Exhibit 4.1(B)
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AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT NO. 2 TO CREDIT AGREEMENT, dated as of October 21, 1996,
relating to the Credit Agreement, dated as of March 8, 1995, as amended by
Amendment No. 1 to Credit Agreement, dated as of April 8, 1996 ("Amendment No.
1"; such Credit Agreement, as amended by Amendment No. 1 being the "Credit
Agreement"), by and among FORT XXXXXX CORPORATION, a Delaware corporation (the
"Company"), as borrower, and each of the parties identified as a Lender
(collectively, the "Lenders"; each, a "Lender") signatory thereto, BANKERS
TRUST COMPANY, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION and THE
CHASE MANHATTAN BANK (formerly known as "Chemical Bank"), as Arrangers
(collectively, the "Arrangers"; each, an "Arranger") and BANKERS TRUST
COMPANY, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
R E C I T A L S :
A. The Company has requested that the Arrangers and the Lenders
(1) consent to the purchase and retirement by the Company of certain
indebtedness of the Company; (2) waive the operation of Sections 6.5 and 6.16
of the Credit Agreement to the extent necessary to permit the Company to
effect such purchase and retirement; and (3) amend, consent to or waive
certain other provisions of the Credit Agreement, all in accordance with, and
subject to, the terms and conditions set forth below; and
B. The Administrative Agent, the Arrangers and the Lenders have
considered and agreed to the Company's request, and are executing and
delivering this agreement to evidence such amendment, consent and waiver.
A G R E E M E N T :
NOW, THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein that is defined in the Credit Agreement
shall have the meaning assigned to such term in the Credit Agreement.
SECTION 2. Consent to Acquisition of Indebtedness.
(a) The Lenders hereby consent to, and agree to waive any provision of
Section 6.5 or 6.16 of the Credit Agreement which (but for this Section 2)
might prohibit, restrict or condition (otherwise than pursuant to this
Agreement), the Company's purchasing of, at any time and from time to time, in
whole or in part, Subordinated Notes and Senior Unsecured Notes (the
Subordinated Notes and the Senior Unsecured Notes so purchased in accordance
with this Section 2(a) being, collectively, the "Amendment No. 2 Covered
Notes"), in such aggregate amounts, subject to such allocations (as between
the Subordinated Notes and the Senior Unsecured Notes to be so purchased and
as among the various outstanding issues of such Subordinated Notes and Senior
Unsecured Notes), for consideration originating from, or financed by, such
sources, and on such other terms and conditions, as the Company shall elect in
its sole discretion, but, in any event, subject to the following terms: (i)
any Indebtedness incurred to finance any such purchase shall not violate the
provisions of Section 6.1 of the Credit Agreement, (ii) all such purchases
shall be concluded not later than December 31, 1997, (iii) the total amount of
consideration (including any premium and all transaction costs , but
excluding, in any event, any and all accrued interest) paid by the Company in
respect of all such purchases shall not exceed, in the aggregate,
$100,000,000, (iv) at the time of each such purchase there shall not have
occurred and be continuing any Event of Default or Potential Event of Default
referred to in Section 7.1, 7.6, 7.7, 7.9, 7.13 or 7.14 of the Credit
Agreement, and (v) substantially contemporaneously with each such purchase,
the Company shall cause the acquired Securities to be surrendered to it or the
trustee in respect thereof and cancelled.
(b) The Lenders hereby agree that, anything in the Credit Agreement
to the contrary notwithstanding, the sum referred to in clause (B) of the
definition of "Excess Cash Flow" in respect of the 1996 and the 1997 fiscal
years of the Company shall not include (whether by virtue of subclause (B)(5)
or (B)(8) of such definition or otherwise) any amount paid by the Company to
acquire (including, without limitation, any premium or transaction costs but
excluding, in any event, any and all accrued interest) Amendment No. 2 Covered
Notes.
(c) The provisions of this Section 2 shall not be construed as
limiting any rights of the Company to purchase Subordinated Indebtedness of
the Company and/or Senior Unsecured Notes that existed under Section 6.5 or
6.16 of the Credit Agreement immediately preceding the execution of this
agreement, and any and all such rights shall continue in force following the
execution and delivery hereof and the acquisition of any debt Securities of
the Company contemplated in this Section 2.
SECTION 3. Consent to Green Bay Sludge Boiler Financing. (a) The
Lenders hereby consent to, and agree to waive any provision of Section 5.11,
5.12 or 5.17 of the Credit Agreement or any other provision of the Loan
Documents (other than Section 6.1 of the Credit Agreement) which (but for this
Section 3) might prohibit, restrict or condition (otherwise than pursuant to
this Agreement and Exhibit A to Amendment No. 1, as amended and supplemented
hereby), (i) the consummation by the Company of the GB Financing (as defined
in Exhibit A to Amendment No. 1) for the construction of the Green Bay Sludge
Boiler and (ii) in connection therewith, the conveyance of a portion of the
land comprising the Company's Green Bay, Wisconsin Mill, but only if such
transaction (including such conveyance) complies in all material respects with
the requirements set forth in Exhibit A to Amendment No. 1.
(b) The Lenders further hereby agree that, if the GB Financing
shall meet the requirements of paragraph (a) of this Section 3 and the Company
shall have delivered the Officer's Certificate and survey contemplated in
Exhibit A to Amendment No. 1: (i) the Green Bay Sludge Boiler shall
constitute "Existing Mill Expansion Equipment" (as defined in the Credit
Agreement and in the Mortgage for the Company's Green Bay, Wisconsin Mill,
after giving effect to Section 4 of this agreement); (ii) the construction of
the Green Bay Sludge Boiler shall constitute an Existing Mill Expansion
Transaction; and (iii) the GB financing shall constitute a Permitted Expansion
Financing.
(c) The Lenders hereby authorize the Arrangers (and, by executing a
counterpart of this Agreement, the Arrangers hereby agree) to determine, in
their reasonable judgment, whether or not any particular transaction proposed
by the Company satisfies the requirements of subsection 3(a) above and to
deliver, on behalf of the Lenders, an instrument confirming such satisfaction;
provided, however, that the Arrangers shall not have any liability for such
determination unless such determination shall have been made in bad faith or
shall constitute gross negligence. The Arrangers and the Lenders hereby
authorize the Administrative Agent and the Collateral Trustee (and, by
executing a counterpart of this Agreement, the Administrative Agent and the
Collateral Trustee hereby agree) to execute and deliver, on behalf of the
Lenders (and, in the case of the Collateral Trustee, the other beneficiaries
under the Collateral Trust Agreement) any and all instruments necessary to
effect any transaction so determined by the Arrangers to satisfy such
requirements and to prepare and record, where appropriate, written instruments
to give public notice of the amendments contemplated in Section 4 of this
agreement. The Company shall provide to the Administrative Agent, the
Arrangers and the Collateral Trustee any documents or information requested by
the Administrative Agent, the Arrangers and the Collateral Trustee to enable
the Administrative Agent, the Arrangers and the Collateral Trustee to make the
determinations and perform the obligations contemplated in this Section 3 with
respect to the satisfaction of such requirements.
(d) To the extent that this Section 3 is inconsistent with Section
2 of Amendment No. 1 or Exhibit A thereto, the provisions of this Section 3
shall govern.
SECTION 4. Amendment of Wisconsin and Oklahoma Mill Mortgages.
Each of the Mill Mortgages relating to the Company's Xxxxx at Green Bay,
Wisconsin, and Muskogee, Oklahoma, is hereby amended to delete the reference
in clause (iv) of Section 4.1 thereof to the words "Expansion Equipment" and
insert in lieu thereof the words "Existing Mill Expansion Equipment". Upon
request of the Collateral Trustee, the Company shall execute, acknowledge,
deliver and cause to be recorded in the appropriate recording offices
amendments of each such Mill Mortgage to give public notice of the foregoing
provisions of this Section 4.
SECTION 5. Representations and Warranties. The Company hereby
represents and warrants to the Administrative Agent, the Arrangers and the
Lenders that, on and as of the date hereof (after giving effect to Sections 2,
3 and 4 of this agreement), the representations and warranties of the Company
set forth in the Credit Agreement (except for the representations and
warranties set forth in subsection 4.1.3 of the Credit Agreement) are true and
correct in all material respects to the same extent as though made on and as
of the date hereof, except that such representations and warranties need not
be true and correct to the extent that changes in facts and conditions on
which such representations and warranties are based are required or permitted
under the Credit Agreement and except to the extent that such representations
and warranties specifically relate to an earlier date, in which case such
representations and warranties were true and correct in all material respects
on and as of such earlier date. The certifications set forth in the form of
Officer's Certificate of the Company described in Section 6 of this agreement
are incorporated into this agreement by this reference as representations and
warranties of the Company. In the event any of the representations and
warranties referred to in the two immediately preceding sentences is untrue in
any material respect on and as of the respective dates specified therein or in
the event the Company shall breach any agreement on its part to be performed
or observed pursuant to this agreement, the Administrative Agent and the
Lenders shall have the rights and remedies contemplated in the Credit
Agreement to the same extent as if such representations and warranties or
agreements had been set forth therein.
SECTION 6. Conditions to Effectiveness. This agreement shall
become effective when the Administrative Agent shall have received (i) duly
executed counterparts hereof that have been executed at the time and in the
manner as provided in Section 9.6 of the Credit Agreement, it being understood
that delivery of an executed counterpart of a signature page to this agreement
by telecopier shall be as effective as delivery of a manually executed
counterpart of this agreement and (ii) the following documents with sufficient
copies, where appropriate, for each Lender and CG&R:
(w) a consent of Fort Xxxxxx Holding, Inc. and HAC Holding Corp. to
the execution and delivery of Amendment No. 1 and this Agreement, in the
form of Exhibit A annexed to this agreement;
(x) an Officer's Certificate of the Company, in the form of Exhibit
B annexed to this agreement;
(y) an opinion of Xxxxx X. Xxxxxx, XX, Vice President and General
Counsel to the Company, in the form of Exhibit C annexed to this
agreement; and
(z) an opinion of Shearman & Sterling, counsel to the Company, in
the form of Exhibit D annexed to this agreement.
SECTION 7. Miscellaneous.
(a) Except as expressly contemplated in this agreement, all terms,
provisions, covenants, representations, warranties, agreements and conditions
of the Company contained in the Credit Agreement shall remain in full force
and effect and shall not otherwise be deemed to be waived, modified or amended
hereby.
(b) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
(c) This agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. The provisions of this
agreement may be amended or waived by the same parties that would be required
to amend or waive such provisions if such provisions were set forth in the
Credit Agreement.
(d) This agreement shall not constitute a consent to or waiver or
modification of any provision, term or condition of the Credit Agreement other
than the provisions expressly referred to above.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first written above.
By: /s/ R. Xxxxxxx Xxxxxx
R. Xxxxxxx Xxxxxx
Vice President and Treasurer
1988 LENDERS, PURCHASERS AND 1992 LENDERS:
BANKERS TRUST COMPANY,
Individually and as 1988 Lead Manager, 1988
Agent and 1992 Agent
