Exhibit
10.1


 




 





CREDIT AGREEMENT


 


dated as of


 


February 22, 2010


 


among


 


SMURFIT-STONE CONTAINER CORPORATION,


 


SMURFIT-STONE CONTAINER ENTERPRISES, INC.,


as Borrower,


 


The Lenders Party Hereto


 


and


 


JPMORGAN CHASE BANK,

as Administrative Agent


 






 


J.P. MORGAN SECURITIES INC.,


DEUTSCHE BANK SECURITIES INC.


and


BANC OF AMERICA SECURITIES LLC,

as Joint Bookrunners and Co-Lead Arrangers


 


DEUTSCHE BANK SECURITIES INC.,

as Syndication Agent


 


BANC OF AMERICA SECURITIES LLC,


as Documentation Agent


 




 





[CSM Ref. No. 6701-826]


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  	
   

  	
   

  
	
  Definitions

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Defined
  Terms

  	
  2

  
	
  SECTION 1.02.

  	
  Terms
  Generally

  	
  37

  
	
  SECTION 1.03.

  	
  Classification
  of Loans and Borrowings

  	
  37

  
	
  SECTION 1.04.

  	
  Pro
  Forma Calculations

  	
  37

  
	
  SECTION 1.05.

  	
  Accounting
  Terms; GAAP

  	
  38

  



 


	
  ARTICLE II

  
	
   

  
	
  Term Loans

  
	
   

  
	
  SECTION 2.01.

  	
  Commitments

  	
  38

  
	
  SECTION 2.02.

  	
  Loans

  	
  39

  
	
  SECTION 2.03.

  	
  Notice
  of Borrowings

  	
  40

  
	
  SECTION 2.04.

  	
  Repayment
  of Loans; Evidence of Debt

  	
  41

  
	
  SECTION 2.05.

  	
  Fees

  	
  41

  
	
  SECTION 2.06.

  	
  Interest
  on Loans

  	
  42

  
	
  SECTION 2.07.

  	
  Default
  Interest

  	
  43

  
	
  SECTION 2.08.

  	
  Alternate
  Rate of Interest

  	
  43

  
	
  SECTION 2.09.

  	
  Termination
  and Reduction of Commitments

  	
  43

  
	
  SECTION 2.10.

  	
  Conversion
  and Continuation of Borrowings

  	
  44

  
	
  SECTION 2.11.

  	
  Repayment
  of Term Borrowings

  	
  46

  
	
  SECTION 2.12.

  	
  Optional
  Prepayments; Certain Loan Repurchases

  	
  46

  
	
  SECTION 2.13.

  	
  Mandatory
  Prepayments

  	
  47

  
	
  SECTION 2.14.

  	
  Reserve
  Requirements; Change in Circumstances; Increased Costs

  	
  50

  
	
  SECTION 2.15.

  	
  Indemnity

  	
  51

  
	
  SECTION 2.16.

  	
  Pro
  Rata Treatment

  	
  52

  
	
  SECTION 2.17.

  	
  Sharing
  of Setoffs and Realization of Security

  	
  52

  
	
  SECTION 2.18.

  	
  Payments

  	
  53

  
	
  SECTION 2.19.

  	
  Taxes

  	
  53

  
	
  SECTION 2.20.

  	
  Duty
  to Mitigate; Replacement of Lenders

  	
  57

  
	
  SECTION 2.21.

  	
  Defaulting
  Lenders

  	
  58

  
	
  SECTION 2.22.

  	
  Incremental
  Commitments

  	
  58

  
	
  SECTION 2.23.

  	
  Loan
  Repurchases

  	
  61

  
	
  SECTION 2.24.

  	
  Permitted
  Debt Exchanges

  	
  63

  
	
  SECTION 2.25.

  	
  Extensions
  of Loans

  	
  65

  
	
  SECTION 2.26.

  	
  Term
  Loan Refinancing Protection

  	
  68

  



 

















 


	
  ARTICLE III

  
	
   

  
	
  Representations and Warranties

  
	
   

  
	
  SECTION 3.01.

  	
  Organization;
  Powers

  	
  69

  
	
  SECTION 3.02.

  	
  Authorization;
  Absence of Conflicts

  	
  69

  
	
  SECTION 3.03.

  	
  Enforceability

  	
  69

  
	
  SECTION 3.04.

  	
  Governmental
  Approvals

  	
  69

  
	
  SECTION 3.05.

  	
  Financial
  Statements

  	
  70

  
	
  SECTION 3.06.

  	
  No
  Material Adverse Effect

  	
  70

  
	
  SECTION 3.07.

  	
  Title
  to Properties; Possession Under Leases

  	
  70

  
	
  SECTION 3.08.

  	
  Subsidiaries

  	
  71

  
	
  SECTION 3.09.

  	
  Litigation;
  Compliance with Laws

  	
  71

  
	
  SECTION 3.10.

  	
  Federal
  Reserve Regulations

  	
  71

  
	
  SECTION 3.11.

  	
  Investment
  Company Act

  	
  71

  
	
  SECTION 3.12.

  	
  Tax
  Returns

  	
  71

  
	
  SECTION 3.13.

  	
  No
  Material Misstatements

  	
  72

  
	
  SECTION 3.14.

  	
  Employee
  Benefit Plans

  	
  72

  
	
  SECTION 3.15.

  	
  Environmental
  and Safety Matters

  	
  73

  
	
  SECTION 3.16.

  	
  Solvency

  	
  75

  
	
  SECTION 3.17.

  	
  Security
  Documents

  	
  75

  
	
  SECTION 3.18.

  	
  Labor
  Matters

  	
  76

  
	
  SECTION 3.19.

  	
  Location
  of Real Property

  	
  76

  
	
  SECTION 3.20.

  	
  Patents,
  Trademarks, etc.

  	
  76

  



 


	
  ARTICLE IV

  
	
   

  
	
  Conditions

  
	
   

  
	
  SECTION 4.01.

  	
  Conditions
  Precedent to the Effectiveness of this Agreement on the Closing Date

  	
  77

  
	
  SECTION 4.02.

  	
  Conditions
  Precedent to the Making of the Term Loans on the Funding Date

  	
  78

  
	
  SECTION 4.03.

  	
  All
  Credit Events

  	
  82

  



 


	
  ARTICLE V

  
	
   

  
	
  Affirmative Covenants

  
	
   

  
	
  SECTION 5.01.

  	
  Existence;
  Businesses and Properties

  	
  82

  
	
  SECTION 5.02.

  	
  Insurance

  	
  82

  
	
  SECTION 5.03.

  	
  Payment
  of Taxes

  	
  83

  
	
  SECTION 5.04.

  	
  Financial
  Statements, Reports, etc.

  	
  83

  
	
  SECTION 5.05.

  	
  Litigation
  and Other Notices

  	
  85

  
	
  SECTION 5.06.

  	
  Maintaining
  Records; Access to Properties and Inspections

  	
  86

  



 


ii

















 


	
  SECTION 5.07.

  	
  Use
  of Proceeds

  	
  86

  
	
  SECTION 5.08.

  	
  Compliance
  with Law

  	
  86

  
	
  SECTION 5.09.

  	
  Further
  Assurances

  	
  86

  
	
  SECTION 5.10.

  	
  Information
  Regarding Collateral; Deposit Accounts

  	
  88

  
	
  SECTION 5.11.

  	
  Material
  Contracts

  	
  89

  
	
  SECTION 5.12.

  	
  Environmental
  Matters

  	
  89

  
	
  SECTION 5.13.

  	
  Maintenance
  of Ratings

  	
  89

  
	
  SECTION 5.14.

  	
  Certain
  Post-Funding Collateral Obligations

  	
  89

  
	
  SECTION 5.15.

  	
  Deposit
  of Certain Proceeds

  	
  89

  



 


	
  ARTICLE VI

  
	
   

  
	
  Negative Covenants

  
	
   

  
	
  SECTION 6.01.

  	
  Indebtedness

  	
  90

  
	
  SECTION 6.02.

  	
  Liens

  	
  92

  
	
  SECTION 6.03.

  	
  Sale/Leaseback
  Transactions

  	
  94

  
	
  SECTION 6.04.

  	
  Investments,
  Loans and Advances

  	
  95

  
	
  SECTION 6.05.

  	
  Mergers,
  Consolidations, Sales of Assets and Acquisitions

  	
  96

  
	
  SECTION 6.06.

  	
  Restricted
  Payments

  	
  98

  
	
  SECTION 6.07.

  	
  Transactions
  with Stockholders and Affiliates

  	
  99

  
	
  SECTION 6.08.

  	
  Business

  	
  99

  
	
  SECTION 6.09.

  	
  Limitations
  on Debt Prepayments

  	
  99

  
	
  SECTION 6.10.

  	
  Amendment
  of Certain Documents

  	
  99

  
	
  SECTION 6.11.

  	
  Limitation
  on Dispositions of Stock of Subsidiaries

  	
  100

  
	
  SECTION 6.12.

  	
  Restrictions
  on Ability of Subsidiaries to Pay Dividends

  	
  100

  
	
  SECTION 6.13.

  	
  Disposition
  of Collateral and Other Assets

  	
  101

  
	
  SECTION 6.14.

  	
  Fiscal
  Year

  	
  101

  
	
  SECTION 6.15.

  	
  Material
  Subsidiaries

  	
  101

  



 


iii

















 


	
  ARTICLE VII

  
	
   

  
	
  Events of Default

  
	
   

  
	
  ARTICLE VIII

  
	
   

  
	
  The Administrative Agent

  
	
   

  
	
  ARTICLE IX

  
	
   

  
	
  Miscellaneous

  
	
   

  
	
  SECTION 9.01.

  	
  Notices

  	
  109

  
	
  SECTION 9.02.

  	
  Survival
  of Agreement

  	
  109

  
	
  SECTION 9.03.

  	
  Counterparts;
  Binding Effect

  	
  110

  
	
  SECTION 9.04.

  	
  Successors
  and Assigns

  	
  110

  
	
  SECTION 9.05.

  	
  Expenses;
  Indemnity

  	
  114

  
	
  SECTION 9.06.

  	
  Right
  of Setoff

  	
  115

  
	
  SECTION 9.07.

  	
  Applicable
  Law

  	
  115

  
	
  SECTION 9.08.

  	
  Waivers;
  Amendment

  	
  115

  
	
  SECTION 9.09.

  	
  Release
  of Collateral and Guarantors

  	
  117

  
	
  SECTION 9.10.

  	
  Entire
  Agreement

  	
  117

  
	
  SECTION 9.11.

  	
  Waiver
  of Jury Trial

  	
  118

  
	
  SECTION 9.12.

  	
  Severability

  	
  118

  
	
  SECTION 9.13.

  	
  Headings

  	
  118

  
	
  SECTION 9.14.

  	
  Confidentiality

  	
  118

  
	
  SECTION 9.15.

  	
  Jurisdiction;
  Consent to Service of Process

  	
  119

  
	
  SECTION 9.16.

  	
  Certain
  Relationships

  	
  120

  
	
  SECTION 9.17.

  	
  USA
  Patriot Act

  	
  120

  
	
  SECTION 9.18.

  	
  Concerning
  the Intercreditor Agreement

  	
  120

  
	
  SECTION 9.19.

  	
  Qualified
  Secured Hedging Agreements and Qualified Secured Cash Management Agreements

  	
  121

  



 


iv

















 


SCHEDULES:


 


	
  Schedule
  1.01(a)

  	
  —

  	
  Material
  Subsidiaries

  
	
  Schedule
  1.01(b)

  	
  —

  	
  Mortgaged
  Properties

  
	
  Schedule
  2.01

  	
  —

  	
  Commitments

  
	
  Schedule
  3.07

  	
  —

  	
  Certain
  Title Matters

  
	
  Schedule
  3.08

  	
  —

  	
  Subsidiaries

  
	
  Schedule
  3.09

  	
  —

  	
  Litigation
  and Compliance with Laws

  
	
  Schedule
  3.14(b)

  	
  —

  	
  Canadian
  Pension Plan Matters

  
	
  Schedule
  3.15

  	
  —

  	
  Environmental
  Matters

  
	
  Schedule
  3.17(a)

  	
  —

  	
  UCC
  Lien Filing Offices

  
	
  Schedule
  3.18

  	
  —

  	
  Labor
  Matters

  
	
  Schedule
  3.19

  	
  —

  	
  Real
  Properties

  
	
  Schedule
  5.09(c)

  	
  —

  	
  Certain
  Non-Collateral Properties

  
	
  Schedule
  6.02(a)(iv)

  	
  —

  	
  Existing
  Liens

  
	
  Schedule
  6.04

  	
  —

  	
  Certain
  Permitted Investments

  



 


EXHIBITS:


 


	
  Exhibit A

  	
  —

  	
  Form of
  Assignment and Acceptance

  
	
  Exhibit B

  	
  —

  	
  Loan
  Auction Procedures

  
	
  Exhibit C

  	
  —

  	
  Form of
  Guarantee and Collateral Agreement

  
	
  Exhibit D

  	
  —

  	
  Form of
  Intercreditor Agreement

  
	
  Exhibit E

  	
  —

  	
  Form of
  Mortgage

  
	
  Exhibit F

  	
  —

  	
  Form of
  Perfection Certificate

  
	
  Exhibit G

  	
  —

  	
  Form of
  Notice of Borrowing

  
	
  Exhibit H

  	
  —

  	
  Form of
  Note

  
	
  Exhibit I

  	
  —

  	
  Form of
  Notice of Conversion or Continuation

  
	
  Exhibit J-1

  	
  —

  	
  Form of
  Closing Date Opinion of U.S. Counsel

  
	
  Exhibit J-2

  	
  —

  	
  Form of
  Closing Date Opinion of Craig A. Hunt

  



 


i

















 


CREDIT AGREEMENT dated as of February 22,
2010, among SMURFIT-STONE CONTAINER CORPORATION, a Delaware corporation (“SSCC”);
SMURFIT-STONE CONTAINER ENTERPRISES, INC., a Delaware corporation (“SSCE”);
the Lenders party hereto; and JPMORGAN CHASE BANK, N.A., a New York banking
corporation (“JPMCB”), as Administrative Agent.


 


SSCC
and certain of its Subsidiaries (such term and each other capitalized term used
but not otherwise defined in the preamble or in this introductory statement
having the meaning specified in Article I), are currently debtors
in reorganization proceedings (the “U.S. Proceedings”) under Chapter 11
of the United States Bankruptcy Code (the “Bankruptcy Code”), in the
United States Bankruptcy Court for the District of Delaware (the “U.S.
Bankruptcy Court”) (SSCC and such Subsidiaries, the “U.S. Entities”),
and SSC Canada and certain of its Subsidiaries (the “Canadian Entities”
and, together with the U.S. Entities, the “Company”) are currently
debtors subject to reorganization proceedings in Canada (the “Canadian
Proceedings” and, together with the U.S. Proceedings, the “Bankruptcy
Proceedings”) under the Companies’ Creditors Arrangement Act (“CCAA”)
in the Ontario Superior Court of Justice (the “Canadian Bankruptcy Court”
and, together with the U.S. Bankruptcy Court, the “Bankruptcy Court”).


 


The
U.S. Entities are continuing to operate their businesses and manage their
properties as debtors and debtors in possession under Sections 1107 and 1108 of
the Bankruptcy Code.


 


The
Company has filed a Joint Plan of Reorganization (the “Plan of
Reorganization”) with the Bankruptcy Court pursuant to which the Company
expects to be reorganized and emerge from the Bankruptcy Proceedings.  The Plan of Reorganization is described in,
and included as an exhibit to, the Company’s Disclosure Statement (the “Disclosure
Statement”) filed with the U.S. Bankruptcy Court on December 22, 2009
and is expected to be confirmed by the U.S. Bankruptcy Court and sanctioned by
the Canadian Bankruptcy Court.  Pursuant
to the Plan, on the Funding Date, SSCC will merge with and into the Borrower
(the “Funding Date Merger”), with the Borrower continuing as the
surviving corporation and changing its name to Smurfit-Stone Container
Corporation.


 


SSCC
and the Borrower have requested the Lenders to make Term Loans to the Borrower
on the Funding Date in an aggregate principal amount of $1,200,000,000.


 


The
proceeds of the Term Loans to be made on the Funding Date will be used by the
Borrower, together with cash on hand of the Borrower and its Subsidiaries, to
make cash payment of certain claims against the Borrower and its Subsidiaries
pursuant to the Plan of Reorganization and for general corporate purposes and
working capital needs.


 

















 


In
addition to the Loans to be provided hereunder, on or prior to the Funding
Date, the Borrower and certain of its Subsidiaries will enter into the
Revolving Facility, which will be secured by a perfected first priority
security interest in, among other items, the Revolving Facility Collateral and
a perfected second priority security interest in the Term Facility Collateral.  The Obligations hereunder will be secured by
a perfected first priority security interest in the Term Facility Collateral
and a perfected second priority security interest in the Revolving Facility
Collateral owned by the Loan Parties.


 


The
Lenders are willing to extend such credit to the Borrower, on the terms and
subject to the conditions set forth herein. 
Accordingly, the parties hereto agree as follows:


 


ARTICLE I


 


Definitions


 


SECTION 1.01.
Defined Terms.  As used in this
Agreement, the following terms shall have the meanings specified below:


 


“ABR”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Alternate Base Rate.


 


“Acquired
Entity” is defined in Section 6.05(f).


 


“Acquisition
Indebtedness” is defined in Section 6.01(j).


 


“Act”
is defined in Section 9.17.


 


“Additional
RP Condition” is defined in Section 6.06(b).


 


“Adjusted
LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to the product of (a) the LIBO Rate in effect
for such Interest Period and (b) Statutory Reserves.  Notwithstanding the foregoing, the Adjusted
LIBO Rate for any applicable Interest Period will be deemed to be 2.00% per
annum if the Adjusted LIBO Rate for such Interest Period calculated pursuant to
the foregoing provisions would otherwise be less than 2.00% per annum.


 


“Administrative
Agent” shall mean JPMCB, in its capacity as administrative agent hereunder
and under the other Loan Documents, and its successors in such capacity as
provided in Article VIII.


 


“Administrative
Questionnaire” shall mean an Administrative Questionnaire in a form
supplied by the Administrative Agent.


 


2

















 


“Affiliate”
shall mean, when used with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.  For purposes of this definition, neither any
Lender nor any Affiliate of a Lender (other than any such Affiliate that is SSCC,
the Borrower or a Subsidiary) shall be deemed to be an Affiliate of SSCC, the
Borrower or any of the Subsidiaries solely by reason of its ownership of or
right to vote any Indebtedness or equity securities of SSCC, the Borrower or
any of the Subsidiaries.


 


“After-Acquired
Mortgage Property” shall mean a parcel (or adjoining parcels) of real
property (including any improvements thereon) acquired in fee ownership by any
Loan Party after the Funding Date.


 


“Agreement”
shall mean this credit agreement.


 


“Alternate
Base Rate” shall mean the highest of (i) the rate of interest per
annum publicly announced by the Administrative Agent as its prime rate in
effect at its principal office in New York City (the “Prime Rate”), (ii) the
federal funds effective rate from time to time plus 0.5% and (iii) the
Adjusted LIBO Rate for a one month interest period plus 1.00%.  Notwithstanding the foregoing, the Alternate
Base Rate shall be deemed to be 3.00% per annum if the Alternate Base Rate
calculated pursuant to the foregoing provisions would otherwise be less than
3.00% per annum.


 


“Applicable
Rate” shall mean (except as otherwise provided in the Incremental Term Loan
Assumption Agreement with respect to any Other Term Loan), for any day, (a) with
respect to any ABR Loan, 3.75% and (b) with respect to any Eurodollar
Loan, 4.75%.


 


“Approved
Fund” shall mean any Person (other than a natural person) that is engaged
in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender
or (c) an entity or an Affiliate of an entity that administers or manages
a Lender.


 


“Arrangers”
shall mean J.P. Morgan Securities Inc., Deutsche Bank Securities Inc. and Banc
of America Securities LLC.


 


“Asset
Exchange” shall mean any transfer of operating properties or assets by SSCC
or any of the Subsidiaries to any Person in which at least 75% of the
consideration received by the transferor consists of operating properties or
assets of comparable use.


 


“Asset
Sale” shall mean the sale, transfer or other disposition (including any
casualty or condemnation) by the Borrower or any Subsidiary to any Person other
than a Loan Party or a wholly owned Subsidiary of (a) any capital stock in
any Person, (b) substantially all the assets of any geographic or other
division or line of business of the Borrower or any of the Subsidiaries or (c) any
Real Property or a portion of any Real Property or any other asset or assets
(excluding any assets manufactured, constructed or


 


3

















 


otherwise
produced or purchased for sale to others in the ordinary course of business and
any Permitted Investments) of the Borrower or any Subsidiary; provided
that none of the following shall constitute an “Asset Sale” for purposes of
this Agreement:  (i) the sale of
inventory in the ordinary course of business, (ii) any sale, transfer or
other disposition having a value not in excess of $5,000,000, (iii) any
sale of assets in connection with any Permitted Timber Financing, (iv) the
sale of assets (other than Collateral) securing any Indebtedness permitted
hereunder (other than the Loans), if and to the extent such Indebtedness shall
be repaid, redeemed or repurchased in full with the proceeds of such asset sale
(or any other payment made contemporaneously therewith) and (v) any
issuance of capital stock by the Borrower.


 


“Assignment
and Acceptance” shall mean an assignment and acceptance entered into by a
Lender and an assignee (with the consent of any Person whose consent is
required by Section 9.04(b)), in the form of Exhibit A
or such other form as shall be approved by the Administrative Agent.


 


“Attributable
Indebtedness” shall mean, with respect to any Sale/Leaseback Transaction
that does not result in a Capital Lease, at any date of determination, the
product of (a) the net proceeds from such Sale/Leaseback Transaction and (b) a
fraction, the numerator of which is the number of full years of the term of the
lease relating to the property involved in such Sale/Leaseback Transaction
(without regard to any options to renew or extend such term) remaining at the
date of the making of such computation and the denominator of which is the
number of full years of the term of such lease (without regard to any options
to renew or extend such term) measured from the first day of such term.


 


“Auction
Manager” is defined in Section 2.23(a).


 


“Auction
Notice” shall mean an auction notice given by the Borrower in accordance
with the Auction Procedures with respect to a Purchase Offer.


 


“Auction
Procedures” shall mean the auction procedures with respect to Purchase
Offers set forth in Exhibit B hereto.


 


“Bankruptcy
Code” is defined in the preamble to this Agreement.


 


“Bankruptcy
Court” is defined in the preamble to this Agreement.


 


“Bankruptcy
Proceedings” is defined in the preamble to this Agreement.


 


“Board”
shall mean the Board of Governors of the Federal Reserve System of the
United States.


 


“Borrower”
shall mean, prior to the Funding Date Merger, SSCE, and on and after the
Funding Date Merger, the Borrower hereunder will be the corporation surviving
such merger, which will have changed its name to “Smurfit-Stone Container
Corporation”.


 


4
















 


“Borrower
Restricted Information” shall mean material non-public information with
respect to SSCC, the Borrower or their Subsidiaries or with respect to the
securities of any such Person.


 


“Borrower’s
Portion of Excess Cash Flow” shall mean, at any date of determination, the
amount of Excess Cash Flow for the partial fiscal year of the Borrower
commencing on July 1, 2010 and ending on December 31, 2010, and for
each full fiscal year thereafter ending prior to the date of determination,
that (a) was not and is not required to be applied to the prepayment of
Term Loans pursuant to Section 2.13 and (b) has not been
utilized on or prior to the date of determination to make Restricted Payments
pursuant to Section 6.06(b)(ii).


 


“Borrowing”
shall mean a group of Loans of the same Class and Type, and made,
converted or continued by the Lenders on a single date and as to which a single
Interest Period is in effect.


 


“Business
Day” shall mean any day (other than a Saturday, Sunday or legal holiday in
the State of New York) on which banks are open for business in New York City
and Chicago; provided, however, that when used in connection with
a Eurodollar Loan or Eurodollar Borrowing, the term “Business Day” shall also
exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.


 


“Canadian
Bankruptcy Court” is defined in the preamble to this Agreement.


 


“Canadian
Benefit Plans” shall mean all employee benefit plans of any nature or kind
whatsoever (other than the Canadian Pension Plans) that are maintained or
contributed to by SSC Canada or any other Canadian Subsidiary.


 


“Canadian
Entities” is defined in the preamble to this Agreement.


 


“Canadian
GAAP” shall mean generally accepted accounting principles in Canada, as
recommended from time to time by the Canadian Institute of Chartered
Accountants, applied on a consistent basis.


 


“Canadian
Pension Plans” shall mean each plan that is considered to be a pension plan
for the purposes of the ITA or any applicable pension benefits standards
statute and/or regulation in Canada and that is established, maintained or
contributed to by SSC Canada or any other Canadian Subsidiary for its current
or former employees.


 


“Canadian
Proceedings” is defined in the preamble to this Agreement.


 


“Canadian
Subsidiaries” shall mean the Subsidiaries organized under the laws of
Canada or any province or other political subdivision thereof.


 


“Capital
Lease” is defined in the definition of the term “Capital Lease Obligations”.


 


5

















 


“Capital
Lease Obligations” of any Person shall mean the obligations of such Person
to pay rent or other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination thereof (each, a “Capital
Lease”), which obligations are required to be classified and accounted for
as capital leases on a balance sheet of such Person under GAAP.  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.


 


“Cash
Management Agreement” shall mean any agreement for the provision of Cash
Management Services.


 


“Cash
Management Services” shall mean (i) cash management services,
including treasury, depository, overdraft, electronic funds transfer and other
cash management arrangements and (ii) commercial credit card and merchant
card services.


 


“Cash
Management Services Obligations” shall mean any and all obligations of the
Loan Parties or any Subsidiaries, whether absolute or contingent and howsoever
and whensoever created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor) in connection
with Cash Management Services; provided that the obligations of the Loan
Parties or any Subsidiaries with respect to Cash Management Services described
in clause (ii) of the definition thereof shall not exceed an aggregate
principal amount of $10,000,000.


 


“Cash
Proceeds” shall mean, with respect to any Asset Sale, cash, cash
equivalents or marketable securities received from such Asset Sale, including
any insurance or condemnation proceeds and proceeds received by way of deferred
payment pursuant to a note receivable or otherwise (other than the portion of
such deferred payment constituting interest, which shall be deemed not to
constitute Cash Proceeds).


 


“CCAA”
is defined in the preamble to this Agreement.


 


“CERCLA”
is defined in Section 3.15(a)(iv).


 


A
“Change in Control” shall be deemed to have occurred if (a) (x) on
or prior to the Funding Date, a majority of the seats (other than vacant seats)
on the board of directors of SSCC or SSCE shall at any time be occupied by
persons who were neither (i) nominated by the board of directors of SSCC
or SSCE, as the case may be, nor (ii) appointed by directors so nominated;
other than seats filled either on or shortly after the Funding Date and
specifically contemplated by the Plan of Reorganization or (y) after the
Funding Date, a majority of the seats (other than vacant seats) on the board of
directors of the Borrower shall at any time be occupied by persons who were not
(i) members of the board of directors of the Borrower on the Funding Date
(or appointed shortly thereafter as specifically contemplated by the Plan of
Reorganization), (ii) nominated by the board of directors of the Borrower
after the Funding Date or (iii) appointed by the directors referred to in
clause (y)(i) or (ii) after the Funding Date, (b) on or at any
time after the Funding Date, any person or group (within the meaning of Rule 13d-5
of the Securities and Exchange Act of 1934, as in effect on the date hereof)
shall


 


6

















 


own,
directly or indirectly, beneficially or of record, shares representing more
than 35% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of the Borrower; or (c) any time prior to the
Funding Date, SSCC shall cease to own, directly or indirectly, beneficially and
of record, 100% of the issued and outstanding capital stock of SSCE.


 


“Change
of Law” is defined in Section 2.19(f).


 


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


 


“Closing
Date” shall mean the date on which this Agreement has become effective as a
result of the conditions specified in Section 4.01 having been
satisfied (or waived in accordance with Section 9.08 hereof).


 


“Code”
shall mean the Internal Revenue Code of 1986, or any successor statute thereto,
as the same may be amended from time to time.


 


“Collateral”
shall mean any and all assets and properties of the Loan Parties that are
required to be subject to Liens (whether Term Facility Collateral or Revolving
Facility Collateral) securing any of the Obligations, including all “Collateral”
(as defined in (a) prior to the Funding Date, the Guarantee and Collateral
Agreement attached hereto as Exhibit C and (b) on and after
the Funding Date, the Guarantee and Collateral Agreement), and the Mortgaged
Properties.


 


“Collateral
and Guarantee Requirement” shall mean, at any time, the requirement that:


 


(a)  the Administrative Agent shall have
received from the Borrower, each of the other Persons required to become a Loan
Party and the other parties thereto either (i) counterparts of each of the
Guarantee and Collateral Agreement, the Intercreditor Agreement and the other
Security Documents, duly executed and delivered on behalf of such parties or (ii) in
the case of any Person that is required to become a Loan Party after the
Funding Date, joinder instruments in the form or forms specified in the
Guarantee and Collateral Agreement, the Intercreditor Agreement or the other
Security Documents, as applicable, under which such Loan Party becomes a party
to the applicable Guarantee and Collateral Agreement, the Intercreditor
Agreement or the other Security Documents, as applicable, duly executed and
delivered on behalf of such Loan Party;


 


(b)  all Equity Interests in (x) each
Guarantor, (y) SSC Canada (or, if applicable, each Foreign Subsidiary that
owns, directly or indirectly, any Equity Interests of SSC Canada and the Equity
Interests of which are owned directly by one or more Loan Parties) and (z) each
other Foreign Subsidiary of the Borrower that is a Material Subsidiary and
Equity Interests of which are owned directly by


 


7

















 


one
or more Loan Parties shall have been pledged pursuant to, and to the extent
required by, the Guarantee and Collateral Agreement and, in the case of Equity
Interests in any Foreign Subsidiary, if requested by the Administrative Agent,
a Foreign Pledge Agreement (provided that the Loan Parties shall not be
required to pledge more than 65% of the issued and outstanding voting Equity
Interests of SSC Canada or any other Foreign Subsidiary), and the
Administrative Agent shall have received certificates or other instruments (to
the extent issuable, including by amending any applicable governing documents,
in certificate form) representing all such Equity Interests, together with
undated stock powers or other instruments of transfer with respect thereto
endorsed in blank;


 


(c)  (i) all Indebtedness (including
amounts owed in connection with the intercompany settlements referred to in Section 5.15(i) and
other intercompany receivables) of the Borrower and each other Subsidiary that
is owing to any Loan Party shall be evidenced by a promissory note and shall
have been pledged pursuant to the Guarantee and Collateral Agreement and (ii) all
Indebtedness of any other Person that is owing to any Loan Party and is
evidenced by a promissory note (other than Indebtedness in a principal amount
of less than $5,000,000, so long as the aggregate principal amount of
Indebtedness not pledged under this exclusion does not exceed $10,000,000)
shall have been pledged pursuant to the Guarantee and Collateral Agreement, and
in each case, the Administrative Agent shall have received all such promissory
notes, together with undated instruments of transfer with respect thereto
endorsed in blank;


 


(d)  the Administrative Agent shall have
received a lender’s title insurance policy insuring that each Mortgage relating
to any Mortgaged Property constitutes a first lien on such Mortgaged Property
(subject to any Lien expressly permitted by Section 6.02 or
otherwise agreed to by the Administrative Agent), and the Administrative Agent
shall have received such other documents relating to Mortgaged Properties as
reasonably requested in writing by the Administrative Agent;


 


(e)  all documents and instruments, including
Uniform Commercial Code financing statements, required by applicable law or
reasonably requested by the Administrative Agent to be filed, registered or
recorded to create the Liens intended to be created by the Security Documents
and perfect such Liens to the extent required by, and with the priority
required by, the Security Documents, shall have been filed, registered or
recorded or delivered to the Administrative Agent for filing, registering or
recording; and


 


(f)  with respect to each deposit account of
any Loan Party (other than (i) any disbursement deposit account the funds
in which are used solely for the payment of salaries and wages, employee
benefits, workers’ compensation and similar expenses or that has an ending
daily balance of zero, (ii) trust accounts for the benefit of directors,
officers or employees and (iii) deposit accounts, other than lockbox or
collection accounts, the daily balance in which does not at any time exceed
$3,500,000 for all such accounts, provided, however,


 


8

















 


that,
in the case of each of clauses (i), (ii) and (iii), no Control Agreement
over any such excluded account is entered into for the benefit of the Revolver
Collateral Agent) and each securities account and commodities account
maintained by any Loan Party with any depositary bank, securities intermediary
or commodity intermediary, the Administrative Agent shall have received a
counterpart, duly executed and delivered by the applicable Loan Party and such
depositary bank, securities intermediary or commodity intermediary, as the case
may be, of a Control Agreement (which Control Agreements may also be for the
benefit of the Revolver Collateral Agent); provided that no such Control
Agreement shall be required to be entered into pursuant to this clause (f) until
the later of (A) the Funding Date and (B) 60 days after the Closing
Date (or, in either case, such later date as agreed in writing by the
Administrative Agent).


 


Notwithstanding
the foregoing provisions of this definition or anything in this Agreement or
any Loan Document to the contrary, (a) the foregoing definition shall not
require the creation or perfection of pledges of or security interests in, or
the obtaining of title insurance, legal opinions or other deliverables with
respect to, particular assets of the Loan Parties, if, and for so long as the
Administrative Agent, in consultation with SSCC and the Borrower, determines
that the burden or cost of creating or perfecting such pledges or security
interests in such assets, or obtaining such title insurance, legal opinions or
other deliverables in respect of such assets (taking into account any adverse
tax consequences to the Borrower and its Affiliates (including the imposition
of withholding or other material taxes)), shall be excessive in view of the
benefits to be obtained by the Lenders therefrom, (b) if the
Administrative Agent reasonably determines that the Borrower shall have used
commercially reasonable efforts to procure and deliver, but shall nevertheless
be unable to deliver, any Mortgage (or any Mortgage related documents) or
Control Agreement that is required to be delivered in order to satisfy the
foregoing requirements, such delivery shall not be a condition precedent to the
Funding Date, but shall be required to be accomplished by such later date as
the Administrative Agent shall reasonably determine, (c) in no event shall
the Collateral include any asset if, to the extent and for so long as the grant
of a Lien thereon to secure the Obligations is prohibited by any applicable
law, regulation or contract (other than to the extent that any such prohibition
would be rendered ineffective pursuant to any other applicable law) or would
result in material and adverse tax consequences.


 


“Commitment”
shall mean, with respect to each Lender, such Lender’s Term Loan Commitment or
Incremental Term Loan Commitment.


 


“Company”
is defined in the preamble to this Agreement.


 


“Confidential
Information Memorandum” shall mean the Confidential Information
Memorandum of SSCC dated January 2010.


 


“Confirmation
Order” is defined in Section 4.02(j).


 


“Consolidated
Capital Expenditures” shall mean, for any period, all amounts that
would be included as additions to property, plant and equipment and other


 


9

















 


capital
expenditures on a consolidated statement of cash flows for SSCC and its
Subsidiaries during such period in accordance with GAAP (excluding capitalized
interest but including the amount of assets leased under any Capital Lease); provided,
however, that in no event shall Consolidated Capital Expenditures
include (a) amounts expended (in compliance with the provisions of any
Mortgage, if applicable) in the replacement, repair or reconstruction of any
fixed or capital asset which was destroyed, damaged or condemned, in whole or
in part, to the extent property insurance or condemnation proceeds are
receivable or have been received by SSCC or any such Subsidiary in respect of
such destruction, damage or condemnation, (b) any capital expenditures substantially
concurrently made or committed to be made with the Net Cash Proceeds from any
issuance of Equity Interests by SSCC or the Borrower, (c) any Investments
made pursuant to Section 6.04(k) or (d) any Permitted
Acquisitions.


 


“Consolidated
Current Assets” shall mean, as at any date of determination, the total
assets (other than cash and cash equivalents) of SSCC and its Subsidiaries on a
consolidated basis that may properly be classified as current assets in
conformity with GAAP.


 


“Consolidated
Current Liabilities” shall mean, as at any date of determination, the total
liabilities of SSCC and its Subsidiaries on a consolidated basis that may
properly be classified as current liabilities in conformity with GAAP, provided
that the current maturities of long-term Indebtedness for money borrowed of
SSCC and its Subsidiaries, any Indebtedness permitted under Section 6.01
that is classified as a current liability in conformity with GAAP and any taxes
payable solely as a result of Asset Sales shall be excluded from the definition
of Consolidated Current Liabilities.


 


“Consolidated EBITDA”
shall mean, for any period, Consolidated Net Income for such period, plus:


 


(a) without duplication
and to the extent deducted in determining such Consolidated Net Income, the sum
of:


 


(i) Consolidated Interest Expense for such
period;


 


(ii) provision for taxes based on income,
profits or losses (determined on a consolidated basis) during such period;


 


(iii) all amounts attributable to depreciation,
depletion and amortization of intangibles for such period;


 


(iv) any extraordinary charges or extraordinary
losses for such period;


 


(v) any Non-Cash Charges for such period;


 


(vi) restructuring charges for such period
relating to current or anticipated future cash expenditures, including
restructuring costs related to closure or consolidation of facilities, in an
aggregate amount not to


 


10

















 


exceed
in any fiscal year $25,000,000; provided that commencing in the fiscal
year beginning on January 1, 2011, such maximum aggregate amount of
restructuring charges shall be increased by the amount, if positive, by which
$25,000,000 exceeds the amount of such restructuring charges in the immediately
preceding fiscal year, but not to exceed $18,750,000;


 


(vii) cash fees, costs, expenses, commissions
or other cash charges incurred during such period in connection with this
Agreement, the Revolving Facility Documents, the Bankruptcy Proceedings, the
Plan of Reorganization and the transactions contemplated by the foregoing,
including in connection with the termination or settlement of executory
contracts, professional and accounting fees, costs and expenses, management
incentive, employee retention or similar plans (in each case to the extent such
plan is approved by the U.S. Bankruptcy Court), and litigation and settlements
(but excluding interest and fees accruing after the Funding Date hereunder or
under the Revolving Facility) in an aggregate amount for all periods after December 31,
2009, not in excess of $65,000,000; and


 


(ix) deferred financing fees (and any
write-offs thereof);


 


provided that, to the
extent not reflected in Consolidated Net Income for the period in which such
cash payment is made, any cash payment made with respect to any Non-Cash
Charges added back in computing Consolidated EBITDA for any prior period
pursuant to clause (v) above (or that would have been added back had this
Agreement been in effect during such prior period) shall be subtracted in
computing Consolidated EBITDA for the period in which such cash payment is
made; and minus


 


(b) without duplication and to the extent included in determining
such Consolidated Net Income:


 


(i) any extraordinary gains for such period;
and


 


(ii) any non-cash gains for such period
(excluding any non-cash gain to the extent it represents the reversal of an
accrual or reserve for a potential cash item that reduced Consolidated EBITDA
in any prior period);


 


in each case of clauses (a) and (b), determined on a consolidated
basis in accordance with GAAP; provided  further that Consolidated
EBITDA for any period shall be calculated so as to exclude (without duplication
of any adjustment referred to above) the effect of:


 


(A) the cumulative effect of any changes in GAAP or accounting
principles applied by management;


 


(B) any gain or loss for such period that represents after-tax
gains or losses attributable to any sale, transfer or other disposition or
abandonment of assets by


 


11

















 


SSCC,
the Borrower or any of the Subsidiaries, other than dispositions or sales of inventory
and other dispositions in the ordinary course of business;


 


(C) any income or loss for such period attributable to the early
extinguishment of Indebtedness or accounts payable;


 


(D) any non-cash gains or losses on foreign currency derivatives
and any foreign currency transaction non-cash gains or losses and any foreign
currency exchange translation gains or losses that arise on consolidation of
integrated operations;


 


(E) any re-evaluation of inventory or other assets or any
liabilities due to “fresh-start” accounting adjustments upon the Borrower’s
emergence from the Bankruptcy Proceedings; and


 


(F) mark-to-market adjustments in the valuation of derivative
obligations resulting from the application of Statement of Financial Accounting
Standards No. 133, Accounting for
Derivative Instruments and Hedging Activities.


 


Notwithstanding
the foregoing, for purposes hereof, Consolidated EBITDA for each of the fiscal
quarters ended March 31, 2009, June 30, 2009, September 30, 2009
and December 31, 2009, shall be $131,268,000, $144,331,000, $121,329,000
and $97,932,000 respectively.


 


“Consolidated
Interest Expense” shall mean, for any period, the interest expense (net of
interest income on Permitted Investments) of SSCC and its Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP, excluding
any fees and expenses payable or amortized during such period by SSCC and its
consolidated Subsidiaries in connection with the amortization of deferred debt
issuance costs.  For purposes of the
foregoing, interest expense shall be determined after giving effect to any net
payments made or received by SSCC and its consolidated Subsidiaries with
respect to Hedging Agreements, but excluding any gain or loss recognized under
GAAP that results from the mark-to-market valuation of any Hedging Agreement.


 


“Consolidated
Leverage Ratio” shall mean, on any date of determination, the ratio
obtained by dividing (a) Indebtedness of SSCC and its consolidated
Subsidiaries on such date by (b) Consolidated EBITDA for the period of
twelve consecutive months most recently ended prior to such date.  In any period of four consecutive fiscal
quarters in which a Permitted Acquisition occurs, the Consolidated Leverage
Ratio shall be determined on a pro forma basis in accordance with Section 1.04.


 


“Consolidated
Net Income” shall mean, for any period, the net income (or loss) of SSCC
and its Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with GAAP, provided that
there shall be excluded from such calculation (a) the net gains (or
losses) associated with the sale of any asset not in the ordinary course of
business, (b) any income or gains associated with or resulting from the
purchase or acquisition of Term Loans or Other Term Loans by SSCC, the Borrower
or any Subsidiary, (c) the income (or loss) of any consolidated


 


12

















 


Subsidiary
that is not wholly owned by SSCC to the extent such income (or loss) is
attributable to the noncontrolling interest in such consolidated Subsidiary, (d) the
income (or loss) of any Person accrued prior to the date it becomes (or, for
pro forma purposes, is deemed to have become) a Subsidiary or is merged into or
consolidated with SSCC, the Borrower or any of the Subsidiaries or the date
that Person’s assets are acquired by SSCC, the Borrower or any of the
Subsidiaries and (e) the effect of any re-evaluation of inventory or other
assets or any liabilities due to “fresh-start” accounting adjustments upon the
Borrower’s emergence from the Bankruptcy Proceedings.


 


“Consolidated
Senior Secured Leverage Ratio” shall mean, on any date of determination,
the ratio obtained by dividing (a) Senior Secured Indebtedness of SSCC and
its consolidated Subsidiaries on such date by (b) Consolidated EBITDA for
the period of four consecutive fiscal quarters ending on or most recently prior
to such date.  In any period of four
consecutive fiscal quarters in which a Permitted Acquisition occurs, the
Consolidated Senior Secured Leverage Ratio shall be determined on a pro forma
basis in accordance with Section 1.04.


 


“Control”
of a Person shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by contract or
otherwise.  “Controlling” and “Controlled”
shall have meanings correlative thereto.


 


“Control
Agreement” means, with respect to any deposit account, securities account
or commodities account maintained by any Loan Party, a control agreement in
form and substance reasonably satisfactory to the Administrative Agent, duly
executed and delivered by such Loan Party and the depositary bank, the
securities intermediary or commodity intermediary, as the case may be, with
which such account is maintained.


 


“Credit
Event” is defined in Article IV.


 


“Credit
Facility” shall mean a Class of Commitments and extensions of credit
thereunder.  For purposes of this
Agreement, each of the following comprises a separate Credit Facility:  (a) the Term Loan Commitment and the
Term Loans, (b) the Incremental Term Loan Commitments and the Other Term
Loans and (c) the Incremental Revolving Commitments and the loans or other
extensions of credit pursuant thereto.


 


“Current
Extension Loans” is defined in Section 2.25(c).


 


“Default”
shall mean any event or condition that upon notice, lapse of time or both would
constitute an Event of Default.


 


“Default
Rate” is defined in Section 2.07.


 


“Defaulting
Lender” means any Lender, as determined by the Administrative Agent, that
has (a) failed to fund its portion of any Borrowing within three Business
Days of the date on which it shall have been required to fund the same, (b) notified
the Borrower, the Administrative Agent or any Lender in writing that it does
not


 


13

















 


intend
to comply with any of its funding obligations under this Agreement or has made a
public statement to the effect that it does not intend to comply with its
funding obligations under this Agreement or under other agreements in which it
commits to extend credit, (c) failed, within three Business Days after
request by the Administrative Agent, to confirm that it will comply with the
terms of this Agreement relating to its obligations to fund Loans, (d) otherwise
failed to pay over to the Administrative Agent or any other Lender any other
amount required to be paid by it hereunder within three Business Days of the
date when due, unless the subject of a good faith dispute, or (e) (i) become
or is insolvent or has a parent company that has become or is insolvent or (ii) become
the subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee, administrator, assignee for the benefit of creditors or
similar Person charged with reorganization or liquidation of its business or
custodian, appointed for it, or has taken any action in furtherance of, or
indicating its consent to, approval of or acquiescence in any such proceeding
or appointment or has a parent company that has become the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or custodian
appointed for it, or has taken any action in furtherance of, or indicating its
consent to, approval of or acquiescence in any such proceeding or appointment,
unless, in the case of any Lender referred to in this clause (e), the Borrower
and the Administrative Agent shall be satisfied that such Lender intends, and
has all approvals required to enable it, to continue to perform its obligations
as a Lender hereunder.


 


“Disclosure
Statement” is defined in the preamble to this Agreement.


 


“Domestic”
when used in reference to any item, shall mean that such item is within the
United States or any State thereof (including the District of Columbia).


 


“Domestic
Subsidiary” shall mean any Subsidiary organized under the laws of the
United States or any State thereof (including the District of Columbia).


 


“Environmental
Laws” shall mean all current and future federal, state, provincial, local
and foreign laws, rules or regulations, codes, ordinances, orders,
decrees, judgments or injunctions issued, promulgated, approved or entered
thereunder or other requirements of Governmental Authorities or the common law,
relating to health, safety, or pollution or protection of the environment,
natural resources, the climate or threatened or endangered species, including
laws relating to emissions, discharges, Releases or threatened releases of, or
exposure to, pollutants, contaminants, chemicals or industrial, toxic or
hazardous substances, or wastes into the environment (including ambient air,
surface water, groundwater, land surface or subsurface strata) or otherwise
relating to the manufacture, processing, distribution, use, generation,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances, or
wastes, or underground storage tanks and emissions or releases therefrom.


 


“Equity
Interests” shall mean the shares of capital stock, partnership interests, membership
interests, beneficial interests or other ownership interests, whether


 


14
















 


voting
or nonvoting, in, or interests in the income or profits of, a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any of the foregoing.


 


“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, or any
successor statute, as the same may be amended from time to time.


 


“ERISA
Affiliate” shall mean any trade or business (whether or not incorporated)
that, together with SSCC, is treated as a single employer under Section 414(b) or
414(c) of the Code or, solely for purposes of Section 302 of ERISA
and Section 412 of the Code, is treated as a single employer under Section 414
of the Code.


 


“ERISA
Event” shall mean (a) any “reportable event”, as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) a failure
by any Plan to satisfy the minimum funding standard within the meaning of Section 412
of the Code or Section 302 of ERISA, applicable to such Plan, in each case
whether or not waived; (c) the filing pursuant to Section 412(d) of
the Code or Section 303(c) of ERISA or Section 412(c) of
the Code or Section 302(c) of ERISA, of an application for a waiver
of the minimum funding standard with respect to any Plan; (d) a
determination that any Plan is, or is expected to be, in “at-risk” status (as
defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of
the Code); (e) the incurrence by SSCC or any of its ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination of
any Plan; (f) the receipt by SSCC or any ERISA Affiliate from the PBGC or
a plan administrator of any notice relating to an intention to terminate any
Plan or Plans or to appoint a trustee to administer any Plan; (g) the
incurrence by SSCC or any of its ERISA Affiliates of any liability with respect
to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (h) the
receipt by SSCC or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from SSCC or any ERISA Affiliate of any notice, concerning
the imposition of Withdrawal Liability or a determination that a Multiemployer
Plan is, or is expected to be, insolvent or in reorganization, within the
meaning of Title IV of ERISA or in endangered or critical status, within
the meaning of Section 432 of the Code or Section 305 of ERISA; (i) the
occurrence of a non-exempt “prohibited transaction” (as defined in Section 4975
of the Code or Section 406 of ERISA) with respect to which SSCC or any of
its ERISA Affiliates is a “disqualified person” (as defined in Section 4975
of the Code) or a “party in interest” (as defined in Section 406 of ERISA)
or could otherwise be liable; or (j) any other event or condition with
respect to a Plan or Multiemployer Plan that could result in liability of SSCC
or any of its ERISA Affiliates.


 


“Eurodollar”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.


 


“Event
of Default” is defined in Article VII.


 


15

















 


“Excess
Cash Flow” shall mean, for any period, (a) the sum, without
duplication, of (i) Consolidated Net Income during such period, (ii) the
amount of depreciation, depletion, amortization of intangibles, deferred taxes,
accreted and zero coupon bond interest and other non-cash expenses, losses or
other charges that, pursuant to GAAP, were deducted in determining such
Consolidated Net Income, (iii) the proceeds or incurrence of any Capital
Leases of SSCC and its Subsidiaries on a consolidated basis, (iv) reductions,
other than reductions attributable solely to Asset Sales, to working capital for
such period (i.e., the decrease in Consolidated Current Assets minus
Consolidated Current Liabilities from the beginning to the end of such period
(but excluding the effects of any re-classification of any assets or
liabilities from short-term to long-term or from long-term to short-term), and (v) Indebtedness
(other than revolving loans under the Revolving Facility) of SSCC and its
consolidated Subsidiaries created, incurred or assumed in respect of the
purchase or construction of property minus (b) the sum, without
duplication, of (i) the amount of all non-cash gains, income or other
credits included in determining Consolidated Net Income, (ii) additions to
working capital for such period (i.e., the increase in Consolidated
Current Assets minus Consolidated Current Liabilities from the beginning
to the end of such period (but excluding the effects of any re-classification
of any assets or liabilities from short-term to long-term or from long-term to
short-term), (iii) the regularly scheduled payments of Repayment Amounts
made during such period, (iv) optional prepayments of Term Loans made
during such period under Section 2.12(a) other than any such
prepayment that was required to satisfy the Additional RP Condition in
connection with a Restricted Payment made during such period under Section 6.06(b)(ii),
(v) scheduled and optional payments or prepayments of the principal amount
of permitted Indebtedness other than the Loans, but only to the extent
that such payments or prepayments cannot by their terms be reborrowed or
redrawn and do not occur in connection with a refinancing of all or any portion
of such permitted Indebtedness and are otherwise permitted hereby, (vi) Consolidated
Capital Expenditures for such period and the aggregate cash consideration paid
by SSCC and the Subsidiaries during such period on account of Permitted
Acquisitions (except to the extent such Consolidated Capital Expenditures or
Permitted Acquisitions are financed with the Net Cash Proceeds from an Asset
Sale or an issuance of Indebtedness (other than Indebtedness referred to in clauses
(a)(iii) and (v) above) or Equity Interests), (vii) Restricted
Payments made during such period under Section 6.06(b)(iii), and (viii) cash
payments made during such period to fund pension plans for employees of the
Borrower and the Subsidiaries, but only to the extent such cash expenditures
exceed the amounts expensed in respect of pension funding obligations under
GAAP for such period; provided, however, that, except as
otherwise specifically contemplated by the foregoing provisions, none of the
following shall be included in a determination of Excess Cash Flow: (x) amounts
expended for any Investment permitted under Section 6.04 and any
proceeds from the subsequent sale or other disposition of any such Investment, (y) except
as specifically contemplated above, the proceeds of any issuance of debt
securities in the capital markets or of the issuance of equity securities, in
each case, not otherwise prohibited hereunder and (z) the proceeds from
the sale of assets of SSCC or any Subsidiary to the extent such proceeds would
be required (before giving effect to any waiver) to mandatorily prepay any
permitted Indebtedness (including the Loans). 
Notwithstanding the foregoing, Excess Cash Flow for any period shall be 


 


16

















 


calculated
without taking into account any gains or losses due to any re-evaluation of
assets or liabilities due to “fresh start” accounting upon the Borrower’s
emergence from the Bankruptcy Proceedings, including positive or negative
effects on working capital.


 


“Excluded
Subsidiaries” shall mean, collectively, Timber Capital Holdings LLC, a
Delaware limited liability company, and Timber Note Holdings LLC, a Delaware
limited liability company.


 


“Extended
Maturity Date” is defined in Section 2.25(a).


 


“Extension”
is defined in Section 2.25(a).


 


“Extension
Amendments” is defined in Section 2.25(e).


 


“Extension
Offer” is defined in Section 2.25(a).


 


“Fair
Market Value” is defined in Section 5.09(d).


 


“Federal
Funds Effective Rate” shall mean, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) 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 (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day of such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.


 


“Fees”
shall mean the fees described in Section 2.05.


 


“Financial
Officer” of any Person shall mean the chief financial officer, principal
accounting officer, treasurer, controller or assistant treasurer of such
Person.


 


“Foreign”
when used in reference to any item, shall mean that such item is not Domestic.


 


“Foreign
Pledge Agreement” shall mean a pledge or charge agreement granting a Lien
on Equity Interests in a Foreign Subsidiary to secure the Obligations, governed
by the law of the jurisdiction of organization of such Foreign Subsidiary and
in form and substance reasonably satisfactory to the Administrative Agent.


 


“Foreign
Subsidiary” shall mean Smurfit-Stone Puerto Rico and any Subsidiary that is
not a Domestic Subsidiary.


 


“Funding
Date” shall mean the date on which the conditions specified in Section 4.02
are satisfied (or waived in accordance with Section 9.08).


 


“Funding
Date Merger” is defined in the preamble to this Agreement.


 


17

















 


“GAAP”
shall mean generally accepted accounting principles in the United States,
applied on a consistent basis.


 


“Governmental
Authority” shall mean any Federal, state, provincial, regional, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.


 


“Guarantee”
of or by any Person shall mean any obligation, contingent or otherwise (whether
or not denominated as a guarantee), of such Person guaranteeing any
Indebtedness of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person,
direct or indirect, (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however,
that the term “Guarantee” shall not include endorsements for collection or
deposit in the ordinary course of business. 
The amount of any Guarantee at any time shall be deemed to be an amount
equal to the lesser at such time of (x) the stated or determinable amount
of the primary obligation in respect of which such Guarantee is made or (y) the
maximum amount for which such Person may be liable pursuant to the terms of the
instrument embodying such Guarantee (or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof).


 


“Guarantee
and Collateral Agreement” shall mean the Guarantee and Collateral
Agreement, among the Borrower, the Domestic Subsidiaries party thereto and the
Administrative Agent, for the benefit of the Secured Parties, substantially in
the form of Exhibit C hereto with such modifications thereto as the
Administrative Agent may agree.


 


“Guarantors”
shall mean each Subsidiary that guarantees the Obligations pursuant to the
Guarantee and Collateral Agreement; provided that no Excluded Subsidiary
shall be required to become a Guarantor hereunder.


 


“Hazardous
Materials” is defined in Section 3.15(a)(iv).


 


“Hedging
Agreement” shall mean any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no
phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of SSCC or the Subsidiaries shall be a Hedging Agreement.


 


18

















 


“Incremental
Commitment Amount” shall mean, at any time of determination, $400,000,000
minus (i) the aggregate amount of all Incremental Term Loan Commitments
and Incremental Revolving Commitments established prior to such time and (ii) the
aggregate amount of reductions in the Incremental Commitment Amount effected
pursuant to Section 2.13(c).


 


“Incremental
Facility” is defined in Section 2.22(a).


 


“Incremental
Facility Agreement” shall mean an Incremental Term Loan Assumption
Agreement or an Incremental Revolving Facility Assumption Agreement.


 


“Incremental
Lender” is defined in Section 2.22(a).


 


“Incremental
Revolving Commitment” is defined in Section 2.22(a).


 


“Incremental
Revolving Facility” is defined in Section 2.22(a).


 


“Incremental
Revolving Facility Assumption Agreement” shall mean an Incremental
Revolving Facility Assumption Agreement among the Borrower, the Administrative
Agent and one or more Incremental Revolving Lenders establishing an Incremental
Revolving Facility hereunder.


 


“Incremental
Revolving Lender” is defined in Section 2.22(a).


 


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


 


“Incremental
Term Loan Assumption Agreement” shall mean an Incremental Term Loan
Assumption Agreement, in form and substance reasonably satisfactory to the
Administrative Agent, among the Borrower, the Administrative Agent and one or
more Incremental Term Lenders establishing a Class of Other Term Loans
hereunder.


 


“Incremental
Term Loan Commitment” shall mean the commitment of any Lender, established
pursuant to Section 2.22, to make Other Term Loans to the Borrower.


 


“Incremental
Term Loan Maturity Date” shall mean the final maturity date of any Other
Term Loan, as set forth in the applicable Incremental Term Loan Assumption
Agreement.


 


“Incremental
Term Loan Repayment Amount” is defined in Section 2.11(b).


 


“Incremental
Term Loan Repayment Dates” shall mean the dates scheduled for the repayment
of principal of any Incremental Term Loan, as set forth in the applicable
Incremental Term Loan Assumption Agreement.


 


19

















 


“Incurrence
Test” is defined in Section 6.01.


 


“Indebtedness”
of any Person shall mean, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations of
such Person under conditional sale or other title retention agreements relating
to assets purchased by such Person, (d) all obligations of such Person
issued or assumed as the deferred purchase price of property or services
(excluding (i) trade accounts payable and accrued expenses arising in the
ordinary course of business and (ii) any contingent earnout or other
contingent payment obligation incurred in connection with an acquisition
permitted hereunder (but only to the extent that such obligation has not become
fixed)), (e) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien on property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed by such Person (and in
the event such Person has not assumed or otherwise become liable for payment of
such obligation, the amount of Indebtedness under this clause (e) shall
be the lesser of the amount of such obligation and the fair market value of
such property), (f) all Guarantees by such Person, (g) all Capital
Lease Obligations of such Person, (h) all net obligations of such Person
in respect of Hedging Agreements (such net obligations to be equal at any time
to the termination value of such Agreements or other arrangements that would be
payable by or to such Person at such time) and (i) all obligations of such
Person as an account party to reimburse any bank or any other Person in respect
of letters of credit.  The Indebtedness
of any Person shall include the Indebtedness of any partnership in which such
Person is a general partner, except to the extent such Indebtedness is
expressly non-recourse to such Person.


 


“Indemnitee”
is defined in Section 9.05(b).


 


“Information”
is defined in Section 9.14(a).


 


“Insolvency
Law” shall mean, to the extent applicable, (a) Title 11 of the
United States Code, (b) the Bankruptcy and Insolvency Act (Canada), (c) the
Companies’ Creditors Arrangement Act (Canada), and (d) any similar
Federal, provincial, state, local or foreign bankruptcy or insolvency law, in
each case as now constituted or hereafter amended or enacted.


 


“Intercreditor
Agreement” shall mean an Intercreditor Agreement among the Borrower, the
Guarantors, the Administrative Agent, the Revolver Collateral Agent and, if
applicable, one or more Senior Representatives for holders of Permitted Second
Lien Notes, substantially in the form of Exhibit D hereto with such
modifications thereto as the Administrative Agent may agree.


 


“Interest
Coverage Ratio” shall mean, on the date of any incurrence of Indebtedness
or any other event, including any change in interest rates applicable to
existing Indebtedness resulting from a modification or amendment to the
documents governing such Indebtedness, in respect of which the Incurrence Test
is to be satisfied (the “Test Date”), the ratio of (a) aggregate
amount of Consolidated EBITDA for the then 


 


20

















 


most
recent four fiscal quarters for which financial statements have been delivered
immediately prior to such date (the “Four Quarter Period”) to (b) the
aggregate Consolidated Interest Expense for such Four Quarter Period.  In making the foregoing calculation, (A) pro
forma effect shall be given to any Indebtedness incurred or repaid (including
any Indebtedness irrevocably called for redemption) during the period (the “Reference
Period”) commencing on the first day of the Four Quarter Period and ending
on the Test Date (other than Indebtedness incurred or repaid under the
Revolving Facility or similar arrangement except to the extent commitments
thereunder (or under any predecessor or successor revolving credit or similar
arrangement in effect on the last day of such Four Quarter Period) are
permanently reduced), in each case as if such Indebtedness had been incurred or
repaid on the first day of such Reference Period; (B) Consolidated
Interest Expense attributable to interest on any Indebtedness (whether existing
or being incurred) computed on a pro forma basis and bearing a floating
interest rate shall be computed as if the rate in effect on the Test Date
(taking into account any Hedging Agreement applicable to such Indebtedness if
such Hedging Agreement has a remaining term in excess of 12 months or, if
shorter, at least equal to the remaining term of such Indebtedness) had been
the applicable rate for the entire period; (C) pro forma effect shall be
given to Asset Sales and Permitted Acquisitions (including giving pro forma
effect to the application of proceeds of any Asset Sale) that occur during such
Reference Period as if they had occurred and such proceeds had been applied on
the first day of such Reference Period; and (D) pro forma effect shall be
given to asset sales and permitted acquisitions (including giving pro forma
effect to the application of proceeds of any asset sale) that have been made by
any Person that has become a Loan Party or has been merged with or into the
Borrower or any Loan Party during such Reference Period and that would have
constituted Asset Sales or Permitted Acquisitions had such transactions
occurred when such Person was a Loan Party as if such asset sales or permitted
acquisitions were Asset Sales or Permitted Acquisitions that occurred on the
first day of such Reference Period; provided that to the extent that
clause (C) or (D) of this sentence requires that pro forma effect be
given to an Asset Sale or Permitted Acquisition, such pro forma calculation
shall be based upon the four full fiscal quarters immediately preceding the
Test Date of the Person, or division or line of business of the Person, that is
acquired or disposed for which financial information is available.


 


“Interest
Payment Date” shall mean (a) with respect to any Loan, the last day of
the Interest Period applicable to the Borrowing of which such Loan is a part
and (b) with respect to any Eurodollar Borrowing with an Interest Period
of more than three months’ duration, each day that would have been an Interest
Payment Date had successive Interest Periods of three months’ duration been
applicable to such Borrowing.


 


“Interest
Period” shall mean (a) as to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing or on the last day of the immediately
preceding Interest Period applicable to such Borrowing, as the case may be, and
ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6
months thereafter (or, if consented to by all affected Lenders, 9 or 12 months
thereafter), or such period of time shorter than 1 month as may be agreed to by
the Administrative Agent, in each case, as the Borrower thereof may elect and (b) as
to any ABR Borrowing, the period 


 


21

















 


commencing
on the date of such Borrowing or on the last day of the immediately preceding
Interest Period applicable to such Borrowing, as the case may be, and ending on
the earlier of (i) the next succeeding April 1, July 1, October 1
or January 2 and (ii) the Term Loan Maturity Date or an Incremental
Term Loan Maturity Date, as applicable; provided, however, that,
if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless,
in the case of a Eurodollar Borrowing only, such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day. 
Interest shall accrue from and including the first day of an Interest
Period to but excluding the last day of such Interest Period.


 


“Investment”
shall mean, as applied to any Person (the “investor”), any direct or
indirect purchase or other acquisition by the investor of, or a beneficial
interest in, stock or other securities of any other Person, including any
exchange of equity securities for Indebtedness, or any direct or indirect loan,
advance (other than advances to employees for moving and travel expenses,
drawing accounts and similar expenditures in the ordinary course of business)
or capital contribution by the investor to any other Person, including all
Indebtedness and accounts receivable owing to the investor from such other
Person that did not arise from sales or services rendered to such other Person
in the ordinary course of the investor’s business.  Except for any Investment described in the
immediately succeeding sentence, the amount of any Investment shall be the
original cost of such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment minus any
amounts (a) realized upon the disposition of assets comprising an
Investment (including the value of any liabilities assumed by any Person other
than SSCC, the Borrower or any Subsidiary in connection with such disposition),
(b) constituting repayments of Investments that are loans or advances or (c) constituting
cash returns of principal or capital thereon (including any dividend,
redemption or repurchase of equity that is accounted for, in accordance with
GAAP, as a return of principal or capital). 
For purposes of this Agreement, the redemption, purchase or other
acquisition for value by any Subsidiary of any shares of its capital stock from
a Person other than SSCC, the Borrower or any other Subsidiary shall be deemed
to be an “Investment” by such Subsidiary in its shares of capital stock.


 


“IP
Security Agreements” shall have the meaning set forth in (a) prior to
the Funding Date, the Guarantee and Collateral Agreement attached hereto as Exhibit C
and (b) on and after the Funding Date, the Guarantee and Collateral
Agreement.


 


“ITA”
shall mean the Income Tax Act (Canada), as amended, and any successor thereto,
and any regulations promulgated thereunder.


 


“JPMCB”
is defined in the preamble to this Agreement.


 


“Latest
Maturity Date” means, at any date of determination, the latest maturity
date of any Term Loan or Other Term Loan, in each case as extended in
accordance with this Agreement from time to time.


 


22

















 


“Lenders”
shall mean the Persons listed on Schedule 2.01 (and their
respective successors, which shall include any entity resulting from a merger
or consolidation) and any other Person that shall have become a party hereto
pursuant to an Assignment and Acceptance or an Incremental Facility Agreement,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance.


 


“LIBO
Rate” shall mean, with respect to any Eurocurrency Borrowing for any
Interest Period, the rate appearing on the Reuters “LIBOR01” screen displaying
British Bankers’ Association Interest Settlement Rates (or on any successor or
substitute screen provided by Reuters, or any successor to or substitute for
such service, providing rate quotations comparable to those currently provided
on such screen, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity comparable to such
Interest Period.  In the event that such
rate is not available at such time for any reason, then the “LIBO Rate” with
respect to such Eurocurrency Borrowing for such Interest Period shall be the
rate at which U.S. dollar deposits of $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period.


 


“Lien”
shall mean, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, assignment for security, hypothecation, prior claim (within the
meaning of the Civil Code of Quebec) encumbrance, charge or security interest
in, on or of such asset and (b) the interest of a vendor or a lessor under
any conditional sale agreement, Capital Lease or title retention agreement
relating to such asset.


 


“Loan
Documents” shall mean this Agreement, Guarantee and Collateral Agreement,
the other Security Documents, the Intercreditor Agreement and the Incremental
Facility Agreements.


 


“Loan
Documents Obligations” shall mean Obligations of the type described in
clauses (a) and (b) of the term “Obligations”.


 


“Loan
Parties” shall mean the Borrower and the Guarantors.


 


“Loans”
shall mean the Term Loans and, unless context shall otherwise require, any
Other Term Loans and any loans made pursuant to an Incremental Revolving
Commitment.


 


“Margin
Stock” shall have the meaning given such term under Regulation U.


 


“Material
Adverse Effect” shall mean (a) a materially adverse effect on the
business, operations, properties or financial condition of SSCC and its
Subsidiaries, 


 


23

















 


taken
as a whole, or (b) material impairment of the rights of or benefits
available to the Lenders under any Loan Document.


 


“Material
Contract” shall mean any contract to which SSCC, the Borrower or any of the
Subsidiaries is or becomes a party that provides for payments by or to SSCC,
the Borrower or any of the Subsidiaries in excess of $50,000,000 per year and
that has a term in excess of twelve months.


 


“Material
Indebtedness” means Indebtedness (other than the Loan Documents Obligations),
or obligations in respect of one or more Hedging Agreements, of any one or more
of SSCC, the Borrower and the Subsidiaries in an aggregate principal amount
exceeding $30,000,000.


 


“Material
Subsidiary” shall mean each Subsidiary now existing or hereafter acquired
or formed and each successor thereto that (a) for the most recent period
of four consecutive fiscal quarters of the Borrower accounted (on a
consolidated basis with its Subsidiaries) for more than 5% of the consolidated
revenues of SSCC or the Borrower, (b) as at the end of such fiscal
quarter, was (on a consolidated basis with its Subsidiaries) the owner of more
than 5% of the consolidated assets of SSCC or the Borrower, as shown on the
consolidated financial statements of SSCC or the Borrower for such fiscal
quarter or (c) is irrevocably designated as a Material Subsidiary in a
writing by a Loan Party to the Administrative Agent; provided that no
Excluded Subsidiary shall be deemed to be a Material Subsidiary.  Schedule 1.01(a) sets forth each
Subsidiary that is a Material Subsidiary on and as of the Closing Date.


 


“Minimum
Extension Condition” is defined in Section 2.25(d).


 


“Minimum
Tender Condition” is defined in Section 2.24(b).


 


“Mortgaged
Properties” shall mean (i) each parcel (or adjoining parcels) of real
property (including any real property fixtures thereon) owned by a Loan Party
on the Closing Date and specified on Schedule 1.01(b), and (ii) each
After-Acquired Mortgage Property with respect to which a Mortgage is granted
pursuant to Section 5.09.


 


“Mortgages”
shall mean (a) the mortgages, deeds of trust, assignments of leases and
rents, modifications and other security documents with respect to Mortgaged
Properties or delivered pursuant to Section 5.09.  Each Mortgage shall be substantially in the
form of Exhibit E, or otherwise in form and substance reasonably
satisfactory to the Administrative Agent.


 


“Multiemployer
Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of
ERISA that has been maintained, sponsored or contributed by SSCC or an ERISA
Affiliate within the preceding five plan years.


 


“Net
Cash Proceeds” shall mean (a) with respect to any Asset Sale, the Cash
Proceeds therefrom, net of (i) costs of sale (including payment of the
outstanding principal amount of, premium or penalty, if any, and interest on
any Indebtedness (other than Loans and borrowings under the Revolving Facility)
required to be repaid under the 


 


24

















 


terms
thereof as a result of such Asset Sale), (ii) if such Asset Sale includes
the sale or transfer of assets included in the Revolving Facility Collateral or
assets of a similar type owned by the Canadian Subsidiaries and pledged to
secure the obligations under the Revolving Facility, any Cash Proceeds
therefrom equal to the book value of the inventory, receivables, other
Revolving Facility Collateral or such assets of a similar type owned and so
pledged by the Canadian Subsidiaries included in such sale or transfer, (iii) taxes
paid or reasonably estimated to be payable in the year such Asset Sale occurs
or in the following year as a result thereof and (iv) amounts provided as
a reserve, in accordance with GAAP, against any liabilities under any
indemnification obligations and any purchase price adjustments associated with
such Asset Sale (provided that, to the extent and at the time any such
amounts are released from such reserve, such amounts shall constitute Net Cash
Proceeds); and (b) with respect to any issuance of debt or equity
securities, the cash proceeds thereof, net of underwriting commissions or
placement fees and expenses directly incurred in connection therewith.


 


“Non-Cash
Charges” means any non-cash charges or losses, including (a) any
impairment charge or asset write-off or write-down related to intangible assets
(including goodwill), long-lived assets and investments in debt and equity
securities pursuant to GAAP, (b) long-term incentive plan accruals and any
non-cash expenses resulting from the grant of stock options or other equity-based
incentives to any director, officer or employee of SSCC, the Borrower or any
Subsidiary and (c) any non-cash charges or losses resulting from the
application of purchase accounting; provided that Non-Cash Charges shall
not include additions to bad debt reserves or bad debt expense.


 


“Non-U.S.
Person” is defined in Section 2.19(f).


 


“Obligations”
shall mean (a) the due and punctual payment by the Borrower of (i) the
principal of and interest (including interest accruing during the pendency of
any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the Loans
made to the Borrower, when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise and (ii) all other
monetary obligations of the Borrower to the Administrative Agent and any of the
Lenders under this Agreement and each of the other Loan Documents (other than
the Intercreditor Agreement), including obligations to pay Fees, expense
reimbursement obligations and indemnification obligations, whether primary,
secondary, direct, contingent, fixed or otherwise, arising under the Loan
Documents (other than the Intercreditor Agreement) (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), (b) the due and punctual payment of all the
monetary obligations of each other Loan Party under or pursuant to this
Agreement and each of the other Loan Documents (other than the Intercreditor
Agreement), (c) the due and punctual payment of all monetary obligations
of SSCC and its Subsidiaries under each Qualified Secured Hedging Agreement
that are treated as an “Obligation” pursuant to the terms of Section 9.19
and (d) the due and punctual payment and performance of all Cash
Management Services Obligations of SSCC and its Subsidiaries in respect of
Qualified Secured Cash Management Agreements that are treated as an “Obligation”
pursuant to the terms of Section 9.19.


 


25

















 


“Other
Taxes” is defined in Section 2.19(b).


 


“Other
Term Loans” is defined in Section 2.22(a).


 


“PBGC”
shall mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA or any successor thereto.


 


“Perfection
Certificate” shall mean a certificate in the form of Exhibit F
or any other form approved by the Administrative Agent.


 


“Permitted
Acquisition” is defined in Section 6.05(f).


 


“Permitted
Debt Exchange” is defined in Section 2.24(a).


 


“Permitted
Debt Exchange Offer” is defined in Section 2.24(a).


 


“Permitted
Investments” shall mean any of the following:


 


(a) any
evidence of Indebtedness, maturing not more than one year after the acquisition
thereof, issued by the United States of America or Canada, or any
instrumentality or agency thereof and guaranteed fully as to principal,
interest and premium, if any, by the United States of America or Canada;


 


(b) any
certificate of deposit, banker’s acceptance or time deposit (including
Eurodollar time deposits), maturing not more than one year after the date of
purchase, issued or guaranteed by or placed with (i) the Administrative
Agent or any bank providing Cash Management Services to SSCC or any
Subsidiaries or (ii) a commercial banking institution that has long-term
debt rated “A2” or higher by Moody’s Investors Service, Inc. (“Moody’s”)
or “A” or higher by Standard & Poor’s Ratings Services (“S&P”)
and which has a combined capital and surplus of not less than $500,000,000;


 


(c) commercial
paper (i) maturing not more than 270 days after the date of purchase
and (ii) issued by a corporation (other than a Loan Party or any Affiliate
of a Loan Party) with a rating, at the time as of which any determination
thereof is to be made, of “P-1” or higher by Moody’s or “A-1” or higher by
S&P (or equivalent rating in the case of a Permitted Investment made by a
Foreign Subsidiary);


 


(d) investments
in fully collateralized repurchase agreements with a term of not more than
thirty (30) days for underlying securities of the types described in clause (a) above
entered into with any bank or trust company meeting the qualifications
specified in clause (b) above;


 


(e) demand
deposits with any bank or trust company;


 


(f) money
market funds substantially all the assets of which are comprised of securities
of the types described in clauses (a) through (e) above; and


 


26






 












 


(g) in
the case of the Foreign Subsidiaries, short-term investments comparable to the
foregoing.


 


“Permitted
Liens” shall mean, with respect to any Person, any of the following:


 


(a) Liens
for taxes, assessments or other governmental charges or levies not yet due and
payable or which are being contested in good faith by appropriate proceedings
diligently pursued, provided that (i) any proceedings commenced for
the enforcement of such Liens shall have been duly suspended and (ii) full
provision for the payment of all such taxes known to such Person has been made
on the books of such Person if and to the extent required by GAAP;


 


(b) mechanics’,
materialmen’s, carriers’, warehousemen’s, landlord’s and similar Liens arising
by operation of law and in the ordinary course of business and securing
obligations of such Person that are not overdue for a period of more than
60 days or are being contested in good faith by appropriate proceedings
diligently pursued, provided that in the case of any such contest (i) any
proceedings commenced for the enforcement of such Liens shall have been duly
suspended and (ii) full provision for the payment of such Liens has been
made on the books of such Person if and to the extent required by GAAP;


 


(c) Liens
arising in connection with workers’ compensation, unemployment insurance, old
age pensions and social security benefits that are not overdue or are being
contested in good faith by appropriate proceedings diligently pursued, provided
that in the case of any such contest (i) any proceedings commenced for the
enforcement of such Liens shall have been duly suspended and (ii) full
provision for the payment of such Liens has been made on the books of such
Person if and to the extent required by GAAP;


 


(d) (i) Liens
incurred or deposits made in the ordinary course of business to secure the
performance of bids, tenders, statutory obligations, fee and expense
arrangements with trustees and fiscal agents (exclusive of obligations incurred
in connection with the borrowing of money or the payment of the deferred
purchase price of property) and (ii) Liens securing surety, indemnity,
performance, appeal and release bonds, in the case of either clause (i) or
(ii), securing such obligations in an amount outstanding at any time not
to exceed individually or in the aggregate $100,000,000, provided that
full provision for the payment of all such obligations has been made on the
books of such Person if and to the extent required by GAAP;


 


(e) imperfections
of title, restrictive covenants, rights of way, easements, servitudes, mineral
interest reservations, reservations made in the grant from the Crown, municipal
and zoning ordinances, general real estate taxes and assessments not yet
delinquent and other encumbrances on real property that (i) do not arise
out of the incurrence of any Indebtedness for money borrowed and (ii) do
not interfere with or impair in any material respect the utility, operation,
value or marketability of the real property on which such Lien is imposed;


 


27

















 


(f) the
rights of collecting banks or other financial institutions having a right of
setoff, revocation, refund or chargeback with respect to money or instruments
on deposit with or in the possession of such financial institution;


 


(g) leases
or subleases granted to others not interfering in any material respect with the
business of SSCC or any Subsidiary and any interest or title of a lessor under
any lease (whether a Capital Lease or an operating lease) permitted by this
Agreement or the Security Documents;


 


(h) Liens
on accounts receivable for which attempts at collection have been undertaken by
a third party authorized by the Person owning such accounts receivable;


 


(i) Liens
arising from the granting of a license to enter into or use any asset of SSCC
or any Subsidiary to any Person in the ordinary course of business of SSCC or
any Subsidiary that does not interfere in any material respect with the use or
application by SSCC or any Subsidiary of the asset subject to such license;


 


(j) Liens
attaching solely to cash earnest money deposits made by SSCC or any Subsidiary
in connection with any letter of intent or purchase agreement entered into it
in connection with an acquisition permitted hereunder;


 


(k) Liens
arising from precautionary Uniform Commercial Code financing statements (or
analogous personal property security filings or registrations in other
jurisdictions) regarding operating leases;


 


(l) Liens
on insurance policies and proceeds thereof to secure premiums thereunder; and


 


(m) Liens
arising out of judgments or awards in respect of which an appeal or proceeding
for review is being diligently prosecuted, provided that (i) a stay
of execution pending such appeal or proceeding for review has been obtained and
(ii) full provision for the payment of such Liens has been made on the
books of such Person if and to the extent required by GAAP.


 


For
the purposes of the Security Documents and Section 3.17, “Permitted
Liens” shall also be deemed to include the Liens permitted by Sections 6.02(a)(ii),
(iii), (iv), (v), (vi), (vii), (ix), (x),
(xii), (xiii), (xiv) and (xv).  Any reference in any of the Loan Documents
(other than the Intercreditor Agreement) to a Permitted Lien is not intended to
and shall not be interpreted as subordinating or postponing, or as any
agreement to subordinate or postpone, any Lien created by any of the Loan
Documents to any Permitted Lien.


 


“Permitted
Notes” shall mean Permitted Second Lien Notes or Permitted Unsecured Notes.


 


“Permitted
Refinancing Indebtedness” shall mean, with respect to SSCC, the Borrower or
any Subsidiary, any refinancing, refunding, renewal or extension of any 


 


28

















 


Indebtedness,
in whole or in part, of such Person from time to time; provided that (a) the
principal amount (or accreted value, if applicable) or, in the case of any
revolving facility, the commitments thereunder, thereof does not exceed the
principal amount (or accreted value, if applicable) or in the case of any
revolving facility, the commitments thereunder, (except as otherwise permitted
under Section 6.01(f)) of the Indebtedness so modified, refinanced,
refunded, renewed or extended (the “Refinanced Debt”) except by an
amount equal to unpaid accrued interest and premium thereon plus other
reasonable amounts paid, and fees and expenses reasonably incurred, in
connection with such modification, refinancing, refunding, renewal or extension
and by an amount equal to any existing commitments unutilized thereunder, (b) the
Indebtedness resulting from such refinancing, refunding, renewal or extension
(the “Refinancing Debt”) has a final maturity date the same as or later
than the final maturity date of, and, other than in the case of a revolving
facility, has a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Refinanced Debt, (c) at the time
thereof, no Event of Default shall have occurred and be continuing, (d) to
the extent such Refinanced Debt is subordinated in right of payment to the
Obligations, such Refinancing Debt is subordinated in right of payment to the
Obligations on terms, when taken as a whole, at least as favorable to the
Lenders as those contained in the documentation governing the Refinanced Debt, (e) if
the Refinanced Debt is secured, the Refinancing Debt shall be unsecured or
secured only by assets that secured such Refinanced Debt; provided that
if the Refinanced Debt is the Revolving Facility, such Refinancing Debt may be
secured by (A) any assets or properties of the Borrower or any Domestic
Subsidiary which also secures the Obligations and (B) any assets or
properties of any Canadian Subsidiary, (f) the terms and conditions
(including, if applicable, as to collateral but excluding as to subordination,
interest rate, redemption premium and other pricing provisions) of any such
Refinancing Debt, taken as a whole, are not materially less favorable to the
Loan Parties or the Lenders than the terms and conditions of the Refinanced
Debt; provided that, in respect of any Refinancing Debt in an aggregate
principal amount of $75,000,000 or greater, a certificate of a Responsible
Officer of the Borrower delivered to the Administrative Agent at least five
Business Days prior to the incurrence of such Indebtedness, together with a
reasonably detailed description of the material terms and conditions of such
Refinancing Debt or drafts of the documentation relating thereto, stating that
SSCC, the Borrower or the Subsidiary incurring such Indebtedness has determined
in good faith that such terms and conditions satisfy the foregoing requirement
of this clause (f) shall be conclusive evidence that such terms and
conditions satisfy the foregoing requirement unless the Administrative Agent
notifies the Borrower within such five Business Day period that it disagrees
with such determination (including a reasonable description of the basis upon
which it disagrees) and (g) unless each Domestic Subsidiary that is a
primary obligor or guarantor in respect of such Refinancing Debt was also a
primary obligor or guarantor in respect of the Refinanced Debt, all the
Domestic Subsidiaries that are primary obligors or guarantors of such
Refinancing Debt shall be Loan Parties; provided further that (A) if
the proceeds of revolving loans are used to repurchase or redeem any
Indebtedness, within 90 days of such repurchase or redemption, the Borrower or
any Subsidiary may incur Indebtedness otherwise meeting the requirements of
this definition (as if such new Indebtedness were used to refinance such
repurchased or redeemed Indebtedness) to repay such revolving 


 


29

















 


loans
and (B) if the proceeds of Indebtedness meeting the requirements of this
definition cannot be immediately applied to refinance existing Indebtedness,
then, unless such proceeds are held by SSCC or a Subsidiary pending such
refinancing, they may be used to temporarily prepay revolving loans or other
revolving debt, which then may be redrawn to refinance such Indebtedness within
90 days of such prepayment. 
Notwithstanding anything to the contrary in clause(f) above,
with respect to Refinanced Debt that is the Revolving Facility, the terms and
conditions as to collateral of the Refinancing Debt shall be deemed to be not
materially less favorable to the Loan Parties or the Lenders than the terms as
to collateral of the Refinanced Debt if the Refinancing Debt (i) is
secured by collateral meeting the requirements of clause (e) above and (ii) is
subject to substantially the same intercreditor arrangements as set forth in
and contemplated by the Intercreditor Agreement; provided that any differing
terms are agreed to by the Administrative Agent.


 


“Permitted
Timber Financing” shall mean any financing transaction by SSCC, the
Borrower or any Subsidiary secured by timber or timberland, or a Sale/Leaseback
Transaction in which the subject property consists of timber or timberland, in
each case owned by such Person for more than 90 days immediately prior to such
financing transaction or Sale/Leaseback Transaction, so long as such financing
transaction or Sale/Leaseback Transaction (a) does not have a final
maturity or final payment date in respect thereof on or prior to the Latest
Maturity Date then in effect or a Weighted Average Life to Maturity shorter
than the Weighted Average Life to Maturity of the Term Loans or Other Term
Loans, (b) results in the Net Cash Proceeds to any Loan Party in excess of
60% of the fair market value (determined, as of the date of such financing
transaction or Sale/Leaseback Transaction, on the basis of an assumed
arms-length sale of such property, by a nationally recognized appraisal or
valuation firm experienced in valuing timber or timberland) of the timber or
timberland that is the subject property of such financing transaction or
Sale/Leaseback Transaction and (c) contains covenants no more restrictive
than those contained in this Agreement (except that covenants that relate
solely to the subject property may be more restrictive).


 


“Permitted
Second Lien Notes” shall mean secured Indebtedness incurred by the Borrower
and issued under an indenture or similar governing instrument in a registered
public offering or a Rule 144A or other private placement transaction in
the form of one or more series of second lien secured notes; provided  that (i) such Indebtedness is
secured by (A) the Term Facility Collateral on a second lien, subordinated
basis to the Obligations and on a senior basis to the obligations in respect of
the Revolving Facility and (B) the Revolving Facility Collateral on a
third lien, subordinated basis to the Obligations, and is not secured by any
property or assets of SSCC, the Borrower or any Subsidiary (including any
Foreign Subsidiary) other than the Collateral; (ii) such Indebtedness does
not mature or have scheduled amortization or other required payments of
principal prior to the date that is ninety-one (91) days after the Latest
Maturity Date at the time such Indebtedness is incurred, (iii) the
security agreements relating to such Indebtedness are substantially the same as
the Security Documents (with such differences as are reasonably satisfactory to
the Administrative Agent), (iv) such Indebtedness is not guaranteed by any
Subsidiaries other than the Guarantors, (v) such Indebtedness and the
indenture or other governing instrument 


 


30

















 


applicable
thereto does not contain covenants, events of default, or other terms and
conditions that, when taken as a whole, are more restrictive to the Loan
Parties than the terms of this Agreement, and (vi) a Senior Representative
acting on behalf of the holders of such Indebtedness pursuant to the indenture
or other instrument governing such Indebtedness shall have become party to the
Intercreditor Agreement.  Permitted Second
Lien Notes will include any Registered Equivalent Notes issued in exchange
therefor.


 


“Permitted
Unsecured Notes” shall mean unsecured Indebtedness incurred by the Borrower
and issued under an indenture or similar governing instrument in a registered public
offering or a Rule 144A or other private placement transaction in the form
of one or more series of senior unsecured or unsecured subordinated notes; provided
that (i) such Indebtedness does not mature or have scheduled amortization
or other required payments of principal prior to the date that is ninety-one
(91) days after the Latest Maturity Date at the time such Indebtedness is
incurred, (ii) such Indebtedness is not guaranteed by any Subsidiaries
other than the Guarantors, (iii) if such Indebtedness is subordinated, it
and any Guarantees thereof shall be subordinated to the Obligations and the
obligations under the Revolving Facility, in the case of capital markets
subordinated debt, on customary market terms then applying to similar capital
markets offerings or placement of subordinated debt, or otherwise, on a basis
reasonably satisfactory to the Administrative Agent, (iv) such
Indebtedness and the indenture or other governing instrument applicable thereto
does not contain covenants, events of default, or other terms and conditions
that, when taken as a whole, are more restrictive to the Loan Parties than the
terms of this Agreement, and (v) such Indebtedness is not secured by any
Lien on any property or assets of SSCC, the Borrower or any Subsidiary
(including any Foreign Subsidiary). 
Permitted Unsecured Refinancing Debt will include any Registered
Equivalent Notes issued in exchange therefor.


 


“Person”
shall mean any natural person, corporation, legal person, business trust, joint
venture, association, company, limited liability company, partnership or
government, or any agency or political subdivision thereof.


 


“Plan”
shall mean any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the
Code or Section 302 of ERISA that is maintained, sponsored or contributed
to by SSCC or any ERISA Affiliate.


 


“Plan
of Reorganization” is defined in the preamble to this Agreement.


 


“Prepayment
Account” is defined in Section 2.13(f).


 


“Prime
Rate” shall mean the rate of interest per annum publicly announced from
time to time by the Administrative Agent as its prime rate in effect at its
principal office in New York City.  Each
change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.


 


“Prior
Extension Loans” is defined in Section 2.25(c).


 


31

















 


“Purchase
Offer” shall mean an offer by the Borrower to purchase Term Loans or Other
Term Loans of one or more Classes pursuant to modified Dutch auctions conducted
in accordance with the Auction Procedures and otherwise in accordance with Section 2.23.


 


“Qualified
Secured Cash Management Agreement” is defined in Section 9.19.


 


“Qualified
Secured Hedging Agreement” is defined in Section 9.19.


 


“Real
Properties” shall mean each parcel of real property identified on Schedule 3.19,
together with all fixtures thereon, and each other parcel of real property
acquired and owned by SSCC, the Borrower or any Domestic Subsidiary after the
Closing Date, together with all fixtures thereon.


 


“Refinancing
Prepayment” is defined in Section 2.26.


 


“Register”
is defined in Section 9.04(d).


 


“Registered
Equivalent Notes” means, with respect to any notes originally issued in a Rule 144A
or other private placement transaction under the Securities Act of 1933,
substantially identical notes (having the same Guarantees) issued in a dollar
for dollar exchange therefor pursuant to an exchange offer registered with the
Securities and Exchange Commission.


 


“Regulation
H” shall mean Regulation H of the Board as from time to time in effect and
all official rulings and interpretations thereunder or thereof.


 


“Regulation
T” shall mean Regulation T of the Board as from time to time in effect and
all official rulings and interpretations thereunder or thereof.


 


“Regulation
U” shall mean Regulation U of the Board as from time to time in effect and
all official rulings and interpretations thereunder or thereof.


 


“Regulation
X” shall mean Regulation X of the Board as from time to time in effect and
all official rulings and interpretations thereunder or thereof.


 


“Release”
shall mean any actual or threatened release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into or through the environment or within any building, structure,
facility or fixture.


 


“Repayment
Amounts” shall mean, collectively, the Term Loan Repayment Amounts and the
Incremental Term Loan Repayment Amounts.


 


“Repayment
Dates” shall mean the Term Loan Repayment Dates and the Incremental Term
Loan Repayment Dates.


 


32

















 


“Required
Lenders” shall mean, as of the date of determination thereof, the Lenders
having greater than 50% of the sum of the aggregate principal amount of Loans
and unused Commitments hereunder; provided that (a) the Loans and
unused Commitments of SSCC, the Borrower or their Affiliates and (b) whenever
there are one or more Defaulting Lenders, the Loans and unused Commitments of
each such Defaulting Lender shall in each case be excluded for purposes of
making a determination of Required Lenders.


 


“Responsible
Officer” of any Person shall mean the chief executive officer, president,
any Financial Officer or any vice president of such Person and any other
officer or similar official thereof responsible for the administration of the
obligations of such Person in respect of this Agreement.


 


“Restricted
Payment” shall mean (a) any dividend or other distribution, direct or
indirect, on account of any Equity Interests of SSCC, the Borrower or any of
the Subsidiaries, now or hereafter outstanding, except (i) any dividend
payable solely in shares or other Equity Interests of such class of Equity Interests
to the holders of such Equity Interests, (ii) any dividend or distribution
made by any Subsidiary ratably to the holders of the capital stock of such
Subsidiary and (iii) any dividend or distribution made or paid to SSCC,
the Borrower or any Subsidiary, and (b) any redemption, retirement,
sinking fund or similar payment, purchase, exchange or other acquisition for
value, direct or indirect, of any Equity Interests of SSCC, the Borrower or any
of the Subsidiaries, now or hereafter outstanding, except for any such
redemption, retirement, sinking fund or similar payment, purchase, exchange or
other acquisition for value (i) payable only to a Loan Party or payable
from a Foreign Subsidiary to another Foreign Subsidiary or (ii) of any
minority Equity Interests of a Subsidiary that is not wholly owned which are
held by Persons that are not Affiliates of the Borrower.


 


“Revolver
Collateral Agent” shall mean Deutsche Bank AG New York Branch, as
collateral agent under the Revolving Facility, or any successor collateral
agent or other agent appointed under the Revolving Facility in accordance with
the provisions thereof.


 


“Revolving
Facility” shall mean (a) the asset-based revolving facility (and, as
applicable, term loan facility) agreement, among SSCC, the Borrower, certain
Subsidiaries of the Borrower, the lenders party thereto and Deutsche Bank AG
New York Branch, as the administrative agent, or any successor administrative
agent appointed thereunder, in an initial aggregate principal amount of up to
$650,000,000, as the same may be increased pursuant to incremental commitments
thereunder in compliance with Section 6.01(f) or (b) any credit
facility constituting Permitted Refinancing Indebtedness of the facility in
clause (a), including any subsequent incremental financing thereunder in
compliance with Section 6.01(f); provided that no Incremental
Facility hereunder shall be deemed to be the Revolving Facility or any
Permitted Refinancing Indebtedness in respect of the Revolving Facility.


 


“Revolving
Facility Collateral” shall prior to the Funding Date, have the meaning
assigned to the term “ABL Collateral” in the form of Intercreditor Agreement 


 


33

















 


attached
as Exhibit D hereto, and after the Funding Date, have the meaning
assigned to the term “ABL Collateral” in the Intercreditor Agreement.


 


“Revolving
Facility Documents” shall mean all agreements and other documents
evidencing or governing the Revolving Facility or any Permitted Refinancing
Indebtedness of the Revolving Facility (other than, for the avoidance of doubt,
this Agreement or the Intercreditor Agreement) or providing for any guarantee,
security interests or other right in respect thereof.


 


“Sale/Leaseback
Transaction” shall mean an arrangement, direct or indirect, whereby SSCC,
the Borrower or any of the Subsidiaries shall sell or transfer any property,
real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
that it intends to use for substantially the same purpose or purposes as the
property sold or transferred.


 


“Secured
Parties” shall have the meaning set forth in (a) prior to the Funding
Date, the Guarantee and Collateral Agreement attached hereto as Exhibit C
and (b) on and after the Funding Date, the Guarantee and Collateral
Agreement.


 


“Security
Documents” shall mean the Mortgages, the Guarantee and Collateral
Agreement, the IP Security Agreements and each of the security agreements and
other instruments and documents executed and delivered pursuant to Section 5.09.


 


“Senior
Representative” shall mean, with respect to any series of Permitted Second
Lien Notes, the trustee, administrative agent, collateral agent, security agent
or similar agent under the indenture or agreement pursuant to which such
Indebtedness is issued, incurred or otherwise obtained, as the case may be, and
each of their successors in such capacities.


 


“Senior
Secured Indebtedness” shall mean, with respect to any Person, Indebtedness of
such Person that is secured by any Lien (other than a Permitted Lien and Liens
permitted by Sections 6.02(a)(vi), (ix) and (x)).


 


“Smurfit-Stone
Puerto Rico” shall mean Smurfit-Stone Puerto Rico, Inc., a Delaware
corporation that is qualified to do business in the Commonwealth of Puerto
Rico.  For purposes of this Agreement,
Smurfit-Stone Puerto Rico shall be deemed to be a Foreign Subsidiary.


 


“SSCC”
is defined in the preamble to this Agreement. 
Each reference herein to SSCC shall, on and after the Funding Date and
the Funding Date Merger, be deemed a reference to the Borrower as the
corporation surviving the Funding Date Merger.


 


“SSC
Canada” shall mean Smurfit-Stone Container Canada Inc., a corporation
continued under the Companies Act (Nova Scotia) (or the newly organized
Subsidiary or Subsidiaries that acquire the assets of Smurfit-Stone Container
Canada Inc. pursuant to the Plan of Reorganization).


 


34

















 


“SSCE”
is defined in the preamble to this Agreement.


 


“Statutory
Reserves” shall mean a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus
the aggregate of the maximum applicable reserve percentages, including any
marginal, special, emergency or supplemental reserves (expressed as a decimal)
established by the Board and any other banking authority to which the
Administrative Agent is subject for Eurocurrency Liabilities (as defined in
Regulation D of the Board).  Eurodollar
Loans shall be deemed to constitute Eurocurrency Liabilities and to be subject
to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D.  Statutory
Reserves shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.


 


“subsidiary”
shall mean, with respect to any Person (herein referred to as the “parent”),
any corporation, partnership, association or other business entity of which
securities or other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power or more than 50% of the
general partnership or membership interests are, at the time any determination
is being made, owned, controlled or held by, or otherwise Controlled by, the
parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.


 


“Subsidiary”
shall mean any direct or indirect subsidiary of SSCC or the Borrower.


 


“Supermajority
Lenders” shall mean Lenders having Commitments representing more than
66-2/3% of the aggregate Commitments of all Lenders; provided that (a) Commitments
of SSCC, the Borrower and any Affiliate of either and (b) whenever there
are one or more Defaulting Lenders, the Commitments of each such Defaulting
Lender shall in each case be excluded for purposes of making a determination of
the Supermajority Lenders.


 


“Taxes”
is defined in Section 2.19(a).


 


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


 


“Term
Facility Collateral” shall prior to the Funding Date, have the meaning
assigned to the term “Non-ABL Collateral” in the form of Intercreditor
Agreement attached as Exhibit D hereto, and after the Funding Date,
have the meaning assigned to the term “Non-ABL Collateral” in the Intercreditor
Agreement.


 


“Term
Loan Commitment” shall mean, with respect to each Lender, the commitment of
such Lender to make Term Loans hereunder as set forth on Schedule 2.01
or in the Assignment and Acceptance pursuant to which such Lender assumed its
Term Loan Commitment, as applicable, as the same may be (a) reduced from
time to time pursuant to Section 2.09 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04.  As
of the Closing Date, the aggregate amount of the Lenders’ Term Loan Commitments
is $1,200,000,000.


 


35

















 


“Term
Loan Maturity Date” shall mean the sixth anniversary of the Funding Date.


 


“Term
Loan Repayment Amounts” is defined in Section 2.11(a).


 


“Term
Loan Repayment Dates” is defined in Section 2.11(a).


 


“Term
Loans” shall mean the term loans made by the Lenders to the Borrower
pursuant to Section 2.01. 
Unless the context shall otherwise require, the term “Term Loans” shall
also include any Other Term Loans.


 


“Term
Sweep Account” shall mean one or more deposit accounts or securities
accounts holding only the Net Cash Proceeds received in respect of any Asset
Sale occurring on or after the Funding Date (to the extent such Net Cash
Proceeds are required to be applied to the prepayment of Term Loans pursuant to
Section 2.13) or from the issuance of Permitted Notes in accordance
with Section 6.01(m)(i), and any investments thereof in Permitted
Investments and the proceeds thereof, in each case pending the required
application of such Net Cash Proceeds in accordance with Section 2.13.


 


“Transactions”
is defined in Section 3.02.


 


“Transferee”
is defined in Section 2.19(a).


 


“Type”,
when used in respect of any Loan or Borrowing, shall refer to the Rate by
reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined.  For purposes
hereof, the term “Rate” shall include the Adjusted LIBO Rate and the
Alternate Base Rate.


 


“Uniform
Commercial Code” means the Uniform Commercial Code as from time to time in
effect in the State of New York.


 


“Upfront
Payments” is defined in Section 2.22(b).


 


“U.S.
Bankruptcy Court” is defined in the preamble to this Agreement.


 


“U.S.
Dollars” or “$” shall mean lawful currency of the United States.


 


“U.S.
Entities” is defined in the preamble to this Agreement.


 


“U.S.
Proceedings” is defined in the preamble to this Agreement.


 


“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at any
date, the number of years obtained by dividing: 
(i) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final maturity, in
respect thereof, by (b) the number of years (calculated to the nearest


 


36
















 


one-twelfth)
that will elapse between such date and the making of such payment; by (ii) the
then outstanding principal amount of such Indebtedness.


 


“wholly
owned”, when used in reference to any subsidiary of a Person, shall mean
any subsidiary of such Person of which securities (except for directors’
qualifying shares) or other ownership interests representing 100% of the equity
or 100% of the ordinary voting power or 100% of the general partnership or
membership interests are, at the time any determination is being made, owned,
controlled or held by such Person or one or more wholly owned subsidiaries of
such Person or by such Person and one or more wholly owned subsidiaries of such
Person.


 


“Withdrawal
Liability” shall mean liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.


 


SECTION 1.02.
Terms Generally.  The definitions
in Section 1.01 shall apply equally to both the singular and plural
forms of the terms defined.  Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms.  The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without
limitation”.  The word “will” shall be
construed to have the same meaning and effect as the word “shall”.  Unless the context shall otherwise require,
all references herein to Articles, Sections, Exhibits and Schedules shall be
deemed to be references to Articles and Sections of, and Exhibits and Schedules
to, this Agreement , and the words “herein”, “hereof” and “hereunder”, and
words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof.  Each reference to any Loan Document or any
other document or agreement shall be deemed to be a reference to such Loan
Document, document or agreement as amended, restated, waived, supplemented or
otherwise modified from time to time in accordance with the provisions hereof
and thereof.


 


SECTION 1.03.
Classification of Loans and Borrowings. 
For the purposes of this Agreement, Loans may be classified and referred
to by Class (e.g., a “Term Loan” or an “Other Term Loan”) or by
Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g.,
a “Eurodollar Term Loan”).  Borrowings
may also be classified and referred to by Class (e.g., a “Term
Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and
Type (e.g., a “Eurodollar Term Borrowing”).


 


SECTION 1.04.
Pro Forma Calculations.  With
respect to any period during which any Permitted Acquisition occurs, the
Consolidated Leverage Ratio, the Consolidated Senior Secured Leverage Ratio and
the Interest Coverage Ratio shall be calculated with respect to such period
(and, to the extent applicable, subsequent periods) on a pro forma basis after
giving effect to such Permitted Acquisition (including, without duplication, (a) all
pro forma adjustments permitted or required by Article 11 of
Regulation S-X under the Securities Act of 1933, as amended, and (b) pro
forma adjustments for cost savings (net of continuing associated expenses) to
the extent such cost savings are factually supportable and have been realized
or are reasonably expected to be realized within 12 months following such
Permitted Acquisition, provided that such 


 


37

















 


cost savings shall be set
forth in a reasonably detailed certificate of a Financial Officer of the
Borrower), using, for purposes of making such calculations, the historical
financial statements of all entities or assets so acquired or to be acquired
and the consolidated financial statements of SSCC and the Subsidiaries, which
shall be reformulated as if such Permitted Acquisition, and any other Permitted
Acquisitions that have been consummated during the period, had been consummated
at the beginning of such period. In addition, solely for purposes of
determining pro forma compliance with the Interest Coverage Ratio for purposes
of Section 6.05(f), any Indebtedness incurred in connection with
such Permitted Acquisition and any other Permitted Acquisitions that have been
consummated during the period shall be assumed to have been incurred at the
beginning of such period.


 


SECTION 1.05.
Accounting Terms; GAAP.  Except as
otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time; provided that, if  the
Borrower notifies the Administrative Agent that it requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision
(or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith.  Notwithstanding
any other provision contained herein, all terms of an accounting or financial
nature used herein shall be construed, and all computations of amounts and
ratios referred to herein shall be made, without giving effect to any election
under Statement of Financial Accounting Standards 159 (or any other Financial
Accounting Standard having a similar result or effect) to value any
Indebtedness or other liabilities of Holdings, the Borrower or any Subsidiary
at “fair value”, as defined therein.  Any
references herein to consolidated or other financial information of SSCC and
its Subsidiaries shall be deemed, on and after the Funding Date and the
consummation of the Funding Date Merger, to refer to the Borrower and its
Subsidiaries.


 


ARTICLE II


 


Term Loans


 


SECTION 2.01.
Commitments.  Subject to the terms
and conditions and relying on the representations and warranties set forth
herein, each Lender agrees, severally and not jointly, to make to the Borrower
on the Funding Date a Term Loan in U.S. Dollars in a principal amount equal to
its Term Loan Commitment.  Amounts paid
or repaid in respect of Term Loans may not be reborrowed.  Notwithstanding anything to the contrary
contained herein (and without affecting any other provision hereof), if a
Lender elects pursuant to Section 2.05(a)(ii) to have an
original issue discount apply to its 


 


38

















 


Term Loans, the funded
portion of each Term Loan to be made on the Funding Date by such Lender (i.e.,
the amount advanced to the Borrower on the Funding Date) shall be equal to
99.0% of the principal amount of such Term Loan (it being agreed that the full
principal amount of each such Term Loan will be deemed outstanding on the
Funding Date and the Borrower shall be obligated to repay 100% of the principal
amount of each such Term Loan as provided hereunder).


 


SECTION 2.02.
Loans.  (a)  Each Loan shall
be made as part of a Borrowing consisting of Loans made by the Lenders ratably
in accordance with their respective applicable Commitments; provided, however,
that the failure of any Lender to make any Loan shall not in itself relieve any
other Lender of its obligation to lend hereunder (it being understood, however,
that no Lender shall be responsible for the failure of any other Lender to make
any Loan required to be made by such other Lender).  Loans comprising any Borrowing shall be (i) in
the case of a Eurodollar Borrowing, in an aggregate principal amount that is
not less than $1,000,000 and an integral multiple of $1,000,000 or (ii) in
the case of an ABR Borrowing, in an aggregate principal amount that is not less
than $1,000,000 and an integral multiple of $1,000,000.


 


(b) 
Subject to Section 2.08, (i) each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans, as the Borrower may request pursuant
to Section 2.03 or as otherwise may be provided in this
Agreement.  Each Lender may at its option
fulfill its Commitment with respect to any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan; provided,
however, that any exercise of any such option shall not (A) affect
the obligation of the Borrower to repay such Loan in accordance with the terms
of this Agreement or (B) require any reimbursement or other payment to be
made to such Lender or its Affiliates pursuant to Section 2.19 in
an amount in excess of the amounts that would have been payable thereunder to
such Lender had such Lender not exercised such option.  Borrowings of more than one Type may be
outstanding at the same time; provided, however, that the Borrower
shall not be entitled to request any Borrowing that, if made, would result in
an aggregate of more than fifteen separate Eurodollar Loans of any Lender being
outstanding hereunder at any one time. 
For purposes of the foregoing, Loans having different Interest Periods,
regardless of whether they commence on the same date, shall be considered
separate Loans.


 


(c) 
Each Lender shall make a Loan in the amount of its pro rata portion, as
determined under Section 2.16, of each Borrowing hereunder on the
proposed date thereof by wire transfer of immediately available funds not later
than 2:00 p.m., New York City time, to the account of the Administrative
Agent most recently designated by such agent for such purpose, and the
Administrative Agent shall promptly credit the amounts so received to the
general deposit account of the Borrower or, if a Borrowing shall not occur on
such date because any condition precedent specified herein shall not have been
met, return the amounts so received to the respective Lenders.  Unless the Administrative Agent shall have
received notice from a Lender prior to the date of any Borrowing (or, in the
case of an ABR Borrowing, prior to 2:00 p.m., New York City time, on the
date of such Borrowing) that such Lender will not make available to the
Administrative Agent such Lender’s portion of such Borrowing, the
Administrative 


 


39

















 


Agent may assume that such
Lender has made such portion available to the Administrative Agent on the date
of such Borrowing in accordance with this paragraph (c), and
the Administrative Agent may, in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount.  If and to the extent that such Lender shall
not have made such portion available to the Administrative Agent, such Lender
and the Borrower severally agree to repay to the Administrative Agent forthwith
on demand such corresponding amount, together with interest thereon for each
day from the date such amount is made available to the Borrower until the date
such amount is repaid to the Administrative Agent at (i) in the case of
the Borrower, the interest rate applicable at the time to the Loans comprising
such Borrowing and (ii) in the case of such Lender, the Federal Funds
Effective Rate.  If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount shall
be deemed to constitute such Lender’s Loan as part of such Borrowing for
purposes of this Agreement.


 


(d) 
Notwithstanding any other provision of this Agreement, the Borrower shall not
be entitled to request any Interest Period with respect to any Borrowing that
would end after the Term Loan Maturity Date or Incremental Term Loan Maturity
Date, as applicable.


 


SECTION 2.03.
Notice of Borrowings.  To request
a Borrowing, the Borrower shall give the Administrative Agent written or fax
notice substantially in the form of Exhibit G (or telephone notice
promptly confirmed in writing or by fax) (a) in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business
Days before a proposed borrowing (or such shorter period of time as may be
agreed to by the Administrative Agent) or (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, on the day of a
proposed borrowing.  Such notice shall be
irrevocable and shall in each case refer to this Agreement and specify the
following information:


 


(i) the
Type (e.g., Eurodollar or ABR) of such Borrowing;


 


(ii) the
aggregate amount of such Borrowing;


 


(iii) the
date of such Borrowing (which shall be a Business Day);


 


(iv) in
the case of a Eurodollar Borrowing, the Interest Period with respect thereto,
which shall be a period contemplated by the definition of the term “Interest
Period”; and


 


(v) the
number and location of the account to which funds are to be disbursed;


 


provided, however,
that, notwithstanding any contrary specification in any such notice, each
requested Borrowing shall comply with the requirements set forth in Section 2.02.  If no election as to the Type of Borrowing is
specified in any such notice, then the requested Borrowing shall be an ABR
Borrowing.  If no Interest Period with
respect to any Eurodollar Borrowing is specified in any such notice, then the
Borrower shall be deemed to have selected an Interest Period of one month’s
duration.  The Administrative 


 


40

















 


Agent
shall promptly advise the Lenders of any notice given pursuant to this Section 2.03,
and of each such Lender’s portion of the requested Borrowing.


 


SECTION 2.04.
Repayment of Loans; Evidence of Debt. 
(a)  The Borrower hereby unconditionally promises to pay to the
Administrative Agent, for the account of each (i) Term Lender, the then
unpaid principal amount of each Term Loan of such Lender in such amounts and on
such dates as provided in Section 2.11 and (ii) Incremental
Term Lender that shall have made Other Term Loans to the Borrower, the then
unpaid principal amount of each Other Term Loan of such Lender in such amounts
and on such dates as provided in the applicable Incremental Term Loan
Assumption Agreement.  Each Loan shall
bear interest from and including the date made on the outstanding principal
balance thereof as set forth in Section 2.06.


 


(b) 
Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the Indebtedness to such Lender resulting from each Loan
made by such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under this
Agreement.


 


(c) 
The Administrative Agent shall maintain accounts in which it will record (i) the
amount of each Loan made hereunder, the Type of each Loan and the Interest
Period, if any, applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder, (iii) the amount of any sum received by the
Administrative Agent hereunder from the Borrower or any Guarantor and each
Lender’s share thereof.


 


(d) 
The entries made in the accounts maintained by the Lenders and the
Administrative Agent pursuant to paragraphs (b) and (c) above
shall, to the extent permitted by applicable laws, be prima facie evidence of
the existence and amounts of the obligations therein recorded; provided,
however, that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans in accordance with their terms.


 


(e) 
Any Lender may request that Loans made by it hereunder be evidenced by a
promissory note.  In response to any such
request, the applicable Borrower shall prepare, execute and deliver to such
Lender a promissory note payable to such Lender and its registered assigns
substantially in the form of Exhibit H, with the blanks
appropriately filled in.  Notwithstanding
any other provision of this Agreement, in the event that any Lender shall
request and receive such a promissory note, the Loans evidenced by such
promissory note and interest payable on such Loans shall at all times
(including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes, if any, payable to the order of
the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).


 


SECTION 2.05.
Fees.  (a)  The Borrower
agrees to pay to the Administrative Agent for the account of each Lender (other
than a Defaulting Lender):


 


41

















 


(i) a
participation fee equal to 0.50% of such Lender’s Term Loan Commitment in
effect on the Closing Date, which will be earned on the Closing Date and will
be payable (x) on the Funding Date, in an amount equal to the full amount
of such fee less any portion thereof previously paid under clause (y) hereof
and (y) on each date prior to the occurrence of the Funding Date upon
which any such Term Loan Commitment or portion thereof is terminated or
otherwise expires, payable with respect to the amount of any such expired or
terminated Term Loan Commitment (including without limitation upon any such
termination of a portion of the Term Loan Commitments on or prior to the
Funding Date as a result of the issuance of any Permitted Unsecured Notes);


 


(ii) a
fee payable on the Funding Date equal to 1.00% of the principal amount of such
Lender’s Term Loans made on the Funding Date, minus the amount of any fee paid
pursuant to clause (i) above on the Funding Date with respect to
the amount of such Lender’s Term Loan Commitment relating to such Term Loans
made, such fee to be paid in cash on the Funding Date, or if the Lender so
elects by giving notice to the Administrative Agent at least one Business Day
prior to the Funding Date, as an original issue discount with respect to such
Term Loans made by it;


 


(iii) a
ticking fee equal to 0.50% per annum (calculated on the basis of a year of 360
days and actual days elapsed) applied to the average daily amount of the Term
Loan Commitment of such Lender, which shall accrue at all times during the
period commencing on the date hereof and ending on the earlier of (x) the
Funding Date and (y) the date prior to the occurrence of the Funding Date
upon which the Term Loan Commitments are terminated or otherwise expire and
which shall be due and payable upon the earlier of (x) the Funding Date
and (y) the date prior to the occurrence of the Funding Date upon which
the Term Loan Commitments are terminated or otherwise expire; and


 


(iv) in
the event a Lender receives a Refinancing Repayment, the premium required to be
paid pursuant to Section 2.26 in connection therewith.


 


(b) 
The Borrower agrees to pay to the Administrative Agent, (i) for its own
account, the administration fees at the times and in the amounts agreed upon by
the Borrower and the Administrative Agent and (ii) for the account of each
Arranger, the arrangement fee at the times and in the amounts agreed upon by
the Borrower and the Arrangers in the letter dated as of January 12, 2010.


 


(c) 
All Fees shall be paid on the dates due, in U.S. Dollars in immediately
available funds, to the Administrative Agent. 
Once paid, none of the Fees shall be refundable under any circumstances
(other than corrections of errors in payment).


 


SECTION 2.06.
Interest on Loans.  (a)  Subject
to the provisions of Section 2.07, the Loans comprising each ABR
Borrowing shall bear interest (computed on the basis of the actual number of
days elapsed over a year of 365 or 366 days, as the case may be, when the
Alternate Base Rate is determined by reference to the Prime Rate 


 


42

















 


and over a year of
360 days at all other times) at a rate per annum equal to the Alternate
Base Rate plus the Applicable Rate with respect to such Loans.


 


(b) 
Subject to the provisions of Section 2.07, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum
equal to the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate with respect to such Loans.


 


(c) 
Interest on each Loan shall be payable on the Interest Payment Dates applicable
to such Loan and at such other times as are specified in this Agreement.  The Applicable Rate for each Interest Period
or day within an Interest Period, as the case may be, shall be determined by
the Administrative Agent, and such determination shall be presumptively correct
absent manifest error.


 


SECTION 2.07.
Default Interest.  If the Borrower
shall default in the payment of the principal of or interest on any Loan or any
other amount becoming due hereunder or under any Loan Document, by acceleration
or otherwise, the Borrower shall, on the written demand of the Required Lenders
or the Administrative Agent, with the consent of the Required Lenders, to the
Borrower, pay interest, to the extent permitted by law, on such defaulted
amount to but excluding the date of actual payment (after as well as before
judgment or bankruptcy) at a rate per annum (the “Default Rate”) equal
to (a) in the case of any Loan, the rate that would be applicable under Section 2.06
to such Loan plus 2.00% per annum and (b) in the case of any other
amount, the rate that would be applicable under Section 2.06 to an
ABR Term Loan plus 2.00% per annum.


 


SECTION 2.08.
Alternate Rate of Interest.  In
the event, and on each occasion, that on the day two Business Days prior to the
commencement of any Interest Period for a Eurodollar Borrowing the
Administrative Agent shall have determined that U.S. Dollar deposits in the
principal amounts of the Loans comprising such Borrowing are not generally
available in the London interbank market, or that the rates at which such U.S.
Dollar deposits are being offered will not adequately and fairly reflect the
cost to a majority in interest of Lenders under the relevant Credit Facility of
making or maintaining their Eurodollar Loans during such Interest Period, or
that reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the
Administrative Agent shall, as soon as practicable thereafter, give written or
fax notice of such determination to the Borrower and the Lenders.  In the event of any such determination, any
request by the Borrower for such a Eurodollar Borrowing pursuant to Section 2.03
or 2.10 shall, until the Administrative Agent shall have advised the
Borrower and the Lenders that the circumstances giving rise to such notice no
longer exist, be deemed to be a request for an ABR Borrowing.  Each determination by the Administrative
Agent hereunder shall be conclusive absent manifest error.


 


SECTION 2.09.
Termination and Reduction of Commitments.  (a)  The Term Loan Commitments shall
terminate at 5:00 p.m., New York City time, on the date that is five
months after the Closing Date if the Funding Date shall not have occurred on 


 


43

















 


or prior to such date but in
any event no later than 5:00 p.m., New York City time, on July 16,
2010.


 


(b) 
Upon at least one Business Days’ prior irrevocable written or fax notice to the
Administrative Agent, the Borrower may at any time prior to the Funding Date in
whole permanently terminate, or from time to time in part permanently reduce,
the Term Loan Commitments; provided, however, that each partial
reduction of such Term Loan Commitments shall be in an integral multiple of
$5,000,000 and in a minimum principal amount of $5,000,000.


 


(c) 
If, prior to the Funding Date, the Borrower issues Permitted Unsecured Notes
(including for proceeds that are deposited into an escrow account pending the
Funding Date), then the Term Loan Commitments shall automatically be reduced at
the time of any such issuance, on a pro rata basis, by an amount equal to the
Net Cash Proceeds of any such issuance.


 


(d) 
The Borrower shall pay to the Administrative Agent for the account of the
Lenders, on the date of each termination or reduction of Term Loan Commitments,
the fee on the amount of the Term Loan Commitments so terminated or reduced
required to be paid pursuant to Section 2.05(a)(i).


 


(e) 
Nothing in this Section 2.09 shall prejudice any rights that the
Borrower may have against any Lender that fails to lend as required hereunder
prior to the date of termination of any Term Loan Commitment.


 


SECTION 2.10.
Conversion and Continuation of Borrowings.  The Borrower shall have the right at any time
upon prior irrevocable notice substantially in the form of Exhibit I
to the Administrative Agent (a) not later than 11:00 a.m., New York
City time, on the day of the proposed conversion, to convert any Eurodollar
Borrowing into an ABR Borrowing, (b) not later than 11:00 a.m., New
York City time, three Business Days prior to conversion or continuation, to
convert any ABR Borrowing into a Eurodollar Borrowing or to continue any
Eurodollar Borrowing as a Eurodollar Borrowing for an additional Interest
Period and (c) not later than 11:00 a.m., New York City time, three
Business Days prior to conversion, to convert the Interest Period with respect
to any Eurodollar Borrowing to another permissible Interest Period, subject in
each case to the following:


 


(i) each
conversion or continuation shall be made pro rata among the Lenders in
accordance with the respective principal amounts of the Loans comprising the
converted or continued Borrowing;


 


(ii) if
less than all the outstanding principal amount of any Borrowing shall be
converted or continued, the aggregate principal amount of such Borrowing
converted or continued shall be in an integral multiple of $1,000,000 and not less
than $10,000,000;


 


(iii) each
conversion shall be effected by each Lender and the Administrative Agent by
recording the particulars thereof in their respective 


 


44

















 


accounts
maintained pursuant to Section 2.04, and no new Loan shall be
considered to have been made as a result thereof; accrued interest on any
Eurodollar Loan (or portion thereof) being converted shall be paid by the
Borrower at the time of the conversion;


 


(iv) if
any Eurodollar Borrowing is converted at a time other than the end of the
Interest Period applicable thereto, the applicable Borrower shall pay, upon
demand, any amounts due to the Lenders pursuant to Section 2.15;


 


(v) any
portion of a Borrowing maturing or required to be repaid in less than one month
may not be converted into or continued as a Eurodollar Borrowing;


 


(vi) any
portion of a Eurodollar Borrowing that cannot be converted into or continued as
a Eurodollar Borrowing by reason of clause (v) above shall be
automatically converted at the end of the Interest Period in effect for such
Borrowing into an ABR Borrowing;


 


(vii) no
Interest Period may be selected for any Eurodollar Term Borrowing that would
end later than any applicable Term Loan Repayment Date occurring on or after
the first day of such Interest Period if, after giving effect to such
selection, the aggregate outstanding amount of (A) the Eurodollar Term
Borrowings with Interest Periods ending on or prior to such Term Loan Repayment
Date and (B) the ABR Term Borrowings would not be at least equal to the
principal amount of Borrowings to be paid on such Term Loan Repayment Date; and


 


(viii) upon
notice to the Borrower from the Administrative Agent given at the request of
the Required Lenders, after the occurrence and during the continuance of a
Default or Event of Default, no outstanding Loan may be converted into, or
continued as, a Eurodollar Loan.


 


Each
notice pursuant to this Section 2.10 shall be irrevocable and shall
refer to this Agreement and specify (A) the identity, amount and Class of
the Borrowing that the Borrower requests be converted or continued, (B) whether
such Borrowing is to be converted to or continued as a Eurodollar Borrowing or
an ABR Borrowing, (C) if such notice requests a conversion, the date of
such conversion (which shall be a Business Day) and (D) if such Borrowing
is to be converted to or continued as a Eurodollar Borrowing, the Interest
Period with respect thereto.  If no
Interest Period is specified in any such notice with respect to any conversion
to or continuation as a Eurodollar Borrowing, the Borrower shall be deemed to
have selected an Interest Period of one month’s duration.  The Administrative Agent shall advise the
applicable Lenders of any notice given pursuant to this Section 2.10
and of each Lender’s portion of any converted or continued Borrowing.  If the Borrower shall not have given notice
in accordance with this Section 2.10 to continue any Borrowing into
a subsequent Interest Period (and shall not otherwise have given notice in
accordance with this Section 2.10 to convert such Borrowing), such
Borrowing shall, at the end of the Interest Period applicable thereto  


 


45

















 


(unless
repaid pursuant to the terms hereof), automatically be continued into a new
Interest Period as an ABR Borrowing.


 


SECTION 2.11.
Repayment of Term Borrowings.  (a) 
The Borrower shall pay to the Administrative Agent, for the account of the Term
Lenders, (i) on September 30, 2010 and on the last day of each
subsequent fiscal quarter (each such date, together with the Term Loan Maturity
Date, being a “Term Loan Repayment Date”), a principal amount of the
Term Loans equal to 0.25% of the aggregate principal amount of the Term Loans
outstanding on the Funding Date and (ii)on the Term Loan Maturity Date, the
unpaid outstanding balance of the Term Loans (such amounts payable on each Term
Loan Repayment Date, including the amount payable on the Term Loan Maturity
Date, as adjusted from time to time pursuant to Sections 2.12 and 2.13(d),
being called the “Term Loan Repayment Amounts”).


 


(b) 
The Borrower shall pay to the Administrative Agent, for the account of the
applicable Incremental Term Lenders, on each Incremental Term Loan Repayment
Date, including the Incremental Term Loan Maturity Date, a principal amount of
the Other Term Loans (such amounts, as adjusted from time to time pursuant to Sections 2.12
and 2.13(d), being called the “Incremental Term Loan Repayment
Amounts”) equal to the amount set forth for such date in the applicable
Incremental Term Loan Assumption Agreement.


 


(c) 
To the extent not previously paid, all Term Loans and Other Term Loans shall be
due and payable on the Term Loan Maturity Date and Incremental Term Loan
Maturity Date, respectively.


 


(d) 
All repayments pursuant to this Section 2.11 shall be subject to Section 2.15
and shall be accompanied by accrued and unpaid interest on the principal amount
paid to but excluding the date of payment, but shall otherwise be without
premium or penalty.  In the event that
any Term Loans or Other Term Loans are purchased or acquired by the Borrower
pursuant to Purchase Offers under Section 2.23 or Permitted Debt
Exchanges pursuant to Section 2.24 or any portion of any Term Loans
or Other Term Loans of any Class are converted into a new Class of
Term Loans or Other Term Loans pursuant to an Extension effected pursuant to Section 2.25,
then the Term Loan Repayment Amount and the Incremental Term Loan Repayment
Amount attributable to each Term Loan or Other Term Loan of each Class that
was outstanding prior to and remains outstanding after such Purchase Offer,
Permitted Debt Exchange or Extension, as the case may be, will not be reduced
or otherwise affected by such transaction (i.e., in the case of the
scheduled quarterly installment payments, will continue to be 0.25% of the
initial amount of such Term Loan or Other Term Loan on the date it was
originally made).


 


SECTION 2.12.
Optional Prepayments; Certain Loan Repurchases.  (a)  The Borrower shall have the right
at any time and from time to time to prepay any Borrowing, in whole or in part,
upon written or fax notice (or telephone notice promptly confirmed by written
or fax notice) delivered to the Administrative Agent (i) by 11:00 a.m.,
New York City time, at least three Business Days prior to the date designated


 


46
















 


for such prepayment, in the
case of any prepayment of a Eurodollar Borrowing, or (ii) by 11:00 a.m.,
New York City time, on the date designated for such prepayment in the case of
any prepayment of an ABR Borrowing; provided,  however, that each partial payment shall be in an
amount that is an integral multiple of, in the case of an ABR Borrowing,
$1,000,000 and, in the case of a Eurodollar Borrowing, $5,000,000 (or, in each
case, the entire amount of the Borrowing being prepaid).


 


(b) 
Optional prepayments of Term Loans made by the Borrower pursuant to paragraph (a) above
shall be allocated between Classes of Term Loans (and to the remaining
scheduled installments of principal with respect to Term Loans of any Class) in
a manner determined at the discretion of the Borrower.


 


(c) 
Each notice of optional prepayment shall specify (i) the amount to be
prepaid, (ii) the prepayment date, (iii) the Class of Loans to
be prepaid and (iv) the allocation of the amount specified pursuant to clause (i) among
the Loans specified pursuant to clause (iii).  Each notice of optional prepayment shall be
irrevocable and shall commit the Borrower to prepay such obligations by the
amount specified therein on the date specified therein.  All prepayments pursuant to this Section 2.12
shall be subject to Section 2.15 and, if applicable, Section 2.26,
and shall be accompanied by accrued and unpaid interest on the principal amount
paid to but excluding the date of payment, but shall otherwise be without
premium or penalty.


 


(d) 
Except as specifically set forth in the last sentence of Section 2.13(b),
no optional prepayment of Loans made by the Borrower pursuant to this Section 2.12
shall reduce the Borrower’s obligation to make mandatory prepayments pursuant
to Section 2.13(a), (b) or (c).


 


SECTION 2.13.
Mandatory Prepayments.  (a)  No
later than the third Business Day following the determination of the amount of
Net Cash Proceeds received in respect of any Asset Sale occurring on or after
the Funding Date, the Borrower shall apply an amount equal to 100% of such Net
Cash Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(d);
provided, however, that if (i) at any time prior to the due
date of such prepayment, the Borrower delivers a certificate of its Financial
Officer to the Administrative Agent setting forth its intent to reinvest, or to
cause the Subsidiaries to reinvest, the Net Cash Proceeds received in respect
thereof, not in excess of $250,000,000 in the aggregate for all Asset Sales,
within 365 days after the receipt thereof, in assets that are used or useful in
the business of the Borrower and the Subsidiaries and (ii) no Default or
Event of Default shall have occurred and be continuing at the time such
certificate is delivered, then no prepayment of Term Loans shall be required
pursuant to this paragraph (a), except to the extent such Net Cash
Proceeds are not so applied by the expiration of such 365-day period, at which
time a prepayment of the Term Loans shall be required in the amount of any such
unapplied Net Cash Proceeds.


 


(b) 
No later than the earlier of (i) 90 days after the end of each fiscal
year of the Borrower, commencing with the fiscal year ending on December 31,
2010, and (ii) the date on which the financial statements with respect to
such fiscal year are 


 


47

















 


delivered pursuant to Section 5.04(a),
the Borrower shall prepay outstanding Term Loans in accordance with Section 2.13(d) in
an aggregate principal amount equal to 50% (or, if the Consolidated Senior
Secured Leverage Ratio as of the last day of such fiscal year shall have been
equal to or less than 2.25 to 1.00, 25%, or if the if the Consolidated Senior
Secured Leverage Ratio as of the last day of such fiscal year shall have been
equal to or less than 1.75 to 1.00, 0%) of the amount of Excess Cash Flow for
such fiscal year or, in the case of the fiscal year ending December 31,
2010, for the partial fiscal year commencing on July 1, 2010 and ending December 31,
2010.  The Borrower may elect by written
notice to the Administrative Agent at the time of a prepayment required to be
made in any fiscal year under this paragraph (b) to apply against
the amount of such prepayment all or any specified portion of an optional
prepayment previously made during the same fiscal year under Section 2.12(a);
provided that such optional prepayment was applied to the Term Loans in
the same manner as a prepayment under this paragraph (b) is
required to be applied, in which case the amount of the optional prepayment so
applied will for all purposes hereof (including without limitation for purposes
of calculating Excess Cash Flow) be deemed to be a mandatory prepayment made
pursuant to this paragraph (b).


 


(c) 
In the event that the Borrower or any Subsidiary shall receive Net Cash
Proceeds from the issuance or other disposition of Indebtedness for money
borrowed of the Borrower or such Subsidiary after the Funding Date (other than
Indebtedness for money borrowed permitted pursuant to Section 6.01
(other than paragraph (m) thereof)) the Borrower shall reasonably
promptly after (and in any event not later than the third Business Day next
following) the receipt of such Net Cash Proceeds by the Borrower or any
Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay
outstanding Term Loans in accordance with Section 2.13(d), provided
that the Net Cash Proceeds from the issuance of Permitted Notes pursuant to Section 6.01(m) need
not be applied to the prepayment of Term Loans to the extent that the Incremental
Commitment Amount is, at the election of the Borrower and simultaneously with
the receipt of such Net Cash Proceeds, reduced by the amount of such Net Cash
Proceeds not so applied.  The Borrower
will give written notice to the Administrative Agent not later than the date on
which any issuance of Permitted Notes is consummated of any such election to
reduce the then-current Incremental Commitment Amount, specifying the amount of
such reduction, provided that the amount of any such reduction shall not
exceed the then-current amount of the Incremental Commitment Amount.


 


(d) 
Mandatory prepayments of Term Loans pursuant to paragraphs (a), (b) and
(c) above shall be allocated pro rata among the Classes of Term
Loans and shall be applied to reduce ratably the remaining Repayment Amounts
for such Class; provided, however, that, subject to Section 2.16
(i) the Borrower may allocate and apply the amount of Excess Cash Flow
required to be used to prepay Term Loans hereunder in any year to the Repayment
Amounts coming due within two years of such required prepayment and (ii) the
Borrower may allocate and apply up to $100,000,000 of Excess Cash Flow required
to be used to prepay Term Loans hereunder in any year to any Class or
Classes of Term Loans and the remaining Repayment Amounts for each such Class at
its discretion.


 


48

















 


(e) 
The Borrower shall deliver to the Administrative Agent, (i) at the time of
each prepayment by such Borrower required under paragraph  (a), (b) or
(c) above, a certificate signed by a Financial Officer of the
Borrower setting forth in reasonable detail the calculation of the amount of
such prepayment and (ii) at least three Business Days prior to the time of
each prepayment required under this Section 2.13, a notice of such
prepayment.  Each notice of prepayment
shall specify the prepayment date, the Class and Type of each Loan being
prepaid (which specification shall comply with this Section 2.12)
and the principal amount of each Loan (or portion thereof) to be prepaid.  All prepayments of Borrowings under this Section 2.13
shall be subject to Section 2.15 and shall be accompanied by
accrued but unpaid interest on the principal amount paid to but excluding the
date of payment, but shall otherwise be without premium or penalty.


 


(f) 
To the extent consistent with paragraph (d) above, amounts to
be applied pursuant to this Section 2.13 to the prepayment of Loans
shall be applied to reduce outstanding ABR Loans prior to being applied to
reduce Eurodollar Loans.  In the case of
any mandatory prepayment of Eurodollar Loans pursuant to this Section 2.13
(other than any mandatory prepayment of Loans of any Class required in
connection with the expiration or termination in whole of Commitments of such
Class), the Borrower may, at its option, deposit into the Prepayment Account
(as defined below) an amount in cash equal to such mandatory prepayment rather
than prepaying such Loan on the date otherwise due pursuant to this Section 2.13.  The Administrative Agent shall apply any cash
deposited into the Prepayment Account solely to prepay Eurodollar Loans with
respect to which such deposit has been made on the last day of the applicable
Interest Periods (or on an earlier date if (i) directed to do so by the
Borrower or (ii) an Event of Default shall have occurred and is
continuing).  For purposes of this
Agreement, the term “Prepayment Account” shall mean an account
established by the Borrower with the Administrative Agent and over which the
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal for application in accordance with this paragraph (f).  The Borrower hereby grants to the
Administrative Agent, for the benefit of the Administrative Agent and the
Lenders, a security interest in the Prepayment Account to secure the
Obligations owed to such Persons.  The
Administrative Agent will, at the request of the Borrower, invest amounts on
deposit in the Prepayment Account in Permitted Investments that mature prior to
the last day of the applicable Interest Periods of the Eurodollar Borrowings to
be prepaid; provided, however, that (A) the Administrative
Agent shall not be required to make any investment that, in its sole judgment,
would result in any violation of any law, statute, rule or regulation and (B) the
Administrative Agent shall have no obligation to invest amounts on deposit in
the Prepayment Account if a Default or an Event of Default shall have occurred
and be continuing.  The Borrower shall
indemnify the Administrative Agent for any losses relating to the investments
so that the amount available to prepay Eurodollar Borrowings on the day due
pursuant to the third preceding sentence is not less than the amount that would
have been available had no investments been made pursuant thereto.  So long as no Default or Event of Default
shall have occurred and be continuing, interest or profits, if any, resulting
from investment of amounts on deposit in the Prepayment Account shall be
distributed by the Administrative Agent to the Borrower upon the payment of the
Eurodollar Borrowing with respect to which such deposit has been made.  


 


49

















 


Other than any interest or
profits resulting from such investments, the Prepayment Account shall not bear
interest.


 


SECTION 2.14.
Reserve Requirements; Change in Circumstances; Increased Costs.  (a)  Notwithstanding any other provision
herein, if after the Closing Date any change in applicable law or regulation or
in the interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof (whether or not
having the force of law) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with or for
the account of or credit extended by any Lender (except any such reserve
requirement that is reflected in the Adjusted LIBO Rate or the Alternate Base
Rate) or shall impose on any Lender or the London interbank market any other
condition affecting this Agreement or Loans made by such Lender, and the result
of any of the foregoing shall be to increase the cost to such Lender of making
or maintaining any Loan or to reduce the amount of any sum received or
receivable by any Lender hereunder (whether of principal, interest or
otherwise) by an amount deemed by such Lender to be material, then the Borrower
will pay to such Lender, following receipt by the Borrower of a certificate of
such Lender to such effect in accordance with Section 2.14(c), such
additional amount or amounts as will compensate such Lender on an after-tax
basis for such additional costs incurred or reduction suffered; provided,
however, that none of the Lenders shall be entitled to demand
compensation pursuant to this paragraph (a) if it shall not be
the general practice of such Lender to demand such compensation in similar
circumstances under comparable provisions of other comparable credit
agreements.


 


(b) 
If any Lender shall have determined that the adoption after the Closing Date of
any law, rule, regulation, agreement or guideline regarding capital adequacy,
or any change in any of the foregoing or in the interpretation or
administration of any of the foregoing by any Governmental Authority, central bank
or comparable agency charged with the interpretation or administration thereof,
or compliance by any Lender (or any lending office of such Lender) or any
Lender’s holding company, if any, with any request or directive regarding
capital adequacy issued under any law, rule, regulation or guideline (whether
or not having the force of law) of any such Governmental Authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender’s capital or on the capital of such Lender’s holding
company, if any, as a consequence of this Agreement or the Loans made by such
Lender to a level below that which such Lender or such Lender’s holding
company, if any, could have achieved but for such applicability, adoption, change
or compliance (taking into consideration such Lender’s policies and the
policies of such Lender’s holding company, if any, with respect to capital
adequacy) by an amount deemed by such Lender to be material, then from time to
time the Borrower shall pay to such Lender, following receipt by the Borrower
of a certificate of such Lender to such effect in accordance with Section 2.14(c),
such additional amount or amounts as will compensate such Lender or such Lender’s
holding company, if any, on an after-tax basis for any such reduction suffered;
provided, however, that none of the Lenders shall be entitled to
demand compensation pursuant to this paragraph (b) if it shall
not be the general practice of such Lender, as applicable, to demand such
compensation in similar circumstances under comparable provisions of other
comparable credit agreements.


 


50

















 


(c) 
A certificate of a Lender setting forth such amount or amounts as shall be
necessary to compensate such Lender or its holding company, if any, as
specified in paragraph (a) or (b) above, as the
case may be, and setting forth in reasonable detail an explanation of the basis
of requesting such compensation in accordance with paragraph (a) or
(b) above, including calculations in reasonable detail, shall be
delivered to the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender the amount
shown as due on any such certificate delivered by it within 10 days after
the Borrower’s receipt of the same.


 


(d) 
Failure on the part of any Lender to demand compensation for any increased
costs or reduction in amounts received or receivable or reduction in return on
capital with respect to any period shall not constitute a waiver of such Lender’s
right to demand compensation with respect to such period or any other period,
except that none of the Lenders shall be entitled to compensation under this Section 2.14
for any costs incurred or reduction suffered with respect to any date unless
such Lender shall have notified the Borrower that it will demand compensation
for such costs or reductions under paragraph (c) above not
more than six months after the later of (i) such date and (ii) the
date on which such Lender shall have become aware of such costs or
reductions.  The benefits of this Section 2.14
shall be available to each Lender regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, guideline or other
change or condition that shall have occurred or been imposed.


 


SECTION 2.15.
Indemnity.  The Borrower shall
indemnify each Lender against any loss or expense that such Lender may sustain
or incur with respect to Eurodollar Loans as a consequence of (a) any
failure by the Borrower to fulfill on the date of any Borrowing hereunder the
applicable conditions set forth in Article IV, (b) any failure
by the Borrower to borrow or to convert or continue any Loan hereunder after
irrevocable notice of such Borrowing, conversion or continuation has been given
pursuant to Section 2.03 or 2.10, (c) any payment,
prepayment or conversion of a Eurodollar Loan required or permitted by any
other provision of this Agreement or otherwise, or any assignment of a
Eurodollar Loan required by Section 2.20(b), in each case made or
deemed made on a date other than the last day of the Interest Period applicable
thereto or (d) any default in payment or prepayment of the principal
amount of any Loan or any part thereof or interest accrued thereon, as and when
due and payable (at the due date thereof, whether at scheduled maturity, by
acceleration, irrevocable notice of prepayment or otherwise), including, in
each such case, any loss or reasonable expense sustained or incurred or to be
sustained or incurred in liquidating or employing deposits from third parties
acquired to effect or maintain such Loan or any part thereof as a Eurodollar
Loan.  Such loss or reasonable expense
shall be equal to the sum of (i) such Lender’s actual costs and expenses
incurred (other than any lost profits) in connection with, or by reason of, any
of the foregoing events and (ii) an amount equal to the excess, if any, as
reasonably determined by such Lender, of (A) its cost of obtaining the
funds for the Loan being paid, prepaid, converted or not borrowed, converted or
continued (assumed to be the Adjusted LIBO Rate applicable thereto) for the
period from and including the date of such payment, prepayment, conversion or
failure to borrow, convert or continue to but excluding the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow, convert
or continue, the Interest Period for such Loan that  


 


51

















 


would have commenced on the
date of such failure) over (B) the amount of interest (as reasonably
determined by such Lender) that would be realized by such Lender in reemploying
the funds so paid, prepaid, converted or not borrowed, converted or continued
for such period, Interest Period.  A certificate
of any Lender setting forth any amount or amounts, including calculations in
reasonable detail, that such Lender is entitled to receive pursuant to this Section 2.15
shall be delivered to the Borrower and shall be conclusive absent manifest
error.


 


SECTION 2.16.
Pro Rata Treatment.  Except as
permitted under Sections 2.23, 2.24 and 2.25, each
Borrowing, each payment or prepayment of principal of any Borrowing, each
payment of interest on the Loans and the Fees due to the Lenders, each
reduction of the Commitments of a Class and each conversion of any
Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall
be allocated pro rata among the Lenders in accordance with their respective
applicable Commitments (provided that (x) in the case of Term Loans
or (y) in the event that such Commitments shall have expired or been
terminated, such pro rata allocation shall be based on the respective principal
amounts of the outstanding Loans or accrued interest thereon, as
appropriate).  Each Lender agrees that in
computing such Lender’s portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Lender’s percentage of
such Borrowing, computed in accordance with Section 2.01, to the
next higher or lower whole U.S. Dollar.


 


SECTION 2.17.
Sharing of Setoffs and Realization of Security.  Except to the extent that this Agreement
provides for payments to be disproportionally allocated to or retained by a
particular Lender or group of Lenders (including in connection with purchases
of Term Loans or Other Term Loans pursuant to Purchase Offers contemplated by Section 2.23,
exchanges of Term Loans or Other Term Loans pursuant to Permitted Debt
Exchanges pursuant to Section 2.24 and the payment of interest or
fees at different rates and repayment of principal amounts of Term Loans or
Other Term Loans at different times as a result of Extensions permitted under Section 2.25),
each Lender agrees that if it shall through the exercise of a right of banker’s
lien, combination of accounts, setoff or counterclaim against any Loan Party,
or pursuant to a secured claim under any applicable Insolvency Law or other
security or interest arising from, or in lieu of, such secured claim, received
by such Lender under any applicable Insolvency Law or otherwise, or by any
other means, obtain payment (voluntary or involuntary) in respect of any Loans
and accrued interest thereon as a result of which the unpaid principal portion
of its Loans and accrued interest thereon shall be proportionately less than
the unpaid principal portion of the Loans and accrued interest thereon of any
other Lender (or other Lender with the same payment entitlements as such
Lender), such Lender shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in the Loans and accrued interest thereon
of such other Lender, so that the benefit of all such payments shall be shared
by the relevant Lenders ratably in accordance with the aggregate amount of the
principal of and accrued interest on their respective Loans; provided, however,
that if any such purchase or purchases or adjustments shall be made pursuant to
this Section 2.17 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery  


 


52

















 


and the purchase price or
prices or adjustment restored without interest. 
The Borrower expressly consents to the foregoing arrangements and agrees
that any Lender holding a participation pursuant to the foregoing arrangements
may, subject to the terms of Section 9.06, exercise any and all
rights of banker’s lien, combination of accounts or setoff with respect to any
and all moneys owing by the Loan Parties to such Lender by reason thereof as
fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.


 


SECTION 2.18.
Payments.  (a)  The Borrower
shall make each payment (including payment of principal of or interest on any
Loan or any Fees) hereunder and under any other Loan Document not later than
12:00 noon, New York City time, on the date when due in immediately available
funds, without defense, setoff or counterclaim. 
All payments hereunder of principal or interest in respect of any Loan
(or of any breakage indemnity in respect of any Loan) and all other payments
hereunder and under each other Loan Document shall be made in U.S. Dollars.  Each such payment (other than payments
pursuant to Sections 2.14, 2.15, 2.19 and 9.05,
which shall be made to the Persons entitled thereto) shall be made to such
account of the Administrative Agent, as the Administrative Agent shall specify
by notice to the Borrower.  Any payments
received by the Administrative Agent after the specified time for receipt of
such payment on any day shall be deemed to have been received on the next
Business Day.  The Administrative Agent
shall distribute to the applicable Lenders all payments received by it for
their respective accounts, promptly following receipt thereof.


 


(b) 
Whenever any payment (including any payment of principal of or interest on any
Borrowing or any Fees) hereunder or under any other Loan Document shall become
due, or otherwise would occur, on a day that is not a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of interest or Fees, if
applicable.


 


SECTION 2.19.
Taxes.  (a)  Any and all
payments by the Loan Parties hereunder and under the other Loan Documents shall
be made free and clear of and without deduction for any and all current or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities (including interest, additions to tax or penalties) with respect
thereto, excluding, with respect to the Administrative Agent or any
Lender (or any transferee or assignee of any of the foregoing, including a
participation holder (any such entity being called a “Transferee”))
branch profits taxes and taxes imposed on the net income of the Administrative
Agent or such Lender (or Transferee), as the case may be, and franchise taxes
imposed on the Administrative Agent or such Lender (or Transferee), as the case
may be, by the United States or any jurisdiction under the laws of which the
Administrative Agent or such Lender (or Transferee) is organized or in which
the Administrative Agent or such Lender (or Transferee) has its principal
office or lending office or any political subdivision or taxing authority
thereof or therein or in any other jurisdiction in which the Administrative
Agent or such Lender (or Transferee) is otherwise doing business (or, if a
treaty applies, a jurisdiction in which the Administrative Agent or such Lender
(or Transferee) has a permanent establishment) other than any jurisdiction in
which the Administrative Agent or such Lender (or Transferee) is treated as
doing business (or, if a treaty applies, is 


 


53

















 


treated as having a
permanent establishment) solely by reason of having executed, delivered or
performed its obligations or received a payment under this Agreement or any
other Loan Document (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as “Taxes”).  If any Taxes are required to be deducted from
or in respect of any sum payable hereunder by any Loan Party to any Lender (or
any Transferee) or the Administrative Agent, (i) the sum payable shall be
increased by the amount necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section 2.19)
such Lender (or Transferee) or the Administrative Agent, as the case may be,
shall receive an  amount equal to the sum
it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall timely pay the
full amount deducted to the relevant taxing authority or other Governmental
Authority in accordance with applicable law; provided, however,
that, if a Lender assigns, participates or otherwise transfers all or any
portion of its rights under this Agreement or any other Loan Document or
changes its lending office for the purposes of this Agreement and as a result
of circumstances existing at the date of the assignment, participation, other
transfer or change in lending office, the Borrower would be obligated to pay
any amount under this paragraph (a), then the Transferee or Lender
acting through its new lending office shall only be entitled to receive payment
under this paragraph (a) to the same extent that the previous
Lender or the Lender acting through its previous lending office would have been
entitled if no such assignment, participation, other transfer or change in
lending office had taken place unless (x) such assignment, participation
or transfer shall have been at the request of the Borrower or (y) such
assignment, participation or transfer shall have been made pursuant to Section 2.17.


 


(b) 
The Borrower agrees to pay any current or future stamp, intangible or
documentary taxes or any other excise or property taxes, charges or similar
levies (including mortgage recording taxes and similar fees) that arise from
any payment made hereunder or from the execution, delivery or registration of,
or otherwise with respect to, this Agreement, any Assignment and Acceptance
entered into at the request of the Borrower or any other Loan Document
(hereinafter referred to as “Other Taxes”).


 


(c) 
The Borrower will indemnify each Lender (or Transferee) and the Administrative
Agent for the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes on amounts payable under this Section 2.19) paid by
such Lender (or Transferee) or the Administrative Agent, as the case may be,
and any liability (including penalties, interest and reasonable expenses)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted by the relevant taxing authority or
other Governmental Authority.  Such
indemnification shall be made within 30 days after the date any Lender (or
Transferee) or the Administrative Agent, as the case may be, makes written
demand therefor (which demand shall identify the nature and amount of Taxes and
Other Taxes for which indemnification is being sought and shall include a copy
of the relevant portion of any written assessment from the relevant taxing
authority demanding payment of such Taxes or Other Taxes, unless the Lender (or
Transferee) or the Administrative Agent, as the case may be, determines, in its
sole discretion, that such portion of any such assessment is
confidential).  If a Lender (or
Transferee) or the Administrative Agent shall become aware that it is entitled
to receive a 


 


54

















 


refund in respect of Taxes
or Other Taxes as to which it has been indemnified by the Borrower pursuant to
this Section 2.19, it shall promptly notify the Borrower of the
availability of such refund and shall, within 30 days after receipt of a
request by the Borrower, apply for such refund at the Borrower’s expense.  If any Lender (or Transferee) or the
Administrative Agent receives a refund in respect of any Taxes or Other Taxes
as to which it has been indemnified by the Borrower pursuant to this Section 2.19,
it shall promptly notify the Borrower of such refund and shall, within
30 days of receipt, repay such refund (to the extent of amounts that have
been paid by the Borrower under this Section 2.19 with respect to
such refund and not previously reimbursed) to the Borrower, net of all
reasonable out-of-pocket expenses of such Lender or the Administrative Agent
and without interest (other than the interest, if any, included in such refund
net of any Taxes payable with respect to receipt of such refund), provided
that the Borrower, upon the request of such Lender (or Transferee) or the
Administrative Agent, agrees to return such refund (plus penalties,
interest or other charges imposed by the relevant Governmental Authority) to
such Lender (or Transferee) or the Administrative Agent in the event such
Lender (or Transferee) or the Administrative Agent, as the case may be, is
required to repay such refund.


 


(d) 
Within 30 days after the date of any payment of Taxes or Other Taxes
withheld by the Borrower in respect of any payment to any Lender (or
Transferee) or the Administrative Agent, the Borrower will furnish to the
Administrative Agent, at the addresses referred to in Section 9.01,
the original or a certified copy of a receipt evidencing payment thereof or
other evidence reasonably satisfactory to such Lender (or Transferee) or the
Administrative Agent, as the case may be.


 


(e) 
Without prejudice to the survival of any other agreement contained herein, the
agreements and obligations contained in this Section 2.19 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.


 


(f)  (i)Each of the Administrative Agent and
any Lender (or Transferee) that is not a U.S. person (within the meaning of Section 7701(a)(30)
of the Code) (a “Non-U.S. Person”) agrees that it shall on the date it
becomes the Administrative Agent or a Lender (or Transferee) hereunder, deliver
to the Borrower and the Administrative Agent (A) one duly completed copy
of United States Internal Revenue Service Form W-8BEN or W-8ECI (or
replacement or successor forms thereto), or (B) in the case of Lenders (or
Transferees thereof) exempt from United States Federal withholding tax pursuant
to Sections 871(h) or 881(c) of the Code, one duly completed
copy of a United States Internal Revenue Service Form W-8BEN (Certificate
of Foreign Status of Beneficial Owner for United States Tax Withholding) and a
certificate representing that such Non-U.S. Person is not a bank for purposes
of Section 881(c) of the Code, or any successor applicable form of
any thereof, certifying in each case that the Administrative Agent  or such Lender (or Transferee), as the case
may be, is entitled to receive payments hereunder payable to it without
deduction or withholding of any United States Federal income taxes.  Each of the Administrative Agent and the
Lenders (or Transferee) that, pursuant to the immediately preceding sentence is
required to deliver to the Borrower and the Administrative Agent any such form
or 


 


55

















 


certification,
further undertakes to deliver to the Borrower and the Administrative Agent
further copies of any such form or certification or other manner of
certification reasonably satisfactory to the Borrower on or before the date
that any such form or certification expires or becomes obsolete or of the
occurrence of any event requiring a change in the most recent form or
certification previously delivered by it to the Borrower or the Administrative
Agent, and such extensions or renewals thereof as may reasonably be requested
by the Borrower or the Administrative Agent, certifying that the Administrative
Agent or such Lender (or Transferee), as the case may be, is entitled to
receive payments hereunder without deduction or withholding of any United
States Federal income taxes, unless there has occurred, on or prior to the date
on which any delivery of any such form or certification would otherwise be
required, any change in law, rule, regulation, treaty, convention or directive,
or any change in the interpretation or application of any thereof (“Change
of Law”) that renders all such forms or certification inapplicable or which
would prevent the Administrative Agent or such Lender (or Transferee), as the
case may be, from duly completing and delivering any such form or certification
with respect to it.  In the event of such
Change of Law, the Administrative Agent or such Lender (or Transferee), as the
case may be, shall advise the Borrower that under applicable law it shall be
subject to withholding of United States Federal income tax at the full
statutory rate, a reduced rate of withholding or without deduction or
withholding.  Each of the Administrative
Agent and the Lenders that is a Non-U.S. Person and that is a party hereto as
of the date hereof hereby represents and warrants that, as of the date hereof,
all payments made to it hereunder are exempt from withholding of United States
Federal income taxes (i) because such payments are effectively connected
with a United States trade or business conducted by such Non-U.S. Person; (ii) pursuant
to the terms of an income tax treaty between the United States and such
Non-U.S. Person’s country of residence; or (iii) because such payments are
portfolio interest exempt pursuant to Section 871(h) or 881(c) of
the Code.


 


(ii) Notwithstanding
anything contained in clause (i) above, in the case of an
assignment, participation or transfer made at the request of the Borrower or an
assignment, participation or transfer made pursuant to Section 2.17,
if a Transferee, in its good faith judgment, is eligible for an exemption from,
or reduced rate of, U.S. Federal withholding tax on payments by the Loan
Parties hereunder, such Transferee shall use its reasonable best efforts to
provide the Borrower and the Administrative Agent with the appropriate forms
and certifications that will permit such payments to be made without
withholding or at a reduced rate.


 


(iii) The
Administrative Agent and each Lender (or Transferee) that is a U.S. person
within the meaning of Section 7701(a)(30) of the Code (other than any such
person that is treated as a corporation for United States federal income tax
purposes) shall deliver to the Administrative Agent on or before the date such
Person becomes a party to this Agreement a duly completed United States
Internal 


 


56

















 


Revenue
Service Form W-9 (or successor form) establishing that such Person is not
subject to U.S. federal backup withholding.


 


(iv) Notwithstanding
any provision of this Section 2.19 above to the contrary, the
Borrower shall not have any obligation to pay any Taxes or Other Taxes or to
indemnify any Lender (or Transferee) or the Administrative Agent for such Taxes
or Other Taxes pursuant to this Section 2.19 to the extent that
such Taxes or Other Taxes result from (i) the failure of such Lender (or
Transferee) or the Administrative Agent to comply with its obligations pursuant
to this paragraph (f) or (ii) any representation made
hereunder or on any such form or certification (or successor applicable form or
certification) by the Lender (or Transferee) or the Administrative Agent
incurring such Taxes or Other Taxes proving to have been incorrect, false or
misleading in any material respect when so made or deemed to be made.  Nothing contained herein shall require the
Administrative Agent or any Lender (or Transferee) to make its tax returns (or
any other information relating to its taxes which it deems confidential)
available to the Borrower or any other person.


 


SECTION 2.20.
Duty to Mitigate; Replacement of Lenders.  (a)  Any of the Administrative Agent or
the Lenders (or Transferees) claiming any additional amounts payable pursuant to
Section 2.14 or 2.19 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document requested by the Borrower or to change the jurisdiction of its
applicable lending office if, the making of such filing or change would avoid
the need for or reduce the amount of any such additional amounts that may
thereafter accrue or avoid the circumstances giving rise to such exercise and
would not, in the sole determination of such Lender (or Transferee) or the Administrative
Agent, as the case may be, require it to incur additional costs or be otherwise
disadvantageous to such Lender (or Transferee) or the Administrative Agent.


 


(b) 
In the event that any Lender shall have delivered a notice or certificate
pursuant to Section 2.14 or is a Defaulting Lender, or the Borrower
shall be required to make additional payments to any Lender under Section 2.19,
the Borrower shall have the right, but not the obligation, at its own expense
(including with respect to the processing and recordation fee referred to in Section 9.04(b)),
upon notice to such Lender and the Administrative Agent, to replace such Lender
with an assignee (in accordance with and subject to the restrictions contained
in Section 9.04(b)) approved by the Administrative Agent, which
approval shall not be unreasonably withheld, and such Lender hereby agrees to
transfer and assign without recourse (in accordance with and subject to the
restrictions contained in Section 9.04(b)) all its interests,
rights and obligations under this Agreement to such assignee; provided, however,
that no Lender shall be obligated to make any such assignment unless (i) such
assignment shall not conflict with any law or any rule, regulation or order of
any Governmental Authority, (ii) such assignee shall pay to the affected
Lender in immediately available funds on the date of such assignment the
principal of the Loans made by such Lender hereunder and (iii) the
Borrower shall pay to the affected Lender in immediately available funds on the
date of such assignment the interest accrued to the date of payment on the
Loans made by such Lender hereunder and all other amounts accrued for such
Lender’s account or owed to it hereunder (it being 


 


57

















 


understood that, in the case
of any such assignment of a Defaulting Lender’s Commitment prior to the funding
thereof, the replacement Lender shall be entitled to any fees that would be
payable on the Funding Date in respect of such funded amount or Commitment
(including if such assignment to a replacement Lender takes place after the
Funding Date)).


 


(c) 
If, in connection with any proposed amendment, modification, change, waiver,
discharge or termination to any of the provisions of this Agreement as contemplated
by Section 9.08(b), the consent of the Required Lenders is obtained
but the consent of one or more of such other Lenders whose consent is required
is not obtained, then the Borrower shall have the right, but not the
obligation, at its own expense (including with respect to the processing and
recordation fee referred to in Section 9.04(b)) upon notice to such
Lender and the Administrative Agent, to replace each such non-consenting Lender
or Lenders (or, at the option of the Borrower, if such Lender’s consent is
required with respect to less than all Loans, to replace only the respective
Loans of the respective non-consenting Lender which gave rise to the need to
obtain such Lender’s individual consent) with an assignee (in accordance with
and subject to the restrictions contained in Section 9.04(b))
approved by the Administrative Agent, which approval shall not be unreasonably
withheld, so long as at the time of such replacement, each such assignee
consents to the proposed amendment, modification, change, waiver, discharge or
termination; provided, however, that no Lender shall be obligated
to make any such assignment unless (i) such assignment shall not conflict
with any law or any rule, regulation or order of any Governmental Authority, (ii) such
assignee shall pay to the non-consenting Lender in immediately available funds
on the date of such assignment the principal of the Loans made by such Lender
hereunder and subject to such assignment and (iii) the Borrower shall pay
to the non-consenting Lender in immediately available funds on the date of such
assignment the interest accrued to the date of payment on the Loans made by
such Lender hereunder and subject to such assignment and all other amounts
accrued for such Lender’s account or owed to it hereunder with respect to such
Loans.


 


SECTION 2.21.
Defaulting Lenders. 
Notwithstanding any provision of this Agreement to the contrary, if any
Lender becomes a Defaulting Lender, then the following provisions shall apply
for so long as such Lender is a Defaulting Lender:  (a) such Defaulting Lender’s right to
the fees set forth in Section 2.05(a) shall terminate; and (b) the
Commitments, Term Loans and Other Term Loans of such Defaulting Lender shall
not be included in determining whether all Lenders, the Required Lenders or the
Supermajority Lenders have taken or may take any action hereunder (including
any consent to any amendment or waiver pursuant to Section 9.08), provided
that any waiver, amendment or modification requiring the consent of all Lenders
or each affected Lender which affects such Defaulting Lender differently than
other affected Lenders shall require the consent of such Defaulting Lender.


 


SECTION 2.22.
Incremental Commitments.  (a)  The Borrower may on one or more occasions, by
written notice to the Administrative Agent, request (x) Incremental Term
Loan Commitments from one or more Incremental Term Lenders, which may include
any existing Lender, and (y) in the event that the Revolving Facility is


 


58
















 


terminated (other than in connection with the
incurrence of Permitted Refinancing Indebtedness in respect thereof) and the
Liens granted to secure obligations thereunder released, lending commitments
hereunder in respect of one or more revolving facilities (“Incremental
Revolving Commitments”) from one or more lenders, which may include any
existing Lender; provided that (i) each Incremental Term Lender (if
not already a Lender hereunder) and each lender (an “Incremental Revolving
Lender” and, together with any Incremental Term Lender, an “Incremental
Lender”) in respect of any such revolving facility (an “Incremental
Revolving Facility” and, together with the Other Term Loans of any Class,
an “Incremental Facility”), shall be subject to the approval of the
Administrative Agent (which approval shall not be unreasonably withheld or
delayed) and (ii) the aggregate amount of Incremental Term Loan
Commitments and Incremental Revolving Commitments shall not exceed the initial
Incremental Commitment Amount minus any reductions thereof pursuant to Section 2.13(c).  Such notice shall set forth (i) the
amount of the Incremental Term Loan Commitments or Incremental Revolving
Commitments, as applicable, being requested (which shall not exceed the
then-current Incremental Commitment Amount and shall be in minimum increments
of $5,000,000 and a minimum amount of $20,000,000 or equal to the remaining
Incremental Commitment Amount) and (ii) the date on which such Incremental
Term Loan Commitments or Incremental Revolving Commitments, as applicable, are
requested to become effective (which shall not be less than 10 Business
Days nor more than 60 days after the date of such notice (which time
periods for notice may be modified or waived at the discretion of the Administrative
Agent)).  Each Class of Incremental
Term Commitments established under this Section 2.22 is referred to
herein as “Other Term Loans” and will rank pari passu in right of payment with the Term Loans and will
benefit equally and ratably from the Liens under the Security Documents.  Each Class of Other Term Loans will have
terms and conditions substantially identical to those applicable to the Term
Loan Commitments and the Term Loans (other than with respect to pricing,
amortization, maturity and any different drawing conditions that are agreed to
in the applicable Incremental Term Loan Assumption Agreement) and will be
otherwise on the terms and subject to the conditions reasonably satisfactory to
the Administrative Agent.  The extensions
of credit pursuant to each Class of Incremental Revolving Commitments
established under this Section 2.22 (which may include both loans
and letters of credit) will rank pari passu
in right of payment and (except with respect to certain cash collateral
required to be posted under certain circumstances to secure letter of credit
reimbursement obligations) will benefit equally and ratably with the Term Loans
from the Liens under the Security Documents with respect to the Collateral and
may have such other customary terms and provisions (including with respect to
pricing, amortization of commitments, maturity and lending conditions) as may
be agreed to in the applicable Incremental Revolving Facility Assumption
Agreement and as are reasonably satisfactory to the Administrative Agent, provided
that, so long as Term Loans or Other Term Loans of any Class are
outstanding hereunder, the Incremental Revolving Commitments of any Class and
loans or other credit extensions thereunder shall not be subject to mandatory
reductions or prepayments from (or calculated on the basis of) the Net Cash
Proceeds from Asset Sales or issuances of Indebtedness or from portions of
Excess Cash Flow that, in any case, are required hereunder, prior to giving
effect to any Incremental Revolving Facility, to be applied to the prepayment
of Term Loans or Other Term Loans.


 


59

















 


(b)  The Borrower and
each Incremental Lender shall execute and deliver to the Administrative Agent
an Incremental Term Loan Assumption Agreement or Incremental Revolving Facility
Assumption Agreement, as the case may be, and such other documentation as the
Administrative Agent shall reasonably specify to evidence the Incremental
Commitment of such Incremental Lender. 
Each Incremental Term Loan Assumption Agreement shall specify the terms
of the Other Term Loans to be made thereunder; provided that, without
the prior written consent of Term Lenders holding a majority of the principal
amount of the outstanding Term Loans, (i) the final maturity date of any
Other Term Loans shall be no earlier than the Term Loan Maturity Date, (ii) the
Weighted Average Life to Maturity of any Other Term Loans shall be no shorter
than the average life to maturity of the Term Loans and (iii) if the
interest rate spread applicable to any Other Term Loans (which, for this
purpose, shall be deemed to include all upfront or similar fees or original
issues discount, but excluding any underwriting, arrangement, structuring or
other fees payable in connection therewith that are not generally shared with
the Lenders (collectively, “Upfront Payments”), in each case, paid to
the Incremental Lenders in respect of such Other Term Loans) exceeds the
interest rate spread applicable to the Term Loans (taking into account the
Upfront Payments paid to the Lenders in respect of the establishment of the
Term Loans) by more than 0.25%, then the interest rate spread applicable to the
Term Loans shall be increased so that it equals (after taking into account
Upfront Payments made in respect of the establishment of the Term Loans) the
interest rate spread applicable to the Other Term Loans.  For purposes of the foregoing, any original
issue discount associated with the Term Loans or any Other Term Loans will be
converted to an interest rate spread equivalent by dividing the percentage
amount of such original issue discount by the lesser of (A) the Weighted
Average Life to Maturity of such Loans and (B) four.


 


(c)  (i) Each
Incremental Facility Agreement shall require the consent of only the Borrower,
the Administrative Agent and the Incremental Lenders providing the applicable
Incremental Facility, but, in each case, not the consents of any other
Lenders.  Each of the parties hereto
hereby agrees that, upon the effectiveness of any Incremental Facility
Agreement, this Agreement and the other Loan Documents (other than the
Intercreditor Agreement) shall be deemed amended to the extent (but only to the
extent) necessary to reflect the existence and terms of the Incremental
Facility evidenced thereby, including the amount and final maturity thereof,
any provisions relating to amortization and the interest to accrue and be
payable thereon and any fees to be payable in respect thereof, and to effect
such other changes (including changes to the provisions of Sections 2.16
and 9.08(b), the definition of “Required Lenders” and any other
provisions of any Loan Document specifying the number or percentage of Lenders
(or Lenders of any Class) required to waive, amend or modify any rights under
the Loan Documents or make any determination or grant any consent under the
Loan Documents) as the Borrower and the Administrative Agent shall deem
necessary or advisable in connection with the establishment of such Incremental
Facility.  Any such deemed amendment may be
memorialized in writing by the Administrative Agent with the Borrower’s consent
(not to be unreasonably withheld or delayed) and furnished to the other parties
hereto.


 


60

















 


(d)  Notwithstanding
the foregoing, no Incremental Facility Agreement shall become effective under
this Section 2.22 unless (i) on the date of such effectiveness
and after giving effect to the making of any Other Term Loans contemplated
thereby or the full utilization of the Incremental Revolving Commitments
contemplated thereby, the Consolidated Senior Secured Leverage Ratio would be
less than 3.00 to 1.00, (ii) on the date of such effectiveness, the
conditions set forth in paragraphs (b) and (c) of Section 4.03
shall be satisfied and (iii) the Administrative Agent shall have received
legal opinions, board resolutions and other closing certificates and
documentation as it shall reasonably request relating to such Incremental
Facility, consistent with those delivered on the Funding Date pursuant to Section 4.02.  The Administrative Agent shall promptly
notify each Lender as to the effectiveness of each Incremental Facility
Agreement.


 


SECTION 2.23. Loan
Repurchases.  (a)  Subject to the terms and conditions set forth
or referred to below, the Borrower may from time to time, at its discretion,
conduct modified Dutch auctions in order to purchase Term Loans or Other Term
Loans of one or more Classes (as determined by the Borrower) (each, a “Purchase
Offer”), each such Purchase Offer to be managed exclusively by JPMorgan
Securities Inc. or another investment bank of recognized standing selected by
the Borrower following consultation with the Administrative Agent (in such
capacity, the “Auction Manager”), so long as the following conditions
are satisfied:


 


(i) each
Purchase Offer shall be conducted in accordance with the procedures, terms and
conditions set forth in this Section 2.23 and the Auction
Procedures;


 


(ii) no
Default or Event of Default shall have occurred and be continuing on the date of
the delivery of each Auction Notice and at the time of purchase of any Term
Loans or Other Term Loans in connection with any Purchase Offer;


 


(iii) the
maximum principal amount (calculated on the face amount thereof) of each and
all Classes of Term Loans or Other Term Loans that the Borrower offers to
purchase in any such Purchase Offer shall be no less than $15,000,000 (unless
another amount is agreed to by the Administrative Agent) (across all such
Classes);


 


(iv) after
giving effect to any purchase of Term Loans or Other Term Loans of the
applicable Class or Classes pursuant to this Section 2.23, the
sum of (x) the amount of availability under the Revolving Facility and (y) the
aggregate amount of all unrestricted cash and unrestricted Permitted Investments
of the Borrower and its Subsidiaries shall not be less than $350,000,000;


 


(v) the
aggregate principal amount (calculated on the face amount thereof) of all Term
Loans or Other Term Loans of the applicable Class or Classes so purchased
by the Borrower shall automatically be cancelled and retired by the Borrower on
the settlement date of the relevant purchase (and may not be resold);


 


61

















 


(vi) prior
to commencing any Purchase Offer, the Borrower shall have discussed such
proposed Purchase Offer with each of S&P and Moody’s and, based upon such
discussions, shall reasonably believe that the proposed purchase of Term Loans
or Other Term Loans through such Purchase Offer shall not be deemed to be a “distressed
exchange”;


 


(vii) at
the time of each purchase of Term Loans or Other Term Loans pursuant to a
Purchase Offer, neither S&P nor Moody’s shall have announced or
communicated to the Borrower that the proposed purchase of Term Loans or Other
Term Loans through such Purchase Offer shall be deemed to be a “distressed
exchange”;


 


(viii) no
more than one Purchase Offer with respect to any Class may be ongoing at
any one time and no more than four Purchase Offers (regardless of Class) may be
made in any one year;


 


(ix) the
Borrower represents and warrants that no Loan Party shall have any Borrower
Restricted Information that (A) has not been previously disclosed in
writing to the Administrative Agent and the Lenders (other than because such
Lender does not wish to receive such Borrower Restricted Information) prior to
such time and (B) could reasonably be expected to have a material effect
upon, or otherwise be material to, a Lender’s decision to participate in the
Purchase Offer; and


 


(x) at
the time of each purchase of Term Loans or Other Term Loans through a Purchase
Offer, the Borrower shall have delivered to the Auction Manager an officer’s
certificate of a Responsible Officer certifying as to compliance with preceding
clauses (vi) through (vii) and (ix).


 


(b)  The Borrower must
terminate any Purchase Offer if it fails to satisfy one or more of the
conditions set forth above which are required to be met at the time which
otherwise would have been the time of purchase of Term Loans or Other Term
Loans pursuant to such Purchase Offer. 
If the Borrower commences any Purchase Offer (and all relevant
requirements set forth above which are required to be satisfied at the time of
the commencement of such Purchase Offer have in fact been satisfied), and if at
such time of commencement the Borrower reasonably believes that all required
conditions set forth above which are required to be satisfied at the time of
the consummation of such Purchase Offer shall be satisfied, then the Borrower
shall have no liability to any Term Loan Lender or Incremental Term Lender for
any termination of such Purchase Offer as a result of its failure to satisfy
one or more of the conditions set forth above which are required to be met at
the time which otherwise would have been the time of consummation of such
Purchase Offer, and any such failure shall not result in any Default or Event
of Default hereunder. With respect to all purchases of Term Loans or Other Term
Loans of any Class or Classes made by the Borrower pursuant to this Section 2.23,
(x) the Borrower shall pay on the settlement date of each such purchase
all accrued and unpaid interest (except to the extent otherwise set forth in
the relevant offering documents), if any, on the purchased Term Loans or Other
Term Loans of the 


 


62

















 


applicable Class or Classes up to the
settlement date of such purchase and (y) such purchases (and the payments
made by the Borrower and the cancellation of the purchased Loans, in each case
in connection therewith) shall not constitute voluntary or mandatory payments
or prepayments for purposes of Section 2.12 or Section 2.13
hereof.


 


(c)  The Administrative
Agent and the Lenders hereby consent to the Purchase Offers and the other
transactions effected pursuant to and in accordance with the terms of this Section 2.23
(provided that no Lender shall have an obligation to participate in any
such Purchase Offer).  For the avoidance
of doubt, it is understood and agreed that the provisions of Section 2.16,
Section 2.17 and Section 9.04 will not apply to the
purchases of Term Loans or Other Term Loans pursuant to Purchase Offers made
pursuant to and in accordance with the provisions of this Section 2.23.
The Auction Manager acting in its capacity as such hereunder shall be entitled
to the benefits of the provisions of Article VIII and Section 9.05
to the same extent as if each reference therein to the “Administrative Agent”
were a reference to the Auction Manager, and the Administrative Agent shall
cooperate with the Auction Manager as reasonably requested by the Auction
Manager in order to enable it to perform its responsibilities and duties in
connection with each Purchase Offer.


 


SECTION 2.24. Permitted
Debt Exchanges.  (a)  Pursuant to one or more offers (each, a “Permitted
Debt Exchange Offer”) made by the Borrower to Lenders under any applicable Class of
Term Loans or Other Term Loans that is to be so exchanged (on the same terms
for each such Term Loan or Extended Term Loan of a given Class), the Borrower
may from time to time following the Funding Date consummate one or more
exchanges of Term Loans or Other Term Loans for Permitted Notes (each, a “Permitted
Debt Exchange”), so long as the following conditions are satisfied:


 


(i) no
Default or Event of Default shall have occurred and be continuing at the time
the offering document in respect of a Permitted Debt Exchange Offer is
delivered to the Lenders of the relevant Class or at the time of
consummation of such Permitted Debt Exchange;


 


(ii) except
as prohibited by applicable securities laws, including in the case of a
Permitted Debt Exchange effected as an offering under Rule 144A under the
Securities Act of 1933, as amended, restrictions on the Persons that can be
offerees in connection therewith, each Permitted Debt Exchange Offer shall be
made on the same terms to all Lenders of the relevant Class of Term Loans
or Other Term Loans subject to such Permitted Debt Exchange Offer;


 


(iii) the
aggregate principal amount (calculated on the face amount thereof) of all Term
Loans or Other Term Loans exchanged by the Borrower pursuant to any Permitted
Debt Exchange shall automatically be cancelled and retired by the Borrower on
date of the settlement thereof (and, if requested by the Administrative Agent,
any exchanging Lender shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, or such other form as may be reasonably requested by
the Administrative Agent, in respect thereof pursuant 


 


63

















 


to which such Lender assigns
its interest in the Term Loans or Other Term Loans being exchanged pursuant to
the Permitted Debt Exchange to the Borrower);


 


(iv) if
the aggregate principal amount of all Term Loans or Other Term Loans
(calculated on the face amount thereof) tendered by Lenders in a Permitted Debt
Exchange Offer (it being understood that no Lender will have any obligation to
tender any principal amount of Term Loans or Other Term Loans held by it) shall
exceed the maximum aggregate principal amount of Term Loans or Other Term Loans
offered to be acquired by the Borrower pursuant to such Permitted Debt Exchange
Offer, then the Borrower shall exchange Permitted Notes for Term Loans and
Other Term Loans tendered by such Lenders ratably up to such maximum based on
the principal amounts tendered by each Lender;


 


(v) each
such Permitted Debt Exchange Offer shall be made on a pro rata basis to the
Lenders of the relevant Class of Term Loans or Other Term Loans that are
eligible to receive such offer under applicable securities laws based on the
principal amounts of outstanding Term Loans or Other Term Loans under such Class held
by each such Lender;


 


(vi) all
documentation in respect of such Permitted Debt Exchange shall be consistent
with the foregoing, and all written communications by the Borrower generally
directed to the Lenders of the relevant Class in connection therewith
shall be in form and substance consistent with the foregoing and otherwise
reasonably satisfactory to the Administrative Agent; and


 


(vii) any
applicable Minimum Tender Condition (as defined below) shall be satisfied.


 


Notwithstanding anything to the contrary
contained in this Section 2.24(a) (and so long as communicated
to all of the Lenders of the relevant Class), a Permitted Debt Exchange may be
structured, at the option of the Borrower, as (x) a cash purchase (at par
or less than par) of Term Loans or Other Term Loans pursuant to such Permitted
Debt Exchange Offer ratably as provided in clauses (iv) and (v) of
the immediately preceding sentence and (y) a simultaneous issuance and
sale of Permitted Notes to each participating Lender in an amount necessary to
provide cash proceeds equal to those required to effect such cash purchase of
such Lender’s Term Loans or Other Term Loans, with the proceeds of such
issuance and sale of Permitted Notes to be provided by each such participating
Lender and applied to payment of the cash purchase provided for in the
preceding clause (x).


 


(b)  A Permitted Debt
Exchange (and the cancellation of the exchanged Term Loans or Other Term Loans
in connection therewith) shall not constitute voluntary or mandatory payments
or prepayments of Loans for purposes of Sections 2.12 or Section 2.13
hereof, and no Permitted Debt Exchange Offer shall be required to be in any
minimum amount or any minimum increment thereof, provided that the Borrower
shall specify as a condition (a “Minimum Tender Condition”) to
consummating any such Permitted Debt Exchange that a minimum amount (to be
determined in the Borrower’s 


 


64

















 


discretion and specified in the relevant Permitted
Debt Exchange Offer, but in no event less than $25,000,000, unless another
amount is agreed to by the Administrative Agent) of Term Loans or Other Term
Loans be tendered.  For the avoidance of
doubt, it is understood and agreed that the provisions of Section 2.16,
Section 2.17 and Section 9.04 will not apply to the
exchanges of Term Loans or Other Term Loans pursuant to Permitted Debt
Exchanges made pursuant to and in accordance with the provisions of this Section 2.24.


 


(c)  In connection with
each Permitted Debt Exchange, the Borrower shall provide the Administrative
Agent at least ten Business Days’ (or such shorter period as may be agreed by
the Administrative Agent) prior written notice thereof, and shall agree to such
procedures, if any, as may be established by, or acceptable to, the
Administrative Agent, in each case acting reasonably to accomplish the purposes
of this Section 2.24 and without conflict with Section 2.24(d).


 


(d)  Notwithstanding
any other provision of this Agreement, the Borrower shall be solely responsible
for compliance with, and hereby agrees to comply with, all applicable
securities and other laws, including without limitation the Securities Act of
1933, as amended, and the rules and regulations of the Securities and
Exchange Commission thereunder, in connection with each Permitted Debt
Exchange, it being understood and agreed that neither the Administrative Agent
nor any Lender assumes any responsibility in connection with the Borrower’s
compliance with such laws in connection with any Permitted Debt Exchange.  Without limiting the foregoing, the Borrower
acknowledges that such requirements will include (i) the preparation and
distribution, in accordance with such laws, rules and regulations, an
offer to exchange and related offering memorandum or prospectus and other
disclosure documents with respect to the Permitted Notes and the relevant
Permitted Debt Exchange Offer, (ii) the appointment of a dealer manager
with respect to each such Permitted Debt Exchange, (iii) the taking of
appropriate action to ascertain the eligibility of each Lender of the relevant Class to
receive the Permitted Debt Exchange Offer and not make any such offer to a Lender
that is not so eligible and (iv) the compliance with all applicable laws, rules and
regulations relating to the time periods during which a Permitted Debt Exchange
Offer must remain open and to the acceptance of tenders thereunder.


 


SECTION 2.25. Extensions
of Loans.  (a)  The Borrower may from time to time, pursuant
to the provisions of this Section 2.25, agree with one or more
Lenders holding Term Loans or Other Term Loans of any Class to extend the
maturity date, and otherwise modify the terms of any such Class or any
portion thereof (including, without limitation, by increasing the interest rate
or fees payable and/or modifying the amortization schedule in respect of any
Loans of such Class or any portion thereof (each, such modification an “Extension”)
pursuant to one or more written offers (each, an “Extension Offer”) made
from time to time by the Borrower to all Lenders under any Class that is
proposed to be extended under this Section 2.25, in each case on a
pro rata basis (based on the relative principal amounts of the outstanding
Loans of each Lender in such Class) and on the same terms to each such
Lender.  In connection with each
Extension, the Borrower will provide notification to the Administrative Agent
(for distribution to the Lenders of the applicable Class), no later than 30
days prior to the 


 


65

















 


maturity of the applicable Class or Classes to
be extended of the requested new maturity date for the extended Loans of each
such Class (each an “Extended Maturity Date”) and the due date for
Lender responses.  In connection with any
Extension, each Lender of the applicable Class wishing to participate in
such Extension shall, prior to such due date, provide the Administrative Agent
with a written notice thereof in a form reasonably satisfactory to the
Administrative Agent.  Any Lender that
does not respond to an Extension Offer by the applicable due date shall be
deemed to have rejected such Extension. 
After giving effect to any Extension, the Term Loans or Other Term Loans
so extended shall cease to be a part of the Class they were a part of
immediately prior to the Extension and shall be a new Class hereunder.


 


(b)  Each Extension
shall be subject to the following:


 


(i) no
Default or Event of Default shall have occurred and be continuing at the time
any Extension Offer is delivered to the Lenders or at the time of such
Extension;


 


(ii) except
as to interest rates, fees, scheduled amortization, final maturity date and
Incremental Facilities under Section 2.22 (which shall, subject to
immediately clause (iii) below, be determined by the Borrower and set
forth in the relevant Extension Offer), the Term Loans, or Other Term Loans, of
any Lender extended pursuant to any Extension shall have the same terms as the Class of
Term Loans or Other Term Loans subject to the related Extension Offer; provided
that at no time shall there be more than six different Classes of Term Loans
and Other Term Loans;


 


(iii) the
final maturity date of any Term Loans or Other Term Loans of a Class to be
extended pursuant to an Extension shall be later than the final maturity date
of such Class, and the Weighted Average Life to Maturity of any Term Loans or
Other Term Loans of a Class to be extended pursuant to an Extension shall
be longer than the Weighted Average Life to Maturity of such Class;


 


(iv) if
the aggregate principal amount of Term Loans or Other Term Loans of a Class in
respect of which Lenders shall have accepted an Extension Offer exceeds the
maximum aggregate principal amount of Term Loans or Other Term Loans, as the
case may be, of such Class offered to be extended by the Borrower pursuant
to the relevant Extension Offer, then such Loans of such Class shall be
extended ratably up to such maximum amount based on the relative principal
amounts thereof (not to exceed any Lender’s actual holdings of record) with
respect to which such Lenders accepted such Extension Offer;


 


(v) all
documentation in respect of such Extension shall be consistent with the
foregoing, and all written communications by the Borrower generally directed to
the applicable Lenders under the applicable Class in connection therewith
shall be in form and substance consistent with the foregoing and otherwise
reasonably satisfactory to the Administrative Agent;


 


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(vi) any
applicable Minimum Extension Condition shall be satisfied; and


 


(vii) no
Extension shall become effective unless, on the proposed effective date of such
Extension, the conditions set forth in Section 4.03 shall be
satisfied (with all references in such Section to a Credit Event being
deemed to be references to the Extension on the applicable date of such
Extension), and the Administrative Agent shall have received a certificate to
that effect dated the applicable date of such Extension and executed by an
Financial Officer of the Borrower.


 


(c)  If at the time any
Extension of Term Loans or Other Term Loans (as so extended, “Current
Extension Loans”) becomes effective, there will be Loans of any Class attributable
to a prior Extension that will remain outstanding (“Prior Extension Loans”),
then, if the interest rate spread applicable to any such Current Extension
Loans (which, for this purpose, shall be deemed to include all Upfront Payments
to the Lenders thereof, calculated as provided in Section 2.22(b))
exceeds the interest rate spread applicable to such Prior Extension Loans
(taking into account the Upfront Payments paid to the Lenders in respect of the
establishment of the Prior Extension Loans) by more than 0.25%, then the
interest rate spread applicable to such Prior Extension Loans shall be
increased so that it equals (after taking into account Upfront Payments made in
respect of the establishment of such Prior Extension Loans) the interest rate
spread applicable to the Current Extension Loans (calculated as provided
above).


 


(d)  The consummation
and effectiveness of any Extension will be subject to a condition set forth in
the relevant Extension Offer (a “Minimum Extension Condition”) that a
minimum amount (to be determined in the Borrower’s discretion and specified in
the relevant Extension Offer, but in no event less than $25,000,000, unless
another amount is agreed to by the Administrative Agent).  For the avoidance of doubt, it is understood
and agreed that the provisions of Section 2.16, Section 2.17
and Section 9.04 will not apply to Extensions of Term Loans or
Other Term Loans pursuant to Extension Offers made pursuant to and in
accordance with the provisions of this Section 2.25, including to
any payment of interest or fees in respect of any Term Loans or Other Term
Loans that have been extended pursuant to an Extension at a rate or rates
different from those paid or payable in respect of Loans of any other Class, in
each case as is set forth in the relevant Extension Offer.


 


(e)  The Lenders hereby
irrevocably authorize the Administrative Agent to enter into amendments
(collectively, “Extension Amendments”) to this Credit Agreement and the
other Loan Documents as may be necessary in order establish new Classes of Term
Loans or Other Term Loans created pursuant to an Extension, in each case on
terms consistent with this Section 2.25. Notwithstanding the
foregoing, the Administrative Agent shall have the right (but not the obligation)
to seek the advice or concurrence of the Required Lenders with respect to any
matter contemplated by this Section 2.25 and, if the Administrative
Agent seeks such advice or concurrence, the Administrative Agent shall be
permitted to enter into such amendments with the Borrower in accordance with
any instructions received from such Required Lenders and shall also be entitled
to refrain from entering into such amendments with the Borrower unless and
until it shall have 


 


67

















 


received such advice or concurrence; provided,
however, that whether or not there has been a request by the
Administrative Agent for any such advice or concurrence, all such Extension
Amendments entered into with the Borrower by the Administrative Agent hereunder
shall be binding on the Lenders. Without limiting the foregoing, in connection
with any Extensions, the appropriate Loan Parties shall (at their expense)
amend (and the Administrative Agent is hereby directed to amend) any Mortgage
that has a maturity date prior to the latest Extended Maturity Date so that
such maturity date is extended to the then latest Extended Maturity Date (or
such later date as may be advised by local counsel to the Administrative
Agent).


 


(f)  In connection with
any Extension, the Borrower shall provide the Administrative Agent at least ten
Business Days’ (or such shorter period as may be agreed by the Administrative
Agent) prior written notice thereof, and shall agree to such procedures, if
any, as may be reasonably established by, or acceptable to, the Administrative
Agent to accomplish the purposes of this Section 2.25


 


SECTION 2.26. Term
Loan Refinancing Protection.  In the
event that, prior to the second anniversary of the Funding Date, any Lender
receives a Refinancing Prepayment (as defined below), then, at the time
thereof, the Borrower shall pay to such Lender a prepayment premium equal to
1.0% of the amount of such Refinancing Prepayment.  As used herein, with respect to any Lender, a
“Refinancing Prepayment” is the amount of principal of the Term Loans of
such Lender that is either (a) prepaid by the Borrower pursuant to Section 2.12
or Section 2.13(c) (as a result of the issuance of Permitted
Notes) substantially concurrently with the incurrence by the Borrower or any of
its Subsidiaries of new loans or other Indebtedness (other than Capital Lease
Obligations) (whether pursuant to Incremental Term Commitments, Permitted Notes
or otherwise, but excluding any such incurrence of Indebtedness consummated at
the time a Change in Control occurs) or (b) received by such Lender as a
result of the mandatory assignment of such Term Loans under the circumstances
described in Section 2.20(c) following the failure of such
Lender to consent to an amendment of this Agreement that would have the effect
of reducing the Applicable Rate with respect to such Term Loans; provided,
however that no such prepayment premium shall be payable (i) with
respect to Term Loans up to an aggregate principal amount of $500,000,000 that
are prepaid on or prior to the date three months after the Funding Date with
proceeds from the issuance of Permitted Unsecured Notes or (ii) if all
outstanding Term Loans are prepaid in their entirety on or prior to the third
mensiversary of the Funding Date with proceeds from a senior secured note
offering.


 


ARTICLE III


 


Representations
and Warranties


 


Each of SSCC and SSCE
represents and warrants, as of the Closing Date, the Funding Date, the date of
each Credit Event that occurs after the Funding Date and each other date
specifically contemplated hereby, to each of the Lenders as follows:


 


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SECTION 3.01. Organization;
Powers.  Each of the Loan Parties (a) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has all requisite power and
authority to own its property and assets and to carry on its business as now
conducted, (c) is qualified to do business in every jurisdiction where
such qualification is required by the nature of its business, the character and
location of its property, business or customers, or the ownership or leasing of
its properties, except for such jurisdictions in which the failure so to
qualify, in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, and (d) has the requisite power and authority to
execute, deliver and perform its obligations under each of the Loan Documents
and each other agreement or instrument contemplated thereby to which it is or
will be a party and, in the case of the Borrower, to borrow hereunder.


 


SECTION 3.02. Authorization;
Absence of Conflicts.  The execution,
delivery and performance by each of the Loan Parties of each of the Loan
Documents to which it is a party, the Borrowings hereunder, the use of the
proceeds of the Loans, the creation of the security interests contemplated by
the Security Documents and the other transactions contemplated by the Loan
Documents (collectively, the “Transactions”) (a) have been duly
authorized by all requisite corporate or other organizational and, if required,
stockholder action and (b) will not (i) violate (A) any
provision of law, statute, rule or regulation, other than any law,
statute, rule or regulation the violation of which could not reasonably be
expected to result in a Material Adverse Effect, or of the certificate of
incorporation or other constitutive documents or by-laws of any Loan Party or
any of its subsidiaries, (B) any order of any Governmental Authority or (C) any
provision of any indenture or other material agreement or other material
instrument to which any Loan Party or any of its subsidiaries is a party or by
which any of them or any of their property is or may be bound, (ii) constitute
(alone or with notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or give rise to a rights thereunder to
require any payment, repurchase or redemption to be made by any Loan Party, or
give rise to a right of, or result in, any termination, cancellation,
acceleration or right of renegotiation of any obligation thereunder, or (iii) result
in the creation or imposition of any Lien (other than any Lien created
hereunder or under the Security Documents) upon or with respect to any property
or assets now owned or hereafter acquired by any Loan Party or any of its
subsidiaries.


 


SECTION 3.03. Enforceability.  This Agreement has been duly executed and
delivered by SSCC and SSCE and constitutes, and each other Loan Document when
executed and delivered by each Loan Party that is party thereto will
constitute, a legal, valid and binding obligation of SSCC, SSCE and the other
Loan Parties, as applicable, enforceable against each of them in accordance
with its terms (except as the enforceability thereof may be limited by
bankruptcy, insolvency reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and subject to general principles of
equity (whether enforcement is sought by proceeding in equity or at law)).


 


SECTION 3.04. Governmental
Approvals.  No action, consent or
approval of, registration or filing with or any other action by any Governmental
Authority is or 


 


69

















 


will be required in connection with the
Transactions, except for (a) the filing of Uniform Commercial Code
financing statements and similar security or collateral filings and
registrations under applicable laws in other jurisdictions, (b) recordation
of the Mortgages, (c) filings with the United States Patent and Trademark
Office and the United States Copyright Office, (d) the entry by the
Bankruptcy Court of the Confirmation Order referred to in Section 4.02
and (d) such actions, consents, approvals, registrations and filings as
have been made or obtained and are in full force and effect.


 


SECTION 3.05. Financial
Statements.  Each of SSCC and SSCE
has delivered to the Lenders (a) its audited financial statements for
the fiscal year ended December 31, 2008, together with its annual report
on Form 10-K, if any, filed with the Securities and Exchange Commission
with respect to such fiscal year and (b) its unaudited financial statements
for the fiscal quarter ended September 30, 2009, together with its
quarterly report on Form 10-Q filed with the Securities and Exchange
Commission with respect to such fiscal quarter. 
All financial statements set forth or referred to in the materials
specified in the preceding sentence were prepared in conformity with GAAP,
except, in the case of unaudited financial statements, for the absence of
footnote disclosure and for year-end audit adjustments.  All such financial statements fairly present
in all material respects the consolidated financial position of such Persons
and their respective subsidiaries as at the date thereof and the consolidated
results of operations and cash flows of such Persons and their respective
subsidiaries for each of the periods covered thereby.  Except as disclosed in such financial
statements, neither SSCC nor any of the Subsidiaries had at the date of such
financial statements any material contingent obligation, material contingent
liability or material liability for taxes, long-term lease or unusual forward
or long-term commitment or obligations to retired employees for medical or
other employee benefits that is not reflected in the foregoing financial
statements or the notes thereto.


 


SECTION 3.06. No
Material Adverse Effect.  Since December 31,
2008, other than the commencement of the Bankruptcy Proceedings and those
events and conditions which customarily occur as a result of events following
the commencement of a proceeding under Chapter 11 of the Bankruptcy Code and
the CCAA, there has been no event or condition that has had, or could
reasonably be expected to have, a Material Adverse Effect.


 


SECTION 3.07. Title
to Properties; Possession Under Leases. 
(a)  Except as set forth on Schedule 3.07,
each of SSCC and the Subsidiaries has good and marketable title to, or valid
leasehold interests in, all its material properties and assets, except for
minor defects in title that do not interfere in any material respect with its
ability to conduct its business as currently conducted.  All such title to, or leasehold interest in,
material properties and assets are free and clear of Liens, other than Liens
expressly permitted by Section 6.02 and Liens with respect to which
the Administrative Agent will receive on or prior to the Funding Date duly
executed releases and termination statements in connection therewith.


 


(b)  Each of SSCC and
the Subsidiaries has complied with all obligations under all leases to which it
is a party and enjoys peaceful and undisturbed possession 


 


70

















 


under all such leases, except where the failure
thereof could not reasonably be expected to have a Material Adverse Effect.


 


SECTION 3.08. Subsidiaries.  Schedule 3.08 sets forth as of
the Closing Date a list of all the Subsidiaries of SSCC, their jurisdiction of
organization and the percentage ownership interest in each Subsidiary held by
SSCC or any other Subsidiary.


 


SECTION 3.09. Litigation;
Compliance with Laws.  (a)  Except as set forth in Schedule 3.09,
there are no actions, suits or proceedings at law or in equity or by or before
any Governmental Authority now pending or, to the knowledge of SSCC or the
Borrower, threatened against or affecting SSCC, the Borrower or any of the
Subsidiaries or any business or property of any such Person that (i) purports
to affect the legality, validity or enforceability of any Loan Document or the
Transactions or (ii) could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.


 


(b)  None of SSCC , the
Borrower and any of the Subsidiaries nor any of their respective properties or
assets is (i) in violation of, nor will the continued operation of their
properties and assets as currently conducted violate, any law, rule, regulation,
statute (including any zoning, building, Environmental Laws, ordinance, code or
approval or any building permits) or any restrictions of record or agreements
affecting the Mortgaged Properties, where such violations could reasonably be
expected to have a Material Adverse Effect or (ii) in default with respect
to any judgment, writ, injunction, decree or order of any Governmental
Authority, where such defaults, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.


 


SECTION 3.10. Federal
Reserve Regulations.  (a)  None of SSCC, the Borrower and the
Subsidiaries is engaged or will engage, principally, or as one of its important
activities, in the business of purchasing or carrying Margin Stock or extending
credit for the purpose of purchasing or carrying Margin Stock.


 


(b)  No part of the
proceeds of any Loan will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, (i) to purchase or carry Margin
Stock or to extend credit to others for the purpose of purchasing or carrying
Margin Stock or to refund indebtedness originally incurred for such purpose or (ii) for
any purpose that entails a violation of, or is inconsistent with, the
provisions of the Regulations of the Board, including Regulation T, U or X.


 


SECTION 3.11. Investment
Company Act.  None of SSCC, the
Borrower or the Subsidiaries is an “investment company” as defined in, or is
subject to regulation under, the Investment Company Act of 1940.


 


SECTION 3.12. Tax
Returns.  Each of SSCC, the Borrower
and the Subsidiaries has filed or caused to be filed all Federal, foreign,
state, provincial, regional and local income and other material tax returns
required to have been filed by it or with respect to it and has paid or caused
to be paid all taxes shown to be due and payable on such returns or on any
assessments received by it or with respect to it, except taxes that 


 


71

















 


are being contested in good faith by appropriate
proceedings and for which it has set aside on its books adequate reserves in
accordance with GAAP or Canadian GAAP, as applicable.


 


SECTION 3.13. No
Material Misstatements.  The
information provided by or on behalf of SSCC and SSCE and contained in the
Confidential Information Memorandum (including all attachments and exhibits
thereto), as supplemented, and other information furnished in writing by or on
behalf of SSCC or the Borrower to any Arranger or any Lender in connection with
the transactions contemplated by this Agreement and the other Loan Documents,
when taken as a whole, as of the date such information was so furnished, does
not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, when taken as a whole, not materially
misleading, provided that to the extent any such information therein was
based upon or constitutes a forecast or projection or pro forma financial
information, each of SSCC and the Borrower represents only that it acted in
good faith and utilized reasonable assumptions, due and careful consideration
and the information actually known to Responsible Officers of such Person at
the time in the preparation of such information.


 


SECTION 3.14. Employee
Benefit Plans.  (a)  Each of SSCC, the Borrower and its ERISA
Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder.  No ERISA
Event has occurred or could reasonably be expected to occur that, when taken
together with all other ERISA Events that have occurred or could reasonably be
expected to occur, could reasonably be expected to have a Material Adverse
Effect.  For purposes of determining
whether an ERISA Event, by itself or together with other ERISA Events, could
reasonably be expected to have a Material Adverse Effect, the amounts to be
considered relating to a Plan’s or Multiemployer Plan’s funded status or with
respect to withdrawal liability are changes in or resulting from the following:


 


(i) a
Plan’s or Multiemployer Plan’s funded status since the most recent valuation or
other statement of financial condition prior to the Closing Date; or


 


(ii) withdrawal
liability with respect to a Multiemployer Plan that exceeds the most recent
estimate of withdrawal liability for such Multiemployer Plan received before
the Closing Date.


 


(b)  The Canadian
Pension Plans are duly registered under the ITA and any other applicable laws
which require registration, have been administered in all material respects in
accordance with the ITA and such other applicable laws, and no event has
occurred which could reasonably be expected to cause the loss of such
registered status.  Except as set forth
on Schedule 3.14(b), all material obligations of SSC Canada and the
other Canadian Subsidiaries required to be performed by SSC Canada or the other
Canadian Subsidiaries in connection with the Canadian Pension Plans and the
funding agreements therefor have been performed on a timely basis.  As of the Closing Date, there are no
outstanding disputes concerning the assets of the Canadian Pension 


 


72

















 


Plans or the Canadian Benefit Plans.  Except as set forth on Schedule 3.14(b),
no promises of benefit improvements under the Canadian Pension Plans or the
Canadian Benefit Plans have been made, except as provided for in a collective
bargaining agreement or where such improvement could not reasonably be expected
to have a Material Adverse Effect. 
Except as set forth on Schedule 3.14(b), all contributions or
premiums required to be made or paid by SSC Canada and each of its Subsidiaries
to the Canadian Pension Plans or the Canadian Benefit Plans have been made on a
timely basis in accordance with the terms of such plans and all applicable
laws.  There have been no improper
withdrawals or applications of the assets of the Canadian Pension Plans or the
Canadian Benefit Plans.  Except as set
forth on Schedule 3.14(b), as of the date of the most recent actuarial
valuations with Governmental Authorities, none of the Canadian Pension Plans or
the Canadian Benefit Plans has any unfunded actuarial liabilities or solvency
deficiencies (within the meaning of the Quebec Supplemental Pension Plans Act
and other applicable laws) in an aggregate amount that could reasonably be
expected to result in a Material Adverse Effect.


 


SECTION 3.15. Environmental
and Safety Matters.


 


(a)  Except as set
forth on Schedule 3.15:


 


(i) Each
of SSCC, the Borrower and the Subsidiaries has obtained all permits, licenses
and other authorizations that are required and material with respect to the
operation of the business of SSCC and the Subsidiaries, taken as a whole, under
any Environmental Law, and each such permit, license and authorization is in
full force and effect, except where the failure thereof could not reasonably be
expected to have a Material Adverse Effect.


 


(ii) Each
of SSCC, the Borrower and the Subsidiaries is in compliance with all material
terms and conditions of the permits, licenses and authorizations specified in paragraph
(a) above, and also is in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations, schedules
and timetables contained in or pursuant to any Environmental Law applicable to
it and its business, assets, operations and properties, except for any
noncompliance that could not reasonably be expected to have a Material Adverse
Effect.


 


(iii) There
is no civil, criminal or administrative action, suit, demand, claim, hearing,
notice of violation, investigation, proceeding, notice or demand letter or
request for information pending or, to the knowledge of SSCC or the Borrower,
after inquiry, threatened against SSCC, the Borrower or any of the Subsidiaries
under any Environmental Law that could reasonably be expected to result have a
Material Adverse Effect.


 


(iv) None
of SSCC, the Borrower and the Subsidiaries has received notice (A) that it
has been identified as a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (“CERCLA”)
or any comparable state law or Canadian federal 


 


73

















 


or provincial law that any
hazardous substances or any pollutant or contaminant, as defined in CERCLA and
its implementing regulations, or any toxic substance, hazardous waste,
hazardous constituents, hazardous materials, asbestos or asbestos containing
material, polychlorinated biphenyls, petroleum, including crude oil and any
fractions thereof, or other wastes, chemicals, substances or materials
regulated by any Environmental Laws (collectively, “Hazardous Materials”)
that it or any of their respective predecessors in interest has used,
generated, stored, tested, handled, transported or disposed of, has been found
at any site at which any Governmental Authority or private party is conducting
a remedial investigation or other action pursuant to any Environmental Law or (B) otherwise
alleging that it has any liability, obligation or cost pursuant to any
Environmental Law, except in the cases of (A) and (B) for any such
notices that could not reasonably be expected to have a Material Adverse
Effect.


 


(v) There
have been no Releases of Hazardous Materials at, in, on, under or from any
location, and neither SSCC nor any of the Subsidiaries has otherwise become
subject to any liability or obligation, whether contingent or otherwise,
relating to any Environmental Law, that could reasonably be expected to have a
Material Adverse Effect.


 


(vi) To
the best knowledge of SSCC and the Borrower, there is no asbestos in, on, or at
any Real Properties or any facility or equipment of SSCC, the Borrower or any
of the Subsidiaries, except to the extent that the presence of, or exposure to,
such material could not reasonably be expected to have a Material Adverse
Effect.


 


(vii) As
of the Closing Date, to the knowledge of SSCC and the Borrower, none of the
Real Properties are (i) listed or proposed for listing on the National
Priorities List under CERCLA or (ii) listed in the Comprehensive
Environmental Response, Compensation, Liability Information System List
promulgated pursuant to CERCLA.


 


(viii) To
the knowledge of SSCC and the Borrower, there are no events, conditions,
circumstances, activities, practices, incidents, actions or plans that could
reasonably be anticipated to interfere with or prevent compliance with any
Environmental Law, or which may give rise to liability under any Environmental
Law, or otherwise form the basis of any claim, action, demand, suit,
proceeding, hearing or notice of violation, study or investigation, based on or
related to the manufacture, processing, distribution, use, generation,
treatment, storage, disposal, transport, shipping or handling, the emission,
discharge, release or threatened release into the environment of, or exposure
to, any Hazardous Material that could reasonably be expected to have a Material
Adverse Effect.


 


(b)  Since the date of
this Agreement, there has been no change in the status of the matters disclosed
on Schedule 3.15 that, individually or in the aggregate, could
reasonably be expected to have, a Material Adverse Effect.


 


74

















 


SECTION 3.16. Solvency.  Immediately after giving effect to the
Transactions to occur on the Funding Date, (a) the present fair saleable
value of the assets of the Borrower and the Subsidiaries, on a consolidated
basis, will exceed the amount that will be required to be paid on or in respect
of the existing debts and other liabilities (including contingent liabilities)
of the Borrower and the Subsidiaries, on a consolidated basis, as they become
absolute and mature, (b) the Borrower and the Subsidiaries, on a
consolidated basis, will not have unreasonably small capital to carry out their
businesses as conducted or as proposed to be conducted, and (c) neither
SSCC nor the Borrower intends to, nor does it intend to permit any of its
subsidiaries to, and does not believe that it or any such subsidiary will,
incur debts beyond its ability to pay such debts as they become absolute and
mature (taking into account the timing and amounts of cash to be received by
each of them or any such subsidiary and the amounts to be payable on or in
respect of its obligations).


 


SECTION 3.17. Security
Documents.  (a)  The Guarantee and Collateral Agreement, upon
execution and delivery thereof by the parties thereto, will create in favor of
the Administrative Agent, for the ratable benefit of the beneficiaries named
therein, a legal, valid and enforceable security interest in the Collateral (as
defined therein) (other than vessels) and proceeds thereof and (i) when
the Pledged Collateral (as defined therein) is delivered to the Administrative
Agent, together with instruments of transfer duly endorsed in blank, the
Guarantee and Collateral Agreement shall constitute a fully perfected first
priority Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Pledged Collateral, in each case prior and superior in
right to any other Person, and (ii) when financing statements in
appropriate form have been duly filed in the offices specified on Schedule
3.17(a), the Lien created under the Guarantee and Collateral Agreement
(other than with respect to the aforesaid Pledged Collateral) will 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, to
the extent perfection can be obtained by filing Uniform Commercial Code
financing statements, in each case prior and superior in right to any other
Person, other than with respect to Permitted Liens and other than as provided
in the Intercreditor Agreement with respect to the Revolving Facility
Collateral.


 


(b)  When the IP
Security Agreements are duly filed with the United States Patent and Trademark
Office and the United States Copyright Office, as applicable, and when
financing statements in appropriate form have been duly filed in the offices
specified on Schedule 3.17(a), the security interest created
thereunder shall constitute a fully perfected Lien on, and security interest
in, all right, title and interest of the Loan Parties in the registered
intellectual property described therein and owned by the applicable Loan
Parties and in which a security interest may be perfected by filing a security
agreement in the United States, in each case prior and superior in right to any
other Person, other than with respect to Permitted Liens (it being understood
that subsequent recordings in the United States Patent and Trademark Office and
the United States Copyright Office may be necessary to perfect a Lien on
registered trademarks, trademark applications, designs, patents, patent
applications and copyrights acquired by a Loan Party after the Funding Date).


 


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(c)  The Mortgages,
upon execution and delivery thereof by the parties thereto, will create in
favor of the Administrative Agent, for the ratable benefit of the beneficiaries
named therein, a legal, valid and enforceable Lien on all of the Loan Parties’
right, title and interest in and to the Mortgaged Properties thereunder and the
proceeds thereof, and when the Mortgages are duly filed or registered in the
appropriate recording offices where such Mortgaged Properties are located or as
otherwise reasonably requested by the Administrative Agent, the Mortgages will
constitute a fully perfected or published Lien on, and security interest or
hypothec in, all right, title and interest of the Loan Parties in such
Mortgaged Properties and the proceeds thereof, in each case prior and superior
in right to any other Person, other than with respect to Permitted Liens or
other encumbrances permitted by the relevant Mortgage.


 


(d)  Each Security
Document, other than any Security Document referred to in the preceding
paragraphs of this Section, upon execution and delivery thereof by the parties
thereto and the making of the filings and taking of the other actions provided
for therein, will be effective under applicable law to create in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, a valid
and enforceable security interest in all rights, title and interest of the Loan
Parties in the Collateral subject thereto, prior and superior in right to any
other Person, other than with respect to Permitted Liens and other than as
provided in the Intercreditor Agreement with respect to the Revolving Facility
Collateral.


 


SECTION 3.18. Labor
Matters.  As of the Closing Date,
there are no strikes or other labor disputes against SSCC, the Borrower or any
of the Subsidiaries pending or, to the knowledge of SSCC or the Borrower,
threatened, except as set forth on Schedule 3.18.  The hours worked by and payment made to
employees of any Loan Party have not been in violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters, where such violations could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.  The consummation of the Transactions will not
give rise to a right of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which SSCC, the Borrower or
any of the Subsidiaries is a party or by which SSCC, the Borrower or any of the
Subsidiaries is bound on the Closing Date.


 


SECTION 3.19. Location
of Real Property.  Schedule 3.19
sets forth as of the Closing Date all material real property owned by SSCC, the
Borrower or any of the Subsidiaries in the United States.  All the real property set forth on Schedule 3.19
is, as of the Closing Date, owned in fee by SSCC, the Borrower or a Subsidiary.


 


SECTION 3.20. Patents,
Trademarks, etc.  Each of SSCC, the
Borrower and the Subsidiaries owns, or is licensed or otherwise authorized to
use, all patents, designs, trademarks, trade names, copyrights, technology,
know-how and processes, service marks and rights with respect to the foregoing
that are used in or necessary for the conduct of its business as currently
conducted, except where the lack thereof could not reasonably be expected to
have a Material Adverse Effect.  The use
of such patents, designs, trademarks, trade names, copyrights, technology,
know-how, processes and rights with respect to the foregoing by SSCC, the
Borrower and the Subsidiaries does not 


 


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infringe on the rights of any Person, subject to
such claims and infringements as do not, in the aggregate, give rise to any
liability on the part of SSCC, the Borrower and the Subsidiaries that is
material to SSCC, the Borrower and the Subsidiaries, taken as a whole.


 


ARTICLE IV


 


Conditions


 


The obligation of each Lender
to make Loans hereunder (each, a “Credit Event”) and the effectiveness
of this Agreement are subject to the satisfaction (or waiver in accordance with
Section 9.08) of the following conditions specified to be
applicable thereto:


 


SECTION 4.01. Conditions
Precedent to the Effectiveness of this Agreement on the Closing Date.  This Agreement and the rights and obligations
of the parties hereunder will become effective on the date on which each of the
following conditions has been satisfied (or waived in accordance with Section 9.08):


 


(a)  The Administrative
Agent shall have received from each party hereto either (i) a counterpart
of this Agreement signed on behalf of such party or (ii) evidence
satisfactory to the Administrative Agent (which may include a facsimile
transmission) that such party has signed a counterpart of this Agreement.


 


(b)  The Administrative
Agent shall have received a favorable written opinion of each of Winston &
Strawn LLP, counsel for the Loan Parties, substantially to the effect set forth
in Exhibit J-1, and Craig A. Hunt, Senior Vice President, Secretary
and General Counsel for SSCC and SSCE, substantially to the effect set forth in
Exhibit J-2, in each case (A) dated the Closing Date, (B) addressed
to the Administrative Agent and the Lenders, and (C) covering such
customary legal matters relating to this Agreement as the Administrative Agent
shall reasonably request and with such changes as are reasonably acceptable to
the Administrative Agent.  SSCC and SSCE
hereby instruct their counsel to deliver such opinions.


 


(c)  All legal matters
incident to this Agreement, the Borrowings and other extensions of credit
hereunder and the other Loan Documents shall be reasonably satisfactory to the
Administrative Agent and the Lenders.


 


(d)  The Administrative
Agent shall have received (i) a copy of the certificate or articles of
incorporation, including all amendments thereto, of each of SSCC and SSCE,
certified as of a recent date by the Secretary of State or other relevant
Governmental Authority of the jurisdiction of its organization, and a
certificate as to the good standing (or the equivalent thereof) of each of SSCC
and SSCE as of a recent date from such Secretary of State or other Governmental
Authority; (ii) a certificate of the Secretary or Assistant Secretary of
each of SSCC and SSCE dated the Closing Date and certifying (A) that
attached thereto is a true and complete copy of the by-laws of SSCC or 


 


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SSCE, as applicable, as in effect on the Closing
Date, (B) that attached thereto is a true and complete copy of resolutions
duly adopted by the Board of Directors of SSCC or SSCE, as applicable,
authorizing the Transactions, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) that the
certificate or articles of incorporation of SSCC or SSCE, as applicable, have
not been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above,
and (D) as to the incumbency and specimen signature of each officer
executing this Agreement on behalf of SSCC or SSCE, as applicable; (iii) a
certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to clause
(ii) above; and such other documents as the Administrative Agent may
reasonably request.


 


(e)  The Administrative
Agent shall have received a certificate, dated the Closing Date and signed by a
Financial Officer of and on behalf of the Borrower, confirming compliance as of
the Closing Date with the condition precedent set forth in Section 4.03(b) with
the same effect as if each reference to the date of a Credit Event therein were
a reference to the Closing Date.


 


(f)  The Administrative
Agent shall have received (i) management’s financial projections for SSCC
and the Subsidiaries through 2014, including but not limited to quarterly
projections for 2010, reflecting the Transactions and the Plan of
Reorganization as disclosed in the Disclosure Statement as of the Closing Date
and including the material assumptions on which such projections were based, in
each case in form and substance reasonably satisfactory to the Administrative
Agent, and (ii) an unaudited pro forma consolidated balance sheet of SSCC
and the Subsidiaries as of the last day of the most recent fiscal quarter for
which financial statements are publicly available, adjusted to give pro forma
effect to implementation of the Plan of Reorganization and the Transactions as
if such transactions had occurred on such date, which, in each case, shall be
prepared in good faith and based upon reasonable assumptions.


 


(g)  The Bankruptcy
Court shall have entered an order in form and substance reasonably acceptable
to the Administrative Agent approving the Borrower’s execution, delivery and
performance of the Credit Agreement, including the payment of fees, expenses,
indemnities and other amounts contemplated hereby, and approving as an administrative
expense claim against the Borrower the indemnification, cost reimbursement
obligations and fee obligations accruing or payable in respect of periods or
events occurring on or  prior to the
Funding Date.


 


SECTION 4.02. Conditions
Precedent to the Making of the Term Loans on the Funding Date.  The obligations of the Lenders hereunder to
make the Term Loans on the Funding Date are subject to the satisfaction (or
waiver in accordance with Section 9.08) of the following
conditions:


 


(a)  The Administrative
Agent shall have received a favorable written opinion of each of (i) Winston &
Strawn LLP, counsel for the Loan Parties, and Craig A.


 


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Hunt, Senior Vice President, Secretary and General
Counsel for SSCC and SSCE, in each case in form and substance reasonably
satisfactory to the Administrative Agent and (ii) such local counsel
reasonably acceptable to the Administrative Agent, in each case (A) dated
the Funding Date, (B) addressed to the Administrative Agent and the
Lenders, and (C) covering such customary legal matters relating to the
Loan Documents as the Administrative Agent shall reasonably request.  SSCC and the Borrower hereby instruct their
counsel to deliver such opinions.


 


(b)  The Administrative
Agent shall have received (i) a copy of the certificate or articles of
incorporation, including all amendments thereto, of each Loan Party, certified
as of a recent date by the Secretary of State or other relevant Governmental
Authority of the jurisdiction of its organization, and a certificate as to the
good standing (or the equivalent thereof) of each Loan Party as of a recent
date from such Secretary of State or other Governmental Authority; (ii) a
certificate of the Secretary or Assistant Secretary of each Loan Party dated
the Funding Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws of such Loan Party as in effect on the Funding
Date, (B) that attached thereto is a true and complete copy of resolutions
duly adopted by the Board of Directors of such Loan Party authorizing the
Transactions, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, (C) that the certificate or
articles of incorporation of such Loan Party have not been amended since the
date of the last amendment thereto shown on the certificate of good standing
furnished pursuant to clause (i) above, and (D) as to the
incumbency and specimen signature of each officer executing any Loan Document
on behalf of such Loan Party; (iii) a certificate of another officer as to
the incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to clause (ii) above; and such
other documents as the Administrative Agent may reasonably request.


 


(c)  The Administrative
Agent shall have received a certificate, dated the Funding Date and signed by a
Financial Officer of and on behalf of the Borrower, confirming compliance with
the conditions precedent set forth in Section 4.03(b) and (c).


 


(d)  The Administrative
Agent shall have received all Fees and other amounts due and payable on or
prior to the Funding Date, including, to the extent invoiced, payment or reimbursement
of all Fees and expenses (including fees, charges and disbursements of counsel)
required to be reimbursed or paid by any Loan Party hereunder or under any
other Loan Document or in respect of the execution and delivery of this
Agreement.


 


(e)  The Administrative
Agent shall have received a notice of such Credit Event as required by Section 2.03.


 


(f)  The Collateral and
Guarantee Requirement shall have been satisfied, including with respect to each
Domestic Subsidiary that is a Material Subsidiary based on the most recently
available consolidated financial statements of SSCC or that is or will be a
guarantor under the Revolving Facility, and the requirements of the covenant
set forth in Section 6.15 shall have been satisfied.  The Administrative Agent shall have received
a 


 


79

















 


completed Perfection Certificate, dated the Funding
Date and duly executed by a Responsible Officer of the Borrower, together with
all attachments contemplated thereby, including results of a search of the
Uniform Commercial Code (or equivalent) filings made with respect to the Loan
Parties in the jurisdictions contemplated by the Perfection Certificate and
with copies of the financing statements (or similar documents) disclosed by
such search and evidence reasonably satisfactory to the Administrative Agent
that the Liens indicated by such financing statements (or similar document) are
permitted under Section 6.02 or have been, or substantially
contemporaneously with the Funding Date will be, released.


 


(g)  None of the
Mortgaged Properties shall be subject to any Lien other than those expressly
permitted under Section 6.02 and other encumbrances permitted by
the relevant Mortgage.


 


(h)  The Administrative
Agent shall have received copies of, or an insurance broker’s or agent’s
certificate as to coverage under, the insurance policies required by Section 5.02
and the applicable provisions of the Security Documents, each of which policies
shall be endorsed or otherwise amended to include a loss payable endorsement
with respect to the Collateral and to name the Administrative Agent as
additional insured, in form and substance reasonably satisfactory to the
Administrative Agent.


 


(i)  The Administrative
Agent shall have received (i) an unaudited pro forma consolidated balance
sheet of the Borrower and the Subsidiaries as of the last day of the most
recent fiscal quarter for which financial statements are publicly available,
adjusted to give pro forma effect to the implementation of the Plan of
Reorganization, the consummation of the Transactions and the entry into and any
borrowings on the Funding Date under the Revolving Facility as if such
transaction had occurred on such date, which, in each case, shall be prepared
in good faith and based upon reasonable assumptions and (ii) a
certificate, dated the Funding Date and signed by a Financial Officer of the
Borrower, certifying that as of the Funding Date, the Borrower and its
Subsidiaries have not incurred any material liabilities not reflected in such
pro forma consolidated balance sheet, other than liabilities incurred in the
ordinary course of business.


 


(j)  The Bankruptcy
Court shall have entered an order confirming the Plan of Reorganization, which
order (the “Confirmation Order”) (i) shall be in form and substance
reasonably satisfactory to the Administrative Agent, (ii) shall authorize
this Agreement and the Transactions and the Revolving Facility and (iii) shall
be in full force and effect and shall not have been reversed or modified and
shall not be stayed.  The effective date
of the Plan of Reorganization shall have occurred (and all conditions precedent
thereto as set forth therein shall have been satisfied (or shall be
concurrently satisfied) or waived pursuant to the terms of the Plan of
Reorganization) and the Funding Date Merger shall have been consummated.  Since the Closing Date, there shall have been
no amendment or modification of the terms and conditions of the Plan of
Reorganization as reflected in the Disclosure Statement on the Closing Date
(including without limitation the incurrence or continuation of Indebtedness or
Liens not specifically 


 


80

















 


contemplated by the Disclosure Statement on the
Closing Date to exist after the effective date of the Plan of Reorganization)
that could reasonably be expected to adversely affect the interests of the
Lenders in any significant respect that has not been approved by the
Supermajority Lenders.


 


(k)  The Administrative
Agent shall be reasonably satisfied that, and shall have received a certificate
from a Financial Officer of the Borrower dated the Funding Date and confirming
that,  following consummation of the
transactions expected to occur substantially simultaneously with the funding of
the Term Loans on the Funding Date, no event, circumstance or condition will
exist that would constitute a Default or Event of Default hereunder had the
affirmative and negative covenants contained in Articles V and VI
and the Events of Default been applicable at all times after the Closing Date,
other than any such event, condition or circumstance directly attributable to
the Plan of Reorganization as reflected in the Disclosure Statement on the
Closing Date or to changes therein not requiring approval of the Supermajority
Lenders pursuant to Section 4.02(j) above (it being understood
that any such non-compliance with covenants or Event of Default prior to the
Funding Date that has been cured or otherwise is not continuing as of the
Funding Date (and any noncompliance with the notification requirements of Section 5.05
relating to any such noncompliance attributable to the Plan of Reorganization
or otherwise cured or not continuing) will not be deemed to result in a failure
of this condition).


 


(l)  After giving pro
forma effect to the implementation of the Plan of Reorganization and the
transactions contemplated thereunder, the funding of the Term Loans and any
Borrowings on the Funding Date under the Revolving Facility, the Borrower’s
Consolidated Leverage Ratio for the most recent twelve-month period for which
financial statements are available, but in any event, the most recent
twelve-month period ending at least 30 days prior to the Funding Date shall not
exceed 3.50 to 1.00 if the Funding Date occurs on or prior to April 30,
2010 or 3.85 to 1.00 if the Funding Date occurs thereafter.  The Administrative Agent shall have received
a certificate, dated the Funding Date and signed by a Financial Officer of the
Borrower, certifying as to compliance with the foregoing condition.


 


(m)  The Revolving
Facility Documents shall contain terms that conform in all material respects to
the term sheet disclosed to the Administrative Agent and provided to the
Lenders prior to the Closing Date and are otherwise reasonably satisfactory to
the Borrower and the Administrative Agent, and the Administrative Agent shall
have received reasonably satisfactory evidence that the conditions to the
effectiveness of the Revolving Facility Documents shall have been (or will be),
substantially simultaneously with the Funding Date, satisfied or waived in
accordance with their terms and that the amount of availability under the
Revolving Facility plus the Borrower’s unrestricted cash and unrestricted cash
equivalents on the Funding Date (after giving effect to all payments and
transfers to be effected on or as of the Funding Date, including all such
payments and transfers contemplated by the Plan of Reorganization) is greater
than $500,000,000 if the Funding Date occurs on or prior to April 30, 2010
or greater than $450,000,000 if the Funding Date occurs thereafter.


 


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SECTION 4.03. All
Credit Events.  On the date of each
Credit Event:


 


(a)  The Administrative
Agent shall have received a notice of such Credit Event as required by Section 2.03
or 2.22, as the case may be.


 


(b)  The
representations and warranties set forth in Article III hereof and
in the other Loan Documents shall be true and correct in all material respects
on and as of the date of such Credit Event with the same effect as though made
on and as of such date, except to the extent that such representations and
warranties expressly relate to an earlier date, in which case they shall be
true and correct in all material respects as of such earlier date.


 


(c)  At the time of and
immediately after such Credit Event, no Default or Event of Default shall have
occurred and be continuing.


 


(d)  Each Credit Event
shall be deemed to constitute a representation and warranty by the Borrower on
the date of such Credit Event as to the matters specified in paragraphs (b) and
(c) of this Section 4.03.


 


ARTICLE V


 


Affirmative
Covenants


 


Each of SSCC and the
Borrower covenants and agrees with the Administrative Agent and each Lender
that, from and after the Funding Date (subject to the condition precedent to
the Funding Date set forth in Section 4.02(k)) and for so long as
this Agreement shall remain in effect, or the principal of or interest on any
Loan, Fees or any other expenses or amounts payable under any Loan Document
shall remain unpaid, unless the Required Lenders shall otherwise consent in
writing, it will, and will cause each of the Subsidiaries to:


 


SECTION 5.01. Existence;
Businesses and Properties.  (a)  Do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence,
except as otherwise permitted under Section 6.05.


 


(b)  Except where the
failure to do so could not be reasonably expected to have a Material Adverse
Effect, (i) do or cause to be done all things necessary to preserve, renew
and keep in full force and effect the rights, licenses, permits, trademarks,
trade names, privileges and franchises necessary or desirable in the normal
conduct of its business, and (ii) at all times keep and maintain all
property useful and necessary in its business in good working order and
condition.


 


SECTION 5.02. Insurance.  Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance, to such extent and against such risks, including fire and
other risks insured against by extended coverage, as is usually maintained in
the same general area by 


 


82

















 


companies engaged in the same or similar businesses,
including public liability insurance against claims for personal injury or
death or property damage occurring upon, in, about or in connection with the
use of any properties owned, occupied or controlled by it or the use of any products
sold by it; and maintain such other insurance as may be required by law.  Each such policy of liability or casualty
insurance maintained by or on behalf of Loan Parties shall (a) in the case
of each liability insurance policy, name the Administrative Agent, on behalf of
the Secured Parties, as an additional insured thereunder, (b) in the case
of each casualty insurance policy relating to Collateral, contain a loss
payable clause or endorsement that names the Administrative Agent, on behalf of
the Secured Parties, as the loss payee thereunder and (c) provide for at
least 30 days’ prior written notice to the Administrative Agent of any
cancellation of such policy.  With
respect to each Mortgaged Property that is located in an area determined by the
Federal Emergency Management Agency to have special flood hazards, the
applicable Loan Party has obtained, and will maintain, with financially sound
and reputable insurance companies, such flood insurance as is required under
applicable law, including Regulation H.


 


SECTION 5.03. Payment
of Taxes.  Pay and discharge promptly
prior to becoming delinquent all material taxes, assessments and governmental
charges or levies imposed upon it or upon or in respect of its property or
assets; provided, however, that such payment and discharge shall
not be required with respect to any such tax, assessment, charge or levy so
long as the validity or amount thereof shall be contested in good faith by
appropriate proceedings and it shall have set aside on its books, in accordance
with GAAP, adequate reserves with respect thereto and such contest operates to
suspend enforcement of a Lien and, in the case of a Mortgaged Property or other
material property or asset, there is no material risk of forfeiture of such
property.


 


SECTION 5.04. Financial
Statements, Reports, etc.  Furnish to
the Administrative Agent and each Lender:


 


(a)  within
90 days after the end of each fiscal year, its consolidated balance sheet
and related statements of operations, stockholders’ equity and cash flows,
showing the financial condition of the Borrower and its consolidated
Subsidiaries as of the close of such fiscal year and the results of its
operations and the operations of such Subsidiaries during such fiscal year, all
audited by Ernst & Young LLP or other independent auditors of
recognized national standing and accompanied by an opinion of such accountants
(which shall not contain any material qualification or exception (other than “going
concern” qualifications or exceptions relating to the Bankruptcy Proceedings in
such opinion with respect to the fiscal year ended December 31, 2009) to
the effect that such consolidated financial statements fairly present in all
material respects the financial condition and results of operations of the
Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP;


 


(b)  within
45 days after the end of each of the first three fiscal quarters of each
fiscal year, its unaudited consolidated balance sheet and related statements of
operations, stockholders’ equity and cash flows, showing the financial
condition of the Borrower and its consolidated Subsidiaries as of the close of
such fiscal quarter and the 


 


83

















 


results of its operations and the operations of such
Subsidiaries during such fiscal quarter and the then-elapsed portion of the
fiscal year (it being understood that such information shall be in reasonable
detail and certified by a Financial Officer of the Borrower as fairly
presenting in all material respects the financial condition and results of
operations of the Borrower and the Subsidiaries on a consolidated basis in
accordance with GAAP, subject to normal year-end audit adjustments and the
absence of notes);


 


(c)  concurrently with
any delivery of financial statements under paragraph (a) or (b) above,
a certificate of a Financial Officer of the Borrower (i) certifying that,
after reasonable inquiry, to the knowledge of such Financial Officer no Default
or Event of Default has occurred or, if a Default or an Event of Default has
occurred, specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto and (ii) demonstrating
compliance with the covenants contained in Sections 6.01, 6.02,
6.03, 6.04 and 6.06 and (iii) in the case of any such
certificate delivered in connection with any delivery of financial statements
under paragraph (a) above for a fiscal year ended on or after December 31,
2010, setting forth a computation in reasonable detail reasonably satisfactory
to the Administrative Agent of the Excess Cash Flow for such fiscal year (or,
in the case of the fiscal year ended December 31, 2010, for the partial
fiscal year commencing on July 1, 2010 and ending December 31, 2010);


 


(d)  concurrently with
any delivery of financial statements under paragraph (a) above,
a certificate of the accounting firm opining on such statements (which
certificate may be limited to accounting matters and disclaim responsibility
for legal interpretations) stating that during the course of their examination
of such financial statements, they obtained no knowledge of any Default or
Event of Default, except as specified in such certificate;


 


(e)  promptly after the
same become publicly available, copies of all periodic and other reports, proxy
statements and other materials (other than (i) the exhibits to
registration statements and (ii) any registration statements on Form S-8
or its equivalent) filed by SSCC or any of the Subsidiaries with the Securities
and Exchange Commission, or any Governmental Authority succeeding to any of or
all the functions of such Commission, or with any national securities exchange,
or distributed to any such Person’s shareholders (other than to SSCC or any of
the Subsidiaries), as the case may be;


 


(f)  in the case of
SSCC, as soon as available, and in any event no later than 90 days after
the end of each fiscal year, a consolidated annual plan, prepared in accordance
with SSCC’s normal accounting procedures applied on a consistent basis, for the
next fiscal year of SSCC; and


 


(g)  promptly from time
to time, such other information regarding the operations, business affairs and
financial condition of SSCC and the Subsidiaries, or compliance with the terms
of any Loan Document, as any Senior Agent, the Administrative Agent or any
Lender may reasonably request.


 


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(h)  Information
required to be delivered pursuant to this Section shall be deemed to have
been delivered if such information, or one or more annual or quarterly reports
containing such information (including, in the case of certifications required
pursuant to clause (b) above, the certifications accompanying any such
quarterly report pursuant to Section 302 of the Sarbanes-Oxley Act of 2002),
shall have been posted by the Administrative Agent on an IntraLinks or similar
site to which the Lenders have been granted access or shall be available on the
website of the Securities and Exchange Commission at http://www.sec.gov.  Information required to be delivered pursuant
to this Section may also be delivered by electronic communications
pursuant to procedures approved by the Administrative Agent.


 


SECTION 5.05. Litigation
and Other Notices.  Furnish to each
Agent, the Administrative Agent and each Lender written notice of the following
promptly upon a Responsible Officer of the Borrower or any Subsidiary obtaining
knowledge thereof:


 


(a)  any Event of
Default or Default, specifying the nature and extent thereof and the corrective
action (if any) taken or proposed to be taken with respect thereto;


 


(b)  the filing or
commencement of, or any notice to SSCC, the Borrower or any Subsidiary of the
intention of any Person to file or commence, any action, suit or proceeding
(whether at law or in equity or by or before any Governmental Authority or any
arbitrator) against SSCC, the Borrower or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a Material
Adverse Effect;


 


(c)  any development
that has resulted in, or could reasonably be anticipated to result in, a
Material Adverse Effect;


 


(d)  the occurrence of
any ERISA Event that, alone or together with other ERISA Events, could
reasonably be expected to result in increased liability of the Borrower, any of
the Subsidiaries or any ERISA Affiliates in an aggregate amount more than
$30,000,000 greater than the liability as of the Closing Date estimated in good
faith with reference to the following:


 


(i) the
Plans’ and Multiemployer Plans’ funded status as of the most recent valuation
or other statement of financial condition prior to the Closing Date; or


 


(ii) withdrawal
liability with respect to a Multiemployer Plan as of the most recent estimate
of withdrawal liability for such Multiemployer Plan received before the Closing
Date; and


 


(e)  any material
casualty or other insured damage to any material portion of any Mortgaged
Property or the commencement of any action or proceeding for the taking or
expropriation of any Mortgaged Property or any material part thereof or
material interest therein under power of eminent domain or by condemnation or
similar proceeding.


 


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SECTION 5.06. Maintaining
Records; Access to Properties and Inspections.  Maintain all financial records in accordance
with GAAP and applicable law and permit any representatives designated by the
Administrative Agent or any Lender to visit and inspect the properties and
financial records of SSCC, the Borrower and any Subsidiary during normal
business hours and upon reasonable notice and to make extracts from and copies
of such financial records (provided that, unless an Event of Default
shall have occurred and is continuing, no more than two such visits and
inspections may be made in any one year and provided  further
that, to the extent practicable, the Administrative Agent will coordinate any
such visits and inspections with visits and inspections arranged by the
Revolver Collateral Agent for lenders under the Revolving Facility) and permit
any representatives designated by the Administrative Agent or any Lender to
discuss at such reasonable times and at such reasonable intervals as may be
reasonably requested the affairs, finances and condition of SSCC, the Borrower
or any Subsidiary or any properties of SSCC, the Borrower or any Subsidiary
with the officers thereof and (in the presence of SSCC, the Borrower or a
Subsidiary, unless a Default or Event of Default shall have occurred and be
continuing) independent accountants therefor; provided, however,
that all such visits, inspections and inquiries shall be coordinated through
the Administrative Agent.


 


SECTION 5.07. Use of
Proceeds.  Use the proceeds of Loans
only for the purposes set forth in the introductory statement to this
Agreement.  No part of the proceeds of
any Loan will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including
Regulations T, U and X.


 


SECTION 5.08. Compliance
with Law.  Comply with the
requirements of all applicable laws (including Environmental Laws), rules,
regulations and decrees, directives and orders of any Governmental Authority
that are applicable to it or to any of its properties, except where
noncompliance could not reasonably be expected to have a Material Adverse
Effect.


 


SECTION 5.09. Further
Assurances.  (a)  Execute any and all further documents,
financing statements, agreements and instruments, and take all further action
(including filing Uniform Commercial Code and other financing statements, registrations,
mortgages and deeds of trust), that may be required under applicable law or
which the Required Lenders or the Administrative Agent may reasonably request,
in order to effectuate the transactions contemplated by the Loan Documents and
in order to grant, preserve, protect and perfect the validity and priority or
rank of the security interests created or intended to be created by the
Security Documents.  The Borrower will
provide to the Administrative Agent, from time to time upon its reasonable
request, evidence reasonably satisfactory to the Administrative Agent as to the
perfection and priority of the Liens created or intended to be created by the
Security Documents.


 


(b)  Cause (i) each
Domestic Subsidiary that is or becomes a Material Subsidiary, (ii) each
Domestic Subsidiary that is or becomes a direct parent of any such Material
Subsidiary and (iii) each other Domestic Subsidiary that guarantees the
obligations under the Revolving Facility, to, as promptly as practicable, and
in any event 


 


86

















 


within 30 days after the occurrence of such event or
status, notify the Administrative Agent thereof and cause the Collateral and
Guarantee Requirement to be satisfied with respect to such Domestic Subsidiary
and direct parent thereof as a Guarantor and with respect to any Equity
Interests in or Indebtedness of such Domestic Subsidiary owned by any Loan
Party.


 


(c)  Subject to the
final paragraph set forth in the definition of “Collateral and Guarantee Requirement”,
from time to time, the Borrower will, at its cost and expense, promptly secure
the Obligations by pledging or creating, or causing to be pledged or created,
perfected security interests with respect to such of the assets and properties
of the Loan Parties as either the Administrative Agent or the Required Lenders
shall reasonably request (it being understood that, subject to the limitations
set forth in this paragraph (c), it is the intent of the parties that
the Obligations shall be secured by substantially all of the assets of the Loan
Parties (including real and personal properties acquired after the Funding
Date); provided, however that notwithstanding anything to the
contrary set forth in this Agreement or any other Loan Document, (i) no
leasehold mortgages or deeds of trust or fixture filings shall be required with
respect to any leasehold interest of any Loan Party and (ii) no security
interests shall be required to be pledged or created with respect to (A) properties
set forth on Schedule 5.09(c), (B) any After-Acquired Mortgage
Property that is subject to an existing mortgage (or any extension or
refinancing thereof) or any After-Acquired Mortgage Property with a Fair Market
Value of less than $5,000,000 and (C) any assets located outside of the
United States.  Such security interests
and Liens will be created under the Security Documents and other security
agreements, mortgages, deeds of trust and other instruments and documents in
form and substance reasonably satisfactory to the Administrative Agent, and the
Borrower shall deliver or cause to be delivered to the Lenders all such
instruments and documents (including customary legal opinions, title insurance
policies or title opinions and lien searches) as the Administrative Agent shall
reasonably request to evidence compliance with this paragraph (c).


 


(d)  Notwithstanding
anything to the contrary in paragraph (c) above, no security
interests shall be required to be created pursuant to paragraph (c) above
by any Loan Party with respect to any After-Acquired Mortgage Property with a
fair market value (as determined by the applicable Loan Party in its reasonable
judgment, it being understood that the purchase price shall be indicative
thereof) (the “Fair Market Value”) equal to or greater than $5,000,000,
unless and until the aggregate Fair Market Value of all items of After-Acquired
Mortgage Property with a Fair Market Value equal to or greater than $5,000,000
and excluded pursuant to this paragraph (d) (and not granted as
security for the Obligations pursuant to the next sentence) is at least
$50,000,000 in the aggregate for all Loan Parties.  On each occasion that the Fair Market Value
of all items of After-Acquired Mortgage Property described in the immediately
preceding sentence shall be at least $50,000,000, SSCC and the Borrower shall
create, or shall cause to be created, security interests on all such property
(and not merely the portion of the property in excess of $50,000,000) to secure
the Obligations (and thereafter, such property shall be disregarded for
purposes of the calculation under the immediately preceding sentence).


 


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SECTION 5.10. Information
Regarding Collateral; Deposit Accounts. 
(a) Furnish to the Administrative Agent prompt written notice of
any change in (i) the legal name of any Loan Party, as set forth in its
organizational documents, (ii) the jurisdiction of organization or the
form of organization of any Loan Party (including as a result of any merger or
consolidation), (iii) the location of the chief executive office of any
Loan Party or (iv) the organizational identification number, if any, or,
with respect to any Loan Party organized under the laws of a jurisdiction that
requires such information to be set forth on the face of a Uniform Commercial
Code financing statement, the Federal Taxpayer Identification Number of such
Loan Party.  The Borrower agrees not to
effect or permit any change referred to in the preceding sentence unless all
filings have been made under the Uniform Commercial Code or otherwise that are
required in order for the Administrative Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral owned by such Loan Party.


 


(b) Furnish to the
Administrative Agent prompt written notice of (i) the acquisition by any
Loan Party of, or any real property otherwise becoming, a property that is
required to become a Mortgaged Property after the Funding Date and (ii) the
acquisition by any Loan Party of any other material assets after the Funding
Date, other than any assets constituting Collateral under the Security
Documents in which the Administrative Agent shall have a valid, legal and
perfected security interest (with the priority contemplated by the applicable
Security Document) upon the acquisition thereof.


 


(c) Each year, at the
time of delivery of annual financial statements with respect to the preceding
fiscal year pursuant to Section 5.04(a), the Borrower shall deliver
to the Administrative Agent a certificate executed by a Responsible Officer of
the Borrower setting forth the information required pursuant to the Perfection
Certificate or confirming that there has been no change in such information
since the date of the Perfection Certificate delivered on the Funding Date or
the date of the most recent certificate delivered pursuant to this paragraph (c).


 


(d) Cause all cash
owned by the Borrower and the other Loan Parties at any time (other than (i) any
disbursement deposit account the funds in which are used solely for the payment
of salaries and wages, employee benefits, workers’ compensation and similar
expenses or that has an ending daily balance of zero, (ii) trust accounts
for the benefit of directors, officers or employees, and (iii) deposit
accounts (other than lockbox and collection accounts) the daily balance in
which does not at any time exceed $3,500,000 for all such accounts; provided,
however, that, in the case of each of clauses (i), (ii) and
(iii), no Control Agreement over any such excluded account is entered
into for the benefit of the Revolver Collateral Agent) to be held in deposit
accounts, securities accounts or commodities accounts maintained with a
Domestic or Canadian office of any depositary institution, securities
intermediary or commodity intermediary, as the case may be, in the name of one
or more Loan Parties and will, in each case as promptly as practicable, notify
the Administrative Agent of the existence of any deposit account, securities
account or commodities account maintained by a Loan Party in respect of which a
Control Agreement is required to be in effect pursuant to clause (f) of
the definition of the term “Collateral and Guarantee Requirement” but is not
yet in effect.


 


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SECTION 5.11. Material
Contracts.  Maintain in full force
and effect (including exercising any available renewal option), and without
amendment or modification, each Material Contract, unless the failure so to
maintain any such Material Contract (or any amendment or modification thereto)
could not, individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect.


 


SECTION 5.12. Environmental
Matters.  (a)  Promptly give notice to the Administrative
Agent upon becoming aware of (i) any violation of any Environmental Law, (ii) any
material claim, inquiry, proceeding, investigation or other action, including a
request for information or a notice of potential liability under any
Environmental Law, by or from any Governmental Authority or any third party
claimant or (iii) the discovery of the Release of any Hazardous Material
at, on, under or from any of the Real Properties or any facility or equipment
thereat in excess of reportable or allowable standards or levels under any
Environmental Law, or in a manner or amount that could reasonably be expected
to result in material liability under any Environmental Law, in each case that
could reasonably be expected to have a Material Adverse Effect.


 


(b)  Upon discovery of
the presence on any of the Real Properties of any Hazardous Material that is in
material violation of, or that could reasonably be expected to result in
material liability under, any Environmental Law, in each case that could
reasonably be expected to have a Material Adverse Effect, take or cause to be
taken all necessary steps to initiate and expeditiously complete all remedial,
corrective and other responsive action to the extent required pursuant to
Environmental Law, and keep the Administrative Agent reasonably informed of such
actions and the results thereof.


 


SECTION 5.13. Maintenance
of Ratings.  The Borrower will use
commercially reasonable efforts to obtain as promptly as practicable and
thereafter maintain continuously in effect a corporate rating from S&P and
a public corporate family rating from Moody’s, in each case in respect of the
Borrower, and a public rating of the credit facility provided under this
Agreement by each of S&P and Moody’s.


 


SECTION 5.14. Certain
Post-Funding Collateral Obligations. 
As promptly as practicable after the Funding Date, and in any event
within the time period determined by the Administrative Agent pursuant to the
definition of “Collateral and Guarantee Requirement”, deliver all Mortgages and
Control Agreements that would have been required to be delivered on the Funding
Date (or, if later, within 60 days after the Closing Date, in the case of
Control Agreements) but for the last sentence of such definition, except to the
extent otherwise agreed in writing by the Administrative Agent pursuant to its
authority under such definition.


 


SECTION 5.15. Deposit
of Certain Proceeds.  (i) Direct
all of its collections with regard to accounts receivable and inventory of Loan
Parties directly to deposit accounts or securities accounts maintained with a
Domestic or Canadian office or branch of a depositary bank or securities
intermediary; provided that collections with regard to such accounts
receivable and inventory in aggregate amount not exceed $15,000,000 during any
calendar month may be deposited in Canadian depositary accounts of SSC Canada
so long as no later than 30 days following the end of each such 


 


89

















 


month, such collections are settled through the
intercompany accounting procedures of the Borrower and the Subsidiaries and (ii) pending
the application thereof in accordance with Section 2.13, deposit
the Net Cash Proceeds received in respect of any Asset Sale occurring on or
after the Funding Date (to the extent required to be applied to the prepayment
of Term Loans pursuant to Section 2.13) or from the issuance of
Permitted Notes in accordance with Section 6.01(m)(i) in a
Term Sweep Account.


 


ARTICLE VI


 


Negative
Covenants


 


The Borrower covenants and
agrees with the Administrative Agent and each Lender that, from and after the
Funding Date (subject to the condition precedent to the Funding Date set forth
in Section 4.02(k)) and for so long as this Agreement shall remain
in effect, or the principal of or interest on any Loan, Fees or any other
expenses or amounts payable under any Loan Document shall remain unpaid, unless
the Required Lenders shall otherwise consent in writing, it will not, and will
not cause or permit any of the Subsidiaries to:


 


SECTION 6.01. Indebtedness.  Create, incur, assume or permit to exist any
Indebtedness or Attributable Indebtedness; provided that the Borrower
and its Subsidiaries may incur Indebtedness if, after giving effect to the
incurrence thereof and any substantially simultaneous application of proceeds
thereof, the pro forma Interest Coverage Ratio would be greater than 2:00 to
1.00 (such test, the “Incurrence Test”). 
Notwithstanding the foregoing, the Borrower and its Subsidiaries may,
without duplication, create, incur, assume or permit to exist:


 


(a) the
Indebtedness created hereunder and under the other Loan Documents;


 


(b) the
Indebtedness (other than Indebtedness under the Revolving Facility) existing on
the Funding Date after giving effect to the consummation of the Plan of
Reorganization and which is contemplated by the Plan of Reorganization on such
date and any Permitted Refinancing Indebtedness in respect of thereof;


 


(c) Indebtedness
consisting of Permitted Unsecured Notes issued on or prior to the Funding Date,
provided that the requirements of Sections 2.09(c) and (d) are
satisfied in connection therewith, and any Permitted Refinancing Indebtedness
in respect of thereof;


 


(d) intercompany
loans and advances permitted by Section 6.04 and which, if owed to
a Loan Party, are evidenced by a promissory note and pledged pursuant to the
Guarantee and Collateral Agreement,


 


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(e) Indebtedness
of any Foreign Subsidiary and any Guarantees thereof, provided that such
Indebtedness shall not be Guaranteed by or otherwise be recourse to any Loan
Party, except as permitted by Section 6.04(c) or (k); provided
further that the aggregate principal amount of such Indebtedness at any
time outstanding shall not exceed $35,000,000;


 


(f) Indebtedness
under the Revolving Facility, together with any Permitted Refinancing
Indebtedness with respect thereto, including Guarantees thereof, in an
aggregate principal amount not at any time in excess of $800,000,000, provided
that any incremental financings in excess of $650,000,000 (including any
incremental financings in excess of $650,000,000 incurred through Permitted
Refinancing Indebtedness) under the Revolving Facility shall be on
substantially the same terms (other than fees and other pricing terms (other
than interest rates) and, subject to pro forma compliance with the Incurrence
Test, interest rates), as in effect for the Revolving Facility immediately
prior to the effectiveness of such incremental facility or any Permitted
Refinancing Indebtedness in respect of the Revolving Facility, as the case may
be;


 


(g) Indebtedness
in respect of (A) performance, surety, appeal or similar bonds, completion
guarantees or similar instruments, including letters of credit and bankers
acceptances incurred for such purposes (and not for the purpose of borrowing
money), in each case provided in the ordinary course of business, (B) Hedging
Agreements entered into in the ordinary course of business and not for
speculative purposes and (C) agreements providing for indemnification,
adjustment of purchase price or similar obligations, or from guarantees or
letters of credit, surety bonds or performance bonds securing any obligations
pursuant to such agreement, incurred in connection with the disposition of any
business, assets or Subsidiary;


 


(h) (i) Capital
Lease Obligations and Attributable Indebtedness, (ii) Indebtedness
created, incurred or assumed in respect of the purchase, improvement, repair or
construction of property, provided that such Indebtedness is created,
incurred or assumed within 180 days after the earlier of (x) the
placement in service of such property or (y) the final payment on such
property, and (iii) Indebtedness consisting of industrial revenue,
environmental control and other similar bonds, and Guarantees of and letters of
credit supporting such Indebtedness, provided that the aggregate amount of the
Indebtedness and Attributable Indebtedness created, incurred or assumed
pursuant to this paragraph (h) at any time outstanding shall
not exceed $150,000,000;


 


(i) Indebtedness
incurred to pay annual premiums for property and casualty insurance policies
maintained by the Borrower or any Subsidiary not exceeding in an aggregate
amount at any time outstanding $75,000,000;


 


(j) Indebtedness
of any Person acquired by the Borrower or any Subsidiary in a Permitted
Acquisition (“Acquisition Indebtedness”) and assumed by the Borrower or
such Subsidiary pursuant to such acquisition (including any 


 


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Permitted
Refinancing Indebtedness incurred in respect thereof at the time of assumption
thereof or from time to time thereafter), provided that (i) such
Indebtedness was not incurred in contemplation of such acquisition, (ii) the
aggregate principal amount of such Indebtedness and Permitted Refinancing
Indebtedness at any time outstanding shall not exceed $50,000,000, (iii) such
Indebtedness and any Permitted Refinancing Indebtedness in respect thereof
shall not be secured by any assets other than the assets securing the acquired
Indebtedness prior to such acquisition and (iv) immediately after the
incurrence thereof and giving pro forma effect thereto, the Interest Coverage
Ratio shall not be less than the Interest Coverage Ratio immediately prior to
such incurrence;


 


(k) Guarantees
with respect to bonds issued to support workers’ compensation, or performance,
surety, statutory or appeal bonds and other similar obligations (other than
Indebtedness) incurred by the Borrower or any Subsidiary in the ordinary course
of business;


 


(l) Indebtedness
in the form of any earnout or other similar contingent payment obligation
incurred in connection with an acquisition permitted hereunder;


 


(m) Indebtedness
consisting of Permitted Notes, provided that (i) the Net Cash Proceeds
from the issuance and sale thereof are applied to the mandatory prepayment of
the Term Loans pursuant to Section 2.13(c), (ii) such
Permitted Notes are exchanged for Term Loans or Other Term Loans of one or more
Classes pursuant to a Permitted Debt Exchange or (iii) to the extent an
amount of such Net Cash Proceeds not in excess of the available Incremental
Commitment Amount immediately prior to the time of such issuance of sale are
not so applied, the available Incremental Commitment Amount is permanently
reduced pursuant to Section 2.13(c) by an amount equal to the
amount of such unapplied Net Cash Proceeds;


 


(n) Permitted
Timber Financings in an aggregate principal amount at any time outstanding not
in excess of $10,000,000;


 


(o) Indebtedness
of Smurfit-Stone Puerto Rico in an aggregate principal amount at any time
outstanding not to exceed $10,000,000 and the Guarantee thereof by the Borrower
on an unsecured basis; and


 


(p) other
Indebtedness of the Borrower or any Subsidiary in an aggregate principal amount
at any time outstanding not in excess of $75,000,000.


 


SECTION 6.02. Liens.  (a)  Create,
incur, assume or permit to exist any Lien on any property or assets (including
stock or other securities of any Person) now owned or hereafter acquired by it
or on any income or revenues or rights in respect of any thereof, except:


 


(i) Permitted
Liens;


 


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(ii) Liens
created under the Loan Documents;


 


(iii) Liens
created under or pursuant to the Revolving Facility Documents securing
Indebtedness permitted under Section 6.01(f), provided that any
such Liens on the Collateral and rights and remedies with respect thereto are
at all times subject to the Intercreditor Agreement (or a successor
intercreditor agreement having the same terms as the Intercreditor Agreement or
such other terms reasonably acceptable to the Administrative Agent);


 


(iv) Liens
existing as of the Closing Date that are not discharged on the Funding Date and
that are listed on Schedule 6.02(a)(iv), provided that (A) such
Liens shall apply only to the property or assets to which they apply on the
Closing Date and (B) such Liens shall secure only (x) those
obligations that they secured on the Closing Date and (y) refinancings of
such secured obligations permitted hereunder so long as the principal amount of
obligations secured under this clause (iv) does not exceed the sum
of the principal amount of such secured obligations being refinanced plus
the amount of any premium required to be paid thereon as a result of, and any
interest, fees and costs incurred in, such refinancing;


 


(v) Liens
securing Indebtedness permitted by Section 6.01(h), provided
that any such Lien shall apply only to the property that is the subject of such
Indebtedness and, if such Indebtedness was incurred to finance the acquisition,
improvement, repair or construction of such property, the principal amount of
Indebtedness secured by any such Lien shall at no time exceed 100% of the fair
market value (as determined in good faith by the Borrower or a Subsidiary, as
applicable) of the such property at the time it was so acquired, improved,
repaired or constructed;


 


(vi) Liens
securing Indebtedness permitted by Section 6.01(i), provided
that such Liens attach only to insurance policies and proceeds thereof;


 


(vii) Liens
securing Indebtedness constituting mortgage or purchase money financings,
Capital Lease Obligations, industrial revenue bonds or similar financings
assumed or incurred pursuant to Section 6.01(j) in connection
with any acquisition permitted hereunder, provided that (A) such
Liens attach only to property or assets acquired in connection with such
acquisition, (B) such Liens were not created in contemplation of such
acquisition and (C) such Liens shall secure only those obligations that
they secure at the time of such acquisition and Permitted Refinancing
Indebtedness in respect thereof;


 


(viii) Liens
on property or assets owned by Foreign Subsidiaries securing Indebtedness
permitted under Section 6.01(e) and Liens on property or
assets owned by Smurfit-Stone Puerto Rico and securing Indebtedness permitted
under Section 6.01(o);


 


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(ix) Liens
created under any agreement relating to the sale, transfer or other disposition
of assets permitted hereunder, provided that such Liens relate solely to
the assets to be sold, transferred or otherwise disposed;


 


(x) any
Lien consisting of a lease of personal property of such Person to customers of
such Person, if such lease constitutes an Investment permitted under Section 6.04(h);


 


(xi)
Liens on assets of the Borrower or any Subsidiary securing up to $30,000,000 of
Indebtedness permitted by Section 6.01(p) or the Incurrence
Test, provided that no such Lien shall apply to any assets constituting
Collateral;


 


(xii)
Liens on timber properties securing Permitted Timber Financings permitted under
Section 6.01(n);


 


(xiii)
extensions, renewals or replacements of any Lien referred to in clause (v),
(vi) or (vii) above, provided that such
extension, renewal or replacement is limited to the Indebtedness and property
originally secured and encumbered thereby;


 


(xiv)
Liens securing Indebtedness under Permitted Second Lien Notes permitted under Section 6.01(m) and
Permitted Refinancing Indebtedness in respect thereof; and


 


(xv)
Liens not otherwise permitted by the foregoing clauses of this paragraph (a) securing
obligations in an aggregate amount outstanding at any time not in excess of
$20,000,000.


 


(b)  Enter into any
agreement prohibiting the creation or assumption of any Lien upon properties or
assets, whether now owned or hereafter acquired, except any such restriction
that exists under (i) this Agreement, (ii) agreements governing any
Indebtedness of Foreign Subsidiaries permitted hereunder, (iii) any
documents governing secured Indebtedness permitted hereunder, provided
that such restrictions only relate to the assets securing such Indebtedness, (iv) any
documents governing Indebtedness permitted under Section 6.01(j), (m) or
(p), provided that such restrictions are customary market terms
for similar credits and do not restrict the granting of Liens to secure
Indebtedness incurred under this Agreement or the Revolving Facility, (v) restrictions
by reason of customary provisions contained in leases, licenses, governmental
contracts and similar agreements entered into in the ordinary course of
business, provided that such restrictions are limited to the property or
assets subject to such leases, licenses, contracts or agreements), and (vi) any
agreement with respect to a permitted sale or disposition of any assets, provided
such restrictions are limited to the assets to be sold or disposed of.


 


SECTION 6.03. Sale/Leaseback
Transactions.  Enter into any
Sale/Leaseback Transaction, other than any Sale/Leaseback Transaction to the
extent that (i) the Capital Lease Obligations or Attributable
Indebtedness, as the case may be, would be permitted by Section 6.01(h)(i) and
(ii) any Liens associated therewith would be permitted by Section 6.02(a) (provided
that, if the Borrower or any of the Subsidiaries 


 


94

















 


enters into such Sale/Leaseback Transaction with
respect to any property owned by the Borrower or such Subsidiary more than
12 months prior to such transaction, such Sale/Leaseback Transaction shall
be treated as an Asset Sale and shall also be subject to the restrictions of Section 6.13).


 


SECTION 6.04. Investments,
Loans and Advances.  Have outstanding
or make any loan or advance to, or have or make any Investment in, any other
Person or suffer to exist any such loan, advance or Investment, or any
obligation to make such loan, advance or Investment, except as set forth on Schedule 6.04
and except:


 


(a) Permitted
Investments;


 


(b) loans,
advances or other Investments made by (i) the Borrower or any Subsidiary
to or in any Guarantor or any wholly owned Domestic Subsidiary or any wholly
owned Canadian Subsidiary (provided that any such Investments by a Loan
Party to or in any such Subsidiary that is not a Loan Party complies with the
requirements of Section 6.13) and (ii) any Foreign Subsidiary
(other than a Canadian Subsidiary) to or in any other Foreign Subsidiary;


 


(c) loans,
advances or other Investments made to or in any Subsidiary (other than a
Guarantor, a wholly owned Domestic Subsidiary or a wholly owned Canadian
Subsidiary), and Guarantees of obligations of any such Subsidiary, in an
aggregate amount not to exceed $75,000,000 outstanding at any time;


 


(d) Investments
consisting of non-cash consideration received in connection with a sale of
assets permitted under Section 6.13;


 


(e) Investments
by SSCC, the Borrower and the Subsidiaries in existence on the Closing Date in
the capital stock of their respective subsidiaries;


 


(f) Investments
consisting of Equity Interests, securities or notes received in settlement of
accounts receivable incurred in the ordinary course of business from a customer
that the Borrower or any Subsidiary has reasonably determined is unable to make
cash payments in accordance with the terms of such account receivable;


 


(g) accounts
receivable created or acquired, and deposits, prepayments and other credits to
suppliers made, in the ordinary course of business;


 


(h) any
Investments consisting of (i) any contract pursuant to which the Borrower
or any Subsidiary obtains the right to cut, harvest or otherwise acquire timber
on property owned by any other Person, whether or not the Borrower’s or such
Subsidiary’s obligations under such contract are evidenced by a note or other
instrument, or (ii) loans or advances to customers of the Borrower or any
Subsidiary, including leases of personal property of the Borrower or such
Subsidiary to such customers, provided that the contracts, loans and
advances constituting permitted Investments pursuant to this paragraph (h) shall
not exceed $20,000,000 at any time outstanding;


 


95

















 


(i) prepaid
expenses and lease, utility, workers’ compensation, performance and other
similar deposits made in the ordinary course of business;


 


(j) loans
to officers and employees not to exceed $5,000,000 at any time outstanding;


 


(k) other
loans, advances and Investments in an aggregate amount at any time outstanding
not to exceed the sum of (i) $100,000,000 plus (ii) the Net
Cash Proceeds received by the Borrower after the Funding Date from any issuance
of Equity Interests of the Borrower, so long as such issuance was consummated
for the purpose of financing, and such Net Cash Proceeds were applied
reasonably promptly after receipt thereof to finance, any such Investment;


 


(l) Investments
constituting Guarantees permitted under Section 6.01 and
Investments permitted under Section 6.05(f); and


 


(m) Investments
consisting of Hedging Agreements permitted hereunder.


 


SECTION 6.05. Mergers,
Consolidations, Sales of Assets and Acquisitions.  Merge into or amalgamate or consolidate with
any other Person, or permit any other Person to merge into or amalgamate or
consolidate with it, or sell, transfer, assign, lease, sublease or otherwise
dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets (when taken as a whole in combination with the
other assets and properties of SSCC, the Borrower and the Subsidiaries), or
purchase, lease or otherwise acquire (in one transaction or a series of transactions)
all or any substantial part of the assets of any other Person, except:


 


(a) if
at the time thereof and immediately after giving effect thereto no Default or
Event of Default shall have occurred and be continuing, (i) any Domestic
Subsidiary may merge into or consolidate with, liquidate or dissolve into, or
sell, transfer, assign, lease, sublease or otherwise dispose of all or
substantially all of its assets to, the Borrower in a transaction in which the
Borrower is the surviving corporation, (ii) any Domestic Subsidiary (other
than the Borrower) may merge into or consolidate with, liquidate or dissolve
into, or sell, transfer, assign, lease, sublease or otherwise dispose of all or
substantially all of its assets to, any wholly owned Domestic Subsidiary (other
than the Borrower) in a transaction in which the surviving corporation is a
wholly owned Domestic Subsidiary and (iii) any Canadian Subsidiary may
merge into or consolidate or amalgamate with, liquidate or dissolve into, or
sell, transfer, assign, lease, sublease or otherwise dispose of all or
substantially all of its assets to, SSC Canada in a transaction in which SSC
Canada is the surviving corporation, (iv) any Canadian Subsidiary (other
than SSC Canada) may merge into or consolidate or amalgamate with, liquidate or
dissolve into, or sell, transfer, assign, lease, sublease or otherwise dispose
of all or substantially all of its assets to, any wholly owned Canadian
Subsidiary (other than SSC Canada) in a transaction in which the surviving entity
is a wholly owned Canadian Subsidiary; provided that, in each case, (x) if
any Person other than a wholly owned Domestic Subsidiary or wholly 


 


96

















 


owned
Canadian Subsidiary, as the case may be, receives any consideration, such
transaction is also permitted by Section 6.04 and (y) the
surviving entity shall, at the time of such merger or consolidation, be in
compliance with the requirements of Section 5.09(b);


 


(b) if
at the time thereof and immediately after giving effect thereto no Default or
Event of Default shall have occurred and be continuing, any wholly owned
Foreign Subsidiary (other than any Canadian Subsidiary) may merge into,
amalgamate or consolidate with, liquidate or dissolve into, or sell, transfer,
assign, lease, sublease or otherwise dispose of all or substantially all of its
assets to, any other wholly owned Foreign Subsidiary in a transaction in which
the surviving entity is a wholly owned Foreign Subsidiary, provided that
no Person other than a Loan Party or a wholly owned Foreign Subsidiary receives
any consideration and the Collateral and Guarantee Requirement shall be
satisfied with respect to voting Equity Interests of such surviving or
acquiring Foreign Subsidiary that are owned by a Loan Party;


 


(c) the
Funding Date Merger and the other transactions contemplated by the Plan of
Reorganization as described in the Disclosure Statement on the Closing Date may
be consummated on or prior to the Funding Date;


 


(d) purchases
of inventory, equipment and real property in the ordinary course of business;


 


(e) Investments
permitted by Section 6.04; and


 


(f) any
Loan Party may acquire all or substantially all the assets of a Person or line
of business, unit or division of such Person, in each case primarily located in
the United States or Canada, or not less than 100% of the Equity Interests
of such a Person (other than directors’ qualifying shares) (in each case
referred to herein as the “Acquired Entity”); provided that (i) the
Acquired Entity shall be in a similar line of business as that of the Borrower
and the Subsidiaries, (ii) the acquisition shall not be preceded by, or
effected pursuant to, an unsolicited tender offer or proxy solicitation, (iii) at
the time of such transaction both before and immediately after giving effect
thereto, no Event of Default or Default shall have occurred and be continuing, (iv) after
giving pro forma effect to such acquisition, the Borrower could incur at least
$1.00 of additional indebtedness under the Incurrence Test, provided
that if a such acquisition is made for stock consideration and does not involve
the acquisition, assumption or issuance of debt, such acquisition may be
effected if, at the time of such acquisition and after giving pro forma effect
thereto, the Interest Coverage Ratio shall not be less than the Interest
Coverage Ratio immediately prior to the consummation of such acquisition, (v) at
the time of such acquisition and after giving pro forma effect thereto, the
Consolidated Senior Secured Leverage Ratio shall be less than or equal to 3.00
to 1.00 and (vi) upon consummation of such acquisition, the Acquired
Entity, unless such Acquired Entity is a Canadian Subsidiary, and each Domestic
Subsidiary thereof shall become a Loan Party if such Acquired Entity or 


 


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subsidiary
would be a Material Subsidiary based on a pro forma calculation for the most
recent period of four consecutive fiscal quarters in respect of which financial
statements have been delivered; and SSCC and the Borrower shall comply, and
shall cause the Subsidiaries to comply, with the other  provisions of Section 5.09
applicable to such Acquired Entity or subsidiary, or to its Equity Interests,
substantially concurrently with the consummation of such acquisition or by such
later date reasonably agreed by the Administrative Agent with respect to
specific compliance items (any acquisition of an Acquired Entity meeting all of
the criteria set forth in this paragraph (f) being referred to herein
as a “Permitted Acquisition”).


 


SECTION 6.06. Restricted
Payments.  (a)  Declare or make, directly or indirectly, any
Restricted Payment or set aside any amount for any such purpose.


 


(b)  Notwithstanding
the provisions of paragraph (a) above:


 


(i) 
the transactions contemplated by the Plan of Reorganization to occur on the
Funding Date may be consummated on the Funding Date;


 


(ii) 
the Borrower may make Restricted Payments in any fiscal year commencing on or
after January 1, 2011 in an aggregate amount not to exceed the sum of (A) the
lesser of (x) the Borrower’s Portion of Excess Cash Flow and (y) $50,000,000
plus (B) if the Borrower’s Portion of Excess Cash Flow exceeds $50,000,000
and the Additional RP Condition is satisfied, an additional amount up to the
amount of such excess; and


 


(iii) 
the Borrower may make Restricted Payments for the repurchase, retirement or
other acquisition for value of Equity Interests of the Borrower held by any
future, present or former employee or director of the Borrower or any of its
Subsidiaries pursuant to any employee or director equity plan, employee or
director stock option plan or any other employee or director benefit plan of
the Borrower or its Subsidiaries, provided that the aggregate amount of such
Restricted Payments in any fiscal year shall not exceed $5,000,000;


 


provided that at the
time of any such Restricted Payment made pursuant to clause (ii) or
(iii) above and immediately after giving effect thereto no Default
or Event of Default shall have occurred and be continuing.  For purposes hereof, “Additional RP
Condition” means, with respect to any Restricted Payment proposed to be
made in any fiscal year pursuant to clause (b)(ii)(B) above, that
at the time of such Restricted Payment and immediately after giving effect
thereto (A) no loans are outstanding under the Revolving Facility (other
than issued and outstanding letters of credit that do not back Indebtedness for
borrowed money), (B) the Borrower could incur at least $1.00 of additional
indebtedness under the Incurrence Test and (C) in such fiscal year the
Borrower has made mandatory prepayments of Term Loans under Section 2.13(b) and
voluntary prepayments of Term Loans under Section 2.12(a) in
an aggregate principal amount equal to at least 50% of Excess Cash Flow for the
immediately preceding fiscal year.


 


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SECTION 6.07. Transactions
with Stockholders and Affiliates. 
Except to the extent specifically permitted by the terms of this
Agreement, directly or indirectly enter into or permit to exist any transaction
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any holder of 10% or more of any class of equity
securities of such Person or with any Affiliate of such Person or of any such
holder, on terms that are less favorable to such Person than those that could
be obtained at the time from Persons that are not such a holder or Affiliate, provided
that the foregoing restriction shall not apply to (a) any transaction
between or among the Loan Parties or any transaction between or among Foreign
Subsidiaries, (b) any transaction or series of transactions between the
Borrower and any Subsidiary or between the Subsidiaries on a basis that is not
systematically disadvantageous to any Loan Party, (c) customary fees paid
to members of the Board of Directors of the Borrower or SSCC or any of the
Subsidiaries, (d) customary compensation (including salaries and bonuses)
paid to officers and employees of SSCC, the Borrower or any Subsidiary, (e) management
and financial services provided by SSCC, the Borrower or any Subsidiary to any
other Subsidiary or any other entity in which SSCC, the Borrower or such
Subsidiary has Investments to the extent that such services are provided by
SSCC, the Borrower or such Subsidiary in the ordinary course of its business
and senior management of such Person has determined that the providing of such
services is in the best interests of such Person and (f) the transactions
effected on the Funding Date in connection with the effectiveness of, and
pursuant to the terms of, the Plan of Reorganization.


 


SECTION 6.08. Business.  Engage at any time in any business other than
the businesses engaged in by the Borrower or any Subsidiary on the Closing Date
and businesses that are reasonably similar or reasonably related thereto, or
are reasonable extensions thereof.


 


SECTION 6.09. Limitations
on Debt Prepayments.  Optionally
prepay, repurchase or redeem or otherwise optionally defease or segregate funds
with respect to (collectively, “prepay”) any Permitted Notes or other
long-term capital markets Indebtedness; provided, however, that
the foregoing will not prohibit (i) any refinancing of such Indebtedness
pursuant to the issuance of Permitted Refinancing Indebtedness with respect
thereto that is otherwise permitted by this Agreement, (ii) the
transactions effected on the Funding Date in connection with the effectiveness
of, and pursuant to the terms of, the Plan of Reorganization, (iii) any
repayments or prepayments in respect of obligations under the Revolving
Facility and (iv) any prepayment, repurchase, redemption or defeasance of
Indebtedness up to $200,000,000 in aggregate principal amount, if at the time
thereof and after giving effect thereto, (A) the Consolidated Senior
Secured Leverage Ratio would be less than 2.50 to 1.00 and (B) the sum of (1) the
amount of availability under the Revolving Facility and (2) the aggregate
amount of all unrestricted cash and unrestricted Permitted Investments of the
Borrower and its Subsidiaries shall not be less than $350,000,000.


 


SECTION 6.10. Amendment
of Certain Documents.  (a)  Amend, modify or grant any waiver with
respect to any indenture, note or any other instrument evidencing Indebtedness
of SSCC, the Borrower or any Subsidiary in an aggregate 


 


99

















 


principal amount in excess of $100,000,000 (other
than any such Indebtedness owed to SSCC, the Borrower or any Subsidiary), if
such amendment, modification, or waiver has the effect of (i) increasing
the amounts due in respect of any such indenture, note or other instrument or,
other than with respect to the Revolving Facility, any interest rate
thereunder, unless any such increase in amount would be permitted under Section 6.01
and except that any increase in any interest rate resulting from such amendment
or modification will be permitted if, after giving pro forma effect thereto,
the Borrower could incur at least $1.00 of additional indebtedness under the
Incurrence Test, (ii) subjecting any property of SSCC, the Borrower or any
Subsidiary to any Lien, other than Liens permitted under Section 6.02,
(iii) shortening the maturity or weighted average life of any such
Indebtedness or (iv) creating or changing covenants, events of default and
other terms and conditions such that the covenants, events of default and other
terms and conditions become materially more adverse, when taken as a whole, to
the Lenders.


 


(b)  Cause or suffer to
exist any amendment, restatement, supplement or other modification to the
certificate of incorporation (including any certificate of designation with
respect to any preferred stock) or by-laws of SSCC, the Borrower or any
Subsidiary without the prior written consent of the Required Lenders, unless
such amendment, restatement, supplement or modification is not materially
adverse to the interests of the Lenders hereunder or under the other Loan
Documents (provided that the foregoing will not prohibit the
consummation of the Funding Date Merger).


 


SECTION 6.11. Limitation
on Dispositions of Stock of Subsidiaries. 
Directly or indirectly sell or otherwise dispose of, or permit any
Subsidiary to issue to any other Person (other than to any other Loan Party or
a wholly owned Subsidiary), any Equity Interests of any Subsidiary, except
issuances to qualified directors if and to the extent required by applicable
law, provided that nothing in this Section 6.11 shall
prohibit (i) any disposition or issuance permitted by Sections 6.05
and 6.13 if such disposition or issuance is structured as the
disposition or issuance of stock or other Equity Interests or (ii) the
issuance of Equity Interests on a pro rata basis to its equity holders by any
Subsidiary that is not wholly owned.


 


SECTION 6.12. Restrictions
on Ability of Subsidiaries to Pay Dividends.  Permit any Subsidiary to, directly or
indirectly, voluntarily create or otherwise voluntarily cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Subsidiary to (a) pay dividends or make any other distributions on its
capital stock or any other interest or (b) make or repay loans or advances
to any Loan Party, except for (i) encumbrances or restrictions under this
Agreement and the other Loan Documents, (ii) encumbrances or restrictions
under the indentures governing the Permitted Notes (or any Permitted Refinancing
Indebtedness permitted hereunder with respect thereto or any other indenture or
other document governing Indebtedness permitted hereby so long as the
encumbrances and restrictions thereunder are no more onerous to any Subsidiary
than those contained in this Agreement), (iii) encumbrances or
restrictions under the Revolving Facility Documents as in effect on the Funding
Date (and under the Revolving Facility Documents as amended from time to time
or any Permitted Refinancing Indebtedness in respect thereof, in each case, so
long as the encumbrances and restrictions thereunder are no more onerous, when
taken as a whole, to 


 


100

















 


any Subsidiary than those contained in the Revolving
Facility Documents as in effect on the Funding Date), (iv) customary
encumbrances or restrictions in joint venture agreements and similar agreements
that relate solely to the activities of such joint venture, (v) customary
encumbrances or restrictions contained in agreements relating to the sale of
all or a substantial part of the Equity Interests or assets of any Subsidiary
pending such sale, provided that such encumbrances and restrictions
apply only to the Subsidiary to be sold and such sale is permitted hereunder,
and (vi) encumbrances or restrictions in documents governing Indebtedness
assumed or incurred under Section 6.01(j) or existing with
respect to any Person or the property or assets of such Person acquired by the
Borrower or any Subsidiary in an acquisition permitted hereunder, provided
that such encumbrances and restrictions are not applicable to any Person or the
property or assets of any Person other than such acquired Person or the
property or assets of such acquired Person.


 


SECTION 6.13. Disposition
of Collateral and Other Assets.  (a)  Except for any transfer or disposition
permitted by paragraph (b) below, sell, lease, assign,
transfer or otherwise dispose of any asset or assets, in a single transaction
or a series of related transactions, having a fair market value in excess of
$10,000,000, unless (i) fair market value is received for such asset (such
fair market value to be determined by the Board of Directors of the Borrower or
any applicable Subsidiary in the exercise of its reasonable judgment in the
case of any asset or assets with a fair market value in excess of
$100,000,000), (ii) except in the case of any Asset Exchange, if the fair
market value of such asset or assets is in excess of $50,000,000, at least 75%
of the consideration received by SSCC, the Borrower and the Subsidiaries for
such asset or assets shall be in cash, cash equivalents and readily marketable
securities and (iii) except in the case of any Asset Exchange, any
non-cash consideration shall consist of debt obligations of the purchaser, provided
that the foregoing shall not restrict SSCC, the Borrower or any Subsidiary from
receiving debt obligations of the purchaser in an aggregate principal amount
not in excess of $50,000,000 in connection with any single transaction or
series of related transactions.


 


(b)  Notwithstanding
anything to the contrary in this Agreement, the Borrower shall not transfer any
of its assets to any Subsidiary and none of the Subsidiaries shall transfer any
of its assets to any other Subsidiary unless (i) in the case of any asset
or assets constituting Collateral, such asset or assets is transferred to a
Loan Party and the Administrative Agent is satisfied that the Liens created
under the Security Documents on such asset or assets shall be in full force and
effect, or (ii) in the case of any asset or assets not constituting
Collateral, such transfer is permitted as an Investment under Section 6.04
or is permitted under Section 6.05.


 


SECTION 6.14. Fiscal
Year.  Cause the fiscal year of SSCC
or the Borrower to end on a date other than December 31.


 


SECTION 6.15. Material
Subsidiaries.  (a)  Permit, as of the date on which financial
statements with respect to the fiscal quarter of the Borrower most-recently
ended are delivered (or, if not delivered by such date, on the date required to
have been delivered) pursuant to Section 5.04(a) or (b) hereof,
the sum of (i) the 


 


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individual revenues and assets of the Borrower and
each Domestic Material Subsidiary that is a Loan Party and (ii) the
revenues and assets of each Foreign Subsidiary at least 65% of the voting stock
and all of the non-voting Equity Interests of which has been pledged as
Collateral to secure the Obligations and of such Foreign Subsidiary’s
subsidiaries, calculated on a consolidated basis, in each case for or as of the
end of the most recent period of four consecutive fiscal quarters in respect of
which financial statements have been (or were required to have been) delivered,
when taken together, to account for less than 90% of the Borrower’s
consolidated revenues for, or less than 90% of the Borrower’s consolidated
assets at the close of, such period of four consecutive fiscal quarters.


 


(b)  Permit on any day
in any fiscal quarter of the Borrower, the aggregate amount of cash held by
Domestic Subsidiaries in deposit accounts (other than deposit accounts referred
to in Section 5.10(d)(i), (ii) and (iii)) that
are not subject to Control Agreements to exceed $15,000,000, unless, during the
30-day period after the last day of such fiscal quarter, one or more of such
Domestic Subsidiaries are designated by the Borrower as a Material Subsidiary
pursuant to clause (c) of the definition thereof and enter into Control
Agreements, with respect to their deposit accounts referred to above, so that,
if such Control Agreement has been in effect at all times during such fiscal
quarter, such $15,000,000 threshold would not have been exceeded on any day.


 


ARTICLE VII


 


Events
of Default


 


From and after the Funding
Date, in case of the happening of any of the following events (each, an “Event
of Default”):


 


(a) any
representation or warranty made or deemed made in any Loan Document, or any
representation, warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished pursuant to any
Loan Document, shall prove to have been false or misleading in any material
respect when so made, deemed made or furnished;


 


(b) default
shall be made in the payment of any principal of any Loan when and as the same
shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment thereof or by acceleration thereof or otherwise;


 


(c) default
shall be made in the payment of any interest on any Loan or any Fee or any
other amount (other than an amount referred to in paragraph (b) above)
due under any Loan Document, when and as the same shall become due and payable,
and such default shall continue unremedied for a period of three Business Days,
in the case of payment of any such interest or Fee, or 10 Business Days in the
case of payment of any such other amount;


 


102

















 


(d) default
shall be made in the due observance or performance by SSCC or the Borrower of
any covenant, condition or agreement contained in Section 5.01
(with respect to SSCC or the Borrower), 5.05(a), 5.14 or in Article VI;


 


(e) default
shall be made in the due observance or performance by any Loan Party or any of
their respective Subsidiaries of any covenant, condition or agreement contained
in any Loan Document (other than those defaults specified in paragraph (b),
(c) or (d) above) and such default shall continue
unremedied for a period of 30 days after written notice thereof from the
Administrative Agent or any Lender to the Borrower;


 


(f) SSCC,
the Borrower or any Subsidiary shall (i) fail to pay any principal or
interest, regardless of amount, due in respect of any Material Indebtedness,
when and as the same shall become due and payable (after giving effect to any
applicable grace period), or (ii) fail to observe or perform any other
term, covenant, condition or agreement contained in any agreement or instrument
evidencing or governing any such Indebtedness (after giving effect to any
applicable grace period), if the effect of any failure referred to in this clause (ii) is
to cause, or to permit the holder or holders of such Indebtedness or a trustee
on its or their behalf to cause, such Indebtedness to become due prior to its
stated maturity, provided that this paragraph (f) shall not
apply to secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or asset securing such Indebtedness;


 


(g) at
any time after the Funding Date, an involuntary proceeding shall be commenced or
an involuntary petition shall be filed in a court of competent jurisdiction
seeking (i) relief in respect of SSCC, the Borrower or any Material
Subsidiary, or of a substantial part of the property or assets of any such
Person, under any Insolvency Law, (ii) the appointment of a receiver,
interim receiver, receiver and manager, trustee, custodian, sequestrator,
conservator or similar official for any such Person or for a substantial part
of the property or assets of any such Person or (iii) the winding-up or
liquidation of any such Person; and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered;


 


(h) SSCC,
the Borrower or any Material Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking relief under any Insolvency Law, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or the filing of any petition described in paragraph (g) above,
(iii) apply for or consent to the appointment of a receiver, interim
receiver, receiver and manager, trustee, custodian, sequestrator, conservator
or similar official for any such Person or for a substantial part of the
property or assets of any such Person, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail 


 


103

















 


generally
to pay its debts as they become due or (vii) take any action for the
purpose of effecting any of the foregoing;


 


(i) one
or more judgments for the payment of money, individually or in the aggregate,
in an amount in excess of $30,000,000 (in each case to the extent not
adequately covered by insurance proceeds as to which the insurance company has
acknowledged coverage pursuant to a writing reasonably satisfactory to the
Administrative Agent), shall be rendered against SSCC, the Borrower or any of
the Subsidiaries or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, vacated, discharged or satisfied;


 


(j) an
ERISA Event shall have occurred that, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in increased
liability of SSCC, its Subsidiaries and ERISA Affiliates in an aggregate amount
more than $30,000,000 greater than the liability as of the Closing Date
reasonably estimated by the Required Lenders in good faith attributable to
either of the following:


 


(i) 
the Plans’ and Multiemployer Plans’ funded status as of the most recent
valuation or other statement of financial condition prior to the Closing Date;
or


 


(ii) 
withdrawal liability with respect to a Multiemployer Plan as of the most recent
estimate of withdrawal liability for such Multiemployer Plan received before
the Closing Date;


 


(k) there
shall have occurred a Change in Control or SSCC, the Borrower or any Subsidiary
shall make any mandatory prepayment, repurchase or redemption or make any offer
to make any such mandatory prepayment, repurchase or redemption of any
Indebtedness in an aggregate outstanding principal amount in excess of
$30,000,000 on account of any “Change of Control” (however designated) referred
to in the indenture, agreement or other instrument governing such Indebtedness;


 


(l) any
Lien purported to be created by any Security Document shall cease to be, or
shall be asserted by any Loan Party not to be, a valid, perfected first
priority (or, in the case of the Revolving Facility Collateral, second
priority, but second in priority only in respect of the obligations under the
Revolving Facility)  Lien on any
Collateral (except as otherwise expressly provided in this Agreement or such
Security Document) with a fair market value or book value (whichever is
greater) in excess, individually or in the aggregate, of $100,000,000, except
to the extent that any such loss of perfection, priority or rank results from
the failure of the Administrative Agent to maintain possession of certificates
representing securities pledged under the Security Documents or otherwise take
any action within its control (including the filing of Uniform Commercial Code
continuation 


 


104

















 


statements
or similar filings or registrations under the applicable laws of any other
jurisdiction);


 


(m) any
Loan Document shall not be for any reason, or shall be asserted by the Loan
Party (except as otherwise expressly provided in this Agreement or such Loan
Document) not to be, in full force and effect and enforceable in all material
respects in accordance with its terms; or


 


(n) the
Loan Documents Obligations shall cease to constitute, or shall be asserted by
any Loan Party (except as otherwise expressly provided in this Agreement or
such Loan Document) not to constitute, senior indebtedness under the
subordination provisions of any subordinated Indebtedness of any Loan Party, or
any such subordination provisions shall be invalidated or otherwise cease to be
a legal, valid and binding obligation of the parties thereto, enforceable in
accordance with its terms;


 


then, and in every such event (other than an
event with respect to SSCC or the Borrower described in paragraph (g) or
(h) above), and at any time thereafter during the continuance of
such event, the Administrative Agent may and, at the request of the Required
Lenders, shall, by notice to the Borrower, take any of or all the following
actions, at the same or different times: 
(i) terminate forthwith the Commitments, (ii) declare the
Loans then outstanding to be forthwith due and payable, in whole or in part,
whereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Fees and all
other liabilities of the Loan Parties accrued hereunder and under any other
Loan Document, shall become forthwith due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by each Loan Party, anything contained herein or in any other
Loan Document to the contrary notwithstanding, and (iii) exercise any
remedies available under any Loan Document or otherwise; and in any event with
respect to SSCC or the Borrower described in paragraph (g) or (h) above,
the Commitments shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and any unpaid accrued
Fees and all other liabilities of the Loan Parties accrued hereunder and under
any other Loan Document, shall automatically become due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by each Loan Party, anything contained herein or in any
other Loan Document to the contrary notwithstanding.


 


ARTICLE VIII


 


The
Administrative Agent


 


In order to expedite the
transactions contemplated by this Agreement, JPMCB is hereby irrevocably
appointed to act as the Administrative Agent for the Lenders.  Each of the Lenders hereby irrevocably
authorizes each Agent to take such 


 


105

















 


actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms and provisions
hereof and of the other Loan Documents, together with such actions and powers
as are reasonably incidental thereto.  Without
limiting the foregoing, the Administrative Agent is expressly authorized to
execute any and all documents with respect to the Collateral and the rights of
the Lenders with respect thereto, including without limitation, the Guarantee
and Collateral Agreement and the Intercreditor Agreement on the Funding Date,
and to act as Administrative Agent on behalf of the Lenders, in each case as
contemplated by and in accordance with the terms and provisions of this
Agreement and the Security Documents.


 


The Administrative Agent
shall not be liable as such for any action taken or omitted by it with the
consent or at the request of the Required Lenders (or such other number of
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.08) or in the absence of its own gross
negligence or willful misconduct, or be responsible for any statement, warranty
or representation in any Loan Document or the contents of any document
delivered in connection herewith, or be required to ascertain or to make any
inquiry concerning the performance or observance by the Loan Parties of any of
the terms, conditions, covenants or agreements contained in any Loan
Document.  The Administrative Agent shall
not be deemed not to have knowledge of any Default unless and until written
notice thereof is given to the Administrative Agent by SSCC, the Borrower or a
Lender.  The Administrative Agent shall
not be responsible to the Lenders for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement, any other Loan Document or
any other instruments or agreements.  The
Administrative Agent shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on
all Lenders.  The Administrative Agent
shall be entitled to rely on any instrument or document believed by them in
good faith to be genuine and correct and to have been signed or sent by the
proper Person or Persons.  The
Administrative Agent shall also be entitled to rely on any statement made to it
orally or by telephone and believed by it to be made by the proper Person, and
shall not incur any liability for relying thereon.  Neither the Administrative Agent nor any of
its respective directors, officers, employees or agents shall have any
responsibility to the Loan Parties on account of the failure of or delay in performance
or breach by any Lender of any of its obligations hereunder or to any Lender on
account of the failure of or delay in performance or breach by any other Lender
or any Loan Party of any of their respective obligations hereunder or under any
other Loan Document or in connection herewith or therewith.  The Administrative Agent may execute any and
all duties hereunder by or through agents or employees (and the exculpatory
provisions of this Article VIII shall apply to any such agent or
employee) and shall be entitled to rely upon the advice of legal counsel with
respect to all matters arising hereunder and shall not be liable for any action
taken or suffered in good faith by any of them in accordance with the advice of
such counsel.


 


The Lenders hereby
acknowledge that (a) the Administrative Agent shall not be under any
duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated by the Loan 


 


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Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.08), and (b) except as expressly set
forth in the Loan Documents, the Administrative Agent shall not have any duty
to disclose, or shall be liable for the failure to disclose, any information
relating to SSCC or any of the Subsidiaries that is communicated to or obtained
by the Person serving as Administrative Agent or any of its Affiliates in any
capacity.


 


Subject to the appointment
and acceptance of a successor Administrative Agent as provided below, the
Administrative Agent may resign at any time by notifying the Lenders and the
Borrower.  Upon any such resignation, the
Required Lenders shall have the right to appoint a Lender as the successor,
which successor agent shall, unless an Event of Default under paragraph (b),
(c), (g) or (h) of Article VII shall
have occurred and be continuing, be subject to approval by the Borrower (not to
be unreasonably withheld or delayed).  If
no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may, on behalf of the Lenders, appoint a successor Administrative Agent, which
shall be a bank with an office in New York, New York, having a combined capital
and surplus of at least $500,000,000 or an Affiliate of any such bank.  Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor bank, such successor shall
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder.  After the Administrative Agent’s resignation
hereunder, the provisions of this Article VIII and Section 9.05
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.


 


With respect to the Loans
made by it hereunder, the Administrative Agent, in its individual capacity and
not as the Administrative Agent, shall have the same rights and powers as any
other Lender and may exercise the same as though it were not the Administrative
Agent and the Administrative Agent and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of business with the Loan
Parties or any of their respective Subsidiaries or other Affiliates as if it
were not the Administrative Agent.


 


Each Lender agrees (a) to
reimburse the Administrative Agent, on demand, in the amount of such Lender’s
pro rata share (based on its Commitments hereunder (provided that (x) in
the case of Term Loans or (y) in the event that such Commitments shall
have expired or been terminated, such pro rata share shall be based on the
respective principal amounts of the outstanding Loans)) of any expenses
incurred for the benefit of the Lenders by the Administrative Agent, including
fees, disbursements and other charges of counsel and compensation of agents
paid for services rendered on behalf of the Lenders, that shall not have been
reimbursed by the Loan Parties and (b) to indemnify and hold harmless the
Administrative Agent and any of its respective directors, officers, employees
or agents, on demand, in the amount of such pro rata share, from and against
any and all liabilities, taxes (whether or not such taxes were correctly or 


 


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legally imposed or asserted by the relevant
Governmental Authority), obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by or asserted against it in its
capacity as the Administrative Agent or in any way relating to or arising out
of this Agreement or any other Loan Document or any action taken or omitted by
it under this Agreement or any other Loan Document, to the extent the same
shall not have been reimbursed by the Loan Parties; provided, however,
that no Lender shall be liable to the Administrative Agent for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross negligence or
willful misconduct of the Administrative Agent.


 


Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement.  Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement or any other Loan Document, any related agreement or any document
furnished hereunder or thereunder.


 


The Administrative Agent
agrees to act as a contractual representative upon the express conditions
contained in this Article VIII. 
Notwithstanding the use of the defined term “Administrative Agent”, it
is expressly understood and agreed that the Administrative Agent shall not have
any fiduciary or other implied duties to any Lender by reason of this Agreement
or any other Loan Document, regardless of whether a Default has occurred and is
continuing, and that the Administrative Agent is merely acting as the
contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents.  In such capacity of a contractual
representative, the Administrative Agent (a) hereby assumes no fiduciary
duties to any of the Lenders, (b) is a “representative” of the Lenders
within the meaning of the term “secured party” as defined in the Uniform
Commercial Code and (c) is acting as an independent contractor, the rights
and duties of which are limited to those expressly set forth in this Agreement
and the other Loan Documents.  Each of
the Lenders hereby agrees to assert no claim against the Administrative Agent
on any agency theory or any other theory of liability for breach of fiduciary
duty, all of which claims each Lender hereby waives.


 


No Person named on the cover
page to this Agreement as a joint bookrunner, co-lead arranger,
syndication agent or documentation agent shall have any duties or
responsibilities under this Agreement or any other Loan Document in its
capacity as such.


 


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ARTICLE IX


 


Miscellaneous


 


SECTION 9.01.
Notices.  Except as otherwise
expressly permitted herein, notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed or sent by fax, as follows:


 


(a) if to SSCC or SSCE, to it at Six CityPlace
Drive, Creve Coeur, MO 63141, Attention of Timothy T. Griffith, Vice President
and Treasurer (Fax No. (314) 787-6186), with a copy to Brian S. Hart,
Winston & Strawn LLP, 35 W. Wacker Drive, Chicago, IL 60601 (Fax No. (312)
558-5700);


 


(b) if to JPMCB, as Administrative Agent, to
JPMorgan Chase Bank, N.A., Loan Agency Services Group, 1111 Fannin Street, 10th
Floor, Houston, Texas 77002, Attention of Christian Cho (Fax No. (713)
427-6307) and Sylvia Guttierrez (Fax No. (713) 427-6307), with a copy to
JPMorgan Chase Bank, N.A., 383 Madison Avenue, 24th Floor, New York, NY 10017,
Attention of Peter S. Predun (Fax No. (212) 270-5100);


 


(c) if to any other Lender, at its address (or
fax number) set forth in its Administrative Questionnaire.


 


Any
party hereto may change its address or fax number for notices and other
communications hereunder by notice to the other parties hereto.


 


Notices
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by fax
shall be deemed to have been given when sent (except that, if not given during
normal business hours for the recipient, shall be deemed to have been given at
the opening of business on the next business day for the recipient); and
notices delivered through electronic communications to the extent provided in
the following paragraph shall be effective as provided in such paragraph.


 


Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications (including email and Internet and intranet
websites) pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices under Article II to
any Lender if such Lender has notified the Administrative Agent that it is
incapable of receiving notices under such Article by electronic
communication.  Any notices or other
communications to the Administrative Agent, SSCC or the Borrower may be
delivered or furnished by electronic communications pursuant to procedures
approved by the recipient thereof prior thereto; provided that approval
of such procedures may be limited or rescinded by any such Person by notice to
each other such Person.  The
Administrative Agent shall deliver to the Borrower a copy of each
Administrative Questionnaire received by it.


 


SECTION 9.02.
Survival of Agreement.  All
covenants, agreements, representations and warranties made by SSCC and the
Borrower herein and by the Loan


 


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Parties in the other Loan
Documents and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the Lenders and the Administrative
Agent and shall survive the making by the Lenders of the Loans, regardless of
any investigation made by, or on behalf of, the Lenders or the Administrative
Agent, and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any Loan Document is executed and delivered or any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid and so long as the Commitments have not been terminated.  The provisions of Sections 2.14, 2.15,
2.19 and 9.05 and Article VIII shall survive and
remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.


 


SECTION 9.03.
Counterparts; Binding Effect. 
This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract.  This Agreement shall become effective when it
shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of SSCC, the
Borrower, the Administrative Agent and the Lenders and their respective
successors and assigns, except that neither SSCC nor the Borrower shall have
the right to assign its rights or duties hereunder or any interest herein
without the prior consent of all the Lenders, and any attempted assignment by
any such Person shall be void (it being understood that a merger of SSCC or the
Borrower with and into any other Person in which the other Person is the
surviving entity shall not be considered an assignment of the Borrower’s duties
hereunder and would instead be subject to the restrictions of Section 6.05).  Delivery of an executed counterpart of a
signature page of this Agreement by facsimile or other electronic imaging
shall be effective as delivery of a manually executed counterpart of this
Agreement.


 


SECTION 9.04.
Successors and Assigns.  (a)  Subject
to Section 9.03, whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the successors
and assigns of such party, and all covenants, promises and agreements by or on
behalf of SSCC, the Borrower, the Administrative Agent or the Lenders that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.


 


(b) 
Each Lender may assign to one or more assignees (treating any Approved Funds
that are administered or managed by the same Person or an Affiliate of such
Person as a single assignee) all or a portion of its interests, rights and/or
obligations under this Agreement (including all or a portion of its Commitments
and the Loans at the time owing to it); provided, however, that (i) except
in the case of an assignment to a


 


110

















 


Lender, an Affiliate of the
assigning Lender or an Approved Fund or the Borrower (in connection with
acquisitions or repurchases of Term Loans or Other Term Loans by the Borrower
pursuant to Purchase Offers or Permitted Debt Exchanges under Section 2.23
or Section 2.24), each of the Administrative Agent and, at any time
after the earlier of (A) the date upon which the Administrative Agent
reasonably determines that the primary syndication of the Term Loans has been
completed (it being understood that the Administrative Agent will promptly
notify the Borrower of the occurrence of such date) and (B) 60 days after
the Closing Date, the Borrower must give its prior written consent to such
assignment (which consent shall not be unreasonably withheld or delayed), provided
that the consent of the Borrower shall not be required if an Event of Default
under paragraph (b), (c), (g) or (h) of
Article VII has occurred and is continuing on the date of the
Assignment and Acceptance, (ii)  except in the case of an assignment
to a Lender, an Affiliate of the assigning Lender or an Approved Fund, the
amount of the Commitments and Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $1,000,000 (or an amount equal to the remaining balance of such Lender’s
Commitments and Loans of the relevant Class) unless each of the Borrower and
the Administrative Agent otherwise consents, and (iii) the parties to each
such assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, and a processing and recordation fee of $3,500,
except as otherwise agreed by the Administrative Agent; provided  further
that, notwithstanding the foregoing, the sale or assignment by any assignor
(which acquired an interest in the Commitments and Loans of any Class in
an amount less than $1,000,000 pursuant to an exception to clause (ii) of
the immediately preceding proviso) to any Person that is not a Lender or an
Affiliate of such assignor or an Approved Fund shall be subject to the minimum
assignment requirement set forth in the immediately preceding proviso if all
the Affiliates of such Lender hold Commitments and Loans of the relevant Class in
the amount of $1,000,000 or more in the aggregate.  Upon acceptance and recording pursuant to paragraph
(e) below, from and after the effective date specified in each
Assignment and Acceptance, (i) the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, shall have the rights and obligations of a Lender under this
Agreement and the other Loan Documents and (ii) the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of
an assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto, but shall continue to be entitled to the
benefits of Sections 2.14, 2.15, 2.19 and 9.05,
as well as to any Fees accrued for its account and not yet paid).


 


(c) 
By executing and delivering an Assignment and Acceptance, the assigning Lender
thereunder and the assignee thereunder shall be deemed to confirm to and agree
with each other and the other parties hereto as follows:  (i) such assigning Lender warrants that
it is the legal and beneficial owner of the interest being assigned thereby,
free and clear of any adverse claim; (ii) except as set forth in clause (i) above,
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in


 


111

















 


connection with this
Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto, or the financial condition of
the Loan Parties or the performance or observance by the Loan Parties of any of
their obligations under this Agreement or under any other Loan Document or any
other instrument or document furnished pursuant hereto; (iii) such
assignee represents and warrants that it is legally authorized to enter into
such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of any amendments or
consents entered into prior to the date of such Assignment and Acceptance and
copies of the most recent financial statements delivered pursuant to Section 5.04
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (v) such assignee will independently and without reliance upon
the Administrative Agent, such assigning Lender or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under this
Agreement; (vi) such assignee appoints and authorizes each of the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers as are delegated to the Administrative Agent by the terms hereof
and of the other Loan Documents, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.


 


(d) 
The Administrative Agent, acting for this purpose as agent of the Borrower
shall maintain at one of its offices in The City of New York a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amount of the Loans owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). 
The entries in the Register shall be conclusive in the absence of
manifest error and SSCC, the Borrower and the Lenders shall treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary.  The Register shall be
available for inspection by SSCC, the Borrower and any Lender at any reasonable
time and from time to time upon reasonable prior notice.


 


(e) 
Upon its receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an assignee, together with an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder or the Borrower in connection with acquisitions or repurchases
of Loans by the Borrower pursuant to Purchase Offers or Permitted Debt
Exchanges under Section 2.23 or Section 2.24), the
processing and recordation fee referred to in paragraph (b) above
and the written consent to such assignment of any Person whose consent is
required pursuant to paragraph (b) above, the Administrative Agent
shall (i) accept such Assignment and Acceptance and (ii) record the
information contained therein in the Register. 
No assignment shall be effective unless it has been recorded in the
Register as provided in this paragraph (e).


 


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(f) 
Each Lender may, without the consent of the Borrower or the Administrative
Agent, sell participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided, however,
that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the
participating banks or other entities shall be entitled to the benefit of the
cost protection provisions contained in Sections 2.14, 2.15,
2.19 and 9.05 to the same extent as if they were Lenders, provided
that, except as expressly provided in Section 2.19(a), the Borrower
shall not be required to reimburse the participating banks or other entities
pursuant to Section 2.14, 2.15, 2.19 or 9.05
in an amount in excess of the amount that would have been payable thereunder to
such Lender had such Lender not sold such participation, and (iv) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement, and such Lender shall retain the sole
right to enforce the obligations of the Loan Parties under the Loan Documents
and to approve any amendment, modification or waiver of any provision of this
Agreement (provided that the participating bank or other entity may be
provided with the right to approve amendments, modifications or waivers
affecting it that (v) decrease any Fees payable hereunder, (w) decrease
the amount of principal of, or the rate at which interest is payable on, the
Loans, (x) extend any scheduled principal payment date or date for the
scheduled payment of interest on the Loans, (y) increase the amount of or
extend the termination date of the Commitments or (z) release a Guarantor
from its guarantee under the Guarantee and Collateral Agreement (except as
expressly contemplated by any Loan Document) or all or substantially all of the
Collateral from the Liens created under the Security Documents (except as
expressly contemplated by any Loan Document).


 


(g) 
Notwithstanding the limitations set forth in paragraph (b) above,
(i) any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank without the prior written
consent of SSCC or the Administrative Agent, (ii) any Lender which is a fund
may pledge all or any portion of its rights under this Agreement to its trustee
or other creditor in support of its obligations to its trustee or other
creditor without the prior written consent of SSCC or the Administrative Agent
and (iii) any Lender may at any time assign or pledge all or any portion
of its rights under this Agreement to direct or indirect contractual
counterparties in swap agreements related to the Loans, provided that no
such assignment pursuant to clause (i), (ii) or (iii) shall
release a Lender from any of its obligations hereunder or substitute any such
Bank or trustee for such Lender as a party hereto.


 


(h) 
Notwithstanding anything to the contrary contained herein, other than
acquisitions or repurchases of Term Loans or Other Term Loans by the Borrower
pursuant to Purchase Offers or Permitted Debt Exchanges under Section 2.23
or Section 2.24, neither the Borrower nor any Affiliate of the
Borrower may acquire by assignment, participation or otherwise any right to or
interest in any of the Commitments or Term Loans or Other Term Loans hereunder
(and any such attempted acquisition shall be null and void).


 


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SECTION 9.05.
Expenses; Indemnity.  (a)  SSCC
and the Borrower agree, jointly and severally, to pay all reasonable
out-of-pocket expenses (i) incurred by the Administrative Agent, the
Arrangers and their Affiliates (including the reasonable fees, charges and
disbursements of one counsel to the Administrative Agent and the Arrangers
taken as a whole and, if necessary, of bankruptcy counsel and one local counsel
and one regulatory counsel in any jurisdiction) in connection with the
preparation, negotiation, execution and delivery of this Agreement and the
other Loan Documents (including all costs relating to due diligence) or in
connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby contemplated shall be
consummated) or (ii) incurred by the Administrative Agent or any Lender in
connection with the enforcement or protection of their rights in connection
with this Agreement and the other Loan Documents or in connection with the
Loans made hereunder (including the fees, disbursements and other charges of a
single lead counsel to the Administrative Agent and the Lenders and such local
and regulatory counsel as may reasonably be deemed necessary by the
Administrative Agent in each relevant jurisdiction and, in the case of a
conflict of interest, one additional counsel per affected party).  SSCC and SSCE further agree to indemnify the
Administrative Agent and the Lenders from, and hold them harmless against, any
documentary taxes, assessments or similar charges made by any Governmental
Authority by reason of the execution and delivery of this Agreement or any of
the other Loan Documents.


 


(b) 
SSCC and the Borrower agree, jointly and severally, to indemnify each Arranger,
the Administrative Agent and each Lender and each of their Affiliates and
respective directors, officers, employees, trustees, advisors and agents (each
such person being called an “Indemnitee”) against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable fees, disbursements and other charges of
counsel to the Indemnitees, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the
structuring, arrangement and the syndication of the Credit Facilities provided
for herein, (ii) the preparation, execution, delivery and administration
of this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto or
thereto of their respective obligations hereunder or thereunder or the
consummation of the Transactions and the other transactions contemplated hereby
or thereby, (iii) the use of the proceeds of the Loans, (iv) any
actual or alleged presence or Release of Hazardous Materials on or from any
property currently or formerly owned or operated by SSCC, the Borrower or any
of the Subsidiaries or any of their respective predecessors or any other
liability under any Environmental Law related in any way to SSCC, the Borrower
or any of the Subsidiaries or to their respective real properties, assets or
operations or (v) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and whether initiated against or by any Indemnitee and whether or not
any Indemnitee is a party thereto, provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or wilful misconduct of such Indemnitee (or its related
parties).


 


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(c) 
To the extent permitted by applicable law, neither SSCC nor the Borrower shall
assert, or permit any of their Affiliates or related parties to assert, and
each hereby waives, any claim against any Indemnitee (i) for any damages
arising from the use by others of information or other materials obtained through
telecommunications, electronic or other information transmission systems
(including the Internet), or (ii) on any theory of liability for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby or
thereby, the transactions contemplated hereby, any Loan or the use of the
proceeds thereof.


 


(d) 
The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term
or provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Administrative Agent or any Lender.  All amounts due under this Section 9.05
shall be payable promptly after written demand therefor.


 


SECTION 9.06.
Right of Setoff.  Subject to the
Intercreditor Agreement, each Lender and each of its Affiliates is hereby
authorized, in addition to any other right or remedy that any Lender or any
such Affiliates may have by operation of law or otherwise, at any time and from
time to time upon any amount becoming due and payable by any Loan Party under
any Loan Document, after the expiration of any grace period with respect
thereto, to exercise, without notice to SSCC or the Borrower (any such notice
being expressly waived by each such Person), its banker’s lien or right of
combination of accounts or right of setoff and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other Indebtedness at any time owing by such Lender or any such Affiliate to or
for the credit or the account of any Loan Party against such due and payable
amount.  Each Lender and each of its
Affiliates agrees to promptly notify the Borrower and the Administrative Agent
after any such setoff and application made by such Lender or any such
Affiliate, provided that the failure to give such notice shall not
affect the validity of such setoff and application.


 


SECTION 9.07.
Applicable Law.  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER
THAN AS EXPRESSLY SET FORTH IN THE OTHER LOAN DOCUMENTS) SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING
SECTIONS 5-1401 AND 5-1402 OF TITLE 14 OF THE NEW YORK GENERAL OBLIGATIONS LAW
BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAWS RULES THEREOF.


 


SECTION 9.08.
Waivers; Amendment.  (a)  No
failure or delay on the part of the Administrative Agent or any Lender in
exercising any power or right hereunder or under any Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuation of steps to enforce
such a right or power, preclude any other or further


 


115

















 


exercise thereof or the
exercise of any other right or power. 
The rights and remedies of the Administrative Agent and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of this Agreement
or any other Loan Document or consent to any departure by the Loan Parties
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which
given.  No notice or demand on the Loan
Parties in any case shall entitle the Loan Parties to any other or further notice
or demand in similar or other circumstances. 
Without limiting the generality of the foregoing, the execution and
delivery of this Agreement or the making of a Loan shall not be construed as a
waiver of any Default, regardless of whether the Administrative Agent or any
Lender may have had notice or knowledge of such Default at the time.


 


(b) 
None of this Agreement, any of the other Loan Documents or any provision hereof
or thereof may be waived, amended or modified, except (i) in the case of
this Agreement, pursuant to an agreement or agreements in writing entered into
by SSCC, the Borrower, the Administrative Agent and the Required Lenders and (ii) in
the case of any other Loan Document, pursuant to an agreement or agreements
entered into by the parties to such Loan Document; provided, however,
that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of or any scheduled principal payment date or date for the
scheduled payment of any interest on any Loan, or waive or excuse any such
payment or any part thereof, or decrease the rate of interest on any Loan,
without the prior written consent of each Lender (other than, prior to its
funding of any Loans, a Defaulting Lender) affected thereby, (ii) increase
the amount of or extend the termination date of the Commitment of, or decrease
or extend the date for payment of any Fee owing to, any Lender without the
prior written consent of such Lender (other than a Defaulting Lender (except
for the increase in the amount of such Defaulting Lender’s Commitment)), (iii) amend
or modify the pro rata requirements of Section 2.16 or the
provisions of Section 9.03 concerning the assignment of SSCC’s or
the Borrower’s obligations hereunder, the provisions of this Section 9.08
or release a Guarantor from its guarantee under the Guarantee and Collateral
Agreement (except as expressly contemplated in Section 9.09 or by
the applicable Loan Document) or all or substantially all of the Collateral
from the Liens created under the Security Documents (except as expressly
contemplated in Section 9.09 or by the applicable Security
Document), without the prior written consent of each Lender (other than a
Defaulting Lender), (iv) change the provisions of any Loan Document in a
manner that by its terms adversely affects the rights in respect of payments
due to Lenders holding Loans of one Class differently from the rights of
Lenders holding Loans of any other Class without the prior written consent
of  Lenders (other than Defaulting Lenders) holding a majority in interest
of the outstanding Loans and unused Commitments of each adversely affected Class or
(v) reduce the percentage contained in the definition of the term “Required
Lenders” without the prior written consent of each Lender (other than a
Defaulting Lender); provided, further, however, that no
such agreement shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent hereunder or under any other Loan Document without the
prior written consent of the Administrative Agent.  The Lenders hereby authorize the
Administrative Agent to enter into such amendments,


 


116
















 


restatements, supplements or
other modifications to (i) the Security Documents as are deemed reasonably
necessary by the Administrative Agent to protect and preserve the Liens on the
Collateral created or purported to be created thereunder or to reflect or give
effect to any transaction permitted under this Agreement and (ii) the Loan
Documents to correct any errors or omissions if the Administrative Agent and
the Borrower have jointly identified an obvious error or any error or omission
of a technical or immaterial nature in any provision of the Loan
Documents.  Notwithstanding the foregoing
provisions of this Section 9.08(b), with the agreement and consents
of the Persons referred to therein, and without the necessity of obtaining the
approval of any other Lenders hereunder, (i) Incremental Facility
Agreements may be entered into as provided in Section 2.22(b) and
(ii) Extension Amendments may be entered into pursuant to Section 2.25.


 


SECTION 9.09.
Release of Collateral and Guarantors. 
Each Lender hereby directs the Administrative Agent to release the Liens
held by it under the Security Documents and the Guarantees made in the Loan
Documents as follows:


 


(a) 
upon payment in full in cash of the Loans and all the other Loan Documents
Obligations (other than unasserted contingent and indemnification obligations),
termination of all Commitments, the Administrative Agent is authorized to
release all of the Liens created, and all the Guarantees made, under the Loan
Documents;


 


(b) 
upon any sale or other disposition of Collateral permitted hereunder, or
consummation of any transaction permitted hereunder as a result of which any
Guarantor (other than SSCE or SSCC) ceases to be a Subsidiary of SSCC, the
Administrative Agent is authorized to release such Liens that relate solely to
the Collateral sold or otherwise disposed and the Guarantee made by such
Guarantor under the Loan Documents;


 


(c) 
upon consent by the Required Lenders, the Administrative Agent is authorized to
release such Liens on any part of the Collateral which release does not require
the consent of all of the Lenders as set forth in Section 9.08; and


 


(d) 
as required by the Intercreditor Agreement in connection with sales of
Revolving Facility Collateral;


 


provided,
however, that (i) the Administrative Agent shall not
be required to execute any such document on terms which, in its opinion, would
expose it to liability or create any obligation or entail any consequence other
than the release of such Liens without recourse or warranty, and (ii) such
release shall not in any manner discharge, affect or impair the Obligations or
any Liens upon (or obligations of SSCC or any of the Subsidiaries in respect
of) all interests retained by SSCC or any of the Subsidiaries.  Any execution and delivery by the Administrative
Agent of any document evidencing such release shall be without recourse or
warranty by the Administrative Agent.


 


SECTION 9.10.
Entire Agreement.  This Agreement,
the other Loan Documents and any separate fee letter agreements with respect to
fees payable to the Arrangers or the Administrative Agent constitute the entire
contract between the parties


 


117

















 


relative to the subject
matter hereof.  Any previous agreement
among the parties with respect to the subject matter hereof is superseded by
this Agreement and the other Loan Documents. 
Nothing in this Agreement or in the other Loan Documents, expressed or
implied, is intended to confer upon any Person other than the parties hereto
and thereto (and their respective successors and assigns permitted hereby and
each other Person that is an Indemnitee) any rights, remedies, obligations or
liabilities under or by reason of this Agreement or the other Loan Documents.


 


SECTION 9.11.
Waiver of Jury Trial.  Each party
hereto hereby waives, to the fullest extent permitted by applicable law, any
right it may have to a trial by jury in respect of any legal proceeding
directly or indirectly arising out of, under or in connection with this
Agreement or any of the other Loan Documents or the transactions contemplated
hereby (whether based on contract, tort or any other theory).  Each party hereto (a) certifies that no
representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce the foregoing waiver and (b) acknowledges that it and the other
parties hereto have been induced to enter into this Agreement and the other
Loan Documents, as applicable, by, among other things, the mutual waivers and
certifications in this Section 9.11.


 


SECTION 9.12.
Severability.  In the event any
one or more of the provisions contained in this Agreement or in any other Loan
Document should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby.  The parties shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions, the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.


 


SECTION 9.13.
Headings.  Article and Section headings
and the Table of Contents used herein are for convenience of reference only,
are not part of this Agreement and are not to affect the construction of, or to
be taken into consideration in interpreting, this Agreement.


 


SECTION 9.14.
Confidentiality.  (a)  Each
of the Administrative Agent and the Lenders agrees not to disclose to any
Person the Information (as defined below) in accordance with the Administrative
Agent or such Lender’s customary procedures for non-disclosure of confidential
information of third parties of this nature and in accordance with safe and
sound lending practices without the prior written consent of the Borrower,
which consent shall not be unreasonably withheld, except that the
Administrative Agent or any Lender shall be permitted to disclose Information (i) to
its and its Affiliates’ officers, directors, employees, partners, trustees,
agents and representatives (including its auditors and counsel) or to any
pledgee referred to in Section 9.04(g)(ii) or any direct or
indirect contractual counterparty in swap agreements or such contractual
counterparty’s professional advisor (so long as such pledgee, contractual
counterparty or professional advisor to such contractual counterparty agrees in
writing to be bound by the provisions of this Section 9.14); (ii) to
the extent


 


118

















 


(A) required by
applicable laws and regulations or by any subpoena or similar legal process or (B) requested
or required by any regulatory authority or 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; (iii) to the extent such Information (A) becomes
publicly available other than as a result of a breach of this Agreement, (B) becomes
available to the Administrative Agent or such Lender on a non-confidential
basis from a source other than a Loan Party or its Affiliates or (C) was
available to the Administrative Agent or such Lender on a non-confidential basis
prior to its disclosure to the Administrative Agent or such Lender by a Loan
Party or its Affiliates; (iv) to any actual or prospective assignee of, or
prospective purchaser of a participation in, the rights of such Lender
hereunder, in each case subject to paragraph (c) below; or (v) in
connection with any suit, action or proceeding relating to the enforcement of
rights hereunder or under any other Loan Document or in connection with the
transactions contemplated hereby.  As
used in this Section 9.14, as to any Lender, the term “Information”
shall mean the Confidential Information Memorandum and any other materials,
documents and information that the Borrower or any of its Affiliates may have
furnished or may hereafter furnish to any Lender in connection with this
Agreement relating to SSCC, the Borrower or any other Subsidiary or their
businesses, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower.  Any Person
required to maintain the confidentiality of Information as provided in this Section 9.14
shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of
such Information as such Person would accord to its own confidential
information.


 


(b) 
Each of the Administrative Agent and the Lenders agrees that it will use the
Information only for purposes related to the transactions contemplated hereby
and by the other Loan Documents, provided that (i) if the
conditions referred to in any of subclauses (A) through (C) of
clause (iii) of paragraph (a) above are met,
the Administrative Agent or such Lender may otherwise use the Information and (ii) if
the Administrative Agent or such Lender or any of their respective Affiliates
is otherwise a creditor of a Loan Party, the Administrative Agent, such Lender
or any such Affiliate may use the Information in connection with its other
credits to such Loan Party.


 


(c) 
Each Lender agrees that it will not disclose any of the Information to any
actual or prospective assignee of such Lender or participant in any rights of
such Lender under this Agreement unless such actual or prospective assignee or
participant first executes and delivers to such Lender or the Borrower a
confidentiality letter containing substantially the undertakings set forth in
this Section 9.14.


 


SECTION 9.15.
Jurisdiction; Consent to Service of Process.  (a)  Each of SSCC and the Borrower
hereby irrevocably and unconditionally submits, for itself and its property, to
the exclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the other Loan Documents, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect


 


119

















 


of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court; provided that during the period
prior to the effective date of the Plan of Reorganization each of the parties
hereto submits to the jurisdiction of the U.S. Bankruptcy Court with respect to
matters relating hereto.  Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.  Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against any Loan Party or its properties in the courts
of any jurisdiction.


 


(b) 
Each of SSCC and the Borrower hereby irrevocably and unconditionally waives, to
the fullest extent permitted by law, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or the other Loan Documents in any New York State or
Federal court or, as applicable, the U.S. Bankruptcy Court.  Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.


 


(c) 
Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 9.01.  Nothing in this Agreement will affect the
right of any party to this Agreement to serve process in any other manner
permitted by law.


 


SECTION 9.16.
Certain Relationships.  Nothing
contained in this Agreement and no action taken by any the Administrative Agent
or any Lender pursuant hereto shall be deemed to constitute the Administrative
Agent or the Lenders a partnership, an association, a joint venture or other
entity.  None of the Administrative Agent
or the Lenders has any fiduciary relationship with or any fiduciary duty to
SSCC or the Borrower arising out of or in connection with this Agreement or any
of the other Loan Documents, and the relationship between the Administrative
Agent and the Lenders, on the one hand, and the Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor.


 


SECTION 9.17.
USA Patriot Act.  Each Lender and
the Administrative Agent (for itself and not on behalf of any Lender) subject
to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the “Act”) hereby notifies each Loan
Party that pursuant to the Act it is required to obtain, verify and record information
that identifies such Loan Party, which information includes the name and
address of such Loan Party and other information that will allow such Lender or
the Administrative Agent, as applicable, to identify such Loan Party in
accordance with the Act.


 


SECTION 9.18.
Concerning the Intercreditor Agreement. 
The Lenders acknowledge that the Revolving Facility is secured by Liens
on the Term Facility Collateral and the Revolving Facility Collateral and that
the Permitted Second Lien Notes will be secured by Liens on the Term Facility
Collateral and the Revolving Facility


 


120

















 


Collateral.  In connection with the Borrower’s entry into
the Revolving Facility and/or the incurrence of any Permitted Second Lien
Notes, the Administrative Agent shall enter into the Intercreditor Agreement,
establishing the relative rights of the Secured Parties, the secured parties
under the Revolving Facility and the secured parties under the Permitted Second
Lien Notes, as the case may be, with respect to the Term Facility Collateral
and the Revolving Facility Collateral and such amendments to the Security
Documents as shall be appropriate or necessary to cause the Permitted Second
Lien Notes to be secured as set forth in the definition of the term “Permitted
Second Lien Notes”, provided that the Administrative Agent has received
evidence reasonably satisfactory to the Administrative Agent that the terms of
the Permitted Second Lien Notes and the definitive documentation entered into
in connection therewith comply with the terms hereof.  Each Lender hereby irrevocably (i) consents
to the treatment of Liens to be provided for under the Intercreditor Agreement
or the amended Security Documents, as the case may be, (ii) authorizes and
directs the Administrative Agent to execute and deliver the Intercreditor
Agreement and any documents relating thereto, in each case, on behalf of such
Lender and without any further consent, authorization or other action by such
Lender, (iii) agrees that, upon execution and delivery thereof, such
Lender shall be bound by the terms of the Intercreditor Agreement as if it were
a signatory thereto and will take no action contrary to the provisions of the
Intercreditor Agreement and (iv) agrees that no Lender shall have any
right of action whatsoever against the Administrative Agent as a result of any
action taken by the Administrative Agent pursuant to this Section or in
accordance with the terms of the Intercreditor Agreement.  Each Lender hereby further irrevocably
authorizes and directs the Administrative Agent to enter into such amendments,
supplements or other modifications to the Intercreditor Agreement in connection
with any extension, renewal or refinancing of any Loans or any Permitted Second
Lien Notes as are reasonably acceptable to the Administrative Agent to give
effect thereto, in each case, on behalf of such Lender and without any further
consent, authorization or other action by such Lender.  The Administrative Agent shall have the
benefit of the provisions of Article VIII with respect to all
actions taken by it pursuant to this Section to the full extent thereof.


 


SECTION 9.19.
Qualified Secured Hedging Agreements and Qualified Secured Cash Management
Agreements.  At any time prior to or
within 15 days after any Loan Party or any Subsidiary enters into any Hedging
Agreement or Cash Management Agreement, or in the case of Hedging Agreements or
Cash Management Agreements in effect on the Funding Date, within 15 days of the
Funding Date, if the applicable Loan Party or Subsidiary and counterparty
desire that the monetary obligations in respect of such Hedging Agreement or
the Cash Management Services Obligations in respect of such Cash Management
Agreement be treated as an “Obligation” hereunder with rights in respect of
payment of proceeds of the Collateral in accordance with the waterfall
provisions set forth in the applicable Security Documents, the Borrower may
notify the Administrative Agent in writing (to be acknowledged by the
Administrative Agent) that (x) such Hedging Agreement is to be a “Qualified
Secured Hedging Agreement” or (y) such Cash Management Agreement is to
be a “Qualified Secured Cash Management Agreement”, so long as the
following conditions are satisfied:


 


121

















 


(i) in
the case of a Hedging Agreement, such Hedging Agreement is either (x) in
effect on the Funding Date with a counterparty that is a Lender or an Affiliate
of a Lender, a lender under the Revolving Facility or an Affiliate of such a
lender, in each case as of the Funding Date or (y) entered into after the
Funding Date with any counterparty that is a Lender or an Affiliate of a Lender
or a lender under the Revolving Facility or an Affiliate of such a lender at
the time such Hedging Agreement is entered into; and


 


(ii) in
the case of Cash Management Agreements, such Cash Management Agreement is with
a counterparty that is a Lender or an Affiliate of a Lender or a lender under
the Revolving Facility or an Affiliate of such a lender;


 


provided that no such
Qualified Secured Hedging Agreement or Qualified Secured Cash Management
Agreement can be secured on a first lien basis by the Revolving Facility
Collateral (and any request under this Section 9.19 will be deemed
to be a representation by the Borrower to such effect); and provided  further
that no monetary obligations in respect of any Qualified Secured Hedging
Agreement or Qualified Secured Cash Management Agreement shall be treated as “Obligations”
hereunder or receive any benefit of the designation under this Section 9.19
after the principal of and interest on each Loan and all Fees payable hereunder
have been paid in full and all Commitments and other lending commitments
hereunder have expired or terminated.


 


Until
such time as the Borrower delivers (and the Administrative Agent acknowledges)
such notice as described above, such Hedging Agreement or Cash Management
Agreement shall not constitute a Qualified Secured Hedging Agreement or
Qualified Secured Cash Management Agreement, as the case may be.  The parties hereto understand and agree that
the provisions of this Section 9.19 are made for the benefit of the
Lenders and their Affiliates and the lenders under the Revolving Facility and
their Affiliates, which become parties to Qualified Secured Hedging Agreements
or Qualified Secured Cash Management Agreements, as applicable, and agree that
any amendments or modifications to the provisions of this Section 9.19
shall not be effective with respect to any Qualified Secured Hedging Agreement
or Qualified Secured Cash Management Agreement, as the case may be, entered
into prior to the date of the respective amendment or modification of this Section 9.19
(without the written consent of the relevant parties thereto).  Notwithstanding any such designation of a
Hedging Agreement as a Qualified Secured Hedging Agreement or a Cash Management
Agreement as a Qualified Secured Cash Management Agreement, no provider or
holder of any such Qualified Secured Hedging Agreement or Qualified Secured
Cash Management Agreement shall have any voting or approval rights hereunder
(or be deemed a Lender) solely by virtue of its status as the provider of such
agreements or the Obligations owing thereunder, nor shall their consent be
required (other than in their capacities as a Lender to the extent applicable)
for any matter hereunder or under any of the other Loan Documents, including
without limitation, as to any matter relating to the Collateral or the release
of Collateral or Guarantors.  The
Administrative Agent accepts no responsibility and shall have no liability for
the calculation of the exposure owing by the Loan Parties under any such
Qualified Secured Hedging Agreement and/or Qualified Secured Cash Management
Agreement, and shall be entitled in all cases to rely on the applicable


 


122

















 


counterparty
and the applicable Loan Party party to such agreement for the calculation
thereof.  Such counterparty and the
applicable Loan Party party to any such agreement each agrees to provide the
Administrative Agent with the calculations of all such exposures, if any, at
such times as the Administrative Agent shall reasonably request, and in any
event, not less than monthly (unless other agreed to by the Administrative
Agent).


 


123

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.


 


	
   

  	
  SMURFIT-STONE
  CONTAINER CORPORATION,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/
  Timothy T. Griffith

  
	
   

  	
   

  	
  Name:
  Timothy T. Griffith

  
	
   

  	
   

  	
  Title:
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SMURFIT-STONE
  CONTAINER ENTERPRISES, INC.,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/
  Timothy T. Griffith

  
	
   

  	
   

  	
  Name:
  Timothy T. Griffith

  
	
   

  	
   

  	
  Title:
  Vice President and Treasurer

  



 


[Signature Page to the Credit Agreement]


 

















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A.,

  as the Administrative Agent and a Lender,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/
  Peter S. Predun

  
	
   

  	
   

  	
  Name:
  Peter S. Predun

  
	
   

  	
   

  	
  Title:
  Executive Director

  



 


[Signature Page to the Credit Agreement]


 

















 


SIGNATURE PAGE TO


THE CREDIT AGREEMENT


SMURFIT-STONE CONTAINER ENTERPRISES, INC.


 


 


	
   

  	
  Bank
  of America, N.A.

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/
  Anne Skoronski

  
	
   

  	
   

  	
  Name:
  Anne Skoronski

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  For
  any Lender requiring a second signature line:

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


[Signature Page to the Credit Agreement]


 


124

















 


 


SIGNATURE PAGE TO


THE CREDIT AGREEMENT


SMURFIT-STONE CONTAINER ENTERPRISES, INC.


 


 


	
   

  	
  Deutsche
  Bank Trust Company, Americas

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/
  Anca Trifan

  
	
   

  	
   

  	
  Name:
  Anca Trifan

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  /s/
  Keith C. Braun

  
	
   

  	
   

  	
  Name:
  Keith C. Braun

  
	
   

  	
   

  	
  Title:
  Managing Director

  



 


[Signature Page to the Credit Agreement]


 


















 





 


SCHEDULES TO CREDIT AGREEMENT


 


among


 


SMURFIT-STONE CONTAINER CORPORATION,


 


SMURFIT-STONE CONTAINER ENTERPRISES, INC.,


as
Borrower,


 


THE OTHER LOAN PARTIES PARTY HERETO,


 


THE LENDERS PARTY HERETO,


 


and


 


JPMORGAN CHASE BANK,


 


as
Administrative Agent


 






 


J.P. MORGAN SECURITIES INC.,


DEUTSCHE BANK SECURITIES INC.


and


BANC OF AMERICA SECURITIES LLC,

as Joint Bookrunners and Co-Lead Arrangers,


 


DEUTSCHE BANK SECURITIES INC.,

as Syndication Agent,


and


BANC OF AMERICA SECURITIES LLC,


as Documentation Agent




 





 

















 


Schedule 1.01(a)


 


Material Subsidiaries


 


	
  Subsidiary

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  	
  Equity Ownership

  
	
  Smurfit-Stone Container
  Enterprises, Inc.

  	
   

  	
  Delaware

  	
   

  	
  Smurfit-Stone Container
  Corporation – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-Stone Container
  Canada Inc

  	
   

  	
  Nova Scotia

  	
   

  	
  Smurfit-Stone Container
  Enterprises, Inc. – 100% Common

   

  Stone Container Finance
  Company of  Canada – Class C
  Shares

   

  Stone Container Finance
  Company of  Canada II – Class C
  Shares

   

  SLP Finance General
  Partnership –  Class D Shares

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MBI
  Limited/Limitée

  	
   

  	
  New
  Brunswick

  	
   

  	
  Smurfit-Stone
  Container Canada Inc. - 50%

   

  3083527
  Nova Scotia Company – 50%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-MBI

  	
   

  	
  Ontario

  	
   

  	
  Smurfit-Stone
  Container Canada Inc. – 49.9999%

   

  3083527
  Nova Scotia Company – 49.9999%

   

  MBI
  Limited/Limitée - .0002%

  



 

















 


Schedule
1.01(b)


 


*Mortgaged Properties


 






*The
information included in this Schedule 1.01(b) has been omitted pursuant to a
request for confidential treatment and has been filed separately with the
Securities and Exchange Commission.


 

















 


Schedule 2.01


 


Commitments


 


	
   

  	
   

  	
  Term Loan

  Commitment

  	
   

  
	
  JPMorgan Chase Bank, N.A.

  	
   

  	
  $

  	
  480,000,000.00

  	
   

  
	
  Deutsche Bank Trust Company Americas

  	
   

  	
  $

  	
  480,000,000.00

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  240,000,000.00

  	
   

  
	
  Total Term Loan Commitments

  	
   

  	
  $

  	
  1,200,000,000.00

  	
   

  



 

















 


Schedule 3.07


 


Certain Title Matters


 


None.


 

















 


Schedule 3.08


 


Subsidiaries


 


	
  Subsidiary

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  	
  Equity Ownership

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A.         Domestic
  Subsidiaries

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-Stone Container
  Enterprises, Inc.

  	
   

  	
  Delaware

  	
   

  	
  Smurfit-Stone Container
  Corporation – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lot 24D Redevelopment
  Corporation

  	
   

  	
  Missouri

  	
   

  	
  Smurfit-Stone Container
  Enterprises, Inc – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Atlanta & St.
  Andrews Bay  Railroad Company

  	
   

  	
  Florida

  	
   

  	
  Smurfit-Stone Container
  Enterprises, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cameo
  Container  Corporation

  	
   

  	
  Illinois

  	
   

  	
  Smurfit-Stone
  Container Enterprises, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stone
  International Services  Corporation

  	
   

  	
  Delaware

  	
   

  	
  Smurfit-Stone
  Container Enterprises, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Calpine
  Corrugated, LLC

  	
   

  	
  California

  	
   

  	
  Smurfit-Stone
  Container Enterprises, Inc. – 90%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stone
  Global, Inc.

  	
   

  	
  Delaware

  	
   

  	
  Smurfit-Stone
  Container Enterprises, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stone
  Connecticut  Paperboard
  Properties, Inc.

  	
   

  	
  Delaware

  	
   

  	
  Smurfit-Stone
  Container Enterprises, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-Stone
  Puerto Rico, Inc.

  	
   

  	
  Puerto
  Rico

  	
   

  	
  Smurfit-Stone
  Container Enterprises, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit
  Newsprint Corporation

  	
   

  	
  Delaware

  	
   

  	
  Smurfit-Stone
  Container Enterprises, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SLP
  Finance I, LLC

  	
   

  	
  Delaware

  	
   

  	
  Smurfit-Stone
  Container Enterprises, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SLP
  Finance II, LLC

  	
   

  	
  Delaware

  	
   

  	
  Smurfit-Stone
  Container Enterprises, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Timber
  Capital Holdings  LLC

  	
   

  	
  Delaware

  	
   

  	
  Smurfit-Stone
  Container Enterprises, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Timber Note Holdings LLC

  	
   

  	
  Delaware

  	
   

  	
  Timber Capital Holdings
  LLC – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SMBI
  Inc.

  	
   

  	
  Delaware

  	
   

  	
  Smurfit-MBI
  - 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.         Canadian
  Subsidiaries

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3242796
  Nova Scotia Company

  	
   

  	
  Nova
  Scotia

  	
   

  	
  Stone
  Global, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3242795
  Nova Scotia Company

  	
   

  	
  Nova
  Scotia

  	
   

  	
  Stone
  Global, Inc. – 100%

  



 

















 


	
  Subsidiary

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  	
  Equity Ownership

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [NewCanco
  Partnership](1)

  	
   

  	
  Ontario

  	
   

  	
  3242796
  Nova Scotia Company – 99%

   

  3242795
  Nova Scotia Company– 1%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stone
  Container Finance  Company of Canada

  	
   

  	
  Nova
  Scotia

  	
   

  	
  Smurfit-Stone
  Container Enterprises, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stone
  Container Finance  Company of Canada II

  	
   

  	
  Nova
  Scotia

  	
   

  	
  Smurfit-Stone
  Container Enterprises, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-Stone Container  Canada Inc.

  	
   

  	
  Nova Scotia

  	
   

  	
  Smurfit-Stone Container Enterprises, Inc. – 100%

   

  Stone Container Finance Company of  Canada –
  Class C Shares

   

  Stone Container Finance Company of  Canada II –
  Class C Shares

   

  SLP Finance General Partnership –  Class D
  Shares

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SLP
  Finance General Partnership

  	
   

  	
  Quebec

  	
   

  	
  SLP
  Finance I, LLC – 50%

   

  SLP
  Finance II, LLC – 50%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3083527 Nova Scotia  Company

  	
   

  	
  Nova Scotia

  	
   

  	
  Smurfit-Stone Container
  Canada Inc. - 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MBI Limited/Limitée

  	
   

  	
  New Brunswick

  	
   

  	
  Smurfit-Stone Container
  Canada Inc. - 50%

   

  3083527 Nova Scotia
  Company – 50%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-MBI

  	
   

  	
  Ontario

  	
   

  	
  Smurfit-Stone
  Container Canada Inc. – 49.9999%

   

  3083527
  Nova Scotia Company – 49.9999%

   

  MBI
  Limited/Limitée - .0002%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  St. Laurent Display and
  Packaging Inc.

  	
   

  	
  Ontario

  	
   

  	
  Smurfit-Stone Container
  Canada Inc. - 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stone
  Venepal (Celgar) Pulp,  Inc.

  	
   

  	
  Canada
  (federal)

  	
   

  	
  Smurfit-Stone
  Container Canada Inc. - 45%

   

  Celgar
  Investments, Inc. - 45%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  639647
  British Columbia  Ltd.

  	
   

  	
  British
  Columbia

  	
   

  	
  Smurfit-MBI
  - 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Francobec Company

  	
   

  	
  Nova Scotia

  	
   

  	
  SLP Finance General
  Partnership - 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  605681 N.B. Inc.

  	
   

  	
  New Brunswick

  	
   

  	
  SLP Finance General
  Partnership - 100%

  



 






(1) To
be formed prior to the Closing Date.


 

















 


	
  Subsidiary

  	
   

  	
  Jurisdiction of

  Organization

  	
   

  	
  Equity Ownership

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.C. Shipper Supplies Ltd.

  	
   

  	
  British Columbia

  	
   

  	
  639647 British Columbia
  Ltd. - 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Specialty
  Containers Inc.

  	
   

  	
  Alberta

  	
   

  	
  639647
  British Columbia Ltd. - 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.         Latin
  American Subsidiaries

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stone Container de Mexico  S. de R.L. de
  C.V.

  	
   

  	
  Mexico

  	
   

  	
  Smurfit-Stone Container
  Enterprises, Inc. – 99.994%

   

  Cameo Container
  Corporation - .006%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CCA
  de Baja California S.A.  de C.V.

  	
   

  	
  Mexico

  	
   

  	
  Smurfit-Stone
  Container Enterprises, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.         Pacific
  Subsidiaries

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stone
  Truepenny International, Inc.

  	
   

  	
  British
  Virgin Islands

  	
   

  	
  Smurfit-Stone
  Container Enterprises, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Xiamen Stone Millennium  Packaging &
  Paper  Industries Co. Ltd.

  	
   

  	
  China

  	
   

  	
  Smurfit-Stone Packaging (Dongguan) Co., Ltd. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-Stone i2i Design  Center, Ltd.

  	
   

  	
  British Virgin Islands

  	
   

  	
  Stone Truepenny
  International, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-Stone China  Trading, Ltd.

  	
   

  	
  British Virgin Islands

  	
   

  	
  Stone Truepenny
  International, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-Stone
  (Asia) Limited

  	
   

  	
  Hong
  Kong

  	
   

  	
  Stone
  Truepenny International, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-Stone
  Packaging (Dongguan) Co., Ltd.

  	
   

  	
  China

  	
   

  	
  Smurfit-Stone
  (Asia) Limited – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-Stone
  i2i (China)

  	
   

  	
  China

  	
   

  	
  Smurfit-Stone
  (Asia) Limited – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-Stone
  HY Holdings, Ltd.

  	
   

  	
  British
  Virgin Islands

  	
   

  	
  Stone
  Truepenny International, Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Celgar
  Investments, Inc.

  	
   

  	
  British
  Virgin Islands

  	
   

  	
  Smurfit-Stone
  Container Canada Inc. – 100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E.European
  Subsidiaries

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-Stone
  Recycling International Cooperatief U.A.

  	
   

  	
  Netherlands

  	
   

  	
  Smurfit-Stone
  Container Enterprises, Inc. – 99%

   

  Stone
  Global, Inc. – 1%

  



 

















 


Schedule 3.09


 


Litigation and Compliance with Laws


 


1.               In 2009, a lawsuit was
filed in the United States District Court for the Northern District of Illinois
against the four individual committee members for the Administrative Committee
(“Administrative Committee”) of the Company’s savings plans and Patrick
Moore, our Chief Executive Officer (together, the “Defendants”).  The suit alleges violations of the Employee
Retirement Income Security Act (“ERISA”) (the “2009 ERISA Case”) between
January 2008 and the date it was filed. 
The plaintiffs in the 2009 ERISA Case brought the complaint on behalf of
themselves and a class of similarly situated participants and beneficiaries of
four of our savings plans (the “Savings Plans”).  The plaintiffs assert that the Defendants
breached their fiduciary duties to the Savings Plans’ participants and
beneficiaries by allegedly making imprudent investments with the Savings Plans’
assets, making misrepresentations and failing to disclose material adverse
facts concerning the Company’s business conditions, debt management and
viability, and not taking appropriate action to protect the Savings Plans’
assets.  Even though the Company is not a
named defendant in the 2009 ERISA Case, management believes that any
indemnification obligations to the Defendants would be covered by applicable
insurance.


 


2.               On January 11,
2010, a second ERISA class action lawsuit was filed in the United States
District Court for the Western District of Missouri.  The defendants in this case are the
individual committee members for the Administrative Committee, several other of
the Company’s executives and the individual members of its Board of
Directors.  The suit has similar
allegations as the 2009 ERISA Case described above, with the addition of breach
of fiduciary duty claims related to our pension plans.  The Company expects that both of these
matters will be consolidated in some manner as they purport to represent a
similar class of employees and former employees and seek recovery under similar
allegations and any of the Company’s indemnification obligations would be
covered by applicable insurance.


 

















 


Schedule 3.14(b)


 


Canadian Pension Plan Matters


 


Unpaid
Contributions


 


SSC Canada and the other Canadian Subsidiaries have suspended pension
special payments (to amortize unfunded actuarial liabilities and solvency
deficiencies) since January 26, 2009. Aggregate minimum outstanding
special payments are estimated to C$39,717,264, excluding interest, as of April 30,
2010.


 


Unfunded Actuarial Liabilities/Solvency Deficiencies (as of the date
of the most recent actuarial valuation filed with Governmental Authorities)


 


	
  Plan

  	
   

  	
  Valuation date

  	
   

  	
  Solvency deficiency

  	
   

  	
  Unfunded actuarial

  liability

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SSCC Plan

  	
   

  	
  December 31, 2006(2)

  	
   

  	
  C$

  	
  49,406,800

  	
   

  	
  C$

  	
  14,451,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SSCC (St-Laurent) Union

  	
   

  	
  December 31, 2006(3)

  	
   

  	
  C$

  	
  31,009,000

  	
   

  	
  C$

  	
  6,465,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit – MBI Union

  	
   

  	
  December 31, 2008

  	
   

  	
  C$

  	
  44,072,600

  	
   

  	
  C$

  	
  9,763,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit – MBI Non-Union

  	
   

  	
  December 31, 2006

  	
   

  	
  C$

  	
  11,686,800

  	
   

  	
  C$

  	
  5,058,700

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit – MBI Executive

  	
   

  	
  December 31, 2007

  	
   

  	
  C$

  	
  136,600

  	
  (4)

  	
  C$

  	
  1,121,800

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Forest & Sawmill

  	
   

  	
  December 31, 2006

  	
   

  	
  C$

  	
  54,800

  	
   

  	
  C$

  	
  16,800

  	
   

  



 






(2) A cost certificate as of December 31, 207 revealed an
additional solvency deficiency of C$255,900 and an additional unfunded
actuarial liability of C$452,900.


(3) A cost certificate as of June 1, 2008 revealed an
additional solvency deficiency of C$485,800 and an additional unfunded
actuarial liability of C$524,100.


(4) Termination deficiency: C$1,161,800.


 

















 


Schedule 3.15


 


Environmental Matters


 


1.               Various federal, state and
local governmental authorities have developed and maintain numerous databases
or lists of environmental information, including lists of leaking underground
storage tanks, landfill facilities, hazardous waste sites and the like.  The information in these databases may
contain errors, and certain databases and lists are posted for public viewing
without the opportunity for property owners and operators to correct any errors
that appear in them.  Further, the
inclusion of a property on an environmental database or list maintained by a
governmental agency, in and of itself, may not trigger the need for
investigation or remediation.  To the
knowledge of SSCC and the Borrower, the following Real Properties appear on the
Comprehensive Environmental Response, Compensation, Liability Information
System List (“CERCLIS”) maintained by the United States Environmental
Protection Agency (“EPA”):


 


(a)                                  47 Maple Street, Mansfield,
Massachusetts -  CERCLIS – No Further
Remedial Action Planned


 


(b)                                 910 Industrial Street,
Hopewell, Virginia - CERCLIS – No Further Remedial Action Planned


 


(c)                                  1 South Everett Street,
Panama City, Florida - CERCLIS Archive – No Further Remedial Action Planned


 


(d)                                 19th & Main Street,
West Point, Virginia - CERCLIS Archive – No Further Remedial Action Planned


 
















 


Schedule 3.17(a)


 


UCC Lien Filing Offices


 


1.               Secretary of the State of
Delaware


 

















 


Schedule 3.18


 


Labor Matters


 


None.


 

















 


Schedule 3.19


 


Real Properties


 


	
   

  	
   

  	
  Property Type

  	
   

  	
  Property Address

  
	
  1.

  	
   

  	
  Converting
  Plant

  	
   

  	
  3200 Pinson Valley Parkway

  
	
   

  	
   

  	
   

  	
   

  	
  Birmingham, AL 35217

  
	
   

  	
   

  	
   

  	
   

  	
  (Jefferson County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Mill

  	
   

  	
  1611 County Road 85 

  
	
   

  	
   

  	
   

  	
   

  	
  PO Box 508

  
	
   

  	
   

  	
   

  	
   

  	
  Stevenson, AL 35772

  
	
   

  	
   

  	
   

  	
   

  	
  (Jackson County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Converting
  Plant

  	
   

  	
  2200 Industrial Drive

  
	
   

  	
   

  	
   

  	
   

  	
  Jonesboro, AR 72401

  
	
   

  	
   

  	
   

  	
   

  	
  (Craighead County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Converting
  Plant

  	
   

  	
  2021 South 5th Street

  
	
   

  	
   

  	
   

  	
   

  	
  Rogers, AR 72758

  
	
   

  	
   

  	
   

  	
   

  	
  (Benton County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Converting
  Plant

  	
   

  	
  201 S. Hillview Drive

  
	
   

  	
   

  	
   

  	
   

  	
  Milpitas, CA 95035

  
	
   

  	
   

  	
   

  	
   

  	
  (Santa Clara County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Converting
  Plant

  	
   

  	
  1078 Merrill Street

  
	
   

  	
   

  	
   

  	
   

  	
  Salinas, CA 93901

  
	
   

  	
   

  	
   

  	
   

  	
  (Monterey County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Converting
  Plant

  	
   

  	
  185 N. Smith Street

  
	
   

  	
   

  	
   

  	
   

  	
  Corona, CA 91720

  
	
   

  	
   

  	
   

  	
   

  	
  (Riverside County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Converting
  Plant

  	
   

  	
  13833 E. Freeway Drive

  
	
   

  	
   

  	
   

  	
   

  	
  Santa Fe Springs, CA 90670

  
	
   

  	
   

  	
   

  	
   

  	
  (Los Angeles County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Converting
  Plant

  	
   

  	
  15300 Marquardt Avenue

  
	
   

  	
   

  	
   

  	
   

  	
  Santa Fe Springs, CA 90670

  
	
   

  	
   

  	
   

  	
   

  	
  (Los Angeles County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Converting
  Plant

  	
   

  	
  5050 E. 50th Avenue

  
	
   

  	
   

  	
   

  	
   

  	
  Denver, CO 80216

  
	
   

  	
   

  	
   

  	
   

  	
  (Denver County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  Mill

  	
   

  	
  125 Depot Road

  
	
   

  	
   

  	
   

  	
   

  	
  Uncasville, CT 06832

  
	
   

  	
   

  	
   

  	
   

  	
  (New London County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  Converting
  Plant

  	
   

  	
  1400 West Tradeport Drive

  
	
   

  	
   

  	
   

  	
   

  	
  Jacksonville, FL 32218

  
	
   

  	
   

  	
   

  	
   

  	
  (Duval County)

  



 

















 


	
   

  	
   

  	
  Property Type

  	
   

  	
  Property Address

  
	
  13.

  	
   

  	
  Mill

  	
   

  	
  1 Everitt Avenue

  
	
   

  	
   

  	
   

  	
   

  	
  Panama City, FL 32401

  
	
   

  	
   

  	
   

  	
   

  	
  (Bay County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  Mill
  and Office

  	
   

  	
  9469 Eastport Road

  
	
   

  	
   

  	
   

  	
   

  	
  Jacksonville, FL 32218

  
	
   

  	
   

  	
   

  	
   

  	
  (Duval County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
   

  	
  Mill

  	
   

  	
  600 N. 8th Street

  
	
   

  	
   

  	
   

  	
   

  	
  Fernandina Beach, FL 32034

  
	
   

  	
   

  	
   

  	
   

  	
  (Nassau County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
   

  	
  Converting
  Plant

  	
   

  	
  1995 Lithonia Industrial
  Boulevard

  
	
   

  	
   

  	
   

  	
   

  	
  Atlanta, GA 30058

  
	
   

  	
   

  	
   

  	
   

  	
  (DeKalb County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  17.

  	
   

  	
  Converting
  Plant

  	
   

  	
  65 Enterprise Boulevard SW

  
	
   

  	
   

  	
   

  	
   

  	
  Atlanta, GA 30336

  
	
   

  	
   

  	
   

  	
   

  	
  (Fulton County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  18.

  	
   

  	
  Converting
  Plant

  	
   

  	
  6180 Jersey Alcovy Road

  
	
   

  	
   

  	
   

  	
   

  	
  Covington, GA 30209

  
	
   

  	
   

  	
   

  	
   

  	
  (Newton County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  19.

  	
   

  	
  Converting
  Plant

  	
   

  	
  2300 Bridgeport Drive

  
	
   

  	
   

  	
   

  	
   

  	
  Sioux City, IA 51111

  
	
   

  	
   

  	
   

  	
   

  	
  (Woodbury County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  20.

  	
   

  	
  Converting
  Plant

  	
   

  	
  1540 & 1601 Tri View
  Avenue

  
	
   

  	
   

  	
   

  	
   

  	
  Sioux City, IA 51103

  
	
   

  	
   

  	
   

  	
   

  	
  (Woodbury County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21.

  	
   

  	
  Converting
  Plant

  	
   

  	
  3800 Dixon Street

  
	
   

  	
   

  	
   

  	
   

  	
  Des Moines, IA 50313

  
	
   

  	
   

  	
   

  	
   

  	
  (Polk County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  22.

  	
   

  	
  Converting
  Plant

  	
   

  	
  1900 Foss Park Avenue

  
	
   

  	
   

  	
   

  	
   

  	
  North Chicago, IL 60064

  
	
   

  	
   

  	
   

  	
   

  	
  (Lake County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  23.

  	
   

  	
  Converting
  Plant

  	
   

  	
  1415 West 44th Street

  
	
   

  	
   

  	
   

  	
   

  	
  Chicago, IL 60609

  
	
   

  	
   

  	
   

  	
   

  	
  (Cook County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  24.

  	
   

  	
  Converting
  Plant

  	
   

  	
  1815 Morrissey Drive

  
	
   

  	
   

  	
   

  	
   

  	
  Bloomington, IL 61702

  
	
   

  	
   

  	
   

  	
   

  	
  (McLean County)

  



 

















 


	
   

  	
   

  	
  Property Type

  	
   

  	
  Property Address

  
	
  25.

  	
   

  	
  Converting
  Plant

  	
   

  	
  Sixth & Zschokke Streets

  
	
   

  	
   

  	
   

  	
   

  	
  Highland, IL 62249

  
	
   

  	
   

  	
   

  	
   

  	
  (Madison County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  26.

  	
   

  	
  Converting
  Plant

  	
   

  	
  775 Linwood Road

  
	
   

  	
   

  	
   

  	
   

  	
  Galesburg, IL 61402

  
	
   

  	
   

  	
   

  	
   

  	
  (Knox County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  27.

  	
   

  	
  Converting
  Plant

  	
   

  	
  7601 S. 78th Avenue

  
	
   

  	
   

  	
   

  	
   

  	
  Bridgeview, IL 60455

  
	
   

  	
   

  	
   

  	
   

  	
  (Cook County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  28.

  	
   

  	
  Office
  and 

  	
   

  	
  450 E. North Avenue

  
	
   

  	
   

  	
  Design/Engineering
  Center

  	
   

  	
  Carol Stream, IL 60188

  
	
   

  	
   

  	
   

  	
   

  	
  (Dupage County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  29.

  	
   

  	
  Converting
  Plant

  	
   

  	
  3101 State Street

  
	
   

  	
   

  	
   

  	
   

  	
  Columbus, IN 47202

  
	
   

  	
   

  	
   

  	
   

  	
  (Bartholomew County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  30.

  	
   

  	
  Converting
  Plant

  	
   

  	
  1925 Stone Court

  
	
   

  	
   

  	
   

  	
   

  	
  Mishawaka, IN 46545

  
	
   

  	
   

  	
   

  	
   

  	
  (St. Joseph County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  31.

  	
   

  	
  Mill

  	
   

  	
  Mill Street

  
	
   

  	
   

  	
   

  	
   

  	
  Hodge, LA 71247

  
	
   

  	
   

  	
   

  	
   

  	
  (Jackson Parish)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  32.

  	
   

  	
  Converting
  Plant

  	
   

  	
  47 Maple Street

  
	
   

  	
   

  	
   

  	
   

  	
  Mansfield, MA 02048

  
	
   

  	
   

  	
   

  	
   

  	
  (Bristol County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  33.

  	
   

  	
  Converting
  Plant

  	
   

  	
  320 Parker Street

  
	
   

  	
   

  	
   

  	
   

  	
  Springfield, MA 01129

  
	
   

  	
   

  	
   

  	
   

  	
  (Hampden County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  34.

  	
   

  	
  Converting
  Plant

  	
   

  	
  725 Pittman Road

  
	
   

  	
   

  	
   

  	
   

  	
  Baltimore, MD 21226

  
	
   

  	
   

  	
   

  	
   

  	
  (Anne Arundel County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  35.

  	
   

  	
  Converting
  Plant

  	
   

  	
  50 – 37th Avenue NE 

  
	
   

  	
   

  	
   

  	
   

  	
  Minneapolis, MN 55421

  
	
   

  	
   

  	
   

  	
   

  	
  (Hennepin County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  36.

  	
   

  	
  Converting
  Plant

  	
   

  	
  655 – 41st Avenue North 

  
	
   

  	
   

  	
   

  	
   

  	
  St. Cloud, MN 56301

  
	
   

  	
   

  	
   

  	
   

  	
  (Stearns County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  37.

  	
   

  	
  Converting
  Plant

  	
   

  	
  2705 West Battlefield Street

  
	
   

  	
   

  	
   

  	
   

  	
  Springfield, MO 65808

  
	
   

  	
   

  	
   

  	
   

  	
  (Greene County)

  



 

















 


	
   

  	
   

  	
  Property Type

  	
   

  	
  Property Address

  
	
  38.

  	
   

  	
  Converting
  Plant

  	
   

  	
  933 S. Kent Street

  
	
   

  	
   

  	
   

  	
   

  	
  Liberty, MO 64068

  
	
   

  	
   

  	
   

  	
   

  	
  (Clay County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  39.

  	
   

  	
  Converting
  Plant

  	
   

  	
  577 Goddard Avenue

  
	
   

  	
   

  	
   

  	
   

  	
  Chesterfield, MO 63005

  
	
   

  	
   

  	
   

  	
   

  	
  (St. Louis County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  40.

  	
   

  	
  Converting
  Plant

  	
   

  	
  324 Turner Industrial Park
  Road

  
	
   

  	
   

  	
   

  	
   

  	
  Saltillo/Tupelo, MS 38866

  
	
   

  	
   

  	
   

  	
   

  	
  (Lee County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  41.

  	
   

  	
  Converting
  Plant

  	
   

  	
  1679 S. Green Street

  
	
   

  	
   

  	
   

  	
   

  	
  Tupelo, MS 38802

  
	
   

  	
   

  	
   

  	
   

  	
  (Lee County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  42.

  	
   

  	
  Converting
  Plant

  	
   

  	
  8080 North Point Boulevard

  
	
   

  	
   

  	
   

  	
   

  	
  Winston-Salem, NC 27106

  
	
   

  	
   

  	
   

  	
   

  	
  (Forsyth County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  43.

  	
   

  	
  Converting
  Plant

  	
   

  	
  662 Washburn Switch Road

  
	
   

  	
   

  	
   

  	
   

  	
  Shelby, NC 28151

  
	
   

  	
   

  	
   

  	
   

  	
  (Cleveland County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  44.

  	
   

  	
  Converting
  Plant

  	
   

  	
  400 Albemarle Street 

  
	
   

  	
   

  	
   

  	
   

  	
  Lexington, NC 27292

  
	
   

  	
   

  	
   

  	
   

  	
  (Davidson County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  45.

  	
   

  	
  Converting
  Plant

  	
   

  	
  2606 Wilco Boulevard

  
	
   

  	
   

  	
   

  	
   

  	
  Wilson, NC 27893

  
	
   

  	
   

  	
   

  	
   

  	
  (Wilson County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  46.

  	
   

  	
  Converting
  Plant

  	
   

  	
  51 Robinson Street

  
	
   

  	
   

  	
   

  	
   

  	
  North Tonawanda, NY 14120

  
	
   

  	
   

  	
   

  	
   

  	
  (Niagara County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  47.

  	
   

  	
  Converting
  Plant

  	
   

  	
  975 N. Freedom Street 

  
	
   

  	
   

  	
   

  	
   

  	
  Ravenna, OH 44266

  
	
   

  	
   

  	
   

  	
   

  	
  (Portage County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  48.

  	
   

  	
  Converting
  Plant

  	
   

  	
  9960 Alliance Road 

  
	
   

  	
   

  	
   

  	
   

  	
  Cincinnati, OH 45242

  
	
   

  	
   

  	
   

  	
   

  	
  (Hamilton County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  49.

  	
   

  	
  Mill

  	
   

  	
  500 N. Fourth Street 

  
	
   

  	
   

  	
   

  	
   

  	
  Coshocton, OH 43812

  
	
   

  	
   

  	
   

  	
   

  	
  (Coshocton County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  50.

  	
   

  	
  Converting
  Plant

  	
   

  	
  1010 Mead Street

  
	
   

  	
   

  	
   

  	
   

  	
  (Mead & Kenskill) 

  
	
   

  	
   

  	
   

  	
   

  	
  Washington Courthouse, OH
  43160

  
	
   

  	
   

  	
   

  	
   

  	
  (Fayette County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  51.

  	
   

  	
  Converting Plant

  	
   

  	
  108
  S. Sycamore Street

  



 

















 


	
   

  	
   

  	
  Property Type

  	
   

  	
  Property Address

  
	
   

  	
   

  	
   

  	
   

  	
  Jefferson,
  Ohio 44047

  
	
   

  	
   

  	
   

  	
   

  	
  (Ashtabula
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  52.

  	
   

  	
  Converting Plant

  	
   

  	
  2111
  Old Shawnee Road

  
	
   

  	
   

  	
   

  	
   

  	
  Muskogee,
  OK 74403

  
	
   

  	
   

  	
   

  	
   

  	
  (Muskogee
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  53.

  	
   

  	
  Converting Plant

  	
   

  	
  9930
  N. Burgard Way

  
	
   

  	
   

  	
   

  	
   

  	
  Portland,
  OR 97203

  
	
   

  	
   

  	
   

  	
   

  	
  (Multnomah
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  54.

  	
   

  	
  Converting Plant

  	
   

  	
  2940
  Reach Road

  
	
   

  	
   

  	
   

  	
   

  	
  Williamsport,
  PA 17701

  
	
   

  	
   

  	
   

  	
   

  	
  (Lycoming
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  55.

  	
   

  	
  Converting Plant

  	
   

  	
  100
  McDonald Boulevard

  
	
   

  	
   

  	
   

  	
   

  	
  Philadelphia,
  PA 19014

  
	
   

  	
   

  	
   

  	
   

  	
  (Delaware
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  56.

  	
   

  	
  Converting Plant

  	
   

  	
  9820
  Blue Grass Road

  
	
   

  	
   

  	
   

  	
   

  	
  Philadelphia,
  PA 19114

  
	
   

  	
   

  	
   

  	
   

  	
  (Philadelphia
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  57.

  	
   

  	
  Converting Plant

  	
   

  	
  4461
  Highway 301 South

  
	
   

  	
   

  	
   

  	
   

  	
  Latta,
  SC 29565

  
	
   

  	
   

  	
   

  	
   

  	
  (Dillon
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  58.

  	
   

  	
  Mill

  	
   

  	
  Paper
  Mill Road

  
	
   

  	
   

  	
   

  	
   

  	
  Florence,
  SC 29501

  
	
   

  	
   

  	
   

  	
   

  	
  (Florence
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  59.

  	
   

  	
  Converting Plant

  	
   

  	
  100
  East Benson Road

  
	
   

  	
   

  	
   

  	
   

  	
  Sioux
  Falls, SD 57104

  
	
   

  	
   

  	
   

  	
   

  	
  (Minnehaha
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  60.

  	
   

  	
  Converting Plant

  	
   

  	
  1720
  Ninth Avenue

  
	
   

  	
   

  	
   

  	
   

  	
  Humboldt,
  TN 38343

  
	
   

  	
   

  	
   

  	
   

  	
  (Gibson
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  61.

  	
   

  	
  Converting Plant

  	
   

  	
  550
  South Avenue East 

  
	
   

  	
   

  	
   

  	
   

  	
  Collierville,
  TN 38017

  
	
   

  	
   

  	
   

  	
   

  	
  (Shelby
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  62.

  	
   

  	
  Converting Plant

  	
   

  	
  4512
  Anderson Road

  
	
   

  	
   

  	
   

  	
   

  	
  Knoxville,
  TN 37918

  
	
   

  	
   

  	
   

  	
   

  	
  (Knox
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  63.

  	
   

  	
  Converting Plant

  	
   

  	
  700
  Garrett Parkway

  
	
   

  	
   

  	
   

  	
   

  	
  Lewisburg,
  TN 37091

  
	
   

  	
   

  	
   

  	
   

  	
  (Marshall
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  64.

  	
   

  	
  Converting Plant

  	
   

  	
  6701
  South Freeway

  
	
   

  	
   

  	
   

  	
   

  	
  Fort
  Worth, TX 76134

  
	
   

  	
   

  	
   

  	
   

  	
  (Tarrant
  County)

  



 

















 


	
   

  	
   

  	
  Property Type

  	
   

  	
  Property Address

  
	
  65.

  	
   

  	
  Converting Plant

  	
   

  	
  13343
  Interstate 20 (I-20 & Hwy 155) 

  
	
   

  	
   

  	
   

  	
   

  	
  Tyler,
  TX 75710

  
	
   

  	
   

  	
   

  	
   

  	
  (Smith
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  66.

  	
   

  	
  Converting Plant

  	
   

  	
  8440
  Tewantin Drive 

  
	
   

  	
   

  	
   

  	
   

  	
  Houston,
  TX 77061

  
	
   

  	
   

  	
   

  	
   

  	
  (Harris
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  67.

  	
   

  	
  Converting Plant

  	
   

  	
  7350
  Stiles Road

  
	
   

  	
   

  	
   

  	
   

  	
  El
  Paso, TX 79915

  
	
   

  	
   

  	
   

  	
   

  	
  (El
  Paso County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  68.

  	
   

  	
  Converting Plant

  	
   

  	
  2302
  W. Marshall Drive

  
	
   

  	
   

  	
   

  	
   

  	
  Grand
  Prairie, TX 75051

  
	
   

  	
   

  	
   

  	
   

  	
  (Dallas
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  69.

  	
   

  	
  Mill

  	
   

  	
  19th and Main Streets

  
	
   

  	
   

  	
   

  	
   

  	
  West
  Point, Virginia 23181

  
	
   

  	
   

  	
   

  	
   

  	
  (King
  William County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  70.

  	
   

  	
  Mill

  	
   

  	
  910
  Industrial Street,

  
	
   

  	
   

  	
   

  	
   

  	
  Hopewell,
  VA 23860

  
	
   

  	
   

  	
   

  	
   

  	
  (City
  of Hopewell)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  71.

  	
   

  	
  Converting Plant

  	
   

  	
  Richmond
  North

  
	
   

  	
   

  	
   

  	
   

  	
  5700
  Lewis Road

  
	
   

  	
   

  	
   

  	
   

  	
  Sandston,
  VA 23150

  
	
   

  	
   

  	
   

  	
   

  	
  (Henrico
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  72.

  	
   

  	
  Converting Plant

  	
   

  	
  9400
  Heather Avenue

  
	
   

  	
   

  	
   

  	
   

  	
  Milwaukee,
  WI 53224

  
	
   

  	
   

  	
   

  	
   

  	
  (Milwaukee
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  73.

  	
   

  	
  Converting Plant

  	
   

  	
  2800
  W. Custer Avenue

  
	
   

  	
   

  	
   

  	
   

  	
  Milwaukee,
  WI 53209

  
	
   

  	
   

  	
   

  	
   

  	
  (Milwaukee
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  74.

  	
   

  	
  Converting Plant

  	
   

  	
  201
  Grove Street

  
	
   

  	
   

  	
   

  	
   

  	
  Castle
  Rock, WI 53910

  
	
   

  	
   

  	
   

  	
   

  	
  (Adams
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  75.

  	
   

  	
  Land only (15 acres)

  	
   

  	
  Hwy
  19 South

  
	
   

  	
   

  	
   

  	
   

  	
  Magnolia,
  AR

  
	
   

  	
   

  	
   

  	
   

  	
  (Columbia
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  76.

  	
   

  	
  Recycling Plant

  	
   

  	
  2710
  O Street

  
	
   

  	
   

  	
   

  	
   

  	
  Bakersfield,
  CA 93301

  
	
   

  	
   

  	
   

  	
   

  	
  (Kern
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  77.

  	
   

  	
  Recycling Plant

  	
   

  	
  20502
  S. Denker Street

  
	
   

  	
   

  	
   

  	
   

  	
  Torrance,
  CA 90501

  
	
   

  	
   

  	
   

  	
   

  	
  (Los
  Angeles County)

  



 
















 


	
   

  	
   

  	
  Property Type

  	
   

  	
  Property Address

  
	
  78.

  	
   

  	
  Converting Plant

  	
   

  	
  74
  Pickering Street

  
	
   

  	
   

  	
   

  	
   

  	
  Portland,
  CT 06480

  
	
   

  	
   

  	
   

  	
   

  	
  (Middlesex
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  79.

  	
   

  	
  Recycling Plant

  	
   

  	
  5111
  N. 26th Street

  
	
   

  	
   

  	
   

  	
   

  	
  Tampa,
  FL 33610

  
	
   

  	
   

  	
   

  	
   

  	
  (Hillsborough
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  80.

  	
   

  	
  Forest Resources Office

  	
   

  	
  1200
  Franklin Street

  
	
   

  	
   

  	
   

  	
   

  	
  Fernandina
  Beach, FL 32034

  
	
   

  	
   

  	
   

  	
   

  	
  (Nassau
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  81.

  	
   

  	
  Recycling Plant

  	
   

  	
  3021
  SW First Terrace

  
	
   

  	
   

  	
   

  	
   

  	
  Ft.
  Lauderdale, FL 33316

  
	
   

  	
   

  	
   

  	
   

  	
  (Broward
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  82.

  	
   

  	
  Recycling Plant

  	
   

  	
  1580
  W. Beaver Street

  
	
   

  	
   

  	
   

  	
   

  	
  Jacksonville,
  FL 33316

  
	
   

  	
   

  	
   

  	
   

  	
  (Duval
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  83.

  	
   

  	
  Land

  	
   

  	
  124
  Watts Street,

  
	
   

  	
   

  	
   

  	
   

  	
  Jacksonville,
  FL

  
	
   

  	
   

  	
   

  	
   

  	
  (Duval
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  84.

  	
   

  	
  Converting Plant

  	
   

  	
  2002
  E. 18th Street

  
	
   

  	
   

  	
   

  	
   

  	
  Jacksonville,
  FL 32206

  
	
   

  	
   

  	
   

  	
   

  	
  (Duval
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  85.

  	
   

  	
  Recycling Plant

  	
   

  	
  1311
  Walker Street

  
	
   

  	
   

  	
   

  	
   

  	
  Augusta,
  GA 30904

  
	
   

  	
   

  	
   

  	
   

  	
  (Augusta-Richmond
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  86.

  	
   

  	
  Recycling Plant

  	
   

  	
  626
  E. 111th Street

  
	
   

  	
   

  	
   

  	
   

  	
  Chicago,
  IL 60628

  
	
   

  	
   

  	
   

  	
   

  	
  (Cook
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  87.

  	
   

  	
  Converting Plant

  	
   

  	
  23315
  Young Road

  
	
   

  	
   

  	
   

  	
   

  	
  Joliet,
  IL 60434

  
	
   

  	
   

  	
   

  	
   

  	
  (Will
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  88.

  	
   

  	
  Recycling Plant

  	
   

  	
  417
  South 37th Avenue

  
	
   

  	
   

  	
   

  	
   

  	
  St.
  Charles, IL 60174

  
	
   

  	
   

  	
   

  	
   

  	
  (Kane
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  89.

  	
   

  	
  Recycling Plant

  	
   

  	
  1520
  North 5th Avenue

  
	
   

  	
   

  	
   

  	
   

  	
  Evansville,
  IN 47710

  
	
   

  	
   

  	
   

  	
   

  	
  (Vanderburgh
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  90.

  	
   

  	
  Recycling Plant

  	
   

  	
  510
  Division Street

  
	
   

  	
   

  	
   

  	
   

  	
  Kansas
  City, KS 66103

  
	
   

  	
   

  	
   

  	
   

  	
  (Wyandotte
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  91.

  	
   

  	
  Recycling Plant

  	
   

  	
  750
  S. 11th Street

  
	
   

  	
   

  	
   

  	
   

  	
  Louisville,
  KY 40245

  



 

















 


	
   

  	
   

  	
  Property Type

  	
   

  	
  Property Address

  
	
   

  	
   

  	
   

  	
   

  	
  (Jefferson
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  92.

  	
   

  	
  Converting Plant

  	
   

  	
  33677
  Costen Road

  
	
   

  	
   

  	
   

  	
   

  	
  Pocomoke
  City, MD 21851

  
	
   

  	
   

  	
   

  	
   

  	
  (Worcester
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  93.

  	
   

  	
  Mill

  	
   

  	
  One
  Superior Way

  
	
   

  	
   

  	
   

  	
   

  	
  Ontonagon,
  MI 49953

  
	
   

  	
   

  	
   

  	
   

  	
  (Ontonagon
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  94.

  	
   

  	
  Recycling Plant

  	
   

  	
  5505
  Natural Bridge

  
	
   

  	
   

  	
   

  	
   

  	
  St.
  Louis, MO 63120

  
	
   

  	
   

  	
   

  	
   

  	
  (St.
  Louis County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  95.

  	
   

  	
  Mill

  	
   

  	
  14377
  Pulp Mill Road

  
	
   

  	
   

  	
   

  	
   

  	
  Missoula,
  MT 59808

  
	
   

  	
   

  	
   

  	
   

  	
  (Missoula
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  96.

  	
   

  	
  Land Only (approximately

  	
   

  	
  55
  Schenck Street

  
	
   

  	
   

  	
  1 acre)

  	
   

  	
  North
  Tonawanda, NY 14120

  
	
   

  	
   

  	
   

  	
   

  	
  (Niagara
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  97.

  	
   

  	
  Warehouse

  	
   

  	
  52
  Campion Road

  
	
   

  	
   

  	
   

  	
   

  	
  New
  Hartford, NY 13413

  
	
   

  	
   

  	
   

  	
   

  	
  (Oneida
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  98.

  	
   

  	
  Converting Plant

  	
   

  	
  288
  South Illinois Avenue

  
	
   

  	
   

  	
   

  	
   

  	
  Mansfield,
  OH 44905

  
	
   

  	
   

  	
   

  	
   

  	
  (Richland
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  99.

  	
   

  	
  Recycling Plant

  	
   

  	
  1015
  Marion Road

  
	
   

  	
   

  	
   

  	
   

  	
  Columbus,
  OH 43207

  
	
   

  	
   

  	
   

  	
   

  	
  (Franklin
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  100.

  	
   

  	
  Recycling Plant

  	
   

  	
  6328
  SE 100th

  
	
   

  	
   

  	
   

  	
   

  	
  Portland,
  OR 97266

  
	
   

  	
   

  	
   

  	
   

  	
  (Multnomah
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  101.

  	
   

  	
  Recycling Plant

  	
   

  	
  707
  19th Avenue North

  
	
   

  	
   

  	
   

  	
   

  	
  Nashville,
  TN 37203

  
	
   

  	
   

  	
   

  	
   

  	
  (Davidson
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  102.

  	
   

  	
  Converting Plant

  	
   

  	
  1125
  Haley Road

  
	
   

  	
   

  	
   

  	
   

  	
  Murfreesboro,
  TN 37129

  
	
   

  	
   

  	
   

  	
   

  	
  (Rutherford
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  103.

  	
   

  	
  Converting Plant

  	
   

  	
  265
  W. Trigg Avenue

  
	
   

  	
   

  	
   

  	
   

  	
  Memphis,
  TN 38106

  
	
   

  	
   

  	
   

  	
   

  	
  (Shelby
  County)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  104.

  	
   

  	
  Chip Mill

  	
   

  	
  6367
  Kings Highway

  
	
   

  	
   

  	
   

  	
   

  	
  Keysville,
  VA 23947

  
	
   

  	
   

  	
   

  	
   

  	
  (Charlotte
  County)

  



 

















 


Additional Properties:


 




	
   

  	
   

  	
  County

  	
   

  	
  State

  	
   

  	
  Facility Name

  	
   

  	
  Acres

  	
   

  
	
  105.

  	
   

  	
  Baldwin

  	
   

  	
  AL

  	
   

  	
  Cow Dip Site

  	
   

  	
  3.0

  	
   

  
	
  106.

  	
   

  	
  Blount

  	
   

  	
  AL

  	
   

  	
  Snead Woodyard

  	
   

  	
  11.0

  	
   

  
	
  107.

  	
   

  	
  DeKalb

  	
   

  	
  AL

  	
   

  	
  Portersville Woodyard

  	
   

  	
  4.5

  	
   

  
	
  108.

  	
   

  	
  Escambia

  	
   

  	
  AL

  	
   

  	
  Huxford Woodyard

  	
   

  	
  62.9

  	
   

  
	
  109.

  	
   

  	
  Escambia

  	
   

  	
  AL

  	
   

  	
  Rock Creek Nursery

  	
   

  	
  267.0

  	
   

  
	
  110.

  	
   

  	
  Escambia

  	
   

  	
  AL

  	
   

  	
  Parker Farm Seed
  Orchard

  	
   

  	
  460.0

  	
   

  
	
  111.

  	
   

  	
  Henry

  	
   

  	
  AL

  	
   

  	
  Abbeville Woodyard

  	
   

  	
  20.0

  	
   

  
	
  112.

  	
   

  	
  Jackson

  	
   

  	
  AL

  	
   

  	
  Port Property

  	
   

  	
  4.2

  	
   

  
	
  113.

  	
   

  	
  Pike

  	
   

  	
  AL

  	
   

  	
  Troy Woodyard

  	
   

  	
  56.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  State Total

  	
   

  	
  888.6

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  114.

  	
   

  	
  Coconino

  	
   

  	
  AZ

  	
   

  	
  Williams Property

  	
   

  	
  35.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  State Total

  	
   

  	
  35.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  115.

  	
   

  	
  Trinity

  	
   

  	
  CA

  	
   

  	
  Burnt Ranch Sawmill

  	
   

  	
  94.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  State Total

  	
   

  	
  94.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  116.

  	
   

  	
  Alachua

  	
   

  	
  FL

  	
   

  	
  High Springs Seed
  Orchard

  	
   

  	
  234.0

  	
   

  
	
  117.

  	
   

  	
  Alachua

  	
   

  	
  FL

  	
   

  	
  Alachua Landfill

  	
   

  	
  543.0

  	
   

  
	
  118.

  	
   

  	
  Bay

  	
   

  	
  FL

  	
   

  	
  Sitel Woodyard

  	
   

  	
  155.0

  	
   

  
	
  119.

  	
   

  	
  Bradford

  	
   

  	
  FL

  	
   

  	
  Debris Pits

  	
   

  	
  20.5

  	
   

  
	
  120.

  	
   

  	
  Bradford

  	
   

  	
  FL

  	
   

  	
  Bradford Woodyard

  	
   

  	
  0.4

  	
   

  
	
  121.

  	
   

  	
  Bradford

  	
   

  	
  FL

  	
   

  	
  Railroad ROW

  	
   

  	
  22.6

  	
   

  
	
  122.

  	
   

  	
  Clay

  	
   

  	
  FL

  	
   

  	
  Maxville Chipmill

  	
   

  	
  366.3

  	
   

  
	
  123.

  	
   

  	
  Duval

  	
   

  	
  FL

  	
   

  	
  Pendarvis Tract

  	
   

  	
  160.0

  	
   

  
	
  124.

  	
   

  	
  Gadsen

  	
   

  	
  FL

  	
   

  	
  Gretna Woodyard

  	
   

  	
  2.3

  	
   

  
	
  125.

  	
   

  	
  Hardee

  	
   

  	
  FL

  	
   

  	
  Hardee Woodyard

  	
   

  	
  13.7

  	
   

  
	
  126.

  	
   

  	
  Madison

  	
   

  	
  FL

  	
   

  	
  Greenville Woodyard

  	
   

  	
  103.0

  	
   

  
	
  127.

  	
   

  	
  Jackson

  	
   

  	
  FL

  	
   

  	
  Cottondale Woodyard

  	
   

  	
  27.0

  	
   

  
	
  128.

  	
   

  	
  Nassau

  	
   

  	
  FL

  	
   

  	
  Kent Seed Orchard

  	
   

  	
  274.0

  	
   

  
	
  129.

  	
   

  	
  Nassau

  	
   

  	
  FL

  	
   

  	
  Cattle Dip Site

  	
   

  	
  7.1

  	
   

  
	
  130.

  	
   

  	
  Nassau

  	
   

  	
  FL

  	
   

  	
  Callahan Office

  	
   

  	
  214.0

  	
   

  
	
  131.

  	
   

  	
  Nassau

  	
   

  	
  FL

  	
   

  	
  Crawford Road Landfill

  	
   

  	
  516.0

  	
   

  
	
  132.

  	
   

  	
  Pasco

  	
   

  	
  FL

  	
   

  	
  Lacoochee Woodyard

  	
   

  	
  18.0

  	
   

  
	
  133.

  	
   

  	
  St Johns

  	
   

  	
  FL

  	
   

  	
  Conservation Easement

  	
   

  	
  583.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  State Total

  	
   

  	
  3,259.9

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  134.

  	
   

  	
  Screven

  	
   

  	
  GA

  	
   

  	
  Dover Woodyard

  	
   

  	
  6.1

  	
   

  
	
  135.

  	
   

  	
  Telfair

  	
   

  	
  GA

  	
   

  	
  McRae Chipmill

  	
   

  	
  11.8

  	
   

  






 

















 




	
   

  	
   

  	
  County

  	
   

  	
  State

  	
   

  	
  Facility Name

  	
   

  	
  Acres

  	
   

  
	
  136.

  	
   

  	
  Whitfield

  	
   

  	
  GA

  	
   

  	
  Dalton Woodyard

  	
   

  	
  11.9

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  State Total

  	
   

  	
  29.8

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  137.

  	
   

  	
  Bienville

  	
   

  	
  LA

  	
   

  	
  Bryceland Woodyard

  	
   

  	
  2.1

  	
   

  
	
  138.

  	
   

  	
  Bienville

  	
   

  	
  LA

  	
   

  	
  Gibsland Woodyard

  	
   

  	
  1.0

  	
   

  
	
  139.

  	
   

  	
  Claiborne

  	
   

  	
  LA

  	
   

  	
  Homer Woodyard

  	
   

  	
  15.9

  	
   

  
	
  140.

  	
   

  	
  De Soto

  	
   

  	
  LA

  	
   

  	
  Mansfield Woodyard

  	
   

  	
  7.1

  	
   

  
	
  141.

  	
   

  	
  Jackson

  	
   

  	
  LA

  	
   

  	
  Bear Creek Chipmill

  	
   

  	
  16.9

  	
   

  
	
  142.

  	
   

  	
  Jackson

  	
   

  	
  LA

  	
   

  	
  Hodge Office

  	
   

  	
  2.5

  	
   

  
	
  143.

  	
   

  	
  Rapides

  	
   

  	
  LA

  	
   

  	
  Railroad Switch

  	
   

  	
  0.1

  	
   

  
	
  144.

  	
   

  	
  Sabine

  	
   

  	
  LA

  	
   

  	
  Loring/Cade Woodyard

  	
   

  	
  10.0

  	
   

  
	
  145.

  	
   

  	
  Winn

  	
   

  	
  LA

  	
   

  	
  Winnfield Woodyard

  	
   

  	
  30.8

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  State Total

  	
   

  	
  86.4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  146.

  	
   

  	
  Somerset

  	
   

  	
  MD

  	
   

  	
  Pocomoke Chipmill

  	
   

  	
  326.5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  State Total

  	
   

  	
  326.5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  147.

  	
   

  	
  Covington

  	
   

  	
  MS

  	
   

  	
  Collins Woodyard

  	
   

  	
  15.3

  	
   

  
	
  148.

  	
   

  	
  Rankin

  	
   

  	
  MS

  	
   

  	
  Brandon Woodyard

  	
   

  	
  7.0

  	
   

  
	
  149.

  	
   

  	
  Scott

  	
   

  	
  MS

  	
   

  	
  Forest Woodyard

  	
   

  	
  31.3

  	
   

  
	
  150.

  	
   

  	
  Simpson

  	
   

  	
  MS

  	
   

  	
  Magee Woodyard

  	
   

  	
  16.2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  State Total

  	
   

  	
  69.8

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  151.

  	
   

  	
  Franklin

  	
   

  	
  NC

  	
   

  	
  Katesville Woodyard

  	
   

  	
  16.8

  	
   

  
	
  152.

  	
   

  	
  Granville

  	
   

  	
  NC

  	
   

  	
  Butner Woodyard

  	
   

  	
  112.0

  	
   

  
	
  153.

  	
   

  	
  Hoke

  	
   

  	
  NC

  	
   

  	
  Raeford Woodyard

  	
   

  	
  24.3

  	
   

  
	
  154.

  	
   

  	
  Lee

  	
   

  	
  NC

  	
   

  	
  Cameron Woodyard

  	
   

  	
  20.5

  	
   

  
	
  155.

  	
   

  	
  Pasquotank

  	
   

  	
  NC

  	
   

  	
  Elizabeth City site

  	
   

  	
  4.4

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  State Total

  	
   

  	
  178.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  156.

  	
   

  	
  Kershaw

  	
   

  	
  SC

  	
   

  	
  Elgin Sawmill

  	
   

  	
  0.4

  	
   

  
	
  157.

  	
   

  	
  Orangeburg

  	
   

  	
  SC

  	
   

  	
  Orangeburg Sawmill

  	
   

  	
  5.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  State Total

  	
   

  	
  5.3

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  158.

  	
   

  	
  Bledsoe

  	
   

  	
  TN

  	
   

  	
  Pikeville Woodyard

  	
   

  	
  8.8

  	
   

  
	
  159.

  	
   

  	
  Grundy

  	
   

  	
  TN

  	
   

  	
  Tracy City Woodyard

  	
   

  	
  6.6

  	
   

  
	
  160.

  	
   

  	
  White

  	
   

  	
  TN

  	
   

  	
  Sparta Woodyard

  	
   

  	
  21.7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  State Total

  	
   

  	
  37.1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  161.

  	
   

  	
  Caroline

  	
   

  	
  VA

  	
   

  	
  Caroline Woodyard

  	
   

  	
  85.2

  	
   

  
	
  162.

  	
   

  	
  Charlotte

  	
   

  	
  VA

  	
   

  	
  Keysville Chipmill

  	
   

  	
  42.9

  	
   

  






 

















 




	
   

  	
   

  	
  County

  	
   

  	
  State

  	
   

  	
  Facility Name

  	
   

  	
  Acres

  	
   

  
	
  163.

  	
   

  	
  Cumberland

  	
   

  	
  VA

  	
   

  	
  Cumberland Woodyard

  	
   

  	
  2.8

  	
   

  
	
  164.

  	
   

  	
  Fluvanna

  	
   

  	
  VA

  	
   

  	
  Palmyra Woodyard

  	
   

  	
  9.4

  	
   

  
	
  165.

  	
   

  	
  New Kent

  	
   

  	
  VA

  	
   

  	
  Parhams Woodyard

  	
   

  	
  25.3

  	
   

  
	
  166.

  	
   

  	
  Pittsylvania

  	
   

  	
  VA

  	
   

  	
  Eden Chipmill

  	
   

  	
  27.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  State Total

  	
   

  	
  192.5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Total

  	
   

  	
  5,202.9

  	
   

  






 

















 


Schedule
5.09(c)


 


*Certain Non-Collateral
Properties


 






*The
information included in this Schedule 5.09(c) has been omitted pursuant to a
request for confidential treatment and has been filed separately with the
Securities and Exchange Commission.


 

















 


Schedule 6.02(a)(iv)


 


Existing Liens


 


1.                                       Liens securing
Capital Lease Obligations and purchase-money Indebtedness of  SSCC and its Subsidiaries having an aggregate outstanding
amount of approximately $2,524,658 (as of January 31, 2010) as of the
Closing Date.  Such Liens cover the
property financed by such Capital Lease Obligations and purchase-money
Indebtedness.


 


2.                                       Liens securing
the Timber Note Monetization Indebtedness identified below:


 


·                  The Borrower
sold approximately 980,000 acres of owned and leased timberland in Florida,
Georgia and Alabama in October 1999. The final purchase price, after
adjustments, was $710 million. The Borrower received $225 million in cash, with
the balance of $485 million in the form of installment notes. The Borrower
entered into a program to monetize the installment notes receivable. The notes
were sold without recourse to Timber Note Holdings LLC (“TNH”), a
qualified special-purpose entity under the provisions of SFAS No. 140, for
$430 million cash proceeds and a residual interest in the notes. As of the
Closing Date, the outstanding balance of the Indebtedness of TNH under this
facility is $187,056,610.


 


Such Liens cover the
specified notes payable and related assets held by Timber Note Holdings LLC.


 


3.                                       Liens
identified on title reports relating to Mortgaged Properties delivered and acceptable
to JPMCB.


 


4.                                       Liens
identified on the attached Lien Search Result Charts.


 

















 


SMURFIT-STONE CONTAINER ENTERPRISES, INC.


UCC FILINGS CHART


 


	
  Debtor

  (as shown on statement)

  	
   

  	
  Secured Party

  (as shown on statement)

  	
   

  	
  Jurisdiction

  	
   

  	
  Search 

  through 

  date

  	
   

  	
  UCC

  	
   

  	
  Fix

  	
   

  	
  Liens

  	
   

  	
  Suits &

  Judg

  	
   

  	
  File No.

  	
   

  	
  File Date

  	
   

  	
  Search Results

  Comments/Collateral

  	
   

  
	
  SMURFIT-STONE CONTAINER ENTERPRISES, INC.

  	
   

  
	
   

  	
   

  
	
  Jefferson Smurfit Corporation (U.S.) 

  PO Box 651564 

  Charlotte, NC 28265

  	
   

  	
  Citibank, N.A. 

  388 Greenwich Street

  New York, NY 10013

  	
   

  	
  Secretary of State, Delaware

  	
   

  	
  09/26/08

  	
   

  	
  X

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  41877515

  	
   

  	
  07/06/04

  	
   

  	
  Accounts
  Receivable from The Stanley Works Co. purchased by Citibank, N.A. per the
  terms of the Supplier Agreement between Jefferson Smurfit Corporation (U.S.)
  and Citibank, N.A.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-Stone Container Enterprises, Inc. 

  150 North Michigan Ave. 

  Chicago, IL 60601

  	
   

  	
  Harold M. Pitman Company 

  721 Union Boulevard

  Totowa, NJ 07512

  	
   

  	
  Secretary of State, Delaware

  	
   

  	
  09/26/08

  	
   

  	
  X

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  53564029

  	
   

  	
  11/07/05

  	
   

  	
  All
  goods and inventory delivered on consignment by the Harold M. Pitman Company
  to the Consignee, used in Consignee’s operations, including but not limited
  to “graphic arts” films, photographic papers, plates, chemistry, sundries and
  supplies, spare parts, digital imaging supplies, stationery supplies.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-Stone Container Enterprises, Inc. 

  Corporation Trust Center 

  1209 Orange Street 

  Wilmington, DE 19801

  	
   

  	
  Signode Packaging Systems 

  3610 West Lake Avenue 

  Glenview, IL 60026

  	
   

  	
  Secretary of State, Delaware

  	
   

  	
  01/13/09

  	
   

  	
  X

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  20074768429

  	
   

  	
  12/18/07

  	
   

  	
  Debtor’s
  inventory of Signode Packaging Materials now or hereafter on the premises of
  on consignment to the Debtor at the Debtor’s plant in Missoula, MT, CMF #
  611196-5, Territory 6601

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-Stone Container Enterprises, Inc. 

  Corporation Trust Center 

  1209 Orange Street 

  Wilmington, DE 19801

  	
   

  	
  Signode Packaging Systems 

  3610 West Lake Avenue 

  Glenview, IL 60026

  	
   

  	
  Secretary of State, Delaware

  	
   

  	
  01/13/09

  	
   

  	
  X

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  20080667715

  	
   

  	
  02/25/08

  	
   

  	
  Debtor’s
  inventory of Signode Packaging materials now or hereafter on the premises or
  on consignment to the Debtor at the Debtor’s plant in Portland, OR, CMF #160492-10,
  Territory 6121.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-Stone Container Enterprises, Inc. 

  Corporation Trust Center 

  1209 Orange Street 

  Wilmington, DE 19801

  	
   

  	
  Signode Packaging Systems 

  3610 West Lake Avenue 

  Glenview, IL 60026

  	
   

  	
  Secretary of State, Delaware

  	
   

  	
  01/13/09

  	
   

  	
  X

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  20080668473

  	
   

  	
  02/25/08

  	
   

  	
  Debtor’s
  inventory of Signode Packaging materials now or hereafter on the premises or
  on consignment to the Debtor at the Debtor’s plant in Milpitas, CA, CMF #511748-10,
  Territory 6121.

  	
   

  



 






 













 


	
  Debtor

  (as shown on statement)

  	
   

  	
  Secured Party

  (as shown on statement)

  	
   

  	
  Jurisdiction

  	
   

  	
  Search

  through 

  date

  	
   

  	
  UCC

  	
   

  	
  Fix

  	
   

  	
  Liens

  	
   

  	
  Suits &

  Judg

  	
   

  	
  File No.

  	
   

  	
  File Date

  	
   

  	
  Search Results

  Comments/Collateral

  	
   

  
	
  Smurfit-Stone Container Enterprises, Inc. 

  6 Cityplace Drive 

  Creve Coeur, MO 63141

  	
   

  	
  American Packaging Capital, Inc. 

  391 Diablo Road 

  Suite C 

  Danville, CA 94526

  	
   

  	
  Secretary of State, Delaware

  	
   

  	
  01/13/09

  	
   

  	
  X

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  20081375490

  	
   

  	
  04/21/08

  	
   

  	
  All
  of Debtor’s right, title and interest in the following: (A) any leases, rental
  agreement, installment sales agreement, finance agreements, notes and
  security agreements and other evidence or forms of payment obligations and/or
  security interests with various obligors (herein referred to as the
  “Contracts”), whether now existing or hereafter acquired, which are assigned
  to Secured Party by Debtor pursuant to that certain Vendor Program Agreement
  — Cost Per Item, dated January 18, 2008, as 
  the same may be amended from time to time, or otherwise, all
  guaranties and other supporting obligations of, or other security for the
  Contracts (the “Related Documents”), all accounts and rights to payment
  relating to or arising under Contracts, the right to exercise all rights an
  remedies of Debtor as lessor or creditor under the Contracts and Related
  Documents, all goods, including equipment and inventory ( the “Equipment”),
  software and general intangibles which are subject to such Contracts,
  together with any replacements or substitutions therefore and attachments and
  accessions thereto; (B) all Usage Payments payable under and as described in
  any consumables agreement between Debtor and the Obligor(s) on such
  Contracts, together with any substitutions therefore; and (c) all proceeds of
  any of the foregoing, including any insurance proceeds.

  	
   

  



 






 













 


	
  Debtor

  (as shown on statement)

  	
   

  	
  Secured Party

  (as shown on statement)

  	
   

  	
  Jurisdiction

  	
   

  	
  Search 

  through 

  date

  	
   

  	
  UCC

  	
   

  	
  Fix

  	
   

  	
  Liens

  	
   

  	
  Suits &

  Judg

  	
   

  	
  File No.

  	
   

  	
  File Date

  	
   

  	
  Search Results

  Comments/Collateral

  	
   

  
	
  Smurfit-Stone Container Enterprises, Inc. 

  6 Cityplace Drive 

  Creve Coeur, MO 63141

  	
   

  	
  American Packaging Capital, Inc.

  391 Diablo Road

  Suite C

  Danville, CA 94526

  	
   

  	
  Secretary of State, Delaware

  	
   

  	
  01/13/09

  	
   

  	
  X

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  20081529351

  	
   

  	
  05/02/08

  	
   

  	
  Assignment
  of file # 20081375490 filed 04/21/08. 
  Collateral assigned to TCF Equipment Finance, Inc., 11100 Wayzata
  Blvd., Suite 801, Minnetonka, MN 55305. 
  This Amendment evidences of record a partial assignment by Secured
  Party to Assignee of the Collateral described on the Initial Financing Statement.  Assignee has taken or may take assignment
  of Secured Party’s right, title and interest in certain of such Collateral
  pursuant to that certain Program Agreement — Meta Systems Cost Per Item,
  dated February 21, 2008, between Secured Party and Assignee, as the same may
  be amended from time to time, or otherwise, including without limitation any
  Contracts, whether now existing or hereafter acquired, which have been or may
  be assigned to Assignee, all Related Documents, all accounts and rights to
  payment relating to or arising under the Contracts, the right to exercise all
  rights and remedies of Debtor as lessor or creditor under the Contracts and
  Related Documents, all Equipment, software and general intangibles which are
  subject to such Contracts, together with any replacements or substitutions
  therefore and attachments and accessions thereto, all Usage Payments payable
  under consumables agreement with obligor(s) on such Contracts and
  substitutions therefore, and all proceeds of any of the foregoing, including
  any insurance proceeds.

  	
   

  



 






 


 













 


	
  Debtor

  (as shown on statement)

  	
   

  	
  Secured Party

  (as shown on statement)

  	
   

  	
  Jurisdiction

  	
   

  	
  Search 

  through 

  date

  	
   

  	
  UCC

  	
   

  	
  Fix

  	
   

  	
  Liens

  	
   

  	
  Suits &

  Judg

  	
   

  	
  File No.

  	
   

  	
  File Date

  	
   

  	
  Search Results

  Comments/Collateral

  	
   

  
	
  Smurfit-Stone Container Enterprises, Inc. 

  150 North Michigan Avenue

  Chicago, IL 60601

  	
   

  	
  Leaf Funding, Inc.

  2005 Market Street 

  15th Floor 

  Philadelphia, PA 19103

  	
   

  	
  Secretary of State, Delaware

  	
   

  	
  01/13/09

  	
   

  	
  X

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  20081565041

  	
   

  	
  05/06/08

  	
   

  	
  All
  of Debtor’s right, title and interest (whether now owned or hereafter acquired)
  in and to: (a) all lease agreements, rental agreements, conditional sale
  agreements, loan and security agreements and other forms of equipment
  financing agreements from time to time assigned, sold or otherwise conveyed
  by Debtor  to Secured Party; (b) all
  rent periodic payments, and all other sums due or to become due under such
  Chattel Paper; (c) all rights of Debtor to or under any guarantees of or
  collateral for the obligations of the lessee or other guarantees of or
  collateral for the obligations of the lessee or other obligor under any
  Chattel Paper (d) the property subject to such Chattel Paper and all
  vendor./manufacture warranty rights and claims relating to such property; (e)
  all general intangibles, documents, accounts, chattel paper and instruments
  associated therewith or relating thereto; and (f) all cash and non-cash
  proceeds of all of the foregoing in any form. 
  Together items (a) — (f) are referred to as the “Contract Assets”.  Nothing herein shall be deemed or construed
  to limit or contravene the absolute and complete assignment, sale, transfer
  and conveyance of the Contract Assets from Debtor to Secured Party.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Smurfit-Stone Container
  Enterprises, Inc. 

  150 North Michigan Avenue 

  Chicago, IL 60601

  	
   

  	
  Leaf Funding, Inc.

  2005 Market Street 

  15th Floor 

  Philadelphia, PA 19103

  	
   

  	
  Secretary of State, Delaware

  	
   

  	
  01/13/09

  	
   

  	
  X

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  20082146353

  	
   

  	
  06/23/08

  	
   

  	
  Amendment
  to file # 20081565041 filed 05/06/08. 
  Change name of Secured Party to Integrity Leasing & Financing,
  Inc., One Union Place, Suite 201. 
  Dedham, MA 02026.

  	
   

  



 






 













 


	
  Debtor

  (as shown on statement)

  	
   

  	
  Secured Party

  (as shown on statement)

  	
   

  	
  Jurisdiction

  	
   

  	
  Search 

  through 

  date

  	
   

  	
  UCC

  	
   

  	
  Fix

  	
   

  	
  Liens

  	
   

  	
  Suits &

  Judg

  	
   

  	
  File No.

  	
   

  	
  File Date

  	
   

  	
  Search Results

  Comments/Collateral

  	
   

  
	
  TIMBER NOTE HOLDINGS LLC

  	
   

  
	
   

  	
   

  
	
  Timber Note Holdings LLC

  8182 Maryland Avenue

  Clayton, MO 63105

  	
   

  	
  The Bank of New York, as Collateral Agent

  101 Barclay Street

  New York, NY 10286

  	
   

  	
  Secretary of State, Delaware

  	
   

  	
  11/26/08

  	
   

  	
  X

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  43194885

  	
   

  	
  11/12/04

  	
   

  	
  See
  Exhibit A attached hereto.  Exhibit A:  This Financing Statement is filed in lieu
  of continuation for the following previously filed financing statement(s),
  each which remains effective:  Missouri
  Secretary of State, 11/29/1999 UCC # 3096639 and St. Louis County, Missouri,
  11/24/1999 UCC # 13055.  This financing
  statement covers the following types (or items) of property:  (a) Pledged Notes and the instruments
  or securities evidencing the Pledged Noted, the Rayonier Note Agreement and
  all rights relating thereto; (b) all additional indebtedness from time
  to time owed to Debtor by any obligor on the Pledged Notes and the
  instruments evidencing such indebtedness, and all interest, cash, instruments
  and other property or proceeds from time to time received; (c) the
  Liquid Collateral; and (d) to the extent not covered by clauses (a) through
  (c) above, all proceeds of any or all of the foregoing Collateral.  See UCC financing statement for full
  Collateral description.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CALPINE CORRUGATED LLC

  	
   

  
	
   

  	
   

  
	
  Calpine Corrugated, LLC

  3478 Buskirk Ave., Ste. 336

  Pleasant Hill, CA 94523

  	
   

  	
  Signode Packaging Systems

  3610 West Lake Avenue

  Glenview, Il 60025

  	
   

  	
  Secretary of State, California

  	
   

  	
  11/23/08

  	
   

  	
  X

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  07-7121624010

  	
   

  	
  07/11/07

  	
   

  	
  Debtor’s
  inventory of Signode Packaging materials now or hereafter on the premises or
  on consignment to the Debtor at the Debtor’s plant in Fresno, CA CMF
  #200193-10, Territory 6122.

  	
   

  



 






 


 












 


Schedule 6.04


 


Certain Permitted Investments


 


1.              Investments in Persons
other than Subsidiaries


 


	
  Entity

  	
   

  	
  Ownership Interest

  
	
  Schiffenhaus
  Canada, Inc.

  	
   

  	
  33.33% owned by
  Smurfit-MBI

  
	
  Schiffenhaus California
  LLC

  	
   

  	
  25% owned by SMBI Inc.

  
	
  Aspamill Inc.

  	
   

  	
  45% owned by Smurfit-Stone
  Container Canada Inc.

  
	
  Rosenbloom
  Group, Inc.

  	
   

  	
  45% owned by Smurfit-Stone
  Container Canada Inc.

  
	
  Rollcraft, Inc.

  	
   

  	
  45% owned by Smurfit-Stone
  Container Canada Inc.

  
	
  Cascapedia Booming Co.
  Ltd.

  	
   

  	
  50% owned by Smurfit-Stone
  Container Canada Inc.

  
	
  Las Vegas Container LLC

  	
   

  	
  50% owned by Smurfit-Stone
  Container Enterprises, Inc.

  
	
  Stone Container (Hong
  Kong) Limited

  	
   

  	
  50% owned by Smurfit-Stone
  Container Enterprises, Inc.

  
	
  Stone Container Japan
  Company Ltd.

  	
   

  	
  50% owned by Smurfit-Stone
  Container Enterprises, Inc.

  
	
  Valores Universales S.A.
  de C.V.

  	
   

  	
  49% owned by Smurfit-Stone
  Container Enterprises, Inc.

  
	
  Wakecon Associates

  	
   

  	
  50% owned by Smurfit-Stone
  Container Enterprises, Inc.

  
	
  Groveton Paper
  Board, Inc.

  	
   

  	
  48.6% owned by
  Smurfit-Stone Container Enterprises, Inc.

  
	
  Smurfit/CIMIC Holdings
  Limited

  	
   

  	
  42.5% owned by
  Smurfit-Stone Container Enterprises, Inc.

  
	
  WCO Enterprises

  	
   

  	
  50% owned by Smurfit-Stone
  Container Enterprises, Inc.

  
	
  Niagara Sheets LLC

  	
   

  	
  24.5% owned by
  Smurfit-Stone Container Enterprises, Inc.

  
	
  NewCorr Packaging Limited
  Partnership

  	
   

  	
  16.4% owned by
  Smurfit-Stone Container Enterprises, Inc.

  
	
  NewCorr
  Realty LLC

  	
   

  	
  16.67%
  owned by Smurfit-Stone Container Enterprises, Inc.

  



 

















 


	
  Hang-Yick Paper Products
  Co. Ltd.

  	
   

  	
  50% owned by Smurfit-Stone
  HY Holdings, Ltd.

  



 


Borrower holds a loan
outstanding to Niagara Sheets LLC having an outstanding principal balance of
$730,100 as of December 31, 2008.


 


2.              Intercompany
Loans and Advances to Persons other than Subsidiaries


 


	
  Borrowing
  Entity

  	
   

  	
  Lending Entity

  	
   

  	
  Balance

  	
   

  
	
  Hang Yick Paper
  Products Co. Ltd.

  	
   

  	
  Smurfit-Stone Container Enterprises Inc.

  	
   

  	
  $

  	
  15,500,000

  	
   

  
							



 






 












 


EXHIBIT A


 


FORM OF ASSIGNMENT AND
ACCEPTANCE


 


This
Assignment and Acceptance (the “Assignment and Acceptance”) is dated as
of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”)
and [Insert name of Assignee]
(the “Assignee”).  Capitalized
terms used but not defined herein shall have the meanings given to them in the
Credit Agreement identified below  (as
amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), receipt of a copy of which is hereby acknowledged by the
Assignee.  The Standard Terms and
Conditions set forth in Annex 1 attached hereto (the “Standard Terms and
Conditions”) are hereby agreed to and incorporated herein by reference and
made a part of this Assignment and Acceptance as if set forth herein in full.


 


For
an agreed consideration, the Assignor hereby irrevocably sells and assigns to
the Assignee, and the Assignee hereby irrevocably purchases and assumes from
the Assignor, subject to and in accordance with the Standard Terms and
Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and
any other documents or instruments delivered pursuant thereto to the extent
related to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the facility
identified below and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing,
including contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations
sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the “Assigned Interest”).  Such sale and assignment is without recourse
to the Assignor and, except as expressly provided in this Assignment and
Acceptance, without representation or warranty by the Assignor.


 


	
  1.

  	
  Assignor:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Assignee:

  	
   

  	
   

  
	
   

  	
   

  	
  [and
  is the Borrower/an Affiliate/Approved Fund of [identify Lender](1)]

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Borrower:

  	
  [Smurfit-Stone Container
  Enterprises, Inc.] [Smurfit-Stone Container Corporation, formerly known
  as Smurfit-Stone Container Enterprises, Inc.](2)

  



 






(1)    Select
as applicable.


(2)    Select
as applicable.


 

















 


4.                                       Administrative
Agent:   JPMorgan Chase Bank, N.A., as
the administrative agent under the Credit Agreement


 


5.                                       Credit
Agreement:    The $1,200,000,000 Credit Agreement dated as
of [      ], 2010 among Smurfit-Stone
Container Corporation, Smurfit-Stone Container Enterprises, Inc., the
Lenders parties thereto and JPMorgan Chase Bank, N.A., as Administrative Agent


 


6.                                       Assigned
Interest:


 


	
   

  	
   

  	
  Aggregate Amount of

  Commitment/Loans

  for all Lenders

  	
   

  	
  Amount of 

  Commitment/Loans

  Assigned

  	
   

  	
  Percentage of 

  Commitment/Loans 

  Assigned(3)

  	
   

  
	
  Term Loan Facility

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
										



 


Effective Date:                       
       , 20      [TO
BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF
RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


The Assignee, if not already
a Lender, agrees to deliver to the Administrative Agent a completed
Administrative Questionnaire in which the Assignee designates one or more
credit contacts to whom all syndicate-level information (which may contain
material non-public information about the Borrower, the Loan Parties and their
related parties or their respective securities) will be made available and who
may receive such information in accordance with the Assignee’s compliance
procedures and applicable laws, including Federal and State securities laws.


 


The terms set forth in this
Assignment and Acceptance are hereby agreed to:


 


	
   

  	
  ASSIGNOR

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
   

  
	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  



 






(3)    Set forth, to at
least 9 decimals, as a percentage of the Commitment/Loans of all Lenders
thereunder.


 

















 


[Consented to and](4) Accepted:


 


JPMORGAN
CHASE BANK, N.A., as

Administrative Agent


 


 


	
  By

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
				



 


 


[Consented to:](5)


 


[SMURFIT-STONE CONTAINER ENTERPRISES, INC.]
[SMURFIT-STONE CONTAINER CORPORATION](6)


 


 


	
  By

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
				



 






(4)    To
be added only if the consent of the Administrative Agent is required by the
terms of the Credit Agreement.


 


(5)    To
be added only if the consent of the Borrower is required by the terms of the
Credit Agreement.


 


(6)    Select
as applicable.


 

















 


ANNEX 1


 


STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ACCEPTANCE


 


1.             Representations and Warranties.


 


1.1           Assignor. 
The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute
and deliver this Assignment and Acceptance and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document.


 


1.2.          Assignee.  The Assignee (a) represents and warrants
that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Acceptance and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it satisfies the requirements, if any,
specified in the Credit Agreement that are required to be satisfied by it in
order to acquire the Assigned Interest and become a Lender, (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest,
shall have the obligations of a Lender thereunder, (iv) it has received a
copy of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.04 thereof, as applicable, and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Acceptance
and to purchase the Assigned Interest on the basis of which it has made such
analysis and decision independently and without reliance on the Administrative
Agent or any other Lender, and (v) if it is a Non-US Person, attached to
the Assignment and Acceptance is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed
by the Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.


 


2.             Payments.  From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignor for amounts which have accrued to but excluding the Effective Date
and to the Assignee for amounts which have accrued from and after the Effective
Date.


 

















 


3.             General Provisions.  This Assignment and Acceptance shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.  This
Assignment and Acceptance may be executed in any number of counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which, when taken together shall constitute
one instrument.  Delivery of an executed
counterpart of a signature page of this Assignment and Acceptance by
facsimile or other electronic transmission shall be effective as delivery of a
manually executed counterpart of this Assignment and Acceptance.  This Assignment and Acceptance shall be
governed by, and construed in accordance with, the laws (without regard to
conflict of law provisions) of the State of New York.


 

















 


EXHIBIT B


 


FORM OF LOAN AUCTION PROCEDURES


 


This Exhibit B is
intended to summarize certain basic terms of the modified Dutch auction
procedures pursuant to and in accordance with the terms and conditions of Section 2.23
of the Credit Agreement, of which this Exhibit B is apart. It is
not intended to be a definitive statement of all of the terms and conditions of
a modified Dutch auction, the definitive terms and conditions for which shall
be set forth in the applicable offering document. None of the Administrative
Agent, the Auction Manager, or any of its Affiliates makes any recommendation
pursuant to any offering document as to whether or not any Lender should sell
its Term Loans or Other Term Loans, as applicable, to the Borrower pursuant to
any offering documents, nor shall the decision by the Administrative Agent or
the Auction Manager(or any of their Affiliates) in its capacity as a Lender to
sell its Term Loans or Other Term Loans, as applicable, to the Borrower be
deemed to constitute such a recommendation. Each Lender should make its own
decision as to whether to sell any of its Term Loans or Other Term Loans and as
to the price to be sought for such Term Loans or Other Term Loans. In addition,
each Lender should consult its own attorney, business advisor or tax advisor as
to legal, business, tax and related matters concerning each Purchase Offer and
the relevant offering documents. Capitalized terms not otherwise defined in
this Exhibit B have the meanings assigned to them in the Credit
Agreement.


 


(a) Notice Procedures. In connection
with each Purchase Offer, the Borrower will provide notification to the Auction
Manager (for distribution to the Lenders of the applicable Class(es)) of the Class or
Classes of Term Loans or Other Term Loans (as determined by the Borrower in its
sole discretion) that will be the subject of such Purchase Offer (each, an “Auction
Notice”). Each Auction Notice shall contain (i) the maximum principal
amount (calculated on the face amount thereof) of each Class of Term Loans
or Other Term Loans that the Borrower offers to purchase in such Purchase Offer
(the “Auction Amount”), which shall be no less than $15,000,000 (across
all such Classes) (unless another amount is agreed to by the Administrative Agent);
(ii) the range of discounts to par (the “Discount Range”),
expressed as a range of prices (in increments of $5) per $1,000, at which the
Borrower would be willing to purchase Term Loans or Other Term Loans of each
applicable Class in such Purchase Offer; and (iii) the date on which
such Purchase Offer will conclude, on which date Return Bids (as defined below)
will be due by 1:00 p.m., New York time (as such date and time may be
extended by the Auction Manager, the “Expiration Time”). Such Expiration
Time may be extended for a period not exceeding three Business Days upon notice
by the Borrower to the Auction Manager received not less than 24 hours before
the original Expiration Time; provided, that only two extensions per
offer shall be permitted. A Purchase Offer shall be regarded as a “failed
purchase offer” in the event that either (x) the Borrower withdraws such
Purchase Offer in accordance with the terms hereof or as set forth in Section 2.23(b) of
the Credit Agreement or (y) the Expiration Time occurs with no Qualifying
Bids (as defined below) having been received. In the event of a failed purchase
offer, the Borrower shall not be permitted to deliver a new Auction Notice
prior to the date occurring three Business Days after such withdrawal or Expiration
Time, as the case may be. Notwithstanding anything to the contrary contained
herein, the Borrower shall not


 

















 


initiate
any Purchase Offer by delivering an Auction Notice to the Auction Manager until
after the conclusion (whether successful or failed) of the previous Purchase
Offer (if any), whether such conclusion occurs by withdrawal of such previous
Purchase Offer or the occurrence of the Expiration Time of such previous
Purchase Offer.


 


(b) Reply Procedures.
In connection with any Purchase Offer, each Lender of the applicable Class wishing
to participate in such Purchase Offer shall, prior to the Expiration Time,
provide the Auction Manager with a notice of participation, in the form
included in the applicable offering document (each, a “Return Bid”)
which shall specify (i) a discount to par that must be expressed as a
price (in increments of $5) per $1,000 in principal amount of Term Loans or
Other Term Loans (the “Reply Price”) of the applicable Class within
the Discount Range and (ii) the principal amount of Term Loans or Other
Term Loans of the applicable Class, in an amount not less than $1,000,000 or an
integral multiple of $1,000 in excess thereof, that such Lender offers for sale
at its Reply Price (the “Reply Amount”). A Lender may submit a Reply
Amount that is less than the minimum amount and incremental amount requirements
described above only if the Reply Amount comprises the entire amount of the
Term Loans or Other Term Loans of the applicable Class held by such
Lender. Lenders may only submit one Return Bid per Class per Purchase
Offer, but each Return Bid may contain up to three component bids, each of
which may result in a separate Qualifying Bid and each of which will not be
contingent on any other component bid submitted by such Lender resulting in a
Qualifying Bid. In addition to the Return Bid, the participating Lender must
execute and deliver, to be held in escrow by the Auction Manager, an assignment
and acceptance in the form included in the offering document (each, an “Auction
Assignment and Assumption”). The Borrower will not purchase any Term Loans
or Other Term Loans at a price that is outside of the applicable Discount
Range, nor will any Return Bids (including any component bids specified
therein) submitted at a price that is outside such applicable Discount Range be
considered in any calculation of the Applicable Threshold Price (as defined
below).


 


(c)           Acceptance
Procedures. Based on the Reply Prices and Reply Amounts received by the
Auction Manager, the Auction Manager, in consultation with the Borrower, will
calculate the lowest purchase price (the “Applicable Threshold Price”)
for such Purchase Offer within the Discount Range for such Purchase Offer that
will allow the Borrower to complete the Purchase Offer by purchasing the full
Auction Amount (or such lesser amount of Term Loans or Other Term Loans for
which the Borrower has received Qualifying Bids). The Borrower shall purchase
Term Loans or Other Term Loans of the applicable Class from each Lender
whose Return Bid is within the Discount Range and contains a Reply Price that
is equal to or less than the Applicable Threshold Price (each, a “Qualifying
Bid”). All Term Loans or Other Term Loans of the applicable Class included
in Qualifying Bids (including multiple component Qualifying Bids contained in a
single Return Bid) received at a Reply Price lower than the Applicable
Threshold Price will be purchased at such applicable Reply Prices and shall not
be subject to proration. Each participating Lender will receive notice of a
Qualifying Bid as soon as reasonably practicable but in no case later than five
business days from the date of the Expiration Time.


 


(d)          Proration
Procedures. All Term Loans or Other Term Loans offered in Return Bids (or,
if applicable, any component thereof) constituting Qualifying Bids at the
Applicable Threshold Price will be purchased at the Applicable Threshold Price;
provided that if the aggregate principal amount of all Term Loans or
Other Term Loans of the applicable Class for which Qualifying Bids have
been submitted in any given Purchase 


 


2

















 


Offer at the Applicable Threshold Price would exceed the remaining
portion of the Auction Amount (after deducting all Term Loans or Other Term
Loans of the applicable Class to be purchased at prices below the
Applicable Threshold Price), the Borrower shall purchase such Loans ratably
based on the relative principal amounts offered by each Lender in an aggregate
amount equal to the amount necessary to complete the purchase of the Auction
Amount. No Return Bids or any component thereof will be accepted above the
Applicable Threshold Price.


 


(e)          Notification
Procedures. The Auction Manager will calculate the Applicable Threshold
Price and post the Applicable Threshold Price and proration factor onto an
internet or intranet site (including an IntraLinks, SyndTrak or other
electronic workspace) in accordance with the Auction Manager’s standard
dissemination practices by 4:00 p.m. New York time on the Business Day
during which the Expiration Time occurs. The Auction Manager will insert the
principal amount of Term Loans or Other Term Loans of the applicable Class to
be assigned and the applicable settlement date into each applicable Auction
Assignment and Assumption received in connection with a Qualifying Bid. Upon
the request of the submitting Lender, the Auction Manager will promptly return
any Auction Assignment and Assumption received in connection with a Return Bid
that is not a Qualifying Bid.


 


(f)           Auction
Assignment and Assumption. Each Auction Notice and Auction Assignment and
Assumption shall contain the following representations and warranties by the
Borrower:


 


“No Default or Event of Default has occurred and is
continuing, or would result from this Purchase Offer.


 


The representations and warranties of the Borrower
and each other Loan Party contained in Article III of the Credit
Agreement or any other Loan Document, or which are contained in any document
furnished at any time under or in connection herewith, are true and correct in
all material respects (other than any representation or warranty that is
qualified by materiality or reference to Material Adverse Effect, which shall
be true and correct in all respects) on and as of the date hereof, except to
the extent that such representations and warranties expressly relate to an
earlier date, in which case they were true and correct in all material respects
as of such earlier date, and except that for purposes hereof, the
representations and warranties contained in Section 3.05 of the
Credit Agreement shall be deemed to refer to the most recent financial
statements furnished pursuant to clauses (a) or (b) of Section 5.04
of the Credit Agreement.


 


As of the date hereof, except as previously disclosed in writing to the
Administrative Agent and the Lenders, the Borrower represents and warrants that
no Loan Party, has any MNPI that both (a) has not been previously
disclosed in writing to the Administrative Agent and the Lenders (other than
because such Lender does not wish to receive such MNPI) prior to such time and (b) could
reasonably be expected to have a material effect upon, or otherwise be material
to, such Lender’s decision to participate in the Purchase Offer.”


 


3

















 


(g) Additional Procedures. Once initiated by an Auction
Notice, the Borrower may withdraw a Purchase Offer only if no Qualifying Bid
has been received by the Auction Manager at the time of withdrawal. Any Return
Bid (including any component bid thereof) delivered to the Auction Manager may
not be withdrawn, modified, revoked, terminated or cancelled by a Lender.
However, a Purchase Offer may become void if the conditions to the purchase set
forth in Section 2.23 of the Credit Agreement are not met. The
purchase price in respect of each Qualifying Bid for which purchase by the
Borrower is required in accordance with the foregoing provisions shall be paid
directly by the Borrower to the respective assigning Lender on a settlement
date as determined jointly by the Borrower and the Auction Manager (which shall
be not later than ten Business Days after the date Return Bids are due). The
Borrower shall execute each applicable Auction Assignment and Assumption
received in connection with a Qualifying Bid. All questions as to the form of
documents and eligibility of Term Loans or Other Term Loans that are the
subject of a Purchase Offer will be determined by the Auction Manager, in
consultation with the Borrower, and their determination will be final and binding
so long as such determination is not inconsistent with the terms of Section 2.23
of the Credit Agreement or this Exhibit B. The Auction Manager’s
interpretation of the terms and conditions of the offering document, in
consultation with the Borrower, will be final and binding so long as such
interpretation is not inconsistent with the terms of Section 2.23
of the Credit Agreement or this Exhibit B. None of the
Administrative Agent, the Auction Manager or any of its Affiliates assumes any
responsibility for the accuracy or completeness of the information concerning
the Borrower, the Loan Parties, or any of their Affiliates (whether contained
in an offering document or otherwise) or for any failure to disclose events
that may have occurred and may affect the significance or accuracy of such
information. This Exhibit B shall not require the Borrower to
initiate any Purchase Offer.


 


4
















 


EXHIBIT C


 


FORM OF GUARANTEE AND
COLLATERAL AGREEMENT


 


(See Attached)


 

















 


Exhibit C


to the Credit
Agreement




 





 


 


FORM OF

GUARANTEE AND COLLATERAL AGREEMENT


 


dated as of


 


[       ], 2010,


 


among


 


SMURFIT-STONE
CONTAINER CORPORATION

(formerly known as Smurfit-Stone Container Enterprises, Inc.),


 


THE SUBSIDIARIES
PARTIES HERETO


and


 


JPMORGAN CHASE
BANK, N.A.,


 


as Administrative
Agent


 


 


THIS
COLLATERAL AGREEMENT IS SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR
AGREEMENT OF EVEN DATE HEREWITH AMONG SMURFIT-STONE CONTAINER CORPORATION, A
DELAWARE CORPORATION (FORMERLY KNOWN AS SMURFIT-STONE CONTAINER ENTERPRISES,
INC.), THE OTHER SUBSIDIARIES OF SMURFIT-STONE CONTAINER CORPORATION PARTY
THERETO, JPMORGAN CHASE BANK, N.A., IN ITS CAPACITY AS ADMINISTRATIVE AGENT FOR,
AND ACTING ON BEHALF OF, THE TERM LOAN CREDIT SECURED PARTIES REFERRED TO
THEREIN, DEUTSCHE BANK AG NEW YORK BRANCH, IN ITS CAPACITY AS COLLATERAL AGENT
FOR, AND ACTING ON BEHALF OF, THE REVOLVING CREDIT SECURED PARTIES REFERRED TO
THEREIN AND EACH PERMITTED NOTES AGENT THAT FROM TIME TO TIME BECOMES A PARTY
THERETO AS MORE FULLY SET FORTH IN SECTION 7.16 HEREOF.


 




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  
	
   

  	
   

  
	
  Definitions

  
	
   

  	
   

  
	
  SECTION 1.01.
  Credit Agreement

  	
  1

  
	
  SECTION 1.02.
  Other Defined Terms

  	
  1

  
	
   

  	
   

  
	
  ARTICLE II

  
	
   

  	
   

  
	
  Guarantee

  
	
   

  	
   

  
	
  SECTION 2.01.
  Guarantee

  	
  6

  
	
  SECTION 2.02.
  Guarantee of Payment

  	
  6

  
	
  SECTION 2.03. No
  Limitations

  	
  6

  
	
  SECTION 2.04.
  Reinstatement

  	
  7

  
	
  SECTION 2.05.
  Agreement To Pay; Subrogation

  	
  8

  
	
  SECTION 2.06.
  Information

  	
  8

  
	
   

  	
   

  
	
  ARTICLE III

  
	
   

  	
   

  
	
  Pledge of Securities

  
	
   

  	
   

  
	
  SECTION 3.01.
  Pledge

  	
  8

  
	
  SECTION 3.02.
  Delivery of the Pledged Collateral

  	
  9

  
	
  SECTION 3.03.
  Representations, Warranties and Covenants

  	
  10

  
	
  SECTION 3.04.
  Certification of Limited Liability Company and Limited Partnership Interests

  	
  11

  
	
  SECTION 3.05. Registration
  in Nominee Name; Denominations

  	
  12

  
	
  SECTION 3.06.
  Voting Rights; Dividends and Interest

  	
  12

  
	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  	
   

  
	
  Security Interests in Personal Property

  
	
   

  	
   

  
	
  SECTION 4.01.
  Security Interest

  	
  14

  
	
  SECTION 4.02.
  Representations and Warranties

  	
  16

  
	
  SECTION 4.03.
  Covenants

  	
  18

  
	
  SECTION 4.04.
  Other Actions

  	
  23

  
	
  SECTION 4.05. Covenants Regarding Patent,
  Trademark and Copyright Collateral

  	
  27

  



 


i

















 


	
  ARTICLE V

  
	
   

  	
   

  
	
  Remedies

  
	
   

  	
   

  
	
  SECTION 5.01.
  Remedies Upon Default

  	
  29

  
	
  SECTION 5.02.
  Application of Proceeds

  	
  31

  
	
  SECTION 5.03.
  Grant of License to Use Intellectual Property

  	
  31

  
	
  SECTION 5.04.
  Securities Act

  	
  32

  
	
  SECTION 5.05.
  Registration

  	
  33

  
	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  	
   

  
	
  Indemnity, Subrogation and Subordination

  
	
   

  	
   

  
	
  SECTION 6.01.
  Indemnity and Subrogation

  	
  33

  
	
  SECTION 6.02.
  Contribution and Subrogation

  	
  34

  
	
  SECTION 6.03.
  Subordination

  	
  34

  
	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  	
   

  
	
  Miscellaneous

  
	
   

  	
   

  
	
  SECTION 7.01.
  Notices

  	
  34

  
	
  SECTION 7.02.
  Waivers; Amendment

  	
  35

  
	
  SECTION 7.03.
  Administrative Agent’s Fees and Expenses; Indemnification

  	
  35

  
	
  SECTION 7.04.
  Successors and Assigns

  	
  36

  
	
  SECTION 7.05.
  Survival of Agreement

  	
  36

  
	
  SECTION 7.06.
  Counterparts; Effectiveness; Several Agreement

  	
  36

  
	
  SECTION 7.07.
  Severability

  	
  36

  
	
  SECTION 7.08.
  Right of Set-Off

  	
  37

  
	
  SECTION 7.09.
  Governing Law; Jurisdiction; Consent to Service of Process

  	
  37

  
	
  SECTION 7.10.
  WAIVER OF JURY TRIAL

  	
  38

  
	
  SECTION 7.11.
  Headings

  	
  38

  
	
  SECTION 7.12.
  Security Interest Absolute

  	
  38

  
	
  SECTION 7.13.
  Termination or Release

  	
  39

  
	
  SECTION 7.14.
  Additional Subsidiaries

  	
  40

  
	
  SECTION 7.15.
  Administrative Agent Appointed Attorney-in-Fact

  	
  40

  
	
  SECTION 7.16.
  Intercreditor Agreement

  	
  41

  



 


ii

















 


	
  Schedules

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule I

  	
  Subsidiary Parties

  	
   

  
	
  Schedule II

  	
  Pledged Equity
  Interests; Pledged Debt Securities

  	
   

  
	
  Schedule III

  	
  Intellectual Property

  	
   

  
	
  Schedule IV

  	
  Commercial Tort Claims

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit I

  	
  Form of Supplement

  	
   

  
	
  Exhibit II

  	
  Form of Patent and
  Trademark Security Agreement

  	
   

  
	
  Exhibit III

  	
  Form of Copyright
  Security Agreement

  	
   

  



 


 


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GUARANTEE
AND COLLATERAL AGREEMENT (this “Agreement”) dated as of [       ], 2010, among SMURFIT-STONE CONTAINER
CORPORATION (formerly known as Smurfit-Stone Container
Enterprises, Inc.)(1), the Subsidiaries parties hereto and JPMORGAN CHASE
BANK, N.A. (“JPMCB”), as Administrative Agent.


 


Reference is made to the
Credit Agreement dated as of [     ],
2010 (as amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), among Smurfit-Stone Container
Corporation, Smurfit-Stone Container Enterprises, Inc. (“SSCE”),
the Lenders party thereto and JPMCB, as Administrative Agent.  The Lenders have agreed to extend credit to
the Borrower subject to the terms and conditions set forth in the Credit
Agreement.  The obligations of the
Lenders to extend such credit are conditioned upon, among other things, the
execution and delivery of this Agreement. 
The Subsidiary Parties are affiliates of the Borrower, will derive
substantial benefits from the extension of credit to the Borrower pursuant to
the Credit Agreement and are willing to execute and deliver this Agreement in
order to induce the Lenders to extend such credit.  Accordingly, the parties hereto agree as
follows:


 


ARTICLE I


 


Definitions


 


SECTION 1.01. 
Credit Agreement.  (a)  Capitalized terms used in this
Agreement, including the preamble and introductory paragraph hereto, and not
otherwise defined herein have the meanings specified in the Credit Agreement.  All terms defined in the New York UCC (as
defined herein) and not defined in this Agreement have the meanings specified
therein; the term “instrument” shall have the meaning specified in
Article 9 of the New York UCC.


 


(b)  The rules of construction specified in Section 1.02
of the Credit Agreement also apply to this Agreement.


 


SECTION 1.02. 
Other Defined Terms.  As
used in this Agreement, the following terms have the meanings specified below:


 


“Account Debtor” means any Person who is or who
may become obligated to any Grantor under, with respect to or on account of an
Account.


 


“Accounts Receivable” means all Accounts and
other rights to payment for the sale, lease, license, assignment or other
disposal of any Inventory or the


 






(1) Form assumes agreement to be entered
into following the merger of Smurfit-Stone Container Corporation into
Smurfit-Stone Enterprises, Inc., after which the surviving corporation
shall change its name to Smurfit-Stone Container Corporation.


 

















 


performance of services
(whether performed or to be performed), existing on the date of this Agreement
or hereafter arising, whether or not earned by performance.


 


“Article 9
Collateral” has the meaning assigned to such term in Section 4.01.


 


“Borrower” has the
meaning assigned to such term in the Credit Agreement and includes any
successor by merger or consolidation.


 


“Canadian Collateral”
has the meaning assigned to such term in the IntercreditorAgreement.


 


“Cash Collateral
Account” means a non-interest bearing cash collateral account maintained
with, and in the sole dominion and control of, the Administrative Agent for the
benefit of the Secured Parties.


 


“Claiming Party”
has the meaning assigned to such term in Section 6.02.


 


“Collateral” means
all Article 9 Collateral in which a security interest has been granted
hereunder and all Pledged Collateral.


 


“Collateral Access
Agreement” means any landlord waiver or other agreement, in form and
substance reasonably satisfactory to the Administrative Agent, between the
Administrative Agent and any third party (including any bailee, consignee,
customs broker, or other similar Person) (which landlord waiver or other
agreement may also be for the benefit of the Revolver Collateral Agent or
Permitted Notes Agent) in possession of any Collateral or any landlord of any
Loan Party for any real property where any Collateral is located, as such
landlord waiver or other agreement may be amended, restated, or otherwise
modified from time to time.


 


“Contract Rights”
means all rights of any Grantor under each Contract, including, without limitation,
(i) any and all rights to receive and demand payments under any or all
Contracts, (ii) any and all rights to receive and compel performance under
any or all Contracts and (iii) any and all other rights, interests and
claims now existing or in the future arising in connection with any or all
Contracts.


 


“Contracts” means
all contracts between any Grantor and one or more additional parties
(including, without limitation, any Hedging Agreements, licensing agreements
and any partnership agreements, joint venture agreements and limited liability
company agreements).


 


“Contributing Party”
has the meaning assigned to such term in Section 6.02.


 


“Copyright License”
means any written agreement, now or hereafter in effect, granting any right to
any third party under any Copyright now or hereafter owned by any Grantor or
that such Grantor otherwise has the right to license, or granting any 


 


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right to any Grantor
under any copyright now or hereafter owned by any third party, and all rights
of such Grantor under any such agreement.


 


“Copyright Security
Agreement” means the Copyright Security Agreement dated as of the date
hereof, among SSCE, the Subsidiaries party thereto and JPMCB, as the
Administrative Agent, substantially in the form of Exhibit III.


 


“Copyrights” means
all of the following now owned or hereafter acquired by any Grantor:  (a) all copyright rights in any work
subject to the copyright laws of the United States, whether as author,
assignee, transferee or otherwise, and (b) all registrations and
applications for registration of any such copyright in the United States,
including registrations, recordings, supplemental registrations and pending
applications for registration in the United States Copyright Office, including
those listed on Schedule III.


 


“Credit Agreement”
has the meaning assigned to such term in the preliminary statement of this
Agreement.


 


“Discharge” has
the meaning assigned to such term in the Intercreditor Agreement.


 


“Excluded Investment
Property” means, at any time, Investment Property (other than those subject
to Article III) held by any Grantor in the form of Equity Interests or
other securities, in each case, (a) that are not publicly traded,
(b) with respect to which a grant of a security interest is not prohibited
or does not constitute or result in a breach or termination under the terms of,
or a default under, any contract or agreement relating to such Investment
Property and (c) whose book value, together with the aggregate book value
of all other Excluded Investment Property, does not exceed $50,000,000 in the
aggregate at such time.


 


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


 


“Fixtures” means,
with respect to any real property of any Grantor, goods that have become so
related to such real property that an interest in them arises under real
property law, including all plant fixtures, trade fixtures, business fixtures,
other fixtures and storage office facilities, and all additions and accessions
thereto and replacements therefor.


 


“General Intangibles” means all choses in
action and causes of action and all other intangible personal property of every
kind and nature (other than Accounts) now owned or hereafter acquired by any
Grantor, including corporate or other business records, indemnification claims,
contract rights (including rights under leases, whether entered into as lessor
or lessee, Hedging Agreements and other agreements), Intellectual Property,
goodwill, registrations, franchises, tax refund claims and any letter of
credit, guarantee, claim, security interest or other security held by or
granted to any Grantor to secure payment by an Account Debtor of any of the
Accounts.


 


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“Grantors”
means SSCE and the Subsidiary Parties.


 


“Guarantors”
means the Subsidiary Parties, or the Borrower with respect to any monetary
obligations not owed by the Borrower under each Qualified Secured Hedging
Agreement that are treated as an “Obligation” pursuant to the terms of Section 9.19
of the Credit Agreement and each Qualified Secured Cash Management Agreement
that are treated as an “Obligation” pursuant to the terms of Section 9.19
of the Credit Agreement.


 


“Guaranteed
Party” shall mean the Borrower, each other Guarantor and each Subsidiary
party to any Qualified Secured Hedging Agreement or any Qualified Secured Cash
Management Agreement.


 


“Intellectual
Property” means all intellectual and similar property of every kind and
nature now owned or hereafter acquired by any Grantor, including inventions,
designs, Patents, Copyrights, Licenses, Trademarks, trade secrets, confidential
or proprietary technical and business information, know-how, show-how or other
data or information, software and databases and all embodiments or fixations
thereof and related documentation, registrations and franchises, and all
additions, improvements and accessions to, and books and records describing or
used in connection with, any of the foregoing.


 


“IP
Security Agreements” means the Patent and Trademark Security Agreement and
the Copyright Security Agreement.


 


“JPMCB”
has the meaning assigned to such term in the preliminary statement of this
Agreement.


 


“License”
means any Patent License, Trademark License, Copyright License or other license
or sublicense agreement relating to intellectual property to which any Grantor
is a party, including those listed on Schedule III but excluding any
license agreement that validly prohibits the collateral assignment or grant of
a security interest by such Grantor.


 


“New
York UCC” means the Uniform Commercial Code as from time to time in effect
in the State of New York.


 


“Patent
and Trademark Security Agreement” means the Patent and Trademark Security
Agreement dated as of the date thereof, among SSCE, the Subsidiaries party
thereto and JPMCB, as the Administrative Agent, substantially in the form of Exhibit II.


 


“Patent
License” means any written agreement, now or hereafter in effect, granting
to any third party any right to make, use or sell any invention on which a
Patent, now or hereafter owned by any Grantor or that any Grantor otherwise has
the right to license, is in existence, or granting to any Grantor any right to
make, use or sell any invention on which a patent, now or hereafter owned by
any third party, is in existence, and all rights of any Grantor under any such
agreement.


 


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“Patents”
means all of the following now owned or hereafter acquired by any Grantor:  (a) all letters patent of the United
States, all registrations and recordings thereof, and all applications for
letters patent of the United States, including registrations, recordings and
pending applications in the United States Patent and Trademark Office, including
those listed on Schedule III, and (b) all reissues,
continuations, divisions, continuations-in-part, renewals or extensions
thereof, and the inventions disclosed or claimed therein, including the right
to make, use and/or sell the inventions disclosed or claimed therein.


 


“Permitted
Notes Documents” has the meaning assigned to such term in the Intercreditor
Agreement.


 


“Pledged
Collateral” has the meaning assigned to such term in Section 3.01.


 


“Pledged
Debt Securities” has the meaning assigned to such term in Section 3.01.


 


“Pledged
Equity Interests” has the meaning assigned to such term in Section 3.01.


 


“Pledged
Securities” means any promissory notes, stock certificates or other
securities certificates or instruments now or hereafter included in the Pledged
Collateral, including all certificates, instruments or other documents
representing or evidencing any Pledged Collateral.


 


“Revolving
Credit Documents” has the meaning assigned to such term in the
Intercreditor Agreement.


 


“Revolving
Credit Obligations” shall (i) prior to the Funding Date, have the
meaning assigned to such term in the form of Intercreditor Agreement attached
as Exhibit E to the Credit Agreement, and (ii) from and after
the Funding Date, have the meaning assigned to such term in the Intercreditor
Agreement.


 


“Secured
Parties” means (a) the Lenders, (b) the Administrative Agent, (c) each
counterparty to any Qualified Secured Hedging Agreement, (d) each Person
to whom any Cash Management Services Obligations in respect of any Qualified
Secured Cash Management Agreement are owed, (e) the beneficiaries of each
indemnification obligation undertaken by any Loan Party under any Loan Document
and (f) the successors and assigns of each of the foregoing.


 


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


 


“SSCE”
has the meaning assigned to such term in the preliminary statement of this
Agreement and includes any successor by merger or consolidation.


 


“Subsidiary
Parties” means (a) the Subsidiaries identified on Schedule I
and (b) each other Subsidiary that becomes a party to this Agreement as a
Subsidiary 


 


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Party
after the Funding Date, other than any such Subsidiary that is released from
its obligations hereunder in accordance with the Credit Agreement.


 


“Trademark
License” means any written agreement, now or hereafter in effect, granting
to any third party any right to use any Trademark now or hereafter owned by any
Grantor or that any Grantor otherwise has the right to license, or granting to
any Grantor any right to use any trademark now or hereafter owned by any third
party, and all rights of any Grantor under any such agreement.


 


“Trademarks”
means all of the following now owned or hereafter acquired by any Grantor:  (a) all trademarks, service marks, trade
names, corporate names, company names, business names, fictitious business
names, trade styles, trade dress, logos, other source or business identifiers,
designs and General Intangibles of like nature, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
registration and recording applications filed in connection therewith,
including registrations and registration applications in the United States
Patent and Trademark Office or any similar offices in any State of the United
States, and all extensions or renewals thereof, including those listed on Schedule III,
(b) all goodwill associated therewith or symbolized thereby and (c) all
other assets, rights and interests that uniquely reflect or embody such
goodwill.


 


ARTICLE II


 


Guarantee


 


SECTION 2.01.
Guarantee.  Each Guarantor
unconditionally and irrevocably guarantees, jointly with the other Guarantors
and severally, as the primary obligation and debt of each Guarantor and not merely
as a surety, the due, prompt and complete payment and performance of the
Obligations.  Each of the Guarantors
further agrees that the Obligations may be extended or renewed, in whole or in
part, without notice to or further assent from it, and that it will remain
bound upon its guarantee notwithstanding any extension or renewal of any
Obligation.  Each of the Guarantors
waives presentment to, demand of payment from and protest to the Borrower or
any other Guaranteed Party of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment.


 


SECTION 2.02.
Guarantee of Payment.  Each of the
Guarantors further agrees that its guarantee hereunder constitutes a guarantee
of payment when due and not of collection, and waives any right to require that
any resort be had by the Administrative Agent or any other Secured Party to any
other Guarantor or any Guaranteed Party to any security held for the payment of
the Obligations or to any balance of any deposit account or credit on the books
of the Administrative Agent or any other Secured Party in favor of the Borrower
or any other Person.


 


SECTION 2.03.      No Limitations.  (a) 
Except for termination or release of a Guarantor’s obligations hereunder as
expressly provided in Section 7.13, the obligations of each
Guarantor hereunder shall not be subject to any reduction, limitation, 


 


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impairment
or termination for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense (other than
defense of payment in full in cash) or set-off, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise.  Without limiting the generality of the
foregoing, the obligations of each Guarantor hereunder shall not be discharged
or impaired or otherwise affected by (i) the failure of the Administrative
Agent or any other Secured Party to assert any claim or demand or to enforce
any right or remedy under the provisions of any Loan Document, Qualified
Secured Hedging Agreement, Qualified Secured Cash Management Agreement or
otherwise; (ii) any rescission, waiver, amendment or modification of, or
any release from any of the terms or provisions of, any Loan Document,
Qualified Secured Hedging Agreement, Qualified Secured Cash Management
Agreement or any other agreement, including with respect to any other Guarantor
under this Agreement; (iii) the release of any security held by the
Administrative Agent or any other Secured Party for the Obligations or any of
them; (iv) any default, failure or delay, wilful or otherwise, in the
performance of the Obligations; or (v) any other act or omission that may
or might in any manner or to any extent vary the risk of any Guarantor or
otherwise operate as a discharge of any Guarantor as a matter of law or equity
(other than the indefeasible payment in full in cash of all the Obligations).  Each Guarantor expressly authorizes the
Secured Parties to take and hold security for the payment and performance of
the Obligations, to exchange, waive or release any or all such security (with
or without consideration), to enforce or apply such security and direct the
order and manner of any sale thereof in their sole discretion or to release or
substitute any one or more other guarantors or obligors upon or in respect of
the Obligations, all without affecting the obligations of any Guarantor
hereunder.


 


(b)  To the fullest extent permitted by applicable
law, each Guarantor waives any defense based on or arising out of any defense
of the Borrower or any other Guaranteed Party or the unenforceability of the
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower or any other Guaranteed Party, other than the
indefeasible payment in full in cash of all the Obligations.  The Administrative Agent and the other
Secured Parties may, at their election, foreclose on any security held by one
or more of them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise or adjust
any part of the Obligations, make any other accommodation with the Borrower or
any other Guaranteed Party or exercise any other right or remedy available to
them against the Borrower or any other Guaranteed Party, without affecting or
impairing in any way the liability of any Guarantor hereunder except to the
extent the Obligations have been fully and indefeasibly paid in full in
cash.  To the fullest extent permitted by
applicable law, each Guarantor waives any defense arising out of any such
election even though such election operates, pursuant to applicable law, to
impair or to extinguish any right of reimbursement or subrogation or other
right or remedy of such Guarantor against the Borrower or any other Guaranteed
Party, as the case may be, or any security.


 


SECTION 2.04.
Reinstatement.  Each of the
Guarantors agrees that its guarantee hereunder shall continue to be effective
or be reinstated, as the case may be, if 


 


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at any time payment, or any
part thereof, of any Obligation is rescinded or must otherwise be restored by
the Administrative Agent or any other Secured Party upon the bankruptcy or
reorganization of the Borrower, any other Guaranteed Party or otherwise.


 


SECTION 2.05.
Agreement To Pay; Subrogation.  In
furtherance of the foregoing and not in limitation of any other right that the
Administrative Agent or any other Secured Party has at law or in equity against
any Guarantor by virtue hereof, upon the failure of the Borrower or any other
Guaranteed Party to pay any Obligation when and as the same shall become due,
whether at maturity, by acceleration, after notice of prepayment or otherwise,
each Guarantor hereby promises to and will forthwith pay, or cause to be paid,
to the Administrative Agent for distribution to the applicable Secured Parties
in cash the amount of such unpaid Obligation. 
Upon payment by or on behalf of any Guarantor of any sums to the
Administrative Agent as provided above, all rights of such Guarantor against
the Borrower or any other Guaranteed Party arising as a result thereof by way
of right of subrogation, contribution, reimbursement, indemnity or otherwise
shall in all respects be subject to Article VI.


 


SECTION 2.06.
Information.  Each Guarantor
assumes all responsibility for being and keeping itself informed of the
Borrower’s and each other Guaranteed Party’s financial condition and assets,
and of all other circumstances bearing upon the risk of nonpayment of the
Obligations and the nature, scope and extent of the risks that such Guarantor
assumes and incurs hereunder, and agrees that none of the Administrative Agent or
the other Secured Parties will have any duty to advise such Guarantor of
information known to it or any of them regarding such circumstances or risks.


 


ARTICLE III


 


Pledge of Securities


 


SECTION 3.01.
Pledge.  As security for the
payment or performance, as the case may be, in full of the Obligations, each
Grantor hereby collaterally assigns and pledges to the Administrative Agent,
its successors and assigns, for the ratable benefit of the Secured Parties, and
hereby grants to the Administrative Agent, its successors and assigns, for the
ratable benefit of the Secured Parties, a security interest in, all of such
Grantor’s right, title and interest in, to and under:


 


(a) the
shares of capital stock and other Equity Interests of (i) each Guarantor
(other than the Borrower) owned by such Grantor including those listed on Schedule
II, (ii)  SSC Canada (or, if applicable, each Foreign Subsidiary
that owns, directly or indirectly, any Equity Interests of SSC Canada and the
Equity Interests of which are owed directly by such Grantor) owned by such
Grantor on the date hereof and listed on Schedule II, (iii) each
other Foreign Subsidiary of the Borrower that is a Material Subsidiary and the
Equity Interests of which are owned directly by such Grantor including those listed
on Schedule II and (iv) any other Equity Interests obtained in
the future by such Grantor in (A) any Domestic Subsidiary that is a
Material Subsidiary, (B) SSC Canada (or, if applicable, each Foreign
Subsidiary that owns, directly or indirectly, any Equity Interests of SSC
Canada and the Equity Interests of which are owed directly 


 


8

















 


by such Grantor) or (C) any
Foreign Subsidiary of the Borrower that is a Material Subsidiary and the Equity
Interests of which are owned directly by such Grantor, and the certificates
representing all such Equity Interests (all such Equity Interests referred to
in clauses (i), (ii), (iii), and (iv) above
being referred to as the “Pledged Equity Interests”); provided
that the Pledged Equity Interests shall not include (x)  to the extent
that applicable law requires that a Subsidiary issue directors’ qualifying
shares, any such qualifying shares, and (y) more than 65% of the issued
and outstanding voting Equity Interests of SSC Canada or any other Foreign
Subsidiary;


 


(b)(i) the
promissory notes owned by it on the date hereof and listed opposite the name of
such Grantor on Schedule II, (ii) each promissory note
evidencing intercompany Indebtedness among the Borrower and/or any of its
Subsidiaries (including each promissory note evidencing amounts owed in
connection with the intercompany settlements referred to in Section 5.15(i) of
the Credit Agreement and other intercompany receivables) owned by and owed to
such Grantor after the date hereof and (iii) each other promissory note
evidencing Indebtedness on or after the date hereof owed to such Grantor other
than Indebtedness in a principal amount of less than $5,000,000, so long as the
aggregate principal amount of Indebtedness not so pledged under this exclusion
does not exceed $10,000,000 (the promissory notes referenced in the preceding clauses (i),
(ii) and (iii) being referred to as the “Pledged
Debt Securities”);


 


(c) subject
to Section 3.06, all payments of principal or interest, dividends,
cash, instruments and other property from time to time received, receivable or
otherwise distributed in respect of, in exchange for or upon the conversion of,
and all other Proceeds received in respect of, the securities referred to in clauses (a) and
(b) above; and


 


(d) all
Proceeds of any of the foregoing (the items referred to in clauses (a),
(b), (c) and (d) of this Section 3.01 above being collectively
referred to as the “Pledged Collateral”).


 


TO
HAVE AND TO HOLD the Pledged Collateral, together with all right, title,
interest, powers, privileges and preferences pertaining or incidental thereto,
unto the Administrative Agent, its successors and assigns, for the ratable
benefit of the Secured Parties, as security for the payment or performance, as
the case may be, in full of the Obligations; subject, however, to
the terms, covenants and conditions hereinafter set forth.


 


SECTION 3.02.
Delivery of the Pledged Collateral. 
(a)  Each Grantor agrees promptly to deliver or cause to be
delivered to the Administrative Agent any and all Pledged Securities at any
time owned by such Grantor.


 


(b)  Each Grantor will cause any Indebtedness for
borrowed money owed to such Grantor by the Borrower and/or any of its
Subsidiaries (including amounts owed in connection with intercompany
settlements referred to in Section 5.15(i) of the Credit
Agreement and other intercompany receivables) (other than any Investment
Property on deposit with a Securities Intermediary) to be evidenced by a duly
executed promissory 


 


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note that is pledged and
delivered to the Administrative Agent pursuant to the terms hereof.


 


(c)  Upon delivery to the Administrative Agent, (i) any
Pledged Securities shall be accompanied by undated stock powers duly executed
in blank or other instruments of transfer reasonably satisfactory to the
Administrative Agent and by such other instruments and documents as the
Administrative Agent may reasonably request and (ii) all other property
comprising part of the Pledged Collateral shall be accompanied by proper
instruments of assignment duly executed by the applicable Grantor and such
other instruments or documents as the Administrative Agent may reasonably
request.  Each delivery of Pledged
Securities after the date of this Agreement shall be accompanied by a schedule
describing the Pledged Securities so delivered, which schedule shall be
attached hereto as a supplement to Schedule II and made a part
hereof; provided that failure to attach any such schedule hereto shall
not affect the validity of such pledge of such Pledged Securities.


 


(d)  The assignment, pledges and security
interests granted in Section 3.01 are granted as security only and
shall not subject the Administrative Agent or any other Secured Party to, or in
any way alter or modify, any obligation or liability of any Grantor with
respect to or arising out of the Pledged Collateral.


 


SECTION 3.03.
Representations, Warranties and Covenants.  The Grantors jointly and severally represent,
warrant and covenant to and with the Administrative Agent, for the benefit of
the Secured Parties, that:


 


(a)  Schedule II correctly sets forth, as
of the Funding Date, with respect to each Grantor, (i) all of the Equity
Interests owned by such Grantor and required to be pledged hereunder on the
Funding Date, the percentage of the issued and outstanding units of each class
of the Equity Interests of the issuer thereof so represented by the Pledged
Equity Interests and the number of each certificate representing the same and (ii) all
promissory notes owned by each Grantor and required to be pledged hereunder on
the Funding Date;


 


(b)  the Pledged Equity Interests and Pledged Debt
Securities, in each case issued by Subsidiaries, have been duly and validly
authorized and issued by the issuers thereof and (i) in the case of
Pledged Equity Interests, are fully paid and nonassessable and (ii) in the
case of Pledged Debt Securities, are legal, valid and binding obligations of
the issuers thereof, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered
in a proceeding in equity or at law;


 


(c)  except for the security interests granted
hereunder, each of the Grantors (i) is and, subject to any sales,
transfers or other dispositions, and mergers, consolidations and amalgamations,
made in compliance with the Credit Agreement, will continue to be the direct
owner, beneficially and of record, of the Pledged Securities indicated on Schedule
II as owned by such Grantor, (ii) holds 


 


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the
same free and clear of all Liens (other than Permitted Liens and other Liens
contemplated in the Intercreditor Agreement), (iii) except for Liens
contemplated in the Intercreditor Agreement, will not pledge or hypothecate, or
otherwise create a consensual Lien on, the Pledged Collateral, and (iv) will
defend its title or interest thereto or therein against any and all Liens
(other than the Lien created by this Agreement, Permitted Liens and Liens
contemplated in the Intercreditor Agreement), however arising, of all Persons
whomsoever;


 


(d)  except for restrictions and limitations
imposed by the Loan Documents, the Revolving Credit Documents, the Permitted
Notes Documents, the Intercreditor Agreement or applicable laws (including
securities laws) generally, the Pledged Collateral is and will continue to be
freely transferable and assignable, and none of the Pledged Collateral is or
will be subject to (i) any option, right of first refusal, shareholders
agreement or charter or by-law provisions that might prohibit, impair, delay
(except pursuant to any applicable notice or like provisions) or otherwise
adversely affect the pledge of such Pledged Collateral hereunder, the sale or
disposition thereof pursuant hereto or the exercise by the Administrative Agent
of its rights and remedies hereunder with respect thereto, or (ii) any
other contractual restriction of any nature that might prohibit the pledge of
such Pledged Collateral hereunder or prohibit or in any material manner impair,
delay or otherwise adversely affect the sale or disposition of such Pledged
Collateral pursuant hereto or the exercise by the Administrative Agent of its
rights and remedies hereunder with respect thereto;


 


(e)  each of the Grantors has the power and
authority to pledge the Pledged Collateral pledged by it hereunder in the
manner hereby done or contemplated;


 


(f)  no consent or approval of any Governmental
Authority, any securities exchange or any other Person was or is necessary to
the validity of the pledge effected hereby (other than such as have been
obtained and are in full force and effect);


 


(g)  by virtue of the execution and delivery by
the Grantors of this Agreement, when any Pledged Securities are delivered to
the Administrative Agent in accordance with this Agreement, the Administrative
Agent will obtain a legal, valid and perfected lien upon and security interest
in such Pledged Securities as security for the payment and performance of the
Obligations; and


 


(h)  the pledge effected hereby is effective to
vest in the Administrative Agent, for the benefit of the Secured Parties, the
rights of the Administrative Agent in the Pledged Collateral as set forth
herein.


 


SECTION 3.04.
Certification of Limited Liability Company and Limited Partnership Interests.  Each Grantor acknowledges and agrees that (i) to
the extent any interest in any limited liability company or limited partnership
controlled on or after the date hereof by such Grantor and pledged hereunder is
a “security” within the meaning of Article 8 of the New York UCC and is
governed by Article 8 of the New York UCC, 


 


11

















 


such interest shall be
certificated and (ii) each such interest shall at all times hereafter
continue to be such a security and represented by such certificate.  Each Grantor further acknowledges and agrees
that with respect to any interest in any limited liability company or limited
partnership controlled on or after the date hereof by such Grantor and pledged
hereunder that is not a “security” within the meaning of Article 8 of the
New York UCC, such Grantor shall at no time elect to treat any such interest as
a “security” within the meaning of Article 8 of the New York UCC, nor
shall such interest be represented by a certificate, such election and such
interest is thereafter represented by a certificate that is promptly delivered
to the Administrative Agent pursuant to the terms hereof.


 


SECTION 3.05.
Registration in Nominee Name; Denominations.  The Administrative Agent, on behalf of the
Secured Parties, shall have the right (in its sole and absolute discretion) to
hold the Pledged Securities in its own name as pledgee, the name of its nominee
(as pledgee or as sub-agent) or the name of the applicable Grantor, endorsed or
assigned in blank or in favor of the Administrative Agent.  The Administrative Agent shall, at any time
after the occurrence and during the continuance of an Event of Default, have
the right to exchange the certificates representing Pledged Securities for
certificates of smaller or larger denominations for any purpose consistent with
this Agreement.


 


SECTION 3.06.
Voting Rights; Dividends and Interest. 
(a)  Unless and until an Event of Default shall have occurred and
be continuing and the Administrative Agent shall have notified the Grantors in
writing that their rights under this Section 3.06 are being
suspended:


 


(i)  Each Grantor shall be entitled to exercise
any and all voting and/or other rights and powers inuring to an owner of
Pledged Equity Interests or Pledged Debt Securities or any part thereof for any
purpose consistent with the terms of this Agreement, the Credit Agreement and
the other Loan Documents; provided that such rights and powers shall not
be exercised in any manner that could reasonably be expected to materially and
adversely affect the rights inuring to a holder of any Pledged Equity Interests
or Pledged Debt Securities or the rights and remedies of any of the
Administrative Agent or the other Secured Parties under this Agreement, the
Credit Agreement or any other Loan Document or the ability of the
Administrative Agent or the Secured Parties to exercise the same.


 


(ii)  The Administrative Agent shall execute and
deliver to each Grantor, or cause to be executed and delivered to such Grantor,
all such proxies, powers of attorney and other instruments as such Grantor may
reasonably request for the purpose of enabling such Grantor to exercise the
voting rights and powers it is entitled to exercise pursuant to paragraph (i) above
and to receive the cash dividends, interest, principal and other distributions
it is entitled to receive and retain pursuant to paragraph (iii) below.


 


12

















 


(iii)  Each Grantor shall be entitled to receive and
retain any and all dividends, interest, principal, cash, instruments and other
property and all distributions from time to time received, receivable or
otherwise paid on or distributed in respect of, in exchange for or upon
conversion of, the Pledged Equity Interests of Pledge Debt Securities to the
extent and only to the extent that such dividends, interest, principal and
other distributions are permitted by, and otherwise paid or distributed in
accordance with, the terms and conditions of the Credit Agreement, the other
Loan Documents and applicable laws; provided that any noncash dividends,
interest, principal or other distributions that would constitute Pledged Equity
Interests or Pledged Debt Securities, whether resulting from a subdivision,
combination or reclassification of the outstanding Equity Interests of the
issuer of any Pledged Securities or received in exchange for Pledged Securities
or any part thereof, or in redemption thereof, or as a result of any merger,
consolidation, acquisition or other exchange of assets to which such issuer may
be a party or otherwise, shall be and become part of the Pledged Collateral,
and, if received by any Grantor, shall not be commingled by such Grantor with
any of its other funds or property but shall be held separate and apart
therefrom, shall be held in trust for the benefit of the Administrative Agent
and shall be forthwith delivered to the Administrative Agent in the same form
as so received (with any necessary endorsement).


 


(b)  Upon the occurrence and during the
continuance of an Event of Default, after the Administrative Agent shall have
notified the Grantors in writing of the suspension of their rights under paragraph
(a)(iii) above, all rights of any Grantor to dividends, interest,
principal or other distributions that such Grantor is authorized to receive
pursuant to paragraph (a)(iii) above, and the obligations of
the Administrative Agent under paragraph (a)(ii) above, shall
cease, and all such rights shall thereupon become vested in the Administrative
Agent, which shall have the sole and exclusive right and authority to receive
and retain such dividends, interest, principal or other distributions.  All dividends, interest, principal or other
distributions received by any Grantor contrary to the provisions of this Section 3.06
shall be held in trust for the benefit of the Administrative Agent, shall be
segregated from other property or funds of such Grantor and, subject to the
rights of the Revolver Collateral Agent and the Permitted Notes Agent under the
Intercreditor Agreement, shall be forthwith delivered to the Administrative
Agent upon demand in the same form as so received (with any necessary endorsement).  Any and all money and other property paid
over to or received by the Administrative Agent pursuant to the provisions of
this paragraph (b) shall be retained by the Administrative Agent in
an account to be established by the Administrative Agent upon receipt of such
money or other property and shall be applied in accordance with the provisions
of Section 5.02.  After all
Events of Default have been cured or waived and the Borrower has delivered to
the Administrative Agent a certificate to that effect, the Administrative Agent
shall promptly repay to each Grantor (without interest) all dividends,
interest, principal or other distributions that such Grantor would otherwise be
permitted to retain pursuant to the terms of paragraph (a)(iii) above
and that remain in such account.


 


13
















 


(c)  Upon the occurrence and during the
continuance of an Event of Default, after the Administrative Agent shall have
notified the Grantors in writing of the suspension of their rights under paragraph
(a)(i) above, all rights of any Grantor to exercise the voting and
consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) above,
and the obligations of the Administrative Agent under paragraph (a)(ii) above,
shall cease, and all such rights shall thereupon become, subject to the rights
of the Revolver Collateral Agent and the Permitted Notes Agent under the
Intercreditor Agreement, vested in the Administrative Agent, which shall have
the sole and exclusive right and authority to exercise such voting and
consensual rights and powers; provided that, unless otherwise directed
by the Required Lenders, the Administrative Agent shall have the right from
time to time following and during the continuance of an Event of Default to
permit the Grantors to exercise such rights.


 


(d)  Any notice given by the Administrative Agent
to the Grantors suspending their rights under paragraph (a) of this Section 3.06
(i) may be given by telephone if promptly confirmed in writing, (ii) may
be given to one or more of the Grantors at the same or different times and (iii) may
suspend the rights of the Grantors under paragraph (a)(i) or paragraph (a)(iii) in
part without suspending all such rights (as specified by the Administrative
Agent in its sole and absolute discretion) and without waiving or otherwise affecting
the Administrative Agent’s right to give additional notices from time to time
suspending other rights so long as an Event of Default has occurred and is
continuing.


 


ARTICLE IV


 


Security Interests in Personal Property


 


SECTION 4.01.
Security Interest.  (a)  As
security for the payment or performance, as the case may be, in full of the
Obligations, each Grantor hereby collaterally assigns and pledges to the
Administrative Agent, its successors and assigns, for the benefit of the
Secured Parties, and hereby grants to the Administrative Agent, its successors
and assigns, for the benefit of the Secured Parties, a security interest (the “Security
Interest”) in, all right, title and interest in, to or under any and all of
the following assets and properties now owned or at any time hereafter acquired
by such Grantor or in which such Grantor now has or at any time in the future
may acquire any right, title or interest (collectively, the  “Article 9 Collateral”):


 


	
  (i)

  	
   

  	
  all
  Accounts;

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  all
  Chattel Paper (including, without limitation, all Tangible Chattel Paper and
  all Electronic Chattel Paper);

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  all
  cash and all Deposit Accounts and all monies deposited therein;

  
	
   

  	
   

  	
   

  
	
  (iv)

  	
   

  	
  all
  Equipment (including all Fixtures);

  
	
   

  	
   

  	
   

  
	
  (v)

  	
   

  	
  all Documents;

  



 


14

















 


	
  (vi)

  	
   

  	
  all
  General Intangibles (including Intellectual Property);

  
	
   

  	
   

  	
   

  
	
  (vii)

  	
   

  	
  all
  Instruments;

  
	
   

  	
   

  	
   

  
	
  (viii)

  	
   

  	
  all
  Inventory;

  
	
   

  	
   

  	
   

  
	
  (ix)

  	
   

  	
  all
  Investment Property (including all Commodities Contracts, Commodities
  Accounts, Securities and Securities Accounts and Security Entitlements or
  Financial Assets credited thereto);

  
	
   

  	
   

  	
   

  
	
  (x)

  	
   

  	
  all
  Letter of Credit Rights (whether or not the respective letter of credit is
  evidenced by a writing);

  
	
   

  	
   

  	
   

  
	
  (xi)

  	
   

  	
  all
  Commercial Tort Claims described on Schedule IV, as such Schedule may
  be supplemented from time to time;

  
	
   

  	
   

  	
   

  
	
  (xii)

  	
   

  	
  Contracts,
  together with all Contract Rights arising thereunder;

  
	
   

  	
   

  	
   

  
	
  (xiii)

  	
   

  	
  all
  Goods;

  
	
   

  	
   

  	
   

  
	
  (xiv)

  	
   

  	
  all
  Supporting Obligations;

  
	
   

  	
   

  	
   

  
	
  (xv)

  	
   

  	
  all books and Records
  pertaining to the Article 9 Collateral; and

  



 


(xvi)  all products and Proceeds
of the foregoing (including, without limitation, all insurance and claims for
insurance effected or held for the benefit of the Grantors or the Secured
Parties in respect thereof and all collateral security and guarantees given by
any Person with respect to any of the foregoing).


 


(b)  Each Grantor hereby irrevocably authorizes
the Administrative Agent at any time and from time to time to file in any
relevant jurisdiction any initial financing statements (including fixture
filings with respect to Fixtures appurtenant to any Mortgaged Property) with
respect to the Article 9 Collateral or any part thereof and amendments
thereto that (i) indicate the Collateral as all assets of such Grantor or
words of similar effect as being of an equal or lesser scope or with greater
detail, and (ii) contain the information required by Article 9 of the
Uniform Commercial Code or other applicable law of each applicable jurisdiction
for the filing of any financing statement or amendment, including (A) whether
such Grantor is an organization, the type of organization and any
organizational identification number issued to such Grantor and (B) in the
case of a financing statement filed as a fixture filing or covering Article 9
Collateral constituting minerals or the like to be extracted or timber to be
cut, a sufficient description of the real property to which such Article 9
Collateral relates.  Each Grantor agrees
to provide such information to the Administrative Agent promptly upon request.


 


Each
Grantor also ratifies its authorization for the Administrative Agent to file in
any relevant jurisdiction any initial financing statements or amendments
thereto if filed prior to the date hereof.


 


15

















 


The
Administrative Agent is further authorized to file with the United States
Patent and Trademark Office or United States Copyright Office (or any successor
office or any similar office in any other country) such documents as may be
necessary or advisable for the purpose of perfecting, confirming, continuing,
enforcing or protecting the Security Interest granted by each Grantor, without
the signature of any Grantor, and naming any Grantor or the Grantors as debtors
and the Administrative Agent as secured party. 
Each Grantor will pay any applicable filing fees, recordation taxes and
related expenses relating to its Collateral.


 


(c)  The Security Interest is granted as security
only and shall not subject the Administrative Agent or any other Secured Party
to, or in any way alter or modify, any obligation or liability of any Grantor
with respect to or arising out of the Article 9 Collateral.


 


(d)  Notwithstanding anything herein to the
contrary, in no event shall the security interest granted hereunder attach to (i) any
shares of capital stock or other Equity Interests (other than those subject to Article III)
held by any Grantor with respect to which a grant of a security interest is
prohibited or shall constitute or result in a breach or termination under the
terms of, or a default under, any contract or agreement relating to such
capital stock or Equity Interests, (ii) any contract or other agreement to
which any Grantor is a party or to any of its rights, title or interest arising
thereunder if and for so long as the grant of such security interest is
prohibited or shall constitute or result in a breach or termination under the
terms of, or a default under, any such contract or agreement (other than to the
extent that any such term would be rendered ineffective pursuant to Section 9-406,
9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or
principles of equity), (iii) any rights, assets or property to the extent
and for so long as any valid enforceable law or regulation applicable to such
rights, assets or property prohibits the creation of a security interest
therein and (iv) any rights, assets or property to the extent and for so
long as the grant of such security interest would result in material and
adverse tax consequences; provided, however, that such security
interest shall attach immediately at such time as (A) with respect to clauses
(i) and (ii), the condition causing such prohibition,
unenforceability, breach or termination shall be remedied or shall otherwise
cease to exist, (B) with respect to clause (iii), the expiration of
such prohibition and (C) with respect to clause (iv), the
termination or lapse of such result, and, to the extent severable, shall attach
immediately to any portion of such contract, agreement, rights, assets or
property that does not result in any of the consequences specified in this
paragraph, including any Proceeds of such contract, agreement, rights, assets
or property.


 


SECTION 4.02.
Representations and Warranties. 
The Grantors jointly and severally represent and warrant to the
Administrative Agent and the Secured Parties that:


 


(a)  Each Grantor has good and valid rights in and
title to the Article 9 Collateral with respect to which it has purported
to grant a Security Interest hereunder and has full power and authority to
grant to the Administrative Agent the Security Interest in such Article 9
Collateral pursuant hereto and to execute, deliver and perform 


 


16

















 


its obligations in
accordance with the terms of this Agreement, without the consent or approval of
any other Person other than any consent or approval that has been obtained.


 


(b)  The Perfection Certificate has been duly
prepared, completed and executed and the information set forth therein,
including the exact legal name of each Grantor, is correct and complete in all
material respects as of the Funding Date. 
The Uniform Commercial Code financing statements (including fixture
filings, as applicable) prepared by the Administrative Agent based upon the
information provided to the Administrative Agent in the Perfection Certificate
for filing in each governmental, municipal or other office specified in Schedule 2
to the Perfection Certificate (or specified by notice from the Borrower to the
Administrative Agent after the Funding Date in the case of filings, recordings
or registrations required by Section 5.09 of the Credit Agreement),
are all the filings, recordings and registrations (other than filings required
to be made in the United States Patent and Trademark Office and the United
States Copyright Office in order to perfect the Security Interest in Article 9
Collateral consisting of United States Patents, Trademarks and Copyrights and
other than filings, recordings or registrations with respect to federally
documented vessels, registered vehicles and railcars and other similar rolling
stock) that are necessary to publish notice of and protect the validity of and
to establish a legal, valid and perfected security interest in favor of the
Administrative Agent (for the benefit of the Secured Parties) in respect of all
Article 9 Collateral in which the Security Interest may be perfected by
filing a Uniform Commercial Code financing statement in the United States (or
any political subdivision thereof), and no further or subsequent filing,
refiling, recording, rerecording, registration or reregistration is necessary
in the United States for any such Article 9 Collateral, except as provided
under applicable law with respect to the filing of continuation
statements.  Each Grantor shall execute
and deliver to the Administrative Agent on the date hereof each of the IP
Security Agreements, containing (i) in the case of the Patent and
Trademark Security Agreement, a description of all Article 9 Collateral
consisting of the United States Patents and a description of all Article 9
Collateral consisting of United States registered Trademarks (and Trademarks
for which United States registration applications are pending) and (ii) in
the case of the Copyright Security Agreement, a description of all Article 9
Collateral consisting of Copyrights, for recording by the United States Patent
and Trademark Office and the United States Copyright Office pursuant to
35 U.S.C. § 261, 15 U.S.C. § 1060 or
17 U.S.C. § 205 and the regulations thereunder, as applicable,  to protect the
validity of and to establish a legal, valid and perfected security interest in
favor of the Administrative Agent (for the benefit of the Secured Parties) in
respect of all Article 9 Collateral consisting of United States Patents,
Trademarks and Copyrights in which a security interest may be perfected by
filing, recording or registration in the United States Patent and Trademark
Office or the United State Copyright Office, and no further or subsequent
filing, refiling, recording, rerecording, registration or reregistration is
necessary in the United States for any such United States Patents, Trademarks
and Copyrights (other than such actions as are necessary to perfect the
Security Interest with respect to any Article 9 Collateral consisting of
Patents, Trademarks and Copyrights (or registration or application for
registration thereof) acquired or developed after the date hereof).


 


17

















 


(c)  The Security Interest constitutes (i) a
legal and valid security interest in all the Article 9 Collateral securing
the payment and performance of the Obligations, (ii) subject to the
filings described in Section 4.02(b), a perfected security interest
in all Article 9 Collateral in which a security interest may be perfected
by filing Uniform Commercial Code financing statements in the United States (or
any political subdivision thereof) and (iii) a security interest that
shall be perfected in all Article 9 Collateral in which a security
interest may be perfected upon the receipt and recording of the IP Security
Agreements with the United States Patent and Trademark Office and the United
States Copyright Office, as applicable, on or promptly after the Funding
Date.  The Security Interest is and shall
be prior to any other Lien on any of the Article 9 Collateral, other than
Permitted Liens or as otherwise contemplated in the Intercreditor Agreement.


 


(d)  The Article 9 Collateral is owned by the
Grantors free and clear of any Lien, except for Permitted Liens or other Liens
contemplated in the Intercreditor Agreement. 
None of the Grantors has filed or consented to the filing of (i) any
financing statement or analogous document under the Uniform Commercial Code or
any other applicable laws covering any Article 9 Collateral, or (ii) any
assignment in which any Grantor assigns any Collateral as security or any
security agreement or similar instrument covering any Article 9 Collateral
with the United States Patent and Trademark Office or the United States
Copyright Office, except in each case of clauses (i) and (ii) for
Permitted Liens or as otherwise contemplated in the Intercreditor Agreement.


 


(e)  Schedule III hereto sets forth, as of
the date hereof, for each Grantor (i) all United States registered Patents
and Patent applications owned by such Grantor, including the name of the
registered owner, type, registration or application number and the expiration
date (if already registered) thereof, (ii) all United States registered
Trademarks and Trademark applications owned by such Grantor, including the name
of the registered owner, the registration or application number and the
expiration date (if already registered) thereof, and (iii) all United
States registered Copyrights and Copyright applications owned by such Grantor,
including the name of the registered owner, title and, if applicable, the
registration number of each such Copyright or Copyright application.


 


(f)  Schedule IV hereto sets forth, as of
the date hereof, each Commercial Tort Claim in respect of which a compliant or
a counterclaim has been filed by any Grantor seeking damages that exceed
$5,000,000 in reasonable estimated value and which arose in the course of such
Grantor’s business.


 


SECTION 4.03.
Covenants.  (a)   Each Grantor agrees promptly to notify the
Administrative Agent in writing of any change (i) in corporate name, (ii) in
the location of its chief executive office or its principal place of business, (iii) in
its identity or type of organization or corporate structure, (iv) in its
Federal Taxpayer Identification Number or organizational identification number
or (v) in its jurisdiction of organization.  Each Grantor agrees to promptly provide the
Administrative Agent with certified organizational documents reflecting any of
the changes described in the first sentence of this paragraph (a).  Each Grantor agrees not to effect or permit
any change referred to in the preceding sentence unless all filings have been
made under the Uniform Commercial 


 


18

















 


Code
or otherwise that are required in order for the Administrative Agent to
continue at all times following such change to have a valid, legal and
perfected first priority security interest in all the Article 9
Collateral.  Each Grantor agrees promptly
to notify the Administrative Agent if any material portion of the Article 9
Collateral owned or held by such Grantor is damaged or destroyed.


 


(b)  Each Grantor agrees to maintain, at its own
cost and expense, such complete and accurate records with respect to the Article 9
Collateral owned by it as is consistent with its current practices and in
accordance with such prudent and standard practices used in industries that are
the same as or similar to those in which such Grantor is engaged and, at such
time or times, after the occurrence and during the continuance of an Event of
Default as the Administrative Agent may reasonably request, promptly to prepare
and deliver to the Administrative Agent a duly certified schedule or schedules
in form and detail satisfactory to the Administrative Agent showing the
identity, amount and location of any and all Article 9 Collateral.


 


(c)  Each Grantor shall, at its own expense, take
any and all actions reasonably necessary to defend title to the Article 9
Collateral against all Persons and to defend the Security Interest of the
Administrative Agent in the Article 9 Collateral and the priority thereof
against any Liens other than any Permitted Lien or other Liens contemplated in
the Intercreditor Agreement.


 


(d)  Each Grantor agrees, at its own expense, to
execute, acknowledge, deliver and cause to be duly filed all such further
instruments and documents and take all such actions as the Administrative Agent
may from time to time reasonably request to better assure, preserve, protect
and perfect the Security Interest and the rights and remedies created hereby,
including the payment of any fees and taxes required in connection with the
execution and delivery of this Agreement, the granting of the Security Interest
and the filing of any financing statements (including fixture filings) or other
documents in connection herewith or therewith.


 


Without
limiting the generality of the foregoing, each Grantor hereby authorizes the
Administrative Agent, with prompt notice thereof to the Grantors, to supplement
this Agreement by supplementing Schedule III or adding additional
schedules hereto to identify specifically any asset or item that may constitute
Copyrights, Licenses, Patents or Trademarks; provided that any Grantor
shall have the right, exercisable within 30 days after it has been
notified by the Administrative Agent of the specific identification of such
Collateral, to advise the Administrative Agent in writing of any inaccuracy of
the representations and warranties made by such Grantor hereunder with respect
to such Collateral.  Each Grantor agrees
that it will use its commercially reasonable efforts to take such action as
shall be necessary in order that all representations and warranties hereunder
shall be true and correct with respect to such Collateral within 45 days after
the date it has been notified by the Administrative Agent of the specific
identification of such Collateral.


 


(e)  The Administrative Agent and such Persons as
the Administrative Agent may reasonably designate shall have the right, at the
Grantors’ own cost and 


 


19

















 


expense, to inspect the Article 9
Collateral, all records related thereto (and to make extracts and copies from
such records) and the premises upon which any of the Article 9 Collateral
is located, to discuss the Grantors’ affairs with the officers of the Grantors
and their independent accountants, all in accordance with and subject to the
terms and conditions relating to inspections as set forth in Section 5.06
of the Credit Agreement, and to verify under reasonable procedures the
validity, amount, quality, quantity, value, condition and status of, or any
other matter relating to, the Article 9 Collateral, including, in the case
of Accounts or Article 9 Collateral in the possession of any third person,
by contacting, with advance notice to and in coordination with the Grantors
(unless an Event of Default has occurred and is continuing) Account Debtors or
the third person possessing such Article 9 Collateral for the purpose of
making such a verification.  The
Administrative Agent shall have the absolute right to share any information it
gains from such inspection or verification with any Lender (it being understood
that any such information shall be deemed to be “Information” subject to the
provisions of Section 9.14 of the Credit Agreement).


 


(f)  At its option, the Administrative Agent may
discharge past due taxes, assessments, charges, fees, Liens, security interests
or other encumbrances at any time levied or placed on the Article 9
Collateral and not permitted pursuant to the Credit Agreement, and may pay for
the maintenance and preservation of the Article 9 Collateral to the extent
any Grantor fails to do so as required by the Credit Agreement or this
Agreement after written notice thereof is delivered to the Borrower by the
Administrative Agent, and each Grantor jointly and severally agrees to
reimburse the Administrative Agent on demand for any payment made or any
expense incurred by the Administrative Agent pursuant to the foregoing
authorization; provided that nothing in this paragraph (f) shall
be interpreted as excusing any Grantor from the performance of, or imposing any
obligation on the Administrative Agent or any Secured Party to cure or perform,
any covenants or other promises of any Grantor with respect to taxes,
assessments, charges, fees, Liens, security interests or other encumbrances and
maintenance as set forth herein or in the other Loan Documents.


 


(g)  Each Grantor shall remain liable to observe
and perform all the conditions and obligations to be observed and performed by
it under each contract, Agreement or instrument relating to the Article 9
Collateral, all in accordance with the terms and conditions thereof, and each
Grantor jointly and severally agrees to indemnify and hold harmless the
Administrative Agent and the Secured Parties from and against any and all
liability for such performance.


 


(h)  None of the Grantors shall make or permit to
be made an assignment, pledge or hypothecation of the Article 9 Collateral
or shall grant any other Lien in respect of the Article 9 Collateral,
except as permitted by the Credit Agreement. 
None of the Grantors shall make or permit to be made any transfer of the
Article 9 Collateral except that unless and until the Administrative Agent
shall notify the Grantors in writing that an Event of Default shall have
occurred and be continuing and that during the continuance thereof the Grantors
shall not sell, convey, lease, assign, transfer or otherwise dispose of any Article 9
Collateral, the Grantors may use and dispose of the Article 9 Collateral
in 


 


20

















 


any lawful manner not inconsistent
with the provisions of this Agreement, the Credit Agreement or any other Loan
Document.


 


(i)  None of the Grantors will, without the
Administrative Agent’s prior written consent, grant any extension of the time
of payment of any Accounts included in the Article 9 Collateral,
compromise, compound or settle the same for less than the full amount thereof,
release, wholly or partly, any Person liable for the payment thereof or allow
any credit or discount whatsoever thereon, other than extensions, compromises,
settlements, releases, credits or discounts granted or made in the ordinary
course of business.


 


(j)  The Grantors, at their own expense, shall
maintain or cause to be maintained insurance covering physical loss or damage
to the Inventory and Equipment in accordance with the requirements set forth in
Section 5.02 of the Credit Agreement.  Each Grantor irrevocably makes, constitutes
and appoints the Administrative Agent (and all officers, employees or agents
designated by the Administrative Agent) as such Grantor’s true and lawful agent
(and attorney-in-fact) for the purpose, during the continuance of an Event of
Default, of making, settling and adjusting claims in respect of Article 9
Collateral under policies of insurance, endorsing the name of such Grantor on
any check, draft, instrument or other item of payment for the proceeds of such
policies of insurance and for making all determinations and decisions with
respect thereto.  In the event that any
Grantor at any time or times shall fail to obtain or maintain any of the
policies of insurance required hereby or to pay any premium in whole or part
relating thereto, the Administrative Agent may, without waiving or releasing
any obligation or liability of the Grantors hereunder or any Event of Default,
in its sole discretion, upon notice to the Borrower obtain and maintain such
policies of insurance and pay such premium and take any other actions with
respect thereto as the Administrative Agent deems advisable.  All sums disbursed by the Administrative
Agent in connection with this paragraph, including reasonable attorneys’ fees,
court costs, expenses and other charges relating thereto, shall be payable,
upon demand, by the Grantors to the Administrative Agent and shall be
additional Obligations secured hereby.


 


(k)  Each Grantor shall maintain, in form and
manner reasonably satisfactory to the Administrative Agent, records of its
Chattel Paper and its books, records and documents evidencing or pertaining
thereto.


 


(l)  Each Grantor will keep and maintain at its
own cost and expense accurate records of its Accounts and Contracts, including,
but not limited to, originals or copies of all material documentation
(including each Contract) with respect thereto, material records of all
payments received, all credits granted thereon, all merchandise returned and
all other dealings therewith, and such Grantor will make the same available, in
accordance with and subject to the terms and conditions relating to inspections
set forth in the Credit Agreement to the Administrative Agent for inspection at
such Grantor’s own cost and expense. 
Upon the occurrence and during the continuance of an Event of Default
and at the request of the Administrative Agent, such Grantor shall, at its own
cost and expense, deliver all tangible evidence of its Accounts and Contract
Rights (including, without limitation, all documents evidencing the Accounts
and all Contracts) 


 


21

















 


and such books and records
to the Administrative Agent or to its representatives (copies of which evidence
and books and records may be retained by such Grantor).  If the Administrative Agent so directs, upon
the occurrence and during the continuance of an Event of Default, such Grantor
shall legend, in form and manner satisfactory to the Administrative Agent, the
Accounts and the Contracts, as well as books, records and documents (if any) of
such Grantor evidencing or pertaining to such Accounts and Contracts with an
appropriate reference to the fact that such Accounts and Contracts have been
assigned to the Administrative Agent and that the Administrative Agent has a
security interest therein.


 


(m)  Upon the occurrence and during the
continuance of an Event of Default, if the Administrative Agent so directs any
Grantor in writing, such Grantor agrees (x) to cause all payments on
account of the Accounts and Contracts to be made directly to a Cash Collateral
Account, (y) that the Administrative Agent may, at its option, directly
notify the obligors with respect to any Accounts and/or under any Contracts to
make payments with respect thereto as provided in the preceding clause (x), and
(z) that the Administrative Agent may enforce collection of any such
Accounts and Contracts and may adjust, settle or compromise the amount of
payment thereof, in the same manner and to the same extent as such
Grantor.  Without notice to or assent by
any Grantor, the Administrative Agent may, upon the occurrence and during the
continuance of an Event of Default, apply any or all amounts then in, or
thereafter deposited in, a Cash Collateral Account toward the payment of the
Obligations in the manner provided in Section 5.02 of this Agreement.  The reasonable costs and expenses of
collection (including reasonable attorneys’ fees), whether incurred by a
Grantor or the Administrative Agent, shall be borne by the relevant
Grantor.  The Administrative Agent shall
deliver a copy of each notice referred to in the preceding clause (y) to
the relevant Grantor, provided that the failure by the Administrative
Agent to so notify such Grantor shall not affect the effectiveness of such
notice or the other rights of the Administrative Agent created by this clause
(m).


 


(n)  Except as permitted by clause (i) above,
each Grantor shall endeavor in accordance with reasonable business practices to
cause to be collected from the account debtor named in each of its Accounts or
obligor under any Contract, as and when due (including, without limitation,
amounts which are delinquent, such amounts to be collected in accordance with
generally accepted lawful collection procedures) any and all amounts owing
under or on account of such Account or Contract, and apply forthwith upon
receipt thereof all such amounts as are so collected to the outstanding balance
of such Account or under such Contract.


 


(o)  Anything herein to the contrary
notwithstanding, the Grantors shall remain liable under each of the Accounts
and Contracts to observe and perform all of the conditions and obligations to
be observed and performed by it thereunder, all in accordance with the terms of
any agreement giving rise to such Accounts or such Contracts, as the case may
be.  Neither the Administrative Agent nor
any other Secured Party shall have any obligation or liability under any
Account (or any agreement giving rise thereto) or any Contract by reason of or
arising out of this Agreement or the receipt by the Administrative Agent or any
other Secured Party of any payment relating to such 


 


22

















 


Account or Contract, as the
case may be, pursuant hereto, nor shall the Administrative Agent or any other
Secured Party be obligated in any manner to perform any of the obligations of
any Grantor under or pursuant to any Account (or any agreement giving rise
thereto) or any Contract, to make any payment, to make any inquiry as to the
nature or the sufficiency of any payment received by them or as to the
sufficiency of any performance by any party under any Account (or any agreement
giving rise thereto) or any Contract, 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 them or to which they may be entitled at any
time or times.


 


SECTION 4.04.
Other Actions.  In order to further
insure the attachment, perfection and priority of, and the ability of the
Administrative Agent to enforce, the Security Interest, each Grantor agrees, in
each case at such Grantor’s own expense, to take the following actions with
respect to the following Article 9 Collateral:


 


(a)  Instruments and Tangible Chattel Paper.  In accordance with and in furtherance of Article III,
if any Grantor shall at any time hold or acquire any Instruments (other than
any Instrument with a face amount of less than $5,000,000 so long as the
aggregate principal amount of Instruments under this exclusion does not exceed
$10,000,000 ) or Tangible Chattel Paper with a value of $2,500,000 or more,
such Grantor shall forthwith endorse, assign and deliver the same to the Administrative
Agent (or the Revolver Collateral Agent or a designated bailee for purposes of
perfection, in accordance with the Intercreditor Agreement), accompanied by
such instruments of transfer or assignment duly executed in blank as the
Administrative Agent may from time to time reasonably request.


 


(b)  Deposit Accounts.  For each Deposit Account (or any other
demand, time, savings, passbook or similar account whose jurisdiction
(determined in accordance with Section 9-304 of the UCC) is within a State
of the United States) that any Grantor at any time opens or maintains (other
than (i) any disbursement Deposit Account the funds in which are used
solely for the payment of salaries and wages, employee benefits, workers’
compensation and similar expenses or that has an ending daily balance of zero, (ii) trust
accounts for the benefit of directors, officers or employees and (iii) Deposit
Accounts, other than lockbox or collection accounts, the daily balance in which
does not at any time exceed $3,500,000 for all such accounts, provided, however,
that, in the case of each of clauses (i), (ii) and (iii), no Control
Agreement over any such excluded account is entered into for the benefit of the
Revolver Collateral Agent), such Grantor shall cause the depositary bank to
enter into a Control Agreement with such Grantor and the Administrative Agent
(which Control Agreement may also be for the benefit of the Revolver Collateral
Agent); provided that no such Control Agreement shall be required to be
entered into until the later of (A) the Funding Date, (B) 60 days
after the Closing Date and (C) in the case of Deposit Accounts opened
after the Funding Date, at the time of the establishment of the respective
Deposit Account (or, in each case, such later date as agreed in writing by the
Administrative Agent).  The
Administrative Agent agrees with each Grantor that 


 


23
















 


the
Administrative Agent shall not exercise dominion and control over, or give any
instructions or withhold any withdrawal rights from any Grantor, with respect
to such accounts or any funds in such accounts, unless an Event of Default has
occurred and is continuing.


 


(c)  Investment Property.  Except with respect to any Equity Interest
issued by any Subsidiary, if any Grantor shall at any time hold or acquire any
certificated securities (other than any Excluded Investment Property) required
to be pledged hereunder, such Grantor shall forthwith endorse, assign and
deliver the same to the Administrative Agent (or the Revolver Collateral Agent
or a designated bailee for purposes of perfection, in accordance with the
Intercreditor Agreement), accompanied by such instruments of transfer or
assignment duly executed in blank as the Administrative Agent may from time to
time specify.  Except with respect to any
Equity Interest issued by any Subsidiary, if any securities (other than any
Excluded Investment Property) now or hereafter acquired by any Grantor are
uncertificated and are issued to such Grantor or its nominee directly by the
issuer thereof, such Grantor shall promptly notify the Administrative Agent
thereof and, at the Administrative Agent’s request and option, pursuant to an
agreement in form and substance reasonably satisfactory to the Administrative
Agent, (i) cause such securities to be certificated and comply with the
requirements of the foregoing sentence, (ii) cause the issuer to agree to
comply with instructions from the Administrative Agent (or the Revolver
Collateral Agent or Permitted Notes Agent or a designated bailee for purposes
of perfection, in accordance with the Intercreditor Agreement) as to such
securities, without further consent of any Grantor or such nominee, or (iii) arrange
for the Administrative Agent (or the Revolver Collateral Agent or a designated
bailee for purposes of perfection, in accordance with the Intercreditor
Agreement),  to become the registered
owner of such securities.  If any Grantor
holds any Investment Property (other than any Excluded Investment Property),
whether certificated or uncertificated, or other Investment Property (other
than any Excluded Investment Property) now or hereafter acquired by any Grantor
are held by such Grantor or its nominee through a Securities Intermediary or
Commodity Intermediary, except with respect to any Equity Interest issued by
any Subsidiary, Grantor shall promptly notify the Administrative Agent thereof
and, at the Administrative Agent’s request and option, pursuant to a Control
Agreement (which Control Agreement may also be for the benefit of the Revolver
Collateral Agent or Permitted Notes Agent) in form and substance reasonably
satisfactory to the Administrative Agent, either (i) cause such Securities
Intermediary or Commodity Intermediary, as the case may be, to agree to comply
with Entitlement Orders or other Instructions from the Administrative Agent (or
the Revolver Collateral Agent or Permitted Notes Agent or a designated bailee
for purposes of perfection, in accordance with the Intercreditor Agreement) to
such Securities Intermediary as to such Security Entitlements or to apply any
value distributed on account of any Commodity Contract as directed by the
Administrative Agent (or the Revolver Collateral Agent or Permitted Notes Agent
or a designated bailee for purposes of perfection, in accordance with the
Intercreditor Agreement) to such Commodity Intermediary, as the case may be, in



 


24

















 


each
case without further consent of any Grantor, such nominee, or any other Person,
or (ii) in the case of Financial Assets or other Investment Property
(other than any Excluded Investment Property) held through a Securities
Intermediary, arrange for the Administrative Agent (or the Revolver Collateral
Agent or a designated bailee for purposes of perfection, in accordance with the
Intercreditor Agreement) to become the Entitlement Holder with respect to such
Investment Property, with the Grantor being permitted, only with the consent of
the Administrative Agent, to exercise rights to withdraw or otherwise deal with
such Investment Property; provided that no Control Agreement shall be
required to be entered into pursuant to this Section 4.04(c) until
the later of (A) the Funding Date, (B) 60 days after the Closing Date
and (C) in the case of Securities Accounts or Commodities Accounts opened
after the Funding Date, at the time of the establishment of the respective
Deposit Account (or, in each case, such later date as agreed in writing by the
Administrative Agent).  The
Administrative Agent agrees with each of the Grantors that the Administrative
Agent (or the Revolver Collateral Agent or Permitted Notes Agent or a
designated bailee for purposes of perfection, in accordance with the
Intercreditor Agreement) shall not give any such Entitlement Orders or
Instructions or directions to any such issuer, Securities Intermediary or
Commodity Intermediary, and shall not exercise dominion and control over withhold
its consent to the exercise of any withdrawal or dealing rights by any Grantor,
unless an Event of Default has occurred and is continuing, or, after giving
effect to any such investment and withdrawal rights, would occur.


 


(d)  Term Sweep Account.  For each Term Sweep Account that any Grantor
at any time opens (a) that is a Deposit Account, such Grantor shall cause
the depositary bank to enter into a Control Agreement with such Grantor and the
Administrative Agent in respect thereof or (b) is a Securities Account,
such Grantor shall cause the Securities Intermediary in respect thereof to
enter into a Control Agreement with such Grantor and the Administrative Agent
in respect thereof, in each case, as promptly as practicable, but in any event
no later than 15 days of opening such Term Sweep Account (which Control
Agreement may also be for the benefit of the Revolver Collateral Agent and
Permitted Notes Agent).


 


(e)  Electronic Chattel Paper and Transferable
Records.  If any Grantor at any time
holds or acquires an interest in any Electronic Chattel Paper or any “transferable
record”, as that term is defined in Section 201 of the Federal Electronic
Signatures in Global and National Commerce Act, or in Section 16 of the
Uniform Electronic Transactions Act as in effect in any relevant jurisdiction,
such Grantor shall promptly notify the Administrative Agent thereof and, at the
request of the Administrative Agent, and subject to the rights of the Revolver
Collateral Agent and Permitted Notes Agent under the Intercreditor Agreement,
shall take such action as the Administrative Agent may reasonably request to
vest in the Administrative Agent control under New York UCC Section 9-105
of such Electronic Chattel Paper or control under Section 201 of the
Federal Electronic Signatures in Global and National Commerce Act or, as the
case may be, 


 


25

















 


Section 16
of the Uniform Electronic Transactions Act, as so in effect in such
jurisdiction, of such transferable record.  The Administrative Agent agrees with such
Grantor that the Administrative Agent will arrange, pursuant to procedures
reasonably satisfactory to the Administrative Agent and so long as such
procedures will not result in the Administrative Agent’s loss of control, for
the Grantor to make alterations to the Electronic Chattel Paper or transferable
record permitted under UCC Section 9-105 or, as the case may be, Section 201
of the Federal Electronic Signatures in Global and National Commerce Act or Section 16
of the Uniform Electronic Transactions Act for a party in control to allow
without loss of control, unless an Event of Default has occurred and is
continuing or would occur after taking into account any action by such Grantor
with respect to such Electronic Chattel Paper or transferable record.


 


(f)  Letter-of-Credit Rights.  If any Grantor is at any time a beneficiary
under a letter of credit now or hereafter issued in favor of such Grantor with
a face amount greater than $2,500,000, such Grantor shall promptly notify the
Administrative Agent thereof and, at the request and option of the
Administrative Agent, and subject to the rights of the Revolver Collateral
Agent and Permitted Notes Agent under the Intercreditor Agreement, such Grantor
shall use commercially reasonable efforts to, pursuant to an agreement in form
and substance reasonably satisfactory to the Administrative Agent, either (i) arrange
for the issuer and any confirmer of such letter of credit to consent to an
assignment to the Administrative Agent of the proceeds of any drawing under the
letter of credit or (ii) arrange for the Administrative Agent to become
the transferee beneficiary of the letter of credit, with the Administrative
Agent agreeing, in each case, that the proceeds of any drawing under the letter
of credit are to be paid to the applicable Grantor unless an Event of Default
has occurred or is continuing.


 


(g)  Commercial Tort Claims.  If any Grantor shall at any time hold a
Commercial Tort Claim in which such Grantor is claimant that exceeds $5,000,000
in reasonable estimated value, the Grantor shall promptly notify the
Administrative Agent thereof in a writing signed by such Grantor, including a
summary description of such claim, and grant to the Administrative Agent,
subject to the rights of the Revolver Collateral Agent and Permitted Notes
Agent under the Intercreditor Agreement, in such writing a security interest
therein and in the proceeds thereof, all upon the terms of this Agreement, with
such writing to be in form and substance reasonably satisfactory to the
Administrative Agent.  Each such summary
description delivered after the date of this Agreement shall be attached hereto
as a supplement to Schedule IV and made a part hereof.


 


(h)  Collateral Access Agreements.  Each Grantor shall use commercially
reasonable efforts to obtain a Collateral Access Agreement from (i) the
lessor of each leased property which is leased by such Grantor or the mortgagee
of any real property owned by such Grantor and which is subject to a mortgage
or deed of trust (other than a mortgage or deed of trust that is contemplated
in the Intercreditor Agreement), in each case where the fair market value of
the 


 


26

















 


Collateral
located at such leased or mortgaged property exceeds $5,000,000 and (ii) the
bailee or consignee with respect to any third party warehouse, processor
converter facility or other similar location where Collateral with a fair
market value exceeding $2,000,000 is stored or located, which agreement or
letter shall provide access rights and shall otherwise be reasonably
satisfactory in form and substance to the Administrative Agent.  Each Grantor shall timely and fully pay and
perform its obligations under all leases and other agreements with respect to
each leased location or third party warehouse where any Collateral is or may be
located, except where the failure to pay or perform could not reasonably be
expected to have a Material Adverse Effect.


 


(i)  Each Grantor will, at its own expense, make,
execute, endorse, acknowledge, file and/or deliver to the Administrative Agent
from time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, certificates, reports
and other assurances or instruments and take such further steps, including any
and all actions as may be necessary or required under the Federal Assignment of
Claims Act, relating to its Accounts, Contracts, Instruments and other property
or rights covered by the security interest hereby granted, as the
Administrative Agent may reasonably require and consistent with the other terms
and conditions of this Agreement and the Credit Agreement.


 


SECTION 4.05.
Covenants Regarding Patent, Trademark and Copyright Collateral.  (a)  Each Grantor agrees that it will
not do any act or omit to do any act (and will exercise commercially reasonable
efforts to prevent its licensees from doing any act or omitting to do any act)
whereby any Patent may become invalidated or dedicated to the public, except
where failure to comply with the foregoing could not reasonably be expected to
have a Material Adverse Effect, and agrees that it shall continue to mark any
products covered by a Patent that is material to the conduct of such Grantor’s
business with the relevant patent number as necessary and sufficient to
establish and preserve its maximum rights under applicable patent laws except
where the failure to comply with the foregoing could not reasonably be expected
to have a Material Adverse Effect.


 


(b)  Each Grantor (either itself or through its
licensees or its sublicensees) will, for each Trademark material to the conduct
of the business of the Borrower and its Subsidiaries, taken as a whole, (i) maintain
such Trademark in full force free from any claim of abandonment or invalidity
for non-use, (ii) maintain the quality of products and services offered
under such Trademark, (iii) display such Trademark with notice of Federal
or foreign registration to the extent necessary and sufficient to establish and
preserve its maximum rights under applicable law and (iv) not knowingly
use or knowingly permit the use of such Trademark in violation of any third
party rights, except where the failure to comply with the foregoing could not
reasonably be expected to have a Material Adverse Effect.


 


(c)  Each Grantor (either itself or through its
licensees or sublicensees) will, for each work covered by a Copyright material
to the business of the Borrower and its Subsidiaries, taken as a whole,
continue to publish, reproduce, display, adopt and 


 


27

















 


distribute the work with
appropriate copyright notice as necessary and sufficient to establish and
preserve its maximum rights under applicable copyright laws, except where the
failure to comply with the foregoing could not reasonably be expected to have a
Material Adverse Effect.


 


(d)  Each Grantor shall notify the Administrative
Agent promptly if it knows or has reason to know that any Patent, Trademark or
Copyright material to the conduct of the business of the Borrower and its
Subsidiaries, taken as a whole, may become abandoned, lost or dedicated to the
public, or of any materially adverse determination or development (including
the institution of, or any such determination or development in, any proceeding
in the United States Patent and Trademark Office, United States Copyright
Office or any court or similar office of any country) regarding such Grantor’s
ownership of any Patent, Trademark or Copyright material to the conduct of the
business of the Borrower and its Subsidiaries, taken as a whole, its right to
register the same, or its right to keep and maintain the same.


 


(e)  Each Grantor agrees to promptly notify the
Administrative Agent if such Grantor, either itself or through any agent,
employee, licensee or designee, file an application for any Patent, Trademark
or Copyright (or for the registration of any Trademark or Copyright) which is
material to the Grantor’s business taken as a whole with the United States
Patent and Trademark Office or the United States Copyright Office, and, upon
request of the Administrative Agent, such Grantor agrees to execute and deliver
IP Security Agreements (in a form similar to the IP Security Agreements
executed and delivered on the date hereof) as the Administrative Agent may
reasonably request to evidence the Administrative Agent’s security interest in
such Patent, Trademark or Copyright, and each Grantor hereby appoints the
Administrative Agent as its attorney-in-fact to execute and file such
agreements for the foregoing purposes, all acts of such attorney being hereby
ratified and confirmed; such power, being coupled with an interest, is
irrevocable.]


 


(f)  Each Grantor will take all reasonably
necessary steps that are consistent with the practice in any proceeding before
the United States Patent and Trademark Office, United States Copyright Office
or any office or agency in any political subdivision of the United States, to
maintain and pursue each material application relating to the Patents,
Trademarks and/or Copyrights (and to obtain the relevant grant or registration)
and to maintain each issued Patent and each registration of the Trademarks and
Copyrights that is material to the conduct of the business of the Borrower and
the Subsidiaries, taken as a whole, including timely filings of applications
for renewal, affidavits of use, affidavits of incontestability and payment of
maintenance fees, and, if consistent with good business judgment, to initiate
opposition, interference and cancelation proceedings against third parties; provided
that, to the extent consistent with the Credit Agreement, no Grantor shall be
obligated to pursue, preserve or maintain any Patent, Trademark or Copyright in
the event such Grantor determines, in its reasonable business judgment, that
the preservation of such Patent, Trademark or Copyright is no longer desirable
in the conduct of its business.


 


28

















 


(g)  Upon and during the continuance of an Event
of Default, each Grantor shall, if requested by the Administrative Agent, use
its commercially reasonable efforts to obtain all requisite consents or
approvals by the licensor of each Copyright License, Patent License or
Trademark License to effect the assignment of all such Grantor’s right, title
and interest thereunder to the Administrative Agent or its designee.


 


ARTICLE V


 


Remedies


 


SECTION 5.01.
Remedies Upon Default.  Upon the
occurrence and during the continuance of an Event of Default, each Grantor
agrees to deliver each item of Collateral to the Administrative Agent (or the
Revolver Collateral Agent or Permitted Notes Agent or a designated bailee for
purposes of perfection, in accordance with the Intercreditor Agreement) on
demand, and it is agreed that the Administrative Agent shall have the right to
take any of or all the following actions at the same or different times:  (a) with respect to any Article 9
Collateral consisting of Intellectual Property, on demand, to cause the
Security Interest to become an assignment, transfer and conveyance of any of or
all such Article 9 Collateral by the applicable Grantors to the
Administrative Agent, or to license or sublicense, whether general, special or
otherwise, and whether on an exclusive or nonexclusive basis, any such Article 9
Collateral throughout the world on such terms and conditions and in such manner
as the Administrative Agent shall determine (other than in violation of any
then-existing licensing arrangements to the extent that waivers cannot be
obtained), and (b) with or without legal process and with or without prior
notice or demand for performance, to take possession of the Article 9
Collateral and without liability for trespass to enter any premises where the Article 9
Collateral may be located for the purpose of taking possession of or removing
the Article 9 Collateral and, generally, to exercise any and all rights
afforded to a secured party under this Agreement, the Uniform Commercial Code
or other applicable law.  Without
limiting the generality of the foregoing, upon the occurrence and during the
continuance of an Event of Default, each Grantor agrees that the Administrative
Agent shall have the right, subject to the mandatory requirements of applicable
law, to sell or otherwise dispose of all or any part of the Collateral at a
public or private sale or at any broker’s board or on any securities exchange,
for cash, upon credit or for future delivery as the Administrative Agent shall
deem appropriate.  The Administrative
Agent shall be authorized at any such sale of securities (if it deems it
advisable to do so) to restrict the prospective bidders or purchasers to
Persons who will represent and agree that they are purchasing the Collateral
for their own account for investment and not with a view to the distribution or
sale thereof, and upon consummation of any such sale the Administrative Agent
shall have the right to assign, transfer and deliver to the purchaser or
purchasers thereof the Collateral so sold. 
Each such purchaser at any sale of Collateral shall hold the property
sold absolutely, free from any claim or right on the part of any Grantor, and
each Grantor hereby waives (to the extent permitted by law) all rights of
redemption, stay and appraisal which such Grantor now has or may at any time in
the future have under any rule of law or statute now existing or hereafter
enacted.


 


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The
Administrative Agent shall give the applicable Grantors 10 days’ prior
written notice (which each Grantor agrees is reasonable notice within the
meaning of Section 9-611 of the New York UCC or its equivalent in
other jurisdictions) of the Administrative Agent’s intention to make any sale
of Collateral.  Such notice, in the case
of a public sale, shall state the time and place for such sale and, in the case
of a sale at a broker’s board or on a securities exchange, shall state the
board or exchange at which such sale is to be made and the day on which the
Collateral, or portion thereof, will first be offered for sale at such board or
exchange.  Any such public sale shall be
held at such time or times within ordinary business hours and at such place or
places as the Administrative Agent may fix and state in the notice (if any) of
such sale.  At any such sale, the
Collateral, or portion thereof, to be sold may be sold in one lot as an
entirety or in separate parcels, as the Administrative Agent may (in its sole
and absolute discretion) determine.  The
Administrative Agent shall not be obligated to make any sale of any Collateral
if it shall determine not to do so, regardless of the fact that notice of sale
of such Collateral shall have been given. 
The Administrative Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned.  In case any sale of all or
any part of the Collateral is made on credit or for future delivery, the
Collateral so sold may be retained by the Administrative Agent until the sale
price is paid by the purchaser or purchasers thereof, but the Administrative
Agent shall not incur any liability in case any such purchaser or purchasers
shall fail to take up and pay for the Collateral so sold and, in case of any
such failure, such Collateral may be sold again upon like notice.  At any public (or, to the extent permitted by
law, private) sale made pursuant to this Agreement, any Secured Party may bid
for or purchase, free (to the extent permitted by law) from any right of
redemption, stay, valuation or appraisal on the part of any Grantor (all said
rights being also hereby waived and released to the extent permitted by law),
the Collateral or any part thereof offered for sale and may make payment on
account thereof by using any claim then due and payable to such Secured Party
from any Grantor as a credit against the purchase price, and such Secured Party
may, upon compliance with the terms of sale, hold, retain and dispose of such
property without further accountability to any Grantor therefor.  For purposes hereof, a written agreement to
purchase the Collateral or any portion thereof shall be treated as a sale
thereof; the Administrative Agent shall be free to carry out such sale pursuant
to such agreement and no Grantor shall be entitled to the return of the
Collateral or any portion thereof subject thereto, notwithstanding the fact
that after the Administrative Agent shall have entered into such an agreement
all Events of Default shall have been remedied and the Obligations paid in
full.  As an alternative to exercising
the power of sale herein conferred upon it, the Administrative Agent may
proceed by a suit or suits at law or in equity to foreclose this Agreement and
to sell the Collateral or any portion thereof pursuant to a judgment or decree
of a court or courts having competent jurisdiction or pursuant to a proceeding
by a court-appointed receiver.  Any sale
pursuant to the provisions of this Section 5.01 shall be deemed to
conform to the commercially reasonable standards as provided in Section 9-610(b) of
the New York UCC or its equivalent in other jurisdictions.


 


30

















 


SECTION 5.02.
Application of Proceeds.  The
Administrative Agent shall, subject to the applicable provisions of the
Intercreditor Agreement, apply the proceeds of any collection or sale of
Collateral, including any Collateral consisting of cash, and the amounts paid
or caused to be paid by any Guarantor in accordance with Article II,
as follows:


 


FIRST, to the payment of all costs and expenses incurred by the
Administrative Agent in connection with such collection or sale or otherwise in
connection with this Agreement, any other Loan Document or any of the
Obligations, including all court costs and the fees and expenses of its agents
and legal counsel, the repayment of all advances made by the Administrative
Agent hereunder or under any other Loan Document on behalf of any Grantor and
any other costs or expenses incurred in connection with the exercise of any
right or remedy hereunder or under any other Loan Document;


 


SECOND, to the payment in full of the Obligations (the amounts so
applied to be distributed among the Secured Parties pro rata in accordance with
the amounts of the Obligations owed to them on the date of any such
distribution); and


 


THIRD, to the extent that the Revolver Collateral Agent shall have
notified the Administrative Agent that the Discharge of Revolving Credit
Obligations has occurred, to the Grantors, their successors or assigns, or as a
court of competent jurisdiction may otherwise direct or as otherwise required
by the Intercreditor Agreement.


 


The
Administrative Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement.  Upon any sale of Collateral
by the Administrative Agent (including pursuant to a power of sale granted by
statute or under a judicial proceeding), the receipt of the Administrative
Agent or of the officer making the sale shall be a sufficient discharge to the
purchaser or purchasers of the Collateral so sold and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Administrative Agent or such officer or be
answerable in any way for the misapplication thereof.  It is understood that the Grantors shall
remain jointly and severally liable to the extent of any deficiency between the
amount of the proceeds of the Collateral and the aggregate amount of the
Obligations.


 


SECTION 5.03.
Grant of License to Use Intellectual Property.  For the purpose of enabling the
Administrative Agent to exercise rights and remedies under this Agreement at
such time as the Administrative Agent shall be lawfully entitled to exercise
such rights and remedies, each Grantor hereby grants to the Administrative
Agent an irrevocable, nonexclusive license (exercisable without payment of
royalty or other compensation to the Grantors) to use, license or sublicense
any of the Article 9 Collateral consisting of Intellectual Property now
owned or hereafter acquired by such Grantor, and wherever the same may be
located, and including in such license reasonable access to all media in which
any of the licensed items may be recorded or stored and to all computer 


 


31

















 


software and programs used
for the compilation or printout thereof. 
The use of such license by the Administrative Agent may only be
exercised, at the option of the Administrative Agent, upon the occurrence and
during the continuation of an Event of Default after written notice is given to
the Borrower of the Administrative Agent’s election to exercise such license; provided
that any license, sublicense or other transaction entered into by the
Administrative Agent in accordance herewith shall be binding upon the Grantors
notwithstanding any subsequent cure of an Event of Default.  In operating under the license granted by
each Grantor pursuant to this Section 5.03, the Administrative
Agent agrees that the goods sold and services rendered under any Trademarks
shall be of a nature and quality substantially consistent with those
theretofore offered under such Trademarks by such Grantor and such Grantor
shall have the right to inspect during the term of such license, at any
reasonable time or times upon reasonable notice to the Administrative Agent,
and at such Grantor’s own cost and expense, representative samples of goods
sold and services rendered under such Trademarks.


 


SECTION 5.04.
Securities Act.  In view of the
position of the Grantors in relation to the Pledged Collateral, or because of
other current or future circumstances, a question may arise under the
Securities Act of 1933, as now or hereafter in effect, or any similar statute
hereafter enacted analogous in purpose or effect (such Act and any such similar
statute as from time to time in effect being called the “Federal Securities
Laws”) with respect to any disposition of the Pledged Collateral permitted
hereunder.  Each Grantor understands that
compliance with the Federal Securities Laws might very strictly limit the
course of conduct of the Administrative Agent if the Administrative Agent were to
attempt to dispose of all or any part of the Pledged Collateral, and might also
limit the extent to which or the manner in which any subsequent transferee of
any Pledged Collateral could dispose of the same.  Similarly, there may be other legal restrictions
or limitations affecting the Administrative Agent in any attempt to dispose of
all or part of the Pledged Collateral under applicable Blue Sky or other state
securities laws or similar laws analogous in purpose or effect.  Each Grantor recognizes that in light of such
restrictions and limitations the Administrative Agent may, with respect to any
sale of the Pledged Collateral, limit the purchasers to those who will agree,
among other things, to acquire such Pledged Collateral for their own account, for
investment, and not with a view to the distribution or resale thereof.  Each Grantor acknowledges and agrees that in
light of such restrictions and limitations, the Administrative Agent, in its
sole and absolute discretion (a) may proceed to make such a sale whether
or not a registration statement for the purpose of registering such Pledged
Collateral or part thereof shall have been filed under the Federal Securities
Laws and (b) may approach and negotiate with a single potential purchaser
to effect such sale.  Each Grantor
acknowledges and agrees that any such sale might result in prices and other
terms less favorable to the seller than if such sale were a public sale without
such restrictions.  In the event of any
such sale, the Administrative Agent shall incur no responsibility or liability
for selling all or any part of the Pledged Collateral at a price that the
Administrative Agent, in its sole and absolute discretion, may in good faith
deem reasonable under the circumstances, notwithstanding the possibility that a
substantially higher price might have been realized if the sale were deferred
until after registration as aforesaid or if more than a single purchaser were
approached.  The provisions of this Section 5.04
will apply notwithstanding the existence 


 


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of a public or private
market upon which the quotations or sales prices may exceed substantially the
price at which the Administrative Agent sells.


 


SECTION 5.05.
Registration.  Each Grantor agrees
that, upon the occurrence and during the continuance of an Event of Default, if
for any reason the Administrative Agent desires to sell any of the Pledged
Collateral at a public sale, it will, at any time and from time to time, upon
the written request of the Administrative Agent, use commercially reasonable
efforts to take or to cause the issuer of such Pledged Collateral to take such
action and prepare, distribute and/or file such documents, as are required or
advisable in the reasonable opinion of counsel for the Administrative Agent to
permit the public sale of such Pledged Collateral.  Each Grantor further agrees to indemnify,
defend and hold harmless the Administrative Agent, each other Secured Party,
any underwriter and their respective affiliates and their respective officers,
directors, affiliates and controlling persons from and against all loss,
liability, expenses, costs of counsel (including reasonable fees and expenses
to the Administrative Agent of legal counsel), and claims (including the costs
of investigation) that they may incur insofar as such loss, liability, expense
or claim arises out of or is based upon any alleged untrue statement of a
material fact contained in any prospectus (or any amendment or supplement
thereto) or in any notification or offering circular, or arises out of or is
based upon any alleged omission to state a material fact required to be stated
therein or necessary to make the statements in any thereof not misleading,
except insofar as the same may have been caused by any untrue statement or
omission based upon information furnished in writing to such Grantor or the
issuer of such Pledged Collateral by the Administrative Agent or any other
Secured Party expressly for use therein. 
Each Grantor further agrees, upon such written request referred to
above, to use commercially reasonable efforts to qualify, file or register, or
cause the issuer of such Pledged Collateral to qualify, file or register, any
of the Pledged Collateral under the Blue Sky or other securities laws of such
states as may be requested by the Administrative Agent and keep effective, or
cause to be kept effective, all such qualifications, filings or
registrations.  Each Grantor will bear
all costs and expenses of carrying out its obligations under this Section 5.05.  Each Grantor acknowledges that there is no
adequate remedy at law for failure by it to comply with the provisions of this Section 5.05
and that such failure would not be adequately compensable in damages, and
therefore agrees that its agreements contained in this Section 5.05
may be specifically enforced.


 


ARTICLE VI


 


Indemnity, Subrogation and Subordination


 


SECTION 6.01.
Indemnity and Subrogation.  In
addition to all such rights of indemnity and subrogation as the Guarantors may
have under applicable law (but subject to Section 6.03), the
Borrower agrees that (a) in the event a payment of an obligation shall be
made by any Guarantor under this Agreement, the Borrower shall indemnify such
Guarantor for the full amount of such payment and such Guarantor shall be
subrogated to the rights of the Person to whom such payment shall have been
made to the extent of such payment and (b) in the event any assets of any
Grantor shall be sold pursuant to this Agreement or any other Security Document
to satisfy in whole or in part 


 


33
















 


an obligation owed to any
Secured Party, the Borrower shall indemnify such Grantor in an amount equal to
the greater of the book value or the fair market value of the assets so sold.


 


SECTION 6.02.
Contribution and Subrogation. 
Each Guarantor and Grantor (a “Contributing Party”) agrees
(subject to Section 6.03) that, in the event a payment shall be
made by any other Guarantor hereunder in respect of any Obligation or assets of
any other Grantor (other than the Borrower) shall be sold pursuant to any Security
Document to satisfy any Obligation owed to any Secured Party and such other
Guarantor or Grantor (the “Claiming Party”) shall not have been fully
indemnified by the Borrower as provided in Section 6.01, the
Contributing Party shall indemnify the Claiming Party in an amount equal to the
amount of such payment or the greater of the book value or the fair market
value of such assets, as the case may be, in each case multiplied by a fraction
of which the numerator shall be the net worth of the Contributing Party on the
date hereof and the denominator shall be the aggregate net worth of all the
Guarantors and Grantors on the date hereof (or, in the case of any Guarantor or
Grantor becoming a party hereto pursuant to Section 7.14, the date
of the supplement hereto executed and delivered by such Guarantor or
Grantor).  Any Contributing Party making
any payment to a Claiming Party pursuant to this Section 6.02 shall
be subrogated to the rights of such Claiming Party under Section 6.01
to the extent of such payment.


 


SECTION 6.03.
Subordination.  (a) 
Notwithstanding any provision of this Agreement to the contrary, all rights of
the Guarantors and Grantors under Sections 6.01 and 6.02 and
all other rights of indemnity, contribution or subrogation under applicable law
or otherwise shall be fully subordinated to the indefeasible payment in full in
cash of the Obligations.  No failure on
the part of any Borrower or any Guarantor or Grantor to make the payments
required by Sections 6.01 and 6.02 (or any other payments required
under applicable law or otherwise) shall in any respect limit the obligations
and liabilities of any Guarantor or Grantor with respect to its obligations
hereunder, and each Guarantor and Grantor shall remain liable for the full
amount of the obligations of such Guarantor or Grantor hereunder.


 


(b)  Each Guarantor and Grantor hereby agrees that
all Indebtedness and other monetary obligations owed to it by, or by it to, as
the case may be, any other Guarantor, Grantor or any other Subsidiary shall be
fully subordinated to the indefeasible payment in full in cash of the
Obligations.


 


ARTICLE VII


 


Miscellaneous


 


SECTION 7.01.
Notices.  All communications and
notices hereunder shall (except as otherwise expressly permitted herein) be in
writing and given as provided in Section 9.01 of the Credit
Agreement.  All communications and
notices hereunder to any Subsidiary Party shall be given to it in care of the
Borrower as provided in Section 9.01 of the Credit Agreement.


 


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SECTION 7.02.
Waivers; Amendment.  (a)  No
failure or delay by the Administrative Agent or any Lender in exercising any
right or power hereunder or under any other Loan Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power.  The rights and
remedies of the Administrative Agent and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. 
No waiver of any provision of this Agreement or consent to any departure
by any Loan Party therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) below, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given.  Without
limiting the generality of the foregoing, the making of a Loan shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent or any Lender may have had notice or knowledge of such Default at the
time.  No notice or demand on any Loan
Party in any case shall entitle any Loan Party to any other or further notice
or demand in similar or other circumstances.


 


(b)  Neither this Agreement nor any provision
hereof may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Administrative Agent and the Loan
Party or Loan Parties with respect to which such waiver, amendment or
modification is to apply, subject to any consent required in accordance with Section 9.08
of the Credit Agreement.


 


SECTION 7.03.
Administrative Agent’s Fees and Expenses; Indemnification.  (a)  The parties hereto agree that the
Administrative Agent shall be entitled to reimbursement of its reasonable
out-of-pocket expenses incurred hereunder as provided in Section 9.05
of the Credit Agreement.


 


(b)  Without limitation of its indemnification
obligations under the other Loan Documents, each Grantor and each Guarantor
jointly and severally agrees to indemnify the Administrative Agent against, and
hold the Administrative Agent harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
disbursements and other charges, incurred by or asserted against the
Administrative Agent arising out of, in connection with, or as a result of, the
execution, delivery or performance of this Agreement or any claim, litigation,
investigation or proceeding relating to any of the foregoing, or any agreement
or instrument contemplated hereby, or to the Collateral, whether or not any
Indemnitee is a party thereto; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses have resulted from the gross
negligence or wilful misconduct of the Administrative Agent.


 


(c)  Any such amounts payable as provided
hereunder shall be additional Obligations secured hereby and by the other
Security Documents.  The provisions of
this Section 7.03 shall remain operative and in full force and
effect regardless of the termination of this Agreement or any other Loan
Document, the consummation of the transactions contemplated hereby, the
repayment of any of the Obligations, the invalidity 


 


35

















 


or unenforceability of any
term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent or any other
Secured Party.  All amounts due under
this Section 7.03 shall be payable on written demand therefor.


 


SECTION 7.04.
Successors and Assigns.  Whenever
in this Agreement any of the parties hereto is referred to, such reference
shall be deemed to include the permitted successors and assigns of such party;
and all covenants, promises and agreements by or on behalf of any Guarantor,
Grantor or the Administrative Agent that are contained in this Agreement shall
bind and inure to the benefit of their respective successors and assigns.


 


SECTION 7.05.
Survival of Agreement.  All
covenants, agreements, representations and warranties made by the Loan Parties
in the Loan Documents and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the Lenders and shall
survive the execution and delivery of the Loan Documents and the making of any
Loans, regardless of any investigation made by any Lender or on its behalf and
notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default or incorrect representation or warranty at the time
any credit is extended under the Credit Agreement, and shall continue in full
force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under any Loan Document is
outstanding and unpaid and so long as the Commitments have not expired or
terminated.


 


SECTION 7.06.
Counterparts; Effectiveness; Several Agreement.  This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. 
Delivery of an executed signature page to this Agreement by
facsimile or other electronic imaging shall be as effective as delivery of a
manually signed counterpart of this Agreement. 
This Agreement shall become effective as to any Loan Party when a
counterpart hereof executed on behalf of such Loan Party shall have been
delivered to the Administrative Agent and a counterpart hereof shall have been
executed on behalf of the Administrative Agent, and thereafter shall be binding
upon such Loan Party and the Administrative Agent and their respective
permitted successors and assigns, and shall inure to the benefit of such Loan
Party, the Administrative Agent and the other Secured Parties and their
respective successors and assigns, except that no Loan Party shall have the
right to assign or transfer its rights or obligations hereunder or any interest
herein (and any such assignment or transfer shall be void) except as expressly
permitted by the Credit Agreement.  This
Agreement shall be construed as a separate agreement with respect to each Loan
Party and may be amended, modified, supplemented, waived or released with
respect to any Loan Party without the approval of any other Loan Party and
without affecting the obligations of any other Loan Party hereunder.


 


SECTION 7.07.
Severability.  Any provision of
this Agreement held to be invalid, illegal or unenforceable in any jurisdiction
shall, as to such jurisdiction, be 


 


36

















 


ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.  The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.


 


SECTION 7.08.
Right of Set-Off.  (a)  Each
Loan Party expressly agrees to the provisions set forth in Section 9.06
of the Credit Agreement with the same force and effect as if such provisions
were set forth in full herein.


 


(b)  Notwithstanding anything to the contrary
contained in this Agreement, at any time that the Obligations shall be secured
by any real property located in the State of California, no Secured Party shall
exercise any right of set-off, lien or counterclaim or take any court or
administrative action or institute any proceedings to enforce any provision of
this Agreement without the prior consent of the Administrative Agent or the
Required Lenders or, to the extent required by Section 9.08(b) of
the Credit Agreement, all of the Lenders, if such setoff or action or
proceeding would or might (pursuant to Sections 580a, 580b, 580d and 726 of the
California Code of Civil Procedure or Section 2924 of the California Civil
Code, if applicable, or otherwise) affect or impair the validity, priority, or
enforceability of the liens granted to the Administrative Agent pursuant to
this Agreement or the other Security Documents or the enforceability of the
Obligations hereunder, and any attempted exercise by any Secured Party or the
Administrative Agent of any such right without obtaining such consent of the
Required Lenders or the Administrative Agent shall be null and void.  It is understood and agreed that the
foregoing sentence of this Section 7.08(b) is for the sole
benefit of the Secured Parties and may be amended, modified or waived in any
respect by the Required Lenders (without any requirement of prior notice to or
consent by any Loan Party or any other Person) and does not constitute a waiver
of any rights against any Loan Party or against any Collateral.


 


SECTION 7.09.
Governing Law; Jurisdiction; Consent to Service of Process.  (a)  This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York,
including Sections 5-1401 and 5-1402 of Title 14 of the New York
General Obligations Law but excluding all other choice of law and conflicts of
laws rules thereof.


 


(b)  Each of the Loan Parties hereby irrevocably
and unconditionally submits, for itself and its property, to the exclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or any
other Loan Document, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in
such Federal court.  Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be 


 


37

















 


conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this
Agreement or any other Loan Document shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against any
Grantor or Guarantor, or its properties in the courts of any jurisdiction.


 


(c)  Each of the Loan Parties hereby irrevocably
and unconditionally waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) above.  Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.


 


(d)  Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section 7.01.  Nothing in this Agreement or any other Loan
Document will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.


 


SECTION 7.10.
WAIVER OF JURY TRIAL.  EACH PARTY
HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY).  EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 7.10.


 


SECTION 7.11.
Headings.  Article and Section headings
and the Table of Contents used herein are for convenience of reference only,
are not part of this Agreement and are not to affect the construction of, or to
be taken into consideration in interpreting, this Agreement.


 


SECTION 7.12.
Security Interest Absolute.  All
rights of the Administrative Agent hereunder, the Security Interest, the grant
of a security interest in the Pledged Collateral and all obligations of each
Grantor and Guarantor hereunder shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document, any agreement with respect to any of the
Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any 


 


38

















 


departure from the Credit
Agreement, any other Loan Document or any other agreement or instrument, (c) any
exchange, release or non-perfection of any Lien on other collateral, or any
release or amendment or waiver of or consent under or departure from any
guarantee, securing or guaranteeing all or any of the Obligations, or (d) any
other circumstance that might otherwise constitute a defense available to, or a
discharge of, any Grantor or Guarantor in respect of the Obligations or this
Agreement.


 


SECTION 7.13.
Termination or Release.  (a) 
This Agreement, the Guarantees made herein, the Security Interest, the grant of
a security interest in the Pledged Collateral and all other security interests
granted hereby shall terminate upon the payment in full in cash of the Loans
and all the other Loan Documents Obligations (other than unasserted contingent
and indemnification obligations), termination of all Commitments and Incremental
Revolving Commitments and reduction of all exposure under any letters of credit
issued under the Credit Agreement to zero (or the making of other arrangements
satisfactory to the issuers thereof).


 


(b)  A Subsidiary Party shall automatically be
released from its obligations hereunder and the Security Interest in the
Collateral of such Subsidiary Party shall be automatically released upon the
consummation of any transaction permitted by the Credit Agreement as a result
of which such Subsidiary Party ceases to be a Subsidiary; provided that
the Required Lenders shall have consented to such transaction (to the extent
required by the Credit Agreement) and the terms of such consent did not provide
otherwise.


 


(c)  Upon any sale or other transfer by any
Grantor of any Collateral that is permitted under the Credit Agreement (other
than a sale or other transfer to a Loan Party), or upon the effectiveness of
any written consent to the release of the security interest granted hereby in
any Collateral pursuant to Section 9.09 of the Credit Agreement,
the security interest in such Collateral shall be automatically released.


 


(d)  At any time that a Grantor desires that the
Administrative Agent take any action to acknowledge or give effect to any
release of a Grantor or Collateral pursuant to the foregoing Section 7.13(a),
(b) or (c), the Borrower shall deliver to the Administrative
Agent a certificate signed by a principal executive officer of the Borrower
stating that the release of the respective Grantor or Collateral is permitted
pursuant to such Section 7.13(a), (b) or (c).  In connection with any termination or release
pursuant to paragraph (a), (b) or (c), the
Administrative Agent shall execute and deliver to any Grantor, at such Grantor’s
expense, all documents that such Grantor shall reasonably request to evidence
such termination or release; provided, however, that (i) the
Administrative Agent shall not be required to execute any such document on
terms which, in its opinion, would expose it to liability or create any
obligation or entail any consequence other than the release of such Liens
without recourse or warranty, and (ii) such release shall not in any
manner discharge, affect or impair the Obligations or any Liens upon (or
obligations of the Borrower or any of the Subsidiaries in respect of) all
interests in Collateral retained by the Borrower or any of the
Subsidiaries.  Any execution and delivery
of documents pursuant to this Section 7.13 shall be without
recourse to or warranty by the Administrative Agent.


 


39

















 


(e)  The Administrative Agent shall have no
liability whatsoever to any other Secured Party as the result of any release of
any Subsidiary Party or Collateral by it in accordance with (or which the
Administrative Agent in good faith believes to be in accordance with) this Section 7.13.


 


SECTION 7.14.
Additional Subsidiaries.  Pursuant
to Sections 5.09, 6.05(f) and 6.15 of the Credit
Agreement, certain Domestic Subsidiaries are required to enter into this Agreement
as a Subsidiary Party.  Upon execution
and delivery by the Administrative Agent and a Subsidiary of an instrument in
the form of Exhibit I hereto, such Subsidiary shall become a
Subsidiary Party hereunder with the same force and effect as if originally
named as a Subsidiary Party herein.  The
execution and delivery of any such instrument shall not require the consent of
any other Loan Party hereunder.  The
rights and obligations of each Loan Party hereunder shall remain in full force
and effect notwithstanding the addition of any new Loan Party as a party to
this Agreement.


 


SECTION 7.15.
Administrative Agent Appointed Attorney-in-Fact.  Each Grantor hereby appoints the
Administrative Agent the attorney-in-fact of such Grantor for the purpose of
carrying out the provisions of this Agreement and taking any action and
executing any instrument that the Administrative Agent may deem necessary or
advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest.  Without
limiting the generality of the foregoing, the Administrative Agent shall have
the right, upon the occurrence and during the continuance of an Event of
Default, with full power of substitution either in the Administrative Agent’s
name or in the name of such Grantor (a) to receive, endorse, assign and/or
deliver any and all notes, acceptances, checks, drafts, money orders or other
evidences of payment relating to the Collateral or any part thereof; (b) to
demand, collect, receive payment of, give receipt for and give discharges and
releases of all or any of the Collateral; (c) to sign the name of any
Grantor on any invoice or bill of lading relating to any of the Collateral; (d) to
send verifications of Accounts Receivable to any Account Debtor; (e) to commence
and prosecute any and all suits, actions or proceedings at law or in equity in
any court of competent jurisdiction to collect or otherwise realize on all or
any of the Collateral or to enforce any rights in respect of any Collateral; (f) to
settle, compromise, compound, adjust or defend any actions, suits or
proceedings relating to all or any of the Collateral; (g) to make, settle
and adjust claims in respect of Article 9 Collateral under policies of
insurance and to endorse the name of such Grantor on any check, draft,
instrument or any other item of payment for the proceeds of such policies of
insurance and for making all determinations and decisions with respect thereto;
(h) to notify, or to require any Grantor to notify, Account Debtors to
make payment directly to the Administrative Agent; and (i) to use, sell,
assign, transfer, pledge, make any agreement with respect to or otherwise deal
with all or any of the Collateral, and to do all other acts and things
necessary to carry out the purposes of this Agreement, as fully and completely
as though the Administrative Agent were the absolute owner of the Collateral
for all purposes; provided that nothing herein contained shall be
construed as requiring or obligating the Administrative Agent to make any
commitment or to make any inquiry as to the nature or sufficiency of any
payment received by the Administrative Agent, or to present or file any claim
or notice, or to take any action with respect to the Collateral or any part
thereof or the moneys due or to become due in respect thereof or any property 


 


40

















 


covered thereby.  The Administrative Agent and the other
Secured Parties shall be accountable only for amounts actually received as a
result of the exercise of the powers granted to them herein, and neither they
nor their officers, directors, employees or agents shall be responsible to any
Grantor for any act or failure to act hereunder, except for their own gross
negligence or wilful misconduct.


 


SECTION 7.16.
Recourse.  This Agreement is made
with full recourse to each Loan Party and pursuant to and upon all the
warranties, representations, covenants and agreements on the part of such Loan
Party contained herein, in the Loan Documents, Qualified Hedging Agreements or
Qualified Secured Cash Management Agreements and otherwise in writing in
connection herewith or therewith.


 


SECTION 7.17.
Intercreditor Agreement; Possession and Control of Revolving Facility
Collateral.  Notwithstanding anything
herein to the contrary, the Liens granted to the Administrative Agent under
this Agreement and the exercise of the rights and remedies of the
Administrative Agent hereunder are subject to the provisions of the
Intercreditor Agreement.  In the event of
any conflict between the terms of the Intercreditor Agreement and this
Agreement, the terms of the Intercreditor Agreement shall govern and
control.  At any time prior to the
Discharge of Revolving Credit Obligations, no Grantor shall be required to take
or refrain from taking any action at the request of the Administrative Agent
with respect to any Revolving Facility Collateral if such action or inaction
would be inconsistent with (i) any action or inaction affirmatively
requested by the Revolver Collateral Agent in accordance with the Revolving
Facility Documents or (ii) any action or inaction affirmatively required
by any of the provisions of the Revolving Facility Documents.  Without limiting the foregoing, at any time
prior to the Discharge of Revolving Credit Obligations, any provision hereof (a) requiring
Grantors to deliver possession of any Revolving Facility Collateral to the
Administrative Agent or its representatives, or to cause the Administrative
Agent or its representatives to control any Revolving Facility Collateral,
shall be deemed to have been complied with if and for so long as the Revolver
Collateral Agent shall have such possession or control for the benefit of the
Secured Parties and as bailee or sub-agent of the Administrative Agent as
provided in the Intercreditor Agreement or (b) requiring Grantors to name
the Administrative Agent as an additional insured or a loss payee under any
insurance policy or a beneficiary of any letter of credit, such requirement
shall have been complied with if any such insurance policy or letter of credit
also names the Revolver Collateral Agent as an additional insured, loss payee
or beneficiary, as the case may be, in each pursuant to the terms of the
Intercreditor Agreement.  Notwithstanding
anything to the contrary herein but subject to the Intercreditor Agreement, in
the event the Revolving Credit Documents or the Permitted Notes Documents
provide for the grant of a security interest or pledge over the assets of any
Grantor (other than Canadian Collateral) and such assets do not otherwise
constitute Collateral under this Agreement or any other Loan Document, such
Grantor shall (a) promptly grant a security interest in or pledge such
assets to secure the Obligations (including by consenting to any control
agreement with respect to Investment Property in any Securities Account), (b) promptly
take any actions necessary to perfect such security interest or pledge that is
required under the Revolving Credit Documents or Permitted Notes Documents, as
applicable, and (c) take all other steps reasonably requested by the
Administrative Agent in connection with the foregoing.


 


41

















 


SECTION 7.18.
Waivers by Loan Parties with Respect to California Real Property.  (a)  Each Loan Party hereby acknowledges
and affirms that it understands that to the extent the Obligations are secured
by real property located in the State of California, such Loan Party shall be
liable for the full amount of the liability hereunder notwithstanding
foreclosure on such real property by trustee sale or any other reason impairing
such Loan Party’s or any Secured Parties’ right to proceed against the
Borrower, any other Guaranteed Party or any other guarantor of the Obligations.


 


(b)  Each Loan Party hereby waives (to the fullest
extent permitted by applicable law) all rights and benefits under Section 580a,
580b, 580d and 726 of the California Code of Civil Procedure.  Each Loan Party hereby further waives (to the
fullest extent permitted by applicable law), without limiting the generality of
the foregoing or any other provision hereof, all rights and benefits which
might otherwise be available to such Loan Party under Sections 2809, 2810,
2815, 2819, 2821, 2839, 2845, 2848, 2849, 2850, 2899 and 3433 of the California
Civil Code.


 


(c)  Until the Obligations have been paid in full
in cash, each Loan Party waives its rights of subrogation and reimbursement and
any other rights and defenses available to such Loan Party by reason of
Sections 2787 to 2855, inclusive, of the California Civil Code, including,
without limitation, (1) any defenses such Loan Party may have to this
Agreement by reason of an election of remedies by the Secured Parties and (2) any
rights or defenses such Loan Party may have by reason of protection afforded to
the Borrower or any other Guaranteed Party pursuant to the antideficiency or
other laws of California limiting or discharging the Borrower’s or such other
Guaranteed Party’s indebtedness, including, without limitation, Section 580a,
580b, 580d or 726 of the California Code of Civil Procedure.  In furtherance of such provisions, each Loan
Party hereby waives all rights and defenses arising out of an election of
remedies by the Secured Parties, even though that election of remedies, such as
a nonjudicial foreclosure, destroys such Loan Party’s rights of subrogation and
reimbursement against the Borrower or any other Guaranteed Party by the
operation of Section 580d of the California Code of Civil Procedure or
otherwise.


 


42

















 


IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.


 


 


	
   

  	
  SMURFIT-STONE
  CONTAINER

  ENTERPRISES, INC.,

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as

  Administrative Agent,

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 
















 


Schedule I to


the Guarantee and


Collateral Agreement


 


SUBSIDIARY PARTIES


 

















 


Schedule II to


the Guarantee and


Collateral Agreement


 


PLEDGED EQUITY INTERESTS


 


	
  Holder

  	
   

  	
  Issuer

  	
   

  	
  Number
  of

  Certificate

  	
   

  	
  Registered

  Owner

  	
   

  	
  Number
  and

  Class of

  Equity Interest

  	
   

  	
  Percentage

  of Equity

  Interests

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


PLEDGED DEBT SECURITIES


 


	
  Holder

  	
   

  	
  Issuer

  	
   

  	
  Principal

  Amount

  	
   

  	
  Date of Note

  	
   

  	
  Maturity Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule III to


the Guarantee and


Collateral Agreement


 


U.S. COPYRIGHTS OWNED BY [NAME OF GRANTOR]


 


[Create
a separate page of Schedule III for each Grantor and state if no
copyrights are owned.  List in numerical
order by Registration No.]


 


U.S. Copyright Registrations


 


	
  Title

  	
   

  	
  Reg. No.

  	
   

  	
  Author

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Pending U.S. Copyright Applications for Registration


 


	
  Title

  	
   

  	
  Author

  	
   

  	
  Class

  	
   

  	
  Date Filed

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


LICENSES


 


[Create
a separate page of Schedule III for each Grantor, and state if any Grantor
is not a party to a license/sublicense.]


 


I.  Material Licenses/Sublicensees
of [Name of Grantor] as Licensor on Date Hereof


 


A.  Copyrights


 


[List
material U.S. copyrights in numerical order by Registration No.]


 


U.S. Copyrights


 


	
  Licensee
  Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  Title of

  U.S.

  Copyright

  	
   

  	
  Author

  	
   

  	
  Reg. No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


B.  Patents


 


[List
material U.S. patent nos. and U.S. patent application nos. in numerical order.]


 


U.S.
Patents


 


	
  Licensee
  Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  Issue Date

  	
   

  	
  Patent No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


U.S. Patent Applications


 


	
  Licensee
  Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  Date Filed

  	
   

  	
  Application No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


2

















 


C.  Trademarks


 


[List
material U.S. trademark nos. and U.S. trademark application nos. in numerical
order.]


 


U.S. Trademarks


 


	
  Licensee
  Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  U.S. Mark

  	
   

  	
  Reg. Date

  	
   

  	
  Reg. No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


U.S. Trademark Applications


 


	
  Licensee
  Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  U.S. Mark

  	
   

  	
  Date Filed

  	
   

  	
  Application

  No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


3

















 


II. Material 
Licensees/Sublicenses of [Name of Grantor] as Licensee on Date Hereof


 


A.  Copyrights


 


[List
material U.S. copyrights in numerical order by Registration No.]


 


U.S. Copyrights


 


	
  Licensor
  Name and

  Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  Title of

  U.S. Copyright

  	
   

  	
  Author

  	
   

  	
  Reg. No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


B.  Patents


 


[List
material U.S. patent nos. and U.S. patent application nos. in numerical order.]


 


U.S. Patents


 


	
  Licensor Name

  and Address

  	
   

  	
  Date of

  License/

  Sublicense

  	
   

  	
  Issue
  Date

  	
   

  	
  Patent
  No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


U.S.
Patent Applications


 


	
  Licensor
  Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  Date Filed

  	
   

  	
  Application No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


C.  Trademarks


 


[List
material U.S. trademark nos. and U.S. trademark application nos. in numerical
order.]


 


4

















 


U.S. Trademarks


 


	
  Licensor
  Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  U.S. Mark

  	
   

  	
  Reg. Date

  	
   

  	
  Reg. No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


U.S.
Trademark Applications


 


	
  Licensor
  Name

  and Address

  	
   

  	
  Date of License/

  Sublicense

  	
   

  	
  U.S. Mark

  	
   

  	
  Date

  Filed

  	
   

  	
  Application

  No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


5

















 


PATENTS OWNED BY [NAME OF GRANTOR]


 


[Create
a separate page of Schedule III for each Grantor and state if no patents
are owned.  List in numerical order by
Patent No./Patent Application No.]


 


U.S. Patent Registrations


 


	
  Patent
  Numbers

  	
   

  	
  Issue Date

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


U.S. Patent Applications


 


	
  Patent
  Application No.

  	
   

  	
  Filing Date

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


6

















 


TRADEMARK/TRADE NAMES OWNED BY [NAME OF GRANTOR]


 


[Create
a separate page of Schedule III for each Grantor and state if no
trademarks/trade names are owned.  List
in numerical order by trademark registration/application no.]


 


U.S. Trademark Registrations


 


	
  Mark

  	
   

  	
  Reg. Date

  	
   

  	
  Reg. No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


U.S. Trademark Applications


 


	
  Mark

  	
   

  	
  Filing Date

  	
   

  	
  Application No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


7

















 


Schedule IV to


the Guarantee and


Collateral Agreement


 


COMMERCIAL TORT CLAIMS


 
















 


Exhibit I
to the


Guarantee
and


Collateral
Agreement


 


SUPPLEMENT NO.
       dated as of
[            ], to
the Guarantee and Collateral Agreement dated as of [      ], 2010, among SMURFIT-STONE CONTAINER
ENTERPRISES, INC., a Delaware corporation (“SSCE”), SMURFIT-STONE
CONTAINER CORPORATION, a Delaware corporation, each Subsidiary party thereto
(each such subsidiary individually a “Subsidiary Guarantor” and
collectively, the “Subsidiary Guarantors”; the Subsidiary Guarantors and
SSCE are referred to collectively herein as the “Grantors”) and JPMORGAN
CHASE BANK, N.A. (“JPMCB”), as Administrative Agent (in such capacity,
the “Administrative Agent”).


 


A.  Reference is
made to the Credit Agreement dated as of [    
], 2010 (as amended, supplemented or otherwise modified from time to
time, the “Credit Agreement”), among Smurfit-Stone Container
Corporation, SSCE , the lenders from time to time party thereto and JPMorgan
Chase Bank, N.A., as Administrative Agent.


 


B.  Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement and the Guarantee and Collateral
Agreement referred to therein.


 


C.  The Grantors
have entered into the Guarantee and Collateral Agreement in order to induce the
Lenders to make Loans to the Borrower.  Section 7.14
of Guarantee and Collateral Agreement provides that additional Domestic
Subsidiaries of the Borrower may become Subsidiary Parties under the Guarantee
and Collateral Agreement by execution and delivery of an instrument in the form
of this Supplement.  The undersigned
Subsidiary (the “New Subsidiary”) is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Subsidiary
Party under the Guarantee and Collateral Agreement in order to induce the
Lenders to make additional Loans to the Borrower and as consideration for Loans
previously made to the Borrower.


 


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


 


SECTION 1.  In accordance
with Section 7.14 of the Guarantee and Collateral Agreement, the
New Subsidiary by its signature below becomes a Subsidiary Party, Grantor and
Guarantor under the Guarantee and Collateral Agreement with the same force and
effect as if originally named therein as a Subsidiary Party, Grantor and
Guarantor and the New Subsidiary hereby (a) agrees to all the terms and
provisions of the Guarantee and Collateral Agreement applicable to it as a
Subsidiary Party, Grantor and Guarantor thereunder and (b) represents and
warrants that the representations and warranties made by it as a Grantor and
Guarantor thereunder are true and correct on and as of the date hereof.  In furtherance of the foregoing, the New
Subsidiary, as security for


 

















 


the payment and performance in full of the Obligations
(as defined in the Collateral Agreement), does hereby create and grant to the
Administrative Agent, its successors and assigns, for the benefit of the
Secured Parties, their successors and assigns, a security interest in and lien
on all of the New Subsidiary’s right, title and interest in and to the
Collateral (as defined in the Guarantee and Collateral Agreement) of the New
Subsidiary.  Each reference to a “Guarantor”
or “Grantor” in the Guarantee and Collateral Agreement shall be deemed to include
the New Subsidiary.  The Guarantee and
Collateral Agreement is hereby incorporated herein by reference.


 


SECTION 2.  The New Subsidiary represents and warrants to
the Administrative Agent and the other Secured Parties that this Supplement has
been duly authorized, executed and delivered by it and constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and subject to general principles of
equity (whether enforcement is sought by a proceeding in equity or at law).


 


SECTION 3.  This Supplement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Supplement shall become effective when
the Administrative Agent shall have received a counterpart of this Supplement
that bears the signature of the New Subsidiary and the Administrative Agent has
executed a counterpart hereof.  Delivery
of an executed signature page to this Supplement by facsimile transmission
shall be as effective as delivery of a manually signed counterpart of this
Supplement.


 


SECTION 4.  The New Subsidiary hereby represents and
warrants that (a) set forth on Schedule I attached hereto is a
true and correct schedule with the true and correct legal name of the New Subsidiary,
its jurisdiction of formation and the location of its chief executive office, (b) set
forth on Schedule II attached hereto is a true and correct
schedule, as of the date hereof, of (i) all the Equity Interests owned by
the New Subsidiary required to be pledged under Article III,
setting forth the percentage of the issued and outstanding units of each class
of the Equity Interests of the issuer thereof so owned by the New Subsidiary
and the number of each certificate representing the same, and (ii) all
debt securities and promissory notes owned by the New Subsidiary required to be
pledged under Article III or Section 4.04 (c) set forth on Schedule III
attached hereto is a true and correct schedule, as of the date hereof, of all
Intellectual Property of the New Subsidiary that would have been required to be
set forth on Schedule III to the Guarantee and Collateral Agreement
and (d) set forth on Schedule IV attached hereto is a true and
correct schedule, as of the date hereof, of all Commercial Tort Claims required
to be disclosed under Section 4.04(g) of the Guarantee and Collateral
Agreement.  The New Subsidiary shall
deliver to the Administrative Agent a certificate executed by a Responsible
Officer of the New Subsidiary setting forth the information (other than that
set forth on the Schedules described above) required pursuant to the Perfection
Certificate.


 


2

















 


SECTION 5.  Except as expressly supplemented hereby, the
Guarantee and Collateral Agreement shall remain in full force and effect.


 


SECTION 6.  THIS SUPPLEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING
SECTIONS 5-1401 AND 5-1402 OF TITLE 14 OF THE NEW YORK GENERAL OBLIGATIONS LAW
BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAWS RULES THEREOF.


 


SECTION 7.  In case any one or more of the provisions
contained in this Supplement should be held invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein and in the Guarantee and Collateral Agreement shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties hereto shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.


 


SECTION 8.  All communications and notices hereunder
shall be in writing and given as provided in Section 7.01 of the
Guarantee and Collateral Agreement.


 


SECTION 9.  The New Subsidiary agrees to reimburse the
Administrative Agent for its reasonable out-of-pocket expenses in connection
with this Supplement, including the reasonable fees, other charges and
disbursements of counsel for the Administrative Agent.


 


3

















 


IN WITNESS WHEREOF, the New Subsidiary and
the Administrative Agent have duly executed this Supplement to the Collateral
Agreement as of the day and year first above written.


 


	
   

  	
  [NAME
  OF NEW SUBSIDIARY],

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as

  
	
   

  	
  Administrative
  Agent,

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


Schedule I


to Supplement No.       to the


Guarantee and


Collateral Agreement


 


NEW SUBSIDIARY INFORMATION


 


	
  Name

  	
   

  	
  Jurisdiction of Formation

  	
   

  	
  Chief Executive Office

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule II


to the Supplement No.       to the


Guarantee and


Collateral
Agreement


 


EQUITY INTERESTS


 


	
  Issuer

  	
   

  	
  Number of

  Certificate

  	
   

  	
  Registered

  Owner

  	
   

  	
  Number and

  Class of

  Equity Interests

  	
   

  	
  Percentage

  of Equity Interests

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


DEBT SECURITIES


 


	
  Issuer

  	
   

  	
  Principal

  Amount

  	
   

  	
  Date  of Note

  	
   

  	
  Maturity Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule III


to the Supplement No.        to the


Guarantee and


Collateral
Agreement


 


INTELLECTUAL PROPERTY


 

















 


Schedule IV


to the Supplement No.      to the


Guarantee and


Collateral Agreement


 


COMMERCIAL TORT CLAIMS


 

















 


Exhibit II to the


Guarantee and


Collateral Agreement


 


[FORM OF] PATENT AND
TRADEMARK SECURITY AGREEMENT dated as of [ 
] [  ], 20[  ] (this “Agreement”), among [     ] (the “Grantors”) and JPMORGAN
CHASE BANK, N.A. (“JPMCB”), as Administrative Agent.


 


Reference is made to (a) the Credit
Agreement dated as of [     ], 2010 (as
amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among
Smurfit-Stone Container Corporation, Smurfit-Stone Container Enterprises, Inc.
(the “Borrower”), the Lenders from time to time party thereto and JPMCB,
as Administrative Agent, and (b) the Guarantee and Collateral Agreement
dated as of [      ], 2010 (as amended,
supplemented or otherwise modified from time to time, the “Collateral
Agreement”), among Smurfit-Stone Container Corporation (formerly known as
Smurfit-Stone Container Enterprises, Inc.), the Subsidiaries party thereto
and JPMCB, as Administrative Agent.  The
Lenders have agreed to extend credit to the Borrower on the terms and subject
to the conditions set forth in the Credit Agreement.  The obligations of the Lenders to extend such
credit are conditioned on, among other things, the execution and delivery of
this Agreement.  The Grantors are
affiliates of the Borrower, will derive substantial benefits from the extension
of credit to the Borrower pursuant to the Credit Agreement and are willing to
execute and deliver this Agreement in order to induce the Lenders to extend
such credit.  Accordingly, the parties
hereto agree as follows:


 


SECTION 1.  Terms. 
Capitalized terms used in this Agreement and not otherwise defined
herein have the meanings specified in the Collateral Agreement or the Credit
Agreement, as applicable.  The rules of
construction specified in Section 1.02 of the Credit Agreement also apply
to this Agreement.


 


SECTION 2.  Grant of Security Interest. As
security for the payment or performance, as the case may be, in full of the
Secured Obligations, the Grantor hereby grants to the Administrative Agent, its
successors and assigns, for the benefit of the Secured Parties, a security
interest (the “Security Interest”) in all of such Grantor’s right, title
and interest in, to and under any Patents now owned or at any time hereafter
acquired by such Grantor, including those listed on Schedule I (the “Patent
Collateral”) and any Trademarks now owned or at any time hereafter acquired
by such Grantor, including those listed on Schedule II (the “Trademark
Collateral”, and together with the Patent Collateral, the “Patent and
Trademark Collateral”).


 


SECTION 3. Collateral Agreement.  The security interests granted to the
Administrative Agent herein are granted in furtherance, and not in limitation
of, the security interests granted to the Administrative Agent pursuant to the
Collateral Agreement.  Each Grantor
hereby acknowledges and affirms that the rights and remedies of the
Administrative Agent with respect to the Patent and Trademark Collateral are
more fully set forth in the Collateral Agreement, the terms and provisions of
which are hereby incorporated herein by reference as if fully set forth
herein.  In the event of any conflict


 

















 


between the terms of this
Agreement and the Collateral Agreement, the terms of the Collateral Agreement
shall govern.


 


SECTION 4. Counterparts.  This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together
shall constitute a single contract. 
Delivery of an executed signature page to this Agreement by
facsimile or other electronic transmission shall be effective as delivery of a
manually signed counterpart of this Agreement.


 


[Remainder of this page intentionally left blank]


 


2






 












 


IN WITNESS WHEREOF, the parties hereto have
duly executed this Patent and Trademark Security Agreement as of the day and
year first above written.


 


 


	
   

  	
  [               ]

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as

  
	
   

  	
  Administrative
  Agent,

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 

















 


Schedule I


 

















 


Schedule II


 

















 


Exhibit III to the


Guarantee and


Collateral Agreement


 


[FORM OF] COPYRIGHT
SECURITY AGREEMENT dated as of [  ]
[  ], 20[ 
] (this “Agreement”), among [    
] (the “Grantors”) and JPMORGAN CHASE BANK, N.A. (“JPMCB”),
as Administrative Agent.


 


Reference is made to (a) the Credit
Agreement dated as of [     ], 2010 (as
amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among
Smurfit-Stone Container Corporation, Smurfit-Stone Container Enterprises, Inc.
(the “Borrower”), the Lenders from time to time party thereto and JPMCB,
as Administrative Agent, and (b) the Guarantee and Collateral Agreement
dated as of [      ], 2010 (as amended,
supplemented or otherwise modified from time to time, the “Collateral
Agreement”), among Smurfit-Stone Container Corporation (formerly known as
Smurfit-Stone Container Enterprises, Inc.), the Subsidiaries party thereto
and JPMCB, as Administrative Agent.  The
Lenders have agreed to extend credit to the Borrower on the terms and subject
to the conditions set forth in the Credit Agreement.  The obligations of the Lenders to extend such
credit are conditioned on, among other things, the execution and delivery of
this Agreement.  The Grantors are
affiliates of the Borrower, will derive substantial benefits from the extension
of credit to the Borrower pursuant to the Credit Agreement and are willing to
execute and deliver this Agreement in order to induce the Lenders to extend
such credit.  Accordingly, the parties
hereto agree as follows:


 


SECTION 1.  Terms. 
Capitalized terms used in this Agreement and not otherwise defined
herein have the meanings specified in the Collateral Agreement or the Credit
Agreement, as applicable.  The rules of
construction specified in Section 1.02 of the Credit Agreement also apply
to this Agreement.


 


SECTION 2.  Grant of Security Interest.  As security for the payment or performance,
as the case may be, in full of the Secured Obligations, the Grantor hereby
grants to the Administrative Agent, its successors and assigns, for the benefit
of the Secured Parties, a security interest (the “Security Interest”) in
all of such Grantor’s right, title and interest in, to and under any Copyrights
now owned or at any time hereafter acquired by such Grantor, including those
listed on Schedule I, and any Copyright Licenses under which such Grantor is a
licensee, including those listed on Schedule II (collectively, the “Copyright
Collateral”).


 


SECTION 3. Collateral Agreement.  The security interests granted to the
Administrative Agent herein are granted in furtherance, and not in limitation
of, the security interests granted to the Administrative Agent pursuant to the
Collateral Agreement.  Each Grantor
hereby acknowledges and affirms that the rights and remedies of the
Administrative Agent with respect to the Copyright Collateral are more fully
set forth in the Collateral Agreement, the terms and provisions of which are
hereby incorporated herein by reference as if fully set forth herein.  In the event of any conflict between the
terms of this Agreement and the Collateral Agreement, the terms of the
Collateral Agreement shall govern.


 

















 


SECTION 4. Counterparts.  This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together
shall constitute a single contract. 
Delivery of an executed signature page to this Agreement by
facsimile or other electronic transmission shall be effective as delivery of a
manually signed counterpart of this Agreement.


 


[Remainder of this page intentionally left blank]


 


2

















 


IN WITNESS WHEREOF, the parties hereto have
duly executed this Copyright Security Agreement as of the day and year first
above written.


 


 


	
   

  	
  [               ],

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as

  
	
   

  	
  Administrative
  Agent,

  
	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 

















 


Schedule I


 

















 


Schedule II


 
















EXHIBIT
D


 


FORM OF
INTERCREDITOR AGREEMENT


 


(See Attached)


 

















 


 


EXHIBIT D


to the Credit Agreement


 


 


FORM OF


 


LIEN
SUBORDINATION AND INTERCREDITOR AGREEMENT


 


dated as of


 


[        ],
2010


 


among


 


SMURFIT-STONE CONTAINER CORPORATION

(formerly known as Smurfit-Stone Container Enterprises, Inc.),


 


 


the Subsidiaries party hereto,


 


 


JPMORGAN CHASE BANK, N.A.

as Administrative Agent for the Term Loan Credit Secured Parties


 


 


DEUTSCHE BANK AG NEW YORK BRANCH

as Collateral Agent for the Revolving Credit Secured Parties


 


and


 


each Permitted Notes Agent 

from time to time party hereto


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I

  
	
   

  
	
  Definitions

  
	
   

  	
   

  
	
  Section 1.01. New York UCC

  	
  2

  
	
  Section 1.02. Other Defined Terms

  	
  2

  
	
  Section 1.03. Terms Generally

  	
  17

  
	
   

  	
   

  
	
  ARTICLE II

  
	
   

  
	
  Lien Priorities

  
	
   

  	
   

  
	
  Section 2.01. Relative Priorities

  	
  17

  
	
  Section 2.02. Prohibition on
  Contesting Liens

  	
  18

  
	
  Section 2.03. No New Liens

  	
  18

  
	
  Section 2.04. Effectiveness of Lien
  Priorities

  	
  20

  
	
   

  	
   

  
	
  ARTICLE III

  
	
   

  
	
  Enforcement

  
	
   

  	
   

  
	
  Section 3.01. Exercise of Remedies

  	
  20

  
	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  
	
  Payments

  
	
   

  
	
  Section 4.01. Application of Proceeds

  	
  24

  
	
  Section 4.02. Payments Over in
  Violation of Agreement

  	
  24

  
	
   

  	
   

  
	
  ARTICLE V

  
	
   

  
	
  Other Agreements

  
	
   

  	
   

  
	
  Section 5.01. Releases

  	
  24

  
	
  Section 5.02. Insurance

  	
  25

  
	
  Section 5.03. Amendments to Prior Credit
  Documents and Junior Credit Documents

  	
  26

  
	
  Section 5.04. Legend

  	
  28

  
	
  Section 5.05. Bailee for Perfection

  	
  29

  
	
  Section 5.06. Entry Upon Premises by
  Controlling Agent

  	
  30

  
	
  Section 5.07. Rights under Permits,
  Licenses and Intellectual Property

  	
  33

  
	
  Section 5.08. Permitted Notes

  	
  33

  
	
  Section 5.09. When Discharge of
  Obligations Deemed Not To Have Occurred

  	
  34

  



 


i

















 


	
  Section 5.10. Canadian Intercompany
  Notes

  	
  36

  
	
  Section 5.11. Cash Management and
  Hedging Obligations

  	
  36

  
	
  Section 5.12. Access to Information

  	
  36

  
	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  
	
  Insolvency or Liquidation Proceedings

  
	
   

  	
   

  
	
  Section 6.01.
  Cash Collateral and DIP
  Financing

  	
  37

  
	
  Section 6.02. Relief from the
  Automatic Stay

  	
  38

  
	
  Section 6.03. Adequate Protection

  	
  38

  
	
  Section 6.04. No Waiver

  	
  39

  
	
  Section 6.05. Avoidance Issues

  	
  39

  
	
  Section 6.06. Post-Petition Interest

  	
  39

  
	
  Section 6.07. Separate Grants of
  Security and Separate Classification

  	
  40

  
	
  Section 6.08. Voting

  	
  40

  
	
  Section 6.09. Application

  	
  41

  
	
  Section 6.10. Waiver

  	
  41

  
	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  
	
  Reliance;
  Waivers; Etc.

  
	
   

  	
   

  
	
  Section 7.01. Reliance

  	
  41

  
	
  Section 7.02. No Warranties or
  Liability

  	
  41

  
	
  Section 7.03. No Waiver of Lien
  Priorities

  	
  42

  
	
  Section 7.04. Obligations
  Unconditional

  	
  42

  
	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  
	
  Miscellaneous

  
	
   

  	
   

  
	
  Section 8.01. Conflicts

  	
  43

  
	
  Section 8.02. Effectiveness;
  Continuing Nature of this Agreement; Severability

  	
  43

  
	
  Section 8.03. Amendments; Waivers

  	
  44

  
	
  Section 8.04. Information Concerning
  Financial Condition of SSCC and Subsidiaries

  	
  44

  
	
  Section 8.05. Subrogation

  	
  44

  
	
  Section 8.06. Application of Payments

  	
  45

  
	
  Section 8.07. Governing Law;
  Jurisdiction; Consent to Service of Process

  	
  45

  
	
  Section 8.08. Waiver of Jury Trial

  	
  46

  
	
  Section 8.09. Notices

  	
  46

  
	
  Section 8.10. Further Assurances

  	
  46

  
	
  Section 8.11. Successors and Assigns

  	
  46

  
	
  Section 8.12. Specific Performance

  	
  46

  
	
  Section 8.13. Headings

  	
  47

  
	
  Section 8.14. Counterparts

  	
  47

  



 


ii

















 


	
  Section 8.15. Authorization

  	
  47

  
	
  Section 8.16. No Third Party
  Beneficiaries

  	
  47

  
	
  Section 8.17. Provisions Solely To Define
  Relative Rights

  	
  47

  
	
  Section 8.18. Additional Grantors

  	
  48

  
	
  Section 8.19. Term Loan Credit Agent
  and Revolving Credit Agent

  	
  48

  



 


iii

















 


	
  SCHEDULES:

  	
   

  
	
   

  	
   

  
	
  Schedule I

  	
  — Notice Addresses

  
	
  Schedule II

  	
  — Grantors

  
	
   

  	
   

  
	
  EXHIBITS:

  	
   

  
	
   

  	
   

  
	
  Exhibit I

  	
  — Form of Supplement

  
	
  Exhibit II

  	
  — Form of Joinder Agreement

  



 

















 


LIEN SUBORDINATION AND INTERCREDITOR
AGREEMENT dated as of [·],
2010 (as amended, supplemented or otherwise modified from time to time, this “Agreement”),
among SMURFIT-STONE CONTAINER CORPORATION, a Delaware corporation (formerly
known as Smurfit-Stone Container Enterprises, Inc.) (“SSCC”);(1) the
other SUBSIDIARIES of SSCC whose signatures appear below or who in the future
become parties hereto as provided in Section 8.18; JPMORGAN CHASE BANK,
N.A., in its capacity as Administrative Agent for, and acting on behalf of, the
Term Loan Credit Secured Parties referred to herein (together with its
successors and assigns in such capacity, the “Term Loan Credit Agent”);
and DEUTSCHE BANK AG NEW YORK BRANCH, in its capacity as Collateral Agent for,
and acting on behalf of, the Revolving Credit Secured Parties referred to
herein (together with its successors and assigns in such capacity, the “Revolving
Credit Agent”); and each Permitted Notes Agent that from time to time
becomes a party hereto pursuant to Section 5.07.  Capitalized terms used and not otherwise
defined in this Agreement are used with the meanings specified in Article I.


 


SSCC, the Term
Loan Credit Lenders from time to time party thereto and the Term Loan Credit Agent have entered into the Term Loan Credit
Agreement, under which the Term Loan Credit Lenders have agreed, upon the terms
and subject to the conditions set forth therein, to extend credit to SSCC.  The Term Loan Credit Obligations will be
incurred or guaranteed by the Grantors as provided in the Term Loan Credit
Agreement and secured by Liens on the Term Loan Credit Collateral as provided
in the Term Loan Credit Collateral
Documents.


 


On or prior to the date hereof,
SSCC, the subsidiaries of SSCC party thereto, the Revolving Credit Lenders from
time to time party thereto and the Revolving Credit Agent are entering into, or
have entered into, as the case may be, the Revolving Credit Agreement, under
which the Revolving Credit Lenders are agreeing, upon the terms and subject to
the conditions set forth therein, to extend credit to SSCC and certain of its
Subsidiaries.  The Revolving Credit
Obligations will be incurred or guaranteed by, amongst others, the Grantors and
secured by Liens, including those on the Revolving Credit Collateral, as
provided in the Revolving Credit Collateral Documents.


 


The Term Loan Credit Documents
and the Revolving Credit Documents provide, among other things, that the
parties hereto will enter into this Agreement to set forth their relative
rights and remedies with respect to the Common Collateral.


 






(1) Form assumes
agreement to be entered into following the merger of Smurfit-Stone Container
Corporation into Smurfit-Stone Enterprises, Inc., after which the
surviving corporation shall change its name to Smurfit-Stone Container
Corporation.


 


1

















 


The Term Loan Credit Documents
and Revolving Credit Documents permit SSCC to issue Permitted Notes secured by
the Common Collateral whose Liens on the Common Collateral will be subordinated
to the Term Loan Credit Liens with respect to the Non-ABL Collateral but senior
to the Revolving Credit Liens and will be subordinated to the Term Loan Credit
Liens and Revolving Credit Liens with respect to the ABL Collateral; provided
that, among other things, such Permitted Notes be subject to an Agreement
setting forth the relative rights and remedies of the Term Loan Credit Secured
Parties, the Revolving Credit Secured Parties and the holders of such debt with
respect to the Common Collateral.


 


Accordingly, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Term Loan Credit Agent (for itself and on behalf
of the Term Loan Credit Secured Parties), the Revolving Credit Agent (for
itself and on behalf of the Revolving Credit Secured Parties) and each
Permitted Notes Agent (for itself and on behalf of the Permitted Notes Secured
Parties under the applicable Permitted Notes Documents) agree as follows:


ARTICLE I


 


Definitions


 


Section 1.01.  New York UCC.  All capitalized terms used without definition
herein that are defined in the UCC as in effect in the State of New York shall
have the meanings specified therein.


 


Section 1.02.  Other Defined Terms.  As used in the Agreement, the following terms
shall have the following meanings:


 


“ABL Collateral”  means any and all present and future right, title and
interest of the Grantors in and to the following, whether now owned or
hereafter acquired, existing or arising, and wherever located to the extent
constituting Common Collateral:  (a) all
Accounts Receivable and related Records; (b) all Chattel Paper; (c) all
Deposit Accounts, Commodities Accounts, Securities Accounts and all lock-boxes
at any bank, including all Money and Certificated Securities, Uncertificated
Securities, Securities Entitlements and Investment Property or other assets
credited thereto or deposited therein (including all cash, cash equivalents,
marketable securities and other funds held in or on deposit in any such Deposit
Account, Commodity Account or Securities Account but excluding all equity
interests of or owned by any of the Grantors and all such assets relating to
Intellectual Property), and all cash, cash equivalents, checks and other
negotiable instruments, funds and other evidences of payments (but excluding
the Non-ABL Sweep Collateral Account and any cash or other assets held in the
Non-ABL Sweep Collateral Account in accordance with the Term Loan Credit
Agreement as in effect on the date hereof or, provided that any amendment or
modification to the terms thereof with respect to such Non-ABL Sweep Account
are not materially adverse to the Revolving Credit Lenders, the Term Loan
Credit Agreement as Amended from time to time); (d) all Inventory; (e) to
the extent evidencing, governing, 


 


2

















 


securing or otherwise related
to the items referred to in the preceding clauses (a), (b), (c) and (d) of
this definition, all contracts, contract rights, payment intangibles,
Documents, Instruments, Letter of Credit Rights and Commercial Tort Claims and
other claims or causes of action; (f) all books, Records and data
processing software directly relating to, or arising from any of the foregoing;
and (g) all substitutions, replacements, products, Supporting Obligations
and Proceeds (including, insurance proceeds, income, payments, damages and
proceeds of suit) of any and all of the foregoing.  For the avoidance of doubt, ABL Collateral
shall not include Intellectual Property.


 


“ABL Collateral Enforcement
Actions” has the meaning assigned to such term in Section 5.06(a).


 


“ABL Collateral Enforcement Notice”
has the meaning assigned to such term in Section 5.06(a).


 


“Accounts Receivable”
means all Accounts and other rights to payment for the sale, lease, license,
assignment or other disposal of any Inventory or the performance of services
(whether performed or to be performed), existing on the date of this Agreement
or hereafter arising, whether or not earned by performance.


 


“Agent”
means (a) with respect to the Term Loan Credit Secured Parties, the Term
Loan Credit Agent, (b) with respect to the Revolving Credit Secured
Parties, the Revolving Credit Agent and (c) with respect to the Permitted
Notes Secured Parties of any Series, the Permitted Notes Agent with respect to
such Series.


 


“Amend”
means, in respect of any Indebtedness, obligation or agreement, to amend,
restate, modify, waive, supplement, restructure, extend, increase or renew such
Indebtedness, in whole or in part.  “Amended” and “Amendment” shall have correlative meanings.


 


“Bankruptcy Case” means
a case under the Bankruptcy Code or any other Bankruptcy Law.


 


“Bankruptcy
Code” means Title 11 of the United States Code entitled “Bankruptcy,”
as now or hereafter in effect, or any successor statute.


 


“Bankruptcy
Law” means the Bankruptcy Code and any similar Federal, state
or foreign law for the relief of debtors.


 


“Canadian Collateral”
means any and all of the assets of a Canadian Revolving Credit Loan Party on
which any Lien has been granted or is purported to be granted pursuant to a
Revolving Credit Collateral Document by such Canadian Revolving Credit Loan
Party to secure any Revolving Credit Obligations.


 


“Canadian Intercompany Notes”
means each promissory note evidencing any loan or advance from time to time
made by any Grantor to a Canadian Revolving Credit Loan Party, in each case
where the obligations evidenced thereby are secured by a Lien on assets of such
Canadian Revolving Credit Loan Party.


 


3

















 


“Canadian Intercompany Notes
Documents” means the Canadian Intercompany Notes and all other instruments,
agreements and other documents evidencing or governing the loan evidenced by
any Canadian Intercompany Note, providing for any security interest or other
right in respect thereof, affecting the terms of the foregoing or entered into
in connection therewith and all schedules, exhibits and annexes to each of the
foregoing.


 


“Canadian Revolving Credit
Loan Party” means each Revolving Credit Loan Party that is incorporated,
organized, or established in Canada or any province or territory thereof.


 


“Cash Management Services”
shall mean (a) cash management
services, including treasury, depository, overdraft, electronic funds transfer
and other cash management arrangements and (b) commercial credit card and
merchant card services.


 


“Cash
Management and Hedging Obligations” shall mean the Term Loan Credit Cash
Management and Hedging Obligations and the Revolving Credit Cash Management and
Hedging Obligations.


 


“Class”, when used in
reference to (a) any Obligations, refers to whether such Obligations are the
Term Loan Credit Obligations, the Revolving Credit Obligations or the Permitted
Notes Obligations of any Series, (b) any Agent, refers to whether such
Agent is the Term Loan Credit Agent, the Revolving Credit Agent or the
Permitted Notes Agent of any Series, (c) any Secured Parties, refers to
whether such Secured Parties are the Term Loan Credit Secured Parties, the
Revolving Credit Secured Parties or the Permitted Notes Secured Parties of any Series and
(d) any Credit Documents, refers to whether such Credit Documents are the
Term Loan Credit Documents, the Revolving Credit Documents or the Permitted
Notes Documents with respect to Permitted Notes of any Series.


 


“Collateral”
means all Term Loan Credit Collateral, all Revolving Credit Collateral and all Permitted
Notes Collateral.


 


“Collateral Documents”
means the Term Loan Credit Collateral Documents, the Revolving Credit
Collateral Documents and the Permitted Notes Collateral Documents.


 


“Common Collateral”
means all Collateral that secures two or more Classes of Obligations.  For the avoidance of doubt, “Common
Collateral” shall not include Canadian Collateral or any other assets of any
Person that is not both a Term Loan Credit Loan Party or a Permitted Notes Loan
Party, on the one hand, and a Revolving Credit Loan Party, on the other hand.


 


“Control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies, or the dismissal or appointment of the
management, of a Person, whether through the ability to exercise voting power,
by contract or otherwise.  “Controlled”
shall have a correlative meaning.


 


4

















 


“Controlling Agent”
means, with respect to any Common Collateral consisting of ABL Collateral or
Non-ABL Collateral, the Agent with respect to the Prior Secured Parties secured
by such Common Collateral and in respect of which Common Collateral all Other
Secured Parties are Junior Secured Parties. 
The parties hereto acknowledge that (a) prior to the Discharge of
the Term Loan Credit Obligations, the Term Loan Credit Agent is the Controlling
Agent with respect to the Non-ABL Collateral, (b) prior to the Discharge
of the Revolving Credit Obligations, the Revolving Credit Agent is the
Controlling Agent with respect to the ABL Collateral, (c) after the
Discharge of the Term Loan Credit Obligation and prior to the Discharge of the
Permitted Notes Obligations, the Designated Permitted Notes Agent will be the
Controlling Agent with respect to the Non-ABL Collateral and (d) after the
Discharge of the Revolving Credit Obligation and prior to the Discharge of the
Term Loan Credit Obligations, the Term Loan Credit Agent will be the
Controlling Agent with respect to the ABL Collateral.


 


“Controlling Secured Parties”
means, with respect to any Common Collateral consisting of ABL Collateral or
Non-ABL Collateral and any Secured Parties, the Prior Secured Parties with
respect to such Common Collateral and in respect of which Common Collateral all
Other Secured Parties are Junior Secured Parties.


 


“Credit Documents” means the Term Credit Documents, the
Revolving Credit Documents and the Permitted Notes Documents.


 


“Designated Permitted Notes
Agent” means (a) if there is only one Series of Permitted Notes,
the Permitted Notes Agent with respect to such Series and (b) if
there is more than one Series of Permitted Notes, the Person designated
from time to time by the Permitted Notes Agents with respect to Permitted Notes
Documents under which at least a majority of the then aggregate amount of
Permitted Notes Obligations are outstanding, in a notice to the Term Loan
Credit Agent, the Revolving Credit Agent and SSCC, as the “Designated Permitted
Notes Agent”.


 


“DIP
Financing” has the meaning set forth in Section 6.01(b).


 


“DIP Financing Liens”
has the meaning set forth in Section 6.01(b).


 


“Discharge” means,
subject to Section 5.09, with respect to any Class of Obligations:


 


(a)  payment in full in
cash of the principal of and interest (including interest accruing on or after
the commencement of any Insolvency or Liquidation Proceeding, whether or not
such interest would be allowed in such Insolvency or Liquidation Proceeding) on
all such Obligations (other than Cash Management and Hedging Obligations);


 


(b)  payment in full in
cash of all other Obligations (other than Cash Management and Hedging
Obligations) of such Class that are due and payable or otherwise accrued
and owing at or prior to the time such principal and interest are paid


 


5
















 


(other than claims, causes of action or other liabilities in respect of
which no claim or demand for payment has been made at such time);


 


(c)  termination or expiration of all
commitments, if any, to extend credit that would give rise to Obligations (other
than Cash Management and Hedging Obligations) of such Class;


 


(d)  termination or cash
collateralization of all letters of credit and bankers’ acceptances the
reimbursement or payment obligations in respect of which constitute Obligations
(other than Cash Management and Hedging Obligations) of such Class (any
such cash collateralization to be in an amount and manner reasonably
satisfactory to the Agent for such Class of Obligations, but in no event
shall such amount be greater than 105% of the aggregate undrawn face amount in
the case of letters of credit or 105% of the principal amount in the case of
bankers’ acceptances);


 


(e)  adequate provision (as agreed to by
each Agent or otherwise determined by a court of competent jurisdiction) has
been made for any contingent or unliquidated Obligations (other than Cash
Management and Hedging Obligations) of such Class in respect of claims,
causes of action or other monetary liabilities that have been asserted, or
threatened in writing (and which would reasonably be expected to be asserted),
against the Secured Parties of such Class, and of which the Agent of such Class shall
have informed the other Agents in writing concurrently with the satisfaction of
each of the requirements set forth in clauses (a) through (d) above;
and


 


(f)  in the case of the Discharge of the
Revolving Credit Obligations, to the extent that the requirements set forth
above have been satisfied with the proceeds of a foreclosure on Collateral or
other enforcement action by the Revolving Credit Agent with respect to the
Revolving Credit Obligations under the Revolving Credit Collateral Documents,
the payment in full in cash of all Revolving Credit Cash Management and Hedging
Obligations that are due and payable at such time.


 


“Discharge of
Prior Obligations” means, subject to the provisions of Section 5.09,
(a) with respect to the Term Loan Credit Liens on the ABL Collateral and
the Term Loan Credit Obligations insofar as they are secured by such Liens, the
occurrence of a Discharge of the Revolving Credit Obligations, (b) with
respect to the Revolving Credit Liens on the Non-ABL Collateral and the
Revolving Credit Obligations insofar as they are secured by such Liens, the
occurrence of a Discharge of the Term Loan Credit Obligations and the Permitted
Notes Obligations and (c) (i) with respect to the Permitted Notes
Liens on the ABL Collateral and the Permitted Notes Obligations insofar as they
are secured by such Liens, the occurrence of a Discharge of the Revolving
Credit Obligations and the Term Loan Credit Obligations and (ii) with
respect to the Permitted Notes Liens on the Non-ABL Collateral and the
Permitted Notes Obligations insofar as they are secured by such Liens, the
occurrence of a Discharge of the Term Loan Credit Obligations.


 


“Disposition” has the
meaning set forth in Section 5.01(b). 
“Dispose”, when used as a verb, shall have a correlative meaning.


 


6

















 


“Domestic Subsidiary” shall mean any
Subsidiary organized under the laws of the United States or any State thereof
(including the District of Columbia).


 


“Equity Interests” means shares of
capital stock, partnership interests, membership interests, beneficial
interests in a trust or other equity ownership interests, whether voting or nonvoting,
in, or interests in the income or profits of, a Person, and any warrants,
options or other rights entitling the holder thereof to purchase or acquire any
of the foregoing.


 


“GAAP” means generally accepted
accounting principles in the United States, applied on a consistent basis.


 


“Governmental
Authority” means the United States or any foreign nation’s
government and any Federal, state, provincial, regional, local or foreign court
or governmental agency, authority, instrumentality or regulatory body.


 


“Grantors”
means, at any time, SSCC and each Domestic Subsidiary that, at such time, has,
pursuant to any Collateral Document, granted a Lien on any Common Collateral
owned by it to secure any Term Loan Credit Obligation, Revolving Credit
Obligation or Permitted Notes Obligation pursuant to any Credit Document; provided
that solely for purpose of Section 2.03, a Domestic Subsidiary shall be
deemed to be a “Grantor” if it is required pursuant to the Credit Documents of
a Class to grant a Lien on assets owed by it to secure Obligations of such
Class.


 


“Hedging Agreement” shall mean any
agreement with respect to any swap, forward, future or derivative transaction
or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities,
or economic, financial or pricing indices or measures of economic, financial or
pricing risk or value or any similar transaction or any combination of these
transactions; provided that no phantom stock or similar plan providing
for payments only on account of services provided by current or former
directors, officers, employees or consultants of SSCC or the Subsidiaries shall
be a Hedging Agreement.


 


“Incremental
Revolving Facility” means an incremental revolving facility established
under the Term Loan Credit Agreement.


 


“Indebtedness” means and
includes all liabilities, absolute or contingent, that constitute “Indebtedness”
within the meaning of the Term Loan Credit Agreement or any equivalent term
under the Revolving Credit Agreement or the Permitted Notes Indenture.


 


“Insolvency or Liquidation Proceeding”
means (a) any voluntary or involuntary case or proceeding under the
Bankruptcy Code with respect to any Grantor or Canadian Revolving Credit Loan
Party; (b) any other voluntary or involuntary insolvency, reorganization
or bankruptcy case or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding, with respect to any Grantor
or Canadian Revolving Credit Loan Party, or with respect to a material portion
of the assets of any of the foregoing; (c) any liquidation, dissolution,
reorganization or 


 


7

















 


winding up of any Grantor or Canadian
Revolving Credit Loan Party, whether voluntary or involuntary and whether or
not involving insolvency or bankruptcy; or (d) any assignment for the
benefit of creditors or any other marshalling of assets and liabilities of any
Grantor or Canadian Revolving Credit Loan Party; provided, in the case
of any involuntary case or proceeding, that such case or proceeding shall have
continued for 60 days without having been dismissed or discharged.


 


“Junior Agent” means, with respect to
any Common Collateral and any Prior Secured Party, each Agent representing
Secured Parties whose Liens on such Common Collateral are Junior Liens.


 


“Junior Collateral Documents” means,
with respect to any Junior Liens, the Collateral Documents pursuant to which
such Junior Liens are granted.


 


“Junior Credit Documents” means (a) with
respect to Junior Obligations that are Term Loan Credit Obligations, the Term
Loan Credit Documents, (b) with respect to Junior Obligations that are
Revolving Credit Obligations, the Revolving Credit Documents and (c) with
respect to Junior Obligations that are Permitted Notes Obligations, the
Permitted Notes Documents.


 


“Junior Liens” means (a) with
respect to the ABL Collateral (i) prior to the Discharge of the Revolving
Credit Obligations, any Term Loan Credit Liens and Permitted Notes Liens and (ii) from
and after the Discharge of the Revolving Credit Obligations and prior to the
Discharge of the Term Loan Credit Obligations, any Permitted Notes Lien and (b) with
respect to the Non-ABL Collateral (i) prior to the Discharge of the Term
Loan Credit Obligations, any Permitted Notes Liens and Revolving Credit Liens
and (ii) from and after the Discharge of the Term Loan Credit Obligations
and prior to the Discharge of the Permitted Notes Obligations, any Revolving
Credit Liens.


 


“Junior Obligations” means (a) with
respect to any Common Collateral consisting of ABL Collateral or Non-ABL
Collateral or any Prior Liens thereon, any Obligations that are secured by
Junior Liens on such Common Collateral and (b) with respect to any Prior
Obligations or Prior Secured Parties secured by any Common Collateral
consisting of ABL Collateral or Non-ABL Collateral, any Obligations that are
secured by Junior Liens on such Common Collateral, but, in each case, only
insofar as such Obligations are secured by such Junior Liens, it being agreed
that, to the extent provided herein, Obligations secured by Junior Liens on the
ABL Collateral or the Non-ABL Collateral, as the case may be, may also be
secured by Prior Liens on other Common Collateral and insofar as they shall be
secured by such Prior Liens on such other Common Collateral shall constitute
Prior Obligations with respect thereto.


 


“Junior Secured Parties” means, as to
any Common Collateral consisting of ABL Collateral and Non-ABL Collateral and
any Prior Secured Party, any Secured Parties to the extent the Obligations held
by such Secured Parties, or in respect of which such Secured Parties are the
obligee, are secured by Junior Liens on such Common Collateral pursuant to the
terms of this Agreement.


 


8

















 


“Lien” means, with respect to any
asset, (a) any mortgage, deed of trust, lien, pledge, assignment for
security, hypothecation, encumbrance, charge or security interest in, on or of
such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase
option, call or similar right of a third party with respect to such securities.


 


“Loan Parties” means the Term Loan
Credit Loan Parties, the Revolving Credit Loan Parties and the Permitted Notes
Loan Parties.


 


“New Agent” has the meaning
set forth in Section 5.09.


 


“Non-ABL
Collateral” means all Common Collateral that is not ABL
Collateral.


 


“Non-ABL Controlling Agent” means the
Controlling Agent with respect to the Non-ABL Collateral.


 


“Non-ABL Sweep Account” means (a) the
“Term Sweep Account” as defined in the Term Loan Credit Agreement and (b) each
other Deposit Accounts or Securities Accounts holding only the Proceeds of any
sale or disposition of any Non-ABL Collateral and the proceeds or investment
thereof for the same purposes and in substantially the same manner as the
Non-ABL Sweep Account defined in clause (a) hereof.


 


“Notice of New
Refinancing Obligations” has the meaning set forth in Section 5.09.


 


“Obligations” means all Term
Loan Credit Obligations, all Revolving Credit Obligations and all Permitted
Notes Obligations.


 


“Other Secured Parties” means (a) with
respect to any Term Loan Credit Secured Party, the Revolving Credit Secured
Parties and the Permitted Notes Secured Parties, (b) with respect to any
Revolving Credit Secured Party, the Term Loan Credit Secured Parties and the
Permitted Notes Secured Parties and (c) with respect to any Permitted
Notes Secured Party, the Term Loan Credit Secured Parties and the Revolving
Credit Secured Parties.


 


“Permitted Notes” means Indebtedness
incurred by the Borrower in the form of notes or bonds, the incurrence of which
(a) reduces the aggregate principal amount permitted to be incurred under
the incremental facility under the Term Loan Agreement or any Refinancing
Agreement with respect to Term Loan Credit Obligations or (b) constitutes
a Refinancing of loans under the Term Loan Credit Agreement (including, for the
avoidance of doubt, pursuant to an exchange of Term Loans for such Permitted
Notes), in each case as permitted under the Term Loan Credit Agreement and the
Revolving Credit Agreement or any Refinancing Agreement with respect to Term
Loan Credit Obligations.


 


9

















 


“Permitted Notes Agent” has the
meaning set forth in Section 5.08(a).


 


“Permitted Notes Collateral” means any
assets of SSCC or any other Grantor on which any Lien has been granted or is
purported to be granted pursuant to a Permitted Notes Collateral Document by
SSCC or any other Grantor to secure any Permitted Notes Obligation.


 


“Permitted Notes Collateral Documents”
means each Permitted Notes Mortgage and each other security agreement,
instrument and document now existing or entered into after the date hereof that
grants a Lien on any assets of SSCC or any of the Subsidiaries constituting
Common Collateral to secure any Permitted Notes Obligations; provided
that the Permitted Notes Collateral Documents shall be substantially the same
as the Term Loan Collateral Documents (with such differences as are reasonably
satisfactory to the Term Loan Credit Agent and the Revolving Credit Agent).


 


“Permitted Notes Documents” means, with respect to any Series of
Permitted Notes, each promissory note, indenture, Permitted Notes Collateral
Document and each other operative agreement evidencing or governing the
Permitted Notes of such Series, each as Amended from time to time.


 


“Permitted Notes Liens” means Liens on
the Common Collateral securing the Permitted Notes Obligations, including all
such Liens created under the Permitted Notes Collateral Documents.


 


“Permitted
Notes Loan Party” means SSCC and each Subsidiary that incurs or guarantees
the Permitted Notes Obligations pursuant to the Permitted Notes Documents.


 


“Permitted Notes Mortgage” means each
mortgage, deed of trust, assignment of leases and rents, leasehold mortgage or
other security document that grants a Lien on any real property owned or leased
by SSCC or any other Grantor to secure any Permitted Notes Obligations.


 


“Permitted Notes Obligations” means, with respect to any Series of
Permitted Notes, (a) all principal of, and interest (including any
interest which accrues after the commencement of any Bankruptcy Case, whether
or not allowed or allowable as a claim in any such proceeding) payable with
respect to, the Permitted Notes, (b) all other amounts payable to the
Permitted Notes Secured Parties under the Permitted Notes Documents and (c) all
Amendments or Refinancings of the foregoing; provided that the resulting
Indebtedness is secured by Common Collateral and is otherwise effected in
accordance with the provisions hereof.


 


“Permitted Notes Secured Parties” has
the meaning set forth in Section 5.08(a).


 


“Person” means any natural person,
corporation, limited liability company, trust, joint venture, association,
company, partnership, Governmental Authority or other entity.


 


10

















 


“Pledged
Collateral” has the meaning set forth in Section 5.05.


 


“Prior Agent” means, with respect to
any Collateral and any Junior Secured Party, each Collateral Agent representing
Secured Parties whose Liens on such Collateral are Prior Liens.


 


“Prior Collateral Documents” means,
with respect to any Junior Agent or any other Junior Secured Parties, any
Collateral Documents to the extent that the Obligations created thereunder are
Prior Obligations.


 


“Prior Lien Collateral” means, with
respect to any Junior Agent or any other Junior Secured Party, the Common
Collateral securing such Junior Secured Party’s Junior Liens that also secures
Prior Liens of an Other Secured Party.


 


“Prior Liens” means (a) with
respect to the ABL Collateral (i) prior to the Discharge of the Revolving
Credit Obligations, any Revolving Credit Lien and (ii) prior to the
Discharge of the Term Loan Credit Obligations, any Term Loan Credit Lien and (b) with
respect to the Non-ABL Collateral (i) prior to the Discharge of the Term
Loan Credit Obligations, any Term Loan Credit Lien and (ii) prior to the
Discharge of the Permitted Notes Obligations, any Permitted Notes Lien.


 


“Prior Obligations” means (a) with
respect to any Common Collateral consisting of ABL Collateral or Non-ABL
Collateral or any Junior Liens thereon, any Obligations that are secured by
Prior Liens on such Common Collateral and (b) with respect to any Junior
Obligations or Junior Secured Parties secured by any Common Collateral
consisting of ABL Collateral or Non-ABL Collateral, any Obligations that are
secured by Prior Liens on such Common Collateral, but, in each case, only
insofar as such Obligations are secured by such Prior Liens, it being agreed
that, to the extent provided herein, it being agreed that, to the extent
provided herein, Obligations secured by Prior Liens on the ABL Collateral or
Non-ABL Collateral, as the case may be, may also be secured by Junior Liens on
other Common Collateral and insofar as they shall be secured by such Junior
Liens on such other Common Collateral shall constitute Junior Obligations with
respect thereto.


 


“Prior Secured Parties” means, with
respect to any Common Collateral consisting of ABL Collateral or Non-ABL
Collateral and any Junior Secured Parties, any Secured Parties to the extent
that the Obligations held by such Secured Parties, or in respect of which such
Secured Parties are the obligees, are secured by Prior Liens on such Common
Collateral pursuant to the terms of this Agreement.


 


“Recovery” has the
meaning set forth in Section 6.05.


 


“Refinance” means, in
respect of any Indebtedness, to refinance or replace, or to issue other
indebtedness in exchange for or replacement of, such Indebtedness in whole or
in part.  “Refinanced” and “Refinancing”
shall have correlative meanings. 
Notwithstanding anything to the contrary herein, each party hereto
acknowledges and agrees that no Incremental Revolving Facility established
after the 


 


11

















 


termination of the Revolving Credit Agreement
shall constitute a Refinancing of the Revolving Credit Obligations under this
Agreement.


 


“Refinanced Obligations” has the
meaning set forth in Section 5.09.


 


“Refinancing Obligations” has the
meaning set forth in Section 5.09.


 


“Related Secured Parties” means (a) in
the case of the Term Loan Credit Agent, the Term Loan Credit Secured Parties, (b) in
the case of the Revolving Credit Agent, the Revolving Credit Secured Parties
and (c) in the case of the Permitted Notes Agent, the Permitted Notes
Secured Parties.


 


“Revolving Credit Agent” has the
meaning assigned to such term in the preamble to this Agreement.


 


“Revolving Credit Agreement” means the
revolving facility (and, as applicable, term loan facility) agreement, dated as
of [•], 2010, among SSCC, certain Subsidiaries, the lenders party thereto
and Deutsche Bank AG New York Branch, as the administrative agent, as Amended
from time to time.


 


“Revolving Credit Cash Management and
Hedging Obligations” means [(a) any and all obligations of the Revolving Credit Loan Parties or any
Subsidiaries, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor) in connection with Cash
Management Services; provided that the obligations of the Revolving
Credit Loan Parties or any Subsidiaries with respect to Cash Management
Services described in clause (b) of the definition thereof shall not
exceed an aggregate principal amount of $10,000,000, in each case to the extent
such obligations are designated by SSCC as “obligations” secured by the
Revolving Credit Collateral pursuant to the procedures set forth in the
Revolving Credit Agreement and (b) all obligations owing by the
Revolving Credit Loan Parties or any Subsidiaries to counterparties to Hedging
Agreements, in each case to the extent
such obligations are permitted to be and are designated by SSCC as “obligations”
secured by the Revolving Credit Collateral pursuant to the procedures set forth
in the Revolving Credit Agreement.](1)


 


“Revolving Credit Collateral” means
all assets of SSCC or any other Grantor on which any Lien has been granted or is
purported to be granted pursuant to a 


 






(1) The definition of
Revolving Credit Cash Management and Hedging Obligations may be amended
following the effectiveness of the Term Loan Credit Agreement if consented by
the Term Loan Credit Agent, provided that no such consent shall be provided
without the consent of the “Required Lenders” (as defined in the Term Loan
Credit Agreement) if such revised definition is materially adverse to the Term
Loan Credit Lenders.


 


12

















 


Revolving Credit Collateral Document by SSCC
or any other Grantor to secure any Revolving Credit Obligation.


 


“Revolving Credit Collateral Documents”
means the Revolving Credit Guarantee and Collateral Agreement, the Revolving
Credit Mortgages and each other security agreement, instrument and document now
existing or entered into after the date hereof (or Amended from time to time)
that grants a Lien on any assets of SSCC or any of the Subsidiaries
constituting Common Collateral to secure any Revolving Credit Obligations.


 


“Revolving Credit Documents” means the
Revolving Credit Agreement and the Revolving Credit Collateral Documents.


 


“Revolving Credit Guarantee and Collateral
Agreement” means the guarantee and security agreement, as Amended from time
to time, pursuant to which SSCC and each Revolving Credit Loan Party guarantees
certain of the Revolving Credit Obligations and SSCC and each Domestic
Subsidiary party thereto grants or purports to grant security interests to the
Revolving Credit Agent and the Revolving Credit Secured Parties on the assets
of SSCC and each Domestic Subsidiary party thereto.  [As of the date hereof, the Revolving Credit
Guarantee and Collateral Agreement means the Guarantee and Collateral Agreement
dated as of [             ],
2010, among SSCC, the Subsidiaries party thereto and the Revolving Credit
Agent.]


 


“Revolving Credit Lenders” [means, at
any time, Persons that are at such time “Lenders” under and as defined in the
Revolving Credit Agreement.](2)


 


“Revolving Credit Liens” means Liens
on the Common Collateral securing the Revolving Credit Obligations, including
all such Liens created under the Revolving Credit Collateral  Documents.


 


“Revolving Credit Loan Parties” [means
the “Loan Parties” as defined in the Revolving Credit Agreement.](3)


 


“Revolving Credit Mortgage” means each
mortgage, deed of trust, assignment of leases and rents, leasehold mortgage or
other security document that grants a Lien on any real property owned or leased
by SSCC or any other Grantor to secure any Revolving Credit Obligations.


 


“Revolving Credit Obligations” means (a) all
principal of, and interest (including any interest which accrues after the
commencement of any Bankruptcy Case, whether or not allowed or allowable as a
claim in any such proceeding) payable with 


 






(2) Definition to be
substantially the same as the lenders and letter of credit issuing banks under
the Revolving Credit Agreement.


(3) Definition to be
substantially the same as SSCC and each Subsidiary that incurs or guarantees
the Revolving Credit Obligations.


 


13

















 


respect to, the commitments, loans and
letters of credit under the Revolving Credit Agreement, (b) all other
amounts payable to the Revolving Credit Secured Parties under the Revolving
Credit Documents (including with respect to guarantee obligations of any
Revolving Credit Loan Party from time to time owed to any Revolving Credit
Secured Party, reimbursement of amounts drawn under (and obligations to cash
collateralize) letters of credit, fees, expenses and indemnification
obligations), (c) all Amendments or Refinancings of the foregoing; provided
that the resulting Indebtedness is secured by Common Collateral and is
otherwise effected in accordance with the provisions thereof and (d) all
Revolving Credit Cash Management and Hedging Obligations.


 


“Revolving Credit Secured Parties”
[means the “Secured Parties” as defined in the Revolving Credit Agreement](4).


 


“Rising Prior Agent” means, at any
time that the Prior Obligations secured by a Prior Lien of  a Controlling Agent shall have been
Discharged, the Junior Agent that becomes the Controlling Agent at the time of
such Discharge hereunder or, if there are no remaining Prior Agents, the Junior
Agent.


 


“Rule 3-16 Collateral” means
securities of any Subsidiary (the “Affected Subsidiary”), which if
pledged to secure the Permitted Notes Obligations, would require, pursuant to Rule 3-16
of Regulation S-X (as such rule is amended, modified or interpreted by the
Securities and Exchange Commission (the “SEC”) under the Securities Act
of 1934 (or any other similar applicable rule, regulation or law), the filing
by SSCC or any other Subsidiary with the SEC (or any other Governmental
Authority) of separate financial statements of such Affected Subsidiary that
are not already required to be filed with the SEC (or such Governmental
Authority) by SSCC or any Subsidiary.


 


“Secured Parties” means the Term Loan
Credit Secured Parties, the Revolving Credit Secured Parties and the Permitted
Notes Secured Parties.


 


“Series”, when used in reference to Permitted Notes Obligations, refers to
such Permitted Notes Obligations as shall have been issued or incurred pursuant
to the same indentures or other agreements and with respect to which the same Person
acts as the Agent.


 


“SSCC” has the meaning assigned to
such term in the preamble to this Agreement.


 






(4) Definition to be
substantially the same as (i) the Revolving Credit Lenders, the Revolving
Credit Agent and any other issuing lender, swingline lender, fronting lender,
administrative agent or collateral or co-collateral agent under the Revolving
Credit Agreement, (ii) any holders of Revolving Credit Cash Management and
Hedging Obligations, (iii) the beneficiaries of each indemnification
obligation undertaken by any Revolving Credit Loan Party under any Revolving
Credit Document and (iv) the successors and assigns of each of the
foregoing.


 


14

















 


“subsidiary” means, with respect to
any Person (herein referred to as the “parent”), any corporation,
partnership, association or other business entity of which securities or other
ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or more than 50% of the general partnership or
membership interests are, at the time any determination is being made, owned,
controlled or held by, or otherwise Controlled by, the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.


 


“Subsidiary” means any direct or
indirect subsidiary of SSCC.


 


“Term Loan Credit Agent” has the
meaning assigned to such term in the preamble to this Agreement.


 


“Term Loan Credit Agreement” means the
Credit Agreement dated as of [•], 2010, among SSCC, the lenders party
thereto and JPMorgan Chase Bank N.A., as administrative agent, as Amended from
time to time.


 


“Term Loan Credit Cash Management and
Hedging Obligations” (a) any
and all obligations of the Term Loan Credit Loan Parties or any Subsidiaries,
whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications
thereof and substitutions therefor) in connection with Cash Management
Services; provided that the obligations of the Term Loan Credit Loan
Parties or any Subsidiaries with respect to Cash Management Services described
in clause (b) of the definition thereof shall not exceed an aggregate
principal amount of $10,000,000, in each case to the extent such obligations
are designated by SSCC as “obligations” secured by the Term Loan Credit
Collateral pursuant to the procedures set forth in the Term Loan Credit
Agreement and (b) all obligations owing by the Term Loan Credit
Loan Parties or any Subsidiaries to counterparties to Hedging Agreements, in
each case, to the extent such
obligations are permitted to be and are designated by SSCC as “obligations”
secured by the Term Loan Credit Collateral pursuant to the procedures set forth
in the Term Loan Credit Agreement.


 


“Term Loan Credit Collateral” means
all assets of SSCC or any other Grantor on which any Lien has been granted or
is purported to be granted pursuant to a Term Loan Credit Collateral Document
by SSCC or any other Grantor to secure any Term Loan Credit Obligations.


 


“Term Loan Credit Collateral Documents”
means the Term Loan Credit Guarantee and Collateral Agreement, the Term Loan
Credit Mortgages and each other security agreement, instrument and document now
existing or entered into after the date hereof 
(or Amended from time to time) that grants a Lien on any assets of SSCC
or any of the Subsidiaries constituting Common Collateral to secure any Term
Loan Credit Obligations.


 


“Term Loan Credit Documents” means the
Term Loan Credit Agreement and the Term Loan Credit Collateral Documents.


 


15
















 


“Term Loan Credit Guarantee and Collateral
Agreement” means the guarantee and security agreement, as Amended from time
to time, pursuant to which SSCC and each Term Loan Credit Loan Party guarantees
certain of the Term Loan Credit Obligations and SSCC and each Domestic
Subsidiary party thereto grants or purports to grant security interests to the
Term Loan Credit Agent and the Term Loan Credit Secured Parties on the assets
of SSCC and each Domestic Subsidiary party thereto.  As of the date hereof, the Term Loan Credit
Guarantee and Collateral Agreement means the Guarantee and Collateral Agreement
dated as of
[             ],
2010, among SSCC, the Subsidiaries party thereto and the Term Loan Credit
Agent.


 


“Term Loan Credit Guarantors” means
the “Guarantors” as defined in the Term Loan Credit Agreement.


 


“Term Loan Credit Lenders” means, at
any time, Persons that are at such time “Lenders” under and as defined in the
Term Loan Credit Agreement.


 


“Term Loan Credit Liens” means Liens
on the Common Collateral securing the Term Loan Credit Obligations, including
all such Liens created under the Term Loan Credit Collateral Documents.


 


“Term Loan Credit Loan Parties” means
the “Loan Parties” as defined in the Term Loan Credit Agreement.


 


“Term Loan Credit Mortgage” means each
mortgage, deed of trust, assignment of leases and rents, leasehold mortgage or
other security document that grants a Lien on any real property owned or leased
by SSCC or any other Grantor to secure any Term Loan Credit Obligations.


 


“Term Loan Credit Obligations” means (a) all
principal of, and interest (including any interest which accrues after the
commencement of any Bankruptcy Case, whether or not allowed or allowable as a
claim in any such proceeding) payable with respect to, the commitments and
loans under the Term Loan Credit Agreement, (b) all other amounts payable
to the Term Loan Credit Secured Parties under the Term Loan Credit Documents
(including with respect to guarantee obligations of any Term Loan Credit Loan
Party from time to time owed to any Term Loan Credit Secured Party, fees,
expenses and indemnification obligations), (c) all Amendments or
Refinancings (other than Permitted Notes) of the foregoing; provided
that the resulting Indebtedness is secured by Common Collateral and is
otherwise effected in accordance with the provisions thereof and (d) all
Term Loan Credit Cash Management and Hedging Obligations.


 


“Term Loan Credit Secured Parties”
means the “Secured Parties” as defined in the Term Loan Credit Guarantee and
Collateral Agreement.


 


“UCC” means the
Uniform Commercial Code (or any similar or equivalent legislation) as in effect
in any applicable jurisdiction.


 


16

















 


Section 1.03.  Terms Generally.  The definitions of terms set forth herein
shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have
the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time Amended (subject to any restrictions on such
Amendments set forth herein), (b) any definition of or reference to any
statute, regulation or other law herein shall be construed (i) as
referring to such statute, regulation or other law as from time to time Amended
(including by succession of comparable successor statutes, regulations or other
laws) and (ii) to include all official rulings and interpretations
thereunder having the force of law or with which affected Persons customarily
comply, (c) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (d) the words “herein”, “hereof”
and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (e) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, and (f) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.


 


ARTICLE II


 


Lien Priorities


 


Section 2.01.  Relative Priorities.  Notwithstanding (a) the date, time,
method, manner or order of grant, attachment or perfection of any Junior Lien
or Prior Lien on any Common Collateral, (b) any provision of the UCC or
any other applicable law or of  the Term
Loan Credit Documents, the Revolving Credit Documents or any Permitted Notes
Documents, (c) any defect or deficiency in, or failure to perfect, any
Prior Lien, (d) the possession or control by any Agent or any bailee of
all or any part of the Common Collateral or (e) any other circumstance
whatsoever, each Agent, on behalf of itself and its Related Secured Parties,
hereby agrees that:


 


(i) any
Prior Lien on any Common Collateral now or hereafter held by or on behalf of
any Prior Agent or any Prior Secured Party or any agent or trustee therefor,
regardless of how acquired, whether by grant, possession, statute, operation of
law, court order, subrogation or otherwise, shall be senior in all respects and
prior to all Junior Liens on such Common Collateral; and


 


(ii) any
Junior Lien on any Common Collateral now or hereafter held by or on behalf of
any Junior Agent or any Junior Secured Party or any agent or trustee therefor,
regardless of how acquired, whether by grant, possession, statute, operation of
law, court order, subrogation or otherwise, shall be junior and subordinated in
all respects to all Prior Liens on such Common Collateral.


 


17

















 


Any and all foreclosure Proceeds relating to
any Common Collateral shall be distributed in accordance with the priorities of
the Liens with respect to Common Collateral established hereby, (A) in the
case of the Non-ABL Collateral, (1) FIRST to the Term Loan Credit Agent
for the benefit of the Term Loan Credit Secured Parties, (2) SECOND,
following the Discharge of the Term Loan Credit Obligations, to the Designated
Permitted Notes Agent for the benefit of the Permitted Notes Secured Parties, (3) THIRD,
following the Discharge of the Term Loan Credit Obligations and the Discharge
of the Permitted Notes Obligations, to the Revolving Credit Agent for the
benefit of the Revolving Credit Secured Parties and (4) FOURTH, following
the Discharge of all Obligations, to the applicable Grantor and (B) in the
case of the ABL Collateral, (1) FIRST to the Revolving Credit Agent for
the benefit of the Revolving Credit Secured Parties, (2) SECOND, following
the Discharge of the Revolving Credit Obligations, to the Term Loan Credit
Agent for the benefit of the Term Loan Credit Secured Parties, (3) THIRD,
following the Discharge of the Revolving Credit Obligations and the Discharge
of the Term Loan Credit Obligations, and subject to the terms of, and the
rights of the Grantors under, the Permitted Notes Documents, the Designated
Permitted Notes Agent with respect to such series for the benefit of the
Permitted Notes Parties and (4) FOURTH, following the Discharge of all
Obligations, to the applicable Grantor. 
All Prior Liens in respect of any Common Collateral shall be and remain
(until the Discharge of the Class of Obligations secured by such Prior
Liens) senior in right, priority, operation, effect and in all other respects
to the Liens securing any other Class of Obligations that are Junior Liens
in respect of such Common Collateral, whether or not such Prior Liens are
subordinated to any Lien securing any other obligation of SSCC or the other
Grantors.


 


Section 2.02.  Prohibition on Contesting Liens.  Each Agent, on behalf of itself and its
Related Secured Parties, agrees that none of them will (and hereby waives any
right to) contest or support any other Person in contesting, in any proceeding
(including any Insolvency or Liquidation Proceeding), the perfection, priority,
validity or enforceability of any Prior Lien or any Junior Lien, the validity
or enforceability of any Credit Documents or Obligations, the relative rights
and duties of the Agents and Secured Parties granted or established under the
Credit Documents or the provisions of this Agreement; provided that
nothing in this Agreement shall be construed to prevent or impair the right of
any Agent or Secured Party to enforce this Agreement (including the priority of
Liens set forth in Section 2.01).


 


Section 2.03.  No New Liens.  Whether or not any Insolvency or Liquidation
Proceeding has been commenced by or against SSCC or any other Grantor, SSCC and
the other parties hereto agree that none of SSCC and any other Grantor shall
grant, and no Secured Party shall accept, any additional Lien on any asset of
SSCC or such other Grantor to secure any Obligation unless SSCC or such other
Grantor has granted or concurrently grants a Lien on such asset to secure the
other outstanding Obligations (all such Liens to have the relative priorities
set forth herein based on whether the assets subject to such additional Liens
constitute ABL Collateral or Non-ABL Collateral); provided that, with
respect to any Lien granted under a Term Loan Credit Mortgage or a Permitted
Notes Mortgage with respect to any real property located in the State of New
York, such Lien may be granted without a prior or concurrent grant 


 


18

















 


of a Lien thereon to secure the Revolving
Credit Obligations so long as, prior to the grant of such Lien under such Term
Loan Credit Mortgage or Permitted Notes Mortgage, SSCC or the applicable
Grantor shall have given notice thereof to the Revolving Credit Agent and the
Revolving Credit Agent shall have notified SSCC that, pursuant to its authority
under the Revolving Credit Agreement, the Revolving Credit Agent shall forego
such grant of a Lien to secure the Revolving Credit Obligations; provided
further that, with respect to any Lien granted under a Term Loan Collateral
Document or a Revolving Credit Collateral Document with respect to any Rule 3-16
Collateral, such Lien may be granted without a prior or concurrent grant of a
Lien thereon to secure the Permitted Notes Obligations so long as, prior to the
grant of such Lien under such Term Loan Credit Collateral Document or Revolving
Credit Collateral Document, SSCC or the applicable Grantor shall have given
notice thereof to the Permitted Notes Agent and the Permitted Notes Agent shall
have notified SSCC that, pursuant to its authority under the Permitted Notes
Documents, the Permitted Notes Agent shall forego such grant of a Lien to
secure the Permitted Notes Obligations.  If a Junior Agent or a Junior Secured Party
shall (nonetheless and in breach hereof) hold any Lien on any assets of any
Grantor securing any Junior Obligations that are not also subject to a Lien in
respect of the Prior Obligations under the Prior Credit Documents and if the
Discharge of Prior Obligations has not occurred, then such Junior Agent shall,
without the need for any further consent of any party and notwithstanding
anything to the contrary in any other document, be deemed to also hold and have
held such Lien for the benefit of the Prior Agents as a security for the Prior
Obligations (subject to the lien priority and the other terms hereof) and shall
promptly following knowledge thereof notify the Prior Agents in writing of the
existence of such Lien and in any event take such actions as may be reasonably
requested by any Prior Agent to assign or release such Liens to such Prior
Agent (and/or its designee) as security for the applicable Prior Obligations; provided
that if the instructions of the Prior Agents conflict, the request of the
Controlling Agent shall control.  If a Prior Agent or a Prior Secured Party
shall (nonetheless and in breach hereof) hold any Lien on any assets of any
Grantor securing any Prior Obligations that are not also subject to a Lien in
respect of the Junior Obligations under the Junior Credit Documents and if the
Discharge of such Junior Obligations has not occurred, then such Prior Agent
shall, without the need for any further consent of any party and
notwithstanding anything to the contrary in any other document, be deemed to
also hold and have held such Lien for the benefit of the Junior Agents as a
security for the Junior Obligations (subject to the lien priority and the other
terms hereof) and shall promptly following knowledge thereof notify the Junior
Agents in writing of the existence of such Lien.  To the extent that the foregoing provisions
are not complied with for any reason, without limiting any other rights and
remedies available to any Prior Agent or any Prior Secured Parties, each Junior
Agent, for itself and on behalf of its Related Secured Parties, agrees that any
amounts received by or distributed to any of them pursuant to or as a result of
Liens granted in contravention of this Section shall be subject to Section 4.02.  In furtherance of the foregoing, and without
limiting Section 8.10, each Grantor agrees, upon request by the Agent with
respect to Obligations of any Class, to identify the Collateral of any other Class that
could reasonably constitute Common Collateral and the Grantors with respect
thereto.  For the avoidance of doubt and
subject to Section 5.09, in the event letters of credit or bankers’
acceptances are cash collateralized in connection with the Discharge of 


 


19

















 


Obligations of a Class pursuant to
clause (d) of the definition of Discharge, such cash collateral shall no
longer be required to secure the Obligations of any other Class.


 


Section 2.04.  Effectiveness of Lien Priorities.  Each of the parties hereto acknowledges that
the Lien priorities provided for in this Agreement shall not be affected or
impaired in any manner whatsoever, including, without limitation, on account
of:  (i) the invalidity,
irregularity or unenforceability of all or any part of the Credit Documents; (ii) any
amendment, change or modification of any Credit Documents; or (iii) any
impairment, modification, change, exchange, release or subordination of or
limitation on, any liability of, or stay of actions or lien enforcement
proceedings against, SSCC or any Loan Party under a Credit Document, or its
property, or its estate in bankruptcy resulting from any bankruptcy,
arrangement, readjustment, composition, liquidation, rehabilitation, similar
proceeding or otherwise involving or affecting any Secured Party.


 


ARTICLE III


 


Enforcement


 


Section 3.01.  Exercise of Remedies.  (a)  Until the Discharge of Prior
Obligations has occurred, whether or not any Insolvency or Liquidation
Proceeding has been commenced by or against SSCC or any other Grantor, each
Junior Agent and each Junior Secured Party will not:


 


(i) exercise or seek to exercise any rights or
remedies with respect to any Common Collateral subject to any Prior Lien
(including the exercise of any right of setoff or any right under any lockbox
agreement, account control agreement, landlord waiver or bailee’s letter or
similar agreement or arrangement to which such Junior Agent or such Junior
Secured Party is a party) or institute or commence, or join with any Person
(other than the Controlling Agent) in commencing, any action or proceeding with
respect to such rights or remedies (including any action of foreclosure,
enforcement, collection or execution);


 


(ii) contest, protest or object to any
foreclosure proceeding or action brought by any Prior Agent or any Prior
Secured Party or any other exercise by any Prior Agent or any Prior Secured
Party of any rights and remedies relating to any Common Collateral subject to
such Prior Agent’s or such Prior Secured Party’s Prior Lien, whether under the
applicable Prior Credit Documents or otherwise; or


 


(iii) object to the forbearance by any Prior
Agent or any Prior Secured Party from bringing or pursuing any foreclosure
proceeding or action or any other exercise of any rights or remedies relating
to any Common Collateral subject to such Prior Agent’s or such Prior Secured
Party’s Prior Lien;


 


provided that the
Junior Liens granted on such Common Collateral shall attach to any Proceeds of
such Common Collateral resulting from actions taken by any Prior Agent or 


 


20

















 


any Prior Secured Party in accordance with
this Agreement, subject to the relative priorities set forth in Article II.


 


(b)  Subject to the terms and conditions
of this Agreement, until the Discharge of Prior Obligations has occurred,
whether or not any Insolvency or Liquidation Proceeding has been commenced by
or against SSCC or any other Grantor, the Controlling Agent and Controlling
Secured Parties shall have the exclusive right to enforce rights, exercise
remedies (including setoff and the right to credit bid their debt) and make
determinations regarding any release, Disposition or restrictions with respect
to any Common Collateral subject to their Prior Liens without any consultation
with or the consent of any other Agent or its Related Secured Parties; provided
that the Liens of such other Agent and its Related Secured Parties on such
Common Collateral shall remain on the Proceeds of such Common Collateral
released or Disposed of, subject to the relative priorities set forth in Article II.  In exercising rights and remedies with
respect to the Common Collateral subject to their Prior Liens, the Controlling
Agent and each Controlling Secured Party may enforce the provisions of the
applicable Prior Credit Documents and exercise remedies thereunder, all in such
order and in such manner as they may determine in the exercise of their sole
discretion.  Such exercise and
enforcement shall include the right of any agent appointed by them to sell or
otherwise Dispose of such Common Collateral upon foreclosure, to incur expenses
in connection with such sale or Disposition and to exercise all the rights and
remedies of a secured creditor under the UCC and of a secured creditor under
Bankruptcy Laws of any applicable jurisdiction.


 


(c)  Notwithstanding
the foregoing provisions of this Section, any Junior Agent and any Junior
Secured Party may:


 


(i) file a claim or statement of interest with
respect to its Junior Obligations in any Insolvency or Liquidation Proceeding
that has been commenced by or against SSCC or any other Grantor;


 


(ii) take any action (not adverse to the
priority status of any Prior Liens on the Common Collateral or the rights of
any Prior Agent or any Prior Secured Party to exercise rights and remedies in
respect thereof) in order to create, perfect, preserve or protect its Junior
Lien on the Common Collateral;


 


(iii) file any necessary responsive or
defensive pleadings in opposition to any motion, claim, adversary proceeding or
other pleading made by any Person objecting to or otherwise seeking the
disallowance of the claims of the Junior Secured Parties, including any claims
secured by the Common Collateral, if any, in each case in accordance with the
terms of this Agreement;


 


(iv) vote on any plan of reorganization and
file any proof of claim in an Insolvency or Liquidation Proceeding or
otherwise, in each case, in accordance with the terms of this Agreement, with
respect to the Common Collateral subject to any Prior Liens;


 


21

















 


(v) exercise
their rights and remedies as unsecured creditors, as provided in paragraph (e) of
this Section; and


 


(vi) exercise
the rights and remedies provided for in Section 6.03.


 


Each Junior Agent, on behalf of itself and
its Related Secured Parties, agrees that it will not take or receive any Common
Collateral subject to any Prior Lien or any Proceeds of any such Common
Collateral in connection with the exercise of any right or remedy (including
setoff) with respect to such Common Collateral in violation of this Agreement
unless and until the Discharge of the Prior Obligations has occurred.  Without limiting the generality of the
foregoing, until the Discharge of Prior Obligations has occurred, except as
expressly provided in Section 6.03 and this paragraph (c), the sole right
of each Junior Agent and each Junior Secured Party with respect to any Common
Collateral subject to any Prior Lien is to hold a Junior Lien on such Common
Collateral pursuant to the applicable Junior Collateral Documents for the
period and to the extent granted therein and to receive a share of the Proceeds
thereof, if any, remaining after the Discharge of Prior Obligations has
occurred.


 


(d)  Each Junior Agent, for itself and
on behalf of its Related Secured Parties:


 


(i) agrees that it and such Junior Secured
Parties will not take any action that would hinder or delay any exercise of
rights or remedies under the Prior Credit Documents with respect to, or the
realization of the full value of, the Common Collateral on which any Prior
Agent has Prior Liens or would otherwise be prohibited hereunder, including any
Disposition of any Common Collateral subject to any Prior Lien, whether by
foreclosure or otherwise, or that would limit, invalidate, avoid or set aside
any Prior Lien or Prior Collateral Document with respect to the Common
Collateral or change the priority of Liens set forth in Section 2.01;


 


(ii) agrees that it and such Junior Secured
Parties will not, until the Discharge of Prior Obligations has occurred, assert
and hereby waives, to the fullest extent permitted by law, any right to demand,
request, plead or otherwise assert or otherwise claim the benefit of, any
marshalling, appraisal, valuation or other similar right that may otherwise be
available under applicable law with respect to any Common Collateral subject to
any Prior Lien or any other similar rights a junior secured creditor may have
under applicable law;


 


(iii) waives any and all rights it or such
Junior Secured Parties may have as junior lien creditors or otherwise to object
to the manner in which any Prior Agent or any Prior Secured Party seeks to
enforce or collect any Prior Obligations or to enforce or realize on the Prior
Liens undertaken in accordance with this Agreement, regardless of whether any
action or failure to act by or on behalf of such Prior Agent or such Prior
Secured Party is adverse to the interests of the Junior Secured Parties; and


 


22

















 


(iv) acknowledges and agrees that no covenant,
agreement or restriction contained in any Junior Collateral Documents or any
other Junior Credit Document (other than this Agreement) shall be deemed to
restrict in any way the rights and remedies of any Prior Agent or any Prior
Secured Party with respect to the Common Collateral subject to any Prior Lien
as set forth in this Agreement and the Prior Credit Documents.


 


(e)  Except to the extent inconsistent
with this Agreement, any Junior Agent and any Junior Secured Party may exercise
rights and remedies available to it as an unsecured creditor of SSCC or any other
Grantor in accordance with the terms of the applicable Junior Credit Documents
and applicable law; provided that in the event that any Junior Secured
Party becomes a judgment Lien creditor in respect of any Common Collateral
subject to any Prior Lien as a result of its enforcement of its rights as an
unsecured creditor with respect to the applicable Junior Obligations, such
judgment Lien shall be subject to the terms of this Agreement to the same
extent as the other Liens securing the Junior Obligations.  Nothing in this Agreement shall prohibit the
receipt by any Junior Agent or any Junior Secured Party of the required or
permitted payments of interest, principal and other amounts owed in respect of
the Junior Obligations so long as such receipt is not the direct or indirect
result of the exercise by such Junior Agent or such Junior Secured Party of
rights or remedies as a secured creditor (including the exercise of any right
of setoff) or enforcement in contravention of this Agreement of any Junior Lien
held by any of them.  Nothing in this Agreement shall be construed
to impair or otherwise adversely affect (i) any rights or remedies
the Term Loan Credit Agent or any Term Loan Credit Secured Party may have (1) with
respect to any Non-ABL Collateral subject to a Term Loan Credit Lien and (2) following
the Discharge of the Revolving Credit Obligations, with respect to any ABL
Collateral subject to a Term Loan Credit Lien, (ii) rights or remedies the
Revolving Credit Agent or any Revolving Credit Secured Party may have (1) with
respect to any ABL Collateral subject to a Revolving Credit Lien and (2) following
the Discharge of the Revolving Credit Obligations and the Discharge of the
Permitted Notes Obligations, with respect to any Non-ABL Collateral subject to
a Revolving Credit Lien and (iii) any rights or remedies the Permitted
Notes Agent or any Permitted Notes Secured Party may have (1) following
the Discharge of the Term Loan Credit Obligations, with respect to any Non-ABL
Collateral subject to a Permitted Notes Lien and (2) following the
Discharge of Revolving Credit Obligations and the Discharge of the Term Loan
Credit Obligations, with respect to any ABL Collateral subject to a Permitted
Notes Lien.


 


(f)  Subject to Section 2.03 in the
case of clause (i) below, nothing in this Agreement shall restrict the
Revolving Credit Agent or any Revolving Credit Secured Party from exercising
any right or remedy or taking any other action with respect to (i) Revolving
Credit Collateral that does not constitute Common Collateral and (ii) any
Canadian Collateral.


 


23

















 


ARTICLE IV


 


Payments


 


Section 4.01.  Application of Proceeds.  So long as the Discharge of Prior Obligations
has not occurred, whether or not any Insolvency or Liquidation Proceeding has
been commenced by or against SSCC or any other Grantor, Common Collateral or
Proceeds thereof received in connection with the sale or other disposition of,
or collection on, such Common Collateral upon any exercise of remedies shall,
subject to Section 5.09, be applied to the applicable Prior Obligations in
the order, if any, required by Sections 2.01 and 6.07 and otherwise as
specified in the relevant Prior Credit Documents.  Upon the Discharge of Prior Obligations, the
Controlling Agent shall deliver to the Rising Prior Agent any Common Collateral
and Proceeds of Common Collateral held by it in the form in which received,
with any necessary endorsements, or as a court of competent jurisdiction may
otherwise direct, to be applied by such Rising Prior Agent to its related Class of
Obligations in the order, if any, required by Sections 2.01 and 6.07 and
otherwise as specified in the relevant Collateral Documents.


 


Section 4.02.  Payments Over in Violation of Agreement.  So long as the Discharge of Prior Obligations
has not occurred, whether or not any Insolvency or Liquidation Proceeding has
been commenced by or against SSCC or any other Grantor, if any Junior Agent or
any Junior Secured Party receives any Common Collateral subject to any Prior
Lien or any Proceeds of any such Common Collateral in connection with (i) the
exercise of any right or remedy (including any right of setoff) relating to
such Collateral in contravention of this Agreement or (ii) the transfer of
such Common Collateral or Proceeds to such Junior Agent or such Junior Secured
Party by any Person holding a Lien on such Collateral that is subordinated to
the Lien of such Junior Agent or such Junior Secured Party, such Collateral or
Proceeds shall be segregated and held in trust and forthwith paid over to the
Controlling Agent for the benefit of the Controlling Secured Parties, in the
form in which received, with any necessary endorsements, or as a court of
competent jurisdiction may otherwise direct. 
The Controlling Agent is hereby authorized to make any such endorsements
as agent for the Junior Agents or Junior Secured Parties (such authorization
being coupled with an interest and irrevocable until the Discharge of Prior
Obligations has occurred).


 


ARTICLE V


 


Other Agreements


 


Section 5.01.  Releases.  (a)  If in connection with the exercise
of the Controlling Agent’s remedies (including any Dispositions in connection
with such exercise) in respect of any Common Collateral subject to its Prior
Liens, the Controlling Agent, for itself or on behalf of the Controlling
Secured Parties, releases its Prior Liens on any part of such Common
Collateral, then the Junior Liens on such Common Collateral shall be
automatically, unconditionally and simultaneously released; provided
that such Junior Liens shall remain on the Proceeds of such Common Collateral,
subject to the relative priorities set forth in Article II.  Each Junior Agent, for itself and on behalf 


 


24

















 


of its Related Secured Parties, agrees
promptly to execute and deliver to the Controlling Agent or the applicable
Grantor such termination statements, releases and other documents as the
Controlling Agent or such Grantor may request to confirm such release.


 


(b)  If, with respect to any Class of
Obligations constituting Junior Obligations, in connection with any sale,
lease, exchange, transfer or other disposition of any Common Collateral
(collectively, a “Disposition”) permitted under the terms of all the
Prior Credit Documents (other than in connection with the exercise of the
Controlling Agent’s remedies in respect of Common Collateral as provided in
paragraph (a) above), the Controlling Agent, for itself or on behalf of
the Controlling Secured Parties, releases any of its Prior Liens on any part of
such Common Collateral (other than (i) in connection with the Discharge of
Prior Obligations or (ii) after the occurrence and during the continuance
of any Event of Default under the Junior Credit Documents of such Class), then
the Junior Liens of the Junior Agent and the Junior Secured Parties of such Class on
such Collateral shall be automatically, unconditionally and simultaneously
released; provided that if such Prior Liens of the Controlling Agent and
the Controlling Secured Parties continue to apply to the Proceeds of such
Disposition, the Junior Liens of such Class continue to apply to such
Proceeds, subject to the relative priorities set forth in Article II.  The Junior Agent with respect to such Class of
Obligations, for itself or on behalf of its Related Secured Parties, promptly
shall execute and deliver to the Controlling Agent or the applicable Grantor
such termination statements, releases and other documents as the Controlling
Agent or such Grantor may request to confirm such release.


 


(c)  Until the Discharge of Prior
Obligations has occurred, each Junior Agent, for itself and on behalf of its
Related Secured Parties, hereby irrevocably constitutes and appoints the
Controlling Agent and any officer or agent of the Controlling Agent, with full
power of substitution, as its true and lawful attorney-in-fact with full power
and authority in the name, place and stead of such Junior Agent or its Related
Secured Parties or in the Controlling Agent’s own name, from time to time in
the Controlling Agent’s discretion, for the purpose of carrying out the terms
of this Section, to take any and all action and to execute any and all
documents and instruments which may be necessary or appropriate to accomplish
the purposes of this Section with respect to Common Collateral subject to
its prior Lien, including any endorsements or other instruments of transfer or
release.


 


(d)  Until the Discharge of Prior
Obligations has occurred, to the extent that any Prior Agent or Prior Secured Parties
release any Prior Lien on Common Collateral and any such Lien is later
reinstated, then each Junior Agent with respect to such Common Collateral, for
itself and on behalf of its Related Secured Parties, shall have, and hereby is
hereby granted, a Lien on such Common Collateral, subject to the lien
subordination provisions of this Agreement.


 


Section 5.02.  Insurance.  Until the Discharge of Prior Obligations has
occurred, subject to the terms of, and the rights of the Grantors under, the
applicable Prior Credit Documents, the Controlling Agent and Controlling
Secured Parties shall have the right to adjust settlements for any insurance
policy covering any Common Collateral


 


25
















 


subject to their Prior Liens in the event of
any loss thereunder and to approve any award granted in any condemnation or
similar proceeding (or any deed in lieu of condemnation) affecting such Common
Collateral.  Until the Discharge of Prior
Obligations has occurred, subject to the terms of, and the rights of the
Grantors under, the Prior Credit Documents, all proceeds of any such policy and
any such award (or any payments with respect to a deed in lieu of condemnation)
if in respect to (a) Non-ABL Collateral, shall be paid to (i) the
Term Loan Credit Agent for the benefit of the Term Loan Credit Secured Parties,
(ii) following the Discharge of the Term Loan Credit Obligations, the
Designated Permitted Notes Agent for the benefit of the Permitted Notes Secured
Parties, (iii) following the Discharge of the Term Loan Credit Obligations
and the Discharge of the Permitted Notes Obligations, the Revolving Credit
Agent for the benefit of the Revolving Credit Secured Parties and (iv) following
the Discharge of all Obligations, to the owner of the subject property, such
other Person as may be entitled thereto or as a court of competent jurisdiction
may otherwise direct and (b) ABL Collateral, shall be paid to (i) the
Revolving Credit Agent for the benefit of the Revolving Credit Secured Parties,
(ii) following the Discharge of the Revolving Credit Obligations, the Term
Loan Credit Agent for the benefit of the Term Loan Credit Secured Parties, (iii) following
the Discharge of the Revolving Credit Obligations and the Discharge of the Term
Loan Credit Obligations, the Designated Permitted Notes Agent with respect to
such series for the benefit of the Permitted Notes Secured Parties and (iv) following
the Discharge of all Obligations, to the owner of the subject property, such
other Person as may be entitled thereto or as a court of competent jurisdiction
may otherwise direct.  Until the
Discharge of Prior Obligations has occurred, if any Junior Agent or any Junior
Secured Party shall, at any time, receive any proceeds of any such insurance
policy or any such award or payment in contravention of this Agreement, it
shall segregate and hold in trust and forthwith pay such proceeds over to the
Controlling Agent in accordance with Section 4.02.


 


Section 5.03. 
Amendments to Prior Credit Documents and Junior Credit Documents.  (a)  Each Prior Credit Document may be
Amended in accordance with the terms thereof, and all Indebtedness under each
Prior Credit Document may be Refinanced in accordance with the terms thereof,
except, in each case, as prohibited under the Junior Credit Documents as in
effect on the date hereof and as Amended from time to time (but without giving
effect to any Amendment that prohibits or restricts the Amendment of any Prior
Credit Document or the Refinancing of any Indebtedness under any Prior Credit
Document to a greater extent than the provisions of such Junior Credit
Documents in effect on the date hereof). 
No Amendment of any Prior Credit Document shall affect the Lien
subordination or other provisions of this Agreement.


 


(b)  Each Junior Credit Document may be Amended
in accordance with the terms thereof, and all Indebtedness under each Junior
Credit Document may be Amended or Refinanced in accordance with the terms
thereof, except, in each case, as prohibited under the Prior Credit Documents
as in effect on the date hereof and as Amended from time to time (but without
giving effect to any Amendment that prohibits or restricts the Amendment of any
Junior Credit Document or the Refinancing of any Indebtedness under any Junior
Credit Document to a greater extent than the provisions of such Prior Credit
Documents in effect on the date hereof). 
No Amendment of any Junior


 


26

















 


Credit Document shall affect the Lien subordination or other provisions
of this Agreement.


 


(c)  Without in any way limiting the generality
of Section 7.03 (but subject to the rights of SSCC and the other Grantors
under the Prior Credit Documents and subject to the provisions of Section 5.03(a)),
any Prior Agent or any Prior Secured Party may, at any time and from time to
time in accordance with the applicable Prior Credit Documents and applicable
law, without the consent of, or notice to, any Junior Agent or any Junior
Secured Party, without incurring any liabilities or obligations to any Junior
Agent or any Junior Secured Party and without impairing or releasing the Lien
priorities and other benefits provided in this Agreement (even if any right of
subrogation or other right or remedy of any Junior Agent or any Junior Secured
Party is affected, impaired or extinguished thereby) do any one or more of the
following:


 


(i) change the
manner, place or terms of payment or change or extend the time of payment of,
or Amend the terms of, any of the Prior Obligations or any Prior Lien on any
Collateral or guarantee thereof or any liability of SSCC or any other Grantor,
or any liability incurred directly or indirectly in respect thereof (including
any increase in or extension of the Prior Obligations, without any restriction
as to the tenor or terms of any such increase or extension) or otherwise amend,
renew, exchange, extend, modify or supplement in any manner any Prior Liens
held by the Prior Agents or the Prior Secured Parties, the Prior Obligations or
any of the Prior Credit Documents;


 


(ii) sell, exchange,
release, surrender, realize upon, enforce or otherwise deal with in any manner
and in any order any part of the Collateral subject to its Prior Lien or any
liability of SSCC or any other Grantor to the Prior Agents or the Prior Secured
Parties, or any liability incurred directly or indirectly in respect thereof;


 


(iii) settle or
compromise any Prior Obligation or any other liability of SSCC or any other
Grantor or any security therefor or any liability incurred directly or
indirectly in respect thereof and apply any sums by whomsoever paid and however
realized to any liability (including the Prior Obligations) in any manner or
order; and


 


(iv) exercise or
delay in or refrain from exercising any right or remedy against SSCC, any other
Grantor or any other Person or any Collateral, elect any remedy and otherwise
deal freely with SSCC, any other Grantor or any Collateral subject to its Prior
Lien and any liability incurred directly or indirectly in respect thereof.


 


(d)  In the event that the Controlling Agent of
any Class enters into any amendment, waiver or consent in respect of any
of the Collateral Documents of such Class for the purpose of adding to, or
deleting from, or waiving or consenting to any departures from any provisions
of, any such Collateral Document or changing in any manner the rights of such
Controlling Agent, its Related Secured Parties, SSCC or any


 


27

















 


other Grantor thereunder (including the release of any Liens permitted
by Section 5.01(a) or (b)), then such amendment, waiver or consent
shall apply automatically to any comparable provision of the Collateral
Documents relating to the relevant Prior Lien Collateral to the extent securing
any Junior Obligations without the consent of any Junior Agents or any Junior
Secured Parties and without any action by any Junior Agents, SSCC or any other
Grantor; provided, however, that (i) no such amendment,
waiver or consent shall (A) remove assets subject to the Junior Liens or
release any such Junior Liens, except to the extent that such release is
permitted or required by Section 5.01(a) or (b) and provided
that there is a concurrent release of the corresponding Liens on the Common
Collateral securing the Obligations held by the Controlling Secured Parties and
in respect of which such Controlling Secured Parties are the obligees, (B) amend,
modify or otherwise affect the rights or duties of any Junior Agent without its
prior written consent or (C) permit Liens on the Common Collateral (other
than DIP Financing Liens) which are not permitted under the terms of the Credit
Documents related to such Junior Obligations and (ii) written notice of
such amendment, waiver or consent shall have been given to the Junior Agents.


 


(e)  Without the prior written consent of the
Prior Agent, no Junior Collateral Documents may be amended, supplemented or
otherwise modified or entered into to the extent such amendment, supplement or
modification, or the terms of any new Junior Collateral Document, would
contravene the provisions of this Agreement.


 


Section 5.04. 
Legend.  SSCC and each
Grantor agrees, and each Agent acknowledges, that each Junior Collateral
Document shall include the following language (or language to similar effect
approved by the Controlling Agent):


 


“Notwithstanding
anything herein to the contrary, the lien and security interest granted
pursuant to this Agreement and the exercise of any right or remedy hereunder
are subject to the provisions of the Lien Subordination and Intercreditor
Agreement dated as of [·], (as amended,
restated, supplemented or otherwise modified from time to time, the “Intercreditor
Agreement”), among SSCC, the other subsidiaries of SSCC party thereto, the Term
Loan Credit Agent (as defined therein), Revolving Credit Agent (as defined therein)
and each Permitted Notes Agent (as defined therein) that becomes a party
thereto.  In the event of any conflict
between the terms of the Intercreditor Agreement and this Agreement, the terms
of the Intercreditor Agreement shall govern and control.”


 


In addition, the Grantors agree that each Revolving
Credit Mortgage or Permitted Notes Mortgage in favor of the Junior Secured
Parties covering any Common Collateral subject to their Junior Lien shall
contain such other language as the Controlling Agent may reasonably request to
reflect the subordination of such Revolving Credit Mortgage or Permitted Notes
Mortgage, as the case may be, to the Term Loan Credit Mortgage or Permitted
Notes Mortgage, as the case may be, in favor of the Prior Secured Parties covering
such Common Collateral.


 


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Section 5.05. 
Bailee for Perfection.  (a) 
Each Prior Agent agrees to hold that part of the Common Collateral on which it
holds a Prior Lien and that is in its possession or control, or in the
possession or control of its agents or bailees (such Collateral being the “Pledged
Collateral”), as collateral agent for its Related Secured Parties and as
gratuitous bailee and, with respect to such Common Collateral that cannot be perfected
in such manner, as agent for, the other Agents (such bailment or agency being
intended, among other things, to satisfy the requirements of Sections 8-301(a)(2) and
9-313(c) of the UCC) and any assignee thereof solely for the purpose of
perfecting the security interests granted under the applicable Credit
Documents, subject to the terms and conditions of this Section.  Each Junior Agent agrees (a) to hold any
part of the Pledged Collateral of which it obtains possession or control
(including through any of its agents or bailees) as collateral agent for the
Prior Secured Parties and Junior Secured Parties and any assignees of the
foregoing solely for the purpose of perfecting the security interest granted
under the applicable Prior Credit Documents, subject to the terms and
conditions of this Section and (b) as soon as practicable after it
(or any of its agents or bailees) obtains possession of any Common Collateral,
deliver or cause to be delivered such Common Collateral, together with any
necessary endorsements, to the Controlling Agent so as to allow such
Controlling Agent to obtain control of such Common Collateral and cooperate
with such Controlling Agent to assign control over such Common Collateral to
the Controlling Agent (or its agents or bailees).


 


(b)  No Prior Agent shall have any obligation
whatsoever to the Junior Agents or the Junior Secured Parties to ensure that
any Pledged Collateral is genuine or owned by any of the Grantors or to
preserve rights or benefits of any Person except as expressly set forth in this
Section.  The duties or responsibilities
of any Agent to the other Agents or the Other Secured Parties under this Section shall
be limited solely to holding Pledged Collateral in its possession or under its
control as gratuitous bailee or agent in accordance with this Section and
delivering such Pledged Collateral upon the Discharge of Prior Obligations as
provided in paragraph (d) below.


 


(c)  No Prior Agent, acting pursuant to this
Section, shall have by reason of any Credit Document, this Agreement or any
other document a fiduciary relationship in respect of any other Agent or any
Secured Party, or any liability to any other Agent or any Secured Party, absent
gross negligence or willful misconduct on the part of such Prior Agent.


 


(d)  Upon the Discharge of Prior Obligations, the
Controlling Agent as in effect immediately prior to such Discharge of Prior
Obligations shall transfer possession of such Common Collateral physically held
by such Controlling Agent (or any agent, bailee or designee thereof (other than
any other Agent)) and otherwise shall take commercially reasonable actions (in
each case at the sole cost and expense of the Grantors) to transfer possession
or control of such other Common Collateral or any such account to the Rising
Prior Agent (to the extent the Rising Prior Agent has a Priority Lien on such
Common Collateral or account after giving effect to any prior or concurrent
releases of Liens) including, in the case of any deposit or securities account
or securities account holding Common Collateral maintained with such
Controlling Agent, taking commercially reasonable actions to enter into a
control agreement in favor of the Rising


 


29

















 


Agent, or transferring all cash and other assets in such account to (i) one
or more depositary institutions or securities intermediaries that enter into
such a control agreement or (ii) an account maintained by the Rising Prior
Agent (or on terms otherwise reasonably acceptable to the Rising Prior
Agent)).  Notwithstanding anything to the
contrary herein, if, for any reason, any Junior Obligations remain outstanding
upon the Discharge of Prior Obligations, all rights of the Controlling Agent as
in effect immediately prior to such Discharge of Prior Obligations, hereunder
and under the applicable Collateral Documents (1) with respect to the
delivery and control of any part of the Common Collateral subject to a Prior
Lien of such Controlling Agent, and (2) to direct, instruct, vote upon or otherwise
influence the maintenance or disposition of such Common Collateral, shall
immediately, and (to the extent permitted by law) without further action on the
part of either of the Rising Agent or such Controlling Agent, pass to the
Rising Agent, who shall thereafter hold such rights for the benefit of its
Related Secured Parties.


 


(e)  Subject to the terms of this Agreement, so
long as the Discharge of Prior Obligations has not occurred, the Controlling
Agent shall be entitled to deal with the Pledged Collateral or Collateral
within its “control” in accordance with the terms of this Agreement and the
applicable Prior Credit Documents as if the Junior Liens of the Junior Agents
and the Junior Secured Parties did not exist.


 


Section 5.06. 
Entry Upon Premises by Controlling Agent.  (a)  If the Revolving Credit Agent shall
take any action to exercise its rights or remedies (including any action of
foreclosure, enforcement, collection or execution) with respect to the ABL
Collateral (“ABL Collateral Enforcement Actions”), each other Agent
(subject to a prior written request by the Revolving Credit Agent to the
applicable Agent (the “ABL Collateral Enforcement Notice”)) (i) shall
cooperate with any efforts on the part of the Revolving Credit Agent (and with
its officers, employees, representatives and agents) (at the sole cost and
expense of the Revolving Credit Agent and the Revolving Credit Secured Parties
(but with the Grantors’ reimbursement and indemnity obligation with respect
thereto as provided in the Revolving Credit Documents, which shall not be
limited hereby)) and subject to the condition that the other Agents and the
Other Secured Parties shall have no obligations or duty to take any action or
refrain from taking any action that could reasonably be expected to result in
the incurrence of any liability or damage to such other Agents or Other Secured
Parties to conduct Revolving Collateral Enforcement Actions with respect to the
ABL Collateral and to complete the processing of any Inventory (including
work-in-process) included in the ABL Collateral and to assemble the ABL
Collateral and process, ship, produce, store, complete, supply, lease, sell or
otherwise handle, deal with, or dispose of, in any lawful manner, the ABL
Collateral, (ii) shall not hinder or restrict in any respect the Revolving
Credit Agent from taking ABL Collateral Enforcement Actions, from completing
the manufacturing and processing of, and turning into finished goods, any ABL
Collateral (including raw materials and work-in-process) and assembling the ABL
Collateral or shipping, producing, storing, completing, supplying, leasing,
selling or otherwise handling, dealing with or disposing of, in any lawful
manner, the ABL Collateral and (iii) shall permit the Revolving Credit
Agent, its agents, employees, advisers and representatives, at the sole cost
and expense of the Revolving Credit Secured Parties (but with the Grantors’


 


30

















 


reimbursement and indemnity obligation with respect thereto as provided
in the Revolving Credit Documents, which shall not be limited hereby), to enter
upon and use the Non-ABL Collateral (including manufacturing, storage and
transportation facilities and equipment, computers, records, documents and
files and Intellectual Property) for a period not to exceed 180 days after the
later of (i) date on which such Agent (other than the Revolving Credit
Agent) shall obtain possession and control of such Non-ABL Collateral and (ii) the
date of delivery of the ABL Collateral Enforcement Notice, for purposes of (A) assembling
and storing the ABL Collateral and completing the manufacturing and processing
of, and turning into finished goods, any ABL Collateral (including raw
materials and work-in-process), (B) selling any or all of the ABL
Collateral located on such Non-ABL Collateral, whether in bulk, in lots or to
customers in the ordinary course of business or otherwise, (C) removing
and transporting any or all of the ABL Collateral located in or on such Non-ABL
Collateral, (D) otherwise shipping, storing, leasing, selling or otherwise
handling, dealing with, assembling or disposing of, in any lawful manner, the
ABL Collateral and (E) taking reasonable actions to protect, secure and
otherwise enforce the rights or remedies of the Revolving Credit Agent and the
Revolving Credit Secured Parties (including with respect to any ABL Collateral
Enforcement Actions) in and to the ABL Collateral; provided, however,
that nothing contained in this Agreement shall restrict the Non-ABL Controlling
Agent (or any other Agent at the instruction of the Non-ABL Controlling Agent)
from selling, assigning or otherwise transferring any Non-ABL Collateral prior
to the expiration of such 180 day period if the purchaser, assignee or
transferee agrees to be bound by the provisions of this Section in writing
(for the benefit of the Revolving Credit Agent and the Revolving Credit Secured
Parties).  It is agreed that if any stay
or other order prohibiting the exercise of rights or remedies with respect to
the ABL Collateral has been entered by a court of competent jurisdiction, such
180 day period shall be tolled during the pendency of any such stay or other
order; provided that after the 180th day following the date on which the
Non-ABL Controlling Agent (or any other Agent at the instruction of the Non-ABL
Controlling Agent) shall obtain possession and control of any Non-ABL
Collateral, such period shall terminate as to such Non-ABL Collateral if the
Non-ABL Controlling Agent shall determine in good faith and advise the
Revolving Credit Agent that the continuance of such period would prevent a
contemplated sale of such Non-ABL Collateral or materially reduce the price
obtainable in such sale.  Notwithstanding
anything in this paragraph to the contrary, each Agent (other than the
Revolving Credit Agent) and its Related Secured Parties (i) shall have no
obligation to exercise rights or remedies that may be available to them under
the applicable Credit Documents and (ii) shall be required to permit the
Revolving Credit Agent, and its agents, advisers and representatives, to enter
upon and use the Non-ABL Collateral only to the extent such Agent or such
Related Secured Parties have possession and control of such Non-ABL Collateral.


 


(b)  If the Revolving Credit Agent elects to
enter upon and use the Non-ABL Collateral as provided in paragraph (a) of
this Section, it shall take all reasonable efforts (and shall direct its
agents, advisers and representatives to take all reasonable efforts) to avoid,
to the extent reasonably practicable, interference with the operation of the
Non-ABL Collateral.  Subject to the
Non-ABL Controlling Agent having obtained possession and control of any of the
Non-ABL Collateral, any Agent (other than


 


31

















 


the Revolving Credit Agent) may instruct the Revolving Credit Agent in
writing to remove all ABL Collateral from such Non-ABL Collateral by the end of
the 180 day period referred to in paragraph (a) of this Section,
whereupon, at the end of such 180 day period, the Revolving Credit Agent shall,
at the sole cost and expense of the Revolving Credit Secured Parties (but with
the Grantors’ reimbursement and indemnity obligation with respect thereto as
provided in the Revolving Credit Documents, which shall not be limited hereby),
remove the ABL Collateral from the Non-ABL Collateral; provided that no
stay or other order prohibiting such removal has been entered by a court of
competent jurisdiction (it being understood and agreed that the running of such
180 day period shall be tolled during the pendency of any such stay or other
order).  If the Revolving Credit Agent
does not remove the ABL Collateral from the Non-ABL Collateral by the end of
such 180 day period (or such longer period as such a stay or other order is in
effect), the Non-ABL Controlling Agent may cause the ABL Collateral to be
removed and, thereafter, store the ABL Collateral in such location or locations
as the Non-ABL Controlling Agent shall deem advisable pending repossession by the
Revolving Credit Agent.  Any costs
reasonably incurred by any Agent (other than the Revolving Credit Agent) or its
Related Secured Parties by virtue of such removal and storage shall be paid by
the Revolving Credit Secured Parties (but with the Grantors’ reimbursement and
indemnity obligation with respect thereto, as provided in the Revolving Credit
Documents, which shall not be limited hereby). 
The Non-ABL Controlling Agent agrees to notify the Revolving Credit Agent
of the location or locations to which any of the ABL Collateral shall have been
removed by it pursuant to the foregoing provisions.


 


(c)  During the period of actual occupation, use
or control by the Revolving Credit Agent, or its agents, advisers or
representatives, of any Non-ABL Collateral, the Revolving Credit Secured
Parties shall be obligated hereunder to (i) reimburse the Agents (other
than the Revolving Credit Agent) for all utilities, insurance and all other
operating costs of such Non-ABL Collateral during any such period of actual occupation,
use or control (calculated on a per diem basis based upon a fraction, the
numerator of which shall be the actual number of days of such occupation, use
or control and the denominator of which shall be 365 days) to the extent
the same are actually paid by such Agent or its Related Secured Parties, (ii) repair
at their expense any physical damage to such Non-ABL Collateral directly
resulting from such occupancy, use or control, and leave such Non-ABL
Collateral in substantially the same condition as it was at the commencement of
such occupancy, use or control, ordinary wear and tear excepted, and (iii) indemnify
and hold harmless any Agent and its Related Secured Parties from and against
any losses, claims, liabilities, costs or expenses directly resulting from such
occupancy, use or control or from any acts or omissions of the Revolving Credit
Agent or its agents, employees, advisers or representatives in connection
therewith, absent gross negligence or willful misconduct on the part of such
Agent or such Related Secured Parties. 
Notwithstanding the foregoing, in no event shall the Revolving Credit
Secured Parties have any liability to the Agents (other than the Revolving
Credit Agent) and its Related Secured Parties pursuant to this Section as
a result of any condition (including any environmental condition, claim or
liability) on or with respect to the Non-ABL Collateral existing prior to the
date of the exercise by the Revolving Credit Agent of its rights under this
Section, and the Revolving Credit Secured Parties shall have no duty or
liability to maintain the Non-ABL Collateral in a condition


 


32

















 


or manner better than that in which it was maintained prior to the use
thereof by the Revolving Credit Agent or its agents, employees, advisers or
representatives, or for any diminution in the value of the Non-ABL Collateral
that results solely from ordinary wear and tear resulting from the use of the
Non-ABL Collateral by the Revolving Credit Agent or its agents, advisers or
representatives in the manner and for the time periods specified under this
Section.  Without limiting the rights
granted in this Section, the Revolving Credit Agent and the Revolving Credit
Secured Parties shall cooperate with the Non-ABL Controlling Agent in
connection with any efforts made by it to sell the Non-ABL Collateral.


 


Section 5.07. 
Rights under Permits, Licenses and Intellectual Property.  Each Agent (other than the Revolving Credit
Agent) (a) consents (without any representation, warranty or obligation
whatsoever) to the grant by any Grantor to the Revolving Credit Agent of a
non-exclusive royalty-free license to use any permit, license or Intellectual
Property of such Grantor that is subject to a Lien held by any such Agent (or
any permit, license or Intellectual Property acquired by such purchaser,
assignee or transferee from any Grantor, as the case may be) in connection with
the enforcement of any Revolving Credit Lien held by the Revolving Credit Agent
upon any Revolving Credit Collateral and (b) agrees that if the Revolving
Credit Agent shall require rights available under any permit, license or
Intellectual Property controlled by such Agent, or any of its Affiliates, in
order to realize on any ABL Collateral, such Agent shall take all such actions
as shall be available to it, consistent with applicable law and reasonably
requested by the Revolving Credit Agent, to make such rights available to the
Revolving Credit Agent.  The Revolving
Credit Agent agrees that if any Agent (other than the Revolving Credit Agent)
shall require rights available under any permit or license controlled by the
Revolving Credit Agent in order to realize on any Non-ABL Collateral, the
Revolving Credit Agent shall take all such actions as shall be available to it,
consistent with applicable law and reasonably requested by such Agent, to make
such rights available to such Agent. 
Each Agent agrees that any sale or other transfer of any Common
Collateral consisting of Intellectual Property upon any exercise of remedies
shall be made expressly subject to the rights to be made available pursuant to
this Section in writing (for the benefit of each other Agent and the
Related Secured Parties).


 


Section 5.08. 
Permitted Notes.  (a) 
To the extent, but only to the extent, permitted by the provisions of the then
existing Credit Documents, SSCC may incur Indebtedness in the form of Permitted
Notes, which shall be secured by (i) the Non-ABL Collateral on a second
lien, junior and subordinated basis to the Term Loan Credit Obligations and on
a senior basis to the Revolving Credit Obligations and (ii) the ABL
Collateral on a third lien, junior and subordinated basis to both the Term Loan
Credit Obligations and the Revolving Credit Obligations, if and subject to the
condition that (A) such Permitted Notes are not secured by any property or
assets of SSCC or any Subsidiary other than property or assets constituting
Term Loan Credit Collateral, (B) such Permitted Notes are not guaranteed
by any Subsidiaries other than the Term Loan Credit Guarantors and (C) the
Agent of any such Permitted Notes (each a “Permitted Notes Agent”),
acting on behalf of the holders of such Permitted Notes (such Permitted Notes
Agent and the holders in respect of any such Permitted Notes being referred to
as the “Permitted Notes Secured Parties”), becomes a party to this
Agreement as a Permitted


 


33

















 


Notes Agent and by satisfying conditions (i) through (vi), as
applicable, of the immediately succeeding paragraph.


 


(b)  In order for a Permitted Notes Agent of any Series to
become a party to this Agreement:


 


(i) such Permitted
Notes Agent shall have executed and delivered a Joinder Agreement substantially
in the form of Exhibit II (with such changes as may be reasonably approved
by the other Agents) pursuant to which it becomes an Agent hereunder, and the
Permitted Notes of such Series and the related Permitted Note Secured
Parties become subject hereto and bound hereby;


 


(ii) SSCC shall have
delivered to each existing Agent (A) true and complete copies of each of
the Permitted Note Documents relating to such Permitted Notes, certified as
being true and correct by an officer of SSCC and (B) a certificate of an
officer of SSCC that the Permitted Notes can be issued without violating any of
the Term Loan Documents, Revolving Credit Documents or Permitted Notes
Documents of any existing Series of Permitted Notes;


 


(iii) all filings,
recordations and/or amendments or supplements to the Permitted Notes Collateral
Documents related to such Permitted Notes necessary or desirable in the
reasonable opinion of the existing Agents to confirm and perfect the
appropriate priority Liens with respect to the applicable Collateral securing
the Permitted Notes Obligations relating to such Permitted Notes shall have
been made, executed and/or delivered (or, with respect to any such filings or
recordations, reasonably acceptable provisions to perform such filings or
recordings have been taken in the reasonable judgment of the Controlling
Agent), and all fees and taxes in connection therewith shall have been paid (or
reasonably acceptable provisions to make such payments have been taken in the
reasonable judgment of the Controlling Agent); and


 


(iv) the Permitted
Notes Documents related to such Permitted Notes shall provide, in a manner
reasonably satisfactory to the existing Agents, that each Permitted Notes
Secured Party of such Series will be subject to and bound by the
provisions of this Agreement in its capacity as a holder of such Permitted
Notes Obligations.


 


Section 5.09. 
When Discharge of Obligations Deemed Not To Have Occurred.  If SSCC or any other Grantor shall enter into
any Refinancing of any Class of Obligations (the Class of Obligations
so Refinanced, “Refinanced Obligations”) (other than the Permitted
Notes) that is (a) permitted by the Credit Documents with respect to each
other Class and (b) secured by Liens on Common Collateral securing
such Refinanced Obligations, then a Discharge of the Obligations of such Class shall
be deemed not to have occurred for all purposes of this Agreement and, subject
to the next sentence, from and after the date on which the Notice of New
Refinancing Obligations referred to below in this Section is delivered to
each other Agent, (i) the obligations under such Refinancing of such
Refinanced Obligations (the “Refinancing Obligations”) shall


 


34

















 


automatically be treated as Prior Obligations and/or Junior Obligations
(to the same extent and with the same priority and rights with respect to the
Common Collateral constituting Non-ABL Collateral or ABL Collateral, as
applicable, as the Refinanced Obligations), (ii) the Liens securing such
Refinancing Obligations shall be treated as Prior Liens and/or Junior Liens (to
the same extent as the corresponding Liens with respect to the Common
Collateral constituting Non-ABL Collateral or ABL Collateral, as applicable,
securing the Refinanced Obligations) for all purposes of this Agreement, including
for purposes of the provisions governing Lien priorities and rights in respect
of Common Collateral constituting Non-ABL Collateral or ABL Collateral, as
applicable, set forth herein, and (iii) the collateral agent for such
Refinancing Obligations (the “New Agent”) shall be a Prior Agent and/or
Junior Agent for all purposes of this Agreement (to the same extent as the
Agent for the Refinanced Obligations with respect to the Common Collateral
constituting Non-ABL Collateral or ABL Collateral, as applicable).  If the Obligations of any Class shall be
Refinanced (other than the Permitted Notes) in part but not in whole, then (A) both
the remaining Obligations of such Class and the Refinancing Obligations
shall have the status of the Obligations of such Class hereunder, (B) the
Liens on any Common Collateral securing the Refinancing Obligations shall
constitute Prior Liens and/or Junior Liens to the same extent as the Liens on
such Common Collateral constituting Non-ABL Collateral and ABL Collateral, as
applicable, securing such remaining Obligations of such Class (it being
understood and agreed that the relative rights of, and priorities of the Liens
securing, the obligations under such Refinancing Obligations and such remaining
Obligations of such Class shall not be governed by this Agreement) and (C) the
original Agent of such Class and the New Agent of such Class shall
each have the rights and obligations of the original Agent with respect to the
Common Collateral constituting Non-ABL Collateral or ABL Collateral, as
applicable, hereunder; provided, that (x) in the event any
determinations made or notices given hereunder by the original Agent and the
New Agent of such Class shall conflict, the determination made or notice
given by the Agent of such Class representing the greater amount of
Obligations of such Class shall control and (y) any Pledged
Collateral held by either Agent of such Class shall be held by it both in
its own right and as bailee of the other Agent of such Class (in
accordance with the provisions and subject to the limitations set forth in Section 5.05),
as their interests may appear.  Upon
receipt of a notice (the “Notice of New Refinancing Obligations”)
stating that SSCC or any Grantor has Refinanced the Obligations of any Class (other
than through the Permitted Notes) on a secured basis as provided above (which
notice shall include the identity of the New Agent of such Class, the original
Agent of such Class and each other Agent shall promptly enter into such
documents and agreements (including Amendments to this Agreement) as SSCC or
such New Agent shall reasonably request in order to provide to the New Agent
the rights contemplated hereby.  As a
condition to its ability to enforce this Agreement, the New Agent of any Class shall
agree in a writing addressed to each other Agent, for the benefit of such other
Agent’s Related Secured Parties, and, if any portion of the original
Obligations of such Class shall remain outstanding, to the original Agent
of such Class, for the benefit of the original Agent’s Related Secured Parties,
to be bound by the terms of this Agreement. 
The provisions of this Section are intended to ensure that (i) the
Liens on any Common Collateral securing the Refinancing Obligations of each Class (other
than the Permitted Notes) will have the same priorities relative to the


 


35






 












 


Liens on such Common Collateral constituting Non-ABL Collateral or ABL
Collateral, as applicable, securing the Obligations of each other Class as
the Liens that secured such Refinanced Obligations of such Class prior to
such Refinancing and (ii) the parties benefited by the Liens on any Common
Collateral constituting Non-ABL Collateral or ABL Collateral, as applicable,
securing any Refinancing Obligations of a Class (other than the Permitted
Notes) will have the same rights and obligations relative to the parties
holding Liens on such Common Collateral securing the Obligations of each other Class as
the parties that were benefited by the Liens on such Common Collateral
constituting Non-ABL Collateral or ABL Collateral, as applicable, that secured
such Refinanced Obligations, and such provisions shall be construed
accordingly.  Notwithstanding anything to
the contrary and for the avoidance of doubt, if the Revolving Credit Agreement
is terminated in its entirety and an Incremental Revolving Facility is established,
then the Revolving Credit Obligations shall be deemed not to have been
Refinanced and shall instead be deemed to have been Discharged for all purposes
of this Agreement.


 


Section 5.10.  Canadian Intercompany Notes.  The parties hereto acknowledge and agree
that, notwithstanding the status of the Canadian Intercompany Notes as Non-ABL
Collateral, each of the Term Loan Credit Agent and each Permitted Notes Agent,
on behalf of itself and its respective Related Secured Parties, agrees that (a) neither
it nor any such Related Secured Parties (nor any of the Secured Parties under
and as defined in the Canadian Intercompany Notes Documents) will exercise any
rights or remedies against, or otherwise seek to realize on, any Canadian
Collateral securing any Canadian Intercompany Note at any time prior to the
Discharge of the Revolving Credit Obligations and (b) any Proceeds or
other amounts received by the Term Loan Agent or any Permitted Notes Agent, or
any of their respective Related Secured Parties (or any Secured Party under and
as defined in the Canadian Intercompany Notes Documents) as a result of any
exercise of rights or remedies against or realization upon any Canadian
Collateral securing any Canadian Intercompany Note at any time prior to the
Discharge of the Revolving Credit Obligations shall be segregated and held in
trust and forthwith paid over to the Revolving Credit Agent, for the benefit of
the Revolving Credit Secured Parties, in the form in which received, with any
necessary endorsements, and shall be applied to satisfy and discharge the
Revolving Credit Obligations (with any amount remaining after the Discharge of
the Revolving Credit Obligations to be applied (i) FIRST in the manner
specified in the relevant Term Loan Credit Document and (ii) SECOND,
following the Discharge of Term Loan Credit Obligations, in the manner
specified in the Permitted Notes Documents).


 


Section 5.11.  Cash Management and Hedging
Obligations.  SSCC and each Grantor
acknowledges and agrees that (a) no Term Loan Credit Cash Management and
Hedging Obligations shall be designated as Revolving Credit Cash Management and
Hedging Obligations and (b) no Revolving Credit Cash Management and
Hedging Obligations shall be designated as Term Loan Credit Cash Management and
Hedging Obligations.


 


Section 5.12.  Access to Information.  If any Agent (other than the Revolving Credit
Agent) takes actual possession of any documentation of a Grantor 


 


36

















 


(whether such documentation is in the form of a writing or is stored in
any data equipment or data record in the physical possession of such Agent),
then upon request of the Revolving Credit Agent and reasonable advance notice,
such Agent will, unless prohibited by contract or law, permit the Revolving
Credit Agent or its representative to inspect and copy such documentation if
and to the extent the Revolving Credit Agent certifies to such Agent that:


 


(a) such documentation
contains or may contain information necessary or appropriate, in the good faith
opinion of the Revolving Credit Agent, to the enforcement of the Revolving
Credit Agent’s Liens upon any ABL Collateral; and


 


(b) the Revolving
Credit Agent and the Revolving Credit Secured Parties are entitled to receive
and use such information under applicable law and, in doing so, will comply
with all obligations imposed by law or contract in respect of the disclosure or
use of such information.


 


ARTICLE VI


 


Insolvency or Liquidation Proceedings


 


Section 6.01.  Cash Collateral and DIP Financing.  (a)  This Agreement will continue in
full force and effect notwithstanding the commencement of any proceeding under
the Bankruptcy Code or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law by or against SSCC or any other
Grantor.


 


(b)  If SSCC or any
Grantor becomes subject to a case under the Bankruptcy Code and, as
debtor(s)-in-possession, moves for approval of financing (including on a
priming basis) (“DIP Financing”) to be provided by one or more lenders
under Section 364 of the Bankruptcy Code or the use of cash collateral as
defined in Section 363 of the Bankruptcy Code or any similar Bankruptcy
Law, each Junior Agent, on behalf of itself and its Related Secured Parties,
agrees that it will raise no objection or oppose or contest (or join with or
support any third party opposing, objecting or contesting) to any such
financing or to the Liens on the Prior Lien Collateral securing the same (“DIP
Financing Liens”) or to any use of cash collateral constituting Prior Lien
Collateral and will not request adequate protection or any other relief in
connection therewith (except, as expressly agreed by the Controlling Agent or
to the extent permitted by Section 6.03), unless the Controlling Agent or
Controlling Secured Parties then oppose or object to such DIP Financing or such
DIP Financing Liens or use of such cash collateral (and, to the extent that
such DIP Financing Liens are senior to, or rank pari passu with, Prior Liens on such Prior Collateral, each
Junior Agent will, for itself and on behalf of the other Junior Secured
Parties, subordinate the Junior Liens on such Collateral to the Prior Liens and
the DIP Financing Liens on the same basis as the Junior Liens are subordinated
to the Prior Liens under this Agreement (and all obligations relating
thereto)), so long as, in connection with the grant of any DIP Financing Liens,
the Junior Secured Parties retain Liens on all the Prior Lien Collateral with
the same priority in relation to the Prior Liens as existed prior to the
commencement of the case under the Bankruptcy Code.


 


37

















 


(c)  Each Junior Agent,
on behalf of itself and its Related Secured Parties, agrees that it will not
object to or oppose a sale or other disposition of any Prior Lien Collateral
(or any portion thereof) under Section 363 of the Bankruptcy Code or any
other provision of the Bankruptcy Code free and clear of its Liens (subject to
attachment of proceeds with respect to the Junior Lien on such Prior Lien
Collateral in favor of such Junior Agent in the same order and manner as
otherwise set forth herein) or other claims under Section 363 of the
Bankruptcy Code if the Controlling Agent or the Controlling Secured Parties
shall have consented to such sale or disposition of such Prior Collateral.


 


(d)  If, in connection
with any judicial or insolvency proceeding, debt obligations of the reorganized
debtor secured by Liens upon any property of the reorganized debtor are
distributed pursuant to a plan of reorganization or similar dispositive
restructuring plan, both on account of the Prior Obligations and the Junior
Obligations, then, to the extent the debt obligations distributed on account of
the Prior Obligations and on account of the Junior Obligations are secured by
Liens upon the same property, the provisions of this Agreement will survive the
distribution of such debt obligations pursuant to such plan and will apply with
like effect to the Liens securing such debt obligations.


 


Section 6.02.  Relief from the Automatic Stay.  Until the Discharge of Prior Obligations has
occurred, each Junior Agent, on behalf of itself and its Related Secured
Parties, agrees that none of them shall seek (or support any other Person
seeking) relief from the automatic stay or any other stay in any Insolvency or
Liquidation Proceeding in respect of any Common Collateral subject to a Prior
Lien without the prior written consent of each Prior Agent.  Each Junior Agent, on behalf of itself and
its Related Secured Parties, agrees that none of them shall oppose (or support
any other Person opposing) any motion of the Controlling Agent seeking relief
from the automatic stay or any other stay in any Insolvency or Liquidation
Proceeding in respect of any Common Collateral subject to its Prior Lien.


 


Section 6.03.  Adequate Protection.  Each Junior
Agent, on behalf of itself and its Related Secured Parties, agrees that it will
not contest any request by any Prior Agent or any other Prior Secured Party for
adequate protection with respect to their Prior Liens on Common Collateral or
contest any objection by a Prior Agent or any other Prior Secured Party to any
motion, relief, action or proceeding based on such Prior Agent or other Prior
Secured Party claiming a lack of adequate protection with respect to their
Prior Liens on Common Collateral. 
Notwithstanding the foregoing, if a Prior Agent or any Prior Secured
Party is granted adequate protection in the form of additional collateral in
connection with any use of cash collateral constituting Prior Collateral or DIP
Financing secured by Prior Collateral, then each Junior Agent, on behalf of
itself and its Related Secured Parties, may seek or request adequate protection
in the form of a Lien on such additional collateral, which Lien will be junior
and subordinated to the Liens securing the Prior Obligations and such DIP
Financing (and all obligations related thereto) on the same basis as the other
Junior Liens are subordinated to the Prior Liens under this Agreement.  In the event a Junior Agent or any other
Junior Secured Party seeks or requests adequate protection in respect of Junior
Obligations and such adequate protection is granted in the form of additional
collateral, then such Junior Agent, on 


 


38

















 


behalf of itself and its Related Secured Parties, agrees that the Prior
Agents and the Prior Secured Parties and any such DIP Financing shall also be
granted a senior Lien on such additional collateral as security for the Prior
Obligations and for any such DIP Financing and that any Lien on such additional
collateral securing the Junior Obligations shall be junior and subordinated to
the Lien on such collateral securing the Prior Obligations (and any such DIP
Financing and related obligations) and to any other Liens granted to the Prior
Secured Parties as adequate protection on the same basis as the other Liens on
Common Collateral securing the Junior Obligations are so subordinated to the
Liens on Common Collateral securing the Prior Obligations under this Agreement.


 


Section 6.04.  No Waiver.  Subject to Sections 3.01(c) and
3.01(e), nothing contained herein shall prohibit or in any way limit any Prior
Agent or any Prior Secured Party from objecting in any Insolvency or
Liquidation Proceeding or otherwise to any action taken by any Junior Agent or
any of its Related Secured Parties, including the seeking by any such Junior
Agent or any such Related Secured Party of adequate protection or the asserting
by any such Junior Agent or any such Related Secured Party of any of its rights
and remedies under the applicable Junior Credit Documents or otherwise, in each
case to the extent affecting such Prior Agent’s or such Prior Secured Parties’
rights in its Prior Lien Collateral.


 


Section 6.05.  Avoidance Issues.  If any Prior Secured Party is required in any
Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay
to the estate of SSCC or any other Grantor any amount paid in respect of Prior
Obligations (a “Recovery”), then such Prior Secured Party shall be
entitled to a reinstatement of the applicable Prior Obligations with respect to
all such recovered amounts.  If this
Agreement shall have been terminated prior to such Recovery, this Agreement
shall be reinstated in full force and effect, and such prior termination shall
not diminish, release, discharge, impair or otherwise affect the obligations of
the parties hereto from such date of reinstatement.


 


Section 6.06.  Post-Petition Interest.  (a)  Each Junior Agent agrees, on behalf
of itself and its Related Secured Parties, that none of them shall oppose or
seek to challenge any claim by any Prior Agent or any Prior Secured Party for
allowance in any Insolvency or Liquidation Proceeding of Prior Obligations
consisting of post-petition interest, fees or expenses to the extent of the
value of such Prior Agent’s or such Prior Secured Party’s Prior Lien on its
Prior Lien Collateral, without regard to the existence of the Junior Lien
of any Junior Agent or any Junior Secured Party on such Prior
Lien Collateral (it being understood and agreed that such value will be
determined without regard to the existence of the Junior Liens on the Prior
Collateral).


 


(b)  Each Prior Agent
agrees, on behalf of itself and its Related Secured Parties, that none of them
shall oppose or seek to challenge any claim by any Junior Agent or any Prior
Secured Party for allowance in any Insolvency or Liquidation Proceeding of
Junior Obligations consisting of post-petition interest, fees or expenses to
the extent of the value of such Junior Agent’s or such Junior Secured Party’s
Junior Lien on such Prior Agent’s Prior Lien Collateral (it being
understood and agreed that such value will be determined only after taking into
account the Prior Liens on the Prior Lien 


 


39

















 


Collateral and all Prior Obligations secured thereby (including
post-petition interest, fees and expenses)).


 


Section 6.07.  Separate Grants of Security and Separate
Classification.  Each Agent, for
itself and on behalf of its Related Secured Parties, acknowledges and agrees
that (a) the grants of Liens pursuant to applicable Collateral Documents
constitute separate and distinct grants of Liens; and (b) because of,
among other things, their differing rights in the ABL Collateral and the
Non-ABL Collateral, the Term Loan Credit Obligations, Revolving Credit
Obligations and the Permitted Notes Obligations are fundamentally different
from one another and must be separately classified in any plan of reorganization
proposed or adopted in an Insolvency or Liquidation Proceeding (other than any
such plan of reorganization that provides for the payment in full and in cash
of the aggregate principal amount of (and accrued interest, fees, premiums and
expenses under) the Term Loan Credit Obligations, the Revolving Credit
Obligations and Permitted Notes Obligations). 
To further effectuate the intent of the parties as provided in the
immediately preceding sentence, if it is held that the claims of one or more of
the Term Loan Credit Secured Parties, Revolving Credit Secured Parties and the
Permitted Notes Secured Parties or any of them in respect of any
ABL Collateral or Non-ABL Collateral constitute only one secured claim
(rather than separate classes of secured claims), then each of the parties
hereto hereby acknowledges and agrees that, as set forth in Section 2.01
and as contemplated by Section 4.01, all distributions shall be made as if
there were separate classes of secured claims against the Grantors in respect
of such ABL Collateral or Non-ABL Collateral (with the effect being that,
to the extent that the aggregate value of such ABL Collateral or Non-ABL
Collateral is sufficient (for this purpose ignoring all claims held by the
Junior Secured Parties), the Controlling Secured Parties  shall be entitled to receive, in addition to amounts otherwise
distributed to them in respect of principal, pre-petition interest and other
claims, all amounts owing in respect of post-petition interest, fees and
expenses (including any additional interest payable pursuant to the applicable
Prior Credit Documents arising from or related to a default) that are
disallowed as a claim in any Insolvency or Liquidation Proceeding before any
distribution in respect of ABL Collateral or Non-ABL Collateral, as the
case may be, is made in respect of the claims held by the Junior Secured
Parties, with each Junior Agent, for itself and on behalf of its Related
Secured Parties, hereby acknowledging and agreeing to turn over to (i) FIRST
the Controlling Agent, for itself and on behalf of the Controlling Secured
Parties and (ii) SECOND, following the Discharge of Obligations with
respect to the Controlling Agent, the Rising Prior Agent (if any) for itself
and on behalf of such Rising Agent’s Related Secured Parties, amounts otherwise
received or receivable by them to the extent necessary to effectuate the intent
of this sentence (with respect to the payment of post-petition interest, fees
and expenses), even if such turnover has the effect of reducing the claim or
recovery of the Junior Secured Parties).


 


Section 6.08.  Voting.  Each of the parties hereto acknowledges and
agrees that no Junior Agent or Junior Secured Party shall be required to vote
to approve any plan of reorganization with respect to any Grantor for any
reason or to agree that any provision of any Junior Credit Document shall
survive the effectiveness of any plan of reorganization with respect to any
Grantor in an Insolvency or Liquidation Proceeding.


 


40

















 


Section 6.09.  Application.  This Agreement shall be applicable prior to
and after the commencement of any Insolvency or Liquidation Proceeding.  All references herein to any Grantor shall
apply to any trustee for such Person and such Person as debtor in
possession.  The relative rights as to
the Common Collateral and proceeds thereof shall continue after the filing
thereof on the same basis as prior to the date of the petition, subject to any
court order approving the financing of, or use of cash collateral by, any
Grantor.


 


Section 6.10.  Waiver.  Except as to claims arising under this
Agreement, each Junior Agent, for itself and on behalf of its Related Secured
Parties, waives any claim it may hereafter have against any Prior Secured Party
arising out of (i) the election of any Prior Secured Party of the
application of Section 1111(b)(2) of the Bankruptcy Code, or (ii) in
any Insolvency or Liquidation Proceeding, the grant in any cash collateral or
financing arrangement of a security interest, subject to the Prior Liens of
such Prior Secured Party, in connection with the Common Collateral.


 


ARTICLE VII


 


Reliance; Waivers; Etc.


 


Section 7.01.  Reliance.  Other than any reliance on the terms of this
Agreement, each Agent, on behalf of its Related Secured Parties, acknowledges
that such Related Secured Parties have, independently and without reliance on
any other Agent or any other Secured Party, and based on documents and
information deemed by them to be appropriate, made their own credit analysis and
decision to enter into the Credit Documents applicable to such Agent and such
Related Secured Parties and be bound by the terms of this Agreement and agrees,
on behalf of its Related Secured Parties, that such Related Secured Parties
will continue to make their own credit decisions in taking or not taking any
action under such Credit Documents or this Agreement.


 


Section 7.02.  No Warranties or Liability.  Each Agent, on behalf of itself and its
Related Secured Parties, acknowledges and agrees that the other Agents and their respective Related Secured Parties have made no express or
implied representation or warranty, including with respect to the execution,
validity, legality, completeness, collectibility or enforceability of any of
the applicable Credit Documents, the ownership of any Collateral or the
perfection or priority of any Liens thereon. 
Except as otherwise provided herein, the Secured Parties of each Class will be entitled to manage and supervise their
respective loans and extensions of credit under the applicable Credit Documents
with respect to such Class in accordance
with law and as they may otherwise, in their sole discretion, deem
appropriate.  No Agent or any of its
Related Secured Parties shall have any duty to any other Agent or its Related
Secured Parties to act or refrain from acting in a manner which allows, or
results in, the occurrence or continuance of an event of default or default
under any agreements with SSCC or any other
Grantor (including any Credit Documents), regardless of any knowledge thereof
which they may have or be charged with.


 


41

















 


Section 7.03.  No Waiver of Lien Priorities.  (a)  No right of any Agent or any of its
Related Secured Parties to enforce any provision of this Agreement or any
Credit Document shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of SSCC or any other Grantor or by any act or
failure to act by any Agent or Secured Party, or by any noncompliance by any
Person with the terms, provisions and covenants of this Agreement, any of the
Credit Documents or any Canadian Intercompany Note Documents, regardless of any
knowledge thereof that such Agent or any of its Related Secured Parties may
have or be otherwise charged with.


 


(b)  Except as
otherwise provided herein, each Junior Agent,
on behalf of itself and its Related Secured
Parties, agrees that Prior Agent and the Prior Secured Parties shall have no
liability to such Junior Agent or
any such Related Secured Party, and any Junior Agent, on behalf of itself and its
Related Secured Parties, hereby waives any claim against any Prior Agent or any Prior Secured Party, arising out of any and all
actions which any Prior Agent or
any Prior Secured Party may take or permit or omit to take with respect to:


 


(i) the
Prior Credit Documents (other than this Agreement) applicable to such Prior
Agent or Prior Secured Party;


 


(ii) the
collection of the Prior Obligations (other than in violation of the express
provisions of this Agreement) applicable to such Prior Agent or Prior Secured
Party; or


 


(iii) the
foreclosure upon, or sale, liquidation or other disposition of, any Collateral
subject to any Prior Agents’ or Prior
Secured Parties’ Prior Liens.


 


Each Junior Agent, on behalf
of itself and its Related Secured Parties, agrees that the Prior Agents and the
Prior Secured Parties have no duty to them in respect of the maintenance or
preservation of any Collateral subject to any Prior Agents’ or Prior Secured
Parties’ Prior Liens, the Prior Obligations applicable to such Prior Agent or
Prior Secured Party or otherwise.


 


Section 7.04.  Obligations Unconditional.  All rights, interests, agreements and
obligations of the Prior Agents and the Prior Secured Parties and the Junior
Agents and the Junior Secured Parties hereunder (and the rights and obligations
of the parties hereto set forth in Section 5.05 with respect to the
Canadian Collateral) shall remain in full force and effect irrespective of:


 


(a)  any lack of
validity or enforceability of any Prior Credit Document or any Junior Credit
Document;


 


(b)  except as
otherwise expressly set forth in this Agreement, any change in the time, manner
or place of payment of, or in any other terms of, the Prior Obligations or the
Junior Obligations, or any Amendment, including any increase in the amount
thereof, whether by course of conduct or otherwise, of the terms of any Prior
Credit Document or any Junior Credit Document;


 


42

















 


(c)  except as otherwise
expressly set forth in this Agreement, any exchange of any security interest in
any Collateral or any other collateral, or any Amendment, whether in writing or
by course of conduct or otherwise, of all or any of the Prior Obligations or
Junior Obligations or any guarantee thereof;


 


(d)  the commencement
of any Insolvency or Liquidation Proceeding in respect of SSCC or any other
Grantor;


 


(e)  any other
circumstances that otherwise might constitute a defense available to, or a
discharge of, SSCC or any other Grantor in respect of any Prior Agent, any
Prior Obligations, any Prior Secured Party, any Junior Agent, any Junior
Obligations or any Junior Secured Party in respect of this Agreement; or


 


(f)  any circumstance
that might constitute a defense available to, or a discharge of, SSCC or any
other Grantor in respect of any security interest in the Canadian Collateral or
the Canadian Intercompany Notes.


 


ARTICLE VIII


 


Miscellaneous


 


Section 8.01.  Conflicts.  In the event of any conflict between the provisions
of this Agreement and the provisions of any Credit Documents or the Canadian
Intercompany Notes Documents, the provisions of this Agreement shall govern and
control.


 


Section 8.02.  Effectiveness; Continuing Nature of this
Agreement; Severability.  This
Agreement shall become effective when executed and delivered by the parties
hereto.  This is a continuing agreement
of lien subordination, and the Secured Parties of any Class may continue,
at any time and without notice to any Agent or
Secured Party of any other Class to extend credit and other financial
accommodations and lend monies to or for the benefit of SSCC or any Grantor
constituting Obligations of such Class in reliance hereon.  Each
Agent, on behalf of itself and its
Related Secured Parties, hereby waives any right it or any of them may have
under applicable law to revoke this Agreement or any of the provisions
hereof.  The terms of this Agreement
shall survive, and shall continue in full force and effect, in any Insolvency
or Liquidation Proceeding.  Any provision
of this Agreement that is prohibited or unenforceable in any jurisdiction shall
not invalidate 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. 
All references to SSCC or any other Grantor shall include SSCC or such
Grantor as debtor and debtor-in-possession and any receiver or trustee for SSCC
or any other Grantor (as the case may be) in any Insolvency or Liquidation
Proceeding.  Without limiting the
generality of the foregoing, this Agreement is intended to constitute and shall
be deemed to constitute a “subordination agreement” within the meaning of Section 510(a) of
the Bankruptcy Code and is intended to be and shall be interpreted to be
enforceable to the maximum extent permitted pursuant to applicable
nonbankruptcy law.


 


43

















 


Section 8.03.  Amendments; Waivers.  No Amendment of any of the provisions of this
Agreement shall be effective unless the same shall be in writing and signed on
behalf of each party hereto or its authorized agent and each waiver, if any,
shall be a waiver only with respect to the specific matter involved and shall
in no way impair the rights of the parties making such waiver or the
obligations of the other parties to such party in any other respect or at any
other time; provided that additional Grantors may be added as parties hereto in
accordance with the provisions of Section 8.18.  Notwithstanding the foregoing, none of SSCC
or any other Grantor shall have any right to consent to or approve any
Amendment of any provision of this Agreement (and its signature thereto shall
not be required) except to the extent its rights or obligations are affected; provided
that SSCC shall be provided with written notice of (and fully executed copies
of) all Amendments of any provision of this Agreement.


 


Section 8.04.  Information Concerning Financial Condition
of SSCC and Subsidiaries.  Each Agent,
on behalf of its Related Secured Parties, acknowledges that none of the Agents
or the Secured Parties shall be responsible for keeping any other Agent or
Secured Party informed of (a) the financial condition of SSCC and the
Subsidiaries or (b) any other circumstances bearing upon the risk of
nonpayment of the Term Loan Credit
Obligations, the Revolving Credit Obligations or the Permitted Notes
Obligations.  No Agent or any Secured Party shall have any duty to advise any other Agent or any other Secured Party of information
known to it regarding such condition or any such circumstances or
otherwise.  In the event any Agent or any other Secured Party, in its sole discretion, undertakes
at any time or from time to time to provide any such information to any other Agent or any other Secured Party, it shall be under no
obligation:


 


(a)  to make, and no Agent and any Secured Party
shall make, any express or implied representation or warranty, including with
respect to the accuracy, completeness, truthfulness or validity of any such
information so provided;


 


(b)  to provide any
additional information or to provide any such information on any subsequent
occasion;


 


(c)  to undertake any
investigation; or


 


(d)  to disclose any
information which such party wishes to maintain confidential or is otherwise
required to maintain confidential.


 


Section 8.05.  Subrogation.  Subject to the Discharge of the Prior
Obligations, with respect to the value of any payments or distributions in
cash, property or other assets that any Junior Agent or any Junior Secured
Party pays over to any Prior Agent or any Prior Secured Party under the terms
of this Agreement, such Junior Agent or such Junior Secured Party shall be
subrogated to the rights of such Prior Agent or such Prior Secured Party; provided
that each Junior Agent, on behalf of itself and the Junior Secured Parties,
hereby agrees not to assert or enforce all such rights of subrogation it may
acquire as a result of any payment hereunder until the Discharge of Prior
Obligations has occurred.  SSCC and the
other Grantors acknowledge and agree that the value of any 


 


44

















 


payments or distributions in cash, property or other assets received by
any Junior Agent or any Junior Secured Party that are paid over to any Prior
Agent or any Prior Secured Party pursuant to this Agreement shall not reduce
any of the applicable Junior Obligations.


 


Section 8.06.  Application of Payments.  All payments received by any Prior Agent or any Prior Secured Parties may be applied, reversed and
reapplied, in whole or in part, to such part of the Prior Obligations as shall
be provided in the applicable Prior Credit Documents.  Each Junior Agent, on behalf of itself and its
Related Secured Parties, assents to any extension or postponement of the time
of payment of the Prior Obligations or any part thereof and to any other
indulgence with respect thereto, to any substitution, exchange or release of
any security which may at any time secure any part of the Prior Obligations and
to the addition or release of any other Person primarily or secondarily liable
therefor.


 


Section 8.07.  Governing Law; Jurisdiction; Consent to
Service of Process.  (a)  THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, INCLUDING SECTIONS 5-1401 AND 5-1402 OF TITLE 14 OF THE
NEW YORK GENERAL OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND
CONFLICTS OF LAWS RULES THEREOF.


 


(b)  Each party hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the non-exclusive jurisdiction of any New York State court or Federal court of
the United States sitting in New York City, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court.  Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this
Agreement shall affect any right that any party hereto may otherwise have to
bring any action or proceeding relating to this Agreement in the courts of any
jurisdiction.


 


(c)  Each party hereto hereby irrevocably and unconditionally waives, to the
fullest extent permitted by law, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any New York State or Federal court referred to
in paragraph (b) of this Section. 
Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.


 


(d)  Each party to this
Agreement irrevocably consents to service of process in the manner provided for
notices in Section 8.09.  Nothing in
this Agreement


 


45






 












 


will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.


 


Section 8.08.  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, AS APPLICABLE,
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.08.


 


Section 8.09.  Notices.  All notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by facsimile,
addressed to the recipients at their addresses set forth in Schedule I
hereto, or, as to each party, at such other address as may be designated by
such party in a written notice to all of the other parties.  All notices and other communications given to
any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt.


 


Section 8.10.  Further Assurances.  Each
Agent, on behalf of itself and its
Related Secured Parties and the other parties hereto agree that each of them
shall take such further actions and shall execute and deliver such additional
documents and instruments (in recordable form, if requested) as any Agent may reasonably request to effectuate the terms of and the Lien
priorities contemplated by this Agreement.


 


Section 8.11.  Successors and Assigns.  Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the permitted
successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of each Agent, each Secured Party, SSCC and any
Subsidiary party hereto that are contained in this Agreement shall bind and
inure to the benefit of their respective successors and assigns.


 


Section 8.12.  Specific Performance.  Each of the Term Loan Credit Agent, the
Revolving Credit Agent and any Permitted Notes Agent may demand specific
performance of this Agreement.  Each of
the Term Loan Credit Agent, on behalf of itself and the Term Loan Credit
Secured Parties, the Revolving Credit Agent, on behalf of itself and the
Revolving Credit Secured Parties, and any Permitted Notes Agent, on behalf of
itself and the applicable Permitted Notes Secured Parties, hereby irrevocably
waives any defense based on the adequacy of a remedy at law and any other
defense which might be asserted to bar the remedy of specific performance in
any action brought by the Term 


 


46

















 


Loan Credit Agent, the Term Loan Credit Secured Parties, the Revolving
Credit Agent, the Revolving Credit Secured Parties, any Permitted Notes Agent
or the Permitted Notes Secured Parties, as the case may be.


 


Section 8.13.  Headings.  Article and Section headings used
herein are for convenience of reference only, are not part of this Agreement
and are not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.


 


Section 8.14.  Counterparts.  This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. 
Delivery of an executed counterpart of a signature page of this
Agreement or any document or instrument delivered in connection herewith by
facsimile or electronic imaging means shall be effective as delivery of a
manually executed counterpart of this Agreement or such other document or
instrument, as applicable.


 


Section 8.15.  Authorization.  By its signature, each Person executing this
Agreement on behalf of a party hereto represents and warrants to the other
parties hereto that it is duly authorized to execute this Agreement.


 


Section 8.16.  No Third Party Beneficiaries.  This Agreement and the rights and benefits
hereof shall inure to the benefit of each of the parties hereto and its
respective successors and assigns, including each of the Term Loan Credit
Secured Parties, the Revolving Credit Secured Parties and the Permitted Notes
Secured Parties.  Nothing in this
Agreement shall impair, as between SSCC, the other Grantors or any other
Revolving Credit Loan Parties, on the one hand, and the Agents and Secured
Parties of each Class, on the other hand, the obligations of SSCC, the other
Grantors and the other Revolving Credit Loan Parties to pay principal,
interest, fees and other amounts as provided in the Credit Documents of the
applicable Class.


 


Section 8.17.  Provisions Solely To Define Relative
Rights.  The intercreditor provisions
of this Agreement are and are intended solely for the purpose of defining the
relative rights of (a) the Term Loan Credit Agent and the Term Loan Credit
Secured Parties, (b) the Revolving Credit Agent and the Revolving Credit
Secured Parties and (c) the Permitted Notes Agents and the Permitted Notes
Secured Parties.  Nothing in this
Agreement (i) is intended to or shall impair the obligations of SSCC, the
other Grantor or the other Revolving Credit Loan Party, which are absolute and
unconditional, to pay the Obligations of each Class as and when the same
shall become due and payable in accordance with their terms or (ii) shall
relieve any Grantor from the performance of any term, covenant, condition or
agreement on such Grantor’s part to be performed or observed under or in
respect of any of the Collateral pledged by it or from any liability to any
Person under or in respect of any of such Collateral or impose any obligation
on any Agent to perform or observe any such term, covenant, condition or
agreement on such Grantor’s part to be so performed or observed or impose any
liability on any Agent for any act or omission on the part of such Grantor
relative thereto or for any breach of any representation or warranty on the
part of such Grantor contained in this Agreement or any Credit Document, or in
respect of the Collateral pledged by it. 
The obligations of each 


 


47

















 


Grantor contained in this paragraph shall survive the termination of
this Agreement and the discharge of such Grantor’s other obligations
hereunder.  Each Agent acknowledges and
agrees that no other Agent has made any representation or warranty with respect
to the execution, validity, legality, completeness, collectability or
enforceability of any other Credit Documents. 
Except as otherwise provided in this Agreement, each of the Agents will
be entitled to manage and supervise their respective extensions of credit to
SSCC or any of its Subsidiaries in accordance with law and their usual
practices, modified from time to time as they deem appropriate.


 


Section 8.18.  Additional Grantors.  Pursuant to the Term
Loan Credit Documents, Revolving Credit Documents and the Permitted Notes
Documents certain Subsidiaries not party hereto on the date hereof are required
to become a party hereto as a “Grantor”. 
Upon the execution and delivery by any Subsidiary of an instrument in
the form of Exhibit I hereto, any such Subsidiary shall become a
party hereto and a Grantor hereunder with the same force and effect as if
originally named as such herein.  The
execution and delivery of any such instrument shall not require the consent of
any other party hereto.  The rights and
obligations of each party hereto shall remain in full force and effect
notwithstanding the addition of any new Grantor as a party to this Agreement.


 


Section 8.19.  Term Loan Credit Agent and Revolving
Credit Agent.  It is understood and
agreed that (a) JPMorgan Chase Bank, N.A. (“JPM”) is entering into
this Agreement in its capacity as administrative agent under the Term Loan
Credit Documents and the provisions of Article VIII of the Term Loan
Credit Agreement applicable to JPM as administrative agent thereunder shall
also apply to JPM as Term Loan Credit Agent hereunder and (b) Deutsche
Bank AG New York (“DB”) is entering in this Agreement in its capacity as
collateral agent under the Revolving Credit Documents and the provisions of [Article [·]](5) of the Revolving Credit Agreement
applicable to DB as collateral agent thereunder shall also apply to DB as
Revolving Credit Agent hereunder.


 


[signature page follows]


 






(5) To refer to agency
provisions in the Revolving Credit Agreement.


 


48

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed as of the date first
written above.


 


	
   

  	
  SMURFIT-STONE
  CONTAINER CORPORATION,

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  GRANTORS LISTED ON SCHEDULE II HERETO,

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


LIEN SUBORDINATION AND INTERCREDITOR AGREEMENT


 

















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A., as

  Term Loan Credit Agent,

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


LIEN
SUBORDINATION AND INTERCREDITOR AGREEMENT


 


2

















 


	
   

  	
  DEUTSCHE
  BANK AG NEW YORK BRANCH,

  as Revolving Credit Agent,

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


LIEN
SUBORDINATION AND INTERCREDITOR AGREEMENT


 


3

















 


SCHEDULE I


 


Notice Addresses


 


If
to Smurfit-Stone Container Corporation, to it at:


 


Six
CityPlace Drive


Creve
Coeur, MO 63141


Attention:  Timothy T. Griffith, Vice President and
Treasurer


Fax
No.:  (314) 787 6186)


 


with
a copy to


Winston &
Strawn LLP


35
W. Wacker Drive


Chicago,
IL 60601


Attention:  Brian S. Hart


Fax
No.:  (312) 558-5700


 


If
to JPMorgan Chase Bank, N.A., to it at:


 


Loan
Agency Services Group


1111
Fannin Street, 10th Floor


Houston,
Texas 77002


Attention:  Christian Cho and Sylvia Guttierrez


Fax
No.:  (713) 427-6307


 


with
a copy to


JPMorgan
Chase Bank, N.A.


383
Madison Avenue, 24th Floor


New
York, NY 10017


Attention:  Peter S. Predun


Fax
No.:  (212) 270-5100


 


If
to Deutsche Bank AG New York Branch, to it at:


 


60
Wall Street

New York, NY 10005

Attention: Erin Morrissey

Fax No.:  212-797-5690


 

















 


SCHEDULE II


 


Grantors


 

















 


EXHIBIT I to


the Lien Subordination and


Intercreditor Agreement


 


[FORM OF] SUPPLEMENT
NO.          dated as of [                       ],
to the Lien Subordination and Intercreditor Agreement dated as of [·], 2010 (the “Intercreditor
Agreement”), among SMURFIT-STONE CONTAINER CORPORATION, a Delaware
corporation (“SSCC”); the other SUBSIDIARIES of SSCC identified therein,
JPMORGAN CHASE BANK, N.A., as Term Loan Credit Agent, and DEUTSCHE BANK AG NEW
YORK BRANCH, as Revolving Credit Agent.


 


Section 8.18 of the
Intercreditor Agreement provides that additional Subsidiaries may become party
thereto as a “Grantor” thereunder by execution and delivery of an instrument in
the form of this Supplement.  Pursuant to
one or more of the Credit Documents, the undersigned Subsidiary (the “New
Subsidiary”) is required to become a party to the Intercreditor Agreement
as a “Grantor” thereunder.


 


Capitalized terms used and
not otherwise defined herein have the meanings assigned to them in the
Intercreditor Agreement.


 


Reference is made to (a) the
Term Loan Credit Agreement, and (b) the Revolving Credit Agreement.


 


Accordingly, the New
Subsidiary hereby agrees as follows:


 


SECTION 1.  In accordance with Section 8.18 of the
Intercreditor Agreement, the New Subsidiary by its signature below becomes a
party to the Intercreditor Agreement as a “Grantor” with the same force and
effect as if originally named therein as such, and the New Subsidiary hereby
agrees to all the terms and provisions of the Intercreditor Agreement
applicable to it in such capacity thereunder. Each reference to a “Grantor” in
the Intercreditor Agreement shall be deemed to include the New Subsidiary.


 


SECTION 2.  The New Subsidiary represents and warrants to
the Term Loan Credit Agent, the Revolving Credit Agent, any Permitted Notes
Agent and the Secured Parties that this Supplement has been duly authorized,
executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms (except as the
enforceability thereof may be limited by bankruptcy, insolvency reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights
generally and subject to general principles of equity (whether enforcement is
sought by proceeding in equity or at law)).


 


SECTION 3.  This Supplement shall become effective when
the Term Loan Credit Agent, the Revolving Credit Agent and each Permitted Notes
Agent shall have received a counterpart (or a copy) of this Supplement that
bears the signature of the New Subsidiary. 
Delivery of an executed signature page to this Supplement by
facsimile or electronic transmission shall be as effective as delivery of a
manually signed counterpart of this Supplement.


 

















 


SECTION 4.  Except as expressly supplemented hereby, the
Intercreditor Agreement shall remain in full force and effect.


 


SECTION 5.  THIS SUPPLEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING
SECTIONS 5-1401 AND 5-1402 OF TITLE 14 OF THE NEW YORK GENERAL OBLIGATIONS LAW
BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAWS RULES THEREOF.


 


IN WITNESS WHEREOF, the New
Subsidiary has duly executed this Supplement as of the day and year first above
written.


 


	
   

  	
  [NAME
  OF NEW SUBSIDIARY],

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


2
















 


EXHIBIT II to


the Lien Subordination and


Intercreditor Agreement


 


[FORM OF] JOINDER
AGREEMENT NO. [    ] dated as of [             ],
20[       ] to the Lien Subordination and
Intercreditor Agreement dated as of [·], 2010 (the “Intercreditor
Agreement”), among SMURFIT-STONE CONTAINER CORPORATION, a Delaware
corporation (“SSCC”); the other SUBSIDIARIES of SSCC identified therein,
JPMORGAN CHASE BANK, N.A., as Term Loan Credit Agent, DEUTSCHE BANK AG NEW YORK
BRANCH, as Revolving Credit Agent [and [                  ],
as Permitted Notes Agent[s]].


 


A. 
Capitalized terms used herein but not otherwise defined herein shall
have the meanings assigned to such terms in the Intercreditor Agreement.


 


B.  As
a condition to the ability of the SSCC to incur Permitted Notes and to secure
such Permitted Notes with (i) a third priority Lien, junior and
subordinate to both the Revolving Credit Obligations and the Term Loan Credit
Obligations, on ABL Collateral, and (ii) a second priority Lien, senior
with respect to the Revolving Credit Obligations and junior and subordinate to
the Term Loan Credit Obligations, on Non-ABL Collateral, under and pursuant to
the relevant Permitted Notes Collateral Documents for such Permitted Notes,
among other things, the agent of any such Permitted Notes, acting on behalf of
the holders of the Permitted Notes, is required to become party to the
Intercreditor Agreement.  Section 5.08
of the Intercreditor Agreement provides that such agent may become a party to
the Intercreditor Agreement by the execution and delivery by such agent of an
instrument in the form of this Joinder Agreement and the satisfaction of the
other conditions set forth in Section 5.08 of the Intercreditor
Agreement.  The undersigned agent (“New
Permitted Notes Agent”) is executing this Joinder Agreement in accordance
with the requirements of the Credit Documents.


 


Accordingly, the Term Loan Credit Agent, the
Revolving Credit Agent, [the Permitted Notes Agent[s]] and the New Permitted
Notes Agent agree as follows:


 


SECTION 1.  In accordance with Section 5.08 of the
Intercreditor Agreement, the New Permitted Notes Agent by its signature below
becomes a Permitted Notes Agent under, and the related Permitted Notes and
holders of Permitted Notes become subject to and bound by, the Intercreditor
Agreement with the same force and effect as if the New Permitted Notes Agent
had originally been named therein as a Permitted Notes Agent, and the New
Permitted Notes Agent, on behalf of itself and such holders of Permitted Notes,
hereby agrees to all the terms and provisions of the Intercreditor Agreement
applicable to it as a Permitted Notes Agent and to the holders of Permitted
Notes that it represents as Permitted Notes Secured Parties.  Each reference to an “Agent” or “Permitted
Notes Agent” in the Intercreditor Agreement shall be deemed to include the
New Permitted Notes Agent.  The
Intercreditor Agreement is hereby incorporated herein by reference.


 

















 


SECTION 2.  The New Permitted Notes Agent represents and
warrants to each other Agent and the other Secured Parties that (i) it has
full power and authority to enter into this Joinder Agreement, in its capacity
as agent, (ii) this Joinder Agreement has been duly authorized, executed
and delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with the terms of such Joinder Agreement
(except as the enforceability thereof may be limited by bankruptcy, insolvency
reorganization, moratorium or similar laws affecting the enforcement of creditors’
rights generally and subject to general principles of equity (whether
enforcement is sought by proceeding in equity or at law)) and (iii) the
Permitted Notes provide that, upon the New Permitted Notes Agent’s entry into
this Joinder Agreement, the holders of the Permitted Notes will be subject to
and bound by the provisions of the Intercreditor Agreement as Permitted Notes
Secured Parties.


 


SECTION 3.  This Joinder Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract.  This Joinder Agreement shall become effective
when each of the Agents party hereto shall have received a counterpart of this
Joinder Agreement that bears the signature of the New Permitted Notes
Agent.  Delivery of an executed signature
page to this Joinder Agreement by facsimile transmission shall be
effective as delivery of a manually signed counterpart of this Joinder
Agreement.


 


SECTION 4.  Except as expressly supplemented hereby, the
Intercreditor Agreement shall remain in full force and effect.


 


SECTION 5.  THIS JOINDER AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, INCLUDING SECTIONS 5-1401 AND 5-1402 OF TITLE 14 OF THE NEW YORK GENERAL
OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAWS
RULES THEREOF.


 


SECTION 6.  In case any one or more of the provisions
contained in this Joinder Agreement should be held invalid, illegal or
unenforceable in any respect, no party hereto shall be required to comply with
such provision for so long as such provision is held to be invalid, illegal or
unenforceable, but the validity, legality and enforceability of the remaining
provisions contained herein and in the Intercreditor Agreement shall not in any
way be affected or impaired.  The parties
hereto shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.


 


SECTION 7.  All communications and notices hereunder
shall be in writing and given as provided in Section 8.09 of the
Intercreditor Agreement.  All
communications and notices hereunder to the New Permitted Notes Agent shall be
given to it at the address set forth below its signature hereto.


 


2

















 


SECTION 8.  SSCC agrees to reimburse each Agent party
hereto for its reasonable out-of-pocket expenses in connection with this
Joinder Agreement, including the reasonable fees, other charges and
disbursements of counsel for such Agent.


 


3

















 


IN WITNESS WHEREOF, the parties set forth
below have duly executed this Joinder Agreement to the Intercreditor Agreement
as of the day and year first above written.


 


	
   

  	
  [NAME
  OF NEW PERMITTED NOTES AGENT], as [         ]
  for the holders of [                                  ],

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  by

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address
  for notices:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  attention
  of:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telecopy:

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A.,

  as Term Loan Credit Agent,

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE
  BANK AG NEW YORK BRANCH,

  as Revolving Credit Agent,

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME
  OF PERMITTED NOTES AGENT](1),

  as Permitted Notes Agent,

  
	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
							



 






(1) If Permitted Notes
of another Series is already outstanding.


 

















 


	
  Acknowledged by:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SMURFIT-STONE CONTAINER CORPORATION,

  	
   

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  THE GRANTORS LISTED ON SCHEDULE I HERETO,

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


2

















 


Schedule I to the


Joinder Agreement to the


Lien Subordination and Intercreditor Agreement


 


Grantors


 






 












 


EXHIBIT E


 


FORM OF MORTGAGE


 

















 


EXHIBIT E


to the Credit Agreement


 




 


 





[FORM OF]


 


MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT


 


From


 


SMURFIT-STONE CONTAINER
CORPORATION, 


formerly known as Smurfit-Stone
Container Enterprises, Inc.


 


To


 


JPMORGAN CHASE BANK, N.A.,


as Administrative Agent


 






 


Dated:  [·], 2010

Premises: [City], [State] (Site #[·])

[·] County


 








 


 





 


THIS
MORTGAGE IS SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT (AS
DEFINED BELOW), AS MORE FULLY SET FORTH IN SECTION 3.08 HEREOF.


 

















 


THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FINANCING STATEMENT dated and effective as of [·], 2010 (this “Mortgage”), by SMURFIT-STONE CONTAINER
CORPORATION, formerly known as Smurfit-Stone Container Enterprises, Inc.,
a Delaware corporation, having an office at Six City Place Drive, Creve Coeur,
Missouri 63141 (the “Mortgagor”),
to JPMORGAN CHASE BANK, N.A., a national banking association, having an office
at 270 Park Avenue, New York, New York 10017 (the “Mortgagee”) as
Administrative Agent for the Secured Parties (as such terms are defined below).


 


WITNESSETH THAT:


 


Reference is made to (i) the Credit
Agreement dated as of [·], 2010 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),
among the Mortgagor, the Lenders (as defined therein) party thereto and
JPMorgan Chase Bank, N.A., as administrative agent (the “Administrative Agent”), (ii) the Guarantee and
Collateral Agreement dated as of [·], 2010 (as
amended, restated, supplemented or otherwise modified from time to time, the “Guarantee and Collateral
Agreement”) among the Mortgagor, the subsidiaries party thereto
and the Administrative Agent and (iii) the Lien Subordination and
Intercreditor Agreement dated as of [·], 2010 (as
amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”),
among the Mortgagor, the subsidiaries party thereto, Deutsche Bank AG New York
Branch, as Revolver Collateral Agent (as defined in the Credit Agreement) and
Administrative Agent.  Capitalized terms
used but not defined herein have the meanings given to them in the Credit
Agreement.


 


In the Credit Agreement, the Lenders have
agreed to make Term Loans to the Mortgagor, pursuant to, upon the terms, and
subject to the conditions specified in the Credit Agreement.  The Credit Agreement also provides that the
Mortgagor may on one or more occasions, by written notice to the Administrative
Agent, request (x) Incremental Term Loan Commitments from one or more
Incremental Term Lenders, which may include any existing Lender, and (y) in
the event that the Revolving Facility is terminated (other than in connection
with the incurrence of Permitted Refinancing Indebtedness in respect thereof)
and the Liens granted to secure obligations thereunder released, Incremental
Revolving Commitments from one or more lenders, which may include any existing
Lender, in each case pursuant to, upon the terms, and subject to the conditions
specified in the Credit Agreement.  The
aggregate principal amount of Term Loans, Incremental Term Loan Commitments and
Incremental Revolving Commitments from time to time outstanding and secured
hereby, together with the aggregate amount of obligations from time to time
outstanding under Hedging Agreements entered into with a Loan Party the
obligations under which constitute Obligations (as defined below) secured
hereby, shall not exceed $[·].


 


Mortgagor is the Borrower under the Credit
Agreement and will derive substantial benefit from the making of the Loans by
the Lenders.  In order to induce the
Lenders to make Loans, the Mortgagor has agreed to grant this Mortgage to
secure, among other things, the 


 

















 


due and punctual payment and
performance of all of the Obligations. 
The obligations of the Lenders to make Loans are conditioned upon, among
other things, the execution and delivery by the Mortgagor of this Mortgage in
the form hereof to secure the Obligations.


 


As used in this Mortgage, the term “Obligations” shall mean (a) the due and punctual
payment by the Mortgagor of (i) the principal of and interest (including
interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans made to the Mortgagor, when and as
due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise and (ii) all other monetary obligations of the
Mortgagor to the Administrative Agent and any of the Lenders under the Credit
Agreement and each of the other Loan Documents (other than the Intercreditor
Agreement), including obligations to pay Fees, expense reimbursement
obligations and indemnification obligations, whether primary, secondary,
direct, contingent, fixed or otherwise, arising under the Loan Documents (other
than the Intercreditor Agreement) (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in such
proceeding), (b) the due and punctual payment of all the monetary
obligations of each other Loan Party under or pursuant to the Credit Agreement
and each of the other Loan Documents (other than the Intercreditor Agreement), (c) the
due and punctual payment of all monetary obligations of the Mortgagor and its
Subsidiaries under each Qualified Secured Hedging Agreement that are treated as
an “Obligation” pursuant to the terms of Section 9.19 of the Credit
Agreement and (d) the due and punctual payment and performance of all Cash
Management Services Obligations of the Mortgagor and its Subsidiaries in
respect of Qualified Secured Cash Management Agreements that are treated as an “Obligation”
pursuant to the terms of Section 9.19 of the Credit Agreement.


 


As used in this Mortgage, the term “Secured Parties” shall mean (a) the
Lenders, (b) the Administrative Agent, (c) each counterparty to any
Qualified Secured Hedging Agreement, (d) each Person to whom any Cash
Management Services Obligations in respect of any Qualified Secured Cash
Management Agreement are owed, (e) the beneficiaries of each
indemnification obligation undertaken by any Loan Party under any Loan Document
and (f) the successors and assigns of each of the foregoing.


 


Pursuant to the requirements of the Credit
Agreement, the Mortgagor is granting this Mortgage to create a lien on and a
security interest in the Mortgaged Property (as hereinafter defined) to secure
the performance and payment by the Mortgagor of the Obligations.  The Credit Agreement also requires the
granting by other Loan Parties of mortgages, deeds of trust and/or deeds to
secure debt (the “Other Mortgages”)
that create liens on and security interests in certain real and personal
property other than the Mortgaged Property to secure the performance of the
Obligations.


 


Granting
Clauses


 


NOW, THEREFORE, IN CONSIDERATION OF the
foregoing and in order to secure the due and punctual payment and performance
of the Obligations for the benefit of the Secured Parties, Mortgagor hereby
grants, conveys, mortgages, assigns and pledges to the 


 


2

















 


Mortgagee, a mortgage lien
on and a security interest in, all the following described property (the “Mortgaged Property”) whether now owned or
held or hereafter acquired:


 


(1) the
land more particularly described on Exhibit A hereto (the “Land”), together with all rights
appurtenant thereto, including the easements over certain other adjoining land
granted by any easement agreements, covenant or restrictive agreements and all
air rights, mineral rights, water rights, timber rights, oil and gas rights and
development rights, if any, relating thereto, and also together with all of the
other easements, rights, privileges, interests, hereditaments and appurtenances
thereunto belonging or in any way appertaining and all of the estate, right,
title, interest, claim or demand whatsoever of Mortgagor therein and in the
streets and ways adjacent thereto, either in law or in equity, in possession or
expectancy, now or hereafter acquired (the “Premises”);


 


(2) all
buildings, improvements, structures, paving, parking areas, walkways and
landscaping now or hereafter erected or located upon the Land, and all fixtures
of every kind and type affixed to the Premises or attached to or forming part
of any structures, buildings or improvements and replacements thereof now or
hereafter erected or located upon the Land (the “Improvements”);


 


(3) all
apparatus, movable appliances, building materials, equipment, fittings,
furnishings, furniture, machinery and other articles of tangible personal
property of every kind and nature, and replacements thereof, now or at any time
hereafter placed upon or used in any way in connection with the use, enjoyment,
occupancy or operation of the Improvements or the Premises, including all of
Mortgagor’s books and records relating thereto and including all pumps, tanks,
goods, machinery, tools, equipment, lifts (including fire sprinklers and alarm
systems, fire prevention or control systems, cleaning rigs, air conditioning,
heating, boilers, refrigerating, electronic monitoring, water, loading,
unloading, lighting, power, sanitation, waste removal, entertainment,
communications, computers, recreational, window or structural, maintenance,
truck or car repair and all other equipment of every kind), restaurant, bar and
all other indoor or outdoor furniture (including tables, chairs, booths,
serving stands, planters, desks, sofas, racks, shelves, lockers and cabinets),
bar equipment, glasses, cutlery, uniforms, linens, memorabilia and other
decorative items, furnishings, appliances, supplies, inventory, rugs, carpets
and other floor coverings, draperies, drapery rods and brackets, awnings,
venetian blinds, partitions, chandeliers and other lighting fixtures, freezers,
refrigerators, walk-in coolers, signs (indoor and outdoor), computer systems,
cash registers and inventory control systems, and all other apparatus,
equipment, furniture, furnishings, and articles used in connection with the use
or operation of the Improvements or the Premises, it being understood that the
enumeration of any specific articles of property shall in no way result in or
be held to exclude any items of property not specifically mentioned (the
property referred to in this subparagraph (3), the “Personal Property”);


 


(4) all
general intangibles owned by Mortgagor and relating to design, development,
operation, management and use of the Premises or the Improvements, all
certificates of occupancy, zoning variances, building, use or other permits, 


 


3

















 


approvals,
authorizations and consents obtained from and all materials prepared for filing
or filed with any governmental agency in connection with the development, use,
operation or management of the Premises and Improvements, all construction,
service, engineering, consulting, leasing, architectural and other similar
contracts concerning the design, construction, management, operation, occupancy
and/or use of the Premises and Improvements, all architectural drawings, plans,
specifications, soil tests, feasibility studies, appraisals, environmental
studies, engineering reports and similar materials relating to any portion of
or all of the Premises and Improvements, and all payment and performance bonds
or warranties or guarantees relating to the Premises or the Improvements, all
to the extent assignable (the “Permits,
Plans and Warranties”);


 


(5) all
now or hereafter existing leases or licenses (under which Mortgagor is landlord
or licensor) and subleases (under which Mortgagor is sublandlord), concession,
management, mineral or other agreements of a similar kind that permit the use
or occupancy of the Premises or the Improvements for any purpose in return for
any payment, or the extraction or taking of any gas, oil, water or other
minerals from the Premises in return for payment of any fee, rent or royalty
(collectively, “Leases”), and all
agreements or contracts for the sale or other disposition of all or any part of
the Premises or the Improvements, now or hereafter entered into by Mortgagor,
together with all charges, fees, income, issues, profits, receipts, rents,
revenues or royalties payable thereunder (“Rents”);


 


(6) all
real estate tax refunds and all proceeds of the conversion, voluntary or
involuntary, of any of the Mortgaged Property into cash or liquidated claims (“Proceeds”), including Proceeds of
insurance maintained by the Mortgagor and condemnation awards, any awards that
may become due by reason of the taking by eminent domain or any transfer in
lieu thereof of the whole or any part of the Premises or Improvements or any
rights appurtenant thereto, and any awards for change of grade of streets,
together with any and all moneys now or hereafter on deposit for the payment of
real estate taxes, assessments or common area charges levied against the
Mortgaged Property, unearned premiums on policies of fire and other insurance
maintained by the Mortgagor covering any interest in the Mortgaged Property or
required by the Credit Agreement; and


 


(7) all
extensions, improvements, betterments, renewals, substitutes and replacements
of and all additions and appurtenances to, the Land, the Premises, the
Improvements, the Personal Property, the Permits, Plans and Warranties and the
Leases, hereinafter acquired by or released to the Mortgagor or constructed,
assembled or placed by the Mortgagor on the Land, the Premises or the
Improvements, and all conversions of the security constituted thereby,
immediately upon such acquisition, release, construction, assembling, placement
or conversion, as the case may be, and in each such case, without any further
mortgage, deed of trust, conveyance, assignment or other act by the Mortgagor,
all of which shall become subject to the lien of this Mortgage as fully and
completely, and with the same effect, as though now owned by the Mortgagor and
specifically described herein.


 


4

















 


TO HAVE AND TO HOLD the Mortgaged Property
unto the Mortgagee, its successors and assigns, for the ratable benefit of the
Secured Parties, forever, subject only to Permitted Liens and to satisfaction
and release as provided in Section 3.04.


 


ARTICLE I


 


Representations, Warranties and Covenants of Mortgagor


 


Mortgagor agrees, covenants, represents and/or
warrants as follows:


 


SECTION 1.01. 
Title, Mortgage Lien.  (a)  Mortgagor has good and marketable
fee simple title to the Mortgaged Property, subject only to Permitted Liens.


 


(b)  The execution and delivery of this
Mortgage is within Mortgagor’s corporate powers and has been duly authorized by
all necessary corporate and, if required, stockholder action.  This Mortgage has been duly executed and
delivered by Mortgagor and constitutes a legal, valid and binding obligation of
Mortgagor, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.


 


(c)  The execution, delivery and recordation of
this Mortgage (i) do not require any consent or approval of, registration
or filing with, or any other action by, any Governmental Authority, except such
as have been obtained or made and are in full force and effect and except
filings necessary to perfect the lien of this Mortgage, (ii) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of Mortgagor or any order of any Governmental
Authority, (iii) will not violate or result in a default under any
indenture, agreement or other instrument binding upon Mortgagor or its assets,
or give rise to a right thereunder to require any payment to be made by
Mortgagor, and (iv) will not result in the creation or imposition of any
Lien on any asset of Mortgagor, except the lien of this Mortgage.


 


(d)  This Mortgage and the Uniform Commercial
Code Financing Statements described in Section 1.09 of this Mortgage, when
duly recorded in the public records identified in the Perfection Certificate
will create a valid, perfected and enforceable lien upon and security interest
in all of the Mortgaged Property.


 


(e)  Mortgagor will forever warrant and defend
its title to the Mortgaged Property, the rights of Mortgagee therein under this
Mortgage and the validity and priority of the lien of this Mortgage thereon
against the claims of all persons and parties except those having rights under
Permitted Liens to the extent of those rights.


 


SECTION 1.02. 
Credit Agreement.  This Mortgage is given pursuant to the
Credit Agreement.  Mortgagor expressly
covenants and agrees to pay when due, and to timely perform, and to cause the
other Loan Parties to pay when due, and to timely perform, the Obligations in accordance
with the terms of the Loan Documents.


 


5

















 


SECTION 1.03. 
Payment of Taxes, and Other
Obligations.  (a) 
Mortgagor will pay and discharge from time to time prior to the time when the
same shall become delinquent, and before any interest or penalty accrues
thereon or attaches thereto, all Taxes and other obligations with respect to
the Mortgaged Property or any part thereof or upon the Rents from the Mortgaged
Property or arising in respect of the occupancy, use or possession thereof in
accordance with, and to the extent required by, the Credit Agreement.


 


(b)  In the event of the passage of any state,
Federal, municipal or other governmental law, order, rule or regulation
subsequent to the date hereof (i) deducting from the value of real
property for the purpose of taxation any lien or encumbrance thereon or in any
manner changing or modifying the laws now in force governing the taxation of
this Mortgage or debts secured by mortgages or deeds of trust (other than laws
governing income, franchise and similar taxes generally) or the manner of
collecting taxes thereon and (ii) imposing a tax to be paid by Mortgagee,
either directly or indirectly, on this Mortgage or any of the Loan Documents,
or requiring an amount of taxes to be withheld or deducted therefrom, Mortgagor
will promptly (i) notify Mortgagee of such event, (ii) enter into
such further instruments as Mortgagee may determine are reasonably necessary or
desirable to obligate Mortgagor to make any additional payments necessary to
put the Lenders and Secured Parties in the same financial position they would
have been if such law, order, rule or regulation had not been passed and (iii) make
such additional payments to Mortgagee for the benefit of the Lenders and
Secured Parties.


 


SECTION 1.04. 
Maintenance of Mortgaged Property.  Mortgagor will maintain the Improvements and
the Personal Property in the manner required by the Credit Agreement.


 


SECTION 1.05. 
Insurance.  Mortgagor will keep or cause to be kept the
Improvements and Personal Property insured against such risks, and in the
manner, described in Section 5.02 of the Credit Agreement and shall
purchase such additional insurance as may be required from time to time
pursuant to the Credit Agreement. 
Federal Emergency Management Agency Standard Flood Hazard Determination
Forms will be purchased by Mortgagor for each Mortgaged Property.  If any portion of the Mortgaged Property is
located in an area identified as a special flood hazard area by Federal
Emergency Management Agency or other applicable agency, Mortgagor will purchase
flood insurance 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.


 


SECTION 1.06. 
Casualty Condemnation/Eminent
Domain.  Mortgagor shall
give Mortgagee prompt written notice of any casualty or other damage to the
Mortgaged Property or any proceeding for the taking of the Mortgaged Property
or any portion thereof or interest therein under power of eminent domain or by
condemnation or any similar proceeding. 
Any Net Cash Proceeds received by or on behalf of the Mortgagor in
respect of any such casualty, damage or taking shall constitute trust funds held
by the Mortgagor for the benefit of the Secured Parties to be applied to
repair, restore or replace the Mortgaged Property (or to reinvest in assets
that are used or useful in the business of the Borrower and the Subsidiaries in
accordance with Section 2.13(a) of the Credit Agreement) or, if
prepayment shall be required with respect to any such Net Cash Proceeds, to be
applied in accordance with Section 2.13 of the Credit Agreement.


 


6






 












 


SECTION 1.07. 
Assignment of Leases and Rents.  (a)  Mortgagor hereby irrevocably and
absolutely grants, transfers and assigns all of its right title and interest in
all Leases and Rents, together with any and all extensions and renewals of the
Leases.  Mortgagor has not assigned or
executed any assignment of, and will not assign or execute any assignment of,
any Leases or the Rents payable thereunder to anyone other than Mortgagee.


 


(b)  All material Leases, if any, shall be
subordinate to the lien of this Mortgage. 
Mortgagor will not enter into, modify or amend any Lease if such
material Lease, as entered into, modified or amended, will not be subordinate
to the lien of this Mortgage.


 


(c)  Subject to Section 1.07(d), Mortgagor
has assigned and transferred to Mortgagee all of Mortgagor’s right, title and
interest in and to the Rents now or hereafter arising from each Lease
heretofore or hereafter made or agreed to by Mortgagor, it being intended that
this assignment establish, subject to Section 1.07(d), an absolute
transfer and assignment of all Rents and all Leases to Mortgagee and not merely
to grant a security interest therein. 
Subject to Section 1.07(d) and any applicable provisions of
the Credit Agreement, Mortgagee may in Mortgagor’s name and stead (with or
without first taking possession of any of the Mortgaged Property personally or
by receiver as provided herein) operate the Mortgaged Property and rent, lease
or let all or any portion of any of the Mortgaged Property to any party or
parties at such rental and upon such terms as Mortgagee shall, in its sole
discretion, determine, and may collect and have the benefit of all of said
Rents arising from or accruing at any time thereafter or that may thereafter
become due under any Lease.


 


(d)  So long as an Event of Default shall not
have occurred and be continuing, Mortgagee will not exercise any of its rights
under Section 1.07(c), and Mortgagor shall receive and collect the Rents
accruing under any Lease; but after the happening and during the continuance of
any Event of Default, Mortgagee may, at its option, receive and collect all
Rents and enter upon the Premises and Improvements through its officers,
agents, employees or attorneys for such purpose and for the operation and
maintenance thereof.  Mortgagor hereby
irrevocably authorizes and directs each tenant, if any, and each successor, if
any, to the interest of any tenant under any Lease, respectively, to rely upon
any notice of a claimed Event of Default sent by Mortgagee to any such tenant
or any of such tenant’s successors in interest, and thereafter to pay Rents to
Mortgagee without any obligation or right to inquire as to whether an Event of
Default actually exists and even if some notice to the contrary is received
from the Mortgagor, who shall have no right or claim against any such tenant or
successor in interest for any such Rents so paid to Mortgagee.  Each tenant or any of such tenant’s
successors in interest from whom Mortgagee or any officer, agent, attorney or
employee of Mortgagee shall have collected any Rents, shall be authorized to
pay Rents to Mortgagor only after such tenant or any of their successors in
interest shall have received written notice from Mortgagee that the Event of
Default is no longer continuing, unless and until a further notice of an Event
of Default is given by Mortgagee to such tenant or any of its successors in
interest.


 


(e)  Mortgagee will not become a mortgagee in
possession so long as it does not enter or take actual possession of the
Mortgaged Property.  In addition,
Mortgagee shall not be responsible or liable for performing any of the
obligations of the landlord under any Lease, for any waste by any tenant, or
others, for any dangerous or defective conditions of any of 


 


7

















 


the Mortgaged Property, for negligence in the management, upkeep,
repair or control of any of the Mortgaged Property or any other act or omission
by any other person.


 


(f)  Mortgagor shall furnish to Mortgagee,
within 30 days after a request by Mortgagee to do so, a written statement
containing the names of all tenants, subtenants and concessionaires of the
Premises or Improvements, the terms of any Lease, the space occupied and the
rentals and/or other amounts payable thereunder.


 


SECTION 1.08. 
Restrictions on Transfers and
Encumbrances.  Mortgagor
shall not directly or indirectly sell, convey, alienate, assign, lease,
sublease, license, mortgage, pledge, encumber or otherwise transfer, create,
consent to or suffer the creation of any lien, charge or other form of
encumbrance upon any interest in or any part of the Mortgaged Property, or be
divested of its title to the Mortgaged Property or any interest therein in any
manner or way, whether voluntarily or involuntarily (other than resulting from
a condemnation), or engage in any common, cooperative, joint, time-sharing or
other congregate ownership of all or part thereof, except in each case in
accordance with and to the extent permitted by the Credit Agreement; provided,
that Mortgagor may, in the ordinary course of business and in accordance with
reasonable commercial standards, enter into easement or covenant agreements
that relate to and/or benefit the operation of the Mortgaged Property and that
do not materially and adversely affect the value, use or operation of the
Mortgaged Property.  If any of the
foregoing transfers or encumbrances results in a prepayment requirement, any
Net Cash Proceeds received by or on behalf of the Mortgagor in respect thereof
shall constitute trust funds to be held by the Mortgagor for the benefit of the
Secured Parties and applied in accordance with Section 2.13 of the Credit
Agreement.


 


SECTION 1.09. 
Security Agreement.  This Mortgage is both a mortgage of real
property and a grant of a security interest in personal property, and shall
constitute and serve as a “Security Agreement” within the meaning of the
uniform commercial code as adopted in the state wherein the Premises are
located (“UCC”).  Mortgagor has hereby granted unto Mortgagee a
security interest in and to all the Mortgaged Property described in this
Mortgage that is not real property, and simultaneously with the recording of
this Mortgage, Mortgagor has filed or will file UCC financing statements, and
will file continuation statements prior to the lapse thereof, at the
appropriate offices in the jurisdiction of formation of the Mortgagor to
perfect the security interest granted by this Mortgage in all the Mortgaged
Property that is not real property.  Mortgagor
hereby appoints Mortgagee as its true and lawful attorney-in-fact and agent,
for Mortgagor and in its name, place and stead, in any and all capacities, to
execute any document and to file the same in the appropriate offices (to the
extent it may lawfully do so), and to perform each and every act and thing
reasonably requisite and necessary to be done to perfect the security interest
contemplated by the preceding sentence. 
Mortgagee shall have all rights with respect to the part of the
Mortgaged Property that is the subject of a security interest afforded by the
UCC in addition to, but not in limitation of, the other rights afforded
Mortgagee hereunder and under the Security Agreement.


 


SECTION 1.10. 
Filing and Recording.  Mortgagor will cause this Mortgage, the UCC
financing statements referred to in Section 1.09, any other security
instrument creating a security interest in or evidencing the lien hereof upon
the Mortgaged Property and each UCC continuation statement and instrument of
further assurance to be filed, registered or 


 


8

















 


recorded and, if necessary, refiled, rerecorded and reregistered, in
such manner and in such places as may be required by any present or future law
in order to publish notice of and fully to perfect the lien hereof upon, and
the security interest of Mortgagee in, the Mortgaged Property until this
Mortgage is terminated and released in full in accordance with Section 3.04
hereof.  Mortgagor will pay all filing,
registration and recording fees, all Federal, state, county and municipal
recording, documentary or intangible taxes and other taxes, duties, imposts,
assessments and charges, and all reasonable expenses incidental to or arising
out of or in connection with the execution, delivery and recording of this Mortgage,
UCC continuation statements any mortgage supplemental hereto, any security
instrument with respect to the Personal Property, Permits, Plans and Warranties
and Proceeds or any instrument of further assurance.


 


SECTION 1.11. 
Further Assurances.  Upon demand by Mortgagee, Mortgagor will, at
the cost of Mortgagor and without expense to Mortgagee, do, execute,
acknowledge and deliver all such further acts, deeds, conveyances, mortgages,
assignments, notices of assignment, transfers and assurances as Mortgagee shall
from time to time reasonably require for the better assuring, conveying,
assigning, transferring and confirming unto Mortgagee the property and rights
hereby conveyed or assigned or intended now or hereafter so to be, or which
Mortgagor may be or may hereafter become bound to convey or assign to
Mortgagee, or for carrying out the intention or facilitating the performance of
the terms of this Mortgage, or for filing, registering or recording this
Mortgage, and on demand, Mortgagor will also execute and deliver and hereby
appoints Mortgagee as its true and lawful attorney-in-fact and agent, for
Mortgagor and in its name, place and stead, in any and all capacities, to
execute and file to the extent it may lawfully do so, one or more financing
statements, chattel mortgages or comparable security instruments reasonably
requested by Mortgagee to evidence more effectively the lien hereof upon the
Personal Property and to perform each and every act and thing requisite and
necessary to be done to accomplish the same.


 


SECTION 1.12. 
Additions to Mortgaged Property.  All right, title and interest of Mortgagor in
and to all extensions, improvements, betterments, renewals, substitutes and
replacements of, and all additions and appurtenances to, the Mortgaged Property
hereafter acquired by or released to Mortgagor or constructed, assembled or
placed by Mortgagor upon the Premises or the Improvements, and all conversions
of the security constituted thereby, immediately upon such acquisition,
release, construction, assembling, placement or conversion, as the case may be,
and in each such case without any further mortgage, conveyance, assignment or
other act by Mortgagor, shall become subject to the lien and security interest
of this Mortgage as fully and completely and with the same effect as though now
owned by Mortgagor and specifically described in the grant of the Mortgaged
Property above, but at any and all times Mortgagor will execute and deliver to
Mortgagee any and all such further assurances, mortgages, conveyances or
assignments thereof as Mortgagee may reasonably require for the purpose of
expressly and specifically subjecting the same to the lien and security
interest of this Mortgage.


 


SECTION 1.13. 
No Claims Against Mortgagee.  Nothing contained in this Mortgage shall
constitute any consent or request by Mortgagee, express or implied, for the
performance of any labor or services or the furnishing of any materials or
other property in respect of the Mortgaged Property or any part thereof, nor as
giving Mortgagor any right, power or 


 


9

















 


authority to contract for or permit the performance of any labor or
services or the furnishing of any materials or other property in such fashion
as would permit the making of any claim against Mortgagee in respect thereof.


 


SECTION 1.14. 
Fixture Filing.  (a)  Certain portions of the Mortgaged
Property are or will become “fixtures” (as that term is defined in the UCC) on
the Land, and this Mortgage, upon being filed for record in the real estate
records of the county wherein such fixtures are situated, shall operate also as
a financing statement filed as a fixture filing in accordance with the
applicable provisions of said UCC upon such portions of the Mortgaged Property
that are or become fixtures.


 


(b)  The real property to which the fixtures
relate is described in Exhibit A hereto.  The record owner of the real property
described in Exhibit A hereto is Mortgagor.  The name, type of organization and
jurisdiction of organization of the debtor for purposes of this financing
statement are the name, type of organization and jurisdiction of organization
of the Mortgagor set forth in the first paragraph of this Mortgage, and the
name of the secured party for purposes of this financing statement is the name
of the Mortgagee set forth in the first paragraph of this Mortgage.  The mailing address of the Mortgagor/debtor
is the address of the Mortgagor set forth in the first paragraph of this
Mortgage.  The mailing address of the
Mortgagee/secured party from which information concerning the security interest
hereunder may be obtained is the address of the Mortgagee set forth in the
first paragraph of this Mortgage. 
Mortgagor’s organizational identification number is 2123437.


 


ARTICLE II


 


Defaults and Remedies


 


SECTION 2.01. 
Events of Default.  Any Event of Default under the Credit
Agreement (as such term is defined therein) shall constitute an Event of
Default under this Mortgage.


 


SECTION 2.02. 
Demand for Payment.  If an Event of Default shall occur and be
continuing, then, upon written demand of Mortgagee, Mortgagor will pay to
Mortgagee all amounts due hereunder and under the Credit Agreement and the
other Loan Documents and such further amount as shall be sufficient to cover
the costs and expenses of collection, including attorneys’ fees, disbursements
and expenses incurred by Mortgagee, and Mortgagee shall be entitled and
empowered to institute an action or proceedings at law or in equity for the
collection of the sums so due and unpaid, to prosecute any such action or
proceedings to judgment or final decree, to enforce any such judgment or final
decree against Mortgagor and to collect, in any manner provided by law, all
moneys adjudged or decreed to be payable.


 


SECTION 2.03. 
Rights To Take Possession, Operate
and Apply Revenues.  (a) 
If an Event of Default shall occur and be continuing, Mortgagor shall, upon
demand of Mortgagee, forthwith surrender to Mortgagee actual possession of the
Mortgaged Property and, if and to the extent not prohibited by applicable  law, Mortgagee itself, or by such officers or
agents as 


 


10

















 


it may appoint, may then enter and take possession of all the Mortgaged
Property without the appointment of a receiver or an application therefor,
exclude Mortgagor and its agents and employees wholly therefrom, and have
access to the books, papers and accounts of Mortgagor.


 


(b)  If Mortgagor shall for any reason fail to
surrender or deliver the Mortgaged Property or any part thereof after such
demand by Mortgagee, Mortgagee may to the extent not prohibited by applicable
law, obtain a judgment or decree conferring upon Mortgagee the right to
immediate possession or requiring Mortgagor to deliver immediate possession of
the Mortgaged Property to Mortgagee, to the entry of which judgment or decree
Mortgagor hereby specifically consents. 
Mortgagor will pay to Mortgagee, upon demand, all reasonable expenses of
obtaining such judgment or decree, including reasonable compensation to
Mortgagee’s attorneys and agents with interest thereon at the rate per annum
applicable to overdue amounts under the Credit Agreement as provided in Section 2.07
of the Credit Agreement (the “Interest Rate”);
and all such expenses and compensation shall, until paid, be secured by this
Mortgage.


 


(c)  Upon every such entry or taking of
possession, Mortgagee may, to the extent not prohibited by applicable law,
hold, store, use, operate, manage and control the Mortgaged Property, conduct
the business thereof and, from time to time, (i) make all necessary and
proper maintenance, repairs, renewals, replacements, additions, betterments and
improvements thereto and thereon, (ii) purchase or otherwise acquire
additional fixtures, personalty and other property, (iii) insure or keep
the Mortgaged Property insured, (iv) manage and operate the Mortgaged
Property and exercise all the rights and powers of Mortgagor to the same extent
as Mortgagor could in its own name or otherwise with respect to the same, or (v) enter
into any and all agreements with respect to the exercise by others of any of
the powers herein granted Mortgagee, all as may from time to time be directed
or determined by Mortgagee to be in its best interest and Mortgagor hereby
appoints Mortgagee as its true and lawful attorney-in-fact and agent, for
Mortgagor and in its name, place and stead, in any and all capacities, to
perform any of the foregoing acts. Mortgagee may collect and receive all the
Rents, issues, profits and revenues from the Mortgaged Property, including
those past due as well as those accruing thereafter, and, after deducting (i) all
expenses of taking, holding, managing and operating the Mortgaged Property
(including compensation for the services of all persons employed for such
purposes), (ii) the costs of all such maintenance, repairs, renewals,
replacements, additions, betterments, improvements, purchases and acquisitions,
(iii) the costs of insurance, (iv) such taxes, assessments and other
similar charges as Mortgagee may at its option pay, (v) other proper
charges upon the Mortgaged Property or any part thereof and (vi) the
compensation, expenses and disbursements of the attorneys and agents of
Mortgagee, Mortgagee shall apply the remainder of the moneys and proceeds so
received first to the payment of the Mortgagee for the satisfaction of the
Obligations, and second, if there is any surplus, to Mortgagor, subject to the
entitlement of others thereto under applicable law.


 


(d)  Whenever, before any sale of the Mortgaged
Property under Section 2.06, all Obligations that are then due shall have
been paid and all Events of Default fully cured, Mortgagee will surrender
possession of the Mortgaged Property back to Mortgagor, its 


 


11

















 


successors or assigns.  The same
right of taking possession shall, however, arise again if any subsequent Event
of Default shall occur and be continuing.


 


SECTION 2.04. 
Right To Cure Mortgagor’s Failure
to Perform.  Should
Mortgagor fail in the payment, performance or observance of any term, covenant
or condition required by this Mortgage or the Credit Agreement (with respect to
the Mortgaged Property), Mortgagee may pay, perform or observe the same, and
all payments made or costs or expenses incurred by Mortgagee in connection
therewith shall be secured hereby and shall be, without demand, immediately
repaid by Mortgagor to Mortgagee with interest thereon at the Interest
Rate.  Mortgagee shall be the judge using
reasonable discretion of the necessity for any such actions and of the amounts
to be paid.  Mortgagee is hereby
empowered to enter and to authorize others to enter upon the Premises or the
Improvements or any part thereof for the purpose of performing or observing any
such defaulted term, covenant or condition without having any obligation to so
perform or observe and without thereby becoming liable to Mortgagor, to any
person in possession holding under Mortgagor or to any other person.


 


SECTION 2.05. 
Right to a Receiver.  If an Event of Default shall occur and be
continuing, Mortgagee, upon application to a court of competent jurisdiction,
shall be entitled as a matter of right to the appointment of a receiver to take
possession of and to operate the Mortgaged Property and to collect and apply
the Rents.  The receiver shall have all
of the rights and powers permitted under the laws of the state wherein the
Mortgaged Property is located.  Mortgagor
shall pay to Mortgagee upon demand all reasonable expenses, including receiver’s
fees, reasonable attorney’s fees and disbursements, costs and agent’s
compensation incurred pursuant to the provisions of this Section 2.05; and
all such expenses shall be secured by this Mortgage and shall be, without
demand, immediately repaid by Mortgagor to Mortgagee with interest thereon at
the Interest Rate.


 


SECTION 2.06. 
Foreclosure and Sale.  (a)  If an Event of Default shall occur
and be continuing, Mortgagee may elect to sell the Mortgaged Property or any
part of the Mortgaged Property by exercise of the power of foreclosure or of
sale granted to Mortgagee by applicable law or this Mortgage.  In such case, Mortgagee may commence a civil
action to foreclose this Mortgage, or it may proceed and sell the Mortgaged
Property to satisfy any Obligation. 
Mortgagee or an officer appointed by a judgment of foreclosure to sell
the Mortgaged Property, may sell all or such parts of the Mortgaged Property as
may be chosen by Mortgagee at the time and place of sale fixed by it in a
notice of sale, either as a whole or in separate lots, parcels or items as
Mortgagee shall deem expedient, and in such order as it may determine, at
public auction to the highest bidder. 
Mortgagee or an officer appointed by a judgment of foreclosure to sell
the Mortgaged Property may postpone any foreclosure or other sale of all or any
portion of the Mortgaged Property by public announcement at such time and place
of sale, and from time to time thereafter may postpone such sale by public
announcement or subsequently noticed sale. 
Without further notice, Mortgagee or an officer appointed to sell the
Mortgaged Property may make such sale at the time fixed by the last
postponement, or may, in its discretion, give a new notice of sale.  Any person, including Mortgagor or Mortgagee
or any designee or affiliate thereof, may purchase at such sale.


 


(b)  The Mortgaged Property may be sold subject
to unpaid taxes and Permitted Liens, and, after deducting all costs, fees and
expenses of Mortgagee (including costs of 


 


12

















 


evidence of title in connection with the sale), Mortgagee or an officer
that makes any sale shall apply the proceeds of sale in the manner set forth in
Section 2.08.


 


(c)  Any foreclosure or other sale of less than
the whole of the Mortgaged Property or any defective or irregular sale made
hereunder shall not exhaust the power of foreclosure or of sale provided for
herein; and subsequent sales may be made hereunder until the Obligations have
been satisfied, or the entirety of the Mortgaged Property has been sold.


 


(d)  If an Event of Default shall occur and be
continuing, Mortgagee may instead of, or in addition to, exercising the rights
described in Section 2.06(a) above and either with or without entry
or taking possession as herein permitted, proceed by a suit or suits in law or
in equity or by any other appropriate proceeding or remedy (i) to
specifically enforce payment of some or all of the Obligations, or the
performance of any term, covenant, condition or agreement of this Mortgage or
any other Loan Document or any other right, or (ii) to pursue any other
remedy available to Mortgagee, all as Mortgagee shall determine most effectual
for such purposes.


 


SECTION 2.07. 
Other Remedies.  (a)  In case an Event of Default shall
occur and be continuing, Mortgagee may also exercise, to the extent not
prohibited by law, any or all of the remedies available to a secured party
under the UCC.


 


(b)  In connection with a sale of the Mortgaged
Property or any Personal Property and the application of the proceeds of sale as
provided in Section 2.08, Mortgagee shall be entitled to enforce payment
of and to receive up to the principal amount of the Obligations, plus all other
charges, payments and costs due under this Mortgage, and to recover a
deficiency judgment for any portion of the aggregate principal amount of the
Obligations remaining unpaid, with interest.


 


SECTION 2.08. 
Application of Sale Proceeds and
Rents.  After any
foreclosure sale of all or any of the Mortgaged Property, Mortgagee shall,
subject to the applicable provisions of the Intercreditor Agreement, receive
and apply the proceeds of the sale, together with any Rents that may have been
collected and any other sums that then may be held by Mortgagee under this
Mortgage, as follows:


 


FIRST, to the
payment of the costs and expenses of such sale, including compensation to
Mortgagee’s attorneys and agents, and of any judicial proceedings wherein the
same may be made, and of all expenses, liabilities and advances made or
incurred by Mortgagee under this Mortgage, together with interest at the
Interest Rate on all advances made by Mortgagee, including all taxes or
assessments (except any taxes, assessments or other charges subject to which
the Mortgaged Property shall have been sold) and the cost of removing any Permitted
Lien (except any Permitted Lien subject to which the Mortgaged Property was
sold);


 


SECOND, to
payment in full of the Obligations (the amounts so applied to be distributed
among the Secured Parties pro rata in accordance with the amounts of the Obligations
owed to them on the date of any such distribution); and


 


13

















 


THIRD, to the
extent that the Revolver Collateral Agent shall have notified the
Administrative Agent that all Revolving Credit Obligations shall have been
indefeasibly paid in full, to the Mortgagor, its successors or assigns, or as a
court of competent jurisdiction may otherwise direct or as otherwise required
by the Intercreditor Agreement.


 


The Mortgagee shall have absolute discretion
as to the time of application of any such proceeds, moneys or balances in
accordance with this Mortgage.  Upon any
sale of the Mortgaged Property by the Mortgagee (including pursuant to a power
of sale granted by statute or under a judicial proceeding), the receipt of the
Mortgagee or of the officer making the sale shall be a sufficient discharge to
the purchaser or purchasers of the Mortgaged Property so sold and such
purchaser or purchasers shall not be obligated to see to the application of any
part of the purchase money paid over to the Mortgagee or such officer or be
answerable in any way for the misapplication thereof.


 


SECTION 2.09. 
Mortgagor as Tenant Holding Over.  If Mortgagor remains in possession of any of
the Mortgaged Property after any foreclosure sale by Mortgagee, at Mortgagee’s
election Mortgagor shall be deemed a tenant holding over and shall forthwith
surrender possession to the purchaser or purchasers at such sale or be
summarily dispossessed or evicted according to provisions of law applicable to
tenants holding over.


 


SECTION 2.10. 
Waiver of Appraisement, Valuation,
Stay, Extension and Redemption Laws. 
Mortgagor waives, to the extent not prohibited by law, (i) the
benefit of all laws now existing or that hereafter may be enacted (x) providing
for any appraisement or valuation of any portion of the Mortgaged Property
and/or (y) in any way extending the time for the enforcement or the
collection of amounts due under any of the Obligations or creating or extending
a period of redemption from any sale made in collecting said debt or any other
amounts due Mortgagee, (ii) any right to at any time insist upon, plead,
claim or take the benefit or advantage of any law now or hereafter in force
providing for any homestead exemption, stay, statute of limitations, extension
or redemption, or sale of the Mortgaged Property as separate tracts, units or
estates or as a single parcel in the event of foreclosure or notice of
deficiency, and (iii) all rights of redemption, valuation, appraisement,
stay of execution, notice of election to mature or declare due the whole of or
each of the Obligations and marshaling in the event of foreclosure of this
Mortgage.


 


SECTION 2.11. 
Discontinuance of Proceedings.  In case Mortgagee shall proceed to enforce
any right, power or remedy under this Mortgage by foreclosure, entry or
otherwise, and such proceedings shall be discontinued or abandoned for any
reason, or shall be determined adversely to Mortgagee, then and in every such
case Mortgagor and Mortgagee shall be restored to their former positions and
rights hereunder, and all rights, powers and remedies of Mortgagee shall
continue as if no such proceeding had been taken.


 


SECTION 2.12. 
Suits To Protect the Mortgaged
Property.  Mortgagee shall
have power (a) to institute and maintain suits and proceedings to prevent
any impairment of the Mortgaged Property by any acts that may be unlawful or in
violation of this Mortgage, (b) to preserve or protect its interest in the
Mortgaged Property and in the Rents arising therefrom and (c) to restrain
the enforcement of or compliance with any legislation or other 


 


14

















 


governmental enactment, rule or order that may be unconstitutional
or otherwise invalid if the enforcement of or compliance with such enactment, rule or
order would impair the security or be prejudicial to the interest of Mortgagee
hereunder.


 


SECTION 2.13. 
Filing Proofs of Claim.  In case of any receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition or other
proceedings affecting Mortgagor, Mortgagee shall, to the extent permitted by
law, be entitled to file such proofs of claim and other documents as may be
necessary or advisable in order to have the claims of Mortgagee allowed in such
proceedings for the Obligations secured by this Mortgage at the date of the
institution of such proceedings and for any interest accrued, late charges and
additional interest or other amounts due or that may become due and payable
hereunder after such date.


 


SECTION 2.14. 
Possession by Mortgagee.  Notwithstanding the appointment of any
receiver, liquidator or trustee of Mortgagor, any of its property or the
Mortgaged Property, Mortgagee shall be entitled, to the extent not prohibited
by law, to remain in possession and control of all parts of the Mortgaged
Property now or hereafter granted under this Mortgage to Mortgagee in
accordance with the terms hereof and applicable law.


 


SECTION 2.15. 
Waiver.  (a)  No delay or failure by Mortgagee to
exercise any right, power or remedy accruing upon any breach or Event of
Default shall exhaust or impair any such right, power or remedy or be construed
to be a waiver of any such breach or Event of Default or acquiescence therein;
and every right, power and remedy given by this Mortgage to Mortgagee may be
exercised from time to time and as often as may be deemed expedient by
Mortgagee.  No consent or waiver by
Mortgagee to or of any breach or Event of Default by Mortgagor in the
performance of the Obligations shall be deemed or construed to be a consent or
waiver to or of any other breach or Event of Default in the performance of the
same or of any other Obligations by Mortgagor hereunder.  No failure on the part of Mortgagee to
complain of any act or failure to act or to declare an Event of Default,
irrespective of how long such failure continues, shall constitute a waiver by
Mortgagee of its rights hereunder or impair any rights, powers or remedies
consequent on any future Event of Default by Mortgagor.


 


(b)  Even if Mortgagee (i) grants some
forbearance or an extension of time for the payment of any sums secured hereby,
(ii) takes other or additional security for the payment of any sums
secured hereby, (iii) waives or does not exercise some right granted
herein or under the Loan Documents, (iv) releases a part of the Mortgaged
Property from this Mortgage, (v) agrees to change some of the terms,
covenants, conditions or agreements of any of the Loan Documents, (vi) consents
to the filing of a map, plat or replat affecting the Premises, (vii) consents
to the granting of an easement or other right affecting the Premises or (viii) makes
or consents to an agreement subordinating Mortgagee’s lien on the Mortgaged
Property hereunder; no such act or omission shall preclude Mortgagee from
exercising any other right, power or privilege herein granted or intended to be
granted in the event of any breach or Event of Default then made or of any
subsequent default; nor, except as otherwise expressly provided in an
instrument executed by Mortgagee, shall this Mortgage be altered thereby.  In the event of the sale or transfer by
operation of law or otherwise of all or part of the Mortgaged Property,
Mortgagee is hereby authorized and empowered to deal with any 


 


15

















 


vendee or transferee with reference to the Mortgaged Property secured
hereby, or with reference to any of the terms, covenants, conditions or
agreements hereof, as fully and to the same extent as it might deal with the
original parties hereto and without in any way releasing or discharging any
liabilities, obligations or undertakings.


 


SECTION 2.16. 
Waiver of Trial by Jury.  To the fullest extent permitted by applicable
law, Mortgagor and Mortgagee each hereby irrevocably and unconditionally waive
trial by jury in any action, claim, suit or proceeding relating to this
Mortgage and for any counterclaim brought therein.  Mortgagor hereby waives all rights to
interpose any counterclaim in any suit brought by Mortgagee hereunder and all
rights to have any such suit consolidated with any separate suit, action or
proceeding.


 


SECTION 2.17. 
Remedies Cumulative.  No right, power or remedy conferred upon or
reserved to Mortgagee by this Mortgage is intended to be exclusive of any other
right, power or remedy, and each and every such right, power and remedy shall
be cumulative and concurrent and in addition to any other right, power and
remedy given hereunder or now or hereafter existing at law or in equity or by
statute.


 


ARTICLE III


 


Miscellaneous


 


SECTION 3.01. 
Partial Invalidity.  In the event any one or more of the
provisions contained in this Mortgage shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such validity, illegality or
unenforceability shall, at the option of Mortgagee, not affect any other
provision of this Mortgage, and this Mortgage shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein or
therein.


 


SECTION 3.02. 
Notices.  All notices and communications hereunder
shall be in writing and given to Mortgagor in accordance with the terms of the
Credit Agreement at the address set forth on the first page of this
Mortgage and to the Mortgagee as provided in the Credit Agreement.


 


SECTION 3.03.  Successors
and Assigns.  All of the
grants, covenants, terms, provisions and conditions herein shall run with the
Premises and the Improvements and shall apply to, bind and inure to, the
benefit of the permitted successors and assigns of Mortgagor and the successors
and assigns of Mortgagee.


 


SECTION 3.04. 
Satisfaction and Cancelation.  (a)  The conveyance to Mortgagee of the
Mortgaged Property as security created and consummated by this Mortgage shall
be null and void upon the payment in full in cash of the Loans and all the
other Loan Documents Obligations (other than unasserted contingent and
indemnification obligations), termination of all Commitments and Incremental
Revolving Commitments and reduction of all exposure under any letters of credit
issued under and pursuant to the Credit Agreement to zero (or the making of
other arrangements satisfactory to the issuers thereof).


 


16






 


 


 












 


(b)  Upon any sale or other transfer by
Mortgagor of all or any portion of the Mortgaged Property that is permitted
under the Credit Agreement (other than a sale or other transfer to a Loan
Party), or upon the effectiveness of any written consent to the release of the
Lien granted hereby in all or any portion of the Mortgaged Property pursuant to
Section 9.09 of the Credit Agreement, the Lien in all or such portion of
the Mortgaged Property, as applicable, shall be automatically released.


 


(c)  In connection with any termination or
release pursuant to paragraph (a) or (b) of this Section 3.04,
the Mortgagee shall execute and deliver to Mortgagor, at Mortgagor’s expense,
all documents that Mortgagor shall reasonably request to evidence such
termination or release; provided, however, that (i) the
Mortgagee shall not be required to execute any such document on terms which, in
its reasonable opinion, would expose it to liability or create any obligation
or entail any consequence other than the release of such Liens without recourse
or warranty, and (ii) such release shall not in any manner discharge,
affect or impair the Obligations or any Liens upon (or obligations of the
Mortgagor or any of the Subsidiaries in respect of) all interests in the
Mortgaged Property (if any) retained by the Mortgagor or any of the
Subsidiaries.  Any execution and delivery
of documents pursuant to this Section 3.04 shall be without recourse to or
warranty by the Mortgagee.


 


SECTION 3.05. 
Definitions.  The rules of construction specified in Section 1.02
of the Credit Agreement also apply to this Mortgage.  As used in this Mortgage, the singular shall
include the plural as the context requires and the following words and phrases
shall have the following meanings: (a) “including”
shall mean “including but not limited to”; (b) “provisions” shall mean “provisions, terms, covenants and/or
conditions”; (c) “lien”
shall mean “lien, charge, encumbrance, security interest, mortgage or deed of
trust”; (d) “obligation”
shall mean “obligation, duty, covenant and/or condition”; and (e) “any of
the Mortgaged Property” shall mean “the Mortgaged Property or any part thereof
or interest therein”.  Any act that
Mortgagee is permitted to perform hereunder may be performed at any time and
from time to time by Mortgagee or any person or entity designated by
Mortgagee.  Any act that is prohibited to
Mortgagor hereunder is also prohibited to all lessees of any of the Mortgaged
Property.  Each appointment of Mortgagee
as attorney-in-fact for Mortgagor under the Mortgage is irrevocable, with power
of substitution and coupled with an interest.


 


SECTION 3.06. 
Multisite Real Estate Transaction.  Mortgagor acknowledges that this Mortgage is
one of a number of Other Mortgages and Security Documents that secure the Obligations.  Mortgagor agrees that the lien of this
Mortgage shall be absolute and unconditional and shall not in any manner be
affected or impaired by any acts or omissions whatsoever of Mortgagee, and
without limiting the generality of the foregoing, the lien hereof shall not be
impaired by any acceptance by the Mortgagee of any security for or guarantees
of any of the Obligations hereby secured, or by any failure, neglect or
omission on the part of Mortgagee to realize upon or protect any Obligation or
indebtedness hereby secured or any collateral security therefor including the
Other Mortgages and other Security Documents. 
The lien hereof shall not in any manner be impaired or affected by any
release (except as to the property released), sale, pledge, surrender,
compromise, settlement, renewal, extension, indulgence, alteration, changing,
modification or disposition of any of the Obligations secured or of any of the
collateral security therefor, including the Other Mortgages and other Security
Documents or of any guarantee thereof, and Mortgagee may at 


 


17

















 


its discretion foreclose, exercise any power of sale, or exercise any
other remedy available to it under any or all of the Other Mortgages and other
Security Documents without first exercising or enforcing any of its rights and
remedies hereunder.  Such exercise of
Mortgagee’s rights and remedies under any or all of the Other Mortgages and
other Security Documents shall not in any manner impair the indebtedness hereby
secured or the lien of this Mortgage and any exercise of the rights or remedies
of Mortgagee hereunder shall not impair the lien of any of the Other Mortgages
and other Security Documents or any of Mortgagee’s rights and remedies
thereunder.  Mortgagor specifically
consents and agrees that Mortgagee may exercise its rights and remedies
hereunder and under the Other Mortgages and other Security Documents separately
or concurrently and in any order that it may deem appropriate and waives any rights
of subrogation.


 


SECTION 3.07. 
No Oral Modification.  This Mortgage may not be changed or
terminated orally.  Any agreement made by
Mortgagor and Mortgagee after the date of this Mortgage relating to this
Mortgage shall be superior to the rights of the holder of any intervening or
subordinate Mortgage, lien or encumbrance.


 


SECTION 3.08. 
Intercreditor Agreement.
 Notwithstanding anything herein to
the contrary, the Liens granted to the Mortgagee under this Mortgage and the
exercise of the rights and remedies of the Mortgagee hereunder are subject to
the provisions of the Intercreditor Agreement. 
In the event of any conflict between the terms of the Intercreditor
Agreement and this Mortgage, the terms of the Intercreditor Agreement shall
govern and control.


 


SECTION 3.09. 
Reduction of Secured Amount.  In the event the maximum principal amount
secured by this Mortgage is less than the aggregate Obligations, then the
amount secured hereby shall be reduced only by the last and final sums that
Mortgagor or any other Loan Party repays with respect to the Obligations and
shall not be reduced by any intervening repayments of the Obligations.  So long as the balance of the Obligations
exceeds the amount secured hereby, any payments of the Obligations shall not be
deemed to be applied against, or reduce, the portion of the Obligations secured
by this Mortgage.


 


SECTION 3.10. 
Future Advances.  This Mortgage is given to secure the
Obligations under, or in respect of, the Loan Documents, Qualified Secured Cash
Management Agreements and the Qualified Secured Hedging Agreements and shall
secure not only Obligations with respect to presently existing indebtedness
under the foregoing documents and agreements but also any and all other
Obligations which may hereafter be owing to the Secured Parties under the Loan
Documents, Qualified Secured Cash Management Agreements and the Qualified
Secured Hedging Agreements, however incurred, whether interest, discount or
otherwise, and whether the same shall be deferred, accrued or capitalized,
including future advances and re-advances and other obligations, pursuant to
the Credit Agreement or the other Loan Documents, or pursuant to Qualified
Secured Cash Management Agreements or Qualified Secured Hedging Agreements,
whether such advances or obligations are obligatory or to be made at the option
of the Secured Parties, or otherwise, to the same extent as if such future
advances or obligations were made on the date of the execution of this
Mortgage.  The Lien of this Mortgage
shall be valid as to all Obligations secured hereby, including future advances
and obligations, from the time of its filing for 


 


18

















 


record in the recorder’s office of the county in which the Mortgaged
Property is located.  This Mortgage is
intended to and shall be valid and have priority over all subsequent Liens and
encumbrances, including statutory Liens, excepting solely taxes and assessments
levied on the real estate, to the extent of the maximum amount secured hereby
and Permitted Liens related thereto. 
Although this Mortgage is given to secure all future advances and
obligations made by Mortgagee and/or the other Secured Parties to or for the
benefit of the Borrower, Mortgagor and/or the Mortgaged Property, whether
obligatory or optional, Mortgagor and Mortgagee hereby acknowledge and agree
that Mortgagee and the other Secured Parties are obligated by the terms of the
Loan Documents to make certain future advances or obligations, including
advances of a revolving nature, subject to the fulfillment of the relevant
conditions set forth in the Loan Documents.


 


ARTICLE IV




Particular Provisions


 


This Mortgage is subject to the following
provisions relating to the particular laws of the state wherein the Premises are
located:


 


SECTION 4.01. 
Applicable Law; Certain Particular
Provisions.  This Mortgage
shall be governed by and construed in accordance with the internal law of the
state where the Mortgaged Property is located, except that Mortgagor expressly
acknowledges that by their terms, the Credit Agreement and other Loan Documents
(aside from those Other Mortgages to be recorded outside New York) shall be
governed by the internal law of the State of New York, without regard to
principles of conflict of law.  Mortgagor
and Mortgagee agree to submit to jurisdiction and the laying of venue for any
suit on this Mortgage in the state where the Mortgaged Property is
located.  The terms and provisions set
forth in Appendix A attached hereto are hereby incorporated by reference
as though fully set forth herein.  In the
event of any conflict between the terms and provisions contained in the body of
this Mortgage and the terms and provisions set forth in Appendix A,
the terms and provisions set forth in Appendix A shall govern and
control.


 


19

















 


IN WITNESS WHEREOF, this Mortgage has been
duly executed and delivered to Mortgagee by Mortgagor and is effective as of
the date first above written.


 


	
   

  	
  SMURFIT-STONE CONTAINER CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
   

  
	
   

  	
  Title:

  



 


20

















 


[ADD LOCAL FORM OF ACKNOWLEDGMENT]


 

















 


Exhibit A

to Mortgage


 


Description of the Land


 

















 


Appendix A 

to Mortgage


 


Local Law Provisions


 

















 


EXHIBIT F


 


FORM OF
PERFECTION CERTIFICATE


 






 












 


Exhibit F


to
the Credit Agreement


 


PERFECTION CERTIFICATE


 


Reference is made to the Credit Agreement
dated as of [       ], 2010 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Smurfit-Stone Container Corporation (“SSCC”),
Smurfit-Stone Container Enterprises, Inc. (“SSCE”), the lenders
from time to time party thereto and JPMorgan Chase Bank, N.A., as
administrative agent.  Capitalized terms
used but not defined herein have the meanings assigned in the Credit Agreement
or the Guarantee and Collateral Agreement (the “Collateral Agreement”)
referred to therein, as applicable.


 


The undersigned, a Responsible Officer of the
Borrower, hereby certifies to the Administrative Agent and each other Secured
Party as follows:


 


SECTION 1.  Names. 
(a)  Attached hereto as Schedule 1 is (i) the exact
legal name of each Grantor, as such name appears in its document of formation, (ii) each
other legal name such Grantor has had in the past five years, including the date
of the relevant name change and (iii) each other name, including trade
names and similar appellations, such Grantor or any of its divisions or other
business units has used in connection with the conduct of its business or the
ownership of its properties at any time during the past five years.


 


(b)  Except as set forth on Schedule 1,
no Grantor has changed its identity or corporate structure in any manner within
the past five years.  Changes in identity
or corporate structure include mergers, consolidations and acquisitions, as
well as any change in form, nature or jurisdiction of organization.  With respect to any such change that has
occurred within the past five years, Schedules 1 and 2A set
forth the information required by Sections 1 and 2 of this
Certificate as to each acquiree or constituent party to such merger,
consolidation or acquisition.


 


SECTION 2. Locations.  (a)  Attached hereto as Schedule 2A
is the (i) jurisdiction of formation and the form of organization of each
Grantor, (ii) organizational identification number, if any, assigned to
such Grantor by such jurisdiction, (iii) address (including the county) of
the chief executive office of such Grantor, (iv) the Federal Taxpayer
Identification Number of each Grantor and (v) whether each Grantor is a
Transmitting Utility as defined under the Uniform Commercial Code (“UCC”)
(indicating such Grantor with an “*”).


 


(b)  Set
forth on Schedule 2B is, with respect to each Grantor, all locations
where such Grantor maintains any books or records relating to the Collateral
consisting of Accounts, Contract Rights, Chattel Paper or General Intangibles
(with each location at which Chattel Paper, if any, is kept being indicated by
an “*”).


 


(c) 
Set forth on Schedule 2C are all other locations in the United States of
America where any of the Collateral consisting of Inventory or Equipment is
located.


 


(d)  Set
forth on Schedule 2D are all the places of business of any Grantor that
are not identified above.


 

















 


SECTION 3. Unusual Transactions.  All Accounts have been originated by the
Grantors and all Inventory has been acquired by the Grantors in the ordinary
course of business.


 


SECTION 4. File Search Reports.  File search reports have been obtained from (i) the
UCC filing office related to each location of a Grantor identified on Schedule
2A and (ii) the county recorder’s office relating to the county where
each Mortgaged Property is located, except as otherwise agreed to by the
Administrative Agent in accordance with the final paragraph of the definition
of the term “Collateral and Guarantee Requirement” in the Credit Agreement.


 


SECTION 5. UCC Filings.  UCC financing statements have been prepared
for filing in the appropriate UCC filing office related to the jurisdiction of
formation for each Grantor.  Attached
hereto as Schedule 5 is a true and correct list of each such filing and
the UCC filing office in which such filing is to be made.  All filing fees and taxes payable in
connection with the filings described in this Section 5 have been
paid or will be paid promptly after the Funding Date.


 


SECTION 6. Equity Interests.  Attached hereto as Schedule 6 is a
true and correct list of all the Equity Interests that each Grantor is required
to pledge under the Security Documents, specifying the issuer and certificate
number (if any) of, and the number and percentage of ownership represented by,
such Equity Interests, and indicating with a “*” such Equity Interests of any
limited liability company or limited partnership that has not opted to have
such Equity Interests treated as “Securities” under the UCC.


 


SECTION 7. Debt Instruments.  Attached hereto as Schedule 7 is a
true and correct list of all debt instruments and other Indebtedness that each
Grantor is required to pledge under the Security Documents, specifying any
promissory notes or intercompany notes evidencing such debt instruments or
Indebtedness.


 


SECTION 8. Mortgage Filings.  Attached hereto as Schedule 8 is
a true and correct list, with respect to all Mortgaged Property, of (a) the
exact name of the Person that owns such property, as such name appears in its
certificate of organization, (b) if different from the name identified
pursuant to clause (a) above, the exact name of the current record owner
of such property, as such name appears in the records of the county recorder’s
office for such property identified pursuant to clause (c) below and (c) the
county recorder’s office in which a mortgage with respect to such property must
be filed or recorded in order for the Administrative Agent to obtain a perfected
security interest therein.


 


SECTION 9. Intellectual Property.  Attached hereto as Schedule 9, in
proper form for filing with the United States Patent and Trademark Office or
the United States Copyright Office, as applicable, is a true and correct list
of each Grantor’s (i) registrations for and applications for registration
of Copyrights in the United States Copyright Office, (ii) material
Copyright Licenses, (iii) issued Patents and applications for Patents in
the United States Patent and Trademark Office and (iv) registrations for
and 


 


2

















 


applications
for registration of Trademarks in the United States Patent and Trademark
Office, in each case, including the name of the registered owner or owner of the
application, registration or application number, expiration date (if
applicable) and a brief description thereof and with respect to (ii) above,
the name and address of the licensor and the licensee.


 


SECTION 10. Commercial Tort Claims.  Set forth on Schedule 10 is a
true and correct list of claims that exceed $5,000,000 in reasonable estimated
value arising in tort with respect to which any Grantor is claimant and which
arose in the course of such Grantor’s business, including a brief description
thereof.


 


SECTION 11. Deposit Accounts, Securities Accounts
and Commodities Accounts.  Attached
hereto as Schedule 11 is a true and correct list of Deposit
Accounts, Securities Accounts and Commodities Accounts maintained by each
Grantor, including the name and address of the depositary institution,
Securities Intermediary or Commodities Intermediary holding the account, as
applicable, the type of account, the account number , whether such account is
required to be subject to a Control Agreement pursuant to the Credit Agreement
and, if not, why it is not so required.


 


SECTION 12. Vessels.  Set forth below is a list of all vessels with
a fair market value in excess of $250,000 (provided that in the case the
aggregate fair market value of all vessels owned by the Grantors does not
exceed $2,500,000, no such listing is required) owned by each Grantor including
(i) the name, official number, weight, length, width and height,
regulation patent number, radio call letters and flag country of each such
vessel, (ii) the name of the Grantor that owns such vessel and (iii) the
fair market value apportioned to such vessel:


 


SECTION 13. Aircraft.  Set forth below is a list of all aircraft
with a fair market value in excess of $250,000 (provided that in the
case the aggregate fair market value of all aircraft owned by the Grantors does
not exceed $2,500,000, no such listing is required) owned by each Grantor
including (i) the name, manufacturer, model, serial number and federal
registration number of each such aircraft (including each airframe, engine and
propeller), (ii) the name of the Grantor that owns such aircraft
(including each airframe, engine and propeller) and (iii) the fair market
value apportioned to such aircraft (including each airframe, engine and
propeller):


 


3

















 


IN WITNESS WHEREOF, the undersigned has duly
executed this certificate on this        
day of [     ], 2010.


 


 


	
   

  	
  SMURFIT-STONE
  CONTAINER CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


Schedule 1


 


Names


 


	
  Grantor’s Exact Legal Name

  	
   

  	
  Former Names

  (including date of change)

  	
   

  	
  Other Names

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule 2A


 


Jurisdiction of Formation, Organizational
Identification Number,

Chief Executive Office Address and Federal Taxpayer Identification Number


 


	
  Grantor(1)

  	
   

  	
  Jurisdiction

  of Formation

  	
   

  	
  Form of

  Organization

  	
   

  	
  Organizational

  Identification

  Number (if

  any)

  	
   

  	
  Chief Executive

  Office Address

  (including county)

  	
   

  	
  Federal

  Taxpayer

  Identification

  Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






(1)  Indicate
with an asterisk (“*”) each Grantor that is a Transmitting Utility as defined
under the UCC.


 

















 


Schedule 2B


 


Other Addresses (Books or Records)


 


	
  Grantor

  	
   

  	
  Other Locations where Books or Records

  relating to the Collateral are Maintained

  (including county)(1)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 






(1)  Indicate
with an asterisk (“*”) each location at which Chattel Paper, if any, is kept.


 

















 


Schedule 2C


 


Other Addresses (Collateral)


 


	
  Grantor

  	
   

  	
  Other Locations where Inventory
  or Equipment is

  Maintained

  (including county)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule 2D


 


Other Addresses


 


	
  Grantor

  	
   

  	
  Other Places of Business

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule 5


 


UCC Filings


 


	
  Grantor

  	
   

  	
  UCC Filing Office

  

  

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 






 


 


 












 


Schedule 6


 


Equity Interests


 


	
  Grantor

  	
   

  	
  Issuer(1)

  	
   

  	
  Certificate

  Number

  	
   

  	
  Number of

  Equity Interests

  	
   

  	
  Percentage of

  Ownership

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Indicate
with an “*” each limited liability company or limited partnership that has not
opted into Article 8 of the UCC.


 

















 


Schedule 7


 


Debt Instruments


 


	
  Grantor

  	
   

  	
  Creditor

  	
   

  	
  Debtor

  	
   

  	
  Type

  	
   

  	
  Amount

  

  

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule 8


 


Mortgaged Property and Mortgage Filings


 


	
  Owner

  	
   

  	
  Record Owner

  	
   

  	
  Address

  	
   

  	
  County Recorder’s Office

  

  

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule 9


 


Intellectual Property


 


(i)                                     Registered Copyrights


 


	
  Registered Owner

  	
   

  	
  Title

  	
   

  	
  Registration

  Number

  	
   

  	
  Expiration

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


(ii)                                  Copyright Applications


 


	
  Owner

  	
   

  	
  Title

  	
   

  	
  Application

  Number

  	
   

  	
  Filing

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


(iii)                               Copyright Licenses


 


	
  Licensor

  Name and

  Address

  	
   

  	
  Licensee

  Name and

  Address

  	
   

  	
  Date of

  License/

  Sublicense

  	
   

  	
  Registered Owner

  	
   

  	
  Title

  	
   

  	
  Registration

  Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


(iv)                              Registered Patents


 


	
  Registered Owner

  	
   

  	
  Type

  	
   

  	
  Registration

  Number

  	
   

  	
  Expiration

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


(v)                                 Patent
Applications


 


	
  Owner

  	
   

  	
  Type

  	
   

  	
  Application

  Number

  	
   

  	
  Filing Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


(vi)                              Registered Trademarks


 


	
  Registered
  Owner

  	
   

  	
  Mark

  	
   

  	
  Registration

  Number

  	
   

  	
  Expiration

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


(vii)                           Trademark Applications


 


	
  Owner

  	
   

  	
  Mark

  	
   

  	
  Application

  Number

  	
   

  	
  Filing

  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule 10


 


Commercial Tort Claims


 


	
  Grantor/Plaintiff

  	
   

  	
  Defendant

  	
   

  	
  Description

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


Schedule 11


 


Deposit Accounts


 


	
  Name
  and Address

  of Depositary Institution

  	
   

  	
  Type of Account

  	
   

  	
  Account Number

  	
   

  	
  Subject to Control

  Agreement (Reason

  for exclusion)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Securities Accounts


 


	
  Name
  and Address

  of Intermediary Institution

  	
   

  	
  Type of Account

  	
   

  	
  Account Number

  	
   

  	
  Subject to Control

  Agreement (Reason

  for exclusion)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Commodities Accounts


 


	
  Name
  and Address

  of Intermediary Institution

  	
   

  	
  Type of Account

  	
   

  	
  Account Number

  	
   

  	
  Subject to Control

  Agreement (Reason

  for exclusion)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 

















 


EXHIBIT G


 


FORM OF
NOTICE OF BORROWING(1)


 


	
   

  	
  Date: 

  	
   

  



 


JPMorgan Chase Bank, N.A.,
   as Administrative Agent for the
financial
   institutions party to the Credit
Agreement
   referred to below

Loan Agency Services Group


1111 Fannin Street, 10th Floor


Houston, Texas 77002


Attention: 
Christian Cho and Sylvia Guttierrez


Fax: 
(713) 427-6307


 


With a copy to:


 


JPMorgan Chase Bank, N.A.


383 Madison Avenue, 24th Floor


New York, NY,


Attention: 
Peter S. Predun


Fax: 
(212) 270-5100


 


Ladies and Gentlemen:


 


The undersigned refers to the Credit
Agreement, dated as of [          ], 2010
(the “Credit Agreement”), among Smurfit-Stone Container Corporation,
Smurfit-Stone Container Enterprises, Inc., the Lenders party thereto and
JPMorgan Chase Bank N.A., as Administrative Agent and hereby gives you
irrevocable notice pursuant to Section 2.03 of the Credit Agreement
that the undersigned hereby requests a Borrowing under the Credit Agreement,
and in that connection sets forth below the information relating to such
Borrowing (the “Proposed Borrowing”) as required by Section 2.03
of the Credit Agreement (capitalized terms used herein and not defined herein
have the meaning assigned to such terms in the Credit Agreement):


 


(viii)                        The Business Day of the
Proposed Borrowing is                ,
        .


 






(1) This
Irrevocable notice must be received by the Administrative Agent not later than
11:00 a.m. (New York City time) (i) at least three Business Days in
advance of any Eurodollar Borrowing (or such shorter period of time as may be
agreed to by the Administrative Agent) and (ii) in the case of an ABR
Borrowing, on the day of the proposed Borrowing.


 

















 


(ix)          The aggregate principal amount of the Proposed Borrowing is
$                   (2).


 


(x)           The Proposed Borrowing is to consist of a [Term Loan]
[Other Term Loan].


 


(xi)          The Type of the Proposed Borrowing is [Eurodollar] [ABR].


 


(xii)         In the case of a Eurodollar Borrowing, the Interest Period
with respect thereto is                      .


 


(xiii)        The account number and location to which
funds are to be disbursed is                                                                                     .


 


The undersigned hereby certifies that the
following statements are true on the date hereof, and will be true on the date
of the Proposed Borrowing:


 


(A) the representations and warranties
set forth in Article III of the Credit Agreement and in the other
Loan Documents are and will be true and correct in all material respects on and
as of the date of the Proposed Borrowing with the same effect as though made on
and as of such date, except to the extent that such representations and
warranties expressly relate to an earlier date, in which case they were true
and correct in all material respects as of such earlier date; and


 


(B) At the time of and immediately after
the Proposed Borrowing, no Default or Event of Default has occurred and is
continuing.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [SMURFIT-STONE
  CONTAINER ENTERPRISES, INC.] [SMURFIT-STONE CONTAINER CORPORATION](3)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 






(2)  Each
Borrowing shall be in an amount equal to an integral multiple of $1,000,000 and
shall not be in an amount less than $1,000,000.


 


(3)  Select
as applicable.


 

















 


EXHIBIT H


 


FORM OF NOTE


 


	
  $[        ]

  	
  New York, New York

  
	
   

  	
   

  
	
   

  	
  [               ]

  



 


FOR VALUE RECEIVED, the undersigned,
Smurfit-Stone Container Corporation, formerly known as Smurfit-Stone Container
Enterprises, Inc., a Delaware corporation (the “Borrower”), hereby
promises to pay to the order of [                          ]
(the “Lender”) or its registered assigns, at the offices of JPMorgan
Chase Bank, N.A., as Administrative Agent (such term, and each other
capitalized term used but not defined herein, having the meaning assigned to it
in the Credit Agreement dated as of [         
], 2010, among Smurfit-Stone Container Corporation, Smurfit-Stone
Container Enterprises, Inc., the Lenders party thereto and JPMorgan Chase
Bank N.A., as Administrative Agent, as the same may be amended, restated,
supplemented or otherwise modified from time to time (the “Credit Agreement”)),
located at 1111 Fannin Street, 10th Floor, Houston, Texas 77002, on the Term
Loan Maturity Date, in lawful money of the United States of America in
immediately available funds, the lesser of (i) the principal sum of
$[      ] and (ii) the aggregate unpaid
principal amount of all Term Loans made to the Borrower by the Lender pursuant
to the Credit Agreement, and to pay interest from the date hereof on the
principal amount hereof from time to time outstanding, at the rate or rates per
annum and payable on the dates provided in the Credit Agreement.


 


The Borrower promises to pay interest, on
demand, on any overdue principal and, to the extent permitted by law, overdue
interest from their due dates at the rate or rates as provided in the Credit
Agreement.


 


The Borrower hereby waives diligence,
presentment, demand, protest and notice of any kind whatsoever.  The nonexercise by the holder hereof of any
of its rights hereunder in any particular instance shall not constitute a
waiver thereof in that or any subsequent instance.


 


All borrowings evidenced by this Note and all
payments and prepayments of the principal hereof and interest hereon and the
respective dates thereof shall be endorsed by the holder hereof on the schedule
attached hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof, or otherwise recorded by such holder
in its internal records; provided, however, that the failure of
the holder hereof to make such a notation or any error in such notation shall
not affect the obligations of the Borrower under this Note.


 


This Note is one of the promissory notes
referred to in the Credit Agreement, that, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for optional and mandatory prepayment of the principal hereof
prior to the maturity hereof and for the amendment or waiver of certain
provisions of the Credit Agreement, all upon the terms and conditions therein
specified.  THIS NOTE SHALL BE GOVERNED
BY, AND CONSTRUED IN


 

















 


ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF
LAWS RULES THEREOF.


 


	
   

  	
  SMURFIT-STONE
  CONTAINER CORPORATION,

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


2
















 


LOANS AND PAYMENTS


 


	
  Date

  	
   

  	
  Amount of Loan

  	
   

  	
  Maturity

  Date

  	
   

  	
  Payments of

  Principal/Interest

  	
   

  	
  Principal

  Balance of

  Note

  	
   

  	
  Name of

  Person

  Making the

  Notation

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


3

















 


EXHIBIT I


 


FORM OF


 


NOTICE OF
CONVERSION OR CONTINUATION(1)


 


	
   

  	
  Date:

  	
   

  



 


JPMorgan Chase Bank, N.A.,
   as Administrative Agent for the
financial
   institutions party to the Credit
Agreement
   referred to below

Loan Agency Services Group


1111 Fannin Street, 10th Floor


Houston, Texas 77002


Attention: 
Christian Cho and Sylvia Guttierrez


Fax: 
(713) 427-6307


 


With a copy to:


 


JPMorgan Chase Bank, N.A.


383 Madison Avenue, 24th Floor


New York, NY,


Attention: 
Peter S. Predun


Fax: 
(212) 270-5100


 


Ladies and Gentlemen:


 


Reference is made to the Credit Agreement
dated as of [          ], 2010 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Smurfit-Stone Container Corporation, Smurfit-Stone
Container Enterprises, Inc., the Lenders party thereto and JPMorgan Chase
Bank N.A., as Administrative Agent. 
Capitalized terms used herein and not otherwise defined herein shall
have the meanings set forth in the Credit Agreement.  The undersigned hereby gives notice pursuant
to Section 2.10 of the Credit Agreement that it (a) elects to
convert Eurodollar Borrowings into ABR Borrowings, (b) elects to convert
ABR Borrowings into Eurodollar Borrowings, (c) elects to continue
Eurodollar Borrowings for an additional Interest Period, (d) elects to
convert the Interest Period with respect to Eurodollar Borrowings into another
permissible Interest Period, and in that connection sets forth below the terms
on which such conversion or continuation is requested to be made:


 






(1)  This notice must
be received by the Administrative Agent not later than 11:00 a.m. (New York
City time) (i) at least three Business Days in advance of the date of
conversion or continuation, if the Loans are to be converted into or continued
as Eurodollar Borrowings or to convert the Interest Period with regard to
Eurodollar Borrowings into another permissible Interest Period and (ii) on the
same Business Day, if the Loans are to be converted into ABR Borrowings.


 

















 


	
  (i)

  	
   

  	
  Date
  of conversion or continuation (which date is a Business Day and in the case
  of a conversion from or continuation of Eurodollar Borrowings, which date is
  the last day of the Interest Period therefor or subject to amounts due under Section 2.15:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  Aggregate
  amount and class of Eurodollar Borrowings or ABR Borrowings(2): 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  Nature
  of the proposed conversion or continuation:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (iv)

  	
   

  	
  Interest
  Period (if the Loans are to be converted into or continued as Eurodollar
  Borrowings(3)):

  
	
   

  	
   

  	
   

  



 


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SMURFIT-STONE
  CONTAINER CORPORATION,

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 










(2) If less than all the
outstanding principal amount of any Borrowing shall be converted or continued,
the aggregate principal amount of such Borrowing converted or continued shall
be in an integral multiple of $1,000,000 and not less than $10,000,000.


 


(3) Which shall be subject to the definition of
“Interest Period” set forth in the Credit Agreement.


 


2





















 


EXHIBIT J-1


 


FORM OF CLOSING DATE OPINION OF U.S. COUNSEL


 





















 


Exhibit J-1


 


February   , 2010


 


JPMorgan
Chase Bank, N.A.


as
Administrative Agent


270
Park Avenue


New
York, NY  10017


 


The
Lenders party to the Credit Agreement referred to below


 


Ladies
and Gentlemen:


 


We
have acted as special counsel to Smurfit-Stone Container Corporation, a
Delaware corporation (“SSCC”), and Smurfit-Stone Container Enterprises, Inc.,
a Delaware corporation (the “Borrower”), in connection with the
execution and delivery of the Credit Agreement dated as of the date hereof (the
“Credit Agreement”) by and among SSCC, the Borrower, JPMorgan Chase
Bank, N.A., a New York banking corporation, as Administrative Agent, and the
financial institutions party thereto (the “Lenders”).  Capitalized terms used herein, but not otherwise
defined herein, shall have the meanings ascribed to such terms in the Credit
Agreement.  SSCC and the Borrower are
individually referred to herein as a “Loan Party” and collectively as
the “Loan Parties”.  This opinion
letter is delivered to you at our clients’ request pursuant to Section 4.01(b) of
the Credit Agreement.


 


In
rendering the opinions set forth herein, we have examined the Credit Agreement
and such other agreements, instruments and documents and such questions of law
as we have deemed necessary or appropriate to enable us to render the opinions
expressed below.  Additionally, we have
examined originals or copies, certified to our satisfaction, of such
certificates of public officials and officers and representatives of the Loan
Parties and we have made such inquiries of officers and representatives of the
Loan Parties as we have deemed relevant or necessary as the basis for the
opinions set forth herein.


 


In
rendering the opinions expressed below, we have, with your consent, assumed the
legal capacity of all natural persons executing documents, that the signatures
of persons signing all documents in connection with which this opinion letter
is rendered are genuine, all documents submitted to us as originals or
duplicate originals are authentic and all documents submitted to us as copies,
whether certified or not, conform to authentic original documents.  In giving the opinions expressed below, we
have assumed with your permission and without independent investigation or
verification of any kind the correctness of the opinions set forth in the
opinion of Craig A. Hunt, Esq., Senior 


 


2





















 


Vice President, Secretary and General Counsel of the Loan Parties, with
respect to the Loan Parties, dated the date hereof and delivered to you
pursuant to Section 4.01(b) of the Credit Agreement, our opinions
being subject to the assumptions, qualifications and limitations set forth in
such opinion.  Additionally, we have,
with your consent, assumed and relied upon, the following:


 


(a)           the
accuracy and completeness of all certificates and other statements, documents,
records, financial statements and papers reviewed by us, and the accuracy and
completeness of all representations, warranties, schedules and exhibits
contained in the Credit Agreement, in each case with respect to the factual
matters set forth therein;


 


(b)           all
parties to the documents reviewed by us are duly organized, validly existing
and in good standing under the laws of their respective jurisdictions of
incorporation or formation and under the laws of all jurisdictions where they
are conducting their businesses or otherwise required to be so qualified, and
have full power and authority to execute, deliver and perform under such
documents and all such documents have been duly authorized, executed and
delivered by such parties; and


 


(c)           because
a claimant bears the burden of proof required to support its claims, the
Administrative Agent and the Lenders will undertake the effort and expense
necessary to fully present their claims in the prosecution of any right or
remedy accorded the Administrative Agent or the Lenders under the Credit
Agreement.


 


Whenever
our opinion with respect to the existence or absence of facts is indicated to
be based on our knowledge or awareness, we are referring to the actual present
knowledge of the particular Winston & Strawn LLP attorneys who have
represented the Loan Parties during the course of our limited representation of
the Loan Parties in connection with the Credit Agreement.  Except as expressly set forth herein, we have
not undertaken any independent investigation, examination or inquiry to
determine the existence or absence of any facts (and have not caused the review
of any court file or indices) and no inference as to our knowledge concerning
any facts should be drawn as a result of the limited representation undertaken
by us.


 


Based
upon the foregoing and subject to the qualifications, limitations and comments
stated herein, we are of the opinion that:


 


1.             The
Credit Agreement constitutes the legal, valid and binding obligation of each
Loan Party enforceable against such Loan Party in accordance with its terms.


 


2.             Each
Loan Party’s execution and delivery of the Credit Agreement and its performance
of its obligations thereunder will not constitute a violation by such Loan
Party of any applicable provision of any existing State of New York or United
States federal statutory law or governmental regulation covered by this letter,
or violate any existing order, writ, injunction or decree of any court or
governmental instrumentality applicable to such Loan Party of which we have
knowledge.


 


3.             No Loan Party is presently required
to obtain any consent, approval, authorization or order of the State of New
York or any United States federal court or 


 


3





















 


governmental agency in connection with the execution, delivery and
performance by the Loan Parties of the Credit Agreement, except for: (a) obtained
or made on or prior to the date hereof; (b) actions or filings required in
connection with ordinary course conduct by the Loan Parties of their respective
businesses and ownership or operation by the Loan Parties of their respective
assets; and (c) actions and filings required under the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, any state “blue
sky” law or related regulation and the Trust Indenture Act of 1939, as amended
(as to which matters we express no opinion).


 


4.             None
of the Loan Parties is an “investment company” registered or required to be
registered under the Investment Company Act of 1940, as amended, or, to our
knowledge, controlled by such a company.


 


5.             None
of the Loan Parties is a “holding company” or a “subsidiary company” of a “holding
company” or an “affiliate” of a “holding company” within the meaning of the
Public Utility Holding Company Act of 1935, as amended.


 


6.             To our knowledge, no legal or
governmental proceedings are pending or overtly threatened to which any Loan Party
is a party or to which any of their respective properties or assets are subject
that challenges the validity or enforceability of the Credit Agreement.


 


The
opinions as expressed herein are subject to the following qualifications,
limitations and comments:


 


(a)           the
enforceability of the Credit Agreement and the obligations of the Loan Parties
thereunder and the availability of certain rights and remedial provisions
provided for in the Credit Agreement are subject to the effect of bankruptcy,
fraudulent conveyance or transfer, insolvency, reorganization, arrangement,
liquidation, conservatorship and moratorium laws and are subject to limitations
imposed by other laws and judicial decisions relating to or affecting the
rights of creditors or secured creditors generally, and general principles of
equity (regardless of whether enforcement is considered in proceedings at law
or in equity) upon the availability of injunctive relief or other equitable
remedies, including, without limitation, where: (i) the breach of such
covenants or provisions imposes restrictions or burdens upon a debtor and it
cannot be demonstrated that the enforcement of such remedies, restrictions or
burdens is reasonably necessary for the protection of a creditor; (ii) a
creditor’s enforcement of such remedies, covenants or provisions under the
circumstances, or the manner of such enforcement, would violate such creditor’s
implied covenant of good faith and fair dealing, or would be commercially
unreasonable; or (iii) a court having jurisdiction finds that such
remedies, covenants or provisions were, at the time made, or are in
application, unconscionable as a matter of law or contrary to public policy;


 


(b)           as to our
opinions set forth in paragraph 1 hereof, we express no opinion as to the enforceability
of cumulative remedies to the extent such cumulative remedies purport to or
would have the effect of compensating the party entitled to the benefits
thereof in amounts in excess of the actual loss suffered by such party;


 


4





















 


(c)           we
express no opinion as to the creation or perfection of any security interests;


 


(d)           provisions in the
Credit Agreement deemed to impose the payment of interest on interest may be
unenforceable, void or voidable under applicable law;


 


(e)           we express no opinion as to the validity, binding effect
or enforceability of any indemnification provisions of the Credit Agreement;


 


(f)            requirements in
the Credit Agreement specifying that provisions thereof may only be waived in
writing may not be valid, binding or enforceable to the extent that an oral
agreement or an implied agreement by trade practice or course of conduct has
been created modifying any provision of such documents;


 


(g)           we express no opinion with respect to the validity,
binding effect or enforceability of any provision of the Credit Agreement which
purports to authorize any Person to sign or file documents without the
signature of the Loan Parties;


 


(h)           we express no
opinion with respect to the validity, binding effect or enforceability of any
purported waiver, release or disclaimer under the Credit Agreement relating to (i) statutory
or equitable rights and defenses of the Loan Parties which are not subject to
waiver, release or disclaimer, or (ii) rights or claims of, or duties
owing to, the Loan Parties to the extent limited by applicable law, or to the
extent such rights, claims and duties otherwise exist as a matter of law except
to the extent the Loan Parties have effectively so waived, released or
disclaimed such rights, claims or duties in accordance with applicable law;


 


(i)            we express no opinion as to the severability of any
provision of the Credit Agreement;


 


(j)            certain other rights, remedies and waivers contained in
the Credit Agreement may be rendered ineffective, or limited by, applicable
laws, rules, regulations, constitutional requirements or judicial decisions
governing such provisions, but such laws, rules, regulations, constitutional
limitations and judicial decisions do not, in our opinion (subject to the other
comments and qualifications set forth in this opinion letter), make the
remedies afforded by the Credit Agreement inadequate for the practical
realization of the principal benefits intended to be provided, although they
may result in a delay thereof (and we express no opinion with respect to the
economic consequences of any such delay);


 


(k)           we express no opinion with respect to the applicability or
effect of federal or state anti-trust, unfair competition, tax, pension and
employee benefit, environmental, land use and subdivision, racketeering (e.g.,
RICO), health and safety (e.g., OSHA), labor, (except to the extent set forth
in paragraphs 4 and 5 above) securities and “blue sky” laws and regulations;


 


(l)            we express no
opinion with respect to the applicability or effect of the statutes and
ordinances, the administrative decisions and the rules and regulations of


 


5





















 


counties, towns, municipalities and special political subdivisions and
judicial decisions to the extent that they deal with any of the foregoing;


 


(m)          we express no opinion with respect to the validity, binding
effect or enforceability of any provision of the Credit Agreement purporting to
establish evidentiary standards or a consent to jurisdiction and venue or
waiving service of process or demand or notice and hearing or constitutional
rights (including a jury trial) or purporting to eliminate any obligation to
marshall assets;


 


(n)           we express no opinion with respect to any provisions of
the Credit Agreement purporting to appoint any Person as attorney-in-fact or
agent for the Loan Parties; and


 


(o)           we express no
opinion as to the effect of the legal or regulatory status or the nature of the
business of the Administrative Agent or any Lender on our opinions.


 


The
opinions expressed herein are based upon and are limited to the laws of the
State of New York and the United States of America, and we express no opinion
with respect to the laws of any other state, jurisdiction or political subdivision.  The opinions expressed herein based on the
laws of the State of New York and the United States of America are limited to
the laws generally applicable in transactions of the type covered by the Credit
Agreement.


 


Our
opinions set forth in this letter are based upon the facts in existence and
laws in effect on the date hereof and we expressly disclaim any obligation to
update our opinions herein, regardless of whether changes in such facts or laws
come to our attention after the delivery hereof.


 


This opinion letter is solely for the benefit of the addressees hereof
in connection with the execution and delivery of the Credit Agreement.  No attorney-client relationship exists or has
existed by reason of our preparation, execution and delivery of this opinion
letter to any addressee hereof or any other person or entity except for the
Loan Parties. In permitting reliance hereon by any person or entity other than
the Loan Parties, we are not acting as counsel for such other person or entity
and have not assumed and are not assuming any responsibility to advise such
other person or entity with respect to the adequacy of this opinion letter for
its purposes.  This opinion letter may
not be relied upon in any manner by any other person and may not be disclosed,
quoted, filed with a governmental agency or otherwise referred to without our
prior written consent; provided that any Person that subsequently
becomes a Lender in accordance with Section 9.04(b) of the Credit
Agreement may rely on this opinion letter as of the date of this opinion letter
as if it were addressed to such Person and delivered on the date hereof.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  Winston &
  Strawn LLP

  



 


6
















 


EXHIBIT J-2


 


FORM OF CLOSING DATE OPINION OF CRAIG A. HUNT


 

















 


Exhibit J-2


 


February   ,
2010


 


JPMorgan
Chase Bank, N.A.,


as
Administrative Agent


270
Park Avenue


New
York, NY  10017


 


The
Lenders party to the Credit Agreement referred to below


 


Ladies
and Gentlemen:


 


I am general counsel to Smurfit-Stone Container Corporation, a Delaware
corporation (“SSCC”), and Smurfit-Stone Container Enterprises, Inc.,
a Delaware corporation (the “Borrower”). 
SSCC and the Borrower are individually referred to herein as a “Loan
Party” and collectively as the “Loan Parties”.  This opinion is delivered to you pursuant to Section 4.01(b) of
the Credit Agreement dated as of the date hereof (the “Credit Agreement”)
by and among SSCC, the Borrower, JPMorgan Chase Bank, N.A., a New York banking
corporation, as Administrative Agent, and the financial institutions party
thereto (the “Lenders”).  Unless
otherwise indicated, capitalized terms used herein but not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.


 


In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of the following:


 


(i)            the certificate of
incorporation and bylaws of SSCC and the Borrower;


 


(ii)           resolutions of the
board of directors of SSCC and the Borrower; and


 


(iii)          the Credit
Agreement.


 


In addition, I have obtained and relied without independent
investigation upon such certificates and assurances from public officials as I
have deemed necessary or appropriate.  In
my examinations, I have assumed (a) the genuineness of all signatures of


 

















 


all
parties other than the Loan Parties, the conformity to original documents of
all documents submitted to me as copies or drafts and the authenticity of such
originals of such latter documents, (b) as to all parties other than the
Loan Parties, the due completion, execution, acknowledgment as indicated
thereon and delivery of documents recited herein and therein and validity and
enforceability against all parties thereto other than the Loan Parties and (c) that
each Person (other than the Loan Parties) which is a party to the Credit
Agreement has full power, authority and legal right, under its charter and
other governing documents, corporate or other entity legislation and the laws
of its state of formation, to perform its respective obligations under the
Credit Agreement.


 


I have investigated such questions of law for the purpose of rendering
this opinion as I have deemed necessary. 
I am opining herein as to United States federal laws, the General
Corporation Law of the State of Delaware and the laws of the State of Missouri
only, in each case as having effect at the date hereof.


 


On the basis of the foregoing, and in reliance thereon, and subject to
the limitations, qualifications and exceptions set forth herein, I am of the
opinion that as of the date hereof:


 


1.             Each of SSCC and the Borrower is a corporation duly
incorporated, validly existing and in good standing under the laws of its
respective state of incorporation.  Each
of the Loan Parties is qualified to do business and is in good standing in each
jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification necessary,
except, as to any Loan Party, for such failures to be qualified and in good
standing, if any, which would not have a material adverse effect on the
business, properties or operations of such Loan Party.  Each Loan Party has all requisite corporate
power and authority to own and operate its properties and to carry on its
business as now conducted and to execute, deliver and perform its obligations
under the Credit Agreement to which it is a party.  The execution, delivery and performance by
each Loan Party of the Credit Agreement have been duly authorized by all
necessary corporate action on the part of such Loan Party and such documents
have been duly executed and delivered by each such Loan Party.


 


2.             Each Loan Party’s execution and delivery of the Credit
Agreement and its performance of its obligations under the Credit Agreement
will not (i) constitute a violation by such Loan Party of any applicable
provision of the General Corporation Law of the State of Delaware or United
States federal statutory law or governmental regulation, or violate any
existing order, writ, injunction or decree of any court or governmental
instrumentality applicable to such Loan Party of which I have knowledge; (ii) conflict
with or result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or (other than pursuant to the
Loan Documents) result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of any Loan Party
pursuant to the terms of any material note, deed of trust, license, franchise,
permit, agreement or other instrument or obligation to which such Loan Party is
a party, or by which such Loan Party or any of its properties (whether now
owned or hereafter acquired) may be bound or affected 


 


2

















 


(except that I express no opinion with respect to breaches or defaults
under cross-default or cross-acceleration provisions or with respect to
financial covenants or tests) or (iii) violate any existing provisions of
the certificate of incorporation or by-laws of the Loan Parties.


 


3.             Other than the Bankruptcy Proceedings and the matters
disclosed on Schedule 3.09 to the Credit Agreement, there are no causes of
action, claims, proceedings or investigations pending, or to the best of my
knowledge, threatened against any of the Loan Parties, relating to or affecting
any of the Loan Parties (or any of their respective officers or directors in
connection with the business or affairs of such Loan Party), before any court
or governmental authority, which could reasonably be expected to have a
Material Adverse Effect.  Other than the
commencement of the Bankruptcy Proceedings, there are no causes of action,
claims, proceedings or investigations pending or, to the best of my knowledge,
threatened, against any of the Loan Parties challenging the validity or
propriety of the transactions contemplated by the Credit Agreement or in which
an injunction or order has been entered preventing any of the transactions
contemplated by the Credit Agreement. 
Other than those of the Bankruptcy Courts, none of the Loan Parties is
subject to any judgment, order or decree which has a reasonable probability of
having a material adverse effect on the business, properties or operations of
the Loan Parties taken as a whole.


 


4.             None of the Loan Parties is an “investment company”, or
a company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended.


 


5.             None of the Loan Parties is a “holding company”, or a “subsidiary
company” of a “holding company”, or an “affiliate” of a “holding company” or of
a “subsidiary company” of a “holding company”, as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended, or a “public utility”,
as such term is defined in the Federal Power Act, as amended.


 


This opinion is solely for your benefit in connection with the
transactions contemplated by the Credit Agreement and is not to be used,
circulated, quoted or otherwise referred to for any other purpose without my
prior written consent, provided that Winston & Strawn LLP and any
Person that subsequently becomes a Lender in accordance with Section 9.04(b) of
the Credit Agreement may rely on this opinion as of the date of this opinion as
if it were addressed to such Person and delivered on the date hereof.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Craig
  A. Hunt

  
	
   

  	
  General
  Counsel

  



 


3