Exhibit 10.21
FIRST AMENDMENT dated as of February 3, 1999 (this
"Amendment") to the Amended and Restated Credit Agreement dated
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as of September 25, 1998 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among
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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.
The Company has requested that certain provisions of the Credit
Agreement be amended as provided for in this Amendment and the Lenders are
willing to so amend the Credit Agreement as provided for in this Amendment.
Accordingly, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used and not defined herein shall
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have the meanings given to them in the Credit Agreement.
2. Amendment.
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(a) Section 1.01 of the Credit Agreement is hereby amended by:
(i) inserting at the end of the definition of "Permitted Notes"
the sentence "The Senior Notes are hereby deemed to constitute
Permitted Notes."; and
(ii) inserting the following definitions in the appropriate
order:
"'Senior Notes' means senior unsecured notes of the Company
issued under and with the terms set forth in the Senior Note
Indenture"
"'Senior Note Indenture' means an indenture substantially as
described in, and with terms and provisions concerning principal
amount, payments, amortization and maturity materially no less
favorable to the Lenders than the terms and provisions set forth
in, the description of notes dated January 21, 1999 without
giving effect to any amendments, modifications or waivers thereto
not approved in writing by the Required Lenders."
(b) Paragraph (d) of Section 2.08 of the Credit Agreement is hereby
amended by inserting following the amount "300,000,000" therein the
following parenthetical "(including any reduction under paragraph (b) of
this Section)".
(c) Section 5.11 of the Credit Agreement is hereby amended by deleting
the amount "$300,000, 000" therein and substituting therefor
"$225,000,000".
(d) Section 6.07 of the Credit Agreement is hereby amended by:
(i) deleting the word "and" at the end of clause (iv) of the
proviso thereto and substituting therefor a comma; and
(ii) adding immediately before the period at the end thereof the
following words "and (vi) the foregoing shall not apply to
restrictions and conditions contained in the Senior Note Indenture
(provided such restrictions or conditions are identical to those
contained in the description of notes dated January 21, 1999 or
otherwise do not limit or restrict (A) Liens securing the
Obligations, (B) Guarantees of the Obligations and (C) the ability of
any Subsidiary to pay dividends or other distributions to, or to make
or repay loans or advances to, the Company or any "Wholly Owned
Restricted Subsidiary" (as such term is defined in the Senior Note
Indenture))".
3. Incorporation of Covenants and Events of Default. The Company agrees
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to negotiate with the Administrative Agent and, not later than the date of
issuance of the Senior Notes, to enter into, and the Required Lenders hereby
authorize the Administrative Agent to enter into on their behalf, an amendment
to the Credit Agreement incorporating into the Credit Agreement the covenants
and events of default set forth in the Senior Note Indenture, mutatis mutandis.
4. No Other Amendments or Waivers; Confirmation. Except as expressly
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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
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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.
(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 only upon (a) the
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receipt by the Administrative Agent of (i) counterparts hereof, duly executed
and delivered by the Company and the Required Lenders and (ii) an opinion of
counsel to the Company, in form reasonably satisfactory to the Administrative
Agent and covering such matters relating to this Amendment as the Administrative
Agent shall reasonably request, (b) the reduction of the Commitments by an
amount no less than $75,000,000 (it being understood that the
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Commitments shall be further reduced pursuant to Section 2.08(d) of the Credit
Agreement by the full amount of the gross proceeds of the issuance of the Senior
Notes up to an aggregate amount of $225,000,000), and (c) the effectiveness of
the amendment referred to in Section 3 above.
7. Expenses. The Company agrees to reimburse the Administrative Agent for
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its 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
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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:
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Name:
Title:
THE CHASE MANHATTAN BANK
By:
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Name:
Title:
THE TORONTO DOMINION BANK,
By:
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Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION,
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By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Managing Director
MELLON BANK, N.A.,
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: First Vice President
NATIONSBANK, N.A.,
By /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Managing Director
DEN DANSKA BANK, AKTIESELSKAB, CAYMAN ISLANDS
BRANCH,
By:
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Name:
Title:
THE NORTHERN TRUST COMPANY,
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Second Vice President
PNC BANK, N.A. ,
By: /s/ Charmienne Ganeo
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Name: Charmienne Ganeo
Title: Corporate Banking Officer
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THE ROYAL BANK OF CANADA,
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Manager
ISTITUTO BANCARIO SAN PAOLO DI TORINO, SPA,
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President
THE SANWA BANK, LIMITED,
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA,
By: /s/ J. Xxxx Xxxxxxx
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Name: J. Xxxx Xxxxxxx
Title: Authorized Signatory
SUNTRUST BANK, ATLANTA
By: /s/ W. Xxxxx Xxxxxx
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Name: W. Xxxxx Xxxxxx
Title: Group Vice President
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Operations Officer
UBS, AG, NEW YORK BRANCH
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By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: Director
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Associate Director
XXXXX FARGO BANK, N.A.,
By: /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx Xxxxxxxxxx
Title: Vice President
THE BANK OF NEW YORK,
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
THE BANK OF TOKYO - MITSUBISHI TRUST
COMPANY,
By: /s/ Xxxx X'Xxxxxx
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Name: Xxxx X'Xxxxxx
Title: Vice President
CIBC INC.,
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Executive Director
CIBC Xxxxxxxxxxx Corp., as Agent
FLEET NATIONAL BANK,
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By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Senior Vice President
FUJI BANK, LIMITED, NEW YORK BRANCH,
By:
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Name:
Title:
FIRST UNION NATIONAL BANK,
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
THE YASUDA TRUST AND
BANKING COMPANY LIMITED,
NEW YORK BRANCH,
By:
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Name:
Title:
BANK OF MONTREAL,
By:
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Name:
Title:
BANQUE NATIONALE DE PARIS,
By:
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Name:
Title:
BAYERISCHE LANDESBANK GIROZENTRALE,
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By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Second Vice President
By: /s/ Xxxxxxxxx Xxxxxxx
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Name: Xxxxxxxxx Xxxxxxx
Title: First Vice President
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: S. Vice President
DUETSCHE BANK AG
NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By: /s/ Xxxx-Xxxxx Xxxxxx
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Name: Xxxx-Xxxxx Xxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
TORONTO DOMINION (TEXAS), INC.,
as U.S. Lender,
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxx
Title: Vice President
