EXHIBIT 10.56
EXECUTION COPY
AMENDMENT NO. 11 TO CREDIT AGREEMENT
AMENDMENT dated as of February 28, 2000 among CROWN PAPER CO. (the
"Borrower"), CROWN VANTAGE INC. ( "Holdings"), the BANKS listed on the signature
pages hereof (the "Banks") and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent (the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into a Credit Agreement
dated as of August 15, 1995 (as amended, the "Credit Agreement") and desire to
amend the Credit Agreement to, among other things, adjust certain fees and
interest rates, and waive certain obligations of the Borrower for a limited
period of time;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions; References. Unless otherwise specifically defined
herein, each term used herein that is defined in the Credit Agreement shall have
the meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall, from and after the Amendment No. 11
Effective Date, refer to the Credit Agreement as amended hereby.
Section 2. Changes and Additions to Definitions. (a) Section 1.1 of the
Credit Agreement is amended by inserting the following defined terms thereto in
appropriate alphabetical order:
"Amendment No. 11 Effective Date" means the date of the effectiveness
of Amendment No. 11 to this Agreement.
"Expense Retainer" means an advance held by the Administrative Agent
on account of its fees and expenses as provided for in Section 9.3(a) of
this Agreement.
"Letter of Credit Fee Rate" means, for any date on and after the
Amendment No. 11 Effective Date, the Applicable Base Rate Margin for the
Revolving Credit Loans on such date plus 1.25%.
(b) The following defined terms contained in Section 1.1 of the Credit
Agreement are hereby amended as follows:
"Applicable Base Rate Margin" means, (in each case on and after the
Amendment No. 11 Effective Date), with respect to the Revolving Credit
Loans and the Tranche B Loans (a) on and after the Amendment No. 11
Effective Date and through and including August 30, 2000, 2.5%, (b) on and
after August 31, 2000 and through and including September 30, 2000, 3.5%
and (c) thereafter, during each calender month until the Maturity Date, the
Applicable Base Rate Margin in effect during the immediately preceding
calendar month plus .25%.
"Asset Sale" means any sale, lease or other disposition (including any
such transaction effected by way of merger or consolidation) by the
Borrower or any of its Subsidiaries of any asset, including without
limitation any sale-leaseback transaction, whether or not involving a
capital lease, but excluding (i) dispositions of inventory, cash, cash
equivalents and other cash management investments and obsolete, worn-out or
surplus equipment, in each case in the ordinary course of business, (ii)
dispositions to the Borrower or a Subsidiary of the Borrower, (iii)
Permitted Receivables Dispositions and (iv) dispositions pursuant to the
Settlement, provided that a disposition of assets not excluded by clauses
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(i) through (iv) above during any fiscal year and consummated prior to the
Amendment No. 11 Effective Date shall not constitute an Asset Sale unless,
and then only to the extent that, the aggregate Net Cash Proceeds from such
disposition, when combined with all other such dispositions previously made
during such fiscal year, exceeds $5,000,000.
.
"Commitment Fee Rate" means, for any date on and after the Amendment
No. 11 Effective Date, 1.00% per annum.
"Waiver Termination Notice" means a written notice from the Required
Banks (in their sole discretion), advising the Borrower that the waivers
granted in Section 15 of Amendment No. 11 to this Agreement have been
rescinded.
(c) The defined terms "Applicable Euro-Dollar Margin" and "Pricing
Schedule" contained in Section 1.1 of the Credit Agreement are hereby deleted.
Section 3. Methods of Borrowing. Section 2.2(a) of the Credit Agreement
is hereby amended to read in full as follows:
(a) The Borrower shall give the Administrative Agent notice (a "Notice of
Borrowing") not later than 10:00 A.M. (New York City time) on the date of each
Base Rate Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic Business
Day;
(ii) the aggregate amount of such Borrowing; and
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(iii) the Class of the Loans comprising such Borrowing.
Section 4. Interest Rates. Section 2.5 of the Credit Agreement is hereby
amended to read in full as follows:
SECTION 2.5 Interest Rates. (a) Each Base Rate Loan shall bear
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interest on the outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due at a rate per annum equal to
the sum of (x) the Applicable Base Rate Margin plus (y) the Base Rate for
such day. Such interest shall be payable in arrears on the last Domestic
Business Day of each calendar month. From and after the occurrence of any
Default, the principal of and interest on any Base Rate Loan of any Class
shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the rate otherwise applicable to Base
Rate Loans of such Class for such day, compounded daily.
(b) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give
prompt notice to the Borrower and the participating Banks of each rate of
interest so determined, and its determination thereof shall be conclusive
in the absence of manifest error.
Section 5. Letter of Credit Pricing. Section 2.6(b) of the Credit
Agreement is hereby amended by replacing the phrase "at a rate per annum
determined in accordance with the Pricing Schedule" with the phrase "at the
Letter of Credit Fee Rate".
Section 6. General Payment Provision. Section 2.10 of the Credit
Agreement is amended by deleting the penultimate sentence of subsection (a)
thereof.
Section 7. Amendment of Letter of Credit Provision. The first sentence of
Section 2.13(a) of the Credit Agreement is amended by replacing the phrase
"provided that, immediately after each Letter of Credit is issued," with the
following:
"provided that (x) on and after the Amendment No. 11 Effective Date,
Letters of Credit shall only be available in support of obtaining new
credit from domestic vendors of the Borrower and in respect of the
Borrower's statutory obligations and (y) immediately after each Letter of
Credit is issued,"
Section 8. Types of Loans; Applicable Interest Rates. Section 2.14 of the
Credit Agreement is hereby restated to read in full as follows:
SECTION 2.14. Type of Loans; Applicable Interest Rates. From and
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after the Amendment No. 11 Effective Date, all Loans (whether newly made or
already outstanding) shall be Base Rate Loans.
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Section 9. Borrowings. Solely with respect to any Loan to be made on the
occasion of any Borrowing occurring on or after the Amendment No. 11 Effective
Date and on or prior to March 10, 2000 or any Letter of Credit to be issued,
amended, renewed or extended on or after the Amendment No. 11 Effective Date and
on or prior to March 10, 2000, the Banks waive any failure by the Borrower to
satisfy the condition precedent set forth in Section 3.2(d) and (e) of the
Credit Agreement solely with respect to the truth and correctness of the
representation and warranty contained in Section 4.4(c) of the Credit Agreement,
but solely to the extent that such representation and warranty is not true and
correct because of facts, conditions or events that have been disclosed in
writing by the Borrower to the Administrative Agent and the Banks prior to
February 23, 2000.
Section 10. Information. Section 5.1 of the Credit Agreement is hereby
amended as follows:
(a) by adding the section reference "(i)" at the commencement of subsection
(b) thereof and inserting the following immediately prior to the semi-colon at
the end of such subsection:
and (ii) as soon as available and in any event within 15 days after
the end of each month, a consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of the end of such month and the
related statements of operations, cash flows and changes in
stockholders' equity for such month and for the portion of the
Borrower's fiscal year ended at the end of such month, which shall
include a calculation of Consolidated EBITDA for the three month
period ending with such month, all certified (subject to normal year-
end adjustments) as to fairness of presentation, generally accepted
accounting principles and consistency by the chief financial officer
or the chief accounting officer of the Borrower;
(b) by replacing, in subsection (e) thereof, the phrase "five days" with
the phrase "two days";
(c) by restating subsection (f) thereof to read in full as follows:
(f) on the first Domestic Business Day of each week, a statement
of projected cash receipts and cash disbursements for each week in the
period of thirteen continuous weeks commencing with the immediately
following week in a form reasonably satisfactory to the Administrative
Agent;
(d) by relettering subsections (m) and (n) thereof as subsections (n) and
(o), respectively, and by adding a new subsection (m) immediately after
subsection (l) thereof, to read in its entirety as follows:
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(m) on the first Domestic Business Day of each week, a statement
of actual cash receipts and cash disbursements for the previous week
(i) reconciled to the projections previously provided under subsection
(f) hereof in respect of such week and (ii) in a form reasonably
satisfactory to the Administrative Agent;
and
(e) by adding the following sentence immediately after (but not as part of)
subsection (o) of such Section:
In addition, the Borrower shall provide to the Administrative Agent
and to such Banks and professionals as may be designated by the
Administrative Agent current information regarding the status of any
Asset Sales, financings and other major transactions being considered
by the Borrower, including reasonable access to any financial advisor
retained by the Borrower to assist it with respect thereto.
Section 11. Amendment of Consolidated Capital Expenditures and Business
Acquisitions. Section 5.18(b) of the Credit Agreement is hereby amended to read
in full as follows:
(b) Limitation on Business Acquisitions. (i) Subject to the
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additional limitations on Investments set forth in Section 5.17, the
aggregate amount expended by the Borrower and its Subsidiaries with respect
to Business Acquisitions (exclusive of transaction costs but including the
value of capital stock of Holdings used to make acquisitions) shall not,
from and after the Amendment No. 11 Effective Date, exceed $1,000,000 in
the aggregate.
Section 12. Events of Default. Section 6.1(f) of the Credit Agreement is
hereby amended by inserting, immediately after the initial parenthetical
therein, the phrase "any Permitted Receivables Financing or".
Section 13. Expenses; Indemnification. Section 9.3(a) of the Credit
Agreement is hereby amended to read in full as follows:
(a) The Borrower shall pay (i) no later than five business days
after receipt of any invoice in respect thereof, all out-of-pocket expenses
of the Administrative Agent, including fees and disbursements of special
and local counsel for the Administrative Agent and the Collateral Agent, in
connection with the preparation and administration of the Loan Documents,
any waiver or consent thereunder or any amendment thereof or any Default or
alleged Default thereunder and all fees and expenses of one or more
financial advisors reasonably acceptable to the Borrower hired by or on
behalf or for the benefit of the Administrative
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Agent or the Collateral Agent pursuant to engagement letters reasonably
acceptable to the Borrower (and the Borrower agrees that it shall cooperate
fully with all such financial and legal advisors and provide such advisors
with full access to the Borrower's books, records, personnel and advisors),
(ii) no later than five business days after receipt of a written request in
respect thereof, such amounts as may be requested in writing by the
Administrative Agent in order to maintain the Expense Retainer at $100,000
and (iii) all out-of-pocket expenses incurred by the Administrative Agent,
the Collateral Agent and each Bank, including (without duplication) the
fees and disbursements of outside counsel, in connection with any Default
or Event of Default and in connection with any actions taken by any of the
Administrative Agent, the Collateral Agent or any Bank in respect of
collection of enforcement of the Loan Documents, the Loans, and/or the
Collateral, including, without limitation, in respect of any collection,
bankruptcy, insolvency and other enforcement proceedings, provided that it
is understood that the Borrower shall not, in respect of the legal expenses
of the Banks in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Banks designated
by the Administrative Agent and that all such fees and expenses shall be
reimbursed as they are incurred.
Section 14. Limitation on New Extensions of Credit. (a) The
Borrower agrees that:
(i) it shall not deliver a Notice of Borrowing or a Notice of Issuance
under the Credit Agreement or otherwise request any Bank (including any
Issuing Bank) to extend any credit to the Borrower under the Credit
Agreement if, after giving effect to the Borrowing requested in any such
Notice of Borrowing or the issuance of any Letter of Credit requested in
any such Notice of Issuance (including without limitation any such Notice
pursuant to which the Borrower requests the extension of the maturity date
of an outstanding Letter of Credit), the aggregate Revolving Credit
Outstandings of all the Banks would exceed $131,451,748 and (ii)
notwithstanding any provision of the Credit Agreement (including Sections
2.1, 2.13 and 3.2 thereof), on and after the date hereof, no Bank
(including any Issuing Bank) shall be required to make any Loan, or issue
or participate in any Letter of Credit (including without limitation any
Letter of Credit the maturity of which has been or is proposed to be
extended) if, after giving effect to the making of such Loan or the
issuance or participation in such Letter of Credit, the Revolving Credit
Outstandings of such Bank would exceed such Banks' pro rata share
(calculated based on its Revolving Credit Commitment) of the aggregate
Revolving Credit Outstandings permitted pursuant to clause (i).
(b) The waivers effected by Section 15 of this Amendment are
expressly conditioned upon compliance by the Borrower with the provisions of
subsection (a) of this Section 14 and shall immediately cease to be in full
force and effect upon failure by the Borrower to comply with the provisions of
such subsection.
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Section 15. Waiver of Certain Covenants. The Banks hereby waive, solely
for the period from and including the Amendment No. 11 Effective Date and to and
including the earlier of (1) the time at which the Borrower receives a Waiver
Termination Notice and (2) March 10, 2000 (the "Waiver Period"), (i) the
requirement that the Borrower comply with the covenants contained in Sections
5.12, 5.13 and 5.14 of the Credit Agreement, (ii) any failure to satisfy the
condition set forth in Section 3.2(d) of the Credit Agreement as a result of the
Borrower's failure to comply with the covenants contained in Sections 5.12, 5.13
and 5.14 during the Waiver Period, (iii) any Event of Default under Section
6.1(f) of the Credit Agreement, other than one arising out of the actual
acceleration of the maturity date of any Material Debt.
Section 16. Pricing Schedule. The Pricing Schedule attached to the Credit
Agreement as Appendix IV is hereby deleted.
Section 17. No Other Waivers. Other than as specifically provided herein,
nothing contained herein and no action by, or inaction on the part of, any Bank
or the Administrative Agent shall, or shall be deemed to, operate as a waiver of
any right, remedy, power or privilege of the Administrative Agent or of any Bank
under the Credit Agreement or any other Loan Document or of any other term or
condition of the Credit Agreement or any other Loan Document.
Section 18. Representations of Borrower. The Borrower represents and
warrants that:
(i) the representations and warranties of the Borrower set forth in
Article 4 of the Credit Agreement, other than the representation contained
in Section 4.4(c) thereof, are true and correct on and as of Amendment No.
11 Effective Date (and after giving effect to this Amendment No. 11);
(ii) after giving effect to this Amendment and the waivers set forth
herein, no Defaults exist under the Credit Agreement;
(iii) the execution and delivery by each Obligor of this Amendment is
within the corporate powers of the Borrower and Holdings, have been duly
authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official
(except for any such action or filing as shall have been taken or made and
that is in full force and effect from and after the Amendment No. 11
Effective Date) and does not contravene, or constitute a default under, any
provision of applicable law or regulation or of the articles of
incorporation or by-laws of either Obligor or of any agreement or
instrument governing or evidencing Debt of Holdings or any of its
Subsidiaries or of any other material agreement, judgment, injunction,
order, decree or other instrument binding upon either Obligor or any of
their Subsidiaries or result in the creation or imposition of any Lien
(other than the Liens created by the Collateral Documents) on any asset of
Holdings or any of its Subsidiaries; and
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(iv) this Amendment No. 11 is a valid and binding agreement of
Borrower and Holdings, enforceable in accordance with its terms.
Section 19. Reaffirmation of Obligations. The Credit Agreement, as
specifically amended hereby, is and shall continue to be in full force and
effect and is hereby in all respects ratified and confirmed. The Borrower
confirms that as of the close of business on February 25, 2000, it had requested
that Letters of Credit in an aggregate amount of $8,601,079 be issued under the
Credit Agreement and those Letters of Credit were outstanding on such date. The
Borrower also confirms that as of the close of business on February 25, 2000, it
had requested Loans in an aggregate amount of $202,750,000 under the Credit
Agreement and those Loans were outstanding on such date.
Section 20. Effectiveness. This Amendment shall become effective if and
only if the Administrative Agent shall have received all of the following:
(i) duly executed counterparts hereof signed by Holdings, the
Borrower and the Required Banks (or, in the case of any party as to which
an executed counterpart shall not have been received, the Administrative
Agent shall have received telegraphic, telex or other written confirmation
from such party of execution of a counterpart hereof by such party);
(ii) for the account of each Bank that has sustained funding losses
as provided for in Section 2.11 of the Credit Agreement due to the
conversion of Euro-Dollar Loans to Base Rate Loans as provided for herein,
an amount equal to the amount of such losses; and
(iii) evidence satisfactory to it that the Borrower has paid in full
(A) all fees and expenses of the Administrative Agent payable pursuant to
Section 9.3 of the Credit Agreement with respect to which the Borrower
shall have received any invoice, it being understood that the failure of
the Administrative Agent to have provided invoices with respect to such
fees and expenses prior to the date hereof does not constitute a waiver of,
or otherwise affect, the Administrative Agent's right to reimbursement for
such fees and expenses and (B) $100,000 on account of the Expense Retainer.
Section 21. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
Section 22. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
CROWN PAPER CO.
By
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Name:
Title:
CROWN VANTAGE INC.
By
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Name:
Title:
9
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By
------------------------------------------
Name:
Title:
BANKERS TRUST COMPANY
By
------------------------------------------
Name:
Title:
By
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Name:
Title:
10
CHRISTIANIA BANK og KREDITKASSE
By
------------------------------------------
Name:
Title:
By
------------------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN
BRANCHES
By
------------------------------------------
Name:
Title:
By
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Name:
Title:
FIRST SOURCE FINANCIAL LLP, by
FIRST SOURCE FINANCIAL, INC.,
its Agent/Manager
By
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Name:
Title:
HSBC BANK USA
By
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Name:
Title:
11
KZH HIGHLAND-2 LLC
By
------------------------------------------
Name:
Title:
XXXXXXX XXXXX PRIME RATE
PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, LP,
as Investment Advisor
By
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Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By
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Name:
Title:
NATEXIS BANQUE BFCE
By
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Name:
Title:
12
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By
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Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By
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Name:
Title:
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By
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Name:
Title:
PAMCO CAYMAN LTD.
By: Highland Capital Management LP,
as Collateral Manager
By
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Name:
Title:
SOUTHERN PACIFIC BANK
By
------------------------------------------
Name:
Title:
13
XXX XXXXXX SENIOR INCOME
TRUST
By
------------------------------------------
Name:
Title:
XXX XXXXXX PRIME RATE INCOME
TRUST
By
------------------------------------------
Name:
Title:
ML CBO IV (CAYMAN) LTD.
By: Highland Capital Management LP,
as Collateral Manager
By
------------------------------------------
Name:
Title:
PILGRIM PRIME RATE TRUST
By: Pilgrim Investment Inc.,
as its Investment Manager
By
------------------------------------------
Name:
Title:
14
BANK OF AMERICA, N.A.
By
------------------------------------------
Name:
Title:
BEAR XXXXXXX INVESTMENT
PRODUCTS INC.
By
------------------------------------------
Name:
Title:
SEQUILS - PILGRIM I LTD
By
------------------------------------------
Name:
Title:
SRV HIGHLAND INC
By
------------------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY,
as Administrative Agent
By
------------------------------------------
Name:
Title:
15
EXHIBIT A
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FORM OF OPINION
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