Exhibit 10.22
CONFORMED COPY
SECOND AMENDMENT dated as of March 15, 1999 (this "Amendment")
---------
to the Amended and Restated Credit Agreement dated as of
September 25, 1998 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among
----------------
UNISOURCE WORLDWIDE, INC., a Delaware corporation, UNISOURCE
CAPITAL CORPORATION, a Delaware corporation, UNISOURCE CANADA,
INC., a Canadian corporation, the LENDERS party thereto, THE
CHASE MANHATTAN BANK, as Administrative Agent and U.S. Collateral
Agent, THE TORONTO-DOMINION BANK, as Canadian Agent and Canadian
Collateral Agent, and TORONTO DOMINION (TEXAS) INC., as
Documentation Agent.
WHEREAS, the Company has entered into the Merger Agreement as set
forth below;
WHEREAS, the Company and the Required Lenders are party to the First
Amendment to the Credit Agreement dated as of February 3, 1999 (the "First
Amendment");
WHEREAS, as a result of the transactions contemplated by the Merger
Agreement, the conditions to effectiveness of the First Amendment have not and
will not be met and instead the Company has requested that certain provisions of
the Credit Agreement be amended as provided for in this Amendment; and
WHEREAS, the undersigned Lenders are willing, on the terms and subject
to the conditions set forth herein, to so amend the Credit Agreement as provided
for in this Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used and not defined herein shall
--------------
have the meanings given to them in the Credit Agreement.
2. Amendment.
----------
(a) Section 1.01 of the Credit Agreement is hereby amended by
inserting the following definitions in the appropriate order:
"'Merger' means the merger of Vulcan Acquisition Corp. into the
Company as contemplated by the Merger Agreement."
"'Merger Agreement' means the merger agreement dated as of
February 28, 1999 by and among the Company, UGI Corporation and Vulcan
Acquisition Corp."
(b) Section 2.08 of the Credit Agreement is hereby amended by:
2
(i) inserting following the amount "300,000,000" in paragraph
(d) thereof the following parenthetical "(less the amount of any
reductions under paragraph (b) of this Section)"; and
(ii) by inserting the following new paragraph (e) at the end
thereof:
"(e) On the date on which the Merger becomes effective, (i)
unless previously terminated, the Commitments shall terminate,
(ii) the Borrowers shall repay or prepay in accordance with
section 2.10, as the case may be, all outstanding Loans, (iii)
the Borrowers shall cash collateralize or otherwise secure all
outstanding Acceptances and Letters of Credit in a manner
reasonably satisfactory to each Lender and Issuing Bank affected
thereby and (iv) the Borrowers shall pay all other Obligations
owing under the Loan Documents whether or not due and payable on
such date."
(c) Section 5.11 of the Credit Agreement is hereby amended by:
(i) deleting the date "March 31, 1999" therein and substituting
therefor "the earlier of (i) September 30, 1999 and (ii) the date that
is ninety days after any date on which any party's obligation to enter
into the Merger pursuant to the Merger Agreement terminates for any
reason"; and
(ii) deleting the amount "$300,000, 000" therein and substituting
therefor "$225,000,000".
3. Amendment Fee. The Company agrees to pay to each Lender that executes
--------------
and delivers a copy of this Amendment to the Administrative Agent (or its
counsel) on or prior to March 15, 1999, an amendment fee in an amount equal to
0.15% of such Lender's Commitment (whether used or unused) as of the Amendment
Effective Date (and after giving effect to any reduction of Commitments on the
Amendment Effective Date); provided that the Company shall have no liability for
--------
any such amendment fee if this Amendment does not become effective. Such
amendment fee shall be payable (i) on the Amendment Effective Date, to each
Lender entitled to receive such fee as of the Amendment Effective Date and (ii)
in the case of any Lender that becomes entitled to such fee after the Amendment
Effective Date, within two Business Days after such Lender becomes entitled to
such fee.
4. No Other Amendments or Waivers; Confirmation. Except as expressly
---------------------------------------------
amended hereby, the provisions of the Credit Agreement are and shall remain in
full force and effect.
5. Representations and Warranties. The Company hereby represents and
-------------------------------
warrants to the Administrative Agent and the Lenders as of the date hereof:
(a) After giving effect to the amendments provided for herein, no
Default or Event of Default has occurred and is continuing.
(b) All representations and warranties of the Company contained in the
Credit Agreement (other than representations or warranties expressly made
only on and as of the Closing Date) are true and correct in all material
respects on and as of the date hereof with the same force and effect as if
made on and as of the date hereof.
3
(c) This Amendment has been duly authorized, executed and delivered
by the Company, and each of this Amendment and the Credit Agreement as
amended by this Amendment constitutes a legal, valid and binding obligation
of the Company, enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
6. Effectiveness. This Amendment shall become effective as of the date
--------------
(the "Amendment Effective Date") on which each of the following conditions is
met: (a) the receipt by the Administrative Agent of counterparts hereof, duly
executed and delivered by the Company and the Required Lenders, (b) the
reduction of the Commitments pursuant to Section 2.08(b) to an aggregate amount
no greater than $725,000,000 and (c) the receipt by the Administrative Agent,
for the account of each Lender entitled to receive an amendment fee on the
Amendment Effective Date pursuant to Section 3 above, of such amendment fee.
7. Expenses. The Company agrees to reimburse the Administrative Agent for
---------
its reasonable out-of-pocket expenses in connection with this Amendment,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Xxxxx, counsel for the Administrative Agent.
8. GOVERNING LAW; COUNTERPARTS. (a) THIS AMENDMENT AND THE RIGHTS AND
----------------------------
OBLIGATIONS OF THE PARTIES HERETO SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(b) This Amendment may be executed by one or more of the parties to
this Amendment on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. This Amendment may be delivered by facsimile transmission of the
relevant signature pages hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
UNISOURCE WORLDWIDE, INC.
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President & Treasurer
THE CHASE MANHATTAN BANK
4
By: /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
THE TORONTO DOMINION BANK,
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Manager
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
By: /s/ Xxxx X. Xxxxxxxx
----------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
MELLON BANK, N.A.,
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: First Vice President
NATIONSBANK, N.A.,
By: /s/ Xxxx X. Xxxxxxxx
----------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
DEN DANSKE BANK, AKTIESELSKAB, CAYMAN
ISLANDS BRANCH,
By: /s/ Xxxx X. X'Xxxxx
---------------------
Name: Xxxx X. X'Xxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
THE NORTHERN TRUST COMPANY,
5
By: /s/ Xxxxx X. Love
-------------------
Name: Xxxxx X. Love
Title: Second Vice President
PNC BANK, N.A. ,
By: /s/ Xxxxx Xxxx
----------------
Name: Xxxxx Xxxx
Title: Vice President
THE ROYAL BANK OF CANADA,
By: /s/ Xxx X. Xxxxxx
-------------------
Name: Xxx X. Xxxxxx
Title: Senior Manager
ISTITUTO BANCARIO SAN PAOLO DI TORINO
ISTITUTO MOBILIARE ITALIANO, SPA,
By: /s/ Carlo Pensico
-------------------
Name: Carlo Pensico
Title: First Vice President
By: /s/ Xxxx Xxxxxx
-----------------
Name: Xxxx Xxxxxx
Title: Vice President
THE SANWA BANK, LIMITED,
By: /s/ Xxxxxx X. Xxx
-------------------
Name: Xxxxxx X. Xxx
Title: Vice President and Area Manager
THE BANK OF NOVA SCOTIA,
By: /s/ J. Xxxx Xxxxxxx
---------------------
Name: J. Xxxx Xxxxxxx
Title: Authorized Signatory
SUNTRUST BANK, ATLANTA
6
By: /s/ Xxxxx Xxxxxx
------------------
Name: Xxxxx Xxxxxx
Title: Operation Officer
By: /s/ W. Xxxxx Xxxxxx
---------------------
Name: W. Xxxxx Xxxxxx
Title: Vice President
UBS AG, NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Name: Xxxxxx X. Xxxxxx
Title: Associate Director
By: /s/ Xxxxx Xxxxxxx
-------------------
Name: Xxxxx Xxxxxxx
Title: Director
XXXXX FARGO BANK, N.A.,
By: /s/ Xxxx Xxxxxxxxxx
---------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
THE BANK OF NEW YORK,
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
THE BANK OF TOKYO - MITSUBISHI
TRUST COMPANY,
By: /s/ X. X. Xxxxxx
------------------
Name: X.X. Xxxxxx
Title: Vice President
CIBC INC.,
By: /s/ Xxxxxx Xxxxxxx
--------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Director
7
FLEET NATIONAL BANK,
By: /s/ Xxxx Xxxxx
----------------
Name: Xxxx Xxxxx
Title: Senior Vice President
FUJI BANK, LIMITED, NEW YORK BRANCH,
By: /s/ Xxxxxxx Xxxxxxx
---------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President & Manager
FIRST UNION NATIONAL BANK,
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
THE YASUDA TRUST AND
BANKING COMPANY LIMITED,
By: /s/ Xxxxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
BANK OF MONTREAL,
By: /s/ X.X. XxXxxxxx
-------------------
Name: X.X. XxXxxxxx
Title: Director
BANQUE NATIONALE DE PARIS,
By: /s/ Xxxxxxx X. Xxxx
---------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
By: /s/ Xxxxxx Xxxxxx
-------------------
Name: Xxxxxx Xxxxxx
8
Title: Vice President
Corporate Banking Division
BAYERISCHE LANDESBANK GIROZENTRALE,
By: /s/ Xxxxx Xxxxxxxx
--------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
By: /s/ Xxxxx X. Xxxxx
--------------------
Name: Xxxxx X. Xxxxx
Title: Second Vice President
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By: /s/ Xxxx Xxxxx
----------------
Name: Xxxx Xxxxx
Title: Senior Vice President
DEUTSCHE BANK AG
NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By: /s/ Xxxx-Xxxxx Xxxxxx
-----------------------
Name: Xxxx-Xxxxx Xxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
TORONTO DOMINION (TEXAS), INC.,
as U.S. Lender,
By: /s/ Xxxx X. Xxxxxxxx
----------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
