intellectual Property is valid,
subsisting, unexpired and enforceable, has not been abandoned and does not
infringe the intellectual property rights of any other Person.
(c) Except as set forth in SCHEDULE 6, on the date hereof, none of the
Intellectual Property is the subject of any licensing or franchise agreement
pursuant to which such Grantor is the licensor or franchisor.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question the validity of, or
such Grantor's rights in, any Intellectual Property in any respect that would
reasonably be expected to have a Material Adverse Effect.
(e) No action or proceeding is pending, or, to the knowledge of such
Grantor, threatened, on the date hereof (i) seeking to limit, cancel or question
the validity of any Intellectual Property or such Grantor's ownership interest
therein, or (ii) which, if adversely determined, would have a material adverse
effect on the value of any Intellectual Property.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Administrative Agent and the
Lenders that, from and after the date of this Agreement until the Obligations
shall have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
5.1 DELIVERY OF INSTRUMENTS, CERTIFICATED SECURITIES AND CHATTEL
PAPER. If any amount payable under or in connection with any of the Collateral
in excess of $[500,000] shall be or become evidenced by any Instrument,
Certificated Security or Chattel Paper, such Instrument, Certificated Security
or Chattel Paper shall be immediately delivered to the Administrative Agent,
duly indorsed in a manner satisfactory to the Administrative Agent, to be held
as Collateral pursuant to this Agreement.
5.2 MAINTENANCE OF INSURANCE. (a) Such Grantor will maintain, with
financially sound and reputable companies with A.M. Best ratings of A-III or
better, insurance policies (i) insuring the Inventory and Equipment against loss
by fire, explosion, theft and such other casualties and (ii) insuring such
Grantor, the Administrative Agent and the Lenders against liability for personal
injury and property damage relating to such Inventory and Equipment, in both
cases as is normal and customary for the automotive parts industry and mutually
agreeable to such Grantor and the Administrative Agent whose consent shall not
be unreasonably withheld.
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(b) All such insurance shall (i) provide that no cancellation,
material reduction in amount or material change in coverage thereof shall be
effective until at least 30 days after receipt by the Administrative Agent of
written notice thereof, (ii) name the Administrative Agent as additional loss
payee as its interests may appear and (iii) be reasonably satisfactory in all
other respects to the Administrative Agent.
(c) The Borrower shall deliver to the Administrative Agent and the
Lenders a report of a reputable insurance broker with respect to such insurance
substantially concurrently with each delivery of the Borrower's audited annual
financial statements and such supplemental reports with respect thereto as the
Administrative Agent may from time to time reasonably request.
5.3 PAYMENT OF OBLIGATIONS. Such Grantor will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all taxes, assessments and governmental charges or levies imposed
upon the Collateral or in respect of income or profits therefrom, as well as all
claims of any kind (including, without limitation, claims for labor, materials
and supplies) against or with respect to the Collateral, except that no such
charge need be paid if the amount or validity thereof is currently being
contested in good faith by appropriate proceedings, reserves in conformity with
GAAP with respect thereto have been provided on the books of such Grantor and
such proceedings would not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any interest
therein.
5.4 MAINTENANCE OF PERFECTED SECURITY INTEREST; FURTHER DOCUMENTATION.
(a) Such Grantor shall maintain the security interest created by this Agreement
as a perfected security interest having at least the priority described in
Section 4.2 and shall defend such security interest against the claims and
demands of all Persons whomsoever.
(b) Such Grantor will furnish to the Administrative Agent and the
Lenders from time to time statements and schedules further identifying and
describing the assets and property of such Grantor and such other reports in
connection therewith as the Administrative Agent may reasonably request, all in
reasonable detail.
(c) At any time and from time to time, upon the written request of the
Administrative Agent, and at the sole expense of such Grantor, such Grantor will
promptly and duly execute and deliver, and have recorded, such further
instruments and documents and take such further actions as the Administrative
Agent may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including, without limitation, (i) filing any financing or continuation
statements under the Uniform Commercial Code (or other similar laws) in effect
in any jurisdiction with respect to the security interests created hereby and
(ii) in the case of Investment Property, Deposit Accounts and any other relevant
Collateral, taking any actions necessary to enable the Administrative Agent to
obtain "control" (within the meaning of the applicable Uniform Commercial Code)
with respect thereto.
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5.5 CHANGES IN LOCATIONS, NAME, ETC. Such Grantor will not, except
upon 15 days' prior written notice to the Administrative Agent and delivery to
the Administrative Agent of (a) all additional executed financing statements and
other documents reasonably requested by the Administrative Agent to maintain the
validity, perfection and priority of the security interests provided for herein
and (b) if applicable, a written supplement to SCHEDULE 5 showing any additional
location at which Inventory or Equipment shall be kept:
(i) permit any of the Inventory or Equipment to be kept at a location
other than those listed on SCHEDULE 5 with a value in excess of $[100,000];
(ii) change its jurisdiction of organization or the location of its
chief executive office or sole place of business from that referred to in
Section 4.3; or
(iii) change its name, identity or corporate structure to such an
extent that any financing statement filed by the Administrative Agent in
connection with this Agreement would become misleading.
5.6 NOTICES. Such Grantor will advise the Administrative Agent and the
Lenders promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or Liens
permitted under the Credit Agreement) on any of the Collateral which would
adversely affect the ability of the Administrative Agent to exercise any of its
remedies hereunder; and
(b) of the occurrence of any other event which would reasonably be
expected to have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereby.
5.7 INVESTMENT PROPERTY. (a) If such Grantor shall become entitled to
receive or shall receive any stock certificate (including, without limitation,
any certificate representing a stock dividend or a distribution in connection
with any reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights in respect of
the Capital Stock of any Issuer, whether in addition to, in substitution of, as
a conversion of, or in exchange for, any shares of the Pledged Stock, or
otherwise in respect thereof, such Grantor shall accept the same as the agent of
the Administrative Agent and the Lenders, hold the same in trust for the
Administrative Agent and the Lenders and deliver the same forthwith to the
Administrative Agent in the exact form received, duly indorsed by such Grantor
to the Administrative Agent, if required, together with an undated stock power
covering such certificate duly executed in blank by such Grantor and with, if
the Administrative Agent so requests, signature guaranteed, to be held by the
Administrative Agent, subject to the terms hereof, as additional collateral
security for the Obligations. Except as otherwise provided in the Credit
Agreement, any sums paid upon or in respect of the Investment Property upon the
liquidation or dissolution of any Issuer shall be paid over to the
Administrative Agent to be held by it hereunder as additional collateral
security for the Obligations, and in case any distribution of capital shall be
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made on or in respect of the Investment Property or any property shall be
distributed upon or with respect to the Investment Property pursuant to the
recapitalization or reclassification of the capital of any Issuer or pursuant to
the reorganization thereof, the property so distributed shall, unless otherwise
subject to a perfected security interest in favor of the Administrative Agent,
be delivered to the Administrative Agent to be held by it hereunder as
additional collateral security for the Obligations. If any sums of money or
property so paid or distributed in respect of the Investment Property shall be
received by such Grantor, such Grantor shall, until such money or property is
paid or delivered to the Administrative Agent, hold such money or property in
trust for the Lenders, segregated from other funds of such Grantor, as
additional collateral security for the Obligations.
(b) Without the prior written consent of the Administrative Agent,
such Grantor will not (i) vote to enable, or take any other action to permit,
any Issuer to issue any stock or other equity securities of any nature or to
issue any other securities convertible into or granting the right to purchase or
exchange for any stock or other equity securities of any nature of any Issuer,
(ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any
option with respect to, the Investment Property or Proceeds thereof (except
pursuant to a transaction expressly permitted by the Credit Agreement), (iii)
create, incur or permit to exist any Lien or option in favor of, or any claim of
any Person with respect to, any of the Investment Property or Proceeds thereof,
or any interest therein, except for the security interests created by this
Agreement or (iv) enter into any agreement or undertaking restricting the right
or ability of such Grantor or the Administrative Agent to sell, assign or
transfer any of the Investment Property or Proceeds thereof.
(c) In the case of each Grantor which is an Issuer, such Issuer agrees
that (i) it will be bound by the terms of this Agreement relating to the
Investment Property issued by it and will comply with such terms insofar as such
terms are applicable to it, (ii) it will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described in Section
5.7(a) with respect to the Investment Property issued by it and (iii) the terms
of Sections 6.3(c) and 6.7 shall apply to it, MUTATIS MUTANDIS, with respect to
all actions that may be required of it pursuant to Section 6.3(c) or 6.7 with
respect to the Investment Property issued by it.
5.8 RECEIVABLES. (a) Other than in the ordinary course of business
consistent with its past practice, such Grantor will not (i) grant any extension
of the time of payment of any Receivable, (ii) compromise or settle any
Receivable for less than the full amount thereof, (iii) release, wholly or
partially, any Person liable for the payment of any Receivable, (iv) allow any
credit or discount whatsoever on any Receivable or (v) amend, supplement or
modify any Receivable in any manner that could adversely affect the value
thereof.
(b) Such Grantor will deliver to the Administrative Agent a copy of
each material demand, notice or document received by it that questions or calls
into doubt the validity or enforceability of more than 5% of the aggregate
amount of the then outstanding Receivables.
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5.9 INTELLECTUAL PROPERTY. (a) Such Grantor (either itself or through
licensees) will (i) continue to use each material Trademark on each and every
trademark class of goods applicable to its current line as reflected in its
current catalogs, brochures and price lists in order to maintain such Trademark
in full force free from any claim of abandonment for non-use, (ii) maintain as
in the past the quality of products and services offered under such Trademark,
(iii) use such Trademark with the appropriate notice of registration and all
other notices and legends required by applicable Requirements of Law, (iv) not
adopt or use any mark which is confusingly similar or a colorable imitation of
such Trademark unless the Administrative Agent, for the ratable benefit of the
Lenders, shall obtain a perfected security interest in such mark pursuant to
this Agreement, and (v) not (and not permit any licensee or sublicensee thereof
to) do any act or knowingly omit to do any act whereby such Trademark may become
invalidated or impaired in any way.
(b) Such Grantor (either itself or through licensees) will not do any
act, or omit to do any act, whereby any material Patent may become forfeited,
abandoned or dedicated to the public.
(c) Such Grantor (either itself or through licensees) (i) will employ
each material Copyright and (ii) will not (and will not permit any licensee or
sublicensee thereof to) do any act or knowingly omit to do any act whereby any
material portion of the Copyrights may become invalidated or otherwise impaired.
Such Grantor will not (either itself or through licensees) do any act whereby
any material portion of the Copyrights may fall into the public domain.
(d) Such Grantor (either itself or through licensees) will not do any
act that knowingly uses any material Intellectual Property to infringe the
intellectual property rights of any other Person.
(e) Such Grantor will notify the Administrative Agent and the Lenders
immediately if it knows, or has reason to know, that any application or
registration relating to any material Intellectual Property may become
forfeited, abandoned or dedicated to the public, or of any adverse determination
or development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office, the United States Copyright Office or any court or tribunal in
any country) regarding such Grantor's ownership of, or the validity of, any
material Intellectual Property or such Grantor's right to register the same or
to own and maintain the same.
(f) Whenever such Grantor, either by itself or through any agent,
employee, licensee or designee, shall file an application for the registration
of any Intellectual Property with the United States Patent and Trademark Office,
the United States Copyright Office or any similar office or agency in any other
country or any political subdivision thereof, such Grantor shall report such
filing to the Administrative Agent within five Business Days after the last day
of the fiscal quarter in which such filing occurs. Upon request of the
Administrative Agent, such Grantor shall execute and deliver, and have recorded,
any and all agreements, instruments, documents, and papers as the Administrative
Agent may request to evidence the Administrative
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Agent's and the Lenders' security interest in any Copyright, Patent or Trademark
and the goodwill and general intangibles of such Grantor relating thereto or
represented thereby.
(g) Such Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
andTrademark Office, the United States Copyright Office or any similar office or
agency in any other country or any political subdivision thereof, to maintain
and pursue each application (and to obtain the relevant registration) and to
maintain each registration of the material Intellectual Property, including,
without limitation, filing of applications for renewal, affidavits of use and
affidavits of incontestability.
(h) In the event that any material Intellectual Property is infringed,
misappropriated or diluted by a third party, such Grantor shall (i) take such
actions as such Grantor shall reasonably deem appropriate under the
circumstances to protect such Intellectual Property and (ii) if such
Intellectual Property is of material economic value, promptly notify the
Administrative Agent after it learns thereof and sue for infringement,
misappropriation or dilution, to seek injunctive relief where appropriate and to
recover any and all damages for such infringement, misappropriation or dilution.
SECTION 6. REMEDIAL PROVISIONS
6.1 CERTAIN MATTERS RELATING TO RECEIVABLES. (a) The Administrative
Agent shall have the right to make test verifications of the Receivables in any
manner and through any medium that it reasonably considers advisable, and each
Grantor shall furnish all such assistance and information as the Administrative
Agent may require in connection with such test verifications after the
occurrence of a default or an Event of Default. At any time and from time to
time, upon the Administrative Agent's request and at the expense of the relevant
Grantor, such Grantor shall cause independent public accountants or others
satisfactory to the Administrative Agent to furnish to the Administrative Agent
reports showing reconciliations, aging and test verifications of, and trial
balances for, the Receivables.
(b) The Administrative Agent hereby authorizes each Grantor to collect
such Grantor's Receivables, subject to the Administrative Agent's direction and
control, and the Administrative Agent may curtail or terminate said authority at
any time after the occurrence and during the continuance of an Event of Default.
If required by the Administrative Agent at any time after the occurrence and
during the continuance of an Event of Default, any payments of Receivables, when
collected by any Grantor, (i) shall be forthwith (and, in any event, within two
Business Days) deposited by such Grantor in the exact form received, duly
indorsed by such Grantor to the Administrative Agent if required, in a
Collateral Account maintained under the sole dominion and control of the
Administrative Agent, subject to withdrawal by the Administrative Agent for the
account of the Lenders only as provided in Section 6.5, and (ii) until so turned
over, shall be held by such Grantor in trust for the Administrative Agent and
the Lenders, segregated from other funds of such Grantor. Each such deposit of
Proceeds of
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Receivables shall be accompanied by a report identifying in reasonable detail
the nature and source of the payments included in the deposit.
(c) At the Administrative Agent's request, each Grantor shall deliver
to the Administrative Agent all original and other documents evidencing, and
relating to, the agreements and transactions which gave rise to the Receivables,
including, without limitation, all original orders, invoices and shipping
receipts.
6.2 COMMUNICATIONS WITH OBLIGORS; GRANTORS REMAIN LIABLE. (a) The
Administrative Agent in its own name or in the name of others may at any time
after the occurrence and during the continuance of an Event of Default
communicate with obligors under the Receivables and parties to any material
contract of any Grantor to verify with them to the Administrative Agent's
satisfaction the existence, amount and terms of any Receivables or any material
contract of any Grantor.
(b) Upon the request of the Administrative Agent at any time after the
occurrence and during the continuance of an Event of Default, each Grantor shall
notify obligors on the Receivables and parties to any material contract of any
Grantor that the Receivables and such contracts have been assigned to the
Administrative Agent for the ratable benefit of the Lenders and that payments in
respect thereof shall be made directly to the Administrative Agent.
(c) Anything herein to the contrary notwithstanding, each Grantor
shall remain liable under each of the Receivables and material contracts of any
Grantor to observe and perform all the conditions and obligations to be observed
and performed by it thereunder, all in accordance with the terms of any
agreement giving rise thereto. Neither the Administrative Agent nor any Lender
shall have any obligation or liability under any Receivable (or any agreement
giving rise thereto) or any contract of any Grantor by reason of or arising out
of this Agreement or the receipt by the Administrative Agent or any Lender of
any payment relating thereto, nor shall the Administrative Agent or any Lender
be obligated in any manner to perform any of the obligations of any Grantor
under or pursuant to any Receivable (or any agreement giving rise thereto) or
any contract of any Grantor, to make any payment, to make any inquiry as to the
nature or the sufficiency of any payment received by it or as to the sufficiency
of any performance by any party thereunder, to present or file any claim, to
take any action to enforce any performance or to collect the payment of any
amounts which may have been assigned to it or to which it may be entitled at any
time or times.
6.3 PLEDGED STOCK. (a) Unless an Event of Default shall have occurred
and be continuing and the Administrative Agent shall have given notice to the
relevant Grantor of the Administrative Agent's intent to exercise its
corresponding rights pursuant to Section 6.3(b), each Grantor shall be permitted
to receive all cash dividends paid in respect of the Pledged Stock and all
payments made in respect of the Pledged Notes, in each case paid in the normal
course of business of the relevant Issuer and consistent with past practice, to
the extent permitted in the Credit Agreement, and to exercise all voting and
corporate rights with respect to the Investment Property; PROVIDED, HOWEVER,
that no vote shall be cast or corporate right exercised or other
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action taken which, in the Administrative Agent's reasonable judgment, would
impair the Collateral or which would be inconsistent with or result in any
violation of any provision of the Credit Agreement, this Agreement or any
other Loan Document.
(b) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
the relevant Grantor or Grantors, (i) the Administrative Agent shall have the
right to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Investment Property and make application thereof to the
Obligations in such order as the Administrative Agent may determine, and (ii)
any or all of the Investment Property shall be registered in the name of the
Administrative Agent or its nominee, and the Administrative Agent or its nominee
may thereafter exercise (x) all voting, corporate and other rights pertaining to
such Investment Property at any meeting of shareholders of the relevant Issuer
or Issuers or otherwise and (y) any and all rights of conversion, exchange and
subscription and any other rights, privileges or options pertaining to such
Investment Property as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the
Investment Property upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of any
Issuer, or upon the exercise by any Grantor or the Administrative Agent of any
right, privilege or option pertaining to such Investment Property, and in
connection therewith, the right to deposit and deliver any and all of the
Investment Property with any committee, depository, transfer agent, registrar or
other designated agency upon such terms and conditions as the Administrative
Agent may determine), all without liability except to account for property
actually received by it, but the Administrative Agent shall have no duty to any
Grantor to exercise any such right, privilege or option and shall not be
responsible for any failure to do so or delay in so doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of any
Investment Property pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the Administrative Agent in writing that
(x) states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Investment Property directly to the Administrative Agent.
6.4 PROCEEDS TO BE TURNED OVER TO ADMINISTRATIVE AGENT. In addition to
the rights of the Administrative Agent and the Lenders specified in Section 6.1
with respect to payments of Receivables, if an Event of Default shall occur and
be continuing, all Proceeds received by any Grantor consisting of cash, checks
and other near-cash items shall be held by such Grantor in trust for the
Administrative Agent and the Lenders, segregated from other funds of such
Grantor, and shall, forthwith upon receipt by such Grantor, be turned over to
the Administrative Agent in the exact form received by such Grantor (duly
indorsed by such Grantor to the Administrative Agent, if required). All Proceeds
received by the Administrative Agent hereunder shall be held by the
Administrative Agent in a Collateral Account maintained under its sole dominion
and control. All Proceeds while held by the Administrative Agent in a
Collateral
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Account (or by such Grantor in trust for the Administrative Agent and the
Lenders) shall continue to be held as collateral security for all the
Obligations and shall not constitute payment thereof until applied as provided
in Section 6.5.
6.5 APPLICATION OF PROCEEDS. At such intervals as may be agreed upon
by the Borrower and the Administrative Agent, or, if an Event of Default shall
have occurred and be continuing, at any time at the Administrative Agent's
election, the Administrative Agent may apply all or any part of Proceeds held in
any Collateral Account in payment of the Obligations in such order as the
Administrative Agent may elect, and any part of such funds which the
Administrative Agent elects not so to apply and deems not required as collateral
security for the Obligations shall be paid over from time to time by the
Administrative Agent to the Borrower or to whomsoever may be lawfully entitled
to receive the same. Any balance of such Proceeds remaining after the
Obligations shall have been paid in full, no Letters of Credit shall be
outstanding and the Commitments shall have terminated shall be paid over to the
Borrower or to whomsoever may be lawfully entitled to receive the same.
6.6 CODE AND OTHER REMEDIES. If an Event of Default shall occur and be
continuing, the Administrative Agent, on behalf of the Lenders, may exercise, in
addition to all other rights and remedies granted to them in this Agreement and
in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the New York UCC
or any other applicable law. Without limiting the generality of the foregoing,
the Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon any Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Administrative Agent or any Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Administrative Agent or any Lender shall have
the right upon any such public sale or sales, and, to the extent permitted by
law, upon any such private sale or sales, to purchase the whole or any part of
the Collateral so sold, free of any right or equity of redemption in any
Grantor, which right or equity is hereby waived and released. Each Grantor
further agrees, at the Administrative Agent's request, to assemble the
Collateral and make it available to the Administrative Agent at places which the
Administrative Agent shall reasonably select, whether at such Grantor's premises
or elsewhere. The Administrative Agent shall apply the net proceeds of any
action taken by it pursuant to this Section 6.6, after deducting all reasonable
costs and expenses of every kind incurred in connection therewith or incidental
to the care or safekeeping of any of the Collateral or in any way relating to
the Collateral or the rights of the Administrative Agent and the Lenders
hereunder, including, without limitation, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Obligations, in such
order as the Administrative Agent may elect, and only after such application
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and after the payment by the Administrative Agent of any other amount required
by any provision of law, including, without limitation, Section 9-504(1)(c) of
the New York UCC, need the Administrative Agent account for the surplus, if any,
to any Grantor. To the extent permitted by applicable law, each Grantor waives
all claims, damages and demands it may acquire against the Administrative Agent
or any Lender arising out of the exercise by them of any rights hereunder. If
any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given
at least 10 days before such sale or other disposition.
6.7 REGISTRATION RIGHTS. (a) If the Administrative Agent shall
determine to exercise its right to sell any or all of the Pledged Stock pursuant
to Section 6.6, and if in the opinion of the Administrative Agent it is
necessary or advisable to have the Pledged Stock, or that portion thereof to be
sold, registered under the provisions of the Securities Act, the relevant
Grantor will cause the Issuer thereof to (i) execute and deliver, and cause the
directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as may
be, in the opinion of the Administrative Agent, necessary or advisable to
register the Pledged Stock, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its best efforts to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering of
the Pledged Stock, or that portion thereof to be sold, and (iii) make all
amendments thereto and/or to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. Each Grantor agrees to
cause such Issuer to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions which the Administrative Agent shall designate
and to make available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy the provisions
of Section 11(a) of the Securities Act.
(b) Each Grantor recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the Issuer thereof to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) Each Grantor agrees to use its best efforts to do or cause to be
done all such other acts as may be necessary to make such sale or sales of all
or any portion of the Pledged
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Stock pursuant to this Section 6.7 valid and binding and in compliance with any
and all other applicable Requirements of Law. Each Grantor further agrees that a
breach of any of the covenants contained in this Section 6.7 will cause
irreparable injury to the Administrative Agent and the Lenders, that the
Administrative Agent and the Lenders have no adequate remedy at law in respect
of such breach and, as a consequence, that each and every covenant contained in
this Section 6.7 shall be specifically enforceable against such Grantor, and
such Grantor hereby waives and agrees not to assert any defenses against an
action for specific performance of such covenants except for a defense that no
Event of Default has occurred under the Credit Agreement.
6.8 WAIVER; DEFICIENCY. Each Grantor waives and agrees not to assert
any rights or privileges which it may acquire under Section 9-112 of the New
York UCC. Each Grantor shall remain liable for any deficiency if the proceeds of
any sale or other disposition of the Collateral are insufficient to pay its
Obligations and the reasonable fees and disbursements of any attorneys employed
by the Administrative Agent or any Lender to collect such deficiency.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 ADMINISTRATIVE AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT, ETC. (a)
Each Grantor hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of such Grantor and in the name of such Grantor or in its
own name, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Agreement, and, without limiting the generality of the foregoing, each
Grantor hereby gives the Administrative Agent the power and right, on behalf of
such Grantor, without notice to or assent by such Grantor, to do any or all of
the following:
(i) in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
Receivable or any material contract of any Grantor or with respect to any
other Collateral and file any claim or take any other action or proceeding
in any court of law or equity or otherwise deemed appropriate by the
Administrative Agent for the purpose of collecting any and all such moneys
due under any Receivable or any material contract of any Grantor or with
respect to any other Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and deliver,
and have recorded, any and all agreements, instruments, documents and
papers as the Administrative Agent may request to evidence the
Administrative Agent's and the Lenders' security interest in such
Intellectual Property and the goodwill and general intangibles of such
Grantor relating thereto or represented thereby;
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(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of the
premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in Section 6.6
or 6.7, any indorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Administrative Agent or as the Administrative
Agent shall direct; (2) ask or demand for, collect, and receive payment of
and receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral;
(3) sign and indorse any invoices, freight or express bills, bills of
lading, storage or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with any of the
Collateral; (4) commence and prosecute any suits, actions or proceedings at
law or in equity in any court of competent jurisdiction to collect the
Collateral or any portion thereof and to enforce any other right in respect
of any Collateral; (5) defend any suit, action or proceeding brought
against such Grantor with respect to any Collateral; (6) settle, compromise
or adjust any such suit, action or proceeding and, in connection therewith,
give such discharges or releases as the Administrative Agent may deem
appropriate; (7) assign any Copyright, Patent or Trademark (along with the
goodwill of the business to which any such Copyright, Patent or Trademark
pertains), throughout the world for such term or terms, on such conditions,
and in such manner, as the Administrative Agent shall in its sole
discretion determine; and (8) generally, sell, transfer, pledge and make
any agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though the Administrative Agent were the
absolute owner thereof for all purposes, and do, at the Administrative
Agent's option and such Grantor's expense, at any time, or from time to
time, all acts and things which the Administrative Agent deems necessary to
protect, preserve or realize upon the Collateral and the Administrative
Agent's and the Lenders' security interests therein and to effect the
intent of this Agreement, all as fully and effectively as such Grantor
might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the
Administrative Agent agrees that it will not exercise any rights under the power
of attorney provided for in this Section 7.1(a) unless an Event of Default shall
have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in connection
with actions undertaken as provided in this Section 7.1, together with interest
thereon at a rate per annum
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equal to the highest rate per annum at which interest would then be payable on
any category of past due ABR Loans under the Credit Agreement, from the date of
payment by the Administrative Agent to the date reimbursed by the relevant
Grantor, shall be payable by such Grantor to the Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
7.2 DUTY OF ADMINISTRATIVE AGENT. The Administrative Agent's sole duty
with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, any Lender nor any of their respective officers,
directors, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Administrative Agent and the Lenders hereunder are solely to
protect the Administrative Agent's and the Lenders' interests in the Collateral
and shall not impose any duty upon the Administrative Agent or any Lender to
exercise any such powers. The Administrative Agent and the Lenders shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to any Grantor for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct.
7.3 EXECUTION OF FINANCING STATEMENTS. Pursuant to Section 9-402 of
the New York UCC and any other applicable law, each Grantor authorizes the
Administrative Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the
signature of such Grantor in such form and in such offices as the Administrative
Agent determines appropriate to perfect the security interests of the
Administrative Agent under this Agreement. A photographic or other reproduction
of this Agreement shall be sufficient as a financing statement or other filing
or recording document or instrument for filing or recording in any jurisdiction.
7.4 AUTHORITY OF ADMINISTRATIVE AGENT. Each Grantor acknowledges that
the rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Administrative Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Grantors, the Administrative Agent shall be
conclusively presumed to be acting as agent for the
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25.
Lenders with full and valid authority so to act or refrain from acting, and no
Grantor shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.
SECTION 8. MISCELLANEOUS
8.1 AMENDMENTS IN WRITING. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with subsection 10.1 of the Credit Agreement.
8.2 NOTICES. All notices, requests and demands to or upon the
Administrative Agent or any Grantor hereunder shall be effected in the manner
provided for in subsection 10.2 of the Credit Agreement; PROVIDED that any such
notice, request or demand to or upon any Guarantor shall be addressed to such
Guarantor at its notice address set forth on SCHEDULE 1.
8.3 NO WAIVER BY COURSE OF CONDUCT; CUMULATIVE REMEDIES. Neither the
Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 8.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Administrative Agent or any Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
8.4 ENFORCEMENT EXPENSES; INDEMNIFICATION. (a) Each Guarantor agrees
to pay or reimburse each Lender and the Administrative Agent for all its costs
and expenses incurred in collecting against such Guarantor under the guarantee
contained in Section 2 or otherwise enforcing or preserving any rights under
this Agreement and the other Loan Documents to which such Guarantor is a party,
including, without limitation, the reasonable fees and disbursements of counsel
(including the allocated fees and expenses of in-house counsel) to each Lender
and of counsel to the Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the Administrative Agent
and the Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions contemplated by
this Agreement.
287
26.
(c) Each Guarantor agrees to pay, and to save the Administrative Agent
and the Lenders harmless from, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement to the extent the
Borrower would be required to do so pursuant to subsection 10.5 of the Credit
Agreement.
(d) The agreements in this Section 8.4 shall survive repayment of the
Obligations and all other amounts payable under the Credit Agreement and the
other Loan Documents.
8.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns; PROVIDED
that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent.
8.6 SET-OFF. Each Grantor hereby irrevocably authorizes the
Administrative Agent and each Lender at any time and from time to time while an
Event of Default pursuant to subsection 8(a) of the Credit Agreement shall have
occurred and be continuing, without notice to such Grantor or any other Grantor,
any such notice being expressly waived by each Grantor, to set-off and
appropriate and apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the
Administrative Agent or such Lender to or for the credit or the account of such
Grantor, or any part thereof in such amounts as the Administrative Agent or such
Lender may elect, against and on account of the obligations and liabilities of
such Grantor to the Administrative Agent or such Lender hereunder and claims of
every nature and description of the Administrative Agent or such Lender against
such Grantor, in any currency, whether arising hereunder, under the Credit
Agreement, any other Loan Document or otherwise, as the Administrative Agent or
such Lender may elect, whether or not the Administrative Agent or any Lender has
made any demand for payment and although such obligations, liabilities and
claims may be contingent or unmatured. The Administrative Agent and each Lender
shall notify such Grantor promptly of any such set-off and the application made
by the Administrative Agent or such Lender of the proceeds thereof, PROVIDED
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of the Administrative Agent and each Lender
under this Section 8.6 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which the Administrative Agent or
such Lender may have.
8.7 COUNTERPARTS. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
8.8 SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such
288
27.
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
8.9 SECTION HEADINGS. The Section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
8.10 INTEGRATION. This Agreement and the other Loan Documents
represent the agreement of the Grantors, the Administrative Agent and the
Lenders with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof and thereof not expressly
set forth or referred to herein or in the other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12 SUBMISSION TO JURISDICTION; WAIVERS. Each Grantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to such Grantor at its
address referred to in Section 8.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction; and
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28.
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
8.13 ACKNOWLEDGEMENTS. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a party;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to any Grantor arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Grantors, on the one hand, and the Administrative Agent and Lenders, on the
other hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Grantors and the Lenders.
8.14 ADDITIONAL GRANTORS. Each Subsidiary of the Borrower that is
required to become a party to this Agreement pursuant to subsection 6.10 of the
Credit Agreement shall become a Grantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of an Assumption Agreement in the form
of Annex 1 hereto.
8.15 RELEASES. (a) At such time as the Loans, the Reimbursement
Obligations and the other Obligations shall have been paid in full, the
Commitments have been terminated and no Letters of Credit shall be outstanding,
the Collateral shall be released from the Liens created hereby, and this
Agreement and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Grantor hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights to the Collateral shall revert to the Grantors. At the
request and sole expense of any Grantor following any such termination, the
Administrative Agent shall deliver to such Grantor any Collateral held by the
Administrative Agent hereunder, and execute and deliver to such Grantor such
documents as such Grantor shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by any Grantor in a transaction permitted by the Credit Agreement,
then the Administrative Agent, at the request and sole expense of such Grantor,
shall execute and deliver to such Grantor all releases or other documents
reasonably necessary or desirable for the release of the Liens created hereby on
such Collateral. At the request and sole expense of the Borrower, a Subsidiary
Guarantor shall be released from its obligations hereunder in the event that all
the Capital Stock of such Subsidiary Guarantor shall be sold, transferred or
otherwise disposed of in a transaction permitted by the Credit Agreement;
PROVIDED that the Borrower shall have delivered to the Administrative Agent, at
least ten Business Days prior to the date of the proposed release, a
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29.
written request for release identifying the relevant Subsidiary Guarantor and
the terms of the sale or other disposition in reasonable detail, including the
price thereof and any expenses in connection therewith, together with a
certification by the Borrower stating that such transaction is in compliance
with the Credit Agreement and the other Loan Documents.
8.16 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
291
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
and Collateral Agreement to be duly executed and delivered as of the date first
above written.
TENNECO INC.
By:_____________________________
Name:
Title:
TENNECO AUTOMOTIVE INC.
By:_____________________________
Name:
Title:
[OTHER GRANTORS]
292
SCHEDULE 1
NOTICE ADDRESSES OF GUARANTORS
293
SCHEDULE 2
DESCRIPTION OF INVESTMENT PROPERTY
PLEDGED STOCK:
ISSUER CLASS OF STOCK STOCK CERTIFICATE NO. NO. OF SHARES
------ -------------- --------------------- -------------
PLEDGED NOTES:
ISSUER PAYEE PRINCIPAL AMOUNT
------ ----- ----------------
294
SCHEDULE 3
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
UNIFORM COMMERCIAL CODE FILINGS
[List each office where a financing statement is to be filed]*
PATENT AND TRADEMARK FILINGS
[List all filings]
ACTIONS WITH RESPECT TO PLEDGED STOCK**
OTHER ACTIONS
[Describe other actions to be taken]
--------
* Note that perfection of security interests in patents and trademarks
requires filings under the UCC in the jurisdictions where filings would
be made for general intangibles, as well as filings in the U.S
Copyright Office and the U.S. Patent & Trademark Office.
** If the interest of a Grantor in Pledged Stock appears on the books of a
financial intermediary, a control agreement as described in Section
8-106 of the New York UCC will be required.
295
SCHEDULE 4
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
GRANTOR LOCATION
296
SCHEDULE 5
LOCATION OF INVENTORY AND EQUIPMENT
GRANTOR LOCATION
297
SCHEDULE 6
COPYRIGHTS AND COPYRIGHT LICENSES
PATENTS AND PATENT LICENSES
TRADEMARKS AND TRADEMARK LICENSES
298
Annex 1 to
GUARANTEE AND COLLATERAL AGREEMENT
ASSUMPTION AGREEMENT, dated as of ______________, ____, made by
______________________________, a ______________ corporation (the "ADDITIONAL
GRANTOR"), in favor of THE CHASE MANHATTAN BANK, as administrative agent (in
such capacity, the "ADMINISTRATIVE AGENT") for the banks and other financial
institutions (the "LENDERS") parties to the Credit Agreement referred to below.
All capitalized terms not defined herein shall have the meaning ascribed to them
in such Credit Agreement.
W I T N E S S E T H :
WHEREAS, Tenneco Inc. (the "BORROWER"), the Lenders, Commerzbank and
Bank of America, as Co-Documentation Agents, Citibank, as Syndication Agent, and
the Administrative Agent have entered into the Credit Agreement, dated as of
September __, 1999 (as amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT");
WHEREAS, in connection with the Credit Agreement, the Borrower and
certain of its Affiliates (other than the Additional Grantor) have entered into
the Guarantee and Collateral Agreement, dated as of _______________, 1999 (as
amended, supplemented or otherwise modified from time to time, the "GUARANTEE
AND COLLATERAL AGREEMENT") in favor of the Administrative Agent for the benefit
of the Lenders;
WHEREAS, the Credit Agreement requires the Additional Grantor to
become a party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver this
Assumption Agreement in order to become a party to the Guarantee and Collateral
Agreement;
NOW, THEREFORE, IT IS AGREED:
1. GUARANTEE AND COLLATERAL AGREEMENT. By executing and delivering
this Assumption Agreement, the Additional Grantor, as provided in Section 8.14
of the Guarantee and Collateral Agreement, hereby becomes a party to the
Guarantee and Collateral Agreement as a Grantor thereunder with the same force
and effect as if originally named therein as a Grantor and, without limiting the
generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Grantor thereunder. The information set forth in Annex 1-A
hereto is hereby added to the information set forth in the Schedules to the
Guarantee and Collateral Agreement. The Additional Grantor hereby represents and
warrants that each of the representations and warranties contained in Section 4
of the Guarantee and Collateral Agreement is true and correct on and as the date
hereof (after giving effect to this Assumption Agreement) as if made on and as
of such date.
299
2.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By: _______________________________________
Name:
Title:
300
Annex 1-A to
ASSUMPTION AGREEMENT
SUPPLEMENT TO SCHEDULE 1
SUPPLEMENT TO SCHEDULE 2
SUPPLEMENT TO SCHEDULE 3
SUPPLEMENT TO SCHEDULE 4
SUPPLEMENT TO SCHEDULE 5
SUPPLEMENT TO SCHEDULE 6
301
EXHIBIT B
TO THE CREDIT AGREEMENT
FORM OF
COMPLIANCE CERTIFICATE
[For the Fiscal Quarter ending____________]
[For the Fiscal Year ending____________]
Pursuant to Section 6.2(b) of the Credit Agreement, dated as of
September 30, 1999 (as amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT"; terms defined therein being used herein as therein
defined unless otherwise defined), among TENNECO INC., the lenders parties
thereto (the "LENDERS"), the Syndication Agent and the Co-Documentation Agents
parties thereto and THE CHASE MANHATTAN BANK, as Administrative Agent, the
undersigned, duly elected, qualified and acting Responsible Officer of the
Borrower hereby certifies that, to the best of such Responsible Officer's
knowledge:
(a) The Borrower and each other Loan Party has, during the period or
periods referred to above, observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in the Credit Agreement and
the other Loan Documents to which it is a party to be observed, performed or
satisfied by it on or before the date hereof, and as of the date hereof such
Responsible Officer has obtained no knowledge of any Default or Event of Default
except as follows: _______________________________
(b) The financial statements referred to in Section 6.1 of the Credit
Agreement which have been delivered prior to or which are delivered concurrently
with the delivery of this Compliance Certificate fairly present in all material
respects the consolidated financial position of the Borrower and its
consolidated Subsidiaries as at the date of such financial statements, and the
consolidated results of their operations and their consolidated cash flows for
the fiscal quarter then ended (subject to normal year-end audit adjustments in
the case of quarterly financial statements). Such financial statements have been
prepared in accordance with GAAP applied consistently throughout the period
involved and with prior periods (except as approved by a Responsible Officer and
disclosed therein).
(c) The covenants as listed and calculated below are based on the
financial statements referred to in Section 6.1 of the Credit Agreement which
are delivered concurrently with the delivery of this Compliance Certificate.
302
2.
1. CONSOLIDATED LEVERAGE RATIO* (SECTION 7.1(A))
The ratio of
(i) Consolidated Total Debt* as of such day $__________
to
(ii) Consolidated EBITDA for the period of four
consecutive fiscal quarters* $__________
Ratio: __________
(must not be greater than [see appropriate period
in Section 7.1(a)]) __________
2. CONSOLIDATED INTEREST COVERAGE RATIO* (SECTION 7.1(b))
The ratio of
(i) Consolidated EBITDA* for the period of four
consecutive fiscal quarters $__________
to
(ii) Consolidated Interest Expense* for such period $__________
Ratio: __________
(must not be less than [see appropriate period
in Section 7.1(b)]) __________
3. CONSOLIDATED FIXED CHARGE COVERAGE RATIO* (SECTION 7.1(c))
The ratio of
(i) Consolidated EBITDA* for the period of four
consecutive fiscal quarters $__________
less
(ii) Aggregate actual payment on account of Capital
Expenditures during such period $__________
to
___________________
* See Schedule 1 for calculations.
303
3.
(iii) Consolidated Interest Expense* for such period $__________
Ratio: __________
(must not be less than [see appropriate period in
Section 7.1(c)]) __________
4. LIMITATION ON INDEBTEDNESS (SECTION 7.2)
(a) Aggregate amount of Guarantee Obligations incurred
in the ordinary course of business by the Borrower
and its Subsidiaries of obligations of any
Subsidiary not otherwise permitted under the
Credit Agreement in an aggregate amount not to
exceed $50,000,000 $__________
(b) Aggregate amount of Indebtedness of the Borrower
and its Subsidiaries outstanding as of such date
as permitted by Section 7.2(d) of the Credit
Agreement $__________
(c) Aggregate amount of Indebtedness of the Borrower
and its Subsidiaries, including Capital Lease
Obligations, permitted by Section 7.2(e) of the
Credit Agreement, in an amount not to exceed
$75,000,000 $__________
(d) Aggregate amount of Indebtedness of the Borrower
in respect of the Senior Subordinated Notes
permitted by Section 7.2(f) of the Credit
Agreement, in an amount not to exceed $750,000,000 $__________
(e) Aggregate amount of Indebtedness of Foreign
Subsidiaries under lines of credit in an amount
not to exceed the local currency equivalent of
$100,000,000 $__________
(f) Aggregate amount of additional Indebtedness of the
Borrower or any of its Subsidiaries in an
aggregate principal amount not to exceed
$50,000,000 $__________
5. DISPOSITIONS OF PROPERTY (SECTION 7.5)
(a) Dispositions pursuant to Section 7.5(g) of the
Credit Agreement so long as the fair market value
of such disposed property does not exceed
$________ (i.e., 10% of Consolidated Total Assets
of the Borrower on the Funding Date ($________)
plus the proceeds of any Reinvestment Deferred
Amount reinvested in the business of the Borrower
and its Subsidiaries after the Funding Date
($________)) $__________
304
4.
6. RESTRICTED PAYMENTS (SECTION 7.6)
(a) Restricted Payments made pursuant to Section 7.6(b)
of the Credit Agreement so long as the aggregate
amount of payments made after the Funding Date does
not exceed $10,000,000 $__________
(b) Other Restricted Payments made pursuant to Section
7.6[(e)][(f)] of the Credit Agreement (not to exceed
[$2,500,000 in the fourth quarter or fiscal 1999]
[$15,000,000 per fiscal year]) $__________
7. CAPITAL EXPENDITURES (SECTION 7.7)
(a) Aggregate Capital Expenditures of the Borrower and its
Subsidiaries in the ordinary course of business in
accordance with Section 7.7 of the Credit Agreement
(not to exceed [$75,000,000 from the Funding Date
through December 31, 1999] [$275,000,000 per fiscal
year] plus permitted carryovers) $__________
8. INVESTMENTS (SECTION 7.8)
(a) Aggregate amount of loans and advances to employees
of the Borrower or any of its Subsidiaries as
described in Section 7.8(d) of the Credit Agreement
(not to exceed $10,000,000 at any one time
outstanding) $__________
(b) Aggregate amount of investments in Joint Ventures $__________
(c) Aggregate amount of other Investments not otherwise
permitted by Section 7.8 of the Credit Agreement so
long as the aggregate amount expended in connection
therewith does not exceed $25,000,000 (valued at
cost) $__________
IN WITNESS WHEREOF, I have hereto set my name in my capacity as an
officer of the Borrower.
Dated:
By: _____________________________
Name:
Title: [Responsible Officer
of the Borrower]
305
Schedule 1 to
Compliance Certificate
CALCULATIONS
1. CONSOLIDATED TOTAL DEBT: for the Borrower and its
Subsidiaries as of any date, without duplication,
shall be:
THE SUM OF
(a) all indebtedness for borrowed money, $__________
(b) all obligations for the deferred purchase price of
property or services (other than any such obligations
incurred in the ordinary course of business maturing
less than one year from the creation thereof),
$__________
(c) all obligations evidenced by notes, bonds, debentures
or other similar instruments (other than an operating
lease, synthetic lease or similar arrangement),
$__________
(d) all unpaid reimbursement obligations in respect of
drawings under letters of credit, $__________
(e) all obligations of the kind referred to in clauses
(a) through (i) above secured by (or for which the
holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien
on property (including accounts and contract rights)
owned by any such Person, whether or not such Person
has assumed or become liable for the payment of such
obligation. $__________
CONSOLIDATED TOTAL DEBT $__________
2. CONSOLIDATED EBITDA: for any period with respect to the
Borrower and its Subsidiaries:
Consolidated Net Income for such period $__________
PLUS THE SUM OF (without duplication and to the extent
reflected as a charge in the statement of Consolidated
Net Income for such period)
(a) total income tax expense, $__________
(b) interest expense, amortization or writeoff of debt
discount and debt issuance costs and commissions,
discounts and other fees and charges associated with
Indebtedness, $__________
(c) depreciation and amortization expense, $__________
(d) amortization of intangibles and organization costs, $__________
(e) any extraordinary, unusual or non-recurring non-cash
expenses or losses, and $__________
(f) other noncash charges $__________
THE SUM OF (A) THROUGH (F) $__________
306
2.
minus the sum of (without duplication and to the extent
included in the statement of Consolidated Net Income for
such period)
(a) interest income $__________
(b) any non-cash extraordinary, unusual or non-recurring
income or gains, and $__________
(c) other non-cash income, all as determined on a
consolidated basis in accordance with GAAP. $__________
THE SUM OF (a) THROUGH (c) $__________
CONSOLIDATED EBITDA $__________
3. CONSOLIDATED INTEREST EXPENSE: for any period, the sum of:
(a) total cash interest expense (including that
attributable to Capital Lease Obligations but net of
interest income) of the Borrower and its Subsidiaries
during such period (including all commissions,
discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance
financing and net costs under Hedge Agreements to the
extent such net costs are allocable to such period in
accordance with GAAP). $__________
CONSOLIDATED INTEREST EXPENSE $__________
307
EXHIBIT C
TO THE CREDIT AGREEMENT
FORM OF
CLOSING CERTIFICATE
I, the undersigned, [President/Vice President/Chief Financial Officer] of
[NAME OF LOAN PARTY], a corporation organized and existing under the laws of
the State of_____________ (the "Company"), do hereby certify on behalf of the
Company that:
1. This Certificate is furnished pursuant to the Credit Agreement, dated
as of September 30, 1999, among Tenneco Inc., the Lenders parties thereto, the
Co-Documentation Agents and Syndication Agent party thereto and The Chase
Manhattan Bank, as Administrative Agent (such Credit Agreement, as in effect on
the date of this Certificate, being herein called the "Credit Agreement").
Unless otherwise defined herein, capitalized terms used in this Certificate
shall have the meanings set forth in the Credit Agreement.
2. The following named individuals are elected or appointed officers of
the Company, and each holds the office of the Company set forth opposite his or
her name and has held such office since _____________________, 19___(1). The
signature written opposite the name and title of each such officer is his or her
genuine signature.
NAME(2) OFFICE SIGNATURE
______________________ ___________________________ ________________________
______________________ ___________________________ ________________________
______________________ ___________________________ ________________________
3. Attached hereto as Exhibit A is a certified copy of the Certificate
of Incorporation of the Company, as filed in the Office of the Secretary of
State of the State of _____________________ on ________________________, 19___,
together with all amendments thereto adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of the By-Laws
of the Company which were duly adopted, are in full force and effect on the date
hereof, and have been in effect since ____________________, 19___.
____________
1 Insert a date prior to the time of any corporate action relating to
the Loan Documents or related documentation.
2 Include name, office and signature of each officer who will sign the
Credit Agreement and any Note, including the officer who will sign
the certification at the end of this Certificate or related
documentation.
308
5. Attached hereto as Exhibit C is a true and correct copy of resolutions
which were duly adopted on ___________, 19___ [by unanimous written consent of
the Board of Directors of the Company] [by a meeting of the Board of Directors
of the Company at which a quorum was present and acting throughout], and said
resolutions have not been rescinded, amended or modified. Except as attached
hereto as Exhibit C, no resolutions have been adopted by the Board of Directors
of the Company which deal with the execution, delivery or performance of the
Loan Documents.
6. On the date hereof, all of the conditions set forth in Section 5.3 of
the Credit Agreement have been satisfied or waived in accordance with the
Credit Agreement.
7. On the date hereof, the representations and warranties of the Company
set forth in the Credit Agreement are true and correct with the same effect as
though such representations and warranties had been made on and as of the date
hereof.
8. On the date hereof, no Default or Event of Default has occurred and is
continuing or would result from any Borrowing to occur on the date hereof or
the application of the proceeds thereof, as applicable.
9. There is no proceeding for the dissolution or liquidation of the
Company or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this _____________ day of
________________, 1999.
[NAME OF LOAN PARTY]
By:_______________________________________
Name:
Title:
309
I, the undersigned, [Secretary/Assistant Secretary] of the [LOAN PARTY], do
hereby certify that:
1. [Name of Person making above certifications] is the duly elected and
qualified [President/Vice President/Chief Financial Officer] of the [LOAN
PARTY] and the signature above is his genuine signature.
2. The certifications made by [name of Person making above
certifications] in Items 2,3,4,5,6,7,8 and 9 above are true and correct.
IN WITNESS WHEREOF, I have hereunto set my hand this ______________ day of
______________, 1999.
[NAME OF LOAN PARTY]
By:___________________________________
Name:
Title:
310
EXHIBIT D -- Form of Mortgage
[Michigan]
THIS MORTGAGE CONSTITUTES A FIXTURE FILING
UNDER THE MICHIGAN UNIFORM COMMERCIAL CODE
MORTGAGE, SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES AND RENTS
from
_________________, Mortgagor, a _____________________
corporation whose address
is __________________________
to
THE CHASE MANHATTAN BANK,
as Administrative Agent, Mortgagee,
a New York banking
corporation whose address
is 270 Park Avenue
New York, New York 10017
DATED AS OF ____________________, 1999
Prepared by, and after recording, please return to:
Simpson Thacher & Bartlett
a partnership which includes
professional corporations
425 Lexington Avenue
New York, New York 10017
ATTN: Nicola Ramsay-Palmer, Esq.
311
MICHIGAN
MORTGAGE, SECURITY AGREEMENT
AND ASSIGNMENT OF LEASES AND RENTS
THIS MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS
dated as of , 1999 is made by ("MORTGAGOR"),
whose address is , to THE
CHASE MANHATTAN BANK, a New York banking corporation ("CHASE"), as
Administrative Agent for the Lenders referred to and as defined below (in such
capacity, "MORTGAGEE", which term shall be deemed to include successors and
assigns of the Administrative Agent), whose address is 270 Park Avenue, New
York, New York 10017. References to this "MORTGAGE" shall mean this instrument
and any and all renewals, modifications, amendments, supplements, extensions,
consolidations, substitutions, spreaders and replacements of this instrument.
Background
A. Tenneco Inc., a Delaware corporation (the "BORROWER"), has entered
into the Credit Agreement dated as of September 30, 1999 (as the same may be
amended, supplemented, restated or otherwise modified from time to time, the
"CREDIT AGREEMENT") with the several banks and other financial institutions or
entities from time to time parties thereto (the "LENDERS"), Commerzbank and Bank
of America, as Co-Documentation Agents, Citicorp USA, Inc., as Syndication
Agent, and Mortgagee. The terms of the Credit Agreement are incorporated by
reference in this Mortgage as if the terms thereof were fully set forth herein.
In the event of any conflict between the provisions of this Mortgage and the
provisions of the Credit Agreement, the applicable provisions of the Credit
Agreement shall govern and control, provided, that in the case of a provision in
this Mortgage which is more specific and detailed than the related provision in
the Credit Agreement (including by way of illustration, the section of this
Mortgage entitled "Leases"), such Mortgage provision shall not be deemed to be
in conflict with the related provision in the Credit Agreement.
Capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Credit Agreement. References in this Mortgage to the
"Default Rate" shall mean the interest rate applicable to ABR Loans plus 2%.
B. Mortgagor is the owner of the parcel(s) of real property described
on Schedule A attached (such real property, together with all of the buildings,
improvements, structures and fixtures now or subsequently located thereon (the
"IMPROVEMENTS"), being collectively referred to as the "REAL ESTATE").
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C. Pursuant to the terms of the Credit Agreement, (1) the Lenders have
agreed (a) to make certain Revolving Loans to, and issue Letters of Credit for
the account of, Borrower in an aggregate principal amount at any one time
outstanding not to exceed $500,000,000.00 and (b) to make certain Term Loans to
Borrower in an aggregate principal amount not to exceed $1,050,000,000.00, (2)
the Swing Line Lender has agreed to make certain Swing Line Loans to Borrower in
an aggregate principal amount at any one time outstanding not to exceed
$50,000,000.00, and (3) the Issuing Lender, has agreed to issue, and the other
Lenders which are L/C Participants have agreed to acquire participating
interests in, Letters of Credit for the account of Borrower. The maximum
aggregate principal amount of the Loans and the L/C Obligations outstanding at
any one time shall not exceed $1,550,000,000.00.
D. It is a condition precedent to the effectiveness of the Credit
Agreement and the obligations of the Lenders to make their respective extensions
of credit to the Borrower thereunder inter alia, that [(1) Mortgagor guaranty
the obligations of Borrower under the Credit Agreement and the other Loan
Documents in respect of the Loans and the Reimbursement Obligations by executing
and delivering that certain Guarantee and Collateral Agreement dated as of
November 4, 1999 in favor of Mortgagee (as the same may be amended, supplemented
or otherwise modified from time to time, the "GUARANTEE AND COLLATERAL
AGREEMENT") and (2)] Mortgagor secure its obligations under the Guarantee and
Collateral Agreement by executing and delivering this Mortgage. Mortgagor, a
subsidiary of the Borrower, will receive substantial direct and indirect benefit
from the extensions of credit made to the Borrower pursuant to the Credit
Agreement. [THIS MORTGAGE WILL BE APPROPRIATELY MODIFIED FOR MORTGAGEES BY
BORROWER]
Granting Clauses
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Mortgagor agrees that to secure the following
(collectively, the "OBLIGATIONS"):
(a) the due and punctual payment and performance by Mortgagor of
any and all of its obligations and liabilities, whether direct or
indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in
connection with the Guarantee and Collateral Agreement;
(b) the payment of all other obligations and liabilities of
Mortgagor, whether direct or indirect, absolute or contingent, due or
to become due, or now existing or hereafter incurred, which may arise
under, out of or in connection with the Guarantee and Collateral
Agreement, this Mortgage, any other document securing
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payment of the Obligations (the "SECURITY DOCUMENTS") and any
amendments, supplements, extensions, renewals, restatements,
replacements or modifications of any of the foregoing (the Credit
Agreement, the Letters of Credit, the Interest Rate Protection
Agreements (as defined in the Guarantee and Collateral Agreement), the
Guarantee and Collateral Agreement, this Mortgage and the other
Security Documents and all other documents and instruments from time
to time evidencing, securing or guaranteeing the payment and
performance of the Obligations, as any of the same may be amended,
supplemented, extended, renewed, restated, replaced or modified from
time to time, are collectively referred to as the "LOAN DOCUMENTS"),
in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees, charges and disbursements of
counsel to Mortgagee or to the Lenders that are required to be paid by
Mortgagor pursuant to the terms of the Credit Agreement, this Mortgage
or any other Loan Document); and
(c) the performance of all covenants, agreements, obligations and
liabilities of Mortgagor under or pursuant to the provisions of the
Loan Documents;
MORTGAGOR HEREBY GRANTS TO MORTGAGEE A LIEN UPON AND A SECURITY INTEREST IN,
AND HEREBY MORTGAGES AND WARRANTS, GRANTS, ASSIGNS, TRANSFERS AND SETS OVER TO
MORTGAGEE:
(A) the Real Estate;
(B) all the estate, right, title, claim or demand whatsoever of
Mortgagor, in possession or expectancy, in and to the Real Estate or any
part thereof;
(C) all right, title and interest of Mortgagor in, to and under all
easements, rights of way, gores of land, streets, ways, alleys, passages,
sewer rights, waters, water courses, water and riparian rights, development
rights, air rights, mineral rights, oil and gas rights and all estates,
rights, titles, interests, privileges, licenses, tenements, hereditaments
and appurtenances belonging, relating or appertaining to the Real Estate,
and any reversions, remainders, rents, issues, profits and revenue thereof
and all land lying in the bed of any street, road or avenue, in front of or
adjoining the Real Estate to the center line thereof;
(D) all of the fixtures, chattels, business machines, machinery,
apparatus, equipment, furnishings, fittings and articles of personal
property of every kind and nature whatsoever, and all appurtenances and
additions thereto and substitutions or replacements thereof (together with,
in each case, attachments, components, parts and accessories)
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currently owned or subsequently acquired by Mortgagor and now or
subsequently attached to, or contained in or used or usable in any way in
connection with any operation or letting of the Real Estate, including but
without limiting the generality of the foregoing, all screens, awnings,
shades, blinds, curtains, draperies, artwork, carpets, rugs, storm doors
and windows, furniture and furnishings, heating, electrical, and mechanical
equipment, lighting, switchboards, plumbing, ventilating, air conditioning
and air-cooling apparatus, refrigerating, and incinerating equipment,
escalators, elevators, loading and unloading equipment and systems, stoves,
ranges, laundry equipment, cleaning systems (including window cleaning
apparatus), telephones, communication systems (including satellite dishes
and antennae), televisions, computers, sprinkler systems and other fire
prevention and extinguishing apparatus and materials, security systems,
motors, engines, machinery, pipes, pumps, tanks, conduits, appliances,
fittings and fixtures of every kind and description (all of the foregoing
in this paragraph (D) being referred to as the "EQUIPMENT");
(E) all right, title and interest of Mortgagor in and to all
substitutes and replacements of, and all additions and improvements to, the
Real Estate and the Equipment, subsequently acquired by or released to
Mortgagor or constructed, assembled or placed by Mortgagor on the Real
Estate, immediately upon such acquisition, release, construction,
assembling or placement, including, without limitation, any and all
building materials whether stored at the Real Estate or offsite, and, in
each such case, without any further mortgage, conveyance, assignment or
other act by Mortgagor;
(F) all right, title and interest of Mortgagor in, to and under all
leases, subleases, underlettings, concession agreements, management
agreements, licenses and other agreements relating to the use or occupancy
of the Real Estate or the Equipment or any part thereof, now existing or
subsequently entered into by Mortgagor and whether written or oral and all
guarantees of any of the foregoing (collectively, as any of the foregoing
may be amended, restated, extended, renewed or modified from time to time,
the "LEASES"), and all rights of Mortgagor in respect of cash and
securities deposited thereunder and the right to receive and collect the
revenues, income, rents, issues and profits thereof, together with all
other rents, royalties, issues, profits, revenue, income and other benefits
arising from the use and enjoyment of the Mortgaged Property (as defined
below) (collectively, the "RENTS") including, but not limited to, all
rights conferred by Act No. 210 of the Michigan Public Acts of 1953 as
amended by Act No. 151 of the Michigan Public Acts of 1966 (MCLA 554.231 et
seq.), and Act No. 228 of the Michigan Public
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Acts of 1925 as amended by Act No. 55 of the Michigan Public Acts of 1933
(MCLA 554.211 et seq.);
(G) all trade names, trade marks, logos, copyrights, good will and
books and records relating to or used in connection with the operation of
the Real Estate or the Equipment or any part thereof; all general
intangibles related to the operation of the Improvements now existing or
hereafter arising;
(H) all unearned premiums under insurance policies now or subsequently
obtained by Mortgagor relating to the Real Estate or Equipment and
Mortgagor's interest in and to any such insurance policies and all proceeds
of any such insurance policies (including title insurance policies)
including the right to collect and receive such proceeds, subject to the
provisions relating to insurance generally set forth below; and all awards
and other compensation, including the interest payable thereon and the
right to collect and receive the same, made to the present or any
subsequent owner of the Real Estate or Equipment for the taking by eminent
domain, condemnation or otherwise, of all or any part of the Real Estate or
any easement or other right therein;
(I) all right, title and interest of Mortgagor in and to (i) all
contracts from time to time executed by Mortgagor or any manager or agent
on its behalf relating to the ownership, construction, maintenance, repair,
operation, occupancy, sale or financing of the Real Estate or Equipment or
any part thereof and all agreements relating to the purchase or lease of
any portion of the Real Estate or any property which is adjacent or
peripheral to the Real Estate, together with the right to exercise such
options and all leases of Equipment (collectively, the "CONTRACTS"), (ii)
all consents, licenses, building permits, certificates of occupancy and
other governmental approvals relating to construction, completion,
occupancy, use or operation of the Real Estate or any part thereof
(collectively, the "PERMITS") and (iii) all drawings, plans, specifications
and similar or related items relating to the Real Estate (collectively, the
"PLANS");
(J) any and all monies now or subsequently on deposit for the payment
of real estate taxes or special assessments against the Real Estate or for
the payment of premiums on insurance policies covering the foregoing
property or otherwise on deposit with or held by Mortgagee as provided in
this Mortgage; and
(K) all proceeds, both cash and noncash, of the foregoing;
(All of the foregoing property and rights and interests now owned or
held or subsequently acquired by Mortgagor and
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described in the foregoing clauses (A) through (E) are collectively referred to
as the "PREMISES", and those described in the foregoing clauses (A) through (K)
are collectively referred to as the "MORTGAGED PROPERTY").
TO HAVE AND TO HOLD the Mortgaged Property and the rights and
privileges hereby mortgaged unto Mortgagee, its successors and assigns for the
uses and purposes set forth, until the Obligations are fully paid and performed.
PROVIDED ALWAYS, that if Mortgagor shall promptly and fully pay and perform all
of the Obligations and shall perform all of the other provisions contained
herein and in the Loan Documents, then the estate hereby granted shall cease,
terminate and become void but shall otherwise remain in full force and effect.
Terms and Conditions
Mortgagor further represents, warrants, covenants and agrees with
Mortgagee as follows:
1. Warranty of Title. Mortgagor warrants the title to the Premises,
subject only to the matters that are set forth in Schedule B of the title
insurance policy or policies being issued to Mortgagee to insure the lien of
this Mortgage and to the Liens expressly permitted under Section 7.3 of the
Credit Agreement (the "PERMITTED EXCEPTIONS")and Mortgagor shall warrant, defend
and preserve such title and the lien of the Mortgage thereon against all claims
of all persons and entities. Mortgagor further warrants that it has the right to
mortgage the Mortgaged Property.
2. Payment of Obligations. Mortgagor shall pay and perform all the
Obligations at the times and places and in the manner specified in the Guarantee
and Collateral Agreement and in this Mortgage.
3. Requirements.
(a) Mortgagor shall promptly comply with, or cause to be complied
with, and conform to all present and future laws, statutes, codes, ordinances,
orders, judgments, decrees, rules, regulations and requirements, and
irrespective of the nature of the work to be done, of each of the United States
of America, any State and any municipality, local government or other political
subdivision thereof and any agency, department, bureau, board, commission or
other instrumentality of any of them, now existing or subsequently created
(collectively, "GOVERNMENTAL AUTHORITY") which has jurisdiction over the
Mortgaged Property and all covenants, restrictions and conditions now or later
of record which may be applicable to any of the Mortgaged Property, or to the
use, manner of use, occupancy, possession, operation, maintenance, alteration,
repair or reconstruction of any of the Mortgaged Property, except to the extent
that failure to comply therewith could not, in the
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aggregate, reasonably be expected to have a Material Adverse Effect. All present
and future laws, statutes, codes, ordinances, orders, judgments, decrees, rules,
regulations and requirements of every Governmental Authority applicable to
Mortgagor or to any of the Mortgaged Property and all covenants, restrictions,
and conditions which now or later may be applicable to any of the Mortgaged
Property are collectively referred to as the "LEGAL REQUIREMENTS".
(b) From and after the date of this Mortgage, Mortgagor shall not by
act or omission permit any building or other improvement on any premises not
subject to the lien of this Mortgage to rely on the Premises or any part thereof
or any interest therein to fulfill any Legal Requirement, and Mortgagor hereby
assigns to Mortgagee any and all rights to give consent for all or any portion
of the Premises or any interest therein to be so used. Mortgagor shall not by
act or omission impair the integrity of any of the Real Estate as a single
zoning lot separate and apart from all other premises. Mortgagor represents that
each parcel of the Real Estate constitutes a legally subdivided lot, in
compliance with all subdivision laws and similar Legal Requirements except to
the extent that failure to comply therewith, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.. Any act or omission
by Mortgagor which would result in a violation of any of the provisions of this
subsection shall be void.
4. Payment of Taxes and Other Impositions. (a) Promptly when due,
Mortgagor shall pay and discharge all taxes of every kind and nature (including,
without limitation, all real and personal property, income, franchise,
withholding, transfer, gains, profits and gross receipts taxes), all charges for
any easement or agreement maintained for the benefit of any of the Mortgaged
Property, all general and special assessments, levies, permits, inspection and
license fees, all water and sewer rents and charges, vault taxes, and all other
public charges even if unforeseen or extraordinary, imposed upon or assessed
against or which may become a lien on any of the Mortgaged Property, or arising
in respect of the occupancy, use or possession thereof, together with any
penalties or interest on any of the foregoing (all of the foregoing are
collectively referred to as the "IMPOSITIONS"). Mortgagor shall within 30 days
after written request by Mortgagee deliver to Mortgagee (i) original or copies
of receipted bills and canceled checks evidencing payment of such Imposition if
it is a real estate tax or other public charge and (ii) evidence acceptable to
Mortgagee showing the payment of any other such Imposition. If by law any
Imposition, at Mortgagor's option, may be paid in installments (whether or not
interest shall accrue on the unpaid balance of such Imposition), Mortgagor may
elect to pay such Imposition in such installments and shall be responsible for
the payment of such installments with interest, if any.
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(b) Nothing herein shall affect any right or remedy of Mortgagee under
this Mortgage or otherwise, with notice to Mortgagor, to pay any Imposition
after the date such Imposition shall have become delinquent (unless being
contested by Mortgagor as provided in (c) below), and to add to the Obligations
the amount so paid, together with interest from the time of payment at the
Default Rate. Any sums paid by Mortgagee in discharge of any Impositions shall
be (i) a lien on the Premises secured hereby prior to any right or title to,
interest in, or claim upon the Premises subordinate to the lien of this
Mortgage, and (ii) payable on written demand by Mortgagor to Mortgagee together
with interest at the Default Rate as set forth above.
(c) Mortgagor shall have the right before any delinquency occurs to
contest or object in good faith to the amount or validity of any Imposition by
appropriate legal proceedings, but such right shall not be deemed or construed
in any way as relieving, modifying, or extending Mortgagor's covenant to pay any
such Imposition at the time and in the manner provided in this Section unless
(i) Mortgagor has given prior written notice to Mortgagee of Mortgagor's intent
so to contest or object to an Imposition, (ii) Mortgagor shall demonstrate to
Mortgagee's reasonable satisfaction that the legal proceedings shall operate
conclusively to prevent the sale of the Mortgaged Property, or any part thereof,
to satisfy such Imposition prior to final determination of such proceedings and
(iii) Mortgagor shall either (x) furnish a good and sufficient bond or surety as
requested by and reasonably satisfactory to Mortgagee or (y) maintain adequate
reserves in accordance with GAAP on Mortgagor's books, in each case in the
amount of the Impositions which are being contested plus any interest and
penalty which may be imposed thereon and which could become a lien against the
Real Estate or any part of the Mortgaged Property.
5. Insurance. (a) Mortgagor shall maintain or cause to be maintained
on all of the Premises
(i) property insurance against loss or damage by fire, lightning,
windstorm, tornado, water damage, flood, earthquake and by such other
further risks and hazards as now are or subsequently may be covered by an
"all risk" policy or a fire policy covering "special" causes of
loss(provided, however, that the maintenance of insurance against
earthquake and flood risks shall be subject to availability of such
insurance coverage on commercially reasonable terms) and the policy limits
shall be automatically reinstated after each loss (other than with respect
to flood and earthquake coverage which shall be reinstated on a
commercially reasonable basis);
(ii) commercial general liability insurance under a policy including
the "broad form CGL endorsement" (or which incorporates the language or
similar language of such endorsement), covering all claims for personal
injury, bodily
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injury or death, or property damage, subject to standard policy terms,
conditions and exclusions, occurring on, in or about the Premises in an
amount not less than $10,000,000 combined single limit with respect to
personal injury, bodily injury or death, or property damage, relating to
any one occurrence plus such excess limits as Mortgagee shall reasonably
request from time to time;
(iii) insurance against rent loss, extra expense or business
interruption, in amounts reasonably satisfactory to Mortgagee, but not less
than one year's gross rent or gross income (except as may be otherwise
reasonably agreed to by Mortgagee);
(iv) if any portion of the Premises are located in an area identified
as a special flood hazard area by the Federal Emergency Management Agency
or other applicable agency, flood insurance in an amount satisfactory to
Mortgagee, but in no event less than the maximum limit of coverage
available under the National Flood Insurance Act of 1968, as amended; and
(v) such other insurance in such amounts as is mutually agreeable to
Mortgagor and Mortgagee against loss or damage by any other risk commonly
insured against by persons occupying or using like properties for like
purposes in the locality or localities in which the Real Estate is
situated.
(b) Each insurance policy (other than flood insurance written under
the National Flood Insurance Act of 1968, as amended, in which case to the
extent available) shall (i) provide that it shall not be canceled, non-renewed
or materially amended without 30-days' prior written notice to Mortgagee, and
(ii) with respect to all property insurance, contain a "Replacement Cost
Endorsement" without any deduction made for depreciation and with no
co-insurance penalty (or attaching an agreed amount endorsement satisfactory to
Mortgagee), with loss payable to Mortgagee as its interest may appear, without
contribution, under a "standard" or "New York" mortgagee clause acceptable to
Mortgagee. Liability insurance policies shall name Mortgagee as an additional
insured and contain a waiver of subrogation against Mortgagee; all such policies
shall indemnify and hold Mortgagee harmless from all liability claims occurring
on, in or about the Premises and the adjoining streets, sidewalks and
passageways, subject to standard policy terms, conditions and exclusions. The
amounts of each insurance policy and the form of each such policy shall at all
times be mutually agreeable to Mortgagor and Mortgagee.
(c) Mortgagor shall deliver to Mortgagee a certificate of such
insurance acceptable to Mortgagee, together with a copy of the declaration page
for each such policy. Mortgagor shall (i) pay as they become due all premiums
for such insurance, (ii) not later than 15 days prior to the expiration of each
policy to be furnished pursuant to the provisions of this Section, deliver a
certificate
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of insurance acceptable to Mortgagee, accompanied by evidence of payment
satisfactory to Mortgagee and (iii) upon the written request of Mortgagee
deliver a renewed policy or policies, or duplicate original or originals
thereof, marked "premium paid," or accompanied by such other evidence of payment
satisfactory to Mortgagee.
(d) If Mortgagor is in default of its obligations to insure or deliver
any such prepaid policy or policies, then Mortgagee, at its option and with
prior notice (written or otherwise), may effect such insurance from year to
year, and pay the premium or premiums therefor, and Mortgagor shall pay to
Mortgagee on demand such premium or premiums so paid by Mortgagee with interest
from the time of payment at the Default Rate and the same shall be deemed to be
secured by this Mortgage and shall be collectible in the same manner as the
Obligations secured by this Mortgage.
(e) Mortgagor promptly shall comply with and conform to (i) all
provisions of each such insurance policy, and (ii) all requirements of the
insurers applicable to Mortgagor or to any of the Mortgaged Property or to the
use, manner of use, occupancy, possession, operation, maintenance or repair of
any of the Mortgaged Property. Mortgagor shall not use or permit the use of the
Mortgaged Property in any manner which would permit any insurer to cancel any
insurance policy or void coverage required to be maintained by this Mortgage.
(f) If the Mortgaged Property, or any part thereof, shall be destroyed
or damaged, Mortgagor shall give immediate notice thereof to Mortgagee. All
insurance proceeds shall be paid to Mortgagee to be held by Mortgagee as
collateral to secure the payment and performance of the Obligations.
Notwithstanding the preceding sentence, provided that no Event of Default shall
have occurred and be continuing, Mortgagor shall have the right to adjust such
loss, and subject to the provisions of Section 2.11 of the Credit Agreement, the
insurance proceeds relating to such loss shall be paid over to Mortgagor;
provided that Mortgagor shall, promptly after any such damage, repair all such
damage regardless of whether any insurance proceeds have been received or
whether such proceeds, if received, are sufficient to pay for the costs of
repair.
(g) Mortgagor may maintain insurance required under this Mortgage by
means of one or more blanket insurance policies maintained by Mortgagor;
provided, however, that (A) any such policy shall specify, or Mortgagor shall
furnish to Mortgagee a written statement from the insurer so specifying, the
maximum amount of the total insurance afforded by such blanket policy that is
allocated to the Premises and the other Mortgaged Property and any sublimits in
such blanket policy applicable to the Premises and the other Mortgaged Property,
(B) each such blanket policy shall include an endorsement providing that, in the
event of a loss
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resulting from an insured peril, insurance proceeds shall be allocated to the
Mortgaged Property in an amount equal to the coverages required to be maintained
by Mortgagor as provided above and (C) the protection afforded under any such
blanket policy shall be no less than that which would have been afforded under a
separate policy or policies relating only to the Mortgaged Property.
6. Restrictions on Liens and Encumbrances. Except for the lien of this
Mortgage and the Permitted Exceptions, and except as expressly permitted under
the Credit Agreement, Mortgagor shall not further mortgage, nor otherwise
encumber the Mortgaged Property nor create or suffer to exist any lien, charge
or encumbrance on the Mortgaged Property, or any part thereof, whether superior
or subordinate to the lien of this Mortgage and whether recourse or
non-recourse.
7. Due on Sale and Other Transfer Restrictions. Except as expressly
permitted under the Credit Agreement, Mortgagor shall not sell, convey or assign
all or any portion of, or any interest in, the Mortgaged Property.
8. Maintenance; No Alteration; Inspection; Utilities. (a) Mortgagor
shall maintain or cause to be maintained all the Improvements in good condition
and repair and shall not commit or suffer any waste of the Improvements.
Mortgagor shall repair, restore, replace or rebuild promptly any part of the
Premises which may be damaged or destroyed by any casualty whatsoever. The
Improvements shall not be demolished or materially altered, nor any material
additions built, without the prior written consent of Mortgagee, which consent
shall not be unreasonably withheld or delayed. Mortgagor's failure to pay (i)
any Imposition assessed against the Premises (not being contested in the manner
provided therein), or any installment thereof, or (ii) any insurance premium
upon policies required to be carried by the terms of this Mortgage, shall
constitute waste (although the meaning of the term "waste" shall not be limited
to such nonpayment) as provided by Act No. 236 of the Michigan Public Acts of
1961 (Revised Judicature Act), Section 600.2927, as and if amended and shall
entitle Mortgagee to all remedies provided for therein; and Mortgagor agrees to
and hereby does consent to the appointment of a receiver under said statute,
should Mortgagee elect to seek such relief thereunder.
(b) Mortgagee and any persons authorized by Mortgagee shall have the
right at all reasonable times upon reasonable prior written notice to enter and
inspect the Premises and all work done, labor performed and materials furnished
in and about the Improvements and to inspect and make copies of all books,
contracts and records of Mortgagor relating to the Mortgaged Property.
(c) Mortgagor shall pay or cause to be paid when due all utility
charges which are incurred for gas, electricity, water or
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sewer services furnished to the Premises and all other assessments or charges of
a similar nature, whether public or private, affecting the Premises or any
portion thereof, whether or not such assessments or charges are liens thereon.
9. Condemnation/Eminent Domain. Immediately upon obtaining knowledge
of the institution of any proceedings for the condemnation of the Mortgaged
Property, or any portion thereof, Mortgagor will notify Mortgagee of the
pendency of such proceedings. Mortgagor authorizes Mortgagee, at Mortgagee's
option and in Mortgagee's reasonable discretion, as attorney-in-fact for
Mortgagor, to commence, appear in and prosecute, in Mortgagee's or Mortgagor's
name, any action or proceeding relating to any condemnation of the Mortgaged
Property, or any portion thereof, and to settle or compromise any claim in
connection with such condemnation upon the occurrence and during the continuance
of an Event of Default. If Mortgagee elects not to participate in such
condemnation proceeding, then Mortgagor shall, at its expense, diligently
prosecute any such proceeding and shall consult with Mortgagee, its attorneys
and experts and cooperate with them in any defense of any such proceedings. All
awards and proceeds of condemnation shall be assigned to Mortgagee to be applied
in the same manner as insurance proceeds, as provided above, and Mortgagor
agrees to execute any such assignments of all such awards as Mortgagee may
request.
10. Restoration. Subject to Section 2.11 of the Credit Agreement,
Mortgagor shall use all insurance proceeds and all condemnation proceeds and
awards to promptly restore the Mortgaged Property to its condition prior to such
casualty or condemnation, (giving effect to the remaining configuration of the
Premises after such condemnation) and in compliance with all Legal Requirements.
11. Leases. (a) Mortgagor shall not (i) execute an assignment or
pledge of any Lease relating to all or any portion of the Mortgaged Property
other than in favor of Mortgagee, or (ii) except as expressly permitted under
the Credit Agreement, without the prior written consent of Mortgagee (which
consent shall not be unreasonably withheld or delayed), execute any Lease of the
Mortgaged Property or permit to exist any Lease of any of the Mortgaged Property
not already in existence prior to the date of this Mortgage.
(b) As to any Lease consented to by Mortgagee, Mortgagor shall:
(i) promptly perform all of the provisions of the Lease on the part of
the lessor thereunder to be performed;
(ii) promptly enforce all of the provisions of the Lease on the part
of the lessee thereunder to be performed;
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(iii) appear in and defend any action or proceeding arising under or
in any manner connected with the Lease or the obligations of Mortgagor as
lessor or of the lessee thereunder;
(iv) exercise, within 5 days after a request by Mortgagee, any right
to request from the lessee a certificate with respect to the status
thereof;
(v) simultaneously deliver to Mortgagee copies of any notices of any
material default (as reasonably determined in good faith by Mortgagor)
which Mortgagor may at any time forward to or receive from the lessee;
(vi) promptly deliver to Mortgagee a fully executed counterpart of the
Lease; and
(vii) promptly deliver to Mortgagee, upon Mortgagee's request, an
assignment of the Mortgagor's interest under such Lease.
(c) Mortgagor shall deliver to Mortgagee, within 10 days after a
request by Mortgagee, a written statement, certified by Mortgagor as being true,
correct and complete, containing the names of all lessees and other occupants of
the Mortgaged Property, the terms of all Leases and the spaces occupied and
rentals payable thereunder, and a list of all Leases which are then in default,
including the nature and magnitude of the default.
(d) All Leases entered into by Mortgagor after the date hereof, if
any, and all rights of any lessees thereunder shall be subject and subordinate
in all respects to the lien and provisions of this Mortgage unless Mortgagee
shall otherwise elect in writing.
(e) As to any Lease now in existence or subsequently consented to by
Mortgagee, except as expressly permitted under the Credit Agreement, Mortgagor
shall not accept a surrender or terminate, cancel, rescind, supplement, alter,
revise, modify or amend such Lease or permit any such action to be taken nor
shall Mortgagor accept the payment of rent more than thirty (30) days in advance
of its due date.
(f) In the event of the enforcement by Mortgagee of any remedy under
this Mortgage, the lessee under each Lease shall, if requested by Mortgagee or
any other person succeeding to the interest of Mortgagee as a result of such
enforcement, attorn to Mortgagee or to such person and shall recognize Mortgagee
or such successor in interest as lessor under the Lease without change in the
provisions thereof; provided however, that Mortgagee or such successor in
interest shall not be: (i) bound by any payment of an installment of rent or
additional rent which may have been made more than 30 days before the due date
of such installment; (ii) bound by any amendment or modification to the Lease
made without
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the consent of Mortgagee or such successor in interest; (iii) liable for any
previous act or omission of Mortgagor (or its predecessors in interest); (iv)
responsible for any monies owing by Mortgagor to the credit of such lessee or
subject to any credits, offsets, claims, counterclaims, demands or defenses
which the lessee may have against Mortgagor (or its predecessors in interest);
(v) bound by any covenant to undertake or complete any construction of the
Premises or any portion thereof; or (vi) obligated to make any payment to such
lessee other than any security deposit actually delivered to Mortgagee or such
successor in interest. Each lessee or other occupant, upon request by Mortgagee
or such successor in interest, shall execute and deliver an instrument or
instruments confirming such attornment. In addition, Mortgagor agrees that each
Lease entered into after the date of this Mortgage shall include language to the
effect of subsections (d)-(g) of this Section; provided that the provisions of
such subsections shall be self-operative and any failure of any Lease to include
such language shall not impair the binding effect of such provisions on any
lessee under such Lease.
12. Further Assurances. To further assure Mortgagee's rights under
this Mortgage, Mortgagor agrees upon demand of Mortgagee to do any act or
execute any additional documents (including, but not limited to, security
agreements on any personalty included or to be included in the Mortgaged
Property and a separate assignment of each Lease in recordable form) as may be
required by Mortgagee to confirm the lien of this Mortgage and all other rights
or benefits conferred on Mortgagee.
13. Mortgagee's Right to Perform. If Mortgagor fails to perform any of
the covenants or agreements of Mortgagor, Mortgagee, without waiving or
releasing Mortgagor from any obligation or default under this Mortgage, may, at
any time (but shall be under no obligation to) pay or perform the same, and the
amount or cost thereof, with interest at the Default Rate, shall immediately be
due from Mortgagor to Mortgagee and the same shall be secured by this Mortgage
and shall be a lien on the Mortgaged Property prior to any right, title to,
interest in or claim upon the Mortgaged Property attaching subsequent to the
lien of this Mortgage. No payment or advance of money by Mortgagee under this
Section shall be deemed or construed to cure Mortgagor's default or waive any
right or remedy of Mortgagee.
14. Events of Default. The occurrence of any one or more of the
following events shall constitute an "EVENT OF DEFAULT" hereunder:
(a) an Event of Default (as defined in the Credit Agreement) shall
occur under the Credit Agreement; or
(b) a failure (i) to keep in force the insurance required by this
Mortgage, or (ii) to comply with and conform
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to all provisions and requirements of the insurance policies and the
insurers thereunder which would affect Mortgagor's ability to keep in force
the insurance required by this Mortgage or to collect any proceeds
therefrom, or (iii) which is not cured within ten (10) days of written
notice by Mortgagee to Mortgagor, to comply with any other material
provisions of this Mortgage regarding insurance; or
(c) a failure of Mortgagor to duly perform and observe, or a violation
or breach of, any other terms, covenants, provisions or conditions of
Sections 6 or 7 of this Mortgage.
15. Remedies.
(a) Upon the occurrence of any Event of Default, in addition to any
other rights and remedies Mortgagee may have pursuant to the Loan Documents, or
as provided by law, and without limitation, (x) if such event is an Event of
Default specified in clause (i) or (ii) of paragraph (f) of Section 8 of the
Credit Agreement with respect to Borrower, automatically the Commitments shall
immediately terminate and the Loans (with accrued interest thereon) and all
other amounts owing under the Credit Agreement and the other Loan Documents
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) shall immediately become due and payable, and
(y) if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, Mortgagee
may, or upon the request of the Required Lenders Mortgagee shall, by notice to
Mortgagor declare the Revolving Commitments to be terminated forthwith,
whereupon the Revolving Commitments shall immediately terminate; and (ii) with
the consent of the Required Lenders, Mortgagee may, or upon the request of the
Required Lenders, Mortgagee shall, by notice to Mortgagor, declare the Loans
(with accrued interest thereon) and all other amounts owing under the Credit
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived. In addition, upon the occurrence of any Event of
Default, Mortgagee may immediately take such action, without notice or demand,
as it deems advisable to protect and enforce its rights against Mortgagor and in
and to the Mortgaged Property, including, but not limited to, the following
actions, each of which may be pursued concurrently or otherwise, at such time
and in such manner as Mortgagee may determine, in its sole discretion, without
impairing or otherwise affecting the other rights and remedies of Mortgagee:
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(i) Mortgagee may, to the extent permitted by applicable law, (A)
institute and maintain an action of mortgage foreclosure against all or any
part of the Mortgaged Property, (B) institute and maintain an action on the
Guarantee and Collateral Agreement or any other Loan Document, (C) sell all
or part of the Mortgaged Property (Mortgagor expressly granting to
Mortgagee the power of sale), or (D) take such other action at law or in
equity for the enforcement of this Mortgage or any of the Loan Documents as
the law may allow. Mortgagee may proceed in any such action to final
judgment and execution thereon for all sums due hereunder, together with
interest thereon at the Default Rate and all costs of suit, including,
without limitation, reasonable attorneys' fees and disbursements. Interest
at the Default Rate shall be due on any judgment obtained by Mortgagee from
the date of judgment until actual payment is made of the full amount of the
judgment.
(ii) Mortgagee may immediately commence foreclosure proceedings
against the Mortgaged Property pursuant to applicable law. The commencement
by Mortgagee of foreclosure proceedings by advertisement or in equity shall
be deemed an exercise by Mortgagee of its option set forth above to
accelerate the due date of all sums secured hereby. Mortgagor hereby grants
power to Mortgagee, in the event of the occurrence of an Event of Default
hereunder, to grant, bargain, sell, release and convey the Mortgaged
Property at public auction or vendue, and upon such sale to execute and
deliver to the purchaser(s) instruments of conveyance pursuant to the terms
hereof and to the applicable laws. Mortgagor acknowledges that the
foregoing sentence confers a power of sale upon Mortgagee, and that upon
the occurrence of an Event of Default this Mortgage may be foreclosed by
advertisement as described below and in the applicable Michigan statutes.
MORTGAGOR UNDERSTANDS THAT UPON DEFAULT, MORTGAGEE IS HEREBY AUTHORIZED AND
EMPOWERED TO SELL THE MORTGAGED PROPERTY, OR CAUSE THE SAME TO BE SOLD AND
TO CONVEY THE SAME TO THE PURCHASER IN ANY LAWFUL MANNER, INCLUDING BUT NOT
LIMITED TO THAT PROVIDED BY CHAPTER 32 OF THE REVISED JUDICATURE ACT OF
MICHIGAN, ENTITLED "FORECLOSURE OF MORTGAGE BY ADVERTISEMENT", WHICH
PERMITS MORTGAGEE TO SELL THE MORTGAGED PROPERTY WITHOUT AFFORDING
MORTGAGOR A HEARING, OR GIVING IT ACTUAL PERSONAL NOTICE. THE ONLY NOTICE
REQUIRED UNDER SUCH CHAPTER 32 IS TO PUBLISH NOTICE IN A LOCAL NEWSPAPER
AND TO POST A COPY OF THE NOTICE ON THE MORTGAGED PROPERTY.
WAIVER: BY CONFERRING THIS POWER OF SALE UPON MORTGAGEE, MORTGAGOR,
FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, AFTER AN OPPORTUNITY FOR
CONSULTATION WITH ITS LEGAL COUNSEL, HEREBY
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VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WAIVES ALL RIGHTS UNDER THE
CONSTITUTION AND LAWS OF THE UNITED STATES AND UNDER THE CONSTITUTION AND
LAWS OF THE STATE OF MICHIGAN, BOTH TO A HEARING ON THE RIGHT TO EXERCISE
AND THE EXERCISE OF THE POWER OF SALE, AND TO NOTICE EXCEPT AS REQUIRED BY
THE MICHIGAN STATUTE WHICH PROVIDES FOR FORECLOSURE OF MORTGAGES BY
ADVERTISEMENT.
(iii) Mortgagee may personally, or by its agents, attorneys and
employees and without regard to the adequacy or inadequacy of the Mortgaged
Property or any other collateral as security for the Obligations enter into
and upon the Mortgaged Property and each and every part thereof and exclude
Mortgagor and its agents and employees therefrom without liability for
trespass, damage or otherwise (Mortgagor hereby agreeing to surrender
possession of the Mortgaged Property to Mortgagee upon demand at any such
time) and use, operate, manage, maintain and control the Mortgaged Property
and every part thereof. Following such entry and taking of possession,
Mortgagee shall be entitled, without limitation, (x) to lease all or any
part or parts of the Mortgaged Property for such periods of time and upon
such conditions as Mortgagee may, in its discretion, deem proper, (y) to
enforce, cancel or modify any Lease and (z) generally to execute, do and
perform any other act, deed, matter or thing concerning the Mortgaged
Property as Mortgagee shall deem appropriate as fully as Mortgagor might
do.
In connection with Mortgagee's right to possession of the Mortgaged
Property as specified in this paragraph, Mortgagor acknowledges that it has
been advised that there is a significant body of case law in Michigan which
purportedly provides that in the absence of a showing of waste of a
character sufficient to endanger the value of the Mortgaged Property, or
other special factors, a mortgagor is entitled to remain in possession of
Mortgaged Property, and to enjoy the income, rents and profits therefrom,
during the pendency of foreclosure proceedings and until the expiration of
the redemption period, even if the mortgage documents expressly provide to
the contrary. Mortgagor further acknowledges that it has been advised that
Mortgagee recognizes the value of the security covered hereby is
inextricably intertwined with the effectiveness of the management,
maintenance and general operation of the Mortgaged Property, and that
Mortgagee would not extend the Loans and the other Obligations secured
hereby unless it could be assured that it would have the right to take
possession of the Mortgaged Property in order to manage or to control
management thereof, and to enjoy the income, rents and profits therefrom,
immediately upon default by Mortgagor hereunder, notwithstanding that
foreclosure proceedings may not have been instituted, or are pending, or
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the redemption period may not have expired. Accordingly, Mortgagor hereby
knowingly, intelligently and voluntarily waives all right to possession of
the Mortgaged Property from and after the occurrence of an Event of Default
hereunder, upon demand for possession by Mortgagee, and Mortgagor agrees
not to assert any objection or defense to Mortgagee's request or petition
to a court for possession. The rights hereby conferred upon Mortgagee have
been agreed upon prior to any default by Mortgagor hereunder and the
exercise by Mortgagee of any such rights shall not be deemed to put
Mortgagee in the status of a "mortgagee in possession". Mortgagor
acknowledges that this provision is material to this transaction and that
Mortgagee would not extend the Indebtedness secured hereby but for this
paragraph.
(b) The holder of this Mortgage, in any action to foreclose it, shall
be entitled to the appointment of a receiver. In case of a foreclosure sale, the
Real Estate may be sold, at Mortgagee's election, in one parcel or in more than
one parcel and Mortgagee is specifically empowered, (without being required to
do so, and in its sole and absolute discretion) to cause successive sales of
portions of the Mortgaged Property to be held.
(c) In the event of any breach of any of the covenants, agreements,
terms or conditions contained in this Mortgage, and notwithstanding to the
contrary any exculpatory or non-recourse language which may be contained herein,
Mortgagee shall be entitled to enjoin such breach and obtain specific
performance of any covenant, agreement, term or condition and Mortgagee shall
have the right to invoke any equitable right or remedy as though other remedies
were not provided for in this Mortgage.
16. Right of Mortgagee to Credit Sale. Upon the occurrence of any sale
made under this Mortgage, whether made under the power of sale or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale,
Mortgagee may bid for and acquire the Mortgaged Property or any part thereof. In
lieu of paying cash therefor, Mortgagee may make settlement for the purchase
price by crediting upon the Obligations or other sums secured by this Mortgage
the net sales price after deducting therefrom the expenses of sale and the cost
of the action and any other sums which Mortgagee is authorized to deduct under
this Mortgage. In such event, this Mortgage, the Credit Agreement, the Guarantee
and Collateral Agreement and documents evidencing expenditures secured hereby
may be presented to the person or persons conducting the sale in order that the
amount so used or applied may be credited upon the Obligations as having been
paid.
17. Appointment of Receiver. If an Event of Default shall have
occurred and be continuing, Mortgagee as a matter of right and without notice to
Mortgagor, unless otherwise required by
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applicable law, and without regard to the adequacy or inadequacy of the
Mortgaged Property or any other collateral as security for the Obligations or
the interest of Mortgagor therein, shall have the right to apply to any court
having jurisdiction to appoint a receiver or receivers or other manager of the
Mortgaged Property, and Mortgagor hereby irrevocably consents to such
appointment and waives notice of any application therefor (except as may be
required by law). Any such receiver or receivers shall have all the usual powers
and duties of receivers in like or similar cases and all the powers and duties
of Mortgagee in case of entry as provided in this Mortgage, including, without
limitation and to the extent permitted by law, the right to enter into leases of
all or any part of the Mortgaged Property, and shall continue as such and
exercise all such powers until the date of confirmation of sale of the Mortgaged
Property unless such receivership is sooner terminated.
18. Extension, Release, etc. (a) Without affecting the lien or charge
of this Mortgage upon any portion of the Mortgaged Property not then or
theretofore released as security for the full amount of the Obligations,
Mortgagee may, from time to time and without notice, agree to (i) release any
person liable for the indebtedness guaranteed under the Guarantee and Collateral
Agreement, (ii) extend the maturity or alter any of the terms of the
indebtedness guaranteed under the Guarantee and Collateral Agreement or any
other guaranty thereof, (iii) grant other indulgences, (iv) release or reconvey,
or cause to be released or reconveyed at any time at Mortgagee's option any
parcel, portion or all of the Mortgaged Property, (v) take or release any other
or additional security for any obligation herein mentioned, or (vi) make
compositions or other arrangements with debtors in relation thereto. If at any
time this Mortgage shall secure less than all of the principal amount of the
Obligations, it is expressly agreed that any repayments of the principal amount
of the Obligations shall not reduce the amount of the lien of this Mortgage
until the lien amount shall equal the principal amount of the Obligations
outstanding.
(b) No recovery of any judgment by Mortgagee and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect the lien of this Mortgage or any liens,
rights, powers or remedies of Mortgagee hereunder, and such liens, rights,
powers and remedies shall continue unimpaired.
(c) If Mortgagee shall have the right to foreclose this Mortgage,
Mortgagor authorizes Mortgagee at its option to foreclose the lien of this
Mortgage subject to the rights of any tenants of the Mortgaged Property. The
failure to make any such tenants parties defendant to any such foreclosure
proceeding and to foreclose their rights will not be asserted by Mortgagor as a
defense to any proceeding instituted by Mortgagee to collect the Obligations or
to foreclose the lien of this Mortgage.
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(d) Unless expressly provided otherwise, in the event that ownership
of this Mortgage and title to the Mortgaged Property or any estate therein shall
become vested in the same person or entity, this Mortgage shall not merge in
such title but shall continue as a valid lien on the Mortgaged Property for the
amount secured hereby.
19. Security Agreement under Uniform Commercial Code. (a) It is the
intention of the parties hereto that this Mortgage shall constitute a Security
Agreement within the meaning of the Uniform Commercial Code (the "CODE") of the
State of Michigan. If an Event of Default shall occur under this Mortgage, then
in addition to having any other right or remedy available at law or in equity,
Mortgagee shall have the option of either (i) proceeding under the Code and
exercising such rights and remedies as may be provided to a secured party by the
Code with respect to all or any portion of the Mortgaged Property which is
personal property (including, without limitation, taking possession of and
selling such property) or (ii) treating such property as real property and
proceeding with respect to both the real and personal property constituting the
Mortgaged Property in accordance with Mortgagee's rights, powers and remedies
with respect to the real property (in which event the default provisions of the
Code shall not apply). If Mortgagee shall elect to proceed under the Code, then
ten days' notice of sale of the personal property shall be deemed reasonable
notice and the reasonable expenses of retaking, holding, preparing for sale,
selling and the like incurred by Mortgagee shall include, but not be limited to,
attorneys' fees and legal expenses. At Mortgagee's request, Mortgagor shall
assemble the personal property and make it available to Mortgagee at a place
designated by Mortgagee which is reasonably convenient to both parties.
(b) Mortgagor and Mortgagee agree, to the extent permitted by law,
that: (i) all of the goods described within the definition of the word
"Equipment" are or are to become fixtures on the Real Estate; (ii) this Mortgage
upon recording or registration in the real estate records of the proper office
shall constitute a financing statement filed as a "fixture filing" within the
meaning of Sections 9-313 and 9-402 of the Code; (iii) Mortgagor is the record
owner of the Real Estate; (v) the mailing addresses of Mortgagor and Mortgagee
are as set forth on the first page of this Mortgage; and (vi) Mortgagor's
federal tax identification number is _______________. In addition, for purposes
of Article 9 of the Michigan Uniform Commercial Code, (i) Mortgagor is the
"debtor", (ii) Mortgagee is the "secured party" and (iii) information concerning
the security interest created hereby may be obtained from Mortgagee at its
address on the first page of this Mortgage.
(c) Mortgagor, upon request by Mortgagee from time to time, shall
execute, acknowledge and deliver to Mortgagee one or more separate security
agreements, in form satisfactory to Mortgagee, covering all or any part of the
Mortgaged Property and will further execute, acknowledge and deliver, or cause
to be
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executed, acknowledged and delivered, any financing statement, affidavit,
continuation statement or certificate or other document as Mortgagee may request
in order to perfect, preserve, maintain, continue or extend the security
interest under and the priority of this Mortgage and such security instrument.
Mortgagor further agrees to pay to Mortgagee on demand all costs and expenses
incurred by Mortgagee in connection with the preparation, execution, recording,
filing and refiling of any such document and all reasonable costs and expenses
of any record searches for financing statements Mortgagee shall reasonably
require. If Mortgagor shall fail to furnish any financing or continuation
statement within 10 days after request by Mortgagee, then pursuant to the
provisions of the Code, Mortgagor hereby authorizes Mortgagee, without the
signature of Mortgagor, to execute and file any such financing and continuation
statements. The filing of any financing or continuation statements in the
records relating to personal property or chattels shall not be construed as in
any way impairing the right of Mortgagee to proceed against any personal
property encumbered by this Mortgage as real property, as set forth above.
20. Assignment of Rents. Mortgagor hereby assigns to Mortgagee the
Rents as further security for the payment and performance of the Obligations,
and Mortgagor grants to Mortgagee the right to enter the Mortgaged Property for
the purpose of collecting the same and to let the Mortgaged Property or any part
thereof, and to apply the Rents on account of the Obligations. The foregoing
assignment and grant is present and absolute and shall continue in effect until
the Obligations are paid and performed in full, but Mortgagee hereby waives the
right to enter the Mortgaged Property for the purpose of collecting the Rents
and Mortgagor shall be entitled to collect, receive, use and retain the Rents
until the occurrence of an Event of Default under this Mortgage; such right of
Mortgagor to collect, receive, use and retain the Rents may be revoked by
Mortgagee upon the occurrence of any Event of Default under this Mortgage by
giving not less than five days' written notice of such revocation to Mortgagor;
in the event such notice is given, Mortgagor shall pay over to Mortgagee, or to
any receiver appointed to collect the Rents, any lease security deposits, and
shall pay monthly in advance to Mortgagee, or to any such receiver, the fair and
reasonable rental value as determined by Mortgagee for the use and occupancy of
the Mortgaged Property or of such part thereof as may be in the possession of
Mortgagor or any affiliate of Mortgagor, and upon default in any such payment
Mortgagor and any such affiliate will vacate and surrender the possession of the
Mortgaged Property to Mortgagee or to such receiver, and in default thereof may
be evicted by summary proceedings or otherwise. Mortgagor shall not accept
prepayments of installments of Rent to become due for a period of more than one
month in advance (except for security deposits and estimated payments of
percentage rent, if any). Mortgagee shall be entitled to all of the rights and
benefits conferred by Act No. 210 of the Michigan Public Acts of 1953 as it may
be amended, including by Act
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No. 151 of the Michigan Public Acts of 1966 (MCLA 554.231 et seq.), and Act No.
228 of the Michigan Public Acts of 1925 as it may be amended, including by Act
No. 55 of the Michigan Public Acts of 1933 (MCLA 554.211 et seq.). The
collection of rents by Mortgagee shall in no way waive the right of Mortgagee to
foreclose this Mortgage in the event of any Event of Default.
21. Trust Funds. To the extent required under applicable law, all
lease security deposits of the Real Estate shall be treated as trust funds not
to be commingled with any other funds of Mortgagor. Within 10 days after request
by Mortgagee, Mortgagor shall furnish Mortgagee satisfactory evidence of
compliance with this subsection, together with a statement of all lease security
deposits by lessees and copies of all Leases not previously delivered to
Mortgagee, which statement shall be certified by Mortgagor.
22. Additional Rights. The holder of any subordinate lien on the
Mortgaged Property shall have no right to terminate any Lease whether or not
such Lease is subordinate to this Mortgage nor shall any holder of any
subordinate lien join any tenant under any Lease in any action to foreclose the
lien or modify, interfere with, disturb or terminate the rights of any tenant
under any Lease. By recordation of this Mortgage all subordinate lienholders are
subject to and notified of this provision, and any action taken by any such
lienholder contrary to this provision shall be null and void. Upon the
occurrence of any Event of Default, Mortgagee may, in its sole discretion and
without regard to the adequacy of its security under this Mortgage, apply all or
any part of any amounts on deposit with Mortgagee under this Mortgage against
all or any part of the Obligations. Any such application shall not be construed
to cure or waive any Event of Default or invalidate any act taken by Mortgagee
on account of such Event of Default.
23. Notices. Except as otherwise set forth herein, all notices,
requests, demands and other communications hereunder shall be given in
accordance with the provisions of Section 10.2 of the Credit Agreement to
Mortgagor and to Mortgagee as specified therein.
24. No Oral Modification. This Mortgage may not be amended,
supplemented or otherwise modified except in accordance with the provisions of
Section 10.1 of the Credit Agreement. Any agreement made by Mortgagor and
Mortgagee after the date of this Mortgage relating to this Mortgage shall be
superior to the rights of the holder of any intervening or subordinate lien or
encumbrance.
25. Partial Invalidity. In the event any one or more of the provisions
contained in this Mortgage shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, but each shall be construed as if
such
333
23
invalid, illegal or unenforceable provision had never been included.
Notwithstanding to the contrary anything contained in this Mortgage or in any
provisions of any Loan Document, the obligations of Mortgagor and of any other
obligor under any of the Loan Documents shall be subject to the limitation that
Mortgagee shall not charge, take or receive, nor shall Mortgagor or any other
obligor be obligated to pay to Mortgagee, any amounts constituting interest in
excess of the maximum rate permitted by law to be charged by Mortgagee.
26. Mortgagor's Waiver of Rights. To the fullest extent permitted by
law, Mortgagor waives the benefit of all laws now existing or that may
subsequently be enacted providing for (i) any appraisement before sale of any
portion of the Mortgaged Property, (ii) any extension of the time for the
enforcement of the collection of the Obligations or the creation or extension of
a period of redemption from any sale made in collecting such debt and (iii)
exemption of the Mortgaged Property from attachment, levy or sale under
execution or exemption from civil process. To the full extent Mortgagor may do
so, Mortgagor agrees that Mortgagor will not at any time insist upon, plead,
claim or take the benefit or advantage of any law now or hereafter in force
providing for any appraisement, valuation, stay, exemption, extension or
redemption, or requiring foreclosure of this Mortgage before exercising any
other remedy granted hereunder and Mortgagor, for Mortgagor and its successors
and assigns, and for any and all persons ever claiming any interest in the
Mortgaged Property, to the extent permitted by law, hereby waives and releases
all rights of redemption, valuation, appraisement, stay of execution, notice of
election to mature or declare due the whole of the secured indebtedness and
marshalling in the event of foreclosure of the liens hereby created.
27. Remedies Not Exclusive. Mortgagee shall be entitled to enforce
payment and performance of the Obligations and to exercise all rights and powers
under this Mortgage or under any of the other Loan Documents or other agreement
or any laws now or hereafter in force, notwithstanding some or all of the
Obligations may now or hereafter be otherwise secured, whether by mortgage,
security agreement, pledge, lien, assignment or otherwise. Neither the
acceptance of this Mortgage nor its enforcement, shall prejudice or in any
manner affect Mortgagee's right to realize upon or enforce any other security
now or hereafter held by Mortgagee, it being agreed that Mortgagee shall be
entitled to enforce this Mortgage and any other security now or hereafter held
by Mortgagee in such order and manner as Mortgagee may determine in its absolute
discretion. No remedy herein conferred upon or reserved to Mortgagee is intended
to be exclusive of any other remedy herein or by law provided or permitted, but
each shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. Every
power or remedy given by any of the Loan Documents to Mortgagee or to which it
may otherwise be entitled, may be exercised,
334
24
concurrently or independently, from time to time and as often as may be deemed
expedient by Mortgagee. In no event shall Mortgagee, in the exercise of the
remedies provided in this Mortgage (including, without limitation, in connection
with the assignment of Rents to Mortgagee, or the appointment of a receiver and
the entry of such receiver on to all or any part of the Mortgaged Property), be
deemed a "mortgagee in possession," and Mortgagee shall not in any way be made
liable for any act, either of commission or omission, in connection with the
exercise of such remedies.
28. Multiple Security. If (a) the Premises shall consist of one or
more parcels, whether or not contiguous and whether or not located in the same
county, or (b) in addition to this Mortgage, Mortgagee shall now or hereafter
hold one or more additional mortgages, liens, deeds of trust or other security
(directly or indirectly) for the Obligations upon other property in the State in
which the Premises are located (whether or not such property is owned by
Mortgagor or by others) or (c) both the circumstances described in clauses (a)
and (b) shall be true, then to the fullest extent permitted by law, Mortgagee
may, at its election, commence or consolidate in a single foreclosure action all
foreclosure proceedings against all such collateral securing the Obligations
(including the Mortgaged Property), which action may be brought or consolidated
in the courts of any county in which any of such collateral is located.
Mortgagor acknowledges that the right to maintain a consolidated foreclosure
action is a specific inducement to Mortgagee to enter into the Credit Agreement
and to extend the indebtedness guaranteed by the Guarantee and Collateral
Agreement, and Mortgagor expressly and irrevocably waives any objections to the
commencement or consolidation of the foreclosure proceedings in a single action
and any objections to the laying of venue or based on the grounds of forum non
conveniens which it may now or hereafter have. Mortgagor further agrees that if
Mortgagee shall be prosecuting one or more foreclosure or other proceedings
against a portion of the Mortgaged Property or against any collateral other than
the Mortgaged Property, which collateral directly or indirectly secures the
Obligations, or if Mortgagee shall have obtained a judgment of foreclosure and
sale or similar judgment against such collateral, then, whether or not such
proceedings are being maintained or judgments were obtained in or outside the
State in which the Premises are located, Mortgagee may commence or continue
foreclosure proceedings and exercise its other remedies granted in this Mortgage
against all or any part of the Mortgaged Property and Mortgagor waives any
objections to the commencement or continuation of a foreclosure of this Mortgage
or exercise of any other remedies hereunder based on such other proceedings or
judgments, and waives any right to seek to dismiss, stay, remove, transfer or
consolidate either any action under this Mortgage or such other proceedings on
such basis. Neither the commencement nor continuation of proceedings to
foreclose this Mortgage nor the exercise of any other rights hereunder nor the
recovery of any judgment by Mortgagee in any such proceedings shall
335
25
prejudice, limit or preclude Mortgagee's right to commence or continue one or
more foreclosure or other proceedings or obtain a judgment against any other
collateral (either in or outside the State in which the Premises are located)
which directly or indirectly secures the Obligations, and Mortgagor expressly
waives any objections to the commencement of, continuation of, or entry of a
judgment in such other proceedings or exercise of any remedies in such
proceedings based upon any action or judgment connected to this Mortgage, and
Mortgagor also waives any right to seek to dismiss, stay, remove, transfer or
consolidate either such other proceedings or any action under this Mortgage on
such basis. It is expressly understood and agreed that to the fullest extent
permitted by law, Mortgagee may, at its election, cause the sale of all
collateral which is the subject of a single foreclosure action at either a
single sale or at multiple sales conducted simultaneously and take such other
measures as are appropriate in order to effect the agreement of the parties to
dispose of and administer all collateral securing the Obligations (directly or
indirectly) in the most economical and least time-consuming manner.
29. Successors and Assigns. All covenants of Mortgagor contained in
this Mortgage are imposed solely and exclusively for the benefit of Mortgagee
and its successors and assigns, and no other person or entity shall have
standing to require compliance with such covenants or be deemed, under any
circumstances, to be a beneficiary of such covenants, any or all of which may be
freely waived in whole or in part by Mortgagee at any time if in its sole
discretion it deems such waiver advisable. All such covenants of Mortgagor shall
run with the land and bind Mortgagor, the successors and assigns of Mortgagor
(and each of them) and all subsequent owners, encumbrancers and tenants of the
Mortgaged Property, and shall inure to the benefit of Mortgagee, its successors
and assigns. The word "Mortgagor" shall be construed as if it read "Mortgagors"
whenever the sense of this Mortgage so requires and if there shall be more than
one Mortgagor, the obligations of the Mortgagors shall be joint and several.
30. No Waivers, etc. Any failure by Mortgagee to insist upon the
strict performance by Mortgagor of any of the terms and provisions of this
Mortgage shall not be deemed to be a waiver of any of the terms and provisions
hereof, and Mortgagee, notwithstanding any such failure, shall have the right
thereafter to insist upon the strict performance by Mortgagor of any and all of
the terms and provisions of this Mortgage to be performed by Mortgagor.
Mortgagee may release, regardless of consideration and without the necessity for
any notice to or consent by the holder of any subordinate lien on the Mortgaged
Property, any part of the security held for the obligations secured by this
Mortgage without, as to the remainder of the security, in any way impairing or
affecting the lien of this Mortgage or the priority of such lien over any
subordinate lien.
336
26
31. GOVERNING LAW, ETC. THIS MORTGAGE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN, EXCEPT THAT
MORTGAGOR EXPRESSLY ACKNOWLEDGES THAT BY THEIR RESPECTIVE TERMS THE CREDIT
AGREEMENT, THE NOTES AND THE GUARANTEE AND COLLATERAL AGREEMENT SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAW, AND FOR PURPOSES OF
CONSISTENCY, MORTGAGOR AGREES THAT IN ANY IN PERSONAM PROCEEDING RELATED TO THIS
MORTGAGE THE RIGHTS OF THE PARTIES TO THIS MORTGAGE SHALL ALSO BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK GOVERNING
CONTRACTS MADE AND TO BE PERFORMED IN THAT STATE, WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAW.
32. Certain Definitions. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Mortgage shall be used interchangeably in singular or plural form and the
word "Mortgagor" shall mean "each Mortgagor or any subsequent owner or owners of
the Mortgaged Property or any part thereof or interest therein," the word
"Mortgagee" shall mean "Mortgagee or any successor agent for the Lenders," the
words "Guarantee and Collateral Agreement" shall mean "the Guarantee and
Collateral Agreement, the Credit Agreement or any other evidence of indebtedness
secured by this Mortgage," the word "person" shall include any individual,
corporation, partnership, trust, unincorporated association, government,
governmental authority, or other entity, and the words "Mortgaged Property"
shall include any portion of the Mortgaged Property or interest therein.
Whenever the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice versa. The captions in this
Mortgage are for convenience or reference only and in no way limit or amplify
the provisions hereof.
33. Future Advances. This Mortgage is executed and delivered to
secure, among other things, future advances and re-advances. It is understood
and agreed that this Mortgage secures present and future advances and
re-advances made for the benefit of Mortgagor and that the lien of such future
advances and re-advances shall relate back to the date of this Mortgage.
34. Receipt of Copy. Mortgagor acknowledges that it has received a
true copy of this Mortgage.
35. Release. If Mortgagor shall and does pay to Mortgagee the full
principal amount of the indebtedness secured hereby, together with all interest
accrued thereon, and keeps all the other covenants and agreements contained
herein and in the Guarantee and Collateral Agreement and in the other Loan
Documents, all in the manner and at the times set forth herein or in the
Guarantee and Collateral Agreement and in the other Loan Documents, and if
Mortgagor shall also pay all satisfaction costs, including,
337
27
but not limited to, reasonable attorneys' fees and the cost of recording a
satisfaction piece and, if appropriate, a power-of-attorney to satisfy this
Mortgage, then and from thenceforth this Mortgage and the estate hereby created,
granted, transferred and assigned shall cease and become void.
This Mortgage has been duly executed by Mortgagor on ________________,
1999 and is intended to be effective as of __________________, 1999.
---------------------------------------
In the Presence of:
------------------------------
Print name: By:
---------------------------------------
Print name:
---------------------------
Title:
Print name:
338
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this ________ day
of _______________, 1999, by ______________, the [ ] President of
_______________________, a _________________ corporation, on behalf of the
corporation.
------------------------------------
Notary Public
[Notarial Stamp]
[Notary Seal]
339
Schedule A
Description of the Premises
[Attach Legal Description of all parcels; include
municipal tax assessment identification numbers] ]
340
EXHIBIT E
TO THE CREDIT AGREEMENT
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of
September 30, 1999 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Tenneco Inc. (the "Borrower"), the Lenders
parties thereto, the Co-Documentation Agents and the Syndication Agent parties
thereto and The Chase Manhattan Bank, as administrative agent for the Lenders
(in such capacity, the "Administrative Agent"). Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor")
and the Assignee identified on Schedule l hereto (the "Assignee") agree as
follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee without
recourse to the Assignor, and the Assignee hereby irrevocably purchases and
assumes from the Assignor without recourse to the Assignor, as of the Effective
Date (as defined below), the interest described in Schedule 1 hereto (the
"Assigned Interest") in and to the Assignor's rights and obligations under the
Credit Agreement with respect to those credit facilities contained in the Credit
Agreement as are set forth on Schedule 1 hereto (individually, an "Assigned
Facility"; collectively, the "Assigned Facilities"), in a principal amount for
each Assigned Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any of its Subsidiaries or any other
obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any Notes held
by it evidencing the Assigned Facilities and (i) requests that the Agent, upon
request by the Assignee, exchange the attached Notes for a new Note or Notes
payable to the Assignee and (ii) if the Assignor has retained any interest in
the Assigned Facility, requests that the Agent exchange the attached Notes for a
new Note or Notes payable to the Assignor, in each case in amounts which reflect
the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally authorized to
enter into this Assignment and Acceptance; (b) confirms that it has received a
copy of the Credit Agreement, together with copies of the financial statements
most recently delivered pursuant to Section 6.1 thereof and such other financial
information, documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Acceptance;
(c) agrees that it will, independently and without reliance upon the Assignor,
any 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
341
2
decisions in taking or not taking action under the Credit Agreement, the
other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the Agent by
the terms thereof, together with such powers as are incidental thereto; and (e)
agrees that it will be bound by the provisions of the Credit Agreement and will
perform in accordance with its terms all the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender including,
if it is organized under the laws of a jurisdiction outside the United States,
its obligation pursuant to subsection 2.19(d) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall
be the Effective Date of Assignment described in Schedule 1 hereto (the
"Effective Date"). Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent for acceptance by it and recording
by the Administrative Agent pursuant to the Credit Agreement, effective as of
the Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to the Effective Date
and to the Assignee for amounts which have accrued subsequent to the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.
6. From and after the Effective Date (a) the Assignee shall be
a party to the Credit Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Lender thereunder and under
the other Loan Documents and shall be bound by the provisions thereof and (b)
the Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
342
Schedule 1
to Assignment and Acceptance
Name of Assignor: ___________________________________
Name of Assignee: ___________________________________
Effective Date of Assignment: _______________________
Credit Facility Assigned Principal Amount Assigned Percentage Assigned1/
------------------------------------ ---------------------------------------------- --------------------------------
$_________ __________%
[Name of Assignee] [Name of Assignor]
By: ______________________________________________ By: ______________________________________________
Title: Title:
Consented To and Accepted By: [Consented To:
THE CHASE MANHATTAN BANK, as Administrative Agent TENNECO INC.2/
By: ______________________________________________ By: ______________________________________________
Title: Title:
1/ Calculate the percentage of the applicable Facility that is assigned to
at least 15 decimal places and show as a percentage of the aggregate Commitments
or Loans, as applicable, of all Lenders under the applicable Facility.
2/ The Borrower's consent should be obtained only if required by Section
10.6(c) of the Credit Agreement.
343
EXHIBIT F
TO THE CREDIT AGREEMENT
WASHINGTON OFFICE LAKE FOREST OFFICE
601 THIRTEENTH STREET, N.W. ONE WESTMINSTER PLACE
SUITE 1200 SOUTH LAKE FOREST, IL 60048
WASHINGTON, D.C. 20008 (647) 296-8200
(202) 630-80000 (247) 295-7210 FAX
(202) 630-6066 FAX
LAW OFFICES
JENNER & BLOCK
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
ONE IBM PLAZA
CHICAGO, ILLINOIS 60611-7602
(312) 222-9350
(312) 527-0484 FAX
September 30, 1999
The Chase Manhattan Bank, a national banking association,
as Administrative Agent under the Credit Agreement as hereinafter defined,
CITICORP USA, INC., as Syndication Agent under the Credit Agreement,
Commerzbank and Bank of America, as
Co-Documentation Agents
and
The Lenders which are parties to the Credit Agreement
on the date hereof (the "Initial Lenders")
Re: Tenneco Inc.
Ladies and Gentlemen:
We have acted as special counsel to Tenneco Inc., a Delaware corporation
(the "Borrower") in connection with the transactions contemplated in that
certain Credit Agreement dated as of September 30, 1999, among Administrative
Agent, CITICORP USA, INC., as Syndication Agent, Commerzbank and Bank of
America, as Co-Documentation Agents and each of the Lenders from time to time a
party thereto (the "Credit Agreement"). The opinions expressed below are being
provided pursuant to Section 5.1(e) of the Credit Agreement. Capitalized terms
used but not otherwise defined herein shall have the respective meanings given
such terms in the Credit Agreement (with references herein to the Credit
Agreement and each document defined therein meaning the Credit Agreement and
each such document as executed and delivered this date (or if executed and
delivered on an earlier date, as the same is in effect on the date hereof)). The
Initial Lenders and the Administrative Agent, the Co-Documentation Agents and
Syndication Agent are herein sometimes called "you". References herein to the
"Offering Memorandum" mean the Preliminary Offering Memorandum of the Borrower,
dated September 22, 1999, covering the offering and sale of the Senior
Subordinated Notes.
344
September 30, 1999
Page 2
We have reviewed executed counterparts of the Credit Agreement and each of
the other documents and instruments identified on the Schedule of Documents
attached hereto (the "Other Documents"), each in the form executed and delivered
on this date (or if executed and delivered on an earlier date, as the same is in
effect on the date hereof).
Subject to the assumptions, qualifications, exclusions and other
limitations which are identified in this opinion letter and in the schedules
attached to this opinion letter, it is our opinion that:
1. The Borrower was duly incorporated and is existing and in good standing
under the Delaware General Corporation Law ("DGCL"). The Borrower has the
corporate power and authority to own and lease its properties and assets of
which we are aware and to carry on the business in which it is presently
engaged as described in the Offering Memorandum.
2. The Borrower is qualified to do business as a foreign corporation and is in
good standing in the jurisdictions noted on the Schedule of Foreign
Qualifications attached hereto.
3. The Borrower has the corporate power to execute and deliver the Credit
Agreement, to borrow money under the Credit Agreement, and to perform its
obligations under the Credit Agreement.
4. The Board of Directors of Borrower has duly authorized Borrower's
execution, delivery and performance of the Credit Agreement, and no other
corporate action of Borrower is required in connection with such
authorizations.
5. The Credit Agreement has been duly executed and delivered by authorized
officers of the Borrower.
6. The Credit Agreement is a valid and binding obligation of Borrower and is
enforceable against Borrower in accordance with its terms.
7. The Borrower is not presently required to obtain any consent, approval,
authorization or order of any court or governmental or regulatory agency in
order to obtain the right to execute and deliver the Credit Agreement, to
borrow money under the Credit Agreement, and to perform its obligations
under the Credit Agreement except for those obtained prior to the date
hereof, which remain in full force and effect, or as may be required to be
obtained and be in full force and effect on the Funding Date.
345
September 30, 1999
Page 3
Each opinion in this letter is subject to the General Qualifications that
are recited in Schedule A to this letter to the extent relevant to that opinion.
In preparing this opinion letter, we have relied without any independent
verification upon the assumptions recited in Schedule B to this opinion letter
and upon: (i) factual information contained in certificates obtained from
governmental authorities, (ii) factual information represented to be true in the
Credit Agreement and the other Loan Documents; (iii) factual information
provided to us in a support certificate signed by each of the Loan Parties; and
(iv) factual information we have obtained from such other sources as we have
deemed reasonable. We have examined the originals or copies certified to our
satisfaction, of such other corporate records of the Loan parties as we deem
necessary for or relevant to this opinion, certificates of public officials and
other officers of the Loan Parties and we have assumed without investigation
that there has been no relevant change or development between the dates as of
which the information cited in the preceding sentence was given and the date of
this opinion letter and that the information upon which we have relied is
accurate and does not omit disclosures necessary to prevent such information
from being misleading.
While we have not conducted any independent investigation to determine
facts upon which our opinions are based or to obtain information about which
this opinion letter advises you, we confirm that we do not have any actual
knowledge which has caused us to conclude that our reliance and assumptions
cited in the preceding paragraph are unwarranted or that any information
supplied in this opinion letter is wrong. The terms "knowledge" and "actual
knowledge and references to "awareness" whenever used in this opinion letter
with respect to our firm means actual knowledge at the time this opinion letter
is delivered on the date it bears by Jenner & Block lawyers who have given
substantive attention to matters concerning the Loan Parties during the course
of our representation of the Loan Parties which knowledge has been obtained by
such attorneys in their capacity as such.
We are licensed to practice only in the State of Illinois and, insofar as
the opinions expressed herein involve matters of New York law, we have assumed
with your permission and without investigation, that the laws of New York are
substantially the same in all material respects as the laws of Illinois. Our
advise on every legal issue addressed in this opinion letter is based
exclusively on such internal laws of the State of Illinois (and, subject to the
provisions of the preceding sentence, the laws of the State of New York) and
such federal law of the United States which is in our experience normally
applicable to general business corporations not engaged in regulated business
activities and to transactions of the type contemplated in the Loan Documents
between the Loan Parties, on the one hand, and you on the other hand (but
without our having made any special investigation as to any other laws), except
that (i) we express no opinion or advice as to any law or legal issue (a) which
might be violated by any misrepresentation or omission or a fraudulent act, (b)
to which any Loan Party may be subject as a result of your legal or regulatory
status, your sale or
346
September 30, 1999
Page 4
transfer of the Loans or interests therein or your (as opposed to any other
lender's) involvement in the transactions contemplated by the Loan Documents, or
(c) identified on Schedule C, and (ii) the opinions in paragraphs 1 and 3
through 5 are based on the DGCL. For purposes of each opinion in the first
sentence of paragraph 1 and each opinion in paragraph 2, we have relied
exclusively upon certificates issued by a governmental authority in each
relevant jurisdiction and such opinion is not intended to provide any conclusion
or assurance beyond that conveyed by such certificates. We advise you that some
issues addressed by this opinion letter may be governed in whole or in part by
other laws, but we express no opinion as to whether any relevant difference
exists between the laws upon which our opinions are based and any other laws
which may actually govern. Our opinions do not cover or otherwise address any
provision of the Credit Agreement of any type identified in Schedule D.
Provisions in the Credit Agreement which are not excluded by Schedule D or any
other part of this opinion letter or its attachments are called the "Relevant
Agreement Terms."
Our advice on each legal issue addressed in this letter represents our
opinion as to how that issue would be resolved were it to be considered by the
highest court of the jurisdiction upon whose law our opinion on that issue is
based. The manner in which any particular issue would be treated in any actual
court case would depend in part on facts and circumstances particular to the
case, and this letter is not intended to guarantee the outcome of any legal
dispute which may arise in the future. It is possible that some Relevant
Agreement Terms of a remedial nature contained in the Credit Agreement may not
prove enforceable for reasons other than those cited in this letter should an
actual enforcement action be brought, but (subject to all the exceptions,
qualifications, exclusions and other limitations contained in this letter) such
unenforceability would not in our opinion prevent you from realizing the
principal benefits purported to be provided by the Relevant Agreement Terms of a
remedial nature contained in the Credit Agreement.
This opinion letter speaks as of the time of its delivery on the date it
bears. We do not assume any obligation to provide you with any subsequent
opinion or advice by reason of any fact about which we did not have actual
knowledge at that time, by reason of any change subsequent to that time in any
law covered by any of our opinions, or for any other reason. The attached
schedules are an integral part of this opinion letter, and any term defined in
this opinion letter or any schedule has that defined meaning wherever it is used
in this opinion letter or in any schedule to this opinion letter.
You may rely upon this letter only for the purpose served by the provision
in the Agreement cited in the initial paragraph of this opinion letter in
response to which it has been delivered. Without our written consent: (i) no
person other than you may rely on this opinion letter for any purpose; (ii) this
opinion letter may not be cited or quoted in any financial statement,
prospectus, private placement memorandum or other similar document; (iii) this
opinion letter may not be cited
347
September 30, 1999
Page 5
or quoted in any other document or communication which might encourage reliance
upon this opinion letter by any person or for any purpose excluded by the
restrictions in this paragraph, and (iv) copies of this opinion letter may not
be furnished to anyone for purposes of encouraging such reliance (except to the
extent such reliance is permitted (or would be permitted) pursuant to the
following sentence if such person became a Lender or participant).
Notwithstanding the foregoing persons who subsequently become Lenders in
accordance with the terms of 10.6 of the Credit Agreement (or participants in
accordance with the terms of Section 10.6 of the Credit Agreement) may rely on
this opinion letter as of the time of its delivery on the date hereof as if this
letter were addressed to them.
Sincerely,
Jenner & Block
348
Schedule A
General Qualifications
Our opinions in the opinion letter to which this Schedule A is attached
("our letter") are subject as follows to the following qualifications:
1. Bankruptcy and Insolvency Exception. Each of the opinions ("our
opinions") in our letter regarding the validity, binding effect and
enforceability of any Loan Document (the "Specified Opinions") is subject to the
effect of bankruptcy, insolvency, reorganization, receivership, moratorium and
other similar laws. This exception includes:
a. the Federal Bankruptcy Code and thus comprehends, among others, matters
of turnover, automatic stay, avoiding powers, fraudulent transfer, preference,
discharge, conversion of a non-recourse obligation into a recourse claim,
limitations on ipso facto and anti-assignment clauses and the coverage of
pre-petition security agreements applicable to property acquired after a
petition is filed;
b. all other Federal and state bankruptcy, insolvency, reorganization,
receivership, moratorium, arrangement and assignment for the benefit of
creditors laws that affect the rights of creditors generally or that have
reference to or affect only creditors of specific types of debtors;
c. state fraudulent transfer and conveyance laws; and
d. judicially developed doctrines in this area, such as substantive
consolidation of entities and equitable subordination.
2. Equitable Principles Limitation. Each of the Specified Opinions is
subject to the effect of general principles of equity, whether applied by a
court of law or equity. This limitation includes principles:
a. governing the availability of specific performance, injunctive relief
or other equitable remedies, which generally place the award of such remedies,
subject to certain guidelines, in the discretion of the court to which
application for such relief is made;
b. affording equitable defenses (e.g., waiver, laches and estoppel)
against a party seeking enforcement;
c. requiring good faith and fair dealing in the performance and
enforcement of a contract by the party seeking its enforcement;
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d. requiring reasonableness in the performance and enforcement of an
agreement by the party seeking enforcement of the contract;
e. requiring consideration of the materiality of (i) a breach and (ii) the
consequences of the breach to the party seeking enforcement;
f. requiring consideration of the impracticability or impossibility of
performance at the time of attempted enforcement; and
g. affording defenses based upon the unconscionability of the enforcing
party's conduct after the parties have entered into the contract.
3. Other Common Qualifications. Each of the Specified Opinions is subject
to the effect of rules of law that;
a. limit or affect the enforcement of provisions of a contract that
purport to waive, or to require waiver of, the obligations of good faith, fair
dealing, diligence and reasonableness;
b. provide that forum selection clauses in contracts are not necessarily
binding on the court(s) in the forum selected;
c. limit the availability of a remedy under certain circumstances where
another remedy has been elected;
d. provide a time limitation after which a remedy may not be enforced,
e. limit the right of a creditor to use force or cause a breach of the
peace in enforcing rights;
f. relate to the sale or disposition of collateral or the requirements of
a commercially reasonable sale,
g. limit the enforceability of provisions releasing, exculpating or
exempting a party from, or requiring indemnification of a party for, liability
for its own action or inaction, to the extent the action or inaction involves
negligence, recklessness, willful misconduct, unlawful conduct, violation of
public policy or litigation against another party determined adversely to such
party;
h. may, where less than all of a contract may be unenforceable, limit the
enforceability of the balance of the contract to circumstances in which the
unenforceable portion is not an essential part of the agreed exchange;
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i. govern and afford judicial discretion regarding the determination of
damages and entitlement to attorneys' fees and other costs;
j. may permit a party that has materially failed to render or offer
performance required by the contract to cure that failure unless (i) permitting
a cure would unreasonably hinder the aggrieved party from making substitute
arrangements for performance, or (ii) it was important in the circumstances to
the aggrieved party that performance occur by the date stated in the contract;
k. may render guarantees unenforceable under circumstances where the
beneficiary's actions, failures to act or waivers, amendments or replacement of
the documents evidencing or relating to the guaranteed obligations so radically
change the essential nature of the terms and conditions of the guaranteed
obligations and the related transactions that, in effect, a new relationship has
arisen between the beneficiary and any the principal obligor or any guarantor
which is substantially and materially different from that presently contemplated
by the original documents evidencing or relating to the guaranteed obligations;
and
l. limit the enforceablility of requirements in the Loan Documents that
provisions therein may only be waived or amended in writing, to the extent that
an oral agreement or an implied agreement by trade practice or course of conduct
has been created modifying any such provision.
4. Referenced Provision Qualification. Each opinion regarding the
validity, binding effect or enforceability of a provision (the "First
Provision") in the Loan Documents requiring any Loan Party to perform its
obligations under, or to cause any other person to perform its obligations
under, any other provision (the "Second Provision") of any Loan Document, or
stating that any action will be taken as provided in or in accordance with any
such Second Provision, are subject to the same qualifications as the
corresponding opinion in this letter relating to the validity, binding effect
and enforceability of such Second Provision.
5. Lender's Regulatory Qualification. We express no opinion with
respect to, and all our opinions are subject to, the effect of the compliance or
noncompliance of each of you with any state or federal laws or regulations
applicable to you because of your legal or regulatory status or the nature of
your business or requiring you to qualify to conduct business in any
jurisdiction.
6. Usury Qualification. We express no opinion with regard to usury or other
laws limiting or regulating the maximum amount of interest that may be changed,
collected, received or contracted for, other than the internal laws of the State
of Illinois and the federal laws of the United States, and, without limiting the
foregoing, we expressly disclaim any opinions as to the usury or other such laws
of any other jurisdiction (including laws of other states made applicable
through principles of federal preemption or otherwise) which may be applicable
to the transactions contemplated by the Loan Documents.
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SCHEDULE B
ASSUMPTIONS
For the purposes of our letter, we have relied, without investigation, upon
each of the following assumptions:
1. Each document submitted to us for review is accurate and complete,
each such document that is an original is authentic, each such document that is
a copy conforms to an authentic original and all signatures (other than those of
or on behalf of any Loan Party) on each such document are genuine.
2. Each certificate obtained from a governmental authority relied on by
us is accurate, complete and authentic and all relevant official public records
to which each such certificate relates are accurate and complete.
3. There has not been any mutual mistake of fact or misunderstanding,
fraud, duress or undue influence.
4. The Loan Documents constitute valid and binding obligations of yours
and are enforceable against you in accordance with their terms (subject to
qualifications, exclusions and other limitations similar to those applicable to
our letter).
5. You have satisfied those legal requirements that are applicable to you
to the extent necessary to make the Loan Documents to which you are a party
enforceable against you.
6. The conduct of the parties to the Loan Documents has complied with any
requirement of good faith, fair dealing and conscionability.
7. All parties to the transactions contemplated by the Loan Documents (the
"Transactions") will act in accordance with, and will refrain from taking any
action that is forbidden by, the terms and conditions of the Loan Documents.
8. With respect to the opinions set forth in opinion paragraph 7, we
assume no Loan Party will in the future take any discretionary action (including
a decision not to act) permitted under the Loan Documents that would result in a
violation of law or constitute a breach or default under any other agreements or
court orders to which the Loan Party may be subject.
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SCHEDULE C
EXCLUDED LAW AND LEGAL ISSUES
None of the opinions or advice contained in the letter to which this
Schedule C is attached (herein called "our letter") covers or otherwise
addresses any of the following legal issues:
1. except with respect to the extent of our opinion in paragraph 7,
federal securities laws and regulations administered by the Securities and
Exchange Commission, state "Blue Sky" laws and regulations, and laws and
regulations relating to commodity (and other) futures and indices and other
similar instruments;
2. pension and employee benefit laws and regulations (e.g., ERISA);
3. federal and state antitrust and unfair competition laws and
regulations;
4. federal laws, regulations, directives and executive orders that
prohibit or limit the enforceability of obligations based on attributes of the
party seeking enforcement (e.g., the Trading with the Enemy Act and the
International Emergency Economic Powers Act);
5. compliance with fiduciary duty requirements;
6. the statutes and ordinances, the administrative decisions and the
rules and regulations of counties, towns, municipalities and special political
subdivisions and judicial decisions to the extent that they deal with any of the
foregoing;
7. fraudulent transfer and fraudulent conveyance laws;
8. Federal and state environmental, tax, land use and subdivision,
racketeering (e.g., RICO), health and safety (e.g., OSHA), and labor laws and
regulations;
9. Federal patent, copyright and trademark, state trademark, and other
Federal and state intellectual property laws and regulations;
10. other Federal and state statutes of general application to the extent
they provide for criminal prosecution (e.g., mail fraud and wire fraud
statutes); and
11. the effect of any law, regulation or order which hereafter becomes
effective.
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SCHEDULE D
EXCLUDED PROVISIONS
None of the opinions in the letter to which this Schedule D is attached
covers or otherwise addresses any of the following types of provisions which may
be contained in the Loan Documents:
1. Choice-of-law provisions.
2. Indemnification for gross negligence, willful misconduct or other
wrongdoing or strict product liability or any indemnification for liabilities
arising under securities laws.
3. Provisions mandating contribution towards judgments or settlements
among various parties.
4. Waivers of (i) legal or equitable defenses, (ii) rights to damages,
(iii) rights to counter claim or set off, (iv) statutes of limitations, (v)
rights to notice, (vi) the benefits of statutory, regulatory, or constitutional
rights, unless and to the extent the statute, regulation, or constitution
explicitly allows waiver, and (vii) other benefits to the extent they cannot be
waived under applicable law.
5. Provisions providing for forfeitures or the recovery of amounts deemed
to constitute penalties, or for liquidated damages (to the extent deemed to be
penalties), acceleration of future amounts due (other than principal) without
appropriate discount to present value, late charges (to the extent deemed to be
penalties) and prepayment charges.
6. Agreements to submit to the jurisdiction of any particular court or
other governmental authority (either as to personal jurisdiction and subject
matter jurisdiction); waiver of service of process requirements which would
otherwise be applicable; and provisions otherwise purporting to affect the
jurisdiction and venue of courts.
7. Provisions appointing one party as an attorney-in-fact for an adverse
party or providing that the decision of any particular person will be
conclusive or binding on others.
8. Provisions purporting to limit rights of third parties who have not
consented thereto or purporting to grant rights to third parties.
9. Provisions which purport to award attorneys' fees solely to one party.
10. Provisions purporting to create a trust or constructive trust without
compliance with applicable trust law.
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11. Provisions or agreements regarding proxies, shareholder voting rights
and the like.
12. Confidentiality agreements.
13. Provisions in any of the Loan Documents requiring a Loan Party to
perform its obligations under, or to cause any other person to perform its
obligations under, or stating that any action will be taken as provided in or in
accordance with, any agreement or other document that is not a Loan Document.
14. Provisions, if any, which are contrary to the public policy of any
jurisdiction.
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SCHEDULE OF DOCUMENTS
1. The Certificate of Incorporation of Borrower
2. The By-Laws of Borrower
3. The resolutions adopted by the Board of Directors of Borrower on September
14, 1999;
4. Certificate of good standing issued by the State of Delaware with respect
to the Borrower; and
5. Certificate as to the qualification of Borrower as a foreign corporation in
the State of California.
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SCHEDULE OF FOREIGN QUALIFICATIONS
1. California
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EXHIBIT G
TO THE CREDIT AGREEMENT
FORM OF
PREPAYMENT OPTION NOTICE
[Tranche [B][C] Term Lender]
Attention of [ ]
Telecopy No. [ ]
[Date]
Ladies and Gentlemen:
The undersigned, The Chase Manhattan Bank, as Administrative
Agent, refers to the Credit Agreement, dated as of September 30, 1999 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among TENNECO INC., the lenders parties thereto (the "Lenders"),
the Co-Documentation Agent and the Syndication Agent parties thereto and THE
CHASE MANHATTAN BANK, as Administrative Agent. Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
the Credit Agreement. The Administrative Agent hereby gives notice of an offer
of prepayment made by the Borrower pursuant to Section 2.11(e) of the Credit
Agreement of the [Tranche B] [Tranche C] Prepayment Amount. Amounts applied to
prepay the [Tranche B] [Tranche C] Term Loans shall be applied pro rata to the
[Tranche B] [Tranche C] Term Loans held by you. The portion of the prepayment
amount to be allocated to the [Tranche B] [Tranche C] Term Loans held by you and
the date on which such prepayment will be made to you (should you elect to
receive such prepayment) are set forth below:
(A) Total [Tranche B] [Tranche C] Prepayment Amount -----------------
(B) Portion of [Tranche B] [Tranche C] Prepayment
Amount to be received by you -----------------
(C) Prepayment Date (Five Business Days after the date
of this Prepayment Option Notice) -----------------
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Please indicate below whether or not you wish to accept the
Borrower's prepayment offer by marking the appropriate box below, executing this
Prepayment Option Notice and returning it via telecopy to the Administrative
Agent (attention: [___________________]) no later than 10:00 a.m., New York City
time, _____________, _____, at Telecopy No. [________________]. Failure to
properly complete, execute and submit this Prepayment Option Notice in
accordance with the above terms shall be deemed to be notice that you accept the
Borrower's prepayment offer.
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: _________________
Name:
Title:
- LENDER ACCEPTS BORROWER'S PREPAYMENT OFFER
- LENDER DOES NOT ACCEPT BORROWER'S PREPAYMENT OFFER
By: ______________________________
Name:
Title:
__________________________________
[Name of Lender]
