EXHIBIT 4(w)
[Draft: (New York) June 28 1999]
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CREDIT AGREEMENT
among
GEORGIA-PACIFIC CORPORATION,
THE LENDERS NAMED HEREIN,
and
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Agent
and
as Lead Arranger and Book Manager
$1,000,000,000
Dated as of June 30, 1999
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TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS................................ 1
1.01 Certain Defined Terms................................................ 1
1.02 Computation of Time Periods.......................................... 13
1.03 Accounting Matters................................................... 13
1.04 Certain Terms........................................................ 13
ARTICLE II AMOUNTS AND TERMS OF THE LOANS................................. 13
2.01 Loans................................................................ 13
2.02 Procedure for Borrowings............................................. 13
2.03 Evidence of Indebtedness............................................. 14
2.04 Optional Reduction of the Commitments................................ 15
2.05 Mandatory Reduction of the Commitments............................... 15
2.06 Repayment and Commitment Reductions.................................. 15
2.07 Optional Prepayments................................................. 16
2.08 Interest............................................................. 16
2.09 Default Interest..................................................... 17
2.10 Continuation and Conversion Elections for Loans...................... 17
ARTICLE III FEES; PAYMENTS; TAXES......................................... 18
3.01 Fees................................................................. 18
3.02 Computation of Interest, Fees........................................ 19
3.03 Payments by the Company.............................................. 19
3.04 Payments by the Lenders.............................................. 20
3.05 Taxes................................................................ 21
3.06 Sharing of Payments, Etc............................................. 24
ARTICLE IV CHANGES IN CIRCUMSTANCES; ETC.................................. 25
4.01 Eurodollar Rate Protection........................................... 25
4.02 Additional Interest on Eurodollar Loans.............................. 25
4.03 Increased Costs...................................................... 25
4.04 Illegality........................................................... 26
4.05 Capital Adequacy..................................................... 26
4.06 Funding Losses....................................................... 26
4.07 Funding; Certificates of Lenders..................................... 27
4.08 Change of Lending Office; Limitation on Increased Costs.............. 27
4.09 Replacement of Lenders............................................... 27
ARTICLE V REPRESENTATIONS AND WARRANTIES.................................. 28
(i)
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5.01 Corporate Existence; Compliance with Law............................. 28
5.02 Corporate Power; Authorization....................................... 28
5.03 Enforceable Obligations.............................................. 29
5.04 Taxes................................................................ 29
5.05 Financial Matters.................................................... 29
5.06 Litigation........................................................... 30
5.07 Subsidiaries......................................................... 30
5.08 Liens................................................................ 31
5.09 No Burdensome Restrictions; No Defaults.............................. 31
5.10 Investment Company Act; Public Utility Holding Company Act........... 31
5.11 Margin Regulations................................................... 31
5.12 Environmental Matters................................................ 31
5.13 Labor Matters........................................................ 33
5.14 ERISA Plans.......................................................... 33
5.15 Transaction.......................................................... 33
ARTICLE VI CONDITIONS PRECEDENT........................................... 33
6.01 Conditions Precedent to the Closing Date............................. 33
6.02 Conditions Precedent to Each Borrowing............................... 35
ARTICLE VII AFFIRMATIVE COVENANTS......................................... 35
7.01 Application of Proceeds.............................................. 35
7.02 Compliance with Laws, Etc............................................ 36
7.03 Payment of Taxes, Etc................................................ 36
7.04 Maintenance of Insurance............................................. 36
7.05 Preservation of Corporate Existence, Etc............................. 36
7.06 Access............................................................... 36
7.07 Keeping of Books..................................................... 36
7.08 Maintenance of Properties, Etc....................................... 36
7.09 Financial Statements................................................. 37
7.10 Reporting Requirements............................................... 37
7.11 ERISA Plans.......................................................... 38
7.12 Environmental Compliance; Notice..................................... 38
7.13 The Merger........................................................... 38
ARTICLE VIII NEGATIVE COVENANTS........................................... 38
8.01 Liens, Etc........................................................... 38
8.02 Sale-Leaseback Transactions.......................................... 41
8.03 Mergers, Etc......................................................... 41
8.04 Transactions with Affiliates......................................... 42
8.05 Accounting Changes................................................... 42
8.06 Margin Regulations................................................... 42
8.07 Negative Pledges, Etc................................................ 42
8.08 Leverage Ratio....................................................... 42
(ii)
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ARTICLE IX EVENTS OF DEFAULT............................................... 42
9.01 Events of Default.................................................... 42
9.02 Remedies............................................................. 45
ARTICLE X THE AGENT....................................................... 45
10.01 Appointment......................................................... 45
10.02 Delegation of Duties................................................ 45
10.03 Liability of Agent.................................................. 45
10.04 Reliance by Agent................................................... 46
10.05 Notice of Default................................................... 46
10.06 Credit Decision..................................................... 47
10.07 Indemnification..................................................... 47
10.08 Agent in Individual Capacity........................................ 47
10.09 Successor Agent..................................................... 48
10.10 The Arranger........................................................ 48
ARTICLE XI MISCELLANEOUS.................................................. 48
11.01 Notices, Etc........................................................ 48
11.02 Amendments, Etc..................................................... 48
11.03 No Waiver; Remedies................................................. 49
11.04 Costs and Expenses.................................................. 49
11.05 Indemnity........................................................... 50
11.06 Right of Set-off.................................................... 51
11.07 Binding Effect...................................................... 51
11.08 Assignments, Participations, Etc.................................... 51
11.09 Confidentiality..................................................... 53
11.10 Survival............................................................ 53
11.11 Severability........................................................ 53
11.12 Headings............................................................ 54
11.13 GOVERNING LAW....................................................... 54
11.14 Execution in Counterparts........................................... 54
11.15 ENTIRE AGREEMENT.................................................... 54
11.16 WAIVER OF JURY TRIAL................................................ 54
SCHEDULES
Schedule Description
1.01(a) Commitments
1.01(b) Lending Offices
5.02(d) Corporate Power; Authorizations
5.07 Subsidiaries
(iii)
5.12 Environmental Matters
5.13 Labor Matters
5.14 ERISA
8.01 Existing Liens
EXHIBITS
Exhibit Description
2.02 Form of Notice of Borrowing
2.03(b) Form of Promissory Note
2.10 Form of Notice of Conversion/Continuation
6.01(d) Form of Subsidiary Guaranty
6.01(e) Form of Opinion of Counsel for the Company
6.02(i) Form of Officer's Closing Certificate
7.09 Form of Compliance Certificate
11.08 Form of Notice of Assignment
(iv)
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of June 30, 1999 among
GEORGIA-PACIFIC CORPORATION, a Georgia corporation (the "Company"), the various
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financial institutions that are, or may from time to time become, party hereto
(the "Lenders"), and XXXXXX XXXXXXX SENIOR FUNDING, INC., as Agent for the
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Lenders and as Lead Arranger and Book Manager.
WHEREAS, the Company has obtained commitments from the Lenders,
pursuant to which the Lenders are willing to make loans to the Company in an
aggregate principal amount not to exceed $1,000,000,000, on the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
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1.01 Certain Defined Terms. As used in this Agreement and in any
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Schedules and Exhibits to this Agreement, the following terms have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Acquisition" means, collectively, the Tender Offer and the Merger.
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"Acquisition Documents" means the Tender Offer Documents and the
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Merger Documents.
"Adjusted Reference Rate" means the fluctuating interest rate per
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annum equal to the higher of (a) the sum of the Federal Funds Rate plus 1/2% and
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(b) the rate of interest (the "Reference Rate") publicly announced from time to
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time by Citibank, N.A. in New York, New York, as its reference or prime lending
rate. Any change in the Reference Rate shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Affiliate" means, with respect to any Person, any Subsidiary of such
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Person and any other Person which, directly or indirectly, controls, or is
controlled by, or is under common control with, such Person (excluding any
trustee under, or any committee with responsibility for administering, any
Plan). A Person shall be deemed to control another Person if such Person
possesses, directly or indirectly, the power:
(a) to vote 10% or more of the securities having ordinary voting power
for the election of directors of such other Person; or
(b) to direct or cause the direction of the management and policies of
such other Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agent" means MSSF, in its capacity as agent for the Lenders, together
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with any successor thereto in such capacity.
"Agreement" means this Credit Agreement, as from time to time amended,
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modified or supplemented.
"Aggregate Commitments" means the aggregate amount of the Commitments
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of all the Lenders as in effect from time to time.
"Aggregate Total Amount" means, for any day, the sum of (I) the
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aggregate principal amount of all of the Loans outstanding on such day plus (II)
the Aggregate Commitments as in effect on such day.
"Arranger" means MSSF, in its capacity as Arranger hereof.
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"Assignee" means any Person which becomes a party to this Agreement as
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a Lender hereunder pursuant to Section 11.08.
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"Asset Sale" means any Disposition of property or assets or series of
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related Dispositions of property or assets by the Company or any of its
Subsidiaries, except for Excluded Asset Sales.
"Atlanta Acquisition" means Atlanta Acquisition Corp., a Delaware
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corporation and a wholly-owned Subsidiary of the Company.
"Borrowing" means an extension of credit hereunder consisting of Loans
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of the same type made on the same day by the Lenders ratably according to their
respective Commitment Percentages and, in the case of Eurodollar Loans, having
the same Interest Periods.
"Borrowing Dates" means up to four Business Days on or after the
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Closing Date on which a Borrowing of Loans may be incurred hereunder; provided
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that each such Borrowing shall occur on or before October 15, 1999.
"Business Day" means any day other than a Saturday, Sunday or other
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day on which commercial banks in New York City, New York are authorized or
required by law to close and, if the applicable Business Day relates to any
Eurodollar Loan, means such a day on which dealings are carried on in the London
interbank market.
"Capital Markets Transaction" means (a) the issuance or sale in a
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registered public offering, Rule 144A/Regulation S transaction or private
placement of Capital Stock (including equity-linked securities) or notes,
debentures, instruments or other debt securities with a maturity in excess of
one year or (b) the incurrence of loans with a maturity in excess of one year.
Notwithstanding the foregoing, a Capital Markets Transaction shall not include
(i) the incurrence of loans by the Company under its existing senior bank credit
facility agented by Bank of America National Trust and Savings Association (or
any replacement or successor facility) up to an aggregate principal amount of
$2,000,000,000, (ii) the sale of accounts receivable by the Company under its
existing $750,000,000 receivables purchase program or (iii) any purchase money
Indebtedness, construction financing, capital lease or working capital loans
incurred under existing lines of credit.
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"Capital Stock" means any and all shares, interests, participations or
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other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
The term "Capital Stock" in any event shall include all PEPS.
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"CERCLA" means the Comprehensive Environmental Response Compensation
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and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
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Liability Information System List.
"Closing Date" means the date on which all the conditions precedent
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set forth in Section 6.01 shall have been satisfied or waived.
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"Code" means the Internal Revenue Code of 1986, as amended, reformed
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or otherwise modified from time to time.
"Commitment" means, for each Lender, the amount in dollars set forth
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in Schedule 1.01(a) opposite the name of such Lender under the heading
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"Commitments", as such amount may be (x) reduced from time to time as provided
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in Sections 2.04, 2.05, 2.06 and/or 9.02 or (y) adjusted from time to time as a
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result of assignments to or by such Lender as set forth in any Notice of
Assignment delivered hereunder pursuant to Section 11.08.
"Commitment Percentage" means, as to any Lender at any time, the
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percentage of the Aggregate Commitments represented by such Lender's Commitment
at such time, as set forth in Schedule 1.01(a), as such percentage may be
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modified from time to time in accordance with any Notice of Assignment delivered
hereunder pursuant to Section 11.08.
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"Company" has the meaning specified in the introduction to this
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Agreement.
"Contractual Obligation" means, with respect to any Person, any
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provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other instrument to
which such Person is a party or by which it or any of its property is subject.
"Controlled Group" means all members of a controlled group of
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corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Company, are treated as a single employer under Section 414(b) or 414(c) of the
Code or Section 4001 of ERISA.
"Debt Rating" means, on any date, the rating of the Company's senior
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unsecured long-term Indebtedness, as most recently publicly announced by Xxxxx'x
and S&P, provided, however, (i) that if the ratings assigned by both Xxxxx'x and
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S&P are one level apart, then the applicable interest rate margin and any fee to
be determined based on such rating, shall be determined by reference to the
higher rating, (ii) that if the ratings assigned by both Xxxxx'x and S&P are two
levels apart, then the applicable interest rate margin and any fees to be
determined based on such rating shall be determined by reference to the rating
level which is in between the two such ratings,
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(iii) that if the ratings assigned by both Xxxxx'x and S&P are three levels
apart, then the applicable interest rate margin and any fees to be determined
based on such rating shall be determined by reference to the rating level which
is one above the lower of such ratings and (iv) that if only one such rating is
available, then the applicable interest rate margin and any fees to be
determined based on such rating shall be determined solely by reference to such
one rating.
"Default" means any event or condition which, with the giving of
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notice or the lapse of time, or both, would become an Event of Default.
"Disposition" means, with respect to any property or asset, any sale,
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lease, sale and leaseback, assignment, conveyance, transfer or other disposition
thereof consummated on or after the Closing Date.
"dollar" and "$" mean lawful money of the United States of America.
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"Environmental Laws" means all applicable federal, state or local
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statutes, laws, ordinances, codes, rules and regulations (including consent
decrees and administrative orders) relating to public health and safety and
protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"Eurocurrency Liabilities" has the meaning assigned to that term in
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Regulation D of the Federal Reserve Board, as in effect from time to time.
"Eurodollar Loan" means any Loan that bears interest at a rate
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determined with reference to LIBOR.
"Eurodollar Reserve Percentage" means the maximum reserve percentage
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of any Lender (expressed as a decimal) in effect on the date LIBOR for any
Interest Period is determined under regulations issued from time to time by the
Federal Reserve Board for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve requirement) with respect
to liabilities or assets consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 9.01.
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"Excluded Asset Sales" means the Disposition of inventory, equipment
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and other assets in the ordinary course of business.
"Federal Funds Rate" means, for any day, the rate set forth in the
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weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
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(Effective"). If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
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Reserve Bank of New York (including any such successor, the "Composite 3:30 p.m.
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Quotations") for such day under the caption "Federal Funds Effective Rate".
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"Federal Reserve Board" means the Board of Governors of the Federal
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Reserve System.
"Fee Letter" means the letter agreement dated June 25, 1999 between
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the Company and MSSF regarding the payment of certain fees.
"Form 1001" has the meaning specified in Section 3.05(f)(i)(B).
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"Form 4224" has the meaning specified in Section 3.05(f)(i)(A).
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"Form W-8" has the meaning specified in Section 3.05(f)(i)(B).
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"Form W-9" has the meaning specified in Section 3.05(f)(i)(A).
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"Funded Indebtedness" means, for any day, the sum of (i) all
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Indebtedness for Borrowed Money of the Company and its consolidated Subsidiaries
outstanding on such day plus (ii) the aggregate capital invested as of such day
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by Persons other than the Company and its consolidated Subsidiaries in
receivables and other accounts sold to such Persons by the Company and its
consolidated Subsidiaries, excluding receivables and other accounts sold in
connection with the sale of a business or the sale of the assets and/or
operations generating such receivables and other accounts.
"GAAP" means, as of any date of determination, generally accepted
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accounting principles set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and
authority within the accounting profession) or in such other statements by such
other entity as may be in general use by significant segments of the accounting
profession.
"Governmental Authority" means any nation or government, any federal,
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state, local or other political subdivision thereof and any central bank thereof
and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Hazardous Material" means:
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(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource Conservation and
Recovery Act, 42 U.S.C. Section 690, et seq., as in effect from time to
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time;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other applicable
federal, state or local law, regulation, ordinance, or requirement
(including consent decrees and administrative orders)
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relating to or imposing liability or standards of conduct concerning any
hazardous, toxic or dangerous waste, substance or material, all as amended
or hereafter amended.
"Indebtedness" of any Person means, without duplication, the
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consolidated Indebtedness for Borrowed Money of such Person and guaranties of
indebtedness of others provided by such Person, all as determined in accordance
with GAAP consistent with the accounting principles applied in the preparation
of the Company's financial statements referred to in Section 5.05(a).
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"Indebtedness for Borrowed Money" of any Person means, without
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duplication:
(a) all indebtedness of such Person for borrowed money;
(b) all obligations of such Person issued or assumed as the deferred
purchase price of property or services other than bank overdrafts and trade
accounts payable arising in the ordinary course of business consistent with
past practices;
(c) all obligations of such Person evidenced by notes, bonds,
debentures, commercial paper or similar instruments, including obligations
so evidenced incurred in connection with the acquisition of property,
assets or businesses;
(d) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of
the seller or creditor under such agreement in the event of default are
limited to repossession or sale of such property);
(e) all rental obligations of such Person under leases capitalized
under GAAP as disclosed in the financial statements delivered pursuant to
Section 7.09; and
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(f) all indebtedness of such Person or of others referred to in
paragraphs (a) through (e) above secured by (or for which the holder of
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such indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including accounts and contract
rights) owned by such Person, even though such Person has not assumed or
become liable for the payment of such indebtedness.
"Indemnified Party" has the meaning specified in Section 11.05(a).
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"Interest Expense" means, for any period, (a) the total interest
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expense of the Company and its consolidated Subsidiaries for such period minus
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(b) the total interest income of the Company and its consolidated Subsidiaries
for such period plus (c) the "cost of receivables sold" for such period as
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reflected in the income statements delivered pursuant to Section 7.09.
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"Interest Payment Date" means (i) with respect to any Eurodollar Loan,
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the last day of each Interest Period applicable to such Eurodollar Loan and,
with respect to any Interest Period of six months' duration, the date which
falls three months after the beginning of such Interest Period, and (ii) with
respect to any Reference Rate Loan, the last Business Day of each calendar
quarter.
"Interest Period" means, with respect to any Eurodollar Loan, the
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period commencing on the Business Day such Eurodollar Loan is disbursed or
continued as a Eurodollar Loan or on the
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date on which a Reference Rate Loan or any portion thereof is converted into a
Eurodollar Loan and ending on the date one, two, three or six months thereafter,
as selected by the Company in its Notice of Borrowing or Notice of
Conversion/Continuation; provided that:
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(a) in the case of the continuation of a Eurodollar Loan pursuant to
Section 2.10, the Interest Period applicable after the continuation of such
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Eurodollar Loan shall commence on the last day of the preceding Interest
Period;
(b) if any Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall be extended to the next succeeding
Business Day, unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Business Day;
(c) any Interest Period that 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) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
(d) no Interest Period for any Eurodollar Loan shall extend beyond the
Maturity Date.
"Interest Rate Contracts" means interest rate cap agreements, interest
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rate swap agreements, interest rate collar agreements, interest rate insurance
and other agreements or arrangements designed to provide protection against
fluctuations in interest rates.
"Investments" means all investments, whether by acquisition of stock
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or indebtedness, or by loan, advance, transfer of property, capital contribution
or otherwise.
"Investments in Unrestricted Subsidiaries" means Investments made by
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the Company or by any Restricted Subsidiary in Unrestricted Subsidiaries, net of
Investments made by Unrestricted Subsidiaries in the Company or any Restricted
Subsidiary. If any corporation which becomes a Restricted Subsidiary after the
date of this Agreement shall, at the time it becomes a Restricted Subsidiary,
have any Investments in an Unrestricted Subsidiary, such Investments shall be
deemed to be Investments made by the Company in such Unrestricted Subsidiary at
the time such corporation becomes a Restricted Subsidiary, in the amount at
which such Investments are then carried on the books of such corporation. If
any corporation shall become an Unrestricted Subsidiary after the date of this
Agreement, the Investments of the Company and its Restricted Subsidiaries in
such corporation shall be deemed to be Investments made at the time such
corporation becomes an Unrestricted Subsidiary, in the amount at which such
Investments are then carried on the books of the Company and its Restricted
Subsidiaries.
"Lender" has the meaning specified in the introduction to this
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Agreement and includes each Lender listed on the signature pages hereof and each
Assignee.
"Lending Office" means, with respect to any Lender, the office or
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offices of such Lender specified as its "Domestic Lending Office" or "Eurodollar
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Lending Office", as the case may be, opposite its name in Schedule 1.01(b) or in
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the applicable Notice of Assignment, or such other
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office or offices of such Lender as such Lender may from time to time specify to
the Company and the Agent.
"LIBOR" means, for any Interest Period, the rate per annum that
appears on page 3750 of the Dow Xxxxx Markets Screen/or any successor page for
dollar deposits with maturities comparable to the Interest Period applicable to
the Eurodollar Loans to be made (including by way of conversion) or continued
commencing two Business Days thereafter as of 11:00 a.m. (London time) on the
date which is two Business Days prior to the commencement of the respective
Interest Period; provided, however, to the extent that an interest rate is not
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ascertainable pursuant to the foregoing provisions of this definition, the rate
to be used for purposes of this definition shall be the interest rate per annum
determined by the Agent to be the rate per annum at which deposits in dollars
are offered for such relevant Interest Period to the Agent in the London
interbank market in London, England at approximately 11:00 a.m. (London time) on
the date which is two Business Days prior to the beginning of such Interest
Period.
"Lien" means any mortgage, security interest, pledge or lien.
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"Loan" means a loan by a Lender to the Company pursuant to Section
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2.01 and may be a Eurodollar Loan or a Reference Rate Loan, each of which shall
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be a "type" of Loan.
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"Loan Documents" means this Agreement, the Subsidiary Guaranty and any
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promissory note issued pursuant hereto.
"Loan Parties" means, collectively, the Company and each other Person
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(other than the Agent and the Lenders) who is a party to a Loan Document.
"Loan Percentage" means, as to any Lender at any time, a fraction
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(expressed as a percentage) the numerator of which is the outstanding principal
amount of the Loans of such Lender at such time and the denominator of which is
the aggregate outstanding principal amount of the Loans of all of the Lenders at
such time.
"Material Adverse Effect" means, with respect to any event, act,
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condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon, any of (a) the
financial condition, operations, business or properties of the Company and its
Subsidiaries taken as a whole and, with respect to the initial incurrence of
Loans, Unisource and its Subsidiaries taken as a whole or (b) the legality,
validity or enforceability of any Loan Document.
"Maturity Date" means June 28, 2000.
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"Measurement Period" means a period consisting of four consecutive
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fiscal quarters of the Company and ending on the last day of the most recently
completed fiscal quarter of the Company.
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"Merger" means the merger of Atlanta Acquisition with and into
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Unisource pursuant to the Merger Agreement, with Unisource being the surviving
corporation of such merger.
"Merger Agreement" means the Agreement and Plan of Merger dated as of
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May 25, 1999 among Unisource, the Company and Atlanta Acquisition.
"Merger Documents" means the Merger Agreement, the related certificate
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of merger and all other agreements and documents related to the Merger.
"Moody's" means Xxxxx'x Investors Services, Inc. or any successor to
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the rating agency business thereof.
"MSSF" means Xxxxxx Xxxxxxx Senior Funding, Inc.
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"Net Cash Proceeds" means (a) in connection with any Asset Sale, the
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proceeds therefrom in the form of cash and cash equivalents (including any such
proceeds received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or otherwise, but
only as and when received) of such Asset Sale, after deducting therefrom, as
applicable, the reasonable costs of such Asset Sale (including fees and
commissions, payments of unassumed liabilities relating to the asset sold and
required payments of any Indebtedness which is secured by the respective assets
which were sold) and the incremental taxes paid or payable as a result of such
Asset Sale and (b) in connection with any Capital Markets Transaction, the cash
proceeds received from such Capital Markets Transaction, net of attorneys' fees,
investment banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith.
"Net Tangible Assets" means, at any date, the aggregate amount of
-------------------
assets, including the amount of any receivables or other accounts of the Company
and its Subsidiaries sold in connection with any receivables sale transaction
(less applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities, (b) any item representing Investments in
Unrestricted Subsidiaries and (c) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expenses and other like intangibles, all
of the foregoing as set forth on the then most recent consolidated balance sheet
of the Company and its Subsidiaries and computed in accordance with GAAP.
"Net Worth" means, at any date, the excess of Total Assets at such
---------
date over Total Liabilities at such date.
"Notice of Assignment" has the meaning specified in Section 11.08(b).
-------------------- ----------------
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
------------------- ---------------
"Notice of Conversion/Continuation" has the meaning specified in
---------------------------------
Section 2.10(b).
---------------
"Obligations" means all Loans and other Indebtedness, advances, debts,
-----------
liabilities, obligations, covenants and duties owing by the Company or any other
Loan Party to any Lender, the Agent, any Affiliate of any Lender or the Agent or
any Indemnified Party, of any kind or nature, pre-
-9-
sent or future, whether or not evidenced by any note, guaranty or other
instrument, but in each case only as arising under or in connection with this
Agreement or under or in connection with any other Loan Document, whether or not
for the payment of money, whether arising by reason of an extension of credit,
loan, guaranty, indemnification or in any other manner, whether direct or
indirect (including those acquired by assignment), absolute or contingent, due
or to become due, now existing or hereafter arising and however acquired. The
term "Obligations" includes all interest, charges, expenses, fees, attorneys'
-----------
fees and disbursements (including the allocated cost of in-house counsel) and
any other sum chargeable to the Company or any other Loan Party under or in
connection with this Agreement or any other Loan Document.
"Operating Cash Flow" means, for any Measurement Period, the sum of
-------------------
the Company's
(i) consolidated "income from operations before unusual items and
income taxes" for such period
plus
----
(ii) Interest Expense for such period to the extent deducted in
calculating "income from operations before unusual items and income taxes"
for such period
plus
----
(iii) the sum of the amounts reflected as components of consolidated
"items in net income not affecting cash" (other than "deferred income
taxes") for such period to the extent such amounts shall have been used in
calculating "income from operations before unusual items and income taxes"
for such period,
where the term "income from operations before unusual items and income
taxes" shall have the meaning given such term as reflected in the Company's
statements of income, and the terms "items in net income not affecting
cash" and "deferred income taxes" shall have the respective meanings given
those terms as reflected in the statements of cash flows, in each case,
referred to in Section 5.05(a) according to GAAP consistent with the
---------------
accounting principles applied in the preparation of such financial
statements.
"Other Taxes" has the meaning specified in Section 3.05(b).
----------- ---------------
"Participant" has the meaning specified in Section 11.08(d).
----------- ----------------
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
----
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
------------ ------------
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA), and to which the
Company or any corporation, trade, or business that is, along with the Company,
a member of its Controlled Group, may have liability, including a reasonable
possibility of liability due to having been a substantial employer within the
meaning of Section 4063
-10-
of ERISA at any time during the preceding five years, or by reason of being
deemed to be a contributing sponsor under Section 4069 of ERISA.
"PEPS" means premium equity participating security units of the
----
Company.
"Permitted Liens" means the Liens permitted or required by Section
--------------- -------
8.01.
----
"Person" means an individual, partnership, corporation (including a
------
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Plan" means each Pension Plan or Welfare Plan, and any other employee
----
benefit plan (within the meaning of Section 3(3) of ERISA) sponsored or
maintained by the Company or any Subsidiary of the Company.
"Principal Property" means any mill, manufacturing plant,
------------------
manufacturing facility or timberlands owned by the Company and/or one or more
Restricted Subsidiaries and located within the continental United States of
America; provided, however, that the term "Principal Property" shall not include
----------------- ------------------
(a) any such mill, plant, facility or timberlands or portion thereof (i) which
is financed by obligations issued by a State, a Territory or a possession of the
United States of America or any political subdivision of any of the foregoing,
or the District of Columbia, the interest on which is excludable from gross
income of the holders thereof pursuant to the provisions of Section 103(a)(1)
(but only if by reason of Section 103(b)(4)(E) or (F)) of the Internal Revenue
Code of 1954, as amended (or any predecessor or successor to such provision) as
in effect at the time of the issuance of such obligations, or (ii) which in the
opinion of the Company's Board of Directors is not of material importance to the
total business conducted by the Company and the Restricted Subsidiaries,
considered as a whole; or (b) any timberlands designated by the Company's Board
of Directors as being held primarily for development and/or sale rather than for
the production of timber; or (c) any minerals or mineral rights.
"Principal Subsidiary" means each of Great Northern Nekoosa
--------------------
Corporation, a Maine corporation; Brunswick Pulp & Paper Company, a Delaware
corporation; Georgia-Pacific West, Inc., an Oregon corporation; G-P Gypsum
Corporation, a Delaware corporation; Leaf River Forest Products, Inc., a
Delaware corporation; Nekoosa Packaging Corporation, a Delaware corporation;
Nekoosa Papers Inc., a Wisconsin corporation; and Atlanta Acquisition.
"Reference Rate" has the meaning specified in the definition of
--------------
Adjusted Reference Rate.
-----------------------
"Reference Rate Loan" means any Loan that bears interest at a rate
-------------------
determined with reference to the Adjusted Reference Rate.
"Release" means a "release", as such term is defined in CERCLA.
------- -------
"Replacement Lender" has the meaning specified in Section 4.09.
------------------ ------------
-11-
"Required Lenders" means, at any time, Lenders having 51% or more of
----------------
the Commitments and the aggregate unpaid principal amount of all outstanding
Loans and, if the Commitments have been terminated, Lenders holding 51% or more
of the then aggregate unpaid principal amount of the Loans made by the Lenders.
"Requirement of Law" means, as to any Person, the charter and by-laws
------------------
or other organization or governing documents of such Person, and any law, rule
or regulation including the requirements of Environmental Laws and ERISA, the
Securities Act of 1933, the Securities Exchange Act of 1934, Regulations T, U
and X of the Federal Reserve Board or any order, decree or other determination
of an arbitrator or a court or other Governmental Authority applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"Responsible Officer" means, with respect to any Person, the Chief
-------------------
Executive Officer, the President, any Vice-Chairman or any of the Vice
Presidents or the Treasurer of such Person or, with respect to financial
matters, the Chief Financial Officer, the Executive Vice President-Finance and
Chief Financial Officer or the Vice President and Treasurer of such Person.
"Restricted Subsidiary" means any Subsidiary of the Company (a)
---------------------
substantially all of the property of which is located within the continental
United States of America and (b) which itself, or with the Company and/or one or
more other Restricted Subsidiaries, owns a Principal Property.
"Sale-Leaseback Transaction" has the meaning specified in Section
-------------------------- -------
8.02.
"S&P" means Standard & Poor's or any successor to the rating agency
---
business thereof.
"Subsidiary" means, with respect to any Person, any corporation of
----------
which more than 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors (or others performing a
comparable function) of such corporation is at the time directly or indirectly
owned by such Person, by such Person and one or more other Subsidiaries of such
Person, or by one or more other Subsidiaries of such Person.
"Subsidiary Guaranty" has the meaning specified in Section 6.01(c).
------------------- ---------------
"Taxes" has the meaning specified in Section 3.05(a).
----- ---------------
"Tender Offer" means the offer by Atlanta Acquisition to purchase for
------------
cash all outstanding shares of the common stock of Unisource at a price per
share of $12 pursuant to the Tender Offer Documents.
"Tender Offer Documents" means Atlanta Acquisition's Offer to Purchase
----------------------
dated May 28, 1999 with respect to the Tender Offer and all other documents
related to the Tender Offer.
"Total Assets" means, at any date, without duplication, the total
------------
consolidated assets of the Company and its Subsidiaries, as determined in
accordance with GAAP.
"Total Liabilities" means, at any date, without duplication, the total
-----------------
consolidated liabilities of the Company and its Subsidiaries, determined in
accordance with GAAP.
-12-
"Transaction" means, collectively, (i) the entering into of the Loan
-----------
Documents and the incurrence of Loans hereunder, (ii) the Tender Offer, (iii)
the Merger and (iv) the refinancing of approximately $640,000,000 of
Indebtedness of Unisource and its Subsidiaries.
"Transaction Documents" means the Loan Documents and the Acquisition
---------------------
Documents.
"Unisource" means Unisource Worldwide, Inc., a Delaware corporation.
---------
"Unrestricted Subsidiary" means any Subsidiary of the Company other
-----------------------
than a Restricted Subsidiary.
"Value" means, with respect to a Sale-Leaseback Transaction, as of any
-----
particular time, the amount equal to the greater of (a) the net proceeds of the
sale or transfer of the property leased pursuant to such Sale-Leaseback
Transaction or (b) the fair value in the opinion of the Board of Directors of
the Company of such property at the time of entering into such Sale-Leaseback
Transaction, in either case divided first by the number of full years of the
term of the lease and then multiplied by the number of full years of such term
remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
"Welfare Plan" means a "welfare plan", as such term is defined in
------------ ------------
Section (3)(1) of ERISA.
1.02 Computation of Time Periods. In this Agreement, in the
---------------------------
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
---- ------------------ -- -----
means "to but excluding".
----------------
1.03 Accounting Matters. All accounting terms not specifically
------------------
defined herein shall be construed in accordance with GAAP, and all financial
statements referred to in Sections 7.09(a) and (b) shall be prepared in
---------------- ---
accordance with GAAP; provided, however, that all computations determining
-------- -------
compliance with Article VIII shall use accounting principles consistent with
------------
those applied in the preparation of the financial statements of the Company
referred to in Section 5.05(a). The parties hereto agree that to the extent
---------------
that any change in GAAP affects the calculation of the financial covenant
contained herein, the Agent (at the direction of the Required Lenders) and the
Company shall negotiate in good faith to amend such financial covenant to
account for such changes in GAAP.
1.04 Certain Terms. The words "herein", "hereof" and "hereunder" and
------------- ------ ------ ---------
other words of similar import refer to this Agreement as a whole, including the
Exhibits and Schedules hereto, as the same may from time to time be amended or
supplemented, and not to any particular Article, Section, paragraph or clause in
this Agreement. The word "including" when used herein is not intended to be
---------
exclusive and means "including, without limitation". References herein to an
-----------------------------
Article, Section, paragraph or clause shall refer to the appropriate Article,
Section, paragraph or clause in this Agreement.
-13-
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
------------------------------
2.01 Loans. Each Lender severally agrees, on the terms and subject
-----
to the conditions hereinafter set forth, to make a term loan (each a "Loan" and,
collectively, the "Loans") to the Company on any Borrowing Date on or after the
Closing Date in an aggregate principal amount not to exceed such Lender's
Commitment on any such Borrowing Date. Any principal amount of Loans which is
repaid or prepaid by the Company may not be reborrowed.
2.02 Procedure for Borrowings. (a) Each Borrowing shall be made on
------------------------
notice, delivered by the Company to the Agent not later than 12:00 noon (New
York City time) at least (i) three Business Days prior to the date of such
proposed Borrowing, in the case of Eurodollar Loans, and (ii) one Business Day
prior to the date of such proposed Borrowing, in the case of Reference Rate
Loans. Each such notice of borrowing (a "Notice of Borrowing") shall be
-------------------
irrevocable and shall be by facsimile or telex, in substantially the form of
Exhibit 2.02, specifying therein:
------------
(i) the date of such Borrowing, which shall be a Business Day;
(ii) the amount of such Borrowing which, in the case of a Borrowing
of Eurodollar Loans, shall be in the amount of $20,000,000 or an integral
multiple of $10,000,000 in excess thereof and, in the case of a Borrowing
of Reference Rate Loans, shall be in the amount of $10,000,000 or an
integral multiple of $5,000,000 in excess thereof;
(iii) whether such Borrowing is to be comprised of Eurodollar Loans
or Reference Rate Loans; and
(iv) if such Borrowing is to be comprised of Eurodollar Loans, the
duration of the initial Interest Period applicable to such Eurodollar
Loans.
If a Notice of Borrowing shall fail to specify the duration of the initial
Interest Period for any Borrowing comprised of Eurodollar Loans, such Interest
Period shall be one month.
(b) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Lender thereof and of the amount of such Lender's pro rata share of
--- ----
such Borrowing determined on the basis of such Lender's Commitment Percentage.
Each Lender shall make available to the Agent the amount of its ratable share of
such Borrowing in the manner and at the time set forth in Section 3.04(a).
---------------
(c) Notwithstanding anything to the contrary contained in this
Agreement, at no time shall there be more than four different Interest Periods
in effect.
(d) Unless any applicable condition specified in Article VI has not
----------
been satisfied or waived, the Agent will make the funds received from the
Lenders promptly available to the Company by crediting the account of the
Company on the books of the Agent, or such other account as shall have been
specified by the Company, with the aggregate of the amounts made available to
the Agent by the Lenders and in like funds as received by the Agent.
-14-
2.03 Evidence of Indebtedness. (a) Each Lender, with respect to
------------------------
amounts payable to it hereunder, and the Agent, with respect to all amounts
payable hereunder in respect of the Loans, shall maintain on its books in
accordance with its usual practice, loan accounts and control accounts,
respectively, setting forth each Loan and the applicable interest rate and the
amounts of principal, interest and other sums paid and payable by the Company
from time to time hereunder with respect thereto; provided, however, that the
-------- -------
failure by any Lender to record any such amount on its books shall not affect
the obligations of the Company with respect thereto. In the case of any
dispute, action or proceeding relating to any amount payable hereunder, the
entries in each such account shall be prima facie evidence of such amount,
absent manifest error. In case of any discrepancy between the entries in the
Agent's books and any Lender's books, such Lender's books shall be considered
correct in the absence of manifest error.
(b) Notwithstanding the foregoing, if any Lender shall so request for
purposes of Section 11.08(a)(iii), the obligation to repay the Loans shall also
---------------------
be evidenced by a promissory note in the form of Exhibit 2.03(b).
---------------
2.04 Optional Reduction of the Commitments. The Company shall have
-------------------------------------
the right, upon at least one Business Day's prior notice to the Agent (which
notice shall be irrevocable), at any time permanently to terminate the remaining
Commitments in whole or reduce ratably in part the unused portions of the
Commitments of the Lenders (based on the respective Commitment Percentages of
the Lenders); provided, however, that each partial reduction shall be in the
-------- -------
aggregate amount of $20,000,000 or an integral multiple of $10,000,000 in excess
thereof. The Agent shall promptly notify each Lender of its receipt of any
notice under this Section 2.04.
------------
2.05 Mandatory Reduction of the Commitments. (a) The Aggregate
--------------------------------------
Commitments (and the Commitment of each Lender) shall terminate in their
entirety at 5:00 p.m. (New York City time) on October 15, 1999.
(b) In addition to any other mandatory commitment reductions pursuant
to this Section 2.05, the Aggregate Commitments (and the ratable portion of the
Commitments of the Lenders based on their respective Commitment Percentages)
shall (i) be reduced on each Borrowing Date (in each case, after giving effect
to the incurrence of the Loans on each such date), in each case, in an amount
equal to the aggregate principal amount of the Loans incurred on each such date
and (ii) prior to the termination thereof, be reduced from time to time to the
extent required by Section 2.06.
2.06 Repayment and Commitment Reductions. (a) On each date on which
-----------------------------------
the Company or any Subsidiary of the Company receives any cash proceeds of
$100,000,000 or more from any Asset Sale or series of related Asset Sales, an
amount equal to 100% of the Net Cash Proceeds from such Asset Sale or series of
related Asset Sales shall be applied on such date as a mandatory repayment of
principal of outstanding Loans and/or as a mandatory reduction to the Aggregate
Commitments in accordance with the requirements of Section 2.06(d).
(b) On each date on which the Company or any Subsidiary of the
Company consummates a Capital Markets Transaction, an amount equal to 100% of
the Net Cash Proceeds from such Capital Markets Transaction shall be applied on
such date as a mandatory repayment of principal of outstanding Loans and/or as a
mandatory reduction to the Aggregate Commitments in accordance with the
requirements of Section 2.06(d).
-15-
(c) The Company agrees to repay to the Agent, for the account of the
Lenders, the outstanding principal amount of all Loans on the Maturity Date.
(d) Each repayment of Loans and each reduction to the Aggregate
Commitments pursuant to this Section 2.06 shall be applied (i) first, to repay
the outstanding principal amount of the Loans in accordance with the immediately
succeeding sentence and (ii) second, to the extent in excess thereof, to
permanently reduce the Aggregate Commitments in accordance with the requirements
of Section 2.05(b)(ii). Each amount required to be applied to the outstanding
Loans shall be applied pro rata among the Lenders in accordance with their Loan
--- ----
Percentages of the amount of such repayment; provided, however, that, if the
-------- -------
aggregate amount of Eurodollar Loans comprised in the same Borrowing would be
reduced as a result of any repayment pursuant to paragraph (a) or (b) of this
--------- --- ---
Section 2.06 to an amount less than $20,000,000, such Eurodollar Loan shall
------------
automatically convert into Reference Rate Loans on the last day of the then
current Interest Period.
2.07 Optional Prepayments. (a) Subject to Section 4.06(a), the
-------------------- ---------------
Company may, upon (i) at least three Business Days' prior notice to the Agent,
in the case of a prepayment of Eurodollar Loans, and (ii) at least one Business
Day's prior notice to the Agent, in the case of a prepayment of Reference Rate
Loans, stating the proposed date and aggregate principal amount of the
prepayment, prepay, ratably among the Lenders in accordance with their Loan
Percentages, the outstanding principal amount of the Loans, in whole or in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
(b) Each partial prepayment of Loans shall, in the case of Eurodollar
Loans, be in the aggregate principal amount of $20,000,000 or an integral
multiple of $10,000,000 in excess thereof, and, in the case of Reference Rate
Loans, be in the aggregate principal amount of $10,000,000 or an integral
multiple of $5,000,000 in excess thereof; provided, however, that, if the
-------- -------
aggregate amount of Eurodollar Loans comprised in the same Borrowing would be
reduced as a result of any voluntary prepayment to an amount less than
$20,000,000, such Eurodollar Loans shall automatically convert into Reference
Rate Loans on the last day of the then current Interest Period.
(c) If a notice of prepayment is given, such notice shall be
irrevocable and the principal amount stated in such notice, together with
accrued interest thereon and any amount payable pursuant to Section 4.06(a),
---------------
shall be due and payable on the date specified in such notice. The Agent shall
promptly notify each Lender of its receipt of any notice of prepayment under
this Section 2.07.
------------
2.08 Interest. (a) Each Loan shall bear interest on the outstanding
--------
principal amount thereof from the date when made until paid in full, at the
option of the Company, as set forth in its Notice of Borrowing or in its Notice
of Conversion/Continuation,
(i) if such Loan is a Reference Rate Loan, at a rate per annum
equal to the Adjusted Reference Rate; or
(ii) if such Loan is a Eurodollar Loan, at a rate per annum equal to
the sum of (A) LIBOR plus (B) the applicable margin, as set forth in the
----
table below:
-16-
Debt Rating Applicable Margin
-----------
on Eurodollar
Xxxxx'x S&P Loans
------- --- -----------------
Baal or higher or BBB+ or higher .625%
--
Baa2 or BBB .725%
--
Baa3 or BBB- .825%
--
Bal or lower or BB+ or lower 1.000%
provided, however, that if at any time no Debt Rating is available, the
-------- -------
applicable margin shall be 1.000%.
(b) Any change in the applicable margin due to a change in the
applicable Debt Rating shall be effective on the effective date of such change
in the applicable Debt Rating and shall apply to all Eurodollar Loans that are
outstanding at any time during the period commencing on the effective date of
such change in applicable Debt Rating and ending on the date immediately
preceding the effective date of the next such change in applicable Debt Rating.
(c) Accrued interest shall be paid on each Interest Payment Date (and,
after maturity, on demand), on the date of repayment or prepayment of any Loan
on the amount repaid or prepaid and, in the case of any Reference Rate Loan, on
each date such Loan is converted into a Eurodollar Loan.
2.09 Default Interest. During the continuation of any Event of
----------------
Default pursuant to Section 9.01(a), the Company shall pay interest (after as
---------------
well as before judgment to the extent permitted by law) on the principal amount
of all Loans outstanding and on all other Obligations of the Company due and
unpaid, (i) at a rate per annum (x) in the case of Eurodollar Loans, which is
determined by increasing the interest rate then in effect by 2% per annum for
the principal amount of the Eurodollar Loans outstanding and (y) in the case of
Reference Rate Loans, which is determined by increasing the interest rate then
in effect by 2% per annum for the principal amount of the Reference Rate Loans
outstanding and (ii) in the case of any other Obligation due hereunder, at a
rate per annum equal to the interest rate then in effect for Reference Rate
Loans plus 2%.
2.10 Continuation and Conversion Elections for Loans. (a) The
-----------------------------------------------
Company may upon irrevocable written notice to the Agent:
(i) elect to convert, on any Business Day, all or any portion of
outstanding Reference Rate Loans (in the aggregate amount of $20,000,000 or
an integral multiple of $10,000,000 in excess thereof) into Eurodollar
Loans;
(ii) elect to convert, on the last day of any Interest Period
therefor, all or any portion of outstanding Eurodollar Loans comprising the
same Borrowing (in the aggregate amount of $10,000,000 or an integral
multiple of $5,000,000 in excess thereof) into Reference Rate Loans; or
(iii) elect to continue, on the last day of any Interest Period
therefor, any Eurodollar Loans;
-17-
provided, however, that if the aggregate amount of outstanding Eurodollar Loans
-------- -------
comprised in the same Borrowing would be reduced as a result of any conversion
of part thereof to Reference Rate Loans to an amount less than $20,000,000, such
Eurodollar Loans shall automatically convert into Reference Rate Loans on the
last day of the Interest Period on which such conversion occurs.
(b) The Company shall deliver a notice of conversion or continuation
(a "Notice of Conversion/Continuation"), in substantially the form of Exhibit
--------------------------------- -------
2.10, to the Agent not later than 12:00 noon (New York City time) (i) three
----
Business Days prior to the proposed date of conversion or continuation, if the
Loans or any portion thereof are to be converted into or continued as Eurodollar
Loans, and (ii) one Business Day prior to the proposed date of conversion, if
the Loans or any portion thereof are to be converted into Reference Rate Loans.
Each such Notice of Conversion/Continuation shall be irrevocable and shall be
made by facsimile or telex, specifying therein:
(i) the proposed date of conversion or continuation;
(ii) the aggregate amount of Loans to be converted or continued;
and
(iii) the duration of the applicable Interest Period if such Loans
are Eurodollar Loans.
(c) If, on the third Business Day prior to the expiration of any
Interest Period applicable to Eurodollar Loans, the Company shall have failed to
select a new Interest Period to be applicable to such Eurodollar Loans, the
Company shall be deemed to have elected to convert such Eurodollar Loans into
Reference Rate Loans effective as of the last day of such Interest Period.
(d) Upon receipt of a Notice of Conversion/Continuation, the Agent
shall promptly notify each Lender thereof. All conversions and continuations
shall be made ratably among the Lenders based on their Loan Percentages of the
Loans with respect to which such notice was given.
(e) Notwithstanding any other provision contained in this Agreement,
after giving effect to any conversion or continuation of any Loans, there shall
not be more than four different Interest Periods for Eurodollar Loans in effect.
ARTICLE III
FEES; PAYMENTS; TAXES
---------------------
3.01 Fees. (a) Usage Fee.
---- ---------
(i) For each day on which the aggregate outstanding principal
amount of all of the Loans exceeds $330,000,000, the Company agrees to pay to
the Agent for the ratable account of each Lender, a per annum usage fee on the
aggregate outstanding principal amount of all of the Loans at a rate per annum
as follows:
-18-
Debt Rating
-----------
Xxxxx'x S&P Usage Fee
------- --- ---------
Baal or higher or BBB+ or higher 0.100%
--
Baa2 or BBB 0.125%
--
Baa3 or BBB- 0.250%
--
Bal or lower and BB+ or lower 0.250%
---
provided, however, that if at any time no Debt Rating is available, the usage
-------- -------
fee shall be 0.250% per annum.
(ii) The usage fee shall be payable (A) quarterly in arrears on the
last Business Day of each calendar quarter, commencing with the calendar
quarter ending on September 30, 1999, and (B) on the date on which all
outstanding Loans have been repaid in full and the Aggregate Commitments
have been terminated.
(b) Facility Fee.
-------------
(i) The Company agrees to pay to the Agent for the ratable account
of each Lender, a per annum facility fee from the Closing Date until the
date on which all outstanding Loans have been repaid in full and the
Aggregate Commitments have been terminated at a rate per annum times the
Aggregate Total Amount as follows:
Debt Rating
-----------
Xxxxx'x S&P Facility Fee
------- --- ------------
Baal or higher or BBB+ or higher 0.125%
--
Baa2 or BBB 0.150%
--
Baa3 or BBB- 0.175%
--
Bal or lower and BB+ or lower 0.375%
---
provided, however, that if at any time no Debt Rating is available, the
facility fee shall be 0.375% per annum.
(i) The facility fee shall be payable (A) quarterly in arrears on
the last Business Day of each calendar quarter, commencing with the
calendar quarter ending on September 30, 1999, and (B) on the date on which
all outstanding Loans have been repaid in full and the Aggregate
Commitments have been terminated.
(c) The Company agrees to pay to the Agent for its account such
fees in such amounts and at such times as are set forth in the Fee Letter.
3.02 Computation of Interest, Fees. (a) All computations of
-----------------------------
interest payable in respect of Reference Rate Loans shall be made on the basis
of a year of 365 days or 366 days, as the case may be, and actual days elapsed.
All computations of interest in respect of Eurodollar Loans and all computations
of fees shall be made on the basis of a year of 360 days and actual days
elapsed. Interest and fees shall accrue during each period during which
interest or such fees are computed from the first day thereof to the last day
thereof.
-19-
(b) Each determination of an interest rate by the Agent pursuant to
any provision of this Agreement shall be conclusive and binding on the Company
and the Lenders in the absence of manifest error. The Agent, upon determining
LIBOR for any Interest Period, shall promptly notify the Company and the Lenders
thereof.
3.03 Payments by the Company. (a) The Company shall make each payment
-----------------------
hereunder not later than 1:00 p.m. (New York City time) on the day when due to
the Agent, without defense, setoff or counterclaim, in dollars and in
immediately available funds to such account in the continental United States of
America as the Agent shall specify from time to time by notice to the Company.
The Agent will promptly after receiving any payment in respect of any Loan from
the Company cause to be distributed like funds to the Lenders ratably based on
their Loan Percentages and/or Commitment Percentages (other than amounts payable
to any Lender pursuant to Section 3.05, 4.02, 4.03, 4.04, 4.05 or 4.06) for the
------------------------------------ ----
account of their respective Lending Offices. Any payment which is received by
the Agent later than 1:00 p.m. (New York City time), as confirmed by Federal
Reserve wire number, shall be deemed to have been received on the immediately
succeeding Business Day.
(b) Whenever any payment of a Loan shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or fees, as the case may be; provided,
--------
however, that if such extension would cause payment of principal of or interest
-------
on Eurodollar Loans to be made in the next calendar month, such payment shall be
made on the immediately preceding Business Day.
(c) Unless the Agent shall have received notice from the Company
prior to the date on which any payment is due to the Lenders hereunder that the
Company will not make such payment in full, the Agent may assume that the
Company has made such payment in full to the Agent on such date, and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Company shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand the excess of the
amount distributed to such Lender over the amount, if any, paid by the Company
for the account of such Lender, together with interest thereon at the Federal
Funds Rate, for each day from the date such amount is distributed to such Lender
until the date such Lender repays such amount to the Agent; provided, however,
-------- -------
that if any Lender shall fail to repay such amount within three Business Days
after demand therefor, such Lender shall, from and after such third Business Day
until payment is made to the Agent, pay interest thereon at a rate per annum
equal to the sum of the Adjusted Reference Rate plus 1%.
3.04 Payments by the Lenders. (a) Not later than 12:00 noon (New
-----------------------
York City time) on the date of each proposed Borrowing, each Lender shall make
available to the Agent to such account as the Agent shall specify from time to
time in immediately available funds for the account of the Company, the amount
of such Lender's Commitment Percentage of such Borrowing.
(b) Unless the Agent shall have received notice from a Lender at
least one Business Day prior to the date of any proposed Borrowing that such
Lender will not make available to the Agent for the account of the Company, the
amount of such Lender's Commitment Percentage
-20-
of such Borrowing, the Agent may assume that such Lender has made such amount
available to the Agent on the date of such Borrowing, and the Agent may, in
reliance upon such assumption, make available to the Company on such date a
corresponding amount. If and to the extent any Lender shall not have made such
full amount available to the Agent, and the Agent in such circumstances makes
available to the Company such amount, such Lender shall, within two Business
Days following the date of such Borrowing, make such amount available to the
Agent, together with interest thereon for each day from and including the date
of such Borrowing, at a rate per annum equal to the Federal Funds Rate. If such
amount is so made available, such payment to the Agent shall constitute such
Lender's Loan on the date of such Borrowing for all purposes of this Agreement.
If such amount is not made available to the Agent within two Business Days
following the date of such Borrowing, the Agent shall notify the Company of such
failure to fund, and, on the third Business Day following the date of such
Borrowing, the Company shall pay to the Agent such amount, together with
interest thereon for each day elapsed since the date of such Borrowing, at a
rate per annum equal to the interest rate applicable at the time to the Loans
comprising such Borrowing. Nothing contained in this Section 3.04(b) shall
---------------
relieve any Lender which has failed to make available its pro rata share of any
Borrowing hereunder from its obligation to do so in accordance with the terms
hereof.
(c) The failure of any Lender to make any Loan on the date of any
Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make a Loan on the date of such Borrowing pursuant to the
provisions contained herein, but no Lender shall be responsible for the failure
of any other Lender to make the Loan to be made by such other Lender on the date
of any Borrowing.
3.05 Taxes. (a) Subject to paragraph (g) of this Section 3.05, any and
----- ------------- ------------
all payments by the Company to the Agent for its account and for the account of
any Lender under this Agreement shall be made free and clear of, and without
deduction or withholding for, any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto incurred in connection with any Loans or Borrowings pursuant to this
Agreement, excluding (i) such taxes (including income taxes or franchise taxes
or branch profit taxes) as are imposed on or measured by such Lender's or the
Agent's, as the case may be, net income and (ii) such taxes as are imposed by a
jurisdiction other than the United States of America or any political
subdivision thereof and that would not have been imposed but for the existence
of a connection between such Lender or the Agent and the jurisdiction imposing
such taxes (other than a connection arising principally by reason of this
Agreement) (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes").
-----
(b) In addition, the Company agrees to pay any present or future
stamp or documentary taxes or any other sales, excise or property taxes, charges
or similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other Taxes").
-----------
(c) Subject to paragraph (g) of this Section 3.05, the Company agrees
------------- ------------
to indemnify and hold harmless each Lender and the Agent for the full amount of
Taxes or Other Taxes (including any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 3.05) paid by such Lender or
------------
the Agent, as the case may be, and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or
-21-
Other Taxes were correctly or legally asserted; provided, however, that each
-------- -------
Lender and the Agent agree to contest in good faith in cooperation with the
Company any Taxes or Other Taxes that such Lender or the Agent, as the case may
be, in consultation with the Company has determined have been incorrectly
asserted. This indemnification shall be made within 30 days from the date such
Lender or the Agent, as the case may be, makes written demand therefor.
(d) If the Company shall be required by law to deduct or withhold
any Taxes or Other Taxes from or in respect of any sum payable hereunder to any
Lender or the Agent, then, subject to paragraph (g) of this Section 3.05,
------------- ------------
(i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 3.05), such Lender or the Agent,
------------
as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made;
(ii) the Company shall make such deductions; and
(iii) the Company shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(e) Within 30 days after the date of any payment by the Company of
Taxes or Other Taxes under this Section 3.05, the Company will furnish to the
------------
Agent, for the account of each Lender receiving a payment from which Taxes or
Other Taxes were deducted, the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment reasonably satisfactory
to the Agent.
(f) Each Lender that is other than a United States Person as defined
in the Code hereby agrees that:
(i) it shall, no later than the Closing Date (or, in the case of a
Lender which becomes a party hereto pursuant to Section 11.08 after the
-------------
Closing Date, the date upon which such Lender becomes a party hereto)
deliver to the Agent (two (2) originals) and to the Company (one (1)
original):
(A) if its Lending Office is located in the United States of
America, accurate and complete signed originals of Internal Revenue Service
Form 4224 or any successor thereto ("Form 4224") and Internal Revenue
---------
Service Form W-9 or any successor thereto ("Form W-9"), and/or
--------
(B) if its Lending Office is located outside the United States of
America, accurate and complete signed originals of Internal Revenue Service
Form 1001 or any successor thereto ("Form 1001") and Internal Revenue
---------
Service Form W-8 or any successor thereto ("Form W-8");
--------
in each case indicating that such Lender is on the date of delivery thereof
entitled to receive payments of principal, interest and fees for the
account of such Lending Office or Offices under this Agreement free from
withholding of United States Federal income tax;
-22-
(ii) if at any time such Lender changes its Lending Office or
Offices or selects an additional Lending Office, it shall, at the same time
or reasonably promptly thereafter but only to the extent the forms
previously delivered by it hereunder are no longer effective, deliver to
the Agent (two originals) and to the Company (one original) in replacement
for the forms previously delivered by it hereunder:
(A) if such changed or additional Lending Office is located in the
United States of America, accurate and complete signed originals of Form
4224 and Form W-9; or
(B) otherwise, accurate and complete signed originals of Form 1001
and Form W-8,
in each case indicating that such Lender is on the date of delivery thereof
entitled to receive payments of principal, interest and fees for the
account of such changed or additional Lending Office under this Agreement
free from withholding of United States Federal income tax;
(iii) it shall, before or promptly after the occurrence of any event
(including the passing of time and, as provided above, any event mentioned
in clause (ii) above) requiring a change in the most recent Form 4224, Form
-----------
W-9, Form 1001 or Form W-8 previously delivered by such Lender and if no
change in law shall have occurred since the date of delivery of such most
recent form that would make the delivery of replacement forms hereunder
unlawful, deliver to the Agent (two originals) and to the Company (one
original) accurate and complete signed originals of Form 4224 and Form W-9
or Form 1001 and Form W-8 (or any successor forms) in replacement for the
forms previously delivered by such Lender; and
(iv) it shall, promptly upon the request of the Company to that
effect, deliver to the Agent and the Company such other accurate and
complete forms or similar documentation as may be required from time to
time by any applicable law, treaty, rule or regulation in order to
establish such Lender's tax status for withholding purposes or may
otherwise be appropriate to eliminate or minimize any Taxes on payments
under this Agreement.
(g) The Company shall not be required to pay any amounts pursuant to
paragraph (a), (c) or (d) of this Section 3.05 to any Lender for the account of
------------- --- --- ------------
any Lending Office of such Lender in respect of any sum payable hereunder:
(i) if the obligation to pay such additional amounts would not have
arisen but for a failure by such Lender to comply with its obligations
under Section 3.05(f) in respect of such Lending Office;
---------------
(ii) if such Lender shall have delivered to the Agent a Form 4224
and a Form W-9 in respect of such Lending Office pursuant to subclause
---------
(f)(i)(A), (f)(ii)(A) or (f)(iii) above and such Lender shall not be
--------------------- --------
entitled to exemption from deduction or withholding of United States
Federal income tax in respect of the payment of such sum by the Company
hereunder for the account of such Lending Office for any reason other than
a change in United States law or regulations or in the official
interpretation of such law or regulations by any Governmental Authority
charged with the interpretation or administration thereof (whether or not
having the
-23-
force of law) after the date of delivery of such Form 4224 and Form W-9;
provided, however, that if, notwithstanding such change in law, a Lender
-------- -------
would be legally able to provide such other forms or information as would
reduce or eliminate United States withholding taxes applicable to payments
made hereunder, such Lender shall, if requested by the Company, timely
provide such forms or other information to the Company, and the Company
shall not be required to pay any amounts pursuant to paragraphs (a), (c) or
-------------- ---
(d) above to the extent such amount would not have been owed but for a
---
failure of such Lender to comply with its obligations under this proviso;
or
(iii) if such Lender shall have delivered to the Company a Form 1001
and a Form W-8 in respect of such Lending Office pursuant to subclause
---------
(f)(i)(B), (f)(ii)(B) or (f)(iii) above and such Lender shall not be
--------- ---------- --------
entitled to exemption from deduction or withholding of United States
Federal income tax in respect of the payment of such sum by the Company
hereunder for the account of such Lending Office for any reason other than
a change in United States law or regulations or any applicable tax treaty
or regulations or in the official interpretation of any such law, treaty or
regulations by any Governmental Authority charged with the interpretation
or administration thereof (whether or not having the force of law) after
the date of delivery of such Form 1001 and Form W-8; provided, however,
-------- -------
that if, notwithstanding such change in law, a Lender would be legally able
to provide such other forms or information as would reduce or eliminate
United States withholding taxes applicable to payments made hereunder, such
Lender shall, if requested by the Company, timely provide such forms or
other information to the Company, and the Company shall not be required to
pay any amounts pursuant to paragraph (a), (c) or (d) of this Section 3.05
------------- --- --- ------------
to the extent such amount would not have been owed but for a failure of
such Lender to comply with its obligations under this proviso.
(h) Each Lender shall use reasonable efforts to avoid or minimize any
amounts which might otherwise be payable pursuant to this Section 3.05;
------------
provided, however, that such efforts shall not include the taking of any actions
-------- -------
by a Lender that would result in any tax, cost or other expense to such Lender
(other than a tax, cost or expense for which such Lender shall have been
reimbursed or indemnified by the Company pursuant to this Agreement or
otherwise) or any action which would in the reasonable opinion of such Lender
have an adverse effect upon its financial condition, operations, business or
properties.
(i) Each Lender agrees to indemnify the Agent and hold the Agent
harmless for the full amount of any and all present or future Taxes, Other Taxes
and related liabilities (including penalties, interest, additions to tax and
expenses, and any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable to Agent under this paragraph (i)) which are imposed on or with respect
-------------
to principal, interest or fees payable to such Lender hereunder and which are
not paid by the Company pursuant to this Section 3.05, whether or not such
------------
Taxes, Other Taxes or related liabilities were correctly or legally asserted.
This indemnification shall be made within 30 days from the date the Agent makes
written demand therefor.
3.06 Sharing of Payments, Etc. If, other than as provided in Section
------------------------ -------
3.05, 4.02, 4.03, 4.04, 4.05 or 4,06, any Lender shall obtain any payment
---------------------------- ----
(whether voluntary, involuntary, through the exercise of any right of set-off or
otherwise) on account of any Loan made by it or, after the
-24-
occurrence and during the continuation of an Event of Default pursuant to
Section 9.01(a), in respect of any Obligation owing to it in excess of its Loan
---------------
Percentage and/or Commitment Percentage, as the case may be, of payments on
account of the Loans or, after the occurrence and during the continuation of an
Event of Default pursuant to Section 9.01(a), in excess of its pro rata share of
---------------
all Obligations, such Lender shall forthwith purchase from the other Lenders
such participations in the Loans made by them or, after the occurrence and
during the continuation of an Event of Default pursuant to Section 9.01(a), in
---------------
all Obligations owing to them, as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of the other Lenders
according to their Loan Percentages and/or Commitment Percentage, as the case
may be, or, after the occurrence and during the continuation of an Event of
Default pursuant to Section 9.01(a), their pro rata shares of all Obligations
---------------
then owing to them; provided, however, that if all or any portion of such excess
-------- -------
payment is thereafter recovered from such purchasing Lender, such purchase by
such Lender from each other Lender shall be rescinded and each other Lender
shall repay to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such paying Lender's pro rata share
(according to the proportion of (a) the amount of such paying Lender's required
repayment to the purchasing Lender to (b) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Company
agrees that any Lender so purchasing a participation from another Lender
pursuant to the provisions of this Section 3.06 may, to the fullest extent
------------
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Company in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.06 applies, such
------------
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders entitled
under this Section 3.06 to share in the benefits of any recovery on such secured
------------
claim.
ARTICLE IV
CHANGES IN CIRCUMSTANCES; ETC.
------------------------------
4.01 Eurodollar Rate Protection. If with respect to any Interest
--------------------------
Period for Eurodollar Loans, by the first day of such Interest Period, the
Required Lenders notify the Agent that LIBOR for such Interest Period will not
adequately reflect the cost to the Required Lenders of making such Eurodollar
Loans or funding or maintaining their respective Eurodollar Loans for such
Interest Period, the Agent shall forthwith so notify the Company and the
Lenders, whereupon the obligations of the Lenders to make or continue Loans as
Eurodollar Loans or to convert Reference Rate Loans into Eurodollar Loans shall
be suspended until the Agent shall notify the Company and the Lenders that the
circumstances causing such suspension no longer exist and any then outstanding
Eurodollar Loans shall at the end of the then current Interest Period for such
Loans be converted into Reference Rate Loans.
4.02 Additional Interest on Eurodollar Loans. The Company shall pay
---------------------------------------
to each Lender, on demand of such Lender, as long as such Lender shall be
required under regulations of the Federal Reserve Board to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each
-25-
Eurodollar Loan of such Lender from the date such Eurodollar Loan is made until
such principal amount is paid in full, at a rate per annum equal at all times to
the remainder obtained by subtracting (i) LIBOR for the Interest Period for such
Eurodollar Loan from (ii) the rate obtained by dividing such LIBOR by a
percentage equal to 100% minus the Eurodollar Reserve Percentage of such Lender
for such Interest Period, payable on each Interest Payment Date for such
Eurodollar Loan.
4.03 Increased Costs. If, due to either (a) the introduction of or
---------------
any change (other than any change by way of imposition of or increase in reserve
requirements covered by Section 4.02) in or in the interpretation of any law or
------------
regulation after the date hereof (except to the extent such introduction, change
or interpretation affects Taxes or Other Taxes) or (b) the compliance with any
guideline or request issued after the date hereof (except to the extent such
guideline or request affects Taxes or Other Taxes) from any central bank or
other Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to any Lender of agreeing to make or making,
funding or maintaining any Eurodollar Loans, then the Company shall, subject to
Section 4.08(b), be liable for, and shall from time to time, upon demand
---------------
therefor by such Lender to the Company through the Agent, pay to the Agent for
the account of such Lender, additional amounts as are sufficient to compensate
such Lender for such increased costs. For purposes of this Section 4.03, the
------------
term "Taxes" shall have the meaning specified in Section 3.05(a) without regard
----- ---------------
to the exclusions set forth in Section 3.05(a).
---------------
4.04 Illegality. Notwithstanding any other provision of this
----------
Agreement, if the introduction of or any change in or in the interpretation of
any law or regulation shall, after the date hereof, make it unlawful, or any
central bank or other Governmental Authority shall assert that it is unlawful,
for any Lender or its Lending Office to make or continue Loans as Eurodollar
Loans or to convert Reference Rate Loans into Eurodollar Loans, then, on notice
thereof and demand therefor by such Lender to the Company through the Agent, (a)
the obligation of such Lender to make or to continue Loans as Eurodollar Loans
or to convert Reference Rate Loans into Eurodollar Loans shall terminate and (b)
the Company shall forthwith prepay in full all Eurodollar Loans of such Lender
then outstanding, together with interest accrued thereon, either on the last day
of the then current Interest Period applicable to each such Eurodollar Loan if
such Lender may lawfully continue to maintain such Eurodollar Loan to such day,
or immediately if such Lender may not lawfully continue to maintain such
Eurodollar Loan to such day, unless the Company, on or prior to the date on
which it would otherwise be required to prepay such Eurodollar Loan, converts
all Eurodollar Loans of all Lenders then outstanding into Reference Rate Loans.
4.05 Capital Adequacy. In the event that any Lender shall determine
----------------
that the compliance with any law, rule or regulation regarding capital adequacy,
or any change therein or in the interpretation or application thereof or
compliance by such Lender (or its Lending Office) or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any central bank or other Governmental
Authority, affects or would affect the amount of capital required or expected to
be maintained by such Lender or any corporation controlling such Lender and such
Lender (taking into consideration such Lender's or such corporation's policies
with respect to capital adequacy and such Lender's or such corporation's desired
return on capital) determines that the amount of such capital is increased as a
consequence of such Lender's obligation under this Agreement, then the Company
shall, subject to Section 4.08(b), be liable for and shall from time to time,
---------------
upon demand therefor by such Lender through the Agent, pay to the Agent
-26-
for the account of such Lender such additional amounts as are sufficient to
compensate such Lender for such increase.
4.06 Funding Losses. (a) If the Company makes any payment or
--------------
prepayment of principal with respect to any Eurodollar Loan (including payments
made after any acceleration thereof) or converts any Loan from a Eurodollar Loan
to a Reference Rate Loan on any day other than the last day of an Interest
Period applicable thereto, the Company shall pay to each Lender, upon demand
therefor by such Lender, the amount (if any) by which (i) the present value of
the additional interest which would have been payable on the amount so received
had it not been received until the last day of such Interest Period exceeds (ii)
the present value of the interest which would have been recoverable by such
Lender by placing such amount so received on deposit in the London interbank
market for a period starting on the date on which it was so received and ending
on the last day of such Interest Period. For purposes of determining present
value under this Section 4.06(a), interest amounts shall be discounted at a rate
---------------
equal to the sum of (A) LIBOR determined two Business Days before the date on
which such principal amount is received for an amount substantially equal to the
amount received and for a period commencing on the date of such receipt and
ending on the last day of the relevant Interest Period, plus (B) the percentage
above LIBOR payable in respect of such Eurodollar Loan pursuant to Section
-------
2.08(a)(ii).
-----------
(b) If the Company fails to prepay, borrow, convert or continue any
Eurodollar Loan after a notice of prepayment, borrowing, conversion or
continuation has been given (or is deemed to have been given) to any Lender, the
Company shall reimburse each Lender, upon demand therefor by such Lender, for
any resulting loss and expense incurred by it, including any loss incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender from third parties to fund any Eurodollar Loan
4.07 Funding; Certificates of Lenders. (a) Each Lender may fulfill
--------------------------------
its obligation to make, continue or convert Loans into Eurodollar Loans by
causing one of its foreign branches or Affiliates (or an international banking
facility created by such Lender) to make or maintain such Eurodollar Loans;
provided, however, that such Eurodollar Loans shall in such event be deemed to
-----------------
have been made and to be held by such Lender and the obligation of the Company
to repay such Eurodollar Loans shall be to such Lender for the account of such
foreign branch, Affiliate or international banking facility. In addition, the
Company hereby consents and agrees that, for purposes of any determination to be
made pursuant to Section 4.01, 4.02, 4.03, 4.04 or 4,06, it shall be
------------------------------ ----
conclusively assumed that each Lender elected to fund all Eurodollar Loans by
purchasing dollar deposits in the interbank eurodollar market for its Eurodollar
Lending Office.
(b) Any Lender claiming reimbursement or compensation pursuant to
Sections 3.05, 4.02, 4.03, 4.05 and/or 4.06 shall deliver to the Company through
------------------------------- ----
the Agent a certificate setting forth in reasonable detail the basis for
computing the amount payable to such Lender hereunder and such certificate shall
be conclusive and binding on the Company in the absence of manifest error. The
Company shall pay to any Lender claiming compensation or reimbursement from the
Company pursuant to Section 4.02, 4.03, 4.05 or 4.06 the amount requested by
------------------------ ----
such Lender no later than five Business Days after such demand.
-27-
4.08 Change of Lending Office; Limitation on Increased Costs. (a)
-------------------------------------------------------
Each Lender agrees that upon the occurrence of any event giving rise to the
operation of Section 3.05(c) or (d) or Section 4.02, 4.03, 4.04 or 4.05 with
--------------- --- ------------------------ ----
respect to such Lender, it will use commercially reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to minimize the
imposition of any costs and expenses pursuant to such Sections and to designate
a different Lending Office for any Loans affected by such event with the object
of avoiding the consequence of the event giving rise to the operation of such
Section. Nothing in this Section 4.08 shall affect or postpone any of the
------------
obligations of the Company or the right of any Lender provided in Section
-------
3.05(c) or (d) or Section 4.02, 4.03, 4.04 or 4.05.
------- --- ------------------------ ----
(b) Notwithstanding the provisions of Section 3.05(c) and (d) and
--------------- ---
Sections 4.02, 4.03 and 4.05, the Company shall only be obligated to compensate
------------------- ----
any Lender for any amount arising or occurring during (i) any time or period
commencing (A) in the case of Section 3.05(c) or (d), not more than six months
--------------- ---
and (B) in the case of Section 4.02, 4.03 or 4.05, not more than three months,
------------------ ----
prior to the date on which such Lender notifies the Agent and the Company that
such Lender proposes to demand such compensation and (ii) any time or period
during which, because of the unannounced retroactive application of any statute,
regulation or other basis, such Lender could not have known that such amount
might arise or accrue.
4.09 Replacement of Lenders. The Company may from time to time for
----------------------
reasonable cause, as determined by the management of the Company, including
invocation of any provision of this Article IV by any Lender, designate one or
----------
more financial institutions (any such financial institution so designated being
herein called a "Replacement Lender") willing, in its or their sole discretion,
------------------
to purchase all of the Loans and Commitments (if not theretofore terminated) of
any one or more Lenders and each such Lender's rights hereunder, without
recourse to or warranty by, or expense to, such Lender for a purchase price
equal to the outstanding principal amount of the Loans payable to such Lender
plus any accrued but unpaid interest on such Loans and any accrued but unpaid
usage fees and facility fees in respect of such Lender's Loans and Commitment
and any other amounts payable to such Lender under this Agreement or any other
Loan Document, including any amount payable pursuant to Section 4.06 as though
------------
such Lender's Eurodollar Loans were being prepaid on the date of such purchase,
and to assume all the obligations of such Lender hereunder, and, upon such
purchase, such Lender shall no longer be a party hereto or have any rights
hereunder and shall be relieved from all obligations to the Company hereunder,
and the Replacement Lender shall succeed to the rights and obligations of such
Lender hereunder.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
In order to induce the Lenders and the Agent to enter into this
Agreement and to induce the Lenders to extend their Commitments and to make
Loans, the Company represents and warrants to the Lenders and the Agent as of
the Closing Date (but after giving effect to the consummation of the Tender
Offer on such date and the incurrence of any Loans on such date) and as of each
Borrowing Date as follows (except for representations and warranties relating
solely to a particular point in time, which shall be correct at such point in
time):
-28-
5.01 Corporate Existence; Compliance with Law. The Company and each
----------------------------------------
Restricted Subsidiary:
(a) is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) is duly qualified as a foreign corporation and in good standing
under the laws of each jurisdiction in which the character of the
properties owned or held under lease by it or the nature of the business
transacted by it requires such qualification except where the failure to be
so qualified is not likely to have a Material Adverse Effect;
(c) has all requisite corporate power and authority to own, pledge,
mortgage, hold under lease and operate its properties and to conduct its
business as now or currently proposed to be conducted; and
(d) is in compliance with all Requirements of Law applicable to it
and its business except for such non-compliance which is not likely to have
a Material Adverse Effect.
5.02 Corporate Power; Authorization. The execution, delivery and
------------------------------
performance by each Loan Party of the Transaction Documents to which such Loan
Party is a party:
(a) are within the respective corporate powers of such Loan Party;
(b) have been, or prior to such execution will have been, duly
authorized by all necessary corporate action, including the consent of
shareholders where required;
(c) do not:
(i) contravene the articles or certificate of incorporation or by-
laws of such Loan Party;
(ii) violate any other Requirement of Law;
(iii) conflict with or result in the breach of, or constitute a
default under, any Contractual Obligation of such Loan Party, except for
such conflicts, breaches or defaults which are not likely to have a
Material Adverse Effect and which do not subject any Lender or the Agent to
any criminal liability or any material civil liability; or
(iv) result in the creation or imposition of any Lien upon any of the
property of any Loan Party; and
(d) do not require the consent of, authorization by, approval of or
notice to, or filing or registration with, any Governmental Authority or
any other Person other than (i) as of the Closing Date, those which have
been obtained, made or given and which are fully disclosed in Schedule
--------
5.02(d) and (ii) those which are not required to be obtained, made or given
-------
as of the Closing Date but which will be obtained, made or given as and
when required.
-29-
5.03 Enforceable Obligations. This Agreement and each other
-----------------------
Transaction Document to which any Loan Party is a party have been duly executed
and delivered by such Loan Party. This Agreement is, and each other Transaction
Document when delivered hereunder will be, legal, valid and binding obligations
of each Loan Party, a party thereto, enforceable against each such Loan Party in
accordance with their respective terms except as such enforcement may be limited
by applicable bankruptcy, insolvency, reorganization or other similar laws
relating to or limiting creditors' rights generally.
5.04 Taxes. As of the Closing Date, the Company and each Restricted
-----
Subsidiary have filed all federal, state, local and foreign tax returns which
are required to have been filed in any jurisdiction and have paid all taxes
shown to be due thereon or otherwise assessed, to the extent the same have
become due and payable and before they have become delinquent, except for any
taxes and assessments the amount, applicability or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which the Company has set aside on its books reserves (adequate in
accordance with, and segregated to the extent required by, GAAP) and the non-
filing or non-payment of which is not likely to have a Material Adverse Effect.
5.05 Financial Matters. (a) (i) The consolidated balance sheets of
-----------------
the Company and its Subsidiaries as of the last day of the fiscal year ended on
December 31, 1998 and as of the last day of the fiscal quarter ended on April 3,
1999, and (in either case) the related consolidated statements of income and
cash flows of the Company and its Subsidiaries for such fiscal year or fiscal
quarter, as the case may be, together (in the case of the fiscal year end
financial statements) with reports thereon by Xxxxxx Xxxxxxxx & Co., independent
public accountants, copies of which have been delivered to the Agent and each
Lender prior to the execution of this Agreement, fairly present the consolidated
financial position of the Company and its Subsidiaries as of the date of said
balance sheets and the consolidated results of their operations for the periods
covered by said statements of income and cash flows, and have been prepared in
accordance with GAAP consistently applied in all material respects by the
Company and its Subsidiaries throughout the periods involved, except (x) in the
case of the fiscal year end financial statements, as set forth in the notes
thereto and (y) in the case of the three-month interim financial statements, for
normal year-end audit adjustments and the absence of footnotes. There are no
material liabilities, contingent or otherwise, of the Company or any Subsidiary
of the Company not reflected in the consolidated balance sheets as of December
31, 1998 and as of April 3, 1999 or in the notes thereto which are required to
be disclosed therein.
(ii) The consolidated balance sheets of Unisource and its
Subsidiaries as of the last day of the fiscal year ended on September 30, 1998
and as of the last day of the fiscal quarter ended on March 31, 1999, and (in
either case) the related consolidated statements of income and cash flows of
Unisource and its Subsidiaries for such fiscal year or fiscal quarter, as the
case may be, together (in the case of the fiscal year end financial statements)
with reports thereon by Ernst & Young LLP, independent public accountants,
copies of which have been delivered to the Agent and each Lender prior to the
execution of this Agreement, fairly present the consolidated financial position
of Unisource and its Subsidiaries as of the date of said balance sheets and the
consolidated results of their operations for the periods covered by said
statements of income and cash flows, and have been prepared in accordance with
GAAP consistently applied in all material respects by Unisource and its
Subsidiaries throughout the periods involved, except (x) in the case of the
fiscal year end financial statements, as set forth in the notes thereto and (y)
in the case of the six-month interim financial
-30-
statements, for normal year-end audit adjustments and the absence of footnotes.
There are no material liabilities, contingent or otherwise, of Unisource or any
Subsidiary of Unisource not reflected in the consolidated balance sheet as of
September 30, 1998 and as of March 31, 1999 or in the notes thereto which are
required to be disclosed therein.
(b) Since December 31, 1998 (or, in the case of Unisource, since
September 30, 1998), there has been no Material Adverse Effect and no
development which is likely to have a Material Adverse Effect, except as
reflected in the Company's or Unisource's periodic reports filed with the
Securities and Exchange Commission prior to the Closing Date.
(c) There is no material obligation, contingent liability or
liability for taxes, long-term leases or unusual forward or long-term
commitments which is not reflected in the April 3, 1999 consolidated financial
statements of the Company and its Subsidiaries or in the March 31, 1999
consolidated financial statements of Unisource and its Subsidiaries which (in
either case) are required by GAAP to be disclosed therein and no liability which
would be required to be reflected in the notes to such financial statements if
same were audited is likely to have a Material Adverse Effect.
5.06 Litigation. There are no pending or, to the knowledge of the
----------
Company, threatened, actions or proceedings affecting the Company or any
Restricted Subsidiary before any court or other Governmental Authority or any
arbitrator that are likely to have a Material Adverse Effect.
5.07 Subsidiaries. (a) A complete and correct list of the Company's
------------
Subsidiaries as of the Closing Date, showing, as to each such Subsidiary, the
correct name thereof, the jurisdiction of its incorporation and the percentage
of shares of each class of its securities outstanding owned by the Company and
each other Subsidiary of the Company, is set forth in Schedule 5.07.
-------------
(b) (i) All of the outstanding shares of securities of each of the
Subsidiaries of the Company listed in Schedule 5.07 have been validly issued,
-------------
are fully paid and nonassessable and are owned by the Company or another
Subsidiary of the Company, free and clear of any Lien, except as otherwise
permitted hereunder, and (ii) no Subsidiary of the Company owns any shares of
securities of the Company.
5.08 Liens. As of the Closing Date, there are no Liens of any nature
-----
whatsoever on any properties owned by the Company or any Restricted Subsidiary
other than Permitted Liens.
5.09 No Burdensome Restrictions; No Defaults. (a) Neither the Company
---------------------------------------
nor any Restricted Subsidiary is a party to any Contractual Obligation the
performance of which is likely to have a Material Adverse Effect.
(b) As of the Closing Date, no provision or provisions of any
applicable Requirement of Law has or is likely to have a Material Adverse
Effect.
(c) Neither the Company nor any Restricted Subsidiary is in
default under or with respect to any Contractual Obligation which default is
likely to have a Material Adverse Effect.
(d) No Default or Event of Default has occurred and is continuing.
-31-
5.10 Investment Company Act; Public Utility Holding Company Act. No
----------------------------------------------------------
Loan Party is an "investment company" or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended, or a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a n subsidiary company n of a n holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended. The making of the Loans by the Lenders, the application of the
proceeds and repayment thereof by the Company and the consummation of the
transactions contemplated by the Loan Documents will not violate any provision
applicable to any Loan Party of (a) the Investment Company Act of 1940, as
amended, or (b) any rule, regulation or order issued by the Securities and
Exchange Commission thereunder.
5.11 Margin Regulations. The proceeds of the Loans will be used
------------------
solely to finance the Acquisition, to refinance certain existing Indebtedness of
Unisource and its Subsidiaries and to pay the fees and expenses incurred in
connection with the Transaction. No part of the proceeds of any Loan will be
used in violation of Regulation T, U or X of the Federal Reserve Board. After
giving effect to the application of the proceeds of the Loans less than twenty-
five percent (25%) of the assets of the Company, individually and on a
consolidated basis with its Subsidiaries, consists of margin stock. The Company
is not engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or carrying margin
stock. Terms for which meanings are provided in Regulation U of the Federal
Reserve Board or any regulations substituted therefor, as from time to time in
effect, are used in this Section 5.11 with such meanings.
------------
5.12 Environmental Matters. As of the Closing Date, except as set
---------------------
forth in Schedule 5.12:
-------------
(a) all facilities and property (including underlying groundwater)
presently owned or leased by the Company or any of its Subsidiaries have
been, and continue to be, owned or leased by the Company and its
Subsidiaries in material compliance with all Environmental Laws, except for
such non-compliance as is not likely to have a Material Adverse Effect;
(b) there are no pending or threatened
(i) claims, complaints, notices or requests for information received
by the Company or any of its Subsidiaries with respect to any alleged
violation of any Environmental Law which are likely to have a Material
Adverse Effect, or
(ii) claims, complaints, notices or inquiries to the Company or any
of its Subsidiaries regarding potential liability under any Environmental
Law which are likely to have a Material Adverse Effect;
(c) except for Releases of Hazardous Materials which occurred after
the date that the Company or any of its Subsidiaries sold, transferred,
assigned or otherwise disposed of its interests in any previously owned or
leased property, there have been no Releases of Hazardous Materials at, on
or under any property now or previously owned or leased by the Company or
any of its Subsidiaries that are likely to have a Material Adverse Effect;
-32-
(d) the Company and its Subsidiaries have been issued and are in
material compliance with all permits, certificates, approvals, licenses and
other authorizations relating to environmental matters and necessary or
desirable for their businesses except for such non-compliance as is not
likely to have a Material Adverse Effect;
(e) (i) no property presently owned or leased by the Company or any
of its Subsidiaries, and (ii) to the best of the knowledge of the Company,
no property previously owned or leased by the Company or any of its
Subsidiaries, is listed or proposed for listing on the National Priorities
List pursuant to CERCLA or on any similar published state list of sites
requiring investigation or clean-up;
(f) to the knowledge of the Company, there are no underground
storage tanks, active or abandoned, including petroleum storage tanks, on
or under any property now or previously owned or leased by the Company or
any of its Subsidiaries that are likely to have a Material Adverse Effect;
(g) neither the Company nor any of its Subsidiaries has directly
transported or directly arranged for the transportation of any Hazardous
Material to any location which is listed or proposed for listing on the
National Priorities List pursuant to CERCLA, on the CERCLIS or on any
similar published state list or which is the subject of federal, state or
local enforcement actions or other investigations which may lead to claims
against the Company or such Subsidiary for any remedial work, damage to
natural resources or personal injury, including claims under CERCLA, except
for such claims which are not likely to have a Material Adverse Effect;
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by the Company or
any of its Subsidiaries that are likely to have a Material Adverse Effect;
and
(i) to the knowledge of the Company, no conditions exist at, on or
under any property now or previously owned or leased by the Company or any
of its Subsidiaries which, with the passage of time, or the giving of
notice or both, are likely to have a Material Adverse Effect.
5.13 Labor Matters. Except as set forth in Schedule 5.13, there are
------------- -------------
no strikes or other labor disputes or grievances or charges or complaints with
respect to any employee or group of employees pending or, to the knowledge of
the Company, threatened against the Company or any Restricted Subsidiary which
are likely to have a Material Adverse Effect.
5.14 ERISA Plans. During the twelve-consecutive-month period prior
-----------
to the Closing Date, no steps have been taken to terminate any Pension Plan
(other than a standard termination as defined in Section 4041(b) of ERISA for
---------------
which a commitment to make the terminating Pension Plan sufficient is not
required), and no contribution failure has occurred with respect to any Pension
Plan sufficient to give rise to a Lien under Section 302(f) of ERISA. Other than
--------------
liability for benefit payments or contributions in the ordinary course, no
condition exists or event or transaction has occurred with respect to any Plan
which is likely to result in the incurrence by the Company or any member of the
Controlled Group of any material liability, fine or penalty. Each Plan complies
with
-33-
the applicable provisions of ERISA and the Code, except where such non-
compliance is not likely to have a Material Adverse Effect. Except as disclosed
in Schedule 5.14, neither the Company nor any Subsidiary of the Company has any
-------------
material contingent liability with respect to any post-retirement benefit under
a Welfare Plan, other than liability for continuation coverage described in Part
6 of Subtitle B of Title I of ERISA.
5.15 Transaction. At the time of consummation thereof, each component
-----------
of the Transaction shall have been (or, in the case of the Merger, will be)
consummated in all material respects in accordance with the terms of the
applicable Transaction Documents and all applicable laws. At the time of
consummation thereof, all material consents and approvals of, and filings and
registrations with, and all other actions in respect of, all governmental
agencies, authorities or instrumentalities required in order to make or
consummate each component of the Transaction shall have been (or, in the case of
the Merger, will be) obtained, given, filed or taken or waived and are or will
be in full force and effect (or effective judicial relief with respect thereto
shall have been obtained). All applicable waiting periods with respect thereto
have or, prior to the time when required, will have, expired without, in all
such cases, any action being taken by any competent authority which restrains,
prevents, or imposes material adverse conditions upon the Transaction.
Additionally, there does not exist any judgment, order or injunction prohibiting
or imposing material adverse conditions upon the Transaction, or the performance
by the Company and the other Loan Parties of their obligations under the
respective Transaction Documents to which they are a party.
ARTICLE VI
CONDITIONS PRECEDENT
--------------------
6.01 Conditions Precedent to the Closing Date. The occurrence of the
----------------------------------------
Closing Date and the obligation of each Lender to be committed to make a Loan on
the Closing Date, if any, is subject to satisfaction of the condition precedent
that the Agent shall have received the following, each, unless otherwise
specified below, dated the Closing Date, in form and substance satisfactory to
the Agent and its counsel:
(a) Execution of Agreement. This Agreement shall have been executed
----------------------
and delivered by the Company to the Agent.
(b) Board Resolutions; Incumbency Certificates. A certificate of the
------------------------------------------
Secretary or an Assistant Secretary of each Loan Party certifying (i) all
documents (including board of directors resolutions) evidencing other
necessary corporate action, if any, by each Loan Party with respect to each
Transaction Document and (ii) the names and signatures of the officers
authorized to act with respect to each Loan Document executed by it, upon
which certificate the Agent and each Lender may conclusively rely until it
shall have received a further certificate of the Secretary or Assistant
Secretary of such Loan Party cancelling or amending such prior certificate;
(c) Articles of Incorporation; By-Laws and Good Standing
----------------------------------------------------
Certificates. Each of the following documents:
-------------
-34-
(i) the articles or certificate of incorporation of each Loan Party
as in effect on the Closing Date, certified (A) by the Secretary of State
of the state of incorporation of such Loan Party as of a date reasonably
close to the Closing Date, and (B) by the Secretary or an Assistant
Secretary of such Loan Party as of the Closing Date, and the by-laws of
each Loan Party, as in effect on the Closing Date, certified by the
Secretary or an Assistant Secretary of such Loan Party as of the Closing
Date; and
(ii) a good standing certificate for each Loan Party from the
Secretary of State of the state of incorporation of such Loan Party as of a
date reasonably close to the Closing Date;
(d) Subsidiary Guaranty. A guaranty, duly executed by each Principal
-------------------
Subsidiary, in substantially the form of Exhibit 6.01(d) (as from time to
---------------
time amended, modified or supplemented, the "Subsidiary Guaranty");
-------------------
(e) Legal Opinion. A favorable opinion addressed to the Agent and
-------------
all Lenders from counsel to the Company and its Subsidiaries, in
substantially the form of Exhibit 6.01(e) (which opinion the Company and
---------------
its Subsidiaries hereby expressly instruct such counsel to prepare and
deliver); and
(f) No Material Adverse Effect. Since December 31, 1998 (or, in the
--------------------------
case of Unisource, since September 30, 1998), there shall have been no
Material Adverse Effect and no development which is likely to have a
Material Adverse Effect, except as reflected in the Company's or
Unisource's periodic reports filed with the Securities and Exchange
Commission prior to the Closing Date.
(g) Margin Regulations. All Loans made by the Lenders shall be in
------------------
full compliance with all applicable Requirements of Law, including
Regulations T, U and X of the Federal Reserve Board
(h) Fees, Costs and Expenses. The Company shall have paid all fees
------------------------
referred to in Section 3.01 to the extent then due and payable and all
------------
reasonable costs and expenses referred to in Section 11.04 (including legal
-------------
fees and expenses) and any indemnity pursuant to Section 11.05 which, in
-------------
each case, may be then due and payable.
(i) Tender Offer; Merger Agreement. (i) On or prior to the Closing
------------------------------
Date, (A) the Tender Offer shall have been consummated in all material
respects in accordance with the Tender Offer Documents and all applicable
laws, and each of the conditions precedent to the consummation of the
Tender Offer shall have been satisfied in all material respects and no
material condition thereto waived; (B) Atlanta Acquisition shall have
purchased a sufficient number of shares of common stock of Unisource
pursuant to the Tender Offer to effect the Merger without any affirmative
vote or approval of any other Person; (C) Atlanta Acquisition shall be
required on such date to pay for the shares of Unisource tendered to it
pursuant to the Tender Offer; and (D) the Merger Agreement shall have been
entered into and shall be in full force and effect.
(j) Company Officer's Certificate. The Company shall have delivered
-----------------------------
to the Agent a certificate from a Responsible Officer of the Company in
substantially the form of
-35-
Exhibit 6.01(j) as to the satisfaction of the conditions set forth in
---------------
paragraphs (f), (g), (h) and (i) of this Section 6.01 and paragraph (b) of
-------------------------------- ------------ -------------
Section 6.02.
------------
6.02 Conditions Precedent to Each Borrowing. The obligation of each
--------------------------------------
Lender to make any Loan (including its initial Loan) shall be subject to the
following additional conditions:
(a) Notice of Borrowing. The Agent shall have received a Notice of
-------------------
Borrowing as required by Section 2.02.
------------
(b) Accuracy of Representations; No Default; Etc. The following
---------------------------------------------
statements shall be true on the Closing Date and on each Borrowing Date,
before and after giving effect thereto:
(i) The representations and warranties contained in Article V are
---------
correct on and as of the closing Date and on each Borrowing Date as though
made on and as of such date (except for representations and warranties
relating solely to a particular point in time, which shall be correct as at
such point in time); and
(ii) No Default or Event of Default has occurred and is continuing or
would result from such Loans (if any) being made on such date.
(c) The Closing Date shall have occurred.
(d) Other Assurances. The Agent shall have received such other
----------------
approvals, opinions or documents as any Lender through the Agent may
reasonably request related to the transactions contemplated hereby.
ARTICLE VII
AFFIRMATIVE COVENANTS
---------------------
The Company agrees that as long as the obligations of the Lenders to
make Loans shall remain in effect and until all Obligations shall have been paid
or performed in full, unless the Required Lenders shall otherwise consent in
writing:
7.01 Application of Proceeds. The Company will apply the proceeds of
-----------------------
the Loans solely to finance the Transaction and to pay the fees and expenses
incurred in connection therewith.
7.02 Compliance with Laws, Etc. The Company will comply, and cause
--------------------------
each of its Subsidiaries to comply, in all material respects with all applicable
Requirements of Law except for such non-compliance as is being contested in good
faith by appropriate proceedings or is not likely to have a Material Adverse
Effect.
7.03 Payment of Taxes, Etc. The Company will pay and discharge, and
---------------------
cause each of its Subsidiaries to pay and discharge, before the same shall
become delinquent, all lawful claims and all taxes, assessments and governmental
charges or levies except where contested in good faith, by proper proceedings,
if adequate reserves therefor have been established on the books of the Company
-36-
in accordance with, and to the extent required by, GAAP, or if such non-payment
(individually and in the aggregate with all other such non-payments) is not
likely to have a Material Adverse Effect.
7.04 Maintenance of Insurance. The Company will maintain, and cause
------------------------
each of its Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks as
is usually carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the Company and such Subsidiaries
operate; provided, however, that the Company and its Subsidiaries may self-
-------- -------
insure to the extent that the Company or any such Subsidiary may in its
discretion determine; and provided, further, that the Company may maintain
-------- -------
insurance on behalf of any of its Subsidiaries. Without limiting the generality
of the foregoing, the Company will, and will cause each of its Subsidiaries to,
maintain insurance coverages that are at least substantially the same as the
insurance coverages maintained on the Closing Date.
7.05 Preservation of Corporate Existence, Etc. The Company will
----------------------------------------
preserve and maintain, and cause each Restricted Subsidiary to preserve and
maintain, its corporate existence, rights (charter and statutory), and
franchises, except as permitted under Section 8.03 or except to the extent that
------------
the failure by the Company or any such Restricted Subsidiary to comply with the
foregoing is not likely to have a Material Adverse Effect.
7.06 Access. The Company will from time to time, during normal
------
business hours upon reasonable notice, or, if a Default or an Event of Default
shall have occurred and be continuing, at any time upon notice to an officer of
the Company having at least the rank of Vice President, permit the Agent, any
Lender and any agent or representative thereof, to examine and make copies of
and abstracts from the records and books of account of, and visit the properties
of, the Company and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Company and any of its Subsidiaries with any of
their respective officers.
7.07 Keeping of Books. The Company will keep proper books of record
----------------
and account, in which full and correct entries, on a consolidated basis for the
Company and its Subsidiaries, shall be made of all financial transactions and
the assets and business of the Company and its Subsidiaries in accordance with
GAAP consistently applied.
7.08 Maintenance of Properties, Etc. The Company will maintain and
------------------------------
preserve, and cause each of its Subsidiaries to maintain and preserve, all of
its properties in good repair, working order and condition, and from time to
time make or cause to be made all necessary and proper repairs, renewals,
replacements and improvements so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
--------
however, that nothing in this Section 7.08 shall prevent the Company or any of
------- ------------
its Subsidiaries from discontinuing the maintenance or preservation of any of
its properties if such discontinuance is, in the opinion of the Company,
desirable in the conduct of its business and is not likely to have a Material
Adverse Effect.
7.09 Financial Statements. The Company will furnish to the Agent,
--------------------
with sufficient copies for the Lenders:
(a) as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of the Company,
consolidated balance sheets of the
-37-
Company and its Subsidiaries as of the end of such quarter and the related
statements of income and cash flows for such quarter and for the period
commencing at the end of the previous fiscal year and ending with the end
of such quarter;
(b) as soon as available and in any event within 90 days after the
end of each fiscal year of the Company, audited consolidated balance sheets
of the Company and its Subsidiaries as of the end of such year and the
related consolidated statements of income, changes in shareholders' equity
and cash flows for the period commencing at the end of the previous fiscal
year and ending with the end of such year; and
(c) at the same time it furnishes each set of financial statements
pursuant to paragraphs (a) and (b) above, (i) a certificate of a
-------------- ---
Responsible Officer of the Company to the effect that no Default or Event
of Default has occurred and is continuing (or if any Default or Event of
Default has occurred and is continuing, describing the same in reasonable
detail and the action which the Company proposes to take with respect
thereto) and (ii) a compliance certificate in substantially the form of
Exhibit 7.09.
------------
7.10 Reporting Requirements. The Company will furnish to the Agent,
----------------------
with sufficient copies for the Lenders:
(a) promptly and in any event within three Business Days after the
Company becomes aware of the existence of any Default or Event of Default,
notice by telephone or facsimile specifying the nature of such Default or
Event of Default, which notice, if given by telephone, shall be promptly
confirmed in writing within five Business Days;
(b) promptly after the sending or filing thereof, copies of all
reports which the Company sends to its security holders generally and
copies of all reports and registration statements which the Company or any
of its Subsidiaries files with the Securities and Exchange Commission or
any national securities exchange (including the Company's Quarterly Report
on Form 10-Q and Annual Report on Form 10-K);
(c) promptly but not later than three Business Days after the
Company becomes aware of any change by Xxxxx'x or S&P in its Debt Rating,
notice by telephone or facsimile of such change; and
(d) such other information respecting the business, prospects,
properties, operations or condition, financial or otherwise of the Company
or any of its Subsidiaries as any Lender through the Agent may from time to
time reasonably request.
7.11 ERISA Plans. The Company will maintain and operate, and cause
-----------
each Subsidiary to maintain and operate, each Plan in material compliance with
ERISA and the Code and all applicable regulations thereunder.
7.12 Environmental Compliance; Notice. The Company will, and will
--------------------------------
cause each of its Subsidiaries to:
-38-
(a) endeavor to use and operate all of its facilities and properties
in substantial compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in substantial
compliance therewith, and handle all Hazardous Materials in substantial
compliance with all applicable Environmental Laws;
(b) promptly upon receipt of all written claims, complaints, notices
or inquiries relating to the condition of its facilities and properties or
compliance with Environmental Laws, evaluate such claims, complaints,
notices and inquiries and forward copies of (i) all such claims,
complaints, notices and inquiries which individually are likely to have a
Material Adverse Effect and (ii) all such claims, complaints, notices and
inquiries, arising from a single occurrence which together are likely to
have a Material Adverse Effect, and endeavor to promptly resolve all such
actions and proceedings relating to compliance with Environmental Laws; and
(c) provide such information and certifications which the Agent may
reasonably request from time to time to evidence compliance with this
Section 7.12.
------------
7.13 The Merger. (a) As soon as practicable following the Closing
----------
Date, but no later than October 15, 1999, the Company will cause the Merger to
be consummated in accordance with the terms of the Merger Documents and all
applicable laws.
(b) Within five days after the consummation of the Merger, the
Company will cause Unisource, as the surviving corporation of the Merger, to
deliver a letter to the Agent acknowledging that it has assumed all of the
liabilities and obligations of Atlanta Acquisition under the Subsidiary Guaranty
by virtue of the Merger.
ARTICLE VIII
NEGATIVE COVENANTS
------------------
The Company agrees that as long as the obligations of the Lenders to
make Loans shall remain in effect and until all Obligations shall have been paid
or performed in full, unless the Required Lenders shall otherwise consent in
writing:
8.01 Liens, Etc. The Company shall not create or assume and shall
----------
not permit any Restricted Subsidiary to create or assume, any Lien upon or with
respect to any of its Principal Properties or shares of capital stock or
Indebtedness of any Restricted Subsidiary, whether now owned or hereafter
acquired, without making effective provision, and the Company in such case will
make or cause to be made effective provision, whereby the Obligations shall be
secured by such Lien equally and ratably with any and all other Indebtedness or
obligations thereby secured, so long as such other Indebtedness or obligations
shall be so secured; provided, however, that the foregoing shall not apply to
-------- -------
any of the following:
(a) Liens existing on the Closing Date and set forth in Schedule
--------
8.01, it being understood and agreed however, that those existing Liens in
----
respect of the assets of Unisource and its Subsidiaries that are set forth in
such Schedule 8.01 and designated as being required
-------------
-39-
to be terminated shall only be permitted until the date which is 30 days
after the earlier of (i) the date on which the Company and/or Unisource
repays the underlying Indebtedness as part of the Transaction and (ii) the
date on which the Merger is consummated;
(b) Liens on any Principal Property acquired, constructed or improved
after the date of this Agreement which are created or assumed
contemporaneously with, or within 120 days after, or pursuant to financing
arrangements for which a firm commitment is made by a bank, insurance
company or other lender or investor (not including the Company or any
Restricted Subsidiary) within 120 days after, the completion of such
acquisition, construction or improvement to secure or provide for the
payment of any part of the purchase price of such property or the cost of
such construction or improvement, or, in addition to Liens contemplated by
paragraphs (c) and (d) below, Liens on any Principal Property existing at
-------------- ---
the time of acquisition thereof; provided, however, that in the case of any
-------- -------
such acquisition, construction or improvement the Lien shall not apply to
any property theretofore owned by the Company and/or one or more Restricted
Subsidiaries other than, in the case of such construction or improvement,
any theretofore unimproved real property on which the property so
constructed, or the improvement, is located;
(c) Liens on property or shares of capital stock or indebtedness of a
corporation existing at the time such corporation is merged into or
consolidated with the Company or a Restricted Subsidiary or existing at the
time of a sale, lease or other disposition of the properties of a
corporation as an entirety or substantially as an entirety to the Company
or to a Restricted Subsidiary;
(d) Liens on property or shares of capital stock of a corporation
existing at the time such corporation becomes a Restricted Subsidiary;
(e) Liens to secure Indebtedness of a Restricted Subsidiary to the
Company or one or more Subsidiaries;
(f) Liens in favor of the United States of America or any State
thereof, or any department, agency or political subdivision of the United
States of America or any State thereof, to secure partial, progress,
advance or other payments pursuant to any contract or statute or to secure
any Indebtedness incurred for the purpose of financing all or any part of
the purchase price or the cost of constructing or improving the property
subject to such Liens;
(g) Liens on timberlands in connection with an arrangement under
which the Company and/or one or more Restricted Subsidiaries are obligated
to cut or pay for timber in order to provide the lienholder with a
specified amount of money, however determined;
(h) Liens created or assumed in the ordinary course of the business
of exploring for, developing or producing oil, gas or other minerals
(including in connection with borrowings of money for such purposes) on, or
on any interest in, or on any proceeds from the sale of, property acquired
or held for the purpose of exploring for, developing or producing oil, gas
or other minerals, or production therefrom, or proceeds of such production,
or material or equipment located on such property;
-40-
(i) Liens in favor of any customer arising in respect of performance
deposits and partial, progress, advance or other payments made by or on
behalf of such customer for goods produced or to be produced or for
services rendered or to be rendered to such customer in the ordinary course
of business, which Liens shall not exceed the amount of such deposits or
payments;
(j) Liens on the property of the Company or any Restricted Subsidiary
incurred or pledges and deposits made in the ordinary course of business in
connection with worker's compensation, unemployment insurance, old-age
pensions and other social security benefits other than in respect of
employer plans subject to ERISA;
(k) Liens pertaining to receivables or other accounts sold by the
Company or any of its Subsidiaries pursuant to a receivables sale
transaction in favor of the purchaser or purchasers of such receivables or
other accounts;
(l) purchase money liens or purchase money security interests upon or
in any other property acquired by the Company or any Restricted Subsidiary
in the ordinary course of business to secure the purchase price of such
property or to secure Indebtedness incurred solely for the purpose of
financing the acquisition of such property;
(m) extensions, renewals and replacements of Liens referred to in
paragraphs (a) through (l) above or this paragraph (m), provided, however,
-------------- --- -------------- -----------------
that the Indebtedness secured thereby shall not exceed the principal amount
of the Indebtedness so secured at the time of such extension, renewal or
replacement, and such extension, renewal or replacement shall be limited to
all or part of the property or assets which secured the Lien extended,
renewed or replaced (plus improvements on such property);
(n) Liens imposed by law, such as workers', materialmen's,
mechanics', warehousemen's, carriers', lessors', vendors' and other similar
Liens incurred by the Company or any Restricted Subsidiary arising in the
ordinary course of business which secure its obligations to any Person;
(o) Liens created by or resulting from any litigation or proceedings
which are being contested in good faith by appropriate proceedings; Liens
arising out of judgments or awards against the Company and/or one or more
Restricted Subsidiaries with respect to which the Company and/or such
Restricted Subsidiary or Subsidiaries are in good faith prosecuting an
appeal or proceedings for review; or Liens incurred by the Company and/or
one or more Restricted Subsidiaries for the purpose of obtaining a stay or
discharge in the course of any legal proceeding to which the Company and/or
such Restricted Subsidiary or Subsidiaries are a party;
(p) Liens for taxes, assessments or other governmental charges or
levies, either not yet due and payable or to the extent that non-payment
thereof shall be permitted by Section 7.03, landlord's liens on property
------------
held under lease and tenants' rights under leases;
(q) zoning restrictions, easements, licenses, reservations,
restrictions on the use of real property or minor irregularities of title
incident thereto which do not materially impair the
-41-
value of any parcel of property material to the operation of the business
of the Company and its Subsidiaries taken as a whole or the value of such
property for the purpose of such business; and
(r) Liens arising in connection with Sale-Leaseback Transactions
permitted by Section 8.02.
------------
8.02 Sale-Leaseback Transactions. The Company shall not, and shall
---------------------------
not permit any Restricted Subsidiary to, enter into any arrangement with any
Person providing for the leasing by the Company and/or one or more Restricted
Subsidiaries of any Principal Property (except for temporary leases for a term,
including any renewal thereof, of not more than three years and except for
leases between the Company and one or more Restricted Subsidiaries or between
Restricted Subsidiaries) which property has been or is to be sold or transferred
by the Company and/or such Restricted Subsidiary or Subsidiaries to such Person
(a "Sale-Leaseback Transaction") unless (a) the Company and/or such Restricted
--------------------------
Subsidiary or Subsidiaries would be entitled to incur Indebtedness secured by a
Lien on such property without equally and ratably securing the Obligations
pursuant to the provisions of Section 8.01, or (b) the Company shall apply or
------------
cause to be applied an amount equal to the Value of such Sale-Leaseback
Transaction within 120 days of the effective date of any arrangement (i) to the
retirement of Indebtedness for Borrowed Money incurred or assumed by the Company
or any Restricted Subsidiary (other than indebtedness for borrowed money owed to
the Company and/or one or more Restricted Subsidiaries) which by its terms
matures on, or is extendable or renewable at the option of the obligor to, a
date more than 12 months after the date of the incurrence or assumption of such
indebtedness and which is senior in right of payment to, or ranks pari passu
---- -----
with, the Loans, or (ii) to the purchase of other property which will constitute
"Principal Property" having a fair value in the opinion of the Board of
Directors of the Company at least equal to the Value of such Sale-Leaseback
Transaction, or (c) the Company shall use the net proceeds to repay Loans
hereunder and if all of the Loans have been repaid in full, to reduce the
Aggregate Commitments hereunder.
Notwithstanding the provisions of Sections 8.01 and 8.02, the Company
------------- ----
and any one or more of its Restricted Subsidiaries may nevertheless create or
assume Liens which would otherwise require securing of the Obligations under
said provisions, and enter into Sale-Leaseback Transactions without compliance
with either paragraph (b) or (c) of this Section 8.02, provided that the
------------- --- ------------ --------
aggregate amount of all such Liens and Sale-Leaseback Transactions permitted by
this Section 8.02 at any time outstanding (as measured by the sum of (a) all
------------
Indebtedness secured by all such Liens then outstanding or to be so created or
assumed, but excluding secured Indebtedness permitted under the exceptions in
Section 8.01, and (b) the Value of all such Sale-Leaseback Transactions then
------------
outstanding or to be so entered into, but excluding such transactions in which
indebtedness is retired or property is purchased or Loans are repaid) shall not
exceed 10% of Net Tangible Assets.
8.03 Mergers, Etc. The Company shall not merge or consolidate with
------------
or into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets, whether now owned or hereafter acquired, to any Person; provided,
--------
however, that the Company may merge or consolidate with or into any corporation
-------
(whether or not affiliated with the Company) or convey, transfer, lease or
otherwise dispose of all or substantially all of its assets, to any other
corporation (whether or not affiliated with the Company)
-42-
authorized to acquire or operate the same, so long as (a) in the case of such
merger or consolidation, the Company is the surviving corporation or (b) if
either (i) in the case of such merger or consolidation, if the Company is not
the surviving corporation, or (ii) upon any such conveyance, transfer, lease or
other disposition, the surviving or transferee corporation expressly assumes the
due and punctual payment of all Obligations according to their terms and the due
and punctual performance and observance of all of the covenants and conditions
of this Agreement to be performed by the Company.
8.04 Transactions with Affiliates. The Company shall not enter into
----------------------------
or be a party to, or permit any of its Subsidiaries to enter into or be a party
to, any transaction with any Affiliate of the Company except (i) as may be
permitted under Sections 8.01, 8.02 or 8.03 or (ii) transactions in the ordinary
------------------- ----
course of business which are not likely to have a Material Adverse Effect.
8.05 Accounting Changes. The Company (a) shall not make, or permit
------------------
any of its Subsidiaries to make, any significant change in accounting treatment
and reporting practices except as permitted or required by GAAP or the
Securities and Exchange Commission and (b) shall not designate a different
fiscal year than the fiscal year used in the preparation of the financial
statements referred to in Section 5.05(a).
---------------
8.06 Margin Regulations. The Company shall not use the proceeds of
------------------
any Loan in violation of Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
8.07 Negative Pledges, Etc. The Company shall not, and shall not
---------------------
permit any Restricted Subsidiary to, enter into any agreement prohibiting
compliance by the Company with the provisions of the introduction to Section
-------
8.01 or restricting the ability of the Company or any other Loan Party to amend
----
or otherwise modify this Agreement or any other Loan Document.
8.08 Leverage Ratio. The Company shall not permit the ratio of (a)
--------------
Funded Indebtedness on the last day of any fiscal quarter to (b) Operating Cash
Flow for the Measurement Period ending on such date (in each case calculated on
a consolidated basis for the Company and its consolidated Subsidiaries and
assuming for this purpose that the Company acquired Unisource on July 1, 1998)
to be greater than 4.50 to 1.00.
ARTICLE IX
EVENTS OF DEFAULT
-----------------
9.01 Events of Default. The term "Event of Default" shall mean any
----------------- ----------------
of the events set forth in this Section 9.01.
------------
(a) Non-Payment. The Company shall (i) fail to pay any principal
-----------
of any Loan when the same shall become due and payable; or (ii) fail to pay any
interest on any Loan or fail to pay any fee due under this Agreement within
three Business Days after the same shall become due and payable;
(b) Representations and Warranties. Any representation or warranty
------------------------------
made by the Company in this Agreement or by any Loan Party in any other Loan
Document or in any certificate,
-43-
document or financial or other statement delivered at any time under or in
connection with this Agreement or any other Loan Document shall prove to have
been incorrect or untrue in any material respect when made or deemed made;
(c) Specific Defaults. The Company shall fail to perform or
-----------------
observe any term, covenant or agreement contained in Section 7.01, 7.05, 7.06,
------------ ---- ----
7.10(a) or 7.13 or Article VIII;
------- ---- ------------
(d) Other Defaults. The Company shall fail to perform or observe
--------------
any other term or covenant contained in this Agreement or any Loan Party shall
fail to perform any other term or covenant in any other Loan Document, and such
Default shall continue unremedied for a period of 30 days after the date upon
which written notice thereof shall have been given to the Company by the Agent;
(e) Default under Other Agreements. Any default shall occur and be
------------------------------
continuing under the terms applicable to:
(i) any Funded Indebtedness or any Indebtedness or items of
Indebtedness of the Company or any of its Subsidiaries (other than under
this Agreement or any other Loan Document) which Funded Indebtedness or
Indebtedness, as the case may be, has an aggregate outstanding principal
amount of $75,000,000 or more, or
(ii) under one or more Interest Rate Contracts of the Company or any
of its Subsidiaries resulting in aggregate net obligations of the Company
and its Subsidiaries of $75,000,000 or more and,
in either of the above cases, such default shall:
(A) consist of the failure to pay such Indebtedness or such net
obligations when due (whether at scheduled maturity, upon early
termination, by required prepayment, acceleration, demand or otherwise)
after giving effect to any applicable grace period; or
(B) result in, or continue unremedied and unwaived for a period of
time sufficient to permit, the acceleration of such Indebtedness or the
early termination of any such Interest Rate Contract;
(f) Bankruptcy or Insolvency. The Company or any Restricted
------------------------
Subsidiary shall:
(i) generally fail to pay, or admit in writing its inability to pay
its debts as they become due (provided, however, that this clause (i) shall
----------------- ----------
not apply to any Subsidiary of the Company designated with an asterisk in
Schedule 5.07);
--------------
(ii) commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect;
(iii) seek the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property or consent to any such relief or to the
-44-
appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it;
(iv) make a general assignment for the benefit of creditors; or
(v) take any corporate action to authorize any of the foregoing;
(g) Involuntary Proceedings. An involuntary case or other
-----------------------
proceeding shall be commenced against the Company or any Restricted Subsidiary
seeking liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and unstayed
for a period of 60 days; or an order for relief shall be entered against the
Company or any Restricted Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
(h) Monetary Judgments. One or more judgments or orders for the
------------------
payment of money exceeding in the aggregate $75,000,000 shall be rendered
against the Company or any of its Subsidiaries and either (i) enforcement
proceedings shall have been initiated by any creditor upon such judgment or
order or (ii) such judgment or order shall continue unsatisfied or unstayed for
a period of 30 days;
(i) Pension Plans. Any of the following events shall occur with
-------------
respect to any Pension Plan:
(i) the institution of any steps by the Company, any member of its
Controlled Group or any other Person to terminate a Pension Plan if, as a
result of such termination, the Company or any such member could reasonably
expect to be required to make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to such Pension Plan
or the PBGC, in excess of $75,000,000; or
(ii) a contribution failure occurs with respect to any Pension Plan
which gives rise to a Lien under Section 302(f) of ERISA with respect to a
--------------
liability or obligation in excess of $75,000,000;
(j) Change in Control. The acquisition by any Person or group
-----------------
(within the meaning of Rule 13d-5 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934), or two or more Persons acting in
concert, of beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934) of
either (i) 33-1/3% or more of the outstanding shares of voting stock of the
Company or (ii) the power to direct or cause the direction of the management and
policies of the Company, whether through the ownership of voting securities, by
contract or otherwise; or
(k) Impairment of Certain Documents. Except as otherwise expressly
-------------------------------
permitted in any Loan Document, any of the Loan Documents shall terminate or
cease in whole or in part to be the legally valid, binding, and enforceable
obligation of the relevant Loan Party, or such Loan Party or
-45-
any Person acting for or on behalf of any Loan Party, contests such validity,
binding effect or enforceability, or purports to revoke any Loan Document.
9.02 Remedies. If any Event of Default shall have occurred and be
--------
continuing:
(a) The Agent shall at the request of, or may with the consent of,
the Required Lenders, declare the Commitments to be terminated, whereupon
the Commitments shall forthwith be terminated; and/or
(b) The Agent shall at the request of, and may with the consent of,
the Required Lenders, declare the unpaid principal amount of all
outstanding Loans, all interest accrued and unpaid thereon and all other
Obligations payable hereunder or under any other Loan Document to be
immediately due and payable, whereupon the Loans, all such interest and all
such Obligations shall become and be forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Company; and/or
(c) The Agent shall at the request of, and may with the consent of,
the Required Lenders, exercise all rights and remedies available to it as
Agent under any Loan Document;
provided, however, that upon the occurrence of any Event of Default specified in
-------- -------
paragraph (f)(ii), (f)(iii) or (g) of Section 9.01 or in the event of an actual
----------------- -------- --- ------------
or deemed entry of an order for relief with respect to the Company or any of its
Subsidiaries under any bankruptcy, insolvency or other similar law now or
hereafter in effect, the Commitments shall automatically terminate and the
unpaid principal amount of all outstanding Loans and all interest accrued
thereon and all other Obligations shall automatically become due and payable
without further action of the Agent or any Lender.
ARTICLE X
THE AGENT
---------
10.01 Appointment. Each Lender hereby irrevocably appoints,
-----------
designates and authorizes the Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the Agent
shall not have any duties or responsibilities except those expressly set forth
herein or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Agent.
10.02 Delegation of Duties. The Agent may execute any of its duties
--------------------
under this Agreement or any other Loan Document by or through its employees,
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.
10.03 Liability of Agent. Neither the Agent nor any of its
------------------
directors, officers, employees, agents, attorneys-in-fact or Affiliates shall be
(a) liable for any action taken or omitted to
-46-
be taken by any of them under or in connection with this Agreement or any other
Loan Document (except for its own gross negligence or willful misconduct) or (b)
responsible in any manner to any of the Lenders for any recital, statement,
representation or warranty made by the Company or any of its officers contained
in this Agreement or by any Loan Party or any officer of any thereof in any
other Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in connection
with, this Agreement or any other Loan Document or for the value of any
collateral or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or for any failure of
the Company or any other Loan Party to perform its obligations hereunder or
thereunder. The Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document or to inspect the properties, books or records of the Company or any of
its Subsidiaries.
10.04 Reliance by Agent. (a) The Agent shall be entitled to rely,
-----------------
and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon any advice and statements of legal counsel (including counsel to the
Company), independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. Except to the extent expressly
provided in Section 11.02, the Agent shall in all cases be fully protected in
-------------
acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or the consent of the Required Lenders and
such request or consent and any action taken or failure to act pursuant thereto
shall be binding upon all the Lenders and all future holders of the Loans or any
portion thereof.
(b) For purposes of determining compliance with the conditions
specified in Sections 6.01 and 6.02, each Lender shall be deemed to have
----------------------
consented to, approved or accepted or to be satisfied with each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to the Lenders unless an officer of the Agent responsible for
the transactions contemplated by the Loan Documents shall have received notice
from such Lender prior to the initial Borrowing specifying its objection thereto
and either such objection shall not have been withdrawn by notice to the Agent
to that effect or such Lender shall not have made available to the Agent such
Lender's Commitment Percentage of such Borrowing.
10.05 Notice of Default. The Agent shall not be deemed to have
-----------------
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees payable
to the Agent for the account of the Lenders, unless the Agent shall have
received notice from a Lender or the Company referring to this Agreement or any
other Loan Document, describing such Default or Event of Default and stating
that such notice is a "notice of default". In the event that the Agent receives
such a notice, the Agent shall give notice thereof to the Lenders. The Agent
shall take such action with respect to such Default or Event of Default as shall
be requested by the Required Lenders in accordance with Article IX; provided,
---------- --------
however, that
-------
-47-
unless and until the Agent shall have received any such request from the
Required Lenders, the Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
10.06 Credit Decision. Each Lender expressly acknowledges that
---------------
neither the Agent nor any of its Affiliates nor any director, officer, employee,
agent or attorney-in-fact of any of them has made any representation or warranty
to it and that no act by the Agent hereinafter taken, including any review of
the affairs of the Company and its Subsidiaries, shall be deemed to constitute
any representation or warranty by the Agent to any Lender. Each Lender
represents to the Agent that it has, independently and without reliance upon the
Agent and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
properties, operations or condition, financial or otherwise, and
creditworthiness of the Company and its Subsidiaries and made its own decision
to enter into this Agreement and extend credit to the Company hereunder. Each
Lender also represents that it will, independently and without reliance upon the
Agent and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Agreement, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, properties, operations or condition, financial or otherwise, and
creditworthiness of the Company and its Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, properties, operations or condition, financial or otherwise, and
creditworthiness of the Company and its Subsidiaries which may come into the
possession of the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
10.07 Indemnification. The Lenders agree to indemnify the Agent (to
---------------
the extent not reimbursed by or on behalf of the Company and without limiting
the obligation of the Company to do so), ratably according to the respective
amounts of their outstanding Loans, or, if no Loans are outstanding, their
Commitments, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and disbursements
of any kind whatsoever which may at any time (including at any time after the
repayment of the Loans and all other Obligations) be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of this
Agreement or any other Loan Document or any document contemplated by or referred
to herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Agent under or in connection with any of the
foregoing; provided, however, that no Lender shall be liable for the payment to
-------- -------
the Agent of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
solely from the Agent's gross negligence or willful misconduct. Without
limiting the generality of the foregoing, each Lender agrees to reimburse the
Agent promptly upon demand for its ratable share of any out-of-pocket expenses
and reasonable fees of counsel (including the allocated cost of in-house
counsel) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiation, legal proceedings or otherwise) of, or legal advice in
respect of its or the Lenders' rights or responsibilities under, this Agreement,
any other Loan Document or any document contemplated by or referred to herein to
the extent that the Agent is not reimbursed for such expenses by or on behalf of
the Company.
-48-
10.08 Agent in Individual Capacity. MSSF and its Affiliates may make
----------------------------
loans to, issue, amend, renew (or participate in) letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory or other business with
the Company and its Subsidiaries and their respective Affiliates as though MSSF
were not the Agent hereunder. With respect to its Loans, MSSF shall have the
same rights and powers under this Agreement as any Lender and may exercise the
same as though it were not the Agent, and the terms "Lender" and "Lenders" shall
------ -------
include MSSF in its individual capacity.
10.09 Successor Agent. The Agent may resign at any time by giving
---------------
written notice thereof to the Lenders and the Company and may be removed at any
time with or without cause by the Required Lenders. Upon any such resignation
or removal, the Required Lenders shall have the right to appoint a successor
Agent which shall be a commercial bank or other financial institution organized,
chartered or licensed under the laws of the United States of America or of any
State thereof having combined capital and surplus of at least $500,000,000. If
no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment within 30 days after the notice of
resignation or the removal of the retiring Agent, then the retiring Agent may,
on behalf of the Lenders, with the consent of the Company which consent shall
not be unreasonably withheld or delayed, appoint a successor Agent, which shall
be a commercial bank or other financial institution organized or chartered under
the laws of the United States of America or of any State thereof having a
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its future duties and obligations under this Agreement and the other Loan
Documents. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article X and Sections 11.04 and 11.05 shall inure to its
--------- -------------- -----
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement and the other Loan Documents.
10.10 The Arranger. The Arranger, in its capacity as such, shall
------------
have no right, power, obligation, liability, responsibility or duty under this
Agreement other than the right to indemnity under Section 11.05.
-------------
ARTICLE XI
MISCELLANEOUS
-------------
11.01 Notices, Etc. All notices, requests and other communications
------------
provided to any party under this Agreement shall, except as otherwise expressly
specified herein, be in writing (including by facsimile) and mailed by overnight
delivery, transmitted by facsimile or delivered: if to the Company, to its
address specified on the signature pages hereof; if to any Lender, to its
Domestic Lending Office specified opposite its name in Schedule 1.01(b); and, if
----------------
to the Agent, to its address specified on the signature pages hereof; or, as to
the Company or the Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Company and the Agent. All such notices and communications shall be
effective, if transmitted by facsimile, when transmitted, or, if mailed by
overnight delivery or delivered, upon delivery, except that (a) notices and
-49-
facsimile communications to the Agent pursuant to Article II or X shall not be
---------- -
effective until received by the Agent and (b) any notice by facsimile to the
Agent must be confirmed by telephone or mail.
11.02 Amendments, Etc. No amendment or waiver of any provision of
---------------
this Agreement or of any other Loan Document, and no consent to any departure by
the Company or any other Loan Party herefrom or therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Required Lenders
and, in the case of amendments, the Company, and then any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that
-------- -------
(a) no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders and, in the case of amendments, the Company, do
any of the following:
(i) increase the Commitments of the Lenders (other than by
assignment); provided, however, that any Lender may increase its own
-------- -------
Commitment without the consent of the other Lenders;
(ii) reduce the principal of, or interest (other than under
Section 2.09) on, the Loans or reduce the amount of any fees payable
-------------
hereunder
(iii) postpone any date fixed for any payment of principal of,
or interest on, the Loans or any fees payable hereunder;
(iv) modify any requirement hereunder that any particular
action be taken by all of the Lenders or by the Required Lenders or
change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Loans which shall be required for the Lenders
or any of them to take any action hereunder;
(v) terminate the Subsidiary Guaranty;
(vi) amend or waive the provisions of Section 6.01 or 6.02; or
--------------------
(vii) amend this Section 11.02;
-------------
(b) no amendment, waiver or consent which affects the rights or
duties of the Agent under this Agreement or any other Loan Document shall
become effective unless signed by the Agent in addition to the Lenders
required above to take such action; and
11.03 No Waiver; Remedies. No failure on the part of any Lender or
-------------------
the Agent to exercise, and no delay in exercising, any right, remedy, power or
privilege hereunder or under any other Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, remedy,
power or privilege preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
11.04 Costs and Expenses. The Company agrees to pay on demand:
------------------
-50-
(a) all out-of-pocket costs and expenses incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents and any other document to
be delivered hereunder or thereunder or in connection with the transactions
contemplated hereby or thereby, including the out-of-pocket expenses and
reasonable fees of counsel for the Agent (including local counsel which may
be retained by the Agent and the allocated cost of in-house counsel) with
respect thereto and with respect to advising the Agent as to its rights and
responsibilities under the Loan Documents;
(b) all out-of-pocket costs and expenses incurred by the Agent or
any Lender in connection with the preservation of any rights under any Loan
Document or in connection with any restructuring or "work-out" of any of
the Obligations (whether through negotiations, legal proceedings or
otherwise), including the out-of-pocket expenses and reasonable fees of
counsel for the Agent (including the allocated cost of in-house counsel);
(c) all out-of-pocket costs and expenses incurred by the Agent or
any Lender in connection with the enforcement of any of the Obligations,
including the out-of-pocket expenses and reasonable fees of counsel for the
Agent or such Lender (including the allocated cost of in-house counsel);
(d) all out-of-pocket costs and expenses incurred by the Agent in
connection with due diligence, transportation, use of computers,
duplication, search reports and all filing and recording fees; and
(e) to each Lender being replaced pursuant to Section 4.09, the
------------
reasonable out-of-pocket expenses and reasonable fees of counsel (including
the allocated cost of in-house counsel) not exceeding $5,000 in connection
with such replacement.
11.05 Indemnity. (a) The Company agrees to indemnify and hold
---------
harmless the Agent, the Arranger and each Lender and each of their Affiliates
and all directors, officers, employees, agents and advisors of all of the
foregoing (each, an "Indemnified Party") from and against any and all claims,
-----------------
actions, proceedings, suits, damages, losses, liabilities, costs, expenses and
disbursements, including the out-of-pocket expenses and reasonable fees of
counsel (including the allocated cost of in-house counsel) which may be incurred
by or asserted against any Indemnified Party as a result of any investigation,
litigation, suit, action or proceeding (regardless of whether an Indemnified
Party is a party thereto) arising out of, relating to, or in connection with
this Agreement, any other Loan Document or any transaction or proposed
transaction (whether or not consummated) financed or to be financed, in whole or
in part, directly or indirectly, with the proceeds of any Loan (other than costs
of the type covered by Section 11.04) or any other transaction contemplated
-------------
hereby; except to the extent such claim, damage, loss, liability, cost or
expense has resulted primarily from such Indemnified Party's gross negligence or
willful misconduct as determined by a final judgment of a court of competent
jurisdiction. Notwithstanding any other provision contained in this Agreement,
this indemnity shall not be limited in any way by the passage of time or the
occurrence of any event.
(b) The Agent, the Arranger and each Lender agree that in the event
that any investigation, litigation, suit, action or proceeding is asserted or
threatened in writing or instituted against it or any other Indemnified Party,
or any remedial, removal or response action is requested of it or any other
Indemnified Party, for which the Agent, the Arranger or any Lender may desire
-51-
indemnity or defense hereunder, the Agent, the Arranger or such Lender shall
promptly notify the Company thereof in writing and agree, to the extent
appropriate, to consult with the Company with a view to minimizing the cost to
the Company of its obligations under this Section 11.05. The Company will not
-----
be required to pay the fees and expenses of more than one counsel for the
Indemnified Parties unless the employment of separate counsel has been
authorized by the Company, or unless any Indemnified Party reasonably concludes
that there may be defenses available to it which are not available to the other
Indemnified Parties or that there is a conflict between its interests and those
of the other Indemnified Parties.
(c) No action taken by legal counsel chosen by the Agent, the
Arranger or any Lender in defending against any such investigation, litigation,
suit, action or proceeding or requested remedial, removal or response action
shall vitiate or in any way impair the obligations and duties of the Company
hereunder to indemnify and hold harmless each Indemnified Party; provided,
--------
however, that if the Company is required to indemnify any Indemnified Party
-------
pursuant hereto, neither the Agent nor the Arranger nor any Lender will settle
or compromise any such investigation, litigation, suit, action or proceeding
without the prior written consent of the Company (which consent shall not be
unreasonably withheld or delayed) so long as the Company has provided evidence
reasonably satisfactory to the Agent, the Arranger or such Lender that the
Company and its Subsidiaries on a consolidated basis do not at such time have a
negative Net Worth.
11.06 Right of Set-off. Upon the occurrence and during the
----------------
continuation of any Event of Default, each Lender is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits in whatever currency (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of the Company
against any and all of the Obligations, whether or not such Lender shall have
made any demand under this Agreement. Each Lender agrees promptly to notify the
Company after any such set-off and application made by such Lender; provided,
--------
however, that the failure to give such notice shall not affect the validity of
-------
such set-off and application. The rights of each Lender under this Section
-------
11.06 are in addition to any other right or remedy (including any other right of
-----
set-off) which such Lender may have under applicable law or under any Loan
Document.
11.07 Binding Effect. This Agreement shall become effective when a
--------------
counterpart hereof shall have been executed by the Agent and counterparts hereof
executed by the Company and each Lender shall have been received by the Agent
and notice thereof shall have been given by the Agent to the other parties
hereto and thereafter shall be binding upon and inure to the benefit of the
Company, the Agent and each Lender and their respective successors and assigns;
provided, however, that (a) except as permitted under clause (b)(ii) of Section
----------------- -------------- -------
8.03, the Company may not assign or transfer its rights or obligations hereunder
----
without the prior written consent of all the Lenders and (b) the rights of
assignment and transfer of the rights and obligations of the Lenders hereunder
are subject to the provisions of Section 11.08.
-------------
11.08 Assignments, Participations, Etc. (a) (i) After July 31,
---------------------------------
1999, any Lender may with the prior consent of the Company (which will not be
unreasonably withheld, although no such consent shall be required if an Event of
Default has occurred and is continuing) at any time assign to one or more
commercial banks or other financial institutions all or any fraction of its
Commitment (if
-52-
not theretofore terminated) and outstanding Loans (on a ratable basis) in a
minimum amount of $25,000,000 and in multiples of $1,000,000 in excess thereof
or, if its Commitment or outstanding Loans is less than
$25,000,000, in the amount of its Commitment or its outstanding Loans.
(ii) Any Lender may without the prior consent of the Company assign
to another Lender all or any fraction of its Commitment (if not theretofore
terminated) and outstanding Loans (on a ratable basis) in a minimum amount of
$5,000,000 and in multiples of $1,000,000 in excess thereof or, if the
Commitment or outstanding Loans is less than $5,000,000, in the amount of its
Commitment or its outstanding Loans.
(iii) Any Lender may at any time assign all or any portion of its
rights under this Agreement and any note issued pursuant to Section 2.03 to a
------------
Federal Reserve Bank; provided, however, that no such assignment shall release
-------- --------
any Lender from its obligations hereunder.
(iv) Any Lender, if so requested by the Company under Section 4.09,
------------
shall assign to another bank or other financial institution its entire
Commitment and all outstanding Loans.
(b) No assignment shall become effective, and the Company and the
Agent shall be entitled to continue to deal solely and directly with each Lender
in connection with the interests so assigned by such Lender to an Assignee,
until (i) written notice of such assignment, together with an agreement to be
bound, payment instructions, addresses and related information with respect to
such Assignee, shall have been given to the Company and the Agent by such Lender
and such Assignee, in substantially the form of Exhibit 11.08 (a "Notice of
------------- ---------
Assignment"), and such Lender and such Assignee shall have executed in
----------
connection therewith an Assignment and Assumption Agreement substantially in the
form of Attachment A to such Notice of Assignment, (ii) a processing fee in the
------------
amount of $3,500 (provided, however, that in case of an assignment by a Lender
-------- -------
to another Lender, such fee shall be in the amount of $1,000 and, in the case of
an assignment by a Lender to one of its Affiliates, no processing fee shall be
payable) shall have been paid to the Agent by the assignor Lender or the
Assignee, and (iii) either (A) five Business Days shall have elapsed after
receipt by the Agent of the items referred to in clauses (i) and (ii) or (B) if
----------- ---- ---
earlier, the Agent has notified the assignor Lender and the Assignee of its
receipt of the items mentioned in clauses (i) and (ii) and that it has
----------- ----
acknowledged the assignment by countersigning the Notice of Assignment.
(c) From and after the effective date of any assignment hereunder,
(i) the Assignee thereunder shall be deemed automatically to have become a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to such Assignee by the assignor Lender, shall have the rights and
obligations of a Lender hereunder and under each other Loan Document, and (ii)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned by it to the Assignee, shall be released from its future
obligations hereunder and under each other Loan Document.
(d) Any Lender may at any time sell to one or more financial
institutions or other Persons (each of such Persons being herein called a
"Participant") participating interests in any of the Loans, its Commitment or
-----------
other interests of such Lender hereunder; provided, however, that
-----------------
(i) no participation contemplated in this Section 11.08(d) shall
----------------
relieve such Lender from its Commitment or its other obligations hereunder
or under any other Loan Document;
-53-
(ii) such Lender shall remain solely responsible for the performance
of its Commitment and such other obligations;
(iii) the Company 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 and each other Loan Document; and
(iv) no Participant, unless such Participant is an Affiliate of such
Lender, shall be entitled to require such Lender to take or refrain from
taking any action hereunder or under any other Loan Document, except that
such Lender may agree with any Participant that such Lender will not,
without such Participant's consent, take any action of the type described
in the Section 11.02.
-------------
The Company acknowledges and agrees that each Participant, for
purposes of Section 3.05, 3.06, 4.02, 4.03, 4.05, 4.06 or 11.06, shall be
------------------------------------------ -----
considered a Lender; provided, however, that for purposes of Sections 3.05,
-------- ------- --------------
4.02, 4.03, 4.05 and 4.06, no Participant shall be entitled to receive any
---------------- ----
payment or compensation in excess of that to which such Participant's selling
Lender would have been entitled with respect to the amount of such Participant's
participation interest if such Lender had not sold such participation interest.
11.09 Confidentiality. Each Lender agrees that all nonpublic
---------------
information provided to it by the Company or by the Agent on behalf of the
Company in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby or thereby will be held and treated by such
Lender, its agents, directors, Affiliates, officers and employees in confidence
and further agrees and undertakes that neither it nor any of its Affiliates
shall use any such information for any purpose or in any manner other than
pursuant to the terms contemplated by this Agreement or relating to other
business transactions between the Company and such Lender. Any Lender may
disclose such information (a) at the request of any bank or other governmental
regulatory authority or in connection with an examination of such Lender by any
such authority or examiner; (b) pursuant to subpoena or other court process; (c)
when required to do so in accordance with the provisions of any applicable law;
(d) at the written request or the express direction of any other agency of any
State of the United States of America or of any other jurisdiction in which such
Lender conducts its business; and (e) to such Lender's independent auditors,
counsel and other professional advisors. Notwithstanding the foregoing, the
Company authorizes each Lender to disclose to any Participant or Assignee and
any prospective Participant or Assignee such financial and other information in
such Lender's possession concerning the Company or its Subsidiaries which has
been delivered to the Lenders pursuant to this Agreement or any other Loan
Document or which has been delivered to the Lenders by the Company in connection
with the Lenders' credit evaluation of the Company and its Subsidiaries prior to
entering into this Agreement; provided that such Participant or Assignee or
prospective Participant or Assignee agrees in writing to such Lender to keep
such information confidential to the same extent as required of the Lenders
hereunder.
11.10 Survival. The obligations of the Company under Sections 3.05,
-------- --------------
4.02, 4.03, 4.05, 4.06, 11.04 and 11.05, and the obligations of the Lenders
----------------------------- -----
under Sections 3.05(j) and 10.07, shall in each case survive the repayment of
---------------- -----
the Loans and all other Obligations and the termination of this Agreement and
the Commitments; provided, however, that no request for reimbursement pursuant
-------- -------
to
-54-
such Sections (other than Sections 11.04(b) and (c) and 11.05) may be made
----------------- --- -----
more than six months after the termination of this Agreement and the Commitments
and the repayment of all Loans and all other Obligations. The representations
and warranties made by the Company in this Agreement and by each Loan Party in
each other Loan Document shall survive the execution and delivery of this
Agreement and such other Loan Document.
11.11 Severability. Any provision of this Agreement or any other
------------
Loan Document 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 of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
11.12 Headings. The various headings of this Agreement are inserted
--------
for convenience only and shall not affect the meaning or interpretation of this
Agreement or any provisions hereof.
11.13 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.14 Execution in Counterparts. This Agreement may be executed in
-------------------------
any number of counterparts and by different parties hereto on separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
11.15 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
----------------
EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG THE COMPANY, THE LENDERS AND
THE AGENT AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS AND
UNDERSTANDINGS OF SUCH PERSONS, VERBAL OR WRITTEN, RELATING TO THE SUBJECT
MATTER HEREOF EXCEPT FOR THE FEE LETTER AND ANY PRIOR ARRANGEMENTS MADE WITH
RESPECT TO THE PAYMENT BY THE COMPANY OF (OR ANY INDEMNIFICATION FOR) ANY FEES,
COSTS OR EXPENSES PAYABLE TO OR INCURRED (OR TO BE INCURRED) BY OR ON BEHALF OF
THE AGENT OR THE LENDERS.
11.16 WAIVER OF JURY TRIAL. EACH OF THE AGENT, THE LENDERS AND THE
--------------------
COMPANY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDERS ENTERING
INTO THIS AGREEMENT.
* * *
-55-
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.
GEORGIA-PACIFIC CORPORATION
By_____________________________
Name:
Title:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Vice President and Treasurer
Facsimile No.: (000) 000-0000
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
Individually and as Agent, Lead Arranger and Book
Manager
By_____________________________
Name:
Title:
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx XxXxxxxxxx
Facsimile No.: (000) 000-0000
-56-
SCHEDULE 1.01(a)
----------------
COMMITMENTS
-----------
Lender Commitment Commitment Percentage
------ ---------- ---------------------
Xxxxxx Xxxxxxx Senior Funding, Inc. $1,000,000,000 100%
SCHEDULE 1.01(b)
----------------
LENDING OFFICES
---------------
Lender Domestic Lending Office Eurodollar Lending Office
------ ----------------------- -------------------------
Xxxxxx Xxxxxxx Senior 0000 Xxxxxxxx 0000 Xxxxxxxx
Funding Inc. Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx Attention: Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Exhibit 2.02
to Credit Agreement
FORM OF NOTICE OF BORROWING
Xxxxxx Xxxxxxx Senior Funding, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Re: Georgia-Pacific Corporation Credit Agreement
dated as of June 30, 1999
--------------------------------------------
Ladies and Gentlemen:
This Notice of Borrowing is delivered to you pursuant to Section
-------
2.02(a) of the Credit Agreement, dated as of June 30, 1999 (together with all
-------
amendments, if any, from time to time made thereto, the "Credit Agreement"),
----------------
among GEORGIA-PACIFIC CORPORATION, a Georgia corporation (the "Company"), the
-------
Lenders party thereto, and XXXXXX XXXXXXX SENIOR FUNDING, INC., as agent (the
"Agent"), and as Lead Arranger and Book Manager. Unless otherwise defined
------
herein or the context otherwise requires, terms used herein have the meanings
provided in the Credit Agreement.
The Company hereby requests that a Borrowing of Loans be made in
the aggregate principal amount of $________________ on ______________, 1999
comprised of [Eurodollar Loans having an Interest Period of_________________
months] [Reference Rate Loans].
The Company hereby certifies and warrants that on the date the
Borrowing requested hereby is made (both before and after giving effect to the
making of the Borrowing and after giving effect to the application, directly or
indirectly, of the proceeds thereof):
(a) the representations and warranties contained in Article V of
---------
the Credit Agreement are true and correct on and as of such date as though
made on and as of such date (except for representations and warranties
relating solely to a particular point in time, which shall be true and
correct as of such point in time);
(b) no Default or Event of Default has occurred and is
continuing; and
(c) the proceeds of the Borrowing hereby requested are being or
will be used in accordance with Section 7.01 of the Credit Agreement.
------------
The Company agrees that if prior to the time of the Borrowing
requested hereby any matter certified to herein by it will not be true and
correct at such time as if then made, it will
Exhibit 2.02
Page 2
immediately so notify the Agent. Except to the extent, if any, that prior to the
time of the Borrowing requested hereby the Agent shall receive written notice to
the contrary from the Company, each matter certified to herein shall be deemed
once again to be certified as true and correct at the date of such Borrowing as
if then made.
Please wire transfer the proceeds of the Borrowing requested hereby to
the accounts of the following Persons at the financial institutions indicated
respectively:
Amount to be Person to be Paid Name, Address, Etc.
-----------------
Transferred Name Account No. of Transferee
----------- ---- ----------- -------------
$____________ ___________ ________ _________________________________
_________________________________
Attention:_______________________
$____________ ___________ ________ _________________________________
_________________________________
Attention:_______________________
$____________ ___________ ________ _________________________________
_________________________________
Attention:_______________________
Balance of
such Proceeds: The Company _____________ _________________________________
Attention:_______________________
The Company has caused this Notice of Borrowing to be executed and
delivered, and the certification and warranties contained herein to be made, by
its duly authorized officer this day of ____________________, 1999.
GEORGIA-PACIFIC CORPORATION
By:__________________________________________
Title:_______________________________________
