USE, ALL OF THE
TRADEMARKS, SERVICE MARKS, TRADE NAMES, COPYRIGHTS, PATENTS, PATENT RIGHTS,
FRANCHISES, LICENSES AND OTHER RIGHTS THAT ARE REASONABLY NECESSARY FOR THE
OPERATION OF THEIR RESPECTIVE BUSINESSES, WITHOUT CONFLICT WITH THE RIGHTS OF
ANY OTHER PERSON EXCEPT FOR THOSE CONFLICTS WHICH COULD NOT REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
TO THE BEST KNOWLEDGE OF THE
BORROWER, NO SLOGAN OR OTHER ADVERTISING DEVICE, PRODUCT, PROCESS, METHOD,
SUBSTANCE, PART OR OTHER MATERIAL NOW EMPLOYED, OR NOW CONTEMPLATED TO BE
EMPLOYED, BY THE BORROWER OR ANY SUBSIDIARY INFRINGES IN ANY MATERIAL RESPECT
UPON ANY RIGHTS HELD BY ANY OTHER PERSON.
SECTION 5.18
PURPOSE OF LOANS AND LETTERS OF CREDIT.
THE PROCEEDS OF THE TERM
B LOANS AND ANY REVOLVING LOANS MADE ON THE CLOSING DATE AND OF ANY TERM B LOANS
MADE AFTER THE INITIAL FUNDING OF THE TERM B LOANS ON THE CLOSING DATE AND
DURING THE AVAILABILITY PERIOD FOR TERM B LOANS WILL BE USED SOLELY TO EFFECT
THE MERGER AND THE REFINANCING AND TO PAY FEES AND EXPENSES INCURRED IN
CONNECTION WITH THE TRANSACTION.
THE PROCEEDS OF THE REVOLVING LOANS, SWING
LINE LOANS AND ANY TERM B LOANS COMPRISING PART OF A FACILITIES INCREASE MADE
AFTER THE CLOSING DATE WILL BE USED SOLELY TO PROVIDE FOR THE WORKING CAPITAL
REQUIREMENTS OF THE BORROWER AND ITS SUBSIDIARIES AND FOR THE GENERAL CORPORATE
PURPOSES OF THE BORROWER AND ITS SUBSIDIARIES, INCLUDING PERMITTED
ACQUISITIONS.
THE LETTERS OF CREDIT SHALL BE USED ONLY FOR OR IN CONNECTION
WITH APPEAL BONDS, REIMBURSEMENT OBLIGATIONS ARISING IN CONNECTION WITH SURETY
AND RECLAMATION BONDS, REINSURANCE, DOMESTIC OR INTERNATIONAL TRADE TRANSACTIONS
AND OTHER OBLIGATIONS RELATING TO TRANSACTIONS ENTERED INTO BY THE BORROWER AND
ITS SUBSIDIARIES IN THE ORDINARY COURSE OF BUSINESS.
SECTION 5.19
LABOR MATTERS.
THERE ARE NO STRIKES AGAINST HOLDINGS OR ANY OF
ITS SUBSIDIARIES, OTHER THAN ANY STRIKES THAT COULD NOT REASONABLY BE EXPECTED
TO RESULT IN A MATERIAL ADVERSE
87
EFFECT.
ALL PAYMENTS DUE FROM HOLDINGS OR ANY OF ITS SUBSIDIARIES, OR FOR WHICH
ANY CLAIM MAY BE MADE AGAINST HOLDINGS OR ANY OF ITS SUBSIDIARIES, ON ACCOUNT OF
WAGES AND EMPLOYEE HEALTH AND WELFARE INSURANCE AND OTHER BENEFITS HAVE BEEN
PAID OR ACCRUED AS A LIABILITY ON THE BOOKS OF HOLDINGS AND ITS SUBSIDIARIES, AS
APPLICABLE AND REQUIRED UNDER GAAP.
THE CONSUMMATION OF THE TRANSACTION 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 HOLDINGS OR ANY OF
ITS SUBSIDIARIES IS A PARTY OR BY WHICH HOLDINGS OR ANY OF ITS SUBSIDIARIES (OR
ANY PREDECESSOR) IS BOUND, OTHER THAN COLLECTIVE BARGAINING AGREEMENTS WHICH,
INDIVIDUALLY OR IN THE AGGREGATE, ARE NOT MATERIAL TO HOLDINGS AND ITS
SUBSIDIARIES TAKEN AS A WHOLE.
SECTION 5.20
SOLVENCY.
THE LOAN PARTIES ARE AND, AFTER CONSUMMATION OF THE
TRANSACTION, WILL BE SOLVENT.
SECTION 5.21
COLLATERAL DOCUMENTS.
(A)
ARTICLE 9 COLLATERAL.
EACH OF THE SECURITY AGREEMENT AND THE
PLEDGE AGREEMENT IS EFFECTIVE TO CREATE IN FAVOR OF THE COLLATERAL