<PAGE> 1
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended MARCH 31, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from.............to.....................
Commission file number 1-13948
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 62-1612879
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 NORTH POINT CENTER EAST
SUITE 600
ALPHARETTA, GEORGIA
30022-8246
(Address of principal executive offices)
(Zip Code)
1-800-514-0186
(Registrant's telephone number, including area code)
NO CHANGE
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X . No .
----- -----
As of March 31, 1998, 16,076,459 shares of the Corporation's common stock, par
value $.10 per share, together with preferred stock purchase rights associated
therewith, were outstanding.
<PAGE> 2
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
CONSOLIDATED STATEMENTS OF INCOME
U.S. $ IN MILLIONS, EXCEPT PER SHARE AMOUNTS
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS
ENDED MARCH 31,
---------------------
1998 1997
---- ----
<S> <C> <C>
Net Sales ............................................ $ 134.3 $ 113.0
Cost of products sold ........................... 103.2 82.2
------- -------
Gross Profit ......................................... 31.1 30.8
Selling expense ................................. 4.9 4.2
Research expense ................................ 1.3 1.5
General expense ................................. 4.3 4.1
------- -------
Operating Profit .................................... 20.6 21.0
Interest expense ................................ (1.4) (1.0)
Other income (expense), net ..................... 0.6 0.1
------- -------
Income Before Income Taxes and Minority Interest ..... 19.8 20.1
Provision for income taxes ...................... 8.1 7.5
------- -------
Income Before Minority Interest ...................... 11.7 12.6
Minority interest in earnings of subsidiaries ... 1.7 1.3
------- -------
Net Income ........................................... $ 10.0 $ 11.3
======= =======
Net Income per Common Share
Basic ........................................... $ .62 $ .70
======= =======
Diluted ......................................... $ .61 $ .69
======= =======
Cash Dividends Declared per Common Share ............. $ .15 $ .15
======= =======
</TABLE>
See Notes to Unaudited Consolidated Financial Statements
2
<PAGE> 3
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
CONSOLIDATED BALANCE SHEETS
U.S. $ IN MILLIONS, EXCEPT PER SHARE AMOUNTS
(UNAUDITED)
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
1998 1997
- - -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents ............................................................ $ 2.7 $ 37.2
Accounts receivable .................................................................. 72.1 57.0
Inventories .......................................................................... 69.1 56.3
Deferred income tax benefits ......................................................... 3.3 3.3
Prepaid expenses ..................................................................... 4.8 3.8
------ ------
Total Current Assets ............................................................. 152.0 157.6
------ ------
Gross Property ........................................................................... 432.7 370.0
Less accumulated depreciation ........................................................ 170.8 168.9
------ ------
Net Property ..................................................................... 261.9 201.1
------ ------
Noncurrent Deferred Income Tax Benefits ................................................... 21.1 18.4
------ ------
Deferred Charges and Other Assets ......................................................... 13.7 13.9
------ ------
Total Assets .............................................................................. $448.7 $391.0
====== ======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Current portion of long-term debt .................................................... $ 3.6 $ 2.5
Other short-term debt ................................................................ 13.5 0.5
Accounts payable ..................................................................... 47.1 43.4
Accrued expenses ..................................................................... 49.5 43.0
Income taxes payable ................................................................. 4.6 1.1
------ ------
Total Current Liabilities ........................................................ 118.3 90.5
------ ------
Long-Term Debt ............................................................................ 102.9 80.8
------ ------
Deferred Income Taxes ..................................................................... 12.8 11.2
------ ------
Other Noncurrent Liabilities .............................................................. 22.4 21.9
------ ------
Minority Interest ......................................................................... 8.6 7.1
------ ------
Contingencies (See Notes 5 and 6)
Stockholders' Equity
Preferred Stock -$.10 par value - 10,000,000 shares authorized, none issued .......... -- --
Common Stock -$.10 par value - 100,000,000 shares authorized,
16,076,459 and 16,065,443 shares issued and outstanding at March 31, 1998
and December 31, 1997, respectively .............................................. l.6 1.6
Additional paid-in capital ........................................................... 60.6 60.3
Retained earnings .................................................................... 121.1 113.5
Accumulated other comprehensive income -
Unrealized foreign currency translation adjustments ................................ 0.4 4.1
------ ------
Total Stockholders' Equity ....................................................... 183.7 179.5
------ ------
Total Liabilities and Stockholders' Equity ................................................ $448.7 $391.0
====== ======
</TABLE>
See Notes to Unaudited Consolidated Financial Statements
3
<PAGE> 4
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
CONSOLIDATED STATEMENTS OF CASH FLOW
U.S. $ IN MILLIONS
(UNAUDITED)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS
ENDED MARCH 31,
--------------------
1998 1997
---- ----
<S> <C> <C>
Operations
Net income ............................................. $10.0 $11.3
Depreciation and amortization .......................... 5.1 3.3
Deferred income tax provision .......................... 3.9 2.2
Minority interest in earnings of subsidiaries .......... 1.7 1.3
Other .................................................. 0.6 0.8
Changes in operating working capital ................... (11.1) (19.1)
----- -----
Cash Provided by (Used in) Operations ......... 10.2 (0.2)
----- -----
Investing
Capital spending ....................................... (5.2) (5.7)
Capitalized software costs ............................. (0.9) (1.6)
Acquisitions, net of cash acquired ..................... (65.4) --
Other .................................................. (2.0) (2.0)
----- -----
Cash Used for Investing ....................... (73.5) (9.3)
----- -----
Financing
Cash dividends paid to SWM stockholders ................ (2.4) (2.4)
Changes in short-term debt ............................. 10.6 (0.7)
Proceeds from issuances of long-term debt ............. 20.5 0.2
Payments on long-term debt ............................. (0.2) (0.2)
Proceeds from issuances of common stock ................ 0.3 0.1
----- -----
Cash Provided by (Used for) Financing ......... 28.8 (3.0)
----- -----
Decrease in Cash and Cash Equivalents ....................... (34.5) (12.5)
Cash and Cash Equivalents at beginning of period ............ 37.2 30.9
----- -----
Cash and Cash Equivalents at end of period .................. $ 2.7 $18.4
===== =====
</TABLE>
See Notes to Unaudited Consolidated Financial Statements
4
<PAGE> 5
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
U.S. $ IN MILLIONS, EXCEPT PER SHARE AMOUNTS
NOTE 1. NATURE OF THE BUSINESS
Schweitzer-Mauduit International, Inc., including its subsidiaries,
("SWM" or the "Company") is a diversified producer of premium specialty papers
and the world's largest supplier of fine papers to the tobacco industry. The
Company was formed as a spin-off from Kimberly-Clark Corporation
("Kimberly-Clark") at the close of business on November 30, 1995.
NOTE 2. BASIS OF PRESENTATION
The consolidated financial statements include the accounts of SWM and
all its majority-owned subsidiaries, including two newly-acquired companies
since the beginning of February 1998 (see Note 7). All material intercompany and
interdivision amounts and transactions have been eliminated.
The accompanying unaudited consolidated financial statements have been
prepared by the Company pursuant to the rules and regulations of the Securities
and Exchange Commission and on the same basis as the audited financial
statements included in the Company's 1997 Annual Report on Form 10-K. All
adjustments which are, in the opinion of management, necessary for a fair
presentation of the results of operations for the interim periods have been made
and are generally of a normal recurring nature. Operating results for any
quarter are not necessarily indicative of the results for any other quarter or
for the full year. These financial statements should be read in connection with
the financial statements and notes thereto included in the Company's 1997 Annual
Report on Form 10-K.
Basic net income per common share is computed based on net income
divided by the weighted average number of common shares outstanding. The average
numbers of common shares used in the calculations of basic net income per common
share for the three month periods ended March 31, 1998 and 1997 were 16,068,000
and 16,054,300, respectively. Diluted net income per common share is computed
based on net income divided by the weighted average number of common and
potential common shares outstanding. The average numbers of common and potential
common shares used in the calculations of diluted net income per common share
for the three month periods ended March 31, 1998 and 1997 were 16,329,700 and
16,289,300, respectively. The only potential common shares are those related to
stock options outstanding during the respective periods.
NOTE 3. INVENTORIES
The following schedule details inventories by major class as of March
31, 1998 and December 31, 1997:
<TABLE>
<CAPTION>
March 31, December 31,
1998 1997
--------- ------------
<S> <C> <C>
At the lower of cost on the First-In, First-Out (FIFO)
and weighted average methods or market:
Raw materials ............................................... $ 21.3 $ 20.1
Work in process ............................................. 15.3 11.3
Finished goods .............................................. 26.2 21.4
Supplies and other .......................................... 12.4 9.7
------ ------
75.2 62.5
Excess of FIFO cost over Last-In, First-Out (LIFO) cost .......... (6.1) (6.2)
------ ------
Total ..................................................... $ 69.1 $ 56.3
====== ======
</TABLE>
5
<PAGE> 6
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
U.S. $ IN MILLIONS, EXCEPT PER SHARE AMOUNTS
NOTE 4. INCOME TAXES
The effective income tax rate for the three month period ended March
31, 1998 was 40.9 percent compared with 37.3 percent for the corresponding
period of 1997. The provision for income taxes increased primarily as a result
of an increase in the corporate income tax rate enacted in France in November
1997 from 36.67 percent to 41.67 percent for 1997 and 1998, retroactive to
January 1, 1997, and to 40.00 percent for 1999. This higher French income tax
rate increased the provision for income taxes by approximately $0.7 for the
three month period ended March 31, 1998. The increase applicable to the 1997
period was recorded in the fourth quarter of 1997 when the income tax rate
change was enacted.
NOTE 5. LEGAL PROCEEDINGS
Under the terms of the spin-off, the Company assumed liability for and
agreed to indemnify Kimberly-Clark from litigation arising out of the operation
of the Company's predecessor businesses, including the following cases:
- - - In January 1997, James E. McCune on behalf of himself and other
"nicotine dependent" West Virginia cigarette smokers filed, in the
Circuit Court of Kanawha County, West Virginia, a purported class
action against several tobacco companies, industry trade associations
and consultants, tobacco wholesalers and cigarette component
manufacturers, including Kimberly-Clark, seeking equitable relief and
compensatory and punitive damages in an unspecified amount for mental
suffering and physical injuries allegedly sustained as a result of
having smoked cigarettes. The nine-count complaint sets forth several
theories of liability, including intentional and negligent
misrepresentation, negligence, product liability, breach of warranty
and conspiracy. Among other things, the complaint alleges that nicotine
is an addictive substance, that the tobacco companies, by using
reconstituted tobacco, are able to control the precise amount of
nicotine in their cigarettes and that LTR Industries, S.A. ("LTRI"), a
French subsidiary of the Company, specializes in the reconstitution
process to help the tobacco companies control nicotine levels.
- - - On February 13, 1998, Cleo Huffman, on behalf of herself and her
deceased husband, filed a complaint in the Circuit Court of Kanawha
County, West Virginia, against several tobacco companies, industry
trade associations and consultants, tobacco wholesalers,
Kimberly-Clark, LTRI and others, seeking equitable relief, $2.0 in
compensatory damages and $3.0 in punitive damages allegedly sustained
as a result of the death of her husband which plaintiff contends was
caused by his "addiction" to smoking Camel cigarettes. The
fourteen-count complaint sets forth several theories of liability,
including intentional and negligent misrepresentation, breach of
express and implied warranties, intentional infliction of emotional
distress, product liability, sale of an unreasonably dangerous product
and conspiracy.
- - - On February 27, 1998, Denny L. Parsons, personal representative of the
estate of Audrey E. Parsons, on behalf of his wife and other persons
having claims for "personal injury arising from the exposure to
respirable asbestos fibers and cigarette smoke", filed a purported
class action in the Circuit Court of Kanawha County, West Virginia,
against 75 defendants including 42 asbestos defendants and 33 tobacco
defendants including Kimberly-Clark and LTRI. The plaintiff seeks to
recover $3 in compensatory and $3 in punitive damages on behalf of
himself and his wife's estate and the same kind of damages for the
purported class in an unspecified amount. The "asbestos defendants" are
alleged to be liable on several grounds including strict liability,
negligence, failure to warn, breach of warranty, conspiracy to conceal
the carcinogenic effects of asbestos, fraudulent misrepresentation, and
creation of false medical literature about the dangers of asbestos
exposure. The "tobacco defendants" are alleged to
6
<PAGE> 7
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
U.S. $ IN MILLIONS, EXCEPT PER SHARE AMOUNTS
be liable on essentially the same theories of liability and,
additionally, fraudulent concealment, misrepresentations about the
addictive nature of nicotine, unjust enrichment, and intentional
infliction of emotional distress. The complaint further alleges that
the "asbestos" and "tobacco" defendants encouraged and assisted each
other in their wrongful conduct and that the inhalation of asbestos
fibers and tobacco smoke create a greater risk of lung cancer than
inhaling asbestos fibers or cigarette smoke alone.
- - - On March 13, 1998, Linda Morris, representative of the estate of
Clifford Morris, filed a complaint in the Circuit Court of Kanawha
County, West Virginia, against several tobacco companies, industry
trade associations and consultants, Kimberly-Clark and LTRI seeking $2
in compensatory and $3 in punitive damages allegedly sustained as a
result of the death of her husband, which plaintiff contends was caused
by his addiction to cigarettes. The fourteen count complaint alleges
several theories of liability including intentional and negligent
misrepresentation, breach of warranty, intentional infliction of
emotional distress, product liability, sale of an unreasonably
dangerous product and conspiracy.
As a component supplier, the Company believes that Kimberly-Clark and
LTRI have meritorious defenses to each of these cases, but due to the
uncertainties of litigation, the Company cannot predict their outcome. The
Company is unable to make a meaningful estimate of the amount or range of loss
which could result from an unfavorable outcome of these actions. These cases
will be vigorously defended.
Also, the Company is involved in certain other legal actions and claims
arising in the ordinary course of business. Management believes that such
litigation and claims will be resolved without a material effect on the
Company's consolidated financial statements.
NOTE 6. ENVIRONMENTAL MATTERS
The Company's operations are subject to federal, state and local laws,
regulations and ordinances relating to various environmental matters. The nature
of the Company's operations expose it to the risk of claims with respect to
environmental matters and there can be no assurance that material costs or
liabilities will not be incurred in connection with such claims. Based on the
Company's experience to date, the Company believes that its future cost of
compliance with environmental laws, regulations and ordinances, and its exposure
to liability for environmental claims, will not have a material adverse effect
on the Company's financial condition or results of operations. However, future
events, such as changes in existing laws and regulations, or unknown
contamination of sites owned, operated or used for waste disposal by the Company
(including contamination caused by prior owners and operators of such sites or
other waste generators) may give rise to additional costs which could have a
material adverse effect on the Company's financial condition or results of
operations.
Prior to the spin-off, Kimberly-Clark was named a potentially
responsible party ("PRP") under the provisions of the U.S. Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), or analogous
state statutes, in connection with two waste disposal sites utilized by the
Company's Spotswood, New Jersey mill and one site used by the Company's former
Mt. Holly Springs, Pennsylvania mill. Prior to the spin-off, the Spotswood mill
also responded to an information request by the New Jersey Department of
Environmental Protection ("NJDEP") with respect to another landfill site
allegedly used by the Spotswood mill. The Company has assumed Kimberly-Clark's
liabilities at each of these sites but does not believe that any of these
proceedings will result in the imposition of monetary sanctions or have a
material adverse effect on the Company's business or financial condition.
7
<PAGE> 8
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
U.S. $ IN MILLIONS, EXCEPT PER SHARE AMOUNTS
In December 1997, the Company received notification from the
Environmental Protection Agency ("EPA") that, pursuant to CERCLA, it may be
named as a PRP in connection with a 1986 shipment of transformer oil containing
polychlorinated biphenyl ("PCB's") which the Company's Lee, Massachusetts mills
had contracted to have transported to a disposal site by a transporter. The
transporter has agreed to indemnify the Company for any liability connected with
such shipment.
The Company assumed responsibility to administer a consent order
between Kimberly-Clark and the Massachusetts Department of Environmental
Protection ("MDEP") governing the post-closure care of the Willow Hill Landfill
in Lee. The Company is obligated to maintain the integrity of the cover and to
sample groundwater by means of monitoring wells, in addition to other long-term
maintenance responsibilities for this former non-hazardous waste disposal
facility. Under the terms of a January 24, 1997 consent order with MDEP, as
amended, resulting from a Comprehensive Site Assessment and a Corrective Action
Alternative Assessment submitted by the Company to MDEP, the Company is also
required to correct a gas migration problem at the landfill property line. Under
the terms of the amended order, the deadline for reducing gas concentrations to
specified levels at the landfill property line has been extended to September
15, 1998. The estimated total cost of such corrective action, including annual
operating expenses, is $0.5, which amount has been accrued as of March 31, 1998.
The Company recently entered into an agreement with NJDEP to monitor
chloroform emissions at its Spotswood mill. Depending on the results of current
monitoring, it may be necessary to install chloroform emissions controls at the
mill in order to comply with air emissions limits under the New Jersey Air
Pollution Control Act. The need for such controls and their cost, if any, is
presently undetermined.
All of the Company's U.S. facilities may be affected by revised air
emissions and wastewater discharge standards under rules commonly known as the
"Cluster Rules". Although the EPA originally indicated that the proposed rules
would be finalized in 1996, the first set of rules was not published until April
1998. The EPA is currently engaged in further rule making. Based on a
preliminary analysis, the first phase of the Cluster Rules governing wastewater
discharges do not appear to affect the Company's three U.S. mills, as had
previously been anticipated. However, the later phases of the Cluster Rules
(and/or Title V of the Clean Air Act Amendments of 1990) and National Pollutant
Discharge Elimination System permit renewals may require the Company to install
air and water pollution controls at its U.S. facilities sometime after the year
2000. Due to uncertainty concerning applicable requirements under the
above-mentioned and other possible regulations, potential capital expenditures
which may become necessary for compliance cannot be estimated until after such
requirements, if any, are known.
The Company incurs spending necessary to meet legal requirements and otherwise
relating to the protection of the environment at the Company's facilities in the
United States, France, Brazil and Canada, including the aforementioned matters.
For these purposes, the Company anticipates that it will incur capital
expenditures of approximately $3 annually in 1998 and 1999. The major projects
included in these estimates include upgrading wastewater treatment facilities at
various locations and installation of equipment to treat volatile organic
compound emissions in France. The foregoing capital expenditures are not
expected to reduce the Company's ability to invest in capacity expansion,
quality improvements, capital replacements, productivity improvements, or cost
containment projects, and are not expected to have a material adverse effect on
the Company's financial condition or results of operations.
8
<PAGE> 9
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
U.S. $ IN MILLIONS, EXCEPT PER SHARE AMOUNTS
NOTE 7. ACQUISITIONS
On February 2, 1998, the Company's wholly-owned subsidiary,
Schweitzer-Mauduit Spain, S.L. ("SM-Spain"), paid approximately $62.0 in cash
for 99.97 percent ownership interest in Companhia Industrial de Papel Pirahy
("Pirahy"), a specialty paper manufacturer located near Rio de Janeiro, Brazil.
In connection with the acquisition of Pirahy, the Company modified its existing
credit agreement to provide a $20.0 term loan to SM-Spain. SM-Spain borrowed the
remaining funds for the transaction from Schweitzer-Mauduit France, S.A.R.L.
("SM-France"), a French subsidiary of the Company, which in turn utilized its
existing cash balances and borrowings from its revolving credit facilities.
Additionally, on February 11, 1998, the Company's second tier
subsidiary, Schweitzer-Mauduit Enterprises ("SM-Enterprises") paid 37.2 million
French francs (approximately $6.1) in cash and assumed approximately $5.8 in
existing net debt for all of the outstanding shares of Ingefico, S.A. and 97.1
percent of the outstanding shares of its pulp and specialty paper manufacturing
subsidiaries, Groupe SAPAM and Papeteries de la Moulasse, located in St. Girons,
France. Subsequently, SM-Enterprises acquired all the remaining shares of the
minority interest for $0.2 in cash.
The above acquisitions have been accounted for under the purchase
method of accounting and, accordingly, the acquired assets and liabilities have
been recorded at their estimated fair values as of the respective dates of the
acquisitions. In conjunction with the acquisitions, liabilities were assumed as
follows:
<TABLE>
<CAPTION>
<S> <C>
Fair value of assets acquired $ 95.7
Less: Cash paid for the stock (68.3)
Direct costs incurred (2.0)
------
Liabilities assumed $ 25.4
======
</TABLE>
The operating results of the newly-acquired companies are included in
the Consolidated Statement of Income beginning February 1, 1998. The following
summarizes unaudited consolidated pro forma results of operations, assuming the
acquisitions had occurred at the beginning of each of the following periods:
<TABLE>
<CAPTION>
Three Months Ended Three Months Ended Full Year Ended
March 31, 1998 March 31, 1997 December 31, 1997
-------------- -------------- -----------------
<S> <C> <C> <C>
Pro Forma Net Sales........................... $ 143.5 $140.4 $570.4
Pro Forma Net Income.......................... $ 10.1 $ 11.1 $ 44.2
Pro Forma Diluted Earnings Per Share.......... $ .62 $ .68 $ 2.71
</TABLE>
NOTE 8. SUBSEQUENT EVENT
On April 15, 1998, the Company announced that it has reached an
agreement with the labor union at its Spotswood mill to modify work rules and
eliminate 67 hourly positions. The cost of a related voluntary retirement
program is expected to be approximately $2 and is anticipated to be expensed in
the upcoming second quarter. Cost savings should begin to be realized during the
same quarter. On an ongoing basis, this program is expected to provide annual
net cost savings of approximately $5.
9
<PAGE> 10
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
U.S. $ IN MILLIONS, EXCEPT PER SHARE AMOUNTS
NOTE 9. NEW ACCOUNTING STANDARDS
In June 1997, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 130, "Reporting of
Comprehensive Income" which became effective in the current quarter. Currently,
the only item of comprehensive income not included in the Company's
determination of net income is the change in unrealized foreign currency
translation adjustments, as shown below for the three month periods ended March
31, 1998 and 1997:
<TABLE>
<CAPTION>
1998 1997
------ ------
<S> <C> <C>
Net Income........................................................ $ 10.0 $ 11.3
Other comprehensive income, net of taxes:
Unrealized foreign currency translation adjustments...... (3.7) (7.3)
------ ------
Comprehensive Income.............................................. $ 6.3 $ 4.0
====== ======
</TABLE>
More than 60 percent of the Company's assets and liabilities are
outside the United States, substantially all in France and Brazil. The balance
sheets of the Company's foreign subsidiaries are translated at period-end
currency exchange rates, and the differences from historical exchange rates are
reflected in accumulated other comprehensive income as unrealized foreign
currency translation adjustments. Unrealized foreign currency translation
adjustments for the three month periods ended March 31, 1998 and 1997 are
substantially all due to the strengthening of the U.S. dollar against the French
franc during the first three months of 1998 and 1997 and the strengthening of
the U.S. dollar against the Brazilian real from the date of the acquisition of
the Brazilian subsidiary through the end of the first quarter of 1998.
Also in June 1997, the FASB issued SFAS No. 131, "Disclosures about
Segments of an Enterprise and Related Information", which will be effective no
later than for the Company's 1998 Annual Report on Form 10-K. This new statement
may affect the Company's financial statement disclosures. The Company is
evaluating how to implement the new disclosure requirements.
10
<PAGE> 11
ITEM 2. SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Management believes that the following commentary and tables
appropriately discuss and analyze the comparative results of operations and the
financial condition of the Company for the periods covered.
OVERVIEW
The Company operates principally in one industry segment, which
consists of cigarette paper, tipping paper and plug wrap paper used to wrap
various parts of a cigarette and reconstituted tobacco products. The Company's
non-tobacco industry products represented approximately six percent of the
Company's net sales in 1997. Due to the non-tobacco related net sales of the
newly-acquired companies, the Company's non-tobacco industry products increased
to approximately ten percent of the Company's net sales during the first quarter
of 1998. The non-tobacco industry products are a diverse mix of products,
certain of which represent commodity paper grades produced to maximize machine
operations.
For purposes of the geographic disclosure in the following tables, the
term "United States" includes operations in the U.S. and Canada. The Canadian
operations exist primarily to produce flax fiber used as raw material in the
U.S. operations and have no material effect on such geographic disclosure. The
Company's Brazilian operations were acquired on February 2, 1998. Accordingly,
the results of its operations are included in SWM's consolidated financial
statements since the beginning of February 1998.
Adjustments to net sales set forth in the following tables consist of
eliminations of intercompany sales of products between geographic areas.
Adjustments to operating profit consist of unallocated overhead expenses not
associated with geographic areas and eliminations of intercompany transactions.
Assets reported by geographic area represent assets which are directly used and
an allocated portion of jointly used assets. These assets include receivables
from other geographic areas and are referred to as intergeographic items.
RESULTS OF OPERATIONS
By Geography for the three months ended March 31, 1998 and 1997
(U.S. $ in millions)
<TABLE>
<CAPTION>
% of Consolidated
% Change -----------------
Net Sales 1998 1997 vs. 1997 1998 1997
- - --------- ---- ---- -------- ---- ----
<S> <C> <C> <C> <C> <C>
United States ...................... $ 48.5 $ 49.7 - 2.4% 36.1% 44.0%
France.............................. 79.3 63.7 +24.5 59.1 56.4
Brazil.............................. 10.8 N.A. 8.0
Eliminations........................ (4.3) (0.4) (3.2) (0.4)
------ ------ ----- -----
Consolidated .................... $134.3 $113.0 +18.8% 100.0% 100.0%
====== ====== ===== =====
</TABLE>
<TABLE>
<CAPTION>
% of Consolidated % Return on Sales
% Change ----------------- -----------------
Operating Profit 1998 1997 vs. 1997 1998 1997 1998 1997
- - ---------------- ---- ---- -------- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
United States.............. $ 4.3 $ 7.7 -44.2% 20.9% 36.7% 8.9% 15.5%
France..................... 18.1 14.7 +23.1 87.8 70.0 22.8 23.1
Brazil..................... (0.4) N.A. (1.9) (3.7)
Unallocated/Eliminations... (1.4) (1.4) (6.8) (6.7)
----- ----- ----- -----
Consolidated............ $20.6 $21.0 - 1.9% 100.0% 100.0% 15.3% 18.6%
===== ===== ===== =====
</TABLE>
N.A. - Not applicable
11
<PAGE> 12
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS (Continued)
Primarily as a result of the recent acquisitions, total assets by
geographical area have changed as follows:
<TABLE>
<CAPTION>
% of Consolidated
March 31, December 31, -----------------
Total Assets 1998 1997 1998 1997
------------ ---- ---- ---- ----
<S> <C> <C> <C> <C>
United States.................. $159.8 $155.4 35.6% 39.7%
France......................... 222.7 237.6 49.6 60.8
Brazil......................... 70.0 N.A. 15.6
Intergeographic items.......... (3.8) (2.0) (0.8) (0.5)
------ ------ ----- -----
Consolidated................ $448.7 $391.0 100.0% 100.0%
====== ====== ===== =====
</TABLE>
N.A. - Not applicable
Net Sales
Net sales increased by $21.3 million in the three month period ended
March 31, 1998, compared with the corresponding period of the preceding year.
This increase was primarily attributable to sales at the two newly-acquired
companies, whose results are included in the Company's consolidated results
beginning in February 1998, and stronger sales volumes in France. Net sales of
the newly-acquired Brazilian and French companies totaled $18.2 million in the
quarter. Excluding the acquisitions, worldwide sales volumes increased by nine
percent, favorably effecting net sales by $8.2 million. Sales volumes from the
French businesses grew by 24 percent for the three month period, excluding the
French acquisition, primarily due to gains in porous plug wrap, tipping paper
and reconstituted tobacco leaf products. Sales volumes declined at the U.S.
business unit by 11 percent for the three month period apparently due to reduced
domestic cigarette production by the Company's customers. Sales volumes in the
U.S. declined in all major product lines. Compared with the same three month
period of the preceding year, changes in selling prices and sales mix had a
favorable effect of $0.8 million. The net sales comparison was unfavorably
effected $5.9 million by changes in currency exchange rates, primarily related
to a strengthened U.S. dollar versus the French franc.
Operating Profit
Operating profit decreased by $0.4 million in the three month period
ended March 31, 1998, compared with the corresponding period of the preceding
year. The decrease was primarily the result of new computer systems expenses in
the U.S., lower U.S. business unit sales volumes, one-time costs in the
Brazilian business unit and changes in currency exchange rates, which more than
offset the benefit of higher French sales volumes. Amortization of capitalized
software costs related to the new integrated computer systems in the U.S. and
associated incremental operating expenses began in January 1998. Additionally,
start-up costs were incurred in the first quarter related to the new U.S.
computer systems. These U.S. computer systems costs totaled approximately $2.1
million, of which approximately $1.2 million represented start-up costs which
will not be continuing. In Brazil, one-time costs associated with purchase
accounting for inventories unfavorably effected operating profit by $0.6
million. Non-manufacturing expenses increased by $0.7 million during the
quarter. This increase was solely caused by expenses at the two newly-acquired
companies. Excluding expenses of the newly-acquired companies, non-manufacturing
expenses were four percent lower than in the corresponding period of the prior
year. Per ton wood pulp cost decreases compared with the prior year favorably
impacted operating profit by $0.5 million in the three month period, although
this benefit was offset in part by changes in selling prices. Changes in
currency exchange rates had an unfavorable impact of approximately $1.0 million
on the operating profit change in the three month period.
12
<PAGE> 13
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS (Continued)
NON-OPERATING EXPENSES
Interest expense increased by $0.4 million in the three month period
ended March 31, 1998, compared with the corresponding period of the preceding
year. The increase was primarily a result of increased debt related to
acquisitions in Brazil and France and higher interest rates in France, partially
offset by changes in currency exchange rates. Other income (expense) consists
primarily of interest income and foreign currency transaction gains and losses
in the 1998 and 1997 periods and a one-time favorable litigation recovery in
France in the first quarter, 1998.
INCOME TAXES
The effective income tax rate for the three month period ended March
31, 1998 was 40.9 percent compared with 37.3 percent for the corresponding
period of 1997. The provision for income taxes increased primarily as a result
of an increase in the corporate income tax rate enacted in France in November
1997 from 36.67 percent to 41.67 percent for 1997 and 1998, retroactive to
January 1, 1997, and to 40.00 percent for 1999. This higher French income tax
rate increased the provision for income taxes by approximately $0.7 million for
the three month period ended March 31, 1998. The increase applicable to the 1997
period was recorded in the fourth quarter of 1997 when the income tax rate
change was enacted.
LIQUIDITY AND CAPITAL RESOURCES
Net cash provided by operations, the amount attributable to changes in
operating working capital, and the amount of cash used for capital expenditures
and capitalized software costs for the three months ended March 31, 1998 and
1997 were as follows:
<TABLE>
<CAPTION>
Three Months Ended March 31,
----------------------------
(U.S. $ in millions)
1998 1997
---- ----
<S> <C> <C>
Net cash provided by (used in) operations.................. $ 10.2 $ (0.2)
Increase in operating working capital...................... (11.1) (19.1)
Capital expenditures........................................ 5.2 5.7
Capitalized software costs.................................. 0.9 1.6
</TABLE>
The Company's primary source of liquidity is cash flow from operations,
which is principally obtained through operating earnings. The Company's net cash
provided by operations increased from $(0.2) million for the three months ended
March 31, 1997 to $10.2 million for the three months ended March 31, 1998,
primarily as a result of changes in operating working capital, excluding the
added working capital obtained with the two recent acquisitions. Changes in
operating working capital contributed unfavorably to cash flow in both periods,
by $11.1 million and $19.1 million in the three month periods ended March 31,
1998 and 1997, respectively. Excluding working capital of the two acquisitions,
the 1998 increase in working capital was primarily due to a decrease in accounts
payable, mainly associated with 1998 payments for capital expenditures included
in accounts payable at December 31, 1997. The 1997 increase in working capital
was primarily due to a decrease in accounts payable, mainly associated with 1997
payments for capital expenditures and capitalized software costs included in
accounts payable at December 31, 1996, and an increase in accounts receivable
mainly due to higher March 1997 sales compared with sales in December 1996 and
the timing of collections from certain customers.
13
<PAGE> 14
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS (Continued)
Cash provided by operations exceeded the level of capital spending
during the first three months of 1998. Capital spending for the three months
ended March 31, 1998 included $1.8 million toward upgrades to a paper machine at
the Ancram mill.
In addition to capital spending, the Company incurred, and deferred on
the balance sheet, additional software development costs of $0.9 million in the
three month period ended March 31, 1998, toward new company-wide integrated
computer systems. Most of this spending occurred in France. These computer
systems are replacing the previously used Kimberly-Clark systems and ensure the
Company's computer systems are able to handle the change to the year 2000.
In February 1998, two acquisitions were completed. On February 2, 1998,
SM-Spain paid approximately $62.0 million in cash for 99.97 percent ownership
interest in Pirahy. In connection with the acquisition of Pirahy, the Company
modified its existing credit agreement to provide a $20.0 million term loan to
SM-Spain. SM-Spain borrowed the remaining funds for the transaction from
SM-France, which in turn utilized its existing cash balances and borrowings from
its revolving credit facilities. Additionally, on February 11, 1998,
SM-Enterprises paid 37.2 million French francs (approximately $6.1 million) in
cash and assumed approximately $5.8 million in existing net debt for all of the
outstanding shares of Ingefico, S.A. and 97.1 percent of the outstanding shares
of its pulp and specialty paper manufacturing subsidiaries, Groupe SAPAM and
Papeteries de la Moulasse. Subsequently, SM-Enterprises acquired all the
remaining shares of the minority interest for $0.2 million in cash.
During the first quarter of 1998, the Ancram mill successfully
completed a rebuild of the wet end of a long fiber paper machine. During March
1997, the Quimperle, France mill successfully started up its new long fiber
paper machine. This machine continues to operate well. During the first quarter
of 1998, the Quimperle mill initiated a speed-up program for this machine. By
late 1998, this speed-up program and the completed Ancram project will,
together, increase the Company's annual long fiber production capacity by 10 to
12 percent.
On April 24, 1997, the Board of Directors authorized a program to
permit the repurchase of the Company's common stock through December 31, 1998 in
an aggregate amount not to exceed $20 million. This was to provide the Company
flexibility in the event other timely strategic investments were not available.
No repurchases of common stock had been made as of March 31, 1998.
On April 23, 1998, the Board of Directors declared a quarterly cash
dividend of fifteen cents per share of common stock. The dividend will be
payable on June 8, 1998 to stockholders of record on May 11, 1998.
The Company's ongoing requirements for cash consist principally of
amounts required for capital expenditures, the new company-wide integrated
computer systems, stockholder dividends and working capital. Other than
expenditures associated with environmental matters (see Note 6 of the Notes to
Unaudited Consolidated Financial Statements) and other capital projects
mentioned in the Outlook section below, the Company had no material outstanding
commitments as of March 31, 1998. The principal sources of cash are expected to
be cash flow from operations and borrowings from commercial banks.
The Company believes its cash flow from operations, together with
borrowings available under its revolving credit facilities, will be sufficient
to fund its ongoing cash requirements.
14
<PAGE> 15
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS (Continued)
NEW ACCOUNTING STANDARD
In June 1997, the FASB issued SFAS No. 131, "Disclosures about Segments
of an Enterprise and Related Information", which will be effective no later than
for the Company's 1998 Annual Report on Form 10-K. This new statement may affect
the Company's financial statement disclosures. The Company is evaluating how to
implement the new disclosure requirements.
OUTLOOK
During the remainder of 1998, the Company expects to benefit from
continued growth in sales volumes outside the United States, reflecting
increased demand for the Company's products and sales from recently acquired
companies in Brazil and France. Cost savings are expected to continue from
recently implemented capital projects. The higher corporate income tax rate in
France is expected to negatively impact full year 1998 earnings by $.15 to $.20
per share compared with 1997. Amortization of capitalized software costs related
to the new integrated computer systems in the U.S. began in January and is
expected to reduce full year 1998 earnings by approximately $.05 per share
compared with 1997. Additionally, operating expenses for the new computer
network in the U.S. over and above the amount previously paid to Kimberly-Clark
for utilization of its systems are expected to have an unfavorable full year
effect of approximately $.08 per share in 1998 compared with 1997. The per ton
cost of wood pulp declined somewhat in the first quarter, although a small
increase in per ton wood pulp costs is expected later this year.
The Company has begun to integrate the Brazilian and French
acquisitions, which occurred in February 1998, but does not expect them to begin
contributing positively to earnings until later in 1998. The Company's customers
in the U.S. traditionally reduce their operating schedules around holidays
during the third and fourth quarters, which could soften the demand for the
Company's products and allow for additional maintenance and capital work. Also,
the direction of the U.S. cigarette market remains unclear at this time, given
the potential tobacco settlement legislation, the effect of lower exports of
cigarettes by the Company's customers in the U.S. and the continuing adverse
publicity for the tobacco industry.
The Company expects capital spending for 1998 to be approximately $35
to $40 million in total, focused primarily on internal capacity expansion,
product quality improvements and cost reduction opportunities. In addition to
capital spending, the Company expects to incur approximately $4 to $5 million of
additional capitalized software costs in 1998, primarily in France. Start-up of
the new systems in France is expected to begin in mid-1999.
Certain comments contained herein concerning the business outlook and
anticipated financial results of the Company constitute forward-looking
statements and are based upon management's expectations and beliefs concerning
future events impacting the Company. There can be no assurances that such events
will occur or that the Company's results will be as estimated. Many factors
outside the control of the Company also could impact the realization of such
estimates. Certain such factors that could cause the Company's future results to
differ materially from those expressed in any such forward-looking statements
are discussed in the Company's Annual Report on Form 10-K, Part I, Item 7, under
the heading "Factors That May Affect Future Results".
15
<PAGE> 16
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
Under the terms of the spin-off, the Company assumed liability for and
agreed to indemnify Kimberly-Clark from litigation arising out of the operation
of the Company's predecessor businesses, including the following two new cases:
- - - On February 27, 1998, Denny L. Parsons, personal representative of the
estate of Audrey E. Parsons, on behalf of his wife and other persons
having claims for "personal injury arising from the exposure to
respirable asbestos fibers and cigarette smoke", filed a purported
class action in the Circuit Court of Kanawha County, West Virginia,
against 75 defendants including 42 asbestos defendants and 33 tobacco
defendants including Kimberly-Clark and LTRI. The plaintiff seeks to
recover $3 in compensatory and $3 in punitive damages on behalf of
himself and his wife's estate and the same kind of damages for the
purported class in an unspecified amount. The "asbestos defendants" are
alleged to be liable on several grounds including strict liability,
negligence, failure to warn, breach of warranty, conspiracy to conceal
the carcinogenic effects of asbestos, fraudulent misrepresentation, and
creation of false medical literature about the dangers of asbestos
exposure. The "tobacco defendants" are alleged to be liable on
essentially the same theories of liability and, additionally,
fraudulent concealment, misrepresentations about the addictive nature
of nicotine, unjust enrichment, and intentional infliction of emotional
distress. The complaint further alleges that the "asbestos" and
"tobacco" defendants encouraged and assisted each other in their
wrongful conduct and that the inhalation of asbestos fibers and tobacco
smoke create a greater risk of lung cancer than inhaling asbestos
fibers or cigarette smoke alone.
- - - On March 13, 1998, Linda Morris, representative of the estate of
Clifford Morris, filed a complaint in the Circuit Court of Kanawha
County, West Virginia, against several tobacco companies, industry
trade associations and consultants, Kimberly-Clark and LTRI seeking $2
in compensatory and $3 in punitive damages allegedly sustained as a
result of the death of her husband, which plaintiff contends was caused
by his addiction to cigarettes. The fourteen count complaint alleges
several theories of liability including intentional and negligent
misrepresentation, breach of warranty, intentional infliction of
emotional distress, product liability, sale of an unreasonably
dangerous product and conspiracy.
As a component supplier, the Company believes that Kimberly-Clark and
LTRI have meritorious defenses to each of these cases, but due to the
uncertainties of litigation, the Company cannot predict their outcome. The
Company is unable to make a meaningful estimate of the amount or range of loss
which could result from an unfavorable outcome of these actions. These cases
will be vigorously defended.
16
<PAGE> 17
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits:
10. Amended and Restated Credit Agreement dated as of January 30,
1998, between Schweitzer-Mauduit International, Inc., as Borrower
and Guarantor, Schweitzer-Mauduit France, S.A.R.L., as Borrower,
PDM Industries S.N.C., as Borrower, and Schweitzer-Mauduit Spain,
S.L., as Borrower, the Banks named therein and Societe Generale,
as Agent.
15. Independent Accountants' Report, dated April 28, 1998 from
Deloitte & Touche LLP to Schweitzer-Mauduit International, Inc.
23. Independent Accountants' Consent.
27. Financial Data Schedule (for SEC use only).
(b) Reports on Form 8-K:
(1) On January 26, 1998, the Company filed a Current Report on Form
8-K dated January 13, 1998, which reported the Company's
announcement that an agreement had been reached to acquire
Ingefico, S.A. and its pulp and specialty paper manufacturing
subsidiaries located in St. Girons in the southwestern part of
France.
(2) On February 19, 1998, the Company filed a Current Report on Form
8-K dated February 2, 1998, which reported that the Company closed
on two previously announced acquisitions. The closing occurred on
February 2, 1998 to acquire Companhia Industrial de Papel Pirahy,
a specialty paper manufacturer located near Rio de Janeiro,
Brazil. The closing occurred on February 11, 1998 to acquire
Ingefico, S.A. and its pulp and specialty paper manufacturing
subsidiaries.
(3) On April 6, 1998, the Company filed a Current Report on Form 8-K
dated March 30, 1998, which reported: (a) the Company's
announcement on March 30, 1998 that first quarter diluted earnings
per share were expected to be $.55 to $.60, (b) the Company's
announcement on March 31, 1998 of a 45 day extension to the Supply
Agreement with Philip Morris, and (c) the Company's announcement
on April 1, 1998 that Jean-Pierre Le Hetet was elected to the
newly created position of Chief Operating Officer.
17
<PAGE> 18
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Schweitzer-Mauduit International, Inc.
(Registrant)
By: /s/ PAUL C. ROBERTS
-----------------------------------------
Paul C. Roberts
Chief Financial Officer and
Treasurer
(duly authorized officer and
principal financial officer)
By: /s/ WAYNE L. GRUNEWALD
-----------------------------------------
Wayne L. Grunewald
Controller
(principal accounting officer)
May 14, 1998
18
<PAGE> 19
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
QUARTERLY REPORT ON FORM 10-Q
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1998
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- - ------- ------------------- ------------
<S> <C> <C>
10. --- Amended and Restated Credit Agreement dated as of January
30, 1998, between Schweitzer-Mauduit International, Inc., as
Borrower and Guarantor, Schweitzer-Mauduit France, S.A.R.L.,
as Borrower, PDM Industries S.N.C., as Borrower, and
Schweitzer-Mauduit Spain, S.L., as Borrower, the Banks named
therein and Societe Generale, as Agent.
15. --- Independent Accountants' Report, dated April 28, 1998 from
Deloitte & Touche LLP to Schweitzer-Mauduit International,
Inc.
23. --- Independent Accountants' Consent.
27. --- Financial Data Schedule (for SEC use only).
</TABLE>
<PAGE> 1
EXHIBIT 10
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of January 30, 1998
Among
SCHWEITZER-MAUDUIT INTERNATIONAL, INC.
as Borrower and Guarantor,
SCHWEITZER-MAUDUIT FRANCE S.A.R.L.
as Borrower,
PDM INDUSTRIES S.N.C.,
as Borrower,
SCHWEITZER-MAUDUIT SPAIN, S.L.,
as Borrower.
THE BANKS NAMED IN THIS CREDIT AGREEMENT
as Banks,
and
SOCIETE GENERALE
as Agent
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms ................................... 1
Section 1.02. Computation of Time Periods ............................. 19
Section 1.03. Accounting Terms Changes in GAAP ........................ 19
Section 1.04. Classes and Types of Advances ........................... 20
Section 1.05. Miscellaneous ........................................... 20
ARTICLE II
THE ADVANCES
Section 2.01. The Advances ............................................ 20
Section 2.02. Method of Borrowing ..................................... 21
Section 2.03. Fees .................................................... 26
Section 2.04. Reduction of the Commitments ............................ 27
Section 2.05. Repayment ............................................... 27
Section 2.06. Interest ................................................ 28
Section 2.07. Prepayments ............................................. 30
Section 2.08. Funding Losses .......................................... 32
Section 2.09. Increased Costs ......................................... 33
Section 2.10. Payments and Computations ............................... 34
Section 2.11. Taxes ................................................... 35
Section 2.12. Sharing of Payments, Etc ................................ 39
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. Conditions Precedent to Initial Advances ................ 40
Section 3.02. Conditions Precedent to Each Borrowing .................. 41
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Corporate Existence; Subsidiaries ....................... 42
Section 4.02. Corporate Power ......................................... 42
Section 4.03. Authorization and Approvals ............................. 42
Section 4.04. Enforceable Obligations ................................. 43
Section 4.05. Financial Statements .................................... 43
Section 4.06. True and Complete Disclosure ............................ 44
Section 4.07. Litigation .............................................. 45
Section 4.08. Use of Proceeds ......................................... 45
Section 4.09. Investment Company Act .................................. 45
Section 4.10. Taxes ................................................... 45
Section 4.11. Pension Plans ........................................... 46
Section 4.12. Condition of Property; Casualties ....................... 46
Section 4.13. Insurance ............................................... 46
Section 4.14. No Burdensome Restrictions; No Defaults ................. 47
Section 4.15. Supply Agreement ........................................ 47
Section 4.16. Environmental Condition ................................. 47
Section 4.17. Liens and Encumbrances .................................. 48
ARTICLE V
AFFIRMATIVE COVENANTS
Section 5.01. Compliance with Laws, Etc ............................... 48
Section 5.02. Maintenance of Insurance ................................ 48
Section 5.03. Preservation of Corporate Existence, Etc ................ 48
Section 5.04. Payment of Taxes, Etc ................................... 49
Section 5.05. Reporting Requirements .................................. 49
Section 5.06. Maintenance of Property ................................. 52
Section 5.07. Inspection .............................................. 52
Section 5.08. Use of Proceeds ......................................... 52
Section 5.09. Status of Obligations ................................... 52
Section 5.10. Nature of Business ...................................... 52
Section 5.11. Pirahy Acquisition ...................................... 53
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
ARTICLE VI
NEGATIVE COVENANTS
<S> <C> <C>
Section 6.01. Liens, Etc ............................................................... 53
Section 6.02. Merger or Consolidation; Asset Sales ..................................... 54
Section 6.03. Investments............................................................... 55
Section 6.04. Transactions With Affiliates ............................................. 55
Section 6.05. Compliance with ERISA .................................................... 56
Section 6.06. Tangible Net Worth ....................................................... 56
Section 6.07. Fixed Charge Coverage Ratio .............................................. 56
Section 6.08. Leverage Ratio ........................................................... 56
Section 6.09. Debt ..................................................................... 57
Section 6.10. Special Provisions for Material Subsidiaries of the French Borrowers ..... 57
ARTICLE VII
REMEDIES
Section 7.01. Events of Default ........................................................ 58
Section 7.02. Optional Acceleration of Maturity ........................................ 60
Section 7.03. Automatic Acceleration of Maturity ....................................... 60
Section 7.04. Non-exclusivity of Remedies .............................................. 60
Section 7.05. Right of Set-off ......................................................... 60
ARTICLE VIII
THE GUARANTY
Section 8.01. Guaranty ................................................................. 61
Section 8.02. Guaranty Absolute ........................................................ 61
Section 8.03. Waiver ................................................................... 62
Section 8.04. Subrogation .............................................................. 62
ARTICLE IX
THE AGENT
Section 9.01. Authorization and Action ................................................. 63
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<S> <C> <C>
Section 9.02. Agent's Reliance, Etc. ................................................... 64
Section 9.03. The Agent and Its Affiliates ............................................. 65
Section 9.04. Bank Credit Decision ..................................................... 65
Section 9.05. Indemnification .......................................................... 66
Section 9.06. Successor Agent .......................................................... 66
ARTICLE X
MISCELLANEOUS
Section 10.01 Amendments, Etc. ......................................................... 65
Section 10.02. Notices, Etc. ............................................................ 66
Section 10.03. No Waiver; Remedies ...................................................... 66
Section 10.04. Costs and Expenses ....................................................... 66
Section 10.05. Binding Effect ........................................................... 66
Section 10.06. Bank Assignments and Participations ...................................... 67
Section 10.07. Indemnification .......................................................... 69
Section 10.08. Execution in Counterparts ................................................ 70
Section 10.09. Survival of Representations, etc. ........................................ 70
Section 10.10. Severability ............................................................. 70
Section 10.11. Usury Not Intended ....................................................... 70
Section 10.12. Global Effective Rate .................................................... 71
Section 10.13. Concerning Joint and Several Liability of the French Borrowers ........... 71
Section 10.14. Judgment Currency ........................................................ 73
Section 10.15. Governing Law; Consent to Jurisdiction ................................... 73
Section 10.16. Confidentiality .......................................................... 74
</TABLE>
EXHIBITS
Exhibit A - Form of Assignment and Acceptance
Exhibit B-1 - Form of French Revolving Note
Exhibit B-2 - Form of French Term Note
Exhibit B-3 - Form of U.S. Revolving Note
Exhibit B-4 - Form of U.S. Term Note
Exhibit B-5 - Form of Spanish Term Note
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Notice of Conversion or Continuation
Exhibit E - Form of Compliance Certificate
Exhibit F-1 - Form of Company's Outside Counsel Opinion
-iv-
<PAGE> 6
<TABLE>
<S> <C>
Exhibit F-2 - Form of French Borrower's Outside Counsel Opinion
Exhibit F-3 - Form of Agent's Counsel Opinion
Exhibit F-4 - Form of SMS' Outside Counsel Opinion
Exhibit G - Form of Confidentiality Agreement (General)
Exhibit H - Form of Confidentiality Agreement (PMI)
SCHEDULES:
Schedule 1 - Notice Information for Banks
Schedule 4.07 - Litigation
Schedule 4.16 - Environmental
Schedule 6.01 - Existing Liens
</TABLE>
<PAGE> 7
CREDIT AGREEMENT
This Amended and Restated Credit Agreement dated as of January 30, 1998
is among (a) Schweitzer-Mauduit International, Inc., a Delaware corporation
("Company"); (b) Schweitzer-Mauduit France S.A.R.L., a French corporation
("SMF"); (c) PDM Industries S.N.C., a French corporation ("PDM"); (d)
Schweitzer-Mauduit Spain, S.L., sociedad unipersonal, a Spanish corporation with
a sole shareholder ("SMS"); (d) the Banks (as defined below); and (e) Societe
Generale, as Agent for the Banks.
The Company, SMF, PDM, SMS, the Banks, and the Agent agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this Agreement, the
terms defined above shall have the meanings set forth therein and the following
terms shall have the following meanings (unless otherwise indicated, such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):
"Adjusted U.S. Base Rate" means, for any day, the fluctuating rate per
annum of interest equal to the greater of (a) the U.S. Base Rate in effect on
such day and (b) the Federal Funds Rate in effect on such day plus 1/4%.
"Advance" means a U.S. Revolving Advance, a U.S. Term Advance, a French
Revolving Advance, a French Term Advance or a Spanish Term Advance.
"Affected Bank" has the meanings set forth in Section 2.02(c)(iii) and
2.07(e), as applicable.
"Affiliate"" means, as to any Person, any other Person that, directly
or indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with, such Person or any Subsidiary of such Person.
The term "control" (including the terms "controlled by" or "under common control
with") means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether through
ownership of a Control Percentage, by contract or otherwise.
"Agent" means Societe Generale in its capacity as an agent pursuant to
Article IX and any successor agent pursuant to Section 9.06.
<PAGE> 8
"Agreement" means this Amended and Restated Credit Agreement dated as
of January 30, 1998 among the Company, SMF, PDM, SMS, the Banks, and the Agent,
as it may be amended or supplemented from time-to-time.
"Applicable Accounting Rules" means, in respect of a particular Person,
the body of generally accepted accounting principles which are applicable to the
preparation and presentation of such Person's financial statements.
"Applicable Lending Office" means, with respect to each Bank, such
Bank's U.S. Lending office in the case of a U.S. Base Rate Advance, such Bank's
Eurodollar Lending office in the case of a Eurodollar Rate Advance, such Bank's
Eurocurrency Lending Office in the case of a Eurocurrency Rate Advance, and such
Bank's French Lending Office in the case of a French Alternate Rate Advance.
"Applicable Margin" means, at any time with respect to (a) any U.S.
Revolving Advance or any French Revolving Advance which is a Fixed Rate Advance,
.20% per annum and (b) any U.S. Term Advance, French Term Advance or Spanish
Term Advance which is a Fixed Rate Advance, the following percentages determined
as a function of the Leverage Ratio on the last day of the immediately preceding
fiscal quarter:
<TABLE>
<CAPTION>
Ratio equal
to or
less than Ratio greater
.45 than.45
---------- --------------
<S> <C> <C>
Applicable Margin .30% .375%
</TABLE>
For purposes of calculating the Applicable Margin, the Leverage Ratio shall be
determined from the financial statements of the Company and its Subsidiaries
most recently delivered pursuant to Section 5.05 and certified to the Agent and
the Banks in the Compliance Certificate required to be delivered by the Company
in connection with such financial statements pursuant to Section 5.05(g). If the
Company fails to deliver such financial statements and Compliance Certificate
within the times specified in Section 5.05, the Leverage Ratio shall be deemed
to be greater than .45 until the Company delivers such financial statements to
the Agent and the Banks.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Bank and an Eligible Assignee, and executed by the Agent and the
Company, in substantially the form of the attached Exhibit A.
"Banks" means the lenders listed on the signature pages of this
Agreement and each Eligible Assignee that shall become a party to this Agreement
pursuant to Section 10.06.
-2-
<PAGE> 9
"Borrower" means (a) with respect to the U.S. Revolving Advances and
the U.S. Term Advances, the Company, (b) with respect to the French Revolving
Advances, SMF and PDM, (c) with respect to the French Term Advances, SMF, and
(d) with respect to the Spanish Term Advances, SMS, and "Borrowers" shall refer
to all such Persons collectively.
"Borrowing" means a U.S. Revolving Borrowing, a U.S. Term Borrowing, a
French Revolving Borrowing, a French Term Borrowing or a Spanish Term Borrowing.
"Business Day" means, (a) with respect to U.S. Base Rate Advances, a
day of the year on which banks are not required or authorized to close in
Atlanta, Georgia, New York City or Dallas, Texas, (b) with respect to Eurodollar
Rate Advances, a day of the year on which banks are not required or authorized
to close in Atlanta, Georgia, New York City, Dallas, Texas or London, England,
(c) with respect to Eurocurrency Rate Advances, a day of the year on which banks
are not required or authorized to close in Atlanta, Georgia, London, England or
Paris, France, and (d) with respect to French Alternate Rate Advances, a day of
the year in which banks are not required or authorized to close in Atlanta,
Georgia, London, England or Paris, France.
"Capital Leases" means, as applied to any Person, any lease of any
Property by such Person as lessee which would, in accordance with Applicable
Accounting Rules, be required to be classified and accounted for as a capital
lease on the balance sheet of such Person.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended, and all rules and regulations and
requirements thereunder in each case as now or hereafter in effect.
"Class" has the meaning set forth in Section 1.04.
"Code" means the internal Revenue Code of 1986, as amended, and any
successor statute.
"Commitments" means, as to any Bank, its U.S. Revolving Commitment, its
French Revolving Commitment and its Spanish Term Commitment.
"Compliance Certificate" means a Compliance Certificate signed by a
Responsible Officer of the Company in substantially the form of the attached
Exhibit E.
"Control Percentage" means, with respect to any Person, the percentage
of the outstanding capital stock of such Person having ordinary voting power
which gives the direct or indirect holder of such stock the power to elect a
majority of the Board of Directors of such Person.
-3 -
<PAGE> 10
"Controlled Group" means, all members of a controlled group of
corporations and all trades (whether or not incorporated) under common control
which, together with any Borrower, are treated as a single employer under
Section 414 of the Code.
"Continue", "Continuation", and "Continued" each refers to a
continuation of Advances for an additional Interest Period upon the expiration
of the Interest Period then in effect for such Advances.
"Convert", "Conversion", and "Converted" each refers to a conversion of
Advances of one Type into Advances of another Type pursuant to Section 2.02(b).
"Credit Documents" means this Agreement, the Notes, and each other
agreement, instrument or document executed by the Borrowers, any of their
Subsidiaries or any of their officers at any time in connection with this
Agreement.
"Currency" means Dollars or French Francs, as applicable.
"Debt," for any Person, means without duplication:
(a) indebtedness of such Person for borrowed money;
(b) obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(c) obligations of such Person to pay the deferred purchase price of
property or services (other than trade accounts payable);
(d) obligations of such Person as lessee under Capital Leases;
(e) obligations of such Person under direct or indirect guaranties in
respect of, and obligations (contingent or otherwise) of such Person to purchase
or otherwise acquire, or otherwise to assure a creditor against loss in respect
of, indebtedness or obligations of others of the kinds referred to in clauses
(a) through (d) above;
(f) all obligations of such Person under any Interest Hedge Agreement;
and
(g) indebtedness or obligations of others of the kinds referred to in
clauses (a) through (f) secured by any Lien on or in respect of any Property of
such Person.
"Default" means (a) an Event of Default or (b) any event or condition
which with notice or lapse of time or both would, unless cured or waived, become
an Event of Default.
-4-
<PAGE> 11
"Dollar Equivalent" means the equivalent in another currency of an
amount in Dollars to be determined by reference to the rate of exchange quoted
by Societe Generale, New York Branch at 10:00 a.m. (New York City time) on the
date of determination, for the spot purchase in the foreign exchange market of
such amount of Dollars with such other currency.
"Dollars" and "$" means lawful money of the United States of America.
"EBITDA" means, for any period, (a) Net Income for such period plus (b)
to the extent deducted in determining Net Income, Interest Expense, taxes, and
depreciation and amortization for such period.
"Eligible Assignee" means (a) a commercial bank organized under the
laws of the United States, or any State thereof, and having primary capital
(Tier I) of not less than $500,000,000 and approved by the Agent and the
Company, which approval will not be unreasonably withheld, (b) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development and having primary capital
(or its equivalent) of not less than $500,000,000 (or its Dollar Equivalent) and
approved by the Agent and the Company, which approval by the Agent and the
Company will not be unreasonably withheld, or (c) any other Person that has been
approved by the Company in its sole discretion and the Agent, which approval by
the Agent will not be unreasonably withheld. Without limiting any other basis
upon which the Company may reasonably withhold its consent to a proposed
assignee, the Company's consent shall not be deemed to have been unreasonably
withheld if such assignment would be reasonably likely to result in (i) any
Borrower becoming liable for any payment pursuant to Sections 2.09, 2.11(a) or
2.11(c) or (ii) such assignee asserting any rights under Sections 2.02(c)(iii)
or 2.07(e).
"Environment" or "Environmental" shall have the meanings set forth in
43 U.S.C. ss. 9601(8) (1988).
"Environmental Claim" means any third party (including governmental
agencies and employees) action, lawsuit, claim, regulatory action or proceeding,
order, decree, consent agreement or notice of potential or actual responsibility
or violation which seeks to impose liability under any Environmental Law.
"Environmental Law" means, as to a particular Borrower or its Subsidiaries,
all Legal Requirements applicable to such Borrower or its Subsidiaries arising
from, relating to, or in connection with the Environment, including without
limitation CERCLA, relating to (a) pollution, contamination, injury,
destruction, loss, protection, cleanup, reclamation or restoration of the air,
surface water, groundwater, land surface or subsurface strata, or other natural
resources; (b) solid, gaseous or liquid waste generation, treatment, processing,
recycling, reclamation, cleanup, storage, disposal or transportation; (c)
exposure to pollutants, contaminants, hazardous, medical, infectious,
-5-
<PAGE> 12
or toxic substances, materials or wastes; or (d) the manufacture, processing,
handling, transportation, distribution in commerce, use, storage or disposal of
hazardous, medical, infectious, or toxic substances, materials or wastes.
"Environmental Permit" means any permit, license, order, approval or
other authorization under Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time-to-time.
"Eurocurrency Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Eurocurrency Lending Office" its name on
Schedule 1 (or, if no such office is specified, its U.S. Lending Office) or such
other office of such Bank as such Bank may from time-to-time specify to the
Borrowers and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Federal Reserve Board (or any successor), as in effect from
time-to-time.
"Eurocurrency Rate" means, for the Interest Period for each
Eurocurrency Rate Advance comprising part of the same Borrowing, the interest
rate per annum set forth on Dow Jones Market Page 3740 for French Francs as the
London Interbank Offered Rate at 11:00 a.m. (London time) two Business Days
before the first day of such Interest Period and for a period equal to such
Interest Period.
"Eurocurrency Rate Advance" means an Advance which bears interest based
on the Eurocurrency Rate.
"Eurodollar Lending Office" means, with respect to any Bank, the office
of such Bank specified as its "Eurodollar Lending Office" opposite its name on
Schedule l (or, if no such office is specified, its U.S. Lending Office) or such
other office of such Bank as such Bank may from time-to-time specify to the
Borrowers and the Agent.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, the interest rate per annum
set forth on Dow Jones Market Page 3750 as the London Interbank Offered Rate at
1 l :00 a.m. (London time) two Business Days before the first day of such
Interest Period and for a period equal to such Interest Period; provided that,
if no such quotation appears on Telerate Page 3750, the Eurodollar Rate shall be
an interest rate per annum (rounded upward to the nearest whole multiple of l/16
of 1% per annum) equal to the rate per annum at which deposits in Dollars are
offered by the principal office of Societe Generale in London, England to prime
banks in the London interbank market at 11:00 a.m. (London time) two Business
Days before the first day of such Interest Period in an amount substantially
equal to Societe
-6-
<PAGE> 13
Generale's Eurodollar Rate Advance comprising part of such Borrowing for a
period equal to such Interest Period.
"Eurodollar Rate Advance" means an Advance which bears interest based
on the Eurodollar Rate.
"Events of Default" has the meaning set forth in Section 7.01.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for any such day on
such transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any of its successors.
"Financial Statements" means the audited or unaudited, as applicable,
combined or consolidated, as applicable, balance sheets and income, changes in
owners' equity and cash flow statements of the Borrowers and the other entities
referred to in Section 4.05, other than SMS and its Subsidiaries, each dated
December 31, 1996.
"Fixed Charges" means, for any period, (a) if no Potential Phaseout
Event has occurred, the sum of cash interest expense, Restricted Payments made
by the Company, cash taxes and depreciation for such period and (b) if a
Potential Phaseout Event has occurred, the sum of cash interest expense, rent
expense, Restricted Payments made by the Company, cash taxes and capital
expenditures (other than Special Expenditures) for such period; provided that,
if the Company delivers the certificate described in the second proviso of
Section 6.07, then Fixed Charges shall be determined in accordance with clause
(a) of this definition.
"Fixed Charge Coverage Ratio" means, for the Company at the end of any
fiscal quarter, the ratio of the Company's (a) EBITDA during the four-fiscal
quarter period then ended to (b) its Fixed Charges for the four-fiscal quarter
period then ended; provided that, any such calculation of the Fixed Charge
Coverage Ratio made after the occurrence of a Potential Phaseout Event shall (i)
for the first Phaseout Quarter, be made using EBITDA and Fixed Charges for such
Phaseout Quarter only, (ii) for the second Phaseout Quarter, be made using
EBITDA and Fixed Charges for such Phaseout Quarter and the preceding Phaseout
Quarter, (iii) for the third Phaseout Quarter, be made using EBITDA and Fixed
Charges for such Phaseout Quarter and the preceding two Phaseout
-7-
<PAGE> 14
Quarters, and (iv) for each Phaseout Quarter thereafter, be made using EBITDA
and Fixed Charge for the four-Phaseout Quarter period then ended.
"Fixed Rate Advance" means any Eurodollar Rate Advance, Eurocurrency
Rate Advance or French Alternate Rate Advance.
"Fixed Rate Reserve Percentage" of any Bank for the Interest Period for
any Fixed Rate Advance means the reserve percentage applicable during such
Interest Period (or if more than one such percentage shall be so applicable, the
daily average of such percentages for those days in such Interest Period during
which any such percentage shall be so applicable) under regulations issued from
time-to-time by the. Federal Reserve Board for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for such Bank with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities having a term equal
to such Interest Period.
"French Alternate Rate" means, with respect to any Borrowing consisting
of French Alternate Rate Advances, an interest rate per annum equal to the
arithmetic mean (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum) of the rates supplied to the Agent at its request, quoted by Reference
Banks to leading banks in the interbank market at 2:00 p.m. (London time) two
Business Days before the first day of the applicable Interest Period related to
such Borrowing for the offering of deposits in French Francs for the applicable
French Alternate Rate Advance in an amount equal to such Reference Bank's French
Alternate Rate Advance comprising part of such Borrowing and for a period equal
to such Interest Period. In no case shall less than two Reference Banks be used
when computing the arithmetic average. Each determination by the Agent of an
interest rate which is the French Alternate Rate as calculated hereunder shall
be conclusive and binding for all purposes absent manifest error. Upon the
request of any Borrower, the Agent shall send such Borrower telephonic notice of
the quote received from each of the Reference Banks with respect to the
calculation of the French Alternate Rate.
"French Alternate Rate Advance" means an Advance which bears interest
based on the French Alternate Rate.
"French Borrower" means either SMF or PDM, and "French Borrowers" means
such Persons collectively.
"French Francs" and "FRF" means lawful money of the Republic of France.
"French Lending Office" means, with respect to each Bank, the office of
such Bank specified as its "French Lending Office" opposite its name on Schedule
1 (or if no such office is specified, its U.S. Lending Office) or such other
office of such Bank as such Bank may from time-to-time specify to the Borrowers
and the Agent.
-8 -
<PAGE> 15
"French Revolving Advance" means any advance by a Bank to a French
Borrower as part of a French Revolving Borrowing and refers to a French
Alternate Rate Advance or a Eurocurrency Rate Advance; provided that, a French
Revolving Advance may only be a French Alternate Rate Advance if required by the
terms of this Agreement.
"French Revolving Borrowing" means a borrowing consisting of
simultaneous French Revolving Advances of the same Type made by each Bank
pursuant to Section 2.01(b) or Converted by each Bank to French Revolving
Advances of a different Type pursuant to Section 2.02(b).
"French Revolving Commitment" means, for each Bank, the amount in
French Francs set opposite such Bank's name on the signature pages of this
Agreement as its French Revolving Commitment or, if such Bank has entered into
any Assignment and Acceptance after the date of this Agreement, set forth for
such Bank as its French Revolving Commitment in the Register maintained by the
Agent pursuant to Section l 0.06(c).
"French Revolving Note" means the promissory note of the French
Borrowers payable to the order of any Bank, in substantially the form of the
attached Exhibit B- 1, evidencing indebtedness of the French Borrowers to such
Bank resulting from French Revolving Advances owing to such Bank.
"French Revolving Share" means, at any time with respect to any Bank
with a French Revolving Commitment, the ratio (expressed as a percentage) of
such Bank's French Revolving Commitment at such time to the aggregate French
Revolving Commitments at such time.
"French Term Advance" means all advances previously made by a Bank to
SMF described in Section 2.0 l (c)(ii) and refers to French Alternate Rate
Advances or Eurocurrency Rate Advances; provided that a French Term Advance may
only be a French Alternate Rate Advance if required by the terms of this
Agreement.
"French Term Borrowing" means a borrowing consisting of simultaneous
French Term Advances of the same Type or Converted by each Bank to French Term
Advances of a different Type pursuant to Section 2.02(b).
"French Term Note" means a promissory note of SMF payable to the order
of any Bank in substantially the form of the attached Exhibit B-2, evidencing
indebtedness of SMF resulting from any French Term Advance owing to such Bank.
"French Term Share" means, at any time with respect to any Bank with an
outstanding French Term Advance, the ratio (expressed as a percentage) of such
Bank's outstanding French Term Advance at such time to the aggregate outstanding
French Term Advances at such time.
-9-
<PAGE> 16
"Fund," "Trust Fund," or "Superfund" means the Hazardous Substance
Response Trust Fund established pursuant to 42 U.S.C. ss. 9631 (1988) and the
Post-closure Liability Trust Fund, established pursuant to 42 U.S.C. ss. 9641
(1988), which statutory provisions have been amended or repealed by the
Superfunds Amendments and Reauthorization Act of 1986, and the "Fund," "Trust
Fund," or "Superfund" that are now maintained pursuant to ss. 9507 of the Code.
"GAAP" means United States generally accepted accounting principles as
in effect from time-to-time, applied on a basis consistent with the requirements
of Section 1.03.
"Governmental Authority" means, as to any Person in connection with any
subject, any foreign, national, state or provincial governmental authority, or
any political subdivision of any state thereof, or any agency, department,
commission, board, authority or instrumentality, bureau or court, in each case
having jurisdiction over such Person or such Person's Property in connection
with such subject.
"Governmental Proceedings" means any action or proceedings by or before
any Governmental Authority, including, without limitation, the promulgation,
enactment or entry of any Legal Requirement.
"Guaranteed Obligations" means all Advances and other amounts payable
by the French Borrowers and SMS to the Agent or the Banks under the Credit
Documents.
"Hazardous Substance" means the substances identified as such pursuant
to CERCLA and those regulated under any other Environmental Law, including
without limitation pollutants, contaminants, petroleum, petroleum products,
radionuclides, radioactive materials, and medical and infectious waste.
"Hazardous Waste" means the substances regulated as such pursuant to
any Environmental Law.
"Interest Hedge Agreement" means an interest hedge, rate swap, or cap,
or similar arrangement between a Borrower and a financial institution providing
for the exchange of nominal interest obligations or the cap of the interest rate
on the Advances made under this Agreement.
"Interest Period" means, for each Fixed Rate Advance comprising part of
the same Borrowing, the period commencing on the date of such Advance or the
date of the Conversion of any existing Advance into such an Advance and ending
on the last day of the period selected by a Borrower pursuant to the provisions
below and Section 2.02 and, thereafter, each subsequent period commencing on the
last day of the immediately preceding Interest Period and ending on the last day
of the period selected by such Borrower pursuant to the provisions below and
Section 2.02. The duration of each such Interest Period shall be one, two,
three, or six months (except that Interest
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<PAGE> 17
Periods for French Alternate Rate Advances may only be one month or less in
duration), in each case as the applicable Borrower may, upon notice received
by the Agent at the Applicable Lending Office on the day and at the time
required by Section 2.02 (and copies of which shall in any event be sent
simultaneously to the Agent's U.S. Lending Office), select; provided, however,
that:
(a) no Borrower may select any Interest Period for any Term Advance of
any Class which ends after any principal repayment date unless, after giving
effect to such selection, the aggregate unpaid principal amount of Term Advances
of such Class that are U.S. Base Rate Advances (in the case of U.S. Term
Advances and Spanish Term Advances) and Term Advances of such Class having
Interest Periods which end on or before such principal repayment date shall be
at least equal to the amount of Term Advances of such Class due and payable on
or before such date;
(b) Interest Periods commencing on the same date for Advances by each
Bank comprising part of the same Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest Period shall
be extended to occur on the next succeeding Business Day, provided that if such
extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day;
(d) any Interest Period which 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 in which it would have ended if there were a
numerically corresponding day in such calendar month; and
(e) No Borrower may select any Interest Period for any French Revolving
Advance or U.S. Revolving Advance which ends after the applicable Maturity Date
for such French Revolving Advances or U.S. Revolving Advances.
"Interim Financial Statements" means the unaudited consolidated balance
sheet and consolidated income, changes in owners' equity and cash flow
statements of the Borrowers and the other entities referred to in Section 4.05,
other than SMS and its Subsidiaries, each dated September 30, 1997.
"Legal Requirement" means, as to any Person, any law, statute,
ordinance, decree, requirement, order, judgment, rule, regulation (or official
interpretation of any of the foregoing) of, and the terms of any license or
permit issued by, any Governmental Authority which is applicable to such Person.
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<PAGE> 18
"Leverage Ratio" means, at any time, the ratio of the Company's (a)
Debt to (b) its Debt plus its Tangible Net Worth at such time.
"Lien" means any mortgage, lien, pledge, assignment, charge, deed of
trust, security interest, hypothecation, preference, deposit arrangement or
encumbrance (or any other arrangement having the practical effect of the
foregoing) to secure or provide for the payment of any obligation of any Person,
whether arising by contract, operation of law or otherwise (including, without
limitation, the interest of a vendor or lessor under any conditional sale
agreement, Capital Lease or other title retention agreement).
"Liquid Investments" means:
(a) direct obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States, the Republic of
France or the Kingdom of Spain;
(b) (i) negotiable or nonnegotiable certificates of deposit, time
deposits, or other similar banking arrangements maturing within 180 days from
the date of acquisition thereof ("bank debt securities"), issued by (A) any Bank
that is a commercial bank or commercial financial institution or (B) any other
bank or trust company which has a combined capital surplus and undivided profit
of not less than $500,000,000 or the Dollar Equivalent thereof, if at the time
of deposit or purchase, such bank debt securities are rated not less than "A"
(or the then equivalent) by the rating service of Standard & Poor's Ratings
Group or of Moody's Investors Service, and (ii) commercial paper issued by (A)
any Bank that is a commercial bank or commercial financial institution or (B)
any other Person if at the time of purchase such commercial paper is rated not
less than "A-2" (or the then equivalent) by the rating service of Standard &
Poor's Ratings Group or not less than "P-2" (or the then equivalent) by the
rating service of Moody's Investors Service, or upon the discontinuance of both
of such services, such other nationally recognized rating service or services,
as the case may be, as shall be selected by the Borrower with the consent of the
Majority Banks;
(c) repurchase agreements relating to investments described in clauses
(a) and (b) above with a market value at least equal to the consideration paid
in connection therewith, with any Person who regularly engages in the business
of entering into repurchase agreements and has a combined capital surplus and
undivided profit of not less than $500,000,000 or the Dollar Equivalent thereof,
if at the time of entering into such agreement the debt securities of such
Person are rated not less than "A" (or the then equivalent) by the rating
service of Standard & Poor's Ratings Group or of Moody's Investors Service; and
(d) such other instruments (within the meaning of Article 9 of the
Uniform Commercial Code as adopted in the State of New York) as the Borrower may
request and the Agent may approve in writing, which approval will not be
unreasonably withheld.
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<PAGE> 19
"Long Fiber Paper Machine" means the long fiber paper machine acquired
by the Company and included in the Company's capital expenditures for the fiscal
years ended December 31, 1996 and December 31, 1997.
"Majority Banks" means, at any time, Banks holding at least 66-2/3% of
the then aggregate unpaid principal amount of the Notes held by the Banks at
such time, or, if no such principal amount is then outstanding, Banks having at
least 66-2/3% of the aggregate amount of the Commitments at such time.
"Material Adverse Change" shall mean (a) a material adverse change in
the business, financial condition, or results of operations of the Company and
its Subsidiaries, taken as a whole, since the date of the Financial Statements,
or (b) a material adverse effect on any Borrower's ability to perform its
obligations under this Agreement, any Note or any other Credit Document.
"Material Subsidiaries" means any Subsidiary of any Borrower, which
Subsidiary holds or constitutes 5% or more of the consolidated assets of the
Company.
"Maturity Date" means (a) with respect to the U.S. Revolving
Commitments, the earlier of (i) January 29, 1999 and (ii) the earlier
termination in whole of the Revolving Commitments pursuant to Section 2.04 or
Article VII and (b) with respect to the French Revolving Commitments, the
earlier of (i) January 29, 1999 and (ii) the earlier termination in whole of the
French Revolving Commitments pursuant to Section 2.04 or Article VII.
"Maximum Rate" means the maximum nonusurious interest rate under
applicable law (determined under such laws after giving effect to any items
which are required by such laws to be construed as interest in making such
determination, including without limitation if required by such laws, certain
fees and other costs).
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which any Borrower or any member of the Controlled Group
is making or accruing an obligation to make contributions.
"Net Income" means, for any period, the Company's net income for such
period after taxes, as determined in accordance with GAAP, excluding, however,
extraordinary items, including (a) any net gain or loss during such period
arising from the sale, exchange, or other disposition of capital assets (such
term to include all fixed assets and all securities) other than in the ordinary
course of business and (b) any write-up or write-down of assets.
"Net Worth" means, at any date for any Person that is a corporation,
the sum of (a) the par value (or value stated on the books of such Person) of
the capital stock of all classes of such Person, (b) the additional paid-in
capital of such Person, and (c) the amount of the surplus and retained
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earnings, whether capital or earned, of such Person, all determined in
accordance with GAAP, excluding, however, (i) the value of any redeemable
preferred stock or similar capital stock of such Person and (ii) unrealized
currency translation adjustments.
"Note" means a U.S. Revolving Note, a U.S. Term Note, a French
Revolving Note, a French Term Note or a Spanish Term Note.
"Notice of Borrowing" means a notice of borrowing in the form of the
attached Exhibit C signed by a Responsible Officer of the applicable Borrower.
"Notice of Conversion or Continuation" means a notice of conversion or
continuation in the form of the attached Exhibit D signed by a Responsible
Officer of the applicable Borrower.
"Obligations" means all Advances and other amounts payable by the
Borrowers to the Agent or the Banks under the Credit Documents, including
without limitation, the Company's obligations under Article VIII.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Liens" means the Liens permitted to exist pursuant to
Section 6.01.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof or any trustee, receiver, custodian or similar official.
"Phaseout Quarter" means, in connection with any Potential Phaseout
Event, (a) any fiscal quarter of the Company ending after the occurrence of such
Potential Phaseout Event if such Potential Phaseout Event occurred during the
first 45 days of the applicable Test Quarter and (b) any fiscal quarter of the
Company commencing after the occurrence of such Potential Phaseout Event if such
Potential Phaseout Event occurred after the first 45 days of the applicable Test
Quarter.
"Philip Morris" means Philip Morris Incorporated, a Virginia
corporation.
"Pirahy" means Companhia Industrial de Papel Pirahy, a corporation
organized under the laws of the Federative Republic of Brazil.
"Pirahy Acquisition" means the acquisition by SMS or one of its
Subsidiaries of substantially all of the stock of Pirahy pursuant to the terms
and provisions of the Pirahy Acquisition Documents.
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<PAGE> 21
"Pirahy Acquisition Documents" means the Pirahy Purchase Agreement and
each other material agreement, instrument, or document executed at any time in
connection with the foregoing documents.
"Pirahy Purchase Agreement" means the Stock Purchase Agreement dated
as of December 16, 1997 among the Company, Souza Cruz S.A. and Contab
Participacoes Ltda. and, as the same may be amended, modified or supplemented
from time to time as permitted herein.
"Plan" means an employee benefit plan (other than a Multiemployer
Plan) sponsored by the Company or any member of the Controlled Group and
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code.
"Potential Phaseout Event" means (a) the receipt or delivery of any
notice which indicates the nonrenewal of the Supply Agreement beyond (i) the
initial term of the Supply Agreement or (ii) any renewal term of the Supply
Agreement, (b) the giving of a notice by either Philip Morris or the Company
demanding an early termination under the Supply Agreement, or (c) the
occurrence of any event or condition which causes a phaseout period (as
described in the Supply Agreement) to be initiated.
"Property" of any Person means any property or assets (whether real,
personal, or mixed, tangible or intangible) of such Person.
"Pro Rata Share" means, at any time with respect to any Bank, either
(a) if the Commitments have not been canceled, the ratio (expressed as a
percentage) of such Bank's uncancelled Commitments at such time to the
aggregate uncancelled Commitments at such time, (b) if the Commitments have
been terminated but no Advances are outstanding, the ratio (expressed as a
percentage) of such Bank's Commitment immediately prior to such termination to
the aggregate amount of the Commitments immediately prior to such termination
or (c) if the aggregate Commitments have been terminated and there are
outstanding Advances, the ratio (expressed as a percentage) of such Bank's
aggregate outstanding Advances at such time to the aggregate outstanding
Advances of all the Banks at such time.
"Reference Banks" means Societe Generale, Natexis Banque and Banque
Nationale de Paris
"Register" has the meaning set forth in paragraph (c) of Section
10.06.
"Regulations G, T, U, X and D" means Regulations G, T, U, X, and D of
the Federal Reserve Board, as the same is from time-to-time in effect, and all
official rulings and interpretations thereunder or thereof.
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<PAGE> 22
"Release" shall have the meaning set forth in CERCLA or under any
other Environmental Law.
"Reportable Event" means any of the events set forth in Section
4043(b) of ERISA.
"Response" shall have the meaning set forth in CERCLA or under any
other Environmental Law.
"Responsible Officer" means, of any Person, the Chief Executive
Officer, President, Chief Financial Officer, any Executive or Senior Vice
President, Secretary (or the French or Spanish equivalent of any of the
foregoing) of such Person or any other member of senior management of such
Person.
"Restricted Payment" means (a) the making by the Company of any
dividends or other distributions (in cash, property, or otherwise) with respect
to its capital stock or (b) any payment for the purchase, redemption or other
acquisition of, any shares of any capital stock of the Company, other than (i)
dividends payable in the Company's stock and (ii) purchases by the Company of
its capital stock in connection with its employee 401 (k) retirement plan.
"SEC" means the Securities and Exchange Commission, and any successor
entity.
"Shortfall Volumes" has the meanings set forth in Section 6.07 and
Section 7.01(k), as applicable.
"Spanish Term Advance" means an advance by a Bank to SMS as part of a
Spanish Term Borrowing and refers to a U.S. Base Rate Advance or a Eurodollar
Rate Advance.
"Spanish Term Borrowing" means a borrowing consisting of simultaneous
Spanish Term Advances of the same Type made by each Bank pursuant to Section
2.01(c)(i) or Converted by each Bank to Spanish Term Advances of a different
Type pursuant to Section 2.02(b).
"Spanish Term Commitment" means, for each Bank, the amount in Dollars
set opposite such Bank's name on the signature pages of this Agreement as its
Spanish Term Commitment or, if such Bank has entered into any Assignment or
Acceptance after the date of this Agreement, set forth for such Bank as its
Spanish Term Commitment in the Register maintained by the Agent pursuant to
Section 10.06(c); provided, however, that after the earlier of (a) February 28,
1998 and (b) the date the initial Spanish Term Borrowing is made, the Spanish
Term Commitment for such Bank shall be zero.
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<PAGE> 23
"Spanish Term Note" means a promissory note of SMS payable to the
order of any Bank in substantially the form of the attached Exhibit B-5,
evidencing indebtedness of SMS to such Bank resulting from any Spanish Term
Advance of such Bank.
"Spanish Term Share" means, at any time with respect to any Bank with
an outstanding Spanish Term Advance, the ratio (expressed as a percentage) of
such Bank's outstanding Spanish Term Advance at such time to the aggregate
outstanding Spanish Term Advances at such time.
"Special Expenditures" means, for the fiscal year ending December 31,
1997, all capital expenditures of the Company made during such period with
respect to the Long Fiber Paper Machine.
"Subsidiary" of a Person means any corporation, association,
partnership or other business entity of which more than 50% of the outstanding
shares of capital stock (or other equivalent interests) having by the terms
thereof ordinary voting power under ordinary circumstances to elect a majority
of the board of directors or Persons performing similar functions (or, if there
are no such directors or Persons, having general voting power) of such entity
(irrespective of whether at the time capital stock (or other equivalent
interests) of any other class or classes of such entity shall or might have
voting power upon the occurrence of any contingency) is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more
Subsidiaries of such Person or by one or more Subsidiaries of such Person.
"Supply Agreement" means the Agreement for Fine Paper Supply dated as
of January 1, 1993 between Philip Morris and Kimberly-Clark Corporation, as
amended and assumed by the Company, as such Agreement may be further amended or
modified from time-to-time.
"Tangible Net Worth" means, as of any date, (a) Net Worth of a Person
less (b) the sum of the value indicated on such Person's balance sheet of the
following items: patents, trademarks, copyrights, deferred charges (excluding
deferred taxes), deferred credits, and other intangible assets.
"Tax Group" has the meaning set forth in Section 4.10.
"Term Advance" means, as the context requires, a U.S. Term Advance, a
French Term Advance or a Spanish Term Advance, or collectively, a U.S. Term
Advance, a French Term Advance and a Spanish Term Advance.
"Termination Event" means (a) the occurrence of a Reportable Event
with respect to a Plan, as described in Section 4043 of ERISA and the
regulations issued thereunder (other than a Reportable Event not subject to the
provision for 30-day notice to the PBGC under such regulations), (b) the
withdrawal of any Borrower or any of its Affiliates from a Plan during a plan
year in which it was a "substantial employer" as defined in Section 4001 (a)(2)
of ERISA, (c) the giving of a notice
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<PAGE> 24
of intent to terminate a Plan under Section 4041(c) of ERISA, (d) the
institution of proceedings to terminate a Plan by the PBGC, or (e) any other
event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Plan.
"Test Quarter" means, for any Potential Phaseout Event, the fiscal
quarter of the Company during which such Potential Phaseout Event occurred.
"Type" has the meaning set forth in Section 1.04.
"U.S. Base Rate" means a fluctuating interest rate per annum as shall
be in effect from time-to-time equal to the rate of interest publicly announced
by Societe Generale, New York Branch as its prime rate, whether or not the
applicable Borrower has notice thereof.
"U.S. Base Rate Advance" means an Advance which bears interest as
provided in Section 2.06(a).
"U.S. Lending Office" means, with respect to any Bank, the office of
such Bank specified as its "U.S. Lending Office" opposite its name on Schedule
1 or such other office of such Bank as such Bank may from time-to-time specify
to the Borrowers and the Agent.
"U.S. Revolving Advance" means any advance by a Bank to the Company as
part of a U.S. Revolving Borrowing and refers to a U.S. Base Rate Advance or a
Eurodollar Rate Advance.
"U.S. Revolving Borrowing" means a Borrowing consisting of
simultaneous U.S. Revolving Advances of the same Type made by each Bank
pursuant to Section 2.01(a) or Converted by each Bank to U.S. Revolving
Advances of a different Type pursuant to Section 2.02(b).
"U.S. Revolving Commitment" means, for each Bank, the amount in
Dollars set opposite such Bank's name on the signature pages of this Agreement
as its U.S. Revolving Commitment or, if such Bank has entered into any
Assignment and Acceptance after the date of this Agreement, set forth for such
Bank as its U.S. Revolving Commitment in the Register maintained by the Agent
pursuant to Section 10.06(c).
"U.S. Revolving Note" means a promissory note of the Company payable
to the order of any Bank, in substantially the form of the attached Exhibit
B-3, evidencing indebtedness of the Company to such Bank resulting from U.S.
Revolving Advances owing to such Bank.
"U.S. Revolving Share" means, at any time with respect to any Bank
with a U.S. Revolving Commitment, the ratio (expressed as a percentage) of such
Bank's U.S. Revolving Commitment at such time to the aggregate U.S. Revolving
Commitments at such time.
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<PAGE> 25
"U.S. Term Advance" means all advances previously made by a Bank to
the Company and described in Section 2.01(c)(i) and refers to a U.S. Base Rate
Advance or a Eurodollar Rate Advance.
"U.S. Term Borrowing" means a borrowing consisting of simultaneous
U.S. Term Advances of the same Type Converted by each Bank to U.S. Term
Advances of a different Type pursuant to Section 2.02(b).
"U.S. Term Note" means a promissory note of the Company payable to the
order of any Bank in substantially the form of the attached Exhibit B-4,
evidencing indebtedness of the Company to such Bank resulting from any U.S.
Term Advance to such Bank.
"U.S. Term Share" means, at any time with respect to any Bank with an
outstanding U.S. Term Advance, the ratio (expressed as a percentage) of such
Bank's outstanding U.S. Term Advance at such time to the aggregate outstanding
U.S. Term Advances at such time.
Section 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".
Section 1.03. Accounting Terms: Changes in GAAP.
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to
the Banks hereunder shall (unless otherwise disclosed to the Banks in writing
at the time of delivery thereof in the manner described in subsection (b)
below) be prepared, in accordance with GAAP applied on a basis consistent with
those used in the preparation of the latest financial statements furnished to
the Banks hereunder (which prior to the delivery of the first financial
statements under Section 5.05 hereof, shall mean the Financial Statements). All
calculations made for the purposes of determining compliance with this
Agreement shall (except as otherwise expressly provided herein) be made by
application of GAAP applied on a basis consistent with those used in the
preparation of the annual or quarterly financial statements furnished to the
Banks pursuant to Section 5.05 hereof most recently delivered prior to or
concurrently with such calculations (or, prior to the delivery of the first
financial statements under Section 5.05 hereof, used in the preparation of the
Financial Statements) unless (i) either (A) the Company shall have objected to
determining such compliance on such basis at the time of delivery of such
financial statements or (B) the Majority Banks shall so object in writing
within 30 days after the delivery of such financial statements and (ii) the
Company and the Majority Banks have not agreed upon amendments to the financial
covenants contained herein to reflect any change in such basis, in which event
such calculations shall be made on a basis consistent with those used in the
preparation of the latest financial statements as to which such objection shall
not have been made (which, if objection is
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made in respect of the first financial statements delivered under Section 5.05
hereof, shall mean the Financial Statements).
(b) The Company shall deliver to the Banks at the same time as
the delivery of any annual or quarterly financial statement under Section 5.05
hereof (i) a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the most recent preceding annual or quarterly financial
statements as to which no objection has been made in accordance with the last
sentence of clause (a) of this Section 1.03 and (ii) reasonable estimates of
the difference between such statements arising as a consequence thereof.
Section 1.04. Classes and Types of Advances. Advances are
distinguished by "Class" and "Type". The "Class" of an Advance refers to the
determination of whether such Advance is a U.S. Term Advance, French Term
Advance, Spanish Term Advance, U.S. Revolving Advance or a French Revolving
Advance, each of which constitutes a Class. The "Type" of an Advance refers to
the determination whether such Advance is a Eurodollar Rate Advance, a
Eurocurrency Rate Advance, a U.S. Base Rate Advance or a French Alternate Rate
Advance, each of which constitutes a Type.
Section 1.05. Miscellaneous. Article, Section, Schedule and Exhibit
references are to Articles and Sections of and Schedules and Exhibits to this
Agreement, unless otherwise specified.
ARTICLE II
THE ADVANCES
Section 2.01. The Advances.
(a) U.S. Revolving Advances. Each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make U.S. Revolving
Advances to the Company from time-to-time on any Business Day during the period
from the date of this Agreement until the relevant Maturity Date in an
aggregate principal amount not to exceed at any time outstanding such Bank's
U.S. Revolving Commitment. Each U.S. Revolving Borrowing shall be in an
aggregate amount not less than $1,000,000 and in integral multiples of $100,000
in excess thereof and shall consist of U.S. Revolving Advances of the same Type
made on the same day by the Banks ratably according to their respective U.S.
Revolving Commitments. Within the limits of each Bank's U.S. Revolving
Commitment, the Company may from time-to-time borrow, prepay pursuant to
Section 2.07 and reborrow under this Section 2.01 (a).
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(b) French Revolving Advances. Each Bank severally agrees, on the
terms and conditions set forth in this Agreement, to make French Revolving
Advances to the French Borrowers from time-to-time on any Business Day during
the period from the date of this Agreement until the relevant Maturity Date in
an aggregate principal amount not to exceed at any time outstanding such Bank's
French Revolving Commitment. Each French Revolving Borrowing shall be in an
aggregate amount not less than 5,000,000 French Francs and in integral
multiples of 1,000,000 French Francs in excess thereof and shall consist of
French Revolving Advances of the same Type made on the same day by the Banks
ratably according to their respective French Revolving Commitments. Within the
limits of each Bank's French Revolving Commitment, the French Borrowers may
from time-to-time borrow, prepay pursuant to Section 2.07 and reborrow under
this Section 2.01(b).
(c) Existing Term Advances. On the date of this Agreement, each
Bank has (i) U.S. Term Advances in the aggregate amount set forth opposite such
Bank's name on the signature pages thereof as its U.S. Term Advances and (ii)
French Term Advances in the aggregate amount set forth opposite such Bank's
name on the signature pages thereof as its French Term Advances. Each Bank
severally agrees, on the terms and conditions set forth in this Agreement, to
continue such outstanding Term Advances to the Borrower for the balance of the
then existing Interest Period.
(d) Spanish Term Advances. Each Bank severally agrees on the
terms and conditions set forth in this Agreement to make a single Spanish Term
Advance to SMS on a Business Day on or before February 28, 1998 in an amount
equal to such Bank's Spanish Term Commitment.
Section 2.02. Method of Borrowing.
(a) Notice. Each Borrowing shall be made pursuant to a Notice of
Borrowing, given not later than (i) 10:00 a.m. (Dallas, Texas time) on the
third Business Day before the date of a requested Borrowing in the case of a
Eurodollar Rate Advance, (ii) 10:00 a.m. (Paris, France time) three Business
Days before the date of a requested Borrowing in the case of a Eurocurrency
Rate Advance, (iii) 10:00 a.m. (Paris, France time) three Business Days before
the date of the requested Borrowing in the case of a French Alternate Rate
Advance, or (iv) 10:00 a.m. (Dallas, Texas time) on the Business Day of a
requested Borrowing, in the case of a U.S. Base Rate Advance, by the Borrower
to the Agent's Applicable Lending Office.. The Agent shall give to each Bank
prompt notice on the day of receipt of a timely Notice of Borrowing of such
requested Borrowing by telecopier or telex. No Borrower may select a French
Alternate Rate Advance in connection with any Borrowing unless (I) there is,
with respect to requested Borrowings which are to be comprised of French
Revolving Advances, less than 30 days from the date such French Revolving
Advances are to be made until the Maturity Date applicable to such French
Revolving Advances or (II) otherwise required by the terms of this Agreement.
Each Notice of a Borrowing shall be by telecopier, telex or telephone,
confirmed promptly in writing specifying (A) the requested date of such
Borrowing (which shall be a Business Day), (B) the requested Type and Class of
Advances comprising such Borrowing, (C) the requested aggregate amount of such
Borrowing, (D) the applicable Borrower, and (E) if such
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Borrowing is to be comprised of Fixed Rate Advances, the requested Interest
Period for each such Advance. In the case of a requested Borrowing comprised of
Fixed Rate Advances, the Agent shall promptly notify each Bank of the applicable
interest rate under Sections 2.06(b), 2.06(c) or 2.06(d), as applicable. Each
Bank shall (i) in the case of all Borrowings which are comprised of Eurodollar
Rate Advances, before 11:00 a.m. (Dallas, Texas time) on the date of such
Borrowing, (ii) in the case of all Borrowings which are comprised of
Eurocurrency Rate Advances, before 11:00 a.m. (Paris, France time) on the date
of such Borrowing, (iii) in the case of Borrowings which are comprised of U.S.
Base Rate Advances, before 1:00 p.m. (Dallas, Texas time) on the date of such
Borrowing and (iv) in the case of Borrowings which are comprised of French
Alternate Rate Advances, before 1:00 p.m. (Paris, France time) on the date of
such Borrowing, make available through its Applicable Lending Office to the
Agent at the Agent's Applicable Lending Office, or such other location as the
Agent may specify by notice to the Banks, in same day funds, (A) in the case of
a U.S. Term Borrowing, a French Term Borrowing or a Spanish Term Borrowing, such
Bank's U.S. Term Share, French Term Share or Spanish Term Share of such
Borrowing and (B) in the case of a U.S. Revolving Borrowing or a French
Revolving Borrowing, such Bank's U.S. Revolving Share or French Revolving Share
of such Borrowing. After the Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article III, the Agent will promptly
make such funds available to the applicable Borrower at such account as the
applicable Borrower shall specify in writing to Agent.
(b) Conversions and Continuations. In order to elect to Convert
or Continue an Advance under this Section, the Borrower desiring a Conversion
or Continuation shall deliver an irrevocable Notice of Conversion or
Continuation to the Agent at the Agent's office no later than (i) 11:00 a.m.
(Dallas, Texas time) the Business Day of such requested Conversion date in the
case of a Conversion to a U.S. Base Rate Advance, (ii) 11:00 a.m. (Dallas,
Texas time) at least three Business Days in advance of such requested
Conversion or Continuation date in the case of a Conversion to, or a
Continuation of, a Eurodollar Rate Advance, (iii) 11:00 a.m. (Paris, France
time) at least three Business Days in advance of such requested Conversion or
Continuation date in the case of a Conversion to, or Continuation of, a
Eurocurrency Rate Advance, and (iv) 11:00 a.m. (Paris, France time) three
Business Days in advance of such requested Conversion or Continuation date in
the case of a Conversion to, or Continuation of, a French Alternate Rate
Advance; provided that no such Conversion to French Alternate Rate Advances
shall be permitted unless (I) there is, with respect to requested Conversions
or Continuations of Borrowings which are to be comprised of French Revolving
Advances, less than 30 days from the date of such Conversion or Continuation
until the Maturity Date applicable to such French Revolving Advances or (II)
permitted or required by this Agreement. Each such Notice of Conversion or
Continuation shall be in writing or by telex, telecopier or telephone,
confirmed promptly in writing specifying (A) the requested Conversion or
Continuation date (which shall be a Business Day), (B) the amount, Type, and
Class of the Advance to be Converted or Continued, (C) whether a Conversion or
Continuation is requested, and if a Conversion, into what Type of Advance, and
(D) in the case of a Conversion to, or a Continuation of, a Fixed Rate Advance,
the requested Interest Period. Promptly after receipt of a Notice of
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Conversion or Continuation under this paragraph, the Agent shall provide each
Bank with a copy thereof and, in the case of a Conversion to or a Continuation
of a Fixed Rate Advance, notify each Bank of the applicable interest rate under
Sections 2.06(b), 2.06(c) or 2.06(d), as applicable. The portion of Advances
comprising part of the same Borrowing that are converted to Advances of another
Type shall constitute a new Borrowing. Notwithstanding anything in this
Agreement to the contrary, Conversions of Advances may only be made at the end
of the applicable Interest Period for such Advances.
(c) Certain Limitations. Notwithstanding anything in paragraphs
(a) and (b) above:
(i) at no time shall there be more than (A) one Interest
Period applicable to outstanding Fixed Rate Advances which are U.S.
Term Advances, (B) one Interest Period applicable to outstanding Fixed
Rate Advances which are French Term Advances, (C) one Interest Period
applicable to outstanding Fixed Rate Advances which are Spanish Term
Advances, (D) three Interest Periods applicable to outstanding Fixed
Rate Advances which are U.S. Revolving Advances and (E) five Interest
Periods applicable to outstanding Fixed Rate Advances which are French
Revolving Advances;
(ii) the Borrowers may not select Eurodollar Rate
Advances for any Borrowing unless the aggregate amount of such
Borrowing is at least $1,000,000 and in integral multiples of $100,000
in excess thereof;
(iii) (A) if any Bank shall, at least one Business Day
before the date of any requested Borrowing, notify the Agent that the
introduction of or any change in or in the interpretation of any law
or regulation makes it unlawful, or that any central bank or other
Governmental Authority asserts that it is unlawful, for such Bank or
any of its Applicable Lending Offices to perform its obligations under
this Agreement to make Fixed Rate Advances of a certain Type, or to
fund or maintain Fixed Rate Advances of a certain Type (each such Bank
an "Affected Bank"), the obligation of the Affected Bank to make or
maintain Fixed Rate Advances of the Type affected for such Borrowing
or for any subsequent Borrowing shall be suspended until the Affected
Bank shall notify the Agent that the circumstances causing such
suspension no longer exist, and the Advance of the Affected Bank
comprising such Borrowing shall be a U.S. Base Rate Advance or French
Alternate Rate Advance, as applicable, (B) each Bank that becomes an
Affected Bank agrees to use commercially reasonable efforts
(consistent with its internal policies and legal and regulatory
restrictions) to designate a different Applicable Lending Office if
the making of such designation would avoid the effect of this
paragraph and would not, in the reasonable judgment of the Affected
Bank, be otherwise economically disadvantageous to the Affected Bank;
and (C) if such condition shall continue for such Bank for 30 days,
the Affected Bank may be replaced in accordance with the procedures in
Section 2.13; provided that, if the Affected Bank is not replaced
within 60 days after such initial 30-day period, the right of the
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Borrowers to select the affected Type of Fixed Rate Advances for any
subsequent Borrowing and the obligation of the Banks to make or
maintain the affected Type of Fixed Rate Advances shall be suspended
until (I) the Affected Bank shall notify the Agent that the
circumstances causing such suspension no longer exist or (II) the
Affected Bank is replaced pursuant to Section 2. 13;
(iv) if the Agent is unable to determine the Eurodollar
Rate for Eurodollar Rate Advances comprising any requested Borrowing,
the right of the Borrowers to select Eurodollar Rate Advances for such
Borrowing or for any subsequent Borrowing and the obligation of the
Banks to make such Eurodollar Rate Advances shall be suspended until
the Agent shall notify the Borrower and the Banks that the
circumstances causing such suspension no longer exist, and each
Advance comprising such Borrowing shall be a U.S. Base Rate Advance;
(v) if the Agent is unable to determine the Eurocurrency
Rate for Eurocurrency Rate Advances comprising any requested
Borrowing, the right of the Borrowers to select Eurocurrency Rate
Advances for such Borrowing or for any subsequent Borrowing and the
obligation of the Banks to make such Eurocurrency Rate Advances shall
be suspended until the Agent shall notify the Borrower and the Banks
that the circumstances causing such suspension no longer exist, and
each Advance comprising such Borrowing shall be a French Alternate
Rate Advance;
(vi) if the Majority Banks shall, by 11:00 a.m. (Dallas,
Texas time) at least one Business Day before the date of any requested
Borrowing, notify the Agent that the Eurodollar Rate for Eurodollar
Rate Advances comprising such Borrowing will not adequately reflect
the cost to such Banks of making or funding their respective
Eurodollar Rate Advances, as the case may be, for such Borrowing, the
right of the Borrowers to select Eurodollar Rate Advances for such
Borrowing or for any subsequent Borrowing and the obligation of the
Banks to make Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrowers and the Banks that the circumstances
causing such suspension no longer exist, and each Advance comprising
such Borrowing shall be a U.S. Base Rate Advance;
(vii) if the Majority Banks shall, by 11:00 a.m. (Paris,
France time) at least two Business Days before the date of any
requested Borrowing, notify the Agent that the Eurocurrency Rate for
Eurocurrency Rate Advances comprising such Borrowing will not
adequately reflect the cost to such Banks of making or funding their
respective Eurocurrency Rate Advances for such Borrowing, the right of
the Borrowers to select Eurocurrency Rate Advances for such Borrowing
or for any subsequent Borrowing and the obligation of the Banks to
make Eurocurrency Rate Advances shall be suspended until the Agent
shall notify
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<PAGE> 31
the Borrowers and the Banks that the circumstances causing such suspension no
longer exist, and each Advance comprising such Borrowing shall be a French
Alternate Rate Advance;
(viii) if any Borrower shall fail to select the duration or
Continuation of any Interest Period for any Fixed Rate Advances in
accordance with the provisions contained in the definition of
"Interest Period" in Section 1.01 and paragraphs (a) and (b) above,
the Agent will forthwith so notify such Borrower and the Banks and
such Advances will be made available to such Borrower on the date of
such Borrowing as (A) if the proposed Advances or existing Advances
are Eurodollar Rate Advances, U.S. Base Rate Advances or (B) if the
proposed Advances or existing Advances are Eurocurrency Rate Advances,
Eurocurrency Rate Advances with a one-month Interest Period; and
(ix) if at any time, any Bank shall notify the Agent that the
introduction of or any change in or in the interpretation of any law
or regulation makes it unlawful, or that any central bank or other
Governmental Authority asserts that it is unlawful, for such Bank or
any of its Applicable Lending Offices to perform its obligations under
this Agreement to make or maintain Spanish Term Advances as non-Fixed
Rate Advances, then the parties to this Agreement agree that they will
use reasonable efforts to amend or modify this Agreement to permit (A)
the making or maintaining of the Spanish Term Advances or (B) the
Spanish Term Advances to be repaid and reborrowed by the Company or
another Affiliate mutually agreed to.
(d) Notices Irrevocable. Each Notice of Borrowing and Notice of
Conversion or Continuation shall be irrevocable and binding on the Borrowers
delivering such notice. In the case of any Borrowing which the related Notice
of Borrowing or Notice of Conversion or Continuation specifies is to be
comprised of Fixed Rate Advances, each Borrower shall indemnify each Bank
against any loss, out-of-pocket cost or expense actually incurred by such Bank
as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing or such Notice of Conversion or Continuation for such
Borrowing the applicable conditions set forth in Article III, including,
without limitation, any loss, cost or expense actually incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Bank to fund the Advance to be made by such Bank as part of such Borrowing when
such Advance, as a result of such failure, is not made on such date.
(e) Agent Reliance. Unless the Agent shall have received notice
from a Bank before the date of any Borrowing that such Bank will not make
available to the Agent such Bank's U.S. Term Share of any U.S. Term Borrowing,
French Term Share of any French Term Borrowing, Spanish Term Share of any
Spanish Term Borrowing, U.S. Revolving Share of any U.S. Revolving Borrowing or
French Revolving Share of a French Revolving Borrowing, the Agent may assume
that such Bank has made its U.S. Term Share, French Term Share, Spanish Term
Share, U.S. Revolving Share or French Revolving Share, as the case may be, of
such Borrowing available to the Agent on
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<PAGE> 32
the date of such Borrowing in accordance with paragraph (a) of this Section 2.02
and the Agent may, in reliance upon such assumption, make available to the
applicable Borrower on such date a corresponding amount. If and to the extent
that such Bank shall not have so made its U.S. Term Share, French Term Share,
Spanish Term Share, U.S. Revolving Share or French Revolving Share, as the case
may be, of such Borrowing available to the Agent, such Bank and the applicable
Borrower severally agree to immediately repay to the Agent on demand such
corresponding amount, together with interest on such amount, for each day from
the date such amount is made available to the applicable Borrower until the
date such amount is repaid to the Agent, at (i) in the case of the Borrower,
the interest rate applicable on such day to Advances comprising such Borrowing
and (ii) in the case of such Bank, the Federal Funds Rate for such day. If such
Bank shall repay to the Agent such corresponding amount and interest as
provided above, such corresponding amount so repaid shall constitute such
Bank's Advance as part of such Borrowing for purposes of this Agreement even
though not made on the same day as the other Advances comprising such
Borrowing.
(f) Bank Obligations Several. The failure of any Bank to make the
Advance to be made by it as part of any Borrowing shall not relieve any other
Bank of its obligation, if any, to make its Advance on the date of such
Borrowing. No Bank shall be responsible for the failure of any other Bank to
make the Advance to be made by such other Bank on the date of any Borrowing.
(g) Notes. The indebtedness of the Company to each Bank resulting
from U.S. Revolving Advances and the U.S. Term Advance owing to such Bank shall
be evidenced by the U.S. Revolving Note and U.S. Term Note, respectively, of
the Company payable to the order of such Bank. The indebtedness of the French
Borrowers to each Bank resulting from the French Revolving Advances owing to
such Bank shall be evidenced by the French Revolving Note of such French
Borrowers payable to the order of such Bank. The indebtedness of SMF to each
Bank resulting from the French Term Advance owing to such Bank shall be
evidenced by the French Term Note of SMF payable to the order of such Bank. The
indebtedness of SMS to each Bank resulting from the Spanish Term Advance owing
to such Bank shall be evidenced by the Spanish Term Note of SMS payable to the
order of such Bank.
Section 2.03. Fees.
(a) Revolving Commitment Fees.
The Borrowers agree to pay to the Agent for the account of each Bank
(i) a commitment fee payable by the Company in Dollars on the average daily
amount by which such Bank's U.S. Revolving Commitment exceeds such Bank's
outstanding Revolving Advances and (ii) a commitment fee payable by the French
Borrowers in French Francs on the average daily amount by which such Bank's
French Revolving Commitment exceeds such Bank's outstanding French Revolving
Advances, in each case from the date of this Agreement until the Maturity Date
applicable to such Advances at the rate of .10% per annum. The fees payable
pursuant to this clause (a) are due
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<PAGE> 33
quarterly in arrears on the last Business Day of each March, June, September
and December commencing March 31, 1998 and on the Maturity Date applicable to
such Commitments.
(b) Term Commitment Fees. The Borrowers agree to pay to the Agent
for the account of each Bank a commitment fee payable by SMS in Dollars on the
daily average amount by which such Bank's Spanish Term Commitment exceeds such
Bank's outstanding Spanish Term Advance, in each case from the date of this
Agreement until the Spanish Term Commitment is terminated at the rate of .125%
per annum. The commitment fees payable pursuant to this clause (b) are due and
payable on the date the Spanish Term Commitments are terminated.
(c) Upfront Fees and Agent's Arrangement Fees. The Company agrees
to pay to the Agent for the account of each Bank (i) an upfront fee equal to
.10% of the amount of each Bank's Spanish Term Commitment and (ii) an upfront
fee equal to .04% of the amount of the outstanding principal amount of the U.S.
Term Advances and the French Term Advances as of the date of this Agreement. In
addition, the Company agrees to pay to the Agent the arrangement fees
referenced in the Commitment Letter dated December 16, 1997 from the Agent to
the Company and SMS on the dates required by such letter. Any fee referred to
in the Commitment Letter and required to be paid under this clause (c) shall be
paid exclusive of any value added tax or any other tax which might be
chargeable in connection with that fee. If any value added tax or other tax is
so chargeable with respect to such fee, it shall be paid by the relevant
Borrower at the same time that it pays the relevant fee.
Section 2.04. Reduction of the Commitments. (i) The Company shall have
the right, upon at least fifteen Business Days' irrevocable notice to the
Agent, to terminate in whole or reduce ratably in part the unused portion of
the U.S. Revolving Commitments and (ii) the French Borrowers shall have the
right, upon at least fifteen Business Days' irrevocable notice to the Agent, to
terminate in whole or reduce ratably in part the unused portion of the French
Revolving Commitments; provided that each partial reduction of U.S. Revolving
Commitments shall be in the minimum aggregate amount of $1,000,000 or an
integral multiple of $100,000 in excess thereof and each partial reduction of
French Revolving Commitments shall be in the minimum aggregate amount of
5,000,000 French Francs or an integral multiple of 500,000 French Francs in
excess thereof. Any reduction or termination of the Commitments pursuant to
this Section 2.04 shall be permanent, with no obligation of the Banks to
reinstate such Commitments and the commitment fees provided for in Section
2.03(a) shall thereafter be computed on the basis of the Commitments, as so
reduced.
Section 2.05. Repayment.
(a) Revolving Advances. The Borrowers obligated thereon shall
repay the outstanding principal amount of each U.S. Revolving Advance and each
French Revolving Advance on the Maturity Date applicable to such Advances.
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<PAGE> 34
(b) Term Advances.
(i) The Company shall ratably repay the U.S. Term
Advances to the Banks based on each Bank's U.S. Term Share in
installments in the aggregate amounts and on the dates indicated as
follows:
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
January 31, 2002 $8,333,333
July 31, 2002 $8,333,333
January 31, 2003 $8,333,334
</TABLE>
(ii) SMF shall ratably repay the French Term Advances to
the Banks based on each Bank's French Term Share in installments in
the aggregate amounts and on the dates indicated as follows:
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
January 31, 2002 FRF 83,333,333
July 31, 2002 FRF 83,333,333
January 31, 2003 FRF 83,333,334
</TABLE>
(iii) SMS shall ratably repay the Spanish Term Advances to
the Banks based on each Bank's Spanish Term Share in installments in
the aggregate amounts and on the dates indicated as follows:
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
January 31, 2002 $6,666,666
July 31, 2002 $6,666,667
January 31, 2003 $6,666,667
</TABLE>
Section 2.06. Interest. Each of the Borrowers shall pay interest on
the unpaid principal amount of each Advance made by each Bank to such Borrower
from the date of such Advance until such principal amount shall be paid in
full, at the following rates per annum and in the Currency in which such
Advance is made:
(a) U.S. Base Rate Advances. If such Advance is a U.S. Base Rate
Advance, a rate per annum equal at all times to the lesser of (i) the Adjusted
U.S. Base Rate in effect from time-to-time and (ii) the Maximum Rate, payable
in arrears on the last Business Day of each calendar quarter and on the date
such U.S. Base Rate Advance shall be paid in full, provided that any amount of
principal
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<PAGE> 35
which is not paid within five Business Days of when due (whether at stated
maturity, by acceleration or otherwise) shall bear interest from the date on
which such amount is due until such amount is paid in full, payable on demand,
at a rate per annum equal at all times to the lesser of (i) the Adjusted U.S.
Base Rate in effect from time-to-time plus 2% and (ii) the Maximum Rate.
(b) French Alternate Rate Advances. If such Advance is a French
Alternate Rate Advance, a rate per annum equal during the Interest Period for
such Advance to the lesser of (i) the French Alternate Rate for such Interest
Period and (ii) the Maximum Rate, payable in arrears on the last day of such
Interest Period; provided that any amount of principal which is not paid within
five Business Days of when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest from the date on which such amount is due until
such amount is paid in full, payable on demand, at a rate per annum equal at
all times to the lesser of (i) the greater of (A) the French Alternate Rate in
effect from time-to-time plus 2% and (B) the rate required to be paid on such
Advance immediately prior to the date on which such amount became due plus 2%
and (ii) the Maximum Rate.
(c) Eurodollar Rate Advances. If such Advance is a Eurodollar
Rate Advance, a rate per annum equal at all times during the Interest Period
for such Advance to the lesser of (i) the Eurodollar Rate for such Interest
Period plus the Applicable Margin and (ii) the Maximum Rate, payable on the
last day of such Interest Period, and, in the case of six-month Interest
Periods, on the day which occurs during such Interest Period three months from
the first day of such Interest Period; provided that any amount of principal
which is not paid within five Business Days of when due (whether at stated
maturity, by acceleration or otherwise) shall bear interest from the date on
which such amount is due until such amount is paid in full, payable on demand,
at a rate per annum equal at all times to the lesser of (i) the greater of (A)
the Adjusted U.S. Base Rate in effect from time-to-time plus 2% and (B) the
rate required to be paid on such Advance immediately prior to the date on which
such amount became due plus 2% and (ii) the Maximum Rate.
(d) Eurocurrency Rate Advances. If such Advance is a Eurocurrency
Rate Advance, a rate per annum equal at all times during the Interest Period
for such Advance to the lesser of (i) the Eurocurrency Rate for such Interest
Period plus the Applicable Margin and (ii) the Maximum Rate, payable on the
last day of such Interest Period, and, in the case of six-month Interest
Periods, on the day which occurs during such Interest Period three months from
the first day of such Interest Period; provided that any amount of principal
which is not paid within five Business Days of when due (whether at stated
maturity, by acceleration or otherwise) shall bear interest from the date on
which such amount is due until such amount is paid in full, payable on demand,
at a rate per annum equal at all times to the lesser of (i) the greater of (A)
the French Alternate Rate in effect from time-to-time plus 2% and (B) the rate
required to be paid on such Advance immediately prior to the date on which such
amount became due plus 2% and (ii) the Maximum Rate.
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<PAGE> 36
(e) Usury Recapture. In the event the rate of interest chargeable
under this Agreement or the Notes at any time (calculated after giving affect
to all items charged which constitute "interest" under applicable laws,
including fees and margin amounts, if applicable) is greater than the Maximum
Rate, the unpaid principal amount of the Notes shall bear interest at the
Maximum Rate until the total amount of interest paid or accrued on the Notes
equals the amount of interest which would have been paid or accrued on the
Notes if the stated rates of interest set forth in this Agreement had at all
times been in effect.
In the event, upon payment in full of the Notes, the total
amount of interest paid or accrued under the terms of this Agreement and the
Notes is less than the total amount of interest which would have been paid or
accrued if the rates of interest set forth in this Agreement had, at all times,
been in effect, then the Borrowers shall, to the extent permitted by applicable
law, pay the Agent for the account of the Banks an amount equal to the
difference between (i) the lesser of (A) the amount of interest which would
have been charged on the Notes if the Maximum Rate had, at all times, been in
effect and (B) the amount of interest which would have accrued on the Notes if
the rates of interest set forth in this Agreement had at all times been in
effect and (ii) the amount of interest actually paid under this Agreement on
the Notes.
In the event the Banks ever receive, collect or apply as
interest any sum in excess of the Maximum Rate, such excess amount shall, to
the extent permitted by law, be applied to the reduction of the principal
balance of the Notes, and if no such principal is then outstanding, such excess
or part thereof remaining shall be paid to the Borrowers.
Section 2.07. Prepayments.
(a) Right to Prepay. The Borrowers shall have no right to prepay
any principal amount of any Advance except as provided in this Section 2.07.
(b) Optional. Any Borrower may elect to prepay any of the
Advances owing by it to the Banks, after giving prior written notice of such
election by (i) 11:00 a.m. (Dallas, Texas time) three Business Days before such
prepayment date in the case of U.S. Revolving Borrowings which are comprised of
Eurodollar Rate Advances, (ii) 11:00 a.m. (Paris, France time) fifteen Business
Days before such prepayment date in the case of French Revolving Borrowings or
French Term Borrowings, (iii) 11:00 a.m. (Dallas, Texas time) on the Business
Day of such prepayment, in case of U.S. Revolving Borrowings which are
comprised of U.S. Base Rate Advances, and (iv) 11:00 a.m. (Dallas, Texas time)
fifteen Business Days before such prepayment date, in the case of U.S. Term
Borrowings and Spanish Term Borrowings, in each case to the Agent stating the
proposed date and aggregate principal amount of such prepayment. If any such
notice is given, the Borrower giving such notice shall prepay Advances
comprising part of the same Borrowing in whole or ratably in part in an
aggregate principal amount equal to the amount specified in such notice,
together with accrued interest to the date of such prepayment on the principal
amount prepaid and amounts, if any, required
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<PAGE> 37
to be paid pursuant to Section 2.08 as a result of such prepayment being made
on such date; provided, however, that each partial prepayment shall be in an
aggregate principal amount not less than (i) in the case of U.S. Revolving
Advances, in integral multiples of $100,000 so long as $500,000 in principal is
outstanding, (ii) in the case of U.S. Term Advances and Spanish Term Advances,
$1,000,000, (iii) in the case of French Revolving Advances, 1,000,000 French
Francs, and (iv) in the case of French Term Advances, 5,000,000 French Francs.
(c) Mandatory.
(i) On the date of each reduction of the aggregate U.S.
Revolving Commitments pursuant to Section 2.04, the Company agrees to
make a prepayment in respect of the outstanding amount of U.S.
Revolving Advances to the extent, if any, that the aggregate unpaid
principal amount of all U.S. Revolving Advances exceeds the U.S.
Revolving Commitment, as so reduced.
(ii) On the date of each reduction of the aggregate
French Revolving Commitments pursuant to Section 2.04, each of SMF and
PDM agrees to make a prepayment in respect of the outstanding amount
of French Revolving Advances to the extent, if any, that the aggregate
unpaid principal amount of all French Revolving Advances exceeds the
French Revolving Commitment, as so reduced.
(iii) Each prepayment pursuant to this Section 2.07(c)
shall be accompanied by accrued interest on the amount prepaid to the
date of such prepayment and amounts, if any, required to be paid
pursuant to Section 2.08 as a result of such prepayment being made on
such date.
(d) Application of Term Advance Prepayments. Each prepayment of
U.S. Term Advances, the French Term Advances or the Spanish Term Advances shall
be applied to future scheduled principal payments of such U.S. Term Advances,
French Term Advances or Spanish Term Advances, as the case may be, pro rata;
provided that, any such prepayments on U.S. Term Advances, French Term Advances
or Spanish Term Advances which are made on a date which is less than one year
from the date of the next scheduled principal payment for such U.S. Term
Advances, French Term Advances or Spanish Term Advances, as the case may be,
shall be applied to the next scheduled principal payment for such U.S. Term
Advances, French Term Advances or Spanish Term Advances, as applicable.
(e) Illegality. If any Bank shall notify the Agent and the
Borrowers that the introduction of or any change in or in the interpretation of
any law or regulation makes it unlawful, or that any central bank or other
Governmental Authority asserts that it is unlawful for such Bank, its
Eurodollar Lending Office or its Eurocurrency Lending Office to perform its
obligations under this Agreement to make or maintain a Type of Fixed Rate
Advances of such Bank then outstanding hereunder (each
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<PAGE> 38
such Bank being an "Affected Bank"), (i) the Borrowers shall, no later than
11:00 a.m. (Dallas, Texas time) in the case of Eurodollar Rate Advances and
l1:00 a.m. (Paris, France time) in the case of Eurocurrency Rate Advances, (A)
if not prohibited by law or regulation to maintain such Type of Fixed Rate
Advances for the duration of the Interest Period, on the last day of the
Interest Period for each outstanding Fixed Rate Advance or (B) if prohibited by
law or regulation to maintain such Type of Fixed Rate Advances for the duration
of the Interest Period, on the second Business Day following its receipt of
such notice, Convert the Fixed Rate Advances of that Type of the Affected Bank
to a single U.S. Base Rate Advance (if the affected Advances are Eurodollar
Rate Advances) or a French Alternate Rate Advance (if the affected Advances are
Eurocurrency Rate Advances) in an amount equal to the aggregate principal
amount of the affected Fixed Rate Advances of such Borrowers, and (ii) the
obligation of the Affected Bank to make or maintain the affected Type of Fixed
Rate Advances shall be suspended until the Affected Bank shall notify the Agent
that the circumstances causing such suspension no longer exist. Each Bank which
becomes an Affected Bank agrees to use commercially reasonable efforts
(consistent with its internal policies and subject to legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such designation would avoid the effect of this paragraph and would not, in
the reasonable judgment of such Bank, be otherwise economically disadvantageous
to such Bank. If the condition requiring the Conversion under this paragraph
shall continue for the Affected Bank for 30 days, the Affected Bank may be
replaced in accordance with the procedures in Section 2.13; provided that, if
the Affected Bank is not replaced within 60 days after such initial 30-day
period, (A) all Fixed Rate Advances of the affected Type shall be Converted in
accordance with the procedures described above, and (B) the right of the
Borrowers to select the affected Type of Fixed Rate Advances for any subsequent
Borrowing and the obligation of the Banks to make or maintain the affected Type
of Fixed Rate Advances shall be suspended until (I) the Affected Bank shall
notify the Agent that the circumstances causing such suspension no longer exist
or (II) the Affected Bank is replaced pursuant to Section 2.13.
(f) Ratable Payments: Effect of Notice. Each payment of any
Advance pursuant to this Section 2.07 or any other provision of this Agreement
shall be made in a manner such that all Advances comprising part of the same
Borrowing are paid in whole or ratably in part. All notices given pursuant to
this Section 2.07 shall be irrevocable and binding upon the Borrowers.
Section 2.08. Funding Losses. If any payment of principal of any Fixed
Rate Advance is made other than on the last day of the Interest Period for such
Advance as a result of any payment pursuant to Section 2.07 or the acceleration
of the maturity of the Notes pursuant to Article VII, such Borrower shall,
within 10 days of any written demand sent by any Bank to such Borrower through
the Agent, pay to the Agent for the account of such Bank any amounts (without
duplication of any other amounts payable in respect of breakage costs) required
to compensate such Bank for any additional losses, out-of-pocket costs or
expenses which it may actually incur as a result of such payment or nonpayment,
including, without limitation, any loss, cost or expense actually incurred
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<PAGE> 39
by reason of the liquidation or reemployment of deposits or other funds
acquired by any Bank to fund or maintain such Advance (but excluding loss of
profits).
Section 2.09. Increased Costs.
(a) Fixed Rate Advances. If, due to either (i) the introduction
of or any change in or in the interpretation of any law or regulation or (ii)
the compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there shall be
any increase in the cost to any Bank of agreeing to make or making, funding or
maintaining Eurodollar Rate Advances or Eurocurrency Rate Advances (including,
without limitation, additional interest to compensate such Bank for reserve
costs actually incurred by such Bank associated with Eurocurrency Liabilities,
such additional interest to be calculated by subtracting (A) the Eurodollar
Rate, Eurocurrency Rate or French Alternate Rate, as applicable, for the
relevant Advance from (B) the rate obtained by dividing such applicable
interest rate for such Advance (excluding the Applicable Margin) by a
percentage equal to one minus the applicable Fixed Rate Reserve Percentage of
such Bank for such Interest Period), then the applicable Borrowers shall from
time-to-time, upon demand by such Bank (with a copy of such demand to the
Agent), immediately pay to the Agent for the account of such Bank additional
amounts (without duplication of any other amounts payable in respect of
increased costs) sufficient to compensate such Bank for such increased cost;
provided, however, that, before making any such demand, each Bank agrees to use
commercially reasonable efforts (consistent with its internal policy and
subject to legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost and would not, in the
reasonable judgment of such Bank, be otherwise economically disadvantageous to
such Bank (except that no Bank shall be required to redesignate its Applicable
Lending Office to avoid the incurrence of increased costs associated with
additional interest required to be paid by the Borrowers to any Bank in
connection with reserve costs attributable to Eurocurrency Liabilities). A
certificate shall be submitted to the Borrowers and the Agent by such Bank (a)
indicating the amount of such increased cost and detailing the calculation of
such cost, (b) stating that such Bank is generally charging such amounts to
other customers similarly situated with the Borrowers, and (c) that all such
costs are being charged within 90 days of the date the Bank learned of such
costs, such certificate to be conclusive and binding for all purposes, absent
manifest error.
(b) Capital Adequacy. If any Bank determines in good faith that
compliance with any generally applicable law or regulation or any guideline or
request from any central bank or other Governmental Authority (whether or not
having the force of law) implemented or effective after the date of this
Agreement increases or would increase the amount of capital required or
expected to be maintained by such Bank or any corporation controlling such Bank
and that the amount of such capital is increased by or based upon the existence
of such Bank's commitment to lend and other commitments of this type, then,
upon 30 days prior written notice by such Bank (with a copy of any such demand
to the Agent), the Borrowers shall immediately pay to the Agent for the account
of
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<PAGE> 40
such Bank as the case may be, from time-to-time as specified by such Bank,
additional amounts (without duplication of any other amounts payable in respect
of increased costs) sufficient to compensate such Bank, in light of such
circumstances, with respect to such Bank, to the extent that such Bank
reasonably determines such increase in capital to be allocable to the existence
of such Bank's commitment to lend under this Agreement. A certificate shall be
submitted to the Borrowers and the Agent by such Bank (a) indicating the amount
of such capital adequacy costs and detailing the calculation of such costs, (b)
stating that such Bank is generally charging such amounts to other customers
similarly situated with the Borrowers, and (c) certifying that all such costs
are being charged within 90 days of the date the Bank learned of such costs,
such certificate to be conclusive and binding for all purposes, absent manifest
error.
Section 2.10. Payments and Computations.
(a) Payment Procedures. The Borrowers shall make each payment
under this Agreement and under their respective Notes (i) not later than 12:00
p.m. (Dallas, Texas time) on the day when due in Dollars with respect to U.S.
Revolving Advances, U.S. Term Advances and Spanish Term Advances, and (ii) not
later than 12:00 p.m. (Paris, France time) on the day when due in French Francs
with respect to French Revolving Advances and French Term Advances, and in each
case to the Agent at the location referred to in the Notes (or such other
location as the Agent shall designate in writing to the Borrowers) in same day
funds. The Agent will promptly thereafter, and in any event prior to the close
of business on the day any timely payment is made, cause to be distributed like
funds relating to the payment of principal, interest or fees ratably (other
than amounts payable solely to the Agent, or a specific Bank pursuant to
Section 2.03(c), 2.08, 2.09, or 2.11, but after taking into account payments
effected pursuant to Section 10.04) (i) before the acceleration of the Advances
pursuant to Section 7.02 or 7.03, (A) in the case of payments in respect of
U.S. Revolving Advances and French Revolving Advances in accordance with each
Bank's U.S. Revolving Share and French Revolving Share, as applicable and (B)
in the case of payments in respect of U.S. Term Advances, French Term Advances
and Spanish Term Advances, in accordance with each Bank's U.S. Term Share,
French Term Share and Spanish Term Share, as applicable and (ii) after the
acceleration of the Advances pursuant to Section 7.02 or 7.03, in accordance
with each Bank's Pro Rata Share to the Banks for the account of their
respective Applicable Lending Offices, and like funds relating to the payment
of any other amount payable to any Bank to such Bank for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement.
(b) Computations. All computations of interest based on the U.S.
Base Rate shall be made by the Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurodollar
Rate, the Eurocurrency Rate, the French Alternate Rate, the Federal Funds Rate,
and of fees shall be made by the Agent, on the basis of a year of 360 days, in
each case for the actual number of days (including the first day, but excluding
the last day)
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<PAGE> 41
occurring in the period for which such interest or fees are payable. Each
determination by the Agent of an interest rate shall be conclusive and
binding for all purposes, absent manifest error.
(c) Non-Business Day Payments. Whenever any payment shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or fees, as the case
may be.
(d) Agent Reliance. Unless the Agent shall have received written
notice from a Borrower prior to the date on which any payment is due to the
Banks that such Borrower will not make such payment in full, the Agent may
assume that such Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such date an amount equal to the amount then due to
such Bank. If and to the extent such Borrower shall not have so made such
payment in full to the Agent, each Bank shall repay to the Agent forthwith on
demand such amount distributed to such Bank, together with interest, for each
day from the date such amount is distributed to such Bank until the date such
Bank repays such amount to the Agent, at the Federal Funds Rate for such day.
Section 2.11. Taxes.
(a) No Deduction for Certain Taxes. Any and all payments by the
Borrowers shall be made, in accordance with Section 2.10, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings and all liabilities with respect thereto,
excluding (i) in the case of each Bank and the Agent, taxes imposed on its
income, and franchise taxes imposed on it by the United States or any political
subdivision thereof, the jurisdiction under the laws of which such Bank or the
Agent (as the case may be) is organized or any political subdivision of the
jurisdiction and (ii) in the case of each Bank, taxes imposed by the
jurisdiction of such Bank's Applicable Lending Office or any political
subdivision of such jurisdiction (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If any Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable to any Bank or the Agent, (A) the sum payable
shall be increased as may be necessary so that, after making all required
deductions, such Bank or the Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made;
provided, however, that if such Borrower's obligation to deduct or withhold
Taxes is caused solely by such Bank's or the Agent's failure to provide the
forms described in paragraph (e) of this Section 2.1 1 and such Bank or the
Agent could have provided such forms, no such increase shall be required; (B)
such Borrower shall make such deductions; and (C) such Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
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(b) Other Taxes. In addition, the Borrowers agree to pay any
present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment made or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement, the Notes, or the other Credit Documents (hereinafter referred to as
"Other Taxes").
(c) Indemnification. Each of the Borrowers indemnifies each Bank
and the Agent for the full amount of Taxes or Other Taxes paid by such Bank or
the Agent (as the case may be) and any liability (including interest and
expenses) arising therefrom or with respect thereto, in either case,
attributable to such Borrower. Each payment required to be made by the
Borrowers in respect of this indemnification shall be made to the Agent for the
benefit of any party claiming such indemnification within 30 days from the date
the Borrowers receive written demand detailing the calculation of such amounts
therefor from the Agent on behalf of itself as Agent or any such Bank. If any
Bank or the Agent receives a refund or credit in respect of any taxes paid by
any Borrower under this paragraph (c), such Bank or the Agent, as the case may
be, shall promptly pay to such Borrower such Borrower's share of such refund or
credit.
(d) Evidence of Tax Payments. Each of the Borrowers will pay
prior to delinquency all Taxes payable in respect of any payment. Upon the
request of the applicable Bank, the Borrower making such payment will furnish
to the Agent, at its address referred to in Section 10.02, the original or a
certified copy of a receipt evidencing payment of such Taxes.
(e) Foreign Bank Withholding Exemption.
(i) Each Bank that is not incorporated under the laws of
the United States of America or a state thereof agrees that it will
deliver to the Borrowers and the Agent on the date of this Agreement
or upon, and as a condition to, the effectiveness of any Assignment
and Acceptance (i) two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 or successor applicable form, as the
case may be, certifying in each case that such Bank is entitled to
receive payments under this Agreement and the Notes payable to it,
without deduction or withholding of any United States federal income
taxes, (ii) if applicable, an Internal Revenue Service Form W-8 or W-9
or successor applicable form, as the case may be, to establish an
exemption from United States backup withholding tax, and (iii) any
other governmental forms which are necessary or required under an
applicable tax treaty or otherwise by law to reduce or eliminate any
withholding tax, which have been reasonably requested by the Borrower.
Each Bank which delivers to the Borrowers and the Agent a Form 1001 or
4224 and Form W-8 or W-9 pursuant to the next preceding sentence
further undertakes to deliver to the Borrowers and the Agent two
further copies of Form 1001 or 4224 and Form W-8 or W-9, or successor
applicable forms, or other manner of certification, as the case may
be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in
the most recent form previously delivered by it to the Borrowers and
the Agent, and such extensions or renewals
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thereof as may reasonably be requested by the Borrowers and the
Agent certifying in the case of a Form 1001 or 4224 that such Bank is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes. If an event
(including without limitation any change in treaty, law or regulation)
has occurred prior to the date on which any delivery required by the
preceding sentence would otherwise be required which renders all such
forms inapplicable or which would prevent any Bank from duly
completing and delivering any such form with respect to it and such
Bank advises the Borrowers and the Agent that it is not capable of
receiving payments without any deduction or withholding of United
States federal income tax, and in the case of a Form W-8 or W-9,
establishing an exemption from United States backup withholding tax,
such Bank shall not be required to deliver such forms. The Borrowers
may withhold tax at the rate and in the manner required by the laws of
the United States with respect to payments made to a Bank failing to
timely provide the requisite Internal Revenue Service forms.
(ii) Each Bank that is not incorporated under the laws of
the Republic of France or any province thereof agrees that it will
deliver to the Borrowers and the Agent on the date of this Agreement
or upon, and as a condition to, the effectiveness of any Assignment
and Acceptance such governmental forms which may be necessary,
appropriate or required under the applicable tax treaty or otherwise
by law to reduce or eliminate any withholding tax imposed by the
Republic of France or any political subdivision thereof ("French
Withholding Taxes"). Each Bank which delivers to the Borrowers and the
Agent any such governmental form pursuant to the next preceding
sentence further undertakes to deliver to the Borrowers and the Agent
two (2) further copies of said governmental forms or successor forms,
or other manner of certification as the case may be, on or before the
date that any such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrowers and the Agent, and such
extensions or renewals thereof as may be reasonably requested by the
Borrowers or the Agent certifying that such Bank is entitled to
receive payments under this agreement without deduction or withholding
of any French Withholding Taxes. If an event (including, without
limitation, any change in treaty, law, or regulation) has occurred
prior to the date on which any delivery is required by the preceding
sentence and would otherwise be required which render any such forms
inapplicable or which would prevent any Bank from duly completing and
delivering any such form with respect to it and such Bank advises the
Borrowers and the Agent that it is not capable of receiving payments
without any deduction or withholding of French Withholding Taxes, such
Bank shall not be required to deliver such forms. The Borrowers may
withhold tax at the rate and in the matter required by the laws of the
Republic of France with respect to payments made to a Bank failing to
timely provide the requisite governmental forms. The Borrowers agree
to use reasonable efforts to notify any Bank upon any such Borrower
becoming aware of any change in the laws of the Republic of France or
any tax treaty which would cause such Bank to not be capable of
receiving payments of interest without French Withholding Taxes.
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(iii) Each Bank that is not incorporated under the laws of
the Kingdom of Spain or any province thereof agrees that it will
deliver to the Borrowers and the Agent on the date of this Agreement
or upon, and as a condition to, the effectiveness of any Assignment
and Acceptance such governmental forms which may be necessary,
appropriate or required under the applicable tax treaty or otherwise
by law to reduce or eliminate any withholding tax imposed by the
Kingdom of Spain or any political subdivision thereof ("Spanish
Withholding Taxes"). Each Bank which delivers to the Borrowers and the
Agent any such governmental form pursuant to the next preceding
sentence further undertakes to deliver to the Borrowers and the Agent
two (2) further copies of said governmental forms or successor forms,
or other manner of certification as the case may be, on or before the
date that any such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrowers and the Agent, and such
extensions or renewals thereof as may be reasonably requested by the
Borrowers or the Agent certifying that such Bank is entitled to
receive payments under this agreement without deduction or withholding
of any Spanish Withholding Taxes. If an event (including, without
limitation, any change in treaty, law, or regulation) has occurred
prior to the date on which any delivery is required by the preceding
sentence and would otherwise be required which render any such forms
inapplicable or which would prevent any Bank from duly completing and
delivering any such form with respect to it and such Bank advises the
Borrowers and the Agent that it is not capable of receiving payments
without any deduction or withholding of Spanish Withholding Taxes,
such Bank shall not be required to deliver such forms. The Borrowers
agree to notify the Banks upon any such Borrower becoming aware of any
change in the regulations or of official interpretations of the laws
of the Kingdom of Spain or any tax treaty which would render any
previous forms delivered inapplicable or change the governmental forms
required to be delivered. The Borrowers may withhold tax at the rate
and in the matter required by the laws of the Kingdom of Spain with
respect to payments made to a Bank failing to timely provide the
requisite governmental forms, if any; provided, however, that
notwithstanding the foregoing, the Borrowers may not withhold Spanish
Withholding Taxes with respect to payments made to any Bank failing to
timely provide the requisite governmental forms if the Borrowers have
failed to notify the Banks of any change in the regulations or of
official interpretations of in the laws of the Kingdom of Spain or any
tax treaty which would render any previous forms delivered
inapplicable or change the governmental forms required to be
delivered.
(f) Repayment under Certain Circumstances. If any Borrower is
required by any law or regulation to make any deduction or withholding from any
sum payable by it under this Agreement and is prevented by law from fulfilling
the related gross-up obligation, upon written notice to the relevant Borrower
from the Agent (which shall give such notice if, and only if, so requested by
any Bank) the relevant Advances shall be repaid within 180 days of the date
such notice is received by the relevant Borrower together with accrued interest
and any amounts owing under Section 2.08.
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Section 2.12. Sharing of Payments. Etc. If any Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off or otherwise) on account of the Advances made by it in excess of its
Pro Rata Share, U.S. Term Share, French Term Share, Spanish Term Share, U.S.
Revolving Share or French Revolving Share, as applicable, of payments on
account of the Advances obtained by all the Banks, such Bank shall notify the
Agent and forthwith purchase from the other Banks such participations in the
Advances made by them held by them as shall be necessary to cause such
purchasing Bank to share the excess payment ratably in accordance with the
requirements of this Agreement with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Bank, such purchase from each Bank shall be rescinded and such Bank
shall repay to the purchasing Bank the purchase price to the extent of such
Bank's ratable share (according to the proportion of (a) the amount of the
participation sold by such Bank to the purchasing Bank as a result of such
excess payment to (b) the total amount of such excess payment) of such
recovery, together with an amount equal to such Bank's ratable share (according
to the proportion of (a) the amount of such Bank's required repayment to the
purchasing Bank to (b) the total amount of all such required repayments to the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. Each Borrower
agrees that any Bank so purchasing a participation from another Bank pursuant
to this Section 2.12 may, to the fullest extent permitted by law, unless and
until rescinded as provided above, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Bank were the direct creditor of such Borrower in the amount of such
participation.
Section 2.13. Bank Replacement. The Company, the French Borrowers
and/or SMS, as the case may be, shall be permitted to replace with an Eligible
Assignee any Bank which (a) makes an assertion of the type described in Section
2.02(c)(iii) or requests reimbursement for amounts owing pursuant to Section
2.09 (either for its own account or for the account of any of its
participants), (b) is affected in the manner described in Section 2.07(e), (c)
requires any Borrower to pay Taxes in respect of such Bank or (d) fails to make
any Advance requested by it if the Majority Banks have made the Advances
requested of them pursuant to the same Notice of Borrowing; provided that (i)
such replacement does not conflict with any Legal Requirement, (ii) no Default
or Event of Default shall have occurred and be continuing at the time of such
replacement, (iii) prior to any such replacement, such Bank being replaced
shall not have eliminated the continued need for repayment of amounts owing
pursuant to Section 2.02(c)(iii); and (iv) the Company shall repay (or cause to
be repaid) or the Eligible Assignee shall pay to the Bank being replaced, the
amount of the Obligations owing to such Bank on the date of replacement
(including any amounts owing under Section 2.02(c)(iii)).
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ARTICLE III
CONDITIONS OF LENDING
Section 3.01. Conditions Precedent to Initial Advances. The obligation
of each Bank to make its initial Advances as part of the initial Borrowings is
subject to the conditions precedent that:
(a) Documentation. On or before the day on which the initial
Borrowing is made, the Agent and the Banks shall have received the following,
each dated on or before such day, duly executed by all the parties thereto, in
form and substance satisfactory to the Agent and the Banks:
(i) this Agreement and the other Credit Documents and
all attached Exhibits and Schedules and the Notes payable to the order
of the Banks, respectively;
(ii) certificates from the appropriate Governmental
Authority certifying as to the good standing, existence and authority
of the Company in all jurisdictions where the Company is organized or
does business;
(iii) certificates from a Responsible Officer of each of
the Borrowers stating that (A) all representations and warranties of
such Borrower set forth in this Agreement are true and correct in all
material respects; (B) no Default has occurred and is continuing; and
(C) the conditions in this Section 3.01 have been met;
(iv) copies, certified as of the date of this Agreement
by a Responsible Officer of the appropriate Person of (A) the
resolutions of the Board of Directors of the Company approving this
Agreement, the Notes, and the other Credit Documents, (B) the articles
or certificate (as applicable) of incorporation and bylaws of the
Company, (C) with respect to the French Borrowers, an extrait K-bis
and the statutes for each such French Borrower and any other documents
authorizing the transactions contemplated by the Credit Documents, (D)
with respect to SMS, the organizational documents of SMS and any other
documents authorizing the Credit Documents and (E) all other documents
evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement, the Notes, and the
other Credit Documents;
(v) certificates of a Responsible Officer of each of
the Borrowers certifying the names and true signatures of officers of
the Borrowers authorized to sign this Agreement, the Notes, Notices of
Borrowing and the other Credit Documents;
(vi) a favorable opinion of Troutman Sanders LLP, counsel
to the Company, substantially in the form of the attached Exhibit F-1;
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(vii) a favorable opinion of Chambaz & Suermondt, counsel
to the French Borrowers, substantially in the form of the attached
Exhibit F-2;
(viii) a favorable opinion of Bracewell & Patterson,
L.L.P., counsel to the Agent, substantially in the form of the
attached Exhibit F-3;
(ix) a favorable opinion of Uria & Menendez, counsel to
SMS, substantially in the form of the attached Exhibit F-4; and
(x) such other documents, governmental certificates,
agreements, lien searches as the Agent and the Banks may reasonably
request.
(b) Payment of Fees. On the date of this Agreement, the Borrowers
shall have paid the fees required to be paid to the Agent and the Banks and all
costs and expenses which have been invoiced and are payable pursuant to Section
10.04.
(c) Delivery of Financial Statements. The Agent and the Banks
shall have received true and correct copies of (i) the Financial Statements,
(ii) the Interim Financial Statements and (iii) the financial statements
referred to in Section 4.05(f).
(d) No Default. No Default shall have occurred and be continuing
or would result from such Advance or from the application of the proceeds
therefrom.
(e) Representations and Warranties. The representations and
warranties contained in Article IV hereof and in each other Credit Document
shall be true and correct in all material respects on and as of the date of
this Agreement before and after giving effect to the initial Advances and to
the application of the proceeds from such Advances as though made on and as of
such date.
(f) No Material Adverse Change. No event or events which,
individually or in the aggregate, has had or is reasonably likely to cause a
Material Adverse Change shall have occurred.
Section 3.02. Conditions Precedent to Each Borrowing. The obligation
of each Bank to make an Advance on the occasion of each Borrowing (including
the initial Borrowing) shall be subject to the further conditions precedent
that on the date of such Borrowing, the following statements shall be true (and
each of the giving of the applicable Notice of Borrowing or Notice of
Conversion or Continuation and the acceptance by the Borrowers of the proceeds
of such Advance shall constitute a representation and warranty by the Borrowers
that on the date of such Advance such statements are true):
(a) the representations and warranties contained in
Article IV (except for the representations and warranties set forth in
clauses (a) through (e) of Section 4.05 and Section
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4.07, which representations and warranties shall only apply to the
initial Advance and the representation and warranty contained in
Section 4.05(f) which shall apply to all Advances except for Advances
which are made as part of a Conversion or Continuation of any existing
Advance) and in each other Credit Document are correct in all material
respects on and as of the date of such Advance before and after giving
effect to such Advance and to the application of the proceeds from
such Advance as though made on and as of such date; and
(b) no Default has occurred and is continuing or would
result from such Advance or from the application of the proceeds
therefrom.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant, as of the date of this Agreement,
as follows:
Section 4.01. Corporate Existence; Subsidiaries. Each of the Borrowers
is a corporation duly organized, validly existing, and in good standing under
the laws of the jurisdiction of its incorporation and in good standing and
qualified to do business in each jurisdiction where its ownership or lease of
property or conduct of its business requires such qualification and where a
failure to be qualified could reasonably be expected to cause a Material
Adverse Change.
Section 4.02. Corporate Power. The execution, delivery, and
performance by the Borrowers of this Agreement, the Notes, and the other Credit
Documents to which each is a party and the consummation of the transactions
contemplated hereby and thereby (a) are within such Borrower's corporate
powers, (b) have been duly authorized by all necessary corporate action, (c) do
not contravene (i) such Borrower's articles or certificate of incorporation or
statutes (as applicable) or bylaws or (ii) any law or any contractual
restriction binding on or affecting such Borrower, and (d) will not result in
or require the creation or imposition of any Lien prohibited by this Agreement.
At the time of each Advance, such Advance and the use of the proceeds of such
Advance will be within such Borrower's corporate powers, will have been duly
authorized by all necessary corporate action, will not contravene (i) such
Borrower's articles or certificate of incorporation or statutes (as applicable)
or bylaws or (ii) any law or any contractual restriction binding on or
affecting such Borrower and will not result in or require the creation or
imposition of any Lien prohibited by this Agreement.
Section 4.03. Authorization and Approvals. No authorization or
approval or other action by, and no notice to or filing with, any Governmental
Authority is required for the due execution, delivery and performance by the
Borrowers of this Agreement, the Notes, or the other Credit Documents to which
the Borrowers are a party or the consummation of the transactions
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contemplated thereby, other than those that have been duly obtained. At the
time of each Advance no authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority will be required for such
Advance or the use of the proceeds of such Advance.
Section 4.04. Enforceable Obligations. This Agreement, the Notes, and
the other Credit Documents to which the Borrowers are a party have been duly
executed and delivered by the Borrowers. Each Credit Document to which the
Borrowers are a party is the legal, valid, and binding obligation of the
Borrowers and is enforceable against the Borrowers in accordance with its
terms, except as such enforceability may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium, or similar law affecting
creditors' rights generally.
Section 4.05. Financial Statements.
(a) The audited consolidated balance sheet of the Company as at
December 31, 1996, and the related audited consolidated statements of income,
changes in owners' equity and cash flows of the Company for the fiscal year
then ended, copies of which have been furnished to the Banks, and the unaudited
consolidated balance sheet of the Company as at September 30, 1997, and the
related unaudited consolidated statements of income, changes in owners' equity
and cash flows of the Company for the nine months then ended, duly certified by
an authorized financial officer of the Company, copies of which have been
furnished to the Banks, fairly present, subject to the assumptions set forth
therein and, in the case of said balance sheet as at September 30, 1997 and
said statements of income, changes in owners' equity and cash flows for the
nine months then ended, subject to year-end audit adjustments, the consolidated
financial condition of the Company as at such dates and the consolidated result
of the operations of the Company for the periods ended on such dates, and such
balance sheet and statements of income, changes in owners' equity and cash
flows were prepared in accordance with GAAP.
(b) The unaudited, unconsolidated balance sheet of SMF as at
December 31, 1996, and the related unaudited, unconsolidated statement of
income for SMF for the fiscal year then ended, copies of which have been
furnished to the Banks, and the unaudited, unconsolidated balance sheet of SMF
as at September 30, 1997, and the related unaudited, unconsolidated statement
of income of SMF for the nine months then ended, duly certified by an
authorized financial officer of SMF, copies of which have been furnished to the
Banks, fairly present, subject to the assumptions set forth therein, the
financial condition of SMF as at such dates and the results of the operations
of SMF for the periods ended on such dates, and such balance sheet and
statements of income were prepared in accordance with GAAP.
(c) The unaudited, unconsolidated balance sheet of Papeteries de
Mauduit S.A. as at December 31, 1996, and the related unaudited, unconsolidated
statement of income for Papeteries de Mauduit S.A. for the fiscal year then
ended, copies of which have been furnished to the Banks, and the unaudited,
unconsolidated balance sheet of Papeteries de Mauduit S.A. as at
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September 30, 1997, and the related unaudited, unconsolidated statement of
income of Papeteries de Mauduit S.A. for the nine months then ended, duly
certified by an authorized financial officer of Papeteries de Mauduit S.A.,
copies of which have been furnished to the Banks, fairly present, subject to
the assumptions set forth therein, the financial condition of Papeteries de
Mauduit S.A. as at such dates and the results of the operations of Papeteries
de Mauduit S.A. for the periods ended on such dates, and such balance sheet and
statements of income were prepared in accordance with GAAP.
(d) The unaudited, unconsolidated balance sheet of Papeteries de
Malaucene S.A. as at December 31, 1996, and the related unaudited,
unconsolidated statement of income for Papeteries de Malaucene S.A. for the
fiscal year then ended, copies of which have been furnished to the Banks, and
the unaudited, unconsolidated balance sheet of Papeteries de Malaucene S.A. as
at September 30, 1997, and the related unaudited, unconsolidated statement of
income of Papeteries de Malaucene S.A. for the nine months then ended, duly
certified by an authorized financial officer of Papeteries de Malaucene S.A.,
copies of which have been furnished to the Banks, fairly present, subject to
the assumptions set forth therein, the financial condition of Papeteries de
Malaucene S.A. as at such dates and the results of the operations of Papeteries
de Malaucene S.A. for the periods ended on such dates, and such balance sheet
and statements of income were prepared in accordance with GAAP.
(e) The unaudited, unconsolidated balance sheet of LTR Industries
S.A. as at December 31, 1996, and the related unaudited, unconsolidated
statement of income for LTR Industries S.A. for the fiscal year then ended,
copies of which have been furnished to the Banks, and the unaudited,
unconsolidated balance sheet of LTR Industries S.A. as at September 30, 1997,
and the related unaudited, unconsolidated statement of income of LTR Industries
S.A. for the nine months then ended, duly certified by an authorized financial
officer of LTR Industries S.A., copies of which have been furnished to the
Banks, fairly present, subject to the assumptions set forth therein, the
financial condition of LTR Industries S.A. as at such dates and the results of
the operations of LTR Industries S.A. for the periods ended on such dates, and
such balance sheet and statements of income were prepared in accordance with
GAAP.
(f) The unaudited pro forma financial statements of Pirahy as at
December 31, 1995 and December 31, 1996, copies of which have been furnished to
the Banks, fairly present, subject to the assumptions set forth therein, the
pro forma financial condition of Pirahy as at such dates in accordance with
GAAP.
(g) Since September 30, 1997, no Material Adverse Change has
occurred.
Section 4.06. True and Complete Disclosure. (a) The Company's annual
report on Form IO-K most recently filed with the SEC and the Company's
quarterly report on Form 10-Q most recently filed with the SEC, copies of which
have been furnished by the Company to the Agent and the Banks, did not, as of
the respective dates such Form 10-K and Form 10-Q were filed with the
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SEC, contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and (b) from the date
of filing of the Company's most recent quarterly or annual report on Form 10-Q
or Form 10-K, no event or condition exists or has occurred which has required
or would require the Company to file a current report on Form 8-K pursuant to
the Securities Exchange Act of 1934, as amended, except for any such event or
condition which has been disclosed in writing to the Banks by delivery to the
Banks of a Form 8-K.
Section 4.07. Litigation. Except as set forth in the attached Schedule
4.07, to the best of the knowledge of the Borrowers, there is no pending or
threatened action or proceeding affecting any of the Borrowers or any Material
Subsidiary before any court, Governmental Authority or arbitrator, which could
reasonably be expected to cause a Material Adverse Change or which purports to
affect the legality, validity, binding effect or enforceability of this
Agreement, any Note, or any other Credit Document. Additionally, to the best
knowledge of the Borrowers, there is no pending or threatened action or
proceeding instituted against any of the Borrowers or the Material Subsidiaries
which seeks to adjudicate any of the Borrowers or the Material Subsidiaries as
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or for any substantial part
of its property.
Section 4.08. Use of Proceeds. The proceeds of the Advances will be
used by the Borrowers for the purposes described in Section 5.08. None of the
Borrowers is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U). No
proceeds of any Advance will be used to purchase or carry any margin stock in
violation of Regulation G, T, U or X.
Section 4.09. Investment Company Act. None of the Borrowers is an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
Section 4.10. Taxes. All federal and all material state, local and
foreign tax returns, reports and statements required to be filed (after giving
effect to any extension granted in the time for filing) by the Borrowers or any
member of the Controlled Group (hereafter collectively called the "Tax Group")
have been filed with the appropriate governmental agencies in all jurisdictions
in which such returns, reports and statements are required to be filed, and all
taxes (which are material in amount) and other impositions due and payable have
been timely paid prior to the date on which any fine, penalty, interest, late
charge or loss may be added thereto for non-payment thereof except where
contested in good faith and by appropriate proceedings and after providing
adequate reserves therefor.
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Section 4.11. Pension Plans. No Termination Event has occurred with
respect to any Plan, and each Plan has complied with and been administered in
all material respects in accordance with applicable provisions of ERISA and the
Code. No "accumulated funding deficiency" (as defined in Section 302 of ERISA)
has occurred and there has been no excise tax imposed under Section 4971 of the
Code. To the knowledge of any Responsible Officer of each Borrower, no
Reportable Event has occurred with respect to any Multiemployer Plan, and each
Multiemployer Plan has complied with and been administered in all material
respects with applicable provisions of ERISA and the Code. The present value of
all benefits vested under each Plan (based on the assumptions used to fund such
Plan) did not, as of the last annual valuation date applicable thereto, exceed
the value of the assets of such Plan allocable to such vested benefits in any
amount that would reasonably be expected to cause a Material Adverse Change.
None of the Borrowers nor any member of the Controlled Group has had a complete
or partial withdrawal from any Multiemployer Plan for which there is any
material withdrawal liability. As of the most recent valuation date applicable
thereto, none of the Borrowers nor any member of the Controlled Group has
received notice that any Multiemployer Plan is insolvent or in reorganization.
Based upon GAAP existing as of the date of this Agreement and current factual
circumstances, none of the Borrowers has any reason to believe that the annual
cost during the term of this Agreement to such Borrower or any of its
Subsidiaries for post-retirement benefits to be provided to the current and
former employees of the Borrower or any of its Subsidiaries under welfare
benefit plans (as defined in Section 3(1) of ERISA) could, in the aggregate,
reasonably be expected to cause a Material Adverse Change.
Section 4.12. Condition of Property; Casualties. The material
Properties used or to be used in the continuing operations of the Borrowers and
each of their Subsidiaries, taken as a whole, are (a) in substantially the same
or better repair, working order, and condition as such Properties were as of
December 31, 1996, normal wear and tear excepted and (b) in such repair,
working order and condition to permit the Borrowers and their Subsidiaries to
operate such Properties in substantially the same or better manner as operated
as of December 31, 1996. Neither the business nor the material properties of
the Borrowers and each of their Subsidiaries, taken as a whole, has been
affected as a result of any fire, explosion, earthquake, flood, drought,
windstorm, accident, strike or other labor disturbance, embargo, requisition or
taking of property or cancellation of contracts, permits or concessions by a
Governmental Authority, riot, activities of armed forces or acts of God or of
any public enemy, which affect would reasonably be expected to cause a Material
Adverse Change.
Section 4.13. Insurance. Each of the Borrowers and their Subsidiaries
carry insurance with reputable insurers in respect of such of their respective
Properties, in such amounts and against such risks as is customarily maintained
by other Persons of similar size engaged in similar businesses or, self-insure
to the extent that is customary for Persons of similar size engaged in similar
businesses.
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Section 4.14. No Burdensome Restrictions: No Defaults.
(a) None of the Borrowers nor any of their Subsidiaries is a
party to any indenture, loan or credit agreement or any lease or other
agreement or instrument or subject to any charter or corporate restriction or
provision of applicable law or governmental regulation which would reasonably
be expected to cause a Material Adverse Change. None of the Borrowers or their
Subsidiaries is in default under or with respect to any contract, agreement,
lease or other instrument to which such Borrower or Subsidiary is a party and
which would reasonably be expected to cause a Material Adverse Change. To the
knowledge of a Responsible Officer of the Borrowers, none of the Borrowers nor
any of their Subsidiaries has received any notice of default under any contract,
agreement, lease or other instrument to which any Borrower or its Subsidiaries
is a party which is continuing or which, if not cured, would reasonably be
expected to cause a Material Adverse Change.
(b) No Default has occurred and is continuing. Additionally, no
event of default under any financing agreement, material contract or instrument
to which any Borrower is a party has occurred and is continuing which could
reasonably be expected to result in a Material Adverse Change.
Section 4.15. Supply Agreement. Except as disclosed to the Agent, the
Supply Agreement has not been amended, modified, supplemented or terminated
and, except as permitted by this Agreement, the Supply Agreement is in full
force and effect.
Section 4.16. Environmental Condition.
(a) Except as set forth on Schedule 4.16, each of the Borrowers
and its Subsidiaries, taken as a whole, (i) have been and are in compliance
with all material requirements of applicable Environmental Laws of which the
failure to comply would reasonably be expected to cause a Material Adverse
Change; (ii) have not received notice of any violation or alleged violation of
any Environmental Law the violation of which would reasonably be expected to
cause a Material Adverse Change; and (iii) are not subject to any actual or
contingent Environmental Claim, which Environmental Claim would reasonably be
expected to cause a Material Adverse Change.
(b) Except as set forth on Schedule 4.16, to the best of the
Borrowers' knowledge (i) none of the Borrowers has ever caused the release of
any Hazardous Substances into the Environment in violation of applicable
Environmental Laws which would reasonably be expected to result in a Material
Adverse Change, (ii) none of the Borrowers' currently or previously owned
Property has been subjected to the release of or is contaminated by any
Hazardous Substances which would reasonably be expected to result in a Material
Adverse Change, and (iii) none of the Borrowers has ever received notice of and
have ever been investigated for any violation or alleged violation of any
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Environmental Law which has not been remedied in accordance with applicable
Environmental Laws and which is reasonably likely to cause a Material Adverse
Change.
Section 4.17. Liens and Encumbrances. None of the Property of the
Borrowers or any of the Material Subsidiaries is subject to any Lien other than
Liens permitted by Section 6.01.
ARTICLE V
AFFIRMATIVE COVENANTS
So long as the Notes or any amount under any Credit Document shall
remain unpaid, or any Bank shall have any Commitment hereunder, the Borrowers
agree, unless the Majority Banks otherwise consent in writing, to comply with
the following covenants.
Section 5.01. Compliance with Laws, Etc. Each of the Borrowers will
comply in all material respects with all Legal Requirements except where the
failure to so comply could not reasonably be expected to cause a Material
Adverse Change. Without limiting the generality and coverage of the foregoing,
the Borrowers shall comply in all material respects with all applicable
Environmental Laws, and all laws, regulations, or directives with respect to
equal employment opportunity and employee safety in all jurisdictions in which
the Borrowers do business except where the failure to so comply could not
reasonably be expected to cause a Material Adverse Change; provided, however,
that this Section 5.01 shall not prevent the Borrowers from, in good faith and
with reasonable diligence, contesting the validity or application of any such
laws or regulations by appropriate legal proceedings.
Section 5.02. Maintenance of Insurance. Each of the Borrowers will
maintain insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as are usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which the Borrowers operate; provided that, the Borrowers
may self-insure to the extent and in the manner normal for similarly situated
companies of like size, type and financial condition that are part of a group
of companies under common control.
Section 5.03. Preservation of Corporate Existence, Etc. Each of the
Borrowers will preserve and maintain its corporate existence, rights,
franchises and privileges in the jurisdiction of its incorporation, and qualify
and remain qualified as a foreign corporation in each jurisdiction in which
qualification is necessary or desirable in view of its business and operations
or the ownership of its Properties and where failure to qualify could
reasonably be expected to cause a Material Adverse Change; provided, however,
that nothing herein contained shall prevent any transaction permitted by
Section 6.02.
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Section 5.04. Payment of Taxes, Etc. Each of the Borrowers will pay
and discharge before the same shall become delinquent, (a) all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or Property that are material in amount, prior to the date on
which penalties attach thereto and (b) all lawful claims that are material in
amount which, if unpaid, might by law become a Lien upon its Property;
provided, however, that the Borrowers shall not be required to pay or discharge
any such tax, assessment, charge, levy, or claim which is being contested in
good faith and by appropriate proceedings, and with respect to which reserves
in conformity with Applicable Accounting Rules have been provided.
Section 5.05. Reporting Requirements. The Borrowers will furnish to
the Agent and the Banks:
(a) Defaults. (i) As soon as possible and in any event within
three Business Days after a Responsible Officer of a Borrower becomes aware of
the occurrence of a Default known to any of the Borrowers which is continuing
on the date of such statement, a statement of an authorized officer of the
Company setting forth the details of such Default and (ii) within ten Business
Days after a Responsible Officer of a Borrower becomes aware of the occurrence
of such Default, a statement of an authorized officer of the Company setting
forth the actions which the Borrowers have taken and propose to take with
respect thereto;
(b) Quarterly Financials. As soon as available and in any event
not later than 50 days after the end of each of the first three fiscal quarters
of each fiscal year of the Company, SMF, LTR Industries S.A., PDM, Papeteries
de Mauduit S.A., SMS and its Subsidiaries, the consolidated and consolidating
balance sheets of such entities as of the end of such quarter and the
consolidated and consolidating statements of income, changes in owners' equity
and cash flows of such entities for the fiscal quarter then ended and for the
period commencing at the end of the previous year and ending with the end of
such fiscal quarter, all in reasonable detail and duly certified with respect
to such statements (subject to year-end audit adjustments) by an authorized
financial officer of the Company as having been prepared in accordance with
GAAP;
(c) Audited Annual Financials of the Company. As soon as
available and in any event not later than 105 days after the end of each fiscal
year of the Company, copies of the annual audit report for such year for the
Company, including therein a consolidated balance sheet of the Company and
consolidated statements of income, changes in owners' equity and cash flows for
such fiscal year, in each case certified by Deloitte & Touche L.L.P. or other
independent certified public accountants of nationally recognized standing or
otherwise reasonably acceptable to the Agent and the Majority Banks and
including any management letters delivered by such accountants to the Company
in connection with such audit together with a certificate of such accounting
firm to the Agent and the Banks stating that, in the course of the regular
audit of the business of the Company, which audit was conducted by such
accounting firm in accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge that a Default has occurred and is
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continuing, or if, in the opinion of such accounting firm, a Default has
occurred and is continuing, a statement as to the nature thereof;
(d) Unaudited Annual Financials of Certain Entities. As soon as
available and in any event not later than 105 days after the end of each fiscal
year of the Company, SMF, LTR Industries S.A., PDM, Papeteries de Mauduit S.A.,
SMS and its Subsidiaries, copies of the unaudited, consolidated and
consolidating balance sheets of such entities and unaudited, consolidated and
consolidating statements of income, changes in owners' equity and cash flows
for such fiscal year for such entities, together with a certificate of an
authorized financial officer of each such entity certifying that such
consolidated statements having been prepared in accordance with GAAP;
(e) Audited Annual Financials of Certain Entities. To the extent
prepared for any fiscal year of SMF, LTR Industries S.A., PDM, Papeteries de
Mauduit S.A., SMS and its Subsidiaries, as soon as available and in any event
not later than 105 days after the end of such fiscal year of the applicable
entity, copies of the annual audit reports for such year for such entity,
including therein a consolidated balance sheet of such entity and consolidated
statements of income, changes in owners' equity and cash flows for such fiscal
year, in each case certified by Deloitte & Touche L.L.P. or other independent
certified public accountants of nationally recognized standing or otherwise
reasonably acceptable to the Agent and the Majority Banks and including any
management letters delivered by such accountants to the applicable entity in
connection with such audit together with a certificate of such accounting firm
to the Agent and the Banks stating that, in the course of the regular audit of
the business of the applicable entity, which audit was conducted by such
accounting firm in accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge that a Default has occurred and is
continuing, or if, in the opinion of such accounting firm, a Default has
occurred and is continuing, a statement as to the nature thereof;
(f) Certain French Financial Statements. (i) As soon as available
and in any event not later than 105 days after the end of each fiscal year of
SMF, a copy of the unaudited, consolidated balance sheet of SMF as of the end
of such fiscal year and the consolidated statements of income and owners'
equity and cash flows of SMF for the period commencing at the end of the
previous fiscal year and ending with such fiscal year end, all in reasonable
detail and duly certified with respect to such statements by an authorized
financial officer of SMF as having been prepared in accordance with French
Accounting Rules and (ii) as soon as available and in any event within 135 days
after the end of each fiscal year, the French tax returns (referred to as the
"liasse fiscale") of SMF, LTR Industries S.A., PDM and Papeteries de Mauduit
S.A. and its Subsidiaries.
(g) Compliance Certificates. (i) Within 45 days of each fiscal
quarter end for the first three fiscal quarters of each fiscal year and (ii)
within 90 days of each fiscal year end, a Compliance Certificate in the form of
the attached Exhibit E for such fiscal quarter or fiscal year then ended
indicating compliance with Sections 6.06 through 6.08 and Section 7.01(k).
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(h) Securities Law Filings. Promptly and in any event within 15
days after the sending or filing thereof, copies of all proxy material, reports
and other information which the Borrowers or any of their Subsidiaries sends to
or files with the United States SEC or sends to any shareholder of any Borrower;
(i) Termination Events. As soon as possible and in any event (i)
within 30 days after any Responsible Officer of any Borrower knows or has
reason to know that any Termination Event described in clause (a) of the
definition of Termination Event with respect to any Plan has occurred, and (ii)
within 10 days after any Responsible Officer of any Borrower knows or has
reason to know that any other Termination Event with respect to any Plan has
occurred, a statement of the chief financial officer of such Borrower
describing such Termination Event and the action, if any, which such Borrower
or such Affiliate proposes to take with respect thereto;
(j) Termination of Plans. Promptly and in any event within ten
Business Days after the knowledge of any Responsible Officer of any Borrower of
receipt thereof by such Borrower or any member of the Controlled Group from the
PBGC, copies of each notice received by such Borrower or any such member of the
Controlled Group of the PBGC's intention to terminate any Plan or to have a
trustee appointed to administer any Plan;
(k) Other ERISA Notices. Promptly and in any event within ten
Business Days after the knowledge of any Responsible Officer of any Borrower
of receipt thereof by any Borrower or any member of the Controlled Group from a
Multiemployer Plan sponsor, a copy of each notice received by any Borrower or
any member of the Controlled Group concerning the imposition of withdrawal
liability pursuant to Section 4202 of ERISA in an amount that could reasonably
be expected to cause a Material Adverse Change;
(1) Disputes, etc. Prompt written notice of any claims,
proceedings, or disputes, or to the knowledge of any Responsible Officer of
any Borrower threatened, or affecting such Borrower, or any of its Subsidiaries
in which there is a reasonable possibility of an adverse result which could
reasonably be expected to cause a Material Adverse Change;
(m) Material Changes. Prompt written notice of any condition or
event of which a Responsible Officer of any of the Borrowers has knowledge,
which condition or event has resulted or may reasonably be expected to result
in (i) a Material Adverse Change or (ii) a breach of or noncompliance with any
material term, condition, or covenant of the Supply Agreement;
(n) Supply Agreement. Prompt written notice of (i) any nonrenewal
of the initial term or any renewal term under the Supply Agreement, (ii) any
event or condition which results in, or could be expected to result in, an
early termination or cancellation of the Supply Agreement, and (iii) any
default by the Company or, to the knowledge of the Company, Philip Morris under
the Supply Agreement; and
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(o) Other Information. Such other information respecting the
business or Properties, or the condition or operations, financial or otherwise,
of the Borrowers as the Agent may from time-to-time reasonably request.
Section 5.06. Maintenance of Property. Each of the Borrowers and their
Subsidiaries shall (a) maintain their material owned, leased, or operated
property, equipment, buildings and fixtures in substantially the same or better
condition and repair as the condition and repair as of December 31, 1996,
normal wear and tear excepted and (b) not knowingly or willfully permit the
commission of waste or other injury, or the release of Hazardous Substances on
or about the owned or operated property in violation of applicable
Environmental Laws that would reasonably be expected to cause a Material
Adverse Change.
Section 5.07. Inspection. From time-to-time upon reasonable notice,
the Borrowers shall (i) permit the Agent (at the request of any Bank) or after
an Event of Default has occurred, the Banks, to examine and copy their books
and records, (ii) permit the Agent and the Banks to visit and inspect their
Properties, and (iii) permit the Agent and Banks to discuss the business
operations and Properties of the Borrowers with their officers and directors.
Section 5.08. Use of Proceeds. The Borrowers shall use the proceeds of
Advances (a) with respect to the Spanish Term Advances only, to finance the
Pirahy Acquisition and (b) with respect to all other Classes of Advances, the
refinancing of existing Debt of the Borrowers and general corporate purposes.
The Borrowers will not engage in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of
Regulation U). No proceeds of any Advance will be used to purchase or carry any
margin stock in violation of Regulation G, T, U, or X.
Section 5.09. Status of Obligations. The Company shall cause all of
its obligations under this Agreement, the Notes and the other Credit Documents
to rank at least pari passu in right of payment with all other unsecured Debt
of the Company. SMF shall cause all of its obligations under this Agreement,
the Notes and the other Credit Documents to rank at least pari passu in right
of payment with all other unsecured Debt of SMF. PDM shall cause all of its
obligations under this Agreement, the Notes and the other Credit Documents to
rank at least pari passu in right of payment with all other unsecured Debt of
PDM. SMS shall cause all of its obligations under this Agreement, the Notes and
the other Credit Documents to rank at least pari passu in right of payment with
all other unsecured Debt of SMS.
Section 5.10. Nature of Business. None of the Borrowers nor any of the
Subsidiaries shall engage in any business if, as a result, the general nature
of the business, taken on a consolidated basis, which would then be engaged in
by the Company and its Subsidiaries would be substantially changed from the
general nature of the business engaged in by the Company and its Subsidiaries
on the date of this Agreement.
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Section 5.11. Pirahy Acquisition. Promptly after the Pirahy
Acquisition has been consummated, SMS shall furnish to the Agent copies,
certified by a Responsible Officer of SMS, of the Pirahy Purchase Agreement and
a certificate of a Responsible Officer of SMS certifying that the transactions
contemplated under the Pirahy Acquisition Documents shall have been consummated
in accordance with the terms thereof without any material waiver or amendment
thereof.
ARTICLE VI
NEGATIVE COVENANTS
So long as the Notes or any amount under any Credit Document shall
remain unpaid, or any Bank shall have any Commitment, the Borrowers agree,
unless the Majority Banks otherwise consent in writing, to comply with the
following covenants.
Section 6.01. Liens, Etc. None of the Borrowers nor any Material
Subsidiary will create, assume, incur or suffer to exist, any Lien on or in
respect of any of its Property whether now owned or hereafter acquired, or
assign any right to receive income, except that the Borrowers and the Material
Subsidiaries may create, incur, assume or suffer to exist:
(a) Liens securing the Obligations;
(b) Liens for taxes, assessments or governmental charges or
levies on Property of the Borrowers to the extent not required to be paid
pursuant to Sections 5.01 and 5.04;
(c) Liens securing Debt set forth in Schedule 6.01 attached
hereto and refinancings of such Debt; provided that, the aggregate principal
amount of such Debt shall not be increased;
(d) carrier's, warehousemen's, mechanic's, materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
(whether or not statutory) which are not overdue for a period of more than 30
days or which are being contested in good faith and by appropriate proceedings,
for which a reserve or other appropriate provision, if any, as shall be
required by Applicable Accounting Rules shall have been made;
(e) Liens arising in the ordinary course of business in favor of
customs and revenue authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods;
(f) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, leases, subleases, licenses,
sublicenses, restrictions on the use of Property or minor imperfections in
title
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thereto which, in the aggregate, are not material in amount, and which do not
in any case materially detract from the value of the Property subject thereto
or interfere with the ordinary conduct of the business of the Company or any of
its Subsidiaries;
(g) Liens on Property of Persons which become Subsidiaries of the
Company after the date of this Agreement securing Debt permitted hereby;
provided that, such Liens are in existence at the time the respective Persons
become Subsidiaries of the Company and were not created in anticipation
thereof;
(b) Liens resulting from progress payments or partial payments
under United States government contracts or subcontracts;
(i) Liens arising from legal proceedings, so long as such
proceedings are being contested in good faith by appropriate proceedings
diligently conducted and so long as execution is stayed on all judgments
resulting from any such proceedings;
(j) Liens arising in the ordinary course of business out of
pledges or deposits under workers' compensation laws, unemployment insurance,
old age pensions or other social security or retirement benefits, or similar
legislation or to secure public or statutory obligations of the Borrowers;
(k) Liens existing on Property acquired by the Borrowers in the
ordinary course of business prior to the Borrowers' acquisition of such
Property; and
(1) purchase money Liens or purchase money security interests
upon or in any fixed assets acquired or held by the Borrowers in the ordinary
course of business to secure the purchase price of such fixed assets or to
secure indebtedness incurred solely for the purpose of financing the
acquisition of such Property; provided that the aggregate principal amount of
the Debt secured by the Liens permitted by this paragraph (1) shall not, on the
date such Lien is granted and after giving effect thereto, exceed an aggregate
amount equal to 30% of the Company's Tangible Net Worth at any time.
Section 6.02. Merger or Consolidation; Asset Sales. None of the
Borrowers nor any of the Material Subsidiaries will (a) merge or consolidate
with or into any other Person or (b) sell, lease, transfer, or otherwise
dispose of any of its Property (other than the sale of inventory in the
ordinary course of business) except that so long as after giving effect thereto
no Default or Event of Default shall exist:
(i) Any corporation may merge or consolidate with any of
the Borrowers or the Material Subsidiaries provided that such Borrower
or Material Subsidiary shall be the continuing or surviving
corporation;
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(ii) Any Material Subsidiary (other than a Borrower) may
merge with any other Subsidiary of the Company;
(iii) Any Borrower or Material Subsidiary may sell, lease,
transfer or otherwise dispose of any of its assets to (A)(I) any other
Borrower or (II) any other Person who guarantees the obligations
hereunder of the Borrower or Material Subsidiary making such sale,
lease, transfer or disposition or (B) with the consent of the Agent
(not to be unreasonably withheld), any other Person if such sale or
disposition is in the ordinary course of such Borrower's or Material
Subsidiary's business and the net proceeds received from such sale or
other disposition equal or exceed (in the reasonable opinion of the
Board of Directors of the Company) the fair market value of the
Property transferred to such Person; and
(iv) Any Borrower or Material Subsidiary may sell, lease,
transfer or otherwise dispose of any assets which constitute fixed
assets if the net book value of the asset being sold does not exceed
$10,000,000 (or the Dollar Equivalent thereof); provided that, all
such asset sales permitted by this clause (iii) shall not exceed
$45,000,000 (or the Dollar Equivalent thereof) in the aggregate.
Section 6.03. Investments. None of the Borrowers will make or permit
to exist any loans, advances or capital contributions to, or make any
investment in, or purchase or commit to purchase any stock or other securities
or evidences of indebtedness of or interests in any Person, except for (a)
loans, advances, capital contributions or investments in any other Borrower,
(b) Liquid Investments, (c) cash investments in Subsidiaries and joint ventures
and, subject to the terms of Section 6.02 hereof, non-cash investments in
Subsidiaries and joint ventures, and (d) the acquisition by the Company or any
of its Subsidiaries, in a single transaction or any series of related
transactions, of any Person or the business or all or substantially all of the
assets of any Person, or any division of any Person, whether through
investment, purchase of assets, merger or otherwise, including, but not limited
to, in any transaction pursuant to which any Person that was not theretofore a
Subsidiary of the Company, becomes a Subsidiary of the Company and is
consolidated with the Company for financial reporting purposes; provided
however, in the case of any transaction subject to this clause (d), that,
giving effect to such transaction on a pro forma basis, there exists no Default
or Event of Default.
Section 6.04. Transactions With Affiliates. None of the Borrowers
shall, directly or indirectly, enter into or permit to exist any transaction or
series of transactions (including, but not limited to, the purchase, sale,
lease or exchange of Property, the making of any investment, the giving of any
guaranty or the rendering of any service) with any of their Affiliates other
than the Company or a wholly-owned Subsidiary of the Company unless either (a)
such transaction or series of transactions is on terms no less favorable to
such Borrower than those that could be obtained in a comparable arm's length
transaction with a Person that is not such an affiliate, (b) such transaction
has been approved by a majority of the disinterested members of the Company's
Board of Directors
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or (c) such transaction or series of transactions is between SMS and Pirahy in
the ordinary course of business.
Section 6.05. Compliance with ERISA. None of the Borrowers or any
Material Subsidiary will (a) terminate, or permit any Affiliate to terminate,
any Plan so as to result in any material (in the opinion of the Majority Banks)
liability of such Borrower or Material Subsidiary or (b) permit to exist any
occurrence of any Reportable Event (as defined in Title IV of ERISA), or any
other event or condition, which presents a material (in the reasonable opinion
of the Majority Banks) risk of such a termination by the PBGC of any Plan.
Section 6.06. Tangible Net Worth. The Company will not permit its
Tangible Net Worth as of the last day of any fiscal quarter to be less than (a)
$132,000,000 for the fiscal quarter ending December 31, 1997, and (b) for each
fiscal quarter thereafter, (i) an amount equal to $132,000,000 plus (ii) on a
cumulative basis, for each fiscal quarter of the Company beginning with the
fiscal quarter ending March 31, 1998 for which Net Income is a positive number,
50% of Net Income for such fiscal quarter.
Section 6.07. Fixed Charge Coverage Ratio. The Company will not permit
its Fixed Charge Coverage Ratio, as of the last day of each fiscal quarter, to
be less than (i) from the date of this Agreement through December 31, 1999, 1.3
to 1.0; and (ii) thereafter, 1.4 to 1.0; provided that, the minimum required
Fixed Charge Coverage Ratio shall be 1.25 to 1.0 for any fiscal quarter that is
a Phaseout Quarter; provided further that, if the Company shall deliver to the
Agent and the Banks a certificate of a Responsible Officer of the Company
certifying that (I) a replacement agreement has been executed and delivered
under which Philip Morris actually purchases volumes of paper during the
12-month period following the effective date of such replacement agreement in an
amount equal to at least 50% of the volumes of paper which were supplied during
the calendar year ended December 31, 1995 under the Supply Agreement (the
amount of any volumes of paper not being replaced and sold under such
replacement agreement being referred to as the "Shortfall Volumes") and (II)
the Company has sold at fair market value an amount equal to at least 75% of
the Shortfall Volumes to other customers besides Philip Morris since the date
volumes of paper began being sold under such replacement agreement, then the
minimum Fixed Charge Coverage Ratio required of the Company shall be determined
as if no Potential Phaseout Event has occurred.
Section 6.08. Leverage Ratio. The Company will not permit its Leverage
Ratio to be greater than 0.50 to 1.0.
Section 6.09. Debt. The Company will not permit (a) LTR Industries
S.A. and its Subsidiaries, (b) PDM, (c) Papeteries de Mauduit S.A. or (d) SMS
and its Subsidiaries to incur any Debt except for:
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(i) intercompany Debt owing by any such Person to either its
Subsidiaries or to any of the other Borrowers;
(ii) Debt arising under any employee benefit plan sponsored by LTR
Industries S.A., PDM or Papeteries de Mauduit S.A. or any of their
Subsidiaries;
(iii) Debt of LTR Industries S.A. in an aggregate principal amount not
to exceed FRF 30,000,000;
(iv) Debt of PDM or SMS owing to the Banks under the Credit Documents;
(v) Debt of PDM and Papeteries de Mauduit S.A. and its Subsidiaries
in an aggregate principal amount not to exceed FRF 20,000,000;
(vi) Debt of SMS and its Subsidiaries in an aggregate principal amount
not to exceed $7,500,000; and
(vii) other Debt of any such Person of the type permitted to be secured
by Section 6.01(1).
Section 6.10. Special Provisions for Material Subsidiaries of the French
Borrowers. Notwithstanding any of the provisions of this Article VI, none of the
Material Subsidiaries of any of the French Borrowers shall be under any
obligation pursuant thereto. However, the French Borrowers shall jointly procure
that any and all of their Material Subsidiaries shall comply with Sections 6.01,
6.02, 6.05 and 6.09; provided, that (i) such joint commitment of the French
Borrowers shall have the same legal effect as a "promesse de porte-fort" as
provided for under Article 1120 of the French Civil Code and (ii) the "promesse
de porte-fort" shall be deemed to have been breached upon the occurrence of any
act or omission of any of the Material Subsidiaries of the French Borrowers or
any situation relating to such Material Subsidiaries which does not comply with
any of the provisions of this Article VI.
ARTICLE VII
REMEDIES
Section 7.01. Events of Default. The occurrence of any of the following events
shall constitute an "Event of Default" under any Credit Document:
(a) Payment. Any of the Borrowers shall fail to pay any principal of any
Note when the same becomes due and payable, or any interest on the Notes or any
fee or other amount payable
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hereunder or under any other Credit Document within five Business Days after the
same becomes due and payable;
(b) Representation and Warranties. Any representation or warranty made
or deemed to be made by any of the Borrowers (or any of their of officers) in
this Agreement or in any other Credit Document shall prove to have been
incorrect in any material respect when made or deemed to be made;
(c) Covenant Breaches. Any of the Borrowers shall (i) fail to perform
or observe any covenant contained in Sections 5.05(a), 5.08 and Article VI
(other than Section 6.01) of this Agreement or (ii) fail to perform or observe
any other term or covenant set forth in this Agreement or in any other Credit
Document which is not covered by clause (i) above or any other provision of this
Section 7.01 if such failure shall remain unremedied for 10 Business Days after
the earlier of written notice of such default shall have been given to any of
the Borrowers by the Agent or any Bank;
(d) Cross-Default. (i) Any Borrower or any Material Subsidiary shall
fail to pay any principal of or premium or interest on its Debt which is
outstanding in a principal amount of at least $5,000,000 (or the Dollar
Equivalent thereof) when aggregated with all such Debt of the Borrower or
Material Subsidiary so in default (but excluding Debt evidenced by the Notes)
when the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), (ii) any other event shall occur
or condition shall exist under any agreement or instrument relating to Debt
which is outstanding in a principal amount of at least $5,000,000 (or the Dollar
Equivalent thereof) when aggregated with all such Debt of the Borrower so in
default, and shall continue after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt; or
(iii) any such Debt shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment), prior to the
stated maturity thereof;
(e) Insolvency. Any Borrower or Material Subsidiary shall generally not
pay its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against any Borrower
or Material Subsidiary seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee or other
similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against a Borrower or Material
Subsidiary, either such proceeding shall remain undismissed for a period of 60
days or any of the actions sought in such proceeding shall occur; or any
Borrower or Material Subsidiary shall take any corporate action to authorize any
of the actions set forth above in this paragraph (e);
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(f) Judgments. Any judgment, decree or order for the payment of money
shall be rendered against any Borrower or any Material Subsidiary in an amount
in excess of $10,000,000 (or the Dollar Equivalent thereof) if rendered solely
against the Borrowers and/or their Subsidiaries, or for which such Borrower's or
Material Subsidiary's allocated portion of which exceeds $10,000,000 (or the
Dollar Equivalent thereof) and either (i) such judgment, decree or order remains
unsatisfied and in effect for a period of 60 consecutive days or more without
being vacated, discharged, satisfied or stayed or bonded pending appeal or (ii)
enforcement proceedings shall have been commenced by any creditor upon such
judgment, decree or order;
(g) Change of Control. The Company shall cease to own, either directly
or indirectly, all of the shares of common stock in the French Borrowers, SMS
and the other Material Subsidiaries necessary to maintain the ownership
percentages held by the Company in the French Borrowers SMS and the Material
Subsidiaries on the date of this Agreement;
(h) Termination Events. Any Termination Event with respect to a Plan
shall have occurred, and, 30 days after notice thereof shall have been given to
any Borrower by the Agent (i) such Termination Event shall not have been
corrected and (ii) the then present value of such Plan's vested benefits exceeds
the then current value of assets accumulated in such Plan by an amount that
would reasonably be expected to cause or to have a Material Adverse Change (or
in the case of a Termination Event involving the withdrawal of a "substantial
employer" (as defined it Section 4001 (a)(2) of ERISA), the withdrawing
employer's proportionate share of such excess shall exceed such amount);
(i) Plan Withdrawals. Any Borrower or any member of the Controlled
Group a employer under a Multiemployer Plan shall have made a complete or
partial withdrawal from such Multiemployer Plan and the plan sponsor of such
Multiemployer Plan shall have notified such withdrawing employer that such
employer has incurred a withdrawal liability in an annual amount that could
reasonably be expected to cause or to have a Material Adverse Change;
(j) Guaranty. Any of the guaranty provisions in this Agreement shall
for any reason cease to be valid and binding on the Company or the Company shall
so state in writing; or
(k) Supply Agreement. There shall have been a termination or
cancellation of the Supply Agreement or (ii) Philip Morris shall have received
any portion of its requirements of paper which would otherwise be supplied by
the Company under the Supply Agreement (but excluding any volumes of paper
supplied to Philip Morris by another Person due solely to the Company's
inability to deliver such volumes of paper) from any Person other than the
Company and either (A) a replacement agreement has not been executed and
delivered under which Philip Morris actually purchases volumes of paper during
the 12-month period following the effective date of such replacement agreement
in an amount equal to at least 50% of the volumes of paper which were supplied
during the calendar year ended December 31, 1995 under the Supply Agreement (the
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amount of any volumes of paper not being replaced and sold under such
replacement agreement being referred to as the "Shortfall Volumes") or (B) the
Company shall not have sold at fair market value an amount equal to at least 75%
of the Shortfall Volumes to other customers besides Philip Morris within the
12-month period occurring after the date volumes of paper began being sold under
the replacement agreement; or
Section 7.02. Optional Acceleration of Maturity. If any Event of Default
(other than an Event of Default pursuant to paragraph (e) of Section 7.01) shall
have occurred and be continuing, then, and in any such event the Agent (i) shall
at the request of, or may with the consent of, the Majority Banks, by notice to
the Borrowers, declare the obligation of each Bank to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request of, or may with the consent of, the Majority Banks, by notice to the
Borrowers, declare the Notes, all interest thereon, and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Notes, all such interest, and all such amounts shall become and be forthwith due
and payable in full, without presentment, demand, protest or further notice of
any kind (including, without limitation, any notice of intent to accelerate or
notice of acceleration), all of which are hereby expressly waived by the
Borrowers;
Section 7.03. Automatic Acceleration of Maturity. If any Event of Default
pursuant to paragraph (e) of Section 7.01 shall occur the obligation of each
Bank to make Advances shall immediately and automatically be terminated and the
Notes, and all other amounts payable under this Agreement shall immediately and
automatically become and be due and payable in full, without presentment,
demand, protest or any notice of any kind (including, without limitation, any
notice of intent to accelerate or notice of acceleration), all of which are
hereby expressly waived by the Borrowers.
Section 7.04. Non-exclusivity of Remedies. No remedy conferred upon the Agent
is intended to be exclusive of any other remedy, and each remedy shall be
cumulative of all other remedies existing by contract, at law, in equity, by
statute or otherwise.
Section 7.05. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent, if any, specified by Section 7.02 to authorize the
Agent upon the consent of the Majority Banks to declare the Notes and any other
amount payable hereunder due and payable pursuant to the provisions of Section
7.02 or the automatic acceleration of the Notes and all amounts payable under
this Agreement pursuant to Section 7.03, each Bank is hereby authorized at any
time and from time-to-time, 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 and other indebtedness at any time owing by such Bank
to or for the credit or the account of the Borrowers against any and all of the
obligations of the Borrowers now or hereafter existing under this Agreement, the
Notes, and the other Credit Documents, irrespective of whether or not such Bank
shall have made any demand under this Agreement, the
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Notes, or such other Credit Documents, and although such obligations may be
unmatured. Each Bank agrees to promptly notify the Borrowers after any such
set-off and application made by it, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of each Bank under this Section are in addition to any other rights and remedies
(including, without limitation, other rights of set-off) which such Bank may
have.
ARTICLE VIII
THE GUARANTY
Section 8.01. Guaranty. The Company hereby unconditionally and irrevocably
guarantees the punctual payment of the Guaranteed Obligations when due, whether
at stated maturity, by acceleration or otherwise, and agrees to pay any and all
expenses (including reasonable counsel fees and expenses) incurred by the Agent
and the Banks in enforcing any rights under this Section 8.01. Without limiting
the generality of the foregoing, the Company's liability shall extend to all
amounts which constitute part of the Guaranteed Obligations and are owed by the
Company even if they are declared unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding involving any of
the French Borrowers or SMS. The Company will pay to the Banks all amounts due
and payable under this Section 8.01 in French Francs or Dollars, as applicable,
in immediately available funds one Business Day after demand from the Agent.
Section 8.02. Guaranty Absolute. The Company guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Credit
Agreement and the Notes, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Bank with respect thereto. The guaranty provided for in Section
8.01 is a guaranty of payment, not of collection and the Company's obligations
thereunder are primary, not secondary. The obligations of the Company under
Section 8.0l are independent of the Guaranteed Obligations, and a separate
action or actions may be brought and prosecuted against the Company to enforce
such obligations, irrespective of whether any action is brought against the
French Borrowers, SMS or any other Person or whether the French Borrowers, SMS
or any other Person is joined in any such action or actions. The liability of
the Company under Section 8.01 shall be absolute and unconditional irrespective
of:
(a) any lack of validity or enforceability of any other provision of the
Credit Agreement, the Notes or any other Credit Document;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Guaranteed Obligations or any other liabilities, or
any other amendment or waiver of or any consent to departure from the Credit
Agreement, the Notes or any other Credit Document,
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including, without limitation, any increase in the Guaranteed Obligations or any
other liabilities resulting from the extension of additional credit to the
French Borrowers or SMS or otherwise;
(c) any taking, exchange, release or non-perfection of any collateral (if
any), or any taking, release, amendment or waiver of or consent to departure
from any other guaranty for all or any of the Guaranteed Obligations or any
other liabilities;
(d) any manner of application of collateral (if any), or proceeds thereof or
of collections on account of any other guaranty to all or any of the Guaranteed
Obligations or any other liabilities, or any manner of sale or other disposition
of any collateral for all or any of the Guaranteed Obligations or any other
liabilities or any other assets of the French Borrowers or SMS;
(e) any change, restructuring or termination of the corporate structure or
existence of the French Borrowers or SMS; or
(f) any other circumstances which might otherwise constitute a defense
available to, or a discharge of, the French Borrowers, SMS or a guarantor (other
than the defense of prior payment).
Section 8.03. Waiver. The Company hereby waives promptness, diligence, notice
of acceptance and any other notice with respect to any of the Guaranteed
Obligations and the guaranty provided for in Section 8.01 and any requirement
that the Agent or any Bank protect, secure, perfect or insure any security
interest or other Lien or any property subject thereto or exhaust any right to
take any action against the Company or any other Person or any collateral.
Section 8.04. Subrogation. (a) Until such time as the Guaranteed Obligations
are paid in full, the Company irrevocably waives any and all rights to which it
may be entitled, by operation of law or otherwise, by making any payment
hereunder or otherwise to be subrogated to the rights of the Agent and the Banks
against the French Borrowers, SMS or any other Person with respect to such
payment or otherwise to be reimbursed, indemnified or exonerated by the French
Borrowers, SMS or any other Person in respect thereof. If any amount shall be
paid to the Company on account of such subrogation in violation of the preceding
sentence, such amount shall be held in trust for the benefit of the Agent and
the Banks and shall forthwith be paid to the Agent to be credited against and
applied upon the Guaranteed Obligations, whether matured or unmatured, in such
order as may be determined by the Majority Banks.
(b) The Company agrees that, to the extent that any Borrower makes payment to
the Agent or any Bank, or the Agent or any Bank receives any proceeds of
collateral, and such payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, or otherwise
required to be repaid, then to the extent of such repayment the Guaranteed
Obligations shall be reinstated and continued in full force and effect as of the
date such initial payment or collection of proceeds occurred. The Company shall
defend and indemnify the Agent
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and the Banks from and against any claim or loss under this subsection 8.04
(including reasonable attorneys' fees and expenses) in the defense of any such
action or suit, but excluding any such losses, liabilities, claims, damages, or
expenses incurred by reason of the gross negligence, bad faith or willful
misconduct of the Agent and the Banks.
ARTICLE IX
THE AGENT
Section 9.01. Authorization and Action. Each Bank hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof and of the other Credit Documents, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement or any other Credit Document (including, without limitation,
enforcement or collection of the Notes), the Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Banks, and such instructions
shall be binding upon all Banks and all holders of Notes; provided, however,
that the Agent shall not be required to take any action which exposes the Agent
to personal liability or which is contrary to this Agreement, any other Credit
Document, or applicable law.
Section 9.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken (including the Agent's own negligence) by it or them under
or in connection with this Agreement or the other Credit Documents, except for
its or their own gross negligence, bad faith or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (a) may treat the
payee of any Note as the holder thereof until the Agent receives written notice
of the assignment or transfer thereof signed by such payee and in form
satisfactory to the Agent; (b) may consult with legal counsel (including counsel
for the Borrowers), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Bank and shall not be
responsible to any Bank for any statements, warranties or representations made
in or in connection with this Agreement or the other Credit Documents; (d) shall
not have any duty to ascertain or to inquire as to the performance or observance
of any of the terms, covenants or conditions of this Agreement or any other
Credit Document on the part of the Borrowers or their Subsidiaries or to inspect
the property (including the books and records) of the Borrowers or their
Subsidiaries; (e) shall not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other Credit Document; and (f) shall incur no liability under
or in respect of this Agreement or any other Credit Document by acting upon any
notice, consent, certificate or other instrument or writing (which may be by
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telecopier, telegram, cable or telex) believed by it to be genuine and signed or
sent by the proper party or parties.
Section 9.03. The Agent and Its Affiliates. With respect to its Commitments,
the Advances made by it and the Notes issued to it, the Agent shall have the
same rights and powers under this Agreement as any other Bank and may exercise
the same as though it were not the Agent. The term "Bank" or "Banks" shall,
unless otherwise expressly indicated, include the Agent in its individual
capacity. The Agent and its Affiliates may accept deposits from, lend money to,
act as trustee under indentures of, and generally engage in any kind of business
with, the Borrowers or any of their Subsidiaries, and any Person who may do
business with or own securities of the Borrowers or any such Subsidiaries, all
as if the Agent were not an agent hereunder and without any duty to account
therefor to the Banks.
Section 9.04. Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank and based on
the financial statements referred to in Section 4.05 and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement.
SECTION 9.05. INDEMNIFICATION. THE BANKS SEVERALLY AGREE TO INDEMNIFY THE
AGENT (TO THE EXTENT NOT REIMBURSED BY THE BORROWERS), ACCORDING TO THEIR
RESPECTIVE PRO RATA SHARES FROM AND AGAINST ANY AND ALL LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED
ON, INCURRED BY, OR ASSERTED AGAINST THE AGENT IN ANY WAY RELATING TO OR ARISING
OUT OF THIS AGREEMENT OR ANY ACTION TAKEN OR OMITTED BY THE AGENT UNDER THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT (INCLUDING THE AGENT'S OWN NEGLIGENCE),
PROVIDED THAT NO BANK SHALL BE LIABLE FOR ANY PORTION OF SUCH LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES OR DISBURSEMENTS RESULTING FROM THE AGENT'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. WITHOUT LIMITATION OF THE FOREGOING, EACH BANK AGREES TO REIMBURSE
THE AGENT PROMPTLY UPON WRITTEN DEMAND FOR ITS RATABLE SHARE OF ANY
OUT-OF-POCKET EXPENSES (INCLUDING REASONABLE COUNSEL FEES) INCURRED BY THE 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 OR ANY OTHER CREDIT DOCUMENT, TO THE
EXTENT THAT THE AGENT IS NOT REIMBURSED FOR SUCH EXPENSES BY THE BORROWERS. UPON
THE REQUEST OF ANY BANK, THE AGENT SHALL SUPPLY DOCUMENTATION REASONABLY
EVIDENCING SUCH EXPENSES.
Section 9.06. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Banks and the Borrowers and may be removed at any
time with or without cause by
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the Majority Banks upon receipt of written notice from the Majority Banks to
such effect. Upon receipt of notice of any such resignation or removal, the
Majority Banks shall have the right to appoint a successor Agent subject to, if
an Event of Default has not occurred and is not continuing, the consent of the
Company, which consent shall not be unreasonably withheld. If no successor Agent
shall have been so appointed, and shall have accepted such appointment, within
30 days after the retiring Agent's giving of notice of resignation or the
Majority Banks' removal of the retiring Agent then the retiring Agent may, on
behalf of the Banks and the Borrower, appoint a successor Agent, which shall be
a commercial bank meeting the financial requirements of an Eligible Assignee.
Upon the acceptance of any appointment as Agent by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement
and the other Credit Documents. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article IX shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement and the other Credit Documents.
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement, the Notes, or any other Credit Document, nor consent to any
departure by any Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Majority Banks and the Borrowers, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing and signed by all the Banks and the
Borrower, do any of the following: (a) increase the Commitments of the Banks,
(b) reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder or under any other Credit Document, (c) postpone any
date fixed for any scheduled payment of principal of, or interest on, the Notes
or any fees or other amounts payable hereunder, (d) change the number of Banks
which shall be required for the Banks or any of them to take any action
hereunder or under any other Credit Document, (e) amend Section 2.12 or this
Section 10.01, (f) release the Company from its obligations under Article VIII;
or (g) amend the definition of "Majority Banks"; and provided, further, that (i)
no amendment, waiver or consent shall, unless in writing and signed by the Agent
in addition to the Banks required above to take such action, affect the rights
or duties of the Agent under this Agreement or any other Credit Document and
(ii) no waiver of any of the conditions specified in Article III shall be
effective against any Bank not executing such waiver.
Section 10.02. Notices, Etc. All notices and other communications shall be in
writing (including telecopy or telex) and mailed, telecopied, telexed, hand
delivered or delivered by a nationally recognized overnight courier, if to the
Company or any other Borrower, at its address as
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set forth on Schedule 1; if to any Bank, at its U.S. Lending Office opposite
its name on Schedule 1; if to the Agent, at its address for notices set forth in
Schedule 1; and if a Notice of Borrowing or a Notice of Conversion or
Continuation to the Agent at the U.S. Lending Office of the Agent and, if
different, the Applicable Lending Office for the Agent specified opposite its
name on Schedule 1 or, as to each party, at such other address or
teletransmission number as shall be designated by such party in a written notice
to the other parties. All such notices and communications shall, when mailed,
telecopied, telexed or hand delivered or delivered by overnight courier be
effective: upon receipt, if mailed, when telecopy transmission is completed,
when confirmed by telex answer-back or when delivered, respectively, except that
notices and communications to the Agent pursuant to Article II or IX shall not
be effective until received by the Agent.
Section 10.03. No Waiver; Remedies. No failure on the part of any Bank or the
Agent to exercise, and no delay in exercising, any right hereunder or under any
Note shall operate as a waiver thereof; nor shall any single or partial exercise
of any such right preclude any other or further exercise thereof or the exercise
of any other right. The remedies provided in this Agreement are cumulative and
not exclusive of any remedies provided by law.
Section 10.04. Costs and Expenses. Each of the Borrowers agrees to pay on
demand all reasonable and documented out-of-pocket costs and expenses of the
Agent in connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other Credit
Documents including, without limitation, the reasonable fees and out-of-pocket
expenses of Bracewell & Patterson, L.L.P., counsel for the Agent, and with
respect to advising the Agent as to its rights and responsibilities under this
Agreement, and, after the occurrence of an Event of Default, all reasonable
out-of-pocket costs and expenses, if any, of Agent and each Bank (including,
without limitation, reasonable counsel fees and expenses of the Agent and each
Bank) in connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the Notes and the other Credit
Documents.
Section 10.05. Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrowers and the Agent, and when the Agent
shall have, as to each Bank, either received a counterpart hereof executed by
such Bank or been notified by such Bank that such Bank has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrowers, the
Agent and each Bank and their respective successors and assigns, except that
none of the Borrowers shall have the right to assign its rights or delegate its
duties under this Agreement or any interest in this Agreement without the prior
written consent of each Bank.
Section 10.06. Bank Assignments and Participations.
(a) Assignments. Any Bank may assign to one or more banks or other entities
all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitments, the
Advances owing to it, and the Notes held by it; provided, however, that (i) each
such assignment shall be of a constant, and not a varying, percentage of all of
such
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Bank's rights and obligations under this Agreement, (ii) the amount of the
Commitments and Advances of such Bank being assigned in the various facilities
evidenced hereby pursuant to each such assignment (determined as of the date of
the Assignment and Acceptance with respect to such assignment) shall in no event
be less than $5,000,000 (or the Dollar Equivalent) (or if less, the amount of
such Bank's remaining Commitments) in the aggregate, (iii) each such assignment
shall be to an Eligible Assignee, (iv) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with the Notes subject to such
assignment, (v) each Eligible Assignee (other than the Eligible Assignee of the
Agent) shall pay to the Agent a $2,500 administrative fee, and (vi) the Agent
shall retain, until the occurrence of an Event of Default, aggregate Commitments
which constitute at least 15% of the total Commitments of the Banks. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least three Business Days after the execution thereof, (A) the assignee
thereunder shall be a party hereto for all purposes and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Bank hereunder
and (B) such Bank thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of such Bank's rights and obligations under this Agreement, such Bank
shall cease to be a party hereto).
(b) Term of Assignments. By executing and delivering an Assignment and
Acceptance, the Bank thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such Bank makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency of
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such Bank makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrowers or the
performance or observance by the Borrowers of any of their obligations under
this Agreement or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section 4.05 and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon the Agent, such
Bank or any other Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto; and (vi)
such assignee agrees that it will perform in accordance with their terms all of
the obligations which by the terms of this Agreement are required to be
performed by it as a Bank.
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<PAGE> 74
(c) The Register. The Agent shall maintain at its address refers to in Section
10.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Banks and
the Commitments of, and principal amount of the Advances owing to, each Bank
from time-to-time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agent and the Banks may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrowers or any Bank at any
reasonable time and from time-to-time upon reasonable prior notice.
(d) Procedures. Upon its receipt of an Assignment and Acceptance executed by a
Bank and an Eligible Assignee, together with the U.S. Revolving Notes, French
Revolving Notes, U.S. Term Notes, French Term Notes or Spanish Term Notes
subject to such assignment, the Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of the attached Exhibit A,
(i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register, and (iii) give prompt notice thereof to the
Borrowers. Within five Business Days after its receipt of such notice, the
applicable Borrower, at its own expense, shall execute and deliver to the Agent
in exchange for the surrendered U.S. Revolving Note, French Revolving Note, U.S.
Term Note, French Term Note and Spanish Term Note, a new U.S. Revolving Note,
French Revolving Note, U.S. Term Note, French Term Note and Spanish Term Note to
the order of such Eligible Assignee in an amount equal to the U.S. Revolving
Commitment and French Revolving Commitment assumed and U.S. Term Advances,
French Term Advances and Spanish Term Advances purchased by it pursuant to such
Assignment and Acceptance and, if such Bank has retained any Commitments
hereunder, a new U.S. Revolving Note, a new French Revolving Note, a new U.S.
Term Note, a new French Term Note and a new Spanish Term Note to the order of
such Bank in an amount equal to the U.S. Revolving Commitment, French Revolving
Commitment, U.S. Term Advances, French Term Advances and Spanish Term Advances,
respectively, retained by it hereunder. Such new Notes shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of the attached Exhibits B-1, B-2, B-3, B-4 and B-5.
(e) Participations. Each Bank may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitments, the Advances owing to it, and the Notes held by it); provided,
however, that (i) such Bank's obligations under this Agreement (including,
without limitation, its Commitments to the Borrowers hereunder) shall remain
unchanged, (ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Bank shall remain the
holder of any such Notes for all purposes of this Agreement, (iv) the Borrowers,
the Agent and the other Banks shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Agreement, and (v) such Bank shall not require the participant's consent to any
matter under this Agreement, except for change in the principal amount of the
Notes, reductions in fees or interest, change in amortization of Term Advances,
or extending the Maturity Date. Each of the Borrowers hereby agrees that a Bank
may pass through to any of its participants the same rights under Sections 2.08,
2.09, 2.1 1 (c), and 10.07
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to the extent of their respective participations, provided that no
participant shall be able to collect in excess of amounts payable to the Bank
selling to such participant under such Sections in respect of the interest sold
to such participant or to collect any such amounts from the Borrowers.
(f) Confidentiality. Each Bank may furnish any information concerning the
Borrowers and their Subsidiaries in the possession of such Bank from
time-to-time to assignees and participants (including prospective assignees and
participants); provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall, in order to preserve the
confidentiality of any confidential information relating to the Borrowers and
their Subsidiaries received by it from such Bank, promptly execute and deliver
to the Agent and the Borrowers (i) a Confidentiality Agreement in the form of
the attached Exhibit G and (ii) a Confidentiality Agreement in the form of the
attached Exhibit H.
(g) Compliance with Securities Laws. All transfers of any interests in the
Notes shall be in compliance with all applicable Federal and state securities
laws.
SECTION 10.07. INDEMNIFICATION. EACH OF THE BORROWERS SHALL INDEMNIFY THE
AGENT, THE BANKS AND EACH AFFILIATE THEREOF AND THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS FROM, AND DISCHARGE, RELEASE, AND HOLD EACH OF
THEM HARMLESS AGAINST, ANY AND ALL LOSSES, LIABILITIES, CLAIMS OR DAMAGES TO
WHICH ANY OF THEM MAY BECOME SUBJECT, INSOFAR AS SUCH LOSSES, LIABILITIES,
CLAIMS OR DAMAGES ARISE OUT OF OR RESULT FROM (I) ANY ACTUAL OR PROPOSED USE BY
THE BORROWERS OR ANY AFFILIATE OF THE BORROWERS OF THE PROCEEDS OF ANY ADVANCE,
(II) ANY BREACH BY THE BORROWERS OF ANY PROVISION OF THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT, (III) ANY INVESTIGATION, LITIGATION OR OTHER PROCEEDING
(INCLUDING ANY THREATENED INVESTIGATION OR PROCEEDING) RELATING TO THE FOREGOING
BROUGHT BY ANY PERSON OTHER THAN A BORROWER, OR (IV) ANY ENVIRONMENTAL CLAIM OR
REQUIREMENT OF ENVIRONMENTAL LAWS CONCERNING OR RELATING TO THE PRESENT OR
PREVIOUSLY-OWNED OR OPERATED PROPERTIES, OR THE OPERATIONS OR BUSINESS, OF THE
BORROWERS OR ANY OF THEIR SUBSIDIARIES, AND EACH OF THE BORROWERS SHALL
REIMBURSE THE AGENT AND EACH BANK, AND EACH AFFILIATE THEREOF AND THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, UPON DEMAND FOR ANY
REASONABLE OUT-OF-POCKET EXPENSES (INCLUDING LEGAL FEES) INCURRED IN CONNECTION
WITH ANY SUCH INVESTIGATION, LITIGATION OR OTHER PROCEEDING; AND EXPRESSLY
INCLUDING ANY SUCH LOSSES, LIABILITIES, CLAIMS, DAMAGES, OR EXPENSE INCURRED BY
REASON OF THE PERSON BEING INDEMNIFIED'S OWN NEGLIGENCE, BUT EXCLUDING ANY SUCH
LOSSES, LIABILITIES, CLAIMS, DAMAGES OR EXPENSES INCURRED BY REASON OF THE GROSS
NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT OF THE PERSON TO BE INDEMNIFIED, OR
IN THE CASE OF CLAUSE (IV) ABOVE, CAUSED BY THE AFFIRMATIVE ACT OF THE AGENT OR
SUCH BANK.
Section 10.08. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
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Section 10.09. Survival of Representations. etc. All representations and
warranties contained in this Agreement or made in writing by or on behalf of the
Borrower in connection herewith shall survive the execution and delivery of this
Agreement and the Credit Documents, the making of the Advances and any
investigation made by or on behalf of the Banks, none of which investigations
shall diminish any Bank's right to rely on such representations and warranties.
All obligations of the Borrower provided for in Sections 2.08, 2.09, 2.11 (c),
and 10.07 shall survive any termination of this Agreement and repayment in full
of the Obligations.
Section 10.10. Severability. In case one or more provisions of this Agreement
or the other Credit Documents shall be invalid, illegal or unenforceable in any
respect under any applicable law, the validity, legality and enforceability of
the remaining provisions contained herein or therein shall not be affected or
impaired thereby.
Section 10.11. Usury Not Intended. It is the intent of the Borrowers and each
Bank in the execution and performance of this Agreement and the other Credit
Documents to contract in strict compliance with applicable usury laws, including
conflicts of law concepts, governing the Advances of each Bank including such
applicable laws of the State of New York and the United States of America from
time-to-time in effect. In furtherance thereof, the Banks and the Borrowers
stipulate and agree that none of the terms and provisions contained in this
Agreement or the other Credit Documents shall ever be construed to create a
contract to pay, as consideration for the use, forbearance or detention of
money, interest at a rate in excess of the Maximum Rate and that for purposes
hereof "interest" shall include the aggregate of all charges which constitute
interest under such laws that are contracted for, charged or received under this
Agreement; and in the event that, notwithstanding the foregoing, under any
circumstances the aggregate amounts taken, reserved, charged, received or paid
on the Advances, include amounts which by applicable law are deemed interest
which would exceed the Maximum Rate, then such excess shall be deemed to be a
mistake and each Bank receiving same shall credit the same on the principal of
its Notes (or if such Notes shall have been paid in full, refund said excess to
the Borrowers). In the event that the maturity of the Notes are accelerated by
reason of any election of the holder thereof resulting from any Event of Default
under this Agreement or otherwise, or in the event of any required or permitted
prepayment, then such consideration that constitutes interest may never include
more than the Maximum Rate and excess interest, if any, provided for in this
Agreement or otherwise shall be canceled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall be credited on the
applicable Notes (or, if the applicable Notes shall have been paid in full,
refunded to the Borrowers of such interest). In determining whether or not the
interest paid or payable under any specific contingencies exceeds the Maximum
Rate, the Borrowers and the Banks shall to the maximum extent permitted under
applicable law amortize, prorate, allocate and spread in equal parts during the
period of the full stated term of the Notes all amounts considered to be
interest under applicable law at any time contracted for, charged, received or
reserved in connection with the Obligations. The provisions of this Section
shall control over all other provisions of this Agreement or the other Credit
Documents which may be in apparent conflict herewith.
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<PAGE> 77
Section 10.12. Global Effective Rate. Because the interest rates applicable to
certain Types of French Revolving Advances and French Term Advances are
variable, it is not possible to calculate the "taux effectif global" of the
credit facility made available to the French Borrowers in accordance with
Article L313-2 of the French "Code de la Consommation." However, the French
Borrowers hereby acknowledge that they have made their own determination to
satisfy themselves as to the effective all-in cost of the credit facility.
Section 10.13. Concerning Joint and Several Liability of the French Borrowers
of French Revolving Advances.
(a) Each of the French Borrowers is accepting joint and several liability
hereunder in consideration of the financial accommodations to be provided by the
Banks and the Agent under this Agreement with respect to the French Revolving
Advances, for the mutual benefit, directly and indirectly, of each of the French
Borrowers and in consideration of the undertakings of each of the French
Borrowers to accept joint and several liability for the obligations of each of
them with respect to the French Revolving Advances.
(b) Each of the French Borrowers jointly and severally hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor, joint
and several liability with the other French Borrower, with respect to the
payment and performance of all of the obligations arising under this Agreement
in respect of the French Revolving Advances, it being the intention of the
parties hereto that all the obligations with respect to the French Revolving
Advances shall be the joint and several obligations of all the French Borrowers
without preferences or distinction among them.
(c) If and to the extent that any of the French Borrowers shall fail to make
any payment with respect to any of the obligations hereunder with respect to the
French Revolving Advances as and when due or to perform any of such obligations
in accordance with the terms thereof, then in each such event the other French
Borrower will make such payment with respect to, or perform, such obligation.
(d) The obligations of each French Borrower under the provisions of this
Section 10.13 constitute full recourse obligations of such French Borrower
enforceable against it to the full extent of its properties and assets,
irrespective of the validity, regularity or enforceability of this Agreement or
any other circumstance whatsoever.
(e) Except as otherwise expressly provided herein or in the other Credit
Documents, each French Borrower hereby waives notice of acceptance of its joint
and several liability, notice of any and all French Revolving Advances made
under this Agreement, notice of occurrence of any Event of Default, or of any
demand for any payment under this Agreement, notice of any action at any time
taken or omitted by the Banks or the Agent under or in respect of any of the
obligations hereunder, any requirement of diligence and, generally, all demands,
notices and other formalities of every kind
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<PAGE> 78
in connection with this Agreement. Each French Borrower hereby assents to, and
waives notice of, any extension or postponement of the time for the payment of
any of the obligations hereunder with respect to the French Revolving Advances,
the acceptance of any partial payment thereon, any waiver, consent or other
action or acquiescence by the Banks or the Agent at any time or times in respect
of any default by any French Borrower in the performance or satisfaction of any
term, covenant, condition or provision of this Agreement, any and all other
indulgences whatsoever by the Banks or the Agent in respect of any of the
obligations hereunder related to the French Revolving Advances, and the taking,
addition, substitution or release, in whole or in part, at any time or times, of
any security for any of such obligations or the addition, substitution or
release, in whole or in part, of any French Borrower. Without limiting the
generality of the foregoing, each French Borrower assents to any other action or
delay in acting or failure to act on the part of the Banks or the Agent
including, without limitation, any failure strictly or diligently to assert any
right or to pursue any remedy or to comply fully with applicable laws or
regulations thereunder, which might, but for the provisions of this Section
10.13, afford grounds for terminating, discharging or relieving such French
Borrower, in whole or in part, from any of its obligations under this Section
10.13, it being the intention of each French Borrower that, so long as any of
the obligations hereunder remain unsatisfied, the obligations of such French
Borrower under this Section 10.13 shall not be discharged except by performance
and then only to the extent of such performance. The obligations of each French
Borrower under this Section 10.13 shall not be diminished or rendered
unenforceable by any winding up, reorganization, arrangement, liquidation,
reconstruction or similar proceeding with respect to the other French Borrower
or the Banks or the Agent. The joint and several liability of the French
Borrowers hereunder shall continue in full force and effect notwithstanding any
absorption, merger, amalgamation or any other change whatsoever in the name,
membership, constitution or place of formation of either French Borrower or the
Banks or the Agent.
(f) The provisions of this Section 10.13 are made for the benefit of the Banks
and the Agent and their successors and assigns, and may be enforced by them in
accordance with the terms of this Agreement from time to time against either of
the French Borrowers as often as occasion therefor may arise and without
requirement on the part of the Banks or the Agent first to marshall any of their
claims or to exercise any of their rights against the other French Borrower or
to exhaust any remedies available to them against the other French Borrower or
to resort to any other source or means of obtaining payment of any of the
obligations hereunder or to elect any other remedy. The provisions of this
Section 10.13 shall remain in effect until all the obligations hereunder shall
have been paid in full or otherwise fully satisfied. If at any time, any
payment, or any part thereof, made in respect of any of the obligations, is
rescinded or must otherwise be restored or returned by the Banks or the Agent
upon the insolvency, bankruptcy or reorganization of the French Borrowers, or
otherwise, the provisions of this Section 10.13 will forthwith be reinstated in
effect, as though such payment had not been made.
(g) Notwithstanding any of the foregoing to the contrary, the provisions of
this Section 10.13 shall only apply to the French Revolving Advances.
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<PAGE> 79
Section 10.14. Judgment Currency. The obligations of the Borrowers hereunder
and under the Notes to make payments in Dollars or in French Francs (the
"Obligation Currency") shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any currency
other than the Obligation Currency except to the extent to which such tender or
recovery shall result in the effective receipt by the Banks of the full amount
of the Obligation Currency expressed to be payable hereunder and under the
Notes, and accordingly such obligations of the Borrowers shall be enforceable as
an alternate or additional cause of action for the purpose of recovery in the
Obligation Currency of the amount (if any) by which such effective receipt shall
fall short of the full amount of the Obligation Currency expressed to be payable
hereunder and under the Notes and shall not be affected by judgment being
obtained for any other sums due under this Agreement and the Notes.
Section 10.15. Governing Law; Consent to Jurisdiction.
(a) THIS AGREEMENT AND EACH OF THE OTHER CREDIT DOCUMENTS SHALL BE GOVERNED BY
AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
(b) Any litigation based hereon, or arising out of, under, or in connection
with, this Agreement or any other Credit Document, or any course of conduct,
course of dealing, statements (whether oral or written) or actions of the
Borrowers, the Agent or the Banks relating to this Agreement or any other Credit
Document may be brought and maintained in the courts of the State of New York
sitting in the County of New York or in the United States District Court for the
Southern District of New York. Each of the Borrowers, the Agent and the Banks
hereby expressly and irrevocably submits to the jurisdiction of the courts of
the State of New York sitting in the County of New York and the United States
District Court for the Southern District of New York for the purpose of any such
litigation as set forth above and irrevocably agrees to be bound by any judgment
rendered thereby in connection with such litigation. To the fullest extent
permitted by applicable Laws, each of the Borrowers, the Agent and the Banks
further irrevocably consents to the service of process, by registered mail,
postage prepaid, or by personal service within or without the State of New York.
Each of the Borrowers, the Agent and the Banks hereby expressly and irrevocably
waives, to the fullest extent permitted by Law, any objection which it may have
or hereafter may have to the laying of venue of any such litigation brought in
any such court referred to above and any claim that any such litigation has been
brought in an inconvenient forum. To the extent that any of the Borrowers, the
Agent or the Banks has or hereafter may acquire any immunity from jurisdiction
of any court or from any legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution or otherwise) with
respect to itself or its property, each of the Borrowers, the Agent and the
Banks hereby irrevocably waives, to the fullest extent permitted by applicable
Laws, such immunity in respect of its obligations under this Agreement and the
other Credit Documents.
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<PAGE> 80
Section 10.16. Confidentiality.
(a) All information and documents concerning the Borrowers or their respective
Subsidiaries supplied by the Borrowers to the Banks pursuant to this Agreement
which are not otherwise in the public domain shall be held in confidence by the
Banks and the Banks shall not disclose such information and documents to any
other Person, except that the Borrowers hereby authorize the Banks to disclose
any information obtained pursuant to this Agreement (i) to any independent
auditors of a Bank, (ii) to any Person who is an Eligible Assignee and executes
and delivers a confidentiality agreement to the Company and the Agents that is
otherwise consistent with this Section 10.16 (solely for the purpose of
evaluating such proposed participation or assignment) whereby such Eligible
Assignee agrees, for the benefit of the Borrowers, in writing, to be bound by
the same confidentiality obligations as those imposed on the Banks hereunder,
and, in the event that such financial institution does not enter into any
proposed participation, such financial institution agrees to return to the
furnishing Bank all information furnished to it hereunder, (iii) to an Affiliate
of the Bank making the disclosure and to any employees of such Bank or such
Affiliate on a need to know basis, and then only to the extent that such
Affiliate and employees have agreed for the benefit of the Borrowers to be bound
to the foregoing confidentiality provisions, and (iv) to all appropriate
governmental regulatory authorities to the extent requested or subpoenaed in
accordance with all applicable notices and procedures, but only to the extent
permitted by applicable laws and regulations, including those applying to
classified material. Upon receipt of a request, demand, or subpoena to disclose
any information to any Person other than governmental bank examiners and
independent auditors of a Bank, the affected Bank will promptly notify, to the
extent not prohibited by applicable law, regulations, or court order, the
Borrowers and the Agent of such request.
(b) The Agent and the Banks acknowledge that the Supply Agreement, a copy of
which has been delivered to the Agent, is regarded both by the Company and
Philip Morris as being highly confidential in nature. Each Bank party hereto,
whether on the date hereof or as an assignee, acknowledges and agrees that the
Agent shall not be obligated to deliver to any Bank (i) a copy of the Supply
Agreement without the prior written consent of Philip Morris (which consent may
be withheld at the discretion of Philip Morris) or (ii) any non-public
information regarding the Supply Agreement without such Bank executing a
confidentiality agreement, substantially in the form of Exhibit H hereto,
enforceable by Philip Morris.
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<PAGE> 81
EXECUTED as of the 30th day of January, 1998.
BORROWERS:
SCHWEITZER-MAUDUIT INTERNATIONAL INC.
By: /s/ Wayne H. Deitrich
-----------------------------------
Name: Wayne H. Deitrich
---------------------------------
Title: Chairman & CEO
--------------------------------
SCHWEITZER-MAUDUIT FRANCES S.A.R.L.
By: /s/ Jean-Pierre Le Hetet
-----------------------------------
Name: Jean-Pierre Le Hetet
---------------------------------
Title: Gerant
--------------------------------
PDM INDUSTRIES S.N.C.
By: /s/ Jean-Pierre Le Hetet
-----------------------------------
Name: Jean-Pierre Le Hetet
---------------------------------
Title: Legal Representive of Papeteries
de Mauduit-Gerant
--------------------------------
SCHWEITZER-MAUDUIT SPAIN, S.L.
By: /s/ Raymond Nedellec
-----------------------------------
Name: Raymond Nedellec
---------------------------------
Title: Board Delegate
--------------------------------
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<PAGE> 82
AGENT:
SOCIETE GENERALE
By: /s/ Richard M. Lewis
------------------------------------
Name: Richard M. Lewis
----------------------------------
Title: Vice President
---------------------------------
BANKS:
U.S. TERM ADVANCES SOCIETE GENERALE
$8,696,296.30
FRENCH TERM ADVANCES By: /s/ Richard M. Lewis
FRF86,962,962.96 ------------------------------------
Name: Richard M. Lewis
----------------------------------
Title: Vice President
---------------------------------
U.S. REVOLVING COMMITMENT
$5,217,777.78
FRENCH REVOLVING COMMITMENT
FRF43,481,481.48
SPANISH TERM COMMITMENT
$6,957,037.04
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<PAGE> 83
U.S. TERM ADVANCES BANQUE NATIONALE DE PARIS
$2,175,000.00
FRENCH TERM ADVANCES By:
FRF21,750,000.00 -------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
U.S. REVOLVING COMMITMENT
$1,305,000.00
By: /s/ Louis de Quatrebarbes
FRENCH REVOLVING COMMITMENT -------------------------------------
FRF10,875,000.00 Name: Louis de Quatrebarbes
-----------------------------------
Title: Director of Branch Subsidiary
----------------------------------
SPANISH TERM COMMITMENT
$1,740,000.00
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<PAGE> 84
U.S. TERM ADVANCES NATEXIS BANQUE
$5,425,000.00
FRENCH TERM ADVANCES By: /s/ Y. Mazetier
FRF54,250,000.00 ---------------------------------
Name: Y. Mazetier
-------------------------------
Title:
------------------------------
U.S. REVOLVING COMMITMENT
$3,255,000.00
By:/s/ G. du Boisbaudry
FRENCH REVOLVING COMMITMENT ---------------------------------
FRF27,125,000.00 Name: G. du Boisbaudry
-------------------------------
Title:
------------------------------
SPANISH TERM COMMITMENT
$4,340,000.00
NATEXIS BANQUE
41 rue Elie Freron
29196 QUIMPER Cedex
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<PAGE> 85
U.S. TERM COMMITMENT SUN TRUST BANK, ATLANTA
$5,555,555.55
FRENCH TERM COMMITMENT By: /s/ Dan Komitor
FRF55,555,555.56 -----------------------------------
Name: Dan Komitor
---------------------------------
Title: Vice President
--------------------------------
U.S. REVOLVING COMMITMENT
$3,333,333.33 By: /s/ Jeffrey L. Seavey
-----------------------------------
Name: Jeffrey L. Seavey
---------------------------------
FRENCH REVOLVING COMMITMENT Title: Vice President
FRF27,777,777.78 --------------------------------
SPANISH TERM COMMITMENT
$4,444,444.44
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<PAGE> 86
U.S. TERM ADVANCES WACHOVIA BANK, N.A., formerly known as
$3,148,148.15 Wachovia Bank of Georgia, N.A.
FRENCH TERM ADVANCES By:/s/ William R. McCamey
FRF31,481,481.48 ------------------------------------
Name: William R. McCamey
----------------------------------
Title: Assistant Vice President
---------------------------------
U.S. REVOLVING COMMITMENT
$1,888,888.89 By:
------------------------------------
Name:
----------------------------------
FRENCH REVOLVING COMMITMENT Title:
FRF15,740,740.74 ---------------------------------
SPANISH TERM COMMITMENT
$2,518,518.52
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<PAGE> 87
INDEX OF EXHIBITS AND SCHEDULES
TO THE AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JANUARY 30, 1998
EXHIBITS:
Exhibit A - Form of Assignment and Acceptance
Exhibit B-1 - Form of French Revolving Note
Exhibit B-2 - Form of French Term Note
Exhibit B-3 - Form of U.S. Revolving Note
Exhibit B-4 - Form of U.S. Term Note
Exhibit B-5 - Form of Spanish Term Note
Exhibit C - Form of Notice of Borrowing
Exhibit D - Form of Notice of Conversion or Continuation
Exhibit E - Form of Compliance Certificate
Exhibit F-1 - Form of Company's Outside Counsel Opinion
Exhibit F-2 - Form of French Borrower's Outside Counsel Opinion
Exhibit F-3 - Form of Agent's Counsel Opinion
Exhibit F-4 - Form of SMS' Outside Counsel Opinion
Exhibit G - Form of Confidentiality Agreement (General)
Exhibit H - Form of Confidentiality Agreement (PMI)
SCHEDULES:
Schedule 1 - Notice Information for Banks
Schedule 4.07 - Litigation
Schedule 4.16 - Environmental
Schedule 6.01 - Existing Liens
[All Exhibits and Schedules Intentionally Omitted;
will be furnished supplementally to the
Commission upon request.]
<PAGE> 1
EXHIBIT 15
INDEPENDENT ACCOUNTANTS' REPORT
Schweitzer-Mauduit International, Inc.:
We have reviewed the accompanying consolidated balance sheet of
Schweitzer-Mauduit International, Inc. and subsidiaries as of March 31, 1998,
and the related consolidated statements of income and cash flow for the three
month periods ended March 31, 1998 and 1997. These financial statements are the
responsibility of the Company's management.
We conducted our review in accordance with standards established by the American
Institute of Certified Public Accountants. A review of interim financial
information consists principally of applying analytical procedures to financial
data, and making inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an audit conducted in accordance
with generally accepted auditing standards, the objective of which is the
expression of an opinion regarding the financial statements taken as a whole.
Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that should
be made to such consolidated financial statements for them to be in conformity
with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the consolidated balance sheet of Schweitzer-Mauduit International,
Inc. as of December 31, 1997 and the related consolidated statements of income
and cash flow for the year then ended (not presented herein); and in our report
dated January 23, 1998, we expressed an unqualified opinion on those
consolidated financial statements. In our opinion, the information set forth in
the accompanying consolidated balance sheet as of December 31, 1997 is fairly
stated in all material respects in relation to the balance sheet from which it
has been derived.
Deloitte & Touche LLP
Atlanta, Georgia
April 28, 1998
<PAGE> 1
EXHIBIT 23
May 14, 1998
Schweitzer-Mauduit International, Inc.
100 North Point Center East, Suite 600
Alpharetta, Georgia 30022-8246
Dear Sirs:
We have made a review, in accordance with standards established by the American
Institute of Certified Public Accountants, of the unaudited interim financial
information of Schweitzer-Mauduit International, Inc. and subsidiaries for the
periods ended March 31, 1998 and 1997 as indicated in our report dated April 28,
1998; because we did not perform an audit, we expressed no opinion on that
information.
We are aware that our report referred to above, which was included in your
Quarterly Report on Form 10-Q for the quarter ended March 31, 1998, is
incorporated by reference in Registration Statements No. 33-99812, No. 33-99814,
No. 33-99816, and No. 33-99848 on Form S-8.
We are also aware that the aforementioned report, pursuant to Rule 436(c) under
the Securities Act of 1933, is not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
Yours truly,
Deloitte & Touche LLP
Atlanta, Georgia
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF SCHWEITZER-MAUDUIT FOR THE THREE MONTHS ENDED MARCH 31,
1998, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> MAR-31-1998
<CASH> 2,700
<SECURITIES> 0
<RECEIVABLES> 72,100
<ALLOWANCES> 0
<INVENTORY> 69,100
<CURRENT-ASSETS> 152,000
<PP&E> 432,700
<DEPRECIATION> 170,800
<TOTAL-ASSETS> 448,700
<CURRENT-LIABILITIES> 118,300
<BONDS> 102,900
0
0
<COMMON> 1,600
<OTHER-SE> 182,100
<TOTAL-LIABILITY-AND-EQUITY> 448,700
<SALES> 134,300
<TOTAL-REVENUES> 134,300
<CGS> 103,200
<TOTAL-COSTS> 103,200
<OTHER-EXPENSES> 10,500
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,400
<INCOME-PRETAX> 19,800
<INCOME-TAX> 8,100
<INCOME-CONTINUING> 10,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 10,000
<EPS-PRIMARY> .62
<EPS-DILUTED> .61
</TABLE>
