EXHIBIT 10.38
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SUPREMEX INC.
as Borrower
and
MAIL-WELL I CORPORATION
and
INNOVA ENVELOPE INC.,
as Guarantors
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of November 15, 1996
U.S. $45,000,000 Term Loans A Facility
U.S. $20,000,000 Term Loans B Facility
Cdn. $10,000,000 Revolving Credit Loans Facility
BANQUE PARIBAS
as Agent
and
THE LENDERS NAMED HEREIN
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TABLE OF CONTENTS
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ARTICLE 1 - Definitions............................................................... 2
Section 1.1 Definitions........................................................ 2
Section 1.2 Other Definitional Provisions......................................21
Section 1.3 Accounting Terms and Determinations................................21
Section 1.4 Financial Covenants and Reporting..................................22
ARTICLE 2 - Loans 22
Section 2.1 Loans and Commitments..............................................22
Section 2.2 Notes..............................................................24
Section 2.3 Repayment of Loans.................................................25
Section 2.4 Interest...........................................................27
Section 2.5 Borrowing Procedure................................................27
Section 2.6 Optional Prepayments, Conversions and Continuations of Loans.......28
Section 2.7 Mandatory Prepayments..............................................28
Section 2.8 Minimum Amounts....................................................29
Section 2.9 Certain Notices....................................................29
Section 2.10 Use of Proceeds....................................................30
Section 2.11 Fees...............................................................31
Section 2.12 Computations.......................................................31
Section 2.13 Reduction or Termination of Revolving Credit Commitments...........32
Section 2.14 Letters of Credit..................................................32
Section 2.15 Bankers' Acceptances...............................................35
ARTICLE 3 - Payments..................................................................39
Section 3.1 Method of Payment..................................................39
Section 3.2 Pro Rata Treatment.................................................40
Section 3.3 Sharing of Payments, Etc...........................................41
Section 3.4 Non-Receipt of Funds by the Agent..................................41
Section 3.5 Withholding Taxes..................................................41
Section 3.6 Withholding Tax Exemption..........................................42
ARTICLE 4 - Yield Protection and Illegality...........................................43
Section 4.1 Additional Costs...................................................43
Section 4.2 Limitation on Types of Loans.......................................44
Section 4.3 Illegality.........................................................44
Section 4.4 Treatment of Affected Loans........................................45
Section 4.5 Compensation.......................................................45
Section 4.6 Capital Adequacy...................................................46
Section 4.7 Additional Interest on Eurodollar Loans............................46
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ARTICLE 5 - Security..................................................................47
Section 5.1 Collateral....................................................47
Section 5.2 Guaranties....................................................48
Section 5.3 New Subsidiaries..............................................48
Section 5.4 New Mortgaged Properties......................................49
Section 5.5 Release of Collateral.........................................49
Section 5.6 Setoff........................................................50
ARTICLE 6 - Conditions Precedent......................................................50
Section 6.1 Initial Extension of Credit...................................50
Section 6.2 All Extensions of Credit......................................55
Section 6.3 Term Loans B..................................................55
Section 6.4 Closing Certificates..........................................59
ARTICLE 7 - Representations and Warranties............................................60
Section 7.1 Corporate Existence...........................................60
Section 7.2 Financial Statements..........................................60
Section 7.3 Corporate Action; No Breach...................................61
Section 7.4 Operation of Business.........................................61
Section 7.5 Intellectual Property.........................................61
Section 7.6 Litigation and Judgments......................................61
Section 7.7 Rights in Properties; Liens...................................62
Section 7.8 Enforceability................................................62
Section 7.9 Approvals.....................................................62
Section 7.10 Debt..........................................................62
Section 7.11 Taxes.........................................................63
Section 7.12 Margin Securities.............................................63
Section 7.13 ERISA; Canadian Plans.........................................63
Section 7.14 Disclosure....................................................64
Section 7.15 Capitalization................................................64
Section 7.16 Agreements....................................................65
Section 7.17 Compliance with Laws..........................................65
Section 7.18 Investment Company Act........................................65
Section 7.19 Public Utility Holding Company Act............................65
Section 7.20 Environmental Matters.........................................65
Section 7.21 Labor Disputes and Acts of God................................66
Section 7.22 Bank Accounts.................................................67
Section 7.23 Outstanding Securities........................................67
Section 7.24 Subordination.................................................67
Section 7.25 Related Transactions Documents................................67
Section 7.26 Solvency......................................................68
Section 7.27 Employee Matters..............................................68
Section 7.28 Insurance.....................................................68
Section 7.29 No Default under Mail-Well Credit Agreement...................68
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ARTICLE 8 - Affirmative Covenants.....................................................68
ARTICLE 9 - Negative Covenants........................................................69
ARTICLE 10 - Financial Covenants......................................................69
ARTICLE 11 - Default..................................................................70
Section 11.1 Events of Default.............................................70
Section 11.2 Remedies......................................................73
Section 11.3 Cash Collateral...............................................74
Section 11.4 Performance by the Agent......................................74
Section 11.5 Judgment Currency.............................................74
ARTICLE 12 - The Agent................................................................75
Section 12.1 Appointment, Powers and Immunities............................75
Section 12.2 Rights of Agent as a Lender...................................75
Section 12.3 Defaults......................................................76
Section 12.4 INDEMNIFICATION...............................................76
Section 12.5 Independent Credit Decisions..................................77
Section 12.6 Several Commitments...........................................77
Section 12.7 Successor Agent...............................................77
ARTICLE 13 - Miscellaneous............................................................78
Section 13.1 Expenses......................................................78
Section 13.2 INDEMNIFICATION...............................................78
Section 13.3 Limitation of Liability.......................................79
Section 13.4 No Duty.......................................................80
Section 13.5 No Fiduciary Relationship.....................................80
Section 13.6 Equitable Relief..............................................80
Section 13.7 No Waiver; Cumulative Remedies................................80
Section 13.8 Successors and Assigns........................................81
Section 13.9 Survival......................................................85
Section 13.10 ENTIRE AGREEMENT..............................................85
Section 13.11 Amendments....................................................85
Section 13.12 Maximum Interest Rate.........................................86
Section 13.13 Notices.......................................................87
Section 13.14 GOVERNING LAW; SUBMISSION TO JURISDICTION;
SERVICE OF PROCESS............................................87
Section 13.15 Counterparts..................................................88
Section 13.16 Severability..................................................88
Section 13.17 Headings......................................................88
Section 13.18 Construction..................................................88
Section 13.19 Independence of Covenants.....................................88
Section 13.20 Confidentiality...............................................88
Section 13.21 WAIVER OF JURY TRIAL..........................................89
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Section 13.22 Approvals and Consent.........................................89
Section 13.23 Agent for Services of Process.................................89
Section 13.24 Assignment and Assumptions....................................89
Section 13.25 Amendment and Restatement.....................................90
Section 13.26 Supplements to Certain Schedules..............................90
Section 13.27 Intercreditor Agreements......................................90
INDEX TO EXHIBITS
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Exhibit Description of Exhibit Section
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A Form of Assignment and Acceptance 1.1
B Form of Revolving Credit Loans Note
C Form of Term Loans A Note 1.1 and 2.2
D Form of Term Loans B Note 1.1 and 2.2
E Form of Notice of Borrowings, Conversions,
Continuations or Prepayments 2.9
INDEX TO SCHEDULES
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Schedule Description of Schedule
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1.1(a) Mortgaged Properties
1.1(b) Permitted Liens
7.6 Litigation and Judgments
7.10 Existing Debt
7.11 Taxes
7.13 Plans
7.15 Capitalization; Options, Etc.
7.22 Bank Accounts
7.27 Employee Matters
7.28 Insurance
AMENDED AND RESTATED CREDIT AGREEMENT
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THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 15,
1996, is among SUPREMEX INC., a corporation incorporated under the Canada
Business Corporations Act (the "Borrower"), MAIL-WELL I CORPORATION, a Delaware
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corporation f/k/a Mail-Well Corporation ("Mail-Well"), INNOVA ENVELOPE INC., a
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corporation f/k/a Innova Envelope (1995) Inc. continued under the laws of the
Province of Ontario (Canada) ("Innova"), each of the banks or other lending
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institutions which is a party hereto (as evidenced by the signature pages of
this Agreement) or which may from time to time become a party hereto or any
successor or assignee thereof (individually, a "Lender" and, collectively, the
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"Lenders"), and BANQUE PARIBAS, a bank organized under the laws of France acting
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through its Houston agency, as agent for itself and the other Lenders (in such
capacity, together with its successors in such capacity, the "Agent").
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RECITALS:
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A. Mail-Well, Inc., a Delaware corporation f/k/a Mail-Well Holdings,
Inc. ("Holdings"), owns all of the issued and outstanding shares of capital
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stock of Mail-Well.
B. Mail-Well previously entered into that certain Second Amended and
Restated Credit Agreement dated as of July 31, 1995, by and among Mail-Well, the
Second Restatement Lenders (as defined herein) and the Mail-Well Agent (as
defined herein) (as amended by that certain First Amendment to Second Amended
and Restated Credit Agreement dated as of September 11, 1995, and that certain
Second Amendment to Second Amended and Restated Credit Agreement dated as of
April 22, 1996, the "Second Restated Agreement") pursuant to which the Second
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Restatement Lenders renewed, extended and increased certain credit facilities
available to Mail-Well.
C. The Borrower and Mail-Well entered into that certain Credit
Agreement dated as of July 31, 1995, among the Borrower, Mail-Well, the Original
Supremex Lenders (as defined herein) and Banque Paribas as agent (as amended by
that certain First Amendment to Credit Agreement dated as of September 11, 1995,
and that certain Second Amendment to Second Amended and Restated Credit
Agreement dated as of April 22, 1996, the "Original Supremex Credit Agreement")
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pursuant to which the Original Supremex Lenders extended certain term credit
facilities and a revolving credit facility to the Borrower.
D. Pursuant to that certain Third Amended and Restated Credit
Agreement dated as of November 15, 1996, among Mail-Well, Wisco Envelope Corp.,
▇▇▇▇▇ Envelope and Tag Corp., Mail-Well West, Inc., Wisco II, L.L.C., Supremex
Holdings, Graphic Arts Center, Inc., Wisco III, L.L.C., the Mail-Well Lenders
(as defined herein) and the Mail-Well Agent (as the same may be amended,
modified, supplemented, renewed, extended or restated from time to time, the
"Mail-Well Credit Agreement"), the parties thereto are, concurrently herewith,
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amending and restating the Second Restated Agreement.
E. The Borrower and Mail-Well have requested that the Original
Supremex Credit Agreement be amended and restated (i) to combine the Borrower's
existing "Term Loans A" and "Term Loans B" facilities into a single $45,000,000
term loan facility, (ii) to provide for an
additional $20,000,000 term loan facility to finance the prospective PNG
Acquisition (as defined herein) by the Borrower, (iii) to eliminate the concept
of a borrowing base in connection with the Revolving Credit Loans, (iv) to allow
for the incorporation and organization of Mail-Well Trade Receivables
Corporation, a Colorado corporation ("MTRC") and a wholly owned, special purpose
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corporation subsidiary of Mail-Well, and a $100,000,000 accounts receivable
securitization facility for MTRC in connection with which Mail-Well and its
Subsidiaries (including the Borrower) will sell certain of their Receivables (as
defined herein) to MTRC on the Restatement Date (as defined herein) and from
time to time thereafter, and (v) to amend the Original Supremex Credit Agreement
in certain other aspects.
F. The Borrower, Mail-Well, Innova, the Lenders identified on the
signature pages of this Agreement (including, without limitation, certain of the
Original Supremex Lenders) and the Agent desire to amend and restate the
Original Supremex Credit Agreement (i) to provide for the matters referred to in
Recital E preceding and (ii) to allow for the matters referred to in Recital D
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preceding.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
ARTICLE
Definitions
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Section 1.1 Definitions. Defined terms that are used herein but
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are not defined herein shall have the meanings therefor specified in the Mail-
Well Credit Agreement. In addition, as used in this Agreement, the following
terms have the following meanings:
"Acceptance Fee" means the fee payable at the time of the acceptance
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of Bankers' Acceptances established by multiplying the face amount of such
Bankers' Acceptances by the Applicable Margin and by multiplying the product so
obtained by a fraction having a numerator equal to the number of days in the
term of such Bankers' Acceptances and a denominator of 365.
"Additional Costs" means as specified in Section 4.1(a).
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"Adjusted Eurodollar Rate" means, for any Eurodollar Loan for any
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Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/16 of 1%) determined by the Agent to be equal to the Eurodollar
Rate for such Eurodollar Loan for such Interest Period divided by 1 minus the
Reserve Requirement for such Eurodollar Loan for such Interest Period.
"Agent" means as specified in the introductory paragraph of this
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Agreement.
"Aggregate Commitment Percentage" means, as to any Lender, the
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percentage equivalent of a fraction, the numerator of which is the sum of the
outstanding Revolving Credit Loans Commitment of such Lender (or, if such
Revolving Credit Loans Commitment has terminated or expired, the outstanding
principal amount of its Revolving Credit Loans and its Letter of Credit
2
Liabilities and its Bankers' Acceptance Liabilities), plus the outstanding
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principal amount of the Term Loans of such Lender, and the denominator of which
is the sum of the aggregate outstanding Revolving Credit Loans Commitments of
all Lenders (or, if the Revolving Credit Loans Commitments have terminated or
expired, the aggregate outstanding principal amount of all Revolving Credit
Loans and all Letter of Credit Liabilities and all Bankers' Acceptance
Liabilities), plus the aggregate outstanding principal amount of the Term Loans
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of all Lenders.
"Agreement" means this Amended and Restated Credit Agreement and any
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and all amendments, modifications, supplements, renewals, extensions or
restatements hereof.
"Applicable Lending Office" means for each Lender and each Type of
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Loan, the Lending Office of such Lender (or of an Affiliate of such Lender)
designated for such Type of Loan below its name on the signature pages hereof
(or, with respect to a Lender that becomes a party to this Agreement pursuant to
an assignment made in accordance with Section 13.8, in the Assignment and
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Acceptance executed by it) or such other office of such Lender (or of an
Affiliate of such Lender) as such Lender may from time to time specify to the
Borrower and the Agent as the office by which its Loans of such Type are to be
made and maintained.
"Applicable Margin" means (a) from the Restatement Date to the first
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Calculation Date, 0.50% with respect to Prime Rate Loans and 2.00% with respect
to Eurodollar Loans, and (b) for periods from each Calculation Date to the next
Calculation Date, the rate per annum set forth in the table below that
corresponds to the ratio of (i) Total Debt as of the date of the relevant
financial statement referred to below to (ii) EBITDA for the four fiscal
quarters of Mail-Well then most recently ended as of the date of such financial
statement:
Ratio of Total Applicable Margin Applicable Margin
Debt to EBITDA for Eurodollar Loans for Prime Rate Loans
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Greater than or equal to 3.25 to 1.00 2.50% 1.00%
Greater than or equal to 2.75 to 1.00 2.00% 0.50%
and less than 3.25 to 1.00
Less than 2.75 to 1.00 1.75% 0.25%
The Applicable Margin shall change on each Calculation Date and shall be
calculated on the basis of the financial statements delivered by Mail-Well
pursuant to Section 8.1(b) of the Mail-Well Credit Agreement and the certificate
delivered by Mail-Well pursuant to Section 8.1(e) of the Mail-Well Credit
Agreement; provided, that if Mail-Well fails to deliver to the Agent such
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financial statements or certificate on or before the relevant Calculation Date,
the Applicable Margin for all Prime Rate Loans and Eurodollar Loans shall be
1.00% and 2.50%, respectively, per annum for the period from such Calculation
Date until the date such statements and certificate are received by the Agent,
after which the Applicable Margin shall be determined as otherwise provided
herein.
(b) As used in the definition of "Acceptance Fee", (i) from the
Restatement Date to the first Calculation Date, 2.00%, and (ii) for periods from
each Calculation Date to the next Calculation Date, the rate per annum set forth
in the table below that corresponds to the ratio of (A) Total Debt as of the
date of the relevant financial statement referred to below to (B) EBITDA
3
for the four fiscal quarters of Mail-Well then most recently ended as of the
date of such financial statement:
Ratio of Total Applicable Margin
Debt to EBITDA for Acceptance Fee
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Greater than or equal to 3.25 to 1.00 2.50%
Greater than or equal to 2.75 to 1.00 2.00%
and less than 3.25 to 1.00
Less than 2.75 to 1.00 1.75%
(c) Notwithstanding anything to the contrary contained in this
Agreement, for purposes of calculating "EBITDA," as such term is used in this
definition of "Applicable Margin," the financial attributes of the Persons
acquired or attributable to the businesses or assets acquired (as applicable)
pursuant to all New Acquisitions shall be included for the 12-month period
immediately prior to the date of determination of "EBITDA" (excluding any pro
forma adjustments thereto).
"Assignment and Acceptance" means an assignment and acceptance entered
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into by a Lender and its Assignee and accepted by the Agent pursuant to Section
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13.8(e), in substantially the form of Exhibit A hereto.
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"Assignee" means as specified in Section 13.8(b).
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"Assigning Lender" means as specified in Section 13.8(b).
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"Bankers' Acceptance" means a non-interest bearing draft or ▇▇▇▇ of
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exchange in form acceptable to the Agent in Cdn. Dollars drawn by the Borrower
upon a Revolving Credit Lender and accepted by such Revolving Credit Lender
pursuant to Section 2.15.
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"Bankers' Acceptance Liabilities" means, at any time, the aggregate
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amount of all fixed and contingent liabilities of the Revolving Credit Lenders
under Bankers' Acceptances.
"Bankruptcy Code" means as specified in Section 11.1(e).
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"Borrower" means as specified in the initial paragraph of this
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Agreement.
"Borrower Security Agreement" means, individually and collectively,
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(a) the Security Agreement, Demand Debenture, Debenture Pledge Agreement,
Securities Pledge Agreement, General Assignment under Section 427 of the Bank
Act, Application for Credit and Promise to give Security under Section 427 of
the Bank Act, Agreement as to Loans and Advances and Security therefor under
Section 427 of the Bank Act, Hypothec on Movables and each other agreement,
document or instrument executed by the Borrower as security for the Obligations
or any part thereof dated the Closing Date executed by the Borrower in favor of
the Agent for the benefit of the Agent and the Lenders, (b) the amendments
and/or restatements of the agreements, documents and instruments referred to in
clause (a) preceding dated the Restatement Date, and (c) and any and all
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amendments, modifications, supplements, renewals, extensions or restatements of
any of the foregoing.
4
"Borrower Subordinated Debt" means any and all current or future Debt
--------------------------
of the Borrower or its Subsidiaries which is subordinated to all or any portion
of the Obligations or the Mail-Well Obligations.
"Business Day" means (a) any day on which commercial banks are not
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authorized or required to close in Houston, Texas, or ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, and (b)
with respect to all borrowings, payments, Conversions, Continuations, Interest
Periods and notices in connection with Eurodollar Loans, any day which is a
Business Day described in clause (a) above and which is also a day on which
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dealings in Dollar deposits are carried out in the London interbank market.
"Calculation Date" means the date occurring each quarter during the
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term of this Agreement which is 15 days after the date on which quarterly
financial statements of Mail-Well are required by Section 8.1(b) of the Mail-
Well Credit Agreement to be delivered to the Agent.
"Canadian Five Year Rule" means that the Borrower shall not be
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obligated, under any circumstances other than the circumstances of the
acceleration of the maturity of the Term Loans upon the occurrence of an Event
of Default, to pay more than 25% of the principal amount of the Term Loans
within five years and one day from the date of the making of the Term Loans,
whether from scheduled payments or mandatory prepayments from asset sales,
insurance proceeds, stock offerings, excess cash flow, debt issuances or
otherwise.
"Canadian Reference Lenders" means Paribas Bank of Canada, The
--------------------------
Bank of Nova Scotia and National Bank of Canada.
"Cdn. Dollars" and "Cdn. $" mean lawful money of Canada.
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"CDOR Rate" means, on any day, the annual rate of interest which is
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the rate determined as being the arithmetic average (rounded upwards, if
necessary, to the nearest 0.01%) of the 30-day discount rates applicable to Cdn.
Dollar bankers' acceptances appearing on the "Reuters Screen CDOR Page" (as
defined in the International Swap Dealer Association, Inc. definitions, as
modified and amended from time to time) as of 10:00 a.m. on such day, or, if
such day is not a Business Day, then on the immediately preceding Business Day;
provided, however, if such rates do not appear on the Reuters Screen CDOR Page
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as contemplated, then the CDOR Rate on any day shall be calculated as the
arithmetic average of the 30-day discount rates applicable to Cdn. Dollar
bankers' acceptances quoted by the Canadian Reference Lenders as of 10:00 a.m.
on such day, or if such day is not a Business Day, then on the immediately
preceding Business Day.
"Classic" means Classic Envelope Plus Ltd., a corporation
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incorporated under the Companies Act (British Columbia).
"Classic Shareholders' Agreement" means that certain Shareholders'
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Agreement made as of the 1st day of June, 1994, among Supremex Target, ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ and Classic.
"Closing Date" means July 31, 1995, the date of the Original
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Supremex Credit Agreement.
5
"Collateral" means all Property of any nature whatsoever upon which a
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Lien is created or purported to be created by any Loan Document as security for
the Obligations or any portion thereof.
"Commitments" means the Term Loans A Commitments, the Term Loans B
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Commitments and the Revolving Credit Loans Commitments.
"Commitment Percentage" means, as to any Lender and as to any of its
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Commitments or Loans or Letters of Credit or Bankers' Acceptances (as may be
applicable based upon the context in which such term is used), the percentage
equivalent of a fraction, the numerator of which is the aggregate amount of the
applicable Commitment of such Lender or the outstanding principal amount of the
applicable Loans or Letters of Credit or Bankers' Acceptances (as applicable) of
such Lender, and the denominator of which is the aggregate amount of such
applicable Commitments of all Lenders or the aggregate outstanding principal
amount of the applicable Loans or Letters of Credit or Bankers' Acceptances (as
applicable) of all Lenders, as adjusted from time to time in accordance with
Section 13.8.
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"Concentration Accounts" means concentration deposit accounts (or, if
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the Borrower and its Subsidiaries so desire, a single concentration deposit
account) into which all proceeds of Collateral (including, without limitation,
sales of accounts receivable by the Borrower and its Subsidiaries) shall be
deposited maintained by the Borrower and/or its Subsidiaries with a bank or
banks selected by the Borrower or such Subsidiary and reasonably acceptable to
the Agent, and "Concentration Account" means any of such Concentration Accounts.
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"Continue," "Continuation" and "Continued" shall refer to the
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continuation pursuant to Section 2.6 of a Eurodollar Loan as a Eurodollar Loan
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of the same Type from one Interest Period to the next Interest Period.
"Contract Rate" means as specified in Section 13.12(a).
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"Convert," "Conversion" and "Converted" shall refer to a conversion
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pursuant to Section 2.6 or Article 4 of one Type of Loan into the other Type of
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Loan.
"Current Date" means a date occurring no more than 30 days prior to
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the Restatement Date or such earlier date which is reasonably acceptable to the
Agent.
"Default" means an Event of Default or the occurrence of an event or
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condition which with notice or lapse of time or both would become an Event of
Default.
"Default Rate" means, in respect of any principal of any Loan, any
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Reimbursement Obligation or any other amount payable by Mail-Well or the
Borrower under this Agreement or any other Loan Document which is not paid when
due (whether at stated maturity, by acceleration or otherwise), a rate per annum
during the period commencing on the due date until such amount is paid in full
equal to the sum of two percent plus the Prime Rate as in effect from time to
time plus the Applicable Margin for Prime Rate Loans; provided, however, that if
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such amount in default is principal of a Eurodollar Loan and the due date is a
day other than the last day of an
6
Interest Period therefor, the "Default Rate" for such principal shall be, for
the period from and including the due date and to but excluding the last day of
the Interest Period therefor, two percent plus the interest rate for such
Eurodollar Loan for such Interest Period as provided in Section 2.4(a) hereof
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and, thereafter, the rate provided for above in this definition.
"Deposit Account" means a deposit account maintained by the Borrower
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with a bank selected by the Borrower and reasonably acceptable to the Agent.
"Discount" means, with respect to any issue of Bankers' Acceptances
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with the same maturity date, the amount by which the face value of such Bankers'
Acceptances exceeds the Discounted Proceeds of such Bankers' Acceptances.
"Discounted Proceeds" means, with respect to any Bankers' Acceptance
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to be accepted by a Revolving Credit Lender on any day, an amount (rounded to
the nearest whole cent, with one-half of one cent being rounded up), calculated
on such day by multiplying (a) the face amount of such Bankers' Acceptance by
(b) the price where the price is determined by dividing one by the sum of one
plus the product of (i) such Revolving Credit Lender's Discount Rate (expressed
as a decimal) and (ii) a fraction the numerator of which is the number of days
remaining in the term of such Bankers' Acceptance and the denominator of which
is 365, with the price as so determined being rounded up or down to the fifth
decimal place and 0.000005 being rounded up.
"Discount Rate" means, with respect to any issue of Bankers'
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Acceptances with the same maturity date, the CDOR Rate.
"Dollars" and "$" mean lawful money of the U.S.
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"Eligible Assignee" means (a) any Affiliate of a Lender or (b) any
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commercial bank, savings and loan association, savings bank, finance company,
insurance company, pension fund, mutual fund or other financial institution
(whether a corporation, partnership or other entity) acceptable to the Agent and
approved by Mail-Well, which approval by Mail-Well shall not be unreasonably
withheld, conditioned or delayed; provided, however, that, with respect to any
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assignment of the Revolving Credit Loans, the Letters of Credit, the Bankers'
Acceptances and/or the Revolving Credit Loans Commitments, an "Eligible
Assignee" must be a bank resident in Canada.
"Equity Issuance" means any issuance by Holdings, Mail-Well or the
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Borrower of any Capital Stock of Holdings, Mail-Well or the Borrower,
respectively.
"Eurodollar Loans" means Loans that bear interest at rates based
----------------
upon the Eurodollar Rate or the Adjusted Eurodollar Rate.
"Eurodollar Rate" means, for any Eurodollar Loan for any Interest
---------------
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/16 of 1%) quoted by the Reference Lender at approximately 11:00 a.m.
London time (or as soon thereafter as practicable) two Business Days prior to
the first day of such Interest Period for the offering by the Reference Lender
to leading banks in the London interbank market of Dollar deposits in
immediately
7
available funds having a term comparable to such Interest Period and
in an amount comparable to the principal amount of the Eurodollar Loan made by
the Reference Lender to which such Interest Period relates. If the Reference
Lender is not participating in any Eurodollar Loans during any Interest Period
therefor (whether as a result of Section 4.4 or for any other reason), the
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Eurodollar Rate and the Adjusted Eurodollar Rate for such Loans for such
Interest Period shall be determined by reference to the amount of the Loans
which the Reference Lender would have made had it been participating in such
Loans.
"Event of Default" has the meaning specified in Section 11.1.
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"Excess Cash Flow" means, for any period, without duplication, the
----------------
total of the following of the Borrower and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP: (a) Consolidated
Net Income of the Borrower and its Subsidiaries, plus (b) depreciation and
----
amortization expense and other non-cash items to the extent deducted in
determining Consolidated Net Income of the Borrower and its Subsidiaries, minus
-----
(c) non-cash income to the extent included in determining Consolidated Net
Income of the Borrower and its Subsidiaries, plus (d) income and franchise taxes
----
to the extent deducted in determining Consolidated Net Income of the Borrower
and its Subsidiaries; minus (e) cash payments of taxes, plus (f) taxes
----- ----
previously paid that have been refunded in cash, minus (g) actual Capital
-----
Expenditures of the Borrower and its Subsidiaries, minus (h) principal payments
-----
(including prepayments) made on the Term Loans A and the Term Loans B and the
"Term Loans A" and the "Term Loans B" as such terms are defined in the Original
Supremex Credit Agreement.
"Excess Cash Flow Prepayment Date" means the 30th day of each April,
--------------------------------
commencing on April 30, 1997, and continuing on the 30th day of each April of
each subsequent year.
"Excess Insurance Proceeds" means any and all proceeds of any
-------------------------
Insurance Recovery which the Borrower or its Subsidiary (as applicable) (a) has
elected to not apply to the repair, construction or replacement of the Property
affected or to the purchase of other, similar Property for use in its business
or (b) has not both (i) elected to apply to the repair, construction or
replacement of the Property affected or to the purchase of other, similar
Property for use in its business within 90 days of the event giving rise to the
Insurance Recovery and (ii) actually applied to such repair, construction,
replacement or purchase (A) within 180 days after the earliest to occur of the
receipt of such proceeds by the Borrower, any of its Subsidiaries or the Agent,
with respect to an Insurance Recovery relating to other than real Property or
the reconstruction of a plant, or (B) commencing within 180 days after the
earliest to occur of the receipt of such proceeds by the Borrower, any of its
Subsidiaries or the Agent and continuing in a reasonably prompt and diligent
fashion thereafter, with respect to an Insurance Recovery relating to real
Property or the reconstruction of a plant.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
------------------
upwards, if necessary, to the nearest one-sixteenth of one percent (1/16 of 1%))
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that (a) if the day for
--------
which such rate is to be determined is not a Business Day, the Federal Funds
Rate for such day shall be such
8
rate on such transactions on the next preceding Business Day as so published on
the next succeeding Business Day and (b) if such rate is not so published on
such next succeeding Business Day, the Federal Funds Rate for any day shall be
the average rate charged to the Reference Lender on such day on such
transactions as determined by the Agent.
"GAC" means Graphic Arts Center, Inc., a Delaware corporation and
---
a wholly-owned Subsidiary of Mail-Well.
"Holdings" means as specified in Recital A of this Agreement
-------- ---------
"Holdings Common Stock" means the common stock of Holdings, par
---------------------
value $0.01 per share.
"Holdings Guaranty" means the Third Amended and Restated Guaranty
-----------------
Agreement dated the Restatement Date executed by Holdings in favor of the Agent
for the benefit of the Agent, the Lenders and/or the Mail-Well Lenders, and any
and all amendments, modifications, supplements, renewals, extensions or
restatements thereof.
"Holdings Security Agreement" means the Third Amended and Restated
---------------------------
Security Agreement dated the Restatement Date executed by Holdings in favor of
the Agent for the benefit of the Agent, the Lenders, the Mail-Well Lenders
and/or the Equipment Lease Facility Lenders, and any and all amendments,
modifications, supplements, renewals, extensions or restatements thereof.
"Innova" means as specified in the initial paragraph of this
------
Agreement.
"Insurance Recovery" means, with respect to any Property of the
------------------
Borrower or any of its Subsidiaries and any single occurrence or related
occurrences with respect thereto, the receipt or constructive receipt by the
Borrower or any of its Subsidiaries, or the payment by an insurance company to
the Agent, of proceeds of any such Property or casualty insurance in an amount
or aggregate amount (as applicable) in excess of Cdn. $500,000.
"Intercreditor Agreement" means that certain Amended and Restated
-----------------------
Intercreditor Agreement dated as of the Restatement Date among the Lenders, the
Mail-Well Lenders and the Equipment Lease Facility Lenders, and any and all
amendments, modifications, supplements, renewals, extensions or restatements
thereof.
"Interest Period" means, with respect to any Eurodollar Loan, each
---------------
period commencing on the date such Loan is made or Converted from a Prime Rate
Loan or (if Continued) the last day of the next preceding Interest Period with
respect to such Loan, and ending on the numerically corresponding day in the
first, second, third or sixth calendar month thereafter, as the Borrower may
select as provided in Section 2.9 hereof, except that each such Interest Period
-----------
which commences on the last Business Day of a calendar month (or on any day for
which there is no numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last Business Day of the appropriate subsequent
calendar month. Notwithstanding the foregoing: (a) each Interest Period which
would otherwise end on a day which is not a Business Day shall end
9
on the next succeeding Business Day (or, if such succeeding Business Day falls
in the next succeeding calendar month, on the next preceding Business Day); (b)
any Interest Period which would otherwise extend beyond an applicable Maturity
Date shall end on such Maturity Date; (c) no more than seven Interest Periods
for Eurodollar Loans shall be in effect at the same time; (d) no Interest Period
shall have a duration of less than one month and, if the Interest Period for any
Eurodollar Loans would otherwise be a shorter period, such Loans shall not be
available hereunder; and (e) no Interest Period for a Term Loan may commence
before and end after any principal repayment date unless, after giving effect
thereto, the aggregate principal amount of the Eurodollar Loans having Interest
Periods that end after such principal payment date shall be equal to or less
than the amount of the applicable Term Loans scheduled to be outstanding
hereunder after such principal payment date.
"Issuing Bank" means Banque Paribas or, if Banque Paribas is not
------------
acceptable to an intended beneficiary of a Letter of Credit as the issuer of
such Letter of Credit, such other Lender which is a commercial bank as the
Borrower may designate from time to time which agrees to be the issuer of such
Letter of Credit.
"Lender" and "Lenders" means as specified in the initial paragraph of
------ -------
this Agreement. Notwithstanding anything to the contrary contained in this
Agreement, each Lender which has any Revolving Credit Loans Commitment or holds
any Revolving Credit Loans, Letter of Credit Liabilities or Bankers' Acceptance
Liabilities must be a bank resident in Canada.
"Letter of Credit" means any standby letter of credit issued by the
----------------
Issuing Bank for the account of the Borrower pursuant to the Original Supremex
Credit Agreement or this Agreement.
"Letter of Credit Agreement" means, with respect to each Letter of
--------------------------
Credit to be issued by the Issuing Bank therefor, the letter of credit
application and reimbursement agreement which such Issuing Bank requires to be
executed by the Borrower in connection with the issuance of such Letter of
Credit.
"Letter of Credit Liabilities" means, at any time, the aggregate
----------------------------
undrawn face amounts of all outstanding Letters of Credit and all unreimbursed
drawings under Letters of Credit
"Loans" means the Term Loans and the Revolving Credit Loans, and
-----
"Loan" means any of the Term Loans or the Revolving Credit Loans.
----
"Loan Documents" means this Agreement, the Notes, the Security
--------------
Documents, the Agent's Letter, the Letters of Credit, the Letter of Credit
Agreements, the Bankers' Acceptances, any Interest Rate Protection Agreement
between Mail-Well or the Borrower and any Lender and all other agreements,
documents and instruments now or hereafter executed and/or delivered pursuant to
or in connection with any of the foregoing, and any and all amendments,
modifications, supplements, renewals, extensions or restatements thereof.
"Loan Party" means Holdings, Mail-Well, Wisco, Pavey, Mail-Well West,
----------
Wisco II, Supremex Holdings, GAC, Wisco III, the Borrower, Innova and each of
the Subsidiaries (other than an Unrestricted Subsidiary) of Mail-Well
(including, without limitation, each New Loan
10
Party) and any other Person who is or becomes a party to any agreement, document
or instrument that Guarantees or secures payment or performance of the
Obligations or any part thereof.
"Mail-Well" means as specified in the initial paragraph of this
---------
Agreement.
"Mail-Well Acquisition Loans" means the "Acquisition Loans" as such
---------------------------
term is defined in the Mail-Well Credit Agreement.
"Mail-Well Acquisition Loans Commitment Expiration Date" means the
------------------------------------------------------
"Acquisition Loans Commitment Expiration Date" as such term is defined in the
Mail-Well Credit Agreement.
"Mail-Well Agent" means the "Agent" as such term is defined in
---------------
the Mail-Well Credit Agreement.
"Mail-Well Closing Date" means the "Closing Date" as such term is
----------------------
defined in the Mail-Well Credit Agreement.
"Mail-Well Commitments" means the "Commitments" as such term is
---------------------
defined in the Mail-Well Credit Agreement.
"Mail-Well Credit Agreement" means as specified in Recital D of
-------------------------- ---------
this Agreement.
"Mail-Well Guaranty" means the Amended and Restated Guaranty Agreement
------------------
dated the Restatement Date executed by Mail-Well in favor of the Agent for the
benefit of the Agent, the Lenders and/or the Equipment Lease Facility Lenders,
and any and all amendments, modifications, supplements, renewals, extensions or
restatements thereof.
"Mail-Well Indenture" means the "Borrower Indenture" as such term
-------------------
is defined in the Mail-Well Credit Agreement.
"Mail-Well Lenders" means the "Lenders" as such term is defined
-----------------
in the Mail-Well Credit Agreement.
"Mail-Well Loans" means the "Loans" as such term is defined in
---------------
the Mail-Well Credit Agreement.
"Mail-Well Loan Documents" means the "Loan Documents" as such
------------------------
term is defined in the Mail-Well Credit Agreement.
"Mail-Well Loan Party" means any "Loan Party" as such term is
--------------------
defined in the Mail-Well Credit Agreement.
"Mail-Well Notes" means the "Notes" as such term is defined in
---------------
the Mail-Well Credit Agreement.
11
"Mail-Well Obligations" means the "Obligations" as such term is
---------------------
defined in the Mail-Well Credit Agreement.
"Mail-Well Revolving Credit Loans" means the "Revolving Credit Loans"
--------------------------------
as such term is defined in the Mail-Well Credit Agreement.
"Mail-Well Security Agreement" means the Third Amended and Restated
----------------------------
Security Agreement dated the Restatement Date executed by Mail-Well in favor of
the Agent for the benefit of the Agent, the Lenders, the Mail-Well Lenders
and/or the Equipment Lease Facility Lenders, and any and all amendments,
modifications, supplements, renewals, extensions or restatements thereof.
"Mail-Well Subordinated Debt" means the "Borrower Subordinated Debt"
---------------------------
as such term is defined in the Mail-Well Credit Agreement.
"Mail-Well Subordinated Debt Documents" means the "Borrower
-------------------------------------
Subordinated Debt Documents" as such term is defined in the Mail-Well Credit
Agreement.
"Mail-Well Term Loans" means the "Term Loans" as such term is
--------------------
defined in the Mail-Well Credit Agreement.
"Mail-Well West" means Mail-Well West, Inc., a Delaware
--------------
corporation and a wholly-owned Subsidiary of Mail-Well.
"Material Adverse Effect" means any material adverse effect, or the
-----------------------
occurrence of any event or the existence of any condition that could reasonably
be expected to have a material adverse effect, on (a) the prospects, business or
financial condition of Holdings and its Subsidiaries, taken as a whole, or of
Holdings on an individual basis, (b) the prospects, business or financial
condition of Mail-Well and its Subsidiaries, taken as a whole, or of Mail-Well
or the Borrower on an individual basis, (c) the ability of Holdings, Mail-Well,
the Borrower or its Subsidiaries to pay and perform the Obligations, the Mail-
Well Obligations or the Equipment Lease Facility Obligations when due, or (d)
the validity or enforceability of any of the Loan Documents or the Mail-Well
Loan Documents, any Lien created or purported to be created by any of the Loan
Documents or the Mail-Well Loan Documents or the rights and remedies of the
Agent or the Lenders under any of the Loan Documents or the Mail-Well Loan
Documents.
"Maturity Date" means the Term Loans A Maturity Date, the Term Loans B
-------------
Maturity Date or the Revolving Credit Loans Maturity Date, as applicable.
"Maximum Rate" means, with respect to any Lender, the maximum non-
------------
usurious interest rate, if any, that any time or from time to time may be
contracted for, taken, reserved, charged or received with respect to the
particular Obligations as to which such rate is to be determined, payable to
such Lender pursuant to this Agreement or any other Loan Document, under laws
applicable to such Lender which are presently in effect or, to the extent
allowed by law, under such applicable laws which may hereafter be in effect and
which allow a higher maximum non-usurious interest rate than applicable laws now
allow. The Maximum Rate shall be calculated
12
in a manner that takes into account any and all fees, payments and other charges
in respect of the Loan Documents that constitute interest under applicable law.
Each change in any interest rate provided for herein based upon the Maximum Rate
resulting from a change in the Maximum Rate shall take effect without notice to
Mail-Well or the Borrower at the time of such change in the Maximum Rate. For
purposes of determining the Maximum Rate under Texas law, the applicable rate
ceiling shall be the indicated rate ceiling described in, and computed in
accordance with, Article 5069-1.04, Vernon's Texas Civil Statutes; provided,
--------
however, that, to the extent permitted by applicable law, the Agent shall have
-------
the right to change the applicable rate ceiling from time to time in accordance
with applicable law.
"Mortgaged Properties" means, collectively, the "Mortgaged Properties"
--------------------
as such term is defined in the Mail-Well Credit Agreement and the fee-owned
Properties and leasehold interests in the Properties of the Borrower and its
Subsidiaries listed on Schedule 1.1(a) hereof which are or are to be subject to
---------------
the Mortgages, and any such after-acquired Properties which become subject to a
Mortgage pursuant to Section 5.4 hereof.
-----------
"Mortgages" means each deed of trust, leasehold deed of trust,
---------
mortgage, debenture, leasehold mortgage, collateral assignment of leases or
other real estate security document executed and delivered pursuant to or in
connection with the Original Supremex Credit Agreement or this Agreement
(including, without limitation, any such agreement or document executed pursuant
to Section 5.4), by Mail-Well, the Borrower or any other Loan Party or Mail-Well
-----------
Loan Party in favor of the Agent for the benefit of the Agent, the Lenders, the
Mail-Well Lenders and/or the Equipment Lease Facility Lenders with respect to
any Mortgaged Property, and any and all amendments, modifications, supplements,
renewals or restatements thereof (including, without limitation, any and all
modification agreements relating thereto).
"MTRC" means as specified in Recital E of this Agreement.
---- ---------
"Net Proceeds" means, with respect to any Equity Issuance, (a) the
------------
gross amount of cash or cash equivalents received from such Equity Issuance,
exclusive of the proceeds of sales of Capital Stock of Holdings to employees or
directors of Holdings or its Subsidiaries in connection with the provision of
compensation or benefits to such employees or directors for their activities as
employees or directors, respectively, minus (b) the reasonable out-of-pocket
-----
costs and expenses incurred by the issuer in connection with such Equity
Issuance (including reasonable underwriting fees paid to a Person other than an
Affiliate of Mail-Well) excluding any fees or expenses paid to an Affiliate of
Mail-Well.
"Notes" means the Term Loans A Notes, the Term Loans B Notes and the
-----
Revolving Credit Loans Notes, and any and all amendments, modifications,
supplements, renewals, extensions or restatements thereof and all substitutions
therefor (including promissory notes issued by the Borrower pursuant to Section
-------
13.8), and "Note" means any of such promissory notes.
---- ----
"Obligations" means any and all (a) indebtedness, liabilities and
-----------
obligations of the Loan Parties, or any of them, to the Agent, the Issuing Bank
and the Lenders, or any of them, evidenced by and/or arising pursuant to any of
the Loan Documents, now existing or hereafter arising, whether direct, indirect,
related, unrelated, fixed, contingent, liquidated, unliquidated,
13
joint, several or joint and several, including, without limitation, (i) the
obligations of the Loan Parties to repay the Loans, the Reimbursement
Obligations and the Bankers' Acceptances, to pay interest on the Loans, the
Reimbursement Obligations and the Bankers' Acceptances (including, without
limitation, interest accruing after any, if any, bankruptcy, insolvency,
reorganization or other similar filing) and to pay all fees, indemnities, costs
and expenses (including attorneys' fees) provided for in the Loan Documents and
(ii) the indebtedness constituting the Loans, the Reimbursement Obligations and
the Bankers' Acceptances and such fees, indemnities, costs and expenses, and (b)
indebtedness, liabilities and obligations of the Borrower under any and all
Interest Rate Protection Agreements that it may enter into with any Lender.
"Original Supremex Lenders" means the parties to the Original Supremex
-------------------------
Credit Agreement who were "Lenders" as defined therein.
"Original Supremex Credit Agreement" means as specified in
----------------------------------
Recital C of this Agreement.
---------
"Outstanding Credit" means, at any particular time, the sum of (a) the
------------------
outstanding principal amount of the Revolving Credit Loans (inclusive of the
Swingline Advances), (b) the Letter of Credit Liabilities, and (c) the Bankers'
Acceptance Liabilities.
"▇▇▇▇▇" means ▇▇▇▇▇ Envelope and Tag Corp., a New Jersey
-----
corporation and a wholly-owned Subsidiary of Mail-Well.
"Payor" means as specified in Section 3.4.
----- -----------
"Permitted Liens" means:
---------------
(a) Liens disclosed on Schedule 1.1(b) hereto;
---------------
(b) Liens securing the Obligations in favor of the Agent (for the
benefit of the Agent and the Lenders) pursuant to the Loan Documents,
Liens securing the Mail-Well Obligations in favor of Banque Paribas as
agent (for the benefit of itself and the Mail-Well Lenders) pursuant
to the Mail-Well Loan Documents and Liens securing the Equipment Lease
Facility Guaranty in favor of the Equipment Lease Facility Lenders
pursuant to the Mail-Well Loan Documents and the Equipment Lease
Facility Documents;
(c) Encumbrances consisting of easements, zoning restrictions or
other restrictions on the use of real Property or, as to the real
Property referred to in clause (ii) below only, imperfections to title
-----------
that (i) as to any Mortgaged Property, do not (individually or in the
aggregate) materially affect the value of the Property encumbered
thereby or materially impair the ability of Mail-Well or any of its
Subsidiaries to use such Property in its businesses, and none of which
is violated in any material respect by existing or proposed structures
or land use, and (ii) as to any real Property other than Mortgaged
Property, were entered into in the ordinary course of business and
could not have a Material Adverse Effect;
14
(d) Liens for taxes, assessments or other governmental charges
that are not delinquent or which are being contested in good faith and for
which adequate reserves have been established;
(e) Liens of mechanics, materialmen, warehousemen, carriers,
landlords or other similar statutory Liens securing obligations that are
not yet due and are incurred in the ordinary course of business or which
are being contested in good faith and for which adequate reserves have been
established;
(f) Liens resulting from good faith deposits to secure payment of
workmen's compensation or other social security programs or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, contracts (other than for payment of Debt) or leases, all in the
ordinary course of business;
(g) Purchase-money Liens on any Property hereafter acquired or
the assumption after the Closing Date of any Lien on Property existing at
the time of such acquisition (and not created in contemplation of such
acquisition), or a Lien incurred after the Closing Date in connection with
any conditional sale or other title retention agreement or Capital Lease
Obligation; provided that:
--------
(i) any Property subject to the foregoing is acquired by
Mail-Well or any of its Subsidiaries in the ordinary course of its
respective business and the Lien on the Property attaches concurrently
or within 90 days after the acquisition thereof;
(ii) the Debt secured by any Lien so created, assumed or
existing shall not exceed the lesser of the cost or fair market value
at the time of acquisition of the Property covered thereby;
(iii) each such Lien shall attach only to the Property so
acquired and the proceeds thereof; and
(iv) the Debt secured by all such Liens shall not exceed
$12,000,000 at any time outstanding in the aggregate;
(h) Easements, rights-of-way, restrictions and other Liens and
imperfections to title that are approved by the Agent and are listed on
Exhibit B to any Mortgage; and
---------
(i) Any extension, renewal or replacement of any of the foregoing,
provided that Liens permitted hereunder shall not be extended or spread to
cover any additional indebtedness or Property;
provided, however, that (A) none of the Permitted Liens (except those in favor
-------- -------
of the Agent) may attach or relate to the Capital Stock of or any other
ownership interest in Mail-Well or any Subsidiary of Mail-Well, (B) none of the
Permitted Liens referred to in clause (a) preceding may have a priority equal or
----------
prior to the Liens in favor of the Agent as security for the Obligations,
15
and (c) none of the Permitted Liens, other than the Permitted Liens referred to
in clauses (b) and (d) preceding, may attach or relate to any accounts or
----------- ---
inventory of any Loan Party.
"PNG" means PNG Products Inc. Pac National Group and PNG Enveloppe
---
Internationale Inc.
"PNG Acquisition" means the acquisition of substantially all of the assets
---------------
of PNG by the Borrower pursuant to the PNG Acquisition Agreement.
"PNG Acquisition Agreement" means that certain Asset Purchase Agreement
-------------------------
dated as of October 15, 1996, among the Borrower and PNG.
"PNG Acquisition Date" means the date (if any) upon which the PNG
--------------------
Acquisition shall be consummated by the parties thereto in accordance with the
PNG Acquisition Documents and this Agreement, which date must be prior to the
Term Loans B Commitment Expiration Date.
"PNG Acquisition Documents" means the PNG Acquisition Agreement and each
-------------------------
other material agreement, document or instrument executed or delivered in
connection with or pursuant to the PNG Acquisition.
"Prime Rate" means, at any time, (a) with respect to the Obligations other
----------
than the Revolving Credit Loans, the Reimbursement Obligations and the Bankers'
Acceptances, the rate of interest per annum then most recently established by
The Chase Manhattan Bank as its highest commercial prime rate then in effect,
which rate may not be the lowest rate of interest charged by The Chase Manhattan
Bank to its commercial borrowers and (b) with respect to the Revolving Credit
Loans, the Reimbursement Obligations and the Bankers' Acceptances, the rate of
interest per annum determined by the Agent to be the greater of (i) the rate of
interest per annum then most recently established by Paribas Bank of Canada as
its highest commercial reference rate then in effect for determining interest
rates on commercial loans in Cdn. Dollars made in Canada by Paribas Bank of
Canada or (ii) the rate of interest per annum equal to the CDOR Rate. Each
change in any interest rate provided for herein based upon the Prime Rate
resulting from a change in the Prime Rate shall take effect without notice to
the Borrower at the time of such change in the Prime Rate.
"Prime Rate Loans" means Loans that bear interest at rates based upon the
----------------
Prime Rate.
"Principal Office" means the principal office of the Agent in Houston,
----------------
Texas, presently located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇.
"Property" means property of all kinds, real, personal or mixed, tangible
--------
or intangible (including, without limitation, all rights relating thereto),
whether owned or acquired on or after the Closing Date.
"Quarterly Date" means the last day of each March, June, September and
--------------
December of each year, the first of which shall be the first such day after the
Closing Date.
16
"Reference Lender" means Banque Paribas.
----------------
"Register" means as specified in Section 13.8(d).
-------- ---------------
"Registered Note" means as specified in Section 2.2(b).
--------------- --------------
"Registered Note Register" means as specified in Section 13.8(h).
------------------------ ---------------
"Regulatory Change" means, with respect to any Lender, any change after the
-----------------
Closing Date in any U.S. federal or state, Canadian federal or provincial or
foreign laws or regulations (including Regulation D) or the adoption or making
after such date of any interpretations, directives or requests applying to a
class of lenders including such Lender of or under any U.S. federal or state,
Canadian federal or provincial or foreign laws or regulations (whether or not
having the force of law) by any Governmental Authority charged with the
interpretation or administration thereof.
"Reimbursement Obligation" means the obligation of the Borrower to
------------------------
reimburse the Issuing Bank for any drawing under a Letter of Credit.
"Related Transactions" means, collectively, (a) the Supremex Acquisition,
--------------------
(b) the execution and delivery of the Related Transactions Documents, (c) the
PNG Acquisition, and (d) the payment of all fees, costs and expenses associated
with the foregoing.
"Related Transactions Documents" means the Supremex Acquisition Documents,
------------------------------
the PNG Acquisition Documents and all other agreements, documents and
instruments executed and/or delivered pursuant to or in connection with any of
the foregoing.
"Required Lenders" means, at any date of determination, Lenders having in
----------------
the aggregate at least 66 2/3% (in equivalent Dollar amount as to any one or
more of the following) of the sum of the aggregate outstanding Revolving Credit
Loans Commitments (or, if the Revolving Credit Loans Commitments have terminated
or expired, the aggregate outstanding principal amount of the Revolving Credit
Loans, the aggregate Letter of Credit Liabilities and the aggregate Bankers'
Acceptance Liabilities), plus the aggregate outstanding principal amount of the
----
Term Loans A, plus the aggregate outstanding Term Loans B Commitments, plus the
---- ----
aggregate outstanding principal amount of the Term Loans B.
"Required Payment" means as specified in Section 3.4.
---------------- -----------
"Reserve Requirement" means, for any Eurodollar Loan of any Lender for any
-------------------
Interest Period therefor, the maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under any regulations of the Board of Governors of
the Federal Reserve System (or any successor) by such Lender for deposits
exceeding $1,000,000 against "Eurocurrency Liabilities" as such term is used in
Regulation D. Without limiting the effect of the foregoing, the Reserve
Requirement shall reflect any other reserves required to be maintained by such
Lender by reason of any Regulatory Change against (a) any category of
liabilities which includes deposits by reference to which the
17
Eurodollar Rate or the Adjusted Eurodollar Rate is to be determined or (b) any
category of extensions of credit or other assets which include Eurodollar Loans.
"Restatement Date" means November 15, 1996, the date of this Agreement.
----------------
"Revolving Credit Lender" means, as of any date of determination, a Lender
-----------------------
which has a Revolving Credit Loans Commitment.
"Revolving Credit Loans" means as specified in Section 2.1(c).
---------------------- --------------
"Revolving Credit Loans Commitment" means, as to any Lender, the obligation
---------------------------------
of such Lender to make or continue Revolving Credit Loans, to incur or
participate in Letter of Credit Liabilities and to create Bankers' Acceptances
hereunder in an aggregate principal amount at any one time outstanding up to but
not exceeding the amount set forth opposite the name of such Lender on the
signature pages hereto under the heading "Revolving Credit Loans Commitment" or,
if such Lender is a party to an Assignment and Acceptance, the amount set forth
in the most recent Assignment and Acceptance of such Lender, as the same may be
reduced or terminated pursuant to Section 2.13 or 11.2, and "Revolving Credit
------------ ---- ----------------
Loans Commitments" means such obligations of all Lenders. As of the Restatement
-----------------
Date, the aggregate principal amount of the Revolving Credit Loans Commitments
is Cdn. $10,000,000. Each Lender which has a Revolving Credit Loans Commitment
must be a bank resident in Canada.
"Revolving Credit Loans Notes" means the promissory notes made by the
----------------------------
Borrower evidencing the Revolving Credit Loans, in the form of Exhibit B hereto,
---------
and also includes such promissory notes issued in registered form pursuant to
Section 2.2(b).
--------------
"Revolving Credit Loans Maturity Date" means March 31, 2003.
------------------------------------
"Second Restated Agreement" means as specified in Recital B of this
------------------------- ---------
Agreement.
"Security Documents" means the Mail-Well Security Agreement, the Borrower
------------------
Security Agreement, the Mortgages, the Holdings Security Agreement, the Holdings
Guaranty, the Mail-Well Guaranty, the Subsidiary Security Agreements and the
Subsidiary Guaranties, as they may be amended, modified, supplemented, renewed,
extended or restated from time to time, and any and all other agreements, deeds
of trust, mortgages, chattel mortgages, security agreements, pledges,
guaranties, assignments of proceeds, assignments of income, assignments of
contract rights, assignments of partnership interests, assignments of royalty
interests, assignments of performance or other collateral assignments,
completion or surety bonds, standby agreements, subordination agreements,
undertakings and other agreements, documents, instruments and financing
statements now or hereafter executed and/or delivered by any Loan Party in
connection with or as security or assurance for the payment or performance of
the Obligations or any part thereof.
"Subsidiary Guaranty" means the Guaranty Agreement or an amendment or
-------------------
restatement thereof, as applicable, dated the Restatement Date executed by each
Subsidiary of Mail-Well, other than the Borrower, MTRC and Classic, in favor of
the Agent for the benefit of the Agent,
18
the Lenders and/or the Mail-Well Lenders, and any guaranty executed pursuant to
Section 5.3 hereof, and any and all amendments, modifications, supplements,
-----------
renewals, extensions or restatements thereof.
"Subsidiary Security Agreement" means the Security Agreement or an
-----------------------------
amendment or restatement thereof, as applicable, dated the Restatement Date
executed by each Subsidiary of Mail-Well, other than the Borrower, Classic and
MTRC, and, with respect to Supremex Holdings, the Securities Pledge Agreement
executed by Supremex Holdings, in favor of the Agent for the benefit of the
Agent, the Lenders, the Mail-Well Lenders and/or the Equipment Lease Facility
Lenders, and any security agreement executed pursuant to Section 5.3 hereof, and
-----------
any and all amendments, modifications, supplements, renewals, extensions or
restatements thereof.
"Supremex Acquisition" means the acquisition by Supremex Acquisition
--------------------
Company of all of the issued and outstanding Capital Stock, and certain stock
options relating to Capital Stock, of Supremex Target pursuant to the Supremex
Acquisition Agreement and the acquisition by Supremex Acquisition Company of the
remaining outstanding stock options relating to the Capital Stock of Supremex
Target pursuant to the Supremex Option Purchase Agreements.
"Supremex Acquisition Agreement" means the Share Purchase Agreement dated
------------------------------
as of July 20, 1995, among Supremex Acquisition Company, Supremex Target, the
shareholders of Supremex Target, the holders of stock options with respect to
the Capital Stock of Supremex Target and the agents named therein and the
unsecured Guaranty dated the Closing Date executed by Mail-Well pursuant to
which it guarantees the obligations of Supremex Acquisition Company under such
agreement.
"Supremex Acquisition Company" means 3159051 Canada Inc., a corporation
----------------------------
incorporated under the Canada Business Corporations Act and (prior to the
Supremex Amalgamation) a wholly-owned Subsidiary of Supremex Holdings.
"Supremex Acquisition Documents" means the Supremex Acquisition Agreement,
------------------------------
the Supremex Option Purchase Agreements and each other material agreement,
document or instrument executed or delivered in connection with or pursuant to
the Supremex Acquisition Agreement or the Supremex Option Purchase Agreements.
"Supremex Amalgamation" means the amalgamation of Supremex Acquisition
---------------------
Company, Supremex Target and Innova into a corporation incorporated under the
Canadian Business Corporations Act under the name "Supremex Inc."
"Supremex Amalgamation Agreement" means that certain Amalgamation Agreement
-------------------------------
dated the Closing Date by and among Supremex Acquisition Company, Supremex
Target and Innova.
"Supremex Amalgamation Documents" means the Supremex Amalgamation Agreement
-------------------------------
and each other agreement, document or instrument executed or delivered in
connection with or pursuant to the Supremex Amalgamation.
"Supremex Holdings" means Mail-Well Canada Holdings, Inc., a Delaware
-----------------
corporation.
19
"Supremex Option Purchase Agreements" means the six Option Purchase
-----------------------------------
Agreements dated July 20, 1995, between Supremex Acquisition Company and certain
employees of Supremex Target who held certain stock options granted by Supremex
Target.
"Supremex Target" means Supremex Inc., a corporation incorporated under the
---------------
Canada Business Corporations Act.
"Swingline Advances" means as specified in Section 2.1(c).
------------------ --------------
"Term Loans" means the Term Loans A and the Term Loans B.
----------
"Term Loans A" means as specified in Section 2.1(a).
------------ --------------
"Term Loans A Commitment" means, as to any Lender, the obligation of such
-----------------------
Lender to make or continue Term Loans A hereunder in an aggregate principal
amount up to but not exceeding the amount set forth opposite the name of such
Lender on the signature pages hereto under the heading "Term Loans A
Commitment", as the same may be terminated pursuant to Section 11.2, and "Term
------------ ----
Loans A Commitments" means such obligations of all Lenders. As of the
-------------------
Restatement Date, the aggregate principal amount of the Term Loans A Commitments
is $45,000,000.
"Term Loans A Maturity Date" means March 31, 2003.
--------------------------
"Term Loans A Notes" means the promissory notes made by the Borrower
------------------
evidencing the Term Loans A, in the form of Exhibit C hereto, and also includes
---------
such promissory notes issued in registered form pursuant to Section 2.2(b).
--------------
"Term Loans B" means as specified in Section 2.1(b).
------------ --------------
"Term Loans B Commitment" means, as to any Lender, the obligation of such
-----------------------
Lender to make or continue Term Loans B hereunder in an aggregate principal
amount up to but not exceeding the amount set forth opposite the name of such
Lender on the signature pages hereto under the heading "Term Loans B
Commitment", as the same may be terminated pursuant to Section 11.2, and "Term
------------ ----
Loans B Commitments" means such obligations of all Lenders. As of the
-------------------
Restatement Date, the aggregate principal amount of the Term Loans B Commitments
is $20,000,000.
"Term Loans B Commitment Expiration Date" means December 31, 1996.
---------------------------------------
"Term Loans B Funding Date" means the date (if any) upon which the Term
-------------------------
Loans B are advanced to the Borrower in accordance with Section 2.1(b),which
--------------
date shall be concurrently with the PNG Acquisition Date.
"Term Loans B Maturity Date" means March 31, 2003.
--------------------------
20
"Term Loans B Notes" means the promissory notes made by the Borrower
------------------
evidencing the Term Loans B, in the form of Exhibit D hereto, and also includes
---------
such promissory notes issued in registered form pursuant to Section 2.2(b).
--------------
"Type" means any type of Loan (i.e., a Prime Rate Loan or Eurodollar Loan).
----
"UCP" means as specified in Section 2.14(b).
--- ---------------
"Wisco" means WISCO Envelope Corp., a Tennessee corporation and a wholly-
-----
owned Subsidiary of Mail-Well.
"Wisco II" means Wisco II, L.L.C., a Delaware limited liability company and
--------
a Wholly-Owned Subsidiary of Mail-Well.
"Wisco III" means Wisco III, L.L.C., a Delaware limited liability company
---------
and a Wholly-Owned Subsidiary of Mail-Well.
Section 1.2 Other Definitional Provisions. All definitions contained in
-----------------------------
this Agreement are equally applicable to the singular and plural forms of the
terms defined. The words "hereof", "herein" and "hereunder" and words of
similar import referring to this Agreement refer to this Agreement as a whole
and not to any particular provision of this Agreement. Unless otherwise
specified, all Article and Section references pertain to this Agreement. Terms
used herein that are defined in the UCC, unless otherwise defined herein, shall
have the meanings specified in the UCC.
Section 1.3 Accounting Terms and Determinations.
-----------------------------------
(a) All accounting terms not specifically defined herein shall be
construed in accordance with GAAP consistent with such accounting principles
applied in the preparation of the audited financial statements referred to in
Section 7.2(a). All financial information delivered to the Agent pursuant to
--------------
Section 8.1 of the Mail-Well Credit Agreement shall be prepared in accordance
with GAAP applied on a basis consistent with such accounting principles applied
in the preparation of the audited financial statements referred to in Section
-------
7.2(a) or in accordance with Section 8.7 of the Mail-Well Credit Agreement.
------
(b) The Borrower shall deliver to the Lenders at the same time as the
delivery of any annual, quarterly or monthly financial statement under Section
8.1 of the Mail-Well Credit Agreement (i) a description, in reasonable detail,
of any material variation between the application of GAAP employed in the
preparation of the next preceding annual, quarterly or monthly financial
statements as to which no objection has been made in accordance with the last
sentence of Section 1.3 (a) preceding and (ii) reasonable estimates of the
---------------
difference between such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of compliance with
the covenants set forth in this Agreement (including Article 10 of the Mail-Well
Credit Agreement), neither Mail-Well nor the Borrower will change the last day
of its fiscal year from within six days before
21
or after December 31, or the last days of the first three fiscal quarters in
each of its fiscal years from within six days before or after March 31, June 30
and September 30, respectively, in each case as exists as of the Restatement
Date, except to fix the last day of the first, second and third fiscal quarters
of Mail-Well at March 31, June 30 and September 30, respectively.
Section 1.4 Financial Covenants and Reporting. The financial covenants
---------------------------------
contained in Article 10 of the Mail-Well Credit Agreement shall be calculated in
accordance with Section 1.4 of the Mail-Well Credit Agreement.
ARTICLE 2
Loans
-----
Section 2.1 Loans and Commitments.
---------------------
(a) (i) Prior Term Loans A. Pursuant to Section 2.1(a) of the Original
------------------
Supremex Credit Agreement and subject to the terms and conditions of the
Original Supremex Credit Agreement and after giving effect to Section
-------
13.24, each Lender that now or hereafter holds a Term Loans A Commitment or
-----
its predecessor in interest made a term loan to the Borrower in a single
disbursement on the Closing Date in an amount equal to its pro rata share
(based upon its commitment percentage thereof) of $25,000,000.
(ii) Prior Term Loans B. Pursuant to Section 2.1(b) of the Original
------------------
Supremex Credit Agreement and subject to the terms and conditions of the
Original Supremex Credit Agreement and after giving effect to Section
-------
13.24, each Lender that now or hereafter holds a Term Loans A Commitment or
its predecessor in interest made a term loan to the Borrower in a single
disbursement on the Closing Date in an amount equal to its pro rata share
(based upon its commitment percentage thereof) of $25,000,000.
(iii) Term Loans A. Such term loans referred to in subsection (i)
------------ --------------
and (ii) above of this Section 2.1(a) made by the Lenders that now or
---- --------------
hereafter hold Term Loans A Commitments or their predecessor in interest to
the Borrower, i.e., the "Term Loans A" and the "Term Loans B" made under
the Original Supremex Credit Agreement, are hereinafter collectively called
the "Term Loans A". The Term Loans A Commitments have previously
------------
terminated. As of the Restatement Date and after giving effect to the
prepayments to be made by the Borrower in accordance with Section 2.7(f),
--------------
the aggregate unpaid principal amount of the Term Loans A made pursuant to
the Original Supremex Credit Agreement is $40,000,000, which amount shall
be deemed to be outstanding as Term Loans A under this Agreement.
(b) Term Loans B. Subject to the terms and conditions of this Agreement,
------------
each Lender that now or hereafter holds a Term Loans B Commitment severally
agrees to make a term loan to the Borrower in a single disbursement on the Term
Loans B Funding Date in an amount not to exceed its Term Loans B Commitment.
(Such term loans referred to in this Section 2.1(b) hereafter made by the
--------------
Lenders that now or hereafter hold Term Loans B Commitments to the Borrower on
the Term Loans B Funding Date are hereinafter collectively called the "Term
----
Loans
-----
22
B".) The Term Loans B Commitments shall terminate upon the earlier to
-----
occur of (i) the making of the Term Loans B or (ii) the Term Loans B Commitment
Expiration Date.
(c) Revolving Credit Loans. Pursuant to Section 2.1(c) of the Original
----------------------
Supremex Credit Agreement and subject to the terms and conditions of the
Original Supremex Credit Agreement and after giving effect to Section 13.24,
-------------
each Lender that now or hereafter holds a Revolving Credit Loans Commitment or
its predecessor in interest made one or more revolving credit loans to the
Borrower from time to time from and including and after the Closing Date up to
but not exceeding an amount equal to (in aggregate amount at any time
outstanding) its pro rata share (based upon its commitment percentage thereof)
of Cdn. $20,000,000. Subject to the terms and conditions of this Agreement,
each such Lender severally agrees to make one or more revolving credit loans in
Cdn. Dollars to the Borrower from time to time from and including the
Restatement Date to but excluding the Revolving Credit Loans Maturity Date up to
but not exceeding the amount of such Lender's Revolving Credit Loans Commitment
as then in effect; provided, however, that, for purposes of determining such
-------- -------
Lender's Revolving Credit Loans Commitment at any time for purposes of this
Section 2.1(c), an amount equal to the result of such Lender's Commitment
--------------
Percentage of its Revolving Credit Loans Commitment multiplied by the aggregate
principal amount of the Swingline Advances outstanding at such time shall be
deemed to be outstanding and advanced by such Lender as Revolving Credit Loans.
(Such revolving credit loans referred to in this Section 2.1(c) made by the
--------------
Lenders that now or hereafter hold Revolving Credit Loans Commitments to the
Borrower from and including and after the Closing Date and now or hereafter made
by such Lenders to the Borrower from and including and after the Restatement
Date, inclusive of the Swingline Advances previously, now or hereafter made by
Paribas Bank of Canada and, except as otherwise provided herein, inclusive of
the borrowings previously, now or hereafter made by the Borrower under Section
-------
2.15 in the form of Bankers' Acceptances, are hereinafter collectively called
----
the "Revolving Credit Loans".) Subject to the foregoing limitations and the
----------------------
other terms and conditions of this Agreement, the Borrower may borrow, repay and
reborrow the Revolving Credit Loans hereunder prior to the Revolving Credit
Loans Maturity Date. Notwithstanding anything to the contrary contained in this
Agreement, the Borrower may from time to time request, and Paribas Bank of
Canada may at its discretion from time to time advance (but shall in no event be
obligated to advance), Revolving Credit Loans which are to be funded solely by
Paribas Bank of Canada (the "Swingline Advances"); provided, however, that (i)
------------------ -------- -------
the aggregate principal amount of the Swingline Advances outstanding at any time
shall not exceed Cdn. $2,000,000 and the aggregate principal amount of the
Revolving Credit Loans outstanding at any time (inclusive of the Swingline
Advances) shall not exceed the Revolving Credit Loans Commitments, (ii) all
Swingline Advances shall be and shall remain as Prime Rate Loans and (iii)
Paribas Bank of Canada shall give the Agent and each Lender written notice of
the aggregate outstanding principal amount of the Swingline Advances on a
monthly basis. Furthermore, upon one Business Day's prior written notice given
by Paribas Bank of Canada to the Agent, the Borrower and the other Lenders at
any time and from time to time (including, without limitation, at any time
following the occurrence of a Default or an Event of Default), each Lender
(including, without limitation, Paribas Bank of Canada) severally agrees, as
provided in the second sentence of this Section 2.1(c), and notwithstanding
--------------
anything to the contrary contained in this Agreement, any Default or Event of
Default or the inability or failure of Mail-Well, the Borrower or any of their
respective Subsidiaries to satisfy any condition precedent to funding any of the
Loans contained in Article 6 (which conditions precedent shall not
---------
23
apply to this sentence), to make a Revolving Credit Loan, in the form of a Prime
Rate Loan, in an amount equal to its Commitment Percentage of the Revolving
Credit Loans Commitments of the aggregate principal amount of the Swingline
Advances then outstanding, and the proceeds of such Revolving Credit Loans shall
be promptly paid by the Agent to Paribas Bank of Canada and applied as a
repayment of the aggregate principal amount of the Swingline Advances then
outstanding. As of the Restatement Date, the aggregate unpaid principal amount
of the Revolving Credit Loans, Swingline Advances and Bankers' Acceptances made
or accepted pursuant to the Original Supremex Credit Agreement is $_________,
$__________ and $_________, respectively, and the aggregate outstanding
principal amount of the Letters of Credit issued pursuant to the Original
Supremex Credit Agreement is $_____________, all of which amounts shall be
deemed to be outstanding as Revolving Credit Loans, Swingline Advances, Bankers'
Acceptances and Letters of Credit, respectively, under this Agreement.
(d) Borrowing, Continuation and Conversion of Loans. Subject to the terms
-----------------------------------------------
and conditions of this Agreement, the Borrower may borrow the Loans as Prime
Rate Loans or Eurodollar Loans and, until the applicable Maturity Date, the
Borrower may Continue Eurodollar Loans or Convert Loans of one Type into Loans
of the other Type; provided; however, that notwithstanding anything to the
-------- -------
contrary contained in this Agreement or any other Loan Document, the Borrower
may borrow the Revolving Credit Loans only as Prime Rate Loans or Bankers'
Acceptances and may not Convert Prime Rate Loans consisting of Revolving Credit
Loans into Eurodollar Loans.
(e) Lending Offices. Loans of each Type made by each Lender shall be made
---------------
and maintained at such Lender's Applicable Lending Office for Loans of such
Type.
Section 2.2 Notes.
-----
(a) Unregistered Notes. The Term Loans A made by each Lender shall be
------------------
evidenced by a single promissory note of the Borrower in substantially the form
of Exhibit C hereto, dated the Restatement Date, payable to the order of such
---------
Lender in a principal amount equal to its Term Loans A Commitment as originally
in effect and otherwise duly completed. The Term Loans B made by each Lender
shall be evidenced by a single promissory note of the Borrower in substantially
the form of Exhibit D hereto, dated the Restatement Date, payable to the order
---------
of such Lender in a principal amount equal to its Term Loans B Commitment as
originally in effect and otherwise duly completed. The Revolving Credit Loans
made by each Lender shall be evidenced by a single promissory note of the
Borrower in substantially the form of Exhibit B hereto, dated the Restatement
---------
Date, payable to the order of such Lender in a principal amount equal to its
Revolving Credit Loans Commitment as originally in effect and otherwise duly
completed. Each Lender is hereby authorized by the Borrower to endorse on the
schedule (or a continuation thereof) attached to each Note of such Lender, to
the extent applicable, the date, amount and Type of and the Interest Period for
each Loan made by such Lender to the Borrower hereunder (or under the Original
Supremex Credit Agreement) and the amount of each payment or prepayment of
principal of such Loan received by such Lender, provided that any failure by
such Lender to make any such endorsement shall not affect the obligations of the
Borrower under such Note or this Agreement in respect of such Loan.
24
(b) Registered Notes. Any Lender that is not a U.S. Person and that could
----------------
become completely exempt from withholding of U.S. Taxes in respect of payment of
any Obligations due to such Lender hereunder relating to any of its Term Loans
if such Term Loans were in registered form for U.S. Federal income tax purposes
may request the Borrower (through the Agent), and the Borrower agrees thereupon,
to exchange such Lender's Note evidencing its Term Loans for a promissory note
registered as provided in Section 13.8(h) hereof (a "Registered Note").
--------------- ---------------
Registered Notes may not be exchanged for Notes that are not in registered form.
Section 2.3 Repayment of Loans.
------------------
(a) The Borrower shall pay to the Agent for the account of each applicable
Lender the outstanding principal amount of the Term Loans A (and the outstanding
principal amount of the Term Loans A shall be due and payable) in 26
installments (aggregating $45,000,000 in principal amount) in the following
amounts on the following dates:
Payment Date Principal Installment
------------ ---------------------
December 31, 1996 $ 562,500
March 31, 1997 $ 562,500
June 30, 1997 $ 562,500
September 30, 1997 $ 562,500
December 31, 1997 $ 562,500
March 31, 1998 $ 562,500
June 30, 1998 $ 562,500
September 30, 1998 $ 562,500
December 31, 1998 $ 562,500
March 31, 1999 $ 562,500
June 30, 1999 $ 562,500
September 30, 1999 $ 562,500
December 31, 1999 $ 562,500
March 31, 2000 $ 562,500
June 30, 2000 $ 562,500
September 30, 2000 $ 562,500
December 31, 2000 $ 562,500
March 31, 2001 $ 562,500
June 30, 2001 $ 562,500
September 30, 2001 $ 562,500
December 31, 2001 $5,625,000
March 31, 2002 $5,625,000
June 30, 2002 $5,625,000
September 30, 2002 $5,625,000
December 31, 2002 $5,625,000
March 31, 2003 $5,625,000
In addition, the Borrower shall pay to the Agent for the account of each
applicable Lender all outstanding principal of the Term Loans A (and all
outstanding principal of the Term Loans A shall be due and payable) on the Term
Loans A Maturity Date.
25
(b) The Borrower shall pay to the Agent for the account of each applicable
Lender the principal amount of the Term Loans B outstanding as of the Term Loans
B Commitment Expiration Date (and the principal amount of the Term Loans B
outstanding as of the Term Loans B Commitment Expiration Date shall be due and
payable) in 26 installments (aggregating in principal amount the aggregate
principal amount of the Term Loans B outstanding as of the Term Loans B
Commitment Expiration Date) payable on the following dates, each of which
installments shall be in an amount equal to the product of (i) the aggregate
principal amount of the Term Loans B outstanding as of the Term Loans B
Commitment Expiration Date multiplied by (ii) the fraction set forth opposite
-------------
such date in the following table:
Payment Date Principal Installment
------------ ---------------------
December 31, 1996 0.0125
March 31, 1997 0.0125
June 30, 1997 0.0125
September 30, 1997 0.0125
December 31, 1997 0.0125
March 31, 1998 0.0125
June 30, 1998 0.0125
September 30, 1998 0.0125
December 31, 1998 0.0125
March 31, 1999 0.0125
June 30, 1999 0.0125
September 30, 1999 0.0125
December 31, 1999 0.0125
March 31, 2000 0.0125
June 30, 2000 0.0125
September 30, 2000 0.0125
December 31, 2000 0.0125
March 31, 2001 0.0125
June 30, 2001 0.0125
September 30, 2001 0.0125
December 31, 2001 0.125
March 31, 2002 0.125
June 30, 2002 0.125
September 30, 2002 0.125
December 31, 2002 0.125
March 31, 2003 0.125
In addition, the Borrower shall pay to the Agent for the account of each
applicable Lender all outstanding principal of the Term Loans B (and all
outstanding principal of the Term Loans B shall be due and payable) on the Term
Loans B Maturity Date.
(c) The Borrower shall pay to the Agent for the account of each applicable
Lender the outstanding principal of the Revolving Credit Loans (and the
outstanding principal of the Revolving Credit Loans shall be due and payable) on
the Revolving Credit Loans Maturity Date.
26
Section 2.4 Interest.
--------
(a) Interest Rate. The Borrower shall pay to the Agent for the account of
-------------
each Lender interest on the unpaid principal amount of each Loan made by such
Lender for the period commencing on the date of such Loan to but excluding the
date such Loan shall be paid in full, at the following rates per annum:
(i) during the periods such Loan is a Prime Rate Loan, the Prime Rate
plus the Applicable Margin; and
----
(ii) during the periods such Loan is a Eurodollar Loan, the Eurodollar
Rate plus the Applicable Margin.
----
(b) Payment Dates. The Borrower shall pay to the Agent for the
-------------
account of the Original Supremex Lenders all interest accrued to the Restatement
Date and not previously paid with respect to all "Loans", as such term is
defined in the Original Supremex Credit Agreement. In addition, accrued
interest on the Loans shall be due and payable as follows:
(i) in the case of Prime Rate Loans, on each Quarterly Date;
(ii) in the case of each Eurodollar Loan, on the last day of the
Interest Period with respect thereto and, in the case of an Interest Period
greater than three months, at three-month intervals after the first day of
such Interest Period;
(iii) upon the payment or prepayment of any Loan or the Conversion of
any Loan to a Loan of the other Type (but only on the principal amount so
paid, prepaid or Converted); and
(iv) on the Maturity Date for such Loan.
(c) Default Interest. Notwithstanding the foregoing, the Borrower
----------------
shall pay to the Agent for the account of each Lender interest at the applicable
Default Rate on any principal of any Loan made by such Lender, any Reimbursement
Obligation and (to the fullest extent permitted by law) any other amount payable
by the Borrower under this Agreement or any other Loan Document to or for the
account of such Lender, which is not paid in full when due (whether at stated
maturity, by acceleration or otherwise), for the period from and including the
due date thereof to but excluding the date the same is paid in full. Interest
payable at the Default Rate shall be payable from time to time on demand by the
Agent. Notwithstanding the foregoing, however, the Borrower shall not be
obligated to pay any interest with respect to the Loans or other Obligations in
excess of the rate specified herein prior to a Default if and to the extent that
such interest at the Default Rate is prohibited by applicable law.
Section 2.5 Borrowing Procedure. The Borrower shall give the Agent notice
-------------------
of each borrowing hereunder in accordance with Section 2.9. Not later than
-----------
11:00 a.m. (Houston, Texas time) on the date specified for each borrowing
hereunder, each Lender will make available the amount of the Loan to be made by
it on such date to the Agent, at the Principal Office, in
27
immediately available funds, for the account of the Borrower. The amount so
received by the Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower by wire transfer of immediately
available funds to the Deposit Account no later than 1:00 p.m.
Section 2.6 Optional Prepayments, Conversions and Continuations of Loans.
-----------------------------------------------------------
Subject to Section 2.7, the Borrower shall have the right from time to time to
-----------
prepay the Loans, to Convert all or part of a Loan of one Type into a Loan of
another Type or to Continue Eurodollar Loans; provided that: (a) the Borrower
--------
shall give the Agent notice of each such prepayment, Conversion or Continuation
as provided in Section 2.9, (b) Eurodollar Loans may only be Converted on the
-----------
last day of the Interest Period, (c) except for Conversions of Eurodollar Loans
into Prime Rate Loans, no Conversions or Continuations shall be made while a
Default has occurred and is continuing, (d) optional prepayments requested by
the Borrower to be applied to the Term Loans A or the Term Loans B shall be
applied to the Term Loans A and the Term Loans B as provided in the following
sentence, (e) a Revolving Credit Loan consisting of a Swingline Advance may not
be Converted to a Eurodollar Loan, and (f) no Conversions or Continuations of
Bankers' Acceptances shall be made prior to the scheduled maturity therefor
except with the prior written consent of the Revolving Credit Lenders, which
consent shall only be granted upon such terms and conditions, with respect to
timing, breakage costs or otherwise, as the Revolving Credit Lenders shall
determine. Optional prepayments of the Term Loans A or the Term Loans B shall
be applied to the unpaid principal amounts of the Term Loans A and the Term
Loans B pro rata in accordance with the respective unpaid principal amounts of
such Loans and shall be applied to the then remaining installments of principal
of the Term Loans A and the Term Loans B pro rata.
Section 2.7 Mandatory Prepayments.
---------------------
(a) Excess Cash Flow. Subject to Section 2.7(e), the Borrower shall,
---------------- --------------
on each Excess Cash Flow Prepayment Date, pay to the Agent, as a prepayment of
the Term Loans A and the Term Loans B, an aggregate amount equal to 50% of
Excess Cash Flow for the fiscal year of the Borrower then most recently ended,
as reflected in the audited annual financial statements of the Borrower and its
Subsidiaries for such fiscal year. Concurrently with the making of any such
payment, the Borrower shall deliver to the Agent a certificate of a Responsible
Officer of the Borrower demonstrating its calculation of the amount required to
be paid.
(b) Insurance Recovery. Subject to Section 2.7(e), the Borrower
------------------ --------------
shall, upon the receipt of any Excess Insurance Proceeds, pay (or cause to be
paid) to the Agent, as a prepayment of the Term Loans A and the Term Loans B, an
aggregate amount equal to such Excess Insurance Proceeds.
(c) Equity Issuances. Subject to Section 2.7(e), Mail-Well and/or the
---------------- --------------
Borrower (as applicable) shall, on each day that Holdings or any of its
Subsidiaries (including, without limitation, Mail-Well or the Borrower) receives
any Net Proceeds from any Equity Issuance, pay to the Agent, as a prepayment of
the Term Loans A, the Term Loans B, the Mail-Well Term Loans A and the Mail-Well
Acquisition Loans, an aggregate amount equal to 50% of the Net Proceeds from
such Equity Issuance; provided, if and to the extent that the application of any
--------
such
28
prepayment (or any portion thereof) to the Term Loans would result in
noncompliance with the Canadian Five Year Rule, then such prepayment (or portion
thereof) shall be applied by Mail-Well to the Mail-Well Term Loans and the Mail-
Well Acquisition Loans and not to the Term Loans.
(d) Application of Mandatory Prepayments. All prepayments pursuant to
------------------------------------
Section 2.7(a) or 2.7(b) preceding shall be allocated to the unpaid principal
-------------- ------
amounts of the Term Loans A and the Term Loans B pro rata in accordance with the
respective unpaid principal amounts of such Loans, and shall be applied to the
then remaining installments of principal of the Term Loans A and the Term Loans
B pro rata. All prepayments pursuant to Section 2.7(c) preceding, if such
--------------
prepayment is required to be made prior to the Mail-Well Acquisition Loans
Commitment Expiration Date, shall be allocated to the unpaid principal amounts
of the Mail-Well Term Loans and (if and to the extent that such prepayments or
any portion thereof are to be applied to the Term Loans), the Term Loans A and
Term Loans B pro rata in accordance with the respective unpaid principal amounts
of such loans until such loans have been paid in full and then shall be
allocated to the unpaid principal amount of the Mail-Well Acquisition Loans and,
if such prepayment is required to be made on or after the Mail-Well Acquisition
Loans Commitment Expiration Date, shall be allocated to the unpaid principal
amounts of the Mail-Well Term Loans and the Mail-Well Acquisition Loans and (if
and to the extent that such prepayments or any portion thereof are to be applied
to the Term Loans) the Term Loans A and the Term Loans B pro rata in accordance
with the respective unpaid principal amounts of such loans, and shall be applied
to the remaining installments of principal of such loans pro rata.
(e) Canadian Five Year Rule. Notwithstanding anything to the contrary
-----------------------
contained in this Agreement, the Borrower shall not be obligated to make any
prepayment of the principal of the Term Loans if and to the extent that such
prepayment would result in noncompliance with the Canadian Five Year Rule;
provided, however, that the aggregate amount which would be required to be
-------- -------
applied as a prepayment of the principal of the Term Loans but for this Section
-------
2.7(e) shall be reinvested in the ordinary course of business of the Borrower.
------
Section 2.8 Minimum Amounts. Except for Conversions and prepayments
---------------
pursuant to Section 2.7 and Article 4, each borrowing, each Conversion and each
----------- ---------
prepayment of principal of the Loans (exclusive of the Swingline Advances which
may be in any amount) shall be in an amount at least equal to (a) $1,000,000 or
an integral multiple in excess thereof, or (b) with respect to the Revolving
Credit Loans other than Bankers' Acceptances, Cdn. $250,000 or an integral
multiple of Cdn. $100,000 in excess thereof, or (c) with respect to Bankers'
Acceptances, Cdn. $300,000 or an integral multiple of Cdn. $300,000 in excess
thereof (borrowings, prepayments or Conversions of or into Loans of different
Types or, in the case of Eurodollar Loans, having different Interest Periods at
the same time hereunder shall be deemed separate borrowings, prepayments and
Conversions for purposes of the foregoing, one for each Type or Interest
Period).
Section 2.9 Certain Notices. Notices by the Borrower to the Agent of
---------------
terminations or reductions of Commitments, of borrowings, Conversions,
Continuations and prepayments of Loans and of the duration of Interest Periods
shall be irrevocable and shall be effective only if received by the Agent not
later than 11:00 a.m. (Houston, Texas, time) or, with respect to Bankers'
Acceptances, 9:00 a.m. (Houston, Texas, time) on the Business Day prior to the
date
29
of the relevant termination, reduction, borrowing, Conversion, Continuation or
prepayment or the first day of such Interest Period specified below:
Number of
Notice Business Days Prior
------ -------------------
Borrowing of Term Loans which are Prime Rate Loans 1
Borrowing of Term Loans which are Eurodollar Loans 3
Borrowing of Revolving Credit Loans which are
Prime Rate Loans 1
Borrowing of Bankers' Acceptances 2
Conversions or Continuations of Loans 3
Prepayments of Term Loans 5
Prepayments of Revolving Credit Loans 1
Each such notice of termination or reduction shall specify the amount of the
Commitments to be terminated or reduced. Each such notice of borrowing,
Conversion, Continuation or prepayment shall specify the Loans to be borrowed,
Converted, Continued or prepaid and the amount (subject to Section 2.8 hereof)
-----------
and Type of the Loans to be borrowed (including, with respect to any Revolving
Credit Loans, whether any such Loans shall consist of Swingline Advances),
Converted, Continued or prepaid (and, in the case of a Conversion, the Type of
Loans to result from such Conversion) and the date of borrowing, Conversion,
Continuation or prepayment (which shall be a Business Day). Notices of
borrowings, Conversions, Continuations or prepayments shall be in the form of
Exhibit E hereto, appropriately completed as applicable. Each such notice of
---------
the duration of an Interest Period shall specify the Loans to which such
Interest Period is to relate. The Agent shall promptly notify the Lenders of
the contents of each such notice. In the event the Borrower fails to select the
Type of Loan, or the duration of any Interest Period for any Eurodollar Loan,
within the time period and otherwise as provided in this Section 2.9, such Loan
-----------
(if outstanding as Eurodollar Loan) will be automatically Converted into a Prime
Rate Loan on the last day of preceding Interest Period for such Loan or (if
outstanding as a Prime Rate Loan) will remain as, or (if not then outstanding)
will be made as, a Prime Rate Loan. The Borrower may not borrow any Eurodollar
Loans, Convert any Loans into Eurodollar Loans or Continue any Loans as
Eurodollar Loans if the interest rate for such Eurodollar Loans would exceed the
Maximum Rate.
Section 2.10 Use of Proceeds.
---------------
(a) The Borrower represents and warrants to the Agent and the Lenders
that the proceeds of any Term Loans B shall be used by the Borrower to partially
finance the PNG Acquisition and to pay transaction costs associated with the PNG
Acquisition.
(b) The Borrower represents and warrants to the Agent and the Lenders
that the proceeds of the Revolving Credit Loans, Bankers' Acceptances and
Letters of Credit to be made on and after the Restatement Date shall be used by
the Borrower to partially finance the PNG Acquisition, to pay transaction costs
associated with the PNG Acquisition and for working capital and general
corporate purposes of the Borrower and its Wholly-Owned Subsidiaries in the
ordinary course of business.
30
(c) None of the proceeds of any Loan have been or will be used to
acquire any security in any transaction that is subject to Section 13 or 14 of
the Securities Exchange Act of 1934, as amended, or to purchase or carry any
margin stock (within the meaning of Regulations G, T, U or X of the Board of
Governors of the Federal Reserve System).
Section 2.11 Fees.
----
(a) Mail-Well and the Borrower jointly and severally agree to pay to
the Agent for the account of each Lender a commitment fee on the daily average
unused or unfunded amount of such Lender's Revolving Credit Loans Commitment and
Term Loans B Commitment, for the period from and including the Restatement Date
to and including the Revolving Credit Loans Maturity Date with respect to the
Revolving Credit Loans Commitment and for the period from and including the
Restatement Date to and including the Term Loans B Commitment Expiration Date
with respect to the Term Loans B Commitment, at the rate of one-half of one
percent (.50%) per annum based on a 360 day year and the actual number of days
elapsed, which accrued commitment fees shall be payable in arrears on each
Quarterly Date beginning on December 31, 1996 and on the Revolving Credit Loans
Maturity Date (with respect to the Revolving Credit Loans Commitment) or the
Term Loans B Commitment Expiration Date (with respect to the Term Loans B
Commitment). For purposes of this Section 2.11(a), the outstanding principal
---------------
amount of the Swingline Advances shall be deemed to be unused and unfunded
amounts under the Revolving Credit Loans Commitments.
(b) Mail-Well agrees to pay to the Agent such additional fees as are
specified in the Agent's Letter, which fees shall be payable in such amounts and
on such dates as are specified therein.
(c) The Borrower agrees to pay to Paribas Bank of Canada for the account of
the Revolving Credit Lenders an Acceptance Fee on each Bankers' Acceptance
issued pursuant hereto immediately upon the acceptance of each such Bankers'
Acceptance.
(d) On the Restatement Date, the Borrower agrees to pay (i) to the Agent
for the account of the Original Supremex Lenders, the accrued but unpaid
commitment fees referred to in Section 2.11(a) of the Original Supremex Credit
Agreement, (ii) to the Agent for the account of the Original Supremex Lenders,
the accrued but unpaid fees referred to in the first sentence of Section 2.14(c)
of the Original Supremex Credit Agreement relating to Letters of Credit, and
(iii) to the Issuing Bank, the accrued but unpaid fees referred to in the third
sentence of Section 2.14(c) of the Original Supremex Credit Agreement relating
to Letters of Credit.
Section 2.12 Computations. Interest and fees payable by Mail-Well and/or
------------
the Borrower hereunder and under the other Loan Documents on all Loans, other
than Prime Rate Loans and Bankers' Acceptance Liabilities, shall be computed on
the basis of a year of 360 days and the actual number of days elapsed (including
the first day but excluding the last day) occurring in the period for which
payable unless, in the case of interest, such calculation would result in a
usurious rate, in which case interest shall be calculated on the basis of a year
of 365
31
or 366 days, as the case may be. Interest and fees payable by Mail-Well
and/or the Borrower hereunder and under the other Loan Documents on Prime Rate
Loans shall be computed on the basis of a year of 365 or 366 days, as the case
may be, and interest and fees payable by the Borrower hereunder on Bankers'
Acceptance Liabilities shall be computed on the basis of a year of 365 days.
For purposes of the Interest Act (Canada), the annual rate of interest
applicable to the Revolving Credit Loans and Reimbursement Obligations and other
Obligations relating thereto to which each of the applicable interest rates
under this Agreement is equivalent is the stated rate multiplied by the actual
number of days in the year and divided by 365.
Section 2.13 Reduction or Termination of Revolving Credit Commitments. The
--------------------------------------------------------
Borrower shall have the right to terminate or reduce in part the unused portion
of the Revolving Credit Loans Commitments at any time and from time to time
(exclusive of any unused portion of the Revolving Credit Loans Commitments that
may be required to be advanced by the Lenders to refinance Swingline Advances
then outstanding), provided that (a) the Borrower shall give notice of each such
--------
termination or reduction as provided in Section 2.9 and (b) each partial
-----------
reduction shall be in an aggregate amount at least equal to Cdn. $1,000,000. The
Revolving Credit Loans Commitments may not be reinstated after they have been
terminated or reduced.
Section 2.14 Letters of Credit.
-----------------
(a) Subject to the terms and conditions of this Agreement, the
Borrower may utilize the Revolving Credit Loans Commitments by requesting that
the Issuing Bank issue Letters of Credit; provided, that the aggregate amount of
--------
outstanding Letter of Credit Liabilities shall not at any time exceed Cdn.
$8,000,000. Upon the date of issue of each Letter of Credit, the Issuing Bank
shall be deemed, without further action by any party hereto, to have sold to
each Lender, and each Lender shall be deemed, without further action by any
party hereto, to have purchased from the Issuing Bank, a participation to the
extent of such Lender's Commitment Percentage in such Letter of Credit.
(b) The Borrower shall give the Issuing Bank (with a copy to the
Agent) at least five Business Days irrevocable prior notice (effective upon
receipt) specifying the date of each Letter of Credit and the nature of the
transactions to be supported thereby. Upon receipt of such notice the Issuing
Bank shall promptly notify each applicable Lender of the contents thereof and of
such Lender's Commitment Percentage of the amount of the proposed Letter of
Credit. Each Letter of Credit shall have an expiration date that does not
exceed one year from the date of issuance and that does not extend beyond the
Revolving Credit Loans Maturity Date, shall be payable in Cdn. Dollars, shall
support a transaction entered into in the ordinary course of the Borrower's
business, shall be satisfactory in form and substance to the Issuing Bank, and
shall be issued pursuant to such agreements, documents and instruments
(including a Letter of Credit Agreement) as the Issuing Bank may reasonably
require, none of which shall be inconsistent with this Section 2.14. Each
------------
Letter of Credit shall (i) provide for the payment of drafts presented for, on
or thereunder by the beneficiary in accordance with the terms thereof, when such
drafts are accompanied by the documents (if any) described in the Letter of
Credit and (ii) to the extent not inconsistent with the terms hereof or any
applicable Letter of Credit Agreement, be subject to the Uniform Customs and
Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 (together with any subsequent revision thereof
approved by a Congress of the International Chamber of Commerce and adhered to
by the Issuing Bank, the "UCP"), and shall,
---
32
as to matters not governed by the UCP, be governed by, and construed and
interpreted in accordance with, the laws of the State of Texas.
(c) Mail-Well and the Borrower jointly and severally agree to pay to
the Agent for the account of each Lender, in arrears on each Quarterly Date
beginning on December 31, 1996 and on the Revolving Credit Loans Maturity Date,
a nonrefundable letter of credit fee with respect to each Letter of Credit
issued in an amount equal to (i) the rate per annum equal to the Applicable
Margin (for Revolving Credit Loans) for Eurodollar Loans in effect on the date
of issuance of such Letter of Credit (with respect to the fee due on the first
Quarterly Date after issuance) or on the first day of the applicable quarterly
or other period beginning after the calendar quarter during which the issuance
of such Letter of Credit occurred (with respect to the fee due on each
subsequent Quarterly Date or on the Revolving Credit Loans Maturity Date) minus
-----
one-eighth of one percent (0.125%), multiplied by (ii) the daily average face
amount of the Letter of Credit in effect during the applicable period. The
Agent agrees to pay to each Lender, promptly after receiving any payment of
letter of credit fees referred to above in this Section 2.14 (c), such Lender's
----------------
Commitment Percentage of such fees. Mail-Well and the Borrower jointly and
severally agree to pay to the Issuing Bank for its own account, in arrears on
each Quarterly Date beginning on December 31, 1996 and on the Revolving Credit
Loans Maturity Date, if such Letter of Credit was outstanding at any time during
any portion of the quarterly period (or, with respect to the December 31, 1996
Quarterly Date, the period from the Restatement Date through such Quarterly
Date) immediately preceding such Quarterly Date or the Revolving Credit Loans
Maturity Date, a nonrefundable letter of credit fee with respect to each Letter
of Credit issued by the Issuing Bank hereunder in an amount equal to (A) one-
eighth of one percent (0.125%) per annum, multiplied by (B) the daily average
face amount of the Letter of Credit in effect during such period. In addition
to the foregoing fees, Mail-Well and the Borrower shall jointly and severally
pay or reimburse the Issuing Bank for such normal and customary costs and
expenses, including, without limitation, administrative, issuance, amendment,
payment and negotiation charges, as are incurred or charged by the Issuing Bank
in issuing, effecting payment under, amending or otherwise administering any
Letter of Credit.
(d) Upon receipt from the beneficiary of any Letter of Credit of any
demand for payment or other drawing under such Letter of Credit, the Issuing
Bank shall promptly notify the Borrower and each Lender as to the amount to be
paid as a result of such demand or drawing and the respective payment date. If
at any time the Issuing Bank shall make a payment to a beneficiary of a Letter
of Credit pursuant to a drawing under such Letter of Credit, each Lender will
pay to the Issuing Bank, immediately upon the Issuing Bank's demand at any time
commencing after such payment until reimbursement therefor in full by the
Borrower, an amount equal to such Lender's Commitment Percentage of such
payment, together with interest on such amount for each day from the date of
such payment to the date of payment by such Lender of such amount at a rate of
interest per annum equal to the Federal Funds Rate.
(e) The Borrower shall be irrevocably and unconditionally obligated to
immediately reimburse the Issuing Bank for any amounts paid by the Issuing Bank
upon any drawing under any Letter of Credit, without presentment, demand,
protest or other formalities of any kind. The Issuing Bank will pay to each
such Lender such Lender's Commitment Percentage of all amounts received from or
on behalf of the Borrower for application in payment, in whole or in part, of
the
33
Reimbursement Obligation in respect of any Letter of Credit, but only to the
extent such Lender has made payment to the Issuing Bank in respect of such
Letter of Credit pursuant to Section 2.14 (d). Outstanding Reimbursement
----------------
Obligations shall bear interest at the Default Rate and such interest shall be
payable on demand.
(f) The Reimbursement Obligations of the Borrower under this Agreement
and the other Loan Documents shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this Agreement
and the other Loan Documents under all circumstances whatsoever, including,
without limitation, the following circumstances:
(i) Any lack of validity or enforceability of any Letter of
Credit or any other Loan Document;
(ii) Any amendment or waiver of or any consent to departure from
any Loan Document;
(iii) The existence of any claim, setoff, counterclaim, defense
or other right which any Loan Party or other Person may have at any time
against any beneficiary of any Letter of Credit, the Agent, the Issuing
Bank, the Lenders or any other Person, whether in connection with this
Agreement or any other Loan Document or any unrelated transaction;
(iv) Any statement, draft or other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect whatsoever;
(v) Payment by the Issuing Bank under any Letter of Credit
against presentation of a draft or other document that does not comply with
the terms of such Letter of Credit, provided, that such payment shall not
--------
have constituted gross negligence or willful misconduct of the
Issuing Bank; and
(vi) Any other circumstance whatsoever, whether or not similar
to any of the foregoing, provided that such other circumstance or event
shall not have been the result of the gross negligence or willful
misconduct of the Issuing Bank.
(g) The Borrower assumes all risks of the acts or omissions of any
beneficiary of any Letter of Credit with respect to its use of such Letter of
Credit. Neither the Agent, the Issuing Bank, the Lenders nor any of their
respective officers or directors shall have any responsibility or liability to
the Borrower or any other Person for: (a) the failure of any draft to bear any
reference or adequate reference to any Letter of Credit, or the failure of any
documents to accompany any draft at negotiation, or the failure of any Person to
surrender or to take up any Letter of Credit or to send documents apart from
drafts as required by the terms of any Letter of Credit, or the failure of any
Person to note the amount of any instrument on any Letter of Credit, (b) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
(c) the validity, sufficiency or genuineness of any draft or other document, or
any endorsement(s) thereon, even if any such draft, document or endorsement
should in fact prove to be in any and
34
all respects invalid, insufficient, fraudulent or forged or any statement
therein is untrue or inaccurate in any respect, (d) the payment by the Issuing
Bank to the beneficiary of any Letter of Credit against presentation of any
draft or other document that does not comply with the terms of the Letter of
Credit, or (e) any other circumstance whatsoever in making or failing to make
any payment under a Letter of Credit; provided, however, that, notwithstanding
-------- -------
the foregoing, the Borrower shall have a claim against the Issuing Bank, and the
Issuing Bank shall be liable to the Borrower, to the extent of any direct, but
not indirect or consequential, damages suffered by the Borrower which the
Borrower proves in a final nonappealable judgment were caused by (i) the Issuing
Bank's willful misconduct or gross negligence in determining whether documents
presented under any Letter of Credit complied with the terms thereof or (ii) the
Issuing Bank's willful failure to pay under any Letter of Credit after
presentation to it of documents strictly complying with the terms and conditions
of such Letter of Credit. The Issuing Bank may accept documents that appear on
their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
(h) All Letters of Credit issued pursuant to the Original Supremex Credit
Agreement shall be deemed to be Letters of Credit issued pursuant to this
Agreement.
Section 2.15 Bankers' Acceptances.
--------------------
(a) Utilization of Revolving Credit Loans Commitments. Subject to the
-------------------------------------------------
terms and conditions of this Agreement, the Borrower may utilize the Revolving
Credit Loans Commitments by requesting that the Revolving Credit Lenders create
Bankers' Acceptances.
(b) Commitments. Subject to the terms and conditions of this
-----------
Agreement, each Revolving Credit Lender severally agrees from time to time to
accept one or more drafts constituting Bankers' Acceptances drawn on it by the
Borrower from time to time from and including the Restatement Date to but
excluding the Revolving Credit Loans Maturity Date.
(c) Notices, Terms, etc. Each Bankers' Acceptance (i) shall be preceded
-------------------
by a written notice in the form of Exhibit E hereto received by the Agent not
---------
later than 9:00 a.m. (Houston, Texas, time) two Business Days prior to the
proposed date of acceptance of the Bankers' Acceptance, (ii) shall be
denominated in Cdn. Dollars, (iii) shall be in the minimum aggregate face of
Cdn. $300,000 or an integral multiple of Cdn. $300,000 in excess thereof, (iv)
shall have a term of 30 to 90 days (taking into account the mandatory
prepayments to be made under Section 2.7), without days of grace, (v) shall
-----------
mature on a Business Day on or before the Revolving Credit Loans Maturity Date,
and (vi) may, at each Revolving Credit Lender's option, be purchased by such
Revolving Credit Lender for its own account or sold or traded in the money
market, either directly or through stock brokers or dealers.
(d) Discount. Upon the issue of Bankers' Acceptances which are
--------
purchased by a Revolving Credit Lender for its own account, the Borrower shall
be entitled to be credited by Paribas Bank of Canada on behalf of such Revolving
Credit Lender with the Discounted Proceeds thereof, less the Acceptance Fee.
However, the full face value of Bankers' Acceptances, without Discount, shall be
used when calculations are made to determine the amount of Bankers' Acceptance
Liabilities. The Revolving Credit Lenders may at any time and from time to time
sell,
35
rediscount or otherwise dispose of such Bankers' Acceptance upon such terms and
conditions as the Revolving Credit Lenders may determine in their sole
discretion and the Revolving Credit Lenders shall be entitled to retain all
proceeds received from such sale, rediscount or other disposition (whether the
amount of such proceeds is more, less or the same as the proceeds advanced to
the Borrower or its order as a result of the Revolving Credit Lender's purchase
of the Bankers' Acceptance).
(e) Conversion or Continuation. Upon the issue of each Bankers' Acceptance
--------------------------
as a result of the conversion of an outstanding Revolving Credit Loan into
Bankers' Acceptances or as a result of the renewal or continuation of
outstanding Bankers' Acceptances, the Borrower shall, concurrently with such
conversion or renewal or continuation, pay in advance out of its own funds to
Paribas Bank of Canada for the account of the Revolving Credit Lenders an amount
equal to the Discount applicable to such issue, to be applied against the
principal of the Revolving Credit Loan being so converted or renewed, plus the
Acceptance Fee for the converted, renewed or continued Bankers' Acceptances.
(f) Execution of Bankers' Acceptances. Drafts of the Borrower to be
---------------------------------
accepted as Bankers' Acceptances hereunder shall be signed by a duly authorized
officer or duly authorized officers of the Borrower. Notwithstanding that any
person whose signature appears on any Bankers' Acceptance as one of such
officers may no longer be an authorized signatory for the Borrower at the date
of issue of a Bankers' Acceptance, such signature shall nevertheless be valid
and sufficient for all purposes as if such authority had remained in force at
the time of such issue and any such Bankers' Acceptance so signed shall be
binding on the Borrower.
(g) Delivery of Bankers' Acceptances.
--------------------------------
(i) The Borrower shall deliver to each Revolving Credit Lender for
acceptance, at or before 10:00 a.m. on the Business Day preceding the date
of issue of any Bankers' Acceptances, an appropriate number of signed and
endorsed forms of Bankers' Acceptances in order to allow each Revolving
Credit Lender to accept such instruments in the aggregate and face amounts
and for the maturities chosen by the Borrower, subject to Section 2.15(c)).
---------------
In this respect, the Revolving Credit Lenders will deliver from time to
time to the Borrower blank forms of Bankers' Acceptances to be signed and
returned by the Borrower in order to maintain an adequate supply of such
instruments for acceptance hereunder. No Revolving Credit Lender shall be
responsible or liable for its failure to accept a Bankers' Acceptance as
required hereunder if the cause of such failure is, in whole or in part,
due to the failure of the Borrower to provide duly executed and endorsed
drafts to such Revolving Credit Lender on a timely basis nor shall any
Revolving Credit Lender be liable for any damage, loss or other claim
arising by reason of any loss or improper use of any such instrument except
a loss or improper use arising by reasons of the gross negligence or wilful
misconduct of such Revolving Credit Lender.
(ii) Each Revolving Credit Lender will maintain a record with
respect to Bankers' Acceptances (A) received by it from the Borrower in
blank hereunder, (B) voided by it for any reason, (C) accepted by it
hereunder, and (D) canceled at their respective
36
maturities. The Revolving Credit Lenders agree to provide such records to
the Borrower promptly upon request.
(h) Bankers' Acceptances.
--------------------
(i) If Bankers' Acceptances are outstanding hereunder, the
Borrower shall, prior to the date of maturity of the then current Bankers'
Acceptances, select and irrevocably notify the Agent of the term to apply
to any renewal or continuation thereof or of the intention of the Borrower
to repay or convert such borrowing at the maturity of the related Bankers'
Acceptances, such notice to be given in accordance with Section 2.15(c).
---------------
The Agent, promptly following receipt of a notice in respect of Bankers'
Acceptances as aforesaid, shall so advise the Revolving Credit Lenders and
shall also advise each Revolving Credit Lender of the term (which shall be
identical for all Revolving Credit Lenders) and the aggregate face amount
of the Bankers' Acceptances to be accepted by it. The aggregate face
amount of the Bankers' Acceptances to be accepted by a Revolving Credit
Lender shall be determined by the Agent by reference to the respective
Commitments Percentages of the Revolving Credit Loans Commitments of the
Revolving Credit Lenders, except that, if the face amount of a Bankers'
Acceptance which would otherwise be accepted by a Revolving Credit Lender
would not be Cdn. $100,000 or a whole multiple thereof, such face amount
shall be increased or reduced by the Agent in its sole discretion to Cdn.
$100,000 or the nearest whole multiple of that amount, as appropriate.
(ii) If the Borrower chooses to renew or continue a borrowing
outstanding by way of Bankers' Acceptances in the form of Bankers'
Acceptances, the term of the new Bankers' Acceptances shall commence on and
include the maturity date of the relative Bankers' Acceptances being
renewed. If the Borrower fails to so notify the Agent as provided in
clause (i) of this Section 2.15(h) preceding, the Borrower shall be deemed
---------- ---------------
to have notified the Agent of its intention to convert the relevant
borrowing by way of Bankers' Acceptances into a Revolving Credit Loan.
(iii) The Borrower shall, by not later than 11:00 a.m. (Houston,
Texas time) on the maturity date of each Bankers' Acceptance, pay to
Paribas Bank of Canada for the account of the Revolving Credit Lenders an
amount equal to the face amount of all Bankers' Acceptances accepted by the
Revolving Credit Lenders and maturing on that day, by effecting such
payment out of its own funds to Paribas Bank of Canada for the account of
the Revolving Credit Lenders, by converting such Bankers' Acceptance into
another form of borrowing hereunder or by renewing or continuing such
Bankers' Acceptance in accordance with the provisions hereof.
(iv) If the Borrower fails to provide payment of the face
amount of a Bankers' Acceptance on its maturity date as required pursuant
to clause (iii) of this Section 2.15(h) preceding, then the Cdn. Dollar
------------ ---------------
amount of such failed payment shall be deemed for all purposes of this
Agreement to be and shall be treated in all respects as a borrowing by way
of a Revolving Credit Loan constituting a Prime Rate Loan as and from such
maturity date.
37
(i) Acceptance Fee. The Borrower authorizes and directs Paribas Bank of
--------------
Canada and the Revolving Credit Lenders to deduct the amount of the Acceptance
Fee from the Discounted Proceeds of Bankers' Acceptances purchased by a
Revolving Credit Lender for its own account, upon the issue of each Bankers'
Acceptance.
(j) Alternate Basis of Borrowing. If at any time during the term of this
----------------------------
Agreement, a Revolving Credit Lender determines in good faith (which
determination shall be final, conclusive and binding upon the Borrower) that, by
reasons of circumstances or changes affecting the market for Bankers'
Acceptances, (i) it is no longer possible to establish the Discount Rate in
respect to Bankers' Acceptances, or (ii) the market for Bankers' Acceptances no
longer exists, is too weak for its normal use by such Revolving Credit Lender or
is not capable in the normal course of business to absorb Bankers' Acceptances
accepted by such Revolving Credit Lender, then the Agent shall, on behalf of the
Revolving Credit Lender affected by such event or circumstances (the "Affected
--------
Lender"), immediately notify the Borrower of the Affected Lender's determination
------
in writing with an indication of the Revolving Credit Loans affected by such
determination. For so long as the circumstances referred to in clause (i) or
----------
(ii) preceding shall continue, the Affected Lender shall not be obligated to
----
make any further borrowings available by way of Bankers' Acceptances and
thereafter, until notice to the contrary is given to the Borrower by the Agent,
the Affected Lender shall only be obligated to make other forms of borrowings
available to the Borrower hereunder.
(k) Waiver of Claim. The Borrower shall have no right to raise or set up
---------------
as against any of the Revolving Credit Lenders any defense or right of action,
indemnification or set-off or compensation or any similar defense or claim of
any nature whatsoever which the Borrower may have had at any time or may have in
the future with respect to any holder of one or more Banker's Acceptance(s)
issued hereunder.
(l) Eligible Assignees.
------------------
(i) The Borrower acknowledges and agrees that each Revolving
Credit Lender may, from time to time, arrange for Eligible Assignees to
meet, in whole or in part, such Revolving Credit Lender's obligations of
accepting Bankers' Acceptances hereunder, in which case such Eligible
Assignees' forms for Bankers' Acceptances may be used. The Borrower agrees
that, in the event of a default in the payment of any Bankers' Acceptance
accepted by such Eligible Assignee and in the event of payment by such
Eligible Assignee of the amount outstanding under the Bankers Acceptance so
accepted, the Borrower shall immediately reimburse the said amount to such
Eligible Assignee directly, with interest thereon at a rate equivalent to
the rate applicable to the Prime Rate Loans. A failure to reimburse an
Eligible Assignee as provided hereinabove shall constitute an Event of
Default hereunder.
(ii) The Borrower irrevocably and unconditionally authorizes each
Revolving Credit Lender, on behalf and for the account of the Borrower, to
complete, in the space provided for the Revolving Credit Lender's name, the
name of such Eligible Assignee accepting the Bankers' Acceptance.
38
(iii) Each Revolving Credit Lender agrees that in the event an
Eligible Assignee executes in whole or in part such Revolving Credit
Lender's obligation of accepting Bankers' Acceptances hereunder, the costs
of borrowing shall not be any greater for the Borrower than if such
Revolving Credit Lender had itself accepted the Bankers' Acceptances so
accepted.
(iv) The Borrower recognizes that each Revolving Credit Lender
may, at its discretion, enter into compensatory agreements with an Eligible
Assignee pursuant to which such Revolving Credit Lender may assume certain
obligations and liabilities in respect of such Eligible Assignee. If the
Borrower fails to make a payment to any such Eligible Assignee, as provided
in clause (i) preceding of this Section 2.15(1), the Borrower shall, as a
---------- ---------------
separate and distinct obligation, pay to such Revolving Credit Lender, on
demand, an amount equal to the amount owing to such Eligible Assignee
pursuant to Section 2.15(1). The Borrower recognizes and agrees that the
---------------
foregoing obligation of the Borrower shall be entitled to the security of
the Security Documents.
(m) Maintenance of Records. Paribas Bank of Canada shall open and maintain
----------------------
on its books accounts and records evidencing the Revolving Credit Loans
(including the Bankers' Acceptances) made available to the Borrower by each
Revolving Credit Lender under the Revolving Credit Loans Commitments. Paribas
Bank of Canada shall record therein the amount of such borrowings and each
payment of principal and interest on such borrowings, shall record the Bankers'
Acceptances accepted, paid and canceled by each Revolving Credit Lender and all
other amounts becoming due to each Revolving Credit Lender in connection with
the Revolving Credit Loans Commitments under the Loan Documents, including
standby fees, Acceptance Fees and administration fees, breakage costs and all
payments on account thereof. Such accounts and records maintained by Paribas
Bank of Canada on behalf of the Revolving Credit Lenders will constitute, in the
absence of manifest error, prima facie evidence of the indebtedness of the
----- -----
Borrower to the Revolving Credit Lenders, the date the Revolving Credit Lenders
made each Revolving Credit Loan (including the Bankers' Acceptances) available
to the Borrower under the Revolving Credit Loans Commitments and the amounts the
Borrower has paid from time to time to the Revolving Credit Lenders on account
thereof.
(n) All Bankers' Acceptances accepted pursuant to the Original Supremex
Credit Agreement shall be deemed to be Bankers' Acceptances accepted pursuant to
this Agreement.
ARTICLE 3
Payments
--------
Section 3.1 Method of Payment. All payments of principal, interest, fees
-----------------
and other amounts to be made by the Borrower under this Agreement and the other
Loan Documents shall be made to the Agent at the Principal Office for the
account of each Lender's Applicable Lending Office in Dollars or Cdn. Dollars
(as applicable) and in immediately available funds, without setoff, deduction or
counterclaim, not later than 11:00 a.m. (Houston, Texas time) on the date on
which such payment shall become due (each such payment made after such time on
such due date to be deemed to have been made on the next succeeding Business
Day; provided, however, that
-------- -------
39
Paribas Bank of Canada will act as collection agent on behalf of the Agent with
respect to principal, interest and fees relating to the Revolving Credit Loans,
the Letters of Credit and the Revolving Credit Loans Commitments). The Borrower
shall, at the time of making each such payment, specify to the Agent the sums
payable by the Borrower under this Agreement and the other Loan Documents to
which such payment is to be applied (and in the event that the Borrower fails to
so specify, or if an Event of Default has occurred and is continuing, the Agent
may apply such payment to the Obligations in such order and manner as the Agent
may elect, subject to Section 3.2.) Upon the occurrence and during the
------------
continuation of an Event of Default, all proceeds of any Collateral, and all
funds from time to time on deposit in any Concentration Account or any deposit
account, may be applied by the Agent to the Obligations in such order and manner
as the Agent may elect, subject to Section 3.2. Notwithstanding the foregoing,
------------
however, (a) if an Event of Default has occurred and is continuing, the Agent
and the Lenders agree among themselves that, subject to the terms of the
Intercreditor Agreement, all such payments, proceeds and funds shall be applied
pro rata to the outstanding principal amount of the Loans and unreimbursed
drawings under Letters of Credit (based upon the outstanding principal amount of
the Term Loans A, the outstanding principal amount of the Term Loans B, the
outstanding principal amount of the Revolving Credit Loans and the aggregate
unreimbursed drawings under Letters of Credit as a percentage of the sum of the
aggregate outstanding principal amount of all of the Loans plus the aggregate
unreimbursed drawings under Letters of Credit) and (b) all payments (including
prepayments) of principal and interest on or with respect to the Revolving
Credit Loans shall be first applied to the Swingline Advances until all
principal and interest with respect to the Swingline Advances are paid in full
whether or not an Event of Default has occurred and is continuing. Each payment
received by the Agent under this Agreement or any other Loan Document for the
account of a Lender shall be paid promptly to such Lender, in immediately
available funds, for the account of such Lender's Applicable Lending Office.
Whenever any payment under this Agreement or any other Loan Document shall be
stated to be due 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 the payment of interest and commitment
fee, as the case may be.
Section 3.2 Pro Rata Treatment. Except to the extent otherwise provided in
------------------
this Agreement and except to the extent that payments of principal and interest
with respect to the Revolving Credit Loans constituting Swingline Advances are
to be paid solely to Paribas Bank of Canada: (a) each Loan shall be made by the
Lenders under Section 2.1, each payment of commitment fees under Section 2.11
----------- ------------
(a) shall be made for the account of the Lenders, and each termination or
---
reduction of the Commitments under Section 2.13 shall be applied to the
------------
appropriate Commitments of the Lenders, pro rata according to the respective
unused Commitments; (b) the making, Conversion and Continuation of Loans of a
particular Type (other than Conversions provided for by Section 4.4) shall be
-----------
made pro rata among the Lenders holding Loans of such Type according to the
amounts of their respective appropriate Commitments; (c) each payment and
prepayment by the Borrower of principal of or interest on Loans of a particular
Type shall be made to the Agent for the account of the Lenders holding Loans of
such Type pro rata in accordance with the respective unpaid principal amounts of
such Loans held by such Lenders; (d) Interest Periods for Loans of a particular
Type shall be allocated among the Lenders holding Loans of such Type pro rata
according to the respective principal amounts held by such Lenders; and (e) the
Lenders (other than the Issuing Bank) shall purchase participations in the
40
Letters of Credit pro rata in accordance with their Commitment Percentages of
the aggregate Revolving Credit Loans Commitments.
Section 3.3 Sharing of Payments, Etc. Subject to the terms of the
------------------------
Intercreditor Agreement, if a Lender shall obtain payment of any principal of or
interest on any of the Obligations due to such Lender hereunder through the
exercise of any right of setoff, banker's lien, counterclaim or similar right,
or otherwise, it shall promptly purchase from the other Lenders participations
in the Obligations held by the other Lenders in such amounts, and make such
adjustments from time to time as shall be equitable to the end that all the
Lenders shall share pro rata in accordance with the unpaid principal and
interest on the Obligations then due to each of them. To such end, all of the
Lenders shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if all or any portion of such excess payment
is thereafter rescinded or must otherwise be restored. The Borrower agrees, to
the fullest extent it may effectively do so under applicable law, that any
Lender so purchasing a participation in the Obligations by the other Lenders may
exercise all rights of setoff, banker's lien, counterclaim or similar rights
with respect to such participation as fully as if such Lender were a direct
holder of Obligations in the amount of such participation. Nothing contained
herein shall require any Lender to exercise any such right or shall affect the
right of any Lender to exercise, and retain the benefits of exercising, any such
right with respect to any other indebtedness or obligation of the Borrower.
Section 3.4 Non-Receipt of Funds by the Agent. Unless the Agent shall have
---------------------------------
been notified by a Lender or the Borrower (the "Payor") prior to the date on
-----
which such Lender is to make payment to the Agent of the proceeds of a Loan to
be made by it hereunder or the Borrower is to make a payment to the Agent for
the account of one or more of the Lenders, as the case may be (such payment
being herein called the "Required Payment"), which notice shall be effective
----------------
upon receipt, that the Payor does not intend to make the Required Payment to the
Agent, the Agent may assume that the Required Payment has been made and may, in
reliance upon such assumption (but shall not be required to), make the amount
thereof available to the intended recipient on such date and, if the Payor has
not in fact made the Required Payment to the Agent, the recipient of such
payment shall, on demand, pay to the Agent the amount made available to it
together with interest thereon in respect of the period commencing on the date
such amount was so made available by the Agent until the date the Agent recovers
such amount at a rate per annum equal to the Federal Funds Rate for such period.
Section 3.5 Withholding Taxes. All payments by Mail-Well or the Borrower
-----------------
of principal of and interest on the Loans and of all fees and other amounts
payable under the Loan Documents shall be made free and clear of, and without
deduction by reason of, any present or future taxes, duties, imposts,
assessments or other charges levied or imposed by any Governmental Authority
(other than taxes on the overall net income of the Agent or any Lender). If any
such taxes, duties, imposts, assessments or other charges are so levied or
imposed, Mail-Well and/or the Borrower (as applicable depending upon which of
such Person(s) was obligated with respect to the original payment) will (a) make
additional payments in such amounts so that every net payment of principal of
and interest on the Loans and of all other amounts payable by it under the Loan
Documents, after withholding or deduction for or on account of any such present
or future taxes, duties, imposts, assessments or other charges (including any
tax imposed on or measured
41
by net income of the Agent or a Lender attributable to payments made to or on
behalf of the Agent or a Lender pursuant to this Section 3.5 and any penalties
-----------
or interest attributable to such payments), will not be less than the amount
provided for herein or therein absent such withholding or deduction (provided
--------
that Mail-Well and the Borrower shall have no obligation to pay such additional
amounts to the Agent or any Lender to the extent that such taxes, duties,
imposts, assessments or other charges are levied or imposed by reason of the
failure of the Agent or such Lender to comply with the provisions of Section
-------
3.6), (b) make such withholding or deduction, and (c) remit the full amount
---
deducted or withheld to the relevant Governmental Authority in accordance with
applicable law. The Borrower shall furnish promptly to the Agent for
distribution to each affected Lender, as the case may be, upon request of such
Lender, official receipts evidencing any such payment, withholding or reduction.
Mail-Well and the Borrower will indemnify the Agent and each Lender (without
duplication) against, and reimburse the Agent and each Lender for, all present
and future taxes, duties, imposts, assessments or other charges (including
interest and penalties) levied or collected (whether or not legally or correctly
imposed, assessed, levied or collected), excluding, however, any taxes imposed
on the overall net income of the Agent or such Lender, on or in respect of this
Agreement, any of the Loan Documents or the Obligations or any portion thereof
(the "reimbursable taxes"). Any such indemnification shall be on an after-tax
------------------
basis, taking into account any such reimbursable taxes imposed on the amounts
paid as indemnity. Without prejudice to the survival of any other term or
provision of this Agreement, the obligations of Mail-Well and the Borrower under
this Section 3.5 shall survive the repayment of the Loans, the Letter of Credit
-----------
Liabilities, the Bankers' Acceptance Liabilities and the other Obligations and
the termination of the Commitments.
Section 3.6 Withholding Tax Exemption. Each Lender that is not
-------------------------
incorporated or otherwise formed under the laws of the U.S. or a state thereof
agrees that it will, prior to or on or about the Restatement Date or the date
upon which it becomes a party to this Agreement and if it is legally able to do
so, deliver to the Borrower (on behalf of Mail-Well and the Borrower) and the
Agent two duly completed copies of U.S. Internal Revenue Service Form 1001, 4224
or W-8, as appropriate, certifying in any case that such Lender is entitled to
receive payments from Mail-Well and the Borrower under any Loan Document without
deduction or withholding of any U.S. federal income taxes. Each Lender which so
delivers a Form 1001, 4224 or W-8 further undertakes to deliver to Borrower (on
behalf of Mail-Well and the Borrower) and the Agent two additional copies of
such form (or a successor form) on or before the date such form expires or
becomes obsolete or after the occurrence of any event requiring a change in the
most recent form so delivered by it, and such amendments thereto or extensions
or renewals thereof as may be reasonably requested by the Borrower or the Agent,
in each case certifying that such Lender is entitled to receive payments from
Mail-Well and the Borrower under any Loan Document without deduction or
withholding of any U.S. federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender advises the
Borrower and the Agent that it is not capable of receiving such payments without
any deduction or withholding of U.S. federal income tax.
42
ARTICLE 4
Yield Protection and Illegality
-------------------------------
Section 4.1 Additional Costs.
----------------
(a) The Borrower shall pay directly to each Lender from time to time,
promptly upon the request of such Lender, the costs incurred by such Lender
which such Lender determines are attributable to its making or maintaining of
any Eurodollar Loans or creating any Bankers' Acceptances hereunder or its
obligation to make or create any of such Loans or Bankers' Acceptances,
respectively, hereunder, or any reduction in any amount receivable by such
Lender hereunder in respect of any such Loans or Bankers' Acceptances or
obligations (such increases in costs and reductions in amounts receivable being
herein called "Additional Costs"), resulting from any Regulatory Change which:
----------------
(i) changes the basis of taxation of any amounts payable to such
Lender under this Agreement or its Notes in respect of any of such Loans or
its Bankers' Acceptances (other than taxes imposed on the overall net
income of such Lender or its Applicable Lending Office for any of such
Loans by the jurisdiction in which such Lender has its principal office or
such Applicable Lending Office);
(ii) imposes or modifies any reserve, special deposit, minimum
capital, capital ratio or similar requirement relating to any extensions of
credit or other assets of, or any deposits with or other liabilities or
commitments of, such Lender (including any of such Loans or any deposits
referred to in the definition of "Eurodollar Rate" in Section 1.1 hereof,
-----------
but excluding the Reserve Requirement to the extent it is included in the
calculation of the Adjusted Eurodollar Rate); or
(iii) imposes any other condition affecting this Agreement or the
Notes or any of such extensions of credit or liabilities or commitments or
Bankers' Acceptances.
Each Lender will notify the Borrower (with a copy to the Agent) of any event
occurring after the Closing Date which will entitle such Lender to compensation
pursuant to this Section 4.1 (a) as promptly as practicable after it obtains
-----------
knowledge thereof and determines to request such compensation, and (if so
requested by the Borrower) will designate a different Applicable Lending Office
for the Eurodollar Loans of such Lender if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the sole
opinion of such Lender, violate any law, rule or regulation or be in any way
disadvantageous to such Lender, provided that such Lender shall have no
--------
obligation to so designate an Applicable Lending Office located in the U.S.
Each Lender will furnish the Borrower with a certificate setting forth the basis
and the amount of each request of such Lender for compensation under this
Section 4.1(a). If any Lender requests compensation from the Borrower under this
--------------
Section 4.1(a), the Borrower may, by notice to such Lender (with a copy to the
--------------
Agent), suspend the obligation of such Lender to make or Continue making, or
Convert Prime Rate Loans into, Eurodollar Loans until the Regulatory Change
giving rise to such request ceases to be in effect (in which case the provisions
of Section 4.4 hereof shall be applicable).
-----------
43
(b) Without limiting the effect of the foregoing provisions of this
Section 4.1, in the event that, by reason of any Regulatory Change, any Lender
-----------
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Lender which includes deposits by reference to which the interest rate on
Eurodollar Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Lender which includes Eurodollar
Loans or (ii) becomes subject to restrictions on the amount of such a category
of liabilities or assets which it may hold, then, if such Lender so elects by
notice to the Borrower (with a copy to the Agent), the obligation of such Lender
to make or Continue making, or Convert Prime Rate Loans into, Eurodollar Loans
hereunder shall be suspended until such Regulatory Change ceases to be in effect
(in which case the provisions of Section 4.4 hereof shall be applicable).
-----------
(c) Determinations and allocations by any Lender for purposes of this
Section 4.1 of the effect of any Regulatory Change on its costs of maintaining
-----------
its obligation to make Loans or of making or maintaining Loans or on amounts
receivable by it in respect of Loans or Bankers' Acceptances, and of the
additional amounts required to compensate such Lender in respect of any
Additional Costs, shall be conclusive in the absence of manifest error, provided
that such determinations and allocations are made on a reasonable basis.
Section 4.2 Limitation on Types of Loans. Anything herein to the contrary
----------------------------
notwithstanding, if with respect to any Eurodollar Loans for any Interest Period
therefor:
(a) The Agent determines (which determination shall be conclusive
absent manifest error) that quotations of interest rates for the relevant
deposits referred to in the definition of "Eurodollar Rate" in Section 1.1
-----------
hereof are not being provided in the relative amounts or for the relative
maturities for purposes of determining the rate of interest for such Loans
as provided in this Agreement; or
(b) Required Lenders determine (which determination shall be
conclusive absent manifest error) and notify the Agent that the relevant
rates of interest referred to in the definition of "Eurodollar Rate" or
"Adjusted Eurodollar Rate" in Section 1.1 hereof on the basis of which the
-----------
rate of interest for such Loans for such Interest Period is to be
determined do not accurately reflect the cost to the Lenders of making or
maintaining such Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof and, so long as
such condition remains in effect, the Lenders shall be under no obligation to
make Eurodollar Loans or to Convert Prime Rate Loans into Eurodollar Loans and
the Borrower shall, on the last day(s) of the then current Interest Period(s)
for the outstanding Eurodollar Loans, either prepay such Loans or Convert such
Loans into Prime Rate Loans in accordance with the terms of this Agreement.
Section 4.3 Illegality. Notwithstanding any other provision of this
----------
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to (a) honor its obligation to make Eurodollar Loans
or create Bankers' Acceptances hereunder or (b) maintain Eurodollar Loans or
Bankers' Acceptances hereunder, then such Lender shall promptly notify the
Borrower (with a copy to the Agent) thereof and such Lender's obligation to make
or maintain
44
Eurodollar Loans and to Convert Prime Rate Loans into Eurodollar Loans or to
create Bankers' Acceptances hereunder shall be suspended until such time as such
Lender may again make and maintain Eurodollar Loans or create Bankers'
Acceptances (in which case the provisions of Section 4.4 hereof shall be
-----------
applicable).
Section 4.4 Treatment of Affected Loans. If the obligation of any Lender
---------------------------
to make or Continue, or to Convert Prime Rate Loans into, Eurodollar Loans is
suspended pursuant to Section 4.1 or 4.3 hereof, such Lender's Eurodollar Loans
----------- ---
shall be automatically Converted into Prime Rate Loans on the last day(s) of the
then current Interest Period(s) for the Eurodollar Loans (or, in the case of a
Conversion required by Section 4.1(b) or 4.3 hereof, on such earlier date as
-------------- ---
such Lender may specify to the Borrower with a copy to the Agent) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in Section 4.1 or 4.3 hereof which gave rise to such Conversion no
----------- ---
longer exist:
(a) To the extent that such Lender's Eurodollar Loans have been so
Converted, all payments and prepayments of principal which would otherwise
be applied to such Lender's Eurodollar Loans shall be applied instead to
its Prime Rate Loans; and
(b) All Loans which would otherwise be made or Continued by such
Lender as Eurodollar Loans shall be made as or Converted into Prime Rate
Loans and all Loans of such Lender which would otherwise be Converted into
Eurodollar Loans shall be Converted instead into (or shall remain as) Prime
Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 4.1 or 4.3 hereof which gave rise to the
----------- ---
Conversion of such Lender's Eurodollar Loans pursuant to this Section 4.4 no
-----------
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans are outstanding, such Lender's
Prime Rate Loans shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding Eurodollar Loans, to the
extent necessary so that, after giving effect thereto, all Loans held by the
Lenders holding Eurodollar Loans and by such Lender are held pro rata (as to
principal amounts, Types and Interest Periods) in accordance with their
respective Commitments.
Section 4.5 Compensation. The Borrower shall pay to the Agent for the
------------
account of each Lender, promptly upon the request of such Lender through the
Agent, such amount or amounts as shall be sufficient (in the reasonable opinion
of such Lender) to compensate it for any loss, cost or expense incurred by it as
a result of:
(a) Any payment, prepayment or Conversion of a Eurodollar Loan or
a Bankers' Acceptance for any reason (including, without limitation, the
acceleration of the outstanding Loans pursuant to Section 11.2) on a date
------------
other than the last day of an Interest Period for such Loan or the
scheduled maturity date for such Bankers' Acceptance, respectively; or
(b) Any failure by the Borrower for any reason (including, without
limitation, the failure of any conditions precedent specified in Article 6
---------
to be satisfied) to borrow,
45
Convert or prepay a Eurodollar Loan or a Bankers' Acceptance on the date
for such borrowing, Conversion or prepayment specified in the relevant
notice of borrowing, prepayment or Conversion under this Agreement.
Section 4.6 Capital Adequacy. If, after the Closing Date, any Lender shall
----------------
have determined that the adoption or implementation of any applicable law, rule
or regulation regarding capital adequacy (including, without limitation, any
law, rule or regulation implementing the Basle Accord), or any change therein,
or any change in the interpretation or administration thereof by any central
bank or other Governmental Authority charged with the interpretation or
administration thereof, or compliance by such Lender (or its parent) with any
guideline, request or directive regarding capital adequacy (whether or not
having the force of law) of any central bank or other Governmental Authority
(including, without limitation, any guideline or other requirement implementing
the Basle Accord), has or would have the effect of reducing the rate of return
on such Lender's (or its parent's) capital as a consequence of its obligations
hereunder or the transactions contemplated hereby to a level below that which
such Lender (or its parent) could have achieved but for such adoption,
implementation, change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, within ten Business Days after demand by
such Lender (with a copy to the Agent), the Borrower shall pay to such Lender
such additional amount or amounts as will compensate such Lender (or its parent)
for such reduction. A certificate of such Lender claiming compensation under
this Section 4.6 and setting forth the additional amount or amounts to be paid
-----------
to it hereunder shall be conclusive absent manifest error, provided that the
--------
determination thereof is made on a reasonable basis. In determining such amount
or amounts, such Lender may use any reasonable averaging and attribution
methods.
Section 4.7 Additional Interest on Eurodollar Loans. The Borrower shall
---------------------------------------
pay, directly to each Lender from time to time, additional interest on the
unpaid principal amount of each Eurodollar Loan held by such Lender, from the
date of the making of such Eurodollar Loan until such principal amount is paid
in full, at an interest rate per annum determined by such Lender in good faith
equal to the positive remainder (if any) of (a) the Adjusted Eurodollar Rate
applicable to such Eurodollar Loan minus (b) the Eurodollar Rate applicable to
-----
such Eurodollar Loan. Each payment of additional interest pursuant to this
Section 4.7 shall be payable by the Borrower on each date upon which interest is
-----------
payable on such Eurodollar Loan pursuant to Section 2.4(b); provided, however,
-------------- -------- -------
that the Borrower shall not be obligated to make any such payment of additional
interest until the first Business Day after the date when the Borrower has been
informed (i) that such Lender is subject to a Reserve Requirement and (ii) of
the amount of such Reserve Requirement (after which time the Borrower shall be
obligated to make all such payments of additional interest, including, without
limitation, such payments of additional interest that otherwise would have been
payable by the Borrower on or prior to such time had the Borrower been earlier
informed).
46
ARTICLE 5
Security
--------
Section 5.1 Collateral. To secure the full and complete payment and
----------
performance of the Obligations, the Loan Parties will, and will cause Holdings
and each of Mail-Well's Subsidiaries, other than Unrestricted Subsidiaries and
other than MTRC, to, grant to the Agent for the benefit of the Agent and the
Lenders a perfected, first priority Lien (except for Permitted Liens, if any,
which are expressly permitted by the Loan Documents to have priority over the
Liens in favor of the Agent) on all of their rights, titles and interests in and
to the following Property, whether now owned or hereafter acquired, pursuant to
the Security Documents; provided, however, that Classic shall not be obligated
-------- -------
to grant such Liens on its Property so long as the appropriate minority
shareholders of Classic have not approved the granting of such Liens as is
required as a condition thereto by the Classic Shareholders' Agreement:
(a) all Capital Stock of Mail-Well and certain other Property of
Holdings as specified in the Holdings Security Agreement and all Capital
Stock of the Subsidiaries of Mail-Well owned by Mail-Well or any Subsidiary
of Mail-Well, including, without limitation, Capital Stock of Unrestricted
Subsidiaries and other Subsidiaries of Mail-Well; and
(b) all other Property of Mail-Well and its Subsidiaries other
than (i) Unrestricted Subsidiaries and (ii) MTRC, including, without
limitation, the Mortgaged Properties and all accounts (including, without
limitation, Receivables), inventory (including, without limitation,
Inventory), equipment (other than equipment which is, concurrently
herewith, being sold by Mail-Well and its Subsidiaries and immediately
leased back by Mail-Well and its Subsidiaries pursuant to the Equipment
Lease Facility Documents), contract rights, general intangibles,
instruments, chattel paper, Permits, Intellectual Property and intercompany
Debt, but excluding the Mail-Well ESOP Loan Documents, immaterial leases,
intangibles prohibiting liens and certificated vehicles (provided, however,
-------- -------
that (A) the Agent may, in its discretion and given applicable mortgage tax
considerations, determine that certain real Properties of Mail-Well or its
Subsidiaries located in the States of New York and Tennessee shall not be
required to secure the Obligations or any portion thereof if, in the
Agent's judgment, the effect thereof is not materially adverse to the
Lenders and (B) the real Properties acquired by Mail-Well pursuant to the
Quality Park Acquisition and located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ shall not be
required to secure the Obligations).
If required by the Agent, the pledge of the Capital Stock of Supremex and
Classic shall be appropriately registered in the share registries of the issuers
of such Capital Stock. None of the Capital Stock to be pledged in accordance
with this Section 5.1 shall be subject to any transfer restriction,
-----------
shareholders' agreement or other restriction except for such restrictions, if
any, as may be reasonably acceptable to the Agent.
47
Section 5.2 Guaranties. The Loan Parties shall cause Holdings and each
----------
Subsidiary of Mail-Well in existence on the Restatement Date (before and after
giving effect to the Related Transactions), other than (a) Unrestricted
Subsidiaries and (b) MTRC, to guaranty the payment and performance of the
Obligations pursuant to the Holdings Guaranty, the Mail-Well Guaranty or the
Subsidiary Guaranties, as the case may be (except that the Borrower, as primary
obligor with respect to the Obligations, shall not be required to guaranty the
payment and performance of the Obligations); provided, however, that Classic
-------- -------
shall not be obligated to execute a Subsidiary Guaranty so long as the
appropriate minority shareholders of Classic have not approved such guaranty as
is required as a condition thereto by the Classic Shareholders' Agreement.
Section 5.3 New Subsidiaries. Contemporaneously with the creation or
----------------
acquisition of any Subsidiary of Mail-Well after the Restatement Date, the Loan
Parties shall:
(a) grant or cause to be granted to the Agent, for the benefit of
the Agent and the Lenders, the Mail-Well Lenders and the Equipment Lease
Facility Lenders as security for the payment and performance of the
Obligations, the Mail-Well Obligations and the Secured Equipment Lease
Facility Obligations, a perfected, first priority security interest in all
Capital Stock or other ownership interests in or indebtedness of such
Subsidiary owned by Mail-Well or owned by any such Subsidiary (other than
an Unrestricted Subsidiary) of Mail-Well (to the extent such Capital Stock
or other ownership interests or indebtedness are already not so pledged to
the Agent, and deliver or cause to be delivered to the Agent all
certificates and instruments evidencing such Capital Stock or other
ownership interests or indebtedness together with stock powers or other
instruments of transfer or endorsements as the Agent may request, all in
form and substance reasonably satisfactory to the Agent);
(b) cause each such Subsidiary (other than an Unrestricted
Subsidiary) to guaranty the payment and performance of the Obligations, the
Mail-Well Obligations and the Secured Equipment Lease Facility Obligations
by executing and delivering to the Agent a Subsidiary Guaranty; and
(c) cause each such Subsidiary (other than an Unrestricted
Subsidiary) to execute and deliver to the Agent a Subsidiary Security
Agreement and such other Security Documents (including, without limitation,
financing statements) as the Agent may reasonably request to grant the
Agent, for the benefit of the Agent and the Lenders, the Mail-Well Lenders
and the Equipment Lease Facility Lenders as security for the Obligations,
the Mail-Well Obligations and the Secured Equipment Lease Facility
Obligations, respectively, a perfected, first priority Lien (except for
Permitted Liens, if any, which are expressly permitted by the Loan
Documents to have priority over the Liens in favor of the Agent) on all
Property of such Subsidiary, excluding immaterial leases, intangibles
prohibiting liens and certificated vehicles;
provided, however, that, notwithstanding anything to the contrary contained in
-------- -------
this Section 5.3, (i) no Canadian Subsidiary of the Borrower shall be obligated
-----------
to execute a Subsidiary Guaranty guaranteeing payment or performance of the
Mail-Well Obligations or the Secured Equipment Lease Facility Obligations as
otherwise required in clause (b) preceding, and (ii) no Canadian
----------
48
Subsidiary of Supremex shall be obligated to execute a Subsidiary Security
Agreement or other Security Documents securing payment or performance of the
Mail-Well Obligations or the Secured Equipment Lease Facility Obligations as
otherwise required in clause (c) preceding. None of the Capital Stock to be
----------
pledged in accordance with this Section 5.3 shall be subject to any transfer
-----------
restriction, shareholders' agreement or other restriction except for such
restrictions, if any, as may be reasonably acceptable to the Agent.
Section 5.4 New Mortgaged Properties. The Loan Parties will, and will
------------------------
cause each of their Subsidiaries, other than (a) Unrestricted Subsidiaries and
(b) MTRC, to, contemporaneously with (i) the acquisition of any fee real
Property or (ii) the execution of any lease of real Property where Inventory of
Mail-Well or any of such Subsidiaries in excess of $1,000,000 is or will be
located or covering any plant or storage site, execute, acknowledge and deliver
to the Agent a Mortgage or an amendment or modification to an existing Mortgage
covering (A) all fee real Property acquired by Mail-Well or any of such
Subsidiaries subsequent to the Closing Date and (B) all of Mail-Well's or any of
such Subsidiaries' rights and interests as lessee, in, to and under each such
real estate lease entered into subsequent to the Closing Date, together with
evidence reasonably satisfactory to the Agent and its counsel, including,
without limitation, if requested by the Agent, a commitment for a mortgagee
policy of title insurance in favor of the Agent, in form and substance
reasonably satisfactory to the Agent, that the Mortgage creates a valid, first
priority Lien on the fee estate or leasehold estate, as the case may be, in
favor of the Agent for the benefit of the Agent and the Lenders (except for
Permitted Liens, if any, which are expressly permitted by the Loan Documents to
have priority over the Liens in favor of the Agent), together with appraisals
and surveys if requested by the Agent; provided, however, that, with respect to
-------- -------
the acquisition of any fee real Property having a fair market value of less than
$500,000, Mail-Well and such Subsidiaries shall not be required to execute,
acknowledge or deliver such documents unless or until fee real Property or
Properties having an aggregate fair market value of $500,000 or more would be
covered by any such new Mortgage or amendment or modification to an existing
Mortgage. Following the date of each such acquisition of Property, if requested
by the Agent, the Loan Parties shall, and shall cause each of such Subsidiaries
with an interest in such Properties to, (i) deliver or cause to be delivered to
the Agent, a mortgagee policy of title insurance insuring the Liens of the
Mortgage covering such fee real Property in an amount reasonably satisfactory to
the Agent on standard form policies (except for Permitted Liens, if any, which
are expressly permitted by the Loan Documents to have priority over the Liens in
favor of the Agent) and (ii) provide the Agent with a current environmental
assessment of such Property in form and substance reasonably satisfactory to the
Agent. In addition, with respect to each such leasehold estate, the Loan
Parties will, and will cause each of such Subsidiaries to, use their best
efforts to obtain either (A) waivers of landlord's Liens from each lessor or (B)
landlord agreements from each lessor, in form and substance reasonably
satisfactory to the Agent.
Section 5.5 Release of Collateral. Upon any sale, transfer or other
---------------------
disposition of Collateral that is expressly permitted under Section 9.8 of the
Mail-Well Credit Agreement and upon five Business Days prior written request by
the Borrower, the Agent shall execute at Mail-Well's and the Borrower's expense
such documents as may be necessary to evidence the release by the Agent of its
Liens on such Collateral; provided, however, that (a) the Agent shall not be
-------- -------
required to release any Lien on any Collateral if a Default shall have occurred
and be continuing, (b) the Agent shall not be required to execute any such
document on terms which, in the Agent's
49
opinion, would expose the Agent to liability or create any obligation not
reimbursed by Mail-Well and the Borrower or entail any consequences other than
the release of such Lien without recourse or warranty, and (c) such release
shall not in any manner discharge, affect or impair any of the Obligations or
any of the Agent's Liens on any Collateral retained by Holdings or Mail-Well or
any of its Subsidiaries, including, without limitation, its Liens on the
proceeds of any such sale, transfer or other disposition. The Loan Parties
represent and warrant to the Agent and the Lenders that none of the "GECC
Equipment", as such term is defined in the Mail-Well Credit Agreement, is, or
was previously, owned by any Loan Party, and that such equipment is being leased
by one or more of the Loan Parties as lessee from General Electric Capital
Corporation as owner and lessor. The Lenders authorize the Agent to confirm in
writing (in the form of a release or otherwise, as the Agent may determine) that
the GECC Equipment and the proceeds thereof do not constitute Collateral and to
release the Agent's Lien on the Mail-Well ESOP Loan Documents, the Equipment
Lease Facility Equipment and, concurrently with each transfer of such
Receivables to MTRC in accordance with the terms and provisions of the Accounts
Receivable Securitization Facility Documents, the Receivables. Without limiting
the generality of the foregoing, each Lender hereby acknowledges and agrees that
the Agent has executed and delivered, or will execute and deliver, a letter
agreement to and in favor of Paribas Properties, Inc. and the "Equity Lenders"
and the "Financing Lenders", as such terms are defined in the Equipment Lease
Facility Documents, pursuant to which the Agent (as among the Agent, the
Lenders, the Mail-Well Lenders, Paribas Properties, Inc. and such "Equity
Lenders" and "Financing Lenders" only) disclaims any security interest in the
Equipment Lease Facility Equipment.
Section 5.6 Setoff. If an Event of Default shall have occurred and be
------
continuing, each Lender is hereby authorized at any time and from time to time,
without notice to Mail-Well, the Borrower or any other Loan Party (any such
notice being hereby expressly waived by the Loan Parties), to set off 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 to or
for the credit or the account of any Loan Party against any and all of the
Obligations of the Loan Parties (or any one or more of them) now or hereafter
existing under this Agreement, any of such Lender's Notes or any other Loan
Document, irrespective of whether or not the Agent or such Lender shall have
made any demand under this Agreement, any of such Lender's Note or any such
other Loan Document and although such Obligations may be unmatured. Each Lender
agrees promptly to notify the Borrower (with a copy to the Agent) after any such
setoff and application, provided that the failure to give such notice shall not
--------
affect the validity of such setoff and application. The rights and remedies of
each Lender hereunder are in addition to other rights and remedies (including,
without limitation, other rights of setoff) which such Lender may have.
ARTICLE 6
Conditions Precedent
--------------------
Section 6.1 Initial Extension of Credit. Each of the obligation of each
---------------------------
Lender to make its initial Loan under this Agreement, the obligation of the
Issuing Bank to issue the initial Letter of Credit under this Agreement and the
obligation of the Revolving Credit Lenders to create the initial Bankers'
Acceptance under this Agreement are subject to the conditions precedent that the
Agent shall have received, on or before the date of the making of such initial
Loan, the issuance
50
of such initial Letter of Credit or the creation of such initial Bankers'
Acceptance, respectively, all of the following in form and substance
satisfactory to the Agent and, in the case of actions to be taken, evidence that
the following required actions have been taken to the satisfaction of the Agent:
(a) Resolutions. Resolutions of the Board of Directors of each Loan
-----------
Party certified by its Secretary or an Assistant Secretary which authorize
the execution, delivery and performance by such Loan Party of the Loan
Documents and the Related Transactions Documents (as defined in the Mail-Well
Credit Agreement) to which it is or is to be a party;
(b) Incumbency Certificate. A certificate of incumbency certified by
----------------------
the Secretary or an Assistant Secretary of each Loan Party certifying the
name of each officer of such Loan Party (i) who is authorized to sign the
Loan Documents to which such Loan Party is or is to be a party (including any
certificates contemplated therein), together with specimen signatures of each
such officer, and (ii) who will, until replaced by other officers duly
authorized for that purpose, act as its representative for the purposes of
signing documents and giving notices and other communications in connection
with the Loan Documents and the transactions contemplated thereby;
(c) Articles or Certificates of Incorporation, etc.. The articles or
-----------------------------------------------
certificates of incorporation or amalgamation, certificate of formation,
certificate of limited partnership, partnership agreement or other applicable
constitutional document of each Loan Party certified by a Secretary or an
Assistant Secretary or other appropriate officer of such Loan Party as being
accurate and complete copies thereof;
(d) Bylaws. The bylaws of each Loan Party certified by the Secretary
------
or an Assistant Secretary of such Loan Party;
(e) Governmental Certificates. Certificates of appropriate officials
-------------------------
as to the existence and good standing, status or compliance, as applicable,
of each Loan Party in their respective jurisdictions of incorporation or
organization and any and all jurisdictions where such Loan Party is qualified
to do business as a foreign corporation or other entity, each such
certificate to be dated as of a Current Date;
(f) Term Loans A Notes. The Term Loans A Notes duly completed and
------------------
executed by the Borrower;
(g) Term Loans B Notes. The Term Loans B Notes duly completed and
------------------
executed by the Borrower;
(h) Revolving Credit Loans Notes. The Revolving Credit Loans Notes
----------------------------
duly completed and executed by the Borrower;
(i) Holdings Guaranty. The Holdings Guaranty executed by Holdings;
-----------------
51
(j) Mail-Well Guaranty. The Mail-Well Guaranty executed by Mail-Well;
------------------
(k) Subsidiary Guaranties. A Subsidiary Guaranty executed by each of
---------------------
the Subsidiaries of Mail-Well, other than (i) the Borrower and Classic, (ii)
Unrestricted Subsidiaries, and (iii) MTRC;
(l) Holdings Security Agreement. The Holdings Security Agreement
---------------------------
executed by Holdings;
(m) Mail-Well Security Agreement. The Mail-Well Security Agreement
----------------------------
executed by Mail-Well;
(n) Borrower Security Agreement. The Borrower Security Agreement
---------------------------
executed by the Borrower;
(o) Subsidiary Security Agreements. A Subsidiary Security Agreement
------------------------------
executed by each of the Subsidiaries of Mail-Well, other than (i) the Borrower
and Classic, (ii) Unrestricted Subsidiaries, and (iii) MTRC;
(p) Mortgages. Mortgages covering all of the Mortgaged Properties
---------
owned by Mail-Well or any of its Subsidiaries listed on Schedule 1.1(a) hereof
---------------
executed by Mail-Well or such Subsidiary (as applicable) or, with respect to
such Mortgaged Properties as to which a Mortgage was previously executed,
amendments and restatements of or other modifications to such Mortgages
previously executed;
(q) Insurance Policies. Copies of all insurance policies required by
------------------
this Agreement and the other Loan Documents, together with loss payable
endorsements naming the Agent as loss payee under all such casualty insurance
policies and the Agent as an additional insured party under all such liability
policies;
(r) Stock Certificates. The stock certificates representing all of the
------------------
issued and outstanding Capital Stock of Mail-Well and each of its Subsidiaries
(other than the Capital Stock of Classic not owned by the Borrower) accompanied
by appropriate stock powers signed in blank;
(s) Financing Statements. UCC-1 financing statements and all other
--------------------
requisite filing documents (or amendments to such financing statements or other
documents previously filed) executed by the Loan Parties necessary to perfect
the Liens created pursuant to the Security Documents;
(t) Lien Releases, etc. Duly executed (i) releases or assignments of
------------------
Liens and UCC-3 financing statements and other Lien releases in recordable form,
(ii) with respect to leased Mortgaged Properties, waivers and consents of the
landlords thereof and their lenders, and (iii) with respect to fee owned
Mortgaged Properties, mortgagee policies of title insurance issued in favor of
the Agent or endorsements thereto or title opinions (as the Agent may require),
in each case as may be necessary to reflect that the Liens created by
52
the Security Documents are first priority Liens (except for Permitted Liens, if
any, which are expressly permitted by the Loan Documents to have priority over
the Liens in favor of the Agent); each such mortgagee policy of title insurance
(or commitment therefor or endorsement thereto, as applicable) or title opinion
shall (i) have been issued at the expense of Mail-Well or a Subsidiary of Mail-
Well, (ii) contain no exceptions or exclusions except for those approved by the
Agent, (iii) have been issued and, with respect to title insurance, underwritten
by companies acceptable to the Agent, (iv) with respect to title insurance,
contain such endorsements as may be required by the Agent, (v) with respect to
title insurance, be in an amount satisfactory to the Agent, and (vi) be
otherwise in form and substance satisfactory to the Agent;
(u) Lien Searches. Lien searches in the names of Mail-Well and each
-------------
Subsidiary of Mail-Well (and in all names under which it has done business
within the last five years) in each state or province where each such Person
maintains an office or has Property, showing no financing statements or other
Lien instruments of record except for Permitted Liens;
(v) Letter of Credit Agreement. With respect to any issuance of a
--------------------------
Letter of Credit, a Letter of Credit Agreement in the form required by the
Issuing Bank with respect thereto executed by the Borrower;
(w) Solvency Certificate. A certificate executed by a Responsible
--------------------
Officer of Holdings (with respect to Holdings) and Mail-Well (with respect to
Mail-Well and its Subsidiaries) demonstrating that, both concurrently with and
after giving effect to the Loans and the Related Transactions (as defined in the
Mail-Well Credit Agreement), each of Holdings, Mail-Well and the Subsidiaries of
Mail-Well are Solvent on a consolidated and consolidating basis, and
contribution agreements between and among Mail-Well and its Subsidiaries to
evidence applicable rights of contribution;
(x) Prepayment of Certain Loans. The Borrower shall have, as of the
---------------------------
Restatement Date and concurrently with the execution and delivery of this
Agreement, (i) prepaid the principal amount of the Term Loans A in the amount of
$_______ such that, after giving effect thereto, the aggregate outstanding
principal amount of the Term Loans A equals $45,000,000, and (ii) prepaid the
principal amount of the Revolving Credit Loans in the amount of Cdn. $______
such that, after giving effect thereto, the Outstanding Credit is Cdn.
$10,000,000;
(y) Consummation of Related Transactions, etc. All conditions
-----------------------------------------
precedent to (A) the making of the Mail-Well Loans under the Mail-Well Credit
Agreement, (B) the advancement of funds under the Equipment Lease Facility, and
(C) the advancement of funds under the Accounts Receivable Securitization
Facility, shall have been satisfied, and each of the Equipment Lease Facility
and the Accounts Receivable Securitization Facility shall have been funded in
accordance with the Related Transaction Documents relating thereto and in
compliance with all conditions and requirements contained therein without waiver
or exception except as may have been consented to by the Agent in writing;
53
(z) Consents. Copies of all material consents necessary for the
--------
execution, delivery and performance by each of the Loan Parties of the Loan
Documents and the Related Transactions Documents (as defined in the Mail-
Well Credit Agreement) to which it is a party, which consents shall be
certified by a Responsible Officer of Mail-Well or the Borrower as true and
correct copies of such consents as of the Restatement Date;
(aa) Payment of Interest, Fees and Expenses. Mail-Well and the
--------------------------------------
Borrower shall have paid all fees accrued to the Restatement Date and not
previously paid with respect to the loans, letters of credit and bankers'
acceptances outstanding under the Original Supremex Credit Agreement, and
to Mail-Well and the Borrower shall have paid all fees due on or before the
Restatement Date as specified in this Agreement or in the Agent's Letter
and all fees and expenses of or incurred by the Agent and its counsel to
the extent billed on or before the Restatement Date and payable pursuant to
this Agreement;
(bb) Compliance with Laws. The Loan Parties shall have complied
--------------------
with all Governmental Requirements necessary to consummate the transactions
contemplated by this Agreement, the other Loan Documents and the Related
Transactions Documents (as defined in the Mail-Well Credit Agreement);
(cc) No Prohibitions. No Governmental Requirement shall prohibit
---------------
the consummation of the transactions contemplated by this Agreement, any
other Loan Document or any Related Transactions Document (as defined in the
Mail-Well Credit Agreement), and no order, judgment or decree of any
Governmental Authority or arbitrator shall, and no litigation or other
proceeding shall be pending or threatened which would, enjoin, prohibit,
restrain or otherwise adversely affect the consummation of the transactions
contemplated by this Agreement, the other Loan Documents and the Related
Transactions Documents (as defined in the Mail-Well Credit Agreement) or
otherwise have a Material Adverse Effect;
(dd) Bank Accounts. If and to the extent required by the Agent or
-------------
the Required Lenders, Mail-Well and its Subsidiaries shall have established
Concentration Accounts (or, if Mail-Well and its Subsidiaries so desire, a
single Concentration Account) into which proceeds of all Collateral,
including, without limitation, proceeds of sales of accounts, are deposited
directly, as received, which Concentration Account(s) shall be governed by
an agreement or agreements between Mail-Well and/or its Subsidiaries (as
applicable), the Agent and the depository bank(s) in form and substance
satisfactory to the Agent;
(ee) Financial Statements. Copies of each of the financial
--------------------
statements referred to in Section 7.2;
-----------
(ff) Opinions of Counsel. Favorable opinions of ▇▇▇▇▇▇▇▇▇ &
-------------------
▇▇▇▇▇▇▇▇▇, L.L.P., counsel for the Loan Parties, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
Canadian counsel for the Loan Parties, and Stikeman, Elliott, Canadian
counsel for the Agent, and such other counsel as may be acceptable to the
Agent, in form and substance satisfactory to the Agent with respect to
Holdings and the Borrower and its Subsidiaries and with respect to the
54
Loan Documents and the Related Transactions (as defined in the Mail-Well
Credit Agreement) as the Agent may require; and
(gg) Intercreditor Agreement. The Intercreditor Agreement shall
-----------------------
have been executed by the Lenders, the Mail-Well Lenders and the Equipment
Lease Facility Lenders.
Mail-Well and the Borrower shall deliver, or cause to be delivered, to the Agent
sufficient counterparts of each agreement, document or instrument to be received
by the Agent under this Section 6.1 to permit the Agent to distribute a copy of
-----------
the same to each of the Lenders. Upon the request of the Borrower, the Agent
shall inform the Borrower in writing as to the status of satisfaction of the
conditions precedent set forth in this Section 6.1 and each of the additional
-----------
conditions precedent set forth in this Article 6.
---------
Section 6.2 All Extensions of Credit . The obligation of each Lender to
-------------------------
make any Loan (including the initial Loan) and the obligation of the Issuing
Bank to issue any Letter of Credit (including the initial Letter of Credit) and
the obligation of the Revolving Credit Lenders to create any Bankers'
Acceptances (including the initial Bankers' Acceptance) under this Agreement are
subject to the satisfaction of each of the conditions precedent set forth in
Section 6.1 and each of the following additional conditions precedent:
-----------
(a) No Default. No Default shall have occurred and be continuing,
----------
or would result from such Loan, Letter of Credit or Bankers' Acceptance;
(b) Representations and Warranties. All of the representations
------------------------------
and warranties of Mail-Well and the Borrower and the other Loan Parties
contained in Article 7 hereof and in the other Loan Documents shall be
---------
true and correct on and as of the date of such Loan or Letter of Credit
with the same force and effect as if such representations and warranties
had been made on and as of such date; and
(c) Additional Documentation. The Agent shall have received such
------------------------
additional approvals, opinions, agreement, documents and instruments as
the Agent may reasonably request.
Each notice of borrowing with respect to the making of any Loans or request for
the issuance of a Letter of Credit or acceptance of a Bankers' Acceptance given
by the Borrower hereunder shall constitute a representation and warranty by
Mail-Well and the Borrower and the other Loan Parties that the conditions
precedent set forth in Sections 6.2(a) and (b) have been satisfied (both as of
--------------- ---
the date of such notice and, unless the Borrower otherwise notifies the Agent
prior to the date of such borrowing or Letter of Credit or Bankers' Acceptance,
as of the date of such borrowing or Letter of Credit or Bankers' Acceptance)
Section 6.3 Term Loans B. The obligation of each Lender to make any of
------------
the Term Loans B is subject to the conditions precedent that the Agent shall
have received, on or before the advance of such Term Loans B, all of the
following in form and substance reasonably satisfactory to the Agent (except as
otherwise provided in this Section 6.3 below) and, in the case of actions
-----------
55
to be taken, evidence that the following required actions have been taken to the
satisfaction of the Agent:
(a) Resolutions. Resolutions of the Board of Directors of each Loan
-----------
Party that is a party to any PNG Acquisition Documents or Loan Documents to
be executed in connection with the Term Loans B certified by its Secretary
or an Assistant Secretary which authorize the PNG Acquisition, the
borrowing of the Term Loans B (with respect to the resolutions of the Board
of Directors of the Borrower) and the execution, delivery and performance
by such Loan Party of the Loan Documents to be executed and/or delivered by
it in connection therewith (as applicable);
(b) Incumbency Certificate. A certificate of incumbency certified by
----------------------
the Secretary or an Assistant Secretary of each Loan Party that is a party
to any PNG Acquisition Documents or Loan Documents to be executed in
connection with the Term Loans B certifying the name of each officer of
such Loan Party who is authorized to sign the Loan Documents to be executed
and/or delivered in connection with the PNG Acquisition;
(c) Articles or Certificates of Incorporation, etc. Copies of any
----------------------------------------------
amendments to the articles or certificates of incorporation or other
applicable constitutional document of each Loan Party since the Restatement
Date, certified by the appropriate Governmental Authority of such Loan
Party's jurisdiction of incorporation;
(d) Bylaws. A true and correct copy of any amendments to the bylaws
------
of each Loan Party since the Restatement Date, in each case certified by
the Secretary or an Assistant Secretary of such Loan Party;
(e) Additional Security Documents. If requested by the Agent, such
-----------------------------
security agreements, financing statements and assignments executed by the
Borrower as the Agent may request in connection with the Property acquired
pursuant to the PNG Acquisition, all of which documents shall be within the
power and authority of the Borrower and shall be enforceable in accordance
with their respective terms, except as may be limited by bankruptcy,
insolvency or other laws of general application relating to the enforcement
of creditors' rights and general principles of equity;
(f) Mortgages. Mortgages covering all the material real Properties
---------
or interests therein (including leasehold interests) acquired pursuant to
the PNG Acquisition, and such lease agreements, surveys, appraisals,
environmental reports, agreements of landlords and their lenders relating
to leased Properties, information relating to zoning and mortgagee policies
of title insurance as the Agent may require in connection therewith
(consistent with the requirements for real Properties contained in the
Original Supremex Credit Agreement);
(g) Endorsements to Mortgagee Title Policies. Endorsements to
----------------------------------------
existing policies of title insurance as the Agent may reasonably require;
(h) Lien Releases. Payoff letters in form and substance reasonably
-------------
acceptable to the Agent or duly executed releases or assignments of Liens
and financing statements
56
in recordable form as may be necessary to reflect that the Liens created by
the Security Documents affecting the assets acquired in connection with the
PNG Acquisition are first priority Liens (except for Permitted Liens, if
any, which are expressly permitted by the Loan Documents to have priority
over the Liens in favor of the Agent);
(i) Lien Searches. Lien searches in the name of PNG in each province
-------------
or other jurisdiction where such Person maintains an office or has
Property, showing no financing statements or other Lien instruments of
record except for Permitted Liens or Liens being released concurrently with
the PNG Acquisition;
(j) Acquisition Documents. Copies of all PNG Acquisition Documents,
---------------------
and confirmation that the Loan Parties will not, in connection with the PNG
Acquisition, assume or incur any indebtedness, liabilities or obligations
other than those that are reasonably acceptable to the Agent;
(k) Consummation of the PNG Acquisition. All of the PNG Acquisition
-----------------------------------
Documents shall have been duly and validly executed and delivered by each
of the parties thereto and shall constitute the legal, valid and binding
obligations of the parties thereto, enforceable against such parties in
accordance with their respective terms (except as may be limited by
bankruptcy, insolvency or other laws of general application relating to the
enforcement of creditor's rights); and the PNG Acquisition shall have been
consummated contemporaneously with the making of the Term Loans B (and in
compliance with all conditions and requirements contained therein without
waiver or exception except as may have been consented to by the Borrower in
the exercise of its prudent business judgment), and the Borrower shall have
informed the Agent of the purchase price (whether payable in cash,
property, assumption of Debt or other form of consideration) payable in
connection with the PNG Acquisition, which purchase price shall not exceed
Cdn. $29,000,000;
(l) Consents, etc. All approvals, authorizations, consents and
-------------
waivers of any Governmental Authority or other Person necessary or
appropriate for the execution, delivery and performance by each of the Loan
Parties and other parties thereto of the PNG Acquisition Documents to which
it is a party, including, without limitation, (i) all such approvals,
authorizations, consents and waivers disclosed in the PNG Acquisition
Documents (including those required in connection with the assignment of
material contracts) and (ii) any such approvals, authorizations, consents
or waivers reasonably required by the Agent in connection with the
Mortgaged Properties acquired in connection with the PNG Acquisition and
the granting of a security interest to the Agent in each material contract
acquired or assumed by any Loan Party in connection with the PNG
Acquisition, shall have been obtained by the Borrower except to the extent
the same may have been waived by the Borrower in the exercise of its
prudent business judgment and none of which approvals, authorizations,
consents or waivers which has not been obtained will, individually or in
the aggregate with all such approvals, authorizations, consents or waivers
which have not been obtained in connection with the PNG Acquisition,
materially adversely affect the assets or business being acquired pursuant
to the PNG Acquisition Documents;
57
(m) Permits. The Borrower shall have obtained all material Permits
-------
that are necessary to ensure that they are able to conduct their businesses
and Properties acquired pursuant to the PNG Acquisition substantially in
accordance with all Governmental Requirements;
(n) Regulatory Approvals. All filings, consents or approvals with or
--------------------
of Governmental Authorities necessary to consummate the PNG Acquisition
shall have been made and/or obtained, as applicable, including, without
limitation, all filings (if any) required under the Investments Canada Act
and ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 and the lapse of
all waiting periods with respect thereto;
(o) No Prohibitions. No Governmental Requirement shall prohibit or
---------------
adversely affect the consummation of the transactions contemplated by this
Agreement or the other Loan Documents or the PNG Acquisition, and no
action, suit, investigation, proceeding, order, judgment or decree of,
before or by any Governmental Authority, arbitrator or other Person shall,
and no such action, suit, investigation, proceeding, order, judgment or
decree shall be pending or threatened which would, enjoin, prohibit,
restrain or otherwise adversely affect the consummation of the transactions
contemplated by this Agreement or the other Loan Documents and the PNG
Acquisition Documents or otherwise have a Material Adverse Effect;
(p) Financial Statements; No Material Adverse Effect or Change. The
----------------------------------------------------------
financial statements (relating to PNG and the assets to be acquired
pursuant to the PNG Acquisition) delivered or to be delivered pursuant to
the PNG Acquisition Documents (which financial statements shall be audited
if and to the extent available), and such other financial statements, pro
forma financial statements and financial projections as of and for such
periods as the Agent may reasonably request, shall have been delivered to
the Agent and the Lenders, and such financial statements, to the knowledge
of the Loan Parties, shall be true and correct in all material respects and
shall fairly and accurately present the financial condition and results of
operations of the Persons specified therein as of and for the periods
indicated therein; as of the proposed date of the making of the Term Loans
B and both before and after giving effect to the Term Loans B and the PNG
Acquisition, no Material Adverse Effect shall have occurred or could
reasonably be expected to occur as a result of or in connection with the
PNG Acquisition and no material adverse change shall have occurred with
respect to the financial condition, business, operations, capitalization,
liabilities or prospects of the Borrower or its Subsidiaries since June 30,
1996;
(q) Disbursement Instructions. Disbursement instructions from the
-------------------------
Borrower to the Agent with respect to the disbursement of the proceeds of
the Term Loans B;
(r) Legal Opinions. Favorable opinions (or comfort letters with
--------------
respect to clause (ii) succeeding) of: (i) counsel for the Loan Parties, in
-----------
form and substance satisfactory to the Agent with respect to the PNG
Acquisition and the Loan Documents to be executed and/or delivered in
connection therewith and (ii) such other counsel as may be acceptable to
the Agent regarding the form and enforceability of the Mortgages in the
58
jurisdictions where any real Property acquired in connection with the PNG
Acquisition is located;
(s) Reliance Letters. Copies of all legal opinions issued in
----------------
connection with the PNG Acquisition and (except if and to the extent that
the Borrower is not able to obtain such letters after exercising its
reasonable efforts to do so) letters from counsel that issued such opinions
stating that such opinions may be relied upon by the Agent and the Lenders;
(t) Representations and Warranties. All representations and
------------------------------
warranties made by the Loan Parties in the PNG Acquisition Documents and,
to the knowledge of the Loan Parties after due inquiry, all representations
and warranties made by all other Persons in the PNG Acquisition Documents
shall be true and correct in all material respects on and as of each date
made or deemed made and as of the Term Loans B Funding Date; and the PNG
Acquisition Documents shall set forth the entire agreement and
understanding of the parties thereto relating to the subject matter
thereof, and there shall be no other agreements, arrangements or
understandings, written or oral, relating to the matters covered thereby;
and
(u) Satisfaction of Conditions Precedent. As of the Term Loans B
------------------------------------
Funding Date, all conditions precedent to the PNG Acquisition Documents
shall have been fulfilled or (with the prior consent of the Borrower in the
exercise of its prudent business judgment) waived, and there shall not have
been any breach of any material term or condition contained in the PNG
Acquisition Documents; after giving effect to the PNG Acquisition, the
Borrower will have acquired and become the owner of all of the Property to
be acquired thereby free and clear of any Liens, except Permitted Liens; in
connection with the PNG Acquisition, the Loan Parties shall not have
assumed any liabilities other than those reflected or reserved against in
the applicable pro forma financial statements delivered to the Agent or
contingent liabilities under the PNG Acquisition Documents which are not
required to be reflected or reserved against in accordance with GAAP.
Each notice of borrowing with respect to the making of any Term Loans B given by
the Borrower shall constitute a representation and warranty by the Borrower and
the other Loan Parties that all conditions precedent set forth in this Section
-------
6.3 have been satisfied (both as of the date of such notice and, unless the
---
Borrower otherwise notifies the Agent prior to the date of such borrowing, as of
the date of such borrowing). Notwithstanding the first sentence of this Section
-------
6.3, the documents or other matters referred to in clauses (m), (o), (s) and (t)
--- ------- --- --- --- ---
shall not be required to be in form and substance satisfactory to the Agent.
Section 6.4 Closing Certificates. Mail-Well and the Borrower shall,
--------------------
concurrently with the execution and delivery of this Agreement, execute and
deliver to the Agent a Closing Certificate in form and substance satisfactory to
the Agent certifying as to the satisfaction of each of the conditions precedent
set forth in Section 6.1 and 6.2 which are required to be satisfied on or before
----------- ---
the Restatement Date. Mail-Well and the Borrower shall, concurrently with any
advance of any of the Term Loans B, execute and deliver to the Agent a Closing
Certificate in form and substance satisfactory to the Agent certifying as to the
satisfaction of each of the conditions precedent set forth in Sections 6.2 and
------------
6.3 which are required to be satisfied on or before the
---
59
Term Loans B Funding Date, which subsequent Closing Certificate shall
incorporate any supplements to certain schedules hereto prepared by the Borrower
in accordance with Section 13.26.
-------------
ARTICLE 7
Representations and Warranties
------------------------------
Each of the Loan Parties which is now or hereafter a party to this
Agreement hereby jointly and severally represents and warrants to the Agent and
the Lenders that the following statements are and, after giving effect to the
Related Transactions, will be true, correct and complete:
Section 7.1 Corporate Existence. Each Loan Party (a) is a corporation,
-------------------
or, with respect to Wisco II and Wisco III, a limited liability company, duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, (b) has all requisite power
and authority to own its Properties and carry on its business as now being or as
proposed to be conducted, and (c) is qualified to do business in all
jurisdictions in which the nature of its business makes such qualification
necessary and where failure to so qualify would have a Material Adverse Effect.
Each Loan Party has the power and authority and legal right to execute, deliver
and perform its obligations under the Loan Documents and the Related
Transactions Documents to which it is or may become a party. Prior to the
Closing Date, the Borrower did not engage in any business or incur any
liabilities except for activities, expenses and liabilities incident to its
organization and to the carrying out of the transactions contemplated by the
Original Supremex Credit Agreement.
Section 7.2 Financial Statements.
---------------------
(a) Mail-Well has delivered to the Agent and the Lenders (i) its
audited consolidated balance sheet and statements of income, cash flow and
retained earnings for the fiscal year ended December 31, 1995 and (ii) its
unaudited consolidated balance sheet and statements of income, cash flow and
retained earnings for the period ended June 30, 1996. To the knowledge of Mail-
Well and the Borrower, such financial statements are true and correct, have been
prepared in accordance with GAAP and fairly and accurately present, on a
consolidated basis, the financial condition of Mail-Well and its consolidated
Subsidiaries as of the respective dates indicated therein and the results of
operations for the respective periods indicated therein. There has not been, as
of the Restatement Date, any material adverse change in the business, condition
(financial or otherwise), operations, prospects or Properties of Mail-Well or
any of its consolidated Subsidiaries since the effective dates of the most
recent financial statements referred to in this Section 7.2(a).
--------------
(b) Neither the Borrower nor any of its Subsidiaries has any
contingent liabilities, liabilities for taxes, unusual forward or long-term
commitments or unrealized or unanticipated losses from any unfavorable
commitments except as referred to or reflected in the Pro Formas.
(c) The Projections represent, as of the Restatement Date, the good
faith estimate of Mail-Well and the Borrower and their senior management
concerning the probable financial
60
condition and performance of the Borrower and its Subsidiaries based on
assumptions believed to be reasonable at the time made.
Section 7.3 Corporate Action; No Breach. The execution, delivery and
---------------------------
performance by each Loan Party of the Loan Documents and Related Transactions
Documents to which it is or may become a party and compliance with the terms and
provisions hereof and thereof have been duly authorized by all requisite
corporate or other entity action on the part of the Loan Parties and do not and
will not (a) violate or conflict with, or result in a breach of, or require any
consent under (i) the articles or certificates of incorporation or bylaws (or,
with respect to Wisco II and Wisco III, certificate of formation) of any Loan
Party, (ii) any Governmental Requirement or any order, writ, injunction or
decree of any Governmental Authority or arbitrator, or (iii) any material
agreement, document or instrument to which any Loan Party is a party or by which
any Loan Party or any of its Property is bound or subject, or (b) constitute a
default under any such material agreement, document or instrument, or result in
the creation or imposition of any Lien (except under the Security Documents as
provided in Article 5) upon any of the revenues or Property of any Loan Party.
---------
Section 7.4 Operation of Business. The Loan Parties possess all Permits,
---------------------
franchises, licenses and authorizations necessary to conduct their respective
businesses substantially as now conducted and as presently proposed to be
conducted except where the failure to so possess would not cause a Material
Adverse Effect. None of such Persons is in material violation of any such
Permits, franchises, licenses or authorizations.
Section 7.5 Intellectual Property. The Loan Parties own or possess (or
---------------------
will be licensed or have the full right to use) all Intellectual Property which
is necessary for the operation of their respective businesses as presently
conducted and as proposed to be conducted, without any known conflict with the
rights of others. The consummation of the transactions contemplated by this
Agreement, the other Loan Documents and the Related Transactions Documents will
not materially alter or impair, individually or in the aggregate, any of such
rights of such Persons. No product of the Loan Parties infringes upon any
Intellectual Property owned by any other Person, and no claim or litigation is
pending or, to the knowledge of Mail-Well or the Borrower, threatened against
any Loan Party or any such Person contesting its right to use any product or
material which could have a Material Adverse Effect. There is no violation by
any Loan Party of any right of such Loan Party with respect to any material
Intellectual Property owned or used by such Loan Party.
Section 7.6 Litigation and Judgments. Each material action, suit,
------------------------
investigation or proceeding before or by any Governmental Authority or
arbitrator pending or, to the knowledge of Mail-Well or the Borrower, threatened
against or affecting any Loan Party, or that relates to any of the Related
Transactions as of the Restatement Date is, and as of the Term Loans B Funding
Date will be, disclosed on Schedule 7.6 (as such Schedule may be supplemented in
------------
accordance with Section 13.26). None of such actions, suits, investigations or
-------------
proceedings could, if adversely determined, have a Material Adverse Effect. As
of the Restatement Date and as of the Term Loans B Funding Date, there are and
will be, respectively, no outstanding judgments against any Loan Party except
for such judgments as may be disclosed on Schedule 7.6 (as such Schedule may be
------------
supplemented in accordance with Section 13.26) which do not, with respect to
-------------
61
all such judgments affecting the Loan Parties, exceed $1,000,000 in aggregate
amount. No Loan Party has received any opinion or memorandum or legal advice
from legal counsel to the effect that it is exposed to any liability or
disadvantage that could have a Material Adverse Effect.
Section 7.7 Rights in Properties; Liens. Each of the Loan Parties has
---------------------------
good and indefeasible title to or, except as expressly stated to the contrary on
Schedule 1.1(a) hereto or on Schedule 1.1(a) to the Mail-Well Credit Agreement,
--------------
valid leasehold interests in its Properties and assets, real and personal,
including the Properties, assets and leasehold interests reflected in the
financial statements described in Section 7.2(a) and the Pro Formas, and none of
--------------
the Properties or leasehold interests of any Loan Party or any of its
Subsidiaries is subject to any Lien, except Permitted Liens and, with respect to
Holdings, Liens permitted by Section 8(b) of the Holdings Guaranty.
Section 7.9 Enforceability. The Loan Documents and the Related
--------------
Transactions Documents have been, or, with respect to the Loan Documents to be
executed in connection with the making of any Term Loans B, will be on or before
the Term Loans B Funding Date, duly and validly executed and delivered by each
of the Loan Parties that is a party thereto and constitute, or will constitute
upon such execution and delivery, the legal, valid and binding obligations of
the Loan Parties, enforceable against the Loan Parties in accordance with their
respective terms, except as limited by bankruptcy, insolvency or other laws of
general application relating to the enforcement of creditors' rights and general
principles of equity.
Section 7.9 Approvals. No authorization, approval or consent of, and no
---------
filing or registration with or notice to, any Governmental Authority or third
party is or will be necessary for the execution, delivery or performance by any
Loan Party of any of the Loan Documents or Related Transactions Documents to
which it is a party or may become a party or for the validity or enforceability
thereof, except for such consents, approvals and filings as have been, or, with
respect to the Loan Documents to be executed in connection with the making of
any Term Loans B, will be on or before the Term Loans B Funding Date, validly
obtained or made and are (or, as applicable, will be on before the Term Loans B
Funding Date) in full force and effect. The consummation of the Related
Transactions does not require the consent or approval of any other Person,
except such consents and approvals (a) as have been, or, with respect to the
Loan Documents to be executed in connection with the making of any Term Loans B,
will be on or before the Term Loans B Funding Date, validly obtained and are
(or, as applicable, will be one before the Term Loans B Funding Date) in full
force and effect or (b) as to which the failure to obtain is not, individually
or in the aggregate, material. None of the Loan Parties has failed to obtain
any material governmental consent, approval, license, Permit, franchise or other
governmental authorization necessary for the ownership of any of its Properties
or the conduct of its business.
Section 7.10 Debt. As of the Restatement Date and as of the Term Loans B
----
Funding Date, the Borrower and its Subsidiaries have and will have no Debt
except for (a) the Obligations, (b) the Debt disclosed on the most recent
balance sheets referred to in Schedule 7.2(a), (c) the Debt disclosed on
---------------
Schedule 7.10 hereto, and (d) Debt incurred after the Restatement Date which is
-------------
permitted in accordance with Section 9.1 of the Mail-Well Credit Agreement.
62
Section 7.11 Taxes. The Loan Parties have filed all tax returns (federal,
-----
state, provincial and local) required to be filed, including all income,
franchise, employment, Property and sales tax returns, and have paid all of
their respective liabilities for taxes, assessments, governmental charges and
other levies that are due and payable. Except as may be disclosed on Schedule
--------
7.11 (as such Schedule may be supplemented in accordance with Section 13.26),
---- -------------
neither Mail-Well nor the Borrower is aware of any pending investigation of any
Loan Party or, immediately prior to the consummation of the PNG Acquisition,
PNG, by any taxing authority or of any pending but unassessed tax liability of
any Loan Party or, immediately prior to the PNG Acquisition, PNG, other than
with respect to (a) ad valorem or other real property taxes not in excess of
Cdn. $250,000 as to any such Person and (b) other taxes in an aggregate amount
as to any such Person which could not, if an adverse determination is made with
respect to such taxes, materially and adversely affect such Person, which (as to
each of clauses (a) and (b) preceding) are currently being contested in good
----------- ---
faith by appropriate proceedings diligently conducted by or on behalf of such
Person and as to which, if required by GAAP, such Person has established
adequate reserves. No tax Liens have been, or, immediately prior to the
consummation of the PNG Acquisition, with respect to PNG except as may be
disclosed on Schedule 7.11 (as such Schedule may be supplemented in accordance
-------------
with Section 13.26, will have been as of the Term Loans B Funding Date, filed
-------------
with respect to any Loan Party or PNG, respectively, and, except as disclosed on
Schedule 7.11 (as such Schedule may be supplemented in accordance with Section
------------- -------
13.26), no claims are being, or, immediately prior to the consummation of the
-----
PNG Acquisition, with respect to PNG, will have been as of the Term Loans B
Funding Date, asserted against any Loan Party or PNG, respectively, with respect
to any taxes. Except as disclosed on Schedule 7.11 (as such Schedule may be
-------------
supplemented in accordance with Section 13.26), as of the Restatement Date and
-------------
as of the Term Loans B Funding Date, none of the U.S. income tax returns of the
Loan Parties and, to the knowledge of Mail-Well and the Borrower immediately
prior to the PNG Acquisition, PNG, are or will be under audit. The charges,
accruals and reserves on the books of the Loan Parties in respect of taxes or
other governmental charges are in accordance with GAAP.
Section 7.12 Margin Securities. None of the Loan Parties or any of their
-----------------
respective Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulations G, T, U or X of the
Board of Governors of the Federal Reserve System), and no part of the proceeds
of any Loan will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying margin stock.
Section 7.13 ERISA; Canadian Plans. Neither any Loan Party nor any ERISA
---------------------
Affiliate maintains or contributes to, or has any obligation under, any Pension
Plan or Canadian Pension Plan other than the Pension Plans and Canadian Pension
Plans identified on Schedule 7.13 (as such Schedule may be supplemented in
-------------
accordance with Section 13.26). Each Plan and Canadian Plan of each Loan Party
-------------
is in compliance in all material respects with all applicable provisions of
ERISA and the Code or of Canadian Pension and Benefits Law, as the case may be.
Neither a Reportable Event nor a Prohibited Transaction has occurred within the
last 60 months with respect to any Plan. No event has occurred or investment
has been made which could render any Loan Party, Canadian Plan or funding agent
thereof liable for any tax or penalty under Canadian Pension and Benefits Law.
No notice of intent to terminate a Pension Plan or Canadian Pension Plan has
been filed, nor has any Pension Plan or Canadian Pension Plan been terminated.
No
63
circumstances exist which constitute grounds entitling the PBGC or a Canadian
Pension Authority to institute proceedings to terminate, or appoint a trustee to
administer, a Pension Plan or Canadian Pension Plan, nor has the PBGC or a
Canadian Pension Authority instituted any such proceedings. Neither any of the
Loan Parties nor any ERISA Affiliate has completely or partially withdrawn from
a Multiemployer Plan. Each Loan Party and each ERISA Affiliate have met their
minimum funding requirements under ERISA and the Code or under Canadian Pension
and Benefits Law with respect to all of their Plans or Canadian Plans subject to
such requirements, and, as of the Restatement Date and the Term Loans B Funding
Date except as specified on Schedule 7.13 (as such Schedule may be supplemented
-------------
in accordance with Section 13.26), the present value of all vested benefits
-------------
under each funded Plan or funded Canadian Plan (exclusive of any Multiemployer
Plan) does not and will not exceed the fair market value of all such Plan or
Canadian Plan assets allocable to such benefits, as determined on the most
recent valuation date of such Plan or Canadian Plan and in accordance with ERISA
or Canadian Pension and Benefits Law, as the case may be. Neither any of the
Loan Parties nor any ERISA Affiliate has incurred any liability to the PBGC
under ERISA or to the PBGF. No litigation is pending or threatened concerning
or involving any Plan or Canadian Plan. There are no unfunded or unreserved
liabilities (on either a going-concern basis or a wind-up basis) relating to any
Plan or Canadian Plan that could, individually or in the aggregate, have a
Material Adverse Effect if such Loan Party were required to fund or reserve such
liability in full. As of the Restatement Date and the Term Loans B Funding
Date, no funding waivers have been or will have been requested or granted under
Section 412 of the Code with respect to any Plan. No unfunded or unreserved
liability for benefits under any Plan or Plans or Canadian Plan or Canadian
Plans (exclusive of any Multiemployer Plans) exceeds Cdn. $1,500,000 with
respect to any such Plan or Canadian Plan or Cdn. $3,000,000 with respect to all
such Plans or Canadian Plans in the aggregate as of the Restatement Date and the
Term Loans B Funding Date, on either a going-concern basis or a wind-up basis.
Section 7.14 Disclosure. No written statement, information, report,
----------
representation or warranty made by any Loan Party in any Loan Document or
Related Transaction Document or furnished to the Agent or any Lender by any Loan
Party in connection with the Loan Documents or the Related Transactions
Documents or any transaction contemplated hereby or thereby contains any untrue
statement of a material fact or omits to state any material fact necessary to
make the statements herein or therein not misleading. There is no fact known to
any Loan Party which has had a Material Adverse Effect, and there is no fact
known to any Loan Party which might in the future have a Material Adverse
Effect, except as may have been disclosed in writing to the Agent and the
Lenders.
Section 7.15 Capitalization.
--------------
(a) On or about the Restatement Date and on and as of the Term Loans B
Funding Date, the authorized Capital Stock, the par value per share and the
number of shares of each class of Capital Stock issued and outstanding with
respect to each of Supremex and each of its Subsidiaries and the legal and
beneficial owners of all of such Capital Stock are as specified on Schedule
--------
7.15.
----
64
(b) On and as of the Restatement Date and the Term Loans B Funding
Date, Supremex has no Subsidiaries other than Innova and Classic.
(c) All of the issued and outstanding Capital Stock of Supremex and
its Subsidiaries has been validly issued and is fully paid and nonassessable.
Except as described on Schedule 7.15 (as such Schedule may be supplemented in
-------------
accordance with Section 13.26), there are no outstanding subscriptions, options,
-------------
warrants, calls or rights (including preemptive rights) to acquire, and no
outstanding securities or instruments convertible into, Capital Stock of
Supremex or any of its Subsidiaries.
Section 7.16 Agreements. None of the Loan Parties is a party to any
----------
indenture, loan, credit agreement, stock purchase agreement or any lease or
other agreement, document or instrument, or subject to any charter or corporate
restriction, that could have a Material Adverse Effect. None of the Loan
Parties is in default in any respect in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
agreement, document or instrument binding on it or its Properties, except for
instances of noncompliance that, individually or in the aggregate, could not
have a Material Adverse Effect.
Section 7.17 Compliance with Laws. None of the Loan Parties is in
--------------------
violation of any Governmental Requirement, except for instances of non-
compliance that, individually or in the aggregate, could not have a Material
Adverse Effect.
Section 7.18 Investment Company Act. None of the Loan Parties is an
----------------------
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
Section 7.19 Public Utility Holding Company Act. 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 a "public utility" within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
Section 7.20 Environmental Matters.
---------------------
(a) Except for instances of noncompliance with or exceptions to any of
the following representations and warranties that could not have, individually
or in the aggregate, a Material Adverse Effect:
(i) The Loan Parties and all of their respective Properties and
operations are in full compliance with all Environmental Laws. The Loan
Parties are not aware of, nor has any Loan Party received written notice
of, any past, present or future conditions, events, activities, practices
or incidents which may interfere with or prevent the compliance or
continued compliance by any Loan Party with all Environmental Laws;
(ii) The Loan Parties have obtained all Permits that are required
under applicable Environmental Laws, and all such Permits are in good
standing and all such Persons are in compliance with all of the terms and
conditions thereof;
65
(iii) No Hazardous Materials exist on, about or within or have been
(to the knowledge of the Loan Parties) or are being used, generated,
stored, transported, disposed of on or Released from any of the Properties
of the Loan Parties except in compliance with applicable Environmental
Laws. The use which the Loan Parties make and intend to make of their
respective Properties will not result in the use, generation, storage,
transportation, accumulation, disposal or Release of any Hazardous Material
on, in or from any of their Properties except in compliance with applicable
Environmental Laws;
(iv) Neither the Loan Parties nor any of their respective
currently or previously owned or leased Properties or operations is subject
to any outstanding or, to the best knowledge of the Loan Parties,
threatened order from or agreement with any Governmental Authority or other
Person or subject to any judicial or administrative proceeding with respect
to (A) any failure to comply with Environmental Laws, (B) any Remedial
Action, or (C) any Environmental Liabilities;
(v) There are no conditions or circumstances associated with the
currently or previously owned or leased Properties or operations of the
Loan Parties that could reasonably be expected to give rise to any
Environmental Liabilities or claims resulting in any Environmental
Liabilities. None of the Loan Parties is subject to, or has received
written notice of any claim from any Person alleging that any of the Loan
Parties is or will be subject to, any Environmental Liabilities;
(vi) None of the Properties of the Loan Parties is a treatment
facility (except for the recycling of Hazardous Materials generated onsite
and the treatment of liquid wastes subject to the Clean Water Act or other
applicable Environmental Law of Canada), storage facility (except for
temporary storage of Hazardous Materials generated onsite prior to their
disposal offsite) or disposal facility requiring a permit under the
Resource Conservation and Recovery Act, 42 U.S.C. (S) 6901 et seq.,
------
regulations thereunder or any comparable provision of state or Canadian
federal or provincial law. The Loan Parties and their Subsidiaries are
compliance with all applicable financial responsibility requirements of all
Environmental Laws; and
(viii) None of the Loan Parties has failed to file any notice
required under applicable Environmental Law reporting a Release.
(b) No Lien arising under any Environmental Law that could have,
individually or in the aggregate, a Material Adverse Effect has attached to any
Property or revenues of any Loan Party.
Section 7.21 Labor Disputes and Acts of God. Neither the business nor the
------------------------------
Properties of any Loan Party are affected by any fire, explosion, accident,
strike, lockout or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (whether or not
covered by insurance) that is having or could have a Material Adverse Effect.
66
Section 7.22 Bank Accounts. As of the Restatement Date and as of the Term
-------------
Loans B Funding Date, Schedule 7.22 (as such Schedule may be supplemented in
-------------
accordance with Section 13.26) sets forth the account numbers and location of
-------------
all bank accounts (including lock box and special accounts) of the Borrower and
its Subsidiaries and the identity of the Loan Party that owns each of such
accounts.
Section 7.23 Outstanding Securities. As of the Restatement Date and as of
----------------------
the Term Loans B Funding Date, all outstanding securities (as defined in the
Securities Act of 1933, as amended, or any successor thereto, and the rules and
regulations of the Securities and Exchange Commission thereunder) of the Loan
Parties have been or will have been, respectively, offered, issued, sold and
delivered in compliance with all applicable Governmental Requirements (except
for the offering and issuance of Capital Stock of ▇▇▇▇▇, the Borrower, Innova
and Classic as to which no such representation or warranty is made).
Section 7.24 Subordination. The obligations guaranteed by Mail-Well under
-------------
the Mail-Well Guaranty consisting of Mail-Well's guaranty of payment of the
Loans and all other Obligations constitute "Senior Indebtedness" (as such term
is defined in the Mail-Well Indenture), and the Agent and the Lenders, as
beneficiaries of the Mail-Well Guaranty, shall be entitled to all of the rights
of a holder of "Senior Indebtedness" (as such term is defined in the Mail-Well
Indenture) pursuant to the Mail-Well Indenture as if Mail-Well were the primary
obligor with respect to such obligations guaranteed by Mail-Well.
Section 7.25 Related Transactions Documents.
------------------------------
(a) All representations and warranties made by the Loan Parties in the
Related Transactions Documents and, to the knowledge of the Loan Parties after
due inquiry, all representations and warranties made by all other Persons in
such Related Transactions Documents, are (or will be, with respect to the
Related Transactions Documents relating to the PNG Acquisition) true and correct
in all material respects on and as of the Restatement Date and on and as of the
Term Loans B Funding Date, with respect to the Related Transactions Documents
relating to the PNG Acquisition. No rights of cancellation or rescission and,
to the knowledge of the Loan Parties, no defaults or defenses exist (or will
exist, with respect to the Related Transactions Documents relating to the PNG
Acquisition then being consummated) with respect to any of such Related
Transactions Documents. Mail-Well and the Borrower have delivered (or will
deliver, with respect to the Related Transactions Documents relating to the PNG
Acquisition then being consummated) to the Agent complete and correct copies of
all such Related Transactions Documents, including all schedules and exhibits
thereto. Such Related Transactions Documents set forth the entire agreements
and understandings of the parties thereto relating to the subject matter
thereof, and there are no other agreements, arrangements or understandings,
written or oral, relating to the matters covered thereby.
(b) On and as of the Restatement Date and on and as of the Term Loans
B Funding Date, with respect to the PNG Acquisition then being consummated, all
conditions precedent to such Related Transactions pursuant to the Related
Transactions Documents relating thereto have been (or will be, with respect to
the Related Transactions Documents relating to the PNG Acquisition then being
consummated) fulfilled or (with the prior written consent of the Agent)
67
waived, such Related Transactions Documents have not been (or will not be, with
respect to the Related Transactions Documents relating to the PNG Acquisition
then being consummated) amended or otherwise modified (except as permitted by
this Agreement), and there has been (or will be, with respect to the Related
Transactions Documents relating to the PNG Acquisition then being consummated)
no breach of any material term or condition contained in such Related
Transactions Documents. As of the Term Loans B Funding Date, the Borrower will
have acquired and become the owner of all of the Property contemplated to be
acquired pursuant to the PNG Acquisition Agreement on such date, free and clear
of any Liens, except Permitted Liens.
Section 7.26 Solvency. Each of Holdings, Mail-Well and each of the
--------
Subsidiaries of Mail-Well, as separate corporate entities and on a consolidated
basis, are Solvent, both before and after giving effect to the Loans and the
Related Transactions.
Section 7.27 Employee Matters. Except as set forth on Schedule 7.27 (as
---------------- -------------
such Schedule may be supplemented in accordance with Section 13.26), as of the
-------------
Restatement Date and as of the Term Loans B Funding Date (a) none of the Loan
Parties or any of their respective Subsidiaries, or any of their respective
employees, is subject to any collective bargaining agreement, and (b) no
petition for certification or union election is pending with respect to the
employees of any Loan Party, and no union or collection bargaining unit has
sought such certification or recognition with respect to the employees of any of
the Loan Parties. There are no strikes, slowdowns, work stoppages or
controversies pending or, to the best knowledge of the Loan Parties after due
inquiry, threatened against, any of the Loan Parties or their respective
employees which could have, either individually or in the aggregate, a Material
Adverse Effect. Except as set forth on Schedule 7.27 (as such Schedule may be
-------------
supplemented in accordance with Section 13.26), as of the Restatement Date and
-------------
as of the Term Loans B Funding Date, none of the Loan Parties or any of the
their Subsidiaries is subject to an employment contract.
Section 7.28 Insurance. Schedule 7.28 (as such Schedule may be
--------- -------------
supplemented in accordance with Section 13.26), sets forth a complete and
-------------
accurate description of all policies of insurance that will be in effect as of
the Restatement Date and as of the Term Loans B Funding Date for Holdings and
Mail-Well and its Subsidiaries. To the extent such policies have not been
replaced, no notice of cancellation has been received for such policies and
Mail-Well and its Subsidiaries are in compliance with all of the terms and
conditions of such policies.
Section 7.29 No Default under Mail-Well Credit Agreement. As of and
-------------------------------------------
immediately prior to the Restatement Date, no "Default" (as such term is defined
in the Original Supremex Credit Agreement, this Agreement, the Second Restated
Agreement or the Mail-Well Credit Agreement) has occurred and is continuing.
ARTICLE 8
Affirmative Covenants
---------------------
Each of the Loan Parties which is now or hereafter a party to this
Agreement hereby jointly and severally covenants and agrees that, as long as the
Obligations or the Mail-Well Obligations or any part thereof are outstanding or
any Lender or Mail-Well Lender has any Commitment
68
hereunder or any Mail-Well Commitment under the Mail-Well Credit Agreement,
respectively, or any Letter of Credit or Bankers' Acceptance or letter of credit
remains outstanding hereunder or under the Mail-Well Credit Agreement,
respectively, such Loan Party will perform and observe, or cause to be performed
and observed by the other applicable Loan Party(ies) (as such covenants or
agreements may provide) each and every of the covenants and other agreements
contained in Article 8 of the Mail-Well Credit Agreement in accordance with all
of the terms and provisions of Article 8 of the Mail-Well Credit Agreement as if
such terms and provisions were, and such terms and provisions are hereby,
incorporated herein by reference and as if it were a "Loan Party" as such term
is defined in the Mail-Well Credit Agreement.
ARTICLE 9
Negative Covenants
------------------
Each of the Loan Parties which is now or hereafter a party to this
Agreement hereby jointly and severally covenants and agrees that, as long as the
Obligations or the Mail-Well Obligations or any part thereof are outstanding or
any Lender or Mail-Well Lender has any Commitment hereunder or any Mail-Well
Commitment under the Mail-Well Credit Agreement, respectively, or any Letter of
Credit or Bankers' Acceptance or letter of credit remains outstanding hereunder
or under the Mail-Well Credit Agreement, respectively, such Loan Party will
perform and observe, or cause to be performed and observed by the other
applicable Loan Party(ies) (as such covenants or agreements may provide) each
and every of the covenants and other agreements contained in Article 9 of the
Mail-Well Credit Agreement in accordance with the terms and provisions of
Article 9 of the Mail-Well Credit Agreement as if such terms and provisions
were, and such terms and provisions are hereby, incorporated herein by reference
and as if it were a "Loan Party" as such term is defined in the Mail-Well Credit
Agreement.
ARTICLE 10
Financial Covenants
-------------------
Each of the Loan Parties which is now or hereafter a party to this
Agreement hereby joint and severally covenants and agrees that, as long as the
Obligations or the Mail-Well Obligations or any part thereof are outstanding or
any Lender or Mail-Well Lender has any Commitment hereunder or any Mail-Well
Commitment under the Mail-Well Credit Agreement, respectively, or any Letter of
Credit or Bankers' Acceptance or letter of credit remains outstanding hereunder
or under the Mail-Well Credit Agreement, respectively, such Loan Party will
perform and observe, or cause to be performed and observed by the other
applicable Loan Party(ies) (as such covenants or agreements may provide) each
and every of the covenants and other agreements contained in Article 10 of the
Mail-Well Credit Agreement in accordance with all of the terms and provisions of
Article 10 of the Mail-Well Credit Agreement as if such terms and provisions
were, and such terms and provisions are hereby, incorporated herein by reference
and as if it were a "Loan Party" as such term is defined in the Mail-Well Credit
Agreement.
69
ARTICLE 11
Default
-------
Section 11.1 Events of Default. Each of the following shall be deemed an
-----------------
"Event of Default":
-----------------
(a) Mail-Well or the Borrower shall fail to pay, repay or prepay
when due any amount of principal of any Loan or any amount of any
Reimbursement Obligation or Bankers' Acceptance owing to the Agent or any
Lender pursuant to this Agreement or any other Loan Document, or Mail-Well,
the Borrower or any other Loan Party shall fail to pay within five days
after the due date thereof any interest, fee or other amount or other
Obligation owing by it to the Agent or any Lender pursuant to this
Agreement or any other Loan Document.
(b) Any representation or warranty made or deemed made by Mail-
Well, the Borrower or any Loan Party in any Loan Document or in any
certificate, report, notice or financial statement furnished at any time in
connection with this Agreement or any other Loan Document shall be false,
misleading or erroneous in any material respect when made or deemed to have
been made.
(c) Any Loan Party shall fail to perform, observe or comply with
any covenant, agreement or term contained in Section 5.1 hereof or in
-----------
Section 8.1(i), 8.1(l), 8.2 (other than the last sentence of Section 8.2),
8.6, 8.7, 8.8, 8.9, 8.10, 8.15, Article 9 or Article 10 of the Mail-Well
Credit Agreement (as provided in Articles 8, 9 and 10 hereof); any Loan
--------------------
Party shall fail to perform, observe or comply with any covenant, agreement
or term contained in Section 5.3 hereof or in Section 8.1 (other than
-----------
Sections 8.1(i) or 8.1(l)), 8.4, 8.5 or 8.13 of the Mail-Well Credit
Agreement (as provided in Article 8 hereof) and such failure is not
---------
remedied or waived within ten days after such failure commenced; the
Borrower shall fail to perform, observe or comply with any covenant,
agreement or term contained in the Borrower Security Agreement other than
in Section 4.05, 4.08, 4.11(b), 4.11(c), 4.12 or 4.16 thereof; Mail-Well
shall fail to perform, observe or comply with any covenant, agreement or
term contained in the Mail-Well Security Agreement other than in Section
4.05, 4.08, 4.11(b), 4.11(c), 4.12 or 4.16 thereof; any Subsidiary of Mail-
Well shall fail to perform, observe or comply with any covenant, agreement
or term contained in its Subsidiary Security Agreement other than in
Section 4.05, 4.08, 4.11(b), 4.11(c), 4.12 or 4.15 thereof; Holdings shall
fail to perform, observe or comply with any covenant, agreement or term
contained in the Holdings Security Agreement other than in Section 4.05,
4.08, 4.11(b), 4.11(c), 4.12 or 4.16 thereof; Mail-Well, the Borrower or
any Subsidiary shall fail to perform, observe or comply with any covenant,
agreement or term contained in Section 2.1(e), 2.1(f) or 4.1(c) of any
Mortgage executed by it; Holdings shall fail to perform, observe or comply
with any covenant, agreement or term contained in the Holdings Guaranty
other than in Section 7(a) thereof; Mail-Well shall fail to perform,
observe or comply with any covenant, agreement or term contained in the
Mail-Well Guaranty other than in Section 7(a) thereof; any Subsidiary of
Mail-Well shall fail to perform, observe or comply with any covenant,
agreement or term contained in its
70
Subsidiary Guaranty, subject to any grace period applicable to such
covenant, agreement or term in this Agreement to the extent this Agreement
is incorporated therein by reference; or any Loan Party shall fail to
perform, observe or comply with any other covenant, agreement or term
contained in this Agreement or any other Loan Document (other than
covenants to pay the Obligations) and such failure is not remedied or
waived within the earlier to occur of 30 days after such failure commenced
or, if a different grace period is expressly made applicable in such other
Loan Documents, such applicable grace period.
(d) Any of the Loan Parties shall admit in writing its inability
to, or be generally unable to, pay its debts as such debts become due.
(e) Any Loan Party shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, examiner, liquidator or the like of itself or of all or any
substantial part of its Property, (ii) make a general assignment for the
benefit of its creditors, (iii) commence a voluntary case under the United
States Bankruptcy Code or the Bankruptcy and Insolvency Act (Canada)
(individually and collectively, as now or hereafter in effect, the
"Bankruptcy Code"), (iv) institute any proceeding or file a petition
---------------
seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, liquidation, dissolution, winding-up or
composition or readjustment of debts, (v) fail to controvert in a timely
and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code, or (vi) take
any corporate or other action for the purpose of effecting any of the
foregoing.
(f) A proceeding or case shall be commenced, without the
application, approval or consent of any of the Loan Parties in any court of
competent jurisdiction, seeking (i) its reorganization, liquidation,
dissolution, arrangement or winding-up, or the composition or readjustment
of its debts, (ii) the appointment of a receiver, custodian, trustee,
examiner, liquidator or the like of any of the Loan Parties or of all or
any substantial part of its Property, or (iii) similar relief in respect of
any of the Loan Parties under any law relating to bankruptcy, insolvency,
reorganization, winding-up or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order, judgment or
decree approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect, for a period of 60 or more days; or an
order for relief against any of the Loan Parties shall be entered in an
involuntary case under the Bankruptcy Code.
(g) Any of the Loan Parties shall fail to discharge within a
period of 30 days after the commencement thereof any attachment,
sequestration, forfeiture or similar proceeding or proceedings involving an
aggregate amount in excess of $2,500,000 against any of its Properties.
(h) A final judgment or judgments for the payment of money in
excess of $2,500,000 in the aggregate shall be rendered by a court or
courts against the Loan Parties or any of them on claims not covered by
insurance or as to which the insurance carrier has
71
denied responsibility and the same shall not be discharged, or a stay of
execution thereof shall not be procured, within 30 days from the date of
entry thereof and the Loan Parties shall not, within said period of 30
days, or such longer period during which execution of the same shall have
been stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal.
(i) Any of the Loan Parties shall fail to pay when due any
principal of or interest on any Debt (other than the Obligations) having
(either individually or in the aggregate) a principal amount of at least
$5,000,000, or the maturity of any such Debt shall have been accelerated,
or any such Debt shall have been required to be prepaid prior to the stated
maturity thereof, or any event shall have occurred (and shall not have been
waived or otherwise cured) that permits (or, with the giving of notice or
lapse of time or both, would permit) any holder or holders of such Debt or
any Person acting on behalf of such holder or holders to accelerate the
maturity thereof or require any such prepayment.
(j) This Agreement or any other Loan Document shall cease to be in
full force and effect or shall be declared null and void or the validity or
enforceability thereof shall be contested or challenged by any Loan Party
or any of its shareholders, or any Loan Party shall deny that it has any
further liability or obligation under any of the Loan Documents, or any
Lien created by the Loan Documents shall for any reason cease to be a
valid, first priority perfected Lien (except for Permitted Liens, if any,
which are expressly permitted by the Loan Documents to have priority over
the Liens in favor of the Agent) upon any of the Collateral purported to be
covered thereby.
(k) Any of the following events shall occur or exist with respect
to any Loan Party or any ERISA Affiliate: (i) any Prohibited Transaction
involving any Plan or any event or investment which could render any Loan
Party, Canadian Plan or funding agent thereof liable for any tax or penalty
under Canadian Pension and Benefits Law; (ii) any Reportable Event with
respect to any Pension Plan; (iii) the filing under Section 4041 of ERISA
or under Canadian Pension and Benefits Law of a notice of intent to
terminate any Pension Plan or Canadian Pension Plan or the termination of
any Pension Plan or Canadian Pension Plan; (iv) any event or circumstance
that might constitute grounds entitling the PBGC or a Canadian Pension
Authority under Canadian Pension and Benefits Law to institute proceedings
under Section 4042 of ERISA or under Canadian Pension and Benefits Law for
the termination of, or for the appointment of a trustee to administer, any
Pension Plan or Canadian Pension Plan, or the institution by the PBGC or a
Canadian Pension Authority under Canadian Pension and Benefits Law of any
such proceedings; (v) any "accumulated funding deficiency" (as defined in
Section 406 of ERISA or Section 412 of the Code), whether or not waived,
shall exist with respect to any Plan; or (vi) complete or partial
withdrawal under Section 4201 or 4204 of ERISA from a Plan or the
reorganization, insolvency or termination of any Pension Plan or Canadian
Pension Plan; and in each case above, such event or condition, together
with all other events or conditions, if any, have subjected or could in the
reasonable opinion of Required Banks subject any Loan Party or any ERISA
Affiliate to any tax, penalty or other liability to a Plan, a Multiemployer
Plan, the PBGC, a Canadian Plan, the PBGF or otherwise (or any
72
combination thereof) which in the aggregate exceed or could reasonably
be expected to exceed Cdn. $5,000,000.
(l) The occurrence of a Change of Control.
(m) The occurrence of any "Event of Default" as such term is
defined in the Mail-Well Credit Agreement.
Section 11.2 Remedies. If any Event of Default shall occur and be
--------
continuing, the Agent may (subject to Section 13.11 with respect to clauses (a)
------------- -----------
and (b) below) and, if directed by the Required Lenders, the Agent shall do any
---
one or more of the following:
(a) Acceleration. Declare all outstanding principal of and
------------
accrued and unpaid interest on the Loans and all other amounts payable by
Mail-Well, the Borrower and/or any other Loan Party under the Loan
Documents immediately due and payable, and the same shall thereupon become
immediately due and payable, without notice, demand, presentment, notice of
dishonor, notice of acceleration, notice of intent to accelerate, protest
or other formalities of any kind, all of which are hereby expressly waived
by Mail-Well, the Borrower and the other Loan Parties;
(b) Termination of Commitments. Terminate the Commitments
--------------------------
(including, without limitation, the obligation of the Issuing Bank to issue
Letters of Credit) without notice to Mail-Well, the Borrower or any other
Loan Party;
(c) Judgment. Reduce any claim to judgment;
--------
(d) Foreclosure. Foreclose or otherwise enforce any Lien granted
-----------
to the Agent for the benefit of the Agent and the Lenders to secure payment
and performance of the Obligations in accordance with the terms of the Loan
Documents; or
(e) Rights. Exercise any and all rights and remedies afforded by
------
the laws of the State of Texas, Canada or any other jurisdiction, by any of
the Loan Documents, by equity or otherwise;
provided, however, that upon (i) the occurrence of an Event of Default under
-------- -------
Section 11.1(e) or Section 11.1(f), the Commitments of all of the Lenders
--------------- ---------------
(including, without limitation, the obligation of the Issuing Bank to issue
Letters of Credit and the obligations of the Revolving Credit Lenders to accept
Bankers' Acceptances) shall immediately and automatically terminate, and the
outstanding principal of and accrued and unpaid interest on the Loans and all
other amounts payable by Mail-Well, the Borrower and/or any other Loan Party
under the Loan Documents shall thereupon become immediately and automatically
due and payable, and (ii) upon the occurrence of an Event of Default under
clause (iv) of Section 11.1(n) or under Section 11.1(o), the outstanding
----------- --------------- ---------------
principal of and accrued and unpaid interest on the Loans and all other amounts
payable by Mail-Well, the Borrower and/or any other Loan Party under the Loan
Documents shall thereupon become immediately and automatically due and payable,
all (with respect to each of clause (i) and (ii) preceding) without notice,
---------- ----
demand, presentment, notice of
73
dishonor, notice of acceleration, notice of intent to accelerate, protest or
other formalities of any kind, all of which are hereby expressly waived by each
of Mail-Well, the Borrower and the other Loan Parties which is now or hereafter
a party to this Agreement.
Section 11.3 Cash Collateral. If an Event of Default shall have occurred
---------------
and be continuing, Mail-Well and the Borrower shall, if requested by the Agent
or the Required Lenders, pledge to the Agent as security for the Obligations an
amount in immediately available funds equal to the then outstanding Letter of
Credit Liabilities and Bankers' Acceptance Liabilities, such funds to be held in
a cash collateral account satisfactory to the Agent without any right of
withdrawal by Mail-Well or the Borrower or any other Loan Party.
Section 11.4 Performance by the Agent. If any Loan Party shall fail to
------------------------
perform any covenant or agreement in accordance with the terms of the Loan
Documents, the Agent may, at the direction of the Required Lenders, perform or
attempt to perform such covenant or agreement on behalf of such Loan Party. In
such event, Mail-Well and the Borrower shall, at the request of the Agent,
promptly pay any amount expended by the Agent or the Lenders in connection with
such performance or attempted performance to the Agent at the Principal Office,
together with interest thereon at the applicable Default Rate from and including
the date of such expenditure to but excluding the date such expenditure is paid
in full. Notwithstanding the foregoing, it is expressly agreed that neither the
Agent nor any Lender shall have any liability or responsibility for the
performance of any obligation of Mail-Well or the Borrower or any other Loan
Party under this Agreement or any of the other Loan Documents.
Section 11.5 Judgment Currency. If, for the purpose of obtaining judgment
-----------------
in any court in any jurisdiction with respect to this Agreement or any other
Loan Document or the Collateral, it becomes necessary to convert into the
currency of such jurisdiction (herein called the "Judgment Currency") any amount
-----------------
due hereunder in any currency other than the Judgment Currency, then conversion
shall be made at the rate of exchange prevailing on the Business Day before the
day on which judgment is given. For this purpose, "rate of exchange" means the
----------------
rate at which the Agent is able, on the relevant date, to sell the currency of
the amount due hereunder in Toronto, Ontario against the Judgment Currency. In
the event that there is a change in the rate of exchange prevailing between the
Business Day before the day on which the judgment is given and the date of
payment of the amount due, Mail-Well and the Borrower jointly and severally
agree that they will, on the date of payment, pay such additional amounts (if
any) as may be necessary to ensure that the amount paid on such date is the
amount in the Judgment Currency which, when converted at the rate of exchange
prevailing on the date of payment, is the amount then due under this Agreement
in Cdn. Dollars or Dollars, as the case may be. Any additional amount due under
this Section 11.5 will be due as a separate indebtedness and shall not be
------------
affected by judgment being obtained for any other sums due under or in respect
of this Agreement or any other Loan Document.
74
ARTICLE 12
The Agent
---------
Section 12.1 Appointment, Powers and Immunities. Each Lender hereby
----------------------------------
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the other Loan Documents with such powers as are specifically delegated to
the Agent by the terms of this Agreement and the other Loan Documents, together
with such other powers as are reasonably incidental thereto. Neither the Agent
nor any of its Affiliates, officers, directors, employees, attorneys or agents
shall be liable for any action taken or omitted to be taken by any of them
hereunder or otherwise in connection with this Agreement or any of the other
Loan Documents except for its or their own gross negligence or willful
misconduct. Without limiting the generality of the preceding sentence, the
Agent (a) may treat the payee of any Note as the holder thereof until the Agent
receives written notice of the assignment or transfer thereof signed by such
payee and in form satisfactory to the Agent, (b) shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
other Loan Documents, and shall not by reason of this Agreement or any other
Loan Document be a trustee or fiduciary for any Lender, (c) shall not be
required to initiate any litigation or collection proceedings hereunder or under
any other Loan Document except to the extent requested by the Required Lenders,
(d) shall not be responsible to the Lenders for any recitals, statements,
representations or warranties contained in this Agreement or any other Loan
Document, or any certificate or other document referred to or provided for in,
or received by any of them under, this Agreement or any other Loan Document, or
for the value, validity, effectiveness, enforceability or sufficiency of this
Agreement or any other Loan Document or any other document referred to or
provided for herein or therein or for any failure by any Person to perform any
of its obligations hereunder or thereunder, (e) may consult with legal counsel
(including counsel for any Loan Party), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts, and (f) shall incur no liability under or in respect of
any Loan Document by acting upon any notice, consent, certificate or other
instrument or writing reasonably believed by it to be genuine and signed or sent
by the proper party or parties. As to any matters not expressly provided for by
this Agreement, the Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions signed by the
Required Lenders, and such instructions of the Required Lenders and any action
taken or failure to act pursuant thereto shall be binding on all of the Lenders;
provided, however, that the Agent shall not be required to take any action which
-------- -------
exposes the Agent to liability or which is contrary to this Agreement or any
other Loan Document or applicable law.
Section 12.2 Rights of Agent as a Lender. With respect to its
---------------------------
Commitments, the Loans made by it and the Notes issued to it, Banque Paribas
(and any successor acting as Agent) in its capacity as a Lender hereunder shall
have the same rights and powers hereunder as any other Lender and may exercise
the same as though it were not acting as the Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the Agent in
its individual capacity. The Agent and its Affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to, act as
trustee under indentures of, provide merchant banking services to, own
securities of, and generally engage in any kind of banking, trust or other
75
business with, the Loan Parties or any of their Affiliates and any other Person
who may do business with or own securities of the Loan Parties or any of their
Affiliates, all as if it were not acting as the Agent and without any duty to
account therefor to the Lenders. Without limiting the generality of the
foregoing, an Affiliate of the Agent purchased 24,397 shares of Holdings Common
Stock on or about December 19, 1994. Each Lender acknowledges the potential
conflict of interest (a) between Banque Paribas (i) as a Lender holding
disproportionate interests in the various Commitments and Loans and (ii) as the
Agent under this Agreement and (b) between Banque Paribas (or an Affiliate of
Banque Paribas) (i) as a stockholder of Holdings and (ii) as the Agent under
this Agreement, and each Lender expressly consents to, and waives any claim
based upon, such potential conflicts of interest.
Section 12.3 Defaults. The Agent shall not be deemed to have knowledge or
--------
notice of the occurrence of a Default (other than the non-payment of principal
of or interest on the Loans or of commitment fees) unless the Agent has received
notice from a Lender or Mail-Well or the Borrower specifying such Default and
stating that such notice is a "Notice of Default". In the event that the Agent
receives such a notice of the occurrence of a Default, the Agent shall give
prompt notice thereof to the Lenders (and shall give each Lender prompt notice
of each such non-payment). The Agent shall (subject to Section 12.1) take such
------------
action with respect to such Default as shall be directed by the Required
Lenders, provided that unless and until the Agent shall have received such
--------
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall seem
advisable and in the best interest of the Lenders.
Section 12.4 INDEMNIFICATION. EACH LENDER HEREBY AGREES TO INDEMNIFY THE
---------------
AGENT FROM AND HOLD THE AGENT HARMLESS AGAINST (TO THE EXTENT NOT REIMBURSED
UNDER SECTIONS 13.1 AND 13.2, BUT WITHOUT LIMITING THE OBLIGATIONS OF MAIL-WELL
------------- ----
AND THE BORROWER AND THE OTHER LOAN PARTIES UNDER SECTIONS 13.1 AND 13.2),
------------- ----
RATABLY IN ACCORDANCE WITH ITS PRO RATA SHARE (CALCULATED ON THE BASIS OF THE
AGGREGATE COMMITMENT PERCENTAGES), ANY AND ALL LIABILITIES (INCLUDING, WITHOUT
LIMITATION, ENVIRONMENTAL LIABILITIES), OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
ACTIONS, JUDGMENTS, DEFICIENCIES, SUITS, COSTS, EXPENSES (INCLUDING ATTORNEYS'
FEES) AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED
ON, INCURRED BY OR ASSERTED AGAINST THE AGENT IN ANY WAY RELATING TO OR ARISING
OUT OF ANY OF THE LOAN DOCUMENTS OR ANY ACTION TAKEN OR OMITTED TO BE TAKEN BY
THE AGENT UNDER OR IN RESPECT OF ANY OF THE LOAN DOCUMENTS; PROVIDED, FURTHER,
--------
THAT NO LENDER SHALL BE LIABLE FOR ANY PORTION OF THE FOREGOING TO THE EXTENT
CAUSED BY THE AGENT'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. WITHOUT
LIMITATION OF THE FOREGOING, IT IS THE EXPRESS INTENTION OF THE LENDERS THAT THE
AGENT SHALL BE INDEMNIFIED HEREUNDER FROM AND HELD HARMLESS AGAINST ALL OF SUCH
LIABILITIES, (INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL LIABILITIES),
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, DEFICIENCIES,
SUITS, COSTS, EXPENSES (INCLUDING ATTORNEYS' FEES) AND
76
DISBURSEMENTS OF ANY KIND OR NATURE DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RESULTING FROM THE SOLE OR CONTRIBUTORY NEGLIGENCE OF THE AGENT (EXCEPT TO THE
EXTENT THE SAME ARE CAUSED BY THE AGENT'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT). WITHOUT LIMITING ANY OTHER PROVISION OF THIS SECTION 12.4, EACH
------------
LENDER AGREES TO REIMBURSE THE AGENT PROMPTLY UPON DEMAND FOR ITS PRO RATA SHARE
(CALCULATED ON THE BASIS OF THE AGGREGATE COMMITMENT PERCENTAGES) OF ANY AND ALL
OUT-OF-POCKET EXPENSES (INCLUDING ATTORNEYS' FEES) INCURRED BY THE AGENT IN
CONNECTION WITH THE PREPARATION, EXECUTION, DELIVERY, ADMINISTRATION,
MODIFICATION, AMENDMENT OR ENFORCEMENT (WHETHER THROUGH NEGOTIATIONS, LEGAL
PROCEEDINGS OR OTHERWISE) OF, OR LEGAL ADVICE IN RESPECT OF RIGHTS OR
RESPONSIBILITIES UNDER, THE LOAN DOCUMENTS, TO THE EXTENT THAT THE AGENT IS NOT
PROMPTLY REIMBURSED FOR SUCH EXPENSES BY MAIL-WELL, THE BORROWER OR ANOTHER LOAN
PARTY.
Section 12.5 Independent Credit Decisions. Each Lender agrees that it has
----------------------------
independently and without reliance on the Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis of Holdings, Mail-Well, the Borrower and the other Loan Parties
and its own decision to enter into this Agreement and that it will,
independently and without reliance upon the Agent or any other Lender, and based
upon such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under this Agreement or any of the other Loan Documents. The Agent shall not be
required to keep itself informed as to the performance or observance by any Loan
Party of this Agreement or any other Loan Document or to inspect the Properties
or books of any Loan Party. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the Agent
hereunder or under the other Loan Documents, the Agent shall not have any duty
or responsibility to provide any Lender with any credit or other financial
information concerning the affairs, financial condition or business of any Loan
Party (or any of their Affiliates) which may come into the possession of the
Agent or any of its Affiliates.
Section 12.6 Several Commitments. The Commitments and other obligations
-------------------
of the Lenders under this Agreement are several. The default by any Lender in
making a Loan in accordance with its Commitment shall not relieve the other
Lenders of their obligations under this Agreement. In the event of any default
by any Lender in making any Loan or accepting any Bankers' Acceptance, each
nondefaulting Lender shall be obligated to make its Loan or accept its Bankers'
Acceptance but shall not be obligated to advance or accept the amount which the
defaulting Lender was required to advance or accept hereunder. In no event
shall any Lender be required to advance or accept an amount or amounts with
respect to any of the Loans or Bankers' Acceptance which would in the aggregate
exceed such Lender's Commitment with respect to such Loans or Bankers'
Acceptance. No Lender shall be responsible for any act or omission of any other
Lender.
Section 12.6 Successor Agent. Subject to the appointment and acceptance
---------------
of a successor Agent as provided below, the Agent may resign at any time by
giving notice thereof to the
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Lenders and the Borrower and the Agent may be removed at any time with cause by
the Required Lenders. Upon any such resignation or removal, the Required Lenders
will have the right, after notice to and consultation with the Borrower and with
the prior written consent of the Borrower (which consent shall not be
unreasonably withheld, conditioned or delayed) if (but only if) no Default has
then occurred and is continuing, to appoint another Lender as a successor Agent.
If no successor Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring Agent's
giving of notice of resignation or the Required Lenders' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the U.S. or any state thereof or of a foreign country if acting through its U.S.
branch and having combined capital and surplus of at least $100,000,000. Upon
the acceptance of its appointment as successor Agent, such successor Agent shall
thereupon succeed to and become vested with all rights, powers, privileges,
immunities and duties of the resigning or removed Agent, and the resigning or
removed Agent shall be discharged from its duties and obligations under this
Agreement and the other Loan Documents. After any Agent's resignation or removal
as Agent, the provisions of this Article 12 shall continue in effect for its
----------
benefit in respect of any actions taken or omitted to be taken by it while it
was the Agent.
ARTICLE 13
Miscellaneous
-------------
Section 13.1 Expenses. Whether or not the transactions contemplated
--------
hereby are consummated, each of Mail-Well and the Borrower hereby jointly and
severally agrees, on demand, to pay or reimburse the Agent and each of the
Lenders for paying: (a) all reasonable out-of-pocket costs and expenses of the
Agent in connection with the preparation, negotiation, execution and delivery of
this Agreement and the other Loan Documents, and any and all amendments,
modifications, renewals, extensions and supplements thereof and thereto, and the
syndication of the Loans, including, without limitation, the reasonable fees and
expenses of legal counsel for the Agent, (b) all reasonable out-of-pocket costs
and expenses of the Agent and the Lenders in connection with any Default, the
exercise of any right or remedy and the enforcement of this Agreement or any
other Loan Document or any term or provision hereof or thereof, including,
without limitation, the reasonable fees and expenses of legal counsel for the
Agent and the Lenders, (c) all transfer, stamp, documentary or other similar
taxes, assessments or charges levied by any Governmental Authority in respect of
this Agreement or any of the other Loan Documents, (d) all costs, expenses,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any Lien contemplated by this Agreement
or any other Loan Document, and (e) all reasonable out-of-pocket costs and
expenses incurred by the Agent in connection with due diligence, computer
services, copying, appraisals, environmental audits, collateral audits, field
exams, insurance, consultants and search reports. Without incurring any
liability for its failure to do so and without affecting its right to be paid
for such costs and expenses, the Agent will, prior to the occurrence of a
Default, endeavor to advise the Borrower of any such costs and expenses to be
incurred and which are individually in excess of $5,000.
Section 13.2 INDEMNIFICATION. EACH OF MAIL-WELL, THE BORROWER AND EACH
---------------
OTHER LOAN PARTY SHALL JOINTLY AND SEVERALLY INDEMNIFY
78
THE AGENT AND EACH LENDER AND EACH AFFILIATE THEREOF AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS FROM, AND HOLD EACH OF THEM
HARMLESS AGAINST, ANY AND ALL LOSSES, LIABILITIES, (INCLUDING, WITHOUT
LIMITATION, ENVIRONMENTAL LIABILITIES), CLAIMS, DAMAGES, PENALTIES, JUDGMENTS,
DISBURSEMENTS, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' AND
CONSULTANTS' FEES) TO WHICH ANY OF THEM MAY BECOME SUBJECT WHICH DIRECTLY OR
INDIRECTLY ARISE FROM OR RELATE TO (A) THE NEGOTIATION, EXECUTION, DELIVERY,
PERFORMANCE, ADMINISTRATION OR ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS, (B) ANY
OF THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS, (C) THE RELATED
TRANSACTIONS, (D) ANY BREACH BY ANY LOAN PARTY OF ANY REPRESENTATION, WARRANTY,
COVENANT OR OTHER AGREEMENT CONTAINED IN ANY OF THE LOAN DOCUMENTS, (E) THE USE
OR PROPOSED USE OF ANY LOAN, LETTER OF CREDIT OR BANKERS' ACCEPTANCE, (F) ANY
AND ALL TAXES, LEVIES, DEDUCTIONS AND CHARGES IMPOSED ON THE AGENT, THE ISSUING
BANK OR ANY LENDER IN RESPECT OF ANY LETTER OF CREDIT OR BANKERS' ACCEPTANCE,
(G) THE PRESENCE, RELEASE, THREATENED RELEASE, DISPOSAL, REMOVAL OR CLEANUP OF
ANY HAZARDOUS MATERIAL LOCATED ON, ABOUT, WITHIN OR AFFECTING ANY OF THE
PROPERTIES OF ANY LOAN PARTY, EXCEPT TO THE EXTENT THAT THE LOSS, DAMAGE OR
CLAIM IS THE DIRECT RESULT OF AN INTENTIONAL AND AFFIRMATIVE ACT BY THE PERSON
TO BE INDEMNIFIED THAT CONSTITUTES GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
SUCH PERSON, OR (H) ANY INVESTIGATION, LITIGATION OR OTHER PROCEEDING,
INCLUDING, WITHOUT LIMITATION, ANY THREATENED INVESTIGATION, LITIGATION OR OTHER
PROCEEDING RELATING TO ANY OF THE FOREGOING; BUT EXCLUDING ANY OF THE FOREGOING
TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PERSON
TO BE INDEMNIFIED. WITHOUT LIMITING ANY PROVISION OF THIS AGREEMENT OR OF ANY
OTHER LOAN DOCUMENT, IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH
PERSON TO BE INDEMNIFIED UNDER THIS SECTION 13.2 SHALL BE INDEMNIFIED FROM AND
------------
HELD HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES, (INCLUDING, WITHOUT
LIMITATION, ENVIRONMENTAL LIABILITIES), CLAIMS, DAMAGES, PENALTIES, JUDGMENTS,
DISBURSEMENTS, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) ARISING
OUT OF OR RESULTING FROM THE SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH PERSON.
WITHOUT PREJUDICE TO THE SURVIVAL OF ANY OTHER TERM OR PROVISION OF THIS
AGREEMENT, THE OBLIGATIONS OF MAIL-WELL, THE BORROWER AND THE OTHER LOAN PARTIES
UNDER THIS SECTION 13.2 SHALL SURVIVE THE REPAYMENT OF THE LOANS.
------------
Section 13.3 Limitation of Liability. None of the Agent, any Lender or
-----------------------
any Affiliate, officer, director, employee, attorney or agent thereof shall be
liable for any error of judgment or act done in good faith, or be otherwise
liable or responsible under any circumstances whatsoever (including such
Person's negligence), except for such Person's gross negligence or willful
79
misconduct. None of the Agent, any Lender or any Affiliate, officer, director,
employee, attorney or agent thereof shall have any liability with respect to,
and each of Mail-Well, the Borrower and each other Loan Party hereby waives,
releases and agrees not to ▇▇▇ any of them upon, any claim for any special,
indirect, incidental or consequential damages suffered or incurred by Mail-Well,
the Borrower or any other Loan Party in connection with, arising out of or in
any way related to this Agreement or any of the other Loan Documents, or any of
the transactions contemplated by this Agreement or any of the other Loan
Documents. Each of Mail-Well, the Borrower and each other Loan Party hereby
waives, releases and agrees not to ▇▇▇ the Agent or any Lender or any of their
respective Affiliates, officers, directors, employees, attorneys or agents for
exemplary or punitive damages in respect of any claim in connection with,
arising out of or in any way related to this Agreement or any of the other Loan
Documents, or any of the transactions contemplated by this Agreement or any of
the other Loan Documents.
Section 13.4 No Duty. All attorneys, accountants, appraisers and other
-------
professional Persons and consultants retained by the Agent and the Lenders shall
have the right to act exclusively in the interests of the Agent and the Lenders
and shall have no duty of disclosure, duty of loyalty, duty of care or other
duty or obligation of any type or nature whatsoever to any Loan Party or any of
its shareholders or any other Person.
Section 13.5 No Fiduciary Relationship. The relationship between (a) each
-------------------------
Loan Party and (b) each Lender is solely that of debtor and creditor, and
neither the Agent nor any Lender has any fiduciary or other special relationship
with Mail-Well, the Borrower or any other Loan Party, and no term or condition
of any of the Loan Documents shall be construed so as to deem the relationship
between (i) Mail-Well and the Borrower and (ii) any Lender, or any other Loan
Party and any Lender, to be other than that of debtor and creditor. No joint
venture or partnership is created by this Agreement among the Lenders or among
Mail-Well, the Borrower or any other Loan Party and the Lenders.
Section 13.6 Equitable Relief. Each of the Loan Parties recognizes that,
----------------
in the event it or any other Loan Party fails to pay, perform, observe or
discharge any or all of the Obligations, any remedy at law may prove to be
inadequate relief to the Agent and the Lenders. Each of the Loan Parties
therefore agrees that the Agent and the Lenders, if the Agent or the Lenders so
request, shall be entitled to temporary and permanent injunctive relief in any
such case without the necessity of proving actual damages.
Section 13.7 No Waiver; Cumulative Remedies. No failure on the part of
------------------------------
the Agent or any Lender to exercise and no delay in exercising, and no course of
dealing with respect to, any right, power or privilege under this Agreement or
any other Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, power or privilege under this Agreement or any
other Loan Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
provided for in this Agreement and the other Loan Documents are cumulative and
not exclusive of any rights and remedies provided by law.
80
Section 13.8 Successors and Assigns.
----------------------
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. Neither Mail-
Well nor the Borrower nor any other Loan Party may assign or transfer any of its
rights or obligations under this Agreement or any other Loan Document without
the prior written consent of the Agent and the Lenders. Any Lender may sell
participations in all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including, without limitation, all or a
portion of its Commitments and the Loans owing to it); provided, however, that
-------- -------
(i) such Lender's obligations under this Agreement and the other Loan Documents
(including, without limitation, its Commitments) shall remain unchanged, (ii)
such Lender shall remain solely responsible to Mail-Well and the Borrower for
the performance of such obligations, (iii) such Lender shall remain the holder
of its Notes for all purposes of this Agreement, (iv) Mail-Well and the Borrower
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Loan
Documents, and (v) such Lender shall not sell a participation that conveys to
the participant the right to vote or give or withhold consents under this
Agreement or any other Loan Document, other than (if and to the extent that such
Lender so agrees) the right to vote upon or consent to (A) any increase of such
Lender's Commitments (other than an increase resulting from an assignment to or
in favor of such Lender from another Lender in accordance with this Agreement),
(B) any reduction of the principal amount of, or interest to be paid on, the
Loans of such Lender, (C) any reduction of any commitment fee or other amount
payable to such Lender under any Loan Document if and to the extent that such
reduction would decrease the fee or other amount payable to the participant, (D)
any postponement of any date for the payment of any amount payable in respect of
the Loans of such Lender, (E) any release of a material portion of the
Collateral from the Liens created by the Security Documents and not otherwise
expressly authorized by the Loan Documents, and (F) any release of any Loan
Party from liability under the Loan Documents.
(b) Each of the Loan Parties and each of the Lenders agree that any
Lender (the "Assigning Lender") may at any time assign to one or more Eligible
----------------
Assignees all, or a proportionate part of all, of its rights and obligations
under this Agreement and the other Loan Documents (including, without
limitation, its Commitments, Loans, Letters of Credit and Bankers' Acceptances)
(each an "Assignee"); provided, however, that (i) subject to the penultimate
-------- -------- -------
sentence of this Section 13.8(b), each such assignment may be of a varying
---------------
percentage of the Assigning Lender's rights and obligations under this Agreement
and the other Loan Documents and may relate to some but not all of such rights
and/or obligations, (ii) except in the case of an assignment of all of a
Lender's rights and obligations under this Agreement and the other Loan
Documents, the amount of the Commitments and Loans of the Assigning Lender being
assigned pursuant to each assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment), when aggregated with
the amount of the "Commitments" and "Loans" (as such terms are defined in the
Mail-Well Credit Agreement) then being assigned in connection with the Mail-Well
Credit Agreement, shall in no event be less than the lesser of (A) an aggregate
amount equal to $5,000,000 (calculated based upon the sum of the Revolving
Credit Loans Commitment assigned (or, if such Commitment has terminated or
expired, the aggregate outstanding principal amount of the Revolving Credit
Loans, the Letter of Credit Liabilities and the Bankers' Acceptances assigned),
plus the aggregate outstanding principal amount of the Term
----
81
Loans assigned, plus the "Revolving Credit Loans Commitment" (as defined in the
----
Mail-Well Credit Agreement) assigned (or, if such commitment has terminated or
expired, the aggregate outstanding principal amount of the "Revolving Credit
Loans" and "Letter of Credit Liabilities" (as such terms are defined in the
Mail-Well Credit Agreement) assigned, plus the aggregate outstanding principal
----
amount of the Mail-Well Term Loans assigned), plus the Acquisition Loans
----
Commitment (as defined in the Mail-Well Credit Agreement) assigned (or, if such
commitment has terminated or expired, the aggregate outstanding principal amount
of the Mail-Well Acquisition Loans assigned), or (B) an aggregate amount equal
to five percent of the sum of the aggregate outstanding Revolving Credit Loans
Commitments (or, if such Commitments have terminated or expired, the aggregate
outstanding principal amount of the Revolving Credit Loans, the Letter of Credit
Liabilities and the Bankers' Acceptances), plus the aggregate outstanding
----
principal amount of the Term Loans, plus the aggregate outstanding "Revolving
----
Credit Loans Commitments" (as defined in the Mail-Well Credit Agreement) (or, if
such commitment has terminated or expired, the aggregate outstanding principal
amount of the "Revolving Credit Loans" and "Letter of Credit Liabilities" (as
such terms are defined in the Mail-Well Credit Agreement), plus the aggregate
----
outstanding principal amount of the Mail-Well Term Loans, plus the aggregate
----
outstanding Acquisition Loan Commitments (as defined in the Mail-Well Credit
Agreement) (or, if such commitments have terminated or expired, the aggregate
outstanding principal amount of the Mail-Well Acquisition Loans), and (iii) the
parties to each such assignment shall execute and deliver to the Agent for its
acceptance and recording in the Register (as defined below), an Assignment and
Acceptance, together with the Notes subject to such assignment, and a processing
and recordation fee of $2,500. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five Business Days after the
execution thereof, or, if so specified in such Assignment and Acceptance, the
date of acceptance thereof by the Agent, (1) the Assignee thereunder shall be a
party hereto as a "Lender" and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder and under the Loan
Documents, and (2) the Assigning Lender thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement and the other Loan Documents (and, in the case
of an Assignment and Acceptance covering all or the remaining portion of a
Lender's rights and obligations under the Loan Documents, such Lender shall
cease to be a party thereto, provided that all of such Lender's rights under
Article 4, Section 13.1 and Section 13.2 accrued through the date of assignment
--------- ------------ ------------
shall continue). Notwithstanding anything to the contrary contained in this
Section 13.8, each Assigning Lender shall, in connection with any assignment of
------------
its Term Loans A or Term Loans B (or any commitment relating thereto or any
portion thereof or interest therein) to an assignee and concurrently with each
such assignment, also assign to such assignee the same percentage of the Term
Loans B or Term Loans A, respectively, the Mail-Well Term Loans and the
"Financing Loans" (as defined in the Equipment Lease Facility Documents) then
owned by such Assigning Lender (if, but only if, such Assigning Lender then
holds any such other Loans or loans or commitments therefor) as the percentage
of the Term Loans A or Term Loans B, respectively, owned by such Assigning
Lender then being assigned. (For example, in the event that an Assigning Lender
proposes to assign 50% of its Term Loans A to an assignee, such Assigning Lender
shall also, concurrently therewith, assign 50% of each of its Term Loans B, its
Mail-Well Term Loans and its "Financing Loans" (as defined in the Equipment
Lease
82
Facility Documents) to such assignee.) Furthermore, and notwithstanding anything
to the contrary contained in this Agreement, each Lender which has any Revolving
Credit Loans Commitment or owns or holds any Revolving Credit Loans or any
Reimbursement Obligations or Bankers' Acceptances must be resident in Canada.
(c) By executing and delivering an Assignment and Acceptance, the
Assigning Lender thereunder and the Assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such Assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Loan
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any other instrument or document
furnished pursuant thereto; (ii) such Assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of any Loan Party or the performance or observance by any Loan Party
of its obligations under the Loan Documents; (iii) such Assignee confirms that
it has received a copy of the other Loan Documents, together with copies of the
financial statements referred to in Section 7.2 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; (iv) such Assignee will,
independently and without reliance upon the Agent or such Assigning 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 and the other Loan Documents; (v) such Assignee confirms
that it is an Eligible Assignee; (vi) such Assignee appoints and authorizes the
Agent to take such action as agent on its behalf and exercise such powers under
the Loan Documents as are delegated to the Agent by the terms thereof, together
with such powers as are reasonably incidental thereto; and (vii) such Assignee
agrees that 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.
(d) The Agent shall maintain at its Principal Office a copy of each
Assignment and Acceptance delivered to and accepted by 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 from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for
---------
all purposes, absent manifest error, and Mail-Well, the Borrower, the Agent and
the Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes under the Loan Documents. The Register shall
be available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
Assigning Lender and Assignee representing that it is an Eligible Assignee,
together with the Notes subject to such assignment, the Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form of
Exhibit A hereto, (i) accept such Assignment and Acceptance, (ii) record the
---------
information contained therein in the Register, and (iii) give prompt written
notice thereof to the Borrower. Within five Business Days after its receipt of
such notice the Borrower, at its expense, shall execute and deliver to the Agent
in exchange for each surrendered Note evidencing particular Loans, a new Note
evidencing each such Loans payable to the order of such Eligible
83
Assignee in an amount equal to such Loans assigned to it and, if the Assigning
Lender has retained any Loans, a new Note evidencing each such Loans payable to
the order of the Assigning Lender in the amount of such Loans retained by it
(each such promissory note shall constitute a "Note" for purposes of the Loan
Documents). Such new Notes shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of Exhibits B, C
---------- -
and D hereto, as applicable.
-
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 13.8, disclose
------------
to the Assignee or participant or proposed Assignee or participant any
information relating to Holdings, Mail-Well, the Borrower, any other Loan Party
or any of their respective Subsidiaries furnished to such Lender by or on behalf
of Holdings, Mail-Well, the Borrower, any other Loan Party or any of their
respective Subsidiaries; provided that each such actual or proposed Assignee or
--------
participant shall agree to be bound by the provisions of Section 13.20.
-------------
(g) Any Lender may assign and pledge all or any of the Notes held by it
to any Federal Reserve Bank or the U.S. Treasury as collateral security pursuant
to Regulation A of the Board of Governors of the Federal Reserve System and any
operating circular issued by such Federal Reserve System and/or Federal Reserve
Bank; provided, that, any payment made by the Borrower for the benefit of such
--------
assigning and/or pledging Lender in accordance with the terms of the Loan
Documents shall satisfy the Borrower's obligations under the Loan Documents in
respect thereof to the extent of such payment. No such assignment and/or pledge
shall release the assigning and/or pledging Lender from its obligations
hereunder.
(h) The Borrower shall maintain, or cause to be maintained, a register
(the "Registered Note Register") (which, at the request of the Borrower, shall
------------------------
be kept by the Agent on behalf of the Borrower at no extra charge to the
Borrower at the address to which notices to the Agent are to be sent hereunder)
on which it enters the name of the registered owner of each of the Term Loans
evidenced by a Registered Note. Notwithstanding anything to the contrary
contained in this Section 13.8, a Registered Note and the Term Loans evidenced
------------
thereby may be assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer of such Registered Note and the Term
Loans evidenced thereby on the Registered Note Register (and each Registered
Note shall expressly so provide). Any assignment or transfer of all or part of
such Term Loans and the Registered Note evidencing the same shall be registered
on the Registered Note Register only upon surrender for registration of
assignment or transfer of the Registered Note evidencing such Term Loans, duly
endorsed by (or accompanied by a written instrument of assignment or transfer
duly executed by) the registered noteholder thereof, and thereupon one or more
new Registered Notes in the same aggregate principal amount shall be issued to
the designated assignee(s) or transferee(s). Prior to the due presentment for
registration of transfer of any Registered Note, the Borrower and the Agent
shall treat the Person in whose name such Term Loans and the Registered Note(s)
evidencing the same are registered as the owner thereof for the purpose of
receiving all payments thereon and for all other purposes, notwithstanding any
notice to the contrary. The Registered Note Register shall be available for
inspection by the Borrower and any Lender at any reasonable time upon reasonable
prior notice.
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Section 13.9 Survival. All representations and warranties made or deemed
--------
made in this Agreement or any other Loan Document or in any document, statement
or certificate furnished in connection with this Agreement shall survive the
execution and delivery of this Agreement and the other Loan Documents and the
making of the Loans, and no investigation by the Agent or any Lender or any
closing shall affect the representations and warranties or the right of the
Agent or any Lender to rely upon them. Without prejudice to the survival of any
other obligation of Mail-Well, the Borrower or any other Loan Party hereunder,
the obligations of Mail-Well, the Borrower and the other Loan Parties under
Article 4 and Sections 13.1 and 13.2 shall survive repayment of the Loans and
--------- ------------- ----
Reimbursement Obligations and Bankers' Acceptances and termination of the
Commitments.
Section 13.10 ENTIRE AGREEMENT. THIS AGREEMENT, THE NOTES AND THE OTHER
----------------
LOAN DOCUMENTS REFERRED TO HEREIN EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE
PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE
PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO.
Section 13.11 Amendments. No amendment or waiver of any provision of this
----------
Agreement, the Notes or any other Loan Document to which Mail-Well, the Borrower
or any other Loan Party is a party, nor any consent to any departure by Mail-
Well, the Borrower or any other Loan Party therefrom, shall in any event be
effective unless the same shall be agreed or consented to by the Required
Lenders and Mail-Well, the Borrower or such other Loan Party, respectively, in
writing, and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, that no
--------
amendment, waiver or consent shall, unless in writing and signed by all of the
Lenders and Mail-Well and the Borrower, do any of the following: (a) increase
the Commitments of the Lenders or subject the Lenders to any additional
obligations; (b) reduce the principal of, or interest on, the Loans or any fees
or other amounts payable hereunder; (c) postpone any date fixed for any payment
(including, without limitation, any mandatory prepayment) of principal of, or
interest on, the Loans or any fees or other amounts payable hereunder; (d) waive
any of the conditions precedent specified in Article 6; (e) change the
---------
Commitment Percentages or the aggregate unpaid principal amount of the Loans or
the number or interests of the Lenders which shall be required for the Lenders
or any of them to take any action under this Agreement; (f) change any provision
contained in Section 3.2 or this Section 13.11 or modify the definition of
----------- -------------
"Required Lenders" contained in Section 1.1; or (g) except as expressly
-----------
authorized by this Agreement, release any Collateral from any of the Liens
created by the Security Documents or release any guaranty of all or any portion
of the Obligations; and provided, further, however, that (i) except in the case
-------- ------- -------
of the automatic acceleration of maturity of the Loans and the automatic
termination of the Commitments pursuant to Section 11.2 as a result of the
------------
occurrence of an Event of Default under Section 11.1(e) or Section 11.1(f),
--------------- ---------------
after any acceleration of the maturity of the Loans by the Agent pursuant to
Section 11.2(a) or any termination of the Commitments by the Agent pursuant to
---------------
Section 11.2(b) without the consent of the Required Lenders, the acceleration of
---------------
the maturity of the Loans may
85
be rescinded and the Commitments may be reinstated with the prior written
consent of the Required Lenders, and (ii) no amendment, waiver or consent
relating to Section 12.1, 12.2, 12.3, 12.4 or 12.5 shall require the agreement
------------ ---- ---- ---- ----
of any Loan Party. Notwithstanding anything to the contrary contained in this
Section 13.11, no amendment, waiver or consent shall be made with respect to
-------------
Article 12 hereof without the prior written consent of the Agent.
----------
Section 13.12 Maximum Interest Rate.
---------------------
(a) No interest rate specified in this Agreement or any other Loan
Document shall at any time exceed the Maximum Rate. If at any time the interest
rate (the "Contract Rate") for any Obligation shall exceed the Maximum Rate,
-------------
thereby causing the interest accruing on such Obligation to be limited to the
Maximum Rate, then any subsequent reduction in the Contract Rate for such
Obligation shall not reduce the rate of interest on such Obligation below the
Maximum Rate until the aggregate amount of interest accrued on such Obligation
equals the aggregate amount of interest which would have accrued on such
Obligation if the Contract Rate for such Obligation had at all times been in
effect.
(b) Notwithstanding anything to the contrary contained in this
Agreement or the other Loan Documents, none of the terms and provisions of this
Agreement or the other Loan Documents shall ever be construed to create a
contract or obligation to pay interest at a rate in excess of the Maximum Rate;
and neither the Agent nor any Lender shall ever charge, receive, take, collect,
reserve or apply, as interest on the Obligations, any amount in excess of the
Maximum Rate. The parties hereto agree that any interest, charge, fee, expense
or other obligation provided for in this Agreement or in the other Loan
Documents which constitutes interest under applicable law shall be, ipso facto
---- -----
and under any and all circumstances, limited or reduced to an amount equal to
the lesser of (i) the amount of such interest, charge, fee, expense or other
obligation that would be payable in the absence of this Section 13.12(b) or (ii)
----------------
an amount, which when added to all other interest payable under this Agreement
and the other Loan Documents, equals the Maximum Rate. If, notwithstanding the
foregoing, the Agent or any Lender ever contracts for, charges, receives, takes,
collects, reserves or applies as interest any amount in excess of the Maximum
Rate, such amount which would be deemed excessive interest shall be deemed a
partial payment or prepayment of principal of the Obligations and treated
hereunder as such; and if the Obligations, or applicable portions thereof, are
paid in full, any remaining excess shall promptly be paid to Mail-Well, the
Borrower or other appropriate Loan Party. In determining whether the interest
paid or payable, under any specific contingency, exceeds the Maximum Rate, Mail-
Well, the Borrower, the other Loan Parties, the Agent and the Lenders shall, to
the maximum extent permitted by applicable law, (i) characterize any
nonprincipal payment as an expense, fee or premium rather than as interest, (ii)
exclude voluntary prepayments and the effects thereof, and (iii) amortize,
prorate, allocate and spread in equal or unequal parts the total amount of
interest throughout the entire contemplated term of the Obligations, or
applicable portions thereof, so that the interest rate does not exceed the
Maximum Rate at any time during the term of the Obligations; provided that, if
-------- ----
the unpaid principal balance is paid and performed in full prior to the end of
the full contemplated term thereof, and if the interest received for the actual
period of existence thereof exceeds the Maximum Rate, the Agent and/or the
Lenders, as appropriate, shall refund to Mail-Well, the Borrower or other
appropriate Loan Party the amount of such excess and, in such event, the Agent
and the Lenders shall not be
86
subject to any penalties provided by any laws for contracting for, charging,
receiving, taking, collecting, reserving or applying interest in excess of the
Maximum Rate. In addition to the foregoing, each of Mail-Well, the Borrower and
the other Loan Parties agrees that no provision of this Agreement or any other
Loan Document shall have the effect of imposing on Mail-Well, the Borrower or
any other Loan Party (as applicable) any obligation to pay interest (as such
term is defined in Section 347 of the Criminal Code of Canada) at a rate in
excess of the rate permitted by the laws of Canada, after taking into account
all other amounts which must be taken into account for the purpose of such laws,
and the obligation of Mail-Well, the Borrower and the other Loan Parties to pay
interest under this Agreement and the other Loan Documents is so limited.
(c) Pursuant to Article 15.10(b) of Chapter 15, Subtitle 79, Revised
Civil Statutes of Texas 1925, as amended, Mail-Well, the Borrower and the other
Loan Parties agree that such Chapter 15 (which regulates certain revolving
credit loan accounts and revolving tri-party accounts) shall not govern or in
any manner apply to the Obligations.
Section 13.13 Notices. All notices and other communications provided for
-------
in this Agreement and the other Loan Documents to which Mail-Well, the Borrower
or any other Loan Party is a party shall be given or made by telecopy or in
writing and telecopied, mailed by certified mail return receipt requested or
delivered to the intended recipient at the "Address for Notices" specified below
its name on the signature pages hereof (or, with respect to a Lender that
becomes a party to this Agreement pursuant to an assignment made in accordance
with Section 13.8, in the Assignment and Acceptance executed by it), or, as to
------------
any party, at such other address as shall be designated by such party in a
notice to each other party given in accordance with this Section 13.13. Except
-------------
as may be expressly otherwise provided in this Agreement or any other Loan
Document, all such communications shall be deemed to have been duly given when
transmitted by telecopy or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid; provided,
--------
however, that notices to the Agent shall be deemed given when received by the
-------
Agent.
Section 13.14 GOVERNING LAW; SUBMISSION TO JURISDICTION; SERVICE OF
-----------------------------------------------------
PROCESS. EXCEPT AS MAY BE EXPRESSLY STATED TO THE CONTRARY IN CERTAIN LOAN
-------
DOCUMENTS, THIS AGREEMENT, THE NOTES AND THE OTHER LOAN DOCUMENTS SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS
(WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES) AND APPLICABLE LAWS OF THE U.S.
EACH OF THE LOAN PARTIES HEREBY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE
U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, THE U.S. DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS AND OF ANY TEXAS STATE COURT SITTING IN
HOUSTON, TEXAS, OR DALLAS, TEXAS, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH OF THE LOAN PARTIES HEREBY
IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO SUCH LOAN PARTY AT ITS
ADDRESS SET FORTH UNDERNEATH ITS SIGNATURE HERETO. EACH OF THE LOAN PARTIES
HEREBY
87
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORM.
Section 13.15 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 13.16 Severability. Any provision of this Agreement held by a
------------
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Agreement and the effect thereof shall be
confined to the provision held to be invalid or illegal.
Section 13.17 Headings. The headings, captions and arrangements used in
--------
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
Section 13.18 Construction. Each of the Loan Parties, the Agent and each
------------
Lender acknowledges that it has had the benefit of legal counsel of its own
choice and has been afforded an opportunity to review this Agreement and the
other Loan Documents with its legal counsel and that this Agreement and the
other Loan Documents shall be construed as if jointly drafted by the parties
hereto.
Section 13.19 Independence of Covenants. All covenants hereunder shall be
-------------------------
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant shall
not avoid the occurrence of a Default if such action is taken or such condition
exists.
Section 13.20 Confidentiality. Each Lender agrees to exercise its best
---------------
efforts to keep any information delivered or made available by any Loan Party to
it which is clearly indicated to be confidential information, confidential from
anyone other than Persons employed or retained by such Lender who are or are
expected to become engaged in evaluating, approving, structuring or
administering the Loans; provided that nothing herein shall prevent any Lender
--------
from disclosing such information (a) to any other Lender, (b) to any Person if
reasonably incidental to the administration of the Loans, Letters of Credit or
Bankers' Acceptances, (c) upon the order of any court or administrative agency,
(d) upon the request or demand of any regulatory agency or authority having
jurisdiction over such Lender, (e) which has been publicly disclosed, (f) in
connection with any litigation to which the Agent, any Lender or their
respective Affiliates may be a party, (g) to the extent reasonably required in
connection with the exercise of any remedy under the Loan Documents, (h) to such
Lender's legal counsel, independent auditors and affiliates, and (i) to any
actual or proposed participant or Assignee of all or part of its rights
hereunder, so long as such actual or proposed participant or Assignee agrees to
be bound by the provisions of this Section 13.20.
-------------
88
Section 13.21 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
--------------------
APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND EXPRESSLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY OR THE
ACTIONS OF THE AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION OR
ENFORCEMENT THEREOF.
Section 13.22 Approvals and Consent. Except as may be expressly provided
---------------------
to the contrary in this Agreement or in the other Loan Documents (as
applicable), in any instance under this Agreement or the other Loan Documents
where the approval, consent or exercise of judgment of the Agent or any Lender
is requested or required, (a) the granting or denial of such approval or consent
and the exercise of such judgment shall be within the sole discretion of the
Agent and such Lender, and the Agent and such Lender shall not, for any reason
or to any extent, be required to grant such approval or consent or to exercise
such judgment in any particular manner, regardless of the reasonableness of the
request or the action or judgment of the Agent or such Lender, and (b) no
approval or consent of the Agent or any Lender shall in any event be effective
unless the same shall be in writing and the same shall be effective only in the
specific instance and for the specific purpose for which given.
Section 13.23 Agent for Services of Process. Each of the Loan Parties
-----------------------------
hereby irrevocably designates CT Corporation System with offices at ▇▇▇ ▇. ▇▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, to receive for and on behalf of such Loan
Party service of process in the State of Texas. In the event that CT Corporation
System resigns or ceases to serve as such Loan Party's agent for service of
process hereunder, agrees forthwith (a) to designate another agent for service
of process in Houston, Texas and (b) to give prompt written notice to the Agent
of the name and address of such agent. Each of the Loan Parties agrees that the
failure of its agent for service of process to give any notice of any such
service of process to such Loan Party shall not impair or affect the validity of
such service or of any judgment based thereon. If, despite the foregoing, there
is for any reason no agent for service of process of a particular Loan Party
available to be served, then such Loan Party further irrevocably consents to the
service of process by the mailing thereof by the Agent or the Required Lenders
by registered or certified mail, postage prepaid, to such Loan Party at its
address listed on the signature pages hereof. Nothing in this Section 13.23
-------------
shall affect the right of the Agent or the Lenders to serve legal process in any
other manner permitted by law or affect the right of the Agent or any Lender to
bring any action or proceeding against any Loan Party or its Property in the
court of any jurisdiction.
Section 13.24 Assignment and Assumptions. The Lenders hereby agree among
--------------------------
themselves (and each of the Loan Parties hereby consents to such agreement)
that, concurrently with the Restatement Date, there shall be deemed to have
occurred assignments and assumptions with respect to the Debt, Liens, rights and
obligations under this Agreement and the other Loan Documents (including,
without limitation, the Commitments, the Loans, the Letters of Credit and the
Bankers' Acceptances) such that, after giving effect to such assignments and
assumptions, the Commitments and the outstanding Loans, Letters of Credit and
Bankers' Acceptances of each of the Lenders are as stated in this Agreement, and
the Lenders hereby make such assignments and
89
assumptions. The Lenders shall make all appropriate payments and adjustments
among themselves to effectuate the appropriate purchase price for and other
amounts payable with respect to such assignments and assumptions.
Section 13.25 Amendment and Restatement. This Agreement is and shall be
-------------------------
deemed to be an amendment and restatement of the Original Supremex Credit
Agreement; provided, however, that the Original Supremex Credit Agreement shall
-------- -------
remain in existence as if it had not been amended or restated for purposes of
the defined terms, definitions, representations, warranties and other terms and
provisions of the Original Supremex Credit Agreement referred to herein
(including, without limitation, defined terms and the definitions thereof
referred to in all such terms and provisions) as if such defined terms,
definitions, representations, warranties and other terms and provisions of the
Original Supremex Credit Agreement, without amendment or restatement, were
incorporated herein by reference.
Section 13.26 Supplements to Certain Schedules. The Schedules hereto,
--------------------------------
other than Schedules 1.1(b), 7.10 and 7.15, may be proposed to be supplemented
---------------- ---- ----
by the Borrower concurrently with the making of the Term Loans B as they relate
to (but only as they relate to) the PNG Acquisition if (but only if) (a) the
Agent approves of any such supplement, which approval shall not be unreasonably
withheld, and (b) the supplemental information proposed to be included on any
such Schedule is not, in the judgment of the Agent, adverse in any material
respect to the Agent or the Lenders or the Mail-Well Agent or the Mail-Well
Lenders. Any such supplement proposed by the Borrower and so approved shall be
deemed to be a part of the Schedule to which such supplement relates.
Section 13.27 Intercreditor Agreements. Each of the Lenders hereby (a)
------------------------
agrees to all terms and provisions of each of the Intercreditor Agreement and
the Accounts Receivable Securitization Facility Intercreditor Agreement, (b)
agrees to be bound by all of the terms and provisions of each of the
Intercreditor Agreement and the Accounts Receivable Securitization Facility
Intercreditor Agreement as if it were a direct party and a signatory thereto
(whether or not it is a direct party or a signatory thereto) and (c) grants to
the Agent a special power of attorney to execute and deliver each of the
Intercreditor Agreement and the Accounts Receivable Securitization Facility
Intercreditor Agreement for, on behalf of and in the name of such Lender.
90
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
BORROWER:
--------
SUPREMEX INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Address for Notices:
-------------------
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, #▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: 303-397-7400
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Secretary
91
OTHER LOAN PARTIES:
------------------
MAIL-WELL I CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President - Finance
Address for Notices:
-------------------
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, #▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: 303-397-7400
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President - Finance
Address for Notices:
-------------------
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, #▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: 303-397-7400
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Secretary
93
AGENT:
-----
BANQUE PARIBAS
By: /s/ Pierre-▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: Pierre-▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
Title: General Manager
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
-------------------
Banque Paribas
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Corporate Banking Group
94
LENDERS:
-------
ARAB BANKING CORPORATION (B.S.C.)
Term Loans A
Commitment:
----------- By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇'
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇'
$2,936,590.23 Title: Vice President
Term Loans B Address for Notices:
Commitment: ---------------------------------
---------- Arab Banking Corporation (B.S.C.)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
$1,305,151.22 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: 212-583-0921
Telephone No.:
Revolving Credit Loans Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Commitment:
----------
Cdn. $ -0- with a copy to:
Arab Banking Corporation (B.S.C.)
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Lending Office for Prime Rate Loans:
-----------------------------------
Arab Banking Corporation (B.S.C.)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Lending Office for Eurodollar Loans:
-----------------------------------
Arab Banking Corporation (G.C.I.)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
95
BANQUE PARIBAS
Term Loans A
Commitment: By: /s/ Pierre-▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
----------- -------------------------------
Name: Pierre-▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
$6,455,084.51 Title: General Manager
Term Loans B
Commitment: By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------- ------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
$3,211,645.32 Title: Vice President
Revolving Credit Loans Address for Notices:
Commitment: -------------------
----------- Banque Paribas
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Cdn. $ -0- ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Corporate Banking Group
Lending Office for Prime Rate Loans:
-----------------------------------
Banque Paribas
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Operations Officer
Lending Office for Eurodollar Loans:
-----------------------------------
Banque Paribas
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Operations Officer
96
BANK OF AMERICA ILLINOIS
Term Loans A
Commitment: By: /s/ ▇▇▇▇▇ Leader
----------- -----------------------
Name: ▇▇▇▇▇ Leader
$4,894,317.06 Title: Vice President
Term Loans B Address for Notices:
Commitment: -------------------
---------- Bank of America Illinois
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
$2,175,252.02 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Revolving Credit Loans Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Commitment:
----------
With a copy to:
--------------
Cdn. $ -0-
Bank of America
U.S. Div. - S.F. Credit Products #3838
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Leader
Lending Office for Prime Rate Loans:
-----------------------------------
Bank of America Illinois
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Lending Office for Eurodollar Loans:
-----------------------------------
Bank of America Illinois
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
97
CREDIT LYONNAIS NEW YORK BRANCH
Term Loans A
Commitment: By: /s/ ▇▇▇▇▇▇ ▇▇▇
----------- ------------------
Name: ▇▇▇▇▇▇ ▇▇▇
$2,936,590.23 Title: Vice President
Term Loans B Addresses for Notices:
Commitment: ---------------------------------
---------- Credit Lyonnais
1301 Avenue of the Americas
$1,305,151.22 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Revolving Credit Loans Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Commitment:
----------
Credit Lyonnais
Cdn. $ -0- ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Lending Office for Prime Rate Loans:
-----------------------------------
Credit Lyonnais New York Branch
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Credit Lyonnais
Lending Office for Eurodollar Loans:
-----------------------------------
Credit Lyonnais New York Branch
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Credit Lyonnais
98
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING
RATE FUND, INC.
Term Loans A
Commitment: By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------- ---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
$2,821,316.61 Title: Authorized Signature
Term Loans B Address for Notices:
Commitment: -------------------
---------- ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇▇
$1,253,918.50 ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Revolving Credit Loans Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Commitment:
----------
Cdn. $ -0- Lending Office for Prime Rate Loans:
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Senior Floating Rate Fund, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Lending Office for Eurodollar Loans:
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Senior Floating Rate Fund, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
99
NATIONAL BANK OF CANADA
Term Loans A
Commitment: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------- ----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
$2,447,158.53 Title: Group Vice President
Term Loans B By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Commitment: -----------------------
---------- Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
$1,087,626.00
Address for Notices:
-----------------------
Revolving Credit Loans National Bank of Canada
Commitment: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
---------- ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Cdn. $ -0- Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇ (2 copies requested)
Lending Office for Prime Rate Loans:
-----------------------------------
National Bank of Canada, New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Lending Office for Eurodollar Loans:
-----------------------------------
National Bank of Canada
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Term Loans A
Commitment: By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇
----------- ---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇
$ -0- Title: Manager / Senior Manager
Term Loans B Address for Notices:
Commitment: -------------------
---------- National Bank of Canada
Tour de la Banque Nationale
$ -0- ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Revolving Credit Loans Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Commitment:
----------
Cdn. $3,333,333.33 Lending Office for Prime Rate Loans:
-----------------------------------
National Bank of Canada
Tour de la Banque Nationale
▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Lending Office for Eurodollar Loans:
-----------------------------------
National Bank of Canada
Tour de la Banque Nationale
▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, N.A.
Term Loans A
Commitment: By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
----------- ----------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
$2,936,590.23 Title: Vice President
Term Loans B Address for Notices:
Commitment: -------------------
---------- NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
$1,305,151.22 ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Revolving Credit Loans Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Commitment:
----------
Cdn. $ -0- Lending Office for Prime Rate Loans:
-----------------------------------
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Lending Office for Eurodollar Loans:
-----------------------------------
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Term Loans A
Commitment: By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------- ------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
$ -0- Title: Assistant Vice President
Term Loans B Address for Notices:
Commitment: -------------------
---------- Paribas Bank of Canada
Royal Trust Tower, Suite 4100
$ -▇- ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Revolving Credit Loans Attention: ▇▇▇▇ ▇▇, Operations
Commitment:
----------
Cdn. $3,333,333.34 Lending Office for Prime Rate Loans:
---------------
Paribas Bank of Canada
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇, Operations
Lending Office for Eurodollar Loans:
-----------------------------------
Paribas Bank of Canada
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇, Operations
103
SOCIETE GENERALE, SOUTHWEST AGENCY
Term Loans A
Commitment: By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------- -------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
$1,957,726.82 Title: Vice President
Term Loans B Address for Notices:
Commitment: -------------------
---------- Societe Generale
1111 ▇▇▇▇▇, Suite 2020
$870,100.80 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Revolving Credit Loans Attention: ▇▇▇▇ ▇▇▇▇▇▇
Commitment:
----------
with a copy to:
Cdn. $ -0-
Societe Generale
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Lending Office for Prime Rate Loans:
-----------------------------------
Societe Generale
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Lending Office for Eurodollar Loans:
-----------------------------------
Societe Generale
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
104
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
Term Loans A
Commitment: By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------- ----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
$2,841,056.45 Title: Vice President
Term Loans B Address for Notices:
Commitment: -------------------
---------- Texas Commerce Bank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇-▇▇▇-▇▇▇▇▇ #79
$1,262,691.75 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Revolving Credit Loans Attention: ▇▇▇▇ ▇▇▇▇▇▇
Commitment:
----------
Cdn. $ -0- Lending Office for Prime Rate Loans:
-----------------------------------
Texas Commerce Bank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇-▇▇▇-▇▇▇▇▇ #▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Lending Office for Eurodollar Loans:
-----------------------------------
Texas Commerce Bank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇-▇▇▇-▇▇▇▇▇ #▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Term Loans A
Commitment: By: /s/ A.S. ▇▇▇▇▇▇▇▇▇▇
----------- -----------------------
Name: A.S. ▇▇▇▇▇▇▇▇▇▇
$2,447,158.53 Title: Sr. Team Leader - Loan Operations
Term Loans B Address for Notices:
Commitment: -------------------
---------- The Bank of Nova Scotia, Atlanta Agency
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇▇
$1,087,626.01 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Revolving Credit Loans Attention: F.C.H. ▇▇▇▇▇
Commitment:
----------
with a copy to:
Cdn. $ -▇-
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Houston Representative ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Lending Office for Prime Rate Loans:
-----------------------------------
The Bank of Nova Scotia, Atlanta Agency
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Lending Office for Eurodollar Loans:
-----------------------------------
The Bank of Nova Scotia, Atlanta Agency
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Term Loans A
Commitment: By: /s/ A.S. ▇▇▇▇▇▇▇▇▇▇
----------- -----------------------
Name: A.S. ▇▇▇▇▇▇▇▇▇▇
$ -0- Title: Sr. Team Leader - Loan Operations
Term Loans B Address for Notices:
Commitment: -------------------
---------- The Bank of Nova Scotia
Corporate Banking Quebec
$ -0- ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, #▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Revolving Credit Loans Attention: ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Commitment:
----------
with a copy to:
Cdn. $3,333,333.33
The Bank of Nova Scotia
Houston Representative ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Lending Office for Prime Rate Loans:
-----------------------------------
The Bank of Nova Scotia
Scotia Tower
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Lending Office for Eurodollar Loans:
-----------------------------------
The Bank of Nova Scotia
Scotia Tower
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
107
THE BOATMEN'S NATIONAL BANK OF
ST. LOUIS
Term Loans A
Commitment: By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------- ----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇ Boggeman
$2,841,056.44 Title: Vice President
Term Loans B Address for Notices:
Commitment: -------------------
---------- The Boatmen's National Bank of St. Louis
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ LBP 37-01
$1,262,691.75 ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Revolving Credit Loans Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Commitment:
----------
Cdn. $ -0- Lending Office for Prime Rate Loans:
-----------------------------------
The Boatmen's National Bank of St. Louis,
Leveraged Finance
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ LBP ▇▇-▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Lending Office for Eurodollar Loans:
-----------------------------------
The Boatmen's National Bank of St. Louis,
Leveraged Finance
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ LBP ▇▇-▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
108
THE CIT GROUP/BUSINESS CREDIT, INC.
Term Loans A
Commitment: By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
$2,841,056.44 Title: Assistant Secretary
Term Loans B Address for Notices:
Commitment: -------------------
---------- The CIT Group/Business Credit, Inc.
Two Lincoln Centre, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
$1,262,691.75 ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Revolving Credit Loans Attention: ▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇
Commitment:
----------
Cdn. $ -0- Lending Office for Prime Rate Loans:
-----------------------------------
The CIT Group/Business Credit, Inc.
Two Lincoln Centre, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Lending Office for Eurodollar Loans:
-----------------------------------
The CIT Group/Business Credit, Inc.
Two Lincoln Centre, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
109
THE FUJI BANK, LIMITED
Term Loans A
Commitment: By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
$2,936,590.23 Title: Vice President & Joint Manager
Term Loans B Address for Notices:
Commitment: -------------------
---------- The Fuji Bank, Limited
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
$1,305,151.22 ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Revolving Credit Loans Attention: ▇▇▇▇ ▇▇▇▇▇
Commitment:
----------
Cdn. $ -0- Lending Office for Prime Rate Loans:
-----------------------------------
The Fuji Bank, Limited
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Lending Office for Eurodollar Loans:
-----------------------------------
The Fuji Bank, Limited
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
110
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
Term Loans A
Commitment: By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------- ----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
$2,936,590.23 Title: Deputy General Manager
Term Loans B Address for Notices:
Commitment: -------------------
---------- The Long-Term Credit Bank of Japan, Limited,
New York Branch
$1,305,151.22 ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Revolving Credit Loans Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Commitment:
----------
Cdn. $ -0- Lending Office for Prime Rate Loans:
-----------------------------------
The Long-Term Credit Bank of Japan, Limited,
New York Branch
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Lending Office for Eurodollar Loans:
-----------------------------------
The Long-Term Credit Bank of Japan, Limited,
New York Branch
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
111
EXHIBIT "A"
Form of Assignment and Acceptance
---------------------------------
EXHIBIT "A"
ASSIGNMENT AND ACCEPTANCE
-------------------------
Date: _______________, 19__
Reference is made to the Amended and Restated Credit Agreement dated as of
November __, 1996 (as the same may be amended, modified, supplemented, renewed,
extended or restated from time to time, the "Credit Agreement"), among Supremex
----------------
Inc. (the "Borrower"), Mail-Well I Corporation, Innova Envelope Inc., the
--------
Lenders named therein (the "Lenders"), and Banque Paribas, as agent for the
-------
Lenders (in such capacity, the "Agent"). Capitalized terms used herein and not
-----
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. This Assignment and Acceptance is being executed pursuant to
Section 13.8 of the Credit Agreement.
------------
___________________________ (the "Assignor") and ______________________
--------
(the "Assignee") agree as follows:
--------
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, the following interests
in and to the Assignor's rights and obligations under the Credit Agreement and
the other Loan Documents as of the Effective Date (as defined below):
(a) a ____% interest in the Revolving Credit Loans Commitments (which
percentage interest represents a Canadian $________ commitment with
respect to the aggregate Revolving Credit Loans Commitments of
Canadian $10,000,000);
(b) a ____% interest in the aggregate outstanding principal amount of the
Term Loans A (which percentage interest represents a $______ interest
in the $________ aggregate principal amount of the Term Loans A
presently outstanding);
(c) a ____% interest in the aggregate outstanding principal amount of the
Term Loans B (which percentage interest represents a $______ interest
in the $________ aggregate principal amount of the Term Loans B
presently outstanding);
After giving effect to this Assignment and Acceptance, the Revolving Credit
Loans Commitment of Assignor will be $__________________ and the outstanding
principal amount of Assignor's interest in the Term Loans A and Term Loans B
will be $_________ and $_________.
2. The Assignor (i) represents that, as of the date hereof, (A) its
Revolving Credit Loans Commitment is Canadian $_______________, (B) the
outstanding principal balance of its Term Loans A is $_______________, (C) the
outstanding principal balance of its Term Loans B is $_______________, and (D)
the outstanding principal balance of its Revolving Credit Loans is Canadian
$_______________, its pro rata share of the Letters of Credit outstanding under
its Revolving Credit Loans Commitment is Canadian $___________, and its pro rata
share of the Bankers' Acceptances outstanding under the Revolving Credit Loans
Commitment is Canadian
ASSIGNMENT AND ACCEPTANCE - PAGE 1
$________ (all as unreduced by any assignments which have not yet become
effective); (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other Loan Document, other than that it is
the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under the Credit Agreement or any other
Loan Document; and (iv) attaches the Notes held by Assignor and requests that
the Agent exchange such Notes for a new [TERM LOANS A NOTE, TERM LOANS B NOTE
AND REVOLVING CREDIT LOANS NOTE PAYABLE TO THE ORDER OF (A) THE ASSIGNEE IN AN
AMOUNT EQUAL TO (I) IN THE CASE OF THE TERM LOANS A NOTE, THE PRINCIPAL AMOUNT
OF THE TERM LOANS A ASSIGNED TO ASSIGNEE PURSUANT HERETO, (II) IN THE CASE OF
THE TERM LOANS B NOTE, THE PRINCIPAL AMOUNT OF THE TERM LOANS B ASSIGNED TO
ASSIGNEE PURSUANT HERETO, AND (III) IN THE CASE OF REVOLVING CREDIT LOANS NOTE,
THE AMOUNT OF ASSIGNOR'S REVOLVING CREDIT LOANS COMMITMENT ASSUMED BY ASSIGNEE
HEREUNDER, (B) THE ASSIGNOR IN AN AMOUNT EQUAL TO (I) IN THE CASE OF THE TERM
LOANS A NOTE, THE PRINCIPAL AMOUNT OF THE TERM LOANS A RETAINED BY ASSIGNOR,
(II) IN THE CASE OF THE TERM LOANS B NOTE, THE PRINCIPAL AMOUNT OF THE TERM
LOANS B RETAINED BY ASSIGNOR, AND (III) IN THE CASE OF THE REVOLVING CREDIT
LOANS NOTE, THE PRINCIPAL AMOUNT OF THE REVOLVING CREDIT LOANS COMMITMENT
RETAINED BY ASSIGNOR]/1/.
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 8.1 thereof, 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; (iii)
agrees that it will, independently and without reliance upon the 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 Credit Agreement and the other Loan
Documents; (iv) confirms that it is an Eligible Assignee; (v) appoints and
authorizes the Agent to take such action on the Assignee's behalf and to
exercise such powers under the Loan Documents as are delegated to the Agent by
the terms thereof, together with such powers as are reasonably incidental
thereto; (vi) agrees that it will perform in accordance with their terms all
obligations which by the terms of the Credit Agreement and the other Loan
Documents are required to be performed by it as a Lender; (vii) agrees that it
will keep confidential all information with respect to the Loan Parties
furnished to it by any Loan Party or the Assignor marked as being confidential
(other than information generally available to the public) in accordance with
Section 13.20 of the Credit Agreement; and (viii) attaches the forms prescribed
-------------
by the Internal Revenue Service of the United States certifying as to the
Assignee's exemption from United States withholding taxes with respect to all
payments to be made to the Assignee under the Credit Agreement, or a certificate
as to the Assignee's exemption from United States withholding taxes with respect
to all payments to be made to the Assignee under the Credit Agreement, or such
other documents as are necessary to indicate that all such payments
_______________________
/1/ If this Assignment and Acceptance does not relate to all of the Loans,
this language is to be revised accordingly.
ASSIGNMENT AND ACCEPTANCE - PAGE 2
are subject to such tax at a rate reduced by an applicable tax treaty;/2/ and
(iv) represents and warrants that it is resident in Canada./3/
4. The effective date for this Assignment and Acceptance shall be
___________ ____, 19__ (the "Effective Date")./4/ Following the execution of
--------------
this Assignment and Acceptance, it will be delivered to the Agent for acceptance
and recording by the Agent.
5. Upon such acceptance and recording, from and after the Effective Date,
(i) the Assignee shall be a party to the Credit Agreement and, to the extent
provided in this Assignment and Acceptance, shall have the rights and
obligations of a Lender thereunder and under the other Loan Documents, (ii) the
Assignee shall be a party to each of the Intercreditor Agreement and the
Accounts Receivable Securitization Facility Intercreditor Agreement as if it
were a signatory thereto, and to the extent provided in this Assignment and
Acceptance, shall have the rights and obligations of a Lender thereunder, and
(iii) the Assignor shall, to the extent provided in this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Credit Agreement and the other Loan Documents.
6. Upon such acceptance and recording, from and after the Effective Date,
the Agent shall make all payments in respect of the interest assigned hereby
(including payments of principal, interest, fees and other amounts) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement and the Notes for periods prior to the
Effective Date directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS (WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES) AND APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
8. The Assignee's address for notices and Applicable Lending Office for
purposes of the Credit Agreement (until such address or office are subsequently
changed in accordance with the Credit Agreement) are specified below its name on
the signature pages of this Assignment and Acceptance.
_________________________
/2/ If the Assignee is organized under the laws of a jurisdiction outside the
United States.
/3/ If the Assignee is assuming a Revolving Credit Loans Commitment.
/4/ Such date shall be at least five Business Days after the execution of this
Assignment and Acceptance and delivery thereof to the Agent (unless otherwise
agreed by the Agent).
ASSIGNMENT AND ACCEPTANCE - PAGE 3
[NAME OF ASSIGNOR]
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
[NAME OF ASSIGNEE]
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
Address for Notices:
-------------------
___________________________________________
___________________________________________
___________________________________________
Fax No. (_____)____________________________
Telephone No. (_____)______________________
Attention:_________________________________
Lending Office for Prime Rate Loans:
-----------------------------------
___________________________________________
___________________________________________
___________________________________________
Lending Office for Eurodollar Loans:
-----------------------------------
___________________________________________
___________________________________________
___________________________________________
ASSIGNMENT AND ACCEPTANCE - PAGE 4
ACCEPTED BY:
BANQUE PARIBAS, as Agent for the Lenders
By: _______________________________________
Name: _______________________________________
Title: _______________________________________
By: _______________________________________
Name: _______________________________________
Title: _______________________________________
Date: _______________________________________
APPROVED BY:
MAIL-WELL I CORPORATION
By: _______________________________________
Name: _______________________________________
Title: _______________________________________
ASSIGNMENT AND ACCEPTANCE - PAGE 5
EXHIBIT "B"
Form of Revolving Credit Loans Note
-----------------------------------
REVOLVING CREDIT LOANS NOTE
---------------------------
Canadian $3,333,333.34 Houston, Texas November __, 1996
FOR VALUE RECEIVED, the undersigned, SUPREMEX INC., a corporation
amalgamated under the Canada Business Corporations Act (the "Borrower"), hereby
--------
promises to pay to the order of BANQUE PARIBAS (the "Lender"), at the Principal
------
Office of the Agent, in lawful money of Canada and in immediately available
funds, the principal amount of THREE MILLION THREE HUNDRED THIRTY THREE THOUSAND
THREE HUNDRED THIRTY THREE AND 34/100 Canadian Dollars (Canadian $3,333,333.34)
or such lesser amount as shall equal the aggregate unpaid principal amount of
the Revolving Credit Loans made or deemed made by the Lender (or its predecessor
in interest) to the Borrower under the Credit Agreement referred to below, on
the dates and in the principal amounts provided in the Credit Agreement, and to
pay interest on the unpaid principal amount of each such Loan, at such office,
in like money and funds, for the period commencing on the date of each such Loan
until each such Loan shall be paid in full, at the rates per annum and on the
dates provided in the Credit Agreement.
This Note is one of the Revolving Credit Loans Notes referred to in the
Amended and Restated Credit Agreement dated as of November __, 1996, among the
Borrower, Mail-Well I Corporation, Innova Envelope Inc., the Lenders named
therein and Banque Paribas, as agent for the Lenders (such Credit Agreement, as
the same may be amended, modified, supplemented, renewed, extended or restated
from time to time, being referred to herein as the "Credit Agreement"), and
----------------
evidences Revolving Credit Loans made or deemed made by the Lender (or its
predecessor in interest) thereunder. The holder of this Note shall be entitled
to, without limitation, the benefits provided in the Credit Agreement as set
forth therein. The Credit Agreement, among other things, contains provisions
for acceleration of the maturity of this Note upon the happening of certain
stated events and for prepayment of the Revolving Credit Loans prior to the
maturity of this Note upon the terms and conditions specified in the Credit
Agreement. Capitalized terms used in this Note have the respective meanings
assigned to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS ( WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES) AND THE
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. THIS NOTE IS PERFORMABLE IN
▇▇▇▇▇▇ COUNTY, TEXAS.
The Borrower and each surety, guarantor, endorser and other party ever
liable for payment of any sums of money payable on this Note jointly and
severally waive notice, presentment, demand for payment, protest, notice of
protest and non-payment or dishonor, notice of acceleration, notice of intent to
accelerate, notice of intent to demand, diligence in collecting, grace and all
other formalities of any kind, and consent to all extensions without notice for
any period or periods of time and partial payments, before or after maturity,
and any impairment of any collateral securing this Note, all without prejudice
to the holder. The holder shall similarly have the right to deal in any way, at
any time, with one or more of the foregoing parties without notice to any other
party, and to grant any such party any extensions of time for payment of any of
said indebtedness, or to release or substitute part or all of the collateral
securing this Note, or to grant any other indulgences or
REVOLVING CREDIT LOANS NOTE - Page 1
forbearances whatsoever, without notice to any other party and without in any
way affecting the personal liability of any party hereunder.
THIS NOTE, TOGETHER WITH THE OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL
AGREEMENT OF THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
This Note is issued in replacement of, but not in extinguishment of the
indebtedness evidenced by, those certain Revolving Credit Loans Notes made by
the Borrower and delivered pursuant to the Original Supremex Credit Agreement.
SUPREMEX INC.
By:__________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President - Finance
REVOLVING CREDIT LOANS NOTE - Page 2
REVOLVING CREDIT LOANS NOTE
---------------------------
Canadian $3,333,333.34 Houston, Texas November __, 1996
FOR VALUE RECEIVED, the undersigned, SUPREMEX INC., a corporation
amalgamated under the Canada Business Corporations Act (the "Borrower"), hereby
--------
promises to pay to the order of BANQUE PARIBAS (the "Lender"), at the Principal
------
Office of the Agent, in lawful money of Canada and in immediately available
funds, the principal amount of THREE MILLION THREE HUNDRED THIRTY THREE THOUSAND
THREE HUNDRED THIRTY THREE AND 34/100 Canadian Dollars (Canadian $3,333,333.34)
or such lesser amount as shall equal the aggregate unpaid principal amount of
the Revolving Credit Loans made or deemed made by the Lender (or its predecessor
in interest) to the Borrower under the Credit Agreement referred to below, on
the dates and in the principal amounts provided in the Credit Agreement, and to
pay interest on the unpaid principal amount of each such Loan, at such office,
in like money and funds, for the period commencing on the date of each such Loan
until each such Loan shall be paid in full, at the rates per annum and on the
dates provided in the Credit Agreement.
This Note is one of the Revolving Credit Loans Notes referred to in the
Amended and Restated Credit Agreement dated as of November __, 1996, among the
Borrower, Mail-Well I Corporation, Innova Envelope Inc., the Lenders named
therein and Banque Paribas, as agent for the Lenders (such Credit Agreement, as
the same may be amended, modified, supplemented, renewed, extended or restated
from time to time, being referred to herein as the "Credit Agreement"), and
----------------
evidences Revolving Credit Loans made or deemed made by the Lender (or its
predecessor in interest) thereunder. The holder of this Note shall be entitled
to, without limitation, the benefits provided in the Credit Agreement as set
forth therein. The Credit Agreement, among other things, contains provisions
for acceleration of the maturity of this Note upon the happening of certain
stated events and for prepayment of the Revolving Credit Loans prior to the
maturity of this Note upon the terms and conditions specified in the Credit
Agreement. Capitalized terms used in this Note have the respective meanings
assigned to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS ( WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES) AND THE
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. THIS NOTE IS PERFORMABLE IN
▇▇▇▇▇▇ COUNTY, TEXAS.
The Borrower and each surety, guarantor, endorser and other party ever
liable for payment of any sums of money payable on this Note jointly and
severally waive notice, presentment, demand for payment, protest, notice of
protest and non-payment or dishonor, notice of acceleration, notice of intent to
accelerate, notice of intent to demand, diligence in collecting, grace and all
other formalities of any kind, and consent to all extensions without notice for
any period or periods of time and partial payments, before or after maturity,
and any impairment of any collateral securing this Note, all without prejudice
to the holder. The holder shall similarly have the right to deal in any way, at
any time, with one or more of the foregoing parties without notice to any other
party, and to grant any such party any extensions of time for payment of any of
said indebtedness, or to release or substitute part or all of the collateral
securing this Note, or to grant any other indulgences or
REVOLVING CREDIT LOANS NOTE - Page 3
forbearances whatsoever, without notice to any other party and without in any
way affecting the personal liability of any party hereunder.
THIS NOTE, TOGETHER WITH THE OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL
AGREEMENT OF THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
This Note is issued in replacement of, but not in extinguishment of the
indebtedness evidenced by, those certain Revolving Credit Loans Notes made by
the Borrower and delivered pursuant to the Original Supremex Credit Agreement.
SUPREMEX INC.
By:__________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President - Finance
REVOLVING CREDIT LOANS NOTE - Page 4
EXHIBIT "C"
Form of Term Loans Note
-----------------------
TERM LOANS A NOTE
-----------------
$_________________ Houston, Texas November __, 1996
FOR VALUE RECEIVED, the undersigned, SUPREMEX INC., a corporation
amalgamated under the Canada Business Corporations Act (the "Borrower"), hereby
--------
promises to pay to the order of ___________ _______________________________ (the
"Lender"), at the Principal Office of the Agent, in lawful money of the United
------
States of America and in immediately available funds, the principal amount of
__________________________________________ Dollars ($_____________) on the dates
and in the principal amounts provided in the Credit Agreement referred to below
with respect to the Term Loans A evidenced by this Note, and to pay interest on
the unpaid principal amount of the Term Loans A evidenced by this Note, at such
office, in like money and funds, for the period commencing on the date of such
Loans until such Loans shall be paid in full, at the rates per annum and on the
dates provided in the Credit Agreement.
This Note is one of the Term Loans A Notes referred to in the Amended and
Restated Credit Agreement dated as of November __, 1996, among the Borrower,
Mail-Well I Corporation, Innova Envelope Inc., the Lenders named therein and
Banque Paribas, as agent for the Lenders (such Credit Agreement, as the same may
be amended, modified, supplemented, renewed, extended or restated from time to
time, being referred to herein as the "Credit Agreement"), and evidences the
----------------
Term Loans A made or deemed made by the Lender (or its predecessor in interest)
thereunder. The holder of this Note shall be entitled to, without limitation,
the benefits provided in the Credit Agreement as set forth therein. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity of this Note upon the happening of certain stated events and for
prepayment of the Term Loans A prior to the maturity of this Note upon the terms
and conditions specified in the Credit Agreement. Capitalized terms used in
this Note have the respective meanings assigned to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS (WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES) AND THE
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. THIS NOTE IS PERFORMABLE IN
▇▇▇▇▇▇ COUNTY, TEXAS.
The Borrower and each surety, guarantor, endorser and other party ever
liable for payment of any sums of money payable on this Note jointly and
severally waive notice, presentment, demand for payment, protest, notice of
protest and non-payment or dishonor, notice of acceleration, notice of intent to
accelerate, notice of intent to demand, diligence in collecting, grace and all
other formalities of any kind, and consent to all extensions without notice for
any period or periods of time and partial payments, before or after maturity,
and any impairment of any collateral securing this Note, all without prejudice
to the holder. The holder shall similarly have the right to deal in any way, at
any time, with one or more of the foregoing parties without notice to any other
party, and to grant any such party any extensions of time for payment of any of
said indebtedness, or to release or substitute part or all of the collateral
securing this Note, or to grant any other indulgences or forbearances
whatsoever, without notice to any other party and without in any way affecting
the personal liability of any party hereunder.
TERMS LOANS A NOTE - Page 1
THIS NOTE, TOGETHER WITH THE OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL
AGREEMENT OF THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
This Note is issued in replacement of, but not in extinguishment of the
indebtedness evidenced by, those certain Term Loans A Notes (as defined in the
Original Supremex Credit Agreement) and Term Loans B Notes (as defined in the
Original Supremex Credit Agreement) made by the Borrower and delivered pursuant
to the Original Supremex Credit Agreement.
SUPREMEX INC.
By:___________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
TERM LOANS A NOTE - Page 2
EXHIBIT "D"
Form of Term Loans B Note
-------------------------
TERM LOANS B NOTE
-----------------
$_________________ Houston, Texas November __, 1996
FOR VALUE RECEIVED, the undersigned, SUPREMEX INC., a corporation
amalgamated under the Canada Business Corporations Act (the "Borrower"), hereby
--------
promises to pay to the order of ________________________________________ (the
"Lender"), at the Principal Office of the Agent, in lawful money of the United
-------
States of America and in immediately available funds, the principal amount of
_____________________________________ Dollars ($_____________) or such lesser
amount as shall equal the aggregate unpaid principal amount of the Term Loans B
made by the Lender (or its predecessor in interest) to the Borrower under the
Credit Agreement referred to below, on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount of such Loans, at such office, in like money and funds, for the period
commencing on the date of such Loans until such Loans shall be paid in full, at
the rates per annum and on the dates provided in the Credit Agreement.
This Note is one of the Term Loans B Notes referred to in the Amended and
Restated Credit Agreement dated as of November __, 1996, among the Borrower,
Mail-Well I Corporation, Innova Envelope Inc., the Lenders named therein and
Banque Paribas, as agent for the Lenders (such Credit Agreement, as the same may
be amended, modified, supplemented, renewed, extended or restated from time to
time, being referred to herein as the "Credit Agreement"), and evidences the
----------------
Term Loans B made by the Lender (or its predecessor in interest) thereunder.
The holder of this Note shall be entitled to, without limitation, the benefits
provided in the Credit Agreement as set forth therein. The Credit Agreement,
among other things, contains provisions for acceleration of the maturity of this
Note upon the happening of certain stated events and for prepayment of the Term
Loans B prior to the maturity of this Note upon the terms and conditions
specified in the Credit Agreement. Capitalized terms used in this Note have the
respective meanings assigned to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS (WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES) AND THE
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. THIS NOTE IS PERFORMABLE IN
▇▇▇▇▇▇ COUNTY, TEXAS.
The Borrower and each surety, guarantor, endorser and other party ever
liable for payment of any sums of money payable on this Note jointly and
severally waive notice, presentment, demand for payment, protest, notice of
protest and non-payment or dishonor, notice of acceleration, notice of intent to
accelerate, notice of intent to demand, diligence in collecting, grace and all
other formalities of any kind, and consent to all extensions without notice for
any period or periods of time and partial payments, before or after maturity,
and any impairment of any collateral securing this Note, all without prejudice
to the holder. The holder shall similarly have the right to deal in any way, at
any time, with one or more of the foregoing parties without notice to any other
party, and to grant any such party any extensions of time for payment of any of
said indebtedness, or to release or substitute part or all of the collateral
securing this Note, or to grant any other indulgences or
TERMS LOANS B NOTE - PAGE 1
forbearances whatsoever, without notice to any other party and without in any
way affecting the personal liability of any party hereunder.
THIS NOTE, TOGETHER WITH THE OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL
AGREEMENT OF THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
SUPREMEX INC.
By:______________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
EXHIBIT "E"
Form of Notice of Borrowings, Conversions, Continuation or Prepayments
----------------------------------------------------------------------
NOTICE OF BORROWINGS, CONVERSIONS,
CONTINUATIONS OR PREPAYMENTS
----------------------------
Date: _______________, 19__
Banque Paribas, as Agent
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
__________________:
Reference is made to the Amended and Restated Credit Agreement dated as of
November __, 1996 (as the same may be amended, modified, supplemented, renewed,
extended or restated from time to time, the "Credit Agreement"), among Supremex
----------------
Inc. (the "Borrower"), Mail-Well I Corporation, Innova Envelope Inc., the
--------
Lenders named therein (the "Lenders") and Banque Paribas, as Agent for the
-------
Lenders (in such capacity, the "Agent"). Capitalized terms used herein and not
-----
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement.
The Borrower hereby gives you this Notice, irrevocably, pursuant to Section
-------
2.9 of the Credit Agreement. The Borrower hereby notifies you of the following
---
(check and/or complete the applicable item):
____ (a) New Loan.
--------
(i) (A) The Borrower requests a Term Loans B in the amount of
$________ on _____________ __, 1996.
(B) The Term Loans B will be of the following Type: [Prime
Rate Loan] [Eurodollar Loan].
(C) If the Term Loans B will be a Eurodollar Loan, the
Interest Period will be ___________ month[s].
(ii) (A) The Borrower requests a Revolving Credit Loan in the
amount of Canadian $________ on _______________, 199__. Such Revolving
Credit Loan ____ will/____will not consist of Swing Line Advances.
(B) The Revolving Credit Loan will be of the following Type:
[Prime Rate Loan] [Eurodollar Loan].
NOTICE OR BORROWINGS, CONVERSIONS, CONTINUATIONS
OR PREPAYMENTS - PAGE 1
(C) If the Revolving Credit Loan will be a Eurodollar Loan,
the Interest Period will be _____ month[s].
____ (b) Bankers' Acceptance. The Borrower requests a Bankers' Acceptance on
-------------------
the following terms:
(i) Aggregate face amount Canadian $___________
(ii) Term _______________ days
(iii) Date of Borrowing ____________________
(iv) Maturity ____________________
____ (c) [Conversion] [Continuation] of Loan
----------------------------------
(i) (A) The Borrower requests a [Conversion] [Continuation] of a
Term Loans A in the amount of $________ on __________, ____.
(B) The Type of Term Loans A to be [Converted] [Continued]
will be a [Prime Rate Loan] [Eurodollar Loan].
(C) The Term Loans A resulting from the [Conversion]
[Continuation] will be a [Prime Rate Loan] [Eurodollar Loan].
(D) If the Term Loans A resulting from the [Conversion]
[Continuation] will be a Eurodollar Loan, the Interest Period for such
Loan will be _____ month[s].
(ii) (A) The Borrower requests a [Conversion] [Continuation] of a
Term Loans B in the amount of $________ on __________, ____.
(B) The Type of Term Loans B to be [Converted] [Continued]
will be a [Prime Rate Loan] [Eurodollar Loan].
(C) The Term Loans B resulting from the [Conversion]
[Continuation] will be a [Prime Rate Loan] [Eurodollar Loan].
(D) If the Term Loans B resulting from the [Conversion]
[Continuation] will be a Eurodollar Loan, the Interest Period for such
Loan will be _____ month[s].
NOTICE OF BORROWINGS, CONVERSIONS, CONTINUATIONS
OR PREPAYMENTS - PAGE 2
(iii) (A) The Borrower requests a [Conversion] [Continuation] of
a Revolving Credit Loan in the amount of Canadian $________ on
__________, ____.
(B) The Type of Revolving Credit Loan to be [Converted]
[Continued] will be a [Prime Rate Loan] [Eurodollar Loan].
(C) The Revolving Credit Loan resulting from the
[Conversion] [Continuation] will be a [Prime Rate Loan] [Eurodollar
Loan].
(D) If the Revolving Credit Loan resulting from the
[Conversion] [Continuation] will be a Eurodollar Loan, the Interest
Period for such Loan will be _____ month[s].
____ (d) Prepayment.
----------
(i) (A) The Borrower will make a prepayment of the principal of
the Term Loans A in the amount of $___________ on ______________,
____.
(B) The Term Loans A to be prepaid will be of the following
Type: [Prime Rate Loan] [Eurodollar Loan].
(C) If the Term Loans A to be prepaid is a Eurodollar Loan,
it has an Interest Period of _____ month[s] that will end on
_____________, ____.
(ii) (A) The Borrower will make a prepayment of the principal of
the Term Loans B in the amount of $___________ on ______________,
____.
(B) The Term Loans B to be prepaid will be of the following
Type: [Prime Rate Loan] [Eurodollar Loan].
(C) If the Term Loans B to be prepaid is a Eurodollar Loan,
it has an Interest Period of _____ month[s] that will end on
_____________, ____.
(iii) (A) The Borrower will make a prepayment of the principal
of the Revolving Credit Loans in the amount of Canadian $_________ on
____________, ____.
(B) The Revolving Credit Loan to be prepaid will be of the
following Type: [Prime Rate Loan] [Eurodollar Loan].
NOTICE OF BORROWINGS, CONVERSIONS, CONTINUATIONS
OR PREPAYMENTS - PAGE 3
(C) If the Revolving Credit Loan to be prepaid is a
Eurodollar Loan, it has an Interest Period of _____ month[s] that will
end on _____________, ____.
SUPREMEX INC.
By:_____________________________
Name:___________________________
Title:__________________________
NOTICE OF BORROWINGS, CONVERSIONS, CONTINUATIONS
OR PREPAYMENTS - PAGE 4
SCHEDULE 1.1(A)
MORTGAGED PROPERTIES
--------------------
I. Mortgaged Properties Acquired Pursuant to the G-P Envelope Acquisition
Agreement.
A. Mortgaged Fee Properties
1. Chestertown, Maryland ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇.
▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (3301) Kalamath St.
5. Jacksonville, Florida 5406 W. First St.
6. Oklahoma City, Oklahoma ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇.
7. Phoenix, Arizona ▇▇▇ ▇. ▇▇▇▇ ▇▇▇.
8. Pittsburgh, Pennsylvania ▇▇▇▇ ▇▇▇▇ ▇▇▇.
▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇.
B. Mortgaged Leasehold Property Interests
1. Albuquerque, New Mexico
Standard Commercial Net/Net/Net Business Center Lease dated June
1, 1993, made and entered into by and between I&J Investments, as
lessor, and Mail Well Envelope Company, a Delaware corporation, as
lessee. No Survey is required for this Property.
2. Cambridge, Maryland
Lease Agreement dated effective as of January 22, 1988, made and
entered into by and between The County Commissioners of Dorchester
County, as lessor, and M-W Envelope Company, Inc., a Delaware
corporation, as lessee, as amended, modified or extended by (i) that
certain Notice of Intention to Lease 33,750 Square Feet in the
Dorchester County Shell Building dated July 5, 1988, and (ii) that
certain Amendment to Lease Agreement dated March 16, 1993.
3. Denver, Colorado
Agreement dated March 19, 1963, made and entered into by and
between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇, as lessors,
and Pak-Well Paper Industries, Inc., a Colorado corporation, as
lessee, as amended, modified or extended by (i) that certain Addendum
to Lease dated effective as of January 20, 1964, (ii) that certain
Agreement dated effective as of September 15, 1968, and (iii) that
certain Agreement dated April 1, 1975, made and entered into by and
between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇, as lessors, and Mail-Well
Corporation, a Delaware corporation, as lessee. A portion of the
leased premises were subleased pursuant to that certain Sublease
Agreement dated as of May 23, 1980, made and entered into by and
between Nekoosa Envelopes, Inc., a Delaware corporation, as sublessor,
and ▇▇▇▇▇-▇▇▇▇▇ Corporation, a Colorado corporation, as sublessee, and
consented to by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇, and as amended,
modified, or extended by that certain Addendum to Sublease Agreement
dated July 31, 1980, and as assigned by that certain Agreement to
Assign Sublease dated as of June 23, 1987, made and entered into by
and between FPCO Oil & Gas Co., a Colorado corporation, as assignor,
and Central Bancorporation, Inc., a Colorado corporation, as assignee,
and consented to by Nekoosa Envelopes, Inc., and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and as further consented to, among other things, by
that certain Agreement and Consent to Assignment dated August 5, 1987,
made and entered into by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ (successor-in-interest to ▇▇▇▇▇▇ ▇▇▇▇), as lessors, Nekoosa
Envelopes, Inc., as sublessor, FPCO Oil & Gas Co. (successor-in-
interest to ▇▇▇▇▇-▇▇▇▇▇ Corporation), as Assignor, and Central
Bancorporation, Inc., as assignee, and as amended, modified or
extended by that certain letter agreement dated March 26, 1992, by
that certain amendment dated May 6, 1993 and that certain amendment
dated May 13, 1993.
4. Honolulu, Hawaii
Lease dated as of March 22, 1991, made and entered into by and
between PMLW Partnership, a Hawaii general partnership, as lessor, and
Mail-Well Envelope Company, a Delaware corporation, as lessee. No
Survey is required for this Property.
5. Jersey City, New Jersey
Agreement of Lease dated January 7, 1991, made and entered into
by and between ▇▇▇▇▇ Associates, a New Jersey partnership, as lessor,
and ▇▇▇▇▇ Envelope and Tag Corp., a New Jersey corporation, as lessee,
as amended, modified or extended by (i) that certain First Amendment
to Lease dated as of
August 15, 1991, and (ii) that certain Second Amendment to Lease dated
February 21, 1994.
6. Kankakee, Illinois
Lease dated August 15, 1984, made and entered into by and
between CMD Realty Management Company, an Illinois corporation,
as agent for The Prudential Insurance Company of America, as
lessor, and Nekoosa Envelopes, Inc., a Delaware corporation, as
lessee.
7. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (▇▇▇▇ Mail-Well Drive)
Lease dated March 1, 1988, made and entered into by and
between ▇. ▇. ▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇. Lake, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and United States National Bank
of Oregon, Trustee, and ▇▇▇▇▇▇ ▇▇▇▇▇, Trustee, as lessors, and
Mail-Well Envelope Company, a Delaware corporation, as lessee.
8. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (▇▇▇▇ Mail-Well Drive)
Standard Industrial Lease-Net dated April 13, 1989, made and
entered into by and between Lincoln Property Company, N.C., Inc.,
as manager and agent for Lincoln Milwaukie Associates, Ltd., as
lessor, and Mail-Well Envelope Company, Inc., as lessee, as
amended, modified or extended by (i) that certain Lease Extension
Agreement extending the termination date from February 28, 1990
to July 31, 1991, among other things, (ii) that certain Rent
Waiver Agreement dated effective as of July 11, 1990, (iii) that
certain Lease Extension Agreement dated effective as of April 2,
1991, made and entered into by and between CP-▇▇▇▇▇▇▇▇▇▇
Properties, Inc., as lessor, and Mail-Well Envelope Company,
Inc., as lessee, and (iii) Amendment to Lease dated June 19,
1992.
9. Oakland, California
Standard Industrial/Commmercial Single-Tenant Lease-Net
dated July 1, 1992, made and entered into by and between Cotton
Properties, as lessor, and Mail-Well Envelope Company, as lessee,
as amended, modified or extended by that certain letter agreement
dated August 22, 1993, and as said letter agreement and the Lease
were further amended by that certain letter agreement dated
September 9, 1993.
10. Salt Lake City, Utah
Lease Agreement dated August 1, 1973, made and entered into
by and between Price Ventures, Inc., a Utah corporation d/b/a
Timesquare Park, as lessor, and Rockmont Envelope Company of Utah,
Inc., a Utah corporation, as lessee, as amended, modified or extended
by (i) that certain letter agreement dated November 30, 1987, (ii)
that certain letter agreement dated November 24, 1992, (iii) that
certain Amendment to Lease dated as of September 26, 1973, (iv) that
certain Amendment to Lease dated as of November 6, 1973, (v) that
certain Amendment to Lease dated as of November 20, 1973, and (vi)
that certain Addendum to Lease dated as of December 22, 1975.
II. Mortgaged Properties Acquired Pursuant to the AEC Acquisition Agreement.
A. Mortgaged Fee Properties
1. Nashville, Tennessee ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇.
▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Cambridge St.
5. ▇'▇▇▇▇▇▇, Missouri ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇. ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇.
▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
9. Dallas, Texas* ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
*(Leased until 1/5/95)
B. Mortgaged Leasehold Property Interests
1. Agency Lease Agreement dated April 1, 1988, by and between Erie
County Industrial Development Agency and American Envelope Company, as
evidenced by a Memorandum of Lease dated as of April 1, 1988, filed in
the Erie County Clerk's Office on April 7, 1988 under Liber 9846, Page
338.
III. Mortgaged Properties Acquired Pursuant to the Supremex Acquisition
Agreement.
A. Mortgaged Fee Properties
1. Markham, Ontario ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
B. Leasehold Property Interests
1. Dartmouth, Nova Scotia ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 6143 - ▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. Mortgaged Properties Acquired Pursuant to the Graphic Arts Center,
Inc. Securities Purchase Agreement .
A. Mortgaged Fee Properties
1. Portland, Oregon ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇.
B. Mortgaged Leasehold Property Interests
1. Portland, Oregon ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
V. Mortgaged Properties Acquired Pursuant to the Quality Park Products,
Inc. Acquisition Agreement.
A. Mortgaged Fee Properties
1. Atlanta, Georgia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.
B. Leasehold Property Interests
1. Beresford, South Dakota 100 Quality Park Drive
2. St. ▇▇▇▇▇▇, Utah ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
SCHEDULE 1.1(B)
PERMITTED LIENS
---------------
LIEN PRIORITY
---- --------
1. New Jersey Secretary of State Financing Statement No. Subordinated to Banks
▇▇▇▇▇▇▇ - ▇▇▇▇▇ Associates ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as Secured
Party, and ▇▇▇▇▇ Envelope and Tag Corp., as Debtor, and
subordinated to the Agent's Liens pursuant to the Landlord
Consent, Subordination and Estoppel Certificate dated as of
February 21, 1994 by ▇▇▇▇▇ Associates.
2. New Jersey ▇▇▇▇▇▇ County Financing Statement No. Subordinated to Banks
1991-0053 - ▇▇▇▇▇ Associates ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as
Secured Party, and ▇▇▇▇▇ Envelope and Tag Corp., as
Debtor, and subordinated to the Agent's Liens pursuant to
Landlord Consent, Subordination and Estoppel Certificate dated
as of February 21, 1994 by ▇▇▇▇▇ Associates.
3. British Columbia Personal Property Registration No. 5065160 -
N.E.L. National Equipment Leasing Ltd., as Holder, and Classic
Envelope Company Ltd., as Grantor, dated as of February 14,
1994, granting security interest in general collateral, packaging
system and Ricoh fax machine.
4. British Columbia Personal Property Registration No. 5759580 -
Didde Web Press Corporation, as Holder, and Classic Envelope
Plus Ltd., as Grantor, dated as of May 1, 1995, granting a
security interest in general collateral, two offsets, two
ink-tower assemblies, one substructure along with Didde
Corp. parts, attachments and accessories
5. British Columbia Personal Property Registration No. 5819540 -
Ted's Truck, Trailer and Auto Repairs Ltd., as Holder, and
Classic Envelope Plus Ltd., as Grantor, dated as of June 2,
1995, granting a security interest in vehicle collateral, G.M.C.
7000 (1985) (amount of lien: $1,219.57)
6. Oregon Secretary of State Nos. P69874 and S32748 - Scitex
America Corp., as Secured Party, and Graphic Arts Center, as
Debtor, dated as of September 9, 1991, and December 14,
1994, respectively, granting a security interest in specific
equipment.
7. New York County, New York City Tax Lien No.
000751197-01 - New York City Department of Finance, as
Secured Party, and Graphic Arts Center, Inc., as Debtor, dated
as of April 10, 1995, in the amount of $10, 084.37.
8. Conditional Sales Contract and Security Agreement with
Graphic International, Inc. dated as of June 8, 1995 pursuant
to which Graphic Arts Center, Inc. will purchase a Heidleberg
102SP+L six color press for $1,071,000.
9. Pledge by Graphic Arts Center, Inc. of $50,000 cash collateral
to secure letter of credit issued by First Interstate Bank of
Oregon, N.A.
10. Minnesota Secretary of State Financing Statements Nos.
1686797, 1652844, 1651819, 1650982, 1804336, 1740712 -
Hewlett Packard Company, as Secured Party, and Quality Park
Products, Inc., as Debtor, granting a security interest in leased
equipment.
SCHEDULE 7.6
LITIGATION AND JUDGMENTS
------------------------
1. Skrudland Photo, Inc. v. Mail-Well Corporation, d/b/a/ Mail-Well Envelope,
-------------------------------------------------------------------------
No. 94-15915 - 34th District Court, ▇▇▇▇▇▇ County, Texas.
Plaintiff sued for breach of contract and deceptive trade practices,
arising out of the sale of allegedly defective through-the-mail photo
envelopes by Mail-Well to it. Mail-Well has filed an Answer and
Counterclaim of $38,886.08 arising out of unpaid invoices. Discovery is
proceeding. Mail-Well has retained experts to consult on the issues of
damages and liability. The trial date previously set for November, 1996
has been vacated. The Company intends to vigorously defend this case.
Plaintiff has made no realistic settlement demands.
2. ▇▇▇▇▇ ▇. ▇▇▇▇▇ v. Graphic Arts Center, Inc., No. 96-216-FR, U.S. District
-------------------------------------------
Court, District of Oregon
Plaintiff filed his Complaint on February 12, 1996 alleging employment
discrimination based on his national origin. Defendant answered the
Complaint on March 4, 1996, denying the substantive allegations contained
in it. Mail-Well intends to vigorously defend this case.
3. ▇▇▇ ▇. ▇▇▇▇ v. Graphic Arts Center, Inc., No. 9602-00897, Circuit Court of
----------------------------------------
Oregon, County of Multonmah.
Plaintiff filed her Complaint on February 2, 1996 alleging employment
discrimination based on her sex. Defendant answered the Complaint on March
7, 1996, denying the substantive allegations contained in it. Plaintiff's
deposition has been taken and a motion for Summary Judgment (on the entire
case) has been filed by Defendant. Plaintiff has moved to extend the
discovery cut-off date, as well as the time for filing a Brief in
Opposition to Defendant's Motion for Summary Judgment. Accepts at
settlement have been unproductive. The Company intends to vigorously defend
this case.
4. ▇▇▇ ▇. ▇▇▇▇▇▇ ▇. Mail-Well Corporation, No. 96-01226-CA, Circuit Court,
--------------------------------------
Fourth Judicial Circuit, in and for ▇▇▇▇▇ County, Florida.
Plaintiff filed his Complaint on March 12, 1996 alleging negligence for
damages arising out of his trip and fall at Defendant's facility.
Defendant answered the Complaint denying the substantive allegations
contained in it. Depositions of most, if not all witnesses, have been
taken. At a recent mediation, there was talk about settling this claim in
the range of $30,000. A trial date has been ordered to be held on January
6, 1997. The Company intends to vigorously defend this case, if it does
not settle in the near future. The Company has insurance for this accident
after a $100,000 deductible has been satisfied.
5. ▇▇▇▇▇▇▇ ▇. Summer v. Mail-Well Corporation, No. 96-06705, District Court,
------------------------------------------
Judicial District, Dallas County, Texas.
Plaintiff filed his Complaint on July 2, 1996 alleging wrongful termination
in retaliation for filing a worker's compensation claim. The Complaint was
filed in a jurisdiction known for high jury verdicts for claims of this
nature. Defendant answered the Complaint denying the substantive
allegations contained in it. Discovery has yet to commence by either side.
Mail-Well plans to vigorously defend this case.
6. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Envelope & Tag Corp., Docket No. HUD-L-10491-94,
----------------------------------------------
Superior Court of New Jersey Law Division, ▇▇▇▇▇▇ County.
Plaintiff filed a Complaint on December 19, 1995 alleging wrongful
termination and breach of contract. Several depositions have been taken,
discovery is almost complete, and Mail-Well is preparing to file a Motion
for Summary Judgment. Mail-Well intends to vigorously defend this case.
The claims of this Plaintiff are also covered by escrow, which should be
sufficient to cover the costs associated with trial or settlement of this
case. Therefore, it is unlikely that an outcome unfavorable to the Company
in excess of $100,000 will occur.
7. ▇▇▇▇▇▇▇ Honnlee v. Mail-Well, Inc., Claim No. 29-21607, Phoenix, Arizona
----------------------------------
Plaintiff was injured in a car accident on November 8, 1994, when the
vehicle he was driving was struck by a truck driven by a Mail-Well
employee, within the course and scope of his employment. Plaintiff
retained counsel who recently presented Mail-Well with a litigation demand
of $110,000. Defendant has offered $65,000 to settle the case, which offer
was refused. It does not appear at this time that the Plaintiff's alleged
injuries are genuine and related to the accident. Mail-Well has insurance
for this accident after a $100,000 deductible has been satisfied.
SCHEDULE 7.10
TO THE CREDIT AGREEMENT
EXISTING DEBT
-------------
=======================================================================================================
DEBTOR CREDITOR DESCRIPTION AMOUNT
------ -------- ----------- ------
(estimated as at
October
16, 1996)
-------------------------------------------------------------------------------------------------------
SUPREMEX INC. Domtar Inc. Interest free loan for Can. $833.65
purchase of equipment
-----------------------------------------------------------------------
Domtar Inc. Interest free loan for Can. $39,048
purchase of equipment
-------------------------------------------------------------------------------------------------------
INNOVA ENVELOPE DuPont Forgivable loan re: film Can. $73,000
INC processing equipment
-------------------------------------------------------------------------------------------------------
SUPREMEX INC. National Bank of Irrevocable standby letter of Can. $34,000
Canada credit in favor of
Mississauga Hydro
-------------------------------------------------------------------------------------------------------
National Bank of Letter of Credit in favor of Can. $280,000
Canada Toronto-Dominion Bank
------------------------------------------------------------------------------------------------------
CLASSIC Canadian Imperial Maximum Can. $200,000 or $0
ENVELOPE PLUS Bank 65% of Accounts Receivable
LTD. of Commerce Line of credit
-------------------------------------------------------------------------------------------------------
GAC Scitex America Corp. Equipment Lease $ 180,734
-------------------------------------------------------------------------------------------------------
Scitex America Corp. Two Separate Equipment $ 203,535
Leases
-------------------------------------------------------------------------------------------------------
Pennbrook Lease of Real Property $2,852,410
Development/
▇▇▇▇▇▇▇▇ Partners
-------------------------------------------------------------------------------------------------------
First Interstate Bank Letter of Credit $ 50,000
of Oregon, N.A.
-------------------------------------------------------------------------------------------------------
Quality Park , Hewlett-Packard Master Lease Agreement
Products Inc. Company No. 4126-43685
Equipment Schedule 710 $ 42,746.76/1/
Equipment Schedule 7E0 $ 41,894.25/1/
Equipment Schedule 7G0 $ 21,230.79/1/
Equipment Schedule 7H0 $ 12,434.35/1/
Subtotal $118,306.15/1/
-------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
Quality Park Products, Hewlett-Packard Master Installment Sales
Inc. Company Agreement No. 4126-43685
Equipment Schedule 720 $ 94,814.22/1/
Equipment Schedule 730 $ 22,967.56/1/
Equipment Schedule 7D0 $ 42,873.32/1/
Equipment Schedule 7F0 $ 4,436.66/1/
Subtotal $165,181.76/1/
-----------------------------------------------------------------------------------------------------------
Quality Park Hewlett-Packard Installment Financing $ 50,668.46/1/
Products, Inc. Company Agreement No.
4124-03489B
-------------------------------------------------------------------------------------------------------------
Quality Park Paper Recycling Contract of Canadian Sale $ 18,399.97/1/
Products, Inc.
-------------------------------------------------------------------------------------------------------------
Debt arising in connection with Capital Lease Obligations permitted by this Agreement.
-------------------------------------------------------------------------------------------------------------
Unfunded liabilities under the Plans listed on Schedule 7.13.
=============================================================================================================
____________________________
/1/ Estimated as at September 30, 1996.
SCHEDULE 7.11
TAXES
-----
A. Tax claims asserted against the Loan Parties.
--------------------------------------------
1. GAC and the City of New York ("NYC") are presently in dispute over the
characterization of payments made to certain highly compensated sales
persons for fiscal year 1992. NYC has characterized the payments as
distributions on equity and has claimed $10,168.19 in underpaid taxes.
None of the highly compensated individuals are equity holders of GAC.
GAC has paid the $10,618.19 provisionally, under protest and is
seeking a return of such amount. This payment has been expensed on the
books of GAC.
If GAC does not ultimately prevail in this dispute, GAC may be
required to make future payments to NYC totaling approximately $20,000
for fiscal years 1993 and 1994.
B. Audits.
------
The following Audits are ongoing:
IRS: Federal Income Tax
Period: 1994
SCHEDULE 7.13
PLANS
-----
List of Pension and Welfare Plans
---------------------------------
1. Mail-Well Corporation Employee Stock Ownership Plan.
2. Mail-Well Corporation 401(k) Savings Retirement Plan.
3. Mail-Well Corporation Severance Plan for Salaried Employees.
4. Mail-Well Corporation Section 125 ("Cafeteria") Plan - Pre-tax premium only
arrangement.
5. Mail-Well Corporation Flexible Health Care Plan.
6. Mail-Well Corporation Life and Disability Insurance Plan.
7. Mail-Well Corporation Educational Assistance Program.
8. Pension Plan for Hourly Employees of Mail-Well Corporation (MWEC).
9. Pension Plan for Hourly Employees of Portland and Oakland.
10. Pension Plan for Hourly Employees of Mail-Well Corporation (AEC).
11. ▇▇▇▇▇ Envelope and Tag Corporation Employees' Retirement Plan.
12. The Paper Industry Union-Management Pension Fund for and on behalf of the
United Paperworks International Union, Local 318, AFL-CIO of ▇▇-▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇. (▇▇▇▇▇ employees)
13. Local 807 Labor-Management Health and Pension Fund, for and on behalf of
Truck Drivers Local Union No. 807, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
(▇▇▇▇▇ employees)
14. Pension Plan for Employees Represented by United Paperworkers International
Union Local 286. (American Envelope employees)
15. Midwest Pension Plan. (American Envelope employees)
16. Pension Plan for Markham Bargaining Employees of Innova Envelope Inc.,
amended and restated as at January 1, 1992, registration number 0219485.
17. Pension Plan for Non-Bargaining Employees of Innova Envelope Inc., amended
and restated as at January 1, 1992, registration number 0991356.
18. Pension Plan for Brantford Bargaining Employees of Innova Envelope Inc.,
amended and restated as at January 1, 1994, registration number 0389395.
19. Unwritten group Registered Retirement Savings Plan ("RRSP") Program for
some of the employees of the Supreme Envelope division and for all the
employees of Unique Envelope.
20. Supreme Envelope (Montreal) Profit Sharing Plan.
21. Supremex Management Incentive Plan.
22. Informal, unwritten bonus plans are in place for either all or some of the
employees at the following locations:
(a) 345 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, St. Laurent
(b) ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
(c) ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
(d) ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
(e) ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
(f) ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
(g) ▇▇▇▇ ▇, ▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ S.E., Calgary
23. GAC 401(k) Profit Sharing Plan (Non-union employees)
24. GAC 401(k) Profit Sharing Plan (Union employees)
25. GACSC 401(k) Profit Sharing Plan (Non-union employees)
26. GAC Medical Benefit Trust Fund - Mechanism for funding Health Plan
benefits, a "voluntary employees beneficiary association" ("VEBA")
27. GAC/GACSC Section 125 ("cafeteria") Plan - pre-tax premium only arrangement
28. GCIU Supplemental Retirement and Disability Fund (Graphic Communications
International Union ("GCIU") union employees)
29. Oregon Printing Industries Retirement Trust - only employees participating
in the Plan on or before April 30, 1988 are eligible
30. Graphic Arts Center, Inc. Executive Life Insurance Plan and Trust Agreement
and Executive Life Insurance Funding Agreement with ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
31. Local 292-M Inter/Local Pension Fund - GAC is responsible (under Article 27
of the GCIU Collective Bargaining Agreement for lithographic employees)
only to forward to the Trustees of this Fund payroll withholding for
employees who elect to contribute from their compensation to this Fund.
32. "Vantage Program" - a "preferred provider" arrangement required under
Section 29.6 of the GCIU Collective Bargaining Agreement for the Bindery,
Shipping, and Mailing employees.
33. GAC 1993 Stock Option Plan
34. GAC 1995 Leveraged Incentive Plan (the "LIP")-Based on GAC's EBITDA for a
fiscal year, a certain percentage of GAC's EBITDA will be put in a pool to
be allocated to participating officers (the "Distributable Value Pool").
The President determines which officers shall participate in the Plan and
how much of the pool an individual officer will receive.
35. Management Incentive Plan for fiscal year 1995. Participants share a
portion of EBITDA, after EBITDA exceeds 80% of plan. The incentive pay
pool is 4% of the quarterly EBITDA in excess of 80% of each quarter's
EBITDA plan. Payments are made quarterly. Participants are middle level
managers of GAC. Participants can be nominated by any officer of GAC.
Determination of participation is made by unanimous consent of the officers
of GAC. It is a one year plan.
36. Quality Park Products Management Incentive Bonus Plan
37. IAM National Pension Fund
38. I.P.P. and GCIU of North America Employer Retirement Fund
39. GCIU Employer Retirement Fund
40. Graphic Arts Industry Joint Pension Fund
41. GCIU Local 1B Health and Welfare Fund A (Medical, Vision, Weekly Accident
and Sickness, Life Insurance)
42. GCIU Local 1B Health and Welfare Fund B (Dental)
43. Quality Park Products, Inc. Severance Pay Plan
The present value of vested benefits exceeds the fair market value of plan
--------------------------------------------------------------------------
assets allocable to such benefits under the following plans (but does not exceed
-----------------------------------------------------------
the limitations set forth in the last sentence of Section 7.13):
1. ▇▇▇▇▇ Envelope and Tag Corporation Employees' Retirement Plan.
2. Pension Plan for Employees Represented by United Paperworkers International
Union Local 286. (American Envelope employees)
SCHEDULE 7.15
HOLDINGS COMMON STOCK; OPTIONS, ETC.
------------------------------------
A.
------------------------------------------------------------------------------------------------------------
Stock Number Percentage
Certificate Par of of
Stock Issuer Owner Class of Stock No(s) Value Shares Outstanding
------------ ----- -------------- ----- ----- ------ -----------
------------------------------------------------------------------------------------------------------------
Mail-Well I Corporation Mail-Well Inc. Common 001 $ .01 1,000 100%
------------------------------------------------------------------------------------------------------------
Mail-Well West, Inc. Mail-Well I Common 001 $0.01 1,000 100%
Corporation
------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ Envelope and Tag Mail-Well I Common 003 $1.00 3,000 100%
Corp. Corporation
------------------------------------------------------------------------------------------------------------
WISCO Envelope Corp. Mail-Well I Common 001 No 1,000 100%
Corporation
------------------------------------------------------------------------------------------------------------
Mail-Well Canada Mail-Well I Common 001 $0.01 1,000 100%
Holdings, Inc. Corporation
------------------------------------------------------------------------------------------------------------
WISCO II, L.L.C. Mail-Well I Limited 001 N/A N/A 1% of
Corporation Liability Membership
Company Interest
Membership
Interests
WISCO Envelope Limited 002 N/A N/A 99% of
Corp. Liability Membership
Company Interests
Membership
Interests
------------------------------------------------------------------------------------------------------------
WISCO III, L.L.C. Mail-Well I Limited 001 N/A N/A 1% of
Corporation Liability Membership
Company Interest
Membership
Interests
WISCO Envelope Limited 002 N/A N/A 99% of
Corp. Liability Membership
Company Interests
Membership
Interests
------------------------------------------------------------------------------------------------------------
Graphic Arts Center, Inc. Mail-Well I Common 001 $0.01 1,000 100%
Corporation
------------------------------------------------------------------------------------------------------------
Supremex, Inc. Mail-Well Common C-2 None 66 100%
Canada
Holdings, Inc.
Common C-3 None 34 100%
------------------------------------------------------------------------------------------------------------
B. Subscriptions, Warrants, Calls, Options, Etc.
Pursuant to The Mail-Well Holdings, Inc. 1994 stock Option Plan,
options to purchase 97,700 shares of Common Stock have been granted to
approximately 40 employees and 18,200 shares of Common Stock have been
granted to approximately 18 GAC employees.
SCHEDULE 7.22
BANK ACCOUNTS
-------------
1. First National Bank of Tullahoma - Account No. ▇▇▇▇▇▇▇ (Depository
Account).
2. Bank One, Arizona N.A. - Account No. 111642 (Lockbox Account).
3. First Security Bank of Utah - Account No. 0600007959 (Lockbox Account).
4. Traders National Bank - Account No. ▇▇▇▇▇▇▇ (Depository Account).
5. Norwest Bank Colorado, National Association - Denver
a. Account No. 1018026204 (Lockbox Account)
b. Account No. ▇▇▇▇▇▇▇▇▇▇ (Concentration Account)
c. Account No. 1018026212 (Mastercard/Visa Account)
d. Account No. 1018026474 (Health Benefits)
e. Account No. 6062501426 (Accounts Payable)
f. Account No. 6062501434 (Managers Account)
g. Account No. 1013036547 (Mail-Well Holdings 1994 Stock Option Plan
Escrow Account)
6. Norwest Bank Colorado, National Association - Grand Junction
a. Account No. 8012700220 (Payroll Account)
b. Account No. 8012700212 (A/P Account)
c. Account No. 8012700327 (Freight Account)
d. Account No. 6062501442 (Payroll Account)
e. Account No. 6062503212 (American A/P)
f. Account No. ▇▇▇▇▇▇▇▇▇▇ (American Payroll)
7. Bank of Hawaii - Account No. 007043732 (Lockbox Account).
8. Bank of America - Account No. ▇▇▇▇▇▇▇ (Lockbox Account).
9. First Union Bank of Florida - Account No. 2090000617809 (Depository
Account).
10. Texas Commerce Bank National Association
a. Account No. 00101440395 (Mail-Well Holdings, Inc. - Equity
Subscription Account)
b. Account No. 00101440403 (Mail-Well Corporation - Supremex Closing
Account)
11. U.S. Bank (Oregon) - Account No. 0100027903 (Lockbox Account).
12. Midlantic National Bank
a. Account No. 1405173202 (Lockbox Account)
b. Account No. 1403182940 (Operating Account)
13. First Hawaiian Bank, Pearlridge Branch - Account No. ▇▇▇▇▇▇▇▇ (Payroll
Account).
14. Society National Bank - Account No. 2166894408 (Lockbox Account).
15. Republic Bank of New York
a. Account No. 230026206 (Depository Account)
b. Account No. 230026214 (Payroll Account)
16. Boatmen's First National Bank of Oklahoma - Account No. 070108366101
(Lockbox Account).
17. ▇▇▇▇▇ Fargo Bank - Account No. 1000005471 (Lockbox Account).
18. Meridian Bank - Account No. ▇▇▇▇▇▇▇▇ (Lockbox Account).
19. Commerce Bank - Account No. 0203063415 (Lockbox Account).
20. First National Bank of Omaha - Account No. ▇▇▇▇▇▇▇▇ (Lockbox Account).
21. Marine Midland Bank - Account No. 875000703 (Lockbox Account).
22. Bank of America - Account No. ▇▇▇▇▇▇▇ (Lockbox Account).
23. ▇▇▇▇▇ Fargo Bank
a. Account No. 4159-341771 (Lockbox Account)
b. Account No. 552-001-0626 (Lockbox Account)
c. Account No. 300125972 (Lockbox Account)
24. Nations Bank of Tennessee, N.A. - Account No. 00102341477 (Lockbox
Account).
25. NationsBank of Texas, N.A.
a. Account No. 1293323185 (Mail-Well Holdings Equity Subscription
Account)
b. Account No. 1293323177 (Mail-Well Corporation Closing Account)
26. PNC Bank
a. Account No. ▇▇▇▇-▇▇-▇▇▇▇ (Lockbox Account)
b. Account No. 1-▇▇▇▇▇▇▇▇-3 (Lockbox Account)
27. Banque Nationale du Canada
a. Account No. 000000011022
b. Account No. 000000020722
c. Account No. 000000051524
d. Account No. 060002988878P
28. Royal Bank
a. Account No. ▇▇▇▇▇-▇▇▇▇▇▇▇
b. Account No. 03012-▇▇▇▇▇▇▇
c. Account No. 03510-▇▇▇▇▇▇▇
d. Account No. 05259-▇▇▇▇▇▇▇
e. Account No. 06857-▇▇▇▇▇▇▇
f. Account No. 07981-▇▇▇▇▇▇▇
g. Account No. 07981-▇▇▇▇▇▇▇
h. Account No. 00001-▇▇▇▇▇▇▇
i. Account No. 03012-▇▇▇▇▇▇▇
j. Account No. 03510-▇▇▇▇▇▇▇
k. Account No. 05259-▇▇▇▇▇▇▇
l. Account No. 06857-▇▇▇▇▇▇▇
m. Account No. 07981-▇▇▇▇▇▇▇
n. Account No. 07981-▇▇▇▇▇▇▇
SCHEDULE 7.27
EMPLOYEE MATTERS
----------------
(a) COLLECTIVE BARGAINING AGREEMENTS
--------------------------------
GCIU Local 292M, expires on June 30, 1997.
GCIU Local 292M dated as of October 17, 1991, expires on April 30, 1997.
Allentown, PA - United Independent Union, Local No. 7. Agreement expires
September 30, 2000.
Atlanta, GA - Graphic Communications International Union, Local 527-S, AFL-
CIO-CLC, June 1, 1993 through May 31, 1999.
Chicago, IL (Ohio Street Facility) - International Union of Allied
Production and Novelty Workers Local No. 10. Agreement expires January 31,
1999.
Cleveland, OH - International Association of Machinists and ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇▇. Agreement expires June 12, 1998.
Honolulu, HI - Hawaii Printing and Graphic Communications Union, Local 501-
M. Agreement expires November 30, 1997.
Jersey City, NJ - United Paperworkers International Union, Local 318.
Agreement expires March 31, 2001.
Jersey City, NJ - International Brotherhood of Teamsters, Local 807.
Agreement expires March 31, 1998.
Omaha, NE - Graphic Communications Union, Local 543-M. Agreement expires
July 31, 1997.
Philadelphia, PA - United Paper Workers International Union, Local 286.
Agreement expires September 30, 1997.
Pittsburgh, PA - United Paperworkers International Union, Local 296.
Agreement expires October 31, 1999.
Portland, OR - Graphic Communications Union, District Council No. 2. Also
covers employees at Oakland, CA. Agreement expired May 31, 1996.
San Antonio, TX - Graphic Communications Union, Local 737-S. Agreement
expires March 31, 1998.
Santa Fe Springs, CA - Graphic Communications Union, District Council No.
2. Agreement expires June 30, 1997.
Seattle, WA - Graphic Communications International Union, Local 767-M.
Agreement expires July 31, 1998.
Seattle, WA - Graphic Communications Union, District Council No. 2.
Agreement expires July 31, 1998.
St. Louis, MO - Graphic Communications International Union, Local 505.
Agreement expires August 31, 1997.
St. ▇▇▇▇, MN - District Lodge #77 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, effective April 1, 1995 through
November 15, 1996.
St. ▇▇▇▇, MN - Twin Cities Printing Trades Union, Local No. 29, charted by
the Graphic Communications International Union, effective April 1, 1995
through November 15, 1996.
St. ▇▇▇▇, MN - Graphic Communications International Union Local #1B, Twin
Cities, effective April 1, 1995 through November 15, 1996.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ - Communications, Energy and Paperworkers Union of
Canada and its Local 301. Agreement expired December 31, 1994, the renewal
of which is presently in process of negotiation which is expected to go to
arbitration in August, 1995.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ - "Working with Us", The Employee Manual, which
covers hourly paid production and warehouse employees. The manual does not
constitute a formal collective agreement, but is negotiated with the
employees and is valid up to August 31, 1996.
Mississauga, Canada - A manual similar to the above is in the process of
being prepared for application at this location.
Brantford Plant, Canada - The Canadian Autoworkers Union and its Local 397.
Agreement expires September 30, 1996.
Regina, Saskatchewan, Canada - Communications, Energy and Paperworkers
Union of Canada. Agreement expires October 31, 1996.
Alberta, Canada - Informal system regarding wages and benefits, but does
not constitute a collective agreement in place. Informal proposal will
remain in effect until November 1995.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ - Pulp, Paper and Woodworkers of
Canada, Local No. 5. Agreement expired October 31, 1994, was renewed and
amended January 27, 1995, and expires August 31, 1996.
(b) Petitions for certification of union election: None.
(c) Strikes, work slowdowns, work stoppages, or threatened controversies: In
mid to late October of 1994 AEC management observed union organizers
speaking with employees at AEC's ▇▇▇▇▇▇▇▇ facility in New York City. No
petition for certification has been filed, nor has there been further union
organizing activity.
(d) Employment contracts other than collective bargaining agreements:
Employment Contract between Classic Envelope Plus Ltd. and ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ dated June 1, 1994.
Employment Contract between Innova Envelope Inc. and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
dated June 1, 1994.
Verbal consulting agreement between Supremex and its Subsidiaries and ▇▇▇
▇▇▇▇▇▇.
Verbal consulting agreement between ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ and Supremex. A
written agreement will be executed prior to closing.
Employment Agreement dated as of February 1, 1996, as amended March 21,
1996 between Quality Park Products, Inc. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
Employment Agreement dated as of February 1, 1996, as amended March 21,
1996 between Quality Park Products, Inc. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
Employment Agreement dated as of February 1, 1996, as amended March 21,
1996 between Quality Park Products, Inc. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
Employment Agreement dated as of February 1, 1996, as amended March 21,
1996 between Quality Park Products, Inc. and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
Employment Agreement dated as of February 1, 1996, as amended March 21,
1996 between Quality Park Products, Inc. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
Deferred Compensation Arrangement between Quality Park Products, Inc. and
▇▇▇ ▇▇▇▇▇▇▇.
SCHEDULE 1.1(A)
MORTGAGED PROPERTIES
--------------------
I. Mortgaged Properties Acquired Pursuant to the G-P Envelope Acquisition
Agreement.
A. Mortgaged Fee Properties
1. Chestertown, Maryland ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇.
▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (3301) Kalamath St.
5. Jacksonville, Florida 5406 W. First St.
6. Oklahoma City, Oklahoma ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇.
7. Phoenix, Arizona ▇▇▇ ▇. ▇▇▇▇ ▇▇▇.
8. Pittsburgh, Pennsylvania ▇▇▇▇ ▇▇▇▇ ▇▇▇.
▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇.
B. Mortgaged Leasehold Property Interests
1. Albuquerque, New Mexico
Standard Commercial Net/Net/Net Business Center Lease dated
June 1, 1993, made and entered into by and between I&J Investments, as
lessor, and Mail Well Envelope Company, a Delaware corporation, as
lessee. No Survey is required for this Property.
2. Cambridge, Maryland
Lease Agreement dated effective as of January 22, 1988, made
and entered into by and between The County Commissioners of Dorchester
County, as lessor, and M-W Envelope Company, Inc., a Delaware
corporation, as lessee, as amended, modified or extended by (i) that
certain Notice of Intention to Lease 33,750 Square Feet in the
Dorchester County Shell Building dated July 5, 1988, and (ii) that
certain Amendment to Lease Agreement dated March 16, 1993.
3. Denver, Colorado
Agreement dated March 19, 1963, made and entered into by and
between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇, as lessors,
and Pak-Well Paper Industries, Inc., a Colorado corporation, as
lessee, as amended, modified or extended by (i) that certain Addendum
to Lease dated effective as of January 20, 1964, (ii) that certain
Agreement dated effective as of September 15, 1968, and (iii) that
certain Agreement dated April 1, 1975, made and entered into by and
between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇, as lessors, and Mail-Well
Corporation, a Delaware corporation, as lessee. A portion of the
leased premises were subleased pursuant to that certain Sublease
Agreement dated as of May 23, 1980, made and entered into by and
between Nekoosa Envelopes, Inc., a Delaware corporation, as sublessor,
and ▇▇▇▇▇-▇▇▇▇▇ Corporation, a Colorado corporation, as sublessee, and
consented to by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇, and as amended,
modified, or extended by that certain Addendum to Sublease Agreement
dated July 31, 1980, and as assigned by that certain Agreement to
Assign Sublease dated as of June 23, 1987, made and entered into by
and between FPCO Oil & Gas Co., a Colorado corporation, as assignor,
and Central Bancorporation, Inc., a Colorado corporation, as assignee,
and consented to by Nekoosa Envelopes, Inc., and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and as further consented to, among other things, by
that certain Agreement and Consent to Assignment dated August 5, 1987,
made and entered into by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ (successor-in-interest to ▇▇▇▇▇▇ ▇▇▇▇), as lessors, Nekoosa
Envelopes, Inc., as sublessor, FPCO Oil & Gas Co. (successor-in-
interest to ▇▇▇▇▇-▇▇▇▇▇ Corporation), as Assignor, and Central
Bancorporation, Inc., as assignee, and as amended, modified or
extended by that certain letter agreement dated March 26, 1992, by
that certain amendment dated May 6, 1993 and that certain amendment
dated May 13, 1993.
4. Honolulu, Hawaii
Lease dated as of March 22, 1991, made and entered into by
and between PMLW Partnership, a Hawaii general partnership, as lessor,
and Mail-Well Envelope Company, a Delaware corporation, as lessee. No
Survey is required for this Property.
5. Jersey City, New Jersey
Agreement of Lease dated January 7, 1991, made and entered
into by and between ▇▇▇▇▇ Associates, a New Jersey partnership, as
lessor, and ▇▇▇▇▇ Envelope and Tag Corp., a New Jersey corporation, as
lessee, as amended, modified or extended by (i) that certain First
Amendment to Lease dated as of August 15, 1991, and (ii) that certain
Second Amendment to Lease dated February 21, 1994.
6. Kankakee, Illinois
Lease dated August 15, 1984, made and entered into by and
between CMD Realty Management Company, an Illinois corporation, as
agent for The Prudential Insurance Company of America, as lessor, and
Nekoosa Envelopes, Inc., a Delaware corporation, as lessee.
7. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (▇▇▇▇ Mail-Well Drive)
Lease dated March 1, 1988, made and entered into by and
between ▇. ▇. ▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇. Lake, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and United States National Bank of
Oregon, Trustee, and ▇▇▇▇▇▇ ▇▇▇▇▇, Trustee, as lessors, and Mail-Well
Envelope Company, a Delaware corporation, as lessee.
8. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (▇▇▇▇ Mail-Well Drive)
Standard Industrial Lease-Net dated April 13, 1989, made and
entered into by and between Lincoln Property Company, N.C., Inc., as
manager and agent for Lincoln Milwaukie Associates, Ltd., as lessor,
and Mail-Well Envelope Company, Inc., as lessee, as amended, modified
or extended by (i) that certain Lease Extension Agreement extending
the termination date from February 28, 1990 to July 31, 1991, among
other things, (ii) that certain Rent Waiver Agreement dated effective
as of July 11, 1990, (iii) that certain Lease Extension Agreement
dated effective as of April 2, 1991, made and entered into by and
between CP-▇▇▇▇▇▇▇▇▇▇ Properties, Inc., as lessor, and Mail-Well
Envelope Company, Inc., as lessee, and (iii) Amendment to Lease dated
June 19, 1992.
9. Oakland, California
Standard Industrial/Commercial Single-Tenant Lease-Net dated
July 1, 1992, made and entered into by and between Cotton Properties,
as lessor, and Mail-Well Envelope Company, as lessee, as amended,
modified or extended by that certain letter agreement dated August 22,
1993, and as said letter agreement and the Lease were further amended
by that certain letter agreement dated September 9, 1993.
10. Salt Lake City, Utah
Lease Agreement dated August 1, 1973, made and entered into
by and between Price Ventures, Inc., a Utah corporation d/b/a
Timesquare Park, as lessor, and Rockmont Envelope Company of Utah,
Inc., a Utah corporation, as lessee, as amended, modified or extended
by (i) that certain letter agreement dated November 30, 1987, (ii)
that certain letter agreement dated November 24, 1992, (iii) that
certain Amendment to Lease dated as of September 26, 1973, (iv) that
certain Amendment to Lease dated as of November 6, 1973, (v) that
certain Amendment to Lease dated as of November 20, 1973, and (vi)
that certain Addendum to Lease dated as of December 22, 1975.
II. Mortgaged Properties Acquired Pursuant to the AEC Acquisition Agreement.
A. Mortgaged Fee Properties
1. Nashville, Tennessee ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇.
▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Cambridge St.
5. ▇'▇▇▇▇▇▇, Missouri ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇. ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇.
▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
9. Dallas, Texas* ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
*(Leased until 1/5/95)
B. Mortgaged Leasehold Property Interests
1. Agency Lease Agreement dated April 1, 1988, by and between
Erie County Industrial Development Agency and American Envelope
Company, as evidenced by a Memorandum of Lease dated as of April
1, 1988, filed in the Erie County Clerk's Office on April 7, 1988
under Liber 9846, Page 338.
III. Mortgaged Properties Acquired Pursuant to the Supremex Acquisition
Agreement.
A. Mortgaged Fee Properties
1. Markham, Ontario ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
B. Leasehold Property Interests
1. Dartmouth, Nova Scotia ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 6143 - ▇▇▇
▇▇▇▇▇▇ ▇.▇.
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. Mortgaged Properties Acquired Pursuant to the Graphic Arts Center, Inc.
Securities Purchase Agreement.
A. Mortgaged Fee Properties
1. Portland, Oregon ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇.
B. Mortgaged Leasehold Property Interests
1. Portland, Oregon ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
V. Mortgaged Properties Acquired Pursuant to the Quality Park Products, Inc.
Acquisition Agreement.
A. Mortgaged Fee Properties
1. Atlanta, Georgia ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.
B. Leasehold Property Interests
1. Beresford, South Dakota 100 Quality
Park Drive
2. St. ▇▇▇▇▇▇, Utah ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
SCHEDULE 1.1(B)
PERMITTED LIENS
---------------
LIEN PRIORITY
---- --------
1. New Jersey Secretary of State Subordinated to Banks
Financing Statement No. 1380846 -
▇▇▇▇▇ Associates ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
as Secured Party, and ▇▇▇▇▇ Envelope
and Tag Corp., as Debtor, and
subordinated to the Agent's Liens
pursuant to the Landlord Consent,
Subordination and Estoppel Certificate
dated as of February 21, 1994 by ▇▇▇▇▇
Associates.
2. New Jersey ▇▇▇▇▇▇ County Financing Subordinated to Banks
Statement No. 1991-0053 - ▇▇▇▇▇
Associates ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as
Secured Party, and ▇▇▇▇▇ Envelope and
Tag Corp., as Debtor, and subordinated
to the Agent's Liens pursuant to
Landlord Consent, Subordination and
Estoppel Certificate dated as of
February 21, 1994 by ▇▇▇▇▇ Associates.
3. British Columbia Personal Property
Registration No. 5065160 - N.E.L.
National Equipment Leasing Ltd., as
Holder, and Classic Envelope Company
Ltd., as Grantor, dated as of February
14, 1994, granting security interest
in general collateral, packaging
system and Ricoh fax machine.
4. British Columbia Personal Property
Registration No. 5759580 - Didde Web
Press Corporation, as Holder, and
Classic Envelope Plus Ltd., as
Grantor, dated as of May 1, 1995,
granting a security interest in
general collateral, two offsets, two
ink-tower assemblies, one substructure
along with Didde Corp. parts,
attachments and accessories
5. British Columbia Personal Property
Registration No. 5819540 - Ted's
Truck, Trailer and Auto Repairs Ltd.,
as Holder, and Classic Envelope Plus
Ltd., as Grantor, dated as of June 2,
1995, granting a security interest in
vehicle collateral, G.M.C. 7000 (1985)
(amount of lien: $1,219.57)
6. Oregon Secretary of State Nos. P69874
and S32748 - Scitex America Corp., as
Secured Party, and Graphic Arts
Center, as Debtor, dated as of
September 9, 1991, and December 14,
1994, respectively, granting a
security interest in specific
equipment.
7. New York County, New York City Tax
Lien No. 000751197-01 - New York City
Department of Finance, as Secured
Party, and Graphic Arts Center, Inc.,
as Debtor, dated as of April 10, 1995,
in the amount of $10,084.37.
8. Conditional Sales Contract and
Security Agreement with Graphic
International, Inc. dated as of June
8, 1995 pursuant to which Graphic Arts
Center, Inc. will purchase a
Heidleberg 102SP+L six color press for
$1,071,000.
9. Pledge by Graphic Arts Center, Inc. of
$50,000 cash collateral to secure
letter of credit issued by First
Interstate Bank of Oregon, N.A.
10. Minnesota Secretary of State Financing
Statements Nos. 1686797, 1652844,
1651819, 1650982, 1804336, 1740712 -
Hewlett Packard Company, as Secured
Party, and Quality Park Products,
Inc., as Debtor, granting a security
interest in leased equipment.
SCHEDULE 7.6
LITIGATION AND JUDGMENTS
------------------------
1. Skrudland Photo, Inc. v. Mail-Well Corporation, d/b/a/ Mail-Well Envelope,
-------------------------------------------------------------------------
No. 94-15915 - 34th District Court, ▇▇▇▇▇▇ County, Texas.
Plaintiff sued for breach of contract and deceptive trade practices,
arising out of the sale of allegedly defective through-the-mail photo
envelopes by Mail-Well to it. Mail-Well has filed an Answer and
Counterclaim of $38,886.08 arising out of unpaid invoices. Discovery is
proceeding. Mail-Well has retained experts to consult on the issues of
damages and liability. The trial date previously set for November, 1996
has been vacated. The Company intends to vigorously defend this case.
Plaintiff has made no realistic settlement demands.
2. ▇▇▇▇▇ ▇. ▇▇▇▇▇ v. Graphic Arts Center, Inc., No. 96-216-FR, U.S. District
-------------------------------------------
Court, District of Oregon
Plaintiff filed his Complaint on February 12, 1996 alleging employment
discrimination based on his national origin. Defendant answered the
Complaint on March 4, 1996, denying the substantive allegations contained
in it. Mail-Well intends to vigorously defend this case.
3. ▇▇▇ ▇. ▇▇▇▇ v. Graphic Arts Center, Inc., No. 9602-00897, Circuit Court of
----------------------------------------
Oregon, County of Multonmah.
Plaintiff filed her Complaint on February 2, 1996 alleging employment
discrimination based on her sex. Defendant answered the Complaint on March
7, 1996, denying the substantive allegations contained in it. Plaintiff's
deposition has been taken and a motion for Summary Judgment (on the entire
case) has been filed by Defendant. Plaintiff has moved to extend the
discovery cut-off date, as well as the time for filing a Brief in
Opposition to Defendant's Motion for Summary Judgment. Accepts at
settlement have been unproductive. The Company intends to vigorously defend
this case.
4. ▇▇▇ ▇. ▇▇▇▇▇▇ ▇. Mail-Well Corporation, No. 96-01226-CA, Circuit Court,
--------------------------------------
Fourth Judicial Circuit, in and for ▇▇▇▇▇ County, Florida.
Plaintiff filed his Complaint on March 12, 1996 alleging negligence for
damages arising out of his trip and fall at Defendant's facility.
Defendant answered the Complaint denying the substantive allegations
contained in it.
Depositions of most, if not all witnesses, have been taken. At a recent
mediation, there was talk about settling this claim in the range of
$30,000. A trial date has been ordered to be held on January 6, 1997. The
Company intends to vigorously defend this case, if it does not settle in
the near future. The Company has insurance for this accident after a
$100,000 deductible has been satisfied.
5. ▇▇▇▇▇▇▇ ▇. Summer v. Mail-Well Corporation, No. 96-06705, District Court,
------------------------------------------
Judicial District, Dallas County, Texas.
Plaintiff filed his Complaint on July 2, 1996 alleging wrongful termination
in retaliation for filing a worker's compensation claim. The Complaint was
filed in a jurisdiction known for high jury verdicts for claims of this
nature. Defendant answered the Complaint denying the substantive
allegations contained in it. Discovery has yet to commence by either side.
Mail-Well plans to vigorously defend this case.
6. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Envelope & Tag Corp., Docket No. HUD-L-10491-94,
----------------------------------------------
Superior Court of New Jersey Law Division, ▇▇▇▇▇▇ County.
Plaintiff filed a Complaint on December 19, 1995 alleging wrongful
termination and breach of contract. Several depositions have been taken,
discovery is almost complete, and Mail-Well is preparing to file a Motion
for Summary Judgment. Mail-Well intends to vigorously defend this case.
The claims of this Plaintiff are also covered by escrow, which should be
sufficient to cover the costs associated with trial or settlement of this
case. Therefore, it is unlikely that an outcome unfavorable to the Company
in excess of $100,000 will occur.
7. ▇▇▇▇▇▇▇ Honnlee v. Mail-Well, Inc., Claim No. 29-21607, Phoenix, Arizona
----------------------------------
Plaintiff was injured in a car accident on November 8, 1994, when the
vehicle he was driving was struck by a truck driven by a Mail-Well
employee, within the course and scope of his employment. Plaintiff
retained counsel who recently presented Mail-Well with a litigation demand
of $110,000. Defendant has offered $65,000 to settle the case, which offer
was refused. It does not appear at this time that the Plaintiff's alleged
injuries are genuine and related to the accident. Mail-Well has insurance
for this accident after a $100,000 deductible has been satisfied.
SCHEDULE 7.10
TO THE CREDIT AGREEMENT
EXISTING DEBT
-------------
===============
DEBTOR CREDITOR DESCRIPTION AMOUNT
------ -------- ----------- ------
(estimated as
at
October 16,
1996)
---------------
SUPREMEX INC. Domtar Inc. Interest free Can. $833.65
loan for
purchase of
equipment
---------------
[_______________] Domtar Inc. Interest free Can. $39,048
loan for
purchase of
equipment
---------------
INNOVA ENVELOPE DuPont Forgivable loan Can. $73,000
INC. re: film
processing
equipment
---------------
SUPREMEX INC. National Bank Irrevocable Can. $34,000
of Canada standby letter
of credit in
favor of
Mississauga
Hydro
---------------
National Bank Letter of Can. $280,000
of Canada Credit in favor
of
Toronto-Dominion Bank
CLASSIC ENVELOPE Canadian Maximum Can. $0
PLUS LTD. Imperial Bank $200,000 or 65%
of Commerce of Accounts
Receivable Line
of credit
---------------
GAC Scitex America Equipment Lease $180,734
Corp.
---------------
Scitex America Two Separate $203,535
Corp. Equipment Leases
---------------
Pennbrook Lease of Real $2,852,410
Development/ Property
▇▇▇▇▇▇▇▇
Partners
---------------
First Letter of Credit $50,000
Interstate
Bank of
Oregon, N.A. ---------------
Quality Park Hewlett-Packard Master Lease Agreement
Products, Inc. Company No. 4126-43685
--------------
Equipment Schedule 710 $ 42,746.76/1/
Equipment Schedule 7E0 $ 41,894.25/1/
Equipment Schedule 7G0 $ 21,230.79/1/
Equipment Schedule 7H0 $ 12,434.35/1/
Subtotal $118,306.15/1/
--------------
Quality Park Hewlett-Packard Master Installment Sales
Products, Inc. Company Agreement No. 4126-43685
Equipment Schedule 720 $ 94,814.22/1/
Equipment Schedule 730 $ 22,967.56/1/
Equipment Schedule 7D0 $ 42,873.32/1/
Equipment Schedule 7F0 $ 4,436.66/1/
Subtotal $165,181.76/1/
--------------
Quality Park Hewlett-Packard Installment Financing $ 50,668.46/1/
Products, Inc. Company Agreement No. 4124-
03489B
---------------
Quality Park Paper Recycling Contract of Canadian Sale $ 18,399.97/1/
Products, Inc.
--------------
Debt arising in connection with Capital Lease Obligations permitted by this
Agreement.
-------------------------------------------------------------------------------
Unfunded liabilities under the Plans listed on Schedule 7.13.
===============================================================================
_________________________
/1/Estimated as at September 30, 1996.
SCHEDULE 7.11
TAXES
-----
A. Tax claims asserted against the Loan Parties.
--------------------------------------------
1 GAC and the City of New York ("NYC") are presently in
dispute over the characterization of payments made to certain
highly compensated sales persons for fiscal year 1992. NYC has
characterized the payments as distributions on equity and has
claimed $10,168.19 in underpaid taxes. None of the highly
compensated individuals are equity holders of GAC.
GAC has paid the $10,618.19 provisionally, under protest and
is seeking a return of such amount. This payment has been
expensed on the books of GAC.
If GAC does not ultimately prevail in this dispute, GAC may
be required to make future payments to NYC totaling approximately
$20,000 for fiscal years 1993 and 1994.
B. Audits.
------
The following Audits are ongoing:
IRS: Federal Income Tax
Period: 1994
SCHEDULE 7.13
PLANS
-----
List of Pension and Welfare Plans
---------------------------------
1. Mail-Well Corporation Employee Stock Ownership Plan.
2. Mail-Well Corporation 401(k) Savings Retirement Plan.
3. Mail-Well Corporation Severance Plan for Salaried Employees.
4. Mail-Well Corporation Section 125 ("Cafeteria") Plan - Pre-tax premium only
arrangement.
5. Mail-Well Corporation Flexible Health Care Plan.
6. Mail-Well Corporation Life and Disability Insurance Plan.
7. Mail-Well Corporation Educational Assistance Program.
8. Pension Plan for Hourly Employees of Mail-Well Corporation (MWEC).
9. Pension Plan for Hourly Employees of Portland and Oakland.
10. Pension Plan for Hourly Employees of Mail-Well Corporation (AEC).
11. ▇▇▇▇▇ Envelope and Tag Corporation Employees' Retirement Plan.
12. The Paper Industry Union-Management Pension Fund for and on behalf of the
United Paperworks International Union, Local 318, AFL-CIO of ▇▇-▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇. (▇▇▇▇▇ employees)
13. Local 807 Labor-Management Health and Pension Fund, for and on behalf of
Truck Drivers Local Union No. 807, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
(▇▇▇▇▇ employees)
14. Pension Plan for Employees Represented by United Paperworkers International
Union Local 286. (American Envelope employees)
15. Midwest Pension Plan. (American Envelope employees)
16. Pension Plan for Markham Bargaining Employees of Innova Envelope Inc.,
amended and restated as at January 1, 1992, registration number 0219485.
17. Pension Plan for Non-Bargaining Employees of Innova Envelope Inc., amended
and restated as at January 1, 1992, registration number 0991356.
18. Pension Plan for Brantford Bargaining Employees of Innova Envelope Inc.,
amended and restated as at January 1, 1994, registration number 0389395.
19. Unwritten group Registered Retirement Savings Plan ("RRSP") Program for
some of the employees of the Supreme Envelope division and for all the
employees of Unique Envelope.
20. Supreme Envelope (Montreal) Profit Sharing Plan.
21. Supremex Management Incentive Plan.
22. Informal, unwritten bonus plans are in place for either all or some of the
employees at the following locations:
(a) 345 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, St. Laurent
(b) ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
(c) ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
(d) ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
(e) ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
(f) ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
(g) ▇▇▇▇ ▇, ▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ S.E., Calgary
23. GAC 401(k) Profit Sharing Plan (Non-union employees)
24. GAC 401(k) Profit Sharing Plan (Union employees)
25. GACSC 401(k) Profit Sharing Plan (Non-union employees)
26. GAC Medical Benefit Trust Fund - Mechanism for funding Health Plan
benefits, a "voluntary employees beneficiary association" ("VEBA")
27. GAC/GACSC Section 125 ("cafeteria") Plan - pre-tax premium only arrangement
28 GCIU Supplemental Retirement and Disability Fund (Graphic Communications
International Union ("GCIU") union employees)
29. Oregon Printing Industries Retirement Trust - only employees participating
in the Plan on or before April 30, 1988 are eligible
30. Graphic Arts Center, Inc. Executive Life Insurance Plan and Trust Agreement
and Executive Life Insurance Funding Agreement with ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
31. Local 292-M Inter/Local Pension Fund - GAC is responsible (under Article 27
of the GCIU Collective Bargaining Agreement for lithographic employees)
only to forward to the Trustees of this Fund payroll withholding for
employees who elect to contribute from their compensation to this Fund.
32. "Vantage Program" - a "preferred provider" arrangement required under
Section 29.6 of the GCIU Collective Bargaining Agreement for the Bindery,
Shipping, and Mailing employees.
33. GAC 1993 Stock Option Plan
34. GAC 1995 Leveraged Incentive Plan (the "LIP")-Based on GAC's EBITDA for a
fiscal year, a certain percentage of GAC's EBITDA will be put in a pool to
be allocated to participating officers (the "Distributable Value Pool").
The President determines which officers shall participate in the Plan and
how much of the pool an individual officer will receive.
35. Management Incentive Plan for fiscal year 1995. Participants share a
portion of EBITDA, after EBITDA exceeds 80% of plan. The incentive pay pool
is 4% of the quarterly EBITDA in excess of 80% of each quarter's EBITDA
plan. Payments are made quarterly. Participants are middle level managers
of GAC. Participants can be nominated by any officer of GAC. Determination
of participation is made by unanimous consent of the officers of GAC. It is
a one year plan.
36. Quality Park Products Management Incentive Bonus Plan
37. IAM National Pension Fund
38. I.P.P. and GCIU of North America Employer Retirement Fund
39. GCIU Employer Retirement Fund
40. Graphic Arts Industry Joint Pension Fund
41 GCIU Local 1B Health and Welfare Fund A (Medical, Vision, Weekly Accident
and Sickness, Life Insurance)
42. GCIU Local 1B Health and Welfare Fund B (Dental)
43. Quality Park Products, Inc. Severance Pay Plan
The present value of vested benefits exceeds the fair market value of plan
--------------------------------------------------------------------------
assets allocable to such benefits under the following plans (but does not exceed
-----------------------------------------------------------
the limitations set forth in the last sentence of Section 7.13):
1. ▇▇▇▇▇ Envelope and Tag Corporation Employees' Retirement Plan.
2. Pension Plan for Employees Represented by United Paperworkers International
Union Local 286. (American Envelope employees)
SCHEDULE 7.15
HOLDINGS COMMON STOCK; OPTIONS, ETC.
------------------------------------
A.
---------------------------------------------------------------------------------------------------------------------------------
Stock Number Percentage
Certificate Par of of
Stock Issuer Owner Class of Stock No(s) Value Shares Outstanding
------------ ----- -------------- ----- ----- ------ -----------
Mail-Well I Corporation Mail-Well Inc. Common 001 $ .01 1,000 100%
---------------------------------------------------------------------------------------------------------------------------------
Mail-Well West, Inc. Mail-Well I Corporation Common 001 $0.01 1,000 100%
---------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ Envelope and Tag Mail-Well I Corporation Common 003 $1.00 3,000 100%
Corp.
---------------------------------------------------------------------------------------------------------------------------------
WISCO Envelope Corp. Mail-Well I Corporation Common 001 No 1,000 100%
---------------------------------------------------------------------------------------------------------------------------------
Mail-Well Canada Mail-Well I Corporation Common 001 $0.01 1,000 100%
Holdings, Inc.
---------------------------------------------------------------------------------------------------------------------------------
WISCO II, L.L.C. Mail-Well I Corporation Limited Liability 001 N/A N/A 1% of
Company Membership Membership
Interests Interest
WISCO Envelope Corp. Limited Liability 002 N/A N/A 99% of
Company Membership Membership
Interests Interests
---------------------------------------------------------------------------------------------------------------------------------
WISCO III, L.L.C. Mail-Well I Corporation Limited Liability 001 N/A N/A 1% of
Company Membership Membership
Interests Interest
WISCO Envelope Corp. Limited Liability 002 N/A N/A 99% of
Company Membership Membership
Interests Interests
---------------------------------------------------------------------------------------------------------------------------------
Graphic Arts Center, Inc. Mail-Well I Corporation Common 001 $0.01 1,000 100%
---------------------------------------------------------------------------------------------------------------------------------
Supremex, Inc. Mail-Well Canada Common C-2 None 66 100%
Holdings, Inc.
Common C-3 None 34 100%
-------------------------------------------------------------------------------------------------------------------------------
B. Subscriptions, Warrants, Calls, Options, Etc.
Pursuant to The Mail-Well Holdings, Inc. 1994 stock Option
Plan, options to purchase 97,700 shares of Common Stock have been
granted to approximately 40 employees and 18,200 shares of Common
Stock have been granted to approximately 18 GAC employees.
SCHEDULE 7.22
BANK ACCOUNTS
-------------
1. First National Bank of Tullahoma - Account No. ▇▇▇▇▇▇▇ (Depository
Account).
2. Bank One, Arizona N.A. - Account No. 111642 (Lockbox Account).
3. First Security Bank of Utah - Account No. 0600007959 (Lockbox Account).
4. Traders National Bank - Account No. ▇▇▇▇▇▇▇ (Depository Account).
5. Norwest Bank Colorado, National Association - Denver
a. Account No. 1018026204 (Lockbox Account)
b. Account No. ▇▇▇▇▇▇▇▇▇▇ (Concentration Account)
c. Account No. 1018026212 (Mastercard/Visa Account)
d. Account No. 1018026474 (Health Benefits)
e. Account No. 6062501426 (Accounts Payable)
f. Account No. 6062501434 (Managers Account)
g. Account No. 1013036547 (Mail-Well Holdings 1994 Stock Option
Plan Escrow Account)
6. Norwest Bank Colorado, National Association - Grand Junction
a. Account No. 8012700220 (Payroll Account)
b. Account No. 8012700212 (A/P Account)
c. Account No. 8012700327 (Freight Account)
d. Account No. 6062501442 (Payroll Account)
e. Account No. 6062503212 (American A/P)
f. Account No. ▇▇▇▇▇▇▇▇▇▇ (American Payroll)
7. Bank of Hawaii - Account No. 007043732 (Lockbox Account).
8. Bank of America - Account No. ▇▇▇▇▇▇▇ (Lockbox Account).
9. First Union Bank of Florida - Account No. 2090000617809 (Depository
Account).
10. Texas Commerce Bank National Association
a. Account No. 00101440395 (Mail-Well Holdings, Inc. - Equity
Subscription Account)
b. Account No. 00101440403 (Mail-Well Corporation - Supremex Closing
Account)
11. U.S. Bank (Oregon) - Account No. 0100027903 (Lockbox Account).
12. Midlantic National Bank
a. Account No. 1405173202 (Lockbox Account)
b. Account No. 1403182940 (Operating Account)
13. First Hawaiian Bank, Pearlridge Branch - Account No. ▇▇▇▇▇▇▇▇ (Payroll
Account).
14. Society National Bank - Account No. 2166894408 (Lockbox Account).
15. Republic Bank of New York
a. Account No. 230026206 (Depository Account)
b. Account No. 230026214 (Payroll Account)
16. Boatmen's First National Bank of Oklahoma - Account No. 070108366101
(Lockbox Account).
17. ▇▇▇▇▇ Fargo Bank - Account No. 1000005471 (Lockbox Account).
18. Meridian Bank - Account No. ▇▇▇▇▇▇▇▇ (Lockbox Account).
19. Commerce Bank - Account No. 0203063415 (Lockbox Account).
20. First National Bank of Omaha - Account No. ▇▇▇▇▇▇▇▇ (Lockbox Account).
21. Marine Midland Bank - Account No. 875000703 (Lockbox Account).
22. Bank of America - Account No. ▇▇▇▇▇▇▇ (Lockbox Account).
23. ▇▇▇▇▇ Fargo Bank
a. Account No. 4159-341771 (Lockbox Account)
b. Account No. 552-001-0626 (Lockbox Account)
c. Account No. 300125972 (Lockbox Account)
24. Nations Bank of Tennessee, N.A. - Account No. 00102341477 (Lockbox
Account).
25. NationsBank of Texas, N.A.
a. Account No. 1293323185 (Mail-Well Holdings Equity Subscription
Account)
b. Account No. 1293323177 (Mail-Well Corporation Closing Account)
26. PNC Bank
a. Account No. ▇▇▇▇-▇▇-▇▇▇▇ (Lockbox Account)
b. Account No. 1-▇▇▇▇▇▇▇▇-3 (Lockbox Account)
27. Banque Nationale du Canada
a. Account No. 000000011022
b. Account No. 000000020722
c. Account No. 000000051524
d. Account No. 060002988878P
28. Royal Bank
a. Account No. 00001-▇▇▇▇▇▇▇
b. Account No. 03012-▇▇▇▇▇▇▇
c. Account No. 03510-▇▇▇▇▇▇▇
d. Account No. 05259-▇▇▇▇▇▇▇
e. Account No. 06857-▇▇▇▇▇▇▇
f. Account No. 07981-▇▇▇▇▇▇▇
g. Account No. 07981-▇▇▇▇▇▇▇
h. Account No. 00001-▇▇▇▇▇▇▇
i. Account No. 03012-▇▇▇▇▇▇▇
j. Account No. 03510-▇▇▇▇▇▇▇
k. Account No. 05259-▇▇▇▇▇▇▇
l. Account No. 06857-▇▇▇▇▇▇▇
m. Account No. 07981-▇▇▇▇▇▇▇
n. Account No. 07981-▇▇▇▇▇▇▇
SCHEDULE 7.27
EMPLOYEE MATTERS
----------------
(a) COLLECTIVE BARGAINING AGREEMENTS
--------------------------------
GCIU Local 292M, expires on June 30, 1997.
GCIU Local 292M dated as of October 17, 1991, expires on April 30, 1997.
Allentown, PA - United Independent Union, Local No. 7. Agreement expires
September 30, 2000.
Atlanta, GA - Graphic Communications International Union, Local 527-S, AFL-
CIO-CLC, June 1, 1993 through May 31, 1999.
Chicago, IL (Ohio Street Facility) - International Union of Allied
Production and Novelty Workers Local No. 10. Agreement expires January 31,
1999.
Cleveland, OH - International Association of Machinists and ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇▇. Agreement expires June 12, 1998.
Honolulu, HI - Hawaii Printing and Graphic Communications Union, Local 501-
M. Agreement expires November 30, 1997.
Jersey City, NJ - United Paperworkers International Union, Local 318.
Agreement expires March 31, 2001.
Jersey City, NJ - International Brotherhood of Teamsters, Local 807.
Agreement expires March 31, 1998.
Omaha, NE - Graphic Communications Union, Local 543-M. Agreement expires
July 31, 1997.
Philadelphia, PA - United Paper Workers International Union, Local 286.
Agreement expires September 30, 1997.
Pittsburgh, PA - United Paperworkers International Union, Local 296.
Agreement expires October 31, 1999.
Portland, OR - Graphic Communications Union, District Council No. 2. Also
covers employees at Oakland, CA. Agreement expired May 31, 1996.
San Antonio, TX - Graphic Communications Union, Local 737-S. Agreement
expires March 31, 1998.
Santa Fe Springs, CA - Graphic Communications Union, District Council No.
2. Agreement expires June 30, 1997.
Seattle, WA - Graphic Communications International Union, Local 767-M.
Agreement expires July 31, 1998.
Seattle, WA - Graphic Communications Union, District Council No. 2.
Agreement expires July 31, 1998.
St. Louis, MO - Graphic Communications International Union, Local 505.
Agreement expires August 31, 1997.
St. ▇▇▇▇, MN - District Lodge #77 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, effective April 1, 1995 through
November 15, 1996.
St. ▇▇▇▇, MN - Twin Cities Printing Trades Union, Local No. 29, charted by
the Graphic Communications International Union, effective April 1, 1995
through November 15, 1996.
St. ▇▇▇▇, MN - Graphic Communications International Union Local #1B, Twin
Cities, effective April 1, 1995 through November 15, 1996.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ - Communications, Energy and Paperworkers Union of
Canada and its Local 301. Agreement expired December 31, 1994, the renewal
of which is presently in process of negotiation which is expected to go to
arbitration in August, 1995.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ - "Working with Us", The Employee Manual, which
covers hourly paid production and warehouse employees. The manual does not
constitute a formal collective agreement, but is negotiated with the
employees and is valid up to August 31, 1996.
Mississauga, Canada - A manual similar to the above is in the process of
being prepared for application at this location.
Brantford Plant, Canada - The Canadian Autoworkers Union and its Local 397.
Agreement expires September 30, 1996.
Regina, Saskatchewan, Canada - Communications, Energy and Paperworkers
Union of Canada. Agreement expires October 31, 1996.
Alberta, Canada - Informal system regarding wages and benefits, but does
not constitute a collective agreement in place. Informal proposal will
remain in effect until November 1995.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ - Pulp, Paper and Woodworkers of
Canada, Local No. 5. Agreement expired October 31, 1994, was renewed and
amended January 27, 1995, and expires August 31, 1996.
(b) Petitions for certification of union election: None.
(c) Strikes, work slowdowns, work stoppages, or threatened controversies: In
mid to late October of 1994 AEC management observed union organizers
speaking with employees at AEC's ▇▇▇▇▇▇▇▇ facility in New York City. No
petition for certification has been filed, nor has there been further union
organizing activity.
(d) Employment contracts other than collective bargaining agreements:
Employment Contract between Classic Envelope Plus Ltd. and ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ dated June 1, 1994.
Employment Contract between Innova Envelope Inc. and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
dated June 1, 1994.
Verbal consulting agreement between Supremex and its Subsidiaries and ▇▇▇
▇▇▇▇▇▇.
Verbal consulting agreement between ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ and Supremex. A
written agreement will be executed prior to closing.
Employment Agreement dated as of February 1, 1996, as amended March 21,
1996 between Interests Quality Park Products, Inc. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
Employment Agreement dated as of February 1, 1996, as amended March 21,
1996 between Quality Park Products, Inc. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
Employment Agreement dated as of February 1, 1996, as amended March 21,
1996 between Quality Park Products, Inc. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
Employment Agreement dated as of February 1, 1996, as amended March 21,
1996 between Quality Park Products, Inc. and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
Employment Agreement dated as of February 1, 1996, as amended March 21,
1996 between Quality Park Products, Inc. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
Deferred Compensation Arrangement between Quality Park Products, Inc. and
▇▇▇ ▇▇▇▇▇▇▇.