Exhibit 4.1(A)
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AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT No. 1, dated as of April 8, 1996 ("Amendment"), to the
Credit Agreement, dated as of March 8, 1995 (the "Credit Agreement"), by and
among FORT XXXXXX CORPORATION, a Delaware corporation (the "Company"), each of
the parties identified as a Lender (collectively, the "Lenders"; each, a
"Lender") signatory thereto, BANKERS TRUST COMPANY, BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION and CHEMICAL BANK, as Arrangers (collectively,
the "Arrangers;" each, an "Arranger") and BANKERS TRUST COMPANY, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
R E C I T A L S:
A. The Company has requested that the Administrative Agent, the
Arrangers and the Lenders amend certain provisions of the Credit Agreement;
and
B. The Administrative Agent, the Arrangers and the Lenders have
considered and agreed to the Company's requests, upon the terms and conditions
set forth in this Amendment.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein that is defined in the Credit Agreement
(including those terms that are defined in the Credit Agreement after giving
effect to this Amendment) shall have the meaning assigned to such term in
the Credit Agreement.
SECTION 2. Consent to IRB Financing. The Lenders hereby consent
to, and agree to waive any provision of the Loan Documents which otherwise
might prohibit, the conveyance of a portion of the land comprising the
Company's Green Bay, Wisconsin Mill in connection with the consummation by the
Company of a transaction to finance the construction of the Green Bay Sludge
Boiler if such transaction complies in all material respects with the
requirements set forth in Exhibit A annexed hereto. The Lenders hereby
authorize the Arrangers to determine, in their reasonable judgment, whether or
not any particular transaction proposed by the Company satisfies the
requirements of the immediately preceding sentence and to deliver, on behalf
of the Lenders, an instrument confirming such satisfaction; provided, however,
that the Arrangers shall not have any liability for such determination unless
such determination shall have been made in bad faith or shall constitute gross
negligence. The Arrangers and the Lenders hereby authorize the Administrative
Agent to execute and deliver, on behalf of the Lenders, any and all
instruments necessary to effect any transaction determined by the Arrangers
to satisfy such requirements. The Company shall provide to the Administrative
Agent and the Arrangers any documents or information requested by the
Arrangers or the Administrative Agent to enable the Arrangers and the
Administrative Agent to make the determinations and perform the obligations
contemplated in this Section 2.
SECTION 3. Amendments to Article I of the Credit Agreement.
(a) Subsection 1.1 of the Credit Agreement is hereby amended by
adding thereto the following new definitions in the appropriate alphabetical
order:
"'Amendment Effective Date' means the date that all the
conditions set forth in Section 6 of Amendment No. 1 shall have been
satisfied."
"'Amendment No. 1' means Amendment No. 1 to Credit Agreement,
dated as of April 8, 1996, relating to this Agreement."
(b) Subsection 1.1 of the Credit Agreement is hereby further
amended as follows:
The definition of "ABR Spread" is hereby amended by (i)
inserting therein after the words "from time to time in effect", the
words, "in respect of Tranche A Loans and Revolving Loans", and (ii)
deleting therefrom the words "2% per annum" and inserting in lieu thereof
the words "the percent per annum from time to time in effect in respect
of Tranche B Loans pursuant to paragraph (d) of subsection 2.5.1."
The definition of "Commitment Percentage" is hereby deleted and
replaced with the following:
"'Commitment Percentage' means (1) .50%, when the LIBOR Spread
in respect of Tranche A Loans and Revolving Loans is 2.00% or greater,
(2) .375% when the LIBOR Spread in respect of Tranche A Loans and
Revolving Loans is 1.75%, 1.50% or 1.25%, (3) .25% when the LIBOR Spread
in respect of Tranche A Loans and Revolving Loans is 1.00% or .75% and
(4) .1875%, when the LIBOR Spread in respect of Tranche A Loans and
Revolving Loans is .625%."
The definition of "LIBOR Spread" is hereby amended by (i)
inserting therein after the words "from time to time in effect", the
words, "in respect of Tranche A Loans and Revolving Loans", and (ii)
deleting therefrom the words "3% per annum" and inserting in lieu thereof
the words "the percent per annum from time to time in effect in respect
of Tranche B Loans pursuant to paragraph (d) of subsection 2.5.1."
SECTION 4. Amendments to Article II to the Credit Agreement.
(a) Subsection 2.5.1(d) of the Credit Agreement is hereby amended
by deleting the table captioned "Interest Rate Step-Downs for Tranche A Loans
and Revolving Loans" and inserting in lieu thereof the following:
"Interest Rate Step-Downs for
Tranche A Loans and Revolving Loans
Category 1 ABR Spread LIBOR Spread
When none of the Categories
below is applicable 1.50% 2.50%
Category 2
Ratio 1: 1.60 to 1 or higher 1.25% 2.25%
Ratio 2: 3.00 to 1 or lower
Category 3
Ratio 1: 1.75 to 1 or higher 1.00% 2.00%
Ratio 2: 2.75 to 1 or lower
Category 4
Ratio 1: 2.25 to 1 or higher 0.75% 1.75%
Ratio 2: 2.50 to 1 or lower
Category 5
Ratio 1: 2.75 to 1 or higher 0.50% 1.50%
Ratio 2: 2.25 to 1 or lower
Category 6
Ratio 1: 3.00 to 1 or higher 0.25% 1.25%
Ratio 2: 2.00 to 1 or lower
Category 7
Ratio 1: 3.25 to 1 or higher 0.00% 1.00%
Ratio 2: 1.50 to 1 or lower
"Interest Rate Step-Downs
for Tranche B Loans
Category 1 ABR Spread LIBOR Spread
When none of the Categories
below is applicable 2.00% 3.00%
Category 2
Ratio 1: 1.60 to 1 or higher 1.75% 2.75%
Ratio 2: 3.00 to 1 or lower
Category 3
Ratio 1: 1.75 to 1 or higher 1.50% 2.50%
Ratio 2: 2.75 to 1 or lower
(b) A new Section 2.13 is hereby added to the Credit Agreement as
follows:
"2.13 Certain Computations. All interest, fees and other
amounts accruing under this Agreement on or prior to, or determined in
respect of any day accruing on or prior to the Amendment Effective Date
shall be computed and determined as provided in this Agreement before
giving effect to Amendment No. 1. Notwithstanding Section 2.5.1(d) of
this Agreement, the adjustment to each of the ABR Spread and the LIBOR
Spread, as provided in Amendment No. 1, shall be effective upon the
Amendment Effective Date and set based upon the most recent financial
statements delivered to the Administrative Agent after giving pro forma
effect to the pre-payment referenced in Section 6(b) of this Amendment."
SECTION 5. Representations And Warranties. The Company hereby
represents and warrants to the Administrative Agent, the Arrangers and the
Lenders that the representations, agreements and warranties of the Company set
forth in the Credit Agreement as amended, supplemented or modified by this
Amendment (except for the representations and warranties set forth in
subsection 4.1.3 of the Credit Agreement) are true and correct in all material
respects to the same extent as though made on and as of the date hereof,
except that such representations and warranties need not be true and correct
to the extent that changes in facts and conditions on which such
representations and warranties are based are required or permitted under the
Credit Agreement as so amended, supplemented or modified. The certifications
set forth in the form of Officers' Certificate of the Company described in
Section 6 of this Amendment are incorporated into this Amendment by this
reference as representations and warranties of the Company. In the event any
of the representations or warranties referred to in the two immediately
preceding sentences is untrue in any material respect or in the event the
Company shall breach any agreement on its part to be performed or observed
pursuant to this Amendment, the Administrative Agent, the Arrangers and the
Lenders shall have the rights and remedies contemplated in the Credit
Agreement to the same extent as if such representations and warranties or
agreements had been set forth therein.
SECTION 6. Conditions to Effectiveness of Amendment. Upon the
fulfillment of the following conditions the amendments contemplated by this
Amendment shall become effective:
(a) The Company shall have completed, no later than September 30,
1996, an offering of Common Stock and shall have received at least
$180,000,000 in cash proceeds (net of underwriting discounts and commissions,
other banking and investment fees, attorneys' and accountants' fees and other
customary fees and costs associated therewith) from the sale of such Common
Stock.
(b) The Tranche B Lenders shall have received a prepayment
pursuant to subsection 2.7.1 of the Credit Agreement in a principal amount not
less than $178,000,000.
(c) The Administrative Agent shall have received (i) duly executed
counterparts hereof that have been executed at the time and in the manner as
provided in subsection 9.6 of the Credit Agreement, it being understood that
delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be as effective as delivery of a manually executed
counterpart of this Amendment and (ii) the following documents with sufficient
copies, where appropriate, for each Lender and CG&R:
(x) an Officer's Certificate of the Company, in the form of exhibit
B annexed to this Amendment;
(y) an opinion of Xxxxx X. Xxxxxx, XX, Vice President and General
Counsel to the Company, in form and substance reasonably satisfactory to
the Administrative Agent; and
(z) an opinion of Shearman & Sterling, counsel to the Company, in
form and substance reasonably satisfactory to the Administrative Agent as
to the enforceability of this Amendment and such other matters as the
Administrative Agent shall reasonably request.
The parties constituting the Lenders hereby authorize the
Administrative Agent to deliver to the Company an instrument acknowledging on
behalf of the Lenders the satisfaction of the conditions specified in this
Section 6.
SECTION 7. Fees. If the Amendment Effective Date shall occur, the
Company shall pay to each of the Lenders that has executed and delivered to
the Administrative Agent a signature page to this Amendment on or before April
10, 1996, a fee equal to .10% of the principal amount, if any, of such
Lender's Tranche A Commitment, Tranche B Commitment and Revolving Loan
Commitment in effect immediately prior to the effectiveness of this Amendment
but after giving effect to the reduction of Commitments as a result of the
prepayment contemplated in Section 6(b) of this Amendment. Such payment shall
be paid on the Amendment Effective Date.
SECTION 8. Miscellaneous.
(a) Except as expressly contemplated in this
Amendment, all terms, provisions, covenants, representations, warranties,
agreements and conditions of the Company contained in the Credit Agreement
shall remain in full force and effect and shall not otherwise be deemed to be
waived, modified or amended hereby.
(b) THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
(c) This Amendment may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. The provisions of this
Amendment may be amended or waived by the same parties that would be required
to amend or waive such provisions if such provisions were set forth in the
Credit Agreement.
(d) This Amendment shall not constitute a consent to or waiver or
modification of any other provision, term or condition of the Credit
Agreement. All terms, provisions, covenants, representations, warranties,
agreements and conditions contained in the Credit Agreement, as amended
hereby, shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first written above.
By: /s/ R. Xxxxxxx Xxxxxx
R. Xxxxxxx Xxxxxx
Vice President and Treasurer
1988 LENDERS, PURCHASERS AND 1992 LENDERS:
BANKERS TRUST COMPANY,
Individually and as 1988 Lead Manager, 1988
Agent and 1992 Agent
