-----------------------------------------------------------------
-----------------------------------------------------------------
STONE CONTAINER CORPORATION
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MARCH 22, 1996
WITH
THE FINANCIAL INSTITUTIONS SIGNATORY HERETO,
BANKERS TRUST COMPANY,
AS AGENT,
AND
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION,
THE BANK OF NEW YORK,
THE BANK OF NOVA SCOTIA,
CAISSE NATIONALE DE CREDIT AGRICOLE,
CHEMICAL BANK,
THE CHASE MANHATTAN BANK, N.A.,
DRESDNER BANK AG-CHICAGO AND GRAND CAYMAN BRANCHES,
THE FIRST NATIONAL BANK OF CHICAGO,
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
NATIONSBANK, N.A. (CAROLINAS),
THE SUMITOMO BANK, LTD., CHICAGO BRANCH AND
TORONTO DOMINION (TEXAS), INC.,
AS CO-AGENTS
-----------------------------------------------------------------
-----------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS . . . . . . . .3
Section 1.1 Definitional Appendix . . . . . . . . . . . . . .3
Section 1.2 Accounting Terms; Financial Statements. . . . . .3
ARTICLE II
LOAN PROVISIONS. . . . . . . . . . .4
Section 2.1 Loan Commitments. . . . . . . . . . . . . . . . .4
(a) Term Loan. . . . . . . . . . . . . . . . . . . . . . .4
(b) Revolving Loans. . . . . . . . . . . . . . . . . . . .4
(c) Additional Term Loan . . . . . . . . . . . . . . . . .5
(d) Supplemental Revolving Loans . . . . . . . . . . . . .5
(e) D Tranche Term Loan. . . . . . . . . . . . . . . . . .6
Section 2.2 Obligations; Notes. . . . . . . . . . . . . . . .6
(a) Term Loan Obligations. . . . . . . . . . . . . . . . .6
(b) Revolving Loan Obligations . . . . . . . . . . . . . .7
(c) Swing Line Loan Obligations. . . . . . . . . . . . . .8
(d) Additional Term Loan Obligations . . . . . . . . . . .9
(e) Supplemental Revolving Loan Obligations. . . . . . . 10
(f) D Tranche Term Loan Obligations. . . . . . . . . . . 11
Section 2.3 Borrowing Options . . . . . . . . . . . . . . . 12
Section 2.4 Minimum Amount of Each Borrowing. . . . . . . . 12
Section 2.5 Notice of Borrowing . . . . . . . . . . . . . . 12
Section 2.6 Conversion or Continuation. . . . . . . . . . . 13
Section 2.7 Disbursement of Funds . . . . . . . . . . . . . 14
Section 2.8 Interest. . . . . . . . . . . . . . . . . . . . 16
(a) Prime Rate Revolving Loans . . . . . . . . . . . . . 16
(b) Eurodollar Rate Revolving Loans. . . . . . . . . . . 16
(c) Prime Rate Term Loans. . . . . . . . . . . . . . . . 16
(d) Eurodollar Rate Term Loans . . . . . . . . . . . . . 16
(e) Swing Line Loans . . . . . . . . . . . . . . . . . . 16
(f) Prime Rate Additional Term Loans . . . . . . . . . . 17
(g) Eurodollar Rate Additional Term Loans. . . . . . . . 17
(h) Prime Rate Supplemental Revolving Loans. . . . . . . 17
(i) Eurodollar Rate Supplemental Revolving Loans . . . . 17
(j) Prime Rate D Tranche Term Loans. . . . . . . . . . . 17
(k) Eurodollar Rate D Tranche Term Loans . . . . . . . . 18
(l) Default Rate Interest. . . . . . . . . . . . . . . . 18
(m) Accrual and Payment of Interest. . . . . . . . . . . 18
(n) Notification of Rate . . . . . . . . . . . . . . . . 18
(o) Maximum Interest . . . . . . . . . . . . . . . . . . 19
(p) Reference Banks. . . . . . . . . . . . . . . . . . . 19
Section 2.9 Interest Rate Adjustments . . . . . . . . . . . 19
Section 2.10 Interest Periods. . . . . . . . . . . . . . . . 19
Section 2.11 Swing Line Loans. . . . . . . . . . . . . . . . 20
(a) Swing Line Commitment. . . . . . . . . . . . . . . . 20
- i -
(b) Procedure for Swing Line Borrowing . . . . . . . . . 20
(c) Refunding of Swing Line Loans. . . . . . . . . . . . 21
(d) Participation in Swing Line Loans. . . . . . . . . . 21
(e) Obligations Unconditional. . . . . . . . . . . . . . 21
Section 2.12 Letters of Credit . . . . . . . . . . . . . . . 22
(a) Issuance by Facing Agent . . . . . . . . . . . . . . 22
(b) Participation of Revolving Lenders . . . . . . . . . 23
(c) Requests for Issuance. . . . . . . . . . . . . . . . 24
(d) Reimbursement of Drawings. . . . . . . . . . . . . . 24
(e) Failure to Reimburse . . . . . . . . . . . . . . . . 25
(f) Letter of Credit Fees . . . . . . . . . . . . . . . 26
(g) Reimbursement Obligation Unconditional . . . . . . . 27
(h) Increased Costs. . . . . . . . . . . . . . . . . . . 27
(i) Indemnification. . . . . . . . . . . . . . . . . . . 28
(j) Letter of Credit Beneficiaries . . . . . . . . . . . 29
(k) Facing Agent . . . . . . . . . . . . . . . . . . . . 29
(l) No Indemnification for Certain Acts. . . . . . . . . 29
Section 2.13 Increased Costs, Illegality, Etc. . . . . . . . 30
Section 2.14 Replacement of Affected Lenders . . . . . . . . 33
Section 2.15 Change of Lending Office. . . . . . . . . . . . 34
Section 2.16 Funding Losses. . . . . . . . . . . . . . . . . 34
Section 2.17 Pro Rata Borrowings . . . . . . . . . . . . . . 35
Section 2.18 ▇▇▇▇▇▇▇▇ Letters of Credit. . . . . . . . . . . 35
ARTICLE III
TERMINATION OF COMMITMENTS, PREPAYMENTS AND FEES . . . 36
Section 3.1 Mandatory Revolving Loan, Supplemental Revolving
Loan and Swing Line Loan Prepayments and
Commitment Reductions . . . . . . . . . . . . . 36
Section 3.2 Voluntary Prepayments . . . . . . . . . . . . . 36
Section 3.3 Voluntary Commitment Reductions . . . . . . . . 38
Section 3.4 Mandatory Prepayments . . . . . . . . . . . . . 39
(a) Prepayments From Excess Cash Flow. . . . . . . . . . 39
(b) Prepayments From Incurrence of Indebtedness. . . . . 40
(c) Prepayments From Asset Sales . . . . . . . . . . . . 41
Section 3.5 Other Provisions With Respect to the Loans. . . 43
Section 3.6 Order of Prepayment and Payment . . . . . . . . 43
Section 3.7 Commitment Fees . . . . . . . . . . . . . . . . 46
Section 3.8 Amendment Fee . . . . . . . . . . . . . . . . . 46
Section 3.9 Waiver Fee. . . . . . . . . . . . . . . . . . . 47
Section 3.10 Additional Fees.. . . . . . . . . . . . . . . . 47
Section 3.11 Agent's Administrative Fee. . . . . . . . . . . 47
Section 3.12 Payments. . . . . . . . . . . . . . . . . . . . 47
ARTICLE IV
REPRESENTATIONS AND WARRANTIES. . . . . . . . 49
Section 4.1 Due Organization and Standing . . . . . . . . . 50
Section 4.2 Power and Authority . . . . . . . . . . . . . . 50
Section 4.3 Subsidiaries. . . . . . . . . . . . . . . . . . 50
Section 4.4 No Violation of Agreements. . . . . . . . . . . 51
- ii -
Section 4.5 Due Authorization, etc. . . . . . . . . . . . . 51
Section 4.6 Indebtedness for Money Borrowed . . . . . . . . 52
Section 4.7 Fiscal Quarters and Year. . . . . . . . . . . . 53
Section 4.8 Title to and Conditions of Properties . . . . . 53
Section 4.9 Litigation, Proceedings, Licenses, Permits. . . 53
Section 4.10 Governmental Consents, etc. . . . . . . . . . . 54
Section 4.11 Financial Statements. . . . . . . . . . . . . . 54
Section 4.12 No Material Adverse Change. . . . . . . . . . . 55
Section 4.13 Tax Returns and Payments. . . . . . . . . . . . 56
Section 4.14 Patents, etc. . . . . . . . . . . . . . . . . . 56
Section 4.15 ERISA . . . . . . . . . . . . . . . . . . . . . 56
Section 4.16 Governmental Regulation . . . . . . . . . . . . 58
Section 4.17 Federal Reserve Regulations . . . . . . . . . . 58
Section 4.18 Transaction Documents . . . . . . . . . . . . . 58
Section 4.19 Solvency of the Borrower. . . . . . . . . . . . 59
Section 4.20 Certain Fees. . . . . . . . . . . . . . . . . . 59
Section 4.21 Environmental Matters . . . . . . . . . . . . . 59
Section 4.22 Disclosure. . . . . . . . . . . . . . . . . . . 60
Section 4.23 Survival of Warranties; Covenant Regarding
Disclosure. . . . . . . . . . . . . . . . . . . 61
ARTICLE V
COVENANTS. . . . . . . . . . . . . 61
Section 5.1 Affirmative Covenants of the Borrower . . . . . 61
5.1.1 Financial Data. . . . . . . . . . . . . . . . . 61
5.1.2 Discharge of Taxes, etc.. . . . . . . . . . . . 66
5.1.3 Corporate Existence; Business . . . . . . . . . 66
5.1.4 Compliance With Laws. . . . . . . . . . . . . . 66
5.1.5 Performance of Basic Agreements . . . . . . . . 67
5.1.6 Inspection of Books and Properties. . . . . . . 67
5.1.7 Maintenance of Books and Records. . . . . . . . 68
5.1.8 ERISA . . . . . . . . . . . . . . . . . . . . . 68
5.1.9 Insurance . . . . . . . . . . . . . . . . . . . 69
5.1.10 Maintenance of Properties . . . . . . . . . . . 69
5.1.11 Use of Proceeds . . . . . . . . . . . . . . . . 70
5.1.12 Lender Meeting. . . . . . . . . . . . . . . . . 71
5.1.13 Redemption of Senior Subordinated Notes and
Stone Savannah Stock. . . . . . . . . . . . . . 71
5.1.14 Environmental Notification. . . . . . . . . . . 71
5.1.15 Environmental Compliance. . . . . . . . . . . . 72
5.1.16 Additional Subsidiary Guarantees. . . . . . . . 72
5.1.17 Delayed Collateral. . . . . . . . . . . . . . . 73
5.1.18 Merger of Stone Southwest.. . . . . . . . . . . 74
Section 5.2 Negative Covenants of the Borrower. . . . . . . 74
5.2.1 Liens . . . . . . . . . . . . . . . . . . . . . 74
5.2.2 Indebtedness for Money Borrowed . . . . . . . . 74
5.2.3 Guarantees. . . . . . . . . . . . . . . . . . . 83
5.2.4 Affiliate Transactions. . . . . . . . . . . . . 84
5.2.5 Dividends . . . . . . . . . . . . . . . . . . . 84
5.2.6 Negative Debt Covenants . . . . . . . . . . . . 86
5.2.7 Investments . . . . . . . . . . . . . . . . . . 87
5.2.8 Mergers . . . . . . . . . . . . . . . . . . . . 89
- iii -
5.2.9 Purchase of Stock or Assets . . . . . . . . . . 91
5.2.10 Prepayment of Indebtedness; Certain Amendments. 92
5.2.11 Capital Expenditures. . . . . . . . . . . . . . 95
5.2.12 Sale of Assets. . . . . . . . . . . . . . . . . 96
5.2.13 Sale of Accounts Receivable . . . . . . . . . . 97
5.2.14 Subsidiaries. . . . . . . . . . . . . . . . . . 97
5.2.15 Lease Payments. . . . . . . . . . . . . . . . . 98
5.2.16 Accounts Receivable Financing Program . . . . . 98
Section 5.3 Financial Covenants of the Borrower . . . . . . 98
5.3.1 Interest Coverage Ratio . . . . . . . . . . . . 98
5.3.2 Indebtedness Ratio. . . . . . . . . . . . . . . 99
ARTICLE VI
CONDITIONS OF CREDIT. . . . . . . . . . 99
Section 6.1 Conditions Precedent to the Borrowing of
Initial Loans . . . . . . . . . . . . . . . . . 99
Section 6.2 Conditions Precedent to all Credit Events . . .103
(a) Representations and Warranties . . . . . . . . . . .103
(b) No Default . . . . . . . . . . . . . . . . . . . . .103
(c) Notice of Borrowing; Letter of Credit Request . . .103
(d) Other Information. . . . . . . . . . . . . . . . . .103
Section 6.3 Conditions Precedent to Effectiveness of
Agreement, Initial Funding of Supplemental
Revolving Loans and Funding of D Tranche Term
Loan. . . . . . . . . . . . . . . . . . . . . .104
ARTICLE VII
EVENTS OF DEFAULT. . . . . . . . . . .106
Section 7.1 Events of Default . . . . . . . . . . . . . . .106
(a) Payments . . . . . . . . . . . . . . . . . . . . . .106
(b) Representations and Warranties . . . . . . . . . . .106
(c) Certain Covenants. . . . . . . . . . . . . . . . . .107
(d) Other Covenants. . . . . . . . . . . . . . . . . . .107
(e) Bankruptcy . . . . . . . . . . . . . . . . . . . . .107
(f) Involuntary Proceedings. . . . . . . . . . . . . . .107
(g) Indebtedness for Money Borrowed. . . . . . . . . . .108
(h) Judgments. . . . . . . . . . . . . . . . . . . . . .108
(i) Basic Agreements . . . . . . . . . . . . . . . . . .108
(j) ERISA. . . . . . . . . . . . . . . . . . . . . . . .109
(k) Other ERISA. . . . . . . . . . . . . . . . . . . . .109
(l) Cross-Defaults . . . . . . . . . . . . . . . . . . .109
(m) Change of Control. . . . . . . . . . . . . . . . . .109
Section 7.2 Remedies. . . . . . . . . . . . . . . . . . . .109
ARTICLE VIII
THE AGENT . . . . . . . . . . . .111
Section 8.1 Appointment . . . . . . . . . . . . . . . . . .111
Section 8.2 Nature of Duties. . . . . . . . . . . . . . . .111
Section 8.3 Rights, Exculpation, Etc. . . . . . . . . . . .112
- iv-
Section 8.4 Employment of Agents and Counsel. . . . . . . .113
Section 8.5 Reliance. . . . . . . . . . . . . . . . . . . .113
Section 8.6 Indemnification . . . . . . . . . . . . . . . .113
Section 8.7 Notice of Default . . . . . . . . . . . . . . .114
Section 8.8 The Agent . . . . . . . . . . . . . . . . . . .114
Section 8.9 Resignation by the Agent. . . . . . . . . . . .114
Section 8.10 Holders of Obligations. . . . . . . . . . . . .115
Section 8.11 Co-Agents . . . . . . . . . . . . . . . . . . .115
ARTICLE IX
MISCELLANEOUS . . . . . . . . . . .115
Section 9.1 No Waiver; Modifications in Writing . . . . . .115
Section 9.2 Amendments. . . . . . . . . . . . . . . . . . .115
Section 9.3 Certain Other Amendments; Amendments Affecting
Additional Lenders, Supplemental Revolving
Lenders and D Tranche Lenders . . . . . . . . .117
Section 9.4 Notices, etc. . . . . . . . . . . . . . . . . .118
Section 9.5 Costs, Expenses and Taxes . . . . . . . . . . .119
Section 9.6 Indemnification . . . . . . . . . . . . . . . .120
Section 9.7 Special Expenditures. . . . . . . . . . . . . .121
Section 9.8 Confirmations . . . . . . . . . . . . . . . . .122
Section 9.9 Adjustment. . . . . . . . . . . . . . . . . . .122
Section 9.10 Right of Setoff . . . . . . . . . . . . . . . .123
Section 9.11 Execution in Counterparts . . . . . . . . . . .124
Section 9.12 Binding Effect; Assignment. . . . . . . . . . .124
Section 9.13 Release of Collateral . . . . . . . . . . . . .129
Section 9.14 Consent to Jurisdiction . . . . . . . . . . . .132
Section 9.15 Governing Law . . . . . . . . . . . . . . . . .132
Section 9.16 Severability of Provisions. . . . . . . . . . .132
Section 9.17 Headings. . . . . . . . . . . . . . . . . . . .133
Section 9.18 Time. . . . . . . . . . . . . . . . . . . . . .133
Section 9.19 Further Assurances. . . . . . . . . . . . . . .133
Section 9.20 Florida Real Property . . . . . . . . . . . . .133
Section 9.21 Effect of Restatement . . . . . . . . . . . . .133
DEFINITIONAL APPENDIX. . . . . . . . . . . . . . . . . . . . . .1
- v -
INDEX OF EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit 1.1(a) Form of Stone Container Security Agreement
Exhibit 1.1(b)-A Form of Stone Savannah Security Agreement
Exhibit 1.1(b)-B Form of Stone Southwest Security Agreement
Exhibit 1.1(c) Form of Subsidiary Guarantee
Exhibit 1.1(d)-A Form of Mortgage
Exhibit 1.1(d)-B Form of Leasehold Mortgage
Exhibit 1.1(e) Recourse Receivables Financings
Exhibit 2.2(a) Form of Term Note
Exhibit 2.2(b) Form of Revolving Note
Exhibit 2.2(c) Form of Swing Line Note
Exhibit 2.2(d) Form of Additional Term Note
Exhibit 2.2(e) Form of Supplemental Revolving Note
Exhibit 2.2(f) Form of D Tranche Term Note
Exhibit 2.5 Form of Notice of Borrowing
Exhibit 2.6 Form of Notice of Conversion or Continuation
Exhibit 2.11(d) Form of Swing Line Loan Participation Certificate
Exhibit 2.12 Form of Request for Issuance/Amendment of
Letter of Credit
Exhibit 3.12(c) Form of Tax Certificate
Exhibit 4.11(b) Pro Forma Consolidated Balance Sheet
Exhibit 4.11(c) Forecasts
Exhibit 5.1.1 Form of Officer's Certificate pursuant to Section 5.1.1
Exhibit 6.1(h) Form of Opinion of Sidley & Austin
Exhibit 6.1(m) Form of Certificate of Responsible Officer
pursuant to Section 6.1(m)
Exhibit 6.1(o)-A Form of Gelco Corporation L/C Agreement Amendment
Exhibit 6.1(o)-B Form of Westinghouse Electric Corporation L/C
Agreement Amendment
Exhibit 6.3(g) Form of Opinion of Sidley & Austin
Exhibit 6.3(l) Form of Certificate of Responsible Officer
Exhibit 9.12(d) Form of Assignment Agreement
SCHEDULES
Schedule 1.1(a) Revolving Loan and Term Loan Commitments
Schedule 1.1(b) Performance Tests
Schedule 1.1(c) Mortgaged Properties
Schedule 1.1(d) Permitted Liens
Schedule 1.1(e) Additional Term Loan Commitments
Schedule 1.1(f) Supplemental Revolving Loan Commitments and D
Tranche Term Loan Commitments
Schedule 3.4 Existing Contractual Restrictions
Schedule 4.3 Subsidiaries of the Borrower
Schedule 4.4 Consents and Approvals
- vi -
Schedule 4.6 Indebtedness for Money Borrowed
Schedule 4.8 Title to and Conditions of Properties
Schedule 4.10 Governmental Consents
Schedule 4.11(d) Material Liabilities
Schedule 4.12 Public Filings
Schedule 4.15 Pension Liabilities Relating to Stone-Canada
and Subsidiaries of Stone-Canada
Schedule 4.21 Environmental Matters
Schedule 5.2.2 IRBs and IRB Put Contracts
Schedule 5.2.3 Guarantees
Schedule 5.2.4 Affiliate Transactions
Schedule 5.2.6 Encumbrances and Restrictions
Schedule 5.2.7 Investments
Schedule 5.2.7-A Commitments and Contracts
Schedule 5.2.8(g) Permitted Seminole Kraft Indebtedness
Schedule 6.1(g) Title Insurance relating to Mortgaged
Properties
Schedule 9.13(a) Collateral Subject to Release Upon Revolver
Termination
- vii -
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is dated as of March 22,
1996 and is made by and among Stone Container Corporation, a Delaware
corporation (the "BORROWER"), the undersigned financial institutions in their
capacities as lenders hereunder (hereinafter collectively, the "LENDERS," and
each individually, a "LENDER"), Bankers Trust Company, as agent (the "AGENT")
for the Lenders hereunder, and Bank of America National Trust & Savings
Association, The Bank of New York, The Bank of Nova Scotia, Caisse Nationale
de Credit Agricole, Chemical Bank, The Chase Manhattan Bank, N.A., Dresdner
Bank AG-Chicago and Grand Cayman Branches, The First National Bank of
Chicago, The Long-Term Credit Bank of Japan, Ltd., NationsBank, N.A.
(Carolinas), The Sumitomo Bank, Ltd., Chicago Branch and Toronto Dominion
(Texas), Inc., as co-agents for the Lenders (collectively, the "CO-AGENTS,"
and each individually, a "CO-AGENT").
RECITALS:
A. The Borrower, the Agent, the Co-Agents and certain financial
institutions (the "ORIGINAL LENDERS") previously entered into that certain
Credit Agreement dated as of October 12, 1994, as amended by the First
Amendment, Consent and Waiver of Credit Agreement dated as of January 30,
1995, the Second Amendment of Credit Agreement dated as of April 12, 1995 and
the Third Amendment of Credit Agreement and Waiver Request dated as of June
30, 1995 (as so amended, the "ORIGINAL CREDIT AGREEMENT") whereunder the
Original Lenders agreed to make a Term Loan to the Borrower in the original
aggregate principal amount of $400,000,000 and to make available Revolving
Loans to the Borrower under a revolving credit facility (including a letter
of credit subfacility and a swing line facility), subject to certain
restrictions set forth therein, in an aggregate principal amount not to
exceed $450,000,000 at any time outstanding.
B. The Borrower, the Agent, the Co-Agents and certain financial
institutions (the "EXISTING LENDERS") have entered into that certain Amended
and Restated Credit Agreement dated as of August 29, 1995 (the "EXISTING
CREDIT AGREEMENT") whereunder the Borrower, the Agent, the Co-Agents and the
Existing Lenders amended and restated the Original Credit Agreement and the
Additional Lenders agreed to make an Additional Term Loan to the Borrower in
the original aggregate principal amount of $200,000,000.
C. The proceeds of the Term Loan, Revolving Loans, Letters of
Credit and Swing Line Loans made or issued under the Original Credit
Agreement and the Existing Credit Agreement were used by the Borrower (i) to
provide all or a portion of the funds necessary to repay in full all of the
indebtedness outstanding under the U.S. Credit Agreement on the Closing Date,
(ii) to make loans and/or capital contributions on the Closing Date to
Stone-Canada, which, concurrently therewith, repaid all of the indebtedness
outstanding under the Canadian Credit Agreements,
(iii) to provide all or a portion of the funds necessary to repay all of the
indebtedness outstanding under the Stone Savannah Credit Agreement on the
Closing Date and to consummate the Stone Savannah Transactions, (iv) in the
case of Letters of Credit, to meet the ordinary course of business letter of
credit needs of the Borrower and its Subsidiaries and (v) for ongoing working
capital and general corporate purposes of the Borrower and its Subsidiaries.
D. The proceeds of the Additional Term Loan made under the
Existing Credit Agreement by the Additional Lenders were used by the Borrower
to (i) voluntarily repurchase, prepay, redeem or otherwise extinguish
Indebtedness of the Borrower consisting of (A) all or any portion of the
8-7/8% Notes (including the payment of principal and interest thereon), (B)
all or any portion of the 12-1/8% Subordinated Debentures (including the
payment of principal and interest thereon) and/or (C) Senior Indebtedness
(including the payment of principal and interest thereon), (ii) pay certain
fees and expenses incurred in connection with the execution and delivery of
the Existing Credit Agreement and/or (iii) repay outstanding Revolving Loans
under the Original Credit Agreement.
E. The Borrower has requested the Supplemental Revolving Lenders
to make available Supplemental Revolving Loans to the Borrower under a
supplemental revolving credit facility, subject to certain restrictions set
forth herein, in an aggregate principal amount not to exceed $110,000,000 at
any time outstanding, the proceeds of which Supplemental Revolving Loans will
be used by the Borrower for ongoing working capital and general corporate
purposes of the Borrower and its Subsidiaries.
F. The Borrower has requested the D Tranche Lenders to make a D
Tranche Term Loan to the Borrower in the aggregate principal amount of
$190,000,000, subject to certain restrictions set forth herein, the proceeds
of which D Tranche Term Loan will be used by the Borrower (i) directly or
indirectly to voluntarily repurchase, prepay, redeem or otherwise extinguish
other senior and/or subordinated Indebtedness for Money Borrowed of the
Borrower (including the payment of principal, contractual premium, if any,
and interest thereon) and (ii) to pay certain fees and expenses incurred in
connection with the execution and delivery of this Agreement.
G. The Existing Lenders are willing to continue to make the Term
Loan and the Additional Term Loan, and to continue to extend commitments to
continue to make the Revolving Loans and Swing Line Loans, and to continue to
issue or participate, as the case may be, in Letters of Credit, to the
Borrower, in each case for the respective purposes stated above and on the
terms and subject to the conditions hereinafter set forth.
H. The Supplemental Revolving Lenders are willing to extend
commitments to make the Supplemental Revolving Loans and the D Tranche
Lenders are willing to make the D Tranche Term Loan, to
- 2 -
the Borrower, in each case for the respective purposes stated above and on
the terms and subject to the conditions hereinafter set forth.
I. The Borrower, the Existing Lenders, the Supplemental Revolving
Lenders, the D Tranche Lenders, the Agent and the Co-Agents now desire to
amend and restate the Existing Credit Agreement to, among other things, set
forth the terms and conditions under which the Supplemental Revolving Lenders
hereafter will make Supplemental Revolving Loans to the Borrower and which
the D Tranche Lenders hereafter will make the D Tranche Term Loan to the
Borrower, and to restate the Existing Credit Agreement to reflect the
amendments thereto.
J. This Agreement shall become effective upon the date (the
"RESTATEMENT DATE") on which, after it has been executed by the Borrower, the
Agent, the Required Lenders (as defined in the Existing Credit Agreement),
the Majority Revolving Lenders (as defined in the Existing Credit Agreement),
the Majority Term Lenders (as defined in the Existing Credit Agreement) the
Majority Additional Term Lenders (as defined in the Existing Credit
Agreement), the Supplemental Revolving Lenders and the D Tranche Lenders, the
Borrower has satisfied all of the conditions precedent more particularly set
forth in SECTION 6.3 (but in the event such conditions have not been
satisfied or waived on or before April 15, 1996, this Agreement (other than
SECTION 3.10) shall be of no force or effect and the Existing Credit
Agreement shall continue in full force and effect).
NOW THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 DEFINITIONAL APPENDIX. Unless the context otherwise
requires, each capitalized term used herein, including the preamble and
recitals above, and defined in the attached Definitional Appendix (which
shall be deemed to be a part of this Agreement) shall have the meaning
ascribed to such term in the Definitional Appendix.
Section 1.2 ACCOUNTING TERMS; FINANCIAL STATEMENTS. All
accounting terms used herein and not expressly defined in this Agreement
shall have the respective meanings given to them in accordance with generally
accepted accounting principles in the United States of America or Canada, as
applicable, as in effect on the Closing Date (as applicable, the "AGREEMENT
ACCOUNTING PRINCIPLES"); and except as otherwise expressly provided herein,
all computations and determinations for purposes of determining compliance
with the financial requirements of this Agreement shall
- 3 -
be made in accordance with such generally accepted accounting principles.
Notwithstanding the foregoing sentence, the financial statements required to
be delivered pursuant to SECTION 5.1.1 shall be prepared in accordance with
generally accepted accounting principles in the United States or Canada, as
applicable, as in effect on the respective dates of their preparation. Where
the Handbook of the Canadian Institute of Chartered Accountants includes a
statement on a method of accounting relating to a Canadian Subsidiary of the
Borrower, such statement shall be regarded as the only generally accepted
accounting principle in effect in Canada applicable to the circumstances that
it covers. Notwithstanding the foregoing, other than for purposes of the
financial statements referenced in SECTIONS 5.1.1(B)(I) and 5.1.1(C)(I), in
all computations of Capital Expenditures, Consolidated Current Assets,
Consolidated Current Liabilities, Consolidated Net Income, Consolidated Net
Loss, Consolidated Net Worth, Consolidated Tangible Net Worth, Total
Consolidated Indebtedness for Borrowed Money and all other "consolidated"
amounts, and in all computations referred to in the third sentence of SECTION
5.1.1(B) and clause (z) of the second sentence of SECTION 5.1.1(C), the
assets, liabilities, income, losses, net worth and other relevant amounts
concerning S-CC and SVCPI shall not be consolidated but shall instead, as
applicable, be excluded or accounted for utilizing the equity method.
ARTICLE II
LOAN PROVISIONS
Section 2.1 LOAN COMMITMENTS.
(a) TERM LOAN. The Borrower and the Term Lenders acknowledge the
making of the Term Loan in accordance with the terms of the Existing Credit
Agreement and agree that the Term Loan shall continue to be outstanding
pursuant to the terms and conditions of this Agreement and the other Loan
Documents.
(b) REVOLVING LOANS. Each Revolving Lender severally, and for
itself alone, agrees, on the terms and subject to the conditions hereinafter
set forth and in reliance upon the representations and warranties set forth
herein and in the other Loan Documents, to continue to make loans to the
Borrower on a revolving basis from time to time from and after the
Restatement Date to, but not including, the Revolver Termination Date, in its
Revolving Loan Pro Rata Share of such aggregate amount as the Borrower may
request, but not exceeding in an aggregate principal amount at any one time
outstanding (giving effect to the contemporaneous application of any
Revolving Loan proceeds to the payment of any L/C Obligations, ▇▇▇▇▇▇▇▇ L/C
Obligations or Swing Line Loans) the applicable Revolving Loan Commitment of
such Revolving Lender at such time MINUS (i) such Revolving Lender's
Revolving Loan Pro Rata Share of the L/C Obligations outstanding at
- 4 -
such time, (ii) such Revolving Lender's Revolving Loan Pro Rata Share of
▇▇▇▇▇▇▇▇ L/C Obligations outstanding at such time and (iii) such Revolving
Lender's Revolving Loan Pro Rata Share of Swing Line Loans outstanding at
such time. The Borrower and the Revolving Lenders acknowledge the making of
the Revolving Loans which are outstanding on the Restatement Date in
accordance with the terms of the Existing Credit Agreement and agree that
such Revolving Loans shall continue to be outstanding pursuant to the terms
and conditions of this Agreement and the other Loan Documents. Prior to the
Revolver Termination Date, Revolving Loans may be repaid and reborrowed by
the Borrower in accordance with the provisions hereof. Notwithstanding the
foregoing, in the event that the Borrower repays Revolving Loans with
proceeds from the Additional Term Loan and/or the issuance or incurrence of
Indebtedness permitted by SECTION 5.2.2(W), the Borrower shall maintain a
Total Available Revolving Commitment in an amount not less than (i) the
aggregate amount of Revolving Loans repaid with proceeds from the Additional
Term Loan and/or the issuance or incurrence of Indebtedness permitted by
SECTION 5.2.2(W) MINUS (ii) the aggregate amount of Revolving Loans incurred
by the Borrower after June 30, 1995, the proceeds of which are used by the
Borrower to repurchase, prepay, redeem or otherwise extinguish any 8-7/8%
Notes, any 12-1/8% Subordinated Debentures or any Indebtedness for Money
Borrowed of the Borrower constituting Senior Indebtedness, in each case as
permitted by SECTION 5.2.10(A)(XIV), until the earlier to occur of (A) the
repurchase, prepayment or conversion in full of all of the 8-7/8% Notes or
(B) the repurchase, prepayment, redemption or other extinguishment of 12-1/8%
Subordinated Debentures and/or Indebtedness for Money Borrowed of the
Borrower constituting Senior Indebtedness in an aggregate amount equal to, if
positive, (1) the aggregate amount of proceeds received by the Borrower from
the Additional Term Loan and the issuance or incurrence of Indebtedness
permitted by SECTION 5.2.2(W) MINUS (2) the aggregate cash consideration paid
by or on behalf of the Borrower to repurchase or prepay the 8-7/8% Notes as
permitted by SECTION 5.2.10(A)(XIV).
(c) ADDITIONAL TERM LOAN. The Borrower and the Additional Lenders
acknowledge the making of the Additional Term Loan in accordance with the
terms of the Existing Credit Agreement and agree that the Additional Term
Loan shall continue to be outstanding pursuant to the terms and conditions of
this Agreement and the other Loan Documents.
(d) SUPPLEMENTAL REVOLVING LOANS. Each Supplemental Revolving
Lender severally, and for itself alone, agrees, on the terms and subject to
the conditions hereinafter set forth and in reliance upon the representations
and warranties set forth herein and in the other Loan Documents, to make
loans to the Borrower on a revolving basis from time to time from and after
the Restatement Date, in its Supplemental Revolving Loan Pro Rata Share of
such aggregate amount as the Borrower may request, but not exceeding in an
aggregate principal amount at any one time outstanding the
- 5 -
applicable Supplemental Revolving Loan Commitment of such Supplemental
Revolving Lender at such time. Prior to the Supplemental Revolver
Termination Date, Supplemental Revolving Loans may be repaid and reborrowed
by the Borrower in accordance with the provisions hereof. Supplemental
Revolving Loans constituting Eurodollar Rate Loans shall only have Interest
Periods of one month during the first ninety (90) days following the
Restatement Date.
(e) D TRANCHE TERM LOAN. Each D Tranche Lender severally, and for
itself alone, hereby agrees, on the terms and subject to the conditions
hereinafter set forth and in reliance upon the representations and warranties
set forth herein and in the other Loan Documents, to make a loan to the
Borrower on the Restatement Date to, but not including, the D Tranche Term
Loan Maturity Date, in an aggregate principal amount equal to the D Tranche
Term Loan Commitment of such Lender. Each D Tranche Lender's D Tranche Term
Loan Commitment shall expire immediately and without further action on the
Restatement Date if the D Tranche Term Loan is not made on the Restatement
Date. The Borrower may only make a Borrowing under the D Tranche Term Loan
Commitments on the Restatement Date. No amount of the D Tranche Term Loan
which is repaid or prepaid by the Borrower may be reborrowed hereunder. The D
Tranche Term Loan shall be a Prime Rate Loan unless and until converted, in
whole or in part, to a Eurodollar Rate Loan pursuant to this Agreement;
PROVIDED, HOWEVER, that D Tranche Term Loans constituting Eurodollar Rate
Loans shall only have Interest Periods of one month during the first ninety
(90) days following the Restatement Date.
Section 2.2 OBLIGATIONS; NOTES
(a) TERM LOAN OBLIGATIONS. The Borrower's obligation to each Term
Lender to repay the principal of, and interest on, the Term Loan made
hereunder shall be evidenced by a promissory note (each a "TERM NOTE" and
collectively the "TERM NOTES") duly executed and delivered by the Borrower
substantially in the form of EXHIBIT 2.2(A) hereto, the terms of which are
incorporated herein by reference in their entirety and made a part hereof and
shall (i) be payable to the order of each Term Lender (except in the case of
a Registered Note which shall be made payable to such Term Lender or
registered assigns) in the amount of such Lender's Term Loan Commitment, (ii)
be dated the Closing Date, (iii) provide that the Term Loan evidenced thereby
shall mature on the Term Loan Maturity Date, (iv) bear interest as provided
in this Agreement and (v) have attached thereto a principal payments schedule
substantially in the form of the Schedule to EXHIBIT 2.2(A). Each Term
Lender shall, and is hereby authorized to, make a notation on the principal
payments schedule of the date and the amount of any principal payments. Such
schedules as maintained by each Term Lender shall, absent manifest error,
constitute PRIMA FACIE evidence of the amount outstanding under the Term
Loan. Notwithstanding the foregoing, the failure to make a notation with
respect to any
- 6 -
principal payment shall not limit or otherwise affect the obligation of the
Borrower hereunder or under any Term Note with respect to the Term Loan and
payments of principal or interest by the Borrower shall not be affected by
the failure by any Term Lender to make a notation thereof on the principal
payments schedule nor shall such failure or error affect any rights of the
Borrower hereunder or under applicable law. Subject to the earlier
acceleration or prepayment of the Term Loan as permitted or required by this
Agreement, the Borrower shall repay the outstanding principal balance of the
Term Loan in semi-annual installments payable to the order of the respective
Term Lenders (according to their Term Loan Pro Rata Shares) on the dates and
in the respective aggregate amounts as follows:
PAYMENT DATE AMOUNT
------------ ------
April 1, 1995 $2,000,000
October 1, 1995 $2,000,000
April 1, 1996 $2,000,000
October 1, 1996 $2,000,000
April 1, 1997 $2,000,000
October 1, 1997 $2,000,000
April 1, 1998 $2,000,000
October 1, 1998 $2,000,000
April 1, 1999 $2,000,000
October 1, 1999 $190,000,000
April 1, 2000 $192,000,000
(b) REVOLVING LOAN OBLIGATIONS. The Borrower's obligations to
each Revolving Lender to repay the principal of, and interest on, all of the
Revolving Loans made by each Revolving Lender hereunder shall be evidenced by
a promissory note (each a "REVOLVING NOTE" and collectively the "REVOLVING
NOTES") duly executed and delivered by the Borrower substantially in the form
of EXHIBIT 2.2(B) hereto, the terms of which are incorporated herein by
reference in their entirety and made a part hereof and shall (i) be payable
to the order of each Revolving Lender in the amount of such Lender's
Revolving Loan Commitment, (ii) be dated the Closing Date, (iii) provide that
each Revolving Loan evidenced thereby shall be repaid on the Revolver
Termination Date as provided herein, (iv) bear interest as provided in this
Agreement and (v) have attached thereto a principal payments schedule
substantially in the form of the Schedule to EXHIBIT 2.2(B). On the Closing
Date and at the time of the making of each Revolving Loan or principal
payment, as the case may be, such Revolving Lender shall, and is hereby
authorized to, make a notation on the principal payments schedule with
respect to such Lender's Revolving Note of the date and the amount of each
Revolving Loan or payment, as the case may be. Such schedule as maintained
by each Revolving Lender shall, absent manifest error, constitute PRIMA FACIE
evidence of the amounts outstanding under the Revolving Loans.
Notwithstanding the foregoing, the failure by any Revolving Lender to make a
notation
- 7 -
with respect to any Revolving Loan shall not limit or otherwise affect the
obligation of the Borrower hereunder or under such Lender's Revolving Note
with respect to such Revolving Loan and payments of principal by the Borrower
shall not be affected by the failure to make a notation thereof on the
principal payments schedule nor shall such failure or error affect any rights
of the Borrower hereunder or under applicable law. Although the Revolving
Notes shall be dated the Closing Date, interest in respect thereof shall be
payable only for the periods during which the Revolving Loans evidenced
thereby are outstanding and although the stated amount of the Revolving Notes
shall be equal to each Revolving Lender's Revolving Loan Commitment, each
Revolving Note shall be enforceable with respect to the Borrower's obligation
to pay the principal amount thereof only to the extent of the unpaid
principal amount of the Revolving Loans at the time evidenced thereby.
Subject to the earlier acceleration or prepayment of the Revolving Loans as
permitted or required by this Agreement, the Borrower shall repay all
Revolving Loans then outstanding on the Revolver Termination Date.
(c) SWING LINE LOAN OBLIGATIONS. The Borrower's obligation to the
Swing Line Lender to repay the principal of, and interest on, all of the
Swing Line Loans made by the Swing Line Lender hereunder shall be evidenced
by a promissory note (the "SWING LINE NOTE") duly executed and delivered by
the Borrower substantially in the form of EXHIBIT 2.2(C) hereto, the terms of
which are incorporated herein by reference in their entirety and made a part
hereof and shall (i) be payable to the order of the Swing Line Lender in the
amount of the Swing Line Commitment, (ii) be dated the Closing Date, (iii)
provide that each Swing Line Loan evidenced thereby shall be repaid as
provided herein, (iv) bear interest as provided in this Agreement and (v)
have attached thereto a principal payments schedule substantially in the form
of the schedule to EXHIBIT 2.2(C). On the Closing Date and at the time of
the making of each Swing Line Loan or principal payment, as the case may be,
the Swing Line Lender shall, and is hereby authorized to, make a notation on
the principal payments schedule to the Swing Line Note of the date and the
amount of each Swing Line Loan or payment, as the case may be. Such schedule
as maintained by the Swing Line Lender shall, absent manifest error,
constitute PRIMA FACIE evidence of the amounts outstanding under the Swing
Line Loans. Notwithstanding the foregoing, the failure by the Swing Line
Lender to make a notation with respect to any Swing Line Loan shall not limit
or otherwise affect the obligation of the Borrower hereunder or under the
Swing Line Lender's Swing Line Note with respect to such Swing Line Loan and
payments of principal by the Borrower shall not be affected by the failure to
make a notation thereof on the principal payments schedule nor shall such
failure or error affect any rights of the Borrower hereunder or under
applicable law. Although the Swing Line Note shall be dated the Closing
Date, interest in respect thereof shall be payable only for the periods
during which the Swing Line Loans evidenced thereby are outstanding and
although the stated amount of the Swing Line Note shall be equal to the Swing
Line Commitment,
- 8 -
the Swing Line Note shall be enforceable with respect to the
Borrower's obligation to pay the principal amount thereof only to
the extent of the unpaid principal amount of the Swing Line Loans
at the time evidenced thereby. Subject to the earlier acceleration
or prepayment of the Swing Line Loans as permitted or required by
this Agreement, the Borrower shall repay all Swing Line Loans
outstanding on the Revolver Termination Date.
(d) ADDITIONAL TERM LOAN OBLIGATIONS. The Borrower's obligation
to each Additional Lender to repay the principal of, and interest on, the
Additional Term Loan made hereunder shall be evidenced by a promissory note
(each an "ADDITIONAL TERM NOTE" and collectively the "ADDITIONAL TERM NOTES")
duly executed and delivered by the Borrower substantially in the form of
EXHIBIT 2.2(D) hereto, the terms of which are incorporated herein by
reference in their entirety and made a part hereof and shall (i) be payable
to the order of each Additional Lender (except in the case of a Registered
Note which shall be made payable to such Additional Lender or registered
assigns) in the amount of such Lender's Additional Term Loan Commitment, (ii)
be dated the First Restatement Date, (iii) provide that the Additional Term
Loan evidenced thereby shall mature on the Additional Term Loan Maturity
Date, (iv) bear interest as provided in this Agreement and (v) have attached
thereto a principal payments schedule substantially in the form of the
Schedule to EXHIBIT 2.2(D). Each Additional Lender shall, and is hereby
authorized to, make a notation on the principal payments schedule of the date
and the amount of any principal payments. Such schedules as maintained by
each Additional Lender shall, absent manifest error, constitute PRIMA FACIE
evidence of the amount outstanding under the Additional Term Loan.
Notwithstanding the foregoing, the failure to make a notation with respect to
any principal payment shall not limit or otherwise affect the obligation of
the Borrower hereunder or under any Additional Term Note with respect to the
Additional Term Loan and payments of principal or interest by the Borrower
shall not be affected by the failure by any Additional Lender to make a
notation thereof on the principal payments schedule nor shall such failure or
error affect any rights of the Borrower hereunder or under applicable law.
Subject to the earlier acceleration or prepayment of the Additional Term Loan
as permitted or required by this Agreement, the Borrower shall repay the
outstanding principal balance of the Additional Term Loan in semi-annual
installments payable to the order of the respective Additional Lenders
(according to their Additional Term Loan Pro Rata Shares) on the dates and in
the respective aggregate amounts as follows:
PAYMENT DATE AMOUNT
------------ ------
April 1, 1996 $1,000,000
October 1, 1996 $1,000,000
April 1, 1997 $1,000,000
October 1, 1997 $1,000,000
April 1, 1998 $1,000,000
- 9 -
October 1, 1998 $1,000,000
April 1, 1999 $1,000,000
October 1, 1999 $1,000,000
April 1, 2000 $1,000,000
October 1, 2000 $1,000,000
April 1, 2001 $1,000,000
October 1, 2001 $1,000,000
April 1, 2002 $1,000,000
October 1, 2002 $1,000,000
April 1, 2003 $93,000,000
October 1, 2003 $93,000,000
(e) SUPPLEMENTAL REVOLVING LOAN OBLIGATIONS. The Borrower's
obligations to each Supplemental Revolving Lender to repay the principal of,
and interest on, all of the Supplemental Revolving Loans made by each
Supplemental Revolving Lender hereunder shall be evidenced by a promissory
note (each a "SUPPLEMENTAL REVOLVING NOTE" and collectively the "SUPPLEMENTAL
REVOLVING NOTES") duly executed and delivered by the Borrower substantially
in the form of EXHIBIT 2.2(E) hereto, the terms of which are incorporated
herein by reference in their entirety and made a part hereof and shall (i) be
payable to the order of each Supplemental Revolving Lender in the amount of
such Lender's Supplemental Revolving Loan Commitment, (ii) be dated the
Restatement Date, (iii) provide that each Supplemental Revolving Loan
evidenced thereby shall be repaid on the Supplemental Revolver Termination
Date as provided herein, (iv) bear interest as provided in this Agreement and
(v) have attached thereto a principal payments schedule substantially in the
form of the Schedule to EXHIBIT 2.2(E). At the time of the making of each
Supplemental Revolving Loan or principal payment, as the case may be, such
Supplemental Revolving Lender shall, and is hereby authorized to, make a
notation on the principal payments schedule with respect to such Lender's
Supplemental Revolving Note of the date and the amount of each Supplemental
Revolving Loan or payment, as the case may be. Such schedule as maintained
by each Supplemental Revolving Lender shall, absent manifest error,
constitute PRIMA FACIE evidence of the amounts outstanding under the
Supplemental Revolving Loans. Notwithstanding the foregoing, the failure by
any Supplemental Revolving Lender to make a notation with respect to any
Supplemental Revolving Loan shall not limit or otherwise affect the
obligation of the Borrower hereunder or under such Lender's Supplemental
Revolving Note with respect to such Supplemental Revolving Loan and payments
of principal by the Borrower shall not be affected by the failure to make a
notation thereof on the principal payments schedule nor shall such failure or
error affect any rights of the Borrower hereunder or under applicable law.
Although the Supplemental Revolving Notes shall be dated the Restatement
Date, interest in respect thereof shall be payable only for the periods
during which the Supplemental Revolving Loans evidenced thereby are
outstanding and although the stated amount of the Supplemental Revolving
Notes shall be equal to each
- 10 -
Supplemental Revolving Lender's Supplemental Revolving Loan
Commitment, each Supplemental Revolving Note shall be enforceable
with respect to the Borrower's obligation to pay the principal
amount thereof only to the extent of the unpaid principal amount of
the Supplemental Revolving Loans at the time evidenced thereby.
Subject to the earlier acceleration or prepayment of the
Supplemental Revolving Loans as permitted or required by this
Agreement, the Borrower shall repay all Supplemental Revolving
Loans then outstanding on the Supplemental Revolver Termination
Date.
(f) D TRANCHE TERM LOAN OBLIGATIONS. The Borrower's
obligation to each D Tranche Lender to repay the principal of, and
interest on, the D Tranche Term Loan made hereunder shall be
evidenced by a promissory note (each a "D TRANCHE TERM NOTE" and
collectively the "D TRANCHE TERM NOTES") duly executed and
delivered by the Borrower substantially in the form of EXHIBIT
2.2(F) hereto, the terms of which are incorporated herein by
reference in their entirety and made a part hereof and shall (i) be
payable to the order of each D Tranche Lender (except in the case
of a Registered Note which shall be made payable to such D Tranche
Lender or registered assigns) in the amount of such Lender's
D Tranche Term Loan Commitment, (ii) be dated the Restatement Date,
(iii) provide that the D Tranche Term Loan evidenced thereby shall
mature on the D Tranche Term Loan Maturity Date, (iv) bear interest
as provided in this Agreement and (v) have attached thereto a
principal payments schedule substantially in the form of the
Schedule to EXHIBIT 2.2(F). Each D Tranche Lender shall, and is
hereby authorized to, make a notation on the principal payments
schedule of the date and the amount of any principal payments.
Such schedules as maintained by each D Tranche Lender shall, absent
manifest error, constitute PRIMA FACIE evidence of the amount
outstanding under the D Tranche Term Loan. Notwithstanding the
foregoing, the failure to make a notation with respect to any
principal payment shall not limit or otherwise affect the
obligation of the Borrower hereunder or under any D Tranche Term
Note with respect to the D Tranche Term Loan and payments of
principal or interest by the Borrower shall not be affected by the
failure by any D Tranche Lender to make a notation thereof on the
principal payments schedule nor shall such failure or error affect
any rights of the Borrower hereunder or under applicable law.
Subject to the earlier acceleration or prepayment of the D Tranche
Term Loan as permitted or required by this Agreement, the Borrower
shall repay the outstanding principal balance of the D Tranche Term
Loan in semi-annual installments payable to the order of the
respective D Tranche Lenders (according to their D Tranche Term
Loan Pro Rata Shares) on the dates and in the respective aggregate
amounts as follows:
Payment Date Amount
--------------- -----------
October 1, 1996 $ 950,000
April 1, 1997 $ 950,000
-11-
October 1, 1997 $ 950,000
April 1, 1998 $ 950,000
October 1, 1998 $ 950,000
April 1, 1999 $ 950,000
October 1, 1999 $ 950,000
April 1, 2000 $ 950,000
October 1, 2000 $ 950,000
April 1, 2001 $ 950,000
October 1, 2001 $ 950,000
April 1, 2002 $ 950,000
October 1, 2002 $ 950,000
April 1, 2003 $88,350,000
October 1, 2003 $89,300,000
Section 2.3 BORROWING OPTIONS. The Term Loan, the
Revolving Loans, the Additional Term Loan, the Supplemental
Revolving Loans and the D Tranche Term Loan shall, at the option of
the Borrower and except as otherwise provided in this Agreement,
consist of (i) Prime Rate Loans, (ii) Eurodollar Rate Loans or
(iii) part Prime Rate Loans and part Eurodollar Rate Loans,
provided that all Loans made pursuant to the same Borrowing shall
be of the same Type. As to any Eurodollar Rate Loan, any Lender
may, if it so elects, fulfill its commitment to make such Loan by
causing a foreign branch or affiliate of such Lender to make or
continue such Loan, provided that in such event such Lender's
Revolving Loan Pro Rata Share, Term Loan Pro Rata Share, Additional
Term Loan Pro Rata Share, Supplemental Revolving Loan Pro Rata
Share or D Tranche Term Loan Pro Rata Share, as the case may be, of
the Loan shall, for purposes of this Agreement, be considered to
have been made by such Lender and the obligation of the Borrower to
repay such Lender's Revolving Loan Pro Rata Share, Term Loan Pro
Rata Share, Additional Term Loan Pro Rata Share, Supplemental
Revolving Loan Pro Rata Share or D Tranche Term Loan Pro Rata
Share, as the case may be, of the Loan shall nevertheless be to
such Lender and shall be deemed held by such Lender for the account
of such branch or affiliate.
Section 2.4 MINIMUM AMOUNT OF EACH BORROWING. The
aggregate principal amount of each Borrowing by the Borrower
hereunder shall be not less than $5 million ($1 million in the case
of Swing Line Loans) and, in each case, if greater, shall be in an
integral multiple of $1 million above such minimum; PROVIDED,
HOWEVER, that (i) any Borrowing consisting of Revolving Loans made
pursuant to SECTION 2.11(C) may be in the amount of the Swing Line
Loan(s) refunded thereby and (ii) such Revolving Loans shall be
Prime Rate Revolving Loans unless and until converted into
Eurodollar Rate Revolving Loans pursuant to the terms of SECTION
2.6.
Section 2.5 NOTICE OF BORROWING. Whenever the
Borrower desires to make a Borrowing hereunder, it shall give the
Agent at its office located at One Bankers Trust Plaza, ▇▇▇ ▇▇▇▇▇▇▇
-▇▇-
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at least one (1) Business Day's
prior written notice (or telephonic notice promptly confirmed in
writing) of each Prime Rate Loan, and at least (3) three Business
Days' prior written notice (or telephonic notice promptly confirmed
in writing) of each Eurodollar Rate Loan, to be made hereunder. In
each case such notice shall be given prior to 1:00 p.m. (New York
City time) on the date specified. Each such notice (a "NOTICE OF
BORROWING"), which shall be in the form of EXHIBIT 2.5 hereto,
shall be irrevocable, shall be deemed a representation by the
Borrower that all conditions precedent to such Borrowing have been
satisfied and shall specify (i) the aggregate principal amount of
the Loans to be made pursuant to such Borrowing, (ii) the date of
Borrowing (which shall be a Business Day) and (iii) whether the
Loans being made pursuant to such Borrowing are to be Prime Rate
Loans or Eurodollar Rate Loans and, with respect to Eurodollar Rate
Loans, the Interest Period to be applicable thereto. The Agent
shall as promptly as practicable give each Revolving Lender and
Supplemental Revolving Lender written notice (or telephonic notice
confirmed in writing) of each proposed Borrowing with respect to
Revolving Loans and Supplemental Revolving Loans, of such Revolving
Lender's Revolving Loan Pro Rata Share thereof, of such
Supplemental Revolving Lender's Supplemental Revolving Loan Pro
Rata Share thereof and of the other matters covered by the Notice
of Borrowing. The Agent shall promptly give the Borrower written
or telephonic notice as to the aggregate principal amount of
Revolving Loans and Supplemental Revolving Loans for each Borrowing
as determined by the Agent pursuant to SECTION 2.17. Without in
any way limiting the Borrower's obligation to confirm in writing
any telephonic notice, the Agent may act without liability upon the
basis of telephonic notice believed by the Agent in good faith to
be from the Borrower prior to receipt of written confirmation, with
the Agent's records being, absent manifest error, conclusive and
binding on all parties hereto.
Section 2.6 CONVERSION OR CONTINUATION. The Borrower
may elect (i) at any time to convert Prime Rate Loans or any
portion thereof to Eurodollar Rate Loans and (ii) at the end of any
Interest Period with respect thereto, to convert Eurodollar Rate
Loans or any portion thereof into Prime Rate Loans or to continue
such Eurodollar Rate Loans or any portion thereof for an additional
Interest Period; PROVIDED, HOWEVER, that the aggregate principal
amount of the Eurodollar Rate Loans for each Interest Period
therefor must be in an aggregate principal amount of $5,000,000 or
an integral multiple of $1,000,000 in excess thereof. Each
conversion or continuation of Term Loans shall be allocated among
the Term Loans of the Term Lenders in accordance with their
respective Term Loan Pro Rata Shares. Each conversion or
continuation of Revolving Loans shall be allocated among the
Revolving Loans of the Revolving Lenders in accordance with their
respective Revolving Loan Pro Rata Shares. Each conversion or
continuation of Additional Term Loans shall be allocated among the
Additional Term Loans of the Additional Lenders in accordance with
their respective Additional Term Loan Pro Rata Shares. Each
-13-
conversion or continuation of Supplemental Revolving Loans shall be
allocated among the Supplemental Revolving Loans of the
Supplemental Revolving Lenders in accordance with their respective
Supplemental Revolving Loan Pro Rata Shares. Each conversion or
continuation of D Tranche Term Loans shall be allocated among the
D Tranche Term Loans of the D Tranche Lenders in accordance with
their respective D Tranche Term Loan Pro Rata Shares. Each such
election shall be in substantially the form of EXHIBIT 2.6 hereto
(a "NOTICE OF CONVERSION OR CONTINUATION") and shall be made by
giving the Agent at least three Business Days' prior written notice
thereof, given not later than 1:00 p.m. (New York City time) on
such third prior Business Day, specifying the amount and type of
conversion or continuation, in the case of a conversion to or a
continuation of Eurodollar Rate Loans, the Interest Period
therefor, and in the case of a conversion, the date of conversion
(which date shall be a Business Day and, if a conversion from
Eurodollar Rate Loans, shall also be the last day of the Interest
Period therefor). The Agent shall promptly notify each Revolving
Lender, Term Lender, Additional Lender, Supplemental Revolving
Lender or D Tranche Lender, as applicable, of its receipt of a
Notice of Conversion or Continuation and of the contents thereof.
Notwithstanding the foregoing, no conversion in whole or in part of
Prime Rate Loans to Eurodollar Rate Loans, and no continuation in
whole or in part of Eurodollar Rate Loans upon the expiration of
any Interest Period therefor, shall be permitted at any time at
which an Unmatured Event of Default or an Event of Default shall
have occurred and be continuing. If, within the time period
required under the terms of this SECTION 2.6, the Agent does not
receive a Notice of Conversion or Continuation from the Borrower
containing a permitted election to continue any Eurodollar Rate
Loans for an additional Interest Period or to convert any such
Loans, then, upon the expiration of the Interest Period therefor,
such Loans will automatically convert to Prime Rate Loans. Each
Notice of Conversion or Continuation shall be irrevocable.
Section 2.7 DISBURSEMENT OF FUNDS. No later than
12:00 noon (New York City time) on the date specified in the
applicable Notice of Borrowing, so long as the Agent has notified
such Lender of such Notice of Borrowing, each Lender will make
available its Revolving Loan Pro Rata Share, Term Loan Pro Rata
Share, Additional Term Loan Pro Rata Share, Supplemental Revolving
Loan Pro Rata Share or D Tranche Term Loan Pro Rata Share, as the
case may be, of the Borrowing requested to be made on such date in
Dollars and in immediately available funds, at the office (the
"PAYMENT OFFICE") of the Agent located at One Bankers Trust Plaza,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (for the account of
such non-U.S. office of the Agent as the Agent may direct in the
case of Eurodollar Rate Loans), and the Agent will promptly make
available to the Borrower at the Payment Office the aggregate of
the amounts so made available by the applicable Lenders. Unless
the Agent shall have been notified by any Lender prior to the date
of a Borrowing that such Lender does not intend to make available
to the Agent such Lender's Revolving Loan Pro Rata Share, Term Loan
-14-
Pro Rata Share, Additional Term Loan Pro Rata Share, Supplemental
Revolving Loan Pro Rata Share or D Tranche Term Loan Pro Rata
Share, as the case may be, of such Borrowing, the Agent may assume
that such Lender has made such amount available to the Agent on
such date of Borrowing and the Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount.
If such corresponding amount is not in fact made available to the
Agent by such Lender on the date of Borrowing, the Agent shall be
entitled to recover such corresponding amount on demand from such
Lender. If such Lender does not pay such corresponding amount
forthwith upon the Agent's demand therefor, the Agent shall
promptly notify the Borrower and the Borrower shall immediately pay
such corresponding amount to the Agent. The Agent shall also be
entitled to recover from the Borrower interest on such
corresponding amount, in respect of each day from the date such
corresponding amount was made available by the Agent to the
Borrower to but excluding the date such corresponding amount is
recovered by the Agent, at a rate per annum equal to the rate
applicable to Prime Rate Loans or Eurodollar Rate Loans, as the
case may be, applicable during the period in question and, upon
payment of such amounts to the Agent, the Borrower shall be
entitled to recover such amounts from such Lender. Any amounts due
hereunder to the Agent from the Lenders which are not paid when due
shall bear interest payable by such Lender, from the date due until
the date paid, at the Federal Funds Rate for the first three days
after the date such amount is due and thereafter at the Prime Rate,
together with the Agent's standard interbank processing fee.
Further, such Lender shall be deemed to have assigned any and all
payments of principal and interest made on its Loans, amounts due
with respect to Letters of Credit (or its participations therein)
and any other amounts due to it hereunder first to the Agent to
fund any outstanding Loans made available on behalf of such Lender
by the Agent pursuant to this SECTION 2.7 until such Loans have
been funded (as a result of such assignment or otherwise) and then
to fund Loans of all Lenders other than such Lender until each
Lender has outstanding Loans equal to its Revolving Loan Pro Rata
Share, Term Loan Pro Rata Share, Additional Term Loan Pro Rata
Share, Supplemental Revolving Loan Pro Rata Share or D Tranche Term
Loan Pro Rata Share, as the case may be, of all Loans (as a result
of such assignment or otherwise). Such Lender shall not have
recourse against the Borrower with respect to any amounts paid to
the Agent or any Lender with respect to the preceding sentence;
PROVIDED, HOWEVER, that such Lender shall have full recourse
against the Borrower to the extent of the amount of such Loans it
has so been deemed to have made. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its Commitment
hereunder or to prejudice any rights which the Borrower may have
against any Lender as a result of any default by such Lender
hereunder.
-15-
Section 2.8 INTEREST.
(a) PRIME RATE REVOLVING LOANS. The Borrower agrees to
pay interest in respect of the unpaid principal amount of each
Prime Rate Revolving Loan from the date the proceeds thereof are
made available to the Borrower (whether pursuant to a new Borrowing
or upon a conversion pursuant to SECTION 2.6) until maturity
(whether by acceleration or otherwise) of such Prime Rate Revolving
Loan or until such Prime Rate Revolving Loan is converted into a
Eurodollar Rate Revolving Loan, at a rate per annum equal to the
Prime Rate in effect from time to time plus a Borrowing Margin of
1-5/8%, as such Borrowing Margin may from time to time be adjusted
pursuant to SECTION 2.9.
(b) EURODOLLAR RATE REVOLVING LOANS. The Borrower
agrees to pay interest in respect of the unpaid principal amount of
each Eurodollar Rate Revolving Loan from the date the proceeds
thereof are made available to the Borrower (whether pursuant to a
new Borrowing or upon a conversion pursuant to SECTION 2.6) until
maturity (whether by acceleration or otherwise) of such Eurodollar
Rate Revolving Loan at a rate per annum equal to the relevant
Eurodollar Rate plus a Borrowing Margin of 2-5/8%, as such
Borrowing Margin may from time to time be adjusted pursuant to
SECTION 2.9.
(c) PRIME RATE TERM LOANS. The Borrower agrees to pay
interest in respect of the unpaid principal amount of each Prime
Rate Term Loan from the date the proceeds thereof are made
available to the Borrower (whether pursuant to a new Borrowing or
upon a conversion pursuant to SECTION 2.6) until maturity (whether
by acceleration or otherwise) of such Prime Rate Term Loan or until
such Prime Rate Term Loan is converted into a Eurodollar Rate Term
Loan, at a rate per annum equal to the Prime Rate in effect from
time to time plus a Borrowing Margin of 2-1/8%.
(d) EURODOLLAR RATE TERM LOANS. The Borrower agrees to
pay interest in respect of the unpaid principal amount of each
Eurodollar Rate Term Loan from the date the proceeds thereof are
made available to the Borrower (whether pursuant to a new Borrowing
or upon a conversion pursuant to SECTION 2.6) until maturity
(whether by acceleration or otherwise) of such Eurodollar Rate Term
Loan at a rate per annum equal to the relevant Eurodollar Rate plus
a Borrowing Margin of 3-1/8%.
(e) SWING LINE LOANS. The Borrower agrees to pay
interest in respect of the unpaid principal amount of each Swing
Line Loan from the date the proceeds thereof are made available to
the Borrower until maturity (whether by acceleration or otherwise)
of such Swing Line Loan or until such Swing Line Loan is converted
to Revolving Loans at a rate per annum equal to the Prime Rate in
effect from time to time plus a Borrowing Margin of 1-5/8%, as such
Borrowing Margin may from time to time be adjusted pursuant to
SECTION 2.9.
-16-
(f) PRIME RATE ADDITIONAL TERM LOANS. The Borrower
agrees to pay interest in respect of the unpaid principal amount of
each Prime Rate Additional Term Loan from the date the proceeds
thereof are made available to the Borrower (whether pursuant to a
new Borrowing or upon a conversion pursuant to SECTION 2.6) until
maturity (whether by acceleration or otherwise) of such Prime Rate
Additional Term Loan or until such Prime Rate Additional Term Loan
is converted into a Eurodollar Rate Additional Term Loan, at a rate
per annum equal to the Prime Rate in effect from time to time plus
a Borrowing Margin of 2-3/8%.
(g) EURODOLLAR RATE ADDITIONAL TERM LOANS. The Borrower
agrees to pay interest in respect of the unpaid principal amount of
each Eurodollar Rate Additional Term Loan from the date the
proceeds thereof are made available to the Borrower (whether
pursuant to a new Borrowing or upon a conversion pursuant to
SECTION 2.6) until maturity (whether by acceleration or otherwise)
of such Eurodollar Rate Additional Term Loan at a rate per annum
equal to the relevant Eurodollar Rate plus a Borrowing Margin of 3-3/8%.
(h) PRIME RATE SUPPLEMENTAL REVOLVING LOANS. The
Borrower agrees to pay interest in respect of the unpaid principal
amount of each Prime Rate Supplemental Revolving Loan from the date
the proceeds thereof are made available to the Borrower (whether
pursuant to a new Borrowing or upon a conversion pursuant to
SECTION 2.6) until maturity (whether by acceleration or otherwise)
of such Prime Rate Supplemental Revolving Loan or until such Prime
Rate Supplemental Revolving Loan is converted into a Eurodollar
Rate Supplemental Revolving Loan, at a rate per annum equal to the
Prime Rate in effect from time to time plus a Borrowing Margin of
1-5/8%, as such Borrowing Margin may from time to time be adjusted
pursuant to SECTION 2.9.
(i) EURODOLLAR RATE SUPPLEMENTAL REVOLVING LOANS. The
Borrower agrees to pay interest in respect of the unpaid principal
amount of each Eurodollar Rate Supplemental Revolving Loan from the
date the proceeds thereof are made available to the Borrower
(whether pursuant to a new Borrowing or upon a conversion pursuant
to SECTION 2.6) until maturity (whether by acceleration or
otherwise) of such Eurodollar Rate Supplemental Revolving Loan at
a rate per annum equal to the relevant Eurodollar Rate plus a
Borrowing Margin of 2-5/8%, as such Borrowing Margin may from time
to time be adjusted pursuant to SECTION 2.9.
(j) PRIME RATE D TRANCHE TERM LOANS. The Borrower
agrees to pay interest in respect of the unpaid principal amount of
each Prime Rate D Tranche Term Loan from the date the proceeds
thereof are made available to the Borrower (whether pursuant to a
new Borrowing or upon a conversion pursuant to SECTION 2.6) until
maturity (whether by acceleration or otherwise) of such Prime Rate
D Tranche Term Loan or until such Prime Rate D Tranche Term Loan is
converted into a Eurodollar Rate D Tranche Term Loan, at a rate per
-17-
annum equal to the Prime Rate in effect from time to time plus a
Borrowing Margin of 2-3/8%.
(k) EURODOLLAR RATE D TRANCHE TERM LOANS. The Borrower
agrees to pay interest in respect of the unpaid principal amount of
each Eurodollar Rate D Tranche Term Loan from the date the proceeds
thereof are made available to the Borrower (whether pursuant to a
new Borrowing or upon a conversion pursuant to SECTION 2.6) until
maturity (whether by acceleration or otherwise) of such Eurodollar
Rate D Tranche Term Loan at a rate per annum equal to the relevant
Eurodollar Rate plus a Borrowing Margin of 3-3/8%.
(l) DEFAULT RATE INTEREST. Overdue principal and (to
the extent permitted by applicable law) overdue interest in respect
of each Loan shall bear interest, payable on demand, after as well
as before judgment, at a rate per annum equal to (i) if such Loan
is a Prime Rate Loan, the Prime Rate plus the applicable Borrowing
Margin set forth in SECTION 2.8(A), (C), (E), (F), (H) OR (J) (as
the same may be adjusted pursuant to SECTION 2.9), as the case may
be, plus 2% per annum or (ii) if such Loan is a Eurodollar Rate
Loan, the Eurodollar Rate then in effect plus the applicable
Borrowing Margin set forth in SECTION 2.8(B), (D), (G), (I) OR (K)
(as the same may be adjusted pursuant to SECTION 2.9), as the case
may be, plus 2% per annum (any such applicable rate of interest in
the foregoing clauses (i) and (ii) being the "DEFAULT RATE").
(m) ACCRUAL AND PAYMENT OF INTEREST. Interest shall
accrue from and including the date of any Borrowing (whether
pursuant to a new Borrowing or upon a conversion pursuant to
SECTION 2.6) to but excluding the date of any repayment thereof.
Interest on Eurodollar Rate Loans shall be payable by the Borrower
in arrears on the last day of each Interest Period and, in the case
of an Interest Period in excess of three months, at intervals of
every three months after the initial date of such Interest Period.
Notwithstanding the above, interest shall be due and payable on any
amount repaid or reborrowed, as the case may be, on the date of
such repayment or reborrowing, as the case may be, and upon final
maturity of such Loan (whether by acceleration or otherwise) and
after such maturity, on demand. Interest on Prime Rate Loans shall
be due and payable quarterly in arrears on the Quarterly Payment
Date of each year, on maturity (whether by acceleration or
otherwise) and after such maturity, on demand. Interest on all
Eurodollar Rate Loans shall be computed on the basis of a year
consisting of 360 days and actual days elapsed. Interest on all
Prime Rate Loans shall be computed on the basis of a year
consisting of 365 or 366 days, as the case may be, and actual days
elapsed.
(n) NOTIFICATION OF RATE. The Agent, upon determining
the Eurodollar Rate for any Interest Period, shall promptly give
the Borrower and the other Lenders written or telephonic notice
thereof. Such determination shall, absent manifest error and
-18-
subject to the provisions of SECTION 2.13, be final, conclusive and
binding upon all parties hereto.
(o) MAXIMUM INTEREST. If any interest payment or other
charge or fee payable hereunder exceeds the maximum amount then
permitted by applicable law, the Borrower shall be obligated to pay
the maximum amount then permitted by applicable law and the
Borrower shall continue to pay the maximum amount from time to time
permitted by applicable law until all such interest payments and
other charges and fees otherwise due hereunder (in the absence of
such restraint imposed by applicable law) have been paid in full.
(p) REFERENCE BANKS. If any Reference Bank shall for
any reason no longer have a Commitment or a Loan, such Reference
Bank shall thereupon cease to be a Reference Bank, and if, as a
result thereof, there shall only be one Reference Bank remaining,
the Borrower and the Agent (after consultation with the Lenders)
shall, by notice to the Lenders, designate another Lender as a
Reference Bank so that there shall at all time be at least two
Reference Banks. Each Reference Bank shall use its best efforts to
furnish quotations of rates to the Agent as contemplated hereby.
If any of the Reference Banks shall be unable or shall otherwise
fail to supply such rates to the Agent upon its request, the rate
of interest shall, subject to the provisions of SECTION 2.13, be
determined on the basis of the quotations of the remaining
Reference Banks.
Section 2.9 INTEREST RATE ADJUSTMENTS.
(a) Subject to SECTION 2.9(B), the Borrowing Margins set
forth in SECTIONS 2.8(A), (B), (E), (H) AND (I) shall be subject to
adjustment pursuant to the terms and conditions set forth on
SCHEDULE 1.1(B) hereto. Subject to SECTION 2.9(B), any such upward
or downward adjustment shall be effective immediately upon receipt
by the Lenders of the officer's certificate delivered pursuant to
SECTION 5.1.1(B) OR (C) which gives rise to such adjustment.
(b) The Borrowing Margin for any Eurodollar Rate
Revolving Loan or any Eurodollar Rate Supplemental Revolving Loan
shall be the Borrowing Margin in effect on the first day of the
Interest Period with respect to such Eurodollar Rate Revolving Loan
or such Eurodollar Rate Supplemental Revolving Loan. The Borrowing
Margin for any Eurodollar Rate Revolving Loan or any Eurodollar
Rate Supplemental Revolving Loan shall not change during the
Interest Period applicable to such Borrowing.
Section 2.10 INTEREST PERIODS. At the time it gives
any Notice of Borrowing or a Notice of Conversion or Continuation
with respect to Eurodollar Rate Loans, the Borrower shall elect, by
giving the Agent written notice, the interest period (each an
"INTEREST PERIOD") applicable to the related Eurodollar Rate
Borrowing, which Interest Period shall, at the option of the
Borrower, be a one, two, three or six month period, provided that:
-19-
(i) the Interest Period for any Eurodollar Rate Loan shall commence
on the date of such Borrowing and each Interest Period occurring
thereafter in respect of a continuation of such Eurodollar Rate
Loan shall commence on the day on which the immediately preceding
Interest Period for such Loan expires; (ii) if any Interest Period
would otherwise expire on a day which is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day,
PROVIDED, HOWEVER, that if any Interest Period in respect of a
Eurodollar Rate Loan would otherwise expire on a day which is not
a Business Day and after which no Business Day occurs in the same
month, such Interest Period shall expire on the immediately
preceding Business Day; (iii) if an Interest Period begins on the
last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the
end of such Interest Period), such Interest Period shall end on the
last Business Day of the first, second, third or sixth, as
applicable, succeeding calendar month; and (iv) no Interest Period
shall extend beyond the Revolver Termination Date for any Revolving
Loans, the Term Loan Maturity Date for the Term Loan, the
Additional Term Loan Maturity Date for the Additional Term Loan the
Supplemental Revolver Termination Date for any Supplemental
Revolving Loans or the D Tranche Term Loan Maturity Date for the D
Tranche Term Loan.
Section 2.11 SWING LINE LOANS.
(a) SWING LINE COMMITMENT. Subject to the terms and
conditions hereof, the Swing Line Lender agrees to make swing line
loans ("SWING LINE LOANS") to the Borrower on any Business Day from
time to time from and after the Closing Date to, but not including,
the Revolver Termination Date in an aggregate principal amount at
any one time outstanding not to exceed $25,000,000; PROVIDED,
HOWEVER, that in no event may the amount of any Borrowing of Swing
Line Loans cause the outstanding Revolving Loans of any Lender
(other than the Swing Line Lender), when added to such Lender's
Revolving Loan Pro Rata Share of the then outstanding Swing Line
Loans, L/C Obligations and ▇▇▇▇▇▇▇▇ L/C Obligations (after giving
effect to the use of proceeds of such Swing Line Loans) to exceed
such Lender's Revolving Loan Commitment. Amounts borrowed by the
Borrower under this SECTION 2.11(a) may be repaid and, to but
excluding the Revolver Termination Date, reborrowed.
(b) PROCEDURE FOR SWING LINE BORROWING. The Swing Line
Loans shall be made and maintained as Prime Rate Loans and,
notwithstanding SECTION 2.6, shall not be entitled to be converted
into Eurodollar Rate Loans. The Borrower shall give the Agent and
the Swing Line Lender irrevocable notice (which notice must be
received by the Agent and the Swing Line Lender prior to 1:00 p.m.,
New York City time), on the requested borrowing date (which shall
be a Business Day) specifying the amount of each requested Swing
Line Loan, which shall be in a minimum amount of $1,000,000 or an
integral multiple thereof. The proceeds of each Swing Line Loan
will then be made available to the Borrower by the Swing Line
-20-
Lender by crediting the account of the Borrower on the books of the
office of the Swing Line Lender specified in SECTION 2.7 with such
proceeds.
(c) REFUNDING OF SWING LINE LOANS. The Swing Line
Lender, at any time in its sole and absolute discretion, may on
behalf of the Borrower (which hereby irrevocably authorizes the
Swing Line Lender to so act on its behalf) request each Revolving
Lender (including the Swing Line Lender) to make a Revolving Loan
in an amount equal to such Revolving Lender's Revolving Loan Pro
Rata Share of the principal amount of the Swing Line Loans (the
"REFUNDED SWING LINE LOANS") outstanding on the date such notice is
given. Unless any of the events described in SECTION 7.1(e) OR
7.1(f) shall have occurred (in which event the procedures of
paragraph (d) of this SECTION 2.11 shall apply) and regardless of
whether the conditions precedent set forth in this Agreement to the
making of a Revolving Loan are then satisfied, each Revolving
Lender shall make the proceeds of its Revolving Loan available to
the Agent at its office specified in SECTION 2.7 prior to 1:00
p.m., New York City time, in funds immediately available on the
Business Day next succeeding the date such notice is given. The
proceeds of such Revolving Loans shall be made immediately
available to the Swing Line Lender and immediately applied to repay
the Refunded Swing Line Loans, and, until converted into Eurodollar
Rate Loans, shall constitute Prime Rate Revolving Loans.
(d) PARTICIPATION IN SWING LINE LOANS. If, prior to the
making of Prime Rate Revolving Loans pursuant to paragraph (c) of
this SECTION 2.11, one of the events described in SECTIONS 7.1(e)
OR 7.1(f) shall have occurred, then, subject to the provisions of
clause (e) below, each Revolving Lender will, on the date such
Revolving Loans were to have been made, purchase from the Swing
Line Lender an undivided participating interest in the Refunded
Swing Line Loan in an amount equal to its Revolving Loan Pro Rata
Share of such Refunded Swing Line Loan. Upon request, each
Revolving Lender will immediately transfer to the Swing Line
Lender, in immediately available funds, the amount of its
participation and upon receipt thereof the Swing Line Lender will
deliver to such Lender a Swing Line Loan Participation Certificate
dated the date of receipt of such funds and in such amount.
(e) OBLIGATIONS UNCONDITIONAL. Each Revolving Lender's
obligation to make Revolving Loans in accordance with clause (c)
above and to purchase participating interests in accordance with
clause (d) above shall be absolute and unconditional and shall not
be affected by any circumstance, including, without limitation, (i)
any set-off, counterclaim, recoupment, defense or other right which
such Lender may have against the Swing Line Lender, the Borrower or
any other Person for any reason whatsoever; (ii) the occurrence or
continuance of any Event of Default or Unmatured Event of Default;
(iii) any adverse change in the condition (financial or otherwise)
of the Borrower or any other Person; (iv) any breach of this
Agreement by the Borrower or any other Person; (v) any inability of
-21-
the Borrower to satisfy the conditions precedent to Borrowing set
forth in this Agreement on the date upon which such participating
interest is to be purchased or (vi) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing. If any Revolving Lender does not make available to the
Swing Line Lender the amount required pursuant to clause (c) or (d)
above, as the case may be, the Swing Line Lender shall be entitled
to recover such amount on demand from such Lender, together with
interest thereon for each day from the date of non-payment until
such amount is paid in full at the Federal Funds Rate for the first
three days and at the Prime Rate thereafter. Notwithstanding the
foregoing provisions of this SECTION 2.11(e), no Revolving Lender
shall be required to make a Revolving Loan to the Borrower for the
purpose of refunding a Swing Line Loan pursuant to clause (c) above
or to purchase a participating interest in a Swing Line Loan
pursuant to clause (d) above if an Event of Default or Unmatured
Event of Default has occurred and is continuing and, prior to the
making by the Swing Line Lender of such Swing Line Loan, the Swing
Line Lender has received written notice from such Revolving Lender
specifying that such Event of Default or Unmatured Event of Default
has occurred and is continuing, describing the nature thereof and
stating that, as a result thereof, such Revolving Lender shall
cease to make such Refunded Swing Line Loans and purchase such
participating interests, as the case may be; PROVIDED, HOWEVER,
that the obligation of such Revolving Lender to make such Refunded
Swing Line Loans and to purchase such participating interests shall
be reinstated upon the earlier to occur of (i) the date upon which
such Revolving Lender notifies the Swing Line Lender that its prior
notice has been withdrawn and (ii) the date upon which the Event of
Default or Unmatured Event of Default specified in such notice no
longer is continuing.
Section 2.12 LETTERS OF CREDIT.
(a) ISSUANCE BY FACING AGENT. Subject to the terms and
conditions hereof and provided that no Event of Default or
Unmatured Event of Default shall have occurred and be continuing,
the Borrower may request, in accordance with this SECTION 2.12,
that the Facing Agent issue on behalf of the Revolving Lenders
Letters of Credit denominated in Dollars for the account of the
Borrower with the face amount of each Letter of Credit in a minimum
amount of $250,000 or such lesser amount as the Facing Agent may
approve; PROVIDED, HOWEVER, that (i) each Letter of Credit shall be
issued in favor of a Permitted Beneficiary; (ii) the Borrower shall
not request the Facing Agent to issue any Letter of Credit if,
after giving effect to such issuance, the sum of the aggregate
Stated Amounts and unreimbursed drawings of the Letters of Credit
then outstanding would exceed $62,000,000 or if the face amount of
such requested Letter of Credit exceeds the Total Available
Revolving Commitment then in effect, and (iii) in no event shall
the Facing Agent issue any Letter of Credit having an expiration
date later than one year from the date of issuance (or in any event
-22-
later than thirty (30) days prior to the Revolver Termination
Date), provided that any such Letter of Credit may be automatically
extended to a date not later than one year from its expiration date
(but in no event later than thirty (30) days prior to the Revolver
Termination Date) on an annual basis upon the satisfaction of the
applicable conditions set forth in SECTIONS 6.2(a),(b) and (d)
hereof with respect to the issuance of any Letter of Credit, which
satisfaction the Facing Agent may require the Borrower to certify
in writing as a condition of any such extension. For each such
automatic extension of a Letter of Credit, the Borrower shall
deliver a written request to the Facing Agent (with a copy to the
Agent) no earlier than 150 days and no later than 120 days prior to
the expiration date thereof. Such request shall affirm that as of
the date thereof the conditions for the issuance of a Letter of
Credit set forth in SECTION 6.2 are satisfied. After receipt by
the Facing Agent of such extension request, each such Letter of
Credit shall be automatically extended under the terms and
conditions provided above. Each request for an issuance of, or an
amendment to, a Letter of Credit shall be in the form of EXHIBIT
2.12 hereto, appropriately completed. The issuance of a Letter of
Credit pursuant to this SECTION 2.12 shall be deemed (A) to be a
Borrowing for purposes of, without limitation, the satisfaction of
the applicable conditions set forth in ARTICLE VI hereof and (B) to
reduce availability under the Revolving Loan Commitments of the
Revolving Lenders (except for purposes of SECTION 3.7 with respect
to the calculation of Revolving Loan Commitment Fees) then in
effect by an amount equal to the sum of the aggregate Stated
Amounts and unreimbursed drawings of such Letter of Credit until
such time as such Letter of Credit is no longer outstanding and any
amounts drawn thereunder have been reimbursed. The Borrower, each
Facing Agent and the Revolving Lenders acknowledge the issuance of
the Letters of Credit which are outstanding on the Restatement Date
in accordance with the terms of the Existing Credit Agreement and
agree that such Letters of Credit shall continue to be outstanding
pursuant to the terms and conditions of this Agreement and the
other Loan Documents.
(b) PARTICIPATION OF REVOLVING LENDERS. Immediately
upon the issuance of each Letter of Credit, each Revolving Lender
shall be deemed to, and hereby agrees to, have irrevocably
purchased from the Facing Agent a participation in such Letter of
Credit and drawings thereunder in an amount equal to such Lender's
Revolving Loan Pro Rata Share of the maximum amount which is or at
any time may become available to be drawn thereunder. The Facing
Agent shall give the Agent written notice of the issuance or
amendment of a Letter of Credit on the date of issuance or
amendment thereof and provide the Agent with a copy of each Letter
of Credit and amendment thereto. The Agent shall give each
Revolving Lender written notice of the issuance and amendment of a
Letter of Credit within five (5) Business Days after each such
Letter of Credit has been issued or amended pursuant to the terms
hereof.
-23-
(c) REQUESTS FOR ISSUANCE. Whenever the Borrower
desires the issuance or extension (other than an automatic
extension) of a Letter of Credit, it shall deliver to the Facing
Agent and the Agent (with a duplicate copy to the Agent's Letter of
Credit department at One Bankers Trust Plaza, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Commercial Loan Division, Standby
L/C Unit, 14th Floor for Standby Letters of Credit and to the
Agent's Global Assets Letter of Credit Division, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Trade Letter of Credit,
12th Floor for Commercial Letters of Credit) a written notice in
the form of EXHIBIT 2.12 hereto no later than 1:00 p.m., (New York
City time) at least five (5) Business Days (or such shorter period
as may be agreed to by the Facing Agent in any particular instance)
in advance of the proposed date of issuance or extension. That
notice shall specify (i) the proposed date of issuance or extension
(which shall be a Business Day), (ii) the type of Letter of Credit,
(iii) the Stated Amount of the Letter of Credit, (iv) the
expiration date of the Letter of Credit, (v) the name and address
of the beneficiary (which shall be a Permitted Beneficiary) and
(vi) such other information as the Facing Agent may reasonably
request. Prior to the date of issuance, the Borrower shall specify
a precise description of the documents and the verbatim text of any
certificate to be presented by the beneficiary which, if presented
by the beneficiary on or prior to the expiration date of the Letter
of Credit, would require the Facing Agent to make payment under the
Letter of Credit; PROVIDED, HOWEVER, that the Facing Agent, in its
sole judgment, may require changes in any such documents and
certificates. In determining whether to pay under any Letter of
Credit, the Facing Agent shall be responsible only to determine
that the documents and certificates required to be delivered under
that Letter of Credit have been delivered and that they comply on
their face with the requirements of that Letter of Credit. In the
event that any terms or conditions of such written notice of
issuance or amendment or any other document delivered in connection
therewith are inconsistent with the terms and conditions of this
Agreement, the terms and conditions of this Agreement shall
control.
(d) REIMBURSEMENT OF DRAWINGS. In the event of any
request for drawing under any Letter of Credit by the beneficiary
thereof, the Facing Agent shall notify the Borrower, the Agent and
the Revolving Lenders prior to the date on which the Facing Agent
intends to honor such drawing, and the Borrower shall reimburse the
Facing Agent on the day on which such drawing is honored in an
amount in same day funds equal to the amount of such drawing,
provided that, anything contained in this Agreement to the contrary
notwithstanding, (i) unless the Borrower shall have notified the
Facing Agent and the Agent prior to 1:00 p.m. (New York City time)
one Business Day prior to such drawing that the Borrower intends to
reimburse the Facing Agent for the amount of such drawing with
funds other than the proceeds of Revolving Loans, the Borrower
shall be deemed to have timely given a Notice of Borrowing to the
Agent requesting the Revolving Lenders to make a Prime Rate
-24-
Revolving Loan on the date on which such drawing is honored in an
amount equal to the amount of such drawing, and (ii) subject to
satisfaction or waiver of the conditions specified in SECTION 6.2,
the Revolving Lenders shall, on the date of such drawing, make a
Prime Rate Revolving Loan in the amount of such drawing, the
proceeds of which shall be made available to the Facing Agent by
the Agent and applied directly by the Facing Agent for the amount
of such drawing; and PROVIDED FURTHER, that, if for any reason,
proceeds of Revolving Loans are not received by the Facing Agent on
such date in an amount equal to the amount of such drawing, the
Borrower shall reimburse the Facing Agent, on the Business Day
immediately following the date of such drawing, in an amount in
same day funds equal to the excess of the amount of such drawing
over the amount of such Revolving Loans, if any, which are so
received, plus accrued interest on such amount at the rate set
forth in SECTION 2.12(f)(iii).
(e) FAILURE TO REIMBURSE. In the event that the
Borrower shall fail to reimburse the Facing Agent as provided in
SECTION 2.12(d) in an amount equal to the amount of any drawing
honored by the Facing Agent under a Letter of Credit issued by it,
the Facing Agent shall promptly notify the Agent and each Revolving
Lender of the unreimbursed amount of such drawing and of such
Lender's respective participation therein. Each Revolving Lender
shall make available to the Agent for distribution to the Facing
Agent an amount equal to its respective participation in same day
funds at the office of the Agent specified in such notice not later
than 1:00 p.m. (New York City time) on the Business Day after the
date notified by the Facing Agent. In the event that any Revolving
Lender fails to make available to the Facing Agent the amount of
such Lender's participation in such Letter of Credit as provided in
this SECTION 2.12(e), the Agent shall be entitled on behalf of the
Facing Agent to recover such amount on demand from the Lender
together with interest at the Federal Funds Rate until three days
after the date on which the Facing Agent gives notice of payment
and at the Prime Rate for each day thereafter until such amount is
paid. Further, such Lender shall be deemed to have assigned any
and all payments made of principal and interest on its Loans,
amounts due with respect to its Letters of Credit and any other
amounts due to it hereunder to the Facing Agent to fund the amount
of any drawn Letter of Credit which such Lender was required to
fund pursuant to this SECTION 2.12(e) until such amount has been
funded (as a result of such assignment or otherwise). The failure
of any Lender to make funds available to the Facing Agent of such
amount shall not relieve any other Lender of its obligation
hereunder to make funds available to the Facing Agent pursuant to
this SECTION 2.12(e). The Agent shall distribute to each
Revolving Lender which has paid all amounts payable by it under
this SECTION 2.12(e) with respect to any Letter of Credit issued by
the Facing Agent such Lender's Revolving Loan Pro Rata Share of all
payments received by the Facing Agent from the Borrower in
reimbursement of drawings honored by the Facing Agent under such
Letter of Credit when such payments are received.
-25-
(f) LETTER OF CREDIT FEES. The Borrower agrees to pay
to the Agent or the Facing Agent, as specified below, the following
amounts with respect to each Letter of Credit issued by the Facing
Agent:
(i) a facing fee to the Facing Agent in an amount
separately agreed to by the Borrower and the Facing
Agent;
(ii) a Letter of Credit fee (the "LETTER OF CREDIT
FEE") per annum to the Agent equal to the greater of (A)
the applicable Borrowing Margin for Eurodollar Rate
Revolving Loans determined pursuant to SECTION 2.8(b) and
SECTION 2.9 as in effect from time to time MINUS one-half
percent (.50%) per annum, and (B) one percent (1.0%) per
annum, of the Stated Amount of such Letter of Credit,
payable quarterly in arrears on April 1, July 1, October
1 and January 1 of each year (or if such day is not a
Business Day, then on and through the immediately
preceding Business Day), on the expiration date and after
the expiration date, on demand, commencing on the first
such day of the issuance of such Letter of Credit, and
calculated on the basis of a 360-day year and the actual
number of days elapsed;
(iii) to the Agent with respect to drawings made
under any such Letter of Credit, interest, payable on
demand, on the amount paid by the Facing Agent in respect
of each such drawing from the date of the drawing through
the date such amount is reimbursed by the Borrower
(including any such reimbursement out of the proceeds of
Revolving Loans pursuant to SECTION 2.1(b)) at a rate
that is at all times equal to 2.0% per annum in excess of
the greatest interest rate otherwise payable under this
Agreement for Prime Rate Loans as then in effect; and
(iv) to the Facing Agent with respect to the
issuance, amendment or transfer of any such Letter of
Credit and each drawing made thereunder, documentary and
processing charges in accordance with the Facing Agent's
standard schedule for such charges in effect at the time
of such issuance, amendment, transfer or drawing, as the
case may be.
Promptly upon receipt by the Agent of any amount
described in clause (ii) or (iii) of this SECTION 2.12(f), the
Agent shall distribute to each Revolving Lender its Revolving Loan
Pro Rata Share of such amount; PROVIDED, HOWEVER, that amounts
described in clause (iii) above that accrue prior to the date upon
which Revolving Lenders are required (x) to fund Prime Rate
Revolving Loans pursuant to SECTION 2.12(d)(ii) or (y) to make
available to the Facing Agent the amount of such Lender's
participation in such Letter of Credit, as the case may be, in
-26-
respect of any unreimbursed drawings under any Letter of Credit may
be retained by the Agent.
(g) REIMBURSEMENT OBLIGATION UNCONDITIONAL. The
obligation of the Borrower to reimburse the Facing Agent for
drawings made under the Letters of Credit issued by the Facing
Agent shall be unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement under all
circumstances including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of any Letter
of Credit;
(ii) the existence of any claim, set-off, defense or
other right which the Borrower may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any
persons or entities for whom any such transferee may be
acting), the Facing Agent or any other Person, whether in
connection with this Agreement, the transactions contemplated
herein or any unrelated transaction (including any underlying
transaction between the Borrower or one of its Subsidiaries
and the beneficiary for which the Letter of Credit was
procured);
(iii) any draft, demand, certificate or any 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;
(iv) payment by the Facing Agent under any Letter of
Credit against presentation of a demand, draft or certificate
or other document which does not comply with the terms of such
Letter of Credit, provided that such payment does not
constitute gross negligence or willful misconduct of the
Facing Agent;
(v) any other circumstance or happening whatsoever
which is similar to any of the foregoing; or
(vi) the fact that an Event of Default shall have
occurred and be continuing.
(h) INCREASED COSTS. If, after the Closing Date, by
reason of (i) any change in applicable law, regulation, rule,
decree or regulatory requirement or any change in the
interpretation or application by any judicial or regulatory
authority of any law, regulation, rule, decree or regulatory
requirement or (ii) compliance by the Facing Agent, the Agent or
any Revolving Lender with any direction, request or requirement
(whether or not having the force of law) of any governmental or
monetary authority including, without limitation, Regulation D:
-27-
(A) the Facing Agent, the Agent or any Revolving Lender
shall be subject to any tax, levy, charge or withholding of
any nature or to any variation thereof or to any penalty with
respect to the maintenance or fulfillment of its
obligations under this SECTION 2.12, whether directly or by
such being imposed on or suffered by the Facing Agent, the
Agent or such Revolving Lender (except for (x) changes in the
rate of tax on, or determined by reference to, the net income
or profits of such Lender imposed by the jurisdiction in which
such Lender's principal office or applicable lending office is
located and (y) United States withholding taxes, which shall
be governed by the provisions of SECTION 3.11);
(B) any reserve, deposit or similar requirement of any
Governmental Authority is or shall be applicable, imposed or
modified in respect of any Letters of Credit issued by the
Facing Agent and participated in by the Revolving Lenders; or
(C) there shall be imposed on the Facing Agent by any
Governmental Authority any other condition regarding any
Letter of Credit issued pursuant to this SECTION 2.12;
and the result of the foregoing is to directly or indirectly
increase the cost to the Facing Agent, the Agent or any Revolving
Lender of issuing, making or maintaining any Letter of Credit, or
to reduce the amount receivable in respect thereof by the Facing
Agent, the Agent or any Revolving Lender, then and in any case the
Agent may, notify the Borrower and the Borrower shall pay on demand
such amounts as the Agent may reasonably specify to be necessary to
compensate the Facing Agent, the Agent or any Revolving Lender for
such additional cost or reduced receipt together with interest on
such amount from the date demanded until payment in full thereof at
a rate equal at all times to the Default Rate. The determination
by the Facing Agent, the Agent or any Revolving Lender of any
amount due pursuant to this SECTION 2.12(h) shall be set forth in
a certificate delivered to the Agent (which certificate the Agent
shall promptly deliver to the Borrower) setting forth the
calculation thereof in reasonable detail, and shall, in the absence
of manifest error, be final, conclusive and binding on all of the
parties hereto.
(i) INDEMNIFICATION. In addition to amounts payable as
elsewhere provided in this SECTION 2.12, the Borrower hereby agrees
to protect, indemnify, pay and hold the Facing Agent, the Agent and
the Revolving Lenders harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees and allocated costs of
internal counsel) which the Facing Agent, the Agent and the
Revolving Lenders may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of or payment of any
drawing under, any Letter of Credit, other than as a result of the
gross negligence or willful misconduct of the Facing Agent, the
Agent or any Revolving Lender as determined by a court of competent
-28-
jurisdiction, or (ii) the failure of the Facing Agent to honor a
drawing under any Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future
DE JURE or DE FACTO government or governmental authority (all such
acts or omissions herein called "GOVERNMENT ACTS").
(j) LETTER OF CREDIT BENEFICIARIES. As between (i) the
Borrower and (ii) the Facing Agent, the Agent and the Revolving
Lenders, the Borrower assumes all risks of the acts and omissions
of, or misuse of the Letters of Credit issued by the Facing Agent
by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, the Facing
Agent shall not be responsible: (A) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and
issuance of such Letters of Credit, even if it should in fact prove
to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (B) for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason; (C) for failure
of any such Letter of Credit to comply fully with conditions
required in order to draw on such Letter of Credit; (D) for errors,
omissions, interruptions or delays in transmission or delivery of
any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (E) for errors in interpretation
of technical terms; (F) for any loss or delay in the transmission
or otherwise of any document required in order to make a drawing
under any such Letter of Credit or of the proceeds thereof; (G) for
the misapplication by the beneficiary of any such Letter of Credit
of the proceeds of any drawing under such Letter of Credit; and
(H) for any consequences arising from causes beyond the control of
the Facing Agent including, without limitation, any Government
Acts, in each case other than as a result of the gross negligence
or willful misconduct of the Facing Agent. None of the above shall
affect, impair, or prevent the vesting of any of the Facing Agent's
rights or powers hereunder.
(k) FACING AGENT. In furtherance and extension and not
in limitation of the specific provisions hereinabove set forth, any
action taken or omitted by the Facing Agent under or in connection
with the Letters of Credit issued by it or the related
certificates, if taken or omitted in good faith and not with gross
negligence or willful misconduct as determined by a court of
competent jurisdiction, shall not put the Facing Agent under any
resulting liability to the Borrower or any Revolving Lender.
(l) NO INDEMNIFICATION FOR CERTAIN ACTS. Notwithstanding
anything to the contrary contained in this SECTION 2.12, the
Borrower shall have no obligation to indemnify the Agent, the
Facing Agent or any Revolving Lender in respect of any liability
incurred by the Agent, the Facing Agent or any Revolving Lender
-29-
arising out of the gross negligence or willful misconduct of the
Agent, the Facing Agent or any Revolving Lender, as determined by
a court of competent jurisdiction, or out of the wrongful dishonor
by the Facing Agent of a proper demand for payment made under the
Letters of Credit issued by it.
Section 2.13 INCREASED COSTS, ILLEGALITY, ETC.
(a) In the event that any Lender shall have determined
(which determination shall, absent manifest error, be final,
conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Agent):
(i) on any Interest Rate Determination Date that, by
reason of any changes arising after the Closing Date affecting
the interbank Eurodollar market, adequate and fair means do
not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Eurodollar Rate; or
(ii) at any time, any Lender shall incur increased costs
or reduction in the amounts received or receivable hereunder
with respect to any Eurodollar Rate Loan because of (x) any
change since the Closing Date, in the case of any Eurodollar
Rate Revolving Loan or Eurodollar Rate Term Loan, since the
First Restatement Date, in the case of any Eurodollar Rate
Additional Term Loan, and since the Restatement Date, in the
case of any Eurodollar Rate Supplemental Revolving Loan or any
Eurodollar Rate D Tranche Term Loan, in any applicable law or
governmental rule, regulation, order, guideline or request
(whether or not having the force of law) or in the
interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation,
order, guideline or request, such as, for example, but not
limited to: (A) a change in the basis of taxation of payments
to any Lender of the principal of or interest on the
Obligations or any other amounts payable hereunder (except for
(a) changes in the rate of tax on, or determined by reference
to, the net income or profits of such Lender imposed by the
jurisdiction in which its principal office or applicable
lending office is located and (b) United States withholding
taxes, which shall be governed by the provisions of SECTION
3.11) or (B) a change in official reserve requirements (but,
in all events, excluding reserves required under Regulation D
to the extent included in the computation of the Eurodollar
Rate) and/or (y) other circumstances since the Closing Date,
in the case of any Revolving Lender or Term Lender, since the
First Restatement Date, in the case of any Additional Lender,
and since the Restatement Date, in the case of any
Supplemental Revolving Lender or any D Tranche Lender,
affecting such Lender or the interbank Eurodollar market or
the position of such Lender in such market (excluding,
however, differences in a Lender's cost of funds from those of
-30-
the Agent which are solely the result of credit differences
between such Lender and the Agent); or
(iii) at any time, that the making or continuance of any
Eurodollar Rate Loan has been made (x) unlawful by any law or
governmental rule, regulation or order, (y) impossible by
compliance by any Lender in good faith with any governmental
request (whether or not having force of law) or (z)
impracticable as a result of a contingency occurring after the
Closing Date, in the case of any Eurodollar Rate Revolving
Loan or Eurodollar Rate Term Loan, since the First Restatement
Date, in the case of any Eurodollar Rate Additional Term Loan,
and since the Restatement Date, in the case of any Eurodollar
Rate Supplemental Revolving Loan or any Eurodollar Rate D
Tranche Term Loan, which materially and adversely affects the
interbank Eurodollar market in general;
then, and in any such event, such Lender (or the Agent, in the case
of clause (i) above) shall promptly give notice (by telephone
confirmed in writing) to the Borrower and, except in the case of
clause (i) above, to the Agent of such determination (which notice
the Agent shall promptly transmit to each of the other Lenders).
Thereafter (x) in the case of clause (i) above, Eurodollar Rate
Loans shall no longer be available until such time as the Agent
notifies the Borrower and the Lenders that the circumstances giving
rise to such notice by the Agent no longer exist, and any Notice of
Borrowing or Notice of Conversion or Continuation given by the
Borrower with respect to Eurodollar Rate Loans which have not yet
been incurred (including by way of conversion) shall be deemed
rescinded by the Borrower, (y) in the case of clause (ii) above,
the Borrower shall pay to such Lender, upon written demand
therefore, such additional amounts (in the form of an increased
rate of, or a different method of calculating, interest or
otherwise as such Lender shall determine) as shall be required to
compensate such Lender for such increased costs or reductions in
amounts received or receivable hereunder (a written notice as to
the additional amounts owed to such Lender, showing the basis for
the calculation thereof in reasonable detail, submitted to the
Borrower by such Lender shall, absent manifest error, be final and
conclusive and binding on all the parties hereto; PROVIDED,
HOWEVER, that the failure to give any such notice (unless the
respective Lender has intentionally withheld or delayed such
notice, in which case the respective Lender shall not be entitled
to receive additional amounts pursuant to this SECTION 2.13(A)(Y)
for periods occurring prior to the 180th day before the giving of
such notice) shall not release or diminish the Borrower's
obligations to pay additional amounts pursuant to this SECTION
2.13(A)(Y), and (z) in the case of clause (iii) above, the Borrower
shall take one of the actions specified in SECTION 2.13(B) as
promptly as possible and, in any event, within the time period
required by law. In determining such additional amounts pursuant
to clause (y) of the immediately preceding sentence, each Lender
shall act reasonably and in good faith and will, to the extent the
-31-
increased costs or reductions in amounts receivable relate to such
Lender's loans in general and are not specifically attributable to
a Loan hereunder, use averaging and attribution methods which are
reasonable and which cover all loans similar to the Loans made by
such Lender whether or not the loan documentation for such other
loans permits the Lender to receive increased costs of the type
described in this SECTION 2.13(A).
(b) At any time that any Eurodollar Rate Loan is
affected by the circumstances described in SECTION 2.13(A)(II) OR
(III), the Borrower may (and in the case of a Eurodollar Rate Loan
affected by the circumstances described in SECTION 2.13(A)(III)
shall) either (i) if the affected Eurodollar Rate Loan is then
being made initially or pursuant to a conversion, by giving the
Agent telephonic notice (confirmed in writing) on the same date
that the Borrower was notified by the affected Lender or the Agent
pursuant to SECTION 2.13(A)(II) OR (III), cancel the respective
Borrowing, or (ii) if the affected Eurodollar Rate Loan is then
outstanding, upon at least three Business Days' written notice to
the Agent, require the affected Lender to convert such Eurodollar
Rate Loan into a Prime Rate Loan, PROVIDED that if more than one
Lender is affected at any time, then all affected Lenders must be
treated the same pursuant to this SECTION 2.13(B).
(c) CAPITAL REQUIREMENTS. If at any time after the
Closing Date, in the case of any Eurodollar Rate Revolving Loan or
Eurodollar Rate Term Loan, after the First Restatement Date, in the
case of any Eurodollar Rate Additional Term Loan, and after the
Restatement Date, in the case of any Eurodollar Rate Supplemental
Revolving Loan or any Eurodollar Rate D Tranche Term Loan, any
Lender determines that the introduction of or any change in any
applicable law or governmental rule, regulation, order, guideline
or request (whether or not having the force of law) concerning
capital adequacy, or any change in interpretation or administration
thereof by any Governmental Authority, central bank or comparable
agency, will have the effect of increasing the amount of capital
required or expected to be maintained by such Lender or any
corporation controlling such Lender based on the existence of such
Lender's Commitments or Loans hereunder or its obligations
hereunder, then the Borrower shall pay to such Lender, upon its
written demand therefor, such additional amounts as shall be
required to compensate such Lender or such other corporation for
the increased cost to such Lender or such other corporation or the
reduction in the rate of return to such Lender or such other
corporation as a result of such increase of capital. In
determining such additional amounts, each Lender will act
reasonably and in good faith and will use averaging and attribution
methods which are reasonable and which will, to the extent the
increased costs or reduction in the rate of return relates to such
Lender's commitments or obligations in general and are not
specifically attributable to the Commitments, Loans and obligations
hereunder, cover all commitments and obligations similar to the
Commitments, Loans and obligations of such Lender hereunder
-32-
whether or not the loan documentation for such other commitments or
obligations permits the Lender to make the determination specified
in this SECTION 2.13(C), and such Lender's determination of
compensation owing under this SECTION 2.13(C) shall, absent
manifest error, be final, conclusive and binding on all the parties
hereto. Each Lender, upon determining that any additional amounts
will be payable pursuant to this SECTION 2.13(C), will give prompt
written notice thereof to the Agent and the Borrower, which notice
shall show the basis for calculation of such additional amounts in
reasonable detail, although the failure to give any such notice
(unless the respective Lender has intentionally withheld or delayed
such notice, in which case the respective Lender shall not be
entitled to receive additional amounts pursuant to this SECTION
2.13(C) for periods occurring prior to the 180th day before the
giving of such notice) shall not release or diminish any of the
Borrower's obligations to pay additional amounts pursuant to this
SECTION 2.13(C). The obligations of the Borrower under this
SECTION 2.13(C) shall survive payment in full of the Obligations
and termination of this Agreement.
Section 2.14 REPLACEMENT OF AFFECTED LENDERS. If any
Lender is owed increased costs under SECTION 2.13(A)(II) OR (III),
SECTION 2.13(C), SECTION 2.12(H) or SECTION 3.11 materially in
excess of those of the other Lenders, the Borrower shall have the
right, if no Unmatured Event of Default or Event of Default then
exists, to replace such Lender (the "REPLACED LENDER") with one or
more other Eligible Assignee or Assignees (collectively, the
"REPLACEMENT LENDER") reasonably acceptable to the Agent, PROVIDED
that (i) at the time of any replacement pursuant to this SECTION
2.14, the Replacement Lender shall enter into one or more
Assignment Agreements pursuant to which the Replacement Lender
shall acquire all of the Commitments and outstanding Loans of, and
participation in Letters of Credit and Swing Line Loans by, the
Replaced Lender and all rights and obligations under any
participation agreements to which the Replaced Lender is a party
with respect to the L/C Agreement, and (ii) all obligations of the
Borrower owing to the Replaced Lender (including, without
limitation, such increased costs and excluding those specifically
described in clause (i) above in respect of which the assignment
purchase price has been, or is concurrently being paid) shall be
paid in full to such Replaced Lender concurrently with such
replacement. Upon the execution of the respective assignment
documentation and the payment of amounts referred to in clauses (i)
and (ii) above, the Replacement Lender shall become a Lender
hereunder and the Replaced Lender shall be released from its
obligations under the Loan Documents and shall cease to constitute
a Lender hereunder, except with respect to indemnification
provisions under this Agreement, which shall survive as to such
Replaced Lender. Notwithstanding anything to the contrary
contained above, neither the Facing Agent nor the Swing Line Lender
may be replaced hereunder at any time while it has Letters of
Credit or Swing Line Loans, respectively, outstanding hereunder
unless arrangements satisfactory to the Facing Agent or Swing Line
-33-
Lender (including the furnishing of a standby letter of credit in
form and substance, and issued by an issuer satisfactory to the
Facing Agent or the furnishing of collateral of a kind, in amounts
and pursuant to arrangements satisfactory to the Facing Agent) have
been made with respect to such outstanding Letters of Credit or
Swing Line Loans.
Section 2.15 CHANGE OF LENDING OFFICE. Each Lender
agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Eurodollar Rate
Loans affected by the matters or circumstances described in SECTION
2.13 to reduce the liability of the Borrower or avoid the results
described thereunder, so long as such designation is not
financially disadvantageous to such Lender as determined by such
Lender in its sole discretion and will not result in the imposition
upon the Borrower of an increased liability for Taxes pursuant to
SECTION 2.13(A) OR 3.11(A).
Section 2.16 FUNDING LOSSES. The Borrower shall compensate each
Lender, upon its written request (which request shall set forth the basis for
requesting such amounts in reasonable detail and which request shall, absent
manifest error, be final, conclusive and binding upon all of the parties
hereto), for all losses, expenses and liabilities (including, without
limitation, any interest paid by such Lender to lenders of funds borrowed by
it to make or carry its Eurodollar Rate Loans to the extent not recovered by
such Lender in connection with the liquidation or re-employment of such funds
and including the compensation payable by such Lender to a Person to which
the Lender has participated all or a portion of such Borrowing) and any loss
sustained by such Lender in connection with the good faith liquidation or
good faith re-employment of such funds (including, without limitation, a
return on such liquidation or re-employment that would result in such Lender
receiving less than it would have received had such Eurodollar Rate Loan
remained outstanding until the last day of the Interest Period applicable to
such Eurodollar Rate Loans) which the Lender may sustain as a result of: (i)
for any reason (other than a default by such Lender or the Agent) a Borrowing
of, or conversion from or into or continuation of, Eurodollar Rate Loans does
not occur on a date specified therefor in a Notice of Borrowing or Notice of
Conversion or Continuation (whether or not withdrawn); (ii) any payment,
prepayment or conversion or continuation of any of its Eurodollar Rate Loans
occurring for any reason whatsoever on a date which is not the last day of an
Interest Period applicable thereto; (iii) any repayment of any of its
Eurodollar Rate Loans not being made on the date specified in a notice of
payment given by the Borrower; or (iv) (A) any other failure by the Borrower
to repay its Eurodollar Rate Loans when required by the terms of this
Agreement or (B) an election made by the Borrower pursuant to SECTION 2.14.
A written notice as to additional amounts owed such Lender under this SECTION
2.16 and delivered to the Borrower and the Agent by such Lender shall,
-34-
absent manifest error, be final, conclusive and binding for all
purposes.
Section 2.17 PRO RATA BORROWINGS. All Borrowings of
Term Loans, Additional Term Loans, Revolving Loans, Supplemental
Revolving Loans and D Tranche Term Loans under this Agreement shall
be loaned by the Term Lenders, Additional Lenders, Revolving
Lenders, Supplemental Revolving Lenders and D Tranche Lenders,
respectively, pro rata on the basis of their respective Term Loan
Pro Rata Shares, Additional Term Loan Pro Rata Shares, Revolving
Loan Pro Rata Shares, Supplemental Revolving Loan Pro Rata Shares
and D Tranche Term Loan Pro Rata Shares, as the case may be. No
Lender shall be responsible for any default by any other Lender in
its obligation to make Loans hereunder and each Lender shall be
obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to fulfill its
Commitment hereunder. Except with respect to the initial Borrowing
of Supplemental Revolving Loans, if any, which may be made on the
Restatement Date pursuant to SECTION 6.3(K) and with respect to any
borrowings of Revolving Loans for the purpose of repayment of Swing
Line Loans pursuant to SECTION 2.11(C), all Borrowings of Revolving
Loans and Supplemental Revolving Loans shall be made on a
proportionate basis such that after giving effect to such
Borrowings and any proposed repayment of any Obligations to be made
on the proposed borrowing date of which the Borrower has notified
the Agent, the Revolving Loan Availability Ratio and the
Supplemental Revolving Loan Availability Ratio are equalized as
nearly as possible. Upon receipt of a Notice of Borrowing, the
Agent shall determine such proportionate amounts of Revolving Loans
and Supplemental Revolving Loans to be borrowed and shall notify
the Revolving Lenders, Supplemental Revolving Lenders and the
Borrower as provided in SECTION 2.5. The determination by the
Agent shall be made at the time it receives a Notice of Borrowing,
based on the information the Borrower has provided to the Agent at
the time it delivers such Notice of Borrowing with respect to
anticipated repayments of Obligations, and shall be final,
conclusive and binding on all parties hereto.
Section 2.18 ▇▇▇▇▇▇▇▇ LETTERS OF CREDIT. The Agent
acknowledges that it has caused the expiration date of the ▇▇▇▇▇▇▇▇
Letters of Credit to be extended to the Revolver Termination Date
as contemplated in Section 3 of each of the L/C Agreement
amendments executed by Gelco Corporation and Westinghouse Electric
Corporation as of the Closing Date.
-35-
ARTICLE III
TERMINATION OF COMMITMENTS, PREPAYMENTS AND FEES
Section 3.1 MANDATORY REVOLVING LOAN, SUPPLEMENTAL
REVOLVING LOAN AND SWING LINE LOAN PREPAYMENTS AND COMMITMENT
REDUCTIONS.
(a) If at any time the sum of (i) the aggregate
principal amount of all Revolving Loans and Swing Line Loans
outstanding PLUS (ii) the aggregate amount of L/C Obligations and
▇▇▇▇▇▇▇▇ L/C Obligations outstanding exceeds the aggregate of the
Revolving Loan Commitments of the Revolving Lenders then in effect,
the Borrower shall immediately prepay the Revolving Loan
Obligations in an aggregate principal amount equal to such excess
together with any accrued but unpaid interest with respect to such
excess. If at any time the aggregate principal amount of all Swing
Line Loans outstanding exceeds the Swing Line Commitment of the
Swing Line Lender then in effect, the Borrower shall immediately
prepay the Swing Line Loan Obligations in an aggregate principal
amount equal to such excess together with any accrued but unpaid
interest with respect to such excess. If at any time the aggregate
principal amount of all Supplemental Revolving Loans outstanding
for all Supplemental Revolving Lenders exceeds the aggregate of the
Supplemental Revolving Loan Commitments of the Supplemental
Revolving Lenders then in effect, the Borrower shall immediately
prepay the Supplemental Revolving Loan Obligations in an aggregate
principal amount equal to such excess together with any accrued but
unpaid interest with respect to such excess.
(b) If an Event of Default shall have occurred and the
Agent shall have notified the Borrower of the election of the
Required Lenders to take any action specified in SECTION 7.2, the
Revolving Loan Commitment of each Revolving Lender, the Swing Line
Commitment of the Swing Line Lender and the Supplemental Revolving
Loan Commitment of each Supplemental Revolving Lender shall,
subject to reinstatement pursuant to SECTION 7.2, be automatically
reduced to $0 without any action on the part of or the giving of
notice to the Borrower by any Lender.
Section 3.2 VOLUNTARY PREPAYMENTS.
(a) The Borrower may repay Revolving Loans, Terms Loans,
Additional Term Loans, Swing Line Loans, Supplemental Revolving
Loans and D Tranche Term Loans in whole at any time or in part from
time to time, without penalty or premium (except as provided in
SECTION 3.2(B)), on the following terms and conditions: (i) the
Borrower shall give the Agent written notice (or telephonic notice
promptly confirmed in writing) of its intent to prepay the Loans,
the amount of such prepayment and, in the case of Eurodollar Rate
Loans, the specific Borrowing or Borrowings pursuant to which made,
which notice shall be given by Borrower at least one Business Day
prior to the date of such prepayment (or by 11:00 a.m. (New York
-36-
City time) on the date of prepayment in the case of a prepayment of
Swing Line Loans) and which notice shall promptly be transmitted by
the Agent to each of the Lenders; (ii) each partial prepayment of
any Borrowing (other than a Borrowing of Swing Line Loans) shall be
in an aggregate principal amount of at least $5,000,000 and in
integral multiples of $1,000,000 above such minimum and each
partial prepayment of a Swing Line Loan shall be an aggregate
principal amount of at least $1,000,000 and in integral multiples
of $1,000,000 above such minimum, provided that no partial
prepayment of Eurodollar Rate Loans made pursuant to a single
Borrowing under the Term Loan, the Additional Term Loan, the
Revolving Loan, the Supplemental Revolving Loan or the D Tranche
Term Loan shall reduce the outstanding Loans made pursuant to such
Borrowing to an amount less than the minimum borrowing amount as
set forth in SECTION 2.4; (iii) any repayment of a Eurodollar Rate
Loan on a day other than the last day of an Interest Period
applicable thereto shall be subject to the provisions of SECTION
2.16; (iv) except as otherwise provided in SECTION 3.6(F), any
voluntary prepayment of the Term Loan, Additional Term Loan and D
Tranche Term Loan must be made on a proportionate basis based on
the respective aggregate outstanding principal amounts of such
Loans, provided that prior to September 30, 1997, any prepayment of
the Term Loan and Additional Term Loan may be made on a
proportionate basis based solely on the respective aggregate
outstanding principal amounts of such Loans and without making any
proportionate prepayment of the D Tranche Term Loan; (v)
prepayments of Revolving Loans, Supplemental Revolving Loans, Term
Loans, Additional Term Loans and D Tranche Term Loans shall be
applied pro rata among the Revolving Lenders, Supplemental
Revolving Lenders, Term Lenders, Additional Lenders and D Tranche
Lenders, respectively, based on their respective Revolving Loan Pro
Rata Shares, Supplemental Revolving Loan Pro Rata Shares, Term Loan
Pro Rata Shares, Additional Term Loan Pro Rata Shares and D Tranche
Term Loan Pro Rata Shares, as the case may be; (vi) in the case of
a voluntary prepayment of the Term Loans, Additional Term Loans and
D Tranche Term Loans as to which the Borrower requests a waiver
pursuant to SECTION 3.6(F), the notice of prepayment shall be given
at least ten (10) Business Days prior to the date of such proposed
prepayment and shall, subject to SECTION 3.6(F), be irrevocable;
(vii) all prepayments of D Tranche Term Loans shall be subject to
SECTION 3.2(B); and (viii) voluntary repayments of Revolving Loans
and Supplemental Revolving Loans shall be made in conjunction with
one another such that after giving effect to such repayments and
any other proposed repayments of Obligations to be made on the
proposed repayment date of which the Borrower has notified the
Agent, the Revolving Loan Availability Ratio and the Supplemental
Revolving Loan Availability Ratio are equalized as nearly as
possible, provided that, prior to any acceleration of the
Obligations pursuant to SECTION 7.2, the Agent shall apply
repayments without regard to such ratios to repay Eurodollar Rate
Loans coming due to the extent necessary to avoid or minimize
breakage costs and expenses imposed under SECTION 2.16. Upon
receipt by the Agent of any notice provided by the Borrower to
-37-
voluntarily repay any Revolving Loans and Supplemental Revolving
Loans, the Agent shall determine the relative amounts of Revolving
Loans and/or Swing Line Loans to be repaid and shall notify the
Borrower as to such amounts. The determination by the Agent shall
be made at the time it receives a notice of a proposed repayment of
Revolving Loans and/or Supplemental Revolving Loans, based on the
information the Borrower has provided to the Agent at the time it
receives such notice with respect to anticipated repayments of
Obligations, and shall be final, conclusive and binding on all
parties hereto. The notice provisions, the provisions with respect
to the minimum amount of any prepayment and the provisions
requiring prepayments in integral multiples above such minimum
amount of this SECTION 3.2 are for the benefit of the Agent and may
be waived unilaterally by the Agent.
(b) In the event that the Borrower voluntarily prepays
all or any portion of the D Tranche Term Loan pursuant to SECTION
3.2(A) on or prior to September 30, 1997, the Borrower shall,
together with any such prepayment, pay to the Agent for pro rata
distribution to the D Tranche Lenders based on their respective D
Tranche Term Loan Pro Rata Shares, a prepayment fee as additional
compensation, and not as a penalty, equal to (i) one percent (1.0%)
of the principal amount of D Tranche Term Loans repaid during the
period from the Restatement Date to and including March 31, 1997
and (ii) one-half of one percent (.50%) of the principal amount of
D Tranche Term Loans repaid during the period from April 1, 1997 to
and including September 30, 1997.
Section 3.3 VOLUNTARY COMMITMENT REDUCTIONS. After
the Restatement Date, the Borrower shall have the right, upon at
least five (5) Business Days' prior written notice to the Agent and
the Revolving Lenders, in the case of any reduction in the
Revolving Loan Commitments, and the Supplemental Revolving Lenders,
in the case of any reduction in the Supplemental Revolving Loan
Commitments, given prior to 10:00 a.m. (New York City time) on the
fifth Business Day preceding the proposed reduction date, without
premium or penalty, to permanently reduce or terminate the
unutilized portion of the aggregate of the Total Revolving Loan
Commitments or Total Supplemental Revolving Loan Commitments in
whole at any time or in part from time to time, in a minimum
aggregate amount of $5,000,000 (unless the Total Revolving Loan
Commitments or Total Supplemental Revolving Loan Commitments, as
the case may be, at such time is less than $10,000,000, in which
case, in an amount equal to the Total Revolving Loan Commitments or
Total Supplemental Revolving Loan Commitments at such time) and, if
such reduction is greater than $5,000,000, in integral multiples of
$1,000,000 above such minimum; PROVIDED, HOWEVER, that (i) no such
reduction or termination of the Revolving Loan Commitments shall be
permitted if, after giving effect thereto and to any prepayment or
payment of the Revolving Loans and Swing Line Loans on the proposed
reduction date, the then outstanding aggregate principal amount of
Revolving Loans and Swing Line Loans plus the then aggregate amount
of L/C Obligations and ▇▇▇▇▇▇▇▇ L/C Obligations outstanding would
-38-
exceed the aggregate Revolving Loan Commitments of the Revolving
Lenders then in effect, (ii) no such reduction or termination of
the Supplemental Revolving Loan Commitments shall be permitted if,
after giving effect thereto and to any prepayment or payment of the
Supplemental Revolving Loans on the proposed reduction date, the
aggregate principal amount of Supplemental Revolving Loans
outstanding for all Supplemental Revolving Lenders would exceed the
aggregate Supplemental Revolving Loan Commitments of the
Supplemental Revolving Lenders then in effect, and (iii) all
prepayments of Eurodollar Rate Loans shall be subject to SECTION
2.16. Any such reduction of the Total Revolving Loan Commitments
and the Total Supplemental Revolving Loan Commitments shall be made
in conjunction with one another on a proportionate basis (with the
$5,000,000 minimum amount specified in the preceding sentence
applying to the aggregate amount of Revolving Loan Commitments and
Supplemental Revolving Loan Commitments being reduced) and any such
reduction shall apply proportionately to the Revolving Loan
Commitments of the Revolving Lenders and the Supplemental Revolving
Loan Commitments of the Supplemental Revolving Lenders based on
such Lender's Revolving Loan Pro Rata Share or Supplemental
Revolving Loan Pro Rata Share, as applicable. Simultaneously with
each reduction or termination of the Revolving Loan Commitments,
the Borrower shall pay to the Agent for the account of each
Revolving Lender the Revolving Loan Commitment Fee accrued on the
amount of the Revolving Loan Commitments so reduced or terminated
through the date thereof. Simultaneously with each reduction or
termination of the Supplemental Revolving Loan Commitments, the
Borrower shall pay to the Agent for the account of each
Supplemental Revolving Lender the Supplemental Revolving Loan
Commitment Fee accrued on the amount of the Supplemental Revolving
Loan Commitments so reduced or terminated through the date thereof.
Any reduction in the Revolving Loan Commitment of the Swing Line
Lender below $25,000,000 shall, without any further action on the
part of the Borrower, cause a dollar for dollar reduction in the
Swing Line Commitment of the Swing Line Lender. Notwithstanding
the foregoing, the Borrower shall not be entitled to terminate the
Total Revolving Loan Commitment in full unless, concurrently
therewith, the Borrower terminates the ▇▇▇▇▇▇▇▇ Letters of Credit
(whether by obtaining a replacement letter of credit therefor,
repaying the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or otherwise) such that no ▇▇▇▇▇▇▇▇ L/C
Obligations remain outstanding.
Section 3.4 MANDATORY PREPAYMENTS. Subject in each
case to the provisions of SECTION 3.5:
(a) PREPAYMENTS FROM EXCESS CASH FLOW. Within five (5)
Business Days after the delivery to the Agent of any Excess Cash
Flow Schedule pursuant to SECTION 5.1.1(B) or 5.1.1(C), beginning
with the Excess Cash Flow Schedule delivered in 1996 with respect
to the Fiscal Quarter ending June 30, 1996, the Borrower shall (i)
with respect to Excess Cash Flow reported for the Fiscal Quarters
ending June 30, 1996 to and including September 30, 1997, prepay
the Term Loan and the Additional Term Loan and (ii) with respect to
-39-
Excess Cash Flow reported for all Fiscal Quarters ending after
September 30, 1997, prepay the Term Loan, the Additional Term Loan
and the D Tranche Term Loan, in each case in accordance with
SECTION 3.6 if the Excess Cash Flow disclosed on such Excess Cash
Flow Schedule with respect to the preceding Fiscal Quarter is
positive (but excluding the first $37,500,000 of positive Excess
Cash Flow in the last three Fiscal Quarters in Fiscal Year 1996
and, thereafter, excluding the first $50,000,000 of positive Excess
Cash Flow in any Fiscal Year). Any mandatory prepayment pursuant
to this SECTION 3.4(a) shall, subject to SECTION 3.6(f), be in an
amount equal to (A)(1) the amount of such positive Excess Cash Flow
(but excluding the first $37,500,000 of positive Excess Cash Flow
in the last three Fiscal Quarters in Fiscal Year 1996 and,
thereafter, excluding the first $50,000,000 of positive Excess Cash
Flow in any Fiscal Year) MULTIPLIED BY (2) 50% or such lesser
Excess Cash Flow Percentage as may be in effect at such time, less
(B) the amount of any voluntary prepayment of the Term Loan, the
Additional Term Loan and the D Tranche Term Loan made during the
Fiscal Quarter in which such Excess Cash Flow is generated;
PROVIDED, HOWEVER, that solely with respect to the calculation of
any mandatory prepayment pursuant to this SECTION 3.4(a) for the
Fiscal Quarters ending June 30, 1996 to and including September 30,
1997, the portion of Excess Cash Flow that would have been
allocated to prepay the D Tranche Term Loan if the D Tranche Term
Loan were required to be prepaid together with the Term Loan and
the Additional Term Loan shall be deemed to be Waived Proceeds.
The Borrower and the Term Lenders acknowledge the waiver,
pursuant to SECTION 3.6(f) of the Existing Credit Agreement, by the
Term Lenders of their right to receive mandatory prepayments of the
Term Loan that would otherwise have become due under SECTION 3.4(a)
of the Existing Credit Agreement with respect to Excess Cash Flow
for the Fiscal Quarters ending June 30, 1995 through and including
March 31, 1996, all pursuant to the terms and conditions of Section
3 of that certain Third Amendment of Credit Agreement and Waiver
Request dated as of June 30, 1995 by and among the Borrower, the
Agent, the Co-Agents and the Existing Lenders. The Borrower, the
Agent, the Co-Agents and the Lenders hereby agree that upon the
funding of the Additional Term Loan the amount of waived Excess
Cash Flow prepayments equal to the sum of (a) the product of (i)
the amount of positive Excess Cash Flow in such Fiscal Quarters
(but excluding the first $50,000,000 of positive Excess Cash Flow
in such Fiscal Quarters) MULTIPLIED BY (ii) 50%, MINUS (b) the
amount of any voluntary prepayments of the Term Loan made during
such Fiscal Quarters may be used for Permitted Uses (including
Permitted Uses described in clauses (ii) and (iii) of the
definition of "Permitted Uses").
(b) PREPAYMENTS FROM INCURRENCE OF INDEBTEDNESS. If the
Borrower or any Wholly-Owned Subsidiary of the Borrower receives
any proceeds (whether in cash or marketable securities)
attributable to the issuance and sale or other disposition of any
Indebtedness for Money Borrowed described in clause (i) of the
-40-
definition of Indebtedness for Money Borrowed of the Borrower or
any Wholly-Owned Subsidiary of the Borrower or any rights to
acquire any such Indebtedness for Money Borrowed described in
clause (i) of the definition of Indebtedness for Money Borrowed
(other than (i) Indebtedness permitted by SECTIONS 5.2.2(a)-(f),
(h)-(k), (m)-(o) AND (q)-(w) and SECTION 5.2.2(x)(ii), (ii)
proceeds received by a Person which cannot be remitted to the
Borrower or a Subsidiary of the Borrower as a result of any legal
or contractual restriction applicable to such Person existing on
the Closing Date and identified on SCHEDULE 3.4 hereto and any
legal or contractual restriction contained in any Indebtedness
which refinances any Indebtedness referenced on SCHEDULE 3.4
provided that the terms thereof are no more onerous to the Borrower
or any Subsidiary than those existing on the Closing Date, (iii)
Indebtedness permitted by SECTION 5.2.2(p) which is not by the
terms of such Section required to be used to prepay the Loans),
then the Borrower shall prepay the Term Loan, the Additional Term
Loan and the D Tranche Term Loan promptly (but in any event within
five Business Days after receipt of such proceeds) to the extent of
all of such proceeds from debt or debt securities (net of any costs
or expenses incurred in connection with the issuance or sale or
other disposition thereof).
(c) PREPAYMENTS FROM ASSET SALES. If the Borrower or
any Wholly-Owned Subsidiary of the Borrower receives any Material
Sale Proceeds, then the Borrower shall prepay the Obligations, to
the extent of such proceeds, promptly (but in any event within five
Business Days) after the first date on which such Persons have
received Material Sale Proceeds totaling an aggregate amount of $5
million or more and within five Business Days after each date
thereafter when such Persons have received additional Material Sale
Proceeds totaling an aggregate of $5 million or more; PROVIDED,
HOWEVER, that during the pendency of an Event of Default all
Material Sales Proceeds shall be payable upon the demand of the
Agent. "MATERIAL SALE PROCEEDS" means, without duplication, (i)
the cash or cash equivalent proceeds or marketable securities
resulting from the sale or other disposition (including, without
limitation, by a sale-leaseback transaction) of (A) assets or other
tangible or intangible property or rights ("ASSETS") not
constituting CP&L Property, Collateral or Mortgaged Property
(unless Substitute Collateral has been provided pursuant to SECTION
9.13(c)) and having an aggregate fair market value in excess of $1
million for each separate transaction or series of related
transactions involving the same seller or (B) any Collateral or
Mortgaged Property (and including any Net Awards and Net Proceeds
required to be paid to the Agent pursuant to the terms of the
Mortgages), LESS (ii) the amount of income taxes payable and any
direct costs or expenses incurred in connection with such sale or
disposition, LESS (iii) the amount of indebtedness secured by such
Assets that are sold, which indebtedness is required to be and is
repaid upon such sale, but Material Sales Proceeds shall not
include: (A) proceeds of inventory sold or otherwise disposed of
in the ordinary course of business; (B) subject to the giving of
-41-
notice to and deposit of funds with the Agent as provided below,
proceeds of Assets not constituting Collateral or Mortgaged
Property (unless Substitute Collateral has been provided pursuant
to SECTION 9.13(c)), sold or exchanged to the extent such proceeds
are utilized in connection with the replacement thereof within 180
days of the sale or exchange of such assets; (C) proceeds of
Permitted Investments; (D) proceeds received by a Person which
cannot be remitted to the Borrower or a Subsidiary of the Borrower
as a result of any legal or contractual restriction applicable to
such Person existing on the Closing Date and identified on SCHEDULE
3.4 hereto and any legal or contractual restriction contained in
any Indebtedness which refinances any Indebtedness referenced on
SCHEDULE 3.4 provided that the terms thereof are no more onerous to
the Borrower or any Subsidiary than those existing on the Closing
Date; (E) proceeds resulting from the payment of insurance with
respect to such Assets provided such proceeds are used for the
replacement of such Assets or are required to be applied to a
purpose specified in a legal instrument applicable to such Assets
or from the payment of business interruption insurance; (F)
proceeds resulting from the sale or other disposition of Assets
between the Borrower and any Wholly-Owned Subsidiary (other than a
Restricted Subsidiary) of the Borrower or Stone-Canada or between
any Wholly-Owned Subsidiaries (other than Restricted Subsidiaries)
of the Borrower or Stone-Canada; (G) up to an aggregate amount of
$300 million of net proceeds from the sale or other disposition of
Assets not constituting Collateral or Mortgaged Property or Assets
constituting Collateral or Mortgaged Property for which Substitute
Collateral has been provided pursuant to SECTION 9.13(c),
designated by the Borrower in writing to the Agent as being
excluded from the prepayment requirements of this Section (any
amount so designated being "EXCLUDED SALE PROCEEDS"); or (H)
proceeds from the sale or other disposition of any Assets
constituting collateral which secures the Indebtedness under the
First Mortgage Note Documents. The cash, cash equivalent proceeds
or marketable securities resulting from the repayment or other
liquidation of the investments permitted by SECTION 5.2.7(i) shall
be included within the meaning of "MATERIAL SALE PROCEEDS."
Proceeds described in subpart (B) of the exclusion from the
definition of Material Sale Proceeds shall be so excluded only if,
within five (5) Business Days after such proceeds are received, the
Borrower gives the Agent written notice of its intent to utilize
such proceeds for replacement purposes and (to the extent such
proceeds have not already been so utilized) delivers such proceeds
to the Agent to be held in an account as security for the
Obligations pursuant to documentation satisfactory to the Agent.
During the period ending on the 180th day after receipt of such
proceeds by the Borrower or one of its Subsidiaries, the Borrower
may, so long as no Event of Default or Unmatured Event of Default
shall have occurred and be continuing, withdraw funds from such
account to pay or reimburse itself for such replacement costs.
Funds in such account shall be held and invested in the manner
prescribed for Deposited Monies pursuant to SECTION 3.5. All
amounts remaining in such account at the conclusion of such 180 day
-42-
period shall, subject to SECTION 3.6(f), be applied on such date as
a prepayment pursuant to this Section and SECTIONS 3.5 and 3.6 as
if constituting Material Sale Proceeds received on such date.
Section 3.5 OTHER PROVISIONS WITH RESPECT TO THE
LOANS. Subject to the obligations of the Agent provided for in
this SECTION 3.5 and if no Event of Default or Unmatured Event of
Default shall have occurred and be continuing, any monies otherwise
required to be used to prepay a Eurodollar Rate Loan pursuant to
SECTION 3.4 on a date other than the last day of the Interest
Period applicable thereto shall be paid to the Agent (the
"DEPOSITED MONIES") when due but, until the earlier of the
occurrence of an Event of Default and the end of the applicable
Interest Period when the Deposited Monies shall be applied to make
such prepayment, shall be held in an account by the Agent for the
benefit of the Lenders and the Borrower shall have no right to or
interest in such funds and such funds shall be used to prepay such
Eurodollar Rate Loan upon the earlier of the occurrence of an Event
of Default or at the end of the applicable Interest Period;
PROVIDED, HOWEVER, that any funds held in such account shall be
invested by the Agent (to the extent the Agent is reasonably able
to do so) on behalf of the Borrower at the direction of the
Borrower in Permitted Investments selected by the Borrower and
having a maturity not exceeding the Business Day prior to the end
of the relevant Interest Period. Interest on the applicable Loans
shall continue to accrue until the Deposited Monies are applied to
the prepayment thereof. Any such investments shall be held by the
Agent or under the control of the Agent. The interest accruing on
such investments and any profits realized from such investments
shall be, after giving effect to such repayment of such Loans with
the Deposited Monies, paid to the Borrower; PROVIDED, HOWEVER, that
any loss resulting from such investments shall be charged to and be
immediately payable by the Borrower upon demand of the Agent.
Section 3.6 ORDER OF PREPAYMENT AND PAYMENT.
(a) All prepayments of principal of Revolving Loans and
Supplemental Revolving Loans made by the Borrower pursuant to
SECTIONS 3.1 AND 3.2 shall be made with interest on such repaid
Revolving Loans and Supplemental Revolving Loans, and with respect
to each Revolving Lender and Supplemental Revolving Lender, in
proportional amounts equal to such Lender's Revolving Loan Pro Rata
Share or Supplemental Revolving Loan Pro Rata Share, as applicable,
of such payment and, shall be applied (i) first to the payment of
Prime Rate Loans and second to the payment of Eurodollar Rate
Loans, and (ii) with respect to Eurodollar Rate Loans, pro rata in
order of the maturity of such Loans.
(b) All prepayments of principal of the Term Loan, the
Additional Term Loan and the D Tranche Term Loan made by the
Borrower pursuant to SECTIONS 3.2 OR 3.4 (other than prepayments
made under SECTION 3.4(c) with any Material Sale Proceeds derived
from the sale of any Collateral or Mortgaged Property) shall be
-43-
applied (i) to the unpaid principal amount of the Term Loan, the
Additional Term Loan and the D Tranche Term Loan in the inverse
order of the remaining regularly scheduled principal installments
set forth in SECTIONS 2.2(a), (d) AND (f), together with accrued
interest on such prepaid principal amount and with respect to each
Term Lender, Additional Lender and D Tranche Lender, in
proportional amounts based on such Lender's outstanding principal
amount of its Term Loan, Additional Term Loan or D Tranche Term
Loan, as applicable; and (ii) first to the payment of Prime Rate
Loans and second to the payment of Eurodollar Rate Loans, and
within such Eurodollar Rate Loans, pro rata in order of the
maturity of such Loans.
(c) All prepayments of principal made by the Borrower
pursuant to SECTION 3.4(c) out of Material Sale Proceeds derived
from the sale of Collateral or Mortgaged Property (other than
Collateral or Mortgaged Property for which Substitute Collateral is
provided in accordance with SECTION 9.13(c)) shall be applied on a
pro rata basis (relative to the outstanding principal amount of the
Term Loan, Additional Term Loan and D Tranche Term Loan, and the
aggregate amount of the Revolving Loan Commitments and Supplemental
Revolving Loan Commitments) to the unpaid principal amount of the
Term Loan, Additional Term Loan and D Tranche Term Loan and to the
unpaid principal amount of the Revolving Loans and Supplemental
Revolving Loans (to the extent thereof), and contemporaneously with
such prepayment there shall be a permanent reduction of the
aggregate outstanding Revolving Loan Commitments and Supplemental
Revolving Loan Commitments (and with respect to each Revolving
Lender and Supplemental Revolving Lender, based on such Lender's
Revolving Loan Pro Rata Share and Supplemental Revolving Loan Pro
Rata Share, respectively)in an amount equal to such Revolving Loan
and Supplemental Revolving Loan pro rata portion of such Material
Sale Proceeds (the "REVOLVING PORTION"). In the event that any
Material Sale Proceeds relative to the Revolving Portion remain
after the prepayment of Revolving Loans and Supplemental Revolving
Loans, any excess shall be deposited with the Agent to cash
collateralize any L/C Obligations then outstanding, but only to the
extent and in the aggregate amount of such Obligations; PROVIDED,
HOWEVER, that the Borrower shall only be required to deposit such
excess proceeds if and for so long as an Unmatured Event of Default
or an Event of Default has occurred and is continuing at such time
or if and to the extent the aggregate outstanding Revolving Loan
Commitments have, pursuant to the preceding sentence, been reduced
to an amount less than the L/C Obligations then outstanding.
Prepayments of Loans described in this SECTION 3.6(c) shall be
applied first to the payment of Prime Rate Loans and second to the
payment of Eurodollar Rate Loans, and, within such Eurodollar Rate
Loans, pro rata in order of the maturity of such Loans. All
prepayments of principal of the Term Loan, Additional Term Loan and
D Tranche Term Loan pursuant to this SECTION 3.6(c) shall be
applied to the unpaid principal amount of the Term Loan, Additional
Term Loan and D Tranche Term Loan in the inverse order of the
remaining installments set forth in SECTIONS 2.2(a) AND (d).
-44-
(d) All regularly scheduled principal installments on
the Term Loan, Additional Term Loan and D Tranche Term Loan shall
be applied first to the payment of Prime Rate Loans and second to
the payment of Eurodollar Rate Loans.
(e) During the pendency of an Event of Default, all
payments in respect of the Obligations shall be applied first to
interest, fees, costs, expenses and other amounts (other than
principal) then owing, and second to principal; PROVIDED, HOWEVER,
that proceeds of collateral realized pursuant to the exercise of
remedies under any security instrument securing the Obligations
shall be applied as specified in such security instrument.
(f) Notwithstanding anything in SECTION 3.2, 3.4, 3.6 OR
9.2 to the contrary, at the request of the Borrower any Term
Lender, Additional Lender or D Tranche Lender may waive its right
to receive all or any part of such Lender's portion of any
voluntary prepayment of the Term Loan, Additional Term Loan or D
Tranche Term Loan made under SECTION 3.2 or any mandatory
prepayment of the Term Loan, Additional Term Loan or D Tranche Term
Loan required to be made under SECTION 3.4 (any such portion,
"WAIVED PROCEEDS") by delivering such waiver in writing to the
Agent and the Borrower, signed by an authorized officer of such
Lender and in form satisfactory to the Agent. Upon receipt of such
written waiver, the Borrower (i) shall, to the extent of any
voluntary prepayment of the Term Loan, Additional Term Loan or D
Tranche Term Loan so waived, be relieved of its obligation, if any,
to prepay such amount pursuant to SECTION 3.4(a) with respect to
any Excess Cash Flow reported by the Borrower for the Fiscal
Quarter in which such voluntary prepayment is made (or was proposed
to be made) and may apply such Waived Proceeds to Permitted Uses,
and (ii) shall, to the extent of any mandatory prepayment of the
Term Loan, Additional Term Loan or D Tranche Term Loan so waived,
be relieved of its obligation to prepay such amount and may apply
such Waived Proceeds to Permitted Uses. Any request by the
Borrower for a waiver of any prepayment pursuant to this SECTION
3.6(f) shall, except with respect to the waiver request being made
to be effective on the Restatement Date to the Term Lenders and
Additional Lenders, be made to the Term Lenders, Additional Lenders
and D Tranche Lenders on a pro rata basis (relative to the
outstanding principal amount of the Term Loan, Additional Term Loan
and D Tranche Term Loan), shall be in writing, shall be made in
accordance with SECTION 3.2(vi) for any request for a waiver of any
voluntary prepayment and shall be delivered to the Agent, which
shall promptly distribute such request to the Term Lenders,
Additional Lenders and D Tranche Lenders. Each Term Lender,
Additional Lender and D Tranche Lender shall use reasonable efforts
to respond to such waiver request within five Business Days (or
such greater number of Business Days as the Borrower may specify)
following receipt of a written request therefor. Any failure by a
Term Lender, Additional Lender or D Tranche Lender to respond to
such waiver request within such period shall be deemed to be an
election by such Lender not to waive its right to receive its
-45-
portion of such prepayment and shall in no event give rise to any
obligation or liability of any kind on the part of such Lender.
Section 3.7 COMMITMENT FEES.
(a) The Borrower shall pay to the Agent for pro rata
distribution to each Revolving Lender (based on its Revolving Loan
Pro Rata Share) a commitment fee (the "REVOLVING LOAN COMMITMENT
FEE") for the period commencing on the Closing Date to the Revolver
Termination Date or the earlier termination of the Revolving Loan
Commitments, computed at a rate equal to 1/2 of 1% per annum on the
average daily unused portion of the aggregate Revolving Loan
Commitments of the Revolving Lenders in effect at the time under
this Agreement; PROVIDED, HOWEVER, that solely for purposes of
computing Commitment Fees, all outstanding Swing Line Loans, L/C
Obligations and ▇▇▇▇▇▇▇▇ L/C Obligations shall at all times be
deemed to be an unused portion of the aggregate Revolving Loan
Commitments.
(b) The Borrower shall pay to the Agent for pro rata
distribution to each Supplemental Revolving Lender (based on its
Supplemental Revolving Loan Pro Rata Share) a commitment fee (the
"SUPPLEMENTAL REVOLVING LOAN COMMITMENT FEE") for the period
commencing on the Restatement Date to the Supplemental Revolver
Termination Date or the earlier termination of the Supplemental
Revolving Loan Commitments, computed at a rate equal to 1/2 of 1%
per annum on the average daily unused portion of the aggregate
Supplemental Revolving Loan Commitments of the Supplemental
Revolving Lenders in effect at the time under this Agreement.
(c) Unless otherwise specified herein, accrued Revolving
Loan Commitment Fees and Supplemental Revolving Loan Commitment
Fees payable under SECTIONS 3.7(a) AND (b) shall be due and payable
(i) quarterly on the Quarterly Payment Dates of each year, (ii) on
the Revolver Termination Date and Supplemental Revolver Termination
Date, and (iii) upon any reduction or termination in whole or in
part of the Revolving Loan Commitments or Supplemental Revolving
Loan Commitments. The Revolving Loan commitment Fees and
Supplemental Revolving Loan Commitment Fees shall be computed on
the basis of a year consisting of 360 days and actual days elapsed.
Section 3.8 AMENDMENT FEE. On the Restatement Date
the Borrower shall pay to the Agent for distribution to the
Existing Lenders which execute this Agreement and return an
acknowledgement letter to the Agent on or before 5:00 p.m. (New
York time) on March 21, 1996 the separately negotiated amendment
fee (the "AMENDMENT FEE") as required by the separate agreement
between the Borrower and BT; PROVIDED, HOWEVER, that the Amendment
Fee shall be payable only in the event that this Agreement is
executed by the Required Lenders, the Majority Revolving Lenders,
the Majority Term Lenders and the Majority Additional Term Lenders
(as such terms are defined in the Existing Credit Agreement).
-46-
Section 3.9 WAIVER FEE. On the Restatement Date the
Borrower shall pay to the Agent for distribution to the Term
Lenders and Additional Lenders which execute the separate waiver
request dated as of the Restatement Date pursuant to SECTION 3.6(f)
on or before 5:00 p.m. (Chicago time) on March 12, 1996 the
separately negotiated waiver fee (the "WAIVER FEE") as required by
the separate agreement between the Borrower and BT; PROVIDED,
HOWEVER, that the Waiver Fee shall be payable only in the event
that this Agreement is executed by the Required Lenders, the
Majority Revolving Lenders, the Majority Term Lenders and the
Majority Additional Term Lenders (as such terms are defined in the
Existing Credit Agreement).
Section 3.10 ADDITIONAL FEES. On the Restatement Date
the Borrower shall pay to BT, without duplication as to any fees
expressly set forth in this Agreement, the separately negotiated
fees (the "ADDITIONAL FEES") as required by the separate agreement
between the Borrower and BT.
Section 3.11 AGENT'S ADMINISTRATIVE FEE. The Borrower
shall pay to the Agent for its own account a separately negotiated
annual fee payable in arrears in equal semi-annual installments as
required by the separate agreement between the Borrower and the
Agent (the "AGENT'S ADMINISTRATIVE FEE").
Section 3.12 PAYMENTS.
(a) All payments by the Borrower under this Agreement or
under any Loan Document shall be made without setoff, counterclaim
or other defense and in such amounts as may be necessary in order
that all such payments (after deduction or withholding for or on
account of any present or future taxes (withholding or otherwise),
levies, imposts, duties, assessments or other charges of whatsoever
nature imposed by any government or any political subdivision or
taxing authority thereof, other than any franchise tax or tax
imposed on or measured by the income of a Lender pursuant to the
income tax laws of the United States of America or the
jurisdictions where such Lender's principal or lending offices are
located (collectively the "TAXES")) shall not be less than the
amounts otherwise specified to be paid under this Agreement. The
Borrower shall indemnify and hold the Agent, the Facing Agent and
the Lenders harmless against any and all such Taxes together with
all interest or penalties owing in respect thereof. A certificate
as to any additional amount payable to a Lender under this Section
submitted to the Borrower and the Agent by such Lender shall show
in reasonable detail the amount payable and the calculations used
to determine in good faith such amount, and shall, absent manifest
error, be final, conclusive and binding upon all parties hereto.
With respect to each deduction or withholding for or on account of
any Taxes, the Borrower shall promptly furnish to each Lender such
certificates, receipts and other documents as may be reasonably
required (in the judgment of such Lender) to establish any tax
credit to which such Lender may be entitled.
-47-
(b) All payments (including prepayments) to be made by
the Borrower on account of principal or interest on any of its
Obligations shall be made to the Agent at its Payment Office for
the ratable account of the Revolving Lenders, the Supplemental
Revolving Lenders the Term Lenders, the Additional Lenders, the D
Tranche Lenders or for the Swing Line Lender or the Facing Agent,
as the case may be, not later than 12:00 noon (New York City time)
on the date when due, in each case in lawful money of the United
States of America and in immediately available funds. Except as
required under SECTIONS 2.12(h) AND (i), 2.13, 2.16, 3.2(a),
3.12(a), 9.5 AND 9.6 or as permitted under SECTION 3.6(f), all
payments (including prepayments) received by the Agent on account
of principal or interest on the Obligations or Letter of Credit
Fees, Revolving Loan Commitment Fees or Supplemental Revolving Loan
Commitment Fees shall be deemed made, and shall be distributed by
the Agent to the Revolving Lenders, the Supplemental Revolving
Lenders, the Term Lenders, the Additional Lenders, the D Tranche
Lenders, the Swing Line Lender or the Facing Agent, as the case may
be, and with respect to any such payments to the Revolving Lenders,
the Supplemental Revolving Lenders, the Term Lenders, the
Additional Lenders, or the D Tranche Lenders, distributed by the
Agent to the Revolving Lenders, the Supplemental Revolving Lenders,
the Term Lenders, the Additional Lenders and the D Tranche Lenders
in accordance with their Revolving Loan Pro Rata Shares,
Supplemental Revolving Loan Pro Rata Shares, Term Loan Pro Rata
Shares, Additional Term Loan Pro Rata Shares and D Tranche Term
Loan Pro Rata Shares, respectively, and, as among all Lenders
(including the Swing Line Lender and the Facing Agent), be applied
ratably according to the amount of principal, interest, Letter of
Credit Fees, Revolving Loan Commitment Fees or Supplemental
Revolving Loan Commitment Fees then due and owing to such Revolving
Lenders, Supplemental Revolving Lenders, Term Lenders, Additional
Lenders, D Tranche Lenders or the Swing Line Lender or the Facing
Agent, at the time such payment is received. If any payment
hereunder becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business
Day (PROVIDED, HOWEVER, that if a payment in respect of a
Eurodollar Rate Loan would otherwise be made on a day which is not
a Business Day and after which no Business Day occurs in the same
month, such payment shall be made on the next preceding Business
Day), and, with respect to payments on principal and, to the extent
permitted by law, interest thereon, interest thereon shall be
payable at the then applicable rate during such extension.
Payments received after noon (New York City time) on any date shall
be deemed received on the next succeeding Business Day.
(c) Each Lender that is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code), shall
submit to the Borrower within 31 days after it becomes a Lender
hereunder duly completed and signed copies of (i) Internal Revenue
Service ("IRS") Form 1001 (relating to such Lender and entitling it
to a complete exemption from United States withholding on all
amounts to be received by such Lender at any Lending Office
-48-
designated by such Lender, including fees, under this Agreement)
and, if necessary to prevent backup withholding, IRS Form W-8
(relating to the foreign status exemption from United States
federal income tax backup withholding), (ii) IRS Form 4224
(relating to all amounts to be received by such Lender at any
Lending Office designated by such Lender, including fees, under
this Agreement) and, if necessary to prevent backup withholding,
IRS Form W-9 (certification of taxpayer identification number) or
(iii) IRS Form W-8 (relating to the exemption from United States
federal income tax withholding on payments of portfolio interest
under Section 871(h) or Section 881(c) of the Code) together with
a certificate substantially in the form of EXHIBIT 3.12(c) hereto.
Thereafter and from time to time, each such Lender, to the extent
legally entitled to do so, shall submit to the Borrower such
additional duly completed and signed copies of the previously
provided forms (or such successor forms as shall be adopted from
time to time by the relevant United States taxing authorities) as
may be (i) requested by the Borrower from such Lender and (ii)
required under then-current United States law or regulations to
avoid United States withholding taxes on payment in respect of
amounts to be received by such Lender at any Lending Office
designated by such Lender, including fees, under this Agreement.
Upon the request of the Borrower, each Lender that is a United
States person (as such term is defined in Section 7701(a)(30) of
the Code) shall submit to the Borrower a certificate to the effect
that it is such a United States person. If any Lender determines
that it is unable to submit to the Borrower any form or certificate
that such Lender is obligated to submit pursuant to this Section,
or that such Lender is required to withdraw or cancel any such form
or certificate previously submitted, such Lender shall promptly
notify the Borrower of such fact. Any amount that would otherwise
have been required to be paid by the Borrower in respect of United
States withholding Taxes pursuant to this Section shall not be
payable by the Borrower to any Lender that (i) is neither (a)
entitled to submit the form or forms required by the first sentence
of this SECTION 3.12(c) (or said successor forms) other than on
account of a change in applicable law or regulations or in any
treaty after the date hereof nor (b) a United States person (as
such term is defined in Section 7701(a)(30) of the Code), or (ii)
has failed to submit any form or certificate that it was required
to file pursuant to this Section and entitled to file under
applicable law.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Agent, the Co-Agents and the
Lenders to enter into this Agreement and the other Loan Documents
and to make the Loans, and issue (or participate in) the Letters of
Credit as provided herein, the Borrower makes the following
representations and warranties as of the Restatement Date and as of
-49-
the date of each subsequent Credit Event, all of which shall
survive the execution and delivery of this Agreement and the other
Loan Documents and the making of the Loans and issuance of the
Letters or Credit, with the occurrence of each Credit Event on or
after the Restatement Date being deemed to constitute a
representation and warranty that the matters specified in this
ARTICLE IV are true and correct on and as of the Restatement Date
and on and as of the date of each such Credit Event, PROVIDED that
any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct on the date
of each Credit Event but only as of such specified date, and
PROVIDED FURTHER, that any representation or warranty made by the
Borrower under the Original Credit Agreement or the Existing Credit
Agreement shall survive the execution and delivery of this
Agreement, and the termination hereof:
Section 4.1 DUE ORGANIZATION AND STANDING. The
Borrower and each Subsidiary of the Borrower is a corporation duly
organized, validly existing and in good standing under the laws of
its respective jurisdiction of incorporation. The Borrower and
each Subsidiary of the Borrower is duly qualified and in good
standing as a foreign corporation, and is duly authorized to do
business, in each jurisdiction in which the ownership or leasing of
its or their properties or the conduct of its or their business
requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect, either
individually or in the aggregate.
Section 4.2 POWER AND AUTHORITY. The Borrower and
each Subsidiary of the Borrower has all requisite corporate power
and authority to own, operate and encumber its property and assets
and to carry on its business as presently conducted and as proposed
to be conducted. Each of the Borrower and its Subsidiaries has all
requisite power and authority (corporate and otherwise) (i) to
execute, deliver and perform its obligations under each of the
Basic Agreements to which it is a party, (ii) to assign and grant
a security interest or mortgage in the Collateral and the Mortgaged
Property in the manner and for the purpose contemplated by the
Security Agreements and the Mortgages, respectively, to which it is
a party, and (iii) to execute, deliver and perform its obligations
under all other agreements and instruments executed and delivered
by it pursuant to or in connection with any Basic Agreement to
which it is a party or bound thereby.
Section 4.3 SUBSIDIARIES. SCHEDULE 4.3 attached
hereto is a complete and correct list of all Subsidiaries of the
Borrower as of the Restatement Date. Except as set forth on
SCHEDULE 4.3, all of the issued and outstanding shares of capital
stock of each such Subsidiary other than directors' qualifying
shares, if any, are owned directly or indirectly by the Borrower as
of the Restatement Date. As of the Restatement Date, all shares of
capital stock of each Subsidiary of the Borrower have been validly
issued, are fully paid and non-assessable and all such shares owned
-50-
directly or indirectly by the Borrower are owned free and clear of
all Liens other than Permitted Liens. Except as set forth on
SCHEDULE 4.3, as of the Restatement Date, no authorized but
unissued or treasury shares of capital stock of any such Subsidiary
are subject to any option, warrant, right to call or commitment of
any kind or character. Except as set forth on SCHEDULE 4.3, as of
the Restatement Date, the Borrower has no Subsidiaries other than
Wholly-Owned Subsidiaries.
Section 4.4 NO VIOLATION OF AGREEMENTS. The
execution, delivery and performance by each of the Borrower and its
Subsidiaries of each of the Basic Agreements to which it is a party
and all other agreements and instruments to be executed and
delivered by the Borrower or any of its Subsidiaries pursuant
hereto or thereto or in connection herewith or therewith, the
assignment of, and the grant of a security interest or mortgage in,
the Collateral or on the Mortgaged Property in the manner and for
the purpose contemplated by the Security Agreements and the
Mortgages, respectively, do not and will not (i) violate in any
material respect any provisions of any law, statute, rule,
regulation (including, without limitation, Regulations G, T, U or
X of the Board), order, license, permit, writ, judgment, decree,
determination or award presently in effect having applicability to
the Borrower or any of its Subsidiaries, (ii) conflict with or
result in a breach of or constitute a tortious interference with or
constitute a default under the certificate of incorporation or by-laws,
or other organizational documents, as the case may be, of
either the Borrower or any of its Subsidiaries or any indenture or
loan or credit agreement, or any other material agreement or
instrument, to which the Borrower or any of its Subsidiaries is a
party or by which the Borrower or any of its Subsidiaries or any of
their respective properties are bound or affected, or any
governmental permit, license or order, (iii) result in or require
the creation or imposition of any Lien (except for Permitted Liens)
of any nature upon or with respect to any of the properties now
owned or hereafter acquired by the Borrower or any of its
Subsidiaries, or (iv) require any approval of stockholders or any
approval or consent of any Person which have not been obtained on
or prior to the Restatement Date, except for such approvals and
consents referred to on SCHEDULE 4.4 hereto. Neither the Borrower
nor any Subsidiary of the Borrower is in default under or in
violation of any such law, statute, rule, regulation, judgment,
decree, license, order or permit described above or any indenture,
mortgage, deed of trust, agreement or other instrument described
above or under its charter or by-laws, in each case the
consequences of which default or violation, either in any one case
or in the aggregate, would have a Material Adverse Effect.
Section 4.5 DUE AUTHORIZATION, ETC. The execution,
delivery and performance (or filing, as the case may be) of each of
the Basic Agreements, and the consummation of the transactions
contemplated thereby, have been duly authorized by all requisite
corporate action on the part of the Borrower or its applicable
-51-
Subsidiaries party to such Basic Agreements and no other corporate
proceedings on the part of the Borrower or its applicable
Subsidiaries are necessary to authorize any of the Basic
Agreements. Each of the Basic Agreements to which it is a party
and each other agreement or instrument executed and delivered by
the Borrower or any of its Subsidiaries pursuant hereto or thereto
or in connection herewith or therewith has been duly executed and
delivered (or filed, as the case may be) by the Borrower or such
Subsidiary and constitutes or will constitute a legal, valid and
binding obligation of the Borrower or such Subsidiary, enforceable
against the Borrower or such Subsidiary in accordance with its
respective terms (subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other similar laws affecting the
enforcement of creditors' rights generally and general equitable
principles). Each of the Basic Agreements is in full force and
effect and the Borrower and the other parties thereto (other than
the Lenders) have performed and complied in all material respects
with all the terms, provisions, agreements and conditions set forth
therein and required to be performed or complied with by such
parties on or before the Closing Date, and no default by the
Borrower or any Subsidiary of the Borrower or, to the best
knowledge of the Borrower, any of the other parties thereto (other
than the Lenders), exists thereunder. From and after the Closing
Date, the Security Agreements will give the Agent for the benefit
of the Lenders, as security for the repayment of the obligations
secured thereby, assuming proper filings and recordations are made,
a valid and perfected first priority lien (which priority is
subject only to prior Liens permitted by such agreements) upon and
security interest in the Collateral, and each of the Mortgages will
give the Agent for the benefit of the Lenders, as security for the
repayment of the obligations secured thereby, assuming proper
filings and recordations are made, a valid and first priority lien
(which priority is subject only to prior Liens permitted by the
respective Mortgages) upon and security interest in the respective
Mortgaged Property, subject to Permitted Liens.
Section 4.6 INDEBTEDNESS FOR MONEY BORROWED. Attached
hereto as SCHEDULE 4.6 is a complete and correct list of all
Indebtedness for Money Borrowed, exclusive of intercompany
Indebtedness for Money Borrowed owing between and among the
Borrower and its Wholly-Owned Subsidiaries, of the Borrower and
each Subsidiary of the Borrower outstanding as of the Restatement
Date, showing the aggregate principal amount which will be
outstanding on the Restatement Date after giving effect to the
Related Transactions and the making of the Loans hereunder. The
Borrower has delivered or caused to be delivered to the Agent a
true and complete copy of the form of each instrument evidencing
Indebtedness for Money Borrowed listed on SCHEDULE 4.6 and of each
instrument pursuant to which such Indebtedness for Money Borrowed
was issued. All Indebtedness of the Borrower to the Agent or the
Lenders under any Basic Agreement constitutes Senior Indebtedness.
No Indebtedness of the Borrower to any party is senior in priority
of payment to the Obligations.
-52-
Section 4.7 FISCAL QUARTERS AND YEAR. The fiscal
quarters (the "FISCAL QUARTERS") of the Borrower and its
Subsidiaries begin on the first day of January, April, July and
October and end on the last day of March, June, September and
December, respectively, of each year. The fiscal year (the "FISCAL
YEAR") of the Borrower and each of its Subsidiaries commences on
January 1 and ends on December 31 of each calendar year.
Section 4.8 TITLE TO AND CONDITIONS OF PROPERTIES.
Except as disclosed on SCHEDULE 4.8 hereto, as of the Restatement
Date, the Borrower or one of its Subsidiaries has valid, legal and
marketable title to, or a subsisting leasehold interest in, all
material items of real and personal property reflected on the
Balance Sheet or acquired after the date of the Balance Sheet
except for assets sold, transferred or otherwise disposed of in the
ordinary course of business since the date of the Balance Sheet, in
each case (except as to leasehold interests) free and clear of all
Liens, except Permitted Liens. As of the Restatement Date,
substantially all items of real and material personal property
owned by, leased to or used by the Borrower and/or each Subsidiary
of the Borrower are in adequate operating condition and repair,
ordinary wear and tear excepted, are free and clear of any known
defects except such defects as do not substantially interfere with
the continued use thereof in the conduct of normal operations, and
are able to serve the function for which they are currently being
used.
Section 4.9 LITIGATION, PROCEEDINGS, LICENSES,
PERMITS. There is no action, suit or proceeding, or any
governmental investigation or any arbitration pending or, to the
knowledge of the Borrower, threatened against the Borrower or any
of its Subsidiaries or any material property of any thereof before
any court or arbitrator or any governmental or administrative body,
agency or official (i) which asserts the invalidity, or seeks to
enjoin, or otherwise materially interferes with, the performance or
consummation, of any Basic Agreement, or (ii) which is reasonably
likely to have a Material Adverse Effect. Neither the Borrower nor
any of its Subsidiaries (A) is in default with respect to any order
of any court, arbitrator or governmental body or is subject to or
party to any order of any court or governmental authority arising
out of any action, suit or proceeding against it under any statute
or other law respecting antitrust, monopoly, restraint of trade,
unfair competition or similar matters or (B) has violated or is in
violation of any statute, rule or regulation of any governmental
authority in each case where such violation or default would have
a Material Adverse Effect. The Borrower and each of its Subsidiar-
ies have been and are current and in good standing with respect to
all governmental approvals, permits, certificates, licenses,
inspections, consents and franchises necessary to continue to
conduct their respective businesses in accordance with applicable
laws, rules and regulations and to own or lease and operate their
respective properties, except where the failure to be so would not
have a Material Adverse Effect.
-53-
Section 4.10 GOVERNMENTAL CONSENTS, ETC. Except to the
extent not required to be obtained prior to the Restatement Date
(or, with respect to any future date, required to be obtained as of
such date), and except as disclosed on SCHEDULE 4.10 hereto, no
authorization, consent, approval, license, qualification or formal
exemption from, nor any filing, declaration or registration with,
any court, governmental agency or regulatory authority or any
securities exchange or any other Person is required in connection
with the execution, delivery and performance by the Borrower and
its Subsidiaries of any Basic Agreement or the assignment of, and
the grant of a security interest in or mortgage on the Collateral
or the Mortgaged Property, in the manner and for the purposes
contemplated by the Security Agreements or the Mortgages,
respectively, and all of such consents shall have been obtained
prior to, and shall remain in full force and effect on, and any
requirements described on SCHEDULE 4.10 shall have been met on or
prior to, the Restatement Date.
Section 4.11 FINANCIAL STATEMENTS.
(a) The Borrower has heretofore caused to be delivered to
each Lender complete and correct copies of (i) the audited
consolidated balance sheets of the Borrower and its Subsidiaries
for the fiscal years ended December 31, 1993 and 1994, and the
audited consolidated statements of income and consolidated
statements of cash flows for such years then ended, certified by
Price Waterhouse, whose report thereon is incorporated by reference
therein, and (ii) the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as of September 30, 1995 (such
unaudited consolidated balance sheet and notes thereto as of
September 30, 1995 being herein referred to as the "BALANCE
SHEET"), together with unaudited consolidated statements of income
and consolidated statements of cash flows for the three months and
nine months ended September 30, 1995. As of the Restatement Date,
such consolidated balance sheets and the notes thereto fairly
present the assets, liabilities and financial condition of the
Borrower and its Subsidiaries as at the respective dates thereof,
and such consolidated statements of income and consolidated
statements of cash flows and the notes thereto fairly present the
results of operations of the Borrower and its Subsidiaries for the
respective periods therein referred to, all in accordance with
generally accepted accounting principles consistently applied
throughout the respective periods involved and the prior periods,
except as stated therein or in the notes thereto.
(b) The Borrower has furnished to the Agent the pro
forma consolidated balance sheet (the "PRO FORMA") of the Borrower
and its Subsidiaries dated as of February 16, 1996 and attached
hereto as EXHIBIT 4.11(B). As of February 16, 1996, the Pro Forma
is complete and accurate in all material respects and fairly
presents the Borrower's assets, liabilities and financial
condition, on a consolidated basis, taking into account the
-54-
transactions contemplated by the Basic Agreements, the Related
Transactions and the making of the Loans hereunder based on the
assumptions set forth in the notes to the Pro Forma.
(c) The Borrower has furnished to the Agent initial
Forecasts for the Borrower dated as of February 15, 1996 and
attached hereto as EXHIBIT 4.11(C). For purposes of this
Agreement, "FORECASTS" shall mean forecasted balance sheets for the
forthcoming five (5) years, year-by-year; forecasted cash flow
statements (including proposed Capital Expenditures) for the
forthcoming five (5) years, year-by-year; forecasted profit and
loss statements for the forthcoming five (5) years, year-by-year,
and for the forthcoming Fiscal Year, quarter-by-quarter, together
with appropriate supporting details consistent with EXHIBIT
4.11(C). The initial Forecasts have been prepared by the Borrower
on the basis of the assumptions set forth therein and represent, as
of the Restatement Date, the good faith estimate of the Borrower
regarding the course of the Borrower's business for the periods
covered thereby. The Borrower believes in good faith on the
Restatement Date that the assumptions set forth in the initial
Forecasts are reasonable.
(d) Except as set forth on SCHEDULE 4.11(D) hereto,
neither the Borrower nor any of its Subsidiaries has any material
liabilities or obligations of any nature, whether absolute,
accrued, contingent or otherwise, or any material unsatisfied
judgments or any leases for a period in excess of five (5) years
which either individually or in the aggregate are material (herein
called "MATERIAL LIABILITIES"), except (a) Material Liabilities
which are fully reflected or reserved against on (i) the Pro Forma,
with respect to the period from the Restatement Date until the
delivery of the initial Most Recent Balance Sheet in Fiscal Year
1996 and (ii) the Most Recent Balance Sheet, with respect to all
periods thereafter, and (b) Material Liabilities incurred
subsequent to the date of the Pro Forma or the Most Recent Balance
Sheet, as the case may be, in the ordinary course of business
consistent with past practice. The reserves, if any, reflected on
the Pro Forma or the Most Recent Balance Sheet, as the case may be,
for all Material Liabilities referred to in clause (a) above are
appropriate and reasonable as of the date of the Pro Forma or Most
Recent Balance Sheet, as the case may be.
Section 4.12 NO MATERIAL ADVERSE CHANGE. Except for
the transactions specifically contemplated by the Basic Agreements
or reflected on the Pro Forma and matters disclosed in the public
filings identified on SCHEDULE 4.12 hereto, since December 31, 1994
there has been no material adverse change in the condition
(financial or otherwise), business, assets, liabilities, prospects
or results of operations of the Borrower and its Subsidiaries taken
as a whole.
-55-
Section 4.13 TAX RETURNS AND PAYMENTS. The Borrower
and each of its Subsidiaries has timely filed or caused to be filed
all tax returns which are required to be filed, and has paid all
taxes shown to be due and payable on said returns or on any
assessments made against it or any of its property and all other
material taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than those the amount
or validity of which is being contested in good faith by
appropriate proceedings and with respect to which reserves in
conformity with generally accepted accounting principles have been
provided on the books of the Borrower or such Subsidiary, as the
case may be); and no tax liens have been filed and no claims are
being asserted with respect to any such taxes, fees or other
charges (other than such liens or claims, the amount or validity of
which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with
generally accepted accounting principles have been provided).
Section 4.14 PATENTS, ETC. The Borrower and each of
its Subsidiaries own, are licensed or otherwise have the lawful
right to use, or have all permits and other governmental approvals,
patents, trademarks, trade names, copyrights, technology, know-how
and processes used in or necessary for the conduct of their
businesses except where the failure to own or have the right to use
will not have a Material Adverse Effect. To the best of Borrower's
knowledge, the use of such permits and other governmental
approvals, patents, trademarks, trade names, copyrights, technolo-
gy, know-how and processes by the Borrower and each of its
Subsidiaries does not infringe on the rights of any Person, subject
to such claims and infringements as do not, in the aggregate, give
rise to any liability on the part of the Borrower or any of its
Subsidiaries which has or is reasonably likely to have a Material
Adverse Effect. The consummation of the transactions contemplated
by the Basic Agreements will not impair the ownership of or rights
under (or the license or other right to use, as the case may be)
any permits, governmental approvals, patents, trademarks, trade
names, copyrights, technology, know-how or processes by the
Borrower or any of its Subsidiaries in any manner which has or is
reasonably likely to have a Material Adverse Effect.
Section 4.15 ERISA.
(a) With respect to the Borrower and its Subsidiaries
(other than Stone-Canada and its Subsidiaries except to the extent
that a Plan of Stone-Canada or any Subsidiary of Stone-Canada is
subject to ERISA):
(i) No termination since September 2, 1974 of any Plan
of the Borrower or any of its Subsidiaries or any ERISA
Affiliate has resulted in any material liability of the
Borrower or any of its Subsidiaries. All Plans of the
Borrower or any of its Subsidiaries have been operated and
-56-
administered in a manner so as not to result in any material
liability for failure to comply with ERISA, and if intended to
qualify under Section 401(a) or 403(a) of the Code, in a
manner so as not to result in any material liability for
failure to comply with the applicable provisions thereof.
Neither the Borrower nor any of its Subsidiaries or any ERISA
Affiliate has engaged in any transaction in connection with
which any such entity could be subjected to either a material
civil penalty assessed pursuant to Section 502(i) of ERISA or
a material tax imposed by Section 4975 of the Code. Full
payment has been made on a timely basis of all amounts which
the Borrower or any of its Subsidiaries or any ERISA Affiliate
is required under the terms of each Plan to have paid as a
contribution to such Plan. None of the Plans which is subject
to Part 3 of Subtitle B of Title 1 of ERISA or Section 412 of
the Code has an accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code), whether or
not waived. Neither the Borrower nor any of its Subsidiaries
or ERISA Affiliates has any contingent liability under Section
4069 of ERISA. No material liability to the PBGC has been or
is expected by the Borrower to be incurred with respect to any
Plan by the Borrower or any of its Subsidiaries or any ERISA
Affiliate; and there has been no Reportable Event, and no
event or condition, which presents a material risk of
termination of any such Plan by the PBGC which would result in
material liability of the Borrower or any of its Subsidiaries
or any ERISA Affiliate. No material liability has been or is
expected to be incurred by the Borrower or any of its
Subsidiaries or any ERISA Affiliate resulting from any
withdrawal by the Borrower, any of its Subsidiaries or any
ERISA Affiliate from a plan in which it was a substantial
employer (within the meaning of Section 4001 (a)(2) of ERISA).
Assuming that no portion of the Loan proceeds to be advanced
hereunder is attributable, directly or indirectly, to the
assets of any employee benefit plan (within the meaning of
Section 3(3) of ERISA) or plan (within the meaning of Section
4975(e) of the Code), the execution, performance and delivery
of the Basic Agreements by any party thereto will not involve
any prohibited transaction within the meaning of Section 406
of ERISA or Section 4975 of the Code for which an exemption
therefrom is not available. The aggregate fair market value
of the assets of the Plans exceeds the aggregate present value
of accrued benefits under such Plans and, with respect to any
Plan the fair market value of the assets of which does not
exceed the present value of accrued benefits thereunder (an
"UNDERFUNDED PLAN"), the amount by which the present value of
accrued benefits under each Underfunded Plan exceeds the fair
market value of the assets of such Underfunded Plan is not
material to the Borrower and its Subsidiaries taken as a
whole.
-57-
(ii) No material liability has been or is expected to be
incurred by the Borrower or any of its Subsidiaries or any
ERISA Affiliate with respect to any Multiemployer Plan except
for future contributions to any Multiemployer Plan pursuant to
the terms of any applicable collective bargaining agreement.
Full payment has been made of all amounts which the Borrower
or any ERISA Affiliate is required under the terms of any
Multiemployer Plan to have paid as a contribution to such
Multiemployer Plan as of the last day of the most recent
fiscal year of such Multiemployer Plan, except for any
contribution which might be required and is unpaid because of
mathematical error in the calculation of such amount.
(iii) No liability which would have a Material Adverse
Effect has been or is expected to be incurred by the Borrower
or any of its Subsidiaries or any ERISA Affiliate for failure
to comply with the health coverage continuation requirements
enacted under the Consolidated Omnibus Budget Reconciliation
Act of 1986.
(b) With respect to Stone-Canada and its Subsidiaries,
except as set forth on SCHEDULE 4.15, there are no unfunded
liabilities arising out of any pension plan or under any benefit
plan to which Stone-Canada or any Subsidiary of Stone-Canada is a
party or by which either is bound and all employer contributions
required thereunder to date have been made.
Section 4.16 GOVERNMENTAL REGULATION. Neither the
Borrower nor any of its Subsidiaries is subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power
Act, the Interstate Commerce Act, the Investment Company Act of
1940 or any other federal or state statute or regulation such that
its ability to incur indebtedness is limited or its ability to
consummate the transactions contemplated hereby is materially
impaired.
Section 4.17 FEDERAL RESERVE REGULATIONS. Neither the
Borrower nor any Subsidiary of the Borrower is engaged, directly or
indirectly, principally, or as one of its important activities, in
the business of extending, or arranging for the extension of,
credit for the purpose of purchasing or carrying any Margin Stock,
within the meaning of Regulation G, U or X of the Board. Following
application of the proceeds of each Loan, not more than 25% of the
value of the assets (either of the Borrower only or of the Borrower
and its Subsidiaries on a consolidated basis) will be Margin Stock.
Section 4.18 TRANSACTION DOCUMENTS. The Borrower has
delivered to the Agent true, complete and correct copies of the
Transaction Documents (including all schedules, exhibits, annexes,
amendments and all other documents delivered pursuant thereto or in
connection therewith). The Transaction Documents as originally
executed and delivered by the parties thereto have not been
-58-
amended, waived, supplemented or modified without the consent of
the Required Lenders. Neither the Borrower nor any other party
thereto is in default in the performance or compliance with any
provisions thereof. The Transaction Documents are in material
compliance with all applicable laws and the transactions effected
thereunder were consummated in accordance with applicable laws and
regulations.
Section 4.19 SOLVENCY OF THE BORROWER. As of the
Restatement Date, no obligation shall have been incurred by the
Borrower or any Subsidiary of the Borrower with intent to hinder,
delay, disturb or defraud creditors of the Borrower or any
Subsidiary of the Borrower and the Borrower and each of its
Subsidiaries (i) shall not be "insolvent" (within the meaning of
Section 101(29) of The Bankruptcy Code of 1978, as amended, Section
2 of the Uniform Fraudulent Conveyance Act or Section 2 of the
Uniform Fraudulent Transfer Act) and will not become "insolvent"
(after giving effect to the financing contemplated hereby or any
application of the proceeds of the Loans or the proceeds from the
Transaction Documents) as a result of the incurrence of any such
obligations; (ii) shall not be engaged in any business or
transaction with unreasonably small capital (after giving effect to
the financing contemplated hereby); and (iii) shall be able to
perform its contingent obligations and other commitments as they
mature in the normal course of business.
Section 4.20 CERTAIN FEES. Other than as set forth in
the Transaction Documents or in the documentation relating to the
public debt financing contemplated thereby, no broker's or finder's
fees or commissions were paid or will be payable by the Borrower or
any Subsidiary of the Borrower with respect to the transactions
contemplated by the Basic Agreements. No similar fees or
commissions were paid or will be payable by the Borrower or any
Subsidiary of the Borrower for any other services rendered to the
Borrower or any Subsidiary of the Borrower in connection with the
transactions contemplated hereby. The Borrower covenants that it
will indemnify the Agent, the Co-Agents and each Lender against and
hold the Agent, the Co-Agents and each Lender harmless from any
claim, demand or liability for broker's or finder's fees or similar
fees or commissions alleged to have been incurred in connection
with any such issuance or offer, issue and sale, or the
transactions contemplated hereby. The obligations of the Borrower
under this Section shall survive the termination of this Agreement
and the discharge of the Borrower's obligations hereunder and under
the Obligations.
Section 4.21 ENVIRONMENTAL MATTERS. Except as
disclosed on SCHEDULE 4.21, (i) the operations of and the real
property associated with the Borrower and each of its Subsidiaries
is in compliance with all applicable Environmental Laws except
where the failure to so comply could not be expected to have a
Material Adverse Effect; (ii) the Borrower and each of its
-59-
Subsidiaries has obtained and maintains all material environmental,
health and safety permits, certificates, licenses, approvals and
authorizations necessary for their respective operations under all
applicable Environmental Laws (collectively, "ENVIRONMENTAL
PERMITS"), and all such Environmental Permits are in good standing
and the Borrower and its Subsidiaries are in material compliance
with all terms and conditions of such Environmental Permits; (iii)
neither the Borrower nor any of its Subsidiaries nor any of their
present or past properties or operations (whether owned or leased)
are subject to: (A) any written claim, request for information,
judgment, order, decree or agreement from or with any Governmental
Authority or private party related to any material violation of or
material non-compliance with Environmental Laws or Environmental
Permits, (B) any pending or, to the knowledge of the Borrower,
threatened judicial or administrative proceeding, action, suit or
investigation related to any Environmental Laws or Environmental
Permits which, if determined adversely to the Borrower or any of
its Subsidiaries, could have a Material Adverse Effect, or (C) any
liabilities, obligations or costs arising from any Remedial Action
or any Release or threatened Release of a Contaminant into the
environment regardless of whether the Release or threatened Release
is occurring on the Borrower's or any Subsidiaries present or past
properties or at any other location, in each case where such
Remedial Action, Release or threatened Release would have a
Material Adverse Effect; and (iv) except as disclosed on SCHEDULE
4.21 hereto, as of the Restatement Date, neither the Borrower nor
any of its Subsidiaries has received any written notice or claim to
the effect that the Borrower or any of its Subsidiaries is or may
be liable to any Person for an amount in excess of $500,000 as a
result of the Release or threatened Release of a Contaminant into
the environment.
Section 4.22 DISCLOSURE. No statement, fact,
representation or warranty of the Borrower or its Subsidiaries
contained in the Basic Agreements, the Note Prospectus or any other
document furnished to the Lenders by or on behalf of the Borrower
or any Subsidiary for use in connection with the transactions
contemplated by the Basic Agreements contains any untrue statement
of a material fact nor do such documents taken as a whole omit to
state a material fact necessary in order to make the statements
contained herein or therein, as the case may be, not misleading
when made. The pro forma forecasts, projections and pro forma
financial information contained in such materials are based upon
good faith estimates and assumptions believed by the Borrower to be
reasonable at the time made, it being recognized by the Lenders
that such pro forma forecasts and projections as to future events
are not to be viewed as facts and that actual results during the
period or periods covered by any such pro forma forecasts and
projections will differ from the forecasted or projected results.
As of the Restatement Date there is no fact known to the Borrower
(other than matters of a general economic nature not peculiar to
the Borrower, or its Subsidiaries) which materially and adversely
-60-
affects the condition (financial or otherwise), properties,
business, prospects or operations of the Borrower and its
Subsidiaries taken as a whole which has not been disclosed herein
or in such other documents, certificates and statements furnished
to the Lenders for use in connection with the transactions
contemplated hereby.
Section 4.23 SURVIVAL OF WARRANTIES; COVENANT REGARDING
DISCLOSURE. All representations and warranties contained in the
Original Credit Agreement, the Existing Credit Agreement, this
Agreement and the other Basic Agreements shall survive the
execution and delivery of this Agreement and such other Basic
Agreements, as the case may be, and the termination hereof and
thereof. The Borrower may from time to time propose in writing to
the Agent and Lenders modifications or supplements to the
disclosures contained herein or the disclosure schedules attached
to this Agreement in order to maintain the accuracy thereof;
PROVIDED, HOWEVER, that any modifications or supplements to the
disclosures contained in this Agreement or the disclosure schedules
attached to this Agreement and provided by the Borrower after the
Restatement Date shall not be deemed a part of this Agreement until
accepted in writing by the Required Lenders, PROVIDED that a Lender
shall be deemed to have accepted any such proposed modification or
supplement if such Lender fails to give written notice of the
rejection thereof within 30 days after receipt from the Borrower of
such proposed modification or supplement expressly requesting
acceptance thereof under this SECTION 4.23.
ARTICLE V
COVENANTS
Section 5.1 AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that for so long as this
Agreement is in effect and until the Obligations and all other
obligations incurred hereunder or under any other Loan Document,
whether or not matured, are paid in full and all Commitments have
terminated, the Borrower will, unless first having procured the
written consent of the Required Lenders:
5.1.1 FINANCIAL DATA. Furnish to the Agent and each
Lender:
(a) Within five (5) Business Days after an Executive
Officer of the Borrower shall have obtained knowledge of the
occurrence of an Event of Default and/or an Unmatured Event of
Default, the written statement of the chief executive officer,
chief operating officer, chief financial officer or treasurer
of the Borrower setting forth the details of each such Event
of Default or Unmatured Event of Default which has occurred
and is continuing and the action which the Borrower proposes
to take with respect thereto.
-61-
(b) Within forty-five (45) days (or in the case of the
financial statements referenced in SECTIONS 5.1.1(B)(II),
sixty (60) days) after the end of each Fiscal Quarter (except
the last Fiscal Quarter) of each Fiscal Year of the Borrower,
(i) unaudited financial statements consisting of a
consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such quarter and a consolidated
statement of income and a consolidated statement of cash flows
of the Borrower and its Subsidiaries for such quarter and for
the portion of the fiscal year through such quarter, all in
reasonable detail and certified (subject to normal year-end
audit adjustments) on behalf of the Borrower by the chief
executive officer, chief financial officer, chief accounting
officer or treasurer of the Borrower as having been prepared
in accordance with generally accepted accounting principles
consistently applied, (ii) unaudited financial statements
consisting of a consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such quarter and a
consolidated statement of income and a consolidated statement
of cash flows of the Borrower and its Subsidiaries for such
quarter and for the portion of the fiscal year through such
quarter, all in reasonable detail and certified (subject to
normal year-end audit adjustments) on behalf of the Borrower
by the chief executive officer, chief operating officer, chief
financial officer, chief accounting officer or treasurer of
the Borrower as having been prepared in accordance with
generally accepted accounting principles consistently applied
(except that in such statements S-CC shall be accounted for
utilizing the equity method) and (iii) a schedule setting
forth the computation of Excess Cash Flow for the Fiscal
Quarter then ended (an "EXCESS CASH FLOW SCHEDULE"). The
financial statements delivered pursuant to SECTION 5.1.1(B)(I)
shall be accompanied by a certificate from such officer
addressed to the Lenders substantially in the form of EXHIBIT
5.1.1, to the extent applicable, stating that no Event of
Default and no Unmatured Event of Default has come to his
attention which was continuing at the end of such quarter or
on the date of his certificate, or if such an Event of Default
or Unmatured Event of Default has come to his attention and
was continuing at the end of such quarter or on the date of
his certificate, indicating the nature of such Event of
Default or Unmatured Event of Default and the action which the
Borrower proposes to take with respect thereto. Such
certificate shall also detail the amount of any Discretionary
Funds originating during such Fiscal Quarter, any utilization
of Discretionary Funds during such Fiscal Quarter, the amount
of the Discretionary Funds Basket and the Dividend Basket as
of the end of such Fiscal Quarter, the amount of any Debt
Basket Proceeds and Excess Excluded Sales Proceeds remaining
in the Discretionary Funds Basket after any utilization
thereof and any utilization of the Dividend Basket for
Investments, Acquisitions or Capital Expenditures during such
-▇▇-
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and shall set forth detailed computations as to
the Borrower's compliance with the covenants set forth in
SECTIONS 5.2.1 (WITH RESPECT TO CLAUSE (O) OF THE DEFINITION
OF PERMITTED LIENS), 5.2.2, 5.2.3, 5.2.5, 5.2.7, 5.2.9,
5.2.11, 5.2.12, 5.2.15, 5.3.1 and 5.3.2 and detailed
computations showing whether an adjustment of Borrowing
Margins pursuant to SECTION 2.9 is required. To the extent
that the accounting principles utilized in the preparation of
any financial statements delivered by the Borrower pursuant to
SECTION 5.1.1(B) OR (C) are at variance with the Agreement
Accounting Principles (other than accounting for S-CC
utilizing the equity method for purposes of the financial
statements delivered pursuant to SECTIONS 5.1.1(B)(II) and
5.1.1(C)(II)), such financial statements shall be accompanied
by a statement detailing the nature of such variance. In
addition to the consolidated financial statements delivered
pursuant to SECTION 5.1.1 (B)(I), the Borrower will provide,
as soon as available and in any event within sixty (60) days
after the end of each Fiscal Quarter (except the last Fiscal
Quarter) of each Fiscal Year of S-CC, unaudited financial
statements consisting of a balance sheet and statement of
stockholders' equity of S-CC as at the end of such quarter and
a statement of income and cash flows of S-CC for such quarter
and for the portion of the fiscal year through such quarter,
all in reasonable detail and certified (subject to normal
year-end audit adjustments) on behalf of S-CC by the chief
executive officer, chief operating officer, chief financial
officer or treasurer of S-CC as having been prepared in
accordance with generally accepted accounting principles
consistently applied. Reporting requirements for separate S-CC
financial information under this subsection and SUBSECTIONS
5.1.1(C),(D) and (E) shall terminate when and if S-CC ceases
to be a Subsidiary.
(c) Within ninety (90) days after the end of each Fiscal
Year of the Borrower, (i) financial statements consisting of
a consolidated balance sheet and statement of stockholders'
equity of the Borrower and its Subsidiaries as at the end of
such fiscal year and a consolidated statement of income and a
consolidated statement of cash flows of the Borrower and its
Subsidiaries for such fiscal year, setting forth in
comparative form the corresponding figures for the preceding
fiscal year, certified without qualification as to scope of
audit by independent public accountants of recognized national
standing and reputation selected by the Borrower, (ii)
unaudited financial statements, consisting of a consolidated
balance sheet of the Borrower and its Subsidiaries as at the
end of such fiscal year and a consolidated statement of income
and a consolidated statement of cash flows of the Borrower and
its Subsidiaries for such fiscal year, all in reasonable
detail and certified on behalf of the Borrower by the chief
executive officer, chief financial officer, chief accounting
-63-
officer or treasurer of the Borrower as having been prepared
in accordance with generally accepted accounting principles
consistently applied (except that in such statements S-CC
shall be accounted for utilizing the equity method) and (iii)
an Excess Cash Flow Schedule setting forth the computation of
Excess Cash Flow for the last Fiscal Quarter in the Fiscal
Year then ended. The financial statements delivered pursuant
to SECTION 5.1.1(C)(I) shall be accompanied by a certificate
from the chief executive officer, chief operating officer,
chief financial officer, chief accounting officer or treasurer
of the Borrower to the Lenders substantially in the form of
EXHIBIT 5.1.1, to the extent applicable, (x) stating that no
Event of Default and no Unmatured Event of Default has come to
his attention which was continuing at the end of such fiscal
year or on the date of his certificate, or, if such an Event
of Default or Unmatured Event of Default has come to his
attention which was so continuing, the certificate shall
indicate the nature of such Event of Default or Unmatured
Event of Default and the action which the Borrower proposes to
take with respect thereto, (y) setting forth detailed
computations showing whether an adjustment of Borrowing
Margins pursuant to SECTION 2.9(A) is required, and (z)
setting forth computations as to the Borrower's compliance for
the preceding fiscal year with the covenants set forth in
SECTIONS 5.2.1 (WITH RESPECT TO CLAUSE (O) OF THE DEFINITION
OF PERMITTED LIENS), 5.2.2, 5.2.3, 5.2.5, 5.2.7, 5.2.9,
5.2.11, 5.2.12, 5.2.15, 5.3.1 and 5.3.2. Such certificate
shall also detail the amount of any Discretionary Funds
originating during the final Fiscal Quarter of the preceding
Fiscal Year, any utilization of Discretionary Funds during
such Fiscal Quarter, the amount of the Discretionary Funds
Basket and the Dividend Basket as of the end of such Fiscal
Quarter, the amount of any Debt Basket Proceeds and Excess
Excluded Sale Proceeds remaining in the Discretionary Funds
Basket after any utilization thereof and any utilization of
the Dividend Basket for Investments, Acquisitions or Capital
Expenditures during such Fiscal Quarter. In addition to the
consolidated financial statements delivered pursuant to
SECTION 5.1.1(C)(I), the Borrower will provide, as soon as
available and in any event within one hundred twenty (120)
days after the end of each fiscal year of S-CC, audited
financial statements consisting of a balance sheet and
statement of stockholders' equity of S-CC as at the end of
such fiscal year and a statement of income and cash flows of
S-CC for such fiscal year, setting forth in comparative form
the corresponding figures for the preceding fiscal year,
certified without qualification as to scope of audit by
independent public accountants of recognized national standing
and reputation elected by S-CC.
-64-
(d) Within ninety (90) days after the end of each fiscal
year of the Borrower, projections for the Borrower and its
Subsidiaries (except for S-CC, which shall be accounted for
utilizing the equity method) for the next five Fiscal Years
(on a quarter-by-quarter basis for the next succeeding fiscal
year and on a year-by-year basis for the duration of such five
year period), except with respect to the first projections to
be delivered in 1995, which shall be for the next six Fiscal
Years, consisting of forecasted consolidated balance sheets,
statements of income and statements of cash flow, together
with appropriate supporting details and a statement of
underlying assumptions, all in substantially the form of
EXHIBIT 4.11(C) hereto; PROVIDED, HOWEVER, that in no event
shall the Borrower be required to deliver projections covering
any period subsequent to the last day of the calendar year
following the year during which the D Tranche Term Loan
Maturity Date is scheduled to occur.
(e) Within ninety (90) days after the end of each Fiscal
Year of the Borrower, a year to year variance analysis which
sets forth a reasonably detailed reconciliation of the actual
consolidated (except for S-CC, which shall be accounted for
utilizing the equity method) financial results of the Borrower
for such year and the projections of results for such year
previously delivered by the Borrower pursuant to SECTION
5.1.1(D).
(f) Promptly upon any Executive Officer of the Borrower
obtaining knowledge thereof, notice of any action, suit,
proceeding or investigation pending or threatened against or
affecting the Borrower or any Subsidiary of the Borrower or
any of its or their respective properties before any court,
governmental agency or regulatory authority (Federal,
provincial, state or local) which is reasonably likely to have
a Material Adverse Effect.
(g) Promptly upon their distribution, copies of
financial statements, reports, notices and proxy statements
sent by the Borrower or any publicly-held Subsidiary of the
Borrower to their respective security holders generally (in
their capacity as security holders only) and all regular and
periodic reports and final registration statements or other
official statements (and all amendments or supplements
thereto) required to be filed by the Borrower or any
publicly-held Subsidiary of the Borrower with the Securities and
Exchange Commission, any competent securities regulatory
authority in Canada or with any national securities exchange
on which any of its securities are listed with respect to its
securities outstanding or to be outstanding and copies of all
press releases and other statements made available generally
by the Borrower or any publicly-held Subsidiary of the
Borrower to the public concerning material developments in the
-65-
business of the Borrower or any publicly-held Subsidiary of
the Borrower.
(h) Such other information respecting the properties,
business affairs, financial condition and/or operations of the
Borrower or any Subsidiary of the Borrower as any Lender
through the Agent may from time to time reasonably (with
respect to frequency as well as scope) request.
5.1.2 DISCHARGE OF TAXES, ETC. Pay and cause each of
its Subsidiaries to pay (i) all taxes, assessments and governmental
charges or levies imposed upon it or any of them or upon its or any
of their income, profits or property prior to the date on which
penalties attach thereto, and (ii) all claims for labor, material
or supplies which, if unpaid, might become a Lien upon the property
of the Borrower or any Subsidiary prior to the time they are
overdue and may become a Lien upon any such property, except to the
extent that the aggregate of all such taxes, assessments,
governmental charges, levies, penalties and claims referred to in
(i) and (ii) above not so paid, does not exceed $25 million at any
time outstanding for the Borrower and its Subsidiaries taken as a
whole; PROVIDED, HOWEVER, that neither the Borrower nor any
Subsidiary of the Borrower shall be required to pay or discharge
any such tax, assessment, charge, levy or claim while the same is
being contested by it in good faith and by appropriate proceedings
and so long as the Borrower or such Subsidiary, as the case may be,
shall have set aside on its books reserves (segregated to the
extent required by generally accepted accounting principles)
reasonably deemed by it to be adequate with respect thereto.
5.1.3 CORPORATE EXISTENCE; BUSINESS.
(a) Except for the Mergers, except as otherwise
permitted by SECTION 5.2.8 and except that any Subsidiary may be
liquidated, dissolved, wound up, merged or amalgamated (other than
Seminole Kraft with respect to any merger, unless, in the case of
Seminole Kraft, such merger is permitted by SECTION 5.2.8) where
such liquidation, dissolution, merger, winding-up or amalgamation
will not have a Material Adverse Effect, (i) preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its
corporate existence, rights and franchises and (ii) qualify and
remain qualified, and cause each of its Subsidiaries to qualify and
remain qualified, as a foreign corporation authorized to do
business in each other jurisdiction in which the failure to so
qualify or remain qualified would have a Material Adverse Effect.
(b) Maintain and operate, and cause each of its
Subsidiaries to maintain and operate, its business in substantially
the manner in which it is currently conducted and operated.
5.1.4 COMPLIANCE WITH LAWS. Comply, and cause each
of its Subsidiaries to comply, with all laws, rules, regulations
-66-
and governmental orders (foreign, federal, provincial, state and
local) having applicability to any of them or to the business or
businesses at any time conducted by any of them, where the failure
to so comply would have a Material Adverse Effect.
5.1.5 PERFORMANCE OF BASIC AGREEMENTS. Duly and
punctually pay and perform its obligations and cause each of its
Subsidiaries to pay and perform its obligations under the Basic
Agreements in all material respects in accordance with the terms
thereof and without breach of the terms of each thereof.
5.1.6 INSPECTION OF BOOKS AND PROPERTIES.
(a) Permit, and cause each of its Subsidiaries to permit,
any Lender or its respective representatives (including without
limitation any accounting and/or financial advisor or other similar
professional retained by or on behalf of the Agent pursuant to
SECTION 9.5), at any reasonable time during regular business hours,
and from time to time upon reasonable written notice of such Lender
to the Borrower, to visit and inspect its and their respective
properties, to examine and make copies of and take abstracts from
its and their respective records and books of account, and to
discuss its and their respective affairs, finances and accounts
with its and their respective principal officers and, with the
written consent of the Borrower (which consent shall not be
required if an Event of Default has occurred and is continuing),
their respective independent public accountants, in all cases
acting reasonably both as to frequency and as to scope.
(b) The Agent and each Lender agree that all materials
and information (other than publicly available material and
information) obtained by or provided to the Agent or such Lender
pursuant to the foregoing provisions of this Section which are
identified or designated by the Borrower in writing as confidential
and which was not previously in the possession of or known to the
recipient thereof on a non-confidential basis shall be held in
confidence and that the Agent or such Lender, as the case may be,
will use its best efforts not to disclose any such information
unless the same has previously been made public, PROVIDED that
nothing in this Agreement shall prohibit the Agent or such Lender,
as the case may be, from, or subject the Agent or such Lender to
liability for, disclosing any of such information (i) pursuant to
any order, writ, judgment, decree, injunction or ruling of any
governmental body (including any bank regulators) to whose
jurisdiction the Agent or such Lender may be subject, (ii) pursuant
to any applicable requirement of law or regulation, (iii) to the
auditors, attorneys and other advisors of the Agent or such Lender
to the extent required in connection with their services to the
Agent or such Lender with respect to this Agreement, (iv) to the
extent necessary in the enforcement of rights hereunder or under
the Basic Agreements during the continuance of an Unmatured Event
of Default or Event of Default, (v) to actual or prospective
-67-
Assignees or participants as permitted by SECTION 9.12(G) or to any
Lender hereunder.
5.1.7 MAINTENANCE OF BOOKS AND RECORDS. Keep, or
cause to be kept, and cause each of its Subsidiaries to keep or
cause to be kept, proper books of record and account, in which
complete and accurate entries are made reflecting its and their
business and financial transactions.
5.1.8 ERISA.
(a) Other than with respect to Stone-Canada and its
Subsidiaries (except to the extent that a Plan of Stone-Canada or
any Subsidiary of Stone-Canada is subject to ERISA), (i) within ten
(10) days, after it or any of its Subsidiaries or any ERISA
Affiliate knows that a Reportable Event has occurred with respect
to any Plan or Multiemployer Plan (whether or not the requirement
for notice of such Reportable Event has been waived by the PBGC),
deliver, or cause such Subsidiary or any ERISA Affiliate to deliver
to the Agent in sufficient quantity for distribution to each Lender
a certificate of a Responsible Officer of the Borrower or such
Subsidiary or any ERISA Affiliate, as the case may be, setting
forth the details of such Reportable Event; PROVIDED, HOWEVER, that
with respect to any Reportable Event described in ERISA Section
4043(b)(3) this clause (i) shall not apply if the PBGC has waived
the requirement that notice of the Reportable Event be given to the
PBGC and if this clause (i) shall apply to any Reportable Event
described in ERISA Section 4043(b)(3) then the ten (10)-day period
of time referred to above shall be extended to thirty days; (ii)
upon the request of the Agent or any Lender made from time to time
and promptly confirmed in writing, deliver to the Agent in
sufficient quantity for distribution to each Lender a copy of the
most recent available actuarial report and annual report completed
with respect to any Plan; (iii) within ten (10) days, after it or
any of its Subsidiaries or any ERISA Affiliate knows that any of
the following have occurred with respect to any Plan: (A) any such
Plan has been terminated, (B) the Plan Sponsor initiates any action
to terminate any such Plan, or (C) the PBGC has instituted or will
institute proceedings under Section 4042 of ERISA to terminate any
such Plan, deliver, or cause such Subsidiary or ERISA Affiliate to
deliver, to the Agent and each Lender a written notice thereof;
(iv) within ten (10) days, after it or any of its Subsidiaries or
any ERISA Affiliate knows that any of them has caused a complete
withdrawal or partial withdrawal (within the meaning of Sections
4203 and 4205, respectively, of ERISA) from any Multiemployer Plan
or a withdrawal from a Plan in which any such entity was a
substantial employer within the meaning of Section 4001(a)(2) of
ERISA (or a deemed withdrawal within the meaning of Section 4062(e)
of ERISA with respect to an Underfunded Plan) deliver, or cause
such Subsidiary or ERISA Affiliate to deliver, to the Agent in
sufficient quantity for distribution to each Lender a written
notice thereof; and (v) within ten (10) days after it or any of its
-68-
Subsidiaries or any ERISA Affiliate knows that a prohibited
transaction (within the meaning of Section 406 of ERISA) with
respect to any Employee Benefit Plan has occurred and knows such
transaction will result in a material liability to such entity
under Section 4975 of the Code or otherwise, if such transaction is
not corrected, deliver, or cause such Subsidiary or ERISA Affiliate
to deliver, to the Agent in sufficient quantity for distribution to
each Lender a certificate of an Executive Officer of the Borrower
or such Subsidiary or ERISA Affiliate, as the case may be, setting
forth the details of such prohibited transaction and such entity's
proposed response thereto. For purposes of this Section, the
Borrower, any of its Subsidiaries and any ERISA Affiliate shall be
deemed to have knowledge of all facts known by the Plan
Administrator of any Plan of which such entity is the Plan Sponsor;
PROVIDED, HOWEVER, that with respect to any Multiemployer Plan, the
Borrower, any of its Subsidiaries and any ERISA Affiliate shall not
be deemed to have any knowledge other than the actual knowledge of
their respective officers.
(b) With respect to Stone-Canada and its Subsidiaries,
except for Europa Carton, A.G., within ten (10) days after the
Borrower or any of its Subsidiaries knows that Stone-Canada or any
of its Subsidiaries has unfunded liabilities which exceed the
liabilities set forth on SCHEDULE 4.15 arising out of any pension
plan to which Stone-Canada or any of its Subsidiaries is a party or
by which either is bound, deliver to the Agent in sufficient
quantity for distribution to each Lender a certificate of a
Responsible Officer of the Borrower or such Subsidiary disclosing
such unfunded liabilities.
5.1.9 INSURANCE. Maintain, and cause each of its
Subsidiaries to maintain, such insurance, to such extent and
against such hazards and liabilities, as is customarily maintained
by Persons similarly situated to the extent that such insurance is
available at commercially reasonable rates, and furnish to the
Agent in sufficient quantity for distribution to each Lender, upon
written request, information as to the insurance carried by the
Borrower or any Subsidiary of the Borrower. The provisions of this
SECTION 5.1.9 shall be deemed to be supplemental to, but not
duplicative of, the provisions of any of the other Loan Documents
that require the maintenance of insurance with respect to the
Collateral and Mortgaged Property.
5.1.10 MAINTENANCE OF PROPERTIES. Except as to
equipment no longer used or useful to the business of the Borrower
and its Subsidiaries, keep and maintain all material properties,
equipment and other assets (and shall cause its Subsidiaries to
keep and maintain their respective material properties, equipment
and other assets) in good repair, working order and condition
(ordinary wear and tear excepted) and shall make all necessary
replacements thereof and renewals and repairs thereto so that the
value thereof and the operating efficiency of the Borrower and its
-69-
Subsidiaries shall at all times be maintained and preserved in a
manner consistent with past practices of the Borrowers' and its
Subsidiaries' business. With respect to all items of leased
equipment, the Borrower shall, and shall cause its Subsidiaries to,
keep, maintain, repair, replace and operate such leased properties,
equipment and other assets in accordance with the terms of the
applicable lease, in either case, to the extent failure to do so
would result in a Material Adverse Effect.
5.1.11 USE OF PROCEEDS. (i) Use the proceeds of the
Term Loan, Revolving Loans, Letters of Credit and Swing Line Loans
(A) to provide all or a portion of the funds necessary to repay in
full all of the indebtedness outstanding under the U.S. Credit
Agreement on the Closing Date, (B) to make loans and/or capital
contributions on the Closing Date to Stone-Canada, which will, on
the Closing Date, repay all of the indebtedness outstanding under
the Canadian Credit Agreements, (C) to repay in whole or in part
the indebtedness outstanding under the Stone Savannah Credit
Agreement and to fund the Stone Savannah Transactions, (D) in the
case of Letters of Credit, for general corporate purposes and (E)
for ongoing working capital and general corporate purposes; (ii)
use the proceeds of the Additional Term Loan to (A) voluntarily
repurchase, prepay, redeem or otherwise extinguish Indebtedness of
the Borrower consisting of (1) all or any portion of the 8-7/8%
Notes (including the payment of principal and interest thereon),
(2) all or any portion of the 12-1/8% Subordinated Debentures
(including the payment of principal and interest thereon) and/or
(3) Senior Indebtedness (including the payment of principal,
premium, whether or not stated, if any, and interest thereon), (B)
pay certain fees and expenses incurred in connection with the
execution and delivery of the Existing Credit Agreement and/or (C)
repay outstanding Revolving Loans under the Original Credit
Agreement; (iii) use the proceeds of the D Tranche Term Loan from
time to time to, directly or indirectly, (A) repurchase, repay,
redeem or otherwise extinguish any senior or subordinated
Indebtedness for Money Borrowed of the Borrower (other than the
Obligations) (it being understood that, to the extent of such
proceeds, any such repurchase, repayment, redemption or other
extinguishment occurring on or after the Restatement Date shall be
deemed made directly or indirectly out of such proceeds, with the
Borrower having no duty or obligation to escrow or segregate such
proceeds until such time as they are directly or indirectly
applied), (B) pay certain fees and expenses incurred in connection
with the execution and delivery of this Agreement and/or (C) repay
outstanding Revolving Loans under the Existing Credit Agreement;
(iv) use the proceeds of the Supplemental Revolving Loans for
ongoing working capital and general corporate purposes; and (v) not
use any part of the proceeds of any Loan or Letter of Credit
hereunder for any purpose other than as set forth in this Section,
including without limitation, to purchase or carry any Margin Stock
or to extend credit to others for such purpose in violation of
Regulation G, U or X of the Board.
-70-
5.1.12 LENDER MEETING. Cause a meeting open to all
Lenders to be held at least once in each fiscal year for the
purpose of having officers of the Borrower describe generally the
Borrower's business, financial results and prospects and respond to
inquiries from the Lenders regarding such matters.
5.1.13 REDEMPTION OF SENIOR SUBORDINATED NOTES AND
STONE SAVANNAH STOCK. On or prior to December 30, 1994, (i) cause
the amounts deposited with the trustee under the Stone Savannah
Senior Subordinated Note Indenture on the Closing Date to be used
to redeem in full all of the Stone Savannah Senior Subordinated
Notes at par (plus stated premium), together with accrued and
unpaid interest thereon, (ii) redeem in full or otherwise purchase,
(A) all of the outstanding Stone Savannah Preferred Stock at par
(plus stated premium), together with accrued and unpaid dividends
thereon, and (B) all of the issued and outstanding Stone Savannah
Common Stock not owned by the Borrower and (iii) cause Stone
Savannah to merge into the Borrower or make other arrangements
satisfactory to the Required Lenders with respect to the Collateral
and Mortgaged Property owned by Stone Savannah. The redemptions
and purchases described in (i) and (ii) of this SECTION 5.1.13 are
collectively referred to as the "STONE SAVANNAH TRANSACTIONS".
5.1.14 ENVIRONMENTAL NOTIFICATION.
(a) Notify the Agent, in writing, promptly, and in any
event within twenty (20) days after a Responsible Officer
learns thereof, of any: (A) written notice or claim to the
effect that the Borrower or any of its Subsidiaries is or may
be liable to any Person in an amount in excess of $1,000,000
as a result of the Release or threatened Release of any
Contaminant into the environment; (B) written notice that the
Borrower or any of its Subsidiaries is subject to
investigation by any governmental authority evaluating whether
any Remedial Action involving potential claims or costs to the
Borrower or its Subsidiaries in excess of $1,000,000 is needed
to respond to any material Release or threatened Release of
any Contaminant into the environment; or (C) notice of
violation to the Borrower or any of its Subsidiaries of
conditions which result in a notice of violation of any
Environmental Laws or Environmental Permits, which could
reasonably be expected to have a Material Adverse Effect.
(b) Upon written request by the Agent, the Borrower
shall promptly submit to the Agent and the Lenders a report
providing an update of the status of each environmental,
health or safety compliance, hazard or liability issue
identified in any notice or report required pursuant to clause
(i) above and any other environmental, health and safety
compliance obligation, remedial obligation or liability that
could reasonably be expected to have a Material Adverse
Effect.
-71-
5.1.15 ENVIRONMENTAL COMPLIANCE. The Borrower shall,
and shall cause each of its Subsidiaries, in the exercise of its
reasonable business judgment, to take prompt and appropriate action
to respond to any material non-compliance with Environmental Laws
or Environmental Permits or to any unpermitted Release or
threatened Release of a Contaminant, and shall regularly report to
the Agent on such response. Without limiting the generality of the
foregoing, whenever the Agent or any Lender has a reasonable basis
to believe that the Borrower is not in material compliance with all
Environmental Laws or Environmental Permits or that any property of
the Borrower or its Subsidiaries, or any property to which
Contaminants generated by Borrower or its Subsidiaries have come to
be located ("OFFSITE PROPERTY") has or may become contaminated or
subject to an order or decree such that any such non-compliance,
contamination or order or decree could reasonably be expected to
have a Material Adverse Effect then the Borrower agrees to, at the
Agent's request and the Borrower's expense: (a) cause a qualified
environmental engineer reasonably acceptable to the Agent to assess
the site where the alleged or actual noncompliance contamination
has occurred and prepare and deliver to the Agent, the Lenders and
the Borrower a report reasonably acceptable to Agent setting forth
the results of such assessments, a proposed plan and schedule for
responding to any environmental problems described therein, and an
estimate of the costs thereof; and (b) provide the Agent, the
Lenders and the Borrower a supplemental report of such engineer
whenever the scope of the environmental problems or the Borrower's
response thereto or the estimated costs thereof, shall change in
any material respect; or, as an alternative to subparagraphs
(a) and (b) above, the Borrower, upon the Agent's or any Lender's
request, shall allow the Agent or such Lender, as the case may be,
or an agent or representative of the Agent or such Lender, to enter
onto the property to conduct any desired environmental audits and
tests at the Borrower's expense. The Agent and the Lenders hereby
covenant and agree that any reports, records, notices, estimates or
other information they receive in connection with this subsection
shall be kept strictly confidential, and shall not be disclosed to
or used by any Person (other than the Agent's or any Lender's
authorized representatives for the purpose of reviewing or
enforcing the Agent's or such Lender's rights hereunder, which
persons shall also be bound by this sentence) unless and only to
the extent that disclosure is required pursuant to any
Environmental Laws, Environmental Permits, or order of a court of
competent jurisdiction, in which case the Agent or such Lender, as
the case may be, shall promptly notify the Borrower in writing of
such requirement and the nature and extent of the required
disclosure.
5.1.16 ADDITIONAL SUBSIDIARY GUARANTEES. Upon the
request of the Agent, the Borrower shall cause any domestic
Subsidiary (other than StoneSub) from time to time having assets
with a fair market value in excess of $25 million to execute a
Subsidiary Guarantee; PROVIDED, HOWEVER, that in the event the
-72-
Borrower acquires, directly or indirectly, a domestic Subsidiary in
an Acquisition after the Closing Date, such Subsidiary shall not be
required to execute a Subsidiary Guarantee so long as (i) all of
the funds used by the Borrower, directly or indirectly, to acquire
such Subsidiary were Discretionary Funds and (ii) neither the
Borrower nor any other Subsidiary shall make any loans or advances
to, or any Investments in (other than the initial Investment
therein), such Subsidiary, or assume, guarantee or endorse or
otherwise become directly or contingently liable in respect of, any
obligation of such Subsidiary until a Subsidiary Guarantee is so
delivered.
5.1.17 DELAYED COLLATERAL.
(a) The parties acknowledge that as a result of delays
associated with title and survey matters, third party consent
requirements and other matters (i) with respect to certain
converting plants it has been impractical to consummate on the
Closing Date the mortgaging of the interests of the Borrower or a
Subsidiary, as applicable, in the Mortgaged Property (the "DELAYED
PROPERTIES") marked with an asterisk on SCHEDULE 1.1(c), and (ii)
with respect to certain of the Mortgaged Properties that were
mortgaged on the Closing Date, certain title, survey, local counsel
opinions and other documents ("ANCILLARY DOCUMENTS") may not be
available on the Closing Date.
(b) As soon as practicable, but in any event on or prior
to February 17, 1995, the Borrower shall, or, as applicable, shall
cause its applicable Subsidiaries to, execute and deliver, or cause
to be delivered, to the Agent (i) Mortgages with respect to the
Delayed Properties together with all fixed assets and inventory
located at such facilities and including such environmental
information and studies, leases, title reports, title insurance
(with all requirements for the issuance thereof having been
satisfied), lien searches, opinions of counsel, evidence of
recordation and payment of applicable taxes as the Agent may
reasonably request and (ii) such Ancillary Documents as the Agent
may reasonably request. The Borrower shall also take or cause to
be taken all actions reasonably requested by the Agent in order to
perfect or protect the Liens of the Mortgages with respect to the
Delayed Properties. Without limiting the foregoing, the Borrower
shall use its best non-financial efforts to secure such landlord
consents, waivers and similar documents as the Agent may reasonably
request in connection with leasehold mortgages and related
mortgages or pledges of the Delayed Properties.
(c) To the extent that the Agent shall, in its sole
discretion, determine that in light of environmental, legal or
other considerations it would be adverse to the interests of the
Lenders or impractical to accept as collateral one or more of the
Delayed Properties, it may in writing release the Borrower from its
obligations to pledge any of such Delayed Properties, provided that
-73-
the Borrower shall provide, or cause to be provided, such
alternative collateral of reasonably comparable value as may be
acceptable to the Agent. Such additional collateral shall be
granted pursuant to such documentation and within such time period
as may be satisfactory to the Agent.
(d) To the extent that the Borrower or an applicable
Subsidiary is contractually prohibited from granting a leasehold
mortgage or mortgage on any Delayed Property which is leased or
subject to an industrial revenue bond financing and the Borrower
has complied with the last sentence of SECTION 5.1.17(b), the
Borrower shall be released from its obligation to grant a leasehold
mortgage or mortgage thereupon but shall not be released from its
obligation to pledge the fixed assets or inventory located at such
Delayed Property unless the Borrower or its applicable Subsidiary
is contractually prohibited from doing so in the relevant lease.
5.1.18 MERGER OF STONE SOUTHWEST. The Borrower shall
cause Stone Southwest to be merged with and into the Borrower
promptly after the earlier of (i) at such time as when such merger
would no longer cause a violation or breach of the terms and
conditions of the Stone Southwest Indenture or any other material
agreement or indenture to which Stone Southwest is a party and (ii)
such time as all Indebtedness issued under the Stone Southwest
Indenture and such other agreements and indentures has been paid in
full and such merger is no longer restricted thereby.
Section 5.2 NEGATIVE COVENANTS OF THE BORROWER. The
Borrower covenants and agrees that for so long as this Agreement is
in effect and until the Obligations and all other obligations
incurred hereunder, whether or not matured, are paid in full and
all Commitments have terminated, without the prior written consent
of the Required Lenders, the Borrower will not nor will it permit
any Subsidiary of the Borrower to:
5.2.1 LIENS. Except for Permitted Liens, create,
incur, assume or permit to exist any Lien on any of its or any of
its Subsidiaries' existing or future properties, assets (including
stock of any Subsidiaries), income or rights in any thereof whether
now owned or hereafter acquired.
5.2.2 INDEBTEDNESS FOR MONEY BORROWED. Create,
incur, assume or suffer to exist any Indebtedness for Money
Borrowed except for:
(a) the Obligations under the Loan Documents;
(b) Indebtedness for Money Borrowed as shown on SCHEDULE
4.6 hereto;
(c) Indebtedness for Money Borrowed incurred by Europa
Carton A.G., Stone Container Holdings GmbH, Ston Forestal,
-74-
S.A., Stone Container de Mexico S.A. de C.V., Cartomills,
S.A., Societe Emballages des Cevennes, S.A., Stone Container
Australia Pty. Ltd and Stone Container Japan Co., Ltd. or any
Subsidiary thereof, or any foreign Subsidiary created or
acquired after the Restatement Date (other than a Subsidiary
created or existing under United States or Canadian laws, or
any State, Province or other subdivision thereof), in each
case which is not guaranteed by (except as permitted by
SECTION 5.2.3(i)) and is non-recourse to the Borrower or any
Subsidiary of the Borrower;
(d) intercompany loans and advances (i) made in the
ordinary course of business to the Borrower or Wholly-Owned
Subsidiaries of the Borrower and, in the case of non-Wholly-
Owned Subsidiaries, Indebtedness arising out of Investments
permitted by SECTION 5.2.7; or (ii) made to StoneSub in an
aggregate principal amount at any time outstanding not in
excess (together with any unreimbursed capital contributions
made pursuant to SECTION 5.2.7(h)) of (A) the amounts
contemplated from time to time by the terms of the respective
Receivables Financings and (B) those amounts, up to an
aggregate at any one time outstanding of $5 million for each
$100 million (on a pro-rated basis) of Receivables Financings
which have been established and are in existence at such time,
which may be advanced to StoneSub in order to cure or remedy,
or otherwise avoid the commencement of, liquidation,
termination or similar events in connection with the
Receivables Financings; PROVIDED, HOWEVER, that, except as
otherwise expressly permitted under this Agreement, this
clause (d) shall not be deemed to permit intercompany
Indebtedness for Money Borrowed made to SVCPI (other than
pursuant to contractual agreements permitted by this Agreement
and as in effect on the date hereof) or to S-CC or any of S-CC's
Subsidiaries other than Indebtedness for Money Borrowed
made between S-CC and its Subsidiaries or between Subsidiaries
of S-CC;
(e) the Indebtedness for Money Borrowed of any Person at
the time such Person becomes a Subsidiary, or is merged or
consolidated with or into the Borrower or a Subsidiary of the
Borrower, so long as such Indebtedness for Money Borrowed was
not created in anticipation of or as a result of such Person
becoming a Subsidiary of the Borrower or of such merger or
consolidation;
(f) refinancings of Indebtedness for Money Borrowed due
to remarketing provisions, to provisions relating to computing
a variable rate of interest or to provisions providing for the
fixing of interest rates on theretofore variable rate
obligations as provided for in the instruments pursuant to
which such Indebtedness for Money Borrowed was issued as in
effect on the date hereof or assumed pursuant to SECTION
5.2.2(e), PROVIDED that the principal amount of such
-75-
Indebtedness for Money Borrowed is not increased thereby
except to the extent necessary to finance the fees and costs
of such refinancing;
(g) Indebtedness for Money Borrowed all the net proceeds
of which are used promptly (but in no event more than five
Business Days) after the date of the incurrence of such
Indebtedness for Money Borrowed to effect the prepayments as
set forth in SECTIONS 3.4 AND 3.6 so long as: (i) with respect
to any such Indebtedness for Money Borrowed in an aggregate
principal amount not to exceed $300,000,000, (A) such
Indebtedness for Money Borrowed is not secured by any Lien
(other than Permitted Liens described in clause (h) of the
definition of Permitted Liens), (B) such Indebtedness has an
average life which is at least equal to one year greater than
the remaining average life of the Term Loan but is less than
one year greater than the remaining average life of the
Additional Term Loan and D Tranche Term Loan, and (C) such
Indebtedness has a maturity which is at least one year after
the latest date (taking into account the application of all
previous prepayments) on which any regularly scheduled
principal installment is at the time due to be paid on the
Term Loan but is less than one year after the latest date
(taking into account the application of all previous
prepayments) on which any regularly scheduled principal
installment is at the time due to be paid on the Additional
Term Loan and D Tranche Term Loan; and (ii) with respect to
any such Indebtedness for Money Borrowed (other than any such
Indebtedness for Money Borrowed referred to in clause (i)
above), (A) such Indebtedness for Money Borrowed is not
secured by any Lien (other than Permitted Liens described in
clause (h) of the definition of Permitted Liens), (B) such
Indebtedness has an average life which is at least equal to
one year greater than the remaining average life of the
Additional Term Loan and D Tranche Term Loan and (C) such
Indebtedness has a maturity which is at least one year after
the latest date (taking into account the application of all
previous prepayments) on which any regularly scheduled
principal installment is at the time due to be paid on the
Additional Term Loan and D Tranche Term Loan;
(h) Indebtedness for Money Borrowed (i) in respect of
tax-exempt financings or (ii) all of the net proceeds of which
are used to effect a prepayment or defeasance of any IRB
identified on SCHEDULE 5.2.2 hereto (A) in the event that
amendments to the Code are enacted which would require that
the Borrower prepay or defease such IRB, (B) which is put to
the Borrower pursuant to presently existing contractual
arrangements identified on SCHEDULE 5.2.2 hereto and which the
Borrower is not able to resell at a market interest rate
without effecting a "reissuance" thereof for tax purposes, or
(C) which is being refinanced on terms requiring repayment of
-76-
such Indebtedness for Money Borrowed at times no earlier than
and in amounts no greater (except to the extent necessary to
finance the fees and costs of such refinancing) than required
by the present amortization schedule for the IRB being
refinanced and subject to covenants, defaults and other terms
which are not materially more restrictive upon or
disadvantageous to the obligor than the existing terms;
(i) Indebtedness for Money Borrowed consisting of
Financing Lease Obligations (including, without limitation,
Indebtedness under the ▇▇▇▇▇▇▇▇ Agreements); PROVIDED,
HOWEVER, that the amount of such obligations incurred after
the date hereof and payable prior to the Additional Term Loan
Maturity Date or D Tranche Term Loan Maturity Date shall not
exceed $100 million;
(j) Indebtedness for Money Borrowed constituting
guarantees by the Borrower or any Subsidiary permitted by
SECTION 5.2.3;
(k) Indebtedness for Money Borrowed of the Borrower or
a Subsidiary of the Borrower, as the case may be, issued,
incurred or assumed in respect of the purchase price of
property which is not secured by any Lien other than a Lien
referred to in clause (b) of the definition of Permitted
Liens; PROVIDED, HOWEVER, that not more than $100 million in
aggregate principal amount of such Indebtedness for Money
Borrowed shall mature prior to the Additional Term Loan
Maturity Date or D Tranche Term Loan Maturity Date;
(l) Subordinated Debt;
(m) Indebtedness for Money Borrowed consisting of an
unsecured line of credit not exceeding at any time outstanding
$50 million in aggregate principal amount by Stone-Canada or
any Subsidiary of Stone-Canada (other than S-CC);
(n) Indebtedness for Money Borrowed as defined in clause
(vi) of the definition of such term contained in the
Definitional Appendix;
(o) Indebtedness for Money Borrowed incurred in respect
of (i) foreign exchange, interest rate swap, interest rate cap
insurance, hedging agreements or similar arrangements entered
into in the ordinary course of business by the Borrower in
connection with the Obligations with a notional amount of such
agreements not exceeding the aggregate principal amount of the
Obligations, (ii) foreign exchange or currency swap agreements
or similar arrangements entered into in the ordinary course of
business by the Borrower or any Subsidiary to protect the
Borrower or any Subsidiary against fluctuations in currency
values and (iii) one or more unsecured interest rate swap or
-77-
similar hedging arrangements entered into in the ordinary
course of business by the Borrower pursuant to which the fixed
interest rate payment obligations up to $500 million aggregate
principal amount of Indebtedness for Money Borrowed at any
time outstanding would be converted to floating interest rate
payment obligations;
(p) Indebtedness for Money Borrowed of the Borrower as
permitted by the penultimate sentence of SECTION 5.2.13; and
Indebtedness for Money Borrowed by StoneSub from the Issuer
pursuant to Receivables Financings which in the aggregate
shall not permit StoneSub to incur Indebtedness for Money
Borrowed in excess of, subject to the third proviso of the
penultimate sentence of SECTION 5.2.13, $500 million at any
one time outstanding (and in the event that the Accounts
Receivable Financing Program includes Canadian dollar
Receivables of Subsidiaries organized under Canadian laws,
without giving effect to increases in such amount after the
date of the incurrence of such Indebtedness for Money
Borrowed, or portion thereof, solely as the result of
subsequent fluctuations in the exchange rate between U.S. and
Canadian dollars); PROVIDED, HOWEVER, that if (i) the Borrower
either (A) acquires any Subsidiaries not in existence as of
the Closing Date (other than through the formation of
Subsidiaries in the ordinary course of business to conduct
existing lines of business) or (B) enters into any lines of
business in which it is not engaged as of the Closing Date and
(ii) the Borrower and/or StoneSub engages in a Receivables
Financing or financing permitted by the penultimate sentence
of SECTION 5.2.13, in each case with respect to the
Receivables of the Subsidiary so acquired or the line of
business so acquired (each such financing, solely to the
extent relating to such new Subsidiary or new line of
business, a "NEW RECEIVABLES FINANCING") then, in such event,
the initial proceeds to the Borrower or StoneSub (as
applicable) of such New Receivables Financing, net of the
amount of any initial deposit to, the applicable cash
collateral spread account and of the fees and expenses of the
Borrower or StoneSub incurred in establishing such New
Receivables Financing and net of any amounts required to
refinance then existing New Receivables Financings, shall be
used (following remittance to the Borrower or the
Participating Subsidiary, as applicable, for the purchase of
Receivables therefrom) to make a mandatory prepayment as
required by SECTION 3.4(b) in the order required by SECTION
3.6(b) and (ii) in the case of any New Receivables Financing
structured as a borrowing by StoneSub (or deemed to be a
borrowing pursuant to the terms hereof), StoneSub shall borrow
(A) on the initial date of any New Receivables Financing, the
maximum borrowings then available to it (based on the initial
amount of Receivables transferred) under such New Receivables
Financing (except that such initial maximum borrowings may be
-78-
reduced by no more than $2 million for each New Receivables
Financing for reasons of administrative practicality) and (B)
after such initial date, in the reasonable business judgment
of StoneSub, the maximum borrowings practicable under such New
Receivables Financings which have been established and are
continuing. For purposes of this Agreement, (i) in the event
that the terms of any New Receivables Financing are amended to
increase the potential borrowings or sales thereunder, the
initial borrowing or sale by StoneSub under such amended
program shall be deemed to constitute a borrowing or sale
under an additional New Receivables Financing to the extent of
such increase, PROVIDED that this clause (i) shall not apply
in the event that the increase in the potential borrowings or
sales under such New Receivables Financing is being made
solely to finance additional purchases of Receivables from
then existing business lines of Participating Subsidiaries
whose Receivables with respect to such business line or lines
have grown or are expected to grow as the result of price
increases, greater sales or similar changes in general
business lines, (ii) in the event that any sale or purported
sale of Receivables to StoneSub by the Borrower or any
Participating Subsidiary is required to be recharacterized as
a loan, the resulting obligations of the Borrower or such
Participating Subsidiary shall not be deemed to be
Indebtedness for Money Borrowed and (iii) any Receivables
Financing structured as a sale of Receivables by StoneSub to
the Issuer shall, for all purposes of this Agreement, and
regardless of the treatment thereof by the Borrower on its
financial statements, be deemed to be an incurrence by
StoneSub of Indebtedness for Money Borrowed in respect of the
financing of the Receivables involved and not as a sale of
such Receivables by StoneSub;
(q) Indebtedness for Money Borrowed constituting
refinancings of Indebtedness for Money Borrowed identified on
SCHEDULE 4.6 hereto or in SECTION 5.2.2(v); PROVIDED, HOWEVER,
that no such refinancing shall shorten the final maturity or
average loan life of the refinanced Indebtedness, increase the
collateral, if any, securing any such refinanced Indebtedness
(provided that any collateral securing such refinanced
Indebtedness may be substituted with other property or assets
so long as the fair market value thereof does not exceed the
fair market value of the collateral being substituted at the
time of such substitution), be on terms which, taken as a
whole, are materially more adverse to the obligor or modify in
any way adverse to the Lenders any subordination provisions
applicable to such Indebtedness and, to the extent the
refinanced Indebtedness is non-recourse to the Borrower and
its other Subsidiaries and is not otherwise permitted to be
recourse Indebtedness, such Indebtedness shall be non-recourse
to the Borrower and its other Subsidiaries;
-79-
(r) Indebtedness for Money Borrowed the net proceeds of
which are used to pay annual premiums for property and
casualty insurance policies maintained by the Borrower or its
Subsidiaries and other prepaid amounts in respect of goods or
services purchased by the Borrower or its Subsidiaries in the
ordinary course of business, which Indebtedness at no time
exceeds $40 million in aggregate outstanding principal amount,
is unsecured (except for Liens described in clause (n) of the
definition of Permitted Liens) and is incurred on terms and
pursuant to documentation satisfactory to the Agent;
(s) from and after the date on which the Borrower has
repaid all outstanding Revolving Loan Obligations,
Supplemental Revolving Loan Obligations and Swing Line
Obligations, has terminated the Swing Line Commitment, all
Revolving Loan Commitments and all Supplemental Revolving Loan
Commitments, and has caused the ▇▇▇▇▇▇▇▇ Letters of Credit to
be terminated, and there exists no L/C Obligations or ▇▇▇▇▇▇▇▇
L/C Obligations, Indebtedness for Money Borrowed under a
replacement revolving credit facility in an aggregate
principal amount not to exceed $450 million, all of the
proceeds of which (net of issuance costs) are used for general
corporate purposes (including without limitation repayment of
Revolving Loans, Supplemental Revolving Loans and Swing Line
Loans), PROVIDED that such Indebtedness for Money Borrowed
shall be on terms not materially more adverse to the Borrower
than those existing hereunder;
(t) secured or unsecured Indebtedness for Money Borrowed
in an aggregate principal amount not to exceed $400 million
for general corporate purposes; PROVIDED, HOWEVER, that (i) if
such Indebtedness for Money Borrowed constitutes Senior
Indebtedness, the terms and conditions of such Indebtedness
and the documentation relating thereto shall be substantially
similar to, or shall be not materially more burdensome or
restrictive with respect to the Borrower and its Subsidiaries
or the Agent and the Lenders than, the terms and conditions
of, and the documentation relating to, the Borrower's
Indebtedness for Money Borrowed issued pursuant to the Senior
Indentures, and such Senior Indebtedness shall bear a market
rate of interest for comparable instruments at the time of
issue or sale and shall have no scheduled amortization
payments or otherwise mature on or prior to October 1, 2003,
(ii) if such Indebtedness for Money Borrowed does not
constitute Senior Indebtedness, the terms and conditions of
such Indebtedness and the documentation relating thereto shall
be substantially similar to the terms and conditions of, and
the documentation relating to, the Borrower's Subordinated
Debt issued pursuant to the Senior Subordinated Note
Indenture, and such Subordinated Debt shall bear a market rate
of interest for comparable instruments at the time of issue or
sale and shall have no scheduled amortization payments or
-80-
otherwise mature on or prior to October 1, 2003, (iii) to the
extent such Indebtedness for Money Borrowed is secured, such
Liens are permitted by clause (o) of the definition of
Permitted Liens and the Indebtedness secured thereby shall not
be less than 66% of the value of the collateral securing such
Indebtedness as of the date which such Indebtedness is
incurred, as such value is evidenced by appraisals or other
information delivered to the Agent by the Borrower, and (iv)
in no event shall any Subsidiary incur Indebtedness pursuant
to this subsection that is recourse to the Borrower or any
other Subsidiary if such Indebtedness refinances Indebtedness
that is non-recourse to the Borrower and its other
Subsidiaries and is not otherwise permitted to be recourse to
the Borrower and its other Subsidiaries;
(u) Indebtedness for Money Borrowed of S-CC and
Subsidiaries of S-CC to the extent permitted by the S-CC Debt
Documents. Any such Indebtedness for Money Borrowed shall be
non-recourse to the Borrower or any of its other Subsidiaries
(except S-CC and its Subsidiaries);
(v) Indebtedness for Money Borrowed incurred pursuant to
the Senior Notes and the First Mortgage Notes;
(w) unsecured Indebtedness for Money Borrowed the
proceeds of which shall be used to repay Revolving Loans and
which shall be in an aggregate principal amount which does not
exceed the lesser of (i) the aggregate cash consideration paid
by or on behalf of the Borrower to repurchase or prepay the
8-7/8% Notes plus the aggregate cash consideration which the
Borrower notifies the Agent prior to the issuance of such
Indebtedness for Money Borrowed that it intends (although not
obligated) to pay to repurchase or prepay the remaining
outstanding 8-7/8% Notes, in each case, as permitted by
SECTION 5.2.10(a)(xiv), and (ii) $50 million; PROVIDED,
HOWEVER, that (A) if such unsecured Indebtedness for Money
Borrowed shall constitute Senior Indebtedness, then the terms
and conditions of such Indebtedness for Money Borrowed, and
the documentation relating thereto, shall be substantially
similar to the terms and conditions of, and the documentation
relating to, the Borrower's Senior Indebtedness issued
pursuant to the Indenture dated November 1, 1991 between the
Borrower and The Bank of New York, as trustee, or the
Indenture dated October 12, 1994 between the Borrower and The
Bank of New York, as trustee, and such Senior Indebtedness
shall bear a market rate of interest for comparable
instruments at the time of issue or sale and shall have no
scheduled amortization payments on or prior to October 1,
2003, and (B) if such Indebtedness for Money Borrowed does not
constitute Senior Indebtedness, then the terms and conditions
of such Indebtedness for Money Borrowed, and the documentation
relating thereto, shall be substantially similar to the terms
-81-
and conditions of, and the documentation relating to, the
Borrower's Subordinated Debt issued pursuant to the Indenture
dated March 15, 1992 between the Borrower and The Bank of New
York, as trustee, and such Indebtedness shall bear a market
rate of interest for comparable instruments at the time of
issue or sale and shall have no scheduled amortization
payments on or prior to October 1, 2003; and
(x) secured Indebtedness for Money Borrowed in an
aggregate principal amount not to exceed $100 million and all
the net proceeds of which are used promptly (but in no event
more than five Business Days, or such longer period of time so
long as such net proceeds are held pursuant to escrow
arrangements satisfactory to the Agent) after the date of the
incurrence of such Indebtedness for Money Borrowed (i) to
effect the prepayments as set forth in SECTIONS 3.4 AND 3.6
and/or (ii) to prepay, repurchase, redeem or otherwise
extinguish any scheduled installment or stated maturity of any
other Indebtedness for Money Borrowed of the Borrower which,
pursuant to the contractual terms thereof, is scheduled for
repayment or maturity on or before May 1, 1999; PROVIDED,
HOWEVER, that (A) the terms and conditions of such
Indebtedness for Money Borrowed and the documentation relating
thereto shall be substantially similar to, or shall be not
materially more burdensome or restrictive with respect to the
Borrower and its Subsidiaries or the Agent and the Lenders
than, the terms and conditions of, and the documentation
relating to, the Borrower's Indebtedness for Money Borrowed
issued pursuant to the Senior Indentures, and such
Indebtedness for Money Borrowed shall bear a market rate of
interest for comparable instruments at the time of issue or
sale and which has no scheduled amortization payments or
otherwise matures on or prior to October 1, 2003, (B) such
Indebtedness for Money Borrowed is secured by mortgages on one
or more box converting facilities owned by the Borrower, which
mortgages secure only the real property and not any personal
property (including machinery and equipment) located at such
facilities, provided such Liens are permitted by clause (o) of
the definition of Permitted Liens and the value of the
collateral shall not exceed 150% of the Indebtedness secured
thereby as of the date such Indebtedness is incurred, as such
value is evidenced by appraisals or other documentation
satisfactory to the Agent and (C) the Borrower and the Persons
issuing or extending such Indebtedness for Money Borrowed
shall have executed and delivered to the Agent such
intercreditor agreements as the Agent may request, in form and
substance satisfactory to the Agent.
Any Indebtedness for Money Borrowed used in the calculation of any
threshold amount specified in any clause of this SECTION 5.2.2
shall not be used to calculate the threshold amounts specified in
another of such clauses.
-82-
5.2.3 GUARANTEES. Assume, guarantee or endorse, or
otherwise become directly or contingently liable in respect of, any
obligation of any Person, except, without duplication:
(a) subject to SECTION 5.3.2, the Borrower may assume,
guarantee or endorse, or otherwise become directly or
contingently liable in respect of, any obligation of any
Person, PROVIDED that notwithstanding the foregoing the
Borrower shall not be permitted to assume, guarantee or
otherwise take any of the foregoing actions with respect to
any Indebtedness for Money Borrowed incurred by S-CC, Seminole
Kraft (except as permitted by SECTIONS 5.2.8(g) and
5.2.10(a)(XIII)), StoneSub, SVCPI or any Subsidiary of any of
such entities except as set forth on SCHEDULE 5.2.3 hereto;
(b) by way of endorsement of negotiable instruments for
deposit or collection and similar transactions;
(c) guarantees identified on SCHEDULE 5.2.3 hereto;
(d) guarantees by any Subsidiary of the Borrower of
Indebtedness for Money Borrowed constituting Financing Lease
Obligations of any of its Subsidiaries (other than S-CC,
SVCPI, or any of their respective Subsidiaries) permitted by
SECTION 5.2.2;
(e) guarantees by a Subsidiary of the Borrower (other
than S-CC or any of its Subsidiaries) in the ordinary course
of business of such Subsidiary of Indebtedness of any Person
not exceeding in principal amount $75 million in the aggregate
for the Subsidiaries of the Borrower taken as a whole
(excluding S-CC and any of its Subsidiaries) at any time
outstanding;
(f) as contemplated by Section 10.01 of the Leveraged
Lease;
(g) guarantees by a Subsidiary of the Borrower in effect
at the time of its becoming a Subsidiary of the Borrower and
not created in contemplation thereof;
(h) to the extent not otherwise permitted by this
Section, guarantees by and other contingent liabilities of S-CC
and Subsidiaries of S-CC to the extent permitted by the S-CC Debt
Documents; and
(i) guarantees by the Borrower or any Subsidiary of the
Borrower of Indebtedness of any Person not exceeding $10
million in aggregate principal amount at any time.
5.2.4 AFFILIATE TRANSACTIONS. Enter into or engage
in any material transaction or contract (other than (i) agreements
-83-
existing on the Closing Date and identified on SCHEDULE 5.2.4
hereto, (ii) transactions or contracts with affiliates permitted
by SECTION 5.2.3, 5.2.7, 5.2.8 or 5.2.9 and (iii) agreements
between S-CC and any of its Subsidiaries or between Subsidiaries of
S-CC) with any Affiliate other than Wholly-Owned Subsidiaries of
the Borrower (except for the Restricted Subsidiaries of the
Borrower), on a basis less favorable to the Borrower or such
Subsidiary of the Borrower than those that could be obtained at the
time in a comparable good faith arms length transaction with an
unrelated third party. Except as specified on SCHEDULE 5.2.4 or as
otherwise specifically permitted under this Agreement, the Borrower
shall not permit any contract identified on SCHEDULE 5.2.4 to be
directly or indirectly amended or extended without the prior
consent of the Required Lenders; PROVIDED, HOWEVER, that any such
contract may be amended without the prior consent of the Required
Lenders if the applicable amendment is not materially adverse to
the Borrower or its applicable Subsidiary and if a copy of the
amendment is delivered to the Agent within five Business Days after
its execution.
5.2.5 DIVIDENDS. Declare or pay any dividend or
distribution, or purchase or redeem any shares of any class of
capital stock of the Borrower or any Subsidiary of the Borrower, or
make any other payment or distribution on or in respect of any
class of capital stock of the Borrower or any of its Subsidiaries,
or set aside any amounts for any such purposes, except that:
(a) any Subsidiary may pay dividends or make
distributions (including, without limitation, distributions in
the form of the redemption or purchase for cancellation of
shares or in connection with the reduction of capital) to the
Borrower or to any Wholly-Owned Subsidiary of the Borrower;
(b) the Borrower may pay cash dividends, make
distributions on its capital stock or make purchases or
redemptions of its capital stock to the extent that the
aggregate amount of all such dividends, distributions,
purchases and redemptions from October 1, 1994 to the date of
the proposed dividend, distribution, purchase or redemption
(after giving effect to such proposed dividend, distribution,
purchase or redemption) would not exceed the sum of (A) an
amount equal to (1) 75% of the Consolidated Net Income of the
Borrower for the period from October 1, 1994 to the date of
payment of such proposed dividend, distribution, purchase or
redemption MINUS (2) 100% of the Consolidated Net Loss of the
Borrower for the period from October 1, 1994 to the date of
payment of such proposed dividend, distribution, purchase or
redemption PLUS (B) 100% of the cash proceeds (net of the pro
rata fees, costs and expenses of sale and underwriting
discounts and commissions) of sales of common stock and
Permitted Preferred Stock of the Borrower from the Closing
Date to the date of payment of such proposed dividend,
-84-
distribution, purchase or redemption MINUS (C) the sum of the
amount of Investments made pursuant to SECTION 5.2.7(g), and
Capital Expenditures made pursuant to subsection (ii) of the
penultimate sentence of SECTION 5.2.11 PLUS (D) the principal
amount of all Subordinated Debt which is converted into equity
securities of the Borrower in accordance with the terms of the
instruments pursuant to which such Subordinated Debt was
issued, as in effect on June 30, 1995, exclusive of the
principal amount of any 8-7/8% Notes converted to equity
securities of the Borrower in connection with the transactions
permitted by SECTION 5.2.10(a)(XIV); PROVIDED, HOWEVER, that
without respect to the foregoing limitations, the Borrower
shall be permitted to pay cash dividends and to make
distributions with respect to its Permitted Preferred Stock
outstanding as of the date hereof (but not with respect to its
common stock or subsequently issued preferred stock) to the
extent such dividends or distributions are at the time
permitted by the terms of the Borrower's Indenture to the Bank
of New York, as trustee, dated as of March 15, 1992; and
PROVIDED FURTHER, that if all of the conditions to the
declaration of a dividend or distribution set out in this
subsection are satisfied at the time such dividend or
distribution is declared, then, subject to the proviso which
follows SECTION 5.2.5(h), such dividend or distribution may be
paid or made within forty-five (45) days after such
declaration even if the payment of such dividend, the making
of such distribution or the declaration thereof would not have
been permitted under this SECTION 5.2.5(b) at any time after
such declaration; and PROVIDED FURTHER, that solely for
purposes of computing Consolidated Net Income and Consolidated
Net Loss pursuant to clause (A) of this SECTION 5.2.5(b),
there shall be excluded from the computation thereof (x) fees
and other charges or write-offs incurred or accrued
(including, without limitation, the write-off of previously
unamortized debt issuance costs related to the Debt
Refinancing) in respect of Indebtedness incurred or repaid in
connection with the consummation of this Agreement, the
Related Transactions and the Stone Savannah Transactions and
(y) to the extent not otherwise excluded from the computation
thereof, any non-cash loss recognized by the Borrower in
respect of the repurchase, prepayment, conversion, redemption
or other extinguishment of the 8-7/8% Notes pursuant to
SECTION 5.2.10(a)(XIV);
(c) the Borrower may distribute shares of its common
stock to holders of the same or another class of its common
stock as a stock dividend or in connection with a stock split;
(d) the Borrower may distribute rights to purchase for
cash Permitted Preferred Stock or common stock to the holders
of its capital stock;
-85-
(e) the Borrower may exchange shares of its common stock
or Permitted Preferred Stock for any outstanding shares of its
capital stock other than preferred stock which is not
Permitted Preferred Stock;
(f) the Borrower may acquire the capital stock of Stone
Savannah as contemplated by SECTION 5.1.13;
(g) the Borrower or any Subsidiary of the Borrower may
make any Investment permitted by SECTION 5.2.7; and
(h) S-CC and its Subsidiaries may pay dividends or may
make distributions on their respective capital stock or
purchase or redeem any shares of any capital stock of S-CC or
its Subsidiaries, in each case to the extent not prohibited by
the terms of the S-CC Debt Documents;
PROVIDED, HOWEVER, that in the case of clause (b) above no Event of
Default or Unmatured Event of Default (except in the case of
regular quarterly dividends on the Borrower's common stock, and/or
Permitted Preferred Stock which do not exceed the amount of the
regular quarterly dividend paid by the Borrower on its common stock
and/or Permitted Preferred Stock for the calendar quarter ending
prior to such proposed dividend, in which case an Unmatured Event
of Default relating to a payment default only) shall have occurred
and be continuing before or after giving effect to any such
proposed dividend.
5.2.6 NEGATIVE DEBT COVENANTS. Except for (i)
instruments evidencing Indebtedness for Money Borrowed set out in
SCHEDULE 4.6 hereto, (ii) instruments set out in SCHEDULE 3.4, 4.3,
5.2.2 or 5.2.4 hereto, in either case as in effect on the Closing
Date, (iii) agreements to which StoneSub is or becomes a party
pursuant to the Accounts Receivable Financing Program, (iv) the
S-CC Debt Documents and other agreements to which S-CC or any
Subsidiary of S-CC is a party or (v) in the case of any Person
becoming a Subsidiary after the Closing Date, agreements in
existence at the time it becomes a Subsidiary to the extent they
were not entered into in anticipation of such Person becoming a
Subsidiary, directly or indirectly, voluntarily create or otherwise
voluntarily cause or suffer to exist or become effective any
encumbrance or restriction (other than encumbrances or restrictions
existing on the Closing Date and referenced on SCHEDULE 3.4 and any
encumbrances or restrictions contained in any Indebtedness which
refinances any Indebtedness referenced on SCHEDULE 3.4 provided
that the terms thereof are no more onerous to the Borrower or any
Subsidiary than those existing on the Closing Date) on the ability
of any Subsidiary of the Borrower to: (A) pay dividends or make
any other distributions on its capital stock; (B) make loans or
advances to the Borrower; or (C) repay loans or advances from the
Borrower. In addition, the Borrower shall not, nor shall it permit
any of its Subsidiaries to, directly or indirectly, voluntarily
-86-
create or otherwise voluntarily cause or suffer to exist or become
effective any encumbrance or restriction upon its ability to
encumber any of its property to secure the Obligations or any
Subsidiary Guarantee or to guaranty the Obligations and encumber
its property to secure such guaranty except for (1) encumbrances or
restrictions set forth on SCHEDULE 5.2.6 hereto, (2) encumbrances
or restrictions upon StoneSub created in connection with the
Accounts Receivable Financing Program, (3) in the case of any
Person becoming a Subsidiary after the Closing Date, encumbrances
or restrictions existing at the time it becomes a Subsidiary to the
extent they were not created in anticipation of such Person
becoming a Subsidiary, (4) Permitted Liens or (5) encumbrances or
restrictions on S-CC or Subsidiaries of S-CC to the extent not
prohibited by the S-CC Debt Documents.
5.2.7 INVESTMENTS. Have or make any Investment in
any Subsidiary or other Affiliate or any other Person except for:
(a) existing Investments and commitments to make
Investments set forth on SCHEDULE 5.2.7 hereto and existing
Investments and Investments to be made in the future pursuant
to the existing commitments or contracts of the Borrower and
its Subsidiaries set forth on SCHEDULE 5.2.7-A hereto, but in
no event in excess of the amounts specified on such SCHEDULE
5.2.7-A;
(b) Permitted Investments;
(c) Investments in Wholly-Owned Subsidiaries of the
Borrower other than Investments in StoneSub, S-CC or any of S-CC's
Subsidiaries (except as specifically permitted by clause
(j) of this Section) and other than additional Investments in
SVCPI made after the date, if any, on which such Person has
become a Wholly-Owned Subsidiary of the Borrower;
(d) in Fiscal Year 1994 and each Fiscal Year thereafter,
Investments in an amount equal to 15% of Capital Expenditures
permitted in such year by SECTION 5.2.11 (excluding Capital
Expenditures permitted by the final two sentences thereof but
including Capital Expenditure amounts carried over from year
to year so long as the Borrower had positive Consolidated Net
Income in the Fiscal Year in which such carryover amount
originates); PROVIDED, HOWEVER, that the amount of such
Investments shall be reduced by the amount of any Investments
made by the Borrower or its Subsidiaries during Fiscal Year
1994 and thereafter and identified on SCHEDULE 5.2.7-A (other
than the Belgium Cartomills Investment) and shall also be
reduced by the amount of any Acquisitions pursuant to SECTION
5.2.9(e)(i).
(e) Investments by the Borrower in Persons as permitted
by SECTION 5.2.9;
-87-
(f) loans or advances of a type included in the
definition of Investments and made by the Borrower or any
Subsidiary of the Borrower in the ordinary course of the
Borrower's or such Subsidiary's business;
(g) Investments (including Investments in S-CC and
SVCPI) in amounts not exceeding the amount of the Dividend
Basket immediately prior to the making of such Investment;
(h) Investments in StoneSub not in excess (together with
outstanding Indebtedness for Money Borrowed under SECTION
5.2.2(d)(II)) of (i) the amounts contemplated from time to
time by the terms of the respective Receivables Financings and
(ii) those amounts, up to an aggregate at any one time
outstanding, of $5 million for each $100 million (on a pro-rated
basis) of Receivables Financings which have been
established and are in existence at such time, which may be
advanced to StoneSub in order to cure or remedy, or otherwise
avoid the commencement of, liquidation, termination or similar
events in connection with the Receivables Financings;
(i) Investments made by the Borrower or any Subsidiary of
the Borrower in respect of debt or equity securities to the
extent received in a transaction permitted by SECTION
5.2.8(b) or 5.2.12;
(j) Investments by S-CC in its Subsidiaries and other
Investments by S-CC and its Subsidiaries to the extent not
prohibited by the S-CC Debt Documents;
(k) Investments by Europa Carton, A.G. or Stone Container
Holdings GmbH out of the proceeds of Indebtedness incurred by
Europa Carton, A.G. or Stone Container Holdings GmbH,
respectively, pursuant to SECTION 5.2.2(c);
(l) additional Investments (other than Investments in
S-CC, SVCPI or any of their respective Subsidiaries) out of
Discretionary Funds (other than any Discretionary Funds
resulting from any Debt Basket Proceeds or any Excess Excluded
Sales Proceeds) in an amount not to exceed the Discretionary
Funds Basket made at a time when no Event of Default or
Unmatured Event of Default shall have occurred and be
continuing;
(m) Investments in Stone Savannah on the Closing Date as
contemplated by SECTIONS 5.1.13 AND 6.1(l);
(n) Investments consisting of securities or notes
received in settlement of accounts receivable incurred in the
ordinary course of business from a customer which the Borrower
has reasonably determined is unable to make cash payments in
accordance with the terms of such account receivable;
-88-
(o) additional Investments in amounts and pursuant to
the terms and conditions set forth on SCHEDULE 1.1(b) hereto;
and
(p) an additional Investment in Seminole Kraft in an
amount not to exceed $1,250,000 for the purpose of acquiring
the remaining 1% of outstanding capital stock of Seminole
Kraft that was not previously owned by the Borrower.
Except as specifically provided in the foregoing clauses (d) (with
respect to SVCPI only), (g) and (j) neither the Borrower nor any
Subsidiary shall be permitted to make additional Investments in
Seminole Kraft, S-CC, SVCPI or any of their respective Subsidiaries
(other than (A) pursuant to contractual agreements permitted by
this Agreement and as in effect on the date hereof and set forth on
SCHEDULE 5.2.7-A and (B) Investments in Seminole Kraft, the
proceeds of which are promptly used to prepay Indebtedness for
Money Borrowed pursuant to SECTION 5.2.10(a)(xiii)).
5.2.8 MERGERS. Merge into or consolidate or
amalgamate with any Person except that:
(a) any Wholly-Owned Subsidiary of the Borrower (except
for StoneSub and any Restricted Subsidiary) may merge,
consolidate or amalgamate with or into the Borrower or another
Wholly-Owned Subsidiary of the Borrower (except for StoneSub
and any Restricted Subsidiary) and any corporation that is a
StoneSub may merge or consolidate with any other corporation
that is a StoneSub; PROVIDED, HOWEVER, that StoneSub may merge
with and into the Borrower in order to consummate a
refinancing of the Receivables Financings existing on the
Closing Date so long as (i) the Borrower immediately
contributes and transfers all or a substantial portion of the
assets of StoneSub into a newly formed StoneSub in connection
with such refinancing and (ii) all Indebtedness of the
StoneSub which has been merged with and into the Borrower is
immediately repaid in full with the proceeds of such
refinancing;
(b) any Subsidiary of the Borrower may merge with a
third party in a transaction for which the Borrower or one of
its Wholly-Owned Subsidiaries receives less than $50 million
in aggregate consideration or in a transaction in which the
Borrower or one of its Wholly-Owned Subsidiaries receives $50
million or more in aggregate consideration and receives (i) at
least 70% of such consideration for such merger in cash or
cash equivalents and readily marketable securities, (ii)
non-cash consideration for such merger consisting of debt
obligations of the purchaser and (iii) if any consideration to
be received consists of a note or other debt obligation, such
note or debt obligation shall be either (A) a note which is
not by its terms or the terms of any related instrument
-89-
subordinate to any other indebtedness or (B) a note or debt
obligation secured by a first priority security interest in
the assets of the Subsidiary of the Borrower so merged subject
only to the Permitted Liens described in subsections (c) and
(f) of the definition of Permitted Liens;
(c) any Wholly-Owned Subsidiary of the Borrower may
merge with a third party in a transaction in which the only
consideration paid by the Borrower or such Subsidiary of the
Borrower is common stock of the Borrower or Permitted
Preferred Stock;
(d) a Wholly-Owned Subsidiary may be liquidated and its
assets distributed to one or more Wholly-Owned Subsidiaries
and/or the Borrower;
(e) the Borrower may merge or consolidate with any
Person (except for StoneSub, SVCPI and any Restricted
Subsidiaries and Wholly-Owned Subsidiaries that borrow
independently on a non-recourse basis) so long as (i) the
Borrower is the surviving entity, (ii) the Consolidated
Tangible Net Worth of the Borrower immediately following such
merger or consolidation is greater than or equal to the
Consolidated Tangible Net Worth of the Borrower immediately
prior to such merger or consolidation and (iii) at the time of
such merger or consolidation and immediately thereafter no
Event of Default or Unmatured Event of Default shall have
occurred and be continuing;
(f) any Wholly-Owned Subsidiary of S-CC may merge with
S-CC or with any other Wholly-Owned Subsidiary of S-CC to the
extent not prohibited by the S-CC Debt Documents and S-CC or
any Subsidiary of S-CC may merge with a third party to the
extent not prohibited by the S-CC Debt Documents; and
(g) Seminole Kraft may merge with and into the Borrower
with the Borrower as the surviving corporation, provided that
(i) the Borrower shall have prepaid, defeased or otherwise
deposited under an irrevocable trust agreement in form and
substance reasonably satisfactory to the Agent, or caused to
be prepaid, defeased or so deposited, pursuant to the terms
and conditions of SECTION 5.2.10(a)(XIII), the Indebtedness of
Seminole Kraft under (A) the Credit Agreement dated as of
March 27, 1991, as amended, among Seminole Kraft, Citibank,
N.A., as agent, and the financial institutions party thereto
and (B) Seminole Kraft's 13.50% Subordinated Notes due October
15, 1996 issued under the Indenture dated as of October 15,
1986, as supplemented and amended, between Seminole Kraft and
Norwest Bank, as successor trustee to Manufacturers Hanover
Trust Company, (ii) Seminole Kraft shall have no Indebtedness
for Money Borrowed outstanding at the time of such merger
other than the Indebtedness for Money Borrowed set forth on
-90-
SCHEDULE 5.2.8(g) hereto, (iii) on the date of such merger the
Borrower shall deliver to the Agent a certificate of a
Responsible Officer of the Borrower certifying that both
before and after giving effect to the prepayment of such
Indebtedness and the consummation of such merger, no Event of
Default or Unmatured Event of Default has occurred is
continuing and the representations and warranties contained in
the Credit Agreement and the other Loan Documents are true and
correct in all material respects at and as of the date thereof
as though made on and as of the date thereof (except to the
extent specifically made with regard to a particular date) and
(iv) such merger shall occur on or prior to June 30, 1995.
The Borrower shall cause any equity interest or other non-cash
consideration received by the Borrower or any of its Subsidiaries
in consideration of any transaction permitted by this Section and
involving aggregate consideration of $50 million or more to be
pledged by the Borrower or such Subsidiary, as applicable, to the
Agent for the benefit of the Lenders pursuant to a Supplemental
Pledge Agreement. For purposes of this Section, the use of the
terms "merge" and "merger" shall be deemed to include, in the case
of Canadian Subsidiaries of the Borrower, the terms "amalgamate"
and "amalgamation," respectively.
5.2.9 PURCHASE OF STOCK OR ASSETS. Acquire any
assets, capital stock or debt securities of any Person (an
"ACQUISITION") except that:
(a) the Borrower and its Subsidiaries may acquire assets
other than capital stock in the ordinary course of business;
(b) the Borrower or any Subsidiary of the Borrower may
purchase assets or capital stock of a Person for a
consideration consisting in whole of common stock or Permitted
Preferred Stock of the Borrower so long as no Event of Default
or Unmatured Event of Default shall have occurred and be
continuing after giving effect to such Investment;
(c) the Borrower or any Subsidiary of the Borrower may
make any Investment permitted by SECTION 5.2.7 hereof;
(d) the Borrower may purchase the Facility pursuant to
Section 10.01, 10.04 or 19.09 of the Leveraged Lease;
(e) the Borrower or any Subsidiary of the Borrower may
make Acquisitions for cash consideration or property, PROVIDED
that the aggregate cash consideration or property paid by the
Borrower and its Subsidiaries for such Acquisition shall not
exceed (i) the maximum amount of Investments then permitted
pursuant to SECTION 5.2.7(d) PLUS (ii) after such maximum
amount has been reduced to zero, and so long as no Event of
Default or Unmatured Event of Default shall have occurred and
-91-
be continuing, an amount of Discretionary Funds (other than
any Discretionary Funds resulting from any Debt Basket
Proceeds or any Excess Excluded Sales Proceeds) not exceeding
the Discretionary Funds Basket;
(f) the Borrower or any Subsidiary may make Acquisitions
for cash consideration or property PROVIDED that the cash
consideration or property paid by the Borrower and its
Subsidiaries for any Acquisition shall not exceed the amount
of the Dividend Basket immediately prior to the making of such
Acquisition;
(g) Capital Expenditures permitted by SECTION 5.2.11
hereof and expenditures of the type described in subsections
(I)-(V) of the definition of Capital Expenditures may be made;
(h) [Intentionally Omitted];
(i) the Borrower or any Subsidiary of the Borrower may
acquire assets in connection with the asset exchanges permitted
by the first proviso to the first sentence of SECTION 5.2.12;
(j) the Borrower or any Subsidiary of the Borrower may
acquire capital stock or debt securities to the extent
permitted by SECTION 5.2.10;
(k) StoneSub may purchase or otherwise acquire an
interest in Receivables (with cash or by means of the issuance
of Indebtedness for Money Borrowed permitted by SECTION
5.2.2(d)(II)) pursuant to the Accounts Receivable Financing
Program; and
(l) S-CC may make Acquisitions to the extent not
prohibited by the S-CC Debt Documents.
Any acquisition or purchase counted for purposes of any of SECTIONS
5.2.9(a)-(l) shall not be counted for the purposes of any other
such subsection.
5.2.10 PREPAYMENT OF INDEBTEDNESS; CERTAIN AMENDMENTS.
(a) Make any voluntary purchase or prepayment of or
defease any Indebtedness for Money Borrowed or purchase,
voluntarily redeem or otherwise voluntarily acquire any
preferred or preference stock of the Borrower or any of its
Subsidiaries, except (i) the Obligations (to the extent
otherwise permitted hereby); (ii) a prepayment or defeasance
of the IRBs as permitted in SECTION 5.2.2(h); (iii) the
redemption, purchase, defeasance or voluntary prepayments of
any Indebtedness of the Borrower arising under or in
connection with the ▇▇▇▇▇▇▇▇ Agreements; (iv) repayment of the
-92-
unsecured lines of credit permitted by SECTION 5.2.2(m) or of
intercompany loans or advances permitted by SECTION 5.2.2(d);
(v) the redemption or purchase of preferred or preference
stock of Stone-Canada or any of its Wholly-Owned Subsidiaries;
(vi) refinancings permitted by SECTION 5.2.2; (vii) a purchase
or acquisition permitted under SECTION 5.2.7; (viii) S-CC or
any Subsidiary of S-CC may voluntarily purchase, prepay or
defease any of its Indebtedness for Money Borrowed or any
preferred or preference stock of S-CC or any Subsidiary of S-CC;
(ix) so long as no Event of Default or Unmatured Event of
Default shall have occurred and be continuing, the prepayment
of any maturity or maturities of debt securities of the
Borrower (including the payment of principal, stated premium,
if any, and interest thereon) out of Discretionary Funds in an
amount not to exceed the Discretionary Funds Basket; (x) the
Debt Refinancing and the Stone Savannah Transactions, all of
which shall occur on the Closing Date, except as otherwise
provided in SECTION 5.1.13, as a Related Transaction pursuant
to the Transaction Documents; (xi) transactions permitted by
SECTION 5.2.10(b); (xii) prepayments of Indebtedness for Money
Borrowed utilizing the proceeds of Indebtedness permitted by
SECTION 5.2.2(t); (xiii) the Borrower may voluntarily prepay,
or cause to be prepaid, the Indebtedness of Seminole Kraft
consisting of (A) Indebtedness under the Credit Agreement
dated as of March 27, 1991, as amended, among Seminole Kraft,
Citibank, N.A., as agent, and the financial institutions party
thereto, (B) Seminole Kraft's 13.50% Subordinated Notes due
October 15, 1996 issued under the Indenture dated as of
October 15, 1986, as supplemented and amended, between
Seminole Kraft and Norwest Bank, as successor trustee to
Manufacturers Hanover Trust Company, and (C) if necessary, up
to $8,400,000 of Indebtedness under the 1991 Settlement
Agreement dated as of March 26, 1991 entered into by Champion
International Corporation and Seminole Kraft, so long as the
aggregate amount of all such Indebtedness prepaid does not
exceed $140,000,000, and may use proceeds of the Revolving
Loan to prepay any such Indebtedness for Money Borrowed,
PROVIDED that (1) all existing Liens securing any such
Indebtedness for Money Borrowed of Seminole Kraft are promptly
released upon the prepayment of such Indebtedness for Money
Borrowed and (2) the Borrower shall, promptly upon the
prepayment of such Indebtedness for Money Borrowed, cause
Seminole Kraft to be merged with and into the Borrower
pursuant to the terms and conditions of SECTION 5.2.8(g); and
(xiv) the Borrower may use proceeds of Revolving Loans to
voluntarily repurchase, prepay, redeem or otherwise extinguish
the Indebtedness consisting of (A) all or any portion of the
8-7/8% Notes (including the payment of principal and interest
thereon) and (B) all or any portion of the 12-1/8%
Subordinated Debentures at par value (including the payment of
principal or par value and interest thereon) and/or any
Indebtedness for Money Borrowed of the Borrower constituting
-93-
Senior Indebtedness (including the payment of principal,
premium, whether or not stated, if any, and interest thereon),
PROVIDED that (1) no Unmatured Event of Default or Event of
Default shall have occurred and be continuing at the time of
any such repurchase, prepayment, redemption or extinguishment
(or, if irrevocable notice must be given to affect a
redemption or extinguishment, then at the time of giving such
notice) and (2) (i) the aggregate amount of cash consideration
paid by or on behalf of the Borrower to repurchase, prepay,
redeem or otherwise extinguish Indebtedness pursuant to this
clause (xiv) shall not exceed the lesser of (x) $250,000,000
or (y) the aggregate principal amount or par value of such
Indebtedness repurchased, prepaid, redeemed or otherwise
extinguished, and (ii) the aggregate amount of cash
consideration paid by or on behalf of the Borrower to
repurchase, prepay, redeem or otherwise extinguish 12-1/8%
Subordinated Debentures or Senior Indebtedness under clause
(B) above shall not exceed (x) $250,000,000 MINUS (y) the
aggregate cash consideration paid by or on behalf of the
Borrower in connection with the repurchase or prepayment of
the 8-7/8% Notes pursuant to clause (A) above;
(b) Amend, modify, cancel or issue any securities (except
for debt securities which are otherwise permitted by SECTION
5.2.2) in exchange for any Indebtedness for Money Borrowed or
any preferred or preference stock of the Borrower or any of
its Subsidiaries, except (i) that the Borrower may issue its
common stock or Permitted Preferred Stock in exchange for
Indebtedness for Money Borrowed; (ii) that Stone-Canada or any
of its Wholly-Owned Subsidiaries may issue common, preferred
or preference stock to any other Wholly-Owned Subsidiary in
exchange for inter-company debt; (iii) that Stone-Canada may
issue common and/or preferred shares of capital stock to the
Borrower in exchange for intercompany debt of Stone-Canada to
the Borrower or in exchange for preferred shares of capital
stock of Stone-Canada held by the Borrower; and (iv) with
respect to S-CC or any of its Subsidiaries, to the extent not
prohibited by the S-CC Debt Documents; or
(c) Materially amend, modify or grant any material
waiver (for purposes hereof any amendment, modification or
waiver with respect to subordination provisions, increasing
the principal amount, increasing the interest rate or
shortening maturity shall be deemed material) with respect to
any indenture (including, without limitation, the Senior
Subordinated Note Indenture), note or other instrument
(including, without limitation, the Continental Guaranty)
evidencing or creating such Indebtedness for Money Borrowed or
preferred stock of the Borrower or any Subsidiary (other than
Permitted Preferred Stock which remains Permitted Preferred
Stock after giving effect to any such amendment, modification
or waiver) or pursuant to which any such Indebtedness for
-94-
Money Borrowed or preferred stock was issued, PROVIDED that
this clause (c) shall not apply to agreements for Indebtedness
for Money Borrowed of S-CC or any Subsidiary of S-CC which
Indebtedness is nonrecourse to the Borrower or any other
Subsidiary of the Borrower (other than S-CC or any Subsidiary
of S-CC, as the case may be).
5.2.11 CAPITAL EXPENDITURES. Expend or incur any
Capital Expenditure in any Fiscal Year if the aggregate amount of
the Capital Expenditures expended or incurred by the Borrower and
its Subsidiaries (exclusive of S-CC and Subsidiaries of S-CC) in
such Fiscal Year would exceed the following amounts, as such
amounts may be increased in any Fiscal Year pursuant to the terms
and conditions set forth on SCHEDULE 1.1(B):
FISCAL YEAR AMOUNT
-------------------- -------------
1994 $225 million
1995 $225 million
1996 and each Fiscal $275 million
Year thereafter
Each of the foregoing amounts established for Fiscal Years
commencing with and including 1994 may be carried forward from one
year to the next to the extent not used for Capital Expenditures
(or for Investments pursuant to SECTION 5.2.7(d)) during any prior
Fiscal Year. Capital Expenditures permitted above (i) shall be
reduced for any Fiscal year by the amount of Investments made
during such Fiscal Year pursuant to SECTION 5.2.7(d) and by the
amount of expenditures made during such Fiscal Year pursuant to
SECTION 5.2.9(e), (ii) at the option of the Borrower, may be
increased at any time or from time to time by an amount not
exceeding the amount of the Dividend Basket immediately prior to
the making of such Capital Expenditure, and (iii) at the option of
the Borrower, so long as no Event of Default or Unmatured Event of
Default shall have occurred and be continuing, may be increased at
any time or from time to time by an amount of Discretionary Funds
(other than any Discretionary Funds resulting from any Debt Basket
Proceeds or any Excess Excluded Sales Proceeds) not exceeding the
Discretionary Funds Basket. Notwithstanding the foregoing
limitations on Capital Expenditures in this SECTION 5.2.11, (A) the
Borrower and its Subsidiaries may make Cluster Expenditures and (B)
Europa Carton, A.G. and Stone Container Holdings GmbH may make
Capital Expenditures out of the proceeds of Indebtedness incurred
by Europa Carton, A.G. or Stone Container Holdings GmbH,
respectively, pursuant to SECTION 5.2.2(c).
5.2.12 SALE OF ASSETS. Sell, lease, assign, transfer
or otherwise dispose of any Asset (other than cash or Permitted
Investments) or related group of Assets, including shares of
-95-
capital stock, to a Person which is not the Borrower or a
Wholly-Owned Subsidiary of the Borrower (other than a Restricted
Subsidiary) except sales or other dispositions of inventory in the
ordinary course of business for cash or represented by accounts
receivable, unless the transaction (i) is a disposition permitted
by SECTION 5.2.13, (ii) is a disposition of Collateral or Mortgaged
Property and is for consideration consisting solely of cash, cash
equivalents or readily marketable securities, (iii) is a
disposition not involving Collateral or Mortgaged Property and is
for aggregate consideration of not more than $50 million or (iv) is
a disposition not involving Collateral or Mortgaged Property and is
for aggregate consideration in excess of $50 million, of which at
least 70% consists of cash or cash equivalents and readily
marketable securities and any non-cash consideration consists of
debt obligations of the purchaser which are either in the form of
(A) a note which is not by its terms or the terms of any related
instrument subordinate to any other indebtedness or (B) a note or
debt obligation secured by a first priority security interest in
the assets of the purchaser purchased in such transaction subject
only to the Permitted Liens described in subsections (c) and (f) of
the definition of Permitted Liens; PROVIDED, HOWEVER, that ▇▇▇▇▇
and plant facilities and leasehold interests therein not
constituting Collateral or Mortgaged Property may be exchanged for
like-kind assets on an arms-length basis; PROVIDED FURTHER, that S-CC
and any Subsidiary of S-CC may sell, lease, assign, transfer or
otherwise dispose of assets to the extent not prohibited by, and in
accordance with the requirements of, the S-CC Debt Documents;
PROVIDED FURTHER, that in no event may the Borrower sell, lease,
assign or otherwise transfer any Collateral or Mortgaged Property
to any Subsidiary unless Substitute Collateral is provided in
accordance with SECTION 9.13(c), except (x) to the extent provided
in the Security Agreements and Mortgages and (y) that the Borrower
may transfer Collateral or Mortgaged Property not exceeding $10
million in aggregate fair market value to one or more Subsidiaries
so long as each such Subsidiary takes such transferred property
subject to the Liens under the applicable Loan Documents. The
Borrower shall cause any equity interest or other non-cash
consideration received by the Borrower or any of its Subsidiaries
in consideration of any transaction permitted by this Section and
involving aggregate consideration of $50 million or more to be
pledged by the recipient thereof to the Agent for the benefit of
the Lenders pursuant to a Supplemental Pledge Agreement; PROVIDED,
HOWEVER, that such requirement shall not apply if (i) the Assets
disposed of are subject to a Lien and such equity interest or other
non-cash consideration is required to be and is pledged or paid
over to the holder of such Lien or (ii) such consideration
constitutes Excluded Sale Proceeds.
5.2.13 SALE OF ACCOUNTS RECEIVABLE. Sell or otherwise
dispose of any account receivable, including any sale or transfer
to any Subsidiary of the Borrower, except that (a) any Subsidiary
of the Borrower may sell or transfer any of its accounts receivable
-96-
to the Borrower, (b) the Borrower or any Subsidiary of the Borrower
may sell its accounts receivable in the ordinary course of business
consistent with the Borrower's or such Subsidiaries' collection
practices as in effect from time to time and not as part of a
financing and (c) the Borrower or any Participating Subsidiary may
sell or otherwise grant an interest in its Receivables to StoneSub,
and StoneSub may sell or otherwise grant an interest in its
Receivables to other Persons, in each case pursuant to the Accounts
Receivable Financing Program. In addition to the foregoing, the
Borrower or any Subsidiary eligible to be a Participating
Subsidiary may directly sell interests in Receivables to a
financial institution or other Person (whether on a revolving
purchase basis or in a one-time transaction); PROVIDED, HOWEVER,
that all such sales shall be on terms (considered as a whole) not
materially more onerous to the Borrower and the Lenders than those
permitted for sales by StoneSub to the Issuer under the Receivables
Financings in existence on the Closing Date; and PROVIDED FURTHER,
that any such sales of receivables shall, for all other purposes of
this Agreement, and regardless of the treatment thereof by the
Borrower on its financial statements, be deemed to be an incurrence
by the Borrower of Indebtedness for Money Borrowed in respect of
the financing of the receivables involved and not as a sale of such
receivables; and PROVIDED FURTHER, that the aggregate of the
Indebtedness for Money Borrowed deemed to have been incurred and at
any time outstanding pursuant to this sentence shall reduce on a
dollar-for-dollar basis the aggregate principal amount of
Indebtedness for Money Borrowed which StoneSub is permitted to have
outstanding at any time under SECTION 5.2.2(p) pursuant to
Receivables Financings. Notwithstanding anything in this Section
to the contrary, S-CC and its Subsidiaries shall be permitted to
dispose of any account receivable to the extent not prohibited by
the S-CC Debt Documents.
5.2.14 SUBSIDIARIES. (a) Other than non-Wholly-Owned
Subsidiaries in existence on the Closing Date, S-CC and
Subsidiaries of S-CC, permit to exist Subsidiaries which are not
Wholly-Owned Subsidiaries; or (b) permit any Subsidiary which was
a Wholly-Owned Subsidiary on the Closing Date to cease to be a
Wholly-Owned Subsidiary, except in either case as otherwise
permitted by SECTIONS 5.2.8, or 5.2.12, as a result of honoring the
existing contractual commitments referenced on SCHEDULE 5.2.7-A or,
in the case of clause (b), as a result of a transaction otherwise
permitted hereby whereby such entity ceases to be a Subsidiary.
5.2.15 LEASE PAYMENTS. Except for lease payments
arising in connection with the Leveraged Lease or any Financing
Lease, incur, assume or suffer to exist or permit any of its
Subsidiaries to incur, assume or suffer to exist, any obligation
for rental payments as lessee, whether directly or as guarantor, if
after giving effect thereto, the aggregate amount of lease payments
required to be made by the Borrower and its Subsidiaries (other
than S-CC and Subsidiaries of S-CC) will exceed $150 million during
-97-
any calendar year, PROVIDED, HOWEVER, that S-CC and its
Subsidiaries may incur, assume or suffer to exist any obligations
for rental payments, as lessee, whether directly or as guarantor,
to the extent not prohibited by the S-CC Debt Documents.
5.2.16 ACCOUNTS RECEIVABLE FINANCING PROGRAM. Enter
into any initial documentation in connection with a Receivables
Financing or any sales of receivables permitted by the penultimate
sentence of SECTION 5.2.13 unless such documentation (i) has been
approved by the Required Lenders or is on terms and conditions
which, taken as a whole, are not materially more adverse to the
Borrower and the Lenders than the documentation in existence on the
Closing Date with respect to existing Receivables Financings or
(ii) is non-material documentation entered into pursuant to such
approved documentation or amend or modify in any material respect
any of such documentation unless such amendment or modification has
been so approved or otherwise satisfies the conditions of
clause (i) above.
Section 5.3 FINANCIAL COVENANTS OF THE BORROWER. The
Borrower covenants and agrees that for so long as this Agreement is
in effect and until the Obligations and all other obligations
incurred hereunder whether or not matured, are paid in full, the
Borrower will, unless first having procured the written consent of
the Required Lenders:
5.3.1 INTEREST COVERAGE RATIO. As of the end of each
Fiscal Quarter, calculated for the most recently completed four
Fiscal Quarters (but if four fiscal quarters have not been
completed since the Closing Date, then for the number of Fiscal
Quarters that have been completed since the Closing Date), maintain
an Interest Coverage Ratio for such period ending on a date set
forth below of not less than the amount set forth opposite such
date:
DATE RATIO
------------------ ---------
December 31, 1994 1.00 to 1
March 31, 1995 1.15 to 1
June 30, 1995 1.25 to 1
September 30, 1995 1.35 to 1
December 31, 1995 1.50 to 1
March 31, 1996 1.65 to 1
June 30, 1996 1.75 to 1
September 30, 1996 1.85 to 1
December 31, 1996 2.00 to 1
March 31, 1997 2.00 to 1
June 30, 1997 2.00 to 1
September 30, 1997 2.25 to 1
and thereafter
-98-
5.3.2 INDEBTEDNESS RATIO. Have an Indebtedness Ratio of
not more than the following amounts as of the end of each Fiscal
Quarter ending on a date set forth below:
DATE RATIO
------------------------- ---------
December 31, 1994 through
March 31, 1996 .85 to 1
June 30, 1996 through
September 30, 1996 .80 to 1
December 31, 1996 through
September 30, 1997 .77 to 1
December 31, 1997 through
September 30, 1998 .72 to 1
December 31, 1998 through
September 30, 1999 .67 to 1
December 31, 1999 and
thereafter .62 to 1
ARTICLE VI
CONDITIONS OF CREDIT
Section 6.1 CONDITIONS PRECEDENT TO THE BORROWING OF
INITIAL LOANS. The right of the Borrower to make the Borrowing of
the Initial Loans and the obligation of the Lenders to make the
Initial Loans under this Agreement shall be subject to the
fulfillment, at or prior to the time of the making of such Initial
Loans, of each of the following conditions:
(a) The Borrower shall have duly executed and delivered
to the Agent, with a signed counterpart for each Lender, this
Agreement and, subject to SECTION 5.1.17, all of the other Loan
Documents, all of which shall be in full force and effect.
(b) All of the other Basic Agreements shall have been
duly executed and delivered in form and substance satisfactory to
the Agent and shall be in full force and effect.
(c) No Event of Default or Unmatured Event of Default
shall have occurred and be continuing or will occur after giving
effect to the making of the Initial Loans and the consummation of
the transactions contemplated by the Basic Agreements.
(d) The Mergers shall have been consummated in
compliance with the Merger Documents and with all applicable laws.
The Agent shall have received duly executed copies of the Merger
documents as filed with the Secretary of the State of Delaware.
-99-
(e) The Agent shall have received proof that the
applicable Loan Documents and appropriate financing statements and
other documents required by the applicable Loan Documents have been
filed and/or recorded in such jurisdictions as the Agent shall have
specified or arrangements for such filing or recording satisfactory
to the Agent have been made; PROVIDED, HOWEVER, that with respect
to the recordations of the Mortgages in the real estate records of
any jurisdictions, proof of recordation shall not be required if
the Agent receives the title insurance or binders to assure the
same in accordance with this SECTION 6.1.
(f) The Agent shall have received copies of searches of
financing statements filed under the Uniform Commercial Code, lien
and judgment searches and title searches, as appropriate, with
respect to the Collateral and the Mortgaged Property which searches
are reasonably satisfactory to the Agent.
(g) Subject to SECTION 5.1.17, the Agent shall have
received binding policies of mortgagee's title insurance (with such
co-insurance and/or reinsurance arrangements as are satisfactory to
the Agent and with such special endorsements as the Agent shall
require, all in form reasonably satisfactory to the Agent),
together with such surveys as the Agent shall require, on each
parcel of the Mortgaged Property specified by the Agent pursuant to
policies on the applicable ALTA form which will insure that the
mortgagees thereunder will have a valid first mortgage lien
(subject to Permitted Liens) in the amounts specified on SCHEDULE
6.1(g) hereto, subject to such exceptions as are provided for in
the Mortgages.
(h) The Agent shall have received the signed opinion of
Sidley & Austin, counsel to the Borrower and its Subsidiaries,
dated the Closing Date and addressed to the Agent, the Co-Agents
and all of the Lenders in substantially the form set forth on
EXHIBIT 6.1(h) hereto, with such changes (if any) therein as shall
be acceptable to the Agent and as to such other matters as the
Agent may reasonably request, and the Agent shall have received the
signed opinions addressed to all of the Lenders of such local
counsel reasonably satisfactory to the Agent as the Agent may
reasonably request.
(i) The Agent shall have received a copy of all
resolutions (in form and substance reasonably satisfactory to the
Agent) adopted by the Board of Directors of each of the Borrower
and those Subsidiaries (including, without limitation, each of the
Stone Merger Subsidiaries and Stone Southwest Merger Subsidiaries)
as reasonably deemed necessary by the Agent, authorizing or
relating to (i) the execution, delivery and performance of the
Basic Agreements and the other documents and instruments provided
for therein, (ii) the consummation of the Mergers, and (iii) the
consummation of the transactions contemplated hereby and thereby,
(iv) the granting and confirmation of the liens, pledges, mortgages
-100-
and security interests pursuant to the Security Agreements, and the
Mortgages by the Borrower and its applicable Subsidiaries, together
with by-laws of the Borrower and such Subsidiaries, all certified
by the Secretary or a Vice-President of the Borrower and such
Subsidiary. Such certificate shall be dated the Closing Date and
shall state that the resolutions set forth therein have not been
amended, modified, revoked or rescinded as of such date and are at
such date in full force and effect.
(j) The Agent shall have received certified copies of
the charters of each of the Borrower and those Subsidiaries as
reasonably deemed necessary by the Agent in their respective
jurisdictions of incorporation and evidence of their good standing
therein.
(k) The Agent shall have received a certificate of the
Secretary or a Vice-President of the Borrower, dated the Closing
Date as to the incumbency and signature of the officers of the
Borrower and any applicable Subsidiary executing any Basic
Agreement and any certificate or other document or instrument to be
delivered pursuant thereto by or on behalf of the Borrower or such
Subsidiary, together with evidence of the incumbency of such
Secretary or Vice-President, as the case may be.
(l) Contemporaneously with the funding of the Initial
Loans, the Borrower shall have (i) paid in full all outstanding
indebtedness under the U.S. Credit Agreement, the U.S. Credit
Agreement shall have been terminated and all Liens existing
pursuant thereto shall have been released and terminated, (ii) made
loans and/or capital contributions to Stone-Canada, the proceeds of
which Stone-Canada shall have used to pay in full all outstanding
indebtedness under the Canadian Credit Agreements such that the
Canadian Credit Agreements shall have been terminated and all Liens
existing pursuant thereto shall have been released and terminated,
(iii) caused the payment in full of all outstanding indebtedness
under the Stone Savannah Credit Agreement such that the Stone
Savannah Credit Agreement shall have been terminated and all Liens
existing pursuant thereto shall have been released and terminated,
and (iv) shall have given irrevocable notice of redemption to the
trustee of the Stone Savannah Senior Subordinated Note Indenture
with respect to all outstanding Stone Savannah Senior Subordinated
Notes and shall have caused to be deposited with such trustee funds
sufficient to redeem in full all of the Stone Savannah Senior
Subordinated Notes at par (plus stated premium), together with
interest accrued and to accrue through the date of redemption,
which shall be on or prior to December 30, 1994. All of the
foregoing shall be pursuant to documentation reasonably
satisfactory to the Agent.
(m) The Agent shall have received a certificate executed
by a Responsible Officer on behalf of the Borrower, dated the
Closing Date and in the form of EXHIBIT 6.1(m) hereto.
-101-
(n) All outstanding participations in the ▇▇▇▇▇▇▇▇
Letters of Credit shall have been terminated and all Revolving
Lenders (other than BT) shall have entered into a Participation
Agreement with respect to its Revolving Loan Pro Rata share of the
▇▇▇▇▇▇▇▇ L/C Obligations.
(o) Each of Westinghouse Electric Corporation, Gelco
Corporation and BT shall have entered into amendments to the L/C
Agreement in substantially the forms of EXHIBITS 6.1(O)-A AND B
hereto.
(p) Contemporaneously with the funding of the Initial
Loans, the Borrower shall have paid in full all accrued Revolving
Loan Commitment Fees and the Facility Fee.
(q) The Borrower shall have paid the Agent the Agent's
Fees due on the Closing Date.
(r) The Agent shall have received a Notice of Borrowing
by 3:00 p.m. New York time on the Business Day prior to the Closing
Date with respect to its Initial Loans hereunder.
(s) The Agent shall have received the Environmental
Study, the results of which shall be acceptable to the Agent.
(t) The Agent shall have received certificates of
insurance evidencing insurance required to be maintained pursuant
to SECTION 5.1.9 and the other Loan Documents, evidence of full
payment of premiums thereon and loss payable endorsements, all as
required by this Agreement and the other Loan Documents.
(u) The Borrower shall have realized gross proceeds of
$700 million from the issuance and sale of the Senior Notes and the
First Mortgage Notes and the Agent shall have received a duly
executed copy of each of the Senior Note Documents and the First
Mortgage Note Documents, the terms, conditions, representations,
warranties, covenants, events of default and other provisions of
which shall be satisfactory in all respects to the Agent.
(v) The Borrower shall have entered into a letter
agreement with the Facing Agent providing for Letter of Credit
fees, in form and substance satisfactory to the Facing Agent.
(w) All corporate and other proceedings taken in
connection with the transactions hereunder at or prior to the
Closing Date and all documents incident thereto shall be reasonably
satisfactory in form and substance to the Agent.
(x) The Agent shall have received such other documents
or legal opinions as the Agent or the Required Lenders may
reasonably request, all in form and substance satisfactory to the
Agent. The Borrower shall have furnished to the Agent or the
-102-
Lenders such additional copies or executed counterparts of the
documents referred to above as the Agent or any Lender may request.
Section 6.2 CONDITIONS PRECEDENT TO ALL CREDIT EVENTS.
The right of the Borrower to make any Borrowing or to have issued
any Letter of Credit, and the obligation of each Lender to make a
Loan (including the Loans made on the Restatement Date and Swing
Line Loans) in respect of any such Borrowing and the obligation of
the Facing Agent to issue or any Revolving Lender to participate in
any Letter of Credit shall, in each case, be subject to the
fulfillment at or prior to the time of the making of such
Borrowing, or the issuance of such Letter of Credit, as the case
may be, of each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations
and warranties contained in ARTICLE IV of this Agreement and in the
other Loan Documents shall each be true and correct in all material
respects at and as of such time, as though made on and as of such
time except to the extent such representations and warranties are
expressly made as of a specified date in which event such
representation and warranty shall be true and correct as of such
specified date.
(b) NO DEFAULT. No Event of Default shall have occurred
and shall then be continuing on such date or will occur after
giving effect to such Borrowing (including without limitation the
use of proceeds requirements set forth in SECTION 5.1.11).
(c) NOTICE OF BORROWING; LETTER OF CREDIT REQUEST.
(i) Prior to the making of each Loan, the Agent shall
have received a Notice of Borrowing meeting the requirements
of SECTION 2.5.
(ii) Prior to the issuance of each Letter of Credit, the
Agent and the Facing Agent shall have received a request for
the issuance of a Letter of Credit meeting the requirements of
SECTION 2.12(C).
(d) OTHER INFORMATION. The Agent shall have received
such other instruments and documents as the Agent or the Required
Lenders may reasonably request in connection with the Loans and
Letters of Credit and all such instruments and documents shall be
reasonably satisfactory in form and substance to the Agent.
The acceptance of the benefits of each such Credit Event
by the Borrower shall be deemed to constitute a representation and
warranty by it to the effect of paragraphs (a), (b) and (c) of this
SECTION 6.2.
-103-
Section 6.3 CONDITIONS PRECEDENT TO EFFECTIVENESS OF
AGREEMENT, INITIAL FUNDING OF SUPPLEMENTAL REVOLVING LOANS AND
FUNDING OF D TRANCHE TERM LOAN. The amendments to the Existing
Credit Agreement embodied in this Agreement shall not be effective
(in which case the Existing Credit Agreement shall remain in full
force and effect), the initial Supplemental Revolving Loans shall
not be funded and the D Tranche Term Loan shall not be funded
unless and until the Borrower shall have furnished to the Agent, or
unless and until the following conditions precedent have been
satisfied, in each case on or prior to the Restatement Date:
(a) The Borrower, the Agent, the Required Lenders (as
defined in the Existing Credit Agreement), the Majority Revolving
Lenders (as defined in the Existing Credit Agreement), the Majority
Term Lenders (as defined in the Existing Credit Agreement), the
Majority Additional Term Lenders (as defined in the Existing Credit
Agreement) and each Supplemental Revolving Lender and D Tranche
Lender shall have duly executed and delivered this Agreement.
(b) The Borrower shall have duly executed and delivered
the Supplemental Revolving Notes and the D Tranche Term Notes.
(c) All of the other Basic Agreements shall be in full
force and effect.
(d) No Event of Default or Unmatured Event of Default
shall have occurred and be continuing or will occur after giving
effect to the making of the initial Supplemental Revolving Loan and
the D Tranche Term Loan and the consummation of the transactions
contemplated herein.
(e) The Agent shall have received duly executed
modifications to the Mortgages and such other Loan Documents as the
Agent may request, in form and substance satisfactory to the Agent,
together with assurances satisfactory to the Agent for the
recordations of the modifications to the Mortgages in the real
estate records of all appropriate jurisdictions.
(f) The Agent shall have received (i) such documentary,
intangible or similar taxes with respect to the Collateral and
Mortgaged Property and (ii) such additional and/or new title
insurance and title insurance endorsements with respect to the
Mortgaged Property as may be necessary to maintain the Agent's
perfected security interest (including existing priority) in the
Collateral and Mortgaged Property with respect to the Obligations
(including, without limitation, the Supplemental Revolving Loans
and the D Tranche Term Loan) and as the Agent may otherwise
reasonably request.
(g) The Agent shall have received the signed opinion of
Sidley & Austin, counsel to the Borrower and its Subsidiaries,
dated the Restatement Date and addressed to the Agent, the Co-
-104-
Agents and all of the Lenders in substantially the form set forth
on EXHIBIT 6.3(G) hereto, with such changes (if any) therein as
shall be acceptable to the Agent and as to such other matters as
the Agent may reasonably request, and the Agent shall have received
the signed opinions addressed to all of the Lenders of such local
counsel reasonably satisfactory to the Agent as the Agent may
reasonably request.
(h) The Agent shall have received a copy of the
resolutions (in form and substance reasonably satisfactory to the
Agent) adopted by the Board of Directors of the Borrower,
authorizing or relating to (i) the execution, delivery and
performance of this Agreement and the other documents and
instruments provided for herein, (ii) the consummation of the
transactions contemplated hereby and thereby, (iii) the
confirmation of the liens, pledges, mortgages and security
interests granted pursuant to the Security Agreements and the
Mortgages by the Borrower, together with the articles of
incorporation and by-laws of the Borrower, all certified by the
Secretary or an Assistant Secretary of the Borrower. Such
certificate shall be dated the Restatement Date and shall state
that the resolutions, articles of incorporation and by-laws set
forth therein have not been amended, modified, revoked or rescinded
as of such date and are at such date in full force and effect.
(i) The Agent shall have received certified copies of
the certificate of incorporation of the Borrower from its
jurisdiction of incorporation and evidence of its good standing
therein.
(j) The Agent shall have received a certificate of the
Secretary or an Assistant Secretary of the Borrower, dated the
Restatement Date as to the incumbency and signature of the officers
of the Borrower executing any Loan Document and any certificate or
other document or instrument to be delivered pursuant hereto by or
on behalf of the Borrower, together with evidence of the incumbency
of such Secretary or Assistant Secretary, as the case may be.
(k) Simultaneously with the funding of the D Tranche
Term Loan or as soon thereafter as may be possible without
incurring breakage costs under SECTION 2.16, the Borrower shall
utilize proceeds of Supplemental Revolving Loans and/or the D
Tranche Term Loan to repay outstanding Revolving Loans such that,
after giving effect thereto and to the application of the proceeds
of the D Tranche Term Loan, the Revolving Loan Availability Ratio
and the Supplemental Revolving Loan Availability Ratio are
equalized as nearly as possible.
(l) The Agent shall have received a certificate executed
by a Responsible Officer on behalf of the Borrower, dated the
Restatement Date and in the form of EXHIBIT 6.3(L) hereto.
-105-
(m) Contemporaneously with the funding of the D Tranche
Term Loan, the Borrower shall have paid in full the Additional
Fees, the Amendment Fees and the Waiver Fees.
(n) All corporate and other proceedings taken in
connection with the transactions hereunder at or prior to the
Restatement Date and all documents incident thereto shall be
reasonably satisfactory in form and substance to the Agent.
(o) The Agent shall have received such other documents
or legal opinions as the Agent or the Required Lenders may
reasonably request, all in form and substance satisfactory to the
Agent. The Borrower shall have furnished to the Agent or the
Lenders such additional copies or executed counterparts of the
documents referred to above as the Agent or any Lender may request.
In the event that all of the foregoing conditions
precedent have not been satisfied or waived on or before April 15,
1996, this Agreement (other than the required payment of certain
Additional Fees as separately agreed to between the Borrower and
BT) shall be of no further force and effect and the Existing Credit
Agreement shall continue in full force and effect.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.1 EVENTS OF DEFAULT. The occurrence of any
of the following events shall constitute an "EVENT OF DEFAULT":
(a) PAYMENTS. The Borrower (i) shall fail to pay when
due (whether at maturity, upon acceleration, by mandatory
prepayment or otherwise) any payment of principal on any Obligation
or (ii) shall default in the payment of interest on any Obligation
or default in the payment of any fee or other amount owing
hereunder or under any other Loan Document when due and, in the
case of this clause (ii), such default in payment shall continue
for a period of five (5) Business Days; or
(b) REPRESENTATIONS AND WARRANTIES. Any representation
or warranty on the part of the Borrower contained in, or
incorporated by reference in, any Basic Agreement or any document,
instrument or certificate delivered pursuant thereto shall have
been incorrect in any material respect when made or deemed to have
been made; or
(c) CERTAIN COVENANTS. The Borrower shall default in
the performance or observance of any term, covenant, condition or
agreement on its part to be performed or observed under SECTION 5.1
(except SECTIONS 5.1.1(B)-(H), 5.1.2, 5.1.3(B), 5.1.4, 5.1.5
(giving effect to any cure or remedy periods in the documents
-106-
referred to in such Sections), 5.1.6, 5.1.7, 5.1.8, 5.1.9, 5.1.12 and
5.1.15), 5.2 (except for SECTION 5.2.1 with respect to non-contractual
Liens) or 5.3; or
(d) OTHER COVENANTS. The Borrower shall default in the
performance or observance of any term, covenant, condition or
agreement on its part to be performed or observed hereunder or
under any Basic Agreement (and not constituting an Event of Default
under any other clause of this SECTION 7.1) and, with respect only
to such defaults as are capable of being remedied, such default
shall continue unremedied for a period of thirty (30) days after
written or telephonic (promptly confirmed in writing) notice
thereof has been given to the Borrower by the Agent or any Lender;
or
(e) BANKRUPTCY. The Borrower or any of its Subsidiaries
shall become insolvent or generally fail to pay, or admit in
writing its inability to pay, its debts as they become due, or
shall voluntarily commence any proceeding or file any petition
under any bankruptcy, insolvency or similar law or seeking
dissolution or reorganization or the appointment of a receiver,
trustee, custodian or liquidator for it or a substantial portion of
its property, assets or business or to effect a plan or other
arrangement with its creditors, or shall file any answer admitting
the jurisdiction of the court and the material allegations of an
involuntary petition filed against it in any bankruptcy, insolvency
or similar proceeding, or shall be adjudicated bankrupt, or shall
make a general assignment for the benefit of creditors, or shall
consent to, or acquiesce in the appointment of, a receiver,
trustee, custodian or liquidator for a substantial portion of its
property, assets or business; or
(f) INVOLUNTARY PROCEEDINGS. Involuntary proceedings or
an involuntary petition shall be commenced or filed against the
Borrower or any of its Subsidiaries under any bankruptcy,
insolvency or similar law or seeking the dissolution or
reorganization of it or the appointment of a receiver, trustee,
custodian or liquidator for it or of a substantial part of its
property, assets or business, or any writ, judgment, warrant of
attachment, execution or similar process shall be issued or levied
against a substantial part of its property, assets or business, and
such proceedings or petition shall not be dismissed, or such writ,
judgment, warrant of attachment, execution or similar process shall
not be released, vacated or fully bonded, within sixty (60) days
after commencement, filing or levy, as the case may be, or any
order for relief shall be entered in any such proceeding; or
(g) INDEBTEDNESS FOR MONEY BORROWED. (i) The Borrower
or any of its Subsidiaries (other than SVCPI) shall default in the
payment when due, whether at stated maturity or otherwise, of any
Indebtedness for Money Borrowed having an aggregate principal
amount of $10 million or more, (ii) an event of default as defined
-107-
in any mortgage, indenture, agreement or instrument under which
there may be issued, or by which there may be secured or evidenced,
any such Indebtedness for Money Borrowed shall occur which permits
any holder thereof to cause any such Indebtedness for Money
Borrowed of the Borrower or any of its Subsidiaries (other than
SVCPI) to become due and payable prior to the stated maturity or
due date thereof, or (iii) any event or condition shall occur which
with notice or lapse of time or both permits such Indebtedness for
Money Borrowed of the Borrower or any of its Subsidiaries (other
than SVCPI) to be declared due and payable prior to its stated
maturity or due date; PROVIDED, HOWEVER, that solely with respect
to S-CC or any of its Subsidiaries (but only in the event that S-CC
constitutes a Subsidiary of the Borrower), (A) any event described
in subsection (i) above shall constitute an Event of Default only
if the payment default relates to the final maturity of the
relevant Indebtedness for Money Borrowed and the holder thereof has
commenced legal action in respect of such default and (B) any event
described in subsection (ii) or (iii) above shall constitute an
Event of Default only if the relevant "event of default", "event"
or "condition" results in any such Indebtedness for Money Borrowed
being declared due and payable prior to its stated maturity or due
date; or
(h) JUDGMENTS. One or more judgments or decrees shall
be entered against the Borrower or any of its Subsidiaries
involving, individually or in the aggregate, a liability of $10
million or more and a sufficient number of such judgments or
decrees shall not have been vacated, discharged, satisfied or
stayed pending appeal within thirty (30) days from the entry
thereof so as to bring the aggregate below the $10 million
threshold set forth above; or
(i) BASIC AGREEMENTS. (i) Any of the Basic Agreements
shall cease for any reason to be in full force and effect (other
than termination in accordance with its terms) or the obligor
thereunder shall disavow or seek to discontinue its obligations
thereunder, or shall contest the validity or enforceability of any
thereof; or (ii) any Lien purported to be granted pursuant to the
Security Agreements or the Mortgages for any reason shall cease to
be a legal, valid or enforceable lien and security interest in the
Collateral or the Mortgaged Property, as the case may be; or
(j) ERISA. Either (i) any Reportable Event which
constitutes reasonable grounds for the termination of any Plan by
the PBGC or for the appointment by the appropriate United States
District Court of a trustee to administer or liquidate any Plan
shall have occurred; (ii) a trustee shall be appointed by a United
States District Court to administer any Plan; (iii) the PBGC shall
institute proceedings to terminate any Plan; (iv) any Plan shall be
terminated; or (v) the Borrower, any of its Subsidiaries or any
ERISA Affiliate shall become liable to the PBGC pursuant to ERISA
Sections 4063 or 4064; AND the aggregate outstanding liability of
-108-
the Borrower, all of its Subsidiaries, and all ERISA Affiliates
with respect to the Plan (assuming the Plan had terminated) and all
other Plans as to which any of the events (i) through (v) has
occurred exceeds $10 million or a contribution failure occurs with
respect to any Plan sufficient to give rise to a Lien under Section
302(f) of ERISA; or
(k) OTHER ERISA. Either (i) a trustee shall be appointed
by a United States District Court to administer any Multiemployer
Plan; (ii) the PBGC shall institute proceedings to terminate
any Multiemployer Plan; (iii) the Borrower, any of its Subsidiaries
or any ERISA Affiliates shall become liable to any Multiemployer
Plan pursuant to ERISA Section 4201; or (iv) any Multiemployer Plan
shall be terminated; AND the aggregate outstanding liability of
the Borrower, all of its Subsidiaries, and all ERISA Affiliates
with respect to the Multiemployer Plan (assuming the Multiemployer
Plan had terminated if either (i) or (ii) has occurred) and all other
Multiemployer Plans as to which any of the events (i) through (iv) has
occurred exceeds $20 million; or
(l) CROSS-DEFAULTS. Any default or event of default
shall occur under any of the Subsidiary Guarantees, the Security
Agreements, the Mortgages, any other Basic Agreement, the L/C
Agreement or the Continental Guaranty; PROVIDED, HOWEVER, that for
purposes of this Section and SECTION 7.1(G), no Default or Event of
Default shall be deemed to have occurred under the Continental
Guaranty to the extent that such Default or Event of Default arises
solely out of a cross-default under the Continental Guaranty to the
debt instruments of SVCPI or S-CC and Continental has neither
sought to enforce any remedies under the Continental Guaranty in
respect thereof nor given the Borrower written notice of its intent
to do so upon the passage of time or the occurrence or non-occurrence
of specified events; or
(m) CHANGE OF CONTROL. There shall have occurred a
Change of Control.
Section 7.2 REMEDIES. If an Event of Default shall
occur and be continuing, the Agent may and, at the direction of the
Required Lenders shall, take one or more of the following actions:
(a) by written or oral or telephonic notice (in the case of oral or
telephonic notice confirmed in writing promptly thereafter) to the
Borrower declare the Total Maximum Commitment to be terminated
whereupon the Total Maximum Commitment shall forthwith terminate,
(b) by written or oral or telephonic notice (in the case of oral or
telephonic notice confirmed in writing promptly thereafter) to the
Borrower declare all sums then owing by the Borrower hereunder to
be forthwith due and payable, whereupon all such sums shall become
and be immediately due and payable without presentment, demand,
protest or notice of any kind (except as expressly provided for
herein), all of which are hereby expressly waived by the Borrower,
-109-
or (c) exercise any remedies available under any Loan Document or
otherwise. In the case of the occurrence of any Event of Default
described in clause (E) or (F) of SECTION 7.1, the Total Maximum
Commitment shall forthwith terminate and the Obligations, together
with accrued interest thereon, shall become due and payable
forthwith without the requirement of any such acceleration or
request, and without presentment, demand, protest or other notice
of any kind, all of which are expressly waived, and other amounts
payable by the Borrower hereunder shall also become immediately due
and payable, all without notice of any kind.
If the maturity of the Obligations has been accelerated
pursuant to the preceding paragraph, the Borrower shall, on the
Business Day it receives notice from the Agent or the Required
Lenders thereof, deposit in an account with the Agent, for the
benefit of the Revolving Lenders, an amount in cash equal to the
L/C Obligations as of such date. Such deposit shall be held by the
Agent as collateral for the payment and performance of the L/C
Obligations. The Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits
in Permitted Investments, which investments shall be made at the
option and sole discretion of the Agent, such deposits shall not
bear interest. Interest or profits, if any, on such investments
shall accumulate in such account. Monies in such account shall (i)
automatically be applied by the Agent to reimburse the Facing Agent
and BT for any Letter of Credit disbursement, (ii) be held for the
satisfaction of the reimbursement obligations of the Borrower at
such time and (iii) be applied to satisfy the Obligations. If the
Borrower is required to provide an amount of cash collateral
hereunder as a result of an acceleration of the Obligations, such
amount (to the extent not applied as aforesaid) shall be returned
to the Borrower within three Business Days after all Events of
Default have been cured or waived and the acceleration has been
rescinded and annulled as provided in the succeeding paragraph.
Anything in this SECTION 7.2 to the contrary
notwithstanding, the Agent shall, if requested by the Required
Lenders (or all the Lenders if required by the terms of SECTION
9.2), within thirty (30) days of (a) the delivery to the Borrower
of a notice of acceleration of the Obligations or (b) an automatic
acceleration of the Obligations by reason of the occurrence of any
Event of Default described in clause (E) or (F) of SECTION 7.1,
rescind and annul any acceleration of the Obligations; PROVIDED,
HOWEVER, that at the time such acceleration is so rescinded and
annulled (i) all past due interest and principal, if any, on the
Obligations and all other sums payable under this Agreement and the
other Loan Documents (except any principal and interest on any
Obligations which has become due and payable by reason of such
acceleration pursuant to this SECTION 7.2) shall have been duly
paid and (ii) no other Event of Default or Unmatured Event of
Default shall have occurred and be continuing and the Agent shall
-110-
have received the certificate of an Executive Officer of the
Borrower to such effect. If any reduction in commitments has
occurred pursuant to this SECTION 7.2 in connection with any such
acceleration, then upon the rescission and annulment of such
acceleration pursuant to this SECTION 7.2, the Revolving Loan
Commitment of each Revolving Lender, the Supplemental Revolving
Loan Commitment of each Supplemental Lender and the Swing Line
Commitment of the Swing Line Lender shall be reinstated to the
respective amounts thereof which would have been in effect on the
date of such rescission and annulment had no commitment reduction
occurred pursuant to this SECTION 7.2.
ARTICLE VIII
THE AGENT
In this ARTICLE VIII, the Lenders agree among themselves
as follows:
Section 8.1 APPOINTMENT. The Lenders hereby appoint
BT as Agent hereunder and under each other Loan Document as herein
specified. Each Lender hereby irrevocably authorizes and each
holder of any Obligation by the acceptance thereof shall be deemed
irrevocably to authorize the Agent to take such action on its
behalf under the provisions of this Agreement and the other Basic
Agreements (including, without limitation, to give notices and take
such actions on behalf of the Required Lenders as are consented to
in writing by the Required Lenders) and any other instruments,
documents and agreements referred to herein and therein and to
exercise such powers hereunder and thereunder as are specifically
delegated to the Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Agent may
perform any of their respective duties hereunder, or under the Loan
Documents, by or through their respective agents or employees.
Section 8.2 NATURE OF DUTIES. The Agent shall not
have any duties or responsibilities, express or implied, except
those expressly set forth in this Agreement and the other Loan
Documents. The duties of the Agent shall be mechanical and
administrative in nature. The Agent shall not have by reason of
this Agreement a fiduciary relationship in respect of any Lender,
any Co-Agent or the Borrower. Nothing in this Agreement or any of
the Loan Documents, expressed or implied, is intended to or shall
be so construed as to impose upon the Agent any obligations in
respect of this Agreement or any of the Loan Documents except as
expressly set forth herein or therein. Each Lender shall make its
own independent investigation of the financial condition and
affairs of the Borrower and its Subsidiaries in connection with the
making and the continuance of the Loans and the issuance of Letters
of Credit hereunder, and shall make its own appraisal of the
creditworthiness of the Borrower. The Agent shall not have any
duty or responsibility, either initially or on a continuing basis,
-111-
to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before making of the Loans or at
any time or times thereafter. The Agent will promptly notify each Lender at
any time that the Required Lenders have instructed it to act or refrain from
acting pursuant to ARTICLE VII.
Section 8.3 RIGHTS, EXCULPATION, ETC. Neither the Agent nor any of
its officers, directors, employees or agents shall be liable to any Lender
for any action taken or omitted by it hereunder or under any of the Loan
Documents, or in connection herewith or therewith, unless caused by its or
their gross negligence or willful misconduct. Neither the Agent nor any of
its officers, directors, employees or agents shall be responsible to any
Lender for or have any duty to ascertain, inquire into, or verify (i) any
recitals, statements, representations or warranties made in connection with
any Loan Document or any Borrowing hereunder, (ii) the performance or
observance of any of the covenants or agreements of any obligor under any
Loan Document, including, without limitation, any agreement by an obligor to
furnish information directly to each Lender, (iii) the satisfaction of any
condition specified in ARTICLE VI, except receipt of items required to be
delivered to the Agent, or (iv) the execution, effectiveness, genuineness,
validity, enforceability, collectability or sufficiency of any of the Loan
Documents or the financial condition of the Borrower or any of its
Subsidiaries. The Agent shall not be required to make any inquiry concerning
either the performance or observance of any of the terms, provisions or
conditions of any of the Loan Documents or the financial condition of the
Borrower or any of its Subsidiaries, or the existence or possible existence
of any Unmatured Event of Default or Event of Default unless requested to do
so by the Required Lenders. The Agent shall have no duty to disclose to the
Co-Agents or the Lenders information that is not required to be furnished by
the Borrower to the Agent at such time, but is voluntarily furnished by the
Borrower to the Agent (either in its capacity as Agent or in its individual
capacity). The Agent may at any time request instructions from the Lenders
with respect to any actions or approvals which by the terms of any of the
Loan Documents the Agent is permitted or required to take or to grant, and if
such instructions are requested, the Agent shall be absolutely entitled to
refrain from taking any action or to withhold any approval and shall not be
under any liability whatsoever to any Person for refraining from any action
or withholding any approval under any of the Loan Documents until it shall
have received such instructions from the Required Lenders. Any such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders. Without limiting the foregoing, no Lender
shall have any right of action whatsoever against the Agent as a result of
the Agent acting or refraining from acting under any of the Loan Documents in
accordance with the instructions of the Required Lenders. The
- 112 -
Lenders hereby acknowledge that the Agent shall be under no duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement unless it shall be requested in writing to do so by the Required
Lenders.
Section 8.4 EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may
execute any of its duties as Agent hereunder and under any other Loan
Document by or through employees, agents and attorneys-in-fact and shall not
be answerable to the Lenders or the Co-Agents, except as to money or
securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Agent shall be entitled to advice of counsel concerning
all matters pertaining to the agency hereby created and its duties hereunder
and under any other Loan Document.
Section 8.5 RELIANCE. The Agent shall be entitled to rely upon any
written notice, statement, certificate, order or other document or any telephone
message reasonably believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person, and, with respect to all matters
pertaining to any of the Loan Documents and its duties hereunder or thereunder,
upon advice of counsel selected by it.
Section 8.6 INDEMNIFICATION. To the extent that the Agent is not
reimbursed and indemnified by the Borrower, the Lenders will reimburse and
indemnify the Agent for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Agent, acting pursuant hereto, in any way
relating to or arising out of any of the Loan Documents or any action taken or
omitted by the Agent, under any of the Loan Documents, in proportion to each
Lender's respective ratable share of the aggregate of the Total Maximum
Commitment (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination); PROVIDED, HOWEVER, that no
Lender shall be liable for any fees payable to the Agent pursuant to SECTION 3.9
or for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Agent's gross negligence or willful misconduct. The obligations of the Lenders
under this SECTION 8.6 shall survive the payment in full of the Obligations and
the termination of this Agreement.
Section 8.7 NOTICE OF DEFAULT. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Event of Default or Unmatured
Event of Default hereunder unless the Agent has received written notice from a
Lender or the Borrower referring to this Agreement describing such Event of
Default or Unmatured Event of Default and stating that such notice is a
"notice of
- 113 -
default". In the event that the Agent receives such a notice, the Agent
shall give prompt notice thereof to the Lenders.
Section 8.8 THE AGENT INDIVIDUALLY. With respect to its Revolving
Loan Pro Rata Share, Term Loan Pro Rata Share, Additional Term Loan Pro Rata
Share, Supplemental Revolving Loan Pro Rata Share, D Tranche Term Loan Pro Rata
Share, Maximum Commitment, Additional Term Loan Commitment, Supplemental
Revolving Loan Commitment and D Tranche Term Loan Commitment hereunder and the
Loans made or Letters of Credit issued by it, the Agent in its individual
capacity shall have and may exercise the same rights and powers hereunder and is
subject to the same obligations and liabilities as and to the extent set forth
herein for any other Lender or holder of an Obligation. The terms "Lenders",
"Required Lenders", "Majority Revolving Lenders", "Majority Term Lenders",
"Majority Additional Term Lenders", "Majority Supplemental Revolving Lenders" or
"Majority D Tranche Lenders" or any similar terms shall, unless the context
clearly otherwise indicates, include the Agent in its individual capacity as a
Lender, one of the Required Lenders or a holder of an Obligation. The Agent may
accept deposits from, lend money to, and generally engage in any kind of
banking, trust or other business with the Borrower or any Subsidiary of the
Borrower as if they were not acting as Agent pursuant hereto.
Section 8.9 RESIGNATION BY THE AGENT.
(a) The Agent may resign from the performance of all its functions and
duties hereunder at any time by giving 15 Business Days' prior written notice to
the Borrower and the Lenders. Such resignation shall take effect upon the
acceptance by a successor Agent of appointment pursuant to clauses (b) and (c)
below or as otherwise provided below.
(b) Upon any such notice of resignation by the Agent, the Required
Lenders shall appoint a successor Agent who shall be satisfactory to the
Borrower and shall be an incorporated bank or trust company having total assets
in excess of $3 billion (or the foreign currency equivalent thereof).
(c) If a successor Agent shall not have been so appointed within said
15 Business Day period, the Agent, with the consent of the Borrower, shall then
appoint a successor Agent who shall serve as Agent until such time, if any, as
the Required Lenders, with the consent of the Borrower, appoint a successor
Agent as provided above.
(d) If no successor Agent has been appointed pursuant to clause (b) or
(c) by the 20th Business Day after the date such notice of resignation was given
by the Agent, the Agent's resignation shall become effective and the Required
Lenders shall thereafter perform all the duties of the Agent hereunder until
such
- 114 -
time, if any, as the Required Lenders, with the consent of the Borrower,
appoint a successor Agent as provided above.
Section 8.10 HOLDERS OF OBLIGATIONS. The Agent may deem and treat
the payee of any Obligation as reflected on the books and records of the Agent
as the owner thereof for all purposes hereof unless and until a written notice
of the assignment or transfer thereof shall have been filed with the Agent
pursuant to SECTION 9.12(d). Any request, authority or consent of any Person
who, at the time of making such request or giving such authority or consent, is
the holder of any Obligation shall be conclusive and binding on any subsequent
holder, transferee or assignee of such Obligation or of any Obligation or
Obligations granted in exchange therefor.
Section 8.11 CO-AGENTS. None of the Lenders identified on the cover
page or signature pages of this Agreement as a "Co-Agent" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement or any
other Loan Document other than those applicable to all Lenders as such. Each
Lender acknowledges that it has not relied, and will not rely, on any of the
Lenders identified as Co-Agents in deciding to enter into this Agreement or in
taking or refraining from taking any action hereunder or pursuant hereto.
ARTICLE IX
MISCELLANEOUS
Section 9.1 NO WAIVER; MODIFICATIONS IN WRITING. No failure or
delay on the part of the Agent or any Lender in exercising any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies provided for herein and in the other Loan Documents are cumulative
and are not exclusive of any remedies that may be available to the Agent or any
Lender at law, in equity or otherwise.
Section 9.2 AMENDMENTS. No amendment, modification, supplement,
termination or waiver of or to any provision of this Agreement, nor consent to
any departure by the Borrower or any of its Subsidiaries therefrom, shall be
effective unless the same shall be in writing and signed by or on behalf of the
Required Lenders; PROVIDED, HOWEVER, that no such amendment, modification,
supplement, termination, waiver or consent, as the case may be, which
(i) reduces the rate of interest on any Loan or reduces the principal amount of
any Loan or the amount of fees payable by the Borrower hereunder, or forgives
any such payment or any part thereof; (ii) extends the Term Loan Maturity Date
or the Revolver Termination Date or the scheduled date for the payment of
interest
- 115 -
on any Loan; (iii) changes this SECTION 9.2 or the definitions of the terms
"Required Lenders", "Revolving Loan Pro Rata Share" or "Term Loan Pro Rata
Share"; (iv) changes the Maximum Commitment of any Lender hereunder;
(v) releases the Liens created by the Loan Documents upon all or substantially
all of the Collateral and the Mortgaged Property (except where Substitute
Collateral is provided or as otherwise permitted by SECTION 9.13) or changes the
provisions of SCHEDULE 1.1(b) hereto relating to the release of all of the
Collateral and Mortgaged Property; or (vi) releases or terminates all or
substantially all of the Subsidiary Guarantees shall be effective unless the
same shall be signed by or on behalf of (A) in the case of any changes
described in clause (i), (ii) or (iii) (other than changing the definition of
"Required Lenders") above, each Term Lender if amounts payable to the Term
Lenders would be affected by such change or each Revolving Lender if amounts
payable to the Revolving Lenders would be affected by such change, with each
class of Lenders voting as a separate class, and (B) in the case of any changes
described in clause (iv), (v) or (vi) above, each Lender hereunder; PROVIDED
FURTHER, that except as provided in SECTION 3.6(f), no such amendment,
modification, supplement, termination, waiver or consent which changes the
application of any prepayments or scheduled repayments of any Loans, reduces the
amount of or waives any prepayments or scheduled repayments of any Loans, or
extends the time of payment for any prepayments or scheduled repayments of any
Loans, shall be effective unless the same shall be signed by or on behalf of (i)
to the extent such prepayment or repayment applies to the Term Loan, Term
Lenders holding Term loans representing more than 50% of the aggregate
outstanding principal amount of the Term Loan (the "MAJORITY TERM LENDERS"),
and (ii) to the extent such prepayment or repayment applies to the Revolving
Loan, Revolving Lenders holding Revolving Loans and Revolving Loan Commitments,
if any, representing more than 50% of the sum of (x) the aggregate outstanding
principal amount of the Revolving Loans and (y) the Total Available Revolving
Commitment (the "MAJORITY REVOLVING LENDERS"); and PROVIDED FURTHER, that no
such amendment, modification, supplement, termination, waiver or consent, as the
case may be, which has the effect of (i) increasing the duties or obligations of
the Agent hereunder; or (ii) increasing the standard of care or performance
required on the part of the Agent, the Swing Line Lender or any Facing Agent
hereunder, or (iii) reducing or eliminating the fees, indemnities or immunities
to which the Agent, the Swing Line Lender or any Facing Agent is entitled
hereunder (including, without limitation, any amendment or modification of this
Section) shall be effective unless the same shall be signed by or on behalf of
the Agent, the Swing Line Lender or such Facing Agent, as the case may be. Any
amendment, modification or supplement of or to any provision of this Agreement,
any waiver of any provision of this Agreement, and any consent to any departure
by the Borrower from the terms of any provision of this Agreement, shall be
effective only in the specific instance and for the specific purpose for which
made or given.
- 116 -
Section 9.3 CERTAIN OTHER AMENDMENTS; AMENDMENTS AFFECTING
ADDITIONAL LENDERS, SUPPLEMENTAL REVOLVING LENDERS AND D TRANCHE LENDERS. No
amendment which changes (i) this clause (i) or the definition of "Term Loan Pro
Rata Share" shall be effective unless the same shall be signed by or on behalf
of each Term Lender which at the time has outstanding any portion of the Term
Loan or (ii) this clause (ii) or the definition of "Revolving Loan Pro Rata
Share" shall be effective unless the same shall be signed by or on behalf of
each Revolving Lender which at the time has made or has outstanding a portion of
the Revolving Loan Commitment or the Revolving Loans. In addition, without
limiting or changing the provisions of SECTION 9.2, no amendment, modification,
supplement, termination, waiver or consent of or to any provision of this
Agreement which (i) reduces the rate of interest on any Additional Term Loan or
reduces the principal amount of any Additional Term Loan, or forgives any such
payment or any part thereof, (ii) extends the Additional Term Loan Maturity Date
or the scheduled date for the payment of interest on any Additional Term Loan,
(iii) changes this second sentence of SECTION 9.3 or the definition of the term
"Additional Term Loan Pro Rata Share" or (iv) changes the Additional Term Loan
Commitment of any Additional Lender hereunder shall be effective unless the same
shall be signed by or on behalf of each Additional Lender if amounts payable to
the Additional Lenders would be affected by such change; PROVIDED, HOWEVER, that
except as provided in SECTION 3.6(f), no such amendment, modification,
supplement, termination, waiver or consent which changes the application of any
prepayments or scheduled repayments of the Additional Term Loan, reduces the
amount of or waives any prepayments or scheduled repayments of the Additional
Term Loan, or extends the time of payment for any prepayments or scheduled
repayments of the Additional Term Loan, shall be effective unless the same shall
be signed by or on behalf of Additional Lenders holding Additional Term Loans
representing more than 50% of the aggregate outstanding principal amount of the
Additional Term Loan (the "MAJORITY ADDITIONAL TERM LENDERS"). Without limiting
or changing the provisions of SECTION 9.2, no amendment, modification,
supplement, termination, waiver or consent of or to any provision of this
Agreement which (i) reduces the rate of interest on any Supplemental Revolving
Loan or reduces the principal amount of any Supplemental Revolving Loan, or
forgives any such payment or any part thereof, (ii) extends the Supplemental
Revolver Termination Date or the scheduled date for the payment of interest on
any Supplemental Revolving Loan, (iii) changes this third sentence of
SECTION 9.3 or the definition of the term "Supplemental Revolving Loan Pro Rata
Share" or (iv) changes the Supplemental Revolving Loan Commitment of any
Supplemental Revolving Lender hereunder shall be effective unless the same shall
be signed by or on behalf of each Supplemental Revolving Lender if amounts
payable to the Supplemental Revolving Lenders would be affected by such change;
PROVIDED, HOWEVER, that no such amendment, modification, supplement,
termination, waiver or consent which changes the application of any prepayments
or scheduled repayments of the
- 117 -
Supplemental Revolving Loan, reduces the amount of or waives any prepayments
or scheduled repayments of the Supplemental Revolving Loan, or extends the time
of payment for any prepayments or scheduled repayments of the Supplemental
Revolving Loan, shall be effective unless the same shall be signed by or on
behalf of Supplemental Revolving Lenders holding Supplemental Revolving Loans
representing more than 50% of the sum of (i) the aggregate outstanding
principal amount of the Supplemental Revolving Loans and (ii) the Total
Available Supplemental Revolving Commitment (the "MAJORITY SUPPLEMENTAL
REVOLVING LENDERS"). Without limiting or changing the provisions of SECTION
9.2, no amendment, modification, supplement, termination, waiver or consent of
or to any provision of this Agreement which (i) reduces the rate of interest on
any D Tranche Term Loan or reduces the principal amount of any D Tranche Term
Loan, or forgives any such payment or any part thereof, (ii) extends the
D Tranche Term Loan Maturity Date or the scheduled date for the payment of
interest on any D Tranche Term Loan, (iii) changes this fourth sentence of
SECTION 9.3 or the definition of the term "D Tranche Term Loan Pro Rata
Share" or (iv) changes the D Tranche Term Loan Commitment of any D Tranche
Lender hereunder shall be effective unless the same shall be signed by or on
behalf of each D Tranche Lender if amounts payable to the D Tranche Lenders
would be affected by such change; PROVIDED, HOWEVER, that except as provided in
SECTION 3.6(f), no such amendment, modification, supplement, termination, waiver
or consent which changes the application of any prepayments or scheduled
repayments of the D Tranche Term Loan, reduces the amount of or waives any
prepayments or scheduled repayments of the D Tranche Term Loan, or extends the
time of payment for any prepayments or scheduled repayments of the D Tranche
Term Loan, shall be effective unless the same shall be signed by or on behalf of
D Tranche Lenders holding D Tranche Term Loans representing more than 50% of the
aggregate outstanding principal amount of the D Tranche Term Loan (the "MAJORITY
D TRANCHE TERM LENDERS").
Section 9.4 NOTICES, ETC. Except where telephonic instructions or
notices are authorized herein to be given, all notices, demands, instructions
and other communications (collectively, "NOTICES") required or permitted to be
given to or made upon any party hereto or any other Person shall be in writing
and (except for written confirmations of telephonic or telex instructions) shall
be personally delivered or sent by registered or certified mail, postage
prepaid, return receipt requested, or by a reputable courier delivery service,
or by prepaid telex, TWX or telegram (with messenger delivery specified in the
case of a telegram), or by telecopier. Notices shall be deemed to be given for
purposes of this Agreement (a) if given by telex, when such telex is transmitted
to the telex number specified in this Section and the appropriate answerback is
received, (b) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (c) if
given by any other means (including, without limitation, by air courier),
- 118 -
when delivered at the address specified in this Section; PROVIDED, HOWEVER,
that any Notice of Borrowing to the Agent shall not be effective until
received. Unless otherwise specified in a Notice sent or delivered in
accordance with the foregoing provisions of this Section Notices shall be
given to or made upon the respective parties hereto at their respective
addresses (or to their respective telex, TWX or telecopier numbers) indicated
on their signature pages hereto or in any Assignment Agreement and, in the
case of telephonic instructions or notices, by calling the telephone number
or numbers indicated for such party. Except where notice is specifically
required by this Agreement or any other Basic Agreement, no notice to or
demand on the Borrower in any case shall entitle the Borrower to any other or
further notice or demand in similar or other circumstances.
Section 9.5 COSTS, EXPENSES AND TAXES. The Borrower agrees to pay
(without duplication) all reasonable costs and expenses incurred by the Agent in
connection with the negotiation, preparation, reproduction, execution and
delivery of this Agreement and the other Basic Agreements, any amendments,
waivers or modifications of any of the foregoing and any and all other documents
furnished pursuant hereto or thereto or in connection herewith or therewith,
including the reasonable fees and out-of-pocket expenses of Winston & ▇▇▇▇▇▇,
special counsel to the Agent, any local counsel retained by the Agent,
reasonable attorney's fees and expenses or (but not as well as) the reasonable
allocated costs of staff counsel of the Agent as well as the reasonable fees and
out-of-pocket expenses of additional special counsel, independent public
accountants, investment advisors and other outside experts retained by or on
behalf of the Agent in connection with the administration of this Agreement or
with matters generally relating to this Agreement or any of the transactions
contemplated by this Agreement, and all costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses or (but not as well as) the
reasonable allocated costs of staff counsel, if any) incurred by the Agent or
any Lender in connection with the enforcement of this Agreement, any other Basic
Agreement or any other agreement furnished pursuant hereto or thereto or in
connection herewith or therewith. In addition, the Borrower shall pay any and
all stamp, original issue and other similar taxes payable or determined to be
payable in connection with the execution and delivery of this Agreement, any
Basic Agreement or the making of any Loan, and the Borrower agrees to save and
hold the Agent, the Co-Agents and each Lender harmless from and against any and
all liabilities with respect to or resulting from any delay in paying, or
omission to pay, such taxes. Expenses being reimbursed by the Borrower under
this Section include, without limitation, the cost and expense of obtaining an
appraisal of each parcel of real property or interest in real property described
in the Mortgages, which appraisals shall be in conformity with the applicable
requirements of any law or governmental rule, regulation, policy, guideline or
directive (whether or not having
- 119 -
the force of law), or any interpretation thereof, including, without
limitation, the provisions of Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as amended, reformed or otherwise
modified from time to time, and any rules promulgated to implement such
provisions. Any portion of the foregoing fees, costs and expenses which
remains unpaid more than thirty (30) days following the Agent's or any
Lender's statement and request for payment thereof shall bear interest from
the date of such statement and request to the date of payment at the Default
Rate.
Section 9.6 INDEMNIFICATION. The Borrower will (a) indemnify and
hold harmless each Lender, each Co-Agent and the Agent and each director,
officer, employee, agent or attorney and Affiliate thereof (each such Person
an ("INDEMNIFIED PARTY") from and against all losses, claims, damages,
expenses or liabilities to which such Indemnified Party may become subject,
insofar as such losses, claims, damages, expenses or liabilities (or actions,
suits or proceedings including any inquiry or investigation or claims in
respect thereof) arise out of, in any way relate to, or result from the
transactions contemplated by any Basic Agreement or the use by the Borrower
of the proceeds of any Loan, and (b) reimburse each Indemnified Party upon
their demand, for any reasonable legal or other expenses (including (but not
as well as) the reasonable allocated costs of staff counsel) incurred in
connection with investigating, preparing to defend or defending any such
loss, claim, damage, liability, action or claim; PROVIDED, HOWEVER, that no
such Person shall have the right to be so indemnified hereunder for its own
gross negligence or willful misconduct or bad faith as finally determined by
a court of competent jurisdiction after all appeals and the expiration of
time to appeal. If any action, suit or proceeding arising from any of the
foregoing is brought against the Agent, any Co-Agent, any Lender or any other
Person indemnified or intended to be indemnified pursuant to this SECTION
9.6, the Borrower will, if requested by the Agent, any Co-Agent, any Lender
or any such indemnified Person, resist and defend such action, suit or
proceeding or cause the same to be resisted and defended by counsel
reasonably satisfactory to the Person or Persons indemnified or intended to
be indemnified. Each Indemnified Party shall, unless the Agent, a Lender or
other Indemnified Party has made the request described in the preceding
sentence and such request has been complied with, have the right to employ
its own counsel (or (but not as well as) staff counsel) to investigate and
control the defense of any matter covered by such indemnity and the
reasonable fees and expenses of such counsel shall be at the expense of the
indemnifying party. The obligations of the Borrower under this SECTION 9.6,
under SECTIONS 2.12(h) AND (i) and under SECTION 2.13 shall survive the
termination of this Agreement and the discharge of the Borrower's other
obligations hereunder and under the Obligations.
- 120 -
Excluding any liability arising out of the gross negligence or
willful misconduct of any Indemnified Party, the Borrower further agrees to
indemnify and hold each Indemnified Party harmless from all loss, cost
(including reasonable attorneys' fees), liability and damage whatsoever
incurred by any Indemnified Party by reason of any violation of any
Environmental Laws or Environmental Permits or for the Release or threatened
Release of any Contaminant into the environment for which the Borrower or any
of its Subsidiaries has any liability or which occurs upon the Mortgaged
Property or which is related to any property currently or formerly owned,
leased or operated by or on behalf of the Borrower or any of its
Subsidiaries, or by reason of the imposition of any Environmental Lien or
which occurs by a breach of any of the representations, warranties or
covenants relating to environmental matters contained herein, including,
without limitation, by reason of any matters disclosed in SCHEDULE 4.21,
PROVIDED that, with respect to any liabilities arising from acts or failure
to act for which the Borrower or any of its Subsidiaries is strictly liable
under any Environmental Law or Environmental Permit, the Borrower's
obligation to each Indemnified Party under this indemnity shall likewise be
without regard to fault on the part of the Borrower or any such Subsidiary.
If the Borrower shall fail to do any act or thing which it has covenanted to
do hereunder or any representation or warranty on the part of the Borrower or
any Subsidiary contained herein or in any other Loan Document shall be
breached, the Agent may (but shall not be obligated to), after requesting the
Borrower to do such act or thing and the failure by the Borrower to
immediately undertake such action to the satisfaction of the Agent, do the
same or cause it to be done or remedy any such breach, and may expend its
funds for such purpose, and will use its best efforts to give prompt written
notice to the Borrower that it proposes to take such action. Any and all
amounts so expended by the Agent shall be repaid to it by the Borrower
promptly upon the Agent's demand therefor, with interest at the Default Rate
in effect from time to time during the period including the date so expended
by the Agent to the date of repayment. The obligations of the Borrower under
this SECTION 9.6 shall survive the termination of this Agreement and the
discharge of the Borrower's other Obligations hereunder.
Section 9.7 SPECIAL EXPENDITURES. If the Borrower shall fail to do
any act or thing which it has covenanted to do hereunder or under any other
Basic Agreement or any representation or warranty on the part of the Borrower
contained herein or therein shall be breached, the Agent may (but shall not
be obligated to) do the same or cause it to be done or remedy any such
breach, and may expend its funds for such purpose, and will use its best
efforts to give prompt written notice to the Borrower that it proposes to
take such action. Any and all amounts so expended by the Agent shall be
repayable to it by the Borrower promptly upon the Agent's demand therefor,
with interest at the Default Rate in
- 121 -
effect from time to time during the period from the date so expended by the
Agent to the date of repayment.
Section 9.8 CONFIRMATIONS. Each of the Borrower and each holder of
any Obligation agree from time to time, upon written request received by it
from the other, to confirm to the other in writing (with a copy of each such
confirmation to the Agent) the aggregate unpaid principal amount of the Loans
then outstanding in respect of such Obligation; each such holder agrees from
time to time, upon written request received by it from the Borrower, to make
the relevant internal records of such holder maintained by it with respect to
such Obligation available for reasonable inspection by the Borrower at the
office of such holder.
Section 9.9 ADJUSTMENT.
(a) If at any time any Revolving Lender, Supplemental Revolving
Lender, Term Lender, Additional Lender or D Tranche Lender (a "BENEFITTED
LENDER") shall receive any payment (other than (i) a payment received by the
Swing Line Lender in respect of any Swing Line Loan in which no Revolving
Lenders have purchased a participation pursuant to SECTION 2.11(d) and
(ii) non-pro rata payments to any Term Lender, Additional Lender or D Tranche
Lender solely as the result of Waived Proceeds being retained by the Borrower
pursuant to SECTION 3.6(f)) of all or part of any of its Loans, or interest
thereon, including as the result of SECTION 9.10, in a greater proportion
relative to such Lender's Revolving Loan Pro Rata Share, Supplemental
Revolving Loan Pro Rata Share, Term Loan Pro Rata Share, Additional Term Loan
Pro Rata Share or D Tranche Term Loan Pro Rata Share, as applicable, than any
such payment to any other Revolving Lender, Supplemental Revolving Lender,
Term Lender, Additional Lender or D Tranche Lender in respect of such other
Lender's Revolving Loan Pro Rata Share, Supplemental Revolving Loan Pro Rata
Share, Term Loan Pro Rata Share, Additional Term Loan Pro Rata Share or D
Tranche Term Loan Pro Rata Share, as applicable, or interest thereon, such
Benefitted Lender shall purchase for cash from the other Revolving Lenders,
Supplemental Revolving Lenders, Term Lenders, Additional Lenders or D Tranche
Lenders, as the case may be, such portion of each such other Lender's Loans
as shall be necessary to cause such Benefitted Lender to share the excess
payment ratably with each of the Revolving Lenders, Supplemental Revolving
Lenders, Term Lenders, Additional Lenders or D Tranche Lenders, as the case
may be; PROVIDED, HOWEVER, that if all or any portion of such excess payment
or benefits is thereafter recovered from such Benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. The Borrower agrees that
each Lender so purchasing a portion of another Lender's Loans may exercise
all rights of payment (including, without limitation, rights of set-off) with
respect to such portion as fully as if such Lender were the direct holder of
such portion.
- 122 -
(b) If any Lender (a "COLLATERAL BENEFITTED LENDER") shall at any
time receive any collateral in respect of its Loans (whether voluntary or
involuntary, by set-off, pursuant to events or proceedings of the nature
referred to in SECTION 7.1(e) OR 7.1(f) hereof, or otherwise) in a greater
proportion than any such collateral received by any other Lender in respect
of such other Lender's Loans, such Collateral Benefitted Lender shall provide
such other Lenders with the benefits of any such collateral as shall be
necessary to cause such Collateral Benefitted Lender to share the benefits of
such collateral ratably with each of the Lenders; PROVIDED, HOWEVER, that if
all or any portion of such benefits is thereafter recovered from such
Collateral Benefitted Lender, such benefits shall be returned to the extent
of such recovery but without interest.
Section 9.10 RIGHT OF SETOFF. (a) In addition to any rights and
remedies of the Lenders provided by law, each Lender shall have the right,
without prior notice to the Borrower, any such notice being expressly waived
by the Borrower, upon the occurrence and during the continuance of an Event
of Default, to setoff and apply against any Indebtedness, whether matured or
unmatured, of the Borrower to such Lender, any amount owing from such Lender
to the Borrower, at or at any time after, the occurrence of such Event of
Default, and the aforesaid right of setoff may be exercised by such Lender
against the Borrower or against any trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receivers, or execution,
judgment or attachment creditor of the Borrower, or against anyone else
claiming through or against, the Borrower or such trustee in bankruptcy,
debtor in possession, assignee for the benefit of creditors, receivers, or
execution, judgment or attachment creditor, notwithstanding the fact that
such right of setoff shall not have been exercised by such Lender prior to
the making, filing or issuance, or service upon such Lender of, or of notice
of, any such petition, assignment for the benefit of creditors, appointment
or application for the appointment of a receiver, or issuance of execution,
subpoena, order or warrant. Each Lender agrees promptly to notify the
Borrower and the Agent after any such setoff and application made by such
Lender, PROVIDED that the failure to give such notice shall not affect the
validity of such setoff and application.
(b) The Borrower expressly agrees that to the extent the Borrower
makes a payment or payments and such payment or payments, or any part
thereof, are subsequently invalidated, declared to be fraudulent or
preferential, set aside or are required to be repaid to a trustee, receiver,
or any other party under any bankruptcy act, state or federal law, common law
or equitable cause, then to the extent of such payment or repayment, the
Indebtedness to the Lenders or part thereof intended to be satisfied shall be
revived and continued in full force and effect as if said payment or payments
had not been made.
- 123 -
Section 9.11 EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counter-parts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 9.12 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement shall be binding upon, and inure to the benefit
of, the Borrower, the Agent and the Lenders and their respective successors
and assigns upon the execution by the Borrower, the Agent, the Required
Lenders (as defined in the Existing Credit Agreement), the Majority Revolving
Lenders (as defined in the Existing Credit Agreement), the Majority Term
Lenders (as defined in the Existing Credit Agreement), the Majority
Additional Term Lenders (as defined in the Existing Credit Agreement) and
each Supplemental Revolving Lender and D Tranche Lender; PROVIDED, HOWEVER,
that the Borrower may not assign its rights or obligations hereunder or in
connection herewith or any interest herein (voluntarily, by operation of law
or otherwise) without the prior written consent of the Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an Affiliate of such
Lender.
(c) Each Lender may at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in all or any portion of
its Commitment and related outstanding obligations of such Lender hereunder
(in respect of any Lender, its "CREDIT EXPOSURE"); PROVIDED, HOWEVER, that in
the case of a Revolving Lender, it sells it Credit Exposure ratably between
its Revolving Loan Commitment and its participation interest in the ▇▇▇▇▇▇▇▇
Letters of Credit. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations under
this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, and the Borrower and the Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. The Borrower agrees
that if amounts outstanding under this Agreement or any of the Loan Documents
are due or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall be
deemed to have the right of set-off in respect of its participating interest
in amounts owing under this Agreement and the Loan Documents to the same
extent as if the amount of its participating interest were owing directly to
it as a Lender under this Agreement or any other Loan Document, PROVIDED that
such right of set-off shall be subject to the obligation of such Participant
to share with the Lenders, and the Lenders agree to share with such
Participant, as provided in SECTION 9.9. The
- 124 -
Borrower also agrees that each Participant shall be entitled to the benefits
of SECTIONS 2.13 AND 2.16 with respect to its participation in the Loans and
Letters of Credit outstanding from time to time, PROVIDED that such
Participant's benefits under SECTIONS 2.13 AND 2.16 shall be limited to the
benefits that the Lender granting the participation would be entitled to
thereunder with respect to the Credit Exposure so participated. Each Lender
agrees that any agreement between such Lender and any such Participant in
respect of such participating interest shall not restrict such Lender's right
to approve or agree to any amendment, supplement, modification or waiver to
this Agreement or any of the Loan Documents except for any amendment,
supplement, modification or waiver which reduces the rate or amount of
principal, interest or fees payable by the Borrower, extends the Term Loan
Maturity Date, the Revolver Termination Date, the Additional Term Loan Maturity
Date, the Supplemental Revolver Termination Date, the D Tranche Term Loan
Maturity Date or the scheduled date for any payment of interest (but only if
such Participant is participating in the Term Loan, the Additional Term Loan,
the Revolving Loan, the Supplemental Revolving Loan or the D Tranche Term Loan,
as applicable, affected thereby), or release all or substantially all of the
Collateral and Mortgaged Property (other than when Substitute Collateral is
provided and other than in accordance with SECTION 9.13) or release or
terminate all or substantially all of the Subsidiary Guarantees.
(d) Any Lender may at any time assign to one or more banks or other
entities, including an Affiliate thereof (each an "ASSIGNEE"), all or any
part of its Credit Exposure pursuant to an Assignment Agreement (an
"ASSIGNMENT AGREEMENT") in substantially the form of EXHIBIT 9.12(d) hereto,
PROVIDED that (i) in the case of a Revolving Lender, it assigns its Credit
Exposure ratably between its Revolving Loan Commitment and its participation
interest in the ▇▇▇▇▇▇▇▇ Letters of Credit, (ii) any assignment by a
Revolving Lender of all or any portion of its Revolving Loan Commitment shall
require the prior written consent of each Facing Agent which has issued a
Letter of Credit that remains outstanding at such time (with the consent of
such Facing Agent not to be unreasonably withheld), (iii) at no time shall
any Revolving Lender or Supplemental Revolving Lender assign any portion of
its Revolving Loan Commitment or Supplemental Revolving Loan Commitment if
after giving effect to such assignment the transferor Lender's or the
Assignee's aggregate amount of Revolving Loan Commitment and Supplemental
Revolving Loan Commitment, on a combined basis, shall be less than
$15,000,000 (the "REVOLVING MINIMUM AMOUNT") (except (A) with respect to an
assignment of all of such Lender's Revolving Loan Commitment and/or
Supplemental Revolving Loan Commitment and (B) in the event that the
Revolving Loan Commitments and Supplemental Revolving Loan Commitments have
been terminated, then the Revolving Minimum Amount shall refer to such
transferor Lender's (1) Revolving Loan Pro Rata Share of the aggregate
principal amount of Revolving Loans and Swing Line Loans
- 125 -
outstanding and the aggregate L/C Obligations and ▇▇▇▇▇▇▇▇ L/C Obligations
outstanding and (2) Supplemental Revolving Loan Pro Rata Share of the aggregate
principal amount of Supplemental Revolving Loans outstanding), PROVIDED that
(I) all Affiliates of any transferor Lender or any Assignee shall be included
in the determination of whether such transferor Lender or such Assignee
satisfies the Revolving Minimum Amount and (II) the Revolving Minimum Amount
shall automatically reduce PRO RATA based on any reduction in (x) the Total
Revolving Loan Commitments and Total Supplemental Revolving Loan Commitments
or (y) if the Total Revolving Loan Commitments and Total Supplemental
Revolving Loan Commitments have been terminated, the aggregate principal
amount of Revolving Loans, Supplemental Revolving Loans and Swing Line Loans
outstanding and the aggregate L/C Obligations and ▇▇▇▇▇▇▇▇ L/C Obligations
outstanding, (iv) at no time shall any Term Lender assign any portion of its
Term Loan if after giving effect to such assignment the transferor Lender's
or the Assignee's principal amount of the Term Loan shall be less than
$7,500,000 (the "TERM MINIMUM AMOUNT") (except with respect to an assignment
of all of such Term Lender's Term Loan), PROVIDED that (A) the Term Minimum
Amount shall automatically reduce PRO RATA based on any reduction in the
aggregate principal amount of the Term Loan outstanding and (B) all
Affiliates of any transferor Lender or any Assignee shall be included in the
determination of whether such transferor Lender or such Assignee satisfies
the Term Minimum Amount but in no event shall any single Lender's or
Affiliate's principal amount of the Term Loan be less than $2,500,000 (with
such amount reducing PRO RATA based on any reduction in the aggregate
outstanding principal amount of the Term Loan), (v) at no time shall any
Additional Lender assign any portion of its Additional Term Loan if after
giving effect to such assignment the transferor Lender's or the Assignee's
principal amount of the Additional Term Loan shall be less than $5,000,000
(the "ADDITIONAL TERM MINIMUM AMOUNT") (except with respect to an assignment
of all of such Lender's Additional Term Loan), PROVIDED that (A) the
Additional Term Minimum Amount shall automatically reduce PRO RATA based on
any reduction in the aggregate principal amount of the Additional Term Loan
outstanding and (B) all Affiliates of any transferor Lender or any Assignee
shall be included in the determination of whether such transferor Lender or
such Assignee satisfies the Additional Term Minimum Amount but in no event
shall any single Lender's or Affiliate's principal amount of the Additional
Term Loan be less than $2,500,000 (with such amount reducing PRO RATA based
on any reduction in the aggregate outstanding principal amount of the
Additional Term Loan), (vi) at no time shall any D Tranche Lender assign any
portion of its D Tranche Term Loan if after giving effect to such assignment
the transferor Lender's or the Assignee's principal amount of the D Tranche
Term Loan shall be less than $5,000,000 (the "D TRANCHE TERM MINIMUM AMOUNT")
(except with respect to an assignment of all of such Lender's D Tranche Term
Loan), PROVIDED that (A) the D Tranche Term Minimum Amount shall
automatically reduce PRO RATA based on any reduction in the
- 126 -
aggregate principal amount of the D Tranche Term Loan outstanding and (B) all
Affiliates of any transferor Lender or any Assignee shall be included in the
determination of whether such transferor Lender or such Assignee satisfies
the D Tranche Term Minimum Amount but in no event shall any single Lender's
or Affiliate's principal amount of the D Tranche Term Loan be less than
$2,500,000 (with such amount reducing PRO RATA based on any reduction in the
aggregate outstanding principal amount of the D Tranche Term Loan), (vii) any
assignment shall require the prior written consent of the Agent, which
consent shall not be unreasonably withheld, and (viii) any assignment to an
Assignee other than another Lender, or an Affiliate of the assigning Lender
or another Lender, shall require the prior written consent of the Borrower
(with the consent of the Borrower not to be unreasonably withheld). Upon
execution of an Assignment Agreement and the payment of a nonrefundable
assignment fee of $3,500 in immediately available funds to the Agent at its
Payment Office in connection with each such assignment, each Assignee shall
become a party to this Agreement as a Lender and the Assignee shall have, to
the extent of such assignment, the same rights and benefits as it would have
if it were a Lender hereunder and the holder of the Obligations and, if the
Assignee has expressly assumed, for the benefit of the Borrower, some or all
of the transferor Lender's obligations hereunder, such transferor Lender
shall be relieved of its obligations hereunder to the extent of such
assignment and assumption. Such Assignment Agreement shall be deemed to
amend this Agreement and SCHEDULE 1.1(A) hereto to the extent, and only to
the extent, necessary to reflect the addition of such Assignee as a Lender
and the resulting adjustment of all or a portion of the rights and
obligations of such transferor Lender under this Agreement (including its
Revolving Loan Commitment, Supplemental Revolving Loan Commitment, Term Loan
Commitment, Additional Term Loan Commitment and/or D Tranche Term Loan
Commitment), the Maximum Commitments, the determination of Revolving Loan Pro
Rata Share, Supplemental Revolving Loan Pro Rata Share, Term Loan Pro Rata
Share, Additional Term Loan Pro Rata Share or D Tranche Term Loan Pro Rata
Share (rounded to twelve decimal places), the Loans and any outstanding
Letters of Credit and new Notes shall be issued, at the Borrower's expense,
to such Assignee and to the assigning Lender upon the request of such
Assignee or such assigning Lender, such new Notes to be in conformity with
the requirements of SECTION 2.2 (with the appropriate modifications) to the
extent needed to reflect the revised Commitment of the Assignee and the
assigning Lender.
(e) For so long as any Lender shall be in default of its obligation
to fund its Revolving Loan Pro Rata Share of any Revolving Loan, to fund its
Supplemental Revolving Loan Pro Rata Share of any Supplemental Revolving
Loan, to reimburse the Facing Agent for any drawings under any Letters of
Credit or to fund its participation in any Swing Line Loan, (i) no Revolving
Loan Commitment Fees or Supplemental Revolving Loan Commitment Fees shall be
accrued by or paid to such Lender and (ii) for purposes of
- 127 -
the definition of "Required Lenders," such Lender shall be deemed not to have
any Loans or Revolving Loan Commitment or Supplemental Revolving Loan
Commitment outstanding.
(f) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time pledge or create a security interest in all or any
portion of its rights under this Agreement and the other Loan Documents
(including, without limitation, the Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Federal Reserve Board
without notice to or consent of the Borrower and no such pledge or assignment
shall release the transferor Lender from its obligations hereunder.
(g) A Lender may furnish any information concerning the Borrower or
any of its Subsidiaries in the possession of such Lender from time to time to
Lenders, Assignees and participants (including prospective Assignees and
participants), PROVIDED that with respect to any such information which has
been identified or designated by the Borrower as confidential and which has
not previously been made public, any such Assignee or participant shall have
agreed to hold such information in confidence and not to disclose such
information (subject to the exceptions specified in SECTION 5.1.6 hereof) and
any prospective Assignee or participant shall have agreed to return such
information which is in written form to the Borrower or otherwise destroy
such information if it does not become an actual Assignee or participant.
(h) Any Lender that is not a citizen or resident of the United
States of America, a corporation, partnership or other entity created or
organized in or under the laws of the United States of America, or an estate
or trust the income of which is subject to United States federal income
taxation regardless of the source of its income (a "NON-U.S. LENDER") and
that could become completely exempt from withholding of any Taxes in respect
of payment of any obligations due to such Non-U.S. Lender with respect to the
Term Loan, Additional Term Loan or D Tranche Term Loan if the applicable
Notes were in registered form for United States federal income tax purposes
may request the Borrower (through the Agent), and the Borrower agrees
thereupon, to exchange any promissory note(s) evidencing the Term Loan,
Additional Term Loan or D Tranche Term Loan for promissory note(s) registered
as provided in this SECTION 9.12(H) below (each, a "REGISTERED NOTE"). A
Registered Note shall be substantially in the form of EXHIBIT 2.2(A) except
that it shall be made payable to such Non-U.S. Lender or registered assigns.
Registered Notes shall be deemed to be and shall be Term Notes, Additional
Term Notes or D Tranche Term Notes for all purposes of this Agreement.
Registered Notes may not be exchanged for promissory notes that are not
Registered Notes. Each Non-U.S. Lender holding a Registered Note (a
"REGISTERED NOTEHOLDER") shall comply with the requirements of SECTION
3.11(C). The Agent shall maintain a register (the "REGISTER") on which it
- 128 -
shall enter the names of the registered owners of the Term Loan, Additional
Term Loan or D Tranche Term Loan evidenced by Registered Notes. The Agent,
acting as an agent of the Borrower solely with respect to the maintenance of
the Register, shall incur no liabilities with respect to its maintenance of
the Register and recordation of the information therein. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower and the Agent shall treat each Term Lender, Additional Lender and D
Tranche Lender in whose name a Term Loan, Additional Term Loan or D Tranche
Term Loan and the Registered Note evidencing the same is registered as the
owner thereof for all purposes of this Agreement, notwithstanding notice to
the contrary. No assignment of a Registered Note and the Term Loan,
Additional Term Loan or D Tranche Term Loan evidenced thereby shall be
effective unless the Agent has recorded the appropriate Assignment Agreement
in the Register and such assignment otherwise complies with the requirements
of SECTION 9.12. Any assignment or transfer of all or any part of the Term
Loan, Additional Term Loan or D Tranche Term Loan and the Registered Note(s)
evidencing the same shall be registered on the Register only upon surrender
for registration of assignment or transfer of the Registered Note(s)
evidencing the Term Loan, Additional Term Loan or D Tranche Term Loan, 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 Note(s) in the same aggregate principal amount shall be
issued to the designated assignee(s) or transferee(s). The Register shall be
available at the offices were kept by the Agent for inspection by the
Borrower and any Term Lender, Additional Lender or D Tranche Lender at any
reasonable time upon reasonable prior written notice to the Agent.
Section 9.13 RELEASE OF COLLATERAL. The following provisions
shall govern the release of collateral granted by the Borrower to the Agent
pursuant to the Loan Documents.
(a) Upon termination of all Revolving Loan Commitments, Supplemental
Revolving Loan Commitments, the Swing Line Commitment, the L/C Agreement,
the L/C Participation Agreements and the ▇▇▇▇▇▇▇▇ Letters of Credit, and the
payment in full of all outstanding Revolving Loan Obligations, Supplemental
Revolving Loan Obligations, Swing Line Obligations, L/C Obligations and
▇▇▇▇▇▇▇▇ L/C Obligations such that no such Commitments, Loan Documents or
Obligations remain outstanding, the Borrower shall be entitled to the
release of the Collateral and Mortgaged Property set forth on SCHEDULE
9.13(A) hereto from the Lien of the Loan Documents upon the request of the
Borrower subject to the following terms and conditions: (i) the Agent shall
have received a certificate from the Borrower's chief executive or chief
financial officer certifying that no Event of Default or Unmatured Event of
Default has occurred and is continuing as of the date on which the Agent
proposes to release such Collateral and Mortgaged Property; and (ii) at the
Borrower's cost and expense, the
- 129 -
Agent shall have received from one or more independent third parties
appraisals and/or valuations acceptable to, and in form, substance and
using methodologies satisfactory to, the Required Lenders, demonstrating
that, after giving effect to such release, the ratio of (A) the aggregate
value of the remaining Collateral and Mortgaged Property, as such value is
determined by such independent third parties and acceptable to the Required
Lenders, to (B) the Obligations which remain outstanding under the Loan
Documents is not less than 2.50 to 1.00. The determination by the Required
Lenders pursuant to the preceding sentence shall be made by those Term
Lenders, Additional Lenders and D Tranche Lenders constituting the Required
Lenders at such time.
(b) Upon receipt by the Borrower and the Agent of an officer's
certificate and such other information delivered pursuant to SECTION
5.1.1(C), beginning with any such officer's certificate and information
delivered after December 31, 1994, the Borrower shall be entitled to the
release of all of the Collateral and Mortgaged Property from the Lien of the
Loan Documents subject to the following terms and conditions: (i) the Agent
shall have received a certificate from the Borrower's chief executive or
chief financial officer certifying that no Event of Default or Unmatured
Event of Default has occurred and is continuing as of the date on which the
Agent proposes to release the Collateral and Mortgaged Property; and (ii)
the officer's certificate delivered pursuant to SECTION 5.1.1(C) satisfies
the terms and conditions set forth on SCHEDULE 1.1(B) hereto.
(c) The Borrower shall be entitled to the release of all or any
portion of the Collateral and/or Mortgaged Property upon the request of the
Borrower subject to the following terms and conditions: (i) the Agent shall
have received a certificate from the Borrower's chief executive or chief
financial officer certifying that no Event of Default or Unmatured Event of
Default has occurred and is continuing as of the date on which the Agent
proposes to release such Collateral and Mortgaged Property; (ii) prior to
the release date of such Collateral and/or Mortgaged Property the Borrower
shall have furnished to the Agent for the benefit of the Lenders substitute
collateral ("SUBSTITUTE COLLATERAL") which (A) is acceptable to the Required
Lenders and (B) has a value as determined by the Required Lenders at least
equal to the aggregate value of the Collateral and/or Mortgaged Property to
be released; and (iii) such Substitute Collateral shall be provided pursuant
to documentation and legal opinions in form and substance satisfactory to
the Agent. Any such Substitute Collateral shall be deemed to have been
granted in consideration of the release of such Collateral and/or
Mortgaged Property.
- 130 -
(d) The Borrower shall be entitled to the release of any portion of
the Collateral and/or Mortgaged Property which is the subject of any
sale, transfer or other disposition permitted by SECTION 5.2.12 upon the
request of the Borrower subject to the following terms and conditions:
(i) at least ten (10) Business Days prior to the release date of such
Collateral and/or Mortgaged Property the Borrower shall have furnished to
the Agent in writing a description of such Collateral and/or Mortgaged
Property and the proposed terms of the sale, transfer or other
disposition thereof; (ii) the Agent shall have received a certificate
from the Borrower's chief executive or chief financial officer certifying
that no Event of Default or Unmatured Event of Default has occurred and
is continuing; and (iii) prior to or contemporaneously with such release,
the Agent shall have received any Material Sale Proceeds derived from
such disposition in immediately available funds pursuant to the terms of
SECTION 3.4(C) to be applied as a prepayment of the Obligations in
accordance with SECTION 3.6(C), unless any such Material Sale Proceeds
constitute Waived Proceeds pursuant to the terms of SECTION 3.6(F),
together with a written accounting of all proceeds from such sale,
transfer or other disposition and the determination of Material Sale
Proceeds resulting therefrom, in form and substance reasonably
satisfactory to the Agent; PROVIDED, HOWEVER, that inventory pledged to
the Agent pursuant to the Loan Documents may be sold or disposed of in
the ordinary course of business free and clear of the Liens created
thereby; and PROVIDED FURTHER, that immaterial portions of Collateral or
Mortgaged Property may for purposes of administrative practicality or
legal requirements be released by the Agent pursuant to the provisions,
if any, ofthe respective Security Agreements or Mortgages.
(e) Upon the satisfaction of the applicable conditions set forth in
SECTION 9.13(A), (B) or (C), the Agent shall within thirty (30) days
deliver to the Borrower all released Collateral and related documents
then in the custody or possession of the Agent and shall prepare and
execute release documents relating to the Collateral and Mortgaged
Property to be released and shall execute and deliver to the Borrower
such other documents and instruments as the Borrower may reasonably
request, all without recourse upon, or warranty whatsoever by, the Agent,
and at the cost and expense of the Borrower.
(f) The Borrower shall be entitled to the release of any portion of
the Mortgaged Property consisting of box converting facilities which are
used to collateralize Indebtedness for Money Borrowed incurred in
accordance with SECTION 5.2.2(x), upon the request of the Borrower
subject to the following terms and conditions: (i) at least thirty (30)
days (or such lesser number of days as to which the Agent may agree) prior
to the release date of such Mortgaged Property the Agent shall have
received appraisals or other documentation of such
- 131 -
Mortgaged Property which satisfy the terms and conditions of
SECTION 5.2.2(x); (ii) the Agent shall have received a certificate from
the Borrower's chief executive or chief financial officer certifying that
no Event of Default or Unmatured Event of Default has occurred and is
continuing; (iii) at least ten (10) Business Days (or such lesser number
of days as to which the Agent may agree) prior to the release date of such
Mortgaged Property the Borrower shall have furnished to the Agent in writing
a description of such Mortgaged Property, together with copies of all
documentation relating to such Indebtedness for Money Borrowed; and
(iv) the Agent shall have received such intercreditor agreements as
specified in SECTION 5.2.2(X).
SECTION 9.14 CONSENT TO JURISDICTION. THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK CITY IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER BASIC
AGREEMENT, AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
UNITED STATES FEDERAL OR NEW YORK STATE COURT AND THE BORROWER IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN
SUCH RESPECTIVE JURISDICTIONS. AS A METHOD OF SERVICE, THE BORROWER ALSO
IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION
OR PROCEEDING BROUGHT IN ANY COURT IN OR OF THE STATE OF NEW YORK BY THE
DELIVERY OF COPIES OF SUCH PROCESS TO THE BORROWER, AT ITS ADDRESS SPECIFIED
IN SECTION 9.4 HEREOF OR BY CERTIFIED MAIL DIRECT TO SUCH ADDRESS.
Section 9.15 GOVERNING LAW. This Agreement shall be deemed to be
a contract made under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State, without regard
to principles of conflicts of law. Nothing contained in this Agreement and
no action taken by the Agent, any Co-Agent or any Lender pursuant hereto
shall be deemed to constitute the Agent, any Co-Agent or the Lenders a
partnership, an association, a joint venture or other entity.
Section 9.16 SEVERABILITY OF PROVISIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 9.17 HEADINGS. The Table of Contents and Article and
Section headings used in this Agreement are for convenience of reference only
and shall not affect the construction of this Agreement.
- 132 -
Section 9.18 TIME. Time shall be of the essence of this Agreement.
Section 9.19 FURTHER ASSURANCES. The Borrower agrees to do such
further acts and things and to execute and deliver to the Agent such
additional assignments, agreements, powers and instruments as the Agent may
reasonably require or deem advisable to carry into effect the purposes of
this Agreement or to better assure and confirm unto the Agent and the
Lenders, their respective rights, powers and remedies hereunder.
Section 9.20 FLORIDA REAL PROPERTY. The parties hereto hereby
acknowledge that the Revolving Loans, Supplemental Revolving Loans and Swing
Line Loans are secured by real and personal property located both inside and
outside the State of Florida and hereby agree that for purposes of
calculating intangible taxes due under Section 199.133, Florida Statutes, the
first amounts advanced as Revolving Loans, Supplemental Revolving Loans and
Swing Line Loans shall be deemed to be the portion allocable to the
Collateral and Mortgaged Property consisting of real property located in the
State of Florida, and such portion allocable to such Collateral and Mortgaged
Property shall also be deemed to be the last to be repaid under the terms
hereof. Nothing herein shall limit the Agent's or any Lender's right to
recover or realize from the Collateral or Mortgaged Property located in the
State of Florida amounts in excess of that allocated to the Revolving Loans,
Supplemental Revolving Loans and Swing Line Loans or to apply amounts so
recovered or realized against the Obligations in such order as required
pursuant to the Loan Documents.
Section 9.21 EFFECT OF RESTATEMENT. This Agreement shall, except
as otherwise expressly set forth herein, supersede the Existing Credit
Agreement from and after the Restatement Date with respect to the
transactions hereunder and with respect to the Loans and Letters of Credit
outstanding under the Existing Credit Agreement as of Restatement Date. The
parties hereto acknowledge and agree, however, that (i) this Agreement and
all other Loan Documents executed and delivered herewith do not constitute a
novation, payment and reborrowing or termination of the Obligations under the
Existing Credit Agreement and the other Loan Documents as in effect prior to
the Restatement Date, (ii) such Obligations are in all respects continuing
with only the terms being modified as provided in this Agreement and the
other Loan Documents, (iii) the liens and security interests in favor of the
Agent for the benefit of the Lenders securing payment of such Obligations are
in all respects continuing and in full force and effect with respect to all
Obligations and (iv) all references in the other Loan Documents to this
Agreement shall be deemed to refer without further amendment to this
Agreement.
- 133 -
[signature pages to follow]
- 134 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
STONE CONTAINER CORPORATION
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Address:
Stone Container Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. Read
Senior Vice President -
Chief Financial and
Planning Officer
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-1
Credit Agreement
BANKERS TRUST COMPANY, in its
individual capacity and as Agent
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Address:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice-President
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: 210106
(Answerback: BTCI-UR)
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Winston & ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-2
Credit Agreement
BANK OF AMERICA ILLINOIS
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Address:
Bank of America Illinois
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-3
Credit Agreement
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, in its individual
capacity and as a Co-Agent
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Address:
Bank of America NT & SA
c/o Bank of America Illinois
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Managing Director
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-4
Credit Agreement
BANK OF BOSTON
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Address:
Bank of Boston
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇-▇-▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-5
Credit Agreement
THE BANK OF NEW YORK, in its individual
capacity and as a Co-Agent
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Address:
The Bank Of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-6
Credit Agreement
THE BANK OF NOVA SCOTIA, in its
individual capacity and as a
Co-Agent
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Address:
The Bank of Nova Scotia
(Chicago Branch)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-7
Credit Agreement
CAISSE NATIONALE DE CREDIT AGRICOLE, in
its individual capacity and as a
Co-Agent
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Address:
Caisse Nationale de Credit Agricole
(Chicago Branch)
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Vice President
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-8
Credit Agreement
AERIES FINANCE LTD. CERES FINANCE LTD.
By: By:
------------------------- -------------------------
Name: Name:
----------------------- -----------------------
Title: Title:
---------------------- ----------------------
STRATA FUNDING LTD.
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Address:
c/o Chancellor Senior Secured Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-9
Credit Agreement
THE CHASE MANHATTAN BANK, N.A., in
its individual capacity and as a
Co-Agent
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Address:
The Chase Manhattan Bank, N.A.
▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Managing Director
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-10
Credit Agreement
CHEMICAL BANK, in its individual
capacity and as a Co-Agent
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Address:
Chemical Bank (Chicago Branch)
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-11
Credit Agreement
CHL HIGH YIELD LOAN PORTFOLIO, a Unit
of Chemical Bank
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Address:
CHL High Yield Loan Portfolio,
a Unit of Chemical Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-12
Credit Agreement
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Address:
Compagnie Financiere de CIC et de
l'Union Europeenne
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇,
First Vice President
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-13
Credit Agreement
DRESDNER BANK AG (Chicago and Grand
Cayman Branches), in its individual
capacity and as a Co-Agent
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Address:
Dresdner Bank AG
(Chicago and Grand Cayman Branches)
Suite 2700
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇,
First Vice President
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-14
Credit Agreement
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Address:
The Equitable Life Assurance Society
of the United States
a/c Annuity High Income
Alliance Capital Management
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-15
Credit Agreement
THE FIRST NATIONAL BANK OF CHICAGO, in
its individual capacity and as a
Co-Agent
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Address:
The First National Bank of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇,
Senior Vice President
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-16
Credit Agreement
KEYPORT LIFE INSURANCE COMPANY
By: Chancellor Senior Secured Management, Inc.
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Address:
Keyport Life Insurance Company
c/o Chancellor Senior Secured Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-17
Credit Agreement
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address:
▇▇▇▇▇▇ Commercial Paper Inc.
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World Financial ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-18
Credit Agreement
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
in its individual capacity and as a Co-Agent
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address:
The Long-Term Credit Bank of Japan, Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-19
Credit Agreement
▇▇▇▇▇▇ BANK LTD., formerly known as Union
Bank of Finland, Ltd., Grand Cayman Branch
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address:
▇▇▇▇▇▇ Bank Ltd.
▇/▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-20
Credit Agreement
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE ▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE
PORTFOLIO FUND, INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management,
LP, as Investment Advisor By: ________________________________
By: _______________________________ Name: ______________________________
Name: ______________________________ Title: _____________________________
Title: _____________________________
SENIOR HIGH INCOME PORTFOLIO, INC. SENIOR HIGH INCOME PORTFOLIO II, INC.
By: _______________________________ By: ________________________________
Name: ______________________________ Name: ______________________________
Title: _____________________________ Title: _____________________________
SENIOR STRATEGIC INCOME FUND, INC.
By: _______________________________
Name: ______________________________
Title: _____________________________
Address:
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-21
Credit Agreement
NATIONSBANK, N.A. (CAROLINAS), in its
individual capacity and as Co-Agent
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address:
NationsBank (Chicago Branch)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Senior Vice President
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-22
Credit Agreement
PEARL STREET, L.P.
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address:
Pearl Street
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-23
Credit Agreement
PROSPECT STREET SENIOR PORTFOLIO, L.P.
By: Prospect Street Senior Loan Corp.,
as Managing General Partner
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address:
Prospect Street Senior Loan Corp.
Exchange Place
37th Floor
Boston, MA 02109
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.,
Vice President
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-24
Credit Agreement
Name: ______________________________________
Title: _____________________________________
STICHTING RESTRUCTURED OBLIGATIONS
BACKED BY SENIOR ASSETS 2 (ROSA2)
By: Chancellor Senior Secured Management, Inc.,
as Portfolio Advisor
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
c/o Chancellor Senior Secured Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-25
Credit Agreement
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address:
Senior Debt Portfolio
c/o ▇▇▇▇▇ ▇▇▇▇▇ Prime Rate Reserves
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-26
Credit Agreement
THE SUMITOMO, BANK, LTD., CHICAGO BRANCH,
in its individual capacity and as a Co-Agent
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address:
The Sumitomo Bank, Ltd., Chicago Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-27
Credit Agreement
TORONTO DOMINION (TEXAS), INC., in its
individual capacity and as a Co-Agent
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address:
The Toronto Dominion Bank
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-28
Credit Agreement
VAN ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PRIME RATE INCOME
TRUST
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address:
Van ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Prime Income Trust
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇. Vice President - Portfolio Mgr.
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-29
Credit Agreement
MEDICAL LIABILITY MUTUAL INSURANCE COMPANY
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
Address:
c/o Chancellor Senior Secured Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-30
Credit Agreement
FIRST ALABAMA BANK
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address:
First Alabama Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-31
Credit Agreement
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL
CORPORATION
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Address:
Internationale Nederlanden (U.S.) Capital
Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-32
Credit Agreement
THE YASUDA TRUST & BANKING CO., LTD.
CHICAGO BRANCH
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Address:
The Yasuda Trust & Banking Co., Ltd.
Chicago Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: K. Inoue
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-33
Credit Agreement
APPALOOSA MANAGEMENT L.P.
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address:
Appaloosa Management L.P.
▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-34
Credit Agreement
INDOSUEZ CAPITAL FUNDING II, LIMITED
By: Indosuez Capital Luxembourg,
as Collateral Manager
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address:
Indosuez Capital Funding II, Limited
1211 Avenue of the Americas
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ Aroughetti
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-35
Credit Agreement
ING CAPITAL ADVISORS, INC.
By: ___________________________________
Name: _________________________________
Title: ________________________________
Address:
ING Capital Advisors, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ Dagotti
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-36
Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized as of the date first above written.
STONE CONTAINER CORPORATION
By: __________________________
Name: ________________________
Title: _______________________
Address:
Stone Container Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. Read
Senior Vice President,
Chief Financial and
Planning Officer
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-1
BANKERS TRUST COMPANY, in its
individual capacity and as Agent
By: __________________________
Name: ________________________
Title: _______________________
Address:
Bankers Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice-President
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: 210106
(Answerback: BTCI-UR)
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Winston & ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
S-2
DEFINITIONAL APPENDIX
TO
CREDIT AGREEMENT
As used in this Agreement, unless the context requires a
different meaning, the following terms have the meanings indicated:
"ACCOUNTS RECEIVABLE FINANCING PROGRAM" means a program
of sales of, or transfers of interests in, receivables (whether
characterized as sales or as non-recourse loans) and related
contract rights and other property (the "RECEIVABLES") by the
Borrower and its Participating Subsidiaries to StoneSub, which
shall finance such purchases through (i) sales or transfers of
Receivables or borrowings or other debt issuances (which, except as
described in EXHIBIT 1.1(e) hereto, shall be non-recourse to the
Borrower and its Subsidiaries other than StoneSub) from one or more
limited purpose finance companies, investors participating in an
offering of debt securities, financial institutions or other
Persons not affiliated with the Borrower or through one or more
trusts originated by StoneSub (individually and collectively, the
"ISSUER"), (ii) capital contributions from the Borrower, (iii)
subordinated loans from the Borrower and its applicable
Participating Subsidiaries and (iv) collections from previously
purchased Receivables. Each separate financing arrangement within
the Accounts Receivable Financing Program is referred to as a
"RECEIVABLES FINANCING." All Receivables Financings which are in
existence at any time shall together not permit StoneSub to incur
more than, subject to the third proviso of the penultimate sentence
of SECTION 5.2.13, $500 million of Indebtedness for Money Borrowed
from the Issuer at any one time outstanding (and, in the event that
the Accounts Receivable Financing Program includes Canadian dollar
Receivables of Canadian Subsidiaries, without giving effect to
increases in such amount after the date of the incurrence of such
Indebtedness for Money Borrowed, or portion thereof, solely as the
result of subsequent fluctuations in the exchange rate between
United States Dollars and Canadian dollars) and shall be on terms
(considered as a whole) not materially more onerous to the Borrower
and the Lenders than those of Receivables Financings in existence
on the date hereof. The Lenders hereby acknowledge and agree that
any Receivables Financing purported to be structured as a sale of
Receivables to StoneSub by the Borrower or a Participating
Subsidiary and as to which the Borrower has received an opinion of
counsel as to the sale nature thereof shall constitute a sale of
such Receivables and not a loan from StoneSub secured by such
Receivables. Nothing herein shall prevent the Borrower from
alternatively structuring a Receivables Financing as the sale of
Receivables by StoneSub to the Issuer, PROVIDED that any such
Receivables Financing shall be subject to clause (iii) of the last
sentence of SECTION 5.2.2(p) for all purposes of this Agreement.
"ACQUISITION" is defined in SECTION 5.2.9.
Appendix - Page 1
"ACQUIRING PERSON" means any person or group (as defined
in Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder as in
effect on the date of this Agreement (the "EXCHANGE ACT")) who or
which, together with all affiliates and associates (as defined in
Rule 12b-2 under the Exchange Act) becomes the beneficial owner of
shares of the Borrower having more than 50% of the total number of
votes that may be cast for the election of directors of the
Borrower; PROVIDED, HOWEVER, an Acquiring Person shall not include
(i) the Borrower, (ii) any Subsidiary of the Borrower, (iii) any
employee benefit plan of the Borrower or any Subsidiary of the
Borrower or any entity holding common stock of the Borrower for or
pursuant to the terms of any such plan, (iv) any descendant of
▇▇▇▇▇▇ ▇▇▇▇▇ or the spouse of any such descendant, the estate of
any such descendant or the spouse of any such descendant, any trust
or other arrangement for the benefit of any such descendant or the
spouse of any such descendant or any charitable organization
established by any such descendant or the spouse of any such
descendant (collectively, the "STONE FAMILY"), or (v) any group
which includes any member or members of the Stone Family and a
majority of the common stock held by such group is beneficially
owned by such member or members (such a group is hereinafter
referred to as a "STONE GROUP"). Notwithstanding the foregoing, no
Person shall become an Acquiring Person as the result of an
acquisition of common stock by the Borrower which, by reducing the
number of shares outstanding, increases the proportionate number of
shares beneficially owned by such Person to more than 50% or more
of the common stock of the Borrower then outstanding; PROVIDED,
HOWEVER, that if a Person shall become the beneficial owner of more
than 50% or more of the common stock of the Borrower then
outstanding by reason of share purchases by the Borrower and shall,
after such share purchases by the Borrower, become the beneficial
owner of any additional common stock of the Borrower, then such
Person shall be deemed to be an Acquiring Person.
"ADDITIONAL FEES" is defined in SECTION 3.10.
"ADDITIONAL LENDER" means, at any time, any Lender which
then has an Additional Term Loan Commitment or is owed any portion
of the Additional Term Loan.
"ADDITIONAL TERM LOAN" means, individually and
collectively, the loans made by each of the Additional Lenders to
the Borrower in accordance with SECTION 2.1(c), which Additional
Term Loan shall from time to time be comprised of Prime Rate Loans
or Eurodollar Rate Loans or any combination of the foregoing.
"ADDITIONAL TERM LOAN COMMITMENT" means, with respect to
each Additional Lender, the principal amount set forth opposite
such Additional Lender's name on SCHEDULE 1.1(e) hereto under the
caption "Amount of Additional Term Loan Commitment."
Appendix - Page 2
"ADDITIONAL TERM LOAN MATURITY DATE" means October 1,
2003.
"ADDITIONAL TERM LOAN OBLIGATIONS" means the obligations
of the Borrower to repay the principal of, and pay the interest on,
the Additional Term Loan pursuant to SECTION 2.2(d).
"ADDITIONAL TERM LOAN PRO RATA SHARE" means, with respect
to any Additional Lender and any described aggregate or total
amount, the amount equal to the result obtained by multiplying such
described aggregate or total amount by a fraction, the numerator of
which shall be the portion of the Additional Term Loan made by such
Lender and outstanding at the time and the denominator of which
shall be the aggregate amount of the Additional Term Loan made by
all of the Additional Lenders and outstanding at the time.
"ADDITIONAL TERM NOTE" is defined in SECTION 2.2(d).
"ADJUSTED WORKING CAPITAL" means the difference between
Consolidated Current Assets (excluding cash and marketable
securities) and Consolidated Current Liabilities.
"AFFILIATE" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under
common control with, such Person, whether through the ownership of
voting securities, by contract or otherwise.
"AGENT" is defined in the preamble to this Agreement.
"AGENT'S ADMINISTRATIVE FEE" is defined in SECTION 3.11.
"AGENT'S FEE" has the meaning assigned to that term in
the Original Credit Agreement.
"AGREEMENT" means this Amended and Restated Credit
Agreement, as the same may at any time be amended, restated,
supplemented or otherwise modified in accordance with the terms
hereof and in effect.
"AGREEMENT ACCOUNTING PRINCIPLES" is defined in SECTION
1.2.
"AMENDMENT FEE" is defined in SECTION 3.8.
"ASSETS" is defined in SECTION 3.4(c).
"ASSIGNEE" is defined in SECTION 9.12(d).
"ASSIGNMENT AGREEMENT" is defined in SECTION 9.12(d).
"AVAILABLE REVOLVING COMMITMENT" means, as to any
Revolving Lender at any time, an amount equal to the excess, if
Appendix - Page 3
any, of (i) such Lender's Revolving Loan Commitment over (ii) the
sum of (A) the aggregate principal amount then outstanding of
Revolving Loans made by such Lender and (B) such Lender's Revolving
Loan Pro Rata Share of the L/C Obligations, ▇▇▇▇▇▇▇▇ L/C
Obligations and Swing Line Loans then outstanding.
"AVAILABLE SUPPLEMENTAL REVOLVING COMMITMENT" means, as
to any Supplemental Revolving Lender at any time, an amount equal
to the excess, if any, of (i) such Lender's Supplemental Revolving
Loan Commitment over (ii) the aggregate principal amount then
outstanding of Supplemental Revolving Loans made by such Lender.
"BALANCE SHEET" is defined in SECTION 4.11(a).
"BASIC AGREEMENTS" means, collectively, the Loan
Documents, the Transaction Documents and all agreements amending
any of the foregoing agreements.
"BENEFITTED LENDER" is defined in SECTION 9.9(a).
"BOARD" means the Board of Governors of the Federal
Reserve System.
"BORROWER" is defined in the preamble to this Agreement.
"BORROWING" means the incurrence pursuant and subject to
ARTICLE II of this Agreement of one Type of Loan by the Borrower
from all of the Lenders having a Commitment for the Type of Loan
subject to the Borrowing on a PRO RATA basis on a given date (or
resulting from conversions on a given date), having in the case of
Eurodollar Rate Loans, the same Interest Periods; PROVIDED,
HOWEVER, that Prime Rate Loans or Eurodollar Rate Loans incurred
pursuant to SECTION 2.13(b) shall be considered part of any related
Borrowing of Eurodollar Rate Loans.
"BORROWING MARGINS" and "BORROWING MARGIN" mean,
respectively, (i) the borrowing margins referred to in SECTIONS
2.8(a), (b), (c), (d), (e), (f), (g), (h), (i), (j) AND (k), and
(ii) any one of such borrowing margins.
"BT" means Bankers Trust Company, a New York banking
corporation.
"BUSINESS DAY" means (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday
and any day which shall be in the City of New York or Chicago a
legal holiday or a day on which banking institutions are authorized
by law or other governmental actions to close and (ii) with respect
to all notices and determinations in connection with, and payments
of principal and interest on, Eurodollar Rate Loans, any day which
is a Business Day described in clause (i) and which is also a day
Appendix - Page 4
for trading by and between banks in U.S. dollar deposits in the
interbank Eurodollar market.
"CANADIAN CREDIT AGREEMENTS" means the Canadian Revolving
Credit Agreement and the Canadian Term Loan Agreement.
"CANADIAN REVOLVING CREDIT AGREEMENT" means that certain
Revolving Credit Agreement dated as of March 1, 1989, as amended,
by and among Stone-Canada, BT Bank of Canada, as Administrative
Agent, The Bank of Nova Scotia, as Payment Agent, Bankers Trust
Company, as Collateral Agent, and the financial institutions
signatory thereto.
"CANADIAN TERM LOAN AGREEMENT" means that certain Credit
Agreement dated as of March 1, 1989, as amended, by and among
Stone-Canada, BT, as agent, Citibank, N.A., Chemical Bank (as
successor to Manufacturers Hanover Trust Company) and The First
National Bank of Chicago, as co-agents, and the financial
institutions signatory thereto.
"CAPITAL EXPENDITURES" means, without duplication, with
respect to the Borrower and any Subsidiary of the Borrower (other
than S-CC and its Subsidiaries), any amounts expended or incurred
during or in respect of a period for any purchase, exchange or
other acquisition for value of any asset that is classified on a
consolidated balance sheet of the Borrower prepared in accordance
with generally accepted accounting principles as a fixed or capital
asset; PROVIDED, HOWEVER, that in no event shall Capital
Expenditures include amounts (i) expended in respect of
replacements and maintenance consistent with the business practices
of the Borrower in respect of plant facilities, machinery, fixtures
and other like capital assets utilized in the ordinary conduct of
business (to the extent such amounts are not capitalized in
preparing a consolidated balance sheet in accordance with generally
accepted accounting principles), (ii) expended in the replacement,
repair or reconstruction of any fixed or capital asset which was
destroyed or damaged, in whole or in part, to the extent of
insurance proceeds are receivable or have been received by the
Borrower or any such Subsidiary in respect of such destruction or
damage, (iii) expended in the replacement of any fixed or capital
asset within 180 days (or in the case of a disposition of
collateral under the First Mortgage Note Indenture, within the time
permitted for redeployment of the proceeds of the replaced fixed or
capital asset pursuant to Section 1015 of such indenture) of the
sale or other disposition of the fixed or capital asset replaced,
to the extent of any cash or cash equivalent proceeds received by
the Borrower or such Subsidiary in connection with such sale or
other disposition of the fixed or capital asset replaced, (iv)
expended for the purchase of the Facility pursuant to Section
10.01, 10.04 or 19.09 of the Leveraged Lease or (v) expended
pursuant to any Financing Lease.
Appendix - Page 5
"CASH EQUIVALENTS" means those Permitted Investments
included in clauses (i)-(v) of the definition thereof, with the
additional requirement that any such Permitted Investment must
mature not more than 30 days after the date of its purchase.
"CASH FLOW COVERAGE RATIO" means, for a period of four
quarters ending on the most recent quarter end prior to the date of
computation (treating each such period as a single accounting
period) on a consolidated basis, a ratio of (a) the sum of (i)
Consolidated Net Income of the Borrower (before income taxes) plus
(ii) interest expense (net of interest income on Permitted
Investments) during such period plus (iii) depreciation and
amortization deducted in determining Consolidated Net Income for
such period minus (iv) Capital Expenditures of the Borrower other
than Capital Expenditures made through the utilization of
Discretionary Funds to (b) interest expense (net of interest income
on Permitted Investments) during such period.
"CB" means Consolidated-Bathurst Inc., a Canadian federal
corporation, and its successors and assigns.
"CERTIFICATES OF OWNERSHIP AND MERGER" means (i) the
Certificate of Ownership and Merger of Stone Container Corporation,
a Delaware corporation, dated as of September 30, 1994, executed by
the Borrower and each of Stone Connecticut Paperboard Corporation,
Stone Mill Operating Corporation, Stone Bag Corporation, Stone
Packaging Corporation, Stone-Consolidated Newsprint, Inc. and Stone
Packaging Systems, Inc. (the "STONE MERGER SUBSIDIARIES"), merging
the Stone Merger Subsidiaries with and into the Borrower and filed
with the Delaware Secretary of State on September 30, 1994 and (ii)
the Certificate of Ownership and Merger of Stone Southwest, Inc.,
a Delaware corporation, dated as of September 30, 1994, executed by
Stone Southwest and each of Stone ▇▇▇▇▇, Inc., Stone Hopewell,
Inc., Manufacturers Folding Carton, Inc. and Stone Corrugated, Inc.
(the "STONE SOUTHWEST MERGER SUBSIDIARIES"), merging the Stone
Southwest Merger Subsidiaries with and into Stone Southwest and
filed with the Delaware Secretary of State on September 30, 1994.
"CHANGE OF CONTROL" means any event by which (i) an
Acquiring Person has become such, or (ii) Continuing Directors
cease to comprise a majority of the members of the board of
directors of the Borrower.
"CLOSING DATE" means October 12, 1994.
"CLUSTER EXPENDITURES" means capital expenditures
mandated pursuant to, or made to comply with, the final adopted
version, if any, of the proposed rules promulgated by the
Environmental Protection Agency at 58 Fed. Reg. 66078 (December 17,
1993) with respect to Effluent Limitations Guidelines,
Pretreatment Standards, and New Source Performance Standards: Pulp,
Paper, and Paperboard Category; National Emission Standards for
Appendix - Page 6
Hazardous Air Pollutants for Source Category: Pulp and Paper
Production.
"CO-AGENTS" and "CO-AGENT" have the respective meanings
assigned to such terms in the introduction to this Agreement.
"CODE" means the Internal Revenue Code of 1986, as from
time to time amended, including the regulations proposed or
promulgated thereunder, or any successor or regulation proposed or
promulgated thereunder.
"COLLATERAL" has the meaning assigned to that term in the
Security Agreements and shall include the inventory, machinery and
equipment of the Borrower or a Subsidiary, as applicable, located
at the Mortgaged Property.
"COLLATERAL BENEFITTED LENDER" is defined in SECTION
9.9(b).
"COMMERCIAL LETTERS OF CREDIT" means the commercial
Letters of Credit issued by the Facing Agent for the account of
Borrower pursuant to SECTION 2.12, each of which is drawable upon
presentation of documents evidencing the sale or shipment of goods
purchased by the Borrower or any of its Subsidiaries in the
ordinary course of its business.
"COMMITMENT" means, with respect to each Lender, the
aggregate of the Revolving Loan Commitment, Supplemental Revolving
Loan Commitment, Term Loan Commitment, Additional Term Loan
Commitment and D Tranche Term Loan Commitment of such Lender and
"COMMITMENTS" means such commitments of all of the Lenders
collectively. For purposes of this definition, the Revolving Loan
Commitment of the Swing Line Lender shall be deemed to include the
Swing Line Commitment of the Swing Line Lender.
"CONSOLIDATED CURRENT ASSETS" means, subject to the last
sentence of SECTION 1.2, as at the time any determination thereof
is to be made, the amount, without duplication, that is classified
on a consolidated balance sheet of the Borrower and its
Subsidiaries as the consolidated current assets of the Borrower and
its Subsidiaries at such time in accordance with generally accepted
accounting principles; PROVIDED, HOWEVER, that there shall be
excluded from the calculation of Consolidated Current Assets any
insurance receivables (net of related payables) relating to the
April, 1994 occurrence at the Panama City Mill.
"CONSOLIDATED CURRENT LIABILITIES" means, subject to the
last sentence of SECTION 1.2, as at the time any determination
thereof is to be made, all Indebtedness of the Borrower and its
Subsidiaries, without duplication, that is included as consolidated
current liabilities on a consolidated balance sheet of the Borrower
and its Subsidiaries in accordance with generally accepted
Appendix - Page 7
accounting principles, except that there shall be excluded from
Consolidated Current Liabilities (i) fixed sinking fund payments,
(ii) mandatory redemption and other payments of principal
outstanding or due (whether as a result of an acceleration or
otherwise), (iii) other mandatory prepayments required to be made
with respect to any Indebtedness for Money Borrowed within one year
after such date of determination, (iv) any other Indebtedness for
Money Borrowed maturing on demand and (v) all outstanding Revolving
Loans, Supplemental Revolving Loans and Swing Line Loans under this
Agreement.
"CONSOLIDATED NET INCOME" AND "CONSOLIDATED NET LOSS"
mean, respectively, subject to the last sentence of SECTION 1.2,
with respect to any period, the aggregate of the net income (loss)
(before taking account of minority interests) of the Borrower and
its Subsidiaries for such period, determined in accordance with
generally accepted accounting principles on a consolidated basis,
PROVIDED that (i) in the case of any Person which is not a
consolidated Subsidiary, the net income (loss) of such Person shall
be disregarded and the amount of cash dividends and distributions
paid by such Person to the Borrower or a consolidated Subsidiary of
the Borrower shall be included in the net income (loss) of the
Borrower; and (ii) the net income (loss) of any Person acquired in
a pooling of interests transaction for any period prior to the date
of such acquisition shall be excluded. There shall be excluded in
computing Consolidated Net Income the excess (but not the deficit),
if any, of (A) any gain which must be treated as an extraordinary
item under generally accepted accounting principles or any gain
realized upon the sale or other disposition of any real property or
equipment that is not sold in the ordinary course of business or of
any capital stock of the Borrower or a Subsidiary of the Borrower
over (B) any loss which must be treated as an extraordinary item
under generally accepted accounting principles or any loss realized
upon the sale or other disposition of any real property or
equipment that is not sold in the ordinary course of business or of
any capital stock of the Borrower or a Subsidiary of the Borrower.
"CONSOLIDATED NET WORTH" of the Borrower means, subject
to the last sentence of SECTION 1.2, as at the time any
determination thereof is made, without duplication, an amount equal
to the sum of (i) the Borrower's total common stockholders' equity
(excluding treasury stock, the effects of FASB 115 and excluding
the effects of foreign currency translation adjustments) and
(ii) the amount of the Permitted Preferred Stock.
"CONSOLIDATED TANGIBLE NET WORTH" of the Borrower means,
subject to the last sentence of SECTION 1.2, as at the time any
determination thereof is made, without duplication, an amount equal
to (i) the sum of (A) the Borrower's total common stockholders'
equity (excluding treasury stock, the effects of FASB 115 and
excluding the effects of foreign currency translation adjustments)
and (B) the amount of the Permitted Preferred Stock, MINUS (ii) the
Appendix - Page 8
net book value of all assets of the Borrower and its Subsidiaries
which would be treated as intangibles under generally accepted
accounting principles, including, without limitation, deferred
charges, leasehold conversion costs, franchise rights, non-compete
agreements, goodwill, unamortized debt discounts, patents, patent
applications, trademarks, trade names, copyrights and licenses,
except for any such intangibles of Southwest Forest Industries,
Inc. or CB created as the result of the acquisition of either
thereof.
"CONTAMINANT" means any pollutant, contaminant (as those
terms are defined in 42 U.S.C. Section 9601(33)), toxic pollutant (as that
term is defined in 33 U.S.C. Section 1362(13)), hazardous substance (as
that term is defined in 42 U.S.C. Section 9601(14)), hazardous chemical
(as that term is defined by 29 CFR Section 1910.1200(c)), hazardous waste
(as that term is defined in 42 U.S.C. Section 6903(5)), or any state or
local equivalent of such laws and regulations, including, without
limitation, radioactive material, special waste, polychlorinated
biphenyls, asbestos, petroleum, including crude oil or any
petroleum-derived substance, waste, or breakdown or decomposition
product thereof, or any constituent of any such substance or waste.
"CONTINENTAL GUARANTY" means the Guaranty dated as of
August 30, 1983 between The Continental Group, Inc., a New York
corporation, and the Borrower, as amended from time to time.
"CONTINUING DIRECTOR" means any member of a board of
directors, while such Person is a member of such board of directors
who is not an Acquiring Person, or an affiliate or associate of an
Acquiring Person or a representative of an Acquiring Person or of
any such affiliate or associate and who (i) was a member of such
board of directors prior to the date of this Agreement, or
(ii) subsequently becomes a member of such board of directors and whose
nomination for election or election to such board of directors is
recommended or approved by resolution of a majority of the
Continuing Directors or who is included as a nominee in a proxy
statement of the Borrower distributed when a majority of such board
of directors consists of Continuing Directors.
"CONVERTIBLE INDENTURE" means the Indenture dated as of
June 15, 1993 between the Borrower and Norwest Bank Minnesota,
National Association, at Trustee, as amended, supplemented,
restated or otherwise modified from time to time.
"CONVERTIBLE SUBORDINATED INDENTURE" means the Indenture
dated as of February 15, 1992 between the Borrower and The Bank of
New York, as Trustee, pursuant to which the Borrower issued its 6-3/4%
Convertible Subordinated Debentures due February 15, 2007, as
amended, supplemented, restated or otherwise modified from time to
time.
Appendix - Page 9
"CP&L PROPERTY" means any intangible property or contract
rights of the Borrower relating to or existing under that certain
Electric Power Purchase Agreement dated as of December 17, 1984, as
amended, between the Borrower and Carolina Power & Light.
"CREDIT EVENT" means the making of any Loan and the
issuance of any Letter of Credit.
"CREDIT EXPOSURE" is defined in SECTION 9.12(c).
"D TRANCHE LENDER" means, at any time any Lender which
then has a D Tranche Term Loan Commitment or is owed any portion of
the D Tranche Term Loan.
"D TRANCHE TERM LOAN" means, individually and
collectively, the loans made by each of the D Tranche Lenders to
the Borrower in accordance with SECTION 2.1(e), which D Tranche
Term Loan shall from time to time be comprised of Prime Rate Loans
or Eurodollar Rate Loans or any combination of the foregoing.
"D TRANCHE TERM LOAN COMMITMENT" means, with respect to
each D Tranche Lender, the principal amount set forth opposite such
D Tranche Lender's name on SCHEDULE 1.1(f) hereto under the caption
"Amount of D Tranche Term Loan Commitment."
"D TRANCHE TERM LOAN MATURITY DATE" means October 1,
2003.
"D TRANCHE TERM LOAN OBLIGATIONS" means the obligations
of the Borrower to repay the principal of, and pay the interest on,
the D Tranche Term Loan pursuant to SECTION 2.2(f).
"D TRANCHE TERM LOAN PRO RATA SHARE" means, with respect
to any D Tranche Lender and any described aggregate or total
amount, the amount equal to the result obtained by multiplying such
described aggregate or total amount by a fraction, the numerator of
which shall be the portion of the D Tranche Term Loan made by such
Lender and outstanding at the time and the denominator of which
shall be the aggregate amount of the D Tranche Term Loan made by
all of the D Tranche Lenders and outstanding at the time.
"D TRANCHE TERM NOTE" is defined in SECTION 2.2(f).
"DEBT BASKET PROCEEDS" is defined in the definition of
"Discretionary Funds."
"DEBT REFINANCING" means the termination of the U.S.
Credit Agreement, the Canadian Credit Agreements and the Stone
Savannah Credit Agreement and the repayment in full of all
obligations outstanding thereunder.
Appendix - Page 10
"DEBT REFINANCING DOCUMENTS" means the documents and
instruments entered into with respect to the termination of the
commitments, and the reimbursement obligations with respect to any
letters of credit issued, under the U.S. Credit Agreement, the
Canadian Credit Agreements and the Stone Savannah Credit Agreement,
the repayment of the loans and other obligations thereunder, the
release of all guaranties and security with respect thereto and any
consents required in connection therewith.
"DEFAULT RATE" is defined in SECTION 2.8(l).
"DELAYED COLLATERAL" is defined in SECTION 5.1.17.
"DEPOSITED MONIES" is defined in SECTION 3.5.
"DISCRETIONARY FUNDS" means the sum of (i) the aggregate
amount of Waived Proceeds, PLUS (ii) the aggregate amount of
Excluded Sale Proceeds (not to exceed $300 million), with the
aggregate amount of Excluded Sale Proceeds in excess of $200
million being referred to as "EXCESS EXCLUDED SALE PROCEEDS", PLUS
(iii) the aggregate amount of Indebtedness incurred pursuant to
SECTION 5.2.2(t) (not to exceed $400 million) ("DEBT BASKET
PROCEEDS"), PLUS (iv) the aggregate amount of Excess Cash Flow for
each Fiscal Quarter of the Borrower commencing with the Fiscal
Quarter ending December 31, 1994 which is not required by SECTION
3.4(a) to be utilized as a mandatory prepayment, such amount to be
determined without giving effect to any prepayment reduction or
waiver pursuant to clause (B) of SECTION 3.4(a) or SECTION 3.6(f)
and such amount with respect to any Fiscal Quarter becoming
Discretionary Funds only after the delivery of the Excess Cash Flow
Schedule for such Fiscal Quarter pursuant to SECTION 5.1.1(b) or
5.1.1(c). As of the Restatement Date, the amount of Debt Basket
Proceeds shall be deemed increased by $300 million without
otherwise limiting the Borrower's ability to incur Indebtedness
under SECTION 5.2.2(t), and such $300 million increase may be
utilized from and after the Restatement Date by the Borrower as
Discretionary Funds constituting Debt Basket Proceeds.
"DISCRETIONARY FUNDS BASKET" means, at any time, (i) the
aggregate amount of Discretionary Funds less (ii) the aggregate
amount of the sum of (A) Investments made pursuant to SECTION
5.2.7(l), (B) Acquisitions pursuant to SECTION 5.2.9(e)(ii), (C)
prepayments of Indebtedness pursuant to SECTION 5.2.10(a)(ix), and
(D) Capital Expenditures made pursuant to SECTION 5.2.11(iii). Any
utilization of Discretionary Funds for the purpose specified in
clause (C) above shall first be deemed a utilization of Debt Basket
Proceeds and Excess Excluded Sale Proceeds to the extent thereof
and then a utilization of other Discretionary Funds.
"DIVIDEND BASKET" means, at any time, the maximum amount
of cash dividends which the Borrower would then be permitted to pay
to its shareholders pursuant to SECTION 5.2.5(b).
Appendix - Page 11
"DOLLAR" and "$" shall mean lawful currency of the United
States of America unless a currency of another country is
specifically designated.
"8-7/8% NOTES" means the Borrower's 8-7/8% Convertible
Senior Subordinated Notes due July 15, 2000.
"ELIGIBLE ASSIGNEE" means (i) a commercial bank organized
under the laws of the United States of America, or any State
thereof, and having total assets in excess of $5,000,000,000; (ii)
a savings and loan association or savings bank organized under the
laws of the United States of America, or any State thereof, and
having total assets in excess of $5,000,000,000; or (iii) a
commercial bank which is organized under the laws of any other
country, and which has total assets in excess of $5,000,000,000,
PROVIDED that such bank is acting through a branch or agency
located in the United States of America.
"EMPLOYEE BENEFIT PLAN" means an "employee benefit plan",
as defined in Section 3(3) of ERISA, which is or has been
established or maintained, or to which contributions are or have
been made, by the Borrower or any of its Subsidiaries or any ERISA
Affiliate.
"ENVIRONMENTAL LAWS" means any and all applicable
foreign, federal, state or local laws, statutes, ordinances, codes,
rules, regulations, orders, decrees, judgments, directives and
cleanup or action standards, levels or objectives imposing
liability or standards of conduct for or relating to the protection
of health, safety or the environment, including, but not limited
to, the following statutes as now written and amended, and as
amended hereafter: the Federal Water Pollution Control Act, 33
U.S.C. Section 1251 ET SEQ., the Clean Air Act, 42 U.S.C.
Section 7401 ET SEQ., the Toxic Substances Control Act, 15
U.S.C. Section 2601 ET SEQ., the Solid Waste Disposal Act,
42 U.S.C. Section 6901 ET SEQ., the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601
ET SEQ., the Emergency Planning and Community Right-to-Know Act of 1986,
42 U.S.C. Section 11001 ET SEQ., and the Safe
Drinking Water Act, 42 U.S.C. Section 300f ET SEQ.
"ENVIRONMENTAL LIEN" means a Lien in favor of any
governmental authority for (i) any liability under foreign,
federal, state or local environmental laws or regulations, or (ii)
damages arising from, or costs incurred by such governmental
authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"ENVIRONMENTAL PERMITS" is defined in SECTION 4.21.
"ENVIRONMENTAL STUDY" means those certain environmental
assessments and documents upon which such assessments are based of
the Facilities prepared by EnviroClean Midwest, Inc. with regard to
Appendix - Page 12
the existing and potential liability of the Borrower with respect
to any environmental matters, including a review of compliance with
Environmental Laws.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as from time to time amended.
"ERISA AFFILIATE" means each trade or business (whether
or not incorporated) which together with the Borrower or a
Subsidiary of the Borrower would be deemed to be a "single
employer" within the meaning of Section 4001(b) of ERISA or Section
414 of the Code, excluding any foreign Subsidiary of the Borrower
which is not subject to ERISA.
"EURODOLLAR RATE" means, with respect to each Interest
Period to be applicable to a Eurodollar Rate Loan, the rate per
annum obtained by dividing (i) the arithmetic average (rounded
upward to the nearest 1/16th of 1%) of the offered quotation to
first-class banks in the interbank Eurodollar market by each
Reference Bank for U.S. Dollar deposits of an amount in immediately
available funds approximately equal to the principal amount of the
Eurodollar Rate Loan to be made by such Reference Bank for a period
approximately equal to such Interest Period determined as of 10:00
a.m. (New York City time) two (2) Business Days prior the
commencement of such Interest Period, PROVIDED that if any
Reference Bank fails to provide the Agent in a timely fashion with
its aforesaid quotation then the Eurodollar Rate shall be
calculated using the arithmetic average of the quotations provided
to the Agent by the other Reference Bank or Banks by (ii) a
percentage equal to 100% minus the stated maximum rate (expressed
as a percentage) as prescribed by the Board of all reserve
requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves and all reserves
required to be maintained against "Eurocurrency liabilities" as
specified in Regulation D (or any successor regulation)) applicable
on the first day of such Interest Period to any member bank of the
Federal Reserve System in respect of Eurodollar funding or
liabilities. The determination of the Eurodollar Rate by the Agent
shall be conclusive and binding on the Borrower and the Lenders
absent manifest error.
"EURODOLLAR RATE ADDITIONAL TERM LOAN" means the
Additional Term Loan or any portion thereof during any period in
which it bears interest at the Eurodollar Rate.
"EURODOLLAR RATE D TRANCHE TERM LOAN" means the D Tranche
Term Loan or any portion thereof during any period in which it
bears interest at the Eurodollar Rate.
"EURODOLLAR RATE LOAN" means any Loan which bears
interest at a rate determined with reference to the Eurodollar
Rate.
Appendix - Page 13
"EURODOLLAR RATE REVOLVING LOAN" means a Revolving Loan
or any portion thereof during any period in which it bears interest
at the Eurodollar Rate.
"EURODOLLAR RATE SUPPLEMENTAL REVOLVING LOAN" means a
Supplemental Revolving Loan or any portion thereof during any
period in which it bears interest at the Eurodollar Rate.
"EURODOLLAR RATE TERM LOAN" means the Term Loan or any
portion thereof during any period in which it bears interest at a
rate determined with reference to the Eurodollar Rate.
"EVENT OF DEFAULT" is defined in SECTION 7.1.
"EXCESS CASH FLOW" means, without duplication, for any
Fiscal Quarter, an amount equal to the sum of (i) Consolidated Net
Income (or Consolidated Net Loss), PLUS (MINUS) (ii) depreciation,
depletion, amortization, deferred taxes and other noncash expenses
(revenues) which, pursuant to generally accepted accounting
principles, were deducted (added) in determining the Consolidated
Net Income, MINUS (PLUS) (iii) the increase (decrease) in Adjusted
Working Capital from the last day of the prior Fiscal Quarter
(excluding changes in income taxes payable), MINUS (iv) Capital
Expenditures (other than Capital Expenditures incurred through the
utilization of Indebtedness for Money Borrowed permitted by
SECTION 5.2.2(k) or Discretionary Funds and other than Capital
Expenditures of S-CC and Subsidiaries of S-CC) for such Fiscal
Quarter, MINUS (v) the amount of any required prepayment (except
(A) under this Agreement (including as the result of mandatory
reductions in the Revolving Loan Commitments or Supplemental
Revolving Loan Commitments) and (B) under the First Mortgage Note
Documents in connection with the sale of any collateral securing
the Indebtedness thereunder) or any regularly scheduled payments of
Indebtedness for Money Borrowed (but excluding Indebtedness for
Money Borrowed described in subparagraphs (IV) or (vi) of the
definition of Indebtedness for Money Borrowed) during such quarter,
MINUS (vi) cash dividends, distributions or other amounts paid by
the Borrower to any of its stockholders with respect to its capital
stock during such quarter, MINUS (vii) Investments by the Borrower
or any Subsidiary of the Borrower (other than S-CC and Subsidiaries
of S-CC) during such quarter except for Investments made through
the utilization of Discretionary Funds, MINUS (viii) any portion of
Consolidated Net Income attributable to gains (losses) on the
disposition of assets to the extent the proceeds therefrom were
used pursuant to SECTION 3.4(c) to prepay the Obligations, MINUS
(ix) dividends paid by non-Wholly-Owned Subsidiaries of the
Borrower to minority shareholders other than the Borrower or
Wholly-Owned Subsidiaries of the Borrower, PLUS (x) the increases
in the aggregate principal amount of borrowings by StoneSub from
the Issuer in connection with each Receivables Financing from (A)
the later of (1) the beginning of the quarter for which the
calculation is being made or (2) the date on which the applicable
Appendix - Page 14
Receivables Financing commenced (if established during such
quarter) to (B) the end of such quarter, MINUS (xi) the decreases
in the aggregate principal amount of borrowings (other than as the
result of a refinancing of such borrowings from a source other than
internally generated cash or Borrowings hereunder) by StoneSub from
the Issuer in connection with each Receivables Financing from (A)
the later of (1) the beginning of the quarter for which the
calculation is being made or (2) the date on which the applicable
Receivables Financing commenced (if established during such
quarter) to (B) the end of such quarter. In the event that
Seminole Kraft merges with and into the Borrower pursuant to
SECTION 5.2.8(g) in any Fiscal Quarter, Excess Cash Flow for such
Fiscal Quarter shall be calculated as though the merger of Seminole
Kraft with and into the Borrower occurred on the first day of such
Fiscal Quarter.
"EXCESS CASH FLOW PERCENTAGE" means 50% from the date of
this Agreement and continuing thereafter until adjusted pursuant to
the terms and conditions set forth on SCHEDULE 1.1(b) hereto.
"EXCESS CASH FLOW SCHEDULE" is defined in SECTION
5.1.1(b).
"EXCESS EXCLUDED SALE PROCEEDS" is defined in the
definition of "Discretionary Funds".
"EXCLUDED SALE PROCEEDS" is defined in SECTION 3.4(c).
"EXECUTIVE OFFICER" means from time to time any officer
of the Borrower elected by the board of directors of the Borrower
or designated as an executive officer in any Form 10-K or successor
form filed by the Borrower with the Securities and Exchange
Commission.
"EXISTING CREDIT AGREEMENT" is defined in the Recitals to
this Agreement.
"EXISTING LENDERS" is defined in the Recitals to this
Agreement.
"FACILITIES" means the owned and leased facilities of the
Borrower set forth on SCHEDULE 1.1(c) hereto.
"FACILITY" has the meaning assigned to that term in the
Participation Agreement.
"FACILITY FEE" has the meaning assigned to that term in
the Original Credit Agreement.
"FACING AGENT" means BT or such other Revolving Lender as
may from time to time have been designated as such by the Borrower
and shall have agreed in writing to act in such capacity.
Appendix - Page 15
"FEDERAL FUNDS RATE" means on any given day, the rate per
annum equal to the weighted average of the rate on overnight
Federal funds transactions with members of the Federal Reserve
System only arranged by Federal funds brokers, as published as of
such day by the Federal Reserve Bank of New York, or, if such rate
is not so published, the rate then used by first class banks in
extending overnight loans to other first class banks.
"FINANCING LEASE" means, at the time any determination
thereof is to be made, any lease of property, real or personal, in
respect of which the present value of the minimum rental commitment
is capitalized on the balance sheet of the lessee in accordance
with generally accepted accounting principles.
"FINANCING LEASE OBLIGATION" means, at the time any
determination thereof is to be made, the amount of the liability in
respect of a Financing Lease which would at such time be so
required to be capitalized on the lessee's balance sheet in
accordance with generally accepted accounting principles.
"FIRST MORTGAGE NOTE DOCUMENTS" means the First Mortgage
Note Indenture, the First Mortgage Notes, the Security Documents
(as such term is defined in the First Mortgage Note Indenture) and
all other documents, instruments and agreements now or hereafter
evidencing or securing all or any portion of the Borrower's
obligations under the First Mortgage Note Indenture and the First
Mortgage Notes, including any documents, instruments or agreements
evidencing or securing the amendment, refinancing, modification,
replacement, renewal, restatement, refunding, deferral, extension,
supplement, reissuance or resale thereof.
"FIRST MORTGAGE NOTE INDENTURE" means the Indenture dated
as of October 12, 1994 between the Borrower and Norwest Bank
Minnesota, National Association, as Trustee, pursuant to which the
Borrower issued its First Mortgage Notes, as amended, supplemented,
restated or otherwise modified from time to time.
"FIRST MORTGAGE NOTES" means the Borrower's 10-3/4% First
Mortgage Notes due October 1, 2002 in the aggregate principal
amount of $500 million and issued pursuant to the First Mortgage
Note Indenture, as amended, supplemented, restated or otherwise
modified from time to time.
"FIRST RESTATEMENT DATE" means August 29, 1995.
"FISCAL QUARTERS" is defined in SECTION 4.7.
"FISCAL YEAR" is defined in SECTION 4.7.
"▇▇▇▇▇▇▇▇ AGREEMENTS" mean, collectively, (i) the
Participation Agreement dated as of March 1, 1985 among the
Borrower, as successor in interest to Stone Container Corporation,
Appendix - Page 16
an Illinois corporation, the Borrower, as Ground Lessor, Dart &
Kraft Financial Corporation, Irving Trust Company and NCNB National
Lender of North Carolina (as amended and Supplemented by the First
Supplement thereto dated as of June 1, 1986, as further amended and
supplemented by the Second Supplement thereto dated as of June 1,
1987, and as further amended and supplemented and in effect from
time to time, the "D&K Participation Agreement"), (ii) each of the
"Basic Documents" as defined in Appendix A to the D&K Participation
Agreement, (iii) the Participation Agreement dated as of March 1,
1985 among the Borrower, as successor in interest to Stone
Container Corporation, an Illinois corporation, the Borrower, as
Ground Lessor, Westinghouse Credit Corporation ("WCC"), Irving
Trust Company and NCNB National Lender of North Carolina (as
amended and supplemented by the First Supplement thereto dated as
of June 1, 1986, and as further amended and supplemented by the
Second Supplement thereto dated as of June 1, 1987, and as further
amended and supplemented and in effect from time to time, the "WCC
PARTICIPATION AGREEMENT"), (iv) each of the "Basic Documents"
defined in Appendix A to the WCC Participation Agreement, and (v)
the Transfer and Assumption Agreement dated as of March 1, 1987
between D&K Financial Corporation ("D&K") and WCC, together with
such additional documents as have been executed in connection with
the transfer by D&K of a portion of its interest in the D&K
Participation Agreement to WCC.
"▇▇▇▇▇▇▇▇ ▇▇▇▇▇" means the Variable Rate Demand
Industrial Revenue Bonds, Series 1984, issued by ▇▇▇▇▇▇▇▇ County,
South Carolina pursuant to the Trust Indenture dated as of December
15, 1984 as in effect on the date of this Agreement.
"▇▇▇▇▇▇▇▇ L/C OBLIGATIONS" means, at any time of
determination, the sum of (i) the aggregate undrawn face amount of
the ▇▇▇▇▇▇▇▇ Letters of Credit, plus (ii) the amount of any
drawings under the ▇▇▇▇▇▇▇▇ Letters of Credit which have not been
reimbursed pursuant to the L/C Agreement, plus (iii) the principal
amount of any term loans outstanding under the L/C Agreement.
"▇▇▇▇▇▇▇▇ LETTERS OF CREDIT" means, individually and
collectively, the letters of credit from time to time issued
pursuant to the L/C Agreement.
"FORECASTS" is defined in SECTION 4.11(c).
"GOVERNMENT ACTS" is defined in SECTION 2.12(i).
"GOVERNMENTAL AUTHORITY" means any foreign, Federal,
state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign.
"INDEBTEDNESS" means, with respect to any Person, without
duplication:
Appendix - Page 17
(a) all obligations of such Person which in accordance
with generally accepted accounting principles would be shown on the
balance sheet of such Person as a liability (including, without
limitation, obligations for borrowed money and for the deferred
purchase price of property or services, and obligations evidenced
by bonds, debentures, notes or other similar instruments);
(b) all obligations under Financing Leases, required to
be capitalized under generally accepted accounting principles;
(c) all guarantees (direct or indirect), all contingent
reimbursement obligations under undrawn letters of credit and other
contingent obligations of such Person in respect of, or obligations
to purchase or otherwise acquire or to assure payment of,
Indebtedness of others;
(d) Indebtedness of others secured by any Lien upon
property owned by such Person, whether or not assumed; and
(e) all sinking fund payments or other mandatory
redemption or payments on preferred or preference stock due on or
prior to January 15, 2004 (other than preferred or preference
shares issued to the Borrower by Stone-Canada).
"INDEBTEDNESS FOR MONEY BORROWED" means, without
duplication, (i) the principal amount of all Indebtedness of the
Borrower or a Subsidiary of the Borrower, as the case may be,
current or funded, secured or unsecured, incurred in connection
with borrowings (including the sale of debt securities), (ii) all
Indebtedness of the Borrower or a Subsidiary of the Borrower, as
the case may be, issued, incurred or assumed in respect of the
purchase price of property except for trade and intercompany
accounts payable, (iii) all Financing Lease Obligations of the
Borrower or a Subsidiary of the Borrower, as the case may be, (iv)
any direct or indirect guarantee in respect of Indebtedness of any
other Person of any of the types specified in the preceding clauses
(i)-(iii), (v) the amount of all Indebtedness described in
subsection (e) of the definition of Indebtedness, and (vi) the
maximum stated amount from time to time available for drawing under
the letters of credit issued pursuant to the L/C Agreement plus the
amount of any unreimbursed drawings under the letters of credit
plus (without duplication) the amount of any "Term Loans"
outstanding under the L/C Agreement.
"INDEBTEDNESS RATIO" means, as at the time any
determination thereof is to be made, a ratio, the numerator of
which shall be Total Consolidated Indebtedness for Money Borrowed
and the denominator of which shall be the sum of (i) Consolidated
Net Worth and (ii) Total Consolidated Indebtedness for Money
Borrowed. For purposes of calculating the Indebtedness Ratio,
Total Consolidated Indebtedness for Money Borrowed shall not
include the aggregate principal amount of proceeds from
Appendix - Page 18
Indebtedness incurred on the Closing Date which have been deposited
and remain in escrow with the trustee of the Stone Savannah Senior
Subordinated Note Indenture pursuant to SECTION 6.1(l)(iv) or
Indebtedness which has been defeased and is no longer treated as
Indebtedness for purposes of generally accepted accounting
principles.
"INITIAL LOANS" means the Term Loan and, if any Revolving
Loans or Swing Line Loans are requested by the Borrower on the
Closing Date, such Revolving Loans or Swing Line Loans.
"INTEREST COVERAGE RATIO" means, for the period of four
quarters ending on the most recent quarter end prior to the date of
computation (treating each such period as a single accounting
period) on a consolidated basis, a ratio of (a) the sum of (i)
Consolidated Net Income of the Borrower (before income taxes) plus
(ii) interest expense (net of interest income on Permitted
Investments) during such period plus (iii) depreciation and
amortization deducted in determining Consolidated Net Income for
such period plus (iv) any non-cash loss resulting from the early
extinguishment of debt deducted in determining Consolidated Net
Income for such period to (b) interest expense (net of interest
income on Permitted Investments) during such period. For purposes
of computing Consolidated Net Income in clause (i) above, there
shall be excluded from the computation thereof, to the extent not
otherwise excluded from the computation thereof or added back by
clause (iv) above, any non-cash loss recognized by the Borrower in
respect of the repurchase, prepayment, conversion, redemption or
other extinguishment of the 8-7/8% Notes pursuant to SECTION
5.2.10(a)(xiv).
"INTEREST PERIOD" means any interest period applicable to
a Loan as determined pursuant to SECTION 2.10.
"INTEREST RATE DETERMINATION DATE" means any date on
which the Agent is required to determine the applicable Eurodollar
Rate in connection with a Notice of Borrowing or Notice of
Conversion or Continuation delivered by the Borrower.
"INVESTMENT" means, with respect to any Person (such
Person being referred to in this definition as the "INVESTOR"), any
amount paid by the Investor, directly or indirectly, or any
transfer of property, directly or indirectly, by the Investor to
any other Person for capital stock of, or as a capital contribution
to, or any amount which the Investor has loaned or advanced,
directly or indirectly, to, any other Person, including, in the
case of any Person which becomes a Subsidiary of the Borrower, the
aggregate principal amount of Indebtedness for Money Borrowed of
such Person outstanding at the time such Person becomes a
Subsidiary. The calculation of any Investment shall be exclusive
of amounts paid for goods or services in the ordinary course of
business on terms customary for the industry.
Appendix - Page 19
"INVESTMENT GRADE RATING" means a rating of the
Borrower's senior unsecured long-term debt outstanding, without
third-party enhancement, by Standard & Poor's Corporation of BBB-
or better and by ▇▇▇▇▇'▇ Investor Services, Inc. of Baa3 or better.
"IRB" means industrial revenue bonds and other debt
instruments set forth on SCHEDULE 5.2.2 hereto.
"ISSUER" has the meaning assigned to that term in the
definition of Accounts Receivable Financing Program.
"L/C AGREEMENT" means, collectively, the letter of credit
agreements entered into between (i) BT and Gelco Corporation, as
successor in interest to D & K Financial Corporation, and (ii) BT
and Westinghouse Electric Corporation, as successor by merger to
Westinghouse Credit Corporation, with respect to the issuance by BT
of one or more letters of credit to secure the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as
such letter of credit agreements may at any time be amended,
modified or restated in accordance with the terms thereof and in
effect.
"L/C OBLIGATIONS" means, at any time, an amount equal to
the sum of (i) the aggregate Stated Amount of the then outstanding
Letters of Credit and (ii) the aggregate amount of drawings under
Letters of Credit which have not been reimbursed and which have not
been converted to Revolving Loans pursuant to SECTION 2.12(E).
"L/C PARTICIPATION AGREEMENTS" means, collectively, the
Letter of Credit Participation Agreements entered into by and
between each Revolving Lender (other than BT) and BT dated as of
the date hereof with respect to the L/C Agreement, as the same may
at any time be amended, supplemented, restated or otherwise
modified in accordance with the terms thereof and in effect.
"LENDING OFFICE" means for each Lender, the office
specified for such Lender pursuant to SECTION 9.4 as the office
from which its Revolving Loan Pro Rata Share, Term Loan Pro Rata
Share or Additional Term Loan Pro Rata Share, as the case may be,
of any Borrowing will be made.
"LETTER OF CREDIT FEE" is defined in SECTION 2.12(F)(II).
"LETTERS OF CREDIT" means the Commercial Letters of
Credit and the Standby Letters of Credit, but shall not include the
▇▇▇▇▇▇▇▇ Letters of Credit.
"LENDERS" and "LENDER" have the respective meanings
assigned to those terms in the preamble to this Agreement and shall
include each Assignee and Eligible Assignee thereof that shall
become a party to this Agreement pursuant to SECTION 9.12. For
purposes of this Agreement, the Lenders shall collectively include
Appendix - Page 20
all of the Revolving Lenders in their capacities as such, all Term
Lenders in their capacities as such, all Additional Lenders in
their capacities as such, all Supplemental Revolving Lenders in
their capacities as such, all D Tranche Lenders in their capacities
as such and the Swing Line Lender in its capacity as such. A
Lender may be a Revolving Lender, a Supplemental Revolving Lender,
a Term Lender, an Additional Lender and/or a D Tranche Lender
hereunder.
"LEVERAGED LEASE" means, collectively, (i) the Lease
Agreement dated as of March 1, 1985 between the Borrower and D&K
Financial Corporation as amended from time to time and (ii) the
Lease Agreement dated as of March 1, 1985 between the Borrower and
Westinghouse Credit Corporation as amended from time to time.
"LIEN" means any mortgage, pledge, security interest,
adverse claim (as defined in Section 8.302(2) of the New York
Uniform Commercial Code), encumbrance, lien or charge of any kind
(including, without limitation, any conditional sale or other title
retention agreement or lease in the nature thereof, any sale of
receivables with recourse against the seller or any Affiliate of
the seller, any filing or agreement to file a financing statement
as debtor under the Uniform Commercial Code or any similar statute
other than to reflect ownership by a third party of property leased
to the Borrower or any of its Subsidiaries under a lease which is
not in the nature of a conditional sale or title retention
agreement).
"LOAN" means any of the Term Loan, the Additional Term
Loan, the Revolving Loans, the Supplemental Revolving Loans, the
D Tranche Term Loan or the Swing Line Loans and "LOANS" means all
of such Loans collectively.
"LOAN DOCUMENTS" means, collectively, this Agreement, the
Notes, the Security Agreements, the Mortgages, the Subsidiary
Guarantees, the L/C Agreement, the L/C Participation Agreement, the
▇▇▇▇▇▇▇▇ Letters of Credit and all other agreements, assignments,
security agreements, instruments and documents executed in
connection with this Agreement or any other Loan Document, in each
case as the same may at any time be amended, supplemented, restated
or otherwise modified and in effect. For purposes of this
Agreement, "Loan Documents" shall also include all guaranties,
security agreements, mortgages, pledge agreements, collateral
assignments and other collateral documents in the nature of any
thereof entered into by the Borrower or any Subsidiary of the
Borrower after the date of this Agreement in favor of the Agent for
the benefit of the Lenders in satisfaction of the requirements of
this Agreement.
"MAJORITY ADDITIONAL TERM LENDERS" is defined in SECTION
9.3.
Appendix - Page 21
"MAJORITY D TRANCHE TERM LENDERS" is defined in SECTION
9.3.
"MAJORITY REVOLVING LENDERS" is defined in SECTION 9.2.
"MAJORITY SUPPLEMENTAL REVOLVING LENDERS" is defined in
SECTION 9.3.
"MAJORITY TERM LENDERS" is defined in SECTION 9.2.
"MARGIN STOCK" has the meaning provided in Regulation U
of the Board, as from time to time in effect or any successor to
all or any portion thereof establishing margin credit restrictions.
"MATERIAL ADVERSE EFFECT" means a material adverse effect
on (i) the properties, business, condition (financial or otherwise)
or results of operations of the Borrower and its Subsidiaries taken
as a whole, (ii) the ability of the Borrower or any Subsidiary to
perform its obligations under any of the Loan Documents or (iii)
the validity or enforceability or any of the Loan Documents or the
rights or remedies of the Agent or the Lenders thereunder.
"MATERIAL LIABILITIES" is defined in SECTION 4.11(D).
"MATERIAL SALE PROCEEDS is defined in SECTION 3.4(C).
"MAXIMUM COMMITMENT" means, when used with reference to
any Lender, the aggregate amount of such Lender's Term Loan
Commitment and Revolving Loan Commitment in the amounts not to
exceed those set forth opposite such Lender's name on SCHEDULE
1.1(A) hereto under the caption "Amount of Maximum Commitment",
subject to reduction from time to time in accordance with the terms
of this Agreement. For purposes of this definition, the Revolving
Loan Commitment of the Swing Line Lender shall be deemed to include
the Swing Line Commitment of the Swing Line Lender.
"MERGERS" means the merger of (i) the Stone Merger
Subsidiaries with and into the Borrower, with the Borrower being
the surviving corporation and (ii) Stone Southwest Merger
Subsidiaries with and into Stone Southwest, with Stone Southwest
being the surviving corporation.
"MERGER DOCUMENTS" means the Certificates of Ownership
and Merger along with all of the agreements, documents,
resolutions, consents, instruments and certificates executed in
order to effect the transactions contemplated by the Certificates
of Ownership and Merger.
"MORTGAGED PROPERTY" means, collectively, all of the
properties of the Borrower and the Subsidiaries of the Borrower
defined as "Mortgaged Property" in each of the respective Mortgages
and shall include the fee or leasehold interests of the Borrower or
Appendix - Page 22
a Subsidiary in the manufacturing facilities identified on
SCHEDULE 1.1(C) hereto.
"MORTGAGES" means, collectively, (i) the mortgages and
leasehold mortgages in substantially the forms of EXHIBITS 1.1(D)-A
AND B hereto (with such state by state modifications as may be
appropriate, and modifications to provide for pro rata liens as
required under the Continental Guaranty and to reflect the securing
of obligations created under Subsidiary Guarantees) as required by
the Agent, each dated as of the date hereof (subject to SECTION
5.1.17) and each by the Borrower or a Subsidiary, as applicable, as
mortgagor, in favor of the Agent for the benefit of the Lenders (or
its designee), as mortgagee, relating to the Mortgaged Property,
and (ii) any other mortgage, leasehold mortgage, deed of trust,
collateral assignment of lease or similar agreement executed by the
Borrower or a Subsidiary of the Borrower pursuant to which such
Person shall have granted a mortgage, leasehold mortgage or other
Lien to the Agent for the benefit of the Lenders, as each such
agreement may at any time be amended, supplemented, restated or
otherwise modified in accordance with the terms thereof and in
effect.
"MOST RECENT BALANCE SHEET" means the most recent
consolidated balance sheet of the Borrower and its Subsidiaries
delivered to the Agent and each Lender pursuant to SECTION
5.1.1(B)(I).
"MULTIEMPLOYER PLAN" means any plan described in Section
4001(a)(3) of ERISA and not excluded pursuant to Section 4021(b)
thereof to which contributions are or have been made by the
Borrower or any of its Subsidiaries or any ERISA Affiliate.
"NET AWARDS" is defined in the Mortgages.
"NET PROCEEDS" is defined in the Mortgages.
"NEW RECEIVABLES FINANCING" is defined in SECTION
5.2.2(P).
"NON-U.S. LENDER" is defined in SECTION 9.12(H).
"NOTE" means any of the Term Notes, Additional Term
Notes, Revolving Notes, Supplemental Revolving Notes, D Tranche
Term Notes or the Swing Line Note and "NOTES" means all of such
promissory notes collectively.
"NOTE PROSPECTUS" means the Prospectus for the First
Mortgage Notes and the Senior Notes dated September 29, 1994.
"NOTICE OF BORROWING" is defined in SECTION 2.5.
Appendix - Page 23
"NOTICE OF CONVERSION OR CONTINUATION" is defined in
SECTION 2.6.
"NOTICES" is defined in SECTION 9.4.
"OBLIGATIONS" means the Term Loan Obligations, the
Additional Term Loan Obligations, the Revolving Loan Obligations,
the Supplemental Revolving Loan Obligations, the D Tranche Term
Loan Obligations, the Swing Line Loan Obligations, the L/C
Obligations and all other liabilities and obligations of the
Borrower and any Subsidiary of the Borrower now or hereafter
arising under this Agreement or any of the other Loan Documents,
whether for principal, interest, reimbursements, fees, expenses,
indemnities or otherwise, and whether primary, secondary, direct,
indirect, contingent, fixed or otherwise (including obligations of
performance).
"OFFSITE PROPERTY" is defined in SECTION 5.1.15.
"ORIGINAL CREDIT AGREEMENT" is defined in the Recitals to
this Agreement.
"ORIGINAL LENDERS" is defined in the Recitals to this
Agreement.
"PARTICIPANTS" is defined in SECTION 9.12(C).
"PARTICIPATING SUBSIDIARY" means any Wholly-Owned
Subsidiary of the Borrower which is a participant in the Accounts
Receivable Financing Program with respect to one or more business
lines thereof; PROVIDED, HOWEVER, that in no event shall S-CC or
any of its Subsidiaries or any Wholly-Owned Subsidiary which is not
domiciled in the United States or Canada be a Participating
Subsidiary.
"PARTICIPATION AGREEMENTS" means, collectively, the D&K
Participation Agreement and the WCC Participation Agreement (as
each of such terms is defined within the definition of "▇▇▇▇▇▇▇▇
Agreements") and "PARTICIPATION AGREEMENT" means either of such
Agreements.
"PAYMENT OFFICE" is defined in SECTION 2.7.
"PBGC" means the Pension Benefit Guaranty Corporation
created by Section 4002(a) of ERISA.
"PERMITTED BENEFICIARY" means any insurance company,
state workers' compensation authority, state or Federal
environmental agency, related trustee or surety, local utility,
municipality, other domestic or foreign Governmental Authority, any
vendor of goods or services being purchased by the Borrower or any
of its Subsidiaries, any domestic or foreign financial institution,
Appendix - Page 24
or any other Person approved by the Facing Agent, in its sole
discretion.
"PERMITTED INVESTMENTS" mean (i) any evidence of
indebtedness, maturing not more than one year after the date of
issue, issued by the United States of America, or any
instrumentality or agency thereof and guaranteed fully as to
principal, interest and premium, if any, by the United States of
America, (ii) any certificate of deposit, maturing not more than
360 days after the date of purchase issued by a commercial banking
institution which is a member of the Federal Reserve System or a
Canadian banking institution and which has a combined capital and
surplus and undivided profits of not less than $200 million, (iii)
commercial paper, maturing not more than 360 days after the date of
purchase, issued by a corporation (other than the Borrower or any
Subsidiary of the Borrower or any of their respective Affiliates)
organized and existing under the laws of (A) any state within the
United States of America with a rating, at the time of purchase, of
"P-2" (or higher) according to ▇▇▇▇▇'▇ Investors Service, Inc. or
"A-2" (or higher) according to Standard & Poor's Corporation, or
(B) solely with respect to Permitted Investments made by a foreign
Subsidiary, any foreign country with a rating equivalent to that
specified in clause (A) above, (iv) demand deposits with any bank
or trust company, (v) investments in money market funds having a
rating from each of ▇▇▇▇▇'▇ Investors Service, Inc. and Standard &
Poor's Corporation in the highest investment category granted
thereby (including without limitation funds for which any Lender,
the Agent or any Co-Agent is investment manager or adviser), (vi)
reverse repurchase agreements with respect to indebtedness issued
by the United States of America, or any instrumentality or agency
thereof and guaranteed fully as to principal, interest and premium,
if any, by the United States of America, and (vii) in the case of
foreign Subsidiaries of the Borrower, short-term investments
comparable to the foregoing.
"PERMITTED LIENS" means with respect to any Person:
(a) Liens existing on the Closing Date and referenced on
SCHEDULE 1.1(D) hereto;
(b) any Lien on any property securing Indebtedness
incurred or assumed for the purpose of financing all or any part of
the acquisition, construction, repair or improvement cost of such
property (including any refinancing thereof), PROVIDED that such
Lien does not extend to any other property;
(c) Liens for taxes or assessments or governmental
charges or levies not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate
reserves, if appropriate under generally accepted accounting
principles, are being maintained;
Appendix - Page 25
(d) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due
or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves, if
appropriate under generally accepted accounting principles, are
being maintained;
(e) Liens (other than any Lien imposed by ERISA)
incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, or progress payments, performance and
return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(f) easements, rights-of-way, restrictions and other
similar charges or encumbrances not interfering with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(g) Liens existing on any property prior to the
acquisition thereof, prior to the acquisition of the Person which
owns such property or prior to the Person becoming a Subsidiary, by
the Borrower or any of its Subsidiaries, in each case which lien
was not created in contemplation of such acquisition;
(h) the rights of collecting banks having a right of
setoff, revocation, refund or chargeback with respect to money or
instruments of the Borrower or its Subsidiaries on deposit with or
in the possession of such Lender;
(i) Liens created by the Loan Documents and any other
Liens granted to the Agent to secure, directly or indirectly, all
or any portion of the Obligations or other obligations arising
pursuant to the Loan Documents;
(j) the Lien granting ratable security in certain of the
Mortgaged Properties and Collateral pursuant to the requirements of
the Continental Guaranty;
(k) Liens on the property of S-CC or any Subsidiary of S-CC
securing indebtedness which is non-recourse to the Borrower and
each other Subsidiary of the Borrower (other than Subsidiaries of
S-CC in the case of indebtedness of S-CC or any of its
Subsidiaries) and Liens on the property of S-CC or any Subsidiary
of S-CC to the extent permitted by the S-CC Debt Documents;
(l) Liens in favor of any Lender which is a party to a
foreign exchange or interest rate swap or hedging agreement with
the Borrower as permitted by SECTION 5.2.2(O)(I), PROVIDED that
such Liens are not senior to those of the Lenders with respect to
Appendix - Page 26
such agreements and do not attach to properties of the Borrower
other than those in which the Lenders have a security interest or
mortgage;
(m) Liens on the property of StoneSub securing
obligations of StoneSub incurred pursuant to the Accounts
Receivable Financing Program and Liens in favor of StoneSub granted
by the Borrower or any Participating Subsidiary with respect to
Receivables purportedly sold to StoneSub by the Borrower or any
Participating Subsidiary pursuant to the Accounts Receivable
Financing Program in order to evidence the right, title and
interest of StoneSub in and to such Receivables;
(n) Liens for Indebtedness for Money Borrowed permitted
by SECTION 5.2.2(R) PROVIDED that such Liens attach only to
unearned and return premiums, dividends and loss payments which
reduce the unearned premiums under insurance policies the premiums
of which have been financed with such Indebtedness for Money
Borrowed;
(o) Liens (other than those listed in clauses (A)
through (N) above) securing Indebtedness for Money Borrowed to the
extent such Liens are permitted by clause (xii) of the definition
of "Permitted Liens" set forth in the Senior Indentures as in
effect on the Closing Date, provided such Liens do not (i) extend
to property securing all or any part of the Obligations and (ii)
secure Indebtedness for Money Borrowed which exceeds $350 million
in aggregate principal amount outstanding at any time;
(p) Liens securing Indebtedness for Money Borrowed
permitted by SECTION 5.2.2(K), PROVIDED that at the time of
creation thereof, such Liens do not extend to property securing all
or any part of the Obligations;
(q) Liens securing the First Mortgage Notes pursuant to
the First Mortgage Note Documents as in effect on the Closing Date,
including substitutions and replacements permitted thereby;
(r) extensions, renewals or replacements of any Lien
referred to in clauses (A) through (Q) above, PROVIDED that the
principal amount of the Indebtedness or obligation secured thereby
is not increased and that any such extension, renewal or
replacement is limited to the property originally encumbered
thereby; and
(s) Liens on an account maintained by Stone-Canada or an
escrow agent therefor or Liens on amounts held back by S-CC, in any
case for the payment of certain liabilities identified at the time
of the December 1993 transfer of Stone-Canada's assets to S-CC in
compliance with and to the extent required by the bulk sales
provisions of the Civil Code of Lower Canada (Quebec).
Appendix - Page 27
"PERMITTED PREFERRED STOCK" means preferred or preference
stock of the Borrower so long as and to the extent that such
preferred or preference stock is not subject to a sinking fund
payment or other mandatory redemption or payment prior to January
15, 2004.
"PERMITTED USES" means (i) for ongoing working capital
and general corporate purposes of the Borrower, (ii) the making or
incurrence of Capital Expenditures and/or Investments in excess of
the annual limitations (and without reduction of the annual
permitted basket amounts) set forth in SECTIONS 5.2.7(D) AND
5.2.11, and (iii) the prepayment of any maturity or maturities of
debt securities of the Borrower, including the payment of
principal, stated premium, if any, and interest thereon.
"PERSON" means an individual or a corporation,
partnership, trust, incorporated or unincorporated association,
joint venture, joint stock company, government (or an agency or
political subdivision thereof) or other entity of any kind.
"PLAN" means any plan described in Section 4021(a) of
ERISA and not excluded pursuant to Section 4021(b) thereof, which
may be or has been established or maintained, or to which
contributions are or have been made, by the Borrower or any of its
Subsidiaries or any ERISA Affiliate, but not including any
Multiemployer Plan.
"PLAN ADMINISTRATOR" has the meaning assigned to the term
"administrator" in Section 3(16)(A) of ERISA.
"PLAN SPONSOR" has the meaning assigned to the term "plan
sponsor" in Section 3(16)(B) of ERISA.
"PRIME RATE" means at any time, the greater of (i) the
rate which BT announces from time to time as its prime lending
rate, as in effect from time to time, and (ii) the Federal Funds
Rate plus 1/2 of 1% per annum. The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate actually
charged to any customer. BT may make commercial loans or other
loans at rates of interest at, above or below the Prime Rate.
"PRIME RATE ADDITIONAL TERM LOAN" means the Additional
Term Loan or any portion thereof during any period in which it
bears interest at a rate determined with reference to the Prime
Rate.
"PRIME RATE D TRANCHE TERM LOAN" means the D Tranche Term
Loan or any portion thereof during any period in which it bears
interest at a rate determined with reference to the Prime Rate.
"PRIME RATE LOAN" means any Loan which bears interest at
a rate determined with reference to the Prime Rate.
Appendix - Page 28
"PRIME RATE REVOLVING LOAN" means a Revolving Loan or any
portion thereof during any period in which it bears interest at a
rate determined with reference to the Prime Rate.
"PRIME RATE SUPPLEMENTAL REVOLVING LOAN" means a
Supplemental Revolving Loan or any portion thereof during any
period in which it bears interest at a rate determined with
reference to the Prime Rate.
"PRIME RATE TERM LOAN" means the Term Loan or any portion
thereof during any period in which it bears interest at a rate
determined with reference to the Prime Rate.
"PRO FORMA" is defined in SECTION 4.11(B).
"QUARTERLY PAYMENT DATE" means the 25th day of March,
June, September and December of each year.
"RECEIVABLES" has the meaning assigned to that term in
the definition of Accounts Receivable Financing Program.
"RECEIVABLES FINANCING" has the meaning assigned to that
term in the definition of Accounts Receivable Financing Program.
"REFERENCE BANKS" means, collectively, BT, Chemical Bank
and The First National Bank of Chicago and any successor reference
bank determined pursuant to SECTION 2.8(J).
"REFUNDED SWING LINE LOANS" is defined in SECTION
2.11(C).
"REGISTER" is defined in SECTION 9.12(H).
"REGISTERED NOTE" is defined in SECTION 9.12(H).
"REGISTERED NOTEHOLDER" is defined in SECTION 9.12(H).
"REGULATION D" means Regulation D of the Board as from
time to time in effect and any successor to all or a portion
thereof establishing reserve requirements.
"RELATED TRANSACTIONS" means, collectively, the execution
and delivery of the Basic Agreements, the consummation of the
Mergers pursuant to the Merger Documents, the issuance and sale of
the Senior Notes and First Mortgage Notes pursuant to the Senior
Note Documents and the First Mortgage Note Documents, respectively,
the funding of the Term Loan and each Borrowing under the Revolving
Loan and Swing Line Loan (if any) and each issuance of a Letter of
Credit (if any) on the Closing Date, the consummation of the Debt
Refinancing pursuant to the Debt Refinancing Documents, the Stone
Appendix - Page 29
Savannah Transactions and the payment of all fees, costs and
expenses associated with all of the foregoing.
"RELEASE" means release, spill, emission, leaking,
pumping, pouring, emptying, dumping, injection, deposit, disposal,
discharge, dispersal, escape, leaching or migration into the indoor
or outdoor environment or into or out of any property of the
Borrower or its Subsidiaries, including the movement of
Contaminants through or in the air, soil, surface water,
groundwater or property of the Borrower or its Subsidiaries.
"REMEDIAL ACTION" means actions required to (i) clean up,
remove, treat or in any other way address Contaminants in the
indoor or outdoor environment; (ii) prevent or minimize the Release
or threat of Release of Contaminants so they do not migrate or
endanger or threaten to endanger public health or welfare or the
indoor or outdoor environment; or (iii) perform pre-remedial
studies and investigations and post-remedial monitoring and care.
"REPLACED LENDER" is defined in SECTION 2.14.
"REPLACEMENT LENDER" is defined in SECTION 2.14.
"REPORTABLE EVENT" means a "reportable event" described
in Section 4043(b) of ERISA or in the regulations thereunder or
receipt of a notice of withdrawal liability or reorganization with
respect to a Multiemployer Plan pursuant to Section 4202 or 4242 of
ERISA.
"REQUIRED LENDERS" means, as of the date of determination
thereof, the Lenders having greater than 50% of the sum of (i) the
aggregate principal amount of loans and other extensions of credit
then outstanding under any of the Loan Documents plus (ii) the
aggregate amount of the remaining available commitments of the
Lenders under any of the Loan Documents; PROVIDED, HOWEVER, that
for purposes of determining the amount of a Revolving Lender's
Loans, each Revolving Lender shall be deemed to hold the principal
amount of Swing Line Loans and the amount of L/C Obligations and
▇▇▇▇▇▇▇▇ L/C Obligations equal to its Revolving Loan Pro Rata Share
of the Swing Line Loans, L/C Obligations and ▇▇▇▇▇▇▇▇ Obligations
then outstanding.
"RESPONSIBLE OFFICER" means, with respect to any Person,
any of the chairman of the board of directors, the chief executive
officer, chief operating officer, chief financial officer, any
executive vice president, any vice president, treasurer, secretary
or any other similar officer or position of such Person.
"RESTATEMENT DATE" is defined in the Recitals to this
Agreement.
Appendix - Page 30
"RESTRICTED SUBSIDIARY" means S-CC upon the Borrower
acquiring all of its outstanding shares of capital stock.
"REVOLVER TERMINATION DATE" means May 15, 1999.
"REVOLVING LENDER" means, at any time, any Lender which
then has a Revolving Loan Commitment or is owed a Revolving Loan.
"REVOLVING LOAN AVAILABILITY RATIO" means, on any date of
determination, the ratio of the Total Available Revolving
Commitment to the Total Revolving Loan Commitments.
"REVOLVING LOAN COMMITMENT" means, with respect to any
Lender, the obligation of such Lender to (i) make Revolving Loans
to the Borrower, (ii) participate in Swing Line Loans made by the
Swing Line Lender and (iii) participate in Letters of Credit issued
by the Facing Agent for the account of the Borrower, in an
aggregate principal amount and/or Stated Amount at any one time
outstanding not to exceed the amount set forth opposite such
Lender's name on SCHEDULE 1.1(a) hereto under the caption "Amount
of Revolving Loan Commitment." Each Revolving Loan Commitment
shall be subject to reduction from time to time in accordance with
the terms of this Agreement.
"REVOLVING LOAN COMMITMENT FEE" is defined in SECTION
3.7(a).
"REVOLVING LOAN OBLIGATIONS" means the obligations of the
Borrower to repay principal, and pay interest, on the Revolving
Loans pursuant to SECTION 2.2(b).
"REVOLVING LOAN PRO RATA SHARE" means, with respect to
any Revolving Lender and any described aggregate or total amount,
the amount equal to the result obtained by multiplying such
aggregate or total amount by a fraction, the numerator of which
shall be such Lender's Revolving Loan Commitment in effect at the
time (or, if the Total Revolving Loan Commitments have been
terminated, the principal amount of such Lender's Revolving Loans
then outstanding) and the denominator of which shall be the Total
Revolving Loan Commitments in effect at the time (or, if the Total
Revolving Loan Commitments have been terminated, the aggregate
principal amount of all Revolving Loans then outstanding).
"REVOLVING LOANS" means, individually and collectively,
each of the loans by each of the Revolving Lenders to the Borrower
in accordance with SECTION 2.1(b), which Revolving Loans shall from
time to time be comprised of Prime Rate Loans or Eurodollar Rate
Loans or any combination of the foregoing.
"REVOLVING NOTE" is defined in SECTION 2.2(b).
"REVOLVING PORTION" is defined in SECTION 3.6(c).
Appendix - Page 31
"S-CC" means Stone-Consolidated Corporation, a Canadian
federal corporation, and any successor thereto.
"S-CC DEBT DOCUMENTS" means the documentation pursuant to
which S-CC has incurred the Indebtedness for Money Borrowed
permitted by SECTIONS 5.2.2(u), as such documentation may be
amended, supplemented, restated or otherwise modified from time to
time, and including documentation related to refinancings of such
Indebtedness for Money Borrowed permitted by such Section.
"SECURITY AGREEMENTS" means, collectively, (i) the
Security Agreement in substantially the form of EXHIBIT 1.1 (a)
hereto dated as of the Closing Date between the Borrower and the
Agent, (ii) the Security Agreement in substantially the form of
EXHIBIT 1.1(b)-A hereto dated as of the Closing Date between Stone
Savannah and the Agent, (iii) the Security Agreement in
substantially the form of EXHIBIT 1.1(b)-B hereto dated as of the
Closing Date between Stone Southwest and the Agent, (iv) any
Security Agreement executed by any Subsidiary of the Borrower to
secure all or any portion of the Obligations after the Closing Date
and (v) any Supplemental Pledge Agreement, in each case, as
amended, supplemented, restated or otherwise modified from time to
time.
"SEMINOLE KRAFT" means Seminole Kraft Corporation, a
Delaware corporation.
"SENIOR INDEBTEDNESS" has the meaning assigned to that
term in each of the Senior Subordinated Note Indenture, the Senior
Subordinated (11-1/2%) Indenture, the Convertible Indenture, the
Convertible Subordinated Indenture and, from and after the merger
of Stone Southwest with and into the Borrower, the Stone Southwest
Indenture.
"SENIOR INDENTURES" means, collectively, the Senior Note
Indenture and the Indenture dated November 1, 1991 between the
Borrower and The Bank of New York, as trustee, pursuant to which
the Borrower issued its 11-7/8% Senior Notes due December 1, 1998.
"SENIOR NOTE DOCUMENTS" means the Senior Note Indenture,
the Senior Notes and all other documents, instruments and
agreements now or hereafter evidencing all or any portion of the
Borrower's obligations under the Senior Note Indenture and the
Senior Notes, including any documents, instruments or agreements
evidencing the amendment, refinancing, modification, replacement,
renewal, restatement, refunding, deferral, extension, supplement,
reissuance or resale thereof.
"SENIOR NOTE INDENTURE" means the Indenture dated as of
October 12, 1994 between the Borrower and The Bank of New York, as
Trustee, pursuant to which the Borrower issued its Senior Notes.
Appendix - Page 32
"SENIOR NOTES" means, collectively, the Borrower's
11-1/2% Senior Notes due October 1, 2004 in the aggregate principal
amount of $200 million and issued pursuant to the Senior Note
Indenture, as amended, supplemented, restated or otherwise modified
from time to time.
"SENIOR SUBORDINATED (11-1/2%) INDENTURE" means the
Indenture dated as of September 1, 1989 between the Borrower and
Bankers Trust Company, as Trustee, pursuant to which the Borrower
issued its 11-1/2% Senior Subordinated Notes due September 1, 1999,
as amended, supplemented, restated, or otherwise modified from time
to time.
"SENIOR SUBORDINATED NOTE INDENTURE" means the Indenture
dated as of March 15, 1992 between the Borrower and The Bank of New
York, as Trustee, pursuant to which the Borrower issued its 10-3/4%
Senior Subordinated Notes due June 15, 1997, its 10-3/4% Senior
Subordinated Debentures due April 1, 2002 and its 11% Senior
Subordinated Notes due August 15, 1999, as amended, supplemented,
restated or otherwise modified from time to time.
"STANDBY LETTERS OF CREDIT" means any of the standby
Letters of Credit issued by the Facing Agent for the account of the
Borrower pursuant to SECTION 2.12.
"STATED AMOUNTS" means, with respect to any letter of
credit, the stated or face amount of such letter of credit to the
extent available at the time for drawing (subject to presentment of
all requisite documents), as the same may be increased or decreased
from time to time in accordance with the terms of such Letter of
Credit.
"STONE-CANADA" means Stone Container (Canada) Inc., a
Canadian federal corporation and formerly named Stone-Consolidated
Inc., and its successors and assigns.
"STONE MERGER SUBSIDIARIES" is defined in the definition
of Certificates of Ownership and Merger.
"STONE SAVANNAH" means Stone Savannah River Pulp & Paper
Corporation, a Delaware corporation, and any successor thereto.
"STONE SAVANNAH CREDIT AGREEMENT" means the Credit
Agreement dated as of December 9, 1988, as amended, by and among
Stone Savannah, Manufacturers Hanover Trust Company and Citibank,
N.A., as co-managers, the financial institutions signatory thereto
and Citibank, N.A., as agent.
"STONE SAVANNAH SENIOR SUBORDINATED NOTES" means the
14.125% Senior Subordinated Notes due December 15, 2000 of Stone
Savannah issued pursuant to the Stone Savannah Senior Subordinated
Notes Indenture.
Appendix - Page 33
"STONE SAVANNAH SENIOR SUBORDINATED NOTES INDENTURE"
means the Indenture dated as of December 15, 1988, between Stone
Savannah and The Bank of New York (as successor to Manufacturers
Hanover Trust Company), as Trustee, in respect of the Stone
Savannah Senior Subordinated Notes, as amended from time to time.
"STONE SAVANNAH TRANSACTIONS" is defined in SECTION
5.1.13.
"STONE SOUTHWEST" means Stone Southwest, Inc., a Delaware
corporation.
"STONE SOUTHWEST INDENTURE" means the Indenture dated as
of September 15, 1983 between Stone Southwest (as successor to
Southwest Forest Industries, Inc.) and National Westminster Bank
USA (as successor to Bankers Trust Company), as Trustee, as
amended, restated or otherwise modified from time to time.
"STONE SOUTHWEST MERGER SUBSIDIARIES" is defined in the
definition of Certificates of Ownership and Merger.
"STONESUB" means, individually and collectively, one or
more corporations organized under the laws of one of the United
States of America or Canada which are special purpose Wholly-Owned
Subsidiaries of the Borrower formed to engage in the Accounts
Receivable Financing Program, and including any Wholly-Owned
Subsidiary formed as a holding company, the only assets of which
consist of the capital stock of such subsidiaries formed to engaged
in the Accounts Receivables Financing Program.
"SUBORDINATED DEBT" means (i) the Borrower's 10-3/4%
Senior Subordinated Notes due June 15, 1997, 11% Senior
Subordinated Notes due August 15, 1999 and 10-3/4% Senior
Subordinated Debentures due April 1, 2002 issued pursuant to the
Senior Subordinated Note Indenture, (ii) the Borrower's 11-1/2%
Senior Subordinated Notes due September 1, 1999 issued pursuant to
the Senior Subordinated (11-1/2%) Indenture, (iii) the Borrower's
12-1/8% Subordinated Debentures due September 15, 2001 under the
Stone Southwest Indenture, (iv) the Borrower's 8-7/8% Convertible
Senior Subordinated Notes due July 15, 2000 issued pursuant to the
Convertible Indenture, (v) the Borrower's 6-3/4% Convertible
Subordinated Debentures due February 15, 2007 issued pursuant to
the Convertible Subordinated Indenture and (vi) any other
Indebtedness for Money Borrowed of the Borrower which is
subordinate and junior in right of payment to the prior payment in
full of all amounts owing to the Lenders under the Loan Documents
pursuant to an agreement in form, terms and substance satisfactory
to the Required Lenders.
"SUBSIDIARY" of any Person means any corporation of which
such Person, directly or indirectly, shall at the time own shares
of any class or classes (however designated) having ordinary voting
Appendix - Page 34
power for the election of at least a majority of the members of the
board of directors (or the governing body) of such corporation,
other than shares having such power only by reason of the happening
of a contingency. Unless otherwise expressly provided, all
references herein to a "Subsidiary" shall mean a Subsidiary of the
Borrower. Notwithstanding the foregoing, SVCPI shall not be deemed
to be a Subsidiary for any purposes of this Agreement (including
without limitation the definition of "Wholly-Owned Subsidiary")
regardless of the fact that Stone-Canada and/or Affiliates of
Stone-Canada may at any time own a majority or all of the
outstanding voting shares of SVCPI, PROVIDED, HOWEVER that in the
event Stone-Canada and/or Affiliates of Stone-Canada become the
owner of a majority of the outstanding voting shares of SVCPI, then
(i) SVCPI shall be deemed to be a Subsidiary for purposes of
SECTIONS 5.1.1(f), (g) and (h), 5.1.6 and 5.1.7 and (ii) for
purposes of the financial statements referred to in SECTIONS
5.1.1(b), (c), (d) and (e), SVCPI shall be accounted for utilizing
the equity method.
"SUBSIDIARY GUARANTEES" means, collectively, (i) the
Subsidiary Guarantees each in substantially the form of EXHIBIT 1.1
(c) hereto dated as of the Closing Date and executed by Stone
Savannah and Stone Southwest in favor of the Agent and the Lenders
and (ii) any Subsidiary Guarantee executed by any Subsidiary of the
Borrower after the Closing Date pursuant to SECTION 5.1.16, in each
case as amended, supplemented, restated or otherwise modified from
time to time.
"SUBSTITUTE COLLATERAL" is defined in SECTION 9.13(c).
"SUPPLEMENTAL PLEDGE AGREEMENT" means a pledge or
security agreement in a form reasonably acceptable to the Agent
pursuant to which the recipient of any equity interest or other
non-cash consideration described in the penultimate sentence of
SECTION 5.2.8 or the last sentence of SECTION 5.2.12 pledges or
hypothecates such equity interest or non-cash consideration to the
Agent for the benefit of the Lenders to secure the "Obligations"
(as defined in the Security Agreements).
"SUPPLEMENTAL REVOLVER TERMINATION DATE" means May 15,
1999.
"SUPPLEMENTAL REVOLVING LENDER" means, at any time, any
Lender which then has a Supplemental Revolving Loan Commitment or
is owed a Supplemental Revolving Loan.
"SUPPLEMENTAL REVOLVING LOAN AVAILABILITY RATIO" means,
on any date of determination, the ratio of the Total Available
Supplemental Revolving Commitment to the Total Supplemental
Revolving Loan Commitments.
Appendix - Page 35
"SUPPLEMENTAL REVOLVING LOAN COMMITMENT" means, with
respect to any Lender, the obligation of such Lender to make
Supplemental Revolving Loans to the Borrower in an aggregate
principal amount at any one time outstanding not to exceed the
amount set forth opposite such Lender's name on SCHEDULE 1.1(f)
hereto under the caption "Amount of Supplemental Revolving Loan
Commitment." Each Supplemental Revolving Loan Commitment shall be
subject to reduction from time to time in accordance with the terms
of this Agreement.
"SUPPLEMENTAL REVOLVING LOAN COMMITMENT FEE" is defined
in SECTION 3.7(b).
"SUPPLEMENTAL REVOLVING LOAN OBLIGATIONS" means the
obligations of the Borrower to repay principal, and pay interest,
on the Supplemental Revolving Loans pursuant to SECTION 2.2(e).
"SUPPLEMENTAL REVOLVING LOAN PRO RATA SHARE" means, with
respect to any Supplemental Revolving Lender and any described
aggregate or total amount, the amount equal to the result obtained
by multiplying such aggregate or total amount by a fraction, the
numerator of which shall be such Lender's Supplemental Revolving
Loan Commitment in effect at the time (or, if the Total
Supplemental Revolving Loan Commitments have been terminated, the
principal amount of such Lender's Supplemental Revolving Loans then
outstanding) and the denominator of which shall be the Total
Supplemental Revolving Loan Commitments in effect at the time (or,
if the Total Supplemental Revolving Loan Commitments have been
terminated, the aggregate principal amount of all Supplemental
Revolving Loans then outstanding).
"SUPPLEMENTAL REVOLVING LOANS" means, individually and
collectively, each of the loans by each of the Supplemental
Revolving Lenders to the Borrower in accordance with SECTION
2.1(d), which Supplemental Revolving Loans shall from time to time
be comprised of Prime Rate Loans or Eurodollar Rate Loans or any
combination of the foregoing.
"SUPPLEMENTAL REVOLVING NOTE" is defined in SECTION
2.2(e).
"SVCPI" means Stone Venepal (Celgar) Pulp, Inc., a
Canadian federal corporation.
"SWING LINE COMMITMENT" means, with respect to the Swing
Line Lender at any date, the obligation of the Swing Line Lender to
make Swing Line Loans pursuant to SECTION 2.11 in the amount
referred to therein.
"SWING LINE LENDER" means BT.
"SWING LINE LOANS" is defined in SECTION 2.11(a).
Appendix - Page 36
"SWING LINE LOAN OBLIGATIONS" means the obligations of
the Borrower to repay principal, and pay interest, on the Swing
Line Loans pursuant to SECTION 2.2(c).
"SWING LINE LOAN PARTICIPATION CERTIFICATE" means a
certificate, substantially in the form of EXHIBIT 2.11(d).
"SWING LINE NOTE" is defined in SECTION 2.2(c).
"TAXES" is defined in SECTION 3.12(a).
"TERM LENDER" means, at any time, any Lender which then
has a Term Loan Commitment or is owed any portion of the Term Loan.
"TERM LOAN" means, individually and collectively, the
loans made by each of the Term Lenders to the Borrower in
accordance with SECTION 2.1(a), which Term Loan shall from time to
time be comprised of Prime Rate Loans or Eurodollar Rate Loans or
any combination of the foregoing.
"TERM LOAN COMMITMENT" means, with respect to each Term
Lender, the principal amount set forth opposite such Term Lender's
name on SCHEDULE 1.1(a) hereto under the caption "Amount of Term
Loan Commitment."
"TERM LOAN MATURITY DATE" means April 1, 2000.
"TERM LOAN OBLIGATIONS" means the obligations of the
Borrower to repay principal, and pay interest, on the Term Loan
pursuant to SECTION 2.2(a).
"TERM LOAN PRO RATA SHARE" means, with respect to any
Term Lender and any described aggregate or total amount, the amount
equal to the result obtained by multiplying such described
aggregate or total amount by a fraction, the numerator of which
shall be the portion of the Term Loan made by such Lender and
outstanding at the time and the denominator of which shall be the
aggregate amount of the Term Loan made by all of the Term Lenders
and outstanding at the time.
"TERM NOTE" is defined in SECTION 2.2(a).
"TOTAL AVAILABLE REVOLVING COMMITMENT" means, at the time
any determination thereof is made, the sum of the respective
Available Revolving Commitments of the Revolving Lenders at such
time.
"TOTAL AVAILABLE SUPPLEMENTAL REVOLVING COMMITMENT"
means, at the time any determination thereof is made, the sum of
the respective Available Supplemental Revolving Commitments of the
Supplemental Revolving Lenders at such time.
Appendix - Page 37
"TOTAL CONSOLIDATED INDEBTEDNESS FOR MONEY BORROWED"
means, subject to the last sentence of SECTION 1.2, the total of
all Indebtedness for Money Borrowed of the Borrower and its
Subsidiaries.
"TOTAL MAXIMUM COMMITMENT" means, at the time any
determination thereof is to be made, the sum of the respective
Maximum Commitments, Additional Term Loan Commitments, Supplemental
Revolving Loan Commitments and D Tranche Term Loan Commitments of
the Lenders at such time.
"TOTAL REVOLVING LOAN COMMITMENTS" means, at any time any
determination thereof is to be made, the sum of the respective
Revolving Loan Commitments of the Revolving Lenders at such time.
"TOTAL SUPPLEMENTAL REVOLVING LOAN COMMITMENTS" means, at
any time any determination thereof is to be made, the sum of the
respective Supplemental Revolving Loan Commitments of the
Supplemental Revolving Lenders at such time.
"TRANSACTION DOCUMENTS" means the Merger Documents, the
Senior Note Documents, the First Mortgage Note Documents, the Debt
Refinancing Documents and any other document, instrument or
agreement executed and/or delivered in connection with the
consummation of the Related Transactions.
"12-1/8% SUBORDINATED DEBENTURES" means the Borrower's
12-1/8% Subordinated Debentures due September 15, 2001.
"TYPE" means any type of Loan, namely a Prime Rate Loan
or a Eurodollar Rate Loan (whether a Term Loan, Additional Term
Loan or Revolving Loan).
"UNDERFUNDED PLAN" is defined in SECTION 4.15(a).
"UNMATURED EVENT OF DEFAULT" means an event, act or
occurrence which, with the giving of notice or the lapse of time
(or both), would become an Event of Default.
"U.S. CREDIT AGREEMENT" means that certain Credit
Agreement dated as of March 1, 1989, executed as of October 25,
1993 and effective as an amended and restated agreement effective
as of December 17, 1993, as further amended, by and among the
Borrower, BT, as Agent, Citibank, N.A., Chemical Bank (as successor
to Manufacturers Hanover Trust Company) and The First National Bank
of Chicago, as Co-Agents, and certain financial institutions
signatory thereto.
"WAIVED PROCEEDS" is defined in SECTION 3.6(f).
"WAIVER FEE" is defined in SECTION 3.9.
Appendix - Page 38
"WHOLLY-OWNED SUBSIDIARY" means, with respect to any
Person, at any time any Subsidiary of such Person, all of the
outstanding shares of capital stock of which (other than qualifying
shares required to be owned by directors) are at the time owned
directly by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person. Unless otherwise expressly provided,
all references herein to a "Wholly-Owned Subsidiary" shall mean a
Wholly-Owned Subsidiary of the Borrower.
The foregoing definitions shall be equally applicable to
both the singular and plural forms of the defined terms. The words
"herein", "hereof" and words of similar import as used in this
Agreement shall refer to this Agreement as a whole and not to any
particular provision in this Agreement. Unless specifically stated
to the contrary, all references to "Sections," "subsections,"
"paragraphs," "Exhibits" and "Schedules" in this Agreement shall
refer to Sections, subsections, paragraphs, Exhibits and Schedules
of this Agreement unless otherwise expressly provided; references
to Persons include their respective permitted successors and
assigns or, in the case of governmental Persons, Persons succeeding
to the relevant functions of such persons; and all references to
statutes and related regulations shall include any amendments of
same and any successor statutes and regulations.
Appendix - Page 39