CREDIT AGREEMENT (Senior Capital Markets Bridge Facility) among GEORGIA-PACIFIC CORPORATION, THE LENDERS NAMED HEREIN, BANK OF AMERICA, N.A., as Administrative Agent, and BANC OF AMERICA SECURITIES LLC and GOLDMAN SACHS CREDIT PARTNERS L.P., as...
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EXHIBIT 10.1
EXECUTION COPY
(Senior Capital Markets Bridge Facility)
among
GEORGIA-PACIFIC CORPORATION,
THE LENDERS NAMED HEREIN,
BANK OF AMERICA, N.A.,
as Administrative Agent,
and
BANC OF AMERICA SECURITIES LLC
and
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as Co-Syndication Agents
and
as Joint Lead Arrangers and Book Managers
$650,000,000
Dated as of August 16, 2002
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SCHEDULES
Schedule |
Description | |
1.01(A) |
||
1.01(B) |
||
5.02(d) |
||
5.07 |
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5.12 |
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5.13 |
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5.14 |
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8.01 |
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11.02 |
EXHIBITS
Exhibit |
Description | |
2.02(a) |
Form of Notice of Borrowing | |
2.03(b) |
Form of Promissory Note | |
2.09(b) |
Form of Notice of Conversion/Continuation | |
6.01(c) |
Form of Subsidiary Guaranty | |
6.01(d) |
Form of Opinion of Counsel for the Company | |
6.01(e) |
Form of Contribution Agreement | |
6.02(d) |
Form of Officer’s Closing Certificate | |
7.09(c) |
Form of Compliance Certificate | |
7.13(a) |
Form of Supplement | |
11.08(b) |
Form of Assignment and Assumption Agreement |
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(Senior
Capital Markets Bridge Facility)
This CREDIT AGREEMENT (Senior Capital Markets Bridge Facility) is dated and
entered into as of August 16, 2002, among GEORGIA-PACIFIC CORPORATION, a Georgia corporation (the “Company”), the various LENDERS that are, or may from time to time become, party hereto (the “Lenders”) and BANK OF
AMERICA, N.A., as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), and BANC OF AMERICA SECURITIES LLC and XXXXXXX SACHS CREDIT PARTNERS L.P., as Co-Syndication Agents.
WHEREAS, the Company, certain lenders and the Administrative Agent are party to the Credit Agreement, dated as of November 3, 2000,
as amended (the “2000 Bridge Credit Agreement”);
WHEREAS, the Company desires to enter into a
new credit facility and, as a condition precedent to borrowing any loans under this new credit facility, intends to repay all loans and other amounts outstanding and owing under the 2000 Bridge Credit Agreement with the proceeds of loans to be made
under this new credit facility, and terminate the commitments under the 2000 Bridge Credit Agreement; and
WHEREAS, the Company has obtained commitments from the Lenders, pursuant to which the Lenders are willing to make loans to the Company in a maximum aggregate principal amount not to exceed $650,000,000, on the terms and subject to
the conditions set forth herein;
NOW THEREFORE, the parties hereto agree as follows:
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms. As used in this Agreement and in any 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):
“Adjusted
Net Worth” means, at any date, an amount equal to the sum of (a) the Net Worth at such date plus (b) the Goodwill Amount, if any.
“Affiliate” means, with respect to any Person, any Subsidiary of such 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
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(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.
“Administrative Agent” means Bank of America in its capacity as administrative agent for the Lenders under any of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set
forth on Schedule 11.02 or such other address as the Administrative Agent may from time to time specify.
“Agent-Related Persons” means, collectively, the Administrative Agent, the Arrangers and the Co-Syndication Agents, together with their respective Affiliates (other than any such Affiliate acting in its capacity as a
Lender), and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.
“Aggregate Commitments” means the aggregate amount of the Commitments of all the Lenders as in effect from time to time.
“Agreement” means this Credit Agreement, as amended from time to time in accordance with the terms hereof.
“Alternate Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs
and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take
effect at the opening of business on the day specified in the public announcement of such change.
“Alternate Base Rate Loan” means any Loan that bears interest at a rate determined with reference to the Alternate Base Rate.
“Applicable Margin” shall mean as follows:
(a) in the case of Offshore Rate Loans:
(i) for the period from and including the date of the initial extension of credit by the Lenders hereunder to but excluding December 16, 2002, 3.00% per annum;
(ii) for the period from and including December 16, 2002 to but excluding February 16, 2003, 4.00% per annum; and
(iii) from and including February 16, 2003, and thereafter, 5.00% per annum; and
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(b) in the case of Alternate Base Rate
Loans:
(i) for the period from and including the date of the date of the initial
extension of credit by the Lenders hereunder to but excluding December 16, 2002, 2.00% per annum;
(ii) for the period from and including December 16, 2002 to but excluding February 16, 2003, 3.00% per annum; and
(iii) from and including February 16, 2003, and thereafter, 4.00% per annum.
“Approved Fund” has the meaning specified in Section 11.07(g).
“Arrangers” means, collectively, Banc of America Securities LLC and Xxxxxxx Xxxxx Credit Partners L.P. in their respective capacities as joint lead arrangers and book managers.
“Asset Disposition” has the meaning specified in Section 2.06(b).
“Asset Sales” means any sale or disposition of assets or series of related sales or dispositions of assets by the Company
or any Subsidiary (other than the sale of inventory in the ordinary course of business).
“Assignee” means any Person which becomes a party to this Agreement pursuant to Section 11.08.
“Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit 11.07(b).
“Attorney Costs” means and includes all reasonable fees, expenses and disbursements of any law firm or other external counsel legal services, and, without duplication, the allocated
cost of internal legal services and all expenses and disbursements of internal counsel.
“Bank of
America” means Bank of America, N.A., a national banking association, and its successors by merger and permitted assigns.
“Borrowing” means an extension of credit hereunder consisting of Loans of the same type made pursuant to Section 2.01 by the Lenders ratably according to their respective Commitment Percentages.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial
banks in New York City, New York or San Francisco, California are authorized or required by law to close, and if the applicable Business Day relates to any Offshore Rate Loan, any such day on which dealings are carried on in the London interbank
market.
“CERCLA” means the Comprehensive Environmental Response Compensation and Liability Act
of 1980.
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“CERCLIS” means the Comprehensive Environmental Response
Compensation Liability Information System List.
“Closing Date” means August 16, 2002.
“Code” means the Internal Revenue Code of 1986.
“Commitment” means for each Lender, as the context may require, (a) the amount set forth on Schedule 1.01(A)
opposite the name of such Lender under the heading “Commitments” or as otherwise set forth in any Assignment and Assumption, as such amount may be reduced as a result of one or more Assignments and Assumptions pursuant to Section
11.07; or (b) the obligation of such Lender to extend credit to the Company hereunder in the amount specified in the immediately preceding clause (a).
“Commitment Letter” means the commitment letter agreement, dated August 13, 2002, between the Company, Bank of America, Banc of America Securities LLC and Xxxxxxx Sachs Credit Partners
L.P., as amended, regarding the senior capital markets credit facility evidenced by this Agreement.
“Commitment Percentage” means, as to any Lender at any time, the percentage of the Aggregate Commitments represented by such Lender’s Commitment at such time, as set forth on Schedule 1.01(A), as such
percentage may be modified from time to time in accordance with one or more Assignments and Assumptions delivered hereunder pursuant to Section 11.07.
“Company” has the meaning specified in the introduction to this Agreement.
“Compliance Certificate” has the meaning specified in Section 7.09(c).
“Continuation” and “Continue” mean, with respect to any Offshore Rate Loan, the continuation of such Offshore Rate Loan as an Offshore Rate Loan on the last day of the Interest Period for
such Loan.
“Contractual Obligation” means, with respect to any Person, any 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.
“Contribution Agreement (Senior Capital Markets Bridge Facility)” means the Contribution Agreement (Senior Capital
Markets Bridge Facility), dated as of the date hereof, between the Company and each of its Subsidiaries now or hereafter parties to the Subsidiary Guaranty (Senior Capital Markets Bridge Facility), as amended from time to time and as supplemented
from time to time by a supplement in the form of Exhibit 7.13(a) and executed and delivered by a Subsidiary of the Company party thereto.
“Controlled Group” means all members of a controlled group of 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.
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“Conversion” and “Convert” mean, with respect
to any Loan, the conversion of such Loan from or into another type of Loan.
“Co-Syndication
Agents” means, collectively, Banc of America Securities LLC and Xxxxxxx Xxxxx Capital Partners L.P. in their respective capacities as co-syndication agents.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Debt Rating” means, on any date, the rating of the Company’s senior unsecured long-term
Indebtedness, as most recently publicly announced by Xxxxx’x and S&P.
“Default” means
any event or condition which, with the giving of notice or the lapse of time, or both, would become an Event of Default.
“Defaulting Lender” means any Lender that has failed to fund any portion of the Loans, required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.
“Default Rate”
has the meaning specified in Section 2.08.
“Dollar” and “$” mean lawful
money of the United States of America.
“EBITDA” means, as of the end of any Measurement Period,
the sum of the following, calculated for the Company and its Subsidiaries on a consolidated basis: (a) net income (or net loss) for such period, plus (b) all amounts treated as expenses for depreciation, interest and the non-cash amortization
of intangibles of any kind to the extent included in the determination of such net income (or loss), plus (c) cost of timber sold by North American Timber Corp. (as long as consolidated with the Company and to the extent it represents
depletion) to the extent included in the determination of such net income (or loss), plus (d) all accrued taxes on or measured by income to the extent included in the determination of such net income (or loss); provided,
however, that net income (or loss) shall be computed for these purposes without giving effect to extraordinary cash gains or non-recurring, non-cash items.
“Effective Amount” means with respect to any Loans on any date the aggregate outstanding principal amount thereof after giving effect to any Borrowing and
prepayments or repayments of Loans occurring on such date.
“Eligible Assignee” has the meaning
specified in Section 11.07(g).
“Environmental Laws” means any and all Federal, state,
local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, licenses, agreements or
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governmental restrictions relating to pollution and the protection of the environment or the release of
any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of
the Company, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal
of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is
assumed or imposed with respect to any of the foregoing.
“ERISA” means the Employee Retirement
Income Security Act of 1974, together with the regulations thereunder.
“Eurocurrency
Liabilities” has the meaning assigned to that term in Regulation D of the Federal Reserve Board, as in effect from time to time.
“Event of Default” has the meaning specified in Section 9.01.
“Existing Multi-Year Revolver” means the Credit Agreement (Multi-Year Revolving Credit Facility), dated as of November 3, 2000, as amended from time to time, among the Company, the lenders parties thereto, Xxxxxxx
Xxxxx Capital Corporation and Xxxxxx Xxxxxxx Senior Funding, Inc., as co-syndication agents, and Bank of America, as the administrative agent for such lenders.
“Federal Funds Rate” means, for any day, the rate set forth in the 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 (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 Reserve Bank of New York (including any such successor, the “Composite 3:30
p.m. Quotations”) for such day under the caption “Federal Funds Effective Rate”.
“Federal
Reserve Board” means the Board of Governors of the Federal Reserve System.
“Fee Letter”
means the fee letter agreement, dated August 13, 2002, between the Company, Bank of America, Banc of America Securities LLC and Xxxxxxx Sachs Credit Partners L.P. regarding the payment of certain fees.
“Form W-8” has the meaning specified in Section 3.04(g)(i)(A).
“Form W-BEN” has the meaning specified in Section 3.04(g)(i)(B).
“Form W-8ECI” has the meaning specified in Section 3.04(g)(i)(A).
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“Fund” has the meaning specified in Section
11.07(g).
“Funded Indebtedness” means, for any day, the sum of (a) all Indebtedness
for Borrowed Money of the Company and its consolidated Subsidiaries outstanding on such day plus (b) the aggregate capital invested as of such day 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 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.
“Goodwill Amount” means, as of the date of determination of the Net Worth, if such Net Worth has been reduced as a result
of (a) any write-offs of goodwill attributable to any assets of the Company or any of its Subsidiaries or (b) any loss incurred by the Company or any of its Subsidiaries in connection with Asset Sales by the Company or any of its Subsidiaries that
is attributable to goodwill, an amount (but not to exceed $349,000,000 in the aggregate) equal to the sum of (without duplication) (i) the aggregate amount of such write-offs of goodwill attributable to such assets of the Company and its
Subsidiaries plus (ii) the aggregate amount of that portion of the loss of the value of the assets sold or disposed of in connection with such Asset Sales by the Company and its Subsidiaries that constitutes goodwill.
“Governmental Authority” means any nation or government, any federal, state, local or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
“Guarantors” means, collectively, the Subsidiaries of the Company that
are a party to the Subsidiary Guaranty (Senior Capital Markets Bridge Facility).
“Hazardous
Material” means:
(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 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) relating to or imposing liability or standards of conduct concerning any
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hazardous, toxic or dangerous waste, substance or material, all as amended or hereafter amended.
“Indebtedness” of any Person means, without duplication, the 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 financial statements referred to in Section 5.05(a).
“Indebtedness for Borrowed Money” of any Person means, without duplication,
(a) all indebtedness of such Person for borrowed money, excluding all indebtedness or obligations of the Company arising under the
Premium Equity Participating Security Units, whether or not treated as indebtedness under GAAP; provided, however, all indebtedness of the Company arising under the PEPS Senior Deferrable Notes shall be included in the definition of
“Indebtedness 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
(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 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).
“Indemnified Liabilities” has the meaning specified in Section 11.05(a).
“Interest Charges” means, for any period, for the Company and its Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, fees, charges and related expenses of the Company and its
Subsidiaries, determined on a consolidated basis, in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP,
and (b)
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the portion of rent expense of the Company and its Subsidiaries, determined on a consolidated basis,
with respect to such period under capital leases that is treated as interest in accordance with GAAP.
“Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) EBITDA for the Measurement Period ending on such date to (b) Interest Charges for the Measurement Period ending on such date.
“Interest Payment Date” means (a) with respect to any Offshore Rate Loan, the last day of each
Interest Period applicable to such Offshore Rate Loan, each date such Loan is repaid, prepaid, Continued or Converted, and the Maturity Date, 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 (b) with respect to any Alternate Base Rate, the last Business Day of each calendar quarter, each date such Alternate Base Rate Loan is Converted into an Offshore Rate Loan, and the Maturity Date.
“Interest Period” means, as to any Offshore Rate Loan, the period commencing on the Business Day
such Offshore Rate Loan is disbursed, Continued or Converted into such Offshore Rate 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:
(a) in the case of the Continuation of an Offshore
Rate Loan pursuant to Section 2.09, the Interest Period applicable after the Continuation of such 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 Offshore Rate Loan shall extend beyond the Maturity Date.
“Investments” means all investments, whether by purchase or other acquisition of stock or other
securities or equity interests, or indebtedness, or by loan, advance, transfer of property, capital contribution or otherwise.
“Investments in Unrestricted Subsidiaries” means Investments made by 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
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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.
“Laws” means, collectively, all international, foreign,
Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or
not having the force of law.
“Lender” has the meaning specified in the introduction to
this 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 offices of such Lender specified as its “Domestic Lending Office” or “Offshore Rate Lending Office”, as the case may be, opposite its name on
Schedule 11.02 or in the applicable Assignment and Assumption, or such other office or offices of such Lender as such Lender may from time to time specify to the Company and the Administrative Agent.
“Leverage Ratio” means, as of any date of determination, a quotient, expressed as a percentage, the numerator of which
shall be the aggregate amount of all Total Debt of the Company and its Subsidiaries on a consolidated basis as of such date and the denominator of which shall be the sum of (a) Adjusted Net Worth of the Company and its Subsidiaries on a consolidated
basis as of such date plus (b) the aggregate amount of all Total Debt of the Company and its Subsidiaries on a consolidated basis as of such date.
“Lien” means any mortgage, security interest, pledge or lien.
“Loan” means a loan by a Lender to the Company pursuant to Section 2.01 and may be in the form of a Offshore Rate Loan or a Alternate Base Rate Loan, each of which shall be a “type” of Loan.
“Loan Documents” means this Agreement, the Subsidiary Guaranty (Senior Capital Markets Bridge
Facility), the Contribution Agreement (Senior Capital Markets Bridge Facility), and any Note.
“Loan
Parties” means, collectively, the Company, the Guarantors and each other Person (other than the Administrative Agent, the Arrangers, the Co-Syndication Agents and the Lenders) who is a party to a Loan Document (each, a “Loan
Party”).
“Material Adverse Effect” means, with respect to any event, act, condition or
occurrence of whatever nature (including any adverse determination in any litigation, arbitration, or
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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 or (b) the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.
“Maturity Date” means August 16, 2003.
“Maximum Rate” has the meaning specified in Section 11.10.
“Measurement Period” means a period consisting of four consecutive fiscal quarters of the Company and ending on the last day of the most recently completed fiscal quarter of the Company.
“Moody’s” means Xxxxx’x Investors Services, Inc. or any successor to the rating agency business thereof.
“Net Proceeds” means the following:
(a) in respect of any Asset Sales by the Company or any of its Subsidiaries, the proceeds in cash received by the Company or any of
its Subsidiaries with respect to or on account of such Asset Sales, net of (i) the direct costs of such Asset Sales then payable by the recipient of such proceeds, (ii) sales, use, income and other taxes paid or payable by such recipient as a result
thereof, (iii) amounts required to be applied to repay principal, interest and prepayment premiums and penalties on Indebtedness secured by a Permitted Lien on the properties subject to such disposition, and (iv) without duplication in respect of
clause (iii) above, the amounts required to be applied to repay any indebtedness and prepayment penalties and fees, in connection with or with respect to the Unisource Receivables Transactions in the case of any sale or disposition of more than 50%
of the capital stock or other ownership interest of Unisource or Unisource Parent, as the case may be; and
(b) in respect of any issuance of debt or equity securities, or incurrence of debt for borrowed money, by the Company or any of its Subsidiaries, the proceeds in cash received by the Company or any of its
Subsidiaries, net of underwriting discounts and commissions or placement fees or investment banking fees paid to any of the Lenders (or their affiliates) and legal fees, accounting fees, and other reasonable and customary fees, commissions, expenses
and costs associated 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.
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“Net Worth” means, at any date, the excess of Total Assets at
such date over Total Liabilities at such date.
“Note” means a promissory note made by the
Company in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit 2.02(b).
“Notice of Borrowing” has the meaning specified in Section 2.02(a).
“Notice of Conversion/Continuation” has the meaning specified in Section 2.09.
“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 Administrative Agent, any
Affiliate of any Lender or the Administrative Agent or any Indemnified Party, of any kind or nature, present 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 and including interest and fees that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. The term “Obligations”
includes all interest, charges, expenses, fees, attorneys’ fees and disbursements 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.
“Offshore Rate” means for any Interest Period:
(a) the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or
(b) in the event the rate referenced in the preceding clause (a) does not appear on such page or service or such page or service shall cease to be available, the rate per annum
equal to the rate determined by the Administrative Agent to be the offered rate on such other page or other service that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, or
(c) in the event the rates referenced in the preceding clauses (a) and (b) are not available, the
rate per annum determined by the Administrative Agent as the rate of
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interest (rounded upward to the next 1/100th of 1%) at which deposits in Dollars
for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Offshore Rate Loan being made, Continued or Converted by Bank of America and with a term equivalent to such Interest Period would be offered by
Bank of America’s London Branch to major banks in the offshore Dollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period.
The determination of the Offshore Rate by the Administrative Agent shall be conclusive in the absence of manifest error.
“Offshore Rate Loan” means a Loan bearing interest based on the Offshore Rate.
“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the
bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with
respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed
in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Other Taxes” has the meaning specified in Section 3.05(b).
“Participant” has the meaning specified in Section 11.07(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 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 Senior Deferrable Notes” means, collectively, the senior deferrable
notes issued in connection with the Premium Equity Participating Security Units.
“Permitted
Liens” means the Liens permitted or required by Section 8.01.
“Permitted Swap
Obligations” means all obligations (contingent or otherwise) of the Company or any Subsidiary existing or arising under Swap Contracts, provided that such obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with liabilities, commitments or assets held or
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reasonably anticipated by such Person, or changes in the value of securities issued by such Person in
conjunction with a securities repurchase program not otherwise prohibited hereunder, and not for purposes of speculation or taking a “market view”.
“Person” means an individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, company, 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.
“Portfolio Exemption Certificate” has the meaning specified in Section 3.04(g)(i)(B).
“Premium Equity Participating Security Units” means the 17,250,000 7.50% Premium Equity Participating Security Units (PEPS Units) issued by the
Company in July 1999 for $862,500,000.
“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 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 the following: each of the Persons identified on
Schedule 1.1(B); any Subsidiary of the Company designated by the Company as a “Principal Subsidiary”; and any other Subsidiary of the Company having assets constituting at least 10% of the Total Assets.
“Pro Rata Share” means, with respect to each Lender, the percentage equivalent (rounded, if necessary to the ninth
decimal place) at such time of such Lender’s Commitment divided by the Aggregate Commitment (or, if all Commitments have been terminated, the Effective Amount of such Lender’s Loans divided by the Effective Amount of the aggregate Loans
then held by all Lenders).
“Procurement Business” means the function, process and operation of
obtaining services, equipment, tooling, raw materials, supplies and any other asset necessary to maintain, continue and expand the manufacturing operations of the Company and its Subsidiaries.
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“Recapitalization Transactions” means the transactions that the
Company intends to enter which would result in (a) CP&P, Inc., a Georgia corporation and a wholly-owned subsidiary of the Company, being financed pursuant to an independent credit arrangement and (b) the Company being financed pursuant to an
independent credit arrangement after the completion of the Reorganization.
“Register” has the
meaning set forth in Section 11.07(c).
“Release” means a “release”, as such
term is defined in CERCLA.
“Reorganization” means certain reorganization transactions that the
Company intends to consummate related to (i) its consumer products, packaging and paper businesses, which will be owned entirely by CP&P, Inc., a Georgia corporation and a Subsidiary of the Company and CP&P, Inc.’s Subsidiaries, (ii)
its distribution businesses, and (iii) its building products business which will continue to be owned by the Company after completion of the Reorganization.
“Replacement Lender” has the meaning specified in Section 4.09.
“Required Lenders” means at any time Lenders having more than 50% of the Effective Amount of Loans of all the Lenders, or, if no Loans are outstanding, Lenders having more than 50% of the Commitments.
“Required Net Worth” means, at any date, an amount equal to (a) an amount equal to the sum of
(a) 80% of the Net Worth as at November 28, 2000 based upon the pro forma balance sheet of the Company delivered pursuant to Section 7.01(j) of the Existing Multi-Year Revolver, plus (b) 50% of quarterly net income (with no deduction
for net losses) for the fiscal quarter of the Company ending after November 28, 2000 and each fiscal quarter of the Company thereafter plus (c) 100% of the Net Proceeds to the Company of new capital stock or other equity interests issued by
the Company or any Restricted Subsidiary after November 28, 2000 less (d) the Timber Adjustment Amount.
“Requirement of Law” means, as to any Person, the Organization Documents of such Person, and any Law, 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 together with the Company and/or one or more other Restricted Subsidiaries, owns a
Principal Property.
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“Sale-Leaseback Transaction” has the meaning specified in
Section 8.02.
“S&P” means Standard & Poor’s Rating Services, a division of
The XxXxxx-Xxxx Companies, Inc. and any successor thereto.
“Subsidiary” of a Person means a
corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body are at
the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more Subsidiaries of such Person, or both, by such Person.
“Subsidiary Guaranty (Senior Capital Markets Bridge Facility)” has the meaning specified in Section 6.01(c), as such Subsidiary Guaranty (Senior
Capital Markets Bridge Facility) may be amended from time to time and supplemented from time to time by a supplement in the form attached as Exhibit 7.13(a) and executed and delivered by a Subsidiary party thereto.
“Swap Contract” means any agreement, whether or not in writing, relating to any transaction that is a rate swap, basis
swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap or option, bond, note or xxxx option, interest rate option, forward foreign exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any other, similar transaction (including any option to enter into any of the foregoing) or any combination of the foregoing, and, unless the context otherwise clearly requires, any master
agreement relating to or governing any or all of the foregoing.
“Swap Termination Value” means,
in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a) the amount(s) determined as the xxxx-to-market value(s) for such Swap Contracts, as determined by the
Administrative Agent based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include any Lender).
“Taxes” has the meaning specified in Section 3.05(a).
“Threshold Amount” has the meaning specified in Section 2.06(a).
“Timber Adjustment Amount” means $329,000,000, which represents the amount of adjustments to the Company’s Net Worth resulting from the redemption of the stock of the Company’s timber company and
the separation and transfer of the Company’s timber business, all of which occurred in the fourth fiscal quarter of the Company in year 2001.
“Total Assets” means, at any date, without duplication, the total consolidated assets of the Company and its Subsidiaries, as determined in accordance with GAAP.
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“Total Debt” of any Person means, all of the following, whether
or not treated as indebtedness under GAAP: (a) all indebtedness payable within one year from the date of the creation thereof, (b) all indebtedness payable more than one year from the date of the creation thereof, and (c) with respect to all
indebtedness payable more than one year from the date of creation thereof, the portions of such indebtedness that are currently payable; provided, however, that all indebtedness arising under bank overdrafts and all indebtedness or
obligations of the Company under the Premium Equity Participating Security Units other than the PEPS Senior Deferrable Notes shall be excluded from the definition of “Total Debt”.
“Total Liabilities” means, at any date, without duplication, the total consolidated liabilities of the Company and its Subsidiaries, determined in
accordance with GAAP.
“2000 Bridge Credit Agreement” has the meaning specified in the first
recital of this Agreement.
“Unisource” means Unisource Worldwide, Inc., a Delaware corporation.
“Unisource Parent” means a Subsidiary of the Company which directly owns 100% of the capital
stock of Unisource as a result of the transaction described in Section 8.04(g).
“Unisource
Receivables Transactions” shall mean the transactions evidenced by the following: (i) Receivables Sale Agreement, dated October 1, 1997, as amended, among Portfolio Receivables LLC, Unisource Worldwide, Inc., Asset Securitization
Cooperative Corporation and Canadian Imperial Bank of Commerce, (ii) Receivables Sale Agreement, dated October 1, 1997, as amended, among Portfolio Receivables LLC, Unisource Worldwide, Inc., Canadian Imperial Bank of Commerce, as Purchaser, and
Canadian Imperial Bank of Commerce, as Servicing Agent, and (iii) Receivables Purchase Agreement and Guaranty, dated as of September 4, 1992, as amended, among Unisource Canada, Inc., The Trust Company Bank of Montreal, Georgia-Pacific Corporation,
and BMO Xxxxxxx Xxxxx Inc.
“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.”
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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 7.09(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
Administrative 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.
(a) 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, 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.
(b) Unless otherwise expressly provided herein, (i) references to agreements (including this Agreement) and other contractual instruments shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other modifications are not prohibited by the terms of any Loan Document, and (ii) references to any statute or regulation are to be construed as including all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or interpreting the statute or regulation.
(c) Section headings in this Agreement and in the other Loan Documents are included for convenience of reference only and shall not affect the meaning or interpretation of this Agreement or any Loan Document or
any provisions hereof or thereof.
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 one Loan to the Company in Dollars in a single Borrowing
(the “Loan”), in a principal amount which does not exceed such Lender’s Commitment. Amounts borrowed as Loans which are repaid or prepaid by the Company may not be reborrowed. Any portion of the Commitment that is not used in
connection with such single Borrowing shall automatically terminate.
(a) The Borrowing shall be made on notice, delivered by the Company to the Administrative 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 Offshore Rate Loans, and
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(ii) on the day of such proposed Borrowing, in the case of Alternate Base Rate Loans. Such notice of a Borrowing (a “Notice of Borrowing”) shall be irrevocable and shall be
delivered by facsimile, in substantially the form of Exhibit 2.02(a), specifying therein:
(i) the date of such Borrowing;
(ii) the amount of such
Borrowing which, (A) in the case of a Borrowing of Offshore Rate Loans, shall be in the amount of $20,000,000 or an integral multiple of $10,000,000 in excess thereof and (B), in the case of a Borrowing of Alternate Base Rate Loans, shall be in the
amount of $10,000,000 or an integral multiple of $5,000,000 in excess thereof and shall not, in any case, exceed the Aggregate Commitments on the date such Borrowing is made;
(iii) whether the Borrowing is of Offshore Rate Loans or Alternate Base Rate Loans; and
(iv) if such Borrowing is of Offshore Rate Loans, the duration of the initial Interest Period or Interest Periods applicable to such Loans.
If the Notice of Borrowing shall fail to specify the duration of the initial Interest Period for any Offshore Rate Loans, such Interest Period shall
be one month.
(b) Upon receipt of the Notice of Borrowing, the Administrative Agent shall
promptly notify each Lender thereof and of the amount of such Lender’s share of such Borrowing determined on the basis of such Lender’s Commitment Percentage. Each Lender shall make available to the Administrative Agent the amount of its
ratable share of such Borrowing in the manner and at the time set forth in Section 3.03(a).
(c) Unless any applicable condition specified in Article VI has not been satisfied or waived, the Administrative Agent will apply the funds received from the Lenders directly to pay in full the amounts
outstanding and owing by the Company under the 2000 Bridge Credit Agreement.
(d) After
giving effect to the Borrowing, there shall not be more than three different Interest Periods in effect.
(a) Each
Lender, with respect to amounts payable to it hereunder, and the Administrative Agent, with respect to all amounts payable hereunder in respect of Borrowings, shall maintain on its books in accordance with its usual practice, loan accounts and
control accounts, respectively, setting forth each Loan, 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, or any error in recording, 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 Administrative Agent’s
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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, the obligation to repay the Loans shall also be evidenced by Note in the
form of Exhibit 2.03(b).
The Company agrees to repay to the
Administrative Agent for the account of the Lenders the outstanding principal amount of all Loans on the Maturity Date, together with all accrued and unpaid interest, if any, and any and all amounts payable pursuant to Section 4.06.
(a) Subject
to Section 4.06(a), the Company may, upon (i) at least four Business Days’ prior notice to the Administrative Agent, in the case of a prepayment of Offshore Rate Loans, and (ii) at least one Business Day’s prior notice to the
Administrative Agent, in the case of a prepayment of Alternate Base Rate Loans, stating the proposed date and aggregate principal amount of the prepayment, prepay, ratably among the Lenders in accordance with their Commitment 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 be, (i) in the case of Offshore Rate Loans, in the aggregate principal amount of $20,000,000 or an integral multiple of $10,000,000 in
excess thereof and (ii) in the case of Alternate Base Rate Loans, 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 Offshore
Rate 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 Offshore Rate Loans shall automatically Convert into Alternate Base 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 Administrative Agent
shall promptly notify each Lender of its receipt of any notice of prepayment under this Section 2.05.
(a) In
connection with any issuance of debt or equity securities, or incurrence of debt for borrowed money (except for any such debt having a tenor of no longer than 120 days), by the Company or any of its Subsidiaries generating Net Proceeds therefrom in
excess of $10,000,000 (the “Threshold Amount”), the Company shall prepay the Loans in an amount equal to such Net Proceeds within 30 days after receipt thereof. Notwithstanding the foregoing in this Section 2.06(a) to the
contrary, (i) no such prepayment shall be required with respect to the Net Proceeds received by the Company or any of its Subsidiaries from the issuance by the Company or any of its Subsidiaries of tax exempt bonds; and (ii) all Net Proceeds from
any sale or issuance of debt or equity securities, or incurrence of debt for borrowed money by the Company or any of its
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subsidiaries consummated in connection with the Recapitalization Transaction shall be used to prepay the Loans without regard to the Threshold Amount (it being understood that so long as the Net
Proceeds from the issuance and sale of senior subordinated notes by the Company in connection with the Recapitalization Transaction are held in escrow, such proceeds do not have to be used to prepay the Loans hereunder, provided that upon the
release of such Net Proceeds from such escrow, all such Net Proceeds shall be used to prepay the Loans without regard to the Threshold Amount). |
(b) In connection with any Asset Sale by the Company or any of its Restricted Subsidiaries generating Net Proceeds in excess of $50,000,000
(each, an “Asset Disposition”), the Company shall prepay the Loans in an amount equal to the Net Proceeds of such Asset Disposition within 30 days after receipt thereof; provided, however, no such prepayment shall be required
in connection with an Asset Disposition that constitutes a Sale-Leaseback Transaction not requiring compliance with Sections 8.02(b) or 8.02(c).
(c) Any prepayment of the Loans required by this Section 2.06 shall not be subject to the minimum amount requirements of Section
2.05(b).
(d) Upon any prepayment pursuant to this Section 2.06, the
Administrative Agent shall promptly notify the Lenders of such prepayment.
(a) Each Alternate
Base Rate Loan shall bear interest on the outstanding principal amount thereof from the date when made until paid in full at the Alternate Base Rate plus the Applicable Margin.
(b) Each Offshore Rate Loan shall bear interest on the outstanding principal amount thereof from the date when made until paid in full at the
applicable Offshore Rate plus the Applicable Margin.
(c) Accrued interest shall
be paid on each Interest Payment Date (and, after maturity, on demand).
2.08 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 Effective Amount of all Obligations then due and payable (the “Default Rate”), at a rate per annum which is determined by adding 2% per annum to the Applicable Margin then in effect in
accordance with Section 2.07 and, in the case of Obligations not subject to any such Applicable Margin, at a rate per annum equal to the Alternate Base Rate, plus the Applicable Margin for Alternate Base Rate Loans then in effect in
accordance with Section 2.07 plus 2%; provided, however, that, on and after the expiration of any Interest Period applicable to any Offshore Rate Loan outstanding on the date of occurrence of such Event of Default or
acceleration, the principal amount of such Offshore Rate Loan shall, during the continuance of such Event of Default or after acceleration, bear interest at a rate per annum equal to the Alternate Base Rate, plus the Applicable Margin for
Alternate Base Rate Loans then in effect in accordance with Section 2.07 plus 2%.
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(a) The Company may upon irrevocable written notice to the Administrative Agent:
(i) elect to Convert, on any Business Day, all or any portion of outstanding Alternate Base Rate Loans in the aggregate principal amount of $20,000,000 or an integral multiple of $10,000,000 in excess
thereof into Offshore Rate Loans;
(ii) elect to Convert, on the last day
of any Interest Period therefor, all or any portion of outstanding Offshore Rate Loans comprising the same Borrowing in the aggregate principal amount of $10,000,000 or an integral multiple of $5,000,000 in excess thereof into Alternate Base Rate
Loans; or
(iii) elect to Continue, on the last day of any Interest Period
therefor, any Offshore Rate Loans in the aggregate principal amount of $20,000,000 or an integral multiple of $10,000,000 in excess thereof as Offshore Rate Loans.
provided, however, that if the Effective Amount of Offshore Rate Loans in the same Borrowing would be reduced as a result of any Conversion of part thereof to Alternate Base Rate Loans to
an amount less than $20,000,000, such Offshore Rate Loans shall automatically Convert into Alternate Base 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 2.09(b), to the Administrative Agent not later than 12:00 noon (New York City time) (i) four 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 Offshore Rate 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 Alternate Base Rate Loans.
Each such Notice of Conversion/Continuation shall be irrevocable and shall be made by facsimile, 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 Offshore Rate Loans.
(c) If, on the fourth Business Day prior to the expiration of any Interest Period
applicable to Offshore Rate Loans, the Company shall have failed to select a new Interest Period to be applicable to such Offshore Rate Loans, the Company shall be deemed to have elected to Convert such Offshore Rate Loans into Alternate Base Rate
Loans effective as of the last day of such Interest Period.
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(d) Upon receipt of a Notice of Conversion/Continuation,
the Administrative Agent shall promptly notify each Lender thereof. All Conversions and Continuations shall be made ratably among the Lenders based on their Commitment 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 three different Interest Periods for Loans in effect.
(f) Unless the Required Lenders otherwise consent, during the existence of a Default or Event of Default, the Company may not elect to have a Loan Converted into or Continued as an Offshore Rate Loan.
(a) All computations of interest for Alternate Base Rate Loans when the Alternate Base Rate is determined by Bank of America’s “prime rate” 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 other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed
on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan
that is repaid on the same day on which it is made shall, subject to Section 3.02(b), bear interest for one day.
(b) Each determination of an interest rate by the Administrative 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 Administrative Agent, upon determining the Offshore Rate for any Interest Period, shall promptly notify the Company and the Lenders thereof.
(c) Subject to the provisions set forth in the definition of “Interest Period” herein, whenever any payment is due on a day other than a Business Day, such payment
shall be made on the following Business Day, and such extension of time shall in such case be included in the computation of interest or fees, as the case may be.
FEES; PAYMENTS; TAXES
(a) The Company agrees to
pay to the Administrative Agent for its account an agency fee in such amounts and at such times as are set forth in the Fee Letter.
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(b) The Company agrees to pay each Arranger for its own account the
fees in such amounts and at such times as are set forth in the Fee Letter.
(c) To the extent that the
Closing Date shall not have occurred on or prior to August 16, 2002, the Company agrees to pay all fees and expenses referenced in Section 6.02(c) on such date.
(a) All payments to be
made by the Company shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Company hereunder shall be made to the Administrative Agent, for
the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 1:00 p.m. (New York City time) on the date specified herein. The
Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.
(b) Any payment which is received by the Administrative Agent after 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.
(c) Unless the Administrative Agent shall have received notice from the Company prior to the date on which any payment is due to the Lenders or the Administrative Agent hereunder that the Company will not make such payment
in full, the Administrative Agent may assume that the Company has timely made such payment in full to the Administrative Agent on such date, and the Administrative Agent may (but shall not be so required to), 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 Administrative Agent in immediately available funds, then each
Lender shall repay to the Administrative 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 from time to time in effect, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent; provided, however, that if any Lender shall fail to repay
such amount within three Business Days after demand therefore, such Lender shall, from and after such third Business Day until payment is made to the Administrative Agent, pay interest thereon at a rate per annum equal to the sum of the Alternate
Base Rate from time to time in effect plus 1%.
(a) Not later than
3:00 p.m. (New York City time) in the case of the Borrowing, each Lender shall make available to the Administrative Agent for the account of the Company at the Administrative Agent’s Office on the date of borrowing requested by the Company and
in
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immediately available funds, the amount of such Lender’s Commitment Percentage of the Borrowing.
(b) Unless the Administrative Agent shall have received notice from a Lender at least one Business Day prior to the date of the Borrowing that such Lender will not make available
to the Administrative Agent for the account of the Company, the amount of such Lender’s Commitment Percentage of the Borrowing, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on
the date of the Borrowing, and the Administrative Agent may (but shall not be so required), 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 Administrative Agent, and the Administrative Agent in such circumstances makes available to the Company such amount, such Lender shall, within two Business Days following the date of the Borrowing, make such amount
available to the Administrative Agent, together with interest thereon for each day from and including the date of the Borrowing, at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such amount is so made available,
such payment to the Administrative Agent shall constitute such Lender’s Loan on the date of the Borrowing for all purposes of this Agreement. If such amount is not made available to the Administrative Agent within two Business Days following
the date of the Borrowing, the Administrative Agent shall notify the Company of such failure to fund, and, on the third Business Day following the date of the Borrowing, the Company shall pay to the Administrative 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 3.03(b) shall relieve any
Lender which has failed to make available its Commitment Percentage of the Borrowing hereunder from its obligation to do so in accordance with the terms hereof.
(c) The obligations of the Lenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan on the date of the Borrowing shall not relieve
any other Lender of its obligation, if any, hereunder to make a Loan on the date of the 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 the Borrowing.
(a) Subject to Section
3.04(h), any and all payments by the Company to or for the account of the Administrative Agent or any Lender under any Loan Document shall be made free and clear of and without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and all liabilities with respect thereto, excluding, in the case of the Administrative Agent and each Lender, taxes imposed on or measured by its overall net income, and
franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the Laws of which the Administrative Agent or such Lender, as the case may be, is organized or maintains a lending office
(all such non-excluded taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and liabilities being hereinafter referred to as “Taxes”).
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(b) In addition, the Company agrees to pay any present or
future stamp or documentary taxes and any other sales, excise or property taxes, charges or similar levies which arise from any payment made hereunder or under any other Loan Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, this Agreement or any other Loan Document (hereinafter referred to as “Other Taxes”).
(c) If the Company shall be required to deduct or pay any Taxes or Other Taxes from or in respect of any sum payable under any Loan Document to the Administrative Agent or any
Lender, the Company shall also pay to the Administrative Agent or to such Lender, as the case may be, at the time interest is paid, such additional amount that the Administrative Agent or such Lender specifies is necessary to preserve the after-tax
yield (after factoring in all taxes, including taxes imposed on or measured by net income) that the Administrative Agent or such Lender would have received if such Taxes or Other Taxes had not been imposed.
(d) Subject to Section 3.04(h), the Company agrees to indemnify and hold harmless each Lender and the
Administrative Agent for (i) the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 3.04) paid by such Lender or the Administrative Agent, as the case may
be, (ii) amounts payable under Section 3.04(c) and (iii) any liability (including penalties, interest, additions to tax and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted; provided, however, that each Lender and the Administrative Agent agree to contest in good faith in cooperation with the Company any Taxes or Other Taxes that such Lender or the Administrative 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 Administrative Agent, as the case may be, makes written demand therefor.
(e) If the Company shall be required by any Law to deduct or withhold any Taxes or Other
Taxes from or in respect of any sum payable hereunder to any Lender or the Administrative Agent, then, subject to Section 3.04(h),
(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 3.04), such
Lender or the Administrative 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.
(f) Within 30 days after the date of any payment by the Company of Taxes or Other Taxes under this Section 3.04, the Company will furnish to
the Administrative 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 Administrative Agent.
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(g) 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 11.07 after the Closing Date, the date upon which such Lender becomes a party hereto) deliver to the Administrative 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 W-8ECI or any successor thereto (“Form W-8ECI”) or other version of Internal Revenue Service Form W-8, as appropriate, or any successor thereto (“Form
W-8”), 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 W-8BEN or any successor thereto (“Form W-8BEN”) or other appropriate Form W-8, and, in the case of a Lender claiming exemption from U.S. Federal withholding tax
under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest,” a certificate representing that such Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10% shareholder (within the meaning
of Section 871(h)(3)(B) of the Code) of the Company and is not a controlled foreign corporation related to the Company (within the meaning of Section 864(d)(4) of the Code) (“Portfolio Interest Exemption Certificate”);
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;
(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 Administrative 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 W-8ECI or other appropriate Form W-8; or
(B) otherwise, accurate and complete
signed originals of Form W-8BEN or other appropriate Form W-8, and, if appropriate, a Portfolio Interest Exemption Certificate,
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;
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(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 W-8ECI, Form W-8BEN or other appropriate 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 Administrative Agent (two originals) and to the Company (one original)
accurate and complete signed originals of Form W-8ECI, Form W-8BEN or other appropriate 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 Administrative 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.
(h) The Company shall not be required to pay any amounts pursuant to Section 3.04(a), 3.04(c), 3.04(d), 3.04(e) or
3.04(j) to any Lender for the account of any Lending Office of such Lender in respect of any sum payable hereunder:
3.04(j) 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 3.04(g) in respect of such Lending Office;
(ii) if such Lender shall have delivered to the Administrative Agent a Form W-8ECI or other appropriate Form W-8 in respect of such Lending
Office pursuant to Section 3.04(g)(i)(A), 3.04(g)(ii)(A) or 3.04(g)(iii) 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 force of law) after the date of delivery of such Form W-8ECI or other appropriate 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
Section 3.04(a), 3.04(c), 3.04(d) or 3.04(e) 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
Section 3.04(a), 3.04(c), 3.04(d) or 3.04(e) 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 W-8BEN or other appropriate Form W-8 in respect of such Lending Office pursuant to Section 3.04(g)(i)(B), 3.04(g)(ii)(B) or 3.04(g)(iii) 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
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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 W-8BEN or other appropriate 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 Section 3.04(a), 3.04(c) 3.04(d) or 3.04(e) 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.
Form W-8BEN or other appropriate 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 Section 3.04(a), 3.04(c) 3.04(d) or 3.04(e) 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.
(i) Each Lender shall use reasonable efforts to avoid or minimize any amounts which might otherwise
be payable pursuant to this Section 3.04; 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.
(j) Each Lender agrees to indemnify
the Administrative Agent and hold the Administrative 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 Administrative Agent under this Section 3.04(j)) 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 3.04, 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 Administrative Agent makes written
demand therefor.
3.05 Sharing of Payments, Etc. If, other than as provided in Sections 3.04, 4.02, 4.03, 4.05 and 4.06 or as otherwise expressly provided elsewhere herein, any Lender
shall obtain on account of the Loans made by it any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) in excess of its ratable share (or other share contemplated hereunder), such Lender shall
immediately (a) notify the Administrative Agent of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them as shall be necessary to cause such purchasing Lender to share the excess payment pro rata with each
of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from the purchasing Lender, such purchase shall to that extent be rescinded and each other Lender shall repay to the purchasing
Lender the purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share (according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii) 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 may, to the
fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such
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participation as fully as if such Lender were the direct creditor of the Company in the amount of such
participation. The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 3.05 and will in each case notify the Lenders following any such
purchases or repayments.
CHANGES IN CIRCUMSTANCES; ETC.
4.01 Offshore Rate Protection. If with respect to any Interest Period for Offshore Rate Loans, the Administrative Agent or the Required Lenders determine (a) deposits in
Dollars are not being offered to banks in the applicable offshore dollar market for the applicable amount and Interest Period of the requested Offshore Rate Loan, (b) that for any reason adequate and reasonable means do not exist for ascertaining
the Offshore Rate for such Interest Period, or (c) by the first day of such Interest Period, the Required Lenders notify the Administrative Agent that the Offshore Rate for such Interest Period will not adequately reflect the cost to the Required
Lenders of making such Offshore Rate Loans or funding or maintaining their respective Offshore Rate Loans for such Interest Period, the Administrative Agent shall forthwith so notify the Company and the Lenders, whereupon the obligations of the
Lenders to make or Continue Loans as Offshore Rate Loans or to Convert Alternate Base Rate Loans into Offshore Rate Loans shall be suspended until the Administrative Agent shall notify the Company and the Lenders that the circumstances causing such
suspension no longer exist and any then outstanding Offshore Rate Loans shall at the end of the then current Interest Period for such Loans be Converted into Alternate Base Rate Loans.
4.02 Additional Interest on Offshore Rate 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 amounts as are sufficient to compensate such Lender for such additional or increased costs.
4.03 Increased Costs. If any Lender determines that as a result of the introduction of or any change in or in the interpretation of any Law, or such Lender’s
compliance therewith, there shall be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining Offshore Rate Loans, or a reduction in the amount received or receivable by such Lender in connection with any of the
foregoing (excluding for purposes of this subsection (a) any such increased costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section 3.04 shall govern), (ii) changes in the basis of taxation of overall net
income or overall gross income by the United States or any foreign jurisdiction or any political subdivision of either thereof under the Laws of which such Lender is organized or has its Lending Office, and (iii) reserve requirements contemplated by
Section 4.02, 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 Administrative Agent, pay to the Administrative Agent for the
account of such Lender, additional amounts as are sufficient to compensate such Lender for such increased costs or reduction.
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4.04 Illegality. Notwithstanding any other provision of this Agreement, if any Lender determines that any Law has made it unlawful, or that any Governmental Authority has
asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or Continue Loans as Offshore Rate Loans or to Convert Alternative Base Rate Loans into Offshore Rate Loans, or to determine or charge interest rates
based upon the Offshore Rate, then, on notice thereof by such Lender to the Company through the Administrative Agent, any obligation of such Lender to make or Continue Offshore Rate Loans or to Convert Alternate Base Rate Loans to Offshore Rate
Loans shall be suspended until such Lender notifies the Administrative Agent and the Company that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Company shall, upon demand from such Lender (with
a copy to the Administrative Agent), forthwith prepay in full all Offshore Rate 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
Offshore Rate Loan if such Lender may lawfully continue to maintain such Offshore Rate Loan to such day, or immediately if such Lender may not lawfully continue to maintain such Offshore Rate Loan to such day, unless the Company, on or prior to the
date on which it would otherwise be required to prepay such Offshore Rate Loan, Converts all Offshore Rate Loans of all Lenders then outstanding into Alternate Base Rate Loans. Upon any such Conversion, the Company shall also pay accrued interest on
the amount so Converted.
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 obligations 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 Administrative Agent, pay to the Administrative
Agent for the account of such Lender such additional amounts as are sufficient to compensate such Lender for such increase.
(a) If the Company
makes any payment or prepayment of principal with respect to any Offshore Rate Loan (including payments made after any acceleration thereof) or Converts any Loan from a Offshore Rate Loan to a Alternate Base 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
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value under this Section 4.06(a), interest amounts shall be discounted at a rate equal to the sum
of (A) the Offshore Rate 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 Applicable Margin then in effect for Alternate Base Rate Loans.
(b) If the Company fails to prepay, borrow, Convert or Continue any Offshore Rate 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, cost and expense incurred by it, including any loss and expense incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender from third parties to fund or maintain any Offshore Rate Loan.
(a) Each Lender may fulfill its obligation to make, Continue or Convert Loans into Offshore Rate Loans by causing one of its foreign branches or Affiliates (or an international banking facility created by such
Lender) to make or maintain such Offshore Rate Loans; provided, however, that such Offshore Rate 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
Offshore Rate 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 Offshore Rate Loans by a matching deposit or other borrowing in the applicable offshore interbank market.
(b) Any Lender claiming reimbursement or compensation pursuant to Sections 3.04, 4.02, 4.03, 4.05
and/or 4.06 shall deliver to the Company through the Administrative 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 Sections 4.02, 4.03, 4.05 or 4.06 the amount requested by such Lender no
later than five Business Days after such demand.
(a) Each Lender agrees that upon the occurrence of any event giving rise to the operation of Section 3.04(d) or 3.04(e) 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 3.04(d) or 3.04(e) or Sections 4.02, 4.03, 4.04 or 4.05.
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(b) Notwithstanding the provisions of Sections 3.04(d),
3.04(e), 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 3.04(d) or 3.04(e), 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 Administrative 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.
Section 3.04(d) or 3.04(e), 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 Administrative 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. Upon any Lender’s making a claim for compensation under Section 3.04, 4.02, 4.03 or 4.05, then the Company may designate one
or more Eligible Assignees (any Eligible Assignee so designated being herein called a “Replacement Lender”) willing, in its or their sole discretion, to purchase by way of assignment in accordance with Section 11.07(b) all of
the Loans 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 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 Offshore Rate 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. Any Lender being replaced pursuant to this Section 4.09 shall execute and deliver an Assignment and
Assumption with respect to such Lender’s outstanding Loans.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Administrative Agent to enter into this Agreement and to induce the Lenders to extend their Commitments and to make their Loan, the
Company represents and warrants to the Lenders and the Administrative Agent that, on the Closing Date and on each date thereafter upon which these representations and warranties are made or deemed made:
5.01 Corporate Existence; Compliance with Law. The Company, each Restricted Subsidiary and each other Loan Party:
(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;
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(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 each of the Loan Documents to which such Person is a party:
(a) are within the respective corporate powers of such Person;
(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 Organization Documents of such Person;
(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 Person, 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 Administrative 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 Person; 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, are in full force and effect, and which are fully disclosed on 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.
5.03 Enforceable Obligations. This Agreement and each other Loan Document to which any Loan Party is a party have been duly executed and delivered by such Person. This
Agreement is, and each other Loan Document when delivered hereunder will be, legal, valid and binding obligations of each Person party thereto, enforceable against each such Person 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, each Restricted Subsidiary and each other Loan Party 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
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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 such Person 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.
(a) The
consolidated balance sheets of the Company and its Subsidiaries as of the last day of the fiscal year ended on December 29, 2001, and the last day of the fiscal quarter ended June 29, 2002, and the related consolidated statements of income and cash
flows of the Company and its Subsidiaries for such fiscal year and fiscal quarter with reports thereon by Ernst & Young LLP, independent public accountants, copies of which have been delivered to the Administrative 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 period 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 as set forth in the notes thereto. There are no
material liabilities, contingent or otherwise, of the Company or any Subsidiary not reflected in the consolidated balance sheet as of December 29, 2001, or in the notes thereto which are required to be disclosed therein.
(b) Since December 29, 2001, 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 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
December 29, 2001 consolidated financial statements of the Company and its Subsidiaries or in the notes thereto which are required by GAAP to be disclosed therein and no liability reflected in such notes is likely to have a Material Adverse Effect.
5.06 Litigation. As of the Closing Date, 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.
(a) Set forth on
Schedule 5.07 is a complete and correct list of all Subsidiaries of the Company as of the date hereof, 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.
(b) All of the outstanding shares of securities of each of the Subsidiaries of the Company listed on Schedule 5.07 have been validly issued, are fully paid and nonassessable and
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are owned by the Company or another Subsidiary of the Company, free and clear of any Lien, except as otherwise permitted hereunder.
(c) 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, any Restricted Subsidiary or any other Loan Party,
other than Permitted Liens.
(a) As of the Closing Date, none of the Company, any Restricted Subsidiary or any other Loan Party 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) None of the Company, any
Restricted Subsidiary or any other Loan Party 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.
(a) None of the Company or any other 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 “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(b) 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 such Person 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 making of the Loans by the Lenders and the use of the proceeds of the Loans by the Company does not violate Regulation T, U, or X of the Federal
Reserve Board.
(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
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by the Company or 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 any such Person that are likely to have a
Material Adverse Effect;
(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 (1) the National Priorities List pursuant to CERCLA or (2) on
any similar published state list of sites requiring investigation or clean-up where the cost of clean-up could reasonably be expected to have a Material Adverse Effect;
(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) the Company or any of its Subsidiaries has not 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 any
of its Subsidiaries 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
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(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 on 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, any Restricted Subsidiary or any other Loan Party 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 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 on 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 Swap Obligations. None of the Company nor any of its Restricted Subsidiaries nor any other Loan Party has incurred any outstanding obligations under any Swap Contracts,
other than Permitted Swap Obligations. The Company has undertaken its own independent assessment of its consolidated assets, liabilities and commitments and has considered appropriate means of mitigating and managing risks associated with such
matters and has not relied on any swap counterparty or any Affiliate of any swap counterparty in determining whether to enter into any Swap Contract.
5.16 Full Disclosure. None of the representations or warranties made by the Company or any other Loan Party in the Loan Documents as of the date such representations and
warranties are made or deemed made, and none of the statements contained in any exhibit, report, statement or certificate furnished by or on behalf of the Company, any Restricted Subsidiary or any other Loan Party in connection with the Loan
Documents (including the offering and disclosure materials delivered by or on behalf of the Company to the Lenders prior to the Closing Date), contains any untrue statement of a material fact or omits any material fact required to be stated therein
or otherwise necessary to make the statements made therein, in light of the circumstances under which they are made, not misleading as of the time when made or delivered.
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CONDITIONS PRECEDENT
6.01 Conditions Precedent to the First Loan. The obligation of each Lender to make its Loan is subject to the satisfaction of the condition precedent that the
Administrative Agent shall have received the following, each in form and substance satisfactory to the Administrative Agent and its counsel:
(a) Board Resolutions; Incumbency Certificates. A certificate of the Secretary or an Assistant Secretary of each Loan Party dated as of the Closing
Date and certifying (i) the resolutions of the Board of Directors of such Person approving each Loan Document to which such Person is a party and the transactions contemplated hereby and thereby, (ii) all documents evidencing other necessary
corporate action, if any, by each such Person with respect to each Loan Document to which such Person is a party and (iii) the names and signatures of the officers of each such Person authorized to act with respect to each Loan Document executed by
it, upon which certificate the Administrative Agent and each Lender may conclusively rely until they shall have received a further certificate of the Secretary or Assistant Secretary of such Person canceling or amending such prior certificate;
(b) Organization Documents and Good Standing. Each of the
following documents:
(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 Person as of a date reasonably close to the Closing Date, and (B) by the Secretary or an Assistant Secretary of such Person 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 Person 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 Person as of a date
reasonably close to the Closing Date;
(c) Subsidiary Guaranty (Senior Capital Markets
Bridge Facility). A guaranty, dated as of the Closing Date, duly executed by each Principal Subsidiary, in substantially the form of Exhibit 6.01(c) (the “Subsidiary Guaranty (Senior Capital Markets Bridge
Facility)”);
(d) Legal Opinions. A favorable
opinion dated as of the Closing Date and addressed to the Administrative Agent and all Lenders from counsel to the Company and its Subsidiaries, in substantially the form of Exhibit 6.01(d) (which opinion the Company and its Subsidiaries
hereby expressly instruct such counsel to prepare and deliver);
(e) Contribution
Agreement (Senior Capital Markets Bridge Facility). A duly executed copy of the Contribution Agreement, dated as of the Closing Date, in substantially the form of Exhibit 6.01(e) (the “Contribution Agreement
(Senior Capital Markets Bridge Facility)”);
(f) Notes. A Note, dated the Closing Date, executed by the Company in favor of each Lender requesting a Note; and
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(g) Repayment of Loans under the 2000 Bridge Credit
Agreement. Evidence that all principal of and interest on the extensions of credit outstanding under, and all other amounts owing under (including, without limitation, the fee specified in Section 3.01(g) of) the 2000
Bridge Credit Agreement shall have been (or shall be simultaneously) paid in full with the proceeds of the Loans to be made hereunder, and the Company shall have irrevocably directed the Administrative Agent to apply the proceeds from the initial
Borrowing hereunder toward such repayment in full, and that any commitments to extend credit under the 2000 Bridge Credit Agreement shall have been (or shall be simultaneously) cancelled or terminated and that all guarantees in respect of, and all
Liens securing, such Indebtedness shall have been released (or arrangements for such release reasonably satisfactory to the Administrative Agent shall have been made).
6.02 Additional Conditions Precedent to the Loans. The obligation of each Lender to make its Loan is subject to the further conditions precedent that:
(a) No Material Adverse Effect. Except as disclosed in the filings made by the
Company on or before August 13, 2002 with the Securities and Exchange Commission (including, but not limited to, all reports and registration statements), there shall not have occurred a material adverse change since December 29, 2001 in the
business, assets, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Company and its Subsidiaries taken as a whole or in the facts and information regarding such entities as represented to date;
(b) 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;
(c) 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 any other fees then due and payable,
including, without limitation, to the Arrangers, and all reasonable costs and expenses referred to in Section 11.04 (including reasonable legal fees and expenses of outside counsel actually incurred) and any indemnity pursuant to Section
11.05 which, in each case, may be then due and payable; and
(d) Company
Officer’s Certificate. The Company shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Company in substantially the form of Exhibit 6.02(d) as to the satisfaction of
the conditions set forth in this Section 6.02 and to the effect that on the Closing Date, (i) the representations and warranties contained in Article V are true and correct in all respects, (ii) that No Default or Event of Default
exists, or would result from such making of the proposed Loan, and (iii) that no “Event of Default” or “Default” exists under (as each such term is defined in) the Existing Multi-Year Revolver.
6.03 Conditions Precedent to Each Conversion and Continuation. The obligation of each Lender to make any Conversions or Continuations shall be subject to the further
conditions precedent that:
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(a) Notice of
Conversion/Continuation. The Administrative Agent shall have received a Notice of Conversion/Continuation as required by Section 2.09.
(b) Accuracy of Representations; No Default; Etc. The following statements shall be true on the date of each Conversion
or Continuation, as the case may be, before and after giving effect thereto:
(i) the representations and warranties contained in Article V are true and correct in all respects on and (except for representations and warranties relating solely to a particular point in time and except for
Section 5.05(b)) as of such date as though made on and as of such date; and
(ii) no Default or Event of Default has occurred and is continuing or would result from such Conversion or Continuation being made.
(c) Other Assurances. The Administrative Agent shall have received such other approvals, opinions or documents as any Lender through the
Administrative Agent may reasonably request related to the transactions contemplated hereby.
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 or cause to be applied all the proceeds of the Loans hereunder (a) solely to pay principal of and interest on the
extensions of credit outstanding under, and all other amounts owing under (including, without limitation, the fee specified in Section 3.01(g) of) the 2000 Bridge Credit Agreement and (b) to pay fees and expenses related thereto.
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 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
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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 Administrative 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 Administrative Agent (to be promptly distributed to the Lenders), 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 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;
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(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 Sections 7.09(a) and (b), (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(c) (each, a “Compliance Certificate”).
7.10 Reporting Requirements. The Company will furnish to the Administrative Agent (to be promptly distributed to the Lenders), 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 the Debt Rating, notice by telephone or facsimile of such change or rating; 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 Administrative Agent may from time to time reasonably request.
Documents required to be delivered pursuant to Section 7.09(a) or 7.09(b) or Section 7.10(b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered
electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on
Schedule 11.02; or (ii) on which such documents are posted on the Company’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Company shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Company to deliver such paper
copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Company shall notify (which may be by facsimile or electronic mail) the
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Administrative Agent and each Lender of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance the Company shall be required to provide paper copies of the Compliance Certificates required by Section 7.09(c) to the Administrative Agent and each of the Lenders.
Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the
Company with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
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:
(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 Administrative Agent may reasonably request from time to time to evidence compliance with this Section 7.12.
7.13 New Subsidiaries. If the Company or any of its Subsidiaries at any time after the date hereof acquires, forms, or establishes any Principal Subsidiary or any Subsidiary
becomes a Principal Subsidiary, the Company shall cause any such Principal Subsidiary to promptly (a) execute and deliver to Administrative Agent each of the Subsidiary Guaranty (Senior Capital Markets Bridge Facility) and the Contribution Agreement
(Senior Capital Markets Bridge Facility) by executing and delivering the supplements thereto in the form attached as Exhibit 7.13(a); and (b) provide such evidence of due authorization, execution, and delivery of such Loan Documents as the
Administrative Agent or the Required Lenders may reasonably require.
7.14 Favorable Covenants. If any of the covenants in the Existing Multi-Year Revolver become more restrictive than any of the covenants in this Agreement or any other Loan
Document, then, at the request of the Required Lenders, this Agreement or such other Loan
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Document shall be amended so that the covenants in this Agreement or such other Loan Document are not less restrictive than those in the Existing Multi-Year Revolver.
7.15 Existing Multi-Year Revolver. The Company shall immediately notify the Administrative Agent and the Lenders when the amount available to be drawn under the Existing
Multi-Year Revolver is less than $650,000,000.
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 on Schedule 8.01;
(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 Sections 8.01(c) and 8.01(d), 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;
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(e) Liens to secure Indebtedness of a Restricted Subsidiary to the Company or one or more
Restricted 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;
(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 Restricted 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 Section 8.01(a) through (l) or this Section 8.01(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);
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(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 Restricted 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 Restricted 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, and 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 value of any parcel of property material to the operation of the business of the Company and its Restricted 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 Restricted Subsidiaries to such Person (a “Sale-Leaseback
Transaction”) unless (a) the Company and/or such Restricted Subsidiary or Restricted 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
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at least equal to the Value of such Sale-Leaseback Transaction, or (c) the Company shall use the net proceeds to repay Loans 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 Section 8.02(b) or 8.02(c), provided that the aggregate amount of all such
Liens and Sale-Leaseback Transactions permitted by Section 8.2 of this Agreement and Section 9.02 of the Existing Multi-Year Revolver 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) authorized to acquire or operate the same, so long as (a) either (x) in the
case of such merger or consolidation, the Company is the surviving corporation or (y) 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; and (b) after giving effect to such transaction, no Default or Event of Default exists and the Company or such surviving Person, as applicable, has demonstrated its compliance with Section 7.08 to the
reasonable satisfaction of the Required Lenders.
8.04 Transactions with Affiliates. The Company shall not enter into or be a party to, or permit any of its Restricted Subsidiaries to enter into or be a party to, any
transaction with any Affiliate of the Company except for the following:
(a) as may be
permitted under Sections 8.01, 8.02, or 8.03;
(b) transactions in the
ordinary course of business which are not likely to have a Material Adverse Effect;
(c) any Subsidiary of the Company may distribute or dividend to the Company or any Principal Subsidiary all or a portion of such Subsidiary’s assets, including such Subsidiary’s holdings of the
capital stock of or other equity interest in any of the other Subsidiaries of the Company; provided that, in the case of such distribution or dividend to a Principal Subsidiary, such Principal Subsidiary (x) is a direct or indirect
wholly-owned Subsidiary of the Company
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and (y) has executed and delivered, or caused to be executed and delivered, all relevant documentation of the types set forth in clauses (a) and (b) in Section 7.13;
(d) the Company (i) may contribute all or a portion of the Company’s assets relating to the
Company’s consumer products, packaging and pulp and paper businesses, including any of the Company’s holdings of the capital stock or other equity interests in its Subsidiaries engaged in the consumer products, packaging and pulp and paper
businesses to a Principal Subsidiary and may assign to such Principal Subsidiary certain liabilities relating to the Company’s consumer products, packaging and pulp and paper businesses, and such Principal Subsidiary may assume such
liabilities, and (ii) may enter into any other transactions with such Principal Subsidiary reasonably related to such contribution; provided that, in the case of clause (i) or (ii) above in this clause (d), (A) all of the capital stock of or
other equity interest in such Principal Subsidiary is directly wholly-owned by the Company and (B) such Principal Subsidiary has executed and delivered, or caused to be executed and delivered, all relevant documentation of the types set forth in
clauses (a) and (b) in Section 7.13;
(e) any Restricted Subsidiary (i) may merge
with and into or consolidate into any Principal Subsidiary so long as such Principal Subsidiary is the surviving corporation of such merger or consolidation or (ii) may contribute, distribute, dividend or transfer assets to any Principal Subsidiary
upon liquidation or otherwise; provided that (A) in the case of clause (i) or (ii) above in this clause (e), such Principal Subsidiary (x) is a direct or indirect wholly-owned Subsidiary of the Company and (y) has executed and delivered, or
caused to be executed and delivered, all relevant documentation of the types set forth in clauses (a) and (b) in Section 7.13 and (B) in the case of any such transfer of assets, such transfer is on fair and reasonable terms and conditions
substantially as favorable to such Restricted Subsidiary as would be obtainable by such Restricted Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate of such Restricted Subsidiary;
(f) the Company or any of its Subsidiaries may receive from any Subsidiary of the Company
by way of distribution or dividend, or may contribute to a joint venture, assets relating to the Procurement Business of the Company or any of its Subsidiaries, including any capital stock or other equity interest in any Subsidiary of the Company
whose principal business is the Procurement Business; provided that, in the case of such contribution to a joint venture, all of the capital stock of or other equity interest in such joint venture is owned directly and exclusively by the
Company and a Principal Subsidiary, and such Principal Subsidiary (x) is a direct or indirect wholly-owned Subsidiary of the Company and (y) has executed and delivered, or caused to be executed and delivered, all relevant documentation of the types
set forth in clauses (a) and (b) in Section 7.13; or
(g) the Company may distribute
or dividend all of its holdings of capital stock of Unisource to a Principal Subsidiary; provided that (i) such Principal Subsidiary (A) is a direct or indirect wholly-owned Subsidiary of the Company and (B) has executed and delivered, or
caused to be executed and delivered, all relevant documentation of the types set forth in clauses (a) and (b) in Section 7.13, and (ii) immediately after giving effect to such distribution or dividend, all of the capital stock of Unisource
constitutes all or substantially all the assets of such Principal Subsidiary.
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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 other than a fiscal year that ends on the closest Saturday to December 31 of each year.
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 Leverage Ratio as of the end of any fiscal quarter of the Company to be greater than 72.50%.
8.09 Minimum Net Worth. The Company shall not permit the Adjusted Net Worth, measured as of the end of each fiscal quarter of the Company, to be less than the Required Net
Worth measured as of the end of such fiscal quarter.
8.10 Interest Coverage Ratio. The Company will not permit the Interest Coverage Ratio as of the end of any fiscal quarter of the Company to be less than 2.25 to 1.00.
8.11 Indebtedness. Until the Leverage Ratio as of the last day of any fiscal quarter of the Company for which the financial reports and the certificate have been delivered
pursuant to Section 7.09(a) and Section 7.09(c), respectively, falls below 65%, the Company shall not, and shall not suffer or permit any of its Subsidiaries to, create, incur, assume or suffer to exist, or otherwise become or remain
directly or indirectly liable with respect to, Total Debt of the Company and its Subsidiaries on a consolidated basis the aggregate principal amount of which at any time outstanding exceeds on a consolidated basis for the Company and its
Subsidiaries an amount equal to $13,065,000,000 less the aggregate amount of all Net Proceeds received by the Company and its Subsidiaries on a consolidated basis from any Asset Sales by the Company or any of its Subsidiaries.
8.12 Existing Multi-Year Revolver. The Company shall not permit the Existing Multi-Year Revolver to terminate.
8.13 Unisource Parent. If the distribution or dividend transaction described in Section 8.04(g) has occurred, then, so long as Unisource Parent remains a Subsidiary
of the Company, the Company shall not permit Unisource Parent to own assets whereby the capital stock of Unisource does not constitute all or substantially all of the assets of Unisource Parent.
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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; or
(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, 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; or
(c) Specific Defaults. The Company shall fail to perform or observe any term, covenant or agreement contained in Sections 7.01, 7.05, 7.06 or 7.10(a) or
Article VIII; or
(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 Administrative Agent at the request of the Required Lenders or otherwise; or
(e) Default under Other Agreements. Any “Event of Default” shall occur and be continuing under any of the
Existing Multi-Year Revolver or 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 $100,000,000 or more, or
(ii) under one or more Swap Contracts of the Company or any of its Subsidiaries resulting in aggregate Swap Termination Values of the Company and its Subsidiaries of $100,000,000 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
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(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 Swap Contract; or
(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;
(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 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; or
(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; or
(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; or
(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
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(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; or
(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 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; or
(l) Commitment Letter; Fee Letter. The failure by the Company to perform or comply with any of its obligations under the Commitment Letter or the Fee Letter.
9.02
Remedies. If any Event of Default shall have occurred and be continuing:
(a) The Administrative 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 Administrative 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 Administrative Agent shall at the request of, and may with the consent of, the Required Lenders,
exercise all rights and remedies available to it as Administrative Agent and the Lenders under any Loan Document;
provided,
however, that upon the occurrence of any Event of Default specified in Section 9.01(f)(ii) or Section 9.01(g) 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 Administrative Agent or any Lender. Notwithstanding anything else provided herein, upon the occurrence and the continuance of an Event of Default, any of the
Administrative Agent and the Lenders may exercise any and all remedies available to it under law and equity.
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ADMINISTRATIVE AGENT
10.01 Appointment and Authorization of Administrative Agent. Each Lender hereby irrevocably appoints, designates and authorizes the Administrative 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 herein or in any other Loan Document, the Administrative Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary relationship with any Lender or participant, 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 Administrative Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the other Loan Documents with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting parties.
10.02 Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful misconduct.
10.03 Liability of Administrative Agent. No Agent-Related Person shall (a) be liable for any action taken or omitted to be taken by any of them under or in connection with
this Agreement or any other Loan Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct in connection with its duties expressly set forth herein), or (b) be responsible in any manner to any Lender
or participant for any recital, statement, representation or warranty made by any Loan Party or any officer thereof, contained herein or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or for
any failure of any Loan Party or any other party to any Loan Document to perform its obligations hereunder or thereunder. No Agent-Related Person shall be under any obligation to any Lender or participant 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 any Loan Party or any Affiliate thereof.
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(a) The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature, resolution, representation, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, electronic mail 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
advice and statements of legal counsel (including counsel to any Loan Party), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action
under any 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. The Administrative 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 consent of the Required Lenders (or such greater number of Lenders as may be expressly required hereby in any instance) and such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders.
(b) For purposes of determining compliance with the
conditions specified in Section 6.01, each Lender that has signed this Agreement 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 a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
10.05 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Lenders, unless the Administrative Agent shall have received written notice from a Lender or the Company referring to this Agreement,
describing such Default and stating that such notice is a “notice of default”. The Administrative Agent will notify the Lenders of its receipt of any such notice. The Administrative Agent shall take such action with respect to such Default
as may be directed by the Required Lenders in accordance with Article IX; provided, however, that unless and until the Administrative Agent has received any such direction, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such Default as it shall deem advisable or in the best interest of the Lenders.
10.06 Credit Decision; Disclosure of Information by Administrative Agent. Each Lender acknowledges that no Agent-Related Person has made any representation or warranty to
it, and that no act by the Administrative Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Lender as to any matter, including whether Agent-Related Persons have disclosed material information in their possession. Each Lender represents to the Administrative Agent that it has, independently and
without reliance upon any Agent-Related Person and based on such
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documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations,
properties, financial and other condition and creditworthiness of the Loan Parties and their respective Subsidiaries, and all applicable bank or other regulatory Laws relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to the Company hereunder. Each Lender also represents that it will, independently and without reliance upon any Agent-Related Person 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 the other Loan Documents, and to make such investigations as it deems necessary to inform itself as
to the business, prospects, operations, properties, financial and other condition and creditworthiness of the Company and the other Loan Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent herein, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or
creditworthiness of any of the Loan Parties or any of their respective Affiliates which may come into the possession of any Agent-Related Person.
10.07 Indemnification of Administrative Agent. Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand each
Agent-Related Person (to the extent not reimbursed by or on behalf of any Loan Party and without limiting the obligation of any Loan Party to do so), pro rata, and hold harmless each Agent-Related Person from and against any and all Indemnified
Liabilities incurred by it; provided, however, that no Lender shall be liable for the payment to any Agent-Related Person of any portion of such Indemnified Liabilities to the extent determined in a final, nonappealable judgment by a court of
competent jurisdiction to have resulted from such Agent-Related Person’s own gross negligence or willful misconduct; provided, however, that no action taken in accordance with the directions of the Required Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section 10.07. Without limitation of the foregoing, each Lender shall reimburse the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket
expenses (including Attorney Costs) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or
on behalf of the Company. The undertaking in this Section 10.07 shall survive termination of the Aggregate Commitments, the payment of all other Obligations and the resignation of the Administrative Agent.
10.08 Administrative Agent in its Individual Capacity. Bank of America and its Affiliates may make loans to, issue 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, underwriting or other business with each of the Loan Parties and their respective Affiliates as though Bank of America were not the
Administrative Agent hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of America or its Affiliates may receive information regarding any Loan Party or its Affiliates
(including information that may be subject to confidentiality obligations in favor of such Loan
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Party or such Affiliate) and acknowledge that the Administrative Agent shall be under no obligation to provide such information to them. With
respect to its Loans, Bank of America shall have the same rights and powers under this Agreement as any other Lender and may exercise such rights and powers as though it were not the Administrative Agent, and the terms “Lender” and
“Lenders” include Bank of America in its individual capacity.
10.09 Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 30 days’ notice to the Lenders. If the Administrative Agent
resigns under this Agreement, the Required Lenders shall appoint from among the Lenders a successor administrative agent for the Lenders, which successor administrative agent shall be consented to by the Company at all times other than during the
existence of an Event of Default (which consent of the Company shall not be unreasonably withheld or delayed). If no successor administrative agent is appointed prior to the effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the Company, a successor administrative agent from among the Lenders. Upon the acceptance of its appointment as successor administrative agent hereunder, the Person acting as
such successor administrative agent shall succeed to all the rights, powers and duties of the retiring Administrative Agent and the term “Administrative Agent” shall mean such successor administrative agent and the retiring Administrative
Agent’s appointment, powers and duties as Administrative Agent shall be terminated. After any retiring Administrative Agent’s resignation hereunder as Administrative 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 Administrative Agent under this Agreement. If no successor administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective and the Lenders shall perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above.
10.10 Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on the Company) shall be entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Section 3.01 and 11.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in
any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 3.01 and
11.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or
adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
10.11 Other Agents; Arrangers and Managers. None of the Lenders or other Persons identified on the facing page or signature pages of this Agreement as a “syndication
agent,” “documentation agent,” “co-agent,” “book manager,” “lead manager,” “arranger,” “lead arranger”, “co-syndication agent” or “co-arranger” shall have any
right, power, obligation, liability, responsibility or duty under this Agreement other than, in the case of such Lenders, those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or other Persons so identified
shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
10.12 Release from Subsidiary Guaranty. The Administrative Agent is hereby authorized to release any Guarantor from the Subsidiary Guaranty (Senior Capital Markets Bridge
Facility) in connection with any disposition or merger of such Guarantor permitted hereunder or any sale of all or substantially all of the assets of such Guarantor permitted hereunder. In addition, if more than 50% of the capital stock or other
ownership interest of Unisource or of Unisource Parent is sold to the extent permitted hereunder, then the Administrative Agent is hereby authorized to (i) release Unisource from the Subsidiary Guaranty (Senior Capital Markets Bridge Facility), in
the case of the sale of more than 50% of the capital stock of Unisource, or (ii) release both Unisource Parent and Unisource from the Subsidiary Guaranty (Senior Capital Markets Bridge Facility), in the case of the sale of more than 50% of the
capital stock or other ownership interest of Unisource Parent.
MISCELLANEOUS
11.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Company or any other
Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Company or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
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(a) amend or waive any condition or provision set forth in
Section 6.01 or 6.02 without the written consent of each Lender;
(b) extend
or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 9.02) without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to the
Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on, any Loan, or (subject to clause (ii) of the second proviso to this Section 11.01) any fees or other amounts payable
hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;
(e) amend or change Section 3.05 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;
(f) change any provision of this Section 11.01 or the definition of “Required Lenders” or any
other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;
(g) release any Guarantor from the Subsidiary Guaranty (Senior Capital Markets Bridge
Facility) without the written consent of each Lender, except as otherwise provided in Section 10.12; or
(h) amend this Section 11.01 without the written consent of each Lender;
and,
provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document; and (ii) each of the Fee Letter and Commitment Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(a) General. Unless otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including by facsimile transmission). All
such written notices shall be mailed, faxed or delivered to the applicable address, facsimile number or (subject to subsection (c) below) electronic mail address, and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:
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(i) if to the Company or the
Administrative Agent, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 11.02 or to such other address, facsimile number, electronic mail address or telephone number as shall
be designated by such party in a notice to the other parties; and
(ii) if
to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in Schedule 11.02 or to such other address, facsimile number, electronic mail address or telephone number as shall be designated by
such party in a notice to the Company and the Administrative Agent.
All such notices and other communications shall be deemed to be
given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail, four Business Days
after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of subsection (c) below),
when delivered; provided, however, that notices and other communications to the Administrative Agent pursuant to Article II shall not be effective until actually received by such Person. In no event shall a voicemail message be
effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of
Facsimile Documents and Signatures. Loan Documents may be transmitted and/or signed by facsimile. The effectiveness of any such documents and signatures shall, subject to applicable Law, have the same force and effect as
manually-signed originals and shall be binding on all Loan Parties, the Administrative Agent and the Lenders. The Administrative Agent may also require that any such documents and signatures be confirmed by a manually-signed original thereof;
provided, however, that the failure to request or deliver the same shall not limit the effectiveness of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet and intranet websites may be used only to distribute routine communications,
such as financial statements and other information as provided in Section 7.10, and to distribute Loan Documents for execution by the parties thereto, and may not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative Agent and
the Lenders shall be entitled to rely and act upon any notices (including telephonic Notice of Borrowing or Notice of Conversion/Continuation) purportedly given by or on behalf of the Company even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Company shall indemnify each
Agent-Related Person and each Lender from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Company. All telephonic notices to and other communications with
the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
11.03 No Waiver; Cumulative Remedies. No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right,
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remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.
11.04 Attorney Costs, Expenses and Taxes. The Company agrees (a) to pay or reimburse the Administrative Agent for all costs and expenses actually incurred by the
Administrative Agent in connection with the development, preparation, negotiation and execution of this Agreement and the other Loan Documents and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or
not the transactions contemplated hereby or thereby are consummated), and the consummation and administration of the transactions contemplated hereby and thereby, including all Attorney Costs, (b) to pay or reimburse the Administrative Agent and
each Lender for all costs and expenses actually incurred in connection with the enforcement, attempted enforcement, or preservation of any rights or remedies under this Agreement or the other Loan Documents (including all such costs and expenses
incurred during any “workout” or restructuring in respect of the Obligations and during any legal proceeding, including any proceeding under any Debtor Relief Law), including all Attorney Costs, and (c) to each Lender being replaced
pursuant to Section 4.09, the reasonable out-of-pocket expenses and reasonable fees of counsel not exceeding $5,000 in connection with such replacement. The foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other out-of-pocket expenses incurred by the Administrative Agent, and the cost of independent public accountants and other outside experts retained by the Administrative Agent
or any Lender in connection with this Agreement. All amounts due under this Section 11.04 shall be payable on demand therefor. The agreements in this Section 11.04 shall survive the termination of the Aggregate Commitments and
repayment of all other Obligations.
(a) Whether or not the transactions contemplated hereby are consummated, the Company shall indemnify and hold harmless each Agent-Related Person, each Arranger, each Co-Syndication Agent, each Lender and their
respective Affiliates, directors, officers, employees, counsel, agents and attorneys-in-fact (each, an “Indemnified Party”) from and against any and all liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnified Party in any way relating to or
arising out of or in connection with (i) the execution, delivery, enforcement, performance or administration of any Loan Document or any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the
consummation of the transactions contemplated thereby, (ii) any Commitment, Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property currently or
formerly owned or operated by the Company, any Subsidiary of the Company or any other Loan Party, or any Environmental Liability related in any way to the Company, any Subsidiary of the Company, or any other Loan Party to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs) arise out
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of, are due to, or result from the debtor and creditor relationship created under this Agreement and any other Loan Document, or (iv) any actual
or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim,
investigation, litigation or proceeding) and regardless of whether any Indemnified Party is a party thereto (all the foregoing, collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, as to any
Indemnified Party, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements (including Attorney Costs) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnified Party. No Indemnified Party shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar information transmission systems in connection with this Agreement, nor shall any Indemnified Party have any liability for any indirect or consequential damages relating to
this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after the Closing Date). All amounts due under this Section 11.05 shall be payable on demand therefor. The
agreements in this Section 11.05 shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
(b) The Administrative Agent, the Arrangers and each Lender agree that if 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 Administrative Agent, the Arrangers or any Lender may desire indemnity or defense hereunder, the Administrative Agent, the Arrangers 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; provided, however, that failure by the Administrative Agent, any of the Arrangers or such Lender to so
notify shall not relieve or impair in any way the obligations and duties of the Company herein or in any other Loan Documents. 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 Arrangers 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.
11.06 Payments Set Aside. To the extent that any payment by or on behalf of the Company is made to the Administrative Agent or any Lender, or the Administrative Agent or
any Lender exercises its right of set-off, and such payment or the proceeds of such set-off or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent or such
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Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law
or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such set-off had not occurred,
and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Company may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance
with the provisions of subsection (b) of this Section 11.07, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section 11.07, or (iii) by way of pledge or assignment of a security interest subject
to the restrictions of subsection (f) of this Section 11.07 (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section 11.07 and, to the extent expressly contemplated hereby, the Indemnified
Party) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund (as defined in subsection (g) of this Section 11.07) with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) subject to each
such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date,
shall not be less than $5,000,000 unless the Administrative Agent otherwise consents (such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned; (iii) any assignment of a Commitment or outstanding Loans must be approved by the Administrative Agent unless the Person that is the
proposed assignee is itself a Lender or to an Affiliate of a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee), provided, that any such assignment to an Affiliate of a Lender must be approved by the
Administrative Agent (which approval shall not be unreasonably withheld or delayed); (iv) any Lender, if so requested by the Company pursuant to Section 4.09, shall assign to another Eligible Assignee its entire Commitment and all outstanding
Loans; and (v) the parties to each assignment shall execute and deliver to the
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Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500. Subject to acceptance and recording
thereof by the Administrative Agent pursuant to subsection (c) of this Section 11.07, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to
the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 3.04, 4.02, 4.03, 4.05, 4.06, 11.04 and 11.05 with respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the Company (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be
treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section 11.07. Any assignment or transfer by a Lender hereunder shall not require the
consent of the Company; provided, however, that, with respect to any such assignment or transfer that is to occur prior to November 15, 2002, the assigning or transferring Lender shall consult with the Company with respect thereto.
(c) The Administrative Agent, acting solely for this purpose as an agent of the Company,
shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Company, the Administrative Agent and the Lenders may treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Company and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may at
any time, without the consent of, or notice to, the Company or the Administrative Agent, sell participations to any Person (other than a natural person or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (iii) the Company, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.01 that directly affects such Participant. Subject to subsection (e) of this Section 11.07, the Company
agrees that each Participant shall be entitled to the benefits of
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Sections 3.04, 4.02, 4.03, 4.05 and 4.06 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection (b) of this Section 11.07. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.09 as though it were a Lender, provided such Participant
agrees to be subject to Section 3.05 as though it were a Lender. Any sale of a participation to any Person by a Lender pursuant hereto shall not require the consent of the Company; provided, however, that, with respect to any
such sale of a participation that is to occur prior to November 15, 2002, the selling Lender shall consult with the Company with respect thereto.
(e) A Participant shall not be entitled to receive any greater payment under Section 3.04, 4.02, 4.03 or 4.05 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Company’s prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 3.04 unless the Company is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Company, to comply with Section 11.15
as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. Any such pledge or assignment of a security interest to any Person other than the
Federal Reserve Bank by a Lender pursuant hereto shall not require the consent of the Company; provided, however, that, with respect to any such pledge or assignment that is to occur prior to November 15, 2002, the selling Lender shall
consult with the Company with respect thereto.
(g) As used herein, the following terms
have the following meanings:
“Eligible Assignee” means (a) a Lender; (b) an
Affiliate of a Lender; (c) an Approved Fund; and (d) any other Person (other than a natural person) approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing,
“Eligible Assignee” shall not include the Company or any of the Company’s Affiliates or Subsidiaries.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary
course of its business.
“Approved Fund” means any Fund that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
11.08 Confidentiality. Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such
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disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent requested or required by any regulatory
authority; (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process; (d) to any other party to this Agreement; (e) in connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder; (f) to (i) any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement or
(ii) any direct or indirect contractual counterparty or prospective counterparty (or such contractual counterparty’s or prospective counterparty’s professional advisor) to any credit derivative transaction relating to obligations of the
Loan Parties; provided that such Eligible Assignee, Participant, contractual counterparty, or prospective counterparty (or such contractual counterparty’s or prospective counterparty’s professional advisor) has agreed in writing to
keep such Information confidential to the same extent as required of the Lenders in this Section 11.08; (g) with the written consent of the Company; or (h) to the extent such Information (1) becomes publicly available other than as a result
of a breach of this Section 11.08 or (2) becomes available to the Administrative Agent or any Lender on a non-confidential basis from a source other than the Company. In addition, the Administrative Agent and the Lenders may disclose the
existence of this Agreement and the terms of this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Administrative Agent and the Lenders in connection with the administration and
management of this Agreement, the other Loan Documents, the Commitments, and the Borrowings. For the purposes of this Section 11.08, “Information” means all information received from any Loan Party relating to any Loan Party
or its business, other than any such information that is available to the Administrative Agent or any Lender (x) on a non-confidential basis prior to disclosure by any Loan Party or (y) in accordance with clauses (h)(1) or (h)(2) above in this
Section 11.08. Any Person required to maintain the confidentiality of Information as provided in this Section 11.08 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care
to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
11.09 Set-off. In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and during the continuance of any Event of Default, each Lender
is authorized at any time and from time to time, without prior notice to the Company or any other Loan Party, any such notice being waived by the Company (on its own behalf and on behalf of each Loan Party) to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held by, and other indebtedness at any time owing by, such Lender to or for the credit or the account of the respective Loan Parties
against any and all Obligations owing to such Lender hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or not the Administrative Agent or such Lender shall have made demand under this Agreement or any
other Loan Document and although such Obligations may be denominated in a currency different from that of the applicable deposit or indebtedness. Each Lender agrees promptly to notify the Company and the Administrative Agent 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.
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11.10 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents
shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Company. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the
Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
11.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one
and the same instrument.
11.12 Integration. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement shall
control; provided that the inclusion of supplemental rights or remedies in favor of the Administrative Agent or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof.
11.13 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant
hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any
investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Borrowings, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.
11.14 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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(a) THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN NEW YORK CITY, NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE COMPANY, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE COMPANY, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR
OTHER DOCUMENT RELATED THERETO. THE COMPANY, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
11.16 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS
AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 11.16 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.17 Entire Agreement. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG THE COMPANY, THE LENDERS AND THE ADMINISTRATIVE
AGENT AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS OF SUCH PERSONS, VERBAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF, INCLUDING THE COMMITMENT LETTER (EXCEPT AS EXPRESSLY SET FORTH THEREIN), EXCEPT FOR THE FEE LETTER AND ANY PRIOR
ARRANGEMENTS MADE WITH RESPECT TO THE PAYMENT BY THE COMPANY OF (OR ANY
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INDEMNIFICATION FOR) ANY FEES, COSTS OR EXPENSES PAYABLE TO OR INCURRED (OR TO BE INCURRED) BY OR ON BEHALF OF THE ADMINISTRATIVE AGENT OR THE
LENDERS.
[Signature page follows]
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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: /s/ XXXXXXX X.
XXXXXXX Name: Xxxxxxx X. Xxxxxxx Title: Vice President and Treasurer |
BANK OF AMERICA, N.A., as Administrative Agent and as a Lender By: /s/ XXXXXXX X. XXXXX Name: Xxxxxxx X. Xxxxx Title: Managing
Director |
XXXXXXX XXXXX CREDIT PARTNERS L.P., as a Lender By: /s/ XXXXXX XXXXXX Name: Xxxxxx Xxxxxx Title: Authorized
Signatory |
[Signature page to Credit
Agreement]
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COMMITMENTS
AND PRO RATA SHARES
Lender
|
Commitment |
Pro Rata Share | |||
| |||||
Bank of America, N.A. |
$ |
325,000,000 |
50.0% | ||
Xxxxxxx Sachs Credit Partners L.P. |
$ |
325,000,000 |
50.0% | ||
Total |
$ |
650,000,000 |
100.0% | ||
|
|
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SCHEDULE 1.01(B)
1. Brunswick Building Products, Inc., a Georgia corporation 2. Brunswick P&P, LLC, a Georgia limited liability company 3. Brunswick Pulp &
Paper Company, a Delaware corporation 4. Containerboard, LLC, a Georgia limited liability company 5. CP&P, Inc., a Georgia corporation 6. Fort Xxxxx
Corporation, a Virginia corporation 7. Fort Xxxxx Operating Company, a Virginia corporation 8. Georgia-Pacific Resins, Inc., a Delaware corporation 9. Georgia-Pacific West,
Inc., an Oregon corporation 10. G-P Gypsum Corporation, a Delaware corporation 11. G-P Pulp, LLC, a Georgia limited liability company 12. G-P Resins, LLC, a Georgia limited liability
company 13. G-P West, LLC, a Georgia limited liability company 14. Great Northern Nekoosa Corporation, a Maine corporation 15. Headquarters Company, LLC, a Georgia limited
liability company 16. Leaf Building Products, Inc., a Georgia corporation 17. Leaf River Forest Products, Inc., a Delaware corporation 18. Leaf River, LLC, a Georgia limited liability
company 19. Nekoosa Packaging Corporation, a Delaware corporation 20. Nekoosa Papers Inc., a Wisconsin corporation 21. Pacific Paper, LLC, a Georgia limited liability
company 22. Resins Paper Company, Inc., a Georgia corporation 23. Unisource Worldwide, Inc., a Delaware corporation 24. West Paper Company, Inc., a Georgia
corporation |
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CORPORATE POWER; AUTHORIZATION
None.
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SUBSIDIARIES
GEORGIA-PACIFIC CORPORATION SUBSIDIARIES
The following table lists each subsidiary of Georgia-Pacific Corporation indented under the name of its immediate parent, the percentage of each subsidiary’s voting securities beneficially owned by its immediate parent and the
jurisdiction under the laws of which each subsidiary was organized:
Name |
% of Voting Securities |
Jurisdiction | ||
Georgia-Pacific Corporation |
— |
Georgia | ||
A) Arbor Property and Casualty Limited |
100 |
Bermuda | ||
B) Arkansas Louisiana & Mississippi Railroad Company |
100 |
Delaware | ||
C) Ashley, Drew & Northern Railway Company |
100 |
Arkansas | ||
D) Blue Rapids Railway Company |
100 |
Kansas | ||
E) Xxxxx Board Holding, Inc. |
100 |
Delaware | ||
F) Brunswick Pulp & Paper Company |
100 |
Delaware | ||
1) Brunswick Building Products, Inc. |
100 |
Georgia | ||
2) Brunswick P&P, Inc. |
100 |
Georgia | ||
G) Brunswick Pulp Land Company, Inc. |
100 |
Delaware | ||
H) CP&P, Inc. |
100 |
Georgia | ||
I) Containerboard, LLC |
100 |
Georgia | ||
J) CeCorr, Inc. |
1001 |
Indiana | ||
K) Color-Box, LLC |
100 |
Georgia | ||
L) Xxxxxxx and Princeton R. R. Co. |
100 |
Arkansas | ||
L) ForestExpress, LLC |
28.11592 |
Delaware | ||
N) Fort Xxxxx Corporation |
100 |
Virginia | ||
1) Fort Xxxxx International Holdings, Ltd. |
88.83 |
Virginia | ||
a) Brusara Participacoes Ltda. |
99.994 |
Brazil |
1 |
53% of CeCorr, Inc. is owned by Georgia-Pacific Corporation and 47% is owned by Xxxxx Board Holding Company. |
2 |
Georgia-Pacific Corporation, International Paper Company and Weyerhaeuser Company each own a 28.1159% interest. Xxxx Corporation, Boise Cascade and Willamette
each own a 4.2174% interest. Xxxxxx Xxxxxxx owns a 3% interest. |
3 |
Fort Xxxxx Corporation owns 88.8% of Fort Xxxxx International Holdings, Ltd. And Fort Xxxxx Operating Company owns 11.2%. |
4 |
Fort Xxxxx International Holdings, Ltd. owns 99.99% of Brusara Participacoes Ltda and Fort Xxxxx Corporation owns .001%. |
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Name |
% of Voting Securities |
Jurisdiction | ||
b) China Tissue Co. Ltd. |
50 |
British Virgin Islands | ||
i) Shanghai Cimic Fort Xxxxx Tissue Co. Limited |
98.25 |
People’s Republic of China | ||
c) Crown Zellerbach XX Xxx |
00 |
Xxxxxxxxxxx | ||
d) Crown Zellerbach Interamerica, Inc. |
100 |
Panama | ||
e) Fort Xxxxx de Mexico S.A. de C.V. |
99.95238 |
Mexico | ||
f) Fort Xxxxx Healthcare Management Corporation |
100 |
Delaware | ||
g) Fort Xxxxx Xxxxxxx de Mexico, S.A. de C.V. |
99.986 |
Mexico | ||
i) Manufacturas Fort Xxxxx de Mexico, S.A. de C.V. |
99.9987 |
Mexico | ||
ii) Fort James S.A. de C.V. |
99.9988 |
Mexico | ||
h) Georgia-Pacific Canada Consumer Products, Inc. |
000 |
Xxxxxx | ||
i) Canada Cup (1994) Inc. |
000 |
Xxxxxx | ||
ii) Dixie Canada Corp. |
000 |
Xxxxxx | ||
i) Georgia-Pacific Investment S.a.r.l. |
100 |
US/Luxembourg | ||
i) Georgia-Pacific S.a.r.l. |
100 |
Luxembourg | ||
I) Georgia-Pacific (Bermuda) Finance Limited |
000 |
Xxxxxxx | ||
XX) Xxxxxxx-Xxxxxxx Xxxxxxxxxx S.a.r.l. |
000 |
Xxxxxxxxxx | ||
1) Georgia-Pacific X.X. |
000 |
Xxx Xxxxxxxxxxx | ||
I) Georgia-Pacific S.P.R.L. |
000 |
Xxxxxxx | ||
A) Georgia-Pacific Services S.N.C. |
99.99 |
Belgium | ||
II) Georgia-Pacific France s.c.a. |
97.710 |
France |
5 |
China Tissue Co., Ltd. owns 98.2% of Shanghai CIMIC Fort Xxxxx Tissue Co., Limited and Shanghai Min. Ying Industrial Co. owns 1.8%.
|
6 |
Fort Xxxxx International Holdings, Ltd. owns 99.98% of Fort Xxxxx Xxxxxxx de Mexico, S.A. de C.V. and Fort Xxxxx Operating Company owns .002%.
|
7 |
Fort Xxxxx Xxxxxxx de Mexico, S.A. de C.V. owns 99.998% of Manufacturas Fort Xxxxx de Mexico, S.A. de C.V. and Fort Xxxxx International Holdings, Ltd. owns
..002%. |
8 |
Fort Xxxxx Xxxxxxx de Mexico, S.A. de C.V. owns 99.998% of Fort James S.A. de C.V. and Fort Xxxxx International Holdings, Ltd. owns .002%.
|
9 |
Georgia-Pacific B.V. owns 99.9% of Georgia-Pacific Services S.N.C. and Georgia-Pacific S.P.R.L. owns 1%. |
00 |
Xxxxxxx-Xxxxxxx X.X. xxxx 00.0% xx Xxxxxxx-Xxxxxxx Xxxxxx s.c.a. and Georgia-Pacific S.P.R.L. owns 2.3%. |
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Name |
% of Voting Securities |
Jurisdiction | ||
000 |
Xxxxxxx | |||
00.0000 |
Xxxxxx | |||
C) Laboratoires Polive S.N.C. |
50 |
France | ||
D) Sodipan S.C.A. |
000 |
Xxxxxx | ||
a) Sodipan Transformation S.A.R.L. |
100 |
France | ||
100 |
France | |||
50 |
France | |||
a) Etablissements Ruby S.A. |
90 |
France | ||
III) Georgia-Pacific GB Limited |
58.712 |
United Kingdom | ||
A) British Tissues Limited |
100 |
England | ||
B) Fort Sterling Limited |
100 |
England | ||
a) Xxxxx Xxxxxx |
100 |
England | ||
C) Georgia-Pacific Group Services |
000 |
Xxxxxx Xxxxxxx | ||
Xxxxxxx |
000 |
Xxxxxx Xxxxxxx | ||
D) Xxxx Fibers Limited |
000 |
Xxxxxx Xxxxxxx | ||
IV) Georgia-Pacific Nederland B.V. |
100 |
The Netherlands | ||
A) Georgia-Pacific Belgium B.V.B.A. |
000 |
Xxxxxxx | ||
B) Georgia-Pacific Deutschland GmbH |
100 |
Germany | ||
V) Ipek Kagit A.S. |
50 |
Turkey | ||
VI) Georgia-Pacific S.P.R.L. S. Com p.A. |
100 |
Spain | ||
A. Georgia-Pacific Iberia Holdings S.L. |
100 |
Spain | ||
a) Georgia-Pacific Hellas S.A. |
000 |
Xxxxxx |
00 |
Xxxxxxx-Xxxxxxx Xxxxxx s.c.a owns 99.99% of Georgia-Pacific Brionne SAS and Georgia-Pacific S.P.R.L. owns .01%. |
12 |
Georgia-Pacific B.V. owns 58.7% of Georgia-Pacific GB Limited and Georgia-Pacific France s.c.a. owns 41.3%. |
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Name |
% of Voting Securities |
Jurisdiction | ||
b) Georgia-Pacific Italia S.r.L. |
000 |
Xxxxx | ||
V) Georgia-Pacific Europe Limited |
000 |
Xxxxxx Xxxxxxx | ||
VI) Xxxxxx International Limited |
000 |
Xxxxxx Xxxxxxx | ||
VII) |
100 |
Ireland | ||
A) Handi-Pak Distributors Limited |
100 |
Ireland | ||
VIII) Georgia-Pacific Finland OY |
100 |
Finland | ||
A) Georgia-Pacific Scandinavia AB |
100 |
Sweden | ||
B) Georgia-Pacific Scandinavia A/S |
100 |
Denmark | ||
C) Georgia-Pacific Scandinavia AS |
100 |
Norway | ||
D) Ikaalisten Teollisuuspal-Velu oy |
000 |
Xxxxxxx | ||
X) Xxxxxxx Xxxxxxx Xx |
000 |
Xxxxxxx | ||
F) Nokian Palkallispal-Velutoy |
100 |
Finland | ||
G) Xxx Xxxxxxx-Xxxxxxx (Xxxxxx) |
000 |
Xxxxxx | ||
IX) Georgia-Pacific France S.A.S. |
000 |
Xxxxxx | ||
j) Jarapar Participacoes Ltda. |
99.9913 |
Brazil | ||
k) St. Xxxxxxx Insurance Co. Ltd. |
100 |
Bermuda | ||
3) Fort Xxxxx Maine, Inc. |
100 |
Maine | ||
4) Fort Xxxxx Operating Company |
100 |
Virginia | ||
a) Ecosource Corp. |
100 |
Delaware | ||
b) Fort Xxxxx Xxxxx L.L.C. |
100 |
Washington | ||
c) Fort Xxxxx Fiber Canada Corporation |
100 |
Ontario | ||
d) Fort Xxxxx Xxxxx Bay L.L.C. |
100 |
Wisconsin | ||
e) Fort Xxxxx Northwest L.L.C. |
100 |
Oregon | ||
f) Xxxxxx Associates Ltd. |
100 |
Ontario | ||
g) Xxxxxx International Limited |
100 |
United Kingdom | ||
h) Prim Company L.L.C. |
100 |
Wisconsin |
13 |
Fort Xxxxx International Holdings, Ltd. owns 99.99% of Jarapar Participacoes Ltda and Fort Xxxxx Corporation owns .001%. |
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Name |
% of Voting Securities |
Jurisdiction | ||
i) West Xxxxx, Inc. |
100 |
Delaware | ||
j) Xxxxxxx Wiper Corporation |
10014 |
Wisconsin | ||
5) Naheola Cogeneration Limited Partnership |
9915 |
Delaware | ||
O) G-P California Timber Holdco, Inc. |
100 |
Georgia | ||
P) G-P Gypsum Corporation |
100 |
Delaware | ||
1) KMHC, Incorporated |
100 |
California | ||
a) Compania Occidental Mexicana, S.A. de C.V. |
49 |
Mexico | ||
Q) G-P Pulp, LLC |
100 |
Georgia | ||
R) G-P Receivables, Inc. |
000 |
Xxxxxxxx | ||
X) X-X Xxxx & Fiber Supply, LLC |
100 |
Georgia | ||
T) Georgia-Pacific Childcare Center, LLC |
100 |
Georgia | ||
U) Georgia-Pacific Foreign Holdings, Inc. |
100 |
Delaware | ||
V) Georgia-Pacific Holdings, Inc. |
100 |
Delaware | ||
W) Georgia-Pacific Resins, Inc. |
100 |
Delaware | ||
1) G-P Maine, Inc. |
100 |
Delaware | ||
2) G-P Resins, LLC |
100 |
Georgia | ||
3) Resins Paper Company, Inc. |
100 |
Xxxxxxx | ||
X) Georgia-Pacific Shared Services Corp. |
100 |
Delaware | ||
Y) Georgia-Pacific West, Inc. |
100 |
Oregon | ||
1) Aztec Trading Company, S.A. |
100 |
Panama | ||
2) Flakeboard, Inc. |
100 |
Oregon | ||
a) G-P Flakeboard Company |
0000 |
Xxxxxxx | ||
3) GPMF, Inc. |
100 |
Delaware | ||
4) G-P Canada Finance Company |
100 |
Nova Scotia | ||
5) G-P Canada Holdings, Limited |
100 |
Nova Scotia | ||
a) Beaverwood Finance Company |
100 |
Nova Scotia | ||
b) Georgia-Pacific Canada, Inc. |
100 |
Ontario | ||
i) Flakeboard Canada Incorporated |
100 |
Nova Scotia | ||
ii) Georgia-Pacific (Barbados), Limited |
100 |
Barbados | ||
1) Resinas Concordia |
0000 |
Xxxxxxxx | ||
A) G-P Xxxxxx xx Xxxxxx |
00.0000 |
Xxxxxxxx |
14 |
Fort Xxxxx Operating Company owns 100% of the preferred stock of Xxxxxxx Wiper Corporation and 50% of the common stock. |
15 |
Fort Xxxxx Xxxxxxxxxx, Inc. owns 99% of Naheola Cogeneration, Limited Partnership and Naheola Cogeneration, Inc. owns 1%. |
16 |
67% of G-P Flakeboard Company is owned by Flakeboard, Inc. and 33% is owned by F.B.F. Corporation. |
17 |
50% of Resinas Concordia is owned by Georgia-Pacific (Barbados) Limited and 50% is owned by Georgia-Pacific West, Inc. |
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Name |
% of Voting Securities |
Jurisdiction | ||
6) G-P Latin America, Incorporated |
100 |
Barbados | ||
a) Inversiones (Chile) Georgia-Pacific Limitada |
99.9919 |
Barbados | ||
i) Georgia-Pacific Masisa Resinas Limitada |
99.9920 |
Barbados | ||
7) G-P Securities Company |
8021 |
New Zealand | ||
a) Georgia-Pacific Global Corporation |
100 |
Oregon | ||
i) GPSP, Inc. |
100 |
Delaware | ||
8) Georgia-Pacific Asia, Inc. |
100 |
Delaware | ||
a) Georgia-Pacific-Asia (H. K.) Limited |
10022 |
Hong Kong | ||
9) Georgia-Pacific Building Materials Sales, Ltd. |
000 |
Xxx Xxxxxxxxx | ||
10) Georgia-Pacific de Mexico, S. de X. X. xx X. X. |
00000 |
Xxxxxx | ||
11) Georgia-Pacific Finance, LLC |
100 |
Delaware | ||
12) Georgia-Pacific Foreign Sales Corporation |
000 |
Xxxxxxxx | ||
00) Xxxxxxx-Xxxxxxx XX Holdings, LLC |
100 |
Delaware | ||
14) Georgia-Pacific NZ Company |
100 |
New Zealand | ||
15) Georgia-Pacific U.K. Limited |
100 |
England | ||
16) Georgia Steamship Company, Inc. |
100 |
Delaware | ||
17) Georgia-Pacific GmbH |
0000 |
Xxxxxxxxxxx | ||
18) St. Croix Pulpwood, Limited |
100 |
New Brunswick | ||
19) West Paper Company, Inc. |
100 |
Georgia | ||
20) West Paper, LLC |
100 |
Georgia | ||
Z) Georgia Temp, Inc. |
100 |
Delaware | ||
AA) Gloster Southern Railroad Company |
100 |
Delaware | ||
AB) Great Northern Nekoosa Corporation |
100 |
Maine | ||
1) Chattahoochee Industrial Railroad |
100 |
Georgia |
18 |
99.99% of G-P Masisa de Brazil is owned by Resinas Concordia and .01% is owned by Georgia-Pacific Resinas Limitada . |
19 |
99.99% of Inversiones Georgia-Pacific (Chile) Limitada is owned by G-P Latin America. Incorporated and .01% is owned by Georgia-Pacific (Barbados) Limited.
|
20 |
99.99% of Georgia-Pacific Masisa Resinas Limitada is owned by Inversiones Georgia-Pacific (Chile) Limitada and .01% is owned by Georgia-Pacific (Barbados)
Limited. |
21 |
80% of G-P Securities Company is owned by Georgia-Pacific West, Inc. and 20% is owned by Georgia-Pacific NZ Holdings, LLC. |
22 |
90% of Georgia-Pacific Asia (H.K.) Limited is owned by Georgia-Pacific Asia, Inc. and 10% is owned by Unisource International, Inc.
|
00 |
Xxxxxxx-Xxxxxxx xx Xxxxxx, S. de X.X. de C.V. is owned by both Georgia-Pacific West, Inc. and Georgia-Pacific Investment Company.
|
24 |
90% of Pulpsource GmbH is owned by Georgia-Pacific West, Inc. and 10% is owned by Unisource International, Inc. |
79
Table of Contents
Name |
% of Voting Securities |
Jurisdiction | ||
2) Envases Industriales de Costa Rica, S.A. |
33.3325 |
Costa Rica | ||
3) Fipasa-Fibras Panama, S.A. |
50 |
Panama | ||
4) Great Southern Paper Company |
100 |
Georgia | ||
5) Industria Panamena de Papel, S.A. |
50 |
Panama | ||
6) Leaf River Forest Products, Inc. |
100 |
Delaware | ||
a) LRC Timber, Inc. |
100 |
Delaware | ||
b) Leaf Building Products, Inc. |
100 |
Georgia | ||
c) Leaf River, LLC |
100 |
Georgia | ||
d) Old Augusta Railroad Company |
100 |
Mississippi | ||
7) Nekoosa Packaging Corporation |
100 |
Delaware | ||
a) G-P Total Packaging Solutions, Inc. |
100 |
Delaware | ||
8) Nekoosa Papers Inc. |
100 |
Wisconsin | ||
a) Georgia-Pacific Britain Limited |
89.926 |
Bermuda | ||
AC) Headquarters Company, LLC |
100 |
Georgia | ||
AD) Millennium Packaging Solutions, LLC |
5027 |
Delaware | ||
AE) NATC California Holdings, LLC |
100 |
Delaware | ||
i) NATC California, LLC |
100 |
Delaware | ||
AF) Pacific Paper, LLC |
100 |
Georgia | ||
AG) Phoenix Athletic Club, Inc. |
100 |
Georgia | ||
AH) Southwest Millwork and Specialties, Inc. |
100 |
Delaware | ||
1) Maderas Xxxxxx X. X. xx X. X. |
00000 |
Xxxxxx | ||
AI) Tomahawk Land Company |
100 |
Delaware | ||
AJ) Unisource Worldwide, Inc. |
100 |
Delaware | ||
1) Alco Realty, Inc. |
100 |
Delaware | ||
a) Alco Canada Realty Ltd. |
000 |
Xxxxxxx | ||
2) BRT, Inc. |
100 |
Delaware | ||
3) Packaging Concepts International Corp. |
100 |
New Jersey | ||
4) Paper Corporation of North America |
100 |
Delaware | ||
a) Unisource Canada, Inc. |
100 |
Ontario |
25 |
33.33% of Envases Industriales de Costa Rica, S.A. is owned by Great Northern Nekoosa Corporation and 66.67% is owned by Del Monte Fresh Produce International,
Inc. |
26 |
89.9% of Georgia-Pacific Britain Limited is owned by Nekoosa Papers Inc. and 10.1% is owned by Great Northern Nekoosa Corporation.
|
27 |
50% of Millennium Packaging Solutions, LLC is owned by Georgia-Pacific Corporation and 50% is owned by National Packaging Solutions Group.
|
28 |
99.6% of Maderas Xxxxxx X.X. de C.V. is issued to Southwest Millwork and Specialties, Inc. and the remaining .4% is issued to Georgia-Pacific Shared Services
Corp., Georgia-Pacific Holdings, Inc, Georgia-Pacific Pulpwood Company and Georgia-Pacific West, Inc. in equal parts. 100% of Series B stock and 100% of Series C stock are issued to Southwest Millwork and Specialties, Inc.
|
80
Table of Contents
Name |
% of Voting Securities |
Jurisdiction | ||
b) Unisource Distribudora, S.A. de C.V. |
000 |
Xxxxxx | ||
i) Servicios Corporativos, Unisource, S.A. de C.V. |
99.929 |
Mexico | ||
ii) Unisource del Centro, S.A. de C.V. |
99.930 |
Mexico | ||
iii) Unisource Empaque, S.A. de C.V. |
99.931 |
Mexico | ||
iv) Unisource Servicios, S.A. de C.V. |
99.932 |
Mexico | ||
5) Portfolio Receivables, Inc. |
100 |
Delaware | ||
a) Portfolio Receivables, LLC |
100 |
Delaware | ||
6) UniMadison, Inc. |
100 |
Wisconsin | ||
7) Unisource Capital Corporation |
100 |
Delaware | ||
8) The Unisource Corporation |
100 |
Texas | ||
9) Unisource Holdings, Inc. |
100 |
Delaware | ||
10) Unisource International, Inc. |
100 |
Delaware | ||
a) Unisource International Handelgesellschaft m.b.H. |
99 |
Austria | ||
b) Xxxxxxxxx Xxxxxxxxxxxxx Xxxx Xxxx Xxxxxxx |
00 |
Xxxx Xxxx | ||
c) Unisource International Limited |
100 |
Jamaica | ||
11) Unisource Realty, Inc. |
100 |
Delaware | ||
12) Unisource Sales Corporation |
100 |
Delaware | ||
AK) XRS, Inc. |
100 |
Delaware |
29 |
99.9% is owned by Unisource Distribudora, S.A. de C.V. and .01% is owned by Unisource Servicios S.A. de C.V. |
30 |
99.9% is owned by Unisource Distribudora, S.A. de C.V. and .01% is owned by Unisource Servicios S.A. de C.V. |
31 |
99.9% is owned by Unisource Distribudora, S.A. de C.V. and .01% is owned by Unisource Servicios S.A. de C.V. |
32 |
99.9% is owned by Unisource Distribudora, S.A. de C.V. and .01% is owned by Servicios Corporativos, Unisource S.A. de C.V. |
81
Table of Contents
ENVIRONMENTAL MATTERS
Section 5.12(a)
None.
Section 5.12(b)(i)
None.
Section 5.12(b)(ii)
1. |
Fox River, Green Bay, Wisconsin |
2. |
Kalamazoo, Michigan |
Section 5.12(c)
1. |
Fox River, Green Bay, Wisconsin |
2. |
Kalamazoo, Michigan |
Section 5.12(d)
None.
Section 5.12(e)
1. |
Fox River, Green Bay, Wisconsin |
2. |
Kalamazoo, Michigan |
Section 5.12(f)
None.
Section 5.12(g)
None.
Section 5.12(h)
None.
Section 5.12(i)
None.
82
Table of Contents
LABOR MATTERS
None.
83
Table of Contents
ERISA
Incorporated by reference herein is Note 11 to the Company’s consolidated financial statements in the Annual Report to the Shareholders for the fiscal year ended December 29, 2001.
84
Table of Contents
EXISTING LIENS
1. Liens arising in connection with various bond financings:
DEBT RELATED TO
LIENS |
PRINCIPAL OUTSTANDING |
DESCRIPTION OF ASSETS COVERED BY LIENS | ||
Xxxxx County, GA IRB |
$ 9,000,000 |
Hampton, GA Roofing Plant | ||
Grenada, MS Small IRB |
1,000,000 |
Grenada, MS OSB Plant – All Assets | ||
Xxxxxx County, FL $2.5 IRB |
410,000 |
Palatka, FL Oxidation Pond, Equipment & Land | ||
Xxxxxx County, FL |
5,490,000 |
Palatka, FL Machinery & Equipment | ||
Port Xxxxxx 7&7 IRB |
8,000,000 |
East Baton Rouge, LA Land Site/Pollution Control Facility | ||
Greenville County, VA Small IRB |
1,000,000 |
Greenville, VA OSB Pollution Control Facility | ||
Perry County, MS Pollution Control Bonds |
73,000,000 |
Pulp Mill and Administration* | ||
Perry County, MS Pollution Control Bonds |
23,600,000 |
Pulp Mill and Administration* | ||
Bedford County, VA Pollution Control Bonds |
5,600,000 |
Bedford Pollution Control Facility | ||
Xxxxxxxx County, MS Pollution Control Bonds |
12,200,000 |
Monticello Mill Pollution Control and Solid Waste Disposal Facility | ||
Little River County Pollution Control Bonds |
91,450,000 |
Pollution Control Facilities at Ashdown Plant | ||
City of Kansas, MO IRB |
9,000,000 |
Corrugated Box Manufacturing Plant In Kansas City |
85
Table of Contents
DEBT RELATED TO
LIENS |
PRINCIPAL OUTSTANDING |
DESCRIPTION OF ASSETS COVERED BY LIENS | ||
Town of Baileyville, ME Pollution Control Bonds |
7,500,000 |
Pollution Control Facilities at Woodland Plant | ||
Xxxxxxxx County, VA Pollution Control Bonds |
19,500,000 |
Upgrade to Equipment |
2. Other Liens not arising in connection with Unisource assets:
a. Any liens created by the Company 1999 Receivables Program.
b. Fayette County, $11,100,000, Upgrade to Equipment
x. Xxxxxxxx, AR, $28,300,000, Upgrade to Equipment
x. Xxxxxxxx, AR, $18,000,000, Upgrade to Equipment
3. Other Liens arising in connection with Unisource assets:
a. Liens securing the following Indebtedness for Money Borrowed:
DESCRIPTION |
MATURITY DATE |
AMOUNT | |||
Industrial Revenue Bond |
2000 |
$ |
56,000 | ||
Capital Leases—Phones |
Various |
|
20,000 | ||
Capital Leases—Vehicles |
Various |
|
429,000 | ||
Capital Leases—Real Estate |
Various |
|
11,091,000 | ||
Capital Leases—Other |
Various |
|
367,000 | ||
Loan—Insurance Policy |
|
140,000 | |||
Miscellaneous |
Various |
|
1,518,000 |
b. |
Landlord lien against assets located on leased real property in Quebec, Canada: Xxx Xxxxxx, Xxxxxx Xxxx, Xxxxxx, Xxxxxx; and Cote xx Xxxxxx, Xx. Xxxxxxx,
Xxxxxx, Xxxxxx. |
c. |
Liens under SunTrust Synthetic Lease: Lease and Development Agreement, dated as of November 8, 1994, as modified from time to time and as assigned to SunTrust
Bank by PPI SPV, L.P., pursuant to the Loan Agreement dated as of November 8, 1994, as amended from time to time, between PPI SPV, L.P. and SunTrust. |
86
Table of Contents
x. |
Xxxx evidenced by the financing statements reflected on attached list on the specific collateral covered by such financing statements.
|
e. |
See also chart attached below. |
4. |
Notwithstanding anything in this Schedule 8.01, any other Schedule to the Credit Agreement or the Credit Agreement to the contrary, any and all liens reflected
on this Schedule 8.01 securing the Indebtedness for Borrowed Money incurred by Unisource Worldwide, Inc. under its existing senior credit facility shall be terminated upon the Company’s refinancing thereof in accordance with the provisions of
Credit Agreement. |
87
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Xxxxx Group Limited (Inc.) East Rutherford, NJ |
Modern Handling Equipment of N.J., Inc., Edison, NJ |
forklift |
1739749 |
12/18/96 | ||||
Xxxxx Group Limited (Inc.) East Rutherford, NJ |
Modern Handling Equipment of N.J., Inc., Edison, NJ |
forklift |
1725065 |
10/02/96 | ||||
Xxxxx Group Limited Xxxxxxx, NJ |
Associates Leasing, Inc., Cleveland, OH |
forklift |
1634968 |
03/07/95 | ||||
Xxxxx Group Limited Xxxxxxx, NJ |
Associates Leasing, Inc., Cleveland, OH |
forklift |
1611518 |
01/03/95 | ||||
Xxxxx Group LTD East Rutherford, NJ |
Modern Handling Equipment of N.J., Inc., Edison, NJ |
forklift |
1631832 |
04/27/95 | ||||
Xxxxx Group LTD East Rutherford, NJ |
Modern Handling Equipment of N.J., Inc., Edison, NJ |
forklift |
1617742 |
02/09/95 | ||||
Columbia Packaging Pasco, WA |
Monterey Leasing Yakima, WA |
equipment |
963460234 |
12/11/96 | ||||
Conifer Crent Company (Inc.), Richmond, CA |
Xxxxx Co., Inc. Hayward, CA |
forklift |
9712060544 |
04/28/97 | ||||
Conifer Crent Company (Inc.), Richmond, CA |
Xxxxx Co., Inc. Hayward, CA |
forklift |
9712060558 |
04/28/97 | ||||
Conifer Crent Company (Inc.), Richmond, CA |
RJMS Corp. dba Toyota Material Handling, Northern California Hayward, CA
|
equipment |
9712060537 |
04/28/97 | ||||
Conifer Crent Company (Inc.), Richmond, CA |
Xxxxx Co., Inc. Hayward, CA |
forklift |
9524360195 |
08/28/95 | ||||
Conifer Crent Company (Inc.), Richmond, CA |
Xxxxx Co., Inc. Hayward, CA |
forklift |
9524360203 |
08/28/95 | ||||
Conifer Crent Company (Inc.), Richmond, CA |
Xxxxxxx Company Minneapolis, MN |
power sweeper and options |
9517860367 |
06/23/95 |
88
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Conifer Crent Company (Inc.), Richmond, CA |
Hewlett-Packard Company, Finance & Remarketing Division, Sunnyvale, CA
|
equipment |
9525760316 |
09/08/95 | ||||
Conifer Crent Company (Inc.), Richmond, CA |
Xxxxx Co., Inc. Hayward, CA |
forklift |
93244326 |
12/06/93 | ||||
Conifer Crent Company (Inc.), Richmond, CA |
Xxxxx Co., Inc. Hayward, CA |
forklift |
93244327 |
12/06/93 | ||||
Conifer Crent Company (Inc.), Richmond, CA |
Xxxxx Co., Inc. Hayward, CA |
forklift |
94163349 |
08/10/94 | ||||
Conifer Crent Company (Inc.), Richmond, CA |
Xxxxx Co., Inc. Hayward, CA |
forklift |
94163350 |
08/10/94 | ||||
Conifer Crent Company (Inc.), Richmond, CA |
Siemens Credit Corporation, Boca Raton, FL |
telephone system lease and installation |
93190248 |
09/17/93 | ||||
Conifer Crent Company (Inc.), Richmond, CA |
Yale Financial Services, Inc. Flemington, NJ |
equipment |
93128920 |
06/24/93 | ||||
Engineered Packaging Systems, a Division of Unisource Worldwide, Oshtemo, MI |
Cargill Leasing Corporation, Minneapolis, MN |
equipment |
D125389 |
08/07/96 | ||||
Foremost Corrugated Company, Inc., Moonachie, NJ |
Xxxxxx Equipment Company, Union, NJ |
forklifts |
1705474 |
06/19/96 | ||||
Foremost Corrugated Company, Inc., Moonachie, NJ |
Xxxxxx Equipment Company, Union, NJ |
forklifts |
1636968 |
05/26/9? | ||||
National Sanitary Supply Co., Houston, TX |
Federal Sign, Division of Federal Signal Corporation, Houston, TX |
roof sign |
172305 |
08/29/96 |
89
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
National Sanitary Supply Co., Houston, TX |
Federal Sign, Division of Federal Signal Corporation, Houston, TX |
sign, letters and overlay face |
913866 |
09/09/96 | ||||
National Sanitary Supply Company, Fairfield, OH |
Portman Equipment Company, Monroe, OH |
lift trucks |
9802002459 |
04/30/98 | ||||
National Sanitary Supply Company, Los Angeles, CA |
General Electric Co., Lighting Business Group, Cleveland, OH |
lamps and bulbs |
M87854 |
09/16/88 continued | ||||
National Sanitary Supply Company, Los Angeles, CA |
General Electric Co., Lighting Business Group, Cleveland, OH |
lamps and bulbs |
545989 |
09/15/88 continued | ||||
National Sanitary Supply Company, Los Angeles, CA |
State Board of Equalization, Sacramento, CA |
tax lien |
961569178 |
09/24/96 | ||||
Packaging Consultants, Minneapolis, MN |
Minnesota Lift Truck, Inc., Brooklyn Park, MN |
forklift |
1626526 |
11/01/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93122665 |
06/21/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor trailer and accessories |
93146366 |
07/22/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
van and accessories |
93258721 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258722 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258723 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258754 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258755 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258756 |
12/27/93 |
90
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258757 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258758 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258759 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258761 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
van and accessories |
93258762 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258763 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258765 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258766 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
94020760 |
02/03/94 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
94022911 |
02/09/94 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
94028639 |
02/16/94 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258743 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258744 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258745 |
12/27/93 |
91
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258746 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258747 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258748 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
van and accessories |
93258749 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
van and accessories |
93258750 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258751 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258752 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258753 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
93258724 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
van and accessories |
93258726 |
12/27/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
748246 |
06/21/93 | ||||
Paper Corporation of America, Carson, CA |
Fleet Credit Corporation, Providence, RI |
tractors |
783825 |
04/25/94 | ||||
Paper Corporation of America, Unijax Xxxxx, Jacksonville, FL |
General Electric Company, GE Lighting, Cleveland, OH |
lights |
223018 |
08/10/93 |
92
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Paper Plus, Houston, TX |
Southwestern Xxxx Telecommunications, Inc., dba Southwestern Xxxx Telecom, Richardson,
TX |
equipment |
229263 |
11/29/95 | ||||
Peerless Products Company, Salt Lake City, UT |
Legacy Financial, dba Legacy Leasing, Murray, UT |
conveyor dishmachine |
438358 |
05/12/95 | ||||
Peerless Products Company, Salt Lake City, UT |
Legacy Financial, Inc. Murray, UT |
equipment |
428053 |
02/23/95 | ||||
Rollsource, a division of Unisource Worldwide, Des Plaines, IL |
International Paper Company, Memphis, TN |
paper |
3474311 |
11(?)/29/95 | ||||
Rollsource, a division of Unisource Worldwide, Des Plaines, IL |
International Paper Company, Memphis, TN |
paper |
3474311 |
(?)/29/95 | ||||
Rollsource, a Unisource division, Des Plaines, IL |
International Paper Company, Memphis, TN |
envelope paper |
3723618 |
08/01/97 | ||||
Santa Xxxx Paper Company, Santa Rosa, CA |
Bay West Paper Corporation |
paper towels |
408719 |
02/03/98 | ||||
Santa Xxxx Paper Company, Santa Rosa, CA |
Bay West Paper Corporation, a Mosinee subsidiary, Harrodsburg, KY |
paper towels and accessories |
9800260299 |
12/29/97 | ||||
Santa Xxxx Paper Company, Santa Rosa, CA |
Xxxxxx Capital Corporation, Novato, CA |
forklifts and ramp system |
9633760088 |
11/27/96 | ||||
Santa Xxxx Paper Company, Santa Rosa, CA |
Xxxxxx Capital Corporation, Novato, CA |
computer equipment and building materials |
9706961371 |
03/05/97 | ||||
Set Point Paper Co., Inc., Mansfield, MA |
Xxxxx/Xxxxx, Inc., Waltham, MA |
pallet truck and accessories |
9859 |
01/17/95 | ||||
Set Point Paper Co., Inc., Mansfield, MA |
Xxxxx/Xxxxx, Inc., Waltham, MA |
order picker and accessories |
9793 |
10/11/94 |
93
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Set Point Paper Co., Inc., Mansfield, MA |
Xxxxx/Xxxxx, Inc., Waltham, MA |
pallet truck and accessories |
9811 |
10/31/94 | ||||
Set Point Paper Co., Inc., Mansfield, MA |
Xxxxxxx Handling Equipment, East Providence, RI |
equipment |
221510 |
03/14/94 | ||||
Set Point Paper Co., Inc., Mansfield, MA |
Xxxxxxx Handling Equipment, East Providence, RI |
equipment |
9664 |
03/14/94 | ||||
Xxxxx-Xxxxxxx Company, Inc. Glendale, NY |
Advanta Leasing Corp., Voorhees, NJ |
cameras and video equipment |
942089 |
12/27/94 | ||||
Sunland Sanitary Supply, Inc. Albuquerque, NM |
Forklift Systems, Inc. Denver, CO |
forklift |
960212011 |
02/12/96 | ||||
Sunland Sanitary Supply, Inc. Pueblo, CO |
Forklift Systems, Inc. Denver, CO |
forklift |
962003074 |
01/11/96 | ||||
Xxxxxxxxx, Inc. a/k/a Xxxxxxxxx Paper Company, Brooklyn Park, MN |
National City Bank of Minneapolis |
equipment |
1672556 |
05/09/94 | ||||
Unisource Worldwide, dba Roll Source, Des Plaines, IL |
Atlas Lift Truck Rentals & Sales, Inc., Schiller Park, IL |
forklift and equipment |
3387556 |
04/12/95 | ||||
Unisource Worldwide, dba Roll Source, Des Plaines, IL |
Atlas Lift Truck Rentals & Sales, Inc., Schiller Park, IL |
forklift |
3387556 |
04/12/95 | ||||
Unisource Worldwide, Huntington Beach, CA |
Yale/Chase Materials Handling, Inc., City of Industry, CA |
forklift and accessories |
9821060070 |
07/27/98 | ||||
Unisource Worldwide, Inc., dba Fleetwood Paper Company, Addison, IL |
Triangle Home Products, Inc., Chicago, IL |
foam blocks |
3469348 |
11/13/95 |
94
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Unisource Worldwide, Inc., dba Xxxx-Xxx Division, Oklahoma City, OK |
Rock-Tenn Converting Company, Norcross, GA |
hot melt midget sealer |
053144 |
10/15/97 | ||||
Unisource Worldwide, Inc., dba Xxxx-Xxx Division, Oklahoma City, OK |
Rock-Tenn Converting Company, Norcross, GA |
hot melt midget sealer |
233521 |
11/12/97 | ||||
Unisource Worldwide, Inc., dba Xxxx-Xxx Division, Oklahoma City, OK |
Rock-Tenn Converting Company, Norcross, GA |
hot melt midget sealer |
053144 |
10/15/97 | ||||
Unisource Worldwide, Inc., dba Xxxx-Xxx Division, Oklahoma City, OK |
Rock-Tenn Converting Company, Norcross, GA |
hot melt midget sealer |
233521 |
11/12/97 | ||||
Unisource Worldwide, Inc., dba Unisource Paper Company, Houston, TX |
NFC Financial, Corte Madera, CA |
equipment |
198731 |
10/10/94 | ||||
Unisource Worldwide, Inc., fka Paper Corporation of America, Carson, CA
|
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
94061730 |
04/06/94 | ||||
Unisource Worldwide, Inc., fka Paper Corporation of America, Carson, CA
|
Fleet Credit Corporation, Providence, RI |
tractor and accessories |
9404436 |
04/14/94 | ||||
Unisource Worldwide, Inc., Addison, IL |
First Access, Bedford Park, IL |
forklift |
3759238 |
11/04/97 |
95
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Unisource Worldwide, Inc., Addison, IL |
First Access, Bedford Park, IL |
forklift |
3851676 |
05/18/98 | ||||
Unisource Worldwide, Inc., Addison, IL |
Triangle Home Products, Chicago, IL |
foam blocks |
(?) |
(?) | ||||
Unisource Worldwide, Inc., Berwyn, PA |
Siemens Credit Corporation, Bridgewater, NJ |
telephone equipment |
172736 |
08/11/98 | ||||
Unisource Worldwide, Inc., Berwyn, PA |
Siemens Credit Corporation, Bridgewater, NJ |
telephone system upgrade |
98014751 |
08/18/98 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
van and accessories |
B806932 |
08/06/98 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor trailers |
(?) |
04/20/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
94120531 |
06/14/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
94120532 |
06/14/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
94120533 |
06/14/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
94120534 |
06/14/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
94120535 |
06/14/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
94120536 |
06/14/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
94120537 |
06/14/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
94120538 |
06/14/94 |
96
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
94120539 |
06/14/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
94120540 |
06/14/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
94120542 |
06/14/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
94151253 |
?/?/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
94154762 |
07/29/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
94174728 |
08/26/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
9429560225 |
10/06/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
0000000000 |
10/06/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
9429560230 |
10/06/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
9429560236 |
10/06/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
9429560239 |
10/06/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
0000000000 |
11/17/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
9433960376 |
11/17/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
9429560242 |
10/06/94 |
97
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
9429560247 |
10/06/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
224662 |
06/16/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
224663 |
06/16/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
224664 |
06/16/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
224665 |
06/16/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
224666 |
06/16/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
235526 |
09/?/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Fleet Capital Corp. Providence, RI |
tractor and accessories |
B631569 |
10/06/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Pitney Xxxxx Credit Corporation, Costa Mesa, CA |
tractor and accessories |
94178443 |
08/30/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Pitney Xxxxx Credit Corporation, Costa Mesa, CA |
tractor and accessories |
94178448 |
08/30/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Pitney Xxxxx Credit Corporation, Costa Mesa, CA |
tractor and accessories |
9434660568 |
11/22/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Pitney Xxxxx Credit Corporation, Costa Mesa, CA |
truck with van body and tractor |
B636534 |
11/18/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Pitney Xxxxx Credit Corporation, Seal Beach, CA |
tractor and accessories |
9501861157 |
01/03/95 | ||||
Unisource Worldwide, Inc., Carson, CA |
Pitney Xxxxx Credit Corporation, Seal Beach, CA |
tractor and accessories |
0000000000 |
01/03/95 |
98
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Unisource Worldwide, Inc., Carson, CA |
Pitney Xxxxx Credit Corporation, Seal Beach, CA |
tractor and accessories |
0000000000 |
01/03/95 | ||||
Unisource Worldwide, Inc., Carson, CA |
Pitney Xxxxx Credit Corporation, Seal Beach, CA |
tractor and accessories |
9507661030 |
03/15/95 | ||||
Unisource Worldwide, Inc., Carson, CA |
Pitney Xxxxx Credit Corporation, Seal Beach, CA |
tractor and accessories |
9500081 |
01/03/95 | ||||
Unisource Worldwide, Inc., Carson, CA |
Pitney Xxxxx Credit Corporation, Seal Beach, CA |
tractor and accessories |
9500082 |
01/03/95 | ||||
Unisource Worldwide, Inc., Carson, CA |
Pitney Xxxxx Credit Corporation, Seal Beach, CA |
tractor and accessories |
9503559 |
03/15/95 | ||||
Unisource Worldwide, Inc., Carson, CA |
Pitney Xxxxx Credit Corporation, Seal Beach, CA |
truck and accessories |
408825 |
08/29/94 | ||||
Unisource Worldwide, Inc., Carson, CA |
Pitney Xxxxx Credit Corporation, Seal Beach, CA |
truck and accessories |
408826 |
08/29/94 | ||||
Unisource Worldwide, Inc., Cincinnati, OH |
El Camino Resources, Ltd., Woodland Hills, CA |
master lease and equipment thereunder |
94-133726 |
08/01/94 | ||||
Unisource Worldwide, Inc., Cincinnati, OH |
El Camino Resources, Ltd., Woodland Hills, CA |
master lease and equipment thereunder |
95-8542 |
01/23/95 | ||||
Unisource Worldwide, Inc., City of Commerce, CA |
Potlatch Corporation, Santa Ana, CA |
paper roll stock |
9620860456 |
07/24/96 | ||||
Unisource Worldwide, Inc., Commerce, CA |
Xxxxxxx Leasing Corporation, Greene, NY |
reach trucks and batteries |
9814060238 |
05/18/98 | ||||
Unisource Worldwide, Inc., Commerce, CA |
Xxxxxxx Leasing Corporation, Greene, NY |
reach trucks and batteries |
9814060241 |
05/18/98 | ||||
Unisource Worldwide, Inc., Commerce, CA |
Xxxxxxx Leasing Corporation, Greene, NY |
orderpickers and batteries |
0000000000 |
05/18/98 | ||||
Unisource Worldwide, Inc., Commerce, CA |
Xxxxxxx Leasing Corporation, Greene, NY |
fork truck |
9814060256 |
05/18/98 |
99
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Unisource Worldwide, Inc., Commerce, CA |
Xxxxxxx Leasing Corporation, Greene, NY |
fork trucks |
9814060258 |
05/18/98 | ||||
Unisource Worldwide, Inc., Dallas, TX |
American Business Leasing, Inc., Bala Cynwyd, PA |
control station with accessories |
089353 |
05/06/96 | ||||
Unisource Worldwide, Inc., Dallas, TX |
CLG, Inc., Raleigh, NC |
equipment lease |
191458 |
09/26/96 | ||||
Unisource Worldwide, Inc., Dallas, TX |
Vanguard Financial Services Corp., Lombard, IL |
inkjet plotter |
238967 |
12/14/95 | ||||
Unisource Worldwide, Inc., Exton, PA |
Hewlett-Packard Company, Finance and Remarketing Division, Atlanta, GA
|
equipment |
28850159 |
04/23/98 | ||||
Unisource Worldwide, Inc., Exton, PA |
Hewlett-Packard Company, Finance and Remarketing Division, Atlanta, GA
|
equipment |
ST98-1180 |
04/23/98 | ||||
Unisource Worldwide, Inc., Exton, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
28250139 |
11/21/97 | ||||
Unisource Worldwide, Inc., Exton, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
28550227 |
02/10/98 | ||||
Unisource Worldwide, Inc., Exton, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
29050637 |
06/16/98 | ||||
Unisource Worldwide, Inc., Exton, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
ST97-3788 |
11/21/97 |
100
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Unisource Worldwide, Inc., Exton, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
418502 |
04/16/98 | ||||
Unisource Worldwide, Inc., Exton, PA |
Portfolio Receivables, LLC, Wilmington, DE |
receivables |
28060896 |
10/03/97 | ||||
Unisource Worldwide, Inc., Jacksonville, FL |
First Fleet Corporation Ft. Lauderdale, FL |
tractors |
940000142951 |
07/15/94 | ||||
Unisource Worldwide, Inc., Jacksonville, FL |
First Fleet Corporation Ft. Lauderdale, FL |
tractors |
950000046311 |
03/08/95 | ||||
Unisource Worldwide, Inc., Jacksonville, FL |
First Fleet Corporation Ft. Lauderdale, FL |
tractors |
950000160184 |
08/10/95 | ||||
Unisource Worldwide, Inc., Jacksonville, FL |
First Fleet Corporation Ft. Lauderdale, FL |
tractors |
960000063193 |
03/28/96 | ||||
Unisource Worldwide, Inc., Jacksonville, FL |
First Fleet Corporation Ft. Lauderdale, FL |
tractors |
970000169895 |
07/30/97 | ||||
Unisource Worldwide, Inc., Jacksonville, FL |
First Fleet Corporation Ft. Lauderdale, FL |
tractors |
980000015067 |
01/22/98 | ||||
Unisource Worldwide, Inc., Jacksonville, FL |
First Fleet Corporation Ft. Lauderdale, FL |
trucks and tractor |
980000173779 |
08/05/98 | ||||
Unisource Worldwide, Inc., Jacksonville, FL |
First Fleet Corporation Ft. Lauderdale, FL |
tractors |
950000015124 |
01/24/95 | ||||
Unisource Worldwide, Inc., Jacksonville, FL |
IBM Credit Corporation, Aramonk, NY |
computer equipment |
980000145914 |
07/02/98 | ||||
Unisource Worldwide, Inc., Jacksonville, FL |
Sun Financial Group, Inc., Tampa, FL |
equipment |
950000184112 |
09/13/95 | ||||
Unisource Worldwide, Inc., Jacksonville, FL |
The CIT Group/ Equipment Financing, Inc., Atlanta, GA |
assignment of tractors on 950000015124 |
950000203187 |
10/09/95 |
101
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Unisource Worldwide, Inc., Kapolei, HI |
Servco Financial Corp., Equipment Leasing Group, Honolulu, HI |
7 Mobile Radios 2 Portable Radios 2 Remote Speaker Mic 7 Mobile Installation |
95-089967(?) |
7/?/95 | ||||
Unisource Worldwide, Inc., Norristown, PA |
Arbor Handling Services, Inc., Willow Grove, PA |
equipment |
24110766 |
03/23/95 | ||||
Unisource Worldwide, Inc., Norristown, PA |
Arbor Handling Services, Inc., Willow Grove, PA |
equipment |
24370495 |
06/13/95 | ||||
Unisource Worldwide, Inc., Wayne, PA |
Ameritech Credit Corporation, Rolling Meadows, IL |
telecommunications and data equipment |
2110280 |
03/11/97 | ||||
Unisource Worldwide, Inc., Wayne, PA |
Ameritech Credit Corporation, Rolling Meadows, IL |
telecommunications and data equipment |
26450345 |
03/11/97 | ||||
Unisource Worldwide, Inc., Wayne, PA |
Associates Leasing, Inc., Irving, TX |
prime mover and equipment |
26311017 |
01/28/97 | ||||
Unisource Worldwide, Inc., Wayne, PA |
Associates Leasing, Inc., Irving, TX |
equipment |
26311018 |
01/28/97 | ||||
Unisource Worldwide, Inc., Wayne, PA |
Associates Leasing, Inc., Irving, TX |
equipment |
26311019 |
01/28/97 | ||||
Unisource Worldwide, Inc., Wayne, PA |
Associates Leasing, Inc., Irving, TX |
equipment |
26311028 |
01/28/97 | ||||
Unisource Worldwide, Inc., Wayne, PA |
Associates Leasing, Inc., Irving, TX |
equipment |
26311029 |
01/28/97 | ||||
Unisource Worldwide, Inc., Wayne, PA |
Associates Leasing, Inc., Irving, TX |
equipment |
26311133 |
01/28/97 | ||||
Unisource Worldwide, Inc., Wayne, PA |
Associates Leasing, Inc., Irving, TX |
forklift |
28330112 |
12/18/97 | ||||
Unisource Worldwide, Inc., Wayne, PA |
First Fleet Corp., Fort Lauderdale, FL |
trucks (tractors) |
23190941 |
06/03/94 |
102
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Unisource Worldwide, Inc., Wayne, PA |
First Fleet Corp., Fort Lauderdale, FL |
trucks (tractors) |
23190942 |
?/?/94 | ||||
Unisource Worldwide, Inc., Wayne, PA |
Integrated Systems Solutions Corporation, White Plains, NY |
ISSC Inventory Management System |
25210654 |
03/01/96 | ||||
Unisource Worldwide, Inc., Wayne, PA |
Integrated Systems Solutions Corporation, White Plains, NY |
inventory management system |
96-200464 |
03/05/96 | ||||
Unisource Worldwide, Inc., Wayne, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
3686037 |
5?/06/97 | ||||
Unisource Worldwide, Inc., Wayne, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
24670474 |
09/14/95 | ||||
Unisource Worldwide, Inc., Wayne, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
24911140 |
11/27/95 | ||||
Unisource Worldwide, Inc., Wayne, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
25011274 |
12/26/95 | ||||
Unisource Worldwide, Inc., Wayne, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
26651463 |
05/07/97 | ||||
Unisource Worldwide, Inc., Wayne, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
9526160763 |
09/14/95 | ||||
Unisource Worldwide, Inc., Wayne, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
9536160245 |
12/26/95 |
103
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Unisource Worldwide, Inc., Wayne, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
178118 |
09/14/95 | ||||
Unisource Worldwide, Inc., Wayne, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
950000235362 |
11/22/95 | ||||
Unisource Worldwide, Inc., Wayne, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
950000241232 |
12/04/95 | ||||
Unisource Worldwide, Inc., Wayne, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
256391 |
09/18/95 | ||||
Unisource Worldwide, Inc., Wayne, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
258117 |
12/29/95 | ||||
Unisource Worldwide, Inc., Wayne, PA |
M&SD Financial Services, a Division of Electronic Data Systems Corporation, Lyndhurst, NJ |
telecommunications equipment and lease of same |
471213 |
09/14/95 | ||||
Unisource Worldwide, Inc., Wayne, PA |
O/E Systems, Inc., dba M/C Leasing, Troy, MI |
equipment and personal property |
25660084 |
07/15/96 | ||||
Unisource Worldwide, Inc., Wayne, PA |
O/E Systems, Inc., dba M/C Leasing, Troy, MI |
equipment and personal property |
105246 |
05/28/96 | ||||
Unisource Worldwide, Inc., Xxxxx, PA |
PA Industrial Equipment, Inc., Pottstown, PA |
forklifts |
23041334 |
04/20/94 | ||||
Unisource Worldwide, Inc., Xxxxx, PA |
PA Industrial Equipment, Inc., Pottstown, PA |
forklift trucks |
247143 |
04/27/94 |
104
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
Unisource Worldwide, Inc., Xxxxx, PA |
PPI SPV, L.P., Bensalem, PA |
property and buildings |
23711381 |
11/15/94 | ||||
Unisource Worldwide, Inc., Xxxxx, PA |
PPI SPV, L.P., Bensalem, PA |
property and buildings |
23711384 |
11/15/94 | ||||
Unisource Worldwide, Inc., Xxxxx, PA |
PPI SPV, L.P., Bensalem, PA |
land, property and buildings |
23731645 |
11/22/94 | ||||
Unisource Worldwide, Inc., Xxxxx, PA |
PPI SPV, L.P., Bensalem, PA |
buildings and land |
9433760230 |
11/15/94 | ||||
Unisource Worldwide, Inc., Xxxxx, PA |
PPI SPV, L.P., Bensalem, PA |
buildings and property |
220308 |
11/15/94 | ||||
Unisource Worldwide, Inc., Xxxxx, PA |
PPI SPV, L.P., Bensalem, PA |
real estate |
00146515 |
11/15/94 | ||||
Unisource Worldwide, Inc., Xxxxx, PA |
PPI SPV, L.P., Jenkintown, PA |
property and buildings |
24650342 |
09/07/95 | ||||
Unisource Worldwide, Inc., Xxxxx, PA |
PPI SPV, L.P., Jenkintown, PA |
buildings and property |
172806 |
09/07/95 | ||||
Unisource Worldwide, Inc., Wayne, PA |
Q/E Systems, Inc., dba K/C Leasing, Troy, MI |
equipment and personal property |
2250607 |
05/29/96 | ||||
Unisource Worldwide, Inc./Xxxxx Miquon Division, Xxxx Xxxxx, XX |
Xxxxxxxx, Xxx., Xxxxx Xxx, XX |
trucks and truck bodies |
23430085 |
08/16/94 | ||||
Unisource, Windsor, CT |
Pitney Xxxxx Credit Corporation, Norwalk, CT |
equipment |
1638602 |
08/14/95 | ||||
Xxxxx Bros. Miquon, Incorporated, Xxxx Xxxxx, XX |
Xxxxxxxx, Xxx., Xxxxx Xxx, XX |
trucks and truck bodies |
22441786 |
10/01/93 | ||||
National Sanitary Supply, Cincinnati, OH |
(?) |
equipment |
AN05138 |
09/23/96 |
105
Table of Contents
Debtor Party |
Secured Party |
What For |
File Number |
Date | ||||
National Sanitary Supply, Cincinnati, OH |
IBM Corporation, White Plains, NY |
IBM equipment and upgrades |
AN28976 |
12/27/96 | ||||
Unisource Worldwide, Inc., Cincinnati, OH |
El Camino Resources, Ltd., Woodland Hills, CA |
master lease and computer equipment thereunder |
AL18082 |
07/29/94 | ||||
Unisource Worldwide, Inc., Cincinnati, OH |
El Camino Resources, Ltd., Woodland Hills, CA |
master lease and computer equipment thereunder |
AL57464 |
01/19/95 |
106
Table of Contents
ADMINISTRATIVE AGENT’S OFFICE; LENDING OFFICES;
ADDRESSES FOR NOTICES
GEORGIA-PACIFIC
CORPORATION
Notices:
GEORGIA-PACIFIC CORPORATION
Treasurer’s Department
000 Xxxxxxxxx Xxxxxx., X.X.
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA, N.A., as
Administrative Agent
Funding Notices:
Bank of America, N.A.
Agency Administrative Services #5596
0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000-0000
Mail Code: CA4-706-05-09
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Notices of Conversion/Continuation:
Bank of America, N.A.
Agency Administrative Services #5596
0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Administrative Agent’s Account for
Payment:
Bank of America, N.A.
0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000-0000
ABA#: 000000000
Account #: 3750836479
Attn: Credit Services/Xxxx Xxxxx
Ref: Georgia Pacific-Senior Bridge
107
Table of Contents
All Other Credit Matter Notices:
Bank of America, N.A.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Mail Code: CA5-705-12-12
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
BANK OF AMERICA, N.A., as a
Lender
Domestic Lending Office and Offshore Rate Lending Office:
Bank of America, N.A.
0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxx
Address and Account for Payments:
Bank of America, N.A.
0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000-0000
ABA#: 000000000
Account #: 3750836479
Attn: Credit Services/Xxxx Xxxxx
Ref: Georgia Pacific-Senior Bridge
Address for all Credit Matter Notices:
Bank of America, N.A.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Mail Code: CA5-705-12-12
Attention: Xxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
108
Table of Contents
SCHEDULE 11.02
(CONTINUED)
XXXXXXX SACHS CREDIT PARTNERS L.P., as a Lender
Domestic Lending Office and Offshore Rate Lending Office:
Xxxxxxx Xxxxx Credit Partners L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Address and Account for Payments:
Xxxxxxx Sachs Credit Partners L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
ABA#: 000000000
Account #: 00000000
Attn:
Xxxxxx Xxxxxxxxxx
Ref: Georgia-Pacific
All Credit Matters
Notices:
Xxxxxxx Sachs Credit Partners L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
109