UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999
[ ] 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 0-7475
WAUSAU-MOSINEE PAPER CORPORATION
(Exact name of registrant as specified in charter)
1244 KRONENWETTER DRIVE WISCONSIN
MOSINEE, WISCONSIN 54455 (State of incorporation)
(Address of principal executive office) 39-0690900
(I.R.S. Employer
Identification Number)
Registrant's telephone number, including area code: 715-693-4470
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
registered
COMMON STOCK, NO PAR VALUE NEW YORK STOCK EXCHANGE
Securities registered pursuant to Section 12(g) of the Act: NONE
Indicate by check 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 report), and (2) has been
subject to such filing requirements for the past 90 days.
Yes X No ___
Indicate by check mark if disclosure of delinquent filers pursuant
to Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of the registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III
of this Form 10-K or any amendment to this Form 10-K.
As of February 24, 2000, the aggregate market value of the common
stock shares held by non-affiliates was approximately $561,205,432.
<PAGE>
The number of common shares outstanding at February 4, 2000 was
51,416,691.
DOCUMENTS INCORPORATED BY REFERENCE
PROXY STATEMENT FOR USE IN CONNECTION WITH 2000 ANNUAL MEETING OF
SHAREHOLDERS
(TO THE EXTENT NOTED HEREIN): PART III
TABLE OF CONTENTS
PAGE
PART I
Item 1. Business 1
Item 2. Properties 11
Item 3. Legal Proceedings 12
Item 4. Submission of Matters to a Vote of Security Holders 12
PART II
Item 5. Market for the Registrant's Common Equity and Related
Stockholder Matters 13
Item 6. Selected Financial Data 14
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations 15
Item 7A. Quantitative and Qualitative Disclosure About Market Risk 22
Item 8. Financial Statements and Supplementary Data 23
Item 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosures 49
PART III
Item 10. Directors and Executive Officers of the Registrant 50
Item 11. Executive Compensation 50
Item 12. Security Ownership of Certain Beneficial Owners and
Management 50
Item 13. Certain Relationships and Related Transactions 50
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on
Form 8-K 51
-ii-
PART I
ITEM 1. BUSINESS.
GENERAL DEVELOPMENT OF BUSINESS
The Company manufactures, converts, and sells paper. Its principal
office is located in Mosinee, Wisconsin. At December 31, 1999, the
Company had approximately 3,400 employees at eleven facilities located
in six states.
<PAGE>
The Company was incorporated in Wisconsin on June 1, 1899, under the
name of Wausau Paper Mills Company ("Wausau"). On December 17, 1997,
Wausau completed a merger with Mosinee Paper Corporation ("Mosinee") in
which Mosinee became a wholly-owned subsidiary of Wausau. Simultaneous with
the consummation of the merger, Wausau changed its name to
Wausau-Mosinee Paper Corporation (hereinafter referred to as the
"Company").
On December 17, 1997, the Company adopted a fiscal year-end reporting
period of December 31. This change from the Company's August 31 fiscal
year-end was effective on December 31, 1997. The merger with Mosinee
was accounted for as a pooling-of-interests and as a result, the
financial statements for the two companies have been restated as
indicated in the footnotes which accompany the financial statements.
See Notes 1 and 2 of "Notes to Consolidated Financial Statements."
This report contains certain of management's expectations and other
forward-looking information regarding the Company. See the subheading
"Cautionary Statement Regarding Forward-looking Statements" in this
Item 1.
FINANCIAL INFORMATION ABOUT SEGMENTS
Information relating to the Company's sales, a measure of operating
profit or loss, and total assets by segment is set forth in Note 16 of
"Notes to Consolidated Financial Statements."
NARRATIVE DESCRIPTION OF BUSINESS
The Company competes in different markets within the paper industry.
Each of its operating groups serves distinct market niches. The
various markets for the products of the Company are highly competitive,
with competition based on service, quality and price.
The Company's eleven operating facilities are organized into the three
operating groups described below.
SPECIALTY PAPER GROUP
During 1999, the Specialty Paper Group consisted of the Company's
Mosinee, Sorg, Rhinelander, and Otis facilities to produce a wide
variety of technical specialty papers. The Group is a leader in many
of its markets, although market position varies by product.
On March 15, 2000, the Company announced its intention to close the
Sorg Paper Company mill in Middletown, Ohio on May 15, 2000. Sorg
operated at a loss in 1999 and the Company was unsuccessful in finding
-1-
a buyer for the Sorg business. With the closing, the Company will no
longer operate in the decorative laminate and deep color tissue markets
of the industry. The Rhinelander and Otis mills together are one of the
nation's largest manufacturers of supercalendered backing papers for
pressure sensitive labeling applications. These facilities, located at
Rhinelander, Wisconsin, and Jay, Maine, also manufacture specialty
paper for a broad range of food, medical, and industrial applications,
including protective barrier papers for pet food and microwave popcorn,
<PAGE>
and lightweight paper for sterilized medical packaging. Products,
markets and distribution methods and principal competitors for the
Rhinelander and Otis mills can be summarized as follows:
PRINCIPAL PRODUCTS
Pressure-sensitive backing, silicone-coated release papers,
grease-resistant packaging, food service papers, sterilizable medical
packaging, electrographic and translucent papers, industrial crepe and
crepe tape backing.
PRINCIPAL MARKETS & DISTRIBUTION METHODS
Sold directly to converters, mainly in the U.S., for the following
industries: pressure-sensitive labeling, convenience food, food
service, pet food, medical packaging, and specialized converters.
PRINCIPAL COMPETITION
Competition comes from large integrated companies such as International
Paper Corporation, Fraser Paper, Inc., UPM-Kymmene, EB Eddy, Crown
Vantage Corporation, and SAPPI, Ltd.
The Mosinee mill in Mosinee, Wisconsin, is one of the nation's largest
producers of masking tape base and manufactures a wide range of highly
engineered paper products. These include high-performance industrial
papers chemically treated for wet strength, flame retardancy,
anti-static, corrosion, or grease resistance for various industries,
such as automotive, housing, and food processing. Products, markets
and distribution methods and principal competitors for the Mosinee mill
can be summarized as follows:
PRINCIPAL PRODUCTS
Industrial crepe, masking, gumming, foil laminating, flame-resistant,
specialty metal interleaver, cable wrap, creped tape backing,
electrical insulation, pressure-sensitive backing, water base and film
coating, ink-jet printing, packaging, saturating, and grease-resistant
papers.
PRINCIPAL MARKETS & DISTRIBUTION METHODS
Sold directly to manufacturers and converters, mainly in the U.S., in
the following industries: housing, steel, aluminum and other metal,
masking tape and masking paper, electrical cable, wire and components,
automotive, general converters, composite can packaging, filter, and
specialty coating.
PRINCIPAL COMPETITION
Competition in several grades of paper made from the Mosinee mill's
natural kraft pulp comes from other fully-integrated, large paper
companies such as Thilmany Paper, Longview Fibre Corporation, and
Gilman Paper Company. Competition in grades of paper made from market
pulp comes from several non-integrated specialty paper mills such as
Little Rapids Paper Company, as well as large integrated paper
companies such as Crown Vantage Corporation.
The Sorg mill produced additional specialty grades of paper, including
decorative laminate papers, deep color tissue used in napkin and
tablecloth stock, and colored school construction paper. Products,
-2-
<PAGE>
markets and distribution methods and principal competitors for the Sorg
mill during 1999 can be summarized as follows:
PRINCIPAL PRODUCTS
Deep-color and white tissue (facial quality, napkin, and tablecloth),
filter paper (vacuum bag and food cooking), decorative laminates (print
base, solid color core, alpha overlay, and barrier), report,
construction, photo background, perforating tape, flame-resistant,
blotting, soapboard/soapwrap, and saturating papers.
PRINCIPAL MARKETS & DISTRIBUTION METHODS
Sold directly to manufacturers and converters with limited marketing
through paper brokers and distributors mainly in the U.S., in the
following industries: housing, consumer product packaging, home
appliances, filters, printing, advertising and promotion commercial
goods, soapboard and soapwrap, saturators, specialized industrial
converters.
PRINCIPAL COMPETITION
Both non-integrated specialty mills and larger integrated paper
companies compete with Sorg products. Competitors in Sorg's major
paper grades of decorative, soapboard, saturating base and vacuum bag
include Crown Vantage Corporation, Mead Corporation, Munksjo, Kimberly
Clark Corporation, Dexter, Fletcher, Monadnock Paper Mills, Riverside
Paper Corp., Little Rapids Paper Company, and French Paper Company.
PRINTING & WRITING GROUP
The Printing & Writing Group produces and converts two lines of paper
products in five facilities.
Under the "Wausau Papers" trademark, the Group manufactures a broad
line of premium printing and writing papers, imaging papers, colored
offset papers and board grades at its mills in Brokaw, Wisconsin, and
Groveton, New Hampshire. Over 60% of the fine printing and writing
papers produced are colored papers. The Group's fine printing and
writing sales are estimated to be less than 3% of the total market.
Papers sold under the Wausau Papers<reg-trade-mark> label include a
wide range of virgin and recycled printing and writing papers,
two-thirds of which are colored papers, including Astrobrights
<reg-trade-mark>, a 25-year old national brand. Products, markets
and distribution methods and principal competitors for the Wausau
Papers<reg-trade-mark> brand can be summarized as follows:
PRINCIPAL PRODUCTS
Text and cover, index, tag and bristol, imaging, premium offset,
envelope and retail papers.
PRINCIPAL MARKETS & DISTRIBUTION METHODS
More than 80% of the sales of printing and writing papers are sold in
sheet form to paper distributors which serve commercial printers,
in-plant print shops, quick printers, copy centers, and retail office
supply and home office outlets. The Group also markets to converters
that serve the greeting card and announcement industry.
PRINCIPAL COMPETITION
<PAGE>
Competition in printing and writing grades comes from specialty
divisions of major integrated paper companies such as International
Paper Corporation, Georgia-Pacific Corporation, Champion Paper
Corporation, Fraser Paper, Inc., SAPPI, and smaller privately held
non-integrated companies.
-3-
On January 3, 2000, the Company sold the Printing & Writing Group's
Specialty Products business, although it retained the Appleton,
Wisconsin, converting facility. During 1999, the Specialty Products
facility manufactured school supply papers, craft, and retail products.
Products were sold in sheet and roll form to stocking distributors
which serve the 16,000 school districts throughout the United States
and various retail markets. The Appleton facility will be reconfigured
to more specifically support the finishing and distribution needs of
the Printing & Writing Group to minimize the outsourcing of
converting requirements for the Brokaw and Groveton mills. The Group
will continue to book contract converting volume to utilize any
remaining capacity.
The Mosinee Converted Products facilities produce wax-laminated roll
wrap and related specialty finishing and packaging products such as
custom coating, laminating and converting wrap. Converting facilities
are operating in Columbus, Wisconsin, and Jackson, Mississippi.
Products, markets and distribution methods and principal competitors
for Mosinee Converted Products are as follows:
PRINCIPAL PRODUCTS
Roll and skid wrap, roll headers, can body stock, cold seal packaging,
and fabric softener, impregnated, medium, non-woven, and coated papers.
PRINCIPAL MARKETS & DISTRIBUTION METHODS
Sold direct to manufacturers and converters in the U.S. in the
following markets: paper industry, industrial packaging, corrugated
containers, consumer products, and composite can manufacturers.
PRINCIPAL COMPETITION
Competition in roll wrap comes from the other wax and poly laminators
and includes Laminated Papers, Sonoco Products, Bonar Packaging, Ltd.,
Fortifiber, Inc., Ludlow, Simplex, and Fiberlam, Inc.
TOWEL & TISSUE GROUP
The Towel & Tissue Group produces a complete line of towel and tissue
products which are marketed along with soap and dispensing system
products for the industrial and commercial "away-from-home" market.
Although the Group has grown significantly, it is one of the smaller
competitors in this market.
Towel and tissue products made from recycled material and marketed
under Bay West's EcoSoft<trademark> brand name are used in the
washrooms of theme parks, hospitals, hotels, office buildings,
factories, schools, and restaurants nationwide. The Group's towel and
tissue mill is located in Middletown, Ohio and its converting facility
is located in Harrodsburg, Kentucky. Products, markets and
distribution methods and principal competitors for the Towel & Tissue
<PAGE>
Group can be summarized as follows:
PRINCIPAL PRODUCTS
Washroom roll towels, washroom folded towels, soaps, a variety of towel,
tissue, and soap dispensers, windshield folded towels, industrial
wipes, tissue products, dairy towels, household roll towels, and
premium towel and tissue.
-4-
PRINCIPAL MARKETS & DISTRIBUTION METHODS
Sold almost exclusively through sanitary maintenance suppliers and
paper distributors in the U.S. and several foreign countries for use in
the following markets: industrial and commercial washroom, educational
institutions, health care, dairy, automotive service, and food
processing industries.
PRINCIPAL COMPETITION
Competition comes from major integrated paper companies which service
consumer and food service markets as well as the industrial and
institutional markets concentrated on by Bay West. Major competitors
include Fort James Corporation, Georgia-Pacific Corporation, Kimberly
Clark Corporation, and American Tissue.
EXPORT SALES
In addition to the three operating groups, Wausau-Mosinee
International, Inc. is the commissioned sales agent for the export
sales of the Company. Wausau-Mosinee International, Inc. has elected
to be treated as a FSC for federal income tax purposes.
RAW MATERIALS
Pulp is the basic raw material for paper production and represents
approximately one-half of the cost of making paper. The Mosinee and
Brokaw mills produce approximately 85% and 50%, respectively, of their
own pulp needs. Timber required for operation of the Company's pulp
mills is readily available. The balance of the Company's pulp needs
(approximately 450,000 tons) is purchased on the open market,
principally from pulp mills throughout the United States and Canada.
During 1999, the average cost of pulp rose approximately $150 per ton.
Pulp prices rose during the first quarter of 2000, and are expected to
increase further during 2000. Pulp was readily available in 1999 and
is expected to continue to be readily available in 2000. The Company
has purchased, and may, from time to time in the future, purchase pulp
futures contracts as a hedge against significant future increases in
the market price of pulp.
Recycled, de-inked fiber with a high content of post-consumer waste is
purchased from domestic suppliers as part of the fiber requirements for
Printing & Writing's recycled products. Recycled fiber is in adequate
supply and readily obtainable.
The Towel & Tissue Group produces substantially all of its de-inked
fiber needs from 100% post-consumer waste which is readily available
from domestic suppliers.
Various chemicals are used in the pulping and papermaking processes.
<PAGE>
These industrial chemicals are all available from a number of suppliers
and are purchased at current market prices.
ENERGY
The Company's paper mills require large amounts of electrical and steam
energy which are adequately supplied by public utilities or generated
at Company operated facilities. The Company generates approximately
25% of its electrical power needs from steam, fuel oil, coal, wood
chips, fibercake, and natural gas powered generating facilities. The
Company generally purchases natural gas, coal, and fuel oil on a
contract basis at prevailing market prices. Wood chips and fibercake
are byproducts of mill operations. Some natural gas and fuel oil
purchase contracts may provide for variable prices or contain caps on
-5-
prices of natural gas to be delivered at future dates. In addition,
the Company continues to explore alternative power sources as an
ongoing business process.
Under the terms of a long-term agreement with the Portland Natural Gas
Transmission System the Company is committed to the purchase of a fixed
volume of natural gas for its Groveton, New Hampshire mill until
November, 2019.
PATENTS AND TRADEMARKS
The Company develops and files trademarks and patents, as appropriate.
Trademarks include Wausau Papers, AstroBright, Ecosoft, Bay West,
Dublsoft, and Wave 'N Dry, among others. The Company considers its
trademarks and patents, in the aggregate, to be material to its
business, although the Company believes the loss of any one such mark
or patent right would not have a material adverse effect on its
business. The Company does not own or hold material licenses,
franchises or concessions.
SEASONAL NATURE OF BUSINESS
The markets for some of the grades of paper produced by the Company
tend to be somewhat seasonal. However, the marketing seasons for these
grades are not necessarily the same. Overall, the Company generally
experiences lower sales in the fourth quarter, in comparison to the
rest of the year, primarily due to downtime typically taken by its
converting customers during the holiday season and a general slowing of
business activity for many industrial users of Company products at that
time of year.
WORKING CAPITAL
As is customary in the paper industry, the Company carries adequate
amounts of raw materials and finished goods inventory to facilitate the
manufacture and rapid delivery of paper products to its customers. The
Company will occasionally carry higher than normal quantities of pulp
in anticipation of rising pulp prices.
MAJOR CUSTOMERS
One customer accounted for approximately 9.7% of consolidated net sales
<PAGE>
during 1999. The loss of this customer would have an adverse
effect on the Company's business, but the Company believes such effect
would be of relatively short duration.
BACKLOG
The Company's order backlog at December 31, 1999 approximated 34,000
tons, or 2 weeks of operation. The backlog on such date was 13% higher
than December 31, 1998. Backlog totals do not accurately represent the
strength of the Company's business activity as a significant volume of
orders are shipped out of inventory promptly upon order receipt. This
portion of the business is not reflected in the Company's backlog
totals. The entire backlog at December 31, 1999 is expected to be
shipped during fiscal 2000.
RESEARCH AND DEVELOPMENT
Expenditures for product development were approximately $2,293,000 in
1999, $2,577,000 in 1998, and $1,577,000 in 1997.
-6-
ENVIRONMENT
The Company has a strong commitment to protecting the environment.
Like its competitors in the paper industry, the Company faces
increasing capital investments and operating costs to comply with
expanding and more stringent environmental regulations. The Company
estimates that its capital expenditures for environmental purposes will
approximate $21-$23 million in 2000.
The United States Environmental Protection Agency (EPA) has promulgated
rules under the Clean Water Act and the Clean Air Act which impose new
air and water quality standards for pulp and paper mills (the "Cluster
Rules"). The definitive Cluster Rules, promulgated in April 1998,
require compliance by April 15, 2001. Another set of requirements in
the Cluster Rules must be implemented by April 15, 2006.
In response to these regulations, the Company has opted to adopt Total
Chlorine Free (TCF) technology for the pulp bleaching operations at the
Brokaw mill. This TCF technology must be in place and functioning by
April 15, 2001. In 1988, the Company installed an oxygen
delignification system which eliminated the use of elemental chlorine;
however, chlorine compounds are used in other stages of the bleaching
process at the Brokaw mill. Compliance with a TCF requirement for the
Brokaw mill will require an estimated capital expenditure of $7 million.
The Mosinee facility will be required to burn additional noncondensable
gases and treat foul condensates to comply with the Cluster Rules. The
majority of the required changes must be satisfied by April 15, 2001,
while compliance with the balance of these new requirements must be
attained by April 15, 2006. The estimated capital expenditures to
comply with the Cluster Rules and, at the same time provide, other
production efficiencies at the Mosinee facility is $14 million. The
capital expenditures for complying with the Cluster Rules will be
incurred in 1999, 2000, and 2001. Company-wide capital expenditures
initiated to comply with the Cluster Rules are estimated to be in the
<PAGE>
range of $20-$22 million.
Compliance with the EPA's permitting process involves the consolidation
of all Company air discharge permits and is expected to involve an
additional $1 million in capital expenditures. This cost is expected
to be incurred in 2000 or 2001. The Wisconsin Paper Council and
certain Wisconsin utilities successfully challenged the inclusion of
Wisconsin in the EPA's initiative to reduce boiler emissions. The
Wisconsin Department of Natural Resources ("DNR") response to this
decision has not yet been announced. If the DNR were to require
similar boiler emission reductions as those proposed under the EPA's
proposal, the capital expenditures required for the Rhinelander and
Mosinee facilities would approximate $3 million.
In 1986, the Company's Mosinee Paper Corporation subsidiary was
informed by the DNR that a landfill, for which Mosinee may be a
potentially responsible party, had been nominated by the DNR for
inclusion by the EPA on the National Priorities List ("NPL")
established under the federal Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"). Although the EPA did not
place the landfill on the NPL and no other action has been taken by the
DNR or the EPA, the Company and DNR continued to explore ways to
initiate an investigation outside of the CERCLA Superfund program over
a period of several years. In March, 2000, the DNR indicated, after a
lapse of several years, that it was again going to review the status of
this landfill and the potential liability of the Company. The Company
cannot predict what the cost of investigation and cleanup will be, what
share, if any, of such costs will be borne by the Company, or the
extent to which, if any, the Company may have insurance coverage for
such potential liability. Based on its previous analysis of this
matter, the Company does not believe that any associated potential
costs would have a material adverse effect on the business and
financial condition of the Company.
-7-
The Company believes that capital expenditures associated with
compliance with the Cluster Rules and other environmental regulations
will not have a material adverse effect on its competitive position,
consolidated financial condition, liquidity, or results of operation.
EMPLOYEES
In 1998, the Company announced a workforce reduction program that
resulted in the elimination of 400 positions through the end of 1999,
almost all of which were accomplished through early retirement
incentives.
The Company had approximately 3,400 employees at the end of 1999. The
closing of the Sorg mill in May, 2000, will reduce the number of
employees by 200. Most hourly mill employees are covered under
collective bargaining agreements. One new labor agreement between Bay
West-Middletown and P.A.C.E. Local 112 was negotiated in 1999. Three
labor agreements expire in 2000 and an additional agreement in 2001.
The Company expects that new multi-year contracts will be negotiated at
competitive rates. The Company considers its relationship with its
employees to be good.
<PAGE>
EXECUTIVE OFFICERS OF THE COMPANY
The following information relates to executive officers of the Company
as of March 17, 2000:
SAN W. ORR, JR., 58
Chairman of the Board (since 1989) and Chief Executive Officer of the
Company, CEO (1994-1995), President and CEO (1989-1990), and a director
since 1970. Also Advisor, Estate of A. P. Woodson & Family, and a
director of MDU Resources Group, Inc. and Marshall & Ilsley
Corporation. Previously, Chairman of the Board (1987-1997) and
director (1972-1997) of Mosinee Paper Corporation.
RICHARD L. RADT, 68
Vice Chairman of the Board of the Company. Previously, Chairman
(1987-1988), and President and Chief Executive Officer and a director
(1977-1987) of the Company. Also Vice Chairman (1993-1997), and
President and Chief Executive Officer (1988-1993) of Mosinee
Paper Corporation.
GARY P. PETERSON, 51
Senior Vice President, Finance, Secretary and Treasurer. Previously,
Senior Vice President, Finance, Secretary and Treasurer (1993-1997) and
Vice President Finance (1991-1993) of Mosinee Paper Corporation and
partner, Wipfli Ullrich Bertelson CPAs (1981-1991).
STUART R. CARLSON, 53
Senior Vice President, Specialty Paper Group. Previously, Senior Vice
President, Specialty Paper (1996-1997), and Senior Vice President -
Administration (1993-1996), and Vice President Human Resources
(1991-1993) of Mosinee Paper Corporation. Also Director of Human
Resources, Georgia Pacific, Inc (1990-1991) and Corporate Director of
Industrial Relations, Great Northern Nekoosa Corporation (1989-1990).
THOMAS J. HOWATT, 50
Senior Vice President, Printing & Writing Group. Previously, Vice
President and General Manager, Printing & Writing Division (1994-1997),
Vice President and General Manager, Groveton (1993-1994), Vice
President Operations, Brokaw Division (1990-1993), and prior thereto,
Vice President, Administration, Brokaw Division.
-8-
DAVID L. CANAVERA, 50
Senior Vice President, Towel & Tissue Group. Previously, Senior Vice
President, Towel & Tissue (1996-1997) of Mosinee Paper Corporation, and
Vice President and General Manager (1994-1996) and Vice President
- Resident Manager (1993-1994), Bay West Paper.
DENNIS M. URBANEK, 55
Senior Vice President, Engineering and Environmental Services.
Previously, Vice President, Engineering and Environmental Services
(1996-1997) of Mosinee Paper Corporation, Vice President and General
Manager of Mosinee's Pulp & Paper Division (1992-1996), and Vice
President and General Manager, Sorg Paper Company (1990-1992).
MICHAEL L. MCDONALD, 51
Senior Vice President, Administration since February, 1999.
<PAGE>
Previously, Vice President, Human Resources for the Company and Mosinee
Paper Corporation (1997 to 1999) and General Manager/Vice President
Human Resources, Mead Corporation Publishing Division.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This report contains forward-looking statements within the meaning of
the Private Securities Litigation Reform Act of 1995 (the "Reform
Act"). In addition, certain statements in future filings by the
Company with the Securities and Exchange Commission, reports to
shareholders, press releases, and other oral and written statements
made by or with the approval of the Company which are not statements of
historical fact will constitute forward-looking statements within the
meaning of the Act.
Forward-looking statements of the Company may be identified by, among
other things, expressions of the Company's or Company officers' beliefs
or expectations that certain events may occur or are anticipated, and
projections or statements of expectations with respect to (i) various
aspects of the Company's business (including, but not limited to, net
income, the availability or price of raw materials, and customer demand
for Company products), (ii) the Company's plans or intentions, (iii)
the Company's stock performance, (iv) the industries within which the
Company operates, (v) the economy, and (vi) any other expressions of
similar import or covering other matters relating to the Company, its
business, and its operations. In making forward-looking statements
within the meaning of the Reform Act, the Company undertakes no
obligation to publicly update or revise any such statement.
Forward-looking statements are not guarantees of performance.
Forward-looking statements of the Company are based on information
available to the Company as of the date of such statements and reflect
the Company's expectations as of such date, but are subject to risks
and uncertainties that may cause actual results to vary materially.
Many of the factors that will determine these results are beyond the
Company's ability to control or predict. Shareholders and others are
cautioned not to put undue reliance on any forward-looking statements.
In addition to specific factors which may be described in connection
with any of the Company's forward-looking statements, factors which
could cause actual results to differ materially include, but are not
limited to, the following:
-9-
<circle> Increased competition from either domestic or foreign paper
producers or providers of alternatives to the Company's
products, including increases in competitive production
capacity resulting in sales declines from reduced shipment
volume and /or lower net selling prices in order to maintain
shipment volume.
<circle> Changes in customer demand for the Company's products due to
overall economic activity affecting the rate of consumption of
the Company's products, growth rates of the end markets for
the Company's products, technological or consumer preference
changes, or acceptance of the Company's products by the
markets served by the Company.
<PAGE>
<circle> Changes in the price of raw materials, in particular, pulp,
wastepaper and linerboard. A substantial portion of the
Company's raw materials, including approximately two-thirds of
the Company's pulp needs, are purchased on the open market and
price changes could have a significant impact on the Company's
costs. Fiber represents a substantial portion of the cost of
making paper and significant price increases for fiber could
materially affect the Company's financial condition. Raw
material prices will change based on supply and demand on a
worldwide spectrum. Pulp price changes can occur due to
worldwide consumption levels of pulp, pulp capacity additions,
expansions or curtailments of the supply of pulp, inventory
building or depletion at pulp consumer levels which affect
short-term demand, and pulp producer cost changes related to
wood availability, environmental issues, or other variables.
<circle> Unforseen or recurring operational problems at any of the
Company's facilities causing significant lost production
and/or cost increases.
<circle> Significant changes to the Company's strategic plans such as a
major acquisition or expansion, the disposition of assets or
product lines, the failure to successfully execute major
capital projects or other strategic plans, or the inability to
successfully integrate an acquisition.
<circle> Changes in laws or regulations which affect the Company. The
paper industry is subject to stringent environmental laws and
regulations and any changes required to comply with such laws
or regulations may increase the Company's capital expenditures
and operating costs.
-10-
ITEM 2. PROPERTIES.
The Company's headquarters are located in Mosinee, Wisconsin.
Executive officers and corporate staff who perform corporate
accounting, financial and human resource services are located in the
corporate headquarters, as are certain operating group personnel.
The Company's operating facilities consist of the following:
<PAGE>
<TABLE>
<CAPTION>
Number of
Paper Practical 1999
FACILITY PRODUCT MACHINES CAPACITY*(TONS) ACTUAL (TONS)
<S> <C> <C> <C> <C>
Specialty Paper
GROUP
Rhinelander Paper 4 165,000 159,000
Otis Paper 2 72,000 60,000
Mosinee Paper 4 114,000 110,500
Pulp 95,000 91,000
Sorg Paper 3 42,000 42,000
Printing & Writing
GROUP
Wausau Papers Paper 4 177,000 170,000
(Brokaw) Pulp 98,000 83,000
Wausau Papers Paper 2 112,000 112,000
(Groveton)
Wausau Papers
(Appleton) Converting N/A 29,000 22,500
Mosinee Laminated/
Converted Coated Papers N/A 145,000 57,000
Products
Towel&Tissue
GROUP
Bay West
(Middletown, Towel 1(towel) 70,000 62,500
Ohio) Tissue 1(tissue) 35,000 33,300
Deink Pulp 110,000 95,600
(Harrodsburg, Converted Towel
Kentucky) & Tissue N/A 168,000 126,800
<FN>
* "Practical capacity" is the amount of product a mill can produce with
existing equipment and workforce and usually approximates maximum,
or theoretical, capacity. At the Company's converting operations it
-11-
reflects the approximate maximum amount of product that can be made
on existing equipment, but would require additional days and/or
shifts of operation to achieve.
</TABLE>
The Company owns approximately 123,000 acres of timberland.
ITEM 3. LEGAL PROCEEDINGS.
In 1997, the Attorney General of the State of Florida filed a civil
complaint in the United States District Court for the Northern District
<PAGE>
of Florida against ten manufacturers of commercial sanitary paper
products, including the Company's wholly owned subsidiary, Bay West
Paper Corporation. The lawsuit alleges a conspiracy to fix prices of
commercial sanitary paper products starting at least as early as 1993.
Since the filing of this lawsuit, numerous class action suits have been
filed by private direct purchasers of commercial sanitary paper
products in various federal district courts throughout the country and
additional federal lawsuits have been filed by the Attorneys General of
the States of Kansas, Maryland, New York, and West Virginia. All of
these federal cases have been certified as class actions and
consolidated in a multi-district litigation proceeding in the United
States District Court for the Northern District of Florida in
Gainesville. Certain indirect purchasers of sanitary commercial paper
products have also filed class action lawsuits in various state courts
alleging a conspiracy to fix prices under state antitrust laws. No
class has been certified in the state actions. All of these actions
are in early stages. In the opinion of management, the Company has not
violated any antitrust laws and these cases are without merit. The
Company is vigorously defending these claims.
Although no proceeding has commenced, the Company may be subject to a
claim as a potentially responsible party with respect to a Wisconsin
landfill. See the discussion of this potential claim under the
subheading "-- Environment" in Item 1 of this report.
The Company may also be involved from time to time in various other
legal and administrative proceedings or subject to various claims in
the normal course of its business. Although the ultimate disposition
of legal proceedings cannot be predicted with certainty, in the opinion
of management, the ultimate disposition of any threatened or pending
matters, either individually or on a combined basis, will not have a
material adverse effect on the consolidated financial condition,
liquidity, or results of operations of the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
No matters were submitted to a vote of shareholders during the fourth
quarter of 1999.
-12-
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED
STOCKHOLDER MATTERS.
Since March 26, 1998, the Company's common stock has been traded on the
New York Stock Exchange under the symbol "WMO". Prior to March 26,
1998, the Company's common stock was traded on the Nasdaq National
Market under the symbol "WSAU."
As of the record date of the annual meeting, February 24, 2000, (the
"Record Date") there were approximately 3,000 holders of record of the
Company's common stock. The Company estimates that as of the Record
Date there were approximately 8,500 additional beneficial owners whose
shares were held in street name or in other fiduciary capacities. As
of the Record Date, there were 51,416,691 shares of common stock
<PAGE>
outstanding.
The following table sets forth the range of high and low closing price
information of the Company's common stock and the dividends declared on
the common stock, for the calendar quarters indicated.
<TABLE>
<CAPTION>
Market Price<dagger> Cash Dividend
CALENDAR QUARTER HIGH LOW DECLARED
<S> <C> <C> <C>
1998
First Quarter $24.00 $18.88 --*
Second Quarter $24.13 $20.13 $.14*
Third Quarter $22.75 $12.13 $.07
Fourth Quarter $18.50 $12.25 $.07
1999
First Quarter $18.00 $13.94 $.08
Second Quarter $18.44 $12.63 $.08
Third Quarter $18.00 $11.94 $.08
Fourth Quarter $14.19 $10.63 $.08
<FN>
*Due to the change in fiscal years from an August 31 year-end to a
December 31 year-end, no dividend was declared in the first quarter
of 1998. Two dividends were declared in the second quarter.
<dagger>All prices through March 25, 1998 represent closing
quotations on the Nasdaq National Market and reflect
inter-dealer prices, without retail markup, mark-down or
commission and may not necessarily represent actual
transactions. Prices after March 25, 1998 represent the
high and low sales prices on the New York Stock Exchange.
</TABLE>
-13-
ITEM 6. SELECTED FINANCIAL DATA.
<PAGE>
<TABLE>
WAUSAU-MOSINEE PAPER CORPORATION AND SUBSIDIARIES
SELECTED FINANCIAL DATA
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
For the years
FOR THE YEARS ENDED DECEMBER 31, ENDED AUGUST 31,
1999 1998 1997 1996 1995
FINANCIAL RESULTS
<S> <C> <C> <C> <C> <C>
Net sales $944,629 $946,127 $933,127 $857,159 $821,313
Depreciation, depletion
& amortization 55,012 52,207 47,259 41,204 36,573
Operating profit 79,646 72,145 120,828 119,049 82,460
Interest expense 11,823 7,683 8,103 7,198 7,754
Earnings before provision
for income taxes 68,017 65,801 113,589 111,778 75,961
Earnings before cumulative effect
of accounting change and
restructuring/merger expense 42,417 67,339 78,601 68,128 46,436
Net earnings 42,417 40,801 65,398 68,128 46,436
Average number of share
outstanding 52,265,000 55,708,000 57,811,000 58,829,000 58,843,000
Cash dividends paid 16,233 15,494 13,134 11,162 9,922
Capital expenditures 80,619 77,023 66,062 82,489 81,220
FINANCIAL CONDITION
Working capital $ 140,822 $ 81,406 $ 126,653 $ 87,536 $ 93,916
Long-term debt 220,476 127,000 140,500 101,451 147,930
Stockholders' equity 393,760 396,586 440,160 388,608 337,881
Total assets 936,462 900,149 872,064 752,057 707,631
PER SHARE
Earnings before cumulative
effect of accounting change
and restructuring/merger
expense $0.81 $1.21 $1.36 $1.16 $0.79
Net earnings-basic 0.81 0.73 1.13 1.16 0.79
Cash dividends declared 0.32 0.28 0.25 0.22 0.20
Stockholders' equity 7.53 7.12 7.61 6.61 5.74
Price range (low and
high closing) 10.94-18.44 12.25-24.06 17.55-25.38 16.50-24.13 16.20-20.00
RATIOS/RETURNS
Return on sales before cumulative
effect of accounting change
and restructuring/merger expense 4.5% 7.1% 8.4% 7.9% 5.7%
Net return on sales 4.5% 4.3% 7.0% 7.9% 5.7%
Return on average stockholders'
equity before cumulative
effect of accounting change and
restructuring/merger
expense 10.7% 16.1% 18.9% 18.8% 14.5%
Net return on average
stockholders' equity 10.7% 9.8% 15.8% 18.8% 14.5%
Current assets to current
liabilities 2.3 1.5 2.2 1.8 2.0
% of long-term debt to total
capital 35.9% 24.3% 24.2% 20.7% 30.5%
-14-
</TABLE>
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS.
OPERATIONS REVIEW
<TABLE>
NET SALES
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998 1997
<S> <C> <C> <C>
Net sales $944,629 $946,127 $933,127
Percent increase - 1% 9%
</TABLE>
Although net sales were comparable for the twelve months ended December
31, 1999 and 1998, the tonnage shipped increased in 1999 by 13,000
tons, or 2%, to a new Company record of 844,800 tons. Total shipments
in 1997 were 798,500 tons. Overall, the selling prices for the
Company's products began to increase late in 1999 following selling
price declines in 1997, 1998 and part of 1999. The selling price
declines experienced were due to competitive pressure on several
products in the Company's printing and writing, specialty and towel
and tissue grades.
Shipments for the Printing & Writing Group increased to 361,300 tons
and were 3% higher than 1998 shipments. The growth in premium paper
and roll wrap sales was the major reason for the increase. The total
tons of product shipped in 1998 and 1997 were comparable. Selling
prices began to increase late in 1999 principally to recover rising raw
material costs. For 2000, the focus will be on increasing premium
paper sales. The increase will be sought through normal distribution
channels as well as an expansion of the retail business.
Shipments declined 2% to 359,300 tons for the Specialty Paper Group in
1999. The decrease was due to a change in the overall product mix and
the paper machine rebuild at the Otis facility. The volume shipped in
1998 had increased by 7% over 1997. The main reason for the 1998
volume increase was the acquisition of the Otis facility in May of
1997. Competitive market pressures resulted in lower selling prices on
a year-over-year comparison until late in 1999 when selling prices
began to increase. The increase in selling price was principally the
result of an attempt to recover rapidly escalating raw material costs.
The improvement of overall product mix will again be the focus for the
Specialty Paper Group in the year 2000. A number of opportunities have
been identified to improve product mix, including the high performance
liner (HPL) project which is scheduled to be completed late in the
third quarter of 2000.
The Towel & Tissue Group continued the record volume growth experienced
in the last three years. Volume has increased 11%, 13% and 14%
year-over-year in 1999, 1998 and 1997, respectively. Total shipments
in 1999 were 124,200 tons. The major contributors to the record
increases have been increased distribution and excellent customer
service. Selling prices had declined in all three years until very
late in 1999 when prices increased approximately 3%. Competitive
-15-
market pressures experienced in all operating groups during 1999
resulted in depressed selling prices; however, the paper markets have
seemed to tighten and further price increases are expected as
<PAGE>
supply/demand economics improve. Order backlog at the end of 1999
approximated 34,000 tons for all operating groups and was 13% higher
than order backlog at the end of 1998. Backlogs had declined by 10% in
1998 compared to 1997. Order backlog total does not necessarily
indicate the business strength since a substantial percentage of orders
are shipped directly from inventory upon receipt.
GROSS PROFIT ON SALES
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998 1997
<S> <C> <C> <C>
Gross profit on sales $139,098 $175,051 $199,663
Percent increase/(decrease) (21%) (12%) 9%
Gross profit margin 15% 19% 21%
</TABLE>
Gross profit margins have decreased for the last two years. This
decline in margins was principally due to competitive market pressures
that lowered selling prices. Margins in 1999 were also negatively
impacted by rapidly escalating raw material costs.
Market prices for pulp, the primary raw material used in manufacturing
paper, rose significantly in 1999. The average list price of northern
bleached softwood kraft, a frequently used benchmark pulp grade, rose
25% in 1999 compared to declines of 20% and 18% for 1998 and 1997,
respectively. The Company purchases approximately 450,000 tons of
pulp annually.
Wastepaper prices, the primary raw material used in the Towel & Tissue
Group doubled in 1999 compared to increases of 6% and 10% for 1998 and
1997, respectively. The Company purchases approximately 145,000 tons
of wastepaper annually. On an annual basis, the 1999 increases in pulp
and wastepaper costs impact the Company's raw material costs by
approximately $75 million.
The Printing & Writing Group's mills operated near capacity for the
last three years. Difficulties in Brokaw's pulp mill negatively
impacted operations and increased costs in 1999 and 1998. Other
facilities within the group experienced year-over-year production
increases for all years presented. Inventory levels remained
relatively constant on a year-over-year basis.
The Specialty Paper Group mills operated near capacity for all years
presented. The reduction in produced tonnage at the Otis facility,
because of its machine rebuild, was offset by gains at the Sorg
facility, which had rebuilt one of its machines in 1998. Overall,
production declined 5% in 1998 compared to 1997 principally due to
product mix. This product mix was partially offset by the Otis
acquisition in May of 1997. Inventory levels increased approximately
10% in 1999 and had fallen a similar amount in 1998. The Towel &
-16-
Tissue Group's production and inventory levels increased ratably with
its sales growth for all years presented.
LABOR
A new four-year labor agreement with the Paper, Allied-Industrial,
<PAGE>
Chemical & Energy Workers International Union at the Ohio mill was
successfully negotiated in 1999. The agreement contained wage
increases similar to other paper companies. Labor agreements expire in
other facilities in 2000, 2001 and 2002. The Company maintains good
labor relations in all facilities.
OPERATING EXPENSES
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998 1997
<S> <C> <C> <C>
Selling and administrative $ 59,452 $ 60,103 $ 65,332
Percent increase/(decrease) (1%) (8%) 2%
Restructuring and merger - 42,803 13,503
Total operating expense 59,452 102,906 78,835
Percent increase/(decrease) (42%) 31% 23%
As a percent of sales 6% 11% 8%
</TABLE>
Selling and administrative expenses were impacted by stock incentive
programs charges or credits, which were determined by the Company's
stock price change. During 1999 and 1998, decreases in the Company's
stock price resulted in a $3.9 million and $1.8 million credit,
respectively. In 1997, the Company's stock price increased and the
charge for such programs was $2.1 million.
General inflationary costs offset by fluctuations in incentive
compensation and retirement plan costs along with the acquisitions of
the Otis and B&J facilities accounted for a majority of the other
changes. In connection with the merger with Mosinee Paper Corporation
(Mosinee), the Company incurred pre-tax expenses related to the merger
of $13.5 million, which were charged to operations in 1997. The costs
included professional fees and other transaction costs for executing
the merger as well as the costs of the severance benefits paid to the
former CEO of the Company. The merger costs on an after-tax basis were
$13.2 million or $.23 per share. Restructuring and further merger
costs were recorded in 1998 of $42.8 million. Approximately 95% of
these costs were associated with the Company's early retirement
incentives along with voluntary separation arrangements, involuntary
severance agreements, and training costs for the Company's 1998
workforce reduction program. The balance of the restructuring costs
were for legal, consulting, and other miscellaneous costs.
-17-
OTHER INCOME AND EXPENSE
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998 1997
<S> <C> <C> <C>
Interest expense $11,823 $7,683 $8,103
Percent increase/(decrease) 54% (5%) 13%
Other 194 1,339 864
</TABLE>
Interest expense increased in 1999 due principally to increased debt
levels associated with stock repurchases along with an increase in
borrowing rates. Interest was lower in 1998 due to lower borrowing
rates and lower average debt levels compared to 1997. Capitalized
<PAGE>
interest totaled $.6 , $.7 and $.5 million in 1999, 1998 and 1997,
respectively. Fluctuations in capitalized interest are primarily
dependent on varying levels of capital expenditures qualifying under
the capitalized interest criteria.
Other income includes interest income of $.2, $.4 and $.1 million in
1999, 1998 and 1997, respectively. The difference in other income and
expense is primarily due to fluctuations in the gain or loss on asset
sales and disposals.
INCOME TAXES
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998 1997
<S> <C> <C> <C>
Income tax provision $25,600 $25,000 $48,191
Percent increase/(decrease) 2% (48%) 10%
Effective tax rate 37.6% 38.0% 42.4%
</TABLE>
The effective tax rates for 1999 and 1998 of 37.6% and 38.0%,
respectively are indicative of the Company's normalized tax rate. The
effective tax rate for 2000 is expected to be in that range. The tax
rate for 1997 increased principally due to the $13.5 million charge for
merger-related expenses, most of which was not tax deductible.
-18-
LIQUIDITY AND CAPITAL RESOURCES
CASH FLOW AND CAPITAL EXPENDITURES
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998 1997
<S> <C> <C> <C>
Cash provided by operating $ 89,334 $117,859 $ 99,724
activities
Percent increase/(decrease) (24%) 18% (27%)
Working capital 140,822 81,406 126,653
Percent increase/(decrease) 73% (36%) 45%
Current ratio 2.3:1 1.5:1 2.2:1
</TABLE>
Cash flow from operations decreased in 1999 compared to 1998
principally due to decreased cash flow earnings from operations. In
addition, the investment in accounts receivable also increased by $7.1
million in 1999. Changes in working capital principally accounted for
the changes in 1998 and 1997.
Capital expenditures totaled $80.6 million in 1999, compared to $77.0
million in 1998 and $66.1 million in 1997.
During 1999, the Printing & Writing Group completed several projects at
the Groveton mill totaling $2.0 million consisting of paper machine
upgrades and a retrofit of the #1 boiler to convert to natural gas
consumption. The Brokaw mill spent $9.1 million on various projects
including $1.3 million to complete the pulp mill distributive control
system begun in 1998 and $7.2 million of a $8.2 million project to
upgrade the dry end of the machine room for better operating
<PAGE>
efficiencies.
The Specialty Paper Group completed several major capital projects in
its pulp and paper mills. At the Mosinee mill, $3.4 million was spent
to complete a woodroom modernization project and $2.7 million for a new
winder on the #4 paper machine. The Otis mill has spent $15.6 million
to expand the production capacity of one of its paper machines and $1.3
million on another paper machine to add significant new manufacturing
capabilities and give the Specialty Paper Group an improved sales mix.
During 1999, the Board of Directors approved a $45 million rebuild
project at the Rhinelander mill on which spending of $4.8 million
occurred in 1999 with the remaining spending to occur in the year 2000.
This project, which is scheduled to be completed by late in the third
quarter of 2000, will enable the Specialty Paper Group to move into new
high growth market niches.
To keep pace with increasing sales volume, the Towel & Tissue Group
spent $4.7 million in 1999 to complete a toweling line and a tissue
converting line and to begin construction of an additional toweling
line.
Other major capital improvement projects, approved by the Board of
Directors in 1999, include $14.4 million to achieve compliance with the
1990 Clean Air Act Cluster Rules at the Mosinee mill, $6.8 million at
-19-
the Brokaw mill for a bleaching system, and $6.0 million for a central
stock prep and fiber optimization project at the Groveton mill.
Capital spending for 2000 should be in the range of $90 to $100
million. The Company believes the borrowings available under its
credit agreements and its earnings for 2000 will be sufficient to meet
its cash flow needs for capital, working capital and investing
activities in 2000.
DEBT AND EQUITY
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998 1997
<S> <C> <C> <C>
Short-term debt $ 230 $ 51,517 $ 6,207
Long-term debt 220,476 127,000 140,500
Total debt 220,706 178,517 146,707
Stockholders' equity 393,760 396,586 440,160
Total capitalization 614,236 523,586 580,660
Long-term debt/capitalization ratio 36% 24% 24%
</TABLE>
During 1999, the Company entered into two new arrangements which
substantially changed its debt structure. A private placement of
$138.5 million in senior notes was closed and funded in August. The
notes mature in 8, 10 and 12 years at $35.0 million, $68.5 million and
$35.0 million, respectively. In conjunction with the private
placement, the Company entered into an interest rate swap arrangement
that effectively converted $88.5 million of fixed rate obligations with
a weighted average interest rate of 7.35% to variable rate obligations
with an average effective interest rate of approximately 6.6% at
December 31, 1999. The agreement decreased interest expense by
$.3 million in 1999.
<PAGE>
In December 1999, the Company entered into a new revolving credit
facility with four banks for $200 million. The facility has a
364-day component for $50 million and $150 million for five years.
The 364-day component may be converted to a one-year term loan at the
Company's discretion.
The Company also maintains a commercial paper placement agreement, with
one of its four major banks, which provides for the issuance of up to
$40 million of unsecured debt obligations. The commercial paper
placement agreement requires unused credit availability under the
Company's revolving credit agreement equal to the amount of outstanding
commercial paper. On December 31, 1999, the Company had a combined
total of $140.3 million available for borrowing under its revolving
credit and commercial paper placement agreements.
In August 1995, the Company obtained $19 million in industrial
development bond financing to fund an upgrade of the Brokaw mill
wastewater treatment plant, the construction of a new landfill and
several other projects which qualify for this type of financing. Bond
proceeds were fully disbursed as of January 1997. In June 1993, the
-20-
Company borrowed $30 million through the issuance of notes to
Prudential Insurance Company of America and its subsidiaries. As of
December 31, 1999, the outstanding notes amounted to $3.0 million and
mature in June of 2000.
On August 31, 1998, the Company's Board of Directors authorized the
repurchase of 5,650,000 shares of the Company's common stock. The
repurchases may be made from time to time in the open market or through
privately negotiated transactions. During 1999, the Company repurchased
2,206,926 shares at prices ranging from $11.94 to $16.06 per share.
The Company repurchased 4,285,900 shares of its common stock in 1998
under the completed 1994 authorization and the 1998 authorization at
market prices ranging from $12.125 to $18.00. The Company did not
repurchase any shares of the Company's stock in 1997. As of December
31, 1999 there were 217,974 shares available for purchase under the
authority granted in 1998.
During 1999, the Board of Directors declared cash dividends of $.32 per
share, an increase of 14% from the $.28 per share cash dividend
declared in 1998.
YEAR 2000
The Company's program to address year 2000 issues was intended to
prevent major interruptions in its business due to problems related to
the Company's computerized manufacturing, environmental, inventory
management, shipping, financial and other information systems and the
operation of critical third party vendors and customers. As part of
its program, the Company conducted an assessment of its computerized
manufacturing and information systems and its third party vendors and
customers. Some of the year 2000 issues were addressed in connection
with the initial stages of the implementation of the Company's
enterprise resource planning system ("ERP"). The broader, non-year
2000 aspects of the ERP system will be fully implemented after fiscal
2000. The Company did not experience any significant disruption as a
<PAGE>
result of year 2000 problems. As of February 28, 2000, neither the
Company nor any of its key vendors or customers have experienced any
material adverse effects related to year 2000 problems. Based on its
experience in the year 2000 transition and its business operations
through such date, the Company does not expect to encounter any year
2000 problems that would have a material adverse effect on the results
of operation, liquidity and financial condition of the Company. The
costs of achieving year 2000 readiness were not material. The cost of
remediation for key papermaking process controls and equipment
approximated $2 million. Internal costs for year 2000 readiness were
not tracked, but principally related to payroll costs of Company
personnel. The implementation of the Company-wide ERP system is
expected to require a capital investment of approximately $7.0 million.
Although the ERP implementation timetable was not accelerated to
address year 2000 issues, those issues were considered in determining
the overall timetable for its implementation.
-21-
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK.
The Company does not have a material market risk associated with
interest rate risk, foreign currency exchange risk, or commodity price
risk. The Company conducts U.S. dollar denominated export transactions
or immediately exchanges all foreign currency attributable to export
sales for U.S. dollars.
On August 31, 1999, the Company closed and funded a private placement
note offering for $138,500,000. The principal amounts, maturities, and
interest rates on the notes are: (1) $35,000,000, 8 years, 7.20%; (2)
$68,500,000, 10 years, 7.31%; and (3) $35,000,000, 12 years, 7.43%.
The Company also entered into an interest rate swap agreement under
which the interest rate paid by the Company with respect to (1)
$58,500,000 of the 10-year notes will be the three month LIBOR rate,
plus .4925% and (2) $30,000,000 of the 12-year notes will be the three
month LIBOR rate, plus .55%. The Company believes that the
interest-rate risk associated with the interest-rate swap agreement is
not material.
The Company maintains certain derivative commodity instruments as
hedges for anticipated transactions. Such instruments do not have a
material market risk and no such derivative commodity instrument is
held for trading. At December 31, 1999, these instruments consisted of
various futures contracts for the purchase of natural gas and fuel oil.
The Company has purchased, and may, from time to time in the future,
purchase pulp futures contracts as a hedge against pulp price
increases. See Notes 1 and 14 of "Notes to Consolidated Financial
Statements" for additional information relating to the Company's
derivative commodity instruments.
-22-
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Shareholders and Board of Directors
Wausau<circle>Mosinee Paper Corporation
Mosinee, Wisconsin
<PAGE>
We have audited the accompanying consolidated balance sheets of
Wausau<circle>Mosinee Paper Corporation and Subsidiaries as of December
31, 1999 and 1998, and the related consolidated statements of income,
cash flows and stockholders' equity for each of the years in the
three-year period ended December 31, 1999. These financial statements
are the responsibility of the Company's management. Our responsibility
is to express an opinion on these financial statements based on our
audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the
financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well
as evaluating the overall financial statement presentation. We believe
that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of
Wausau<circle>Mosinee Paper Corporation and Subsidiaries at December
31, 1999 and 1998, and the results of its operations and cash flows for
each of the years in the three-year period ended December 31, 1999, in
conformity with generally accepted accounting principles.
WIPFLI ULLRICH BERTELSON LLP
January 26, 2000
Wausau, Wisconsin
-23-
<PAGE>
<TABLE>
WAUSAU-MOSINEE PAPER CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<CAPTION>
As of December 31,
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 5,397 $ 2,495
Receivables, net 73,977 66,956
Refundable income taxes 1,638 3,282
Inventories 155,822 150,217
Deferred income taxes 14,747 18,344
Other current assets 730 832
Total current assets 252,311 242,126
Property, plant and equipment, net 653,823 625,065
Other assets 30,328 32,958
TOTAL ASSETS $ 936,462 $ 900,149
LIABILITIES
Current liabilities:
Notes payable to banks $ - $ 45,466
Current maturities of long-term debt 230 6,051
Accounts payable 63,876 58,419
Accrued and other liabilities 47,383 50,784
Total current liabilities 111,489 160,720
Long-term debt 220,476 127,000
Deferred income taxes 103,386 94,911
Postretirement benefits 58,885 60,558
Pension 35,019 39,235
Other noncurrent liabilities 13,447 21,139
Total liabilities 542,702 503,563
Commitments and contingencies - -
STOCKHOLDERS' EQUITY
Preferred stock (75,000 shares authorized) no par value - -
Common stock (100,000,000 shares authorized) no par value 170,682 170,686
Retained earnings 341,530 315,711
Subtotals 512,212 486,397
Treasury stock at cost (117,428) ( 85,136)
Minimum pension liability (net of deferred taxes) ( 1,024) ( 4,675)
Total stockholders' equity 393,760 396,586
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $936,462 $900,149
</TABLE>
SEE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
-24-
<PAGE>
<TABLE>
WAUSAU-MOSINEE PAPER CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
For the years ended
December 31,
1999 1998 1997
<S> <C> <C> <C>
Net sales $944,629 $946,127 $933,127
Cost of products sold 805,531 771,076 733,464
Gross profit 139,098 175,051 199,663
Operating expenses:
Selling and administrative 59,542 60,103 65,332
Restructuring and merger expense - 42,803 13,503
Operating profit 79,646 72,145 120,828
Other income (expense):
Interest expense ( 11,823) ( 7,683) ( 8,103)
Interest income 230 403 95
Other ( 36) 936 769
Earnings before income taxes 68,017 65,801 113,589
Provision for income taxes 25,600 25,000 48,191
Net earnings $ 42,417 $ 40,801 $ 65,398
Net earnings per share basic $ 0.81 $ .73 $ 1.13
Net earning per share diluted $ 0.81 $ .73 $ 1.13
</TABLE>
-25-
<PAGE>
<TABLE>
SEE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
<CAPTION>
WAUSAU-MOSINEE PAPER CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the years ended
December 31,
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998 1997
<S> <C> <C> <C>
Cash flows from operating activities:
Net earnings $ 42,417 $ 40,801 $ 65,398
Provision for depreciation, depletion
and amortization 55,012 52,207 47,259
Recognition of deferred revenue (40) (40) (40)
Provision for losses (recoveries) on
accounts receivable 110 1,227 (282)
Loss (gain) on property, plant and
equipment disposals 334 (782) (333)
Deferred income taxes 12,072 (1,028) 12,458
Changes in operating assets and liabilities:
Receivables (7,131) 1,491 (7,563)
Inventories (5,605) (6,607) (10,114)
Other assets (1,285) (6,959) (11,129)
Accounts payable and other liabilities (8,194) 38,032 9,425
Accrued and refundable income taxes 1,644 (483) (5,355)
Net cash provided by operating activities 89,334 117,859 99,724
Cash flows from investing activities:
Capital expenditures (80,619) (77,023) (66,062)
Acquisition of Otis Specialty Papers - - (55,147)
Acquisition of B&J Supply - - (6,235)
Proceeds from property, plant and
equipment disposals 1,218 9,550 693
Net cash used from funds
restricted for capital additions - - 1,297
Net cash used in investing activities (79,401) (67,473) (125,454)
Cash flows from financing activities:
Net borrowings of short-term notes (45,466) 25,466 -
Net borrowings (repayments) under credit
agreements (45,265) 12,551 58,117
Payment under capital lease obligation (269) (207) (345)
Repayment of long-term notes 132,500 (6,000) (6,000)
Dividends paid (16,233) (15,494) (13,134)
Payment for preferred stock of subsidiary - (320) -
Proceeds from stock option exercises 128 1,741 120
Payments for purchase of treasury stock (32,426) (68,212) (10,927)
Net cash provided by (used in) financing
activities (7,031) (50,475) 27,831
Net increase (decrease) in cash and
cash equivalents 2,902 (89) 2,101
Cash and cash equivalents at beginning of year 2,495 2,584 483
Cash and cash equivalents at end of year $ 5,397 $ 2,495 $ 2,584
Supplemental cash flow information:
Interest paid - net of amount capitalized $ 10,323 $ 7,629 $ 7,902
Income taxes paid $ 11,884 26,511 41,882
</TABLE>
-26-
<PAGE>
Noncash investing and financing activities: A capital lease obligation
of $689 was incurred in 1999 when the Company entered into a lease for
new equipment. In connection with the acquisition of B&J Supply during
1997, the Company assumed $2,000 of debt.
SEE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS.
<PAGE>
<TABLE>
WAUSAU-MOSINEE PAPER CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS)
Accumulated
Other
Comprehensive
- Common Stock - Treasury Stock - Income - Common
Minimum Stock- Total
Shares Retained Pension Shares Stockholders'
ISSUED AMOUNT EARNINGS SHARES AMOUNT LIABILITY OUTSTANDING EQUITY
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balances December 31, 1996 60,182,385 $197,870 $238,771 (9,034,702) ($36,265) ($ 193) 51,147,683 $400,183
Comprehensive earnings, 1997
Net earnings 65,398 65,398
Minimum pension liability
(net of $716 deferred tax) (1,074) (1,074)
Comprehensive earnings, 64,324
1997 Cash dividends declared (13,628) (13,628)
Three-for-two stock split 10,670,992 (3,353,416) 7,317,576
Purchases of treasury stock (670,330) (10,927) (670,330) (10,927)
Retire treasury stock (10,730,573) (29,471) 10,730,573 29,471
Fractional shares resulting
from merger paid in cash (606) (606)
Stock options exercised 66 7,444 54 7,444 120
Tax benefit related to stock
options 15 15
Stock option discount (net of
deferred taxes) 73 73
Balances December 31, 1997 60,122,198 168,553 290,541 (2,320,431) (17,667) (1,267) 57,801,767 440,160
Comprehensive earnings, 1998
Net earnings 40,801 40,801
Minimum pension liability
(net of $2,047 deferred tax) (3,408) (3,408)
Comprehensive earnings, 1998 37,393
Cash dividends declared (15,631) (15,631)
Retirement of preferred
stock of subsidiary 935 935
Purchases of treasury stock (4,285,900) (68,200) (4,285,900) (68,200)
Stock options exercised 998 97,972 743 97,972 1,741
Tax benefit related to stock
options 200 200
Fractional shares added to
treasury 614 (614) (12) (614) (12)
Balances December 31, 1998 60,122,812 170,686 315,711 (6,508,973) (85,136) (4,675) 53,613,839 396,586
Comprehensive earnings, 1999
Net earnings 42,417 42,417
Minimum pension liability
(net of $2,270 deferred tax) 3,651 3,651
Comprehensive earnings, 1999 46,068
Cash dividends declared (16,598) (16,598)
Stock options exercised ( 4) 9,778 134 9,778 130
Purchases of treasury stock (2,206,926) (32,426) (2,206,926) (32,426)
Balances December 31, 1999 60,122,812 $170,682 $341,530 (8,706,121) ($117,428)($ 1,024) 51,416,691 $393,760
</TABLE>
-27-
<PAGE>
SEE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
WAUSAU-MOSINEE PAPER CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1. SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION - The consolidated financial statements include
the accounts of the Company and its subsidiaries. All significant
intercompany transactions, balances and profits have been eliminated in
consolidation. The consolidated statements give retroactive effect to
the merger with Mosinee Paper Corporation ("Mosinee").
On December 17, 1997, Wausau Paper Mills Company ("Wausau") completed a
merger with Mosinee ("the Mosinee merger") in which Mosinee became a
wholly owned subsidiary of Wausau. Simultaneous with the consummation
of the Mosinee merger, Wausau changed its name to Wausau<circle>Mosinee
Paper Corporation ("the Company"). Prior to the merger, Wausau's
fiscal year-end was August 31 and Mosinee's was December 31. Subsequent
to the Mosinee merger, the Company adopted a calendar year-end. As a
result of the change in fiscal year and the merger accounted for as a
pooling of interests, the Company's 1997 financial statements have been
recast to a twelve-month period ending December 31, 1997.
REVENUE RECOGNITION - Revenue is recognized upon shipment of goods and
transfer of title to the customer. The Company grants credit to
customers in the ordinary course of business. A substantial portion
of the Company's accounts receivable is with customers in various paper
converting industries or the paper merchant business. Concentrations
of credit risk with respect to trade receivables are limited due to the
large number of customers and their geographic dispersion.
USE OF ESTIMATES IN PREPARATION OF CONSOLIDATED FINANCIAL STATEMENTS -
The preparation of the accompanying financial statements in conformity
with generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts of
assets, liabilities, revenue and expenses. Actual results may differ
from these estimates.
CASH EQUIVALENTS - The Company defines cash equivalents as highly
liquid, short-term investments with an original maturity of three
months or less.
INVENTORIES - Pulpwood, finished paper products and the majority of raw
materials are valued at the lower of cost, determined on the last-in,
first-out (LIFO) method, or market. All other inventories are valued
at the lower of average cost or market. Allocation of the LIFO reserve
among the components of inventories is impractical.
PROPERTY, PLANT AND EQUIPMENT - Plant and equipment are stated at cost
and are depreciated over the estimated useful lives of the assets using
the straight-line method for financial statement purposes. Land, water
power rights, and construction in progress are stated at cost. The
cost and related accumulated depreciation of all plant and equipment
<PAGE>
retired or otherwise disposed of are removed from the accounts, and any
resulting gains or losses are included in the statements of income.
Buildings are depreciated over a 20 to 45-year period; machinery and
equipment over a 3 to 20-year period. Maintenance and repair costs are
charged to expense as incurred. Renewals and improvements which extend
the useful lives of the assets are added to the plant and equipment
accounts.
-28-
Equipment financed by long-term leases, which in effect are installment
purchases, have been recorded as assets and the related obligations as
debt. Depreciation expense includes amortization on capitalized
leases.
Timberlands are stated at net depleted value. Depletion expense is
calculated using the block and unit-of production methods. The block
method groups timberland into logical management areas called "blocks"
for which the cost basis is determinable. The annual depletion is
determined by multiplying the per unit cost basis of the block of
timber by the number of units harvested from the block during the year.
INCOME TAXES - Deferred income taxes have been provided under the
liability method. Deferred tax assets and liabilities are determined
based upon the estimated future tax effects of differences between the
financial statement and tax bases of assets and liabilities, as
measured by the current enacted tax rates. Deferred tax expense is the
result of changes in the deferred tax asset and liability.
EARNINGS PER SHARE - Basic earnings per common share are based on the
weighted average number of common shares outstanding. Diluted earnings
per common share are based on the weighted average number of common
shares and common stock equivalents (options) outstanding.
FUTURES CONTRACTS - The Company utilizes futures contracts to
periodically hedge the price risk of anticipated purchases of pulp and
other commodity products. Changes in the market value of the futures
contracts are included as part of the acquisition price of pulp and
other commodity products and are realized when the finished paper is
sold and the other commodity products are consumed. Statement of
Financial Accounting Standards (SFAS) No. 133, "Accounting for
Derivative Instruments and Hedging Activities" will be adopted
by January 1, 2001. The statement establishes accounting and reporting
standards for derivatives. The effect on the Company is not expected
to be material.
CHANGES IN ACCOUNTING POLICIES - On January 1, 1998, the Company
adopted Statements of Financial Accounting Standards (SFAS) No.
130, "Reporting Comprehensive Income," No. 131, "Disclosures about
Segments of an Enterprise and Related Information," and No. 132,
"Employers' Disclosures about Pensions and Other Postretirement
Benefits." SFAS No. 130 requires companies to report all changes in
net assets, such as minimum pension liability adjustments, as a
component of comprehensive income. SFAS No. 131 requires certain
disclosures of the company's segments including general information,
segment profits and assets, and a reconciliation of segment financial
<PAGE>
condition and results of operations to the corresponding company
amounts. SFAS No. 132 revises employers' disclosures about pension and
other postretirement benefit plans.
NOTE 2. MERGERS AND ACQUISITIONS
On December 17, 1997, the Company completed the Mosinee merger. The
merger qualified as a tax-free exchange and was accounted for as a
pooling of interests. Wausau issued 1.4 shares of common stock for
each share of Mosinee outstanding common stock. A total of 21,281,795
shares (after adjustment for fractional shares) of the Company's common
stock was issued as a result of the merger, and Mosinee's outstanding
stock options were converted into options to purchase approximately
596,000 common shares. In connection with the merger, the Company
incurred $13,503,000 ($13,203,000 after taxes, or $ .23 per common
share) of merger-related costs which were charged to operations during
the year ended December 31, 1997.
-29-
The following table presents a reconciliation of net sales and net
earnings previously reported by the Company to those presented in the
accompanying consolidated financial statements.
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) For the year
ended December 31,
1997
<S> <C>
Net sales:
Wausau $594,913
Mosinee 338,214
Combined $933,127
Net earnings:
Wausau $ 40,379
Mosinee 25,019
Combined $ 65,398
</TABLE>
On May 12, 1997, the Company acquired the business and assets of Otis
Specialty Papers ("Otis"). The acquisition was accounted for using the
purchase method of accounting. The financial statements reported
herein include the net sales, operating profit and net earnings of Otis
from the date of purchase. The following table presents unaudited pro
forma condensed results of operations for the year ended December 31,
1997, as if the acquisition were completed at the beginning of the
period:
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1997
<S> <C>
Net sales $965,982
Operating profit 124,218
Net earnings 66,673
Net earnings per share-basic $ 1.15
</TABLE>
The unaudited pro forma financial information includes certain
<PAGE>
immaterial assumptions or adjustments which the Company believes are
necessary to fairly present such information. Historical costs
representing the seller's corporate allocations, interest expense and
one-time expenses related to the sale of Otis are included in the pro
forma information. The pro forma information does not purport to
represent what the Company's results of operations would actually have
been if this transaction had occurred at the beginning of the earliest
period presented.
On April 1, 1997, Mosinee acquired the business and assets of B&J
Supply, Inc. ("B&J"), a converter and nationwide supplier of school
papers. The acquisition was accounted for using the purchase method of
accounting. The results of operations of B&J from the date of purchase
have been included in the reported results of operations since the date
of acquisition. Had the purchase been consummated at the beginning of
fiscal 1997, operating results on a pro forma basis would not have been
significantly different.
NOTE 3. RESTRUCTURING
In March 1998, the Company began implementation of a workforce
reduction program. The purpose of the program was to reduce the number
of employees by 400 through early retirement incentives along with
voluntary separation arrangements, involuntary severance programs and
process automation. As a result of the program implementation, the
-30-
Company recorded a pre-tax restructuring charge of $37.7 million in the
first quarter of 1998. The charge was based on estimates of the cost
of the workforce reduction program, including special termination
benefits, settlement and curtailment losses related to pension and
postretirement benefit plans. In the fourth quarter of 1998, an
additional pre-tax expense of $5.1 million was recorded to recognize
adjustments to the previous estimates of the early retirement
incentives and to recognize additional expenses associated with
integration costs.
All of the benefits under the program have been paid or have been
transferred as obligations of the Company's retirement plans as of
December 31, 1999.
<PAGE>
NOTE 4. SUPPLEMENTAL BALANCE SHEET INFORMATION
<TABLE>
<CAPTION>
December 31,
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998
<S> <C> <C>
RECEIVABLES
Trade $ 82,592 $ 73,950
Other 2,670 3,068
Less allowances 85,262 77,018
( 11,285) ( 10,062)
$ 73,977 $ 66,956
INVENTORIES
Raw materials $ 57,682 $ 58,547
Work in progress and finished goods 93,370 75,906
Supplies 29,869 28,447
Inventories at cost 180,921 162,900
LIFO reserve ( 25,099) ( 12,683)
$ 155,822 $ 150,217
PROPERTY, PLANT AND EQUIPMENT
Buildings Machinery and equipment $ 127,075 $ 124,855
Totals 963,631 882,836
1,090,706 1,007,691
Less: accumulated depreciation ( 477,391) ( 427,954)
Net depreciated value 613,315 579,737
Land 5,435 5,382
Timber and timberlands, net depletion 5,071 5,166
Water power rights 129 129
Construction in progress 29,873 34,651
$ 653,823 $ 625,065
ACCRUED AND OTHER LIABILITIES
Payrolls $ 5,134 4,721
Vacation pay 11,336 10,861
Employee retirement plans 8,749 6,942
Taxes and other income 3,124 4,978
Cash dividends declared 4,118 3,753
Stock appreciation rights 3,224 6,927
Other 11,698 12,602
$ 47,383 $ 50,784
</TABLE>
-31-
NOTE 5. DEBT
At December 31, 1998 the Company's short-term notes payable consisted
of $20,000,000 outstanding under an unsecured debt arrangement with one
financial institution and $25,466,000 outstanding under two separate
revolving lines of credit.
The $20,000,000 unsecured debt arrangement was entered into by the
Company on September 30, 1994, at an interest rate of 7.83%. Interest
was paid monthly and the principal was paid in September 1999.
During 1998, two banks participating in the revolving credit
arrangement with the Company provided separate lines of credit. One
line of credit provided for borrowing up to $20,000,000. Specific
rates and terms of the loans were determined at the time of borrowing.
<PAGE>
At December 31, 1998, there was $17,000,000 borrowed against this line
of credit at a weighted average interest rate of 5.65%. The second
line of credit provided for borrowing up to $60,000,000 at rates and
terms negotiated at the time of borrowing. At December 31, 1998, there
was $22,000,000 borrowed against this line of credit at a weighted
average interest rate of 5.77%. As of December 31, 1998, of the total
borrowings against the lines of credit, $25,466,000 was classified as
short-term and $13,534,000 was classified as long-term as the Company
intended and had the ability to refinance the obligations under the
revolving credit agreement. Both lines of credit were paid in 1999
from proceeds of the senior promissory notes.
The Company's long-term debt, excluding current maturities as of
December 31, consists of the following:
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998
<S> <C> <C>
Senior promissory notes $141,500 $ 3,000
Line of credit - 13,534
Industrial development bonds 19,000 19,000
Revolving credit facility agreements 50,000 75,000
Commercial paper 9,735 16,466
Capitalized leases 241 -
Totals $220,476 $ 127,000
</TABLE>
On December 10, 1999, the Company terminated the existing $105 million
unsecured revolving credit agreement and entered into a $200 million
unsecured revolving credit agreement. The facility is with a
four-member bank group and provides an unsecured short-term revolving
credit facility of $50 million and a $150 million multi-year revolving
credit facility, which matures on December 10, 2004. The short-term
facility may be extended to the first anniversary date of the specified
maturity date then in effect for the short-term facility if there are
no events of default under such facility at the time of the extension
request. The Company may elect the base for interest from either
domestic or offshore rates. In addition, the facility provides for
competitive bid rates amongst the bank group. The credit facility
provides for a facility fee based on quarterly funded
debt/capitalization ratios.
Based on funded debt and equity levels at December 31, 1999, the
short-term facility fee was .15% and the multi-year facility fee was
.175%. The weighted average interest rate on borrowings under the
facility at December 31, 1999 was 6.63%.
At December 31, 1998, the Company maintained an unsecured revolving
credit facility of $105 million with four banks. The agreement was
terminated on December 10, 1999 and all outstanding borrowings on that
date were refinanced under the $200 million revolving credit agreement.
At December 31, 1998, the weighted average interest rate on borrowings
under the $105 million facility was 5.58%.
-32-
<PAGE>
On August 31, 1999, the Company closed and funded a private placement
note offering for $138,500,000. The principal amounts, maturities, and
interest rates on the notes are: (1) $35,000,000, 8 years, 7.20%; (2)
$68,500,000, 10 years, 7.31%; and (3) $35,000,000, 12 years, 7.43%.
The Company also entered into an interest rate swap agreement under
which the interest rate paid by the Company with respect to (1)
$58,500,000 of the 10-year notes will be the three month LIBOR rate,
plus .4925% and (2) $30,000,000 of the 12-year notes will be the three
month LIBOR rate, plus .55%.
The Company has outstanding $3 million in unsecured senior promissory
notes. Interest is payable quarterly on the outstanding balance at a
rate of 6.03% per annum. Principal is payable in equal semi-annual
installments, with the final payment due June 16, 2000. At December
31, 1999, the amount has been classified as long-term as the Company
intends and has the ability to refinance the obligation under the
revolving credit agreement.
During 1995, the Company borrowed $19 million related to industrial
development bonds issued by a local governmental unit. The variable
rate bonds require quarterly interest payments and had an interest rate
of 5.30% at December 31, 1999 and 4.30% at December 31, 1998. The
Company also pays fees for a bank letter of credit and remarketing
services related to the bonds which it includes in net interest
expense. The interest rate can be converted to a fixed rate, at the
Company's option, after which semi-annual interest payments will be
required. The bonds mature on July 1, 2023.
The senior promissory notes, long-term note and the revolving credit
facility agreements require the Company to comply with certain
covenants, one of which requires the Company maintain minimum net
worth. At December 31, 1999, $91 million of retained earnings was
available for payment of cash dividends without violation of the
minimum net worth covenant related to the senior promissory notes.
The Company maintains a commercial paper placement agreement with a
bank to issue up to $40 million of unsecured debt obligations which
requires unused credit availability under its revolving credit
agreement equal to the amount of outstanding commercial paper. At
December 31, 1999 and December 31, 1998, $9,735,000 and $16,466,000
were outstanding, respectively. The weighted average interest rate on
outstanding commercial paper was 6.2% at December 31, 1999 and 5.6% at
December 31, 1998. At December 31, 1999, the amounts have been
classified as long-term as the Company intends and has the ability to
refinance the obligations under the revolving credit agreement.
The aggregate annual maturities of long-term debt are as follows:
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS)
2000 2001 2002 2003 2004 THEREAFTER
<S> <C> <C> <C> <C> <C>
$230 $241 - - $62,735 $157,500
</TABLE>
<PAGE>
Annual maturities will be affected by future borrowings.
NOTE 6. LEASE COMMITMENTS
The Company has various leases for real estate, mobile equipment and
machinery which generally provide for renewal privileges or for
purchase at option prices established in the lease agreements.
Property, plant and equipment includes the following amounts for
capitalized leases:
-33-
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998
<S> <C> <C>
Machinery and equipment $ 1,815 $ 1,416
Allowance for amortization (1,341) (1,178)
Net value $ 474 $ 238
</TABLE>
Lease amortization is included in depreciation expense.
Future minimum payments, by year and in the aggregate, under
capitalized leases and noncancelable operating leases with initial
or remaining terms of one year or more consisted of the following at
December 31, 1999:
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS)
Capital Operating
LEASES LEASES
<S> <C> <C>
2000 $ 230 $1,920
2001 241 1,381
2002 - 724
2003 - 430
2004 - 432
Thereafter - 1,569
Total minimum payments $ 471 $6,456
</TABLE>
The future minimum payments for capitalized leases are reflected in the
aggregate annual maturities of long-term debt disclosure in Note 5.
Rental expense for all operating leases was as follows:
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998 1997
<S> <C> <C> <C>
Rent expense $5,530 $5,346 $5,154
</TABLE>
Contingent rentals were not
material.
-34-
NOTE 7. INTEREST EXPENSE AND CAPITALIZED INTEREST
<PAGE>
<TABLE>
<CAPTION>
Total Net
Interest Capitalized Interest
(ALL DOLLAR AMOUNTS IN THOUSANDS) EXPENSE INTEREST EXPENSE
<S> <C> <C> <C>
1999 $12,418 $595 $ 11,823
1998 8,406 723 7,683
1997 8,595 492 8,103
</TABLE>
NOTE 8. RETIREMENT AND OTHER POSTRETIREMENT BENEFIT PLANS
Substantially all employees are covered under retirement plans. The
defined benefit plan covering salaried employees in 1998 was converted
to a cash balance plan additionally covering non-union employees in
1999. This plan is a defined benefits plan that provides benefits
based on pay and company performance; the plans covering hourly
employees provide benefits based on years of service and fixed benefit
amounts for each year of service. The plans are funded in accordance
with federal laws and regulations.
The Company selected measurement dates of plan assets of September 30,
1999 and 1998.
In 1998, the Company offered a voluntary early retirement program to
encourage early retirements among certain salaried and hourly
employees. The program was part of the restructuring plan discussed
in Note 3 to the consolidated financial statements. As a result,
curtailment and settlement charges of $5.9 million and special
termination benefit charges of $23.3 million were recorded as a
component of the restructuring expense recognized in 1998.
The following are reconciliations of the projected benefit obligations
and the value of plan assets for 1999 and 1998:
<PAGE>
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998
<S> <C> <C>
Change in benefit obligation
Balance, beginning of year $ 109,806 $ 119,379
Service cost 4,660 4,687
Interest cost 7,221 8,421
Amendments to the plan (245) 938
Actuarial (gain) loss (8,058) 13,276
Benefits paid to participants (8,991) (7,835)
Curtailments - (1,451)
Settlements - (48,170)
Special termination benefits - 20,561
Balance, end of the year $ 104,393 $ 109,806
Change in plan assets
Fair value, beginning of year $ 55,636 $ 109,617
Actual return on plan assets 11,579 ( 3,844)
Company contributions 6,344 5,868
Benefits paid to participants ( 8,991) ( 7,835)
Settlements - ( 48,170)
Cash contributions to plans subsequent
to measurement date 503 -
Fair value, end of year $ 65,073 $ 55,636
</TABLE>
-35-
At December 31, 1999 and 1998, the funded status of the plans were as follows:
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998
<S> <C> <C>
Excess of the benefit obligations
over the value of the plan assets ( $39,320) ( $54,170)
Unrecognized net actuarial (gain) loss ( 2,436) 12,626
Unrecognized prior service cost 13,836 15,559
Unamortized tax benefit 304 -
Unrecognized transition asset ( 729) ( 891)
Net amount recognized at end of year ( $28,345) ( $26,876)
</TABLE>
For 1999 and 1998, the net amount recognized in the balance sheet was
classified as follows:
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998
<S> <C> <C>
Prepaid benefit cost $ - $ -
Accrued benefit liability ( 42,163) ( 48,334)
Intangible asset 12,171 13,890
Accumulated other comprehensive income 1,647 7,568
Net amount recognized at end of year ( $28,345) ( $26,876)
</TABLE>
For 1999 and 1998, the following weighted average interest rates were used to
determine the projected benefit obligation:
<PAGE>
<TABLE>
<CAPTION>
1999 1998
<S> <C> <C>
Discount rate on the benefit plan 7.5% 7.0%
Rate of expected return on plan assets 9.0% 9.0%
Rate of employee compensation increase 5.0% 5.0%
</TABLE>
Plan assets consist principally of publicly traded stocks and fixed
income securities. At December 31, 1998, the plan assets included
Wausau<circle>Mosinee common stock with a market value of $8,918,000.
During 1999 the Company repurchased all shares held by the plan. At
December 31, 1999, there was no Wausau<circle>Mosinee common stock
included in plan assets.
Net periodic pension cost was comprised of the following:
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998 1997
<S> <C> <C> <C>
Service cost $ 4,660 $ 4,687 $ 2,950
Interest cost 7,221 8,421 5,435
Expected return on plan assets ( 4,919) ( 7,576) ( 13,120)
Amortization of:
Actuarial loss 345 201 8,408
Prior service cost 1,478 1,570 1,418
Transition asset ( 163) ( 231) ( 236)
Subtotal 8,622 7,072 4,855
Components charged to restructuring expense:
Special termination benefit 20,561
Settlement and curtailment 310
Subtotal 20,871
Total net periodic pension cost $ 8,622 $ 27,943 $ 4,855
</TABLE>
-36-
At December 31, 1999 and 1998, aggregate amounts relating to underfunded plans
are as follows:
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998
<S> <C> <C>
Projected benefit obligation $104,393 $109,806
Accumulated benefit obligation 93,150 98,482
Fair value of plan assets 65,073 55,636
</TABLE>
The Company also sponsors defined contribution pension plans, several
of whichprovide for Company contributions based on a percentage of
employeecontributions. The cost of such plans totaled $1,060,000 in
1999, $3,066,000 in 1998 and $3,872,000 in 1997.
The Company has deferred compensation or supplemental retirement
agreements with certain present and past key officers, directors, and
employees. The principal cost of such plans is being or has been
accrued over the period of active employment to the full eligibility
date. The annual cost of the deferred compensation and supplemental
retirement agreements is not material.
<PAGE>
The Company sponsors unfunded defined benefit postretirement health and
life insurance plans that cover substantially all employees reaching
normal retirement age while working for the Company. Benefits and
eligibility for various employee groups vary by location and union
agreements. Generally, employees are eligible after reaching age 55 or
62 and meeting minimum service requirements. At age 65, the benefits
become coordinated with Medicare. Effective January 1, 1999, the
salaried plan was amended whereby employees not yet 45 years of age are
no longer eligible for postretirement benefits. The amendment resulted
in a curtailment gain in 1999. The Company funds the benefit costs
on a current basis.
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998
<S> <C> <C>
Change in postretirement benefit
obligation
Balance, beginning of year $ 70,505 $ 59,060
Service cost 1,870 2,049
Interest cost 4,501 4,235
Plan participants' contributions 526 491
Amendments to the plan (706) (2,025)
Actuarial (gain) loss (5,116) 2,035
Benefits paid for participants (4,610) (3,657)
Curtailments (1,874) 5,594
Special termination benefits --- 2,723
Balance, end of the year $ 65,096 $ 70,505
</TABLE>
At December 31, 1999 and 1998, the status of the plan was as follows:
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998
<S> <C> <C>
Excess of the benefit obligation over
the value of plan assets ($ 65,096) ($ 70,505)
Unrecognized net actuarial loss 4,361 9,569
Unrecognized prior service cost ( 2,341) ( 1,861)
Accrued benefit cost ($ 63,076) ($ 62,797)
</TABLE>
-37-
The following weighted-average rates were used:
<TABLE>
<CAPTION> 1999 1998
<S> <C> <C>
Discount rate on the benefit obligation 7.5% 7.0%
</TABLE>
For 1999, the assumed health care cost trend rate used in measuring the
accumulated post-retirement benefit obligation was 6%, declining by 1%
annually for one year to an ultimate rate of 5%. For 1998, the assumed
health care cost trend rate used in measuring the accumulated
postretirement benefit obligation was 7%, declining by 1% annually for
two years to an ultimate rate of 5%.
<PAGE>
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998 1997
<S> <C> <C> <C>
Service cost $ 1,870 $ 2,049 $ 1,746
Interest cost 4,501 4,235 3,627
Amortization of:
Actuarial loss 90 91 117
Prior service cost ( 226) ( 164)
Curtailments and settlements ( 1,874)
Subtotal 4,361 6,211 5,490
Components charged to restructuring
expense:
Special termination benefit 2,723
Curtailments 5,594
Subtotal 8,317
Total net periodic cost $ 4,361 $ 14,528 $ 5,490
</TABLE>
Assumed health care cost trend rates significantly impact reported
amounts. The effect of a one-percentage-point change in the assumed
rates would alter the amounts of the benefit obligation and the sum of
the service cost and interest cost components of postretirement benefit
expense as follows for 1999:
<TABLE>
<CAPTION>
ONE-PERCENTAGE-POINT
(ALL DOLLAR AMOUNTS IN THOUSANDS) INCREASE DECREASE
<S> <C> <C>
Effect on the postretirement benefit $ 7,503 ($ 6,670)
obligation
Effect on the sum of the service cost
and interest cost components $ 981 ($ 838)
</TABLE>
NOTE 9. INCOME TAXES
Deferred tax assets and liabilities are determined based on the
estimated future tax effects of temporary differences between the
financial statement and tax bases of assets and liabilities, as
measured by the current enacted tax rates. Deferred tax expense
(benefit) is the result of changes in the deferred tax asset and
liability.
-38-
The provision for income taxes is comprised of the following:
<PAGE>
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998 1997
<S> <C> <C> <C>
Current tax expense:
Federal $13,063 $21,880 $33,208
State 1,613 3,492 3,918
Total current 14,676 25,372 37,126
Deferred tax expense (benefit):
Federal 9,762 ( 321) 9,623
State 1,162 ( 51) 1,442
Total deferred 10,924 ( 372) 11,065
Total provision for income taxes $25,600 $25,000 $48,191
</TABLE>
A reconciliation between taxes computed at the federal statutory rate
and the Company's effective tax rate follows:
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998 1997
<S> <C> <C> <C> <C> <C> <C>
Federal statutory tax rate $23,827 35.0% $23,030 35.0% $39,763 35.0%
State taxes (net of federal
tax benefits) 1,804 2.6 2,237 3.4 3,484 3.1
Nondeductible merger expenses - - - 4,446 3.9
Other ( 31) - ( 267) ( .4) 498 0.4
Effective tax $25,600 37.6% $25,000 38.0% $48,191 42.4%
</TABLE>
At the end of 1999, $23,000,000 of unused state operating loss
carryovers existed which may be used to offset future state taxable
income in various amounts through the year 2011. Because separate
state tax returns are filed, the Company is not able to offset
consolidated income with the subsidiaries' losses. Under the
provisions of SFAS No. 109, the benefits of state tax losses are
recognized as a deferred tax asset, subject to appropriate valuation
allowances.
-39-
The major temporary differences that give rise to the deferred tax
assets and liabilities at December 31, 1999 and 1998 are as follows:
<PAGE>
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998
<S> <C> <C>
Deferred tax asset:
Allowances on accounts receivable $ 1,986 $ 2,213
Accrued compensated absences 3,636 3,472
Stock appreciation rights plans 1,866 3,552
Pensions 11,436 13,316
Inventories 1,912 2,262
Postretirement benefits 24,437 24,534
Postemployment benefits 331 343
Other accrued liabilities 1,515 2,043
State net operating loss carry forward 1,445 1,902
Other 1,758 1,493
Gross deferred tax asset 50,322 55,130
Less: valuation allowance ( 1,764) ( 1,636)
Net deferred tax assets 48,558 53,494
Deferred tax liability:
Property, plant and equipment ( 131,211) ( 124,117)
Other ( 5,986) ( 5,944)
Gross deferred tax liability ( 137,197) ( 130,061)
Net deferred tax liability ($ 88,639) ($ 76,567)
</TABLE>
The total deferred tax liabilities (assets) as presented in the
accompanying consolidated balance sheets are as follows:
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998
<S> <C> <C>
Net long-term deferred tax liabilities $ 103,386 $ 94,911
Gross current deferred tax assets ( 16,511) ( 19,980)
Valuation allowance on deferred tax assets 1,764 1,636
Net current deferred tax assets ( 14,747) ( 18,344)
Net deferred tax liability $ 88,639 $ 76,567
</TABLE>
A valuation allowance has been recognized for a subsidiary's state loss
carry forward and future deductible items as cumulative losses create
uncertainty about the realization of the tax benefits in future
years.
NOTE 10. STOCK OPTIONS AND APPRECIATION RIGHTS
The Company maintains various employee stock option plans. The plans
specify purchase price, time and method of exercise. Payment of the
option price may be made in cash or by tendering an amount of common
stock having a fair market value equal to the option price.
Options are granted for terms up to 20 years, the option price being
equal to the fair market value of the Company's common stock at the
date of grant for incentive and non-qualified options.
-40-
<PAGE>
The following table summarizes the activity relating to the Company's
stock option plans:
<TABLE>
<CAPTION>
Stock Options: 1999 1998 1997
Weighted Weighted Weighted
Average Average Average
Exercise Exercise Exercise
Shares Price Shares Price Shares Price
<S> <C> <C> <C> <C> <C> <C>
Options outstanding
at beginning of year 1,052,250 $13.93 1,030,722 $14.19 949,791 $16.33
Granted 335,265 15.55 162,000 17.16 115,500 18.13
Terminated ( 55,362) 17.97 ( 42,500) 23.56 ( 27,125) 17.78
Exercised ( 9,778) 13.13 ( 97,972) 16.50 ( 7,444) 16.19
Options outstanding
at end of year 1,322,375 $14.18 1,052,250 $13.93 1,030,722 $14.19
Options exercisable at
end of year 1,282,375 $14.23 887,250 $13.32 1,027,722 $14.17
</TABLE>
The Company has adopted Statement of Financial Accounting Standard
(SFAS) No. 123, "Accounting for Stock-Based Compensation." As
permitted under SFAS No. 123, the company will continue to measure
compensation cost for stock option plans using the "intrinsic value
based method" prescribed under APB No. 25, "Accounting for Stock Issued
to Employees." Accordingly, no compensation cost has been recognized
for the stock option plans. If compensation cost had been determined
consistent with the provisions of SFAS No. 123, which prescribes the
"fair value based method" on the grant date, both basic and diluted
earnings per share would have been $.78, $.73 and $1.12 for the years
ended December 31, 1999, 1998, and 1997, respectively.
The fair value of each option grant has been estimated on the grant
date using the Black-Scholes option pricing model based on the
following weighted-average assumptions:
<TABLE>
<CAPTION>
1999 1998
<S> <C> <C>
Risk-free interest rate 4.92% 4.55%
Expected life in years 6 6
Price volatility 30.42% 29.60%
Dividend yield 1.86% 1.63%
</TABLE>
The Company maintains various stock appreciation rights plans that
entitle certain management employees the right to receive cash equal
to the sum of the appreciation in the value of the stock and the
hypothetical value of cash dividends which would have been paid on the
stock covered by the grant assuming reinvestment in Company stock. The
stock appreciation rights granted may be exercised in whole or in such
installments and at such times as specified in the grant. In all
instances, the rights lapse if not exercised within 20 years of the
grant date. Compensation expense is recorded with respect to the
<PAGE>
rights based upon the quoted market value of the shares and the
exercise provisions.
-41-
The following table summarizes the activity relating to the Company's
stock appreciation rights plans:
<TABLE>
Stock Appreciation Rights:
<CAPTION>
1999 1998 1997
<S> <C> <C> <C>
Rights outstanding at beginning of
year (number of shares) 952,991 561,907 598,008
Granted 106,558 415,905 -
Terminated ( 405,905) - -
Exercised ( 28,789) ( 24,821) ( 36,101)
Rights outstanding at end of year
(number of shares) 624,855 952,991 561,907
Rights exercisable at end of year
(number of shares) 624,855 952,991 561,907
Price range of stock appreciation
rights exercised $4.46 $4.46 $4.46-5.64
Price range of outstanding stock
appreciation rights $4.06-17.16 $4.06-19.06 $4.06-19.06
</TABLE>
The Company maintains the 1991 Dividend Equivalent Plan. Participants
are entitled to receive cash based on the hypothetical value of cash
dividends which would have been paid on the stock covered by the grant
assuming reinvestment in Company stock.
<TABLE>
Dividend Equivalents:
<CAPTION>
1999 1998 1997
<S> <C> <C> <C>
Equivalents outstanding at beginning of
year (number of shares) 257,930 296,778 276,347
Granted - - 70,000
Exercised ( 52,497) ( 38,848) ( 25,569)
Terminated - - ( 24,000)
Equivalents outstanding at end of year
(number of shares) 205,433 257,930 296,778
Equivalents exercisable at end of year
(number of shares) 205,433 257,930 293,778
</TABLE>
The provision (credit) for all stock option discounts, dividend
equivalents and stock appreciation rights for the years ended December
31, 1999, 1998 and 1997 was ($3,250,000), ($1,520,000) and $2,140,000,
respectively.
NOTE 11. RESEARCH EXPENSES
Research expenses charged to operations were $2,293,000 in 1999,
$2,577,000 in 1998 and $1,577,000 in 1997.
-42-
NOTE 12. COMMITMENTS, CONTINGENCIES AND RELATED PARTIES
<PAGE>
In 1997, the Attorney General of the State of Florida filed a civil
complaint in the United States District Court for the Northern District
of Florida against ten manufacturers of commercial sanitary paper
products, including the Company's wholly owned subsidiary, Bay West
Paper Corporation. The lawsuit alleges a conspiracy to fix prices of
commercial sanitary paper products starting at least as early as 1993.
Since the filing of this lawsuit, numerous class action suits have been
filed by private direct purchasers of commercial sanitary paper
products in various district courts throughout the country and
additional federal lawsuits have been filed by the Attorneys General of
the States of Kansas, Maryland, New York, and West Virginia. All of
these federal cases have been certified as class actions and
consolidated in a multi-district litigation proceeding in the United
States District Court for the Northern District of Florida in
Gainesville. Certain indirect purchasers of sanitary commercial paper
products have also filed class action lawsuits in various state courts
alleging a conspiracy to fix prices under state anti-trust laws. No
class has been certified in the state actions. In the opinion of
management, the Company has not violated any antitrust laws and
these cases are without merit. The Company is vigorously defending
these claims.
The Company may also be involved from time to time in various other
legal and administrative proceedings or be subject to various claims
in the normal course of its business. Although the ultimate
disposition of legal proceedings cannot be predicted with certainty,
in the opinion of management, the ultimate disposition of any
threatened or pending matters, either individually or on a combined
basis, will not have a material adverse effect on the consolidated
financial condition, liquidity, or results of operations of the
Company.
Like its competitors, the Company is subject to extensive regulation by
various federal, state, provincial, and local agencies concerning
compliance with environmental control statutes and regulations. These
regulations impose limitations, including effluent and emission
limitations, on the discharge of materials into the environment, as
well as require the Company to obtain and operate in compliance with
conditions of permits and other governmental authorizations. Future
regulations could materially increase the Company's capital
requirements and certain operating expenses in future years.
In 1997, the U.S. Environmental Protection Agency published
regulations, commonly referred to as the "Cluster Rules," affecting
pulp and paper industry discharges of wastewater and gaseous emissions.
These rules require changes in the pulping and bleaching processes
presently used in some U.S. pulp mills, including some of the Company's
mills. Based on its evaluation of the rules, the Company spent
approximately $1.2 million in 1999 and believes that additional capital
expenditures of approximately $20 million may be required to comply
with the Cluster Rules over 2000 and 2001.
As of December 31, 1999, the Company was committed to spend
approximately $64 million to complete capital projects which were
in various stages of completion.
<PAGE>
The Company is a party to a natural gas transportation agreement with
the Portland Natural Gas Transmission System (PNGTS). Under the terms
of the agreement, PNGTS has constructed the necessary gas supply and
delivery equipment to the Company's Groveton, New Hampshire mill. The
Company is committed to the transportation of a fixed volume of natural
gas until November 2019.
During 1999, the Company purchased 500,757 shares of its stock for
$7,901,480 from various retirement plans it maintains. All purchases
were made at the market price of the stock as traded on the New York
Stock Exchange on the date of purchase.
-43-
NOTE 13. PREFERRED SHARE PURCHASE RIGHTS PLAN
On October 21, 1998, the Board of Directors adopted a shareholder
rights plan under which one preferred share purchase right (a "Right")
is issued for each outstanding share of common stock of the Company
(the "Common Shares"). Each Right entitles its holder to purchase from
the Company one one-thousandth of a share of Series A Junior
Participating Preferred Stock of the Company, without par value (the
"Preferred Shares"), at a price of $60 per one one-thousandth of a
Preferred Share (the "Purchase Price"), subject to adjustment. The
Rights will become exercisable only in connection with a transaction
in which a person or group (with certain exceptions) acquires
beneficial ownership of 15% or more of the outstanding Common Shares
(an "Acquiring Person"). Once exercisable, each holder of a Right,
other than the Acquiring Person, will thereafter have the right to
receive upon exercise that number of Common Shares having a market
value of two times the exercise price of the Right. If the Company is
acquired in a merger or other business combination transaction
or 50% or more of its consolidated assets or earning power are sold
after the rights become exercisable, each holder of a Right, other
than an Acquiring Person, will thereafter have the right to receive
that number of shares of common stock of the acquiring Company which at
the time of such transaction will have a market value of two times the
exercise price of the Right.
Until a Right is exercisable, the holder will have no rights as a
shareholder of the Company. At any time after any person or group
becomes an Acquiring Person, and prior to the acquisition by such
person or group of 50% or more of the outstanding Common Shares, the
Company may exchange the Rights, other than Rights owned by the
Acquiring Person, in whole or in part, at an exchange ratio of one
Common Share per Right (subject to adjustment). At any time prior to
any person or group becoming an Acquiring Person, the Board of
Directors may redeem the Rights in whole, but not in part, at a
price of $ .01 per Right. The Rights will expire on October 31, 2008
unless the expiration date is extended or unless the Rights are
redeemed or exchanged by the Company prior to expiration.
NOTE 14. FUTURES CONTRACTS
At December 31, 1999, the Company was party to various futures
contracts for the purchase of natural gas. The natural gas contracts
require the Company to purchase 300,000 decatherms of natural gas
<PAGE>
during 2000. The delivered price of natural gas varies from $3.085 to
$3.169 per decatherm. At December 31, 1999, the Company's futures
contracts have no carrying value. The fair value of the contracts and
the total deferred gain or loss on the contracts are immaterial at
December 31, 1999.
NOTE 15. FINANCIAL INSTRUMENTS
The fair value of the following financial instruments is not materially
different from the carrying value: cash and cash equivalents, long-term
debt, interest rate agreement, capital leases and futures contracts.
The following methods and assumptions were used by the Company in
estimating fair values of financial instruments:
Cash and cash equivalents - The carrying amount approximates fair value
due to the relatively short period to maturity for these instruments.
Long-term debt - The fair value of the Company's long-term debt is
estimated based on current rates offered to the Company for debt of
the same remaining maturities.
-44-
Interest rate agreement - The Company uses an interest rate swap
agreement to manage its exposure to interest rate changes. The
arrangement is considered a hedge of specific borrowings, and
differences paid and received under the swap arrangement are recognized
as adjustments to interest expense. Under the agreement, the Company
makes payments to a counter-party, that is a major financial
institution, at variable rates and in turn receives payments at fixed
rates. At December 31, 1999, the Company had outstanding $88.5 million
of fixed rate obligations with a weighted average interest rate of
7.35% which were effectively converted to variable rate obligations
with an average effective interest rate of approximately 6.6%. The
agreement decreased interest expense by $.3 million in 1999.
The Company may be exposed to losses in the event of nonperformance of
the counter-party but does not anticipate such nonperformance.
Capital leases - The carrying amount reported in the balance sheets for
capital leases approximates fair value.
Futures contracts - The fair values of the Company's commodity products
futures contracts were estimated using the prices published by NYMEX,
the contract price and the remaining commodity products to be purchased
under the contracts.
NOTE 16. SEGMENT DATA
Factors Used to Identify Reportable Segments
The Company's operations are classified into three principal reportable
segments, the Specialty Paper Group, the Printing & Writing Group and
the Towel & Tissue Group, each providing different products. Separate
management of each segment is required because each business unit is
subject to different marketing, production and technology strategies.
<PAGE>
Products from which Revenue is Derived
The Specialty Paper Group produces specialty papers at its
manufacturing facilities in Rhinelander, Wisconsin; Mosinee, Wisconsin;
Jay, Maine; and Middletown, Ohio. The Printing & Writing Group
produces a broad line of premium printing and writing grades at
manufacturing facilities in Brokaw, Wisconsin and Groveton, New
Hampshire. The Printing & Writing Group also includes two converting
facilities which produce wax-laminated roll wrap and related specialty
finishing and packaging products, and a converting facility which
converts printing and writing grades. The Towel & Tissue Group
manufactures a complete line of towel, tissue, soap and dispensing
systems for the "away-from-home" market. The Towel & Tissue Group
operates a paper mill in Middletown, Ohio and a converting facility in
Harrodsburg, Kentucky.
Measurement of Segment Profit and Assets
The Company evaluates performance and allocates resources based on
operating profit or loss. The accounting policies of the reportable
segments are the same as those described in the summary of significant
accounting policies.
-45-
Reconciliations
The following are reconciliations to corresponding totals in the
accompanying consolidated financial statements.
<PAGE>
<TABLE>
<CAPTION>
1999 1998 1997
(ALL DOLLAR AMOUNTS IN THOUSANDS)
<S> <C> <C> <C>
Net sales external customers
Specialty Paper $405,251 $423,473 $415,893
Printing & Writing 383,907 376,131 380,479
Towel & Tissue 155,471 146,523 136,755
$944,629 $946,127 $933,127
Net sales intersegment
Specialty Paper $ 9,190 $ 13,737 $ 10,448
Printing & Writing 3,343 1,595 1,078
Towel & Tissue 126 89 120
$ 12,659 $ 15,421 $ 11,646
Operating profit
Specialty Paper $ 21,532 $ 47,261 $ 56,942
Printing & Writing 40,658 53,613 60,972
Towel & Tissue 22,381 24,018 33,706
Total reportable segment
operating profit 84,571 124,892 151,620
Corporate and eliminations ( 4,925) ( 9,944) ( 17,289)
Restructuring/merger expense - ( 42,803) ( 13,503)
Interest expense ( 11,823) ( 7,683) ( 8,103)
Other income 194 1,339 864
Earnings before income taxes $ 68,017 $ 65,801 $113,589
Segment assets
Specialty Paper $396,624 $371,986
Printing & Writing 309,507 293,509
Towel & Tissue 183,103 176,303
Corporate & unallocated 47,228 58,351
$936,462 $900,149
</TABLE>
-46-
<PAGE>
<TABLE>
Other Significant Items
<CAPTION>
Interest Income Depreciation, Expenditures
Depletion and for Long-Lived
(ALL DOLLAR AMOUNTS IN THOUSANDS) Amortization Assets
<S> <C> <C> <C>
1999
Specialty Paper $ 8 $ 22,978 $ 47,234
Printing & Writing 66 15,757 23,023
Towel & Tissue - 14,848 9,652
Corporate & unallocated 156 1,429 710
$ 230 $ 55,012 $ 80,619
1998
Specialty Paper $ 166 $ 21,629 $ 25,713
Printing & Writing - 15,549 22,972
Towel & Tissue - 13,374 17,700
Corporate & unallocated 237 1,655 10,638
$ 403 $ 52,207 $ 77,023
1997
Specialty Paper $ 56 $ 19,712 $ 28,926
Printing & Writing - 15,156 21,086
Towel & Tissue - 11,730 15,156
Corporate & unallocated 39 661 894
$ 95 $ 47,259 $ 66,062
</TABLE>
Company Geographic Data
The Company has no long-lived assets outside the United States. Net
sales to customers within the United States and other countries are as
follows:
<TABLE>
<CAPTION>
(ALL DOLLAR AMOUNTS IN THOUSANDS) 1999 1998 1997
<S> <C> <C> <C>
United States $882,108 $887,267 $873,633
All foreign countries 62,521 58,860 59,494
$944,629 $946,127 $933,127
</TABLE>
-47-
<PAGE>
Quarterly Financial Data (Unaudited)
(ALL DOLLAR AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
First Second Third Fourth
Qtr.* Qtr. Qtr. Qtr.** Annual
<S> <C> <C> <C> <C> <C>
1999
Net sales $ 226,441 $ 234,257 $ 245,825 $ 238,106 $ 944,629
Gross profit 38,663 37,159 33,697 29,579 139,098
Operating profit 25,131 17,649 22,539 14,327 79,646
Net earnings 14,104 9,727 11,786 6,800 42,417
Net earnings per share basic $ 0.27 $ 0.19 $ 0.23 $ 0.13 $ 0.81
1998
Net sales $ 237,660 $ 243,636 $ 241,603 $ 223,228 $ 946,127
Gross profit 46,309 48,687 42,263 37,792 175,051
Operating profit (loss) ( 11,378) 35,009 33,453 15,061 72,145
Net earnings (loss) ( 8,238) 20,804 19,611 8,624 40,801
Net earnings (loss) per
share basic ( $0.14) $ 0.36 $ 0.34 $ 0.16 $ 0.73
1997
Net sales $ 211,892 $ 234,481 $ 248,578 $ 238,176 $ 933,127
Gross profit 48,606 52,048 54,347 44,662 199,663
Operating profit 33,941 36,292 33,563 17,032 120,828
Net earnings 19,955 21,336 19,723 4,384 65,398
Net earnings per share basic $ 0.34 $ 0.37 $ 0.34 $ 0.08 $ 1.13
<FN>
* In 1998, includes an after-tax expense of $23.4 million ($37.7
million pre-tax) or $.40 per share for restructuring expenses
relating to a workforce reduction program and other merger-related
costs.
**In 1998, includes an after-tax expense of $3.2 million ($5.1 million
pre-tax) or $.06 per share for restructuring expenses relating to a
workforce reduction program and other merger-related costs in 1997,
includes an after-tax expense of $13.2 million ($13.5 million
pre-tax) or $.23 per share for merger-related expenses.
</TABLE>
-48-
<PAGE>
<TABLE>
Market Prices for Common Shares (Unaudited)
<CAPTION>
1999 1998 1997
Prices Prices Prices
Qtr. High Low Dividends High Low Dividends High Low Dividends
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1st $18.00 $13.94 $0.08 $24.00 $18.88 $ - * $20.50 17.88 $0.0625
2nd 18.44 12.63 0.08 24.13 20.13 0.14* 19.75 17.55 0.0625
3rd 18.00 11.94 0.08 22.75 12.13 0.07 25.38 18.75 0.0625
4th 14.19 10.63 0.08 18.50 12.25 0.07 24.38 19.69 0.0625
<FN>
*Due to a change in fiscal years from an August 31 year-end to a
December 31 year-end, no dividend was declared in the first quarter
of 1998, and two quarterly dividends were declared in the second
quarter.
All prices through March 25, 1998, represent the high and the low
closing prices reported on the Nasdaq National Market System and
reflect inter-dealer prices, without mark-up, mark-down or commission
and may not necessarily represent actual transactions. Prices after
March 25, 1998, represent the high and the low sales prices for the
common stock as reported on the New York Stock Exchange.
</TABLE>
<TABLE>
Schedule II - Valuation and Qualifying Accounts
<CAPTION>
($ thousands)
Receivable Allowances Other Allowances
Allowance
Allow for Allowance for
Doubtful for Pending Merger Restructure
TOTAL ACCOUNTS DISCOUNTS CREDITS ALLOWANCE ALLOWANCE
<S> <C> <C> <C> <C> <C> <C>
Balance December 31, 1996 $10,473 $3,395 $ 688 $ 6,390 $ 0 $ 0
Charges to cost and
expense 23,935 568 8,920 14,447 13,503 0
Deductions (25,669) (1,042) (8,837) (15,790) (12,737) 0
Balance December 31, 1997 $8,739 $2,921 $ 771 $ 5,047 $ 766 $ 0
Charges to cost and
expense 21,180 1,296 8,391 11,493 0 42,803
Deductions (19,857) (97) (8,433) (11,327) (766) (39,651)
Balance December 31, 1998 $10,062 $4,120 $ 729 $ 5,213 $ 0 $ 3,152
Charges to cost and
expense 15,912 183 8,980 6,749 0 0
Deductions (14,689) (733) (8,829) (5,127) 0 (3,152)
Balance December 31, 1999 $ 11,285 $3,570 $ 880 $ 6,835 $ 0 $ 0
</TABLE>
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURES.
None.
-49-
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
Information relating to directors of the Company is incorporated into
this Form 10-K by this reference to the materials set forth in the
table on pages 3 and 4 under the caption "Election of Directors" in
the Company's proxy statement relating to the 2000 annual meeting of
shareholders (the "2000 Proxy Statement"). Information relating to the
identification of executive officers of the Company is found in Part I
of this Form 10-K. Information required under Rule 405 of Regulation
S-K is incorporated into this Form 10-K by this reference to the
material set forth under the caption "Section 16(a) Beneficial
Ownership Reporting Compliance" on page 8 of the 2000 Proxy Statement.
ITEM 11. EXECUTIVE COMPENSATION.
Information relating to director compensation is incorporated into this
Form 10-K by this reference to the material set forth in the 2000 Proxy
Statement under the caption "Committees and Compensation of Board of
Directors - Director Compensation," on pages 5 and 6. Information
relating to the compensation of executive officers is incorporated into
this Form 10-K by this reference to (1) the material set forth under
the caption "Compensation of Executive Officers," page 8, through the
material set forth under the subcaption, "Pension Plan and Other
Benefits," pages 11 and 12 in the 2000 Proxy Statement and (2) the
material set forth under the caption "Committee Interlocks and Insider
Participation," on page 15 of the 2000 Proxy Statement.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT.
Information relating to security ownership of certain beneficial owners
and management is incorporated into this Form 10-K by this reference to
the material under the caption "Beneficial Ownership of Common Stock,"
pages 6, 7 and 8 of the 2000 Proxy Statement.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
None.
-50-
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM
8-K.
(a) Documents filed as part of this report.
(1) The following financial statements are filed as part of this
report:
<PAGE>
(i)Consolidated Balance Sheets as of December 31, 1999 and 1998
(ii)Consolidated Statements of Income for the years ended December
31, 1999, 1998, and 1997
(iii)Consolidated Statements of Cash Flows for the years ended
December 31, 1999, 1998, and 1997
(iv)Consolidated Statements of Stockholders' Equity for the years
ended December 31, 1999, 1998, and 1997
(v)Notes to Consolidated Financial Statements
(2) Financial Statement Schedules
The following financial statement schedule is filed as part of this
report:
(i)Schedule II - Valuation and Qualifying Accounts for the years
ended December 31, 1999 1998, and 1997 (page 49)
All other schedules prescribed by Regulation S-X are not submitted
because they are not applicable or not required, or because the
required information is included in the Consolidated Financial
Statements and Notes thereto.
-51-
(3) Exhibits
The following exhibits required by Item 601 of Regulation S-K are filed
as part of this report:
Exhibit
NUMBER DESCRIPTION
3.1 Restated Articles of Incorporation, as amended October 21, 1998
(incorporated by reference to Exhibit 3.1 to the Company's
Current Report on Form 8-K dated October 21, 1998)
3.2 Restated Bylaws, as amended December 17, 1997 (incorporated by
reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-8 dated December 17, 1997)
4.1 Rights Agreement, dated as of October 21, 1998, between the
Company and Harris Trust and Savings Bank, including the Form
of Restated Articles of Incorporation as Exhibit A and the Form
of Rights Certificate as Exhibit B (incorporated by reference
to Exhibit 4.1 to the Company's Current Report on Form 8-K
dated October 21, 1998)
4.2 Summary of Rights to Purchase Preferred Shares, Exhibit C to
Rights Agreement filed as Exhibit 4.1 hereto (incorporated by
reference to Exhibit 4.2 to the Company's Registration
Statement on Form 8-A, filed on October 29, 1998)
4.3 $138,500,000 Note Purchase Agreement dated August 31, 1999
<PAGE>
(incorporated by reference to Exhibit 4.3 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1999)
4.4 $200,000,000 Revolving Credit Agreement dated December 10, 1999
among Registrant and Bank of America, N.A., Bank One, NA, M&I
Marshall & Ilsley Bank, and Harris Trust and Savings Bank
10.1 Supplemental Retirement Plan, as last amended March 4, 1999
(incorporated by reference to Exhibit 10.1 to the Company's
Annual Report on Form 10-K for the fiscal year ended December
31, 1998)*
10.2 1988 Stock Appreciation Rights Plan, as last amended March 4,
1999 (incorporated by reference to Exhibit 10.4 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998)*
10.3 1988 Management Incentive Plan, as last amended March 4, 1999
(incorporated by reference to Exhibit 10.5 to the Company's
Annual Report on Form 10-K for the fiscal year ended December
31, 1998)*
10.4 1990 Stock Appreciation Rights Plan, as last amended March 4,
1999 (incorporated by reference to Exhibit 10.6 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998)*
-52-
10.5 Deferred Compensation Agreement dated July 1, 1994, as last
amended March 4, 1999 (incorporated by reference to Exhibit
10.7 to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998)*
10.6 1991 Employee Stock Option Plan, as last amended March 4, 1999
(incorporated by reference to Exhibit 10.8 to the Company's
Annual Report on Form 10-K for the fiscal year ended December
31, 1998)*
10.7 1991 Dividend Equivalent Plan, as last amended March 4, 1999
(incorporated by reference to Exhibit 10.9 to the Company's
Annual Report on Form 10-K for the fiscal year ended December
31, 1998)*
10.8 Supplemental Retirement Benefit Plan dated January 16, 1992, as
last amended March 4, 1999 (incorporated by reference to
Exhibit 10.10 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1998)*
10.9 Directors' Deferred Compensation Plan, as last amended March 4,
1999 (incorporated by reference to Exhibit 10.11 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998)*
10.10 Directors Retirement Benefit Policy, as amended April 16, 1998
(incorporated by reference to Exhibit 10.12 to the Company's
<PAGE>
Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1998)*
10.11 Mosinee Paper Corporation 1985 Executive Stock Option Plan, as
last amended March 4, 1999 (incorporated by reference to
Exhibit 10.14 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1998)*
10.12 Mosinee Paper Corporation 1988 Stock Appreciation Rights Plan,
as last amended March 4, 1999 (incorporated by reference to
Exhibit 10.15 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1998)*
10.13 Mosinee Paper Corporation Supplemental Retirement Benefit
Agreement dated November 15, 1991, as last amended March 4,
1999 (incorporated by reference to Exhibit 10.18 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998)*
10.14 Mosinee Paper Corporation 1994 Executive Stock Option Plan, as
last amended March 4, 1999 (incorporated by reference to
Exhibit 10.19 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1998)*
10.15 Incentive Compensation Plan for Executive Officers (1998)
(incorporated by reference to Exhibit 10.20 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1998)*
-53-
10.16 1999 Incentive Compensation Plan for Executive Officers
(incorporated by reference to Exhibit 10.21 to the Company's
Annual Report on Form 10-K for the fiscal year ended December
31, 1998)*
10.17 2000 Incentive Compensation Plan for Executive Officers
21.1 Subsidiaries (incorporated by reference to Exhibit 21.1 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998)
23.1 Consent of Wipfli Ullrich Bertelson LLP
27.1 Financial Data Schedule (filed electronically only)
*Executive compensation plans or arrangements. All plans
are sponsored or maintained by the Company unless otherwise
noted.
(b) Reports on Form 8-K:
None
-54-
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
WAUSAU-MOSINEE PAPER
CORPORATION
March 30, 2000 GARY P. PETERSON
Gary P. Peterson
Senior Vice President-
Finance, Secretary and
Treasurer
(On behalf of the Registrant
and as Principal Financial
Officer)
-55-
Pursuant to the requirement of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of
the registrant and in the capacities and on the dates indicated.
March 30, 2000
SAN W. ORR, JR. RICHARD L. RADT
San W. Orr, Jr. Richard L. Radt
Chairman of the Board and CEO Vice Chairman of the Board
(Principal Executive Officer)
RICHARD G. JACOBUS WALTER ALEXANDER
Richard G. Jacobus Walter Alexander
Director Director
GARY W. FREELS DAVID B. SMITH, JR.
Gary W. Freels David B. Smith, Jr.
Director Director
HARRY R. BAKER
Harry R. Baker
Director
-56-
<PAGE>
EXHIBIT INDEX<dagger>
to
FORM 10-K
of
WAUSAU-MOSINEE PAPER CORPORATION
for the fiscal year ended December 31, 1999
Pursuant to Section 102(d) of Regulation S-T
(17 C.F.R. <section>232.102(d))
Exhibit 4.4 $200,000,000 Revolving Credit Agreement dated December
10, 1999 among Registrant and Bank of America, N.A.,
Bank One, NA, M&I Marshall & Ilsley Bank, and Harris
Trust and Savings Bank
Exhibit 10.17* 2000 Incentive Compensation Plan for Executive Officers
Exhibit 23.1 Consent of Wipfli Ullrich Bertelson LLP
Exhibit 27.1 Financial Data Schedule
<dagger> Exhibits required by Item 601 of Regulation S-K which have
previously been filed and are incorporated herein by reference
are set forth in Part IV, Item 14 of Form 10-K to which this
Exhibit Index relates.
*Executive compensation plans or arrangements. All plans are sponsored
or maintained by the Company unless otherwise noted.
-57-
EXECUTION COPY
CREDIT AGREEMENT
among
WAUSAU-MOSINEE PAPER CORPORATION
as Borrower
CERTAIN OF ITS SUBSIDIARIES
as Guarantors
VARIOUS LENDERS
and
BANK OF AMERICA, N.A.
as Administrative Agent
Dated as of December 10, 1999
BANC OF AMERICA SECURITIES LLC
Lead Arranger and Book Manager
BANK ONE, NA
Syndication Agent
and
M&I MARSHALL & ILSLEY BANK
Co-Agent
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS, ETC 1
SECTION 1.1 DEFINITIONS 1
SECTION 1.2 GENERAL 18
SECTION 1.3 OTHER DEFINITIONS AND PROVISIONS 18
ARTICLE II CREDIT FACILITIES 19
SECTION 2.1 AMOUNT AND TERMS OF CREDIT 19
SECTION 2.2 PROCEDURE FOR ADVANCES OF REVOLVING CREDIT LOANS 20
SECTION 2.3 REPAYMENT OF LOANS 20
SECTION 2.4 REVOLVING CREDIT NOTES 22
SECTION 2.5 COMPETITIVE BID LOANS AND PROCEDURE 22
SECTION 2.6 SWINGLINE LOANS AND PROCEDURE 25
SECTION 2.7 COMMITMENT REDUCTIONS 28
<PAGE>
SECTION 2.8 TERMINATION; EXTENSION OPTION 29
ARTICLE III LETTER OF CREDIT FACILITY 30
SECTION 3.1 L/C COMMITMENT 30
SECTION 3.2 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT 30
SECTION 3.3 FEES AND OTHER CHARGES 31
SECTION 3.4 L/C PARTICIPATIONS 31
SECTION 3.5 REIMBURSEMENT OBLIGATION OF THE BORROWER 32
SECTION 3.6 OBLIGATIONS ABSOLUTE 33
SECTION 3.7 EFFECT OF L/C APPLICATION 33
ARTICLE IV GENERAL LOAN PROVISIONS 34
SECTION 4.1 INTEREST 34
SECTION 4.2 CONVERSION AND CONTINUATION OF REVOLVING CREDIT
LOANS 36
SECTION 4.3 FACILITY FEES 36
SECTION 4.4 MANNER OF PAYMENT 37
SECTION 4.5 CREDITING OF PAYMENTS AND PROCEEDS 38
SECTION 4.6 ADJUSTMENTS 38
SECTION 4.7 NATURE OF OBLIGATIONS OF LENDERS REGARDING
EXTENSIONS OF CREDIT; ASSUMPTION BY THE
ADMINISTRATIVE AGENT 38
SECTION 4.8 CHANGED CIRCUMSTANCES 39
SECTION 4.9 INDEMNITY 41
SECTION 4.10 CAPITAL REQUIREMENTS 42
SECTION 4.11 TAXES 42
ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING 44
SECTION 5.1 CLOSING 44
SECTION 5.2 CONDITIONS TO CLOSING 44
i
SECTION 5.3 CONDITIONS TO ALL EXTENSIONS OF CREDIT 47
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES 48
SECTION 6.1 REPRESENTATIONS AND WARRANTIES 48
SECTION 6.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC 55
ARTICLE VII FINANCIAL INFORMATION AND NOTICES 56
SECTION 7.1 FINANCIAL STATEMENTS, ETC 56
SECTION 7.2 OFFICER'S COMPLIANCE CERTIFICATE 57
SECTION 7.3 ACCOUNTANTS' CERTIFICATE 57
SECTION 7.4 OTHER REPORTS 57
SECTION 7.5 NOTICE OF LITIGATION AND OTHER MATTERS 57
SECTION 7.6 ACCURACY OF INFORMATION 58
ARTICLE VIII AFFIRMATIVE COVENANTS 58
SECTION 8.1 PRESERVATION OF CORPORATE EXISTENCE AND
RELATED MATTERS 59
SECTION 8.2 MAINTENANCE OF PROPERTY 59
SECTION 8.3 INSURANCE 59
SECTION 8.4 ACCOUNTING METHODS AND FINANCIAL RECORDS 59
SECTION 8.5 PAYMENT AND PERFORMANCE OF OBLIGATIONS 59
SECTION 8.6 COMPLIANCE WITH LAWS AND APPROVALS 60
SECTION 8.7 ENVIRONMENTAL LAWS 60
SECTION 8.8 COMPLIANCE WITH ERISA 61
SECTION 8.9 CONDUCT OF BUSINESS 61
SECTION 8.10 VISITS AND INSPECTIONS 61
SECTION 8.11 USE OF PROCEEDS 61
SECTION 8.12 YEAR 2000 COMPATIBILITY 61
SECTION 8.13 ADDITIONAL CREDIT PARTIES 61
ARTICLE IX NEGATIVE COVENANTS 62
SECTION 9.1 FINANCIAL COVENANTS 62
<PAGE>
SECTION 9.2 LIMITATIONS ON LIENS 62
SECTION 9.3 LIMITATIONS ON MERGERS AND LIQUIDATION 64
SECTION 9.4 LIMITATIONS ON SALE OR TRANSFER OF ASSETS 64
SECTION 9.5 PROHIBITIONS ON LIMITATIONS ON DIVIDENDS AND
DISTRIBUTIONS 64
SECTION 9.6 TRANSACTIONS WITH AFFILIATES 65
SECTION 9.7 CERTAIN ACCOUNTING CHANGES 65
SECTION 9.8 LIMITATIONS ON ACQUISITIONS 65
SECTION 9.9 SALE LEASEBACK TRANSACTIONS 66
ARTICLE X GUARANTY 66
SECTION 10.1 GUARANTY OF PAYMENT 66
SECTION 10.2 OBLIGATIONS UNCONDITIONAL 66
SECTION 10.3 MODIFICATIONS 67
SECTION 10.4 WAIVER OF RIGHTS 67
SECTION 10.5 REINSTATEMENT 68
ii
SECTION 10.6 REMEDIES 68
SECTION 10.7 LIMITATION OF GUARANTY 68
ARTICLE XI DEFAULT AND REMEDIES 69
SECTION 11.1 EVENTS OF DEFAULT 69
SECTION 11.2 REMEDIES 72
SECTION 11.3 RIGHTS AND REMEDIES CUMULATIVE; NON-WAIVER; ETC 73
ARTICLE XII THE ADMINISTRATIVE AGENT 73
SECTION 12.1 APPOINTMENT 73
SECTION 12.2 DELEGATION OF DUTIES 74
SECTION 12.3 EXCULPATORY PROVISIONS 74
SECTION 12.4 RELIANCE BY THE ADMINISTRATIVE AGENT 74
SECTION 12.5 NOTICE OF DEFAULT 75
SECTION 12.6 NON-RELIANCE ON THE ADMINISTRATIVE AGENT AND OTHER
LENDERS 75
SECTION 12.7 INDEMNIFICATION 76
SECTION 12.8 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY76
SECTION 12.9 RESIGNATION OF THE ADMINISTRATIVE AGENT; SUCCESSOR
ADMINISTRATIVE AGENT 76
ARTICLE XIII MISCELLANEOUS 77
SECTION 13.1 NOTICES 77
SECTION 13.2 EXPENSES, INDEMNITY 78
SECTION 13.3 SET-OFF 79
SECTION 13.4 GOVERNING LAW 79
SECTION 13.5 CONSENT TO JURISDICTION 79
SECTION 13.6 WAIVER OF JURY TRIAL 80
SECTION 13.7 REVERSAL OF PAYMENTS 80
SECTION 13.8 ACCOUNTING MATTERS 80
SECTION 13.9 SUCCESSORS AND ASSIGNS; PARTICIPATIONS;
CONFIDENTIALITY 80
SECTION 13.10 AMENDMENTS, WAIVERS AND CONSENTS 84
SECTION 13.11 PERFORMANCE OF DUTIES 84
SECTION 13.12 ALL POWERS COUPLED WITH INTEREST 84
SECTION 13.13 SURVIVAL OF INDEMNITIES 85
SECTION 13.14 TITLES AND CAPTIONS 85
SECTION 13.15 SEVERABILITY OF PROVISIONS 85
SECTION 13.16 COUNTERPARTS 85
SECTION 13.17 BINDING EFFECT; AMENDMENT AND RESTATEMENT; TERM
OF AGREEMENT 85
SECTION 13.18 INCONSISTENCIES WITH OTHER DOCUMENTS; INDEPENDENT
EFFECT OF COVENANTS 86
<PAGE>
SECTION 13.19 INTERCREDITOR AGREEMENT 86
iii
SCHEDULES
Schedule 1.1(a) - Commitments as of Closing Date
Schedule 6.1(b) - Subsidiaries of the Borrower
Schedule 6.1(p) - Debt and Support Obligations of the Credit Parties
and any Subsidiary in Excess of $5 Million as of
Closing Date
Schedule 9.2 - Liens as of Closing Date
Schedule 9.5 - Restrictions and Limitations on Subsidiary Dividends
and Distributions as of Closing Date
Schedule 13.1 - Notice Addresses for Lenders
EXHIBITS
Exhibit A - Form of Revolving Credit Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Swingline Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E - Form of Guarantor Joinder Agreement
Exhibit F - Form of Notice of Conversion/Continuation
Exhibit G - Form of Officer's Compliance Certificate
Exhibit H - Form of Assignment and Acceptance
Exhibit I - Form of Joinder to Intercreditor Agreement
iv
CREDIT AGREEMENT dated as of December 10, 1999 among WAUSAU-MOSINEE
PAPER CORPORATION, a Wisconsin corporation (the "BORROWER"), certain of
the Borrower's Subsidiaries from time to time party hereto (each a
"GUARANTOR," and together with the Borrower, the "CREDIT PARTIES," and
each, a "CREDIT PARTY"), the Lenders from time to time party hereto and
BANK OF AMERICA, N.A., as Administrative Agent (the "ADMINISTRATIVE
AGENT") (all capitalized terms used herein and defined in Section 1.1
are used herein as therein defined).
STATEMENT OF PURPOSE
WHEREAS, the Borrower (formerly known as Wausau Paper Mills
Company), Harris Trust and Savings Bank, M & I Marshall & Ilsley Bank,
The First National Bank of Chicago (now known as Bank One, NA) and
NationsBank, N.A. (now known as Bank of America, N.A.) are parties to
that certain Third Amended and Restated Credit Agreement dated as of
March 29, 1996 (as amended by that certain First Amendment thereto
dated as of May 8, 1997 and that certain Second Amendment and Waiver
thereto dated as of December 15, 1997 and as otherwise modified prior
to the date hereof, the "EXISTING CREDIT AGREEMENT");
WHEREAS, the Credit Parties wish to amend and restate the
Existing Credit Agreement and establish with the Lenders credit
facilities providing for revolving loans and letters of credit of up
to $200,000,000
<PAGE>
in the aggregate maximum principal amount at any time outstanding, and
the Lenders and the Administrative Agent are willing to amend and
restate the Existing Credit Agreement and establish such credit
facilities on the terms and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged by the parties hereto,
such parties hereby agree as follows:
ARTICLE I
DEFINITIONS, ETC.
SECTION 1.1 DEFINITIONS.
The following terms when used in this Agreement shall have the
meanings assigned to them below:
"364 DAY FACILITY" means the short term revolving credit facility
established pursuant to Section 2.1 hereof.
"364 DAY FACILITY COMMITMENT" means (a) as to any Lender, the
obligation of such Lender to make Revolving Credit Loans under the 364
Day Facility for the accounts of the Borrower in an aggregate principal
amount at any time outstanding not to exceed the amount set forth
opposite such Lender's name on SCHEDULE 1.1(A) hereto, as such amount
may be reduced or modified at any time or from time to time pursuant to
the terms hereof and (b) as to all Lenders, the aggregate 364 Day
Facility Commitment of all Lenders to make Revolving Credit Loans under
the 364 Day Facility, as such amount may be reduced or modified at any
time or from time to time pursuant to the terms hereof. The 364 Day
Facility Commitment of all Lenders on the Closing Date shall be Fifty
Million Dollars ($50,000,000).
"364 DAY FACILITY COMMITMENT PERCENTAGE" means, as to any Lender at
any time, the ratio of (a) the amount of the 364 Day Facility
Commitment of such Lender to (b) the aggregate 364 Day Facility
Commitment of all of the Lenders.
"364 DAY FACILITY FEE" shall have the meaning assigned thereto in
Section 4.3(a).
"364 DAY FACILITY SPECIFIED MATURITY DATE" means December 9, 2000
or such later date as determined pursuant to Section 2.8(c).
"364 DAY FACILITY TERMINATION DATE" means the earliest of the dates
referred to in Section 2.8(a).
"ADMINISTRATIVE AGENT" means Bank of America in its capacity as
Administrative Agent hereunder, and any successor thereto appointed
pursuant to Section 12.9.
"ADMINISTRATIVE AGENT'S OFFICE" means the office of the
Administrative Agent specified in or determined in accordance with the
provisions of Section 13.1(c).
<PAGE>
"AFFILIATE" means, with respect to any Person, any other Person
(other than a Subsidiary) which directly or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common
control with, such first Person or any of its Subsidiaries. The term
"control" means the possession, directly or indirectly, of any power to
direct or cause the direction of the management and policies of a
Person, whether through ownership of voting securities, by contract or
otherwise.
"AGGREGATE REVOLVING CREDIT COMMITMENT" means (a) as to any Lender,
the aggregate of such Lender's 364 Day Facility Commitment and Five
Year Facility Commitment, as such amount may be reduced or modified at
any time or from time to time pursuant to the terms hereof and (b) as
to all Lenders, the aggregate 364 Day Facility Commitment and Five Year
Facility Commitment of all Lenders, as such amount may be reduced or
modified at any time or from time to time pursuant to the terms hereof.
The Aggregate Revolving Credit Commitment of all Lenders on the Closing
Date shall be Two Hundred Million Dollars ($200,000,000).
"AGGREGATE REVOLVING CREDIT COMMITMENT PERCENTAGE" means, as to any
Lender at any time, the ratio of (a) such Lender's Aggregate Revolving
Credit Commitment to (b) the Aggregate Revolving Credit Commitment of
all of the Lenders.
"AGREEMENT" means this Credit Agreement, as amended, restated,
supplemented or otherwise modified.
2
"APPLICABLE LAW" means all applicable provisions of constitutions,
laws, statutes, ordinances, rules, treaties, regulations, permits,
licenses, approvals, interpretations and orders of Governmental
Authorities and all orders and decrees of all courts and arbitrators.
"APPLICABLE PERCENTAGE" means, for purposes of calculating (a) the
interest rate applicable to Offshore Rate Loans for purposes of Section
4.1(a); (b) the L/C Fee for purposes of Section 3.3(a); (c) the
Facility Fees for purposes of 4.3; or (d) the Utilization Fee for
purposes of Section 4.1(f), the rate set forth below opposite the
applicable Funded Debt/Capitalization Ratio then in effect:
<TABLE>
<CAPTION>
Offshore
Rate
Loans
Rate under the
Loans Facility Five Year Facility
Funded Debt/ under the Fee for Facility Fee For
Pricing Capitalization 364 Day 364 Day and L/C Five Year Utilization Utilization
Level Ratio Facility Facility Fee Facility >25% but <50% >50%
<S> <C> <C> <C> <C> <C> <C> <C>
I * 60% but * 50% 0.650% 0.225% 0.625% 0.250% 0.125% .250%
II * 40% but < 50% 0.475% 0.175% 0.425% 0.225% 0.125% .250%
III * 30% but < 40% 0.350% 0.150% 0.325% 0.175% 0.125% .250%
IV * 20% but < 30% 0.275% 0.125% 0.250% 0.150% 0.125% .250%
V < 20% 0.200% 0.100% 0.175% 0.125% 0.125% .250%
</TABLE>
The Applicable Percentage shall be determined and adjusted quarterly on
the date (each a "RATE DETERMINATION DATE") five(5) Business Days after
<PAGE>
the date by which the annual or quarterly compliance certificates, as
applicable, and related financial statements and information are
required in accordance with the provisions of Sections 7.1(a) and (b)
and Section 7.2, as appropriate; PROVIDED that:
(i) the initial Applicable Percentages shall be based on
Pricing Level III and shall remain in effect at such Pricing Level
until the first Rate Determination Date to occur after the Closing
Date, and
(ii) in the event an annual or quarterly compliance
certificate and related financial statements and information are
not delivered timely to the Administrative Agent's Office by the
date required by Sections 7.1(a) and (b) and Section 7.2, as
appropriate, the Applicable Percentages shall be based on Pricing
Level I until such time as an appropriate compliance certificate
and related financial statements and information are delivered.
Each Applicable Percentage shall be effective from a Rate Determination
Date until the next such Rate Determination Date. The Administrative
Agent shall determine the appropriate Applicable Percentages in the
pricing matrix promptly upon receipt of the quarterly or annual
compliance certificate and related financial information and shall
promptly notify the Borrower and the Lenders of any change thereof.
Such determinations by the Administrative Agent shall be conclusive
3
absent manifest error. Adjustments in the Applicable Percentages shall
be effective as to existing Extensions of Credit as well as any new
Extension of Credit made thereafter.
"ARRANGER" means Banc of America Securities LLC in its capacity as
Lead Arranger and Book Manager for the Credit Facility.
"ASSIGNMENT AND ACCEPTANCE" shall have the meaning assigned thereto
in Section 13.9(b)(iii).
"BANK OF AMERICA" means Bank of America, N.A., a national banking
association, and its successors.
"BANKRUPTCY EVENT" means any of the events set forth in Section
11.1(i), (j), (k) or (l), or any of those events which with the passage
of time, the giving of notice or any other condition, would constitute
such an event, in respect of any of the Credit Parties or any of their
Material Subsidiaries.
"BASE RATE" means, at any time, the higher of (a)the Prime Rate and
(b) the sum of (i) the Federal Funds Rate PLUS (ii) 1/2 of 1%; each
change in the Base Rate shall take effect simultaneously with the
corresponding change or changes in the Prime Rate or the Federal Funds
Rate.
"BASE RATE LOAN" means any Loan bearing interest at a rate based
upon the Base Rate as provided in Section 4.1(a).
"BORROWER" means Wausau-Mosinee Paper Corporation, a Wisconsin
corporation.
<PAGE>
"BUSINESS DAY" means any day other than a Saturday, a Sunday, a
legal holiday or a day on which banking institutions are authorized or
required by law or other governmental action to close in Charlotte,
North Carolina; PROVIDED that in the case of Offshore Rate Loans, such
day is also a day on which dealings between banks are carried on in
U.S. dollar deposits in the London interbank market.
"CAPITAL LEASE" means, with respect to any Person, any lease of any
property that should, in accordance with GAAP, be classified and
accounted for as a capital lease on a Consolidated balance sheet of
such Person and its Consolidated Subsidiaries.
"CHANGE IN CONTROL" shall have the meaning assigned thereto in
Section 11.1(h).
"CLOSING DATE" means the date of this Agreement or such later
Business Day upon which each condition described in Section 5.1 and
Section 5.2 shall be satisfied or waived in all respects.
"CODE" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended, supplemented or otherwise
modified from time to time.
4
"COMMITMENT" means, as to any Lender at any time, such Lender's 364
Day Facility Commitment, Five Year Facility Commitment or Aggregate
Revolving Credit Commitment, as the context requires.
"COMMITMENT PERCENTAGE" means, as to any Lender at any time, such
Lender's 364 Day Facility Commitment Percentage, Five Year Facility
Commitment Percentage or Aggregate Revolving Credit Commitment
Percentage, as the context requires.
"COMPETITIVE BID" means an offer by a Lender to make a Competitive
Bid Loan in accordance with Section 2.5.
"COMPETITIVE BID LOANS" means any Loan made pursuant to Section 2.5
and all such Loans collectively as the context requires.
"COMPETITIVE BID RATE" means the rate of interest per annum
expressed in multiples of l/100{th} of one percent offered with respect
to any Competitive Bid Loan offered by the Lender making such
Competitive Bid.
"COMPETITIVE BID REQUEST" means a request by the Borrower for
Competitive Bids in accordance with Section 2.5.
"CONSOLIDATED" means, when used with reference to financial
statements or financial statement items of a Person and its
Subsidiaries, such statements or items on a consolidated basis in
accordance with applicable principles of consolidation under GAAP.
"CONSOLIDATED CAPITALIZATION" means Consolidated Funded Debt PLUS
Consolidated Net Worth.
"CONSOLIDATED EBIT" means, for any period, as applied to the
Borrower and its Consolidated Subsidiaries without duplication, the sum
of the amounts for such period of: (i) Consolidated Net Income, (ii)
<PAGE>
Consolidated Interest Expense and (iii) all federal and state income
tax expense, all of the foregoing as determined and computed on a
Consolidated basis in accordance with GAAP.
"CONSOLIDATED FUNDED DEBT" means, as of any date, all Funded Debt
of the Borrower and its Consolidated Subsidiaries, determined on a
Consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, as applied
to the Borrower and its Consolidated Subsidiaries, all interest expense
(whether paid or accrued) and capitalized interest, including without
limitation (a) the amortization of debt discount and premium, (b) the
interest component under Capital Leases and synthetic leases and (c)
the implied interest component, discount or other similar fees or
charges in connection with any asset securitization program, in each
case determined on a Consolidated basis in accordance with GAAP.
5
"CONSOLIDATED NET INCOME" means, for any period, the net income,
after taxes, of the Borrower and its Consolidated Subsidiaries for such
period determined on a Consolidated basis in accordance with GAAP, but
excluding, to the extent reflected in determining such net income, (a)
extraordinary gains and losses for such period and (b) any equity
interests of the Borrower or any Subsidiary in the unremitted earnings
of any Person that is not a Subsidiary.
"CONSOLIDATED NET WORTH" means, as of any date, as applied to the
Borrower and its Consolidated Subsidiaries, shareholders' equity or net
worth as determined and computed on a Consolidated basis in accordance
with GAAP.
"CONSOLIDATED SUBSIDIARY" means, at any date, any Subsidiary or
other entity the accounts of which, in accordance with GAAP, are
consolidated with those of the Borrower in its consolidated financial
statements as of such date.
"CONSOLIDATED TOTAL ASSETS" means, as of any date, the assets and
properties of the Borrower and its Consolidated Subsidiaries,
determined on a Consolidated basis in accordance with GAAP.
"CREDIT FACILITY" means the collective reference to the 364 Day
Facility, the Five Year Facility and the L/C Facility or any one of
them, as the context requires.
"CREDIT PARTIES" means, collectively, the Borrower and the
Guarantors; "CREDIT PARTY" means any one of them.
"CURRENT SEC REPORTS" means the most recent report on Form 10-K, or
any successor form, and any amendments thereto filed by the Borrower
with the Securities and Exchange Commission (the "COMMISSION") and any
reports on Forms 10-Q and/or 8-K, or any successor forms, and any
amendments thereto, filed by the Borrower with the Commission after the
date of such report on Form 10-K.
"DEBT" of any Person means at any date, without duplication, the
sum of the following calculated in accordance with GAAP: (a) all
obligations of such Person for borrowed money, (b) all obligations of
such Person
<PAGE>
evidenced by bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made, (c) all obligations of
such Person under conditional sale or other title retention agreements
relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (d) all obligations
of such Person issued or assumed as the deferred purchase price of
Property or services purchased by such Person (other than trade debt
incurred in the ordinary course of business and due within six months
of the incurrence thereof) which would appear as liabilities on a
balance sheet of such Person, (e) all Debt of others secured by (or for
which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed,
PROVIDED that for purposes hereof the amount of such Debt shall be
limited to the greater of (i) the amount of such Debt as to which there
is recourse to such Person and (ii) the fair market value of the
property which is subject to the Lien, (f) all Support Obligations of
such Person, (g) the principal portion
6
of all obligations of such Person under Capital Leases, (h) all
obligations of such Person in respect of Hedging Agreements, (i) the
maximum amount of all standby letters of credit issued or bankers'
acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (j) all preferred stock issued by such Person and
required by the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date, (k) the outstanding
attributed principal amount under any asset securitization program of
such Person and (l) the principal balance outstanding under any
synthetic lease, tax retention operating lease, off-balance sheet loan
or similar off-balance sheet financing product to which such Person is
a party, where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease
in accordance with GAAP. The Debt of any Person shall include the Debt
of any partnership or joint venture in which such Person is a general
partner or a joint venturer, but only to the extent to which there is
recourse to such Person for payment of such Debt.
"DEFAULT" means any of the events specified in Section 11.1 which
with the passage of time, the giving of notice or any other condition,
would constitute an Event of Default.
"DEFAULTING LENDER" shall mean any Lender with respect to which a
Lender Default is in effect.
"DOLLARS" OR "$" means, unless otherwise qualified, dollars in
lawful currency of the United States.
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a
Lender or any fund that invests in bank loans and is managed by an
investment advisor to a Lender; and (c) any other Person approved by
the Administrative Agent and, unless an Event of Default has occurred
and is continuing at the time any assignment is effected in accordance
with Section 13.9, the Borrower (such approval not to be unreasonably
withheld or delayed by the Borrower and such approval to be deemed
given by the
<PAGE>
Borrower if no objection is received by the assigning Lender and the
Administrative Agent from the Borrower within two (2) Business Days
after notice of such proposed assignment has been provided by the
assigning Lender to the Borrower); PROVIDED, HOWEVER, that neither the
Borrower nor an Affiliate of the Borrower shall qualify as an Eligible
Assignee.
"EMPLOYEE BENEFIT PLAN" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees
of the Borrower or any ERISA Affiliate or (b) has at any time within
the preceding six years been maintained for the employees of the
Borrower or any current or former ERISA Affiliate.
"ENVIRONMENTAL LAWS" means any and all federal, state, local and
foreign laws, statutes, ordinances, rules, regulations, permits,
licenses, approvals, binding interpretations and orders of courts or
Governmental Authorities, relating to the protection of human health or
the environment, including, but not limited to, requirements pertaining
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transportation, handling, reporting, licensing, permitting,
investigation or remediation of Hazardous Materials.
7
"ENVIRONMENTAL PERMITS" shall have the meaning assigned thereto in
Section 6.1(h).
"ERISA" means the Employee Retirement Income Security Act of 1974,
and the rules and regulations thereunder, each as amended, supplemented
or otherwise modified from time to time.
"ERISA AFFILIATE" means any Person who together with the Borrower
is treated as a single employer within the meaning of Section 414(b),
(c), (m) or (o) of the Code or Section 4001(b) of ERISA.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next
higher 1/100th of 1%) which is in effect for such day as prescribed by
the Federal Reserve Board (or any successor) for determining the
maximum reserve requirement (including without limitation any basic,
supplemental or emergency reserves) in respect of eurocurrency
liabilities or any similar category of liabilities for a member bank of
the Federal Reserve System in New York City and to which the
Administrative Agent or any Lender is then subject.
"EVENT OF DEFAULT" means any of the events specified in Section
11.1, provided that any requirement for passage of time, giving of
notice, or any other condition, has been satisfied.
"EXISTING CREDIT AGREEMENT" has the meaning set forth in the
Statement of Purpose hereof.
"EXTENSIONS OF CREDIT" means, as to any Lender at any time, an
amount equal to the sum of (a) the aggregate principal amount of all
Revolving Credit Loans made by such Lender then outstanding, (b) such
Lender's Five Year Facility Commitment Percentage of the L/C
Obligations then outstanding, (c) the aggregate principal amount of all
Competitive Bid Loans made by such Lender then outstanding and (d) the
aggregate principal amount of all Swingline Loans made by such Lender
<PAGE>
then outstanding. "EXTENSION OF CREDIT" means, as to any Lender (a)
any component of such Lender's Extensions of Credit or (b) the making
of, or participation in, a Loan by such Lender or the issuance or
extension of, or participation in, a Letter of Credit by such Lender,
as the context may require.
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"FEDERAL FUNDS RATE" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily
effective federal funds rate as quoted by the Administrative Agent and
confirmed in Federal Reserve Board Statistical Release H.15 (519) or
any successor or substitute publication selected by the Administrative
Agent. If, for any reason, such rate is not available, then "Federal
Funds Rate" shall mean a daily rate which is determined, in the opinion
of the Administrative Agent, to be the rate at which federal funds are
being offered for sale in the national federal funds market at 9:00a.m.
(Charlotte time). Rates for weekends or holidays shall be the same as
the rate for the most immediate preceding Business Day.
"FISCAL YEAR" means the fiscal year of the Borrower and its
Subsidiaries ending on or about December 31.
8
"FIVE YEAR FACILITY" means the multi-year revolving credit facility
established pursuant to Section 2.1 hereof.
"FIVE YEAR FACILITY COMMITMENT" means (a) as to any Lender, the
obligation of such Lender to make Revolving Credit Loans under the Five
Year Facility for the accounts of the Borrower in an aggregate
principal amount at any time outstanding not to exceed the amount set
forth opposite such Lender's name on SCHEDULE 1.1(A) hereto as such
amount may be reduced or modified at any time or from time to time
pursuant to the terms hereof and (b) as to all Lenders, the aggregate
Five Year Facility Commitment of all Lenders to make Revolving Credit
Loans under the Five Year Facility, as such amount may be reduced or
modified at any time or from time to time pursuant to the terms hereof.
The Five Year Facility Commitment of all Lenders on the Closing Date
shall be One Hundred and Fifty Million Dollars ($150,000,000).
"FIVE YEAR FACILITY COMMITMENT PERCENTAGE" means, as to any Lender
at any time, the ratio of (a) the amount of the Five Year Facility
Commitment of such Lender to (b) the aggregate Five Year Facility
Commitment of all of the Lenders.
"FIVE YEAR FACILITY FEE" shall have the meaning assigned thereto in
Section 4.3(b).
"FIVE YEAR FACILITY SPECIFIED MATURITY DATE" means December 10,
2004.
"FIVE YEAR FACILITY TERMINATION DATE" means the earliest of the
dates referred to in Section 2.8(b).
"FOREIGN LENDER" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each state
<PAGE>
thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
"FOREIGN PENSION PLAN" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by the
Borrower or any one or more of its Subsidiaries primarily for the
benefit of employees of the Borrower or such Subsidiaries residing
outside the United States of America, which plan, fund or other similar
program provides, or results in, retirement income, a deferral of
income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA or
the Code.
"FOREIGN SUBSIDIARY" means each Subsidiary of the Borrower that is
not incorporated under the laws of the United States or any State or
territory thereof.
"FUNDED DEBT" of any Person means at any date, without duplication,
the sum of the following calculated in accordance with GAAP: (a) all
obligations of such Person for borrowed money, (b) all obligations of
such Person issued or assumed as the deferred purchase price of Property
or services purchased by such Person (other than trade debt incurred in
the ordinary course of business and due within six months of the
incurrence thereof) which would appear as liabilities on a balance sheet
9
of such Person, (c) all Funded Debt of others secured by (or for which
the holder of such Funded Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, property owned or acquired by such
Person, whether or not the obligations secured thereby have been
assumed, PROVIDED that for purposes hereof the amount of such Funded
Debt shall be calculated at the greater of (i) the amount of such
Funded Debt as to which there is recourse to such Person and (ii)
the fair market value of the property which is subject to the Lien, (d)
all Support Obligations of such Person with respect to Funded Debt of
others, (e) the principal portion of all obligations of such Person
under Capital Leases and (f) the maximum amount of all standby letters
of credit issued or bankers' acceptances facilities created for the
account of such Person and, without duplication, all drafts drawn
thereunder (to the extent unreimbursed). The Funded Debt of any Person
shall include the Funded Debt of any partnership or joint venture in
which such Person is a general partner or a joint venturer, but only
to the extent to which there is recourse to such Person for payment of
such Funded Debt.
"FUNDED DEBT/CAPITALIZATION RATIO" means, as of the last day of any
fiscal quarter, the ratio of (a) Consolidated Funded Debt on such day
to (b) Consolidated Capitalization on such day, expressed as a
percentage.
"GAAP" means generally accepted accounting principles, as
recognized by the American Institute of Certified Public Accountants
and the Financial Accounting Standards Board, consistently applied and
maintained on a consistent basis throughout the period indicated.
"GOVERNMENTAL APPROVALS" means all authorizations, consents,
approvals, licenses and exemptions of, registrations and filings with,
and reports to, all Governmental Authorities.
<PAGE>
"GOVERNMENTAL AUTHORITY" means any nation, province, state or
political subdivision thereof, and any government or any Person
exercising executive, legislative, regulatory or administrative
functions of or pertaining to government, and any corporation or other
entity owned or controlled, through stock or capital ownership or
otherwise, by any of the foregoing.
"GUARANTEED OBLIGATIONS" means, without duplication, all of the
obligations of the Borrower to the Lenders and the Administrative
Agent, whenever arising, under this Agreement, the Notes or any other
Loan Document (including, but not limited to, obligations with respect
to principal, interest and fees).
"GUARANTOR" means each Subsidiary of the Borrower identified as a
"Guarantor" on the signature pages hereto and each Subsidiary that
becomes a Guarantor hereunder after the Closing Date by execution of a
Guarantor Joinder Agreement.
"GUARANTOR JOINDER AGREEMENT" means a Guarantor Joinder Agreement
executed by an applicant and the Administrative Agent in substantially
the form of EXHIBIT E, as amended, restated, supplemented or otherwise
modified.
"HAZARDOUS MATERIALS" means any substances or materials (a) which
are or become regulated or defined as hazardous wastes, hazardous
substances, pollutants, contaminants, chemical substances or mixtures
or toxic substances under any Environmental Law, (b) which are toxic,
explosive,
10
corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic
or otherwise harmful to human health or the environment and are or
become regulated by any Governmental Authority, (c) the presence of
which require investigation or remediation under any Environmental Law,
(d) the discharge or emission or release of which requires a permit or
license under any Applicable Law or other Governmental Approval, or (e)
which contain, without limitation, asbestos, polychlorinated biphenyls,
urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum
derived substances or waste, crude oil, nuclear fuel, natural gas or
synthetic gas.
"HEDGING AGREEMENT" means any agreement with respect to an interest
rate swap, collar, cap, floor or forward rate agreement, foreign
currency agreement or other agreement regarding the hedging of interest
rate risk exposure executed in connection with hedging the interest
rate exposure of any Person, and any confirming letter executed
pursuant to such hedging agreement, all as amended, restated or
otherwise modified from time to time.
"INTEREST COVERAGE RATIO" means, as of the last day of any fiscal
quarter, the ratio of (a) Consolidated EBIT to (b) Consolidated
Interest Expense, in each case for the period of four (4) consecutive
fiscal quarters ending as of such day.
"INTEREST PERIOD" shall have the meaning assigned thereto in
Section 4.1(b).
"ISSUING LENDER" means Bank of America in its capacity as issuer of
<PAGE>
any Letter of Credit, and any other Lender mutually acceptable and on
terms satisfactory to the Borrower and the Administrative Agent.
"L/C APPLICATION" means an application, in the form specified by
any Issuing Lender from time to time, requesting such Issuing Lender to
issue a Letter of Credit.
"L/C COMMITMENT" means Fifty Million Dollars ($50,000,000).
"L/C FACILITY" means the letter of credit facility established
pursuant to Article III hereof.
"L/C FEE" shall have the meaning assigned thereto in Section
3.3(a).
"L/C OBLIGATIONS" means at any time, an amount equal to the sum of
(a) the aggregate undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under
Letters of Credit which have not then been reimbursed pursuant to
Section 3.5.
"L/C PARTICIPANTS" means the collective reference to all the
Lenders having a Five Year Facility Commitment other than the
applicable Issuing Lender.
"LENDER" means each Person executing this Agreement as a Lender as
set forth on the signature pages hereto and each Person that hereafter
becomes a party to this Agreement as a Lender pursuant to Section
13.9(b), other than any party hereto that ceases to be a party hereto
pursuant to any Assignment and Acceptance.
11
"LENDER DEFAULT" means (a) the refusal (which has not been
retracted) or the failure of a Lender to make available its portion of
any Mandatory Borrowing or (b) a Lender having notified in writing the
Borrower and/or the Administrative Agent that such Lender does not
intend to comply with its obligations under Section 2.6(b), in the case
of either clause (a) or (b) as a result of any takeover or control of
such Lender by any Governmental Authority.
"LENDING OFFICE" means, with respect to any Lender, the office of
such Lender maintaining such Lender's Aggregate Revolving Credit
Commitment Percentage of the Revolving Credit Loans.
"LETTERS OF CREDIT" shall have the meaning assigned thereto in
Section 3.1.
"LIBOR" means, for any Offshore Rate Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100th of 1%) appearing on Telerate Page 3750 (or any
successor or equivalent page) as the London interbank offered rate for
deposits in Dollars and in the approximate amount of the Loan to be
made or continued as, or converted into, such Offshore Rate Loan at
approximately 11:00 a.m. (London time) two (2) Business Days prior to
the first day of such Interest Period for a term comparable to such
Interest Period; PROVIDED, HOWEVER, if more than one rate is specified
on Telerate Page 3750 the relevant rate shall be the arithmetic mean of
all such rates. If for any reason such rate is not available, the term
"LIBOR" shall mean, for any Offshore Rate Loan for any Interest Period
therefor,
<PAGE>
(a) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100th of 1%) appearing on Reuters Screen LIBO Page as the
London interbank offered rate for deposits in Dollars and in the
approximate amount of the Loan to be made or continued as, or
converted into, such Offshore Rate Loan at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period;
PROVIDED, HOWEVER, if more than one rate is specified on Reuters
Screen LIBO Page, the relevant rate shall be the arithmetic mean of
all such rates, or
(b) if no rate is available on the Reuters Screen LIBO page,
then the rate determined by the Administrative Agent at which
Dollars in the approximate amount of the Loan to be made or
continued as, or converted into, such Offshore Rate Loan are
offered by leading banks in the London interbank market at
approximately 11:00 a.m. (London time) two Business Days prior to
the first day of the applicable Interest Period (rounded upwards,
if necessary, to the nearest 1/100th of 1%).
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect
of such asset. For the purposes of this Agreement, a Person shall be
deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention
agreement relating to such asset.
12
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes,
the L/C Applications, any Guarantor Joinder Agreement and each other
document, instrument and agreement executed and delivered by any Credit
Party or its Subsidiaries in connection with this Agreement or
otherwise referred to herein or contemplated hereby, all as may be
amended, restated or otherwise modified.
"LOANS" means the collective reference to the Revolving Credit
Loans, the Competitive Bid Loans and the Swingline Loans; "LOAN" means
any one of such Loans.
"MANDATORY BORROWING" shall have the meaning assigned thereto in
Section 2.6(b).
"MATERIAL ADVERSE EFFECT" means any of (a) a material adverse
effect on the business, assets, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects of the
Credit Parties and their Subsidiaries taken as a whole, (b) a material
adverse effect on the ability of any such Credit Party to perform its
obligations under the Loan Documents, in each case to which it is a
party, or (c) a material adverse effect on the rights or remedies of
the Lenders or the Administrative Agent hereunder or under any other
Loan Document.
"MATERIAL SUBSIDIARY" means, as of any date of determination, any
Subsidiary of the Borrower (a) the assets or liabilities of which
exceed five percent (5%) of Consolidated Total Assets measured as of
the end of the most recently ended fiscal quarter with respect to which
the Administrative Agent has received the annual or quarterly
compliance certificate and related financial statements and information
required by
<PAGE>
Sections 7.1(a) and (b) and Section 7.2, as appropriate, (b) which
represents more than five percent (5%) of the consolidated revenue of
the Borrower and its Consolidated Subsidiaries measured (i) as of the
end of the most recently ended fiscal quarter with respect to which the
Administrative Agent has received the annual or quarterly compliance
certificate and related financial statements and information required
by Sections 7.1(a) and (b) and Section 7.2, as appropriate, and (ii)
for the four (4) consecutive fiscal quarter period then ended or (c)
which is otherwise material to the business, assets, liabilities
(actual or contingent), operations, condition (financial or otherwise)
or prospects of the Borrower and its Subsidiaries taken as a whole. It
is understood that the term "Material Subsidiary" shall include,
without limitation, a Subsidiary of the Borrower whose principal assets
are one or more Material Subsidiaries.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, has made, is accruing or has accrued an obligation
to make, contributions within the preceding six years.
"NOTES" means the collective reference to the Revolving Credit
Notes; "NOTE" means any one of such Notes.
"NOTICE OF ACCOUNT DESIGNATION" shall have the meaning assigned
thereto in Section 2.2(b).
13
"NOTICE OF CONVERSION/CONTINUATION" shall have the meaning assigned
thereto in Section 4.2.
"NOTICE OF PREPAYMENT" shall have the meaning assigned thereto in
Section 2.3(c).
"NOTICE OF REVOLVING CREDIT BORROWING" shall have the meaning
assigned thereto in Section 2.2(a).
"NOTICE OF SWINGLINE BORROWING" shall have the meaning assigned
thereto in Section 2.6(d).
"OBLIGATIONS" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including
interest accruing after the filing of any bankruptcy or similar
petition) the Loans, (b) all payment and other obligations owing by the
Credit Parties to any Lender or Affiliate of a Lender or the
Administrative Agent under any Hedging Agreement with any Lender or
Affiliate of a Lender (which such Hedging Agreement is permitted
hereunder), and (c) all other fees and commissions (including
attorney's fees), charges, indebtedness, loans, liabilities, financial
accommodations, obligations, covenants and duties owing by the Credit
Parties to the Lenders or the Administrative Agent, of every kind,
nature and description, direct or indirect, absolute or contingent, due
or to become due, contractual or tortious, liquidated or unliquidated,
and whether or not evidenced by any note, in each case under or in
respect of this Agreement, any Note, or any of the other Loan
Documents.
"OFFICER'S COMPLIANCE CERTIFICATE" shall have the meaning assigned
thereto in Section 7.2.
<PAGE>
"OFFSHORE RATE" means, for any Interest Period, with respect to an
Offshore Rate Loan, the rate of interest per annum (rounded upward to
the next 1/100{th} of 1%) determined by the Administrative Agent as
follows:
Offshore Rate = LIBOR
1.00- Eurodollar Reserve Percentage
The Offshore Rate shall be adjusted automatically as to all Offshore
Rate Loans then outstanding as of the effective date of any change in
the Eurodollar Reserve Percentage.
"OFFSHORE RATE LOAN" means a Revolving Credit Loan or a Swingline
Loan bearing interest at a rate based upon the Offshore Rate as
provided in Section 4.1(a).
"OPERATING LEASE" shall mean, as to any Person, as determined in
accordance with GAAP, any lease of property (whether real, personal or
mixed) by such Person as lessee which is not a Capital Lease.
"OTHER TAXES" shall have the meaning assigned thereto in Section
4.11(b).
14
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA or any successor agency.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of
ERISA or Section 412 of the Code and is maintained for the employees of
the Borrower or any of its ERISA Affiliates.
"PERSON" means an individual, corporation, limited liability
company, partnership, association, trust, business trust, joint
venture, joint stock company, pool, syndicate, sole proprietorship,
unincorporated organization, Governmental Authority or any other form
of entity or group thereof.
"PRIME RATE" means, at any time, the rate of interest per annum
established from time to time by Bank of America as its prime rate in
effect at its principal office in Charlotte, North Carolina. Each
change in the Prime Rate shall be effective as of the opening of
business on the day such change in the Prime Rate occurs. The parties
hereto acknowledge that the rate established by Bank of America as its
Prime Rate is an index or base rate and shall not necessarily be its
lowest or best rate charged to its customers or other banks.
"PRIOR BANK COMMITMENT" means the Borrower's committed credit
facility evidenced by the Existing Credit Agreement.
"REAL PROPERTY" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures,
including leaseholds.
"REIMBURSEMENT OBLIGATION" means the obligation of the Borrower to
reimburse each Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit issued at the request of the Borrower.
<PAGE>
"REGISTER" shall have the meaning assigned thereto in Section
13.9(d).
"REPORTABLE EVENT" shall mean an event described in Section 4043(c)
of ERISA with respect to a Pension Plan that is subject to Title IV of
ERISA other than those events as to which the 30-day notice period is
waived under subsection .22, .23, .27 or .28 of PBGC Regulation Section
4043.
"REQUIRED LENDERS" means, at any date, any combination of Lenders
whose Aggregate Revolving Credit Commitment Percentage equals more than
fifty percent (50%) of the Aggregate Revolving Credit Commitment or, if
the Aggregate Revolving Credit Commitment has been terminated, any
combination of Lenders who collectively hold more than fifty percent
(50%) of the aggregate unpaid principal amount of the Extensions of
Credit (excluding the aggregate unpaid principal amount of Competitive
Bid Loans); PROVIDED that, for purposes of declaring the Loans to be
due and payable pursuant to Article XI, and for all purposes after the
Loans become due and payable pursuant to Article XI, the outstanding
Competitive Bid Loans of the Lenders shall be included in the Lenders'
respective Aggregate Revolving Credit Commitment Percentages in
determining the Required Lenders.
15
"RESPONSIBLE OFFICER" means any of the following: the chairman,
president, chief executive officer, chief financial officer or
treasurer of the Borrower or any other officer of the Borrower
reasonably acceptable to the Administrative Agent.
"REVOLVING CREDIT LOANS" means any revolving loan made to the
Borrower pursuant to Section 2.2 under the 364 Day Facility or the Five
Year Facility, and all such revolving loans collectively as the context
requires.
"REVOLVING CREDIT NOTES" means the collective reference to the
Revolving Credit Notes made by the Borrower payable to the order of
each Lender with a Five Year Facility Commitment or a 364 Day Facility
Commitment, substantially in the form of EXHIBIT A hereto, and any
amendments and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extensions thereof, in whole or
in part; "REVOLVING CREDIT NOTE" means any of such Revolving Credit
Notes.
"SEC REPORTS" shall have the meaning assigned thereto in Section
6.1(x).
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at
any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be Consolidated
with those of the parent in the parent's Consolidated financial
statements if such financial statements were prepared in accordance
with GAAP as of such date, as well as any other corporation, limited
liability company, partnership, association or other entity (a) of
which securities or other ownership interests representing more than
fifty percent (50%) of the equity or more than fifty percent (50%) of
the ordinary voting power or, in the case of a partnership, more than
fifty percent (50%) of the general partnership interests are, as of
such date, owned, controlled
<PAGE>
or held, or (b) that is, as of such date, otherwise controlled, by the
parent or one or more subsidiaries of the parent or by the parent and
one or more subsidiaries of the parent. Unless otherwise qualified,
references to "Subsidiary" or "Subsidiaries" herein shall refer to
those of the Borrower.
"SUPPORT OBLIGATION" means, with respect to any Person and its
Subsidiaries, without duplication, any obligation, contingent or
otherwise, of any such Person pursuant to which such Person has
directly or indirectly guaranteed any Debt or other obligation of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of any such
Person (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising
by virtue of partnership arrangements, by agreement to keep well, to
purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered
into for the purpose of assuring in any other manner the obligee of
such Debt or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); PROVIDED
that the term Support Obligation shall not include (i) endorsements for
collection or deposit in the ordinary course of business or (ii) a
contractual commitment by one Person to invest in another Person for so
long as such investment is expected to constitute a permitted
investment under Section 9.8.
16
"SWINGLINE COMMITMENT" means the obligation of the Swingline Lender
to make Swingline Loans under the Five Year Facility for the account of
the Borrower in an aggregate principal amount at any time outstanding
not to exceed Ten Million Dollars ($10,000,000).
"SWINGLINE LENDER" means Bank of America in its capacity as issuer
of any Swingline Loan.
"SWINGLINE LOANS" means any revolving loan made pursuant to Section
2.6 and all such loans collectively as the context requires.
"SWINGLINE TERMINATION DATE" means the earlier to occur of (a) the
resignation of Bank of America as Swingline Lender and (b) the Five
Year Facility Termination Date.
"TAXES" shall have the meaning assigned thereto in Section 4.11(a).
"TERMINATION DATE" means the 364 Day Facility Termination Date or
the Five Year Facility Termination Date, as the context requires.
"TERMINATION EVENT" means any of the following that result in a
Material Adverse Effect: (a) a "Reportable Event" described in Section
4043 of ERISA, or (b) the withdrawal of the Borrower or any ERISA
Affiliate from a Pension Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA, or
(c) the termination of a Pension Plan, the filing of a notice of intent
to terminate a Pension Plan or the treatment of a Pension Plan
amendment as a termination under Section 4041 of ERISA, or (d) the
institution of proceedings to terminate, or to seek the appointment of
a trustee with respect to, any Pension Plan by the PBGC, or (e) any
other event or condition which would constitute grounds under Section
4042(a) of ERISA
<PAGE>
for the termination of, or the appointment of a trustee to administer
any Pension Plan, or (f) the partial or complete withdrawal of the
Borrower or any ERISA Affiliate from a Multiemployer Plan, or (g) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302
of ERISA, or (h) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan under Sections
4241 or 4245 of ERISA, (i) any event or condition which results in the
termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan
under Section 4042 of ERISA or (j) the withdrawal or partial withdrawal
of any Credit Party or ERISA Affiliate from a Multiemployer Plan.
"UCC" means, with respect to any Letter of Credit, the Uniform
Commercial Code as in effect in the State in which the corporate
headquarters of the relevant Issuing Lender is located or such other
jurisdiction as is acceptable to the relevant Issuing Lender, as
amended, restated or otherwise modified from time to time.
"UNFUNDED CURRENT LIABILITY" of any Pension Plan means the amount,
if any, by which the actuarial present value of the accumulated plan
benefits under the Pension Plan as of the close of its most recent
year, determined in accordance with actuarial assumptions at such time
consistent with Statement of Financial Accounting Standards No 87,
exceeds the sum of (a) the market value of the assets allocable thereto
and (b) $100,000.
17
"UNIFORM CUSTOMS" means the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500.
"UNITED STATES" means the United States of America.
"UTILIZATION" means, for any day, (a) the aggregate principal
amount of all outstanding Loans divided by (b) the Aggregate Revolving
Credit Commitment, expressed as a percentage.
"UTILIZATION FEE" means, for any day, a per annum rate equal to the
Applicable Percentage for the Utilization percentage outstanding on
such day.
"WHOLLY-OWNED" means, with respect to a Subsidiary, that all of the
shares of capital stock or other ownership interests of such Subsidiary
are, directly or indirectly, owned or controlled by any Credit Party
and/or one or more of its Wholly-Owned Subsidiaries.
"YEAR 2000 PROBLEM" shall have the meaning assigned thereto in
Section 5.2(h)(ii).
SECTION 1.2 GENERAL.
Unless otherwise specified, a reference in this Agreement to a
particular section, subsection, Schedule or Exhibit is a reference to
that section, subsection, Schedule or Exhibit of this Agreement.
Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural,
and pronouns stated in the masculine, feminine or neuter gender shall
include
<PAGE>
the masculine, feminine and neuter. Any reference herein to "Charlotte
time" or "London time" shall refer to the applicable time of day in
Charlotte, North Carolina or London, England, as applicable.
SECTION 1.3 OTHER DEFINITIONS AND PROVISIONS.
(a) USE OF CAPITALIZED TERMS. Unless otherwise defined therein,
all capitalized terms defined in this Agreement shall have the defined
meanings provided herein when used in this Agreement, the Notes and the
other Loan Documents or any certificate, report or other document made
or delivered pursuant to this Agreement.
(b) MISCELLANEOUS. The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this
Agreement.
18
ARTICLE II
CREDIT FACILITIES
SECTION 2.1 AMOUNT AND TERMS OF CREDIT.
(a) DESCRIPTION OF FACILITIES. Upon the terms and subject to the
conditions set forth in this Agreement: (i) the Lenders hereby grant to
the Borrower a short term revolving credit facility (the "364 DAY
FACILITY") and a multi-year revolving credit facility (the "FIVE YEAR
FACILITY") pursuant to which each Lender severally agrees to make
Revolving Credit Loans to the Borrower in Dollars in accordance with
Section 2.2 and the Swingline Lender agrees to make Swingline Loans to
the Borrower in Dollars in accordance with Section 2.6 and (ii) the
parties hereto agree that each Lender may, in its sole discretion, make
bids to make Competitive Bid Loans to the Borrower in Dollars in
accordance with Section 2.5; PROVIDED that (A) the aggregate principal
amount of all outstanding Revolving Credit Loans (after giving effect
to any amount requested) made under the 364 Day Facility shall not
exceed the 364 Day Facility Commitment LESS the aggregate principal
amount of all outstanding Competitive Bid Loans made under the 364 Day
Facility; and the aggregate principal amount of outstanding Revolving
Credit Loans made under the 364 Day Facility by any Lender shall not at
any time exceed such Lender's 364 Day Facility Commitment; and (B) the
aggregate principal amount of all outstanding Revolving Credit Loans
(after giving effect to any amount requested) made under the Five Year
Facility PLUS the aggregate principal amount of all outstanding
Swingline Loans made under the Five Year Facility (after giving effect
to the amount of any Swingline Loans requested under the Five Year
Facility and exclusive of Swingline Loans made under the Five Year
Facility which are repaid with the proceeds of, and simultaneously with
the incurrence of, Revolving Credit Loans under the Five Year Facility)
shall not exceed the Five Year Facility Commitment LESS the sum of (x)
all outstanding L/C Obligations PLUS (y) the aggregate principal amount
of all outstanding Competitive Bid Loans made under the Five Year
Facility; and the aggregate principal amount of outstanding Revolving
Credit Loans made under the Five Year Facility by any Lender shall not
at any time exceed such Lender's Five Year Facility Commitment. Each
Revolving Credit Loan made by a Lender under the 364 Day Facility or
the Five Year Facility shall be in a
<PAGE>
principal amount equal to such Lender's Commitment Percentage of the
aggregate principal amount of Revolving Credit Loans requested under
such facility on such occasion.
(b) APPLICATION OF FACILITIES. The Credit Facility established
hereby shall be used by the Borrower and its Subsidiaries to:
(i) refinance existing Debt of the Borrower and its
Subsidiaries, including without limitation, Debt outstanding under
the Prior Bank Commitments;
(ii) finance share repurchases and permitted acquisitions by
the Borrower;
(iii) provide liquidity support for commercial paper
issuances; and
(iv) finance the working capital, capital expenditures and
general corporate purposes of the Borrower and its Subsidiaries;
19
and, accordingly, the Borrower shall apply all amounts raised by it
hereunder in or towards satisfaction of such purposes and neither
the Administrative Agent and the Lenders nor any of them shall be
obliged to concern themselves with such application.
SECTION 2.2 PROCEDURE FOR ADVANCES OF REVOLVING CREDIT LOANS.
(a) REQUESTS FOR REVOLVING CREDIT LOANS. The Borrower shall give
the Administrative Agent irrevocable prior written notice in the form
attached hereto as EXHIBIT B-1 (a "NOTICE OF REVOLVING CREDIT
BORROWING") not later than 11:00 a.m. (Charlotte time) (i) on the same
Business Day as each Base Rate Loan and (ii) at least three (3)
Business Days before each Offshore Rate Loan, of its intention to
borrow, specifying (A) the date of such borrowing, which shall be a
Business Day, (B) whether such Revolving Credit Loan is to be made
under the 364 Day Facility or the Five Year Facility, (C) the amount of
such borrowing, which shall be in an amount equal to the unused amount
of the 364 Day Facility Commitment or the Five Year Facility
Commitment, as applicable, or if less, (x) with respect to Base Rate
Loans, in an aggregate principal amount of $1,000,000 or a whole
multiple of $1,000,000 in excess thereof, and (y) with respect to
Offshore Rate Loans, in an aggregate principal amount of $5,000,000 or
a whole multiple of $1,000,000 in excess thereof, (D) whether such
Revolving Credit Loan is to be an Offshore Rate Loan or Base Rate Loan
and (E) in the case of an Offshore Rate Loan, the duration of the
Interest Period applicable thereto. Notices received after 11:00 a.m.
(Charlotte time) shall be deemed received on the next Business Day.
The Administrative Agent shall promptly notify the Lenders of each
Notice of Revolving Credit Borrowing.
(b) DISBURSEMENT OF REVOLVING CREDIT LOANS. Each Lender will make
available to the Administrative Agent, for the accounts of the
Borrower, at the Administrative Agent's Office in funds immediately
available to the Administrative Agent, such Lender's Commitment
Percentage of the Revolving Credit Loans to be made on such borrowing
date no later than 2:00 p.m. (Charlotte time) on the proposed borrowing
date. The Borrower hereby irrevocably authorizes the Administrative
Agent to disburse the
<PAGE>
proceeds of each borrowing requested by the Borrower pursuant to this
Section 2.2 in immediately available funds by crediting or wiring such
proceeds to the deposit account of the Borrower identified in the most
recent notice of account designation, substantially in the form of
EXHIBIT C hereto (a "NOTICE OF ACCOUNT DESIGNATION"), delivered by the
Borrower to the Administrative Agent or as may be otherwise agreed upon
by the Borrower and the Administrative Agent from time to time.
Subject to Section 4.7 hereof, the Administrative Agent shall not be
obligated to disburse the portion of the proceeds of any Revolving
Credit Loan requested pursuant to this Section 2.2 for which any Lender
is responsible to the extent that such Lender has not made available to
the Administrative Agent its Commitment Percentage of such Revolving
Credit Loan.
SECTION 2.3 REPAYMENT OF LOANS.
(a) REPAYMENT ON TERMINATION DATE. The Borrower agrees to repay
the outstanding principal amount of all Loans made to it under the 364
Day Facility in full on the 364 Day Facility Termination Date, with all
accrued but unpaid interest thereon. The Borrower agrees to repay the
outstanding principal amount of all Loans made to it under, and its
20
Reimbursement Obligation under, the Five Year Facility in full on the
Five Year Facility Termination Date, with all accrued but unpaid
interest thereon.
(b) MANDATORY REPAYMENT OF LOANS. If at any time (A) the sum of
the outstanding principal amount of all Loans made under the 364 Day
Facility exceeds the 364 Day Facility Commitment of all Lenders or (B)
the sum of the outstanding principal amount of all Loans made under the
Five Year Facility and all outstanding L/C Obligations exceeds the Five
Year Facility Commitment of all Lenders, the Borrower agrees to repay
immediately upon notice from the Administrative Agent, by payment to
the Administrative Agent for the account of the Lenders, Revolving
Credit Loans, Swingline Loans, L/C Obligations or Competitive Bid Loans
and/or furnish cash collateral reasonably satisfactory to the
Administrative Agent, in an amount equal to such excess. Such cash
collateral shall be applied in accordance with Section 11.2(b). Any
repayment of such Offshore Rate Loans other than on the last day of the
Interest Period applicable thereto shall be accompanied by any amount
required to be paid pursuant to Section 4.9 hereof.
(c) OPTIONAL REPAYMENTS. The Borrower may at any time and from
time to time repay the Revolving Credit Loans or Swingline Loans made
to it, in whole or in part, upon at least three (3) Business Days
irrevocable notice to the Administrative Agent with respect to Offshore
Rate Loans and one (1) Business Day irrevocable notice with respect to
Base Rate Loans, in the form attached hereto as EXHIBIT D (a "NOTICE OF
PREPAYMENT") specifying the date and amount of repayment; whether the
repayment is of Revolving Credit Loans or Swingline Loans and whether
such loans were made under the 364 Day Facility or the Five Year
Facility, or a combination thereof, and, if a combination, the amount
allocable to each; and whether the repayment is of Offshore Rate Loans,
Base Rate Loans, or a combination thereof, and, if of a combination,
the amount allocable to each. Upon receipt of such notice, the
Administrative Agent shall promptly notify each Lender. If any such
<PAGE>
notice is given, the amount specified in such notice shall be due and
payable on the date set forth in such notice. Partial repayments shall
be in an aggregate amount of $1,000,000 or a whole multiple of
$1,000,000 in excess thereof with respect to Base Rate Loans, $250,000
or a whole multiple of $100,000 in excess thereof with respect to
Swingline Loans and $5,000,000 or a whole multiple of $1,000,000 in
excess thereof with respect to Offshore Rate Loans.
(d) LIMITATION ON REPAYMENT OF OFFSHORE RATE LOANS. The Borrower
may not repay any Offshore Rate Loan on any day other than on the last
day of the Interest Period applicable thereto unless such repayment is
accompanied by any amount required to be paid pursuant to Section 4.9
hereof.
(e) LIMITATION ON REPAYMENT OF COMPETITIVE BID LOANS. The
Borrower may not repay any Competitive Bid Loan on any day other than
on the last day of the Interest Period applicable thereto except, and
on such terms, as agreed to by the Borrower and the Lender which made
such Competitive Bid Loan.
21
SECTION 2.4 REVOLVING CREDIT NOTES.
Each Lender's Revolving Credit Loans and the obligation of the
Borrower to repay such Revolving Credit Loans shall be evidenced by
separate Revolving Credit Notes executed by the Borrower payable to the
order of such Lender. Each Revolving Credit Note shall be dated the
date hereof and shall bear interest on the unpaid principal amount
thereof at the applicable interest rate per annum specified in Section
4.1.
SECTION 2.5 COMPETITIVE BID LOANS AND PROCEDURE.
(a) Subject to the terms and conditions set forth herein, from
time to time until the expiration or termination of the Aggregate
Revolving Credit Commitment, the Borrower may request Competitive Bids
under the 364 Day Facility or the Five Year Facility, and may (but
shall not have any obligation to) accept Competitive Bids and borrow
Competitive Bid Loans, which shall be denominated in Dollars; PROVIDED
that (i) the sum of the aggregate principal amount of outstanding
Revolving Credit Loans made under the 364 Day Facility PLUS the
aggregate principal amount of outstanding Competitive Bid Loans made
thereunder at any time shall not exceed the 364 Day Facility Commitment
and (ii) the sum of the aggregate principal amount of outstanding
Revolving Credit Loans and Swingline Loans made under the Five Year
Facility PLUS the aggregate principal amount of outstanding Competitive
Bid Loans made thereunder at any time shall not exceed the Five Year
Facility Commitment LESS the sum of all outstanding L/C Obligations.
To request Competitive Bids, the Borrower shall notify the
Administrative Agent of such request by telephone, not later than 11:00
a.m. (Charlotte time) one (1) Business Day before the date of the
proposed borrowing; PROVIDED that a Competitive Bid Request shall not
be made within five (5) Business Days after the date of any previous
Competitive Bid Request. Each such telephonic Competitive Bid Request
shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request in a form
approved by the Administrative Agent and signed by the Borrower. Each
such telephonic and written Competitive Bid Request shall specify the
following information:
<PAGE>
(i) the aggregate amount of the requested borrowing, which
shall be a minimum of $5,000,000 and an integral multiple of
$1,000,000 in excess thereof;
(ii) the date of such borrowing, which shall be a Business
Day;
(iii) the Interest Period to be applicable to such borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period";
(iv) whether the borrowing is to be made under the 364 Day
Facility or the Five Year Facility); and
(v) the location and number of the Borrower's account to
which funds are to be disbursed.
22
Promptly following receipt of a Competitive Bid Request in
accordance with this Section, the Administrative Agent shall notify the
Lenders of the details thereof by telecopy, inviting the Lenders to
submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make
one or more Competitive Bids to the Borrower in response to a
Competitive Bid Request. Such Competitive Bids by a Lender may be for
an amount greater than (or less than) such Lender's respective
Commitments. Each Competitive Bid by a Lender must be in a form
approved by the Administrative Agent and must be received by the
Administrative Agent by telecopy, not later than 9:30 a.m. (Charlotte
time) on the proposed date of such borrowing. Competitive Bids that do
not conform substantially to the form approved by the Administrative
Agent may be rejected by the Administrative Agent, and the
Administrative Agent shall notify the applicable Lender as promptly as
practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $5,000,000 and an integral multiple
of $1,000,000 in excess thereof and which may equal the entire
principal amount of the borrowing requested by the Borrower) of the
Competitive Bid Loan or Loans that the applicable Lender is willing to
make, (ii) the Competitive Bid Rate or Rates at which such Lender is
prepared to make such Loan or Loans (expressed as a percentage rate per
annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day
thereof.
(c) The Administrative Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount specified
in each Competitive Bid and the identity of the Lender that shall have
made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower
may accept or reject any Competitive Bid. The Borrower shall notify
the Administrative Agent by telephone, confirmed by telecopy in a form
approved by the Administrative Agent, whether and to what extent it has
decided to accept or reject each Competitive Bid, not later than 10:30
a.m. (Charlotte time) on the date of the proposed borrowing; PROVIDED
that (i) the failure of the Borrower to give the notice shall be deemed
to be a rejection of each Competitive Bid, (ii) the Borrower shall not
accept a Competitive Bid made at a particular Competitive Bid Rate if
<PAGE>
the Borrower rejects a Competitive Bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids accepted by
the Borrower shall not exceed the aggregate amount of the requested
borrowing specified in the related Competitive Bid Request, (iv) to the
extent necessary to comply with clause (iii) above, the Borrower may
accept Competitive Bids at the same Competitive Bid Rate in part, which
acceptance, in the case of multiple Competitive Bids at such
Competitive Bid Rate, shall be made pro rata in accordance with the
amount of each such Competitive Bid, and (v) except pursuant to clause
(iv) above, no Competitive Bid shall be accepted for a Competitive Bid
Loan unless such Competitive Bid Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $l,000,000 in excess thereof;
PROVIDED FURTHER that if a Competitive Bid Loan must be in an amount
less than $5,000,000 because of the provisions of clause (iv) above,
such Competitive Bid Loan may be for a minimum of $1,000,000 or any
integral multiple thereof, and in calculating the pro rata allocation
of acceptances of portions of multiple Competitive Bids at a particular
Competitive Bid Rate pursuant to clause (iv) above the amounts shall be
rounded to integral
23
multiples of $1,000,000 in a manner determined by the Borrower. A
notice given by the Borrower pursuant to this paragraph shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted
(and, if so, the amount and Competitive Bid Rate so accepted), and each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Bid Loan in respect of which
its Competitive Bid has been accepted.
(f) Not later than 2:00 p.m. (Charlotte time) on the proposed
borrowing date, each Lender whose Competitive Bid has been accepted
will make available to the Administrative Agent, for the account of the
Borrower, at the office of the Administrative Agent in funds
immediately available to the Administrative Agent, the amount of the
Competitive Bid Loan to be made on such borrowing date by such Lender.
The Borrower hereby irrevocably authorizes the Administrative Agent to
disburse the proceeds of each borrowing requested pursuant to this
Section 2.5 in immediately available funds by crediting or wiring such
proceeds to the deposit account of the Borrower identified in its most
recent Notice of Account Designation or as may be otherwise agreed upon
by the Borrower and the Administrative Agent from time to time.
Subject to Section 4.7 hereof, the Administrative Agent shall not be
obligated to disburse the proceeds of any Competitive Bid Loan
requested pursuant to this Section 2.5 for which any Lender is
responsible to the extent that such Lender has not made available to
the Administrative Agent the amount of such Competitive Bid Loan.
(g) If the entity which is the Administrative Agent shall elect to
submit a Competitive Bid in its capacity as a Lender, it shall submit
such Competitive Bid directly to the Borrower at least one quarter of
an hour earlier than the time by which the other Lenders are required
to submit their Competitive Bids to the Administrative Agent pursuant
to paragraph (b) of this Section.
(h) While any Competitive Bid Loan made under the 364 Day Facility
is outstanding, the 364 Day Facility Commitment of each Lender shall be
<PAGE>
deemed used for all purposes by an amount equal to its pro rata share
(based on its respective 364 Day Facility Commitment Percentage) of the
principal amount of such Competitive Bid Loan.
(i) While any Competitive Bid Loan made under the Five Year
Facility is outstanding, the Five Year Facility Commitment of each
Lender shall be deemed used for all purposes by an amount equal to its
pro rata share (based on its respective Five Year Facility Commitment
Percentage) of the principal amount of such Competitive Bid Loan.
(j) (i) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Competitive Bid Loan
made by such Lender to the Borrower from time to time, including
the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.
24
(ii) The entries maintained in the accounts maintained pursuant
to paragraph (i) shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; PROVIDED, HOWEVER, that
the failure of the Administrative Agent or any Lender to maintain
such accounts or any error therein shall not in any manner affect
the obligation of the Borrower to repay the Obligations in
accordance with their terms.
(iii) The Competitive Bid Loans made by each Lender shall be
evidenced by such Lender's respective Revolving Credit Notes.
(k) The Borrower shall repay the outstanding principal amount of
each Competitive Bid Loan made to it in full on the last day of the
Interest Period applicable thereto, with all accrued but unpaid
interest thereon. Competitive Bid Loans may not be repaid prior to the
last day of the applicable Interest Period except in accordance with
Section 2.3(b) and (e).
SECTION 2.6 SWINGLINE LOANS AND PROCEDURE.
(a) SWINGLINE COMMITMENT. Subject to the terms and conditions set
forth herein, from time to time until the Swingline Termination Date,
the Swingline Lender agrees to make, under the Five Year Facility, a
revolving loan or revolving loans (each a "SWINGLINE LOAN" and,
collectively, the "SWINGLINE LOANS") to the Borrower, which Swingline
Loans (i) shall be denominated in Dollars, (ii) may be repaid and
reborrowed in accordance with the provisions hereof, (iii) shall not
exceed in aggregate principal amount at any time outstanding, when
combined with the sum of the aggregate principal amount of outstanding
Revolving Credit Loans made under the Five Year Facility PLUS the
aggregate principal amount of Competitive Bid Loans made thereunder at
any time, the Five Year Facility Commitment LESS the sum of all
outstanding L/C Obligations, (iv) shall not exceed in aggregate
principal amount at any time outstanding the Swingline Commitment and
(v) shall bear interest at a rate mutually agreeable to the Swingline
Lender and the Borrower. Notwithstanding anything to the contrary
contained in this Section 2.6(a), (x) the Swingline Lender shall not be
obligated to make any Swingline Loans at a time when a Lender Default
exists unless the Swingline Lender has entered into arrangements
satisfactory to it and the
<PAGE>
Borrower to eliminate the Swingline Lender's risk with respect to the
Defaulting Lender's or Lenders' participation in such Swingline Loans,
including by cash collateralizing such Defaulting Lender's or Lenders'
Commitment Percentage of the outstanding Swingline Loans and (y) the
Swingline Lender shall not make any Swingline Loan after it has
received written notice from the Borrower or the Required Lenders
stating that a Default or an Event of Default exists and is continuing
until such time as the Swingline Lender shall have received written
notice (A) of rescission of all such notices from the party or parties
originally delivering such notice or (B) of the waiver of such Default
or Event of Default by the Required Lenders.
(b) MANDATORY BORROWINGS.
(i) On any Business Day, the Swingline Lender may, in its
sole discretion, advise the Administrative Agent to give notice to
the Lenders that the Swingline Lender's outstanding Swingline Loans
under the Five Year Facility shall be funded with one or more
borrowings of Revolving Credit Loans denominated in Dollars
(PROVIDED that such
25
notice shall be deemed to have been automatically given with
respect to outstanding Swingline Loans upon the occurrence of a
Default or an Event of Default under Section 11.1(i), (j), (k) or
(l)), in which case one or more borrowings of Revolving Credit
Loans under the Five Year Facility constituting Base Rate Loans
(each such Borrowing, a "MANDATORY BORROWING") shall be made on the
immediately succeeding Business Day by all Lenders in accordance
with each Lender's Commitment Percentage and the proceeds thereof
shall be applied directly by the Administrative Agent to repay the
Swingline Lender for such outstanding Swingline Loans. Each Lender
hereby irrevocably agrees to make Revolving Credit Loans upon one
Business Day's notice pursuant to each Mandatory Borrowing in the
amount and in the manner specified in the preceding sentence and on
the date specified in writing by the Administrative Agent
notwithstanding (A) the amount of the Mandatory Borrowing may not
comply with the minimum borrowing amount otherwise required
hereunder, (B) whether any conditions specified in Section 5.3 are
then satisfied, (C) whether a Default or an Event of Default then
exists, (D) the date of such Mandatory Borrowing and (E) the amount
of the Five Year Facility Commitment or the Aggregate Revolving
Credit Commitment at such time. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the
occurrence of a Bankruptcy Event with respect to any
Credit Party), then each Lender hereby agrees that it shall
forthwith purchase (as of the date the Mandatory Borrowing would
otherwise have occurred, but adjusted for any payments received
from the Borrower on or after such date and prior to such purchase)
from the Swingline Lender such participations in the outstanding
Swingline Loans made under the Five Year Facility as shall be
necessary to cause the Lenders to share in such Swingline Loans
ratably based upon their respective Commitment Percentages,
PROVIDED that (x) all interest payable on the Swingline Loans shall
be for the account of the Swingline Lender until the date as of
which the respective participation is required to be purchased and,
to the extent attributable to the purchased participation, shall be
payable to the
<PAGE>
participant from and after such date and (y) at the time any
purchase of participations pursuant to this sentence is actually
made, the purchasing Lender shall be required to pay the Swingline
Lender interest on the principal amount of participations purchased
for each day from and including the day upon which the Mandatory
Borrowing would otherwise have occurred to but excluding the date
of payment for such participation, at the overnight Federal Funds
Rate for the first three days and at the rate otherwise applicable
to Base Rate Loans hereunder for each day thereafter.
(ii) To the extent amounts received from the Lenders pursuant
to Section 2.6(b)(i) above are not sufficient to repay in full the
outstanding Swingline Loans requested or required to be repaid, the
Borrower agrees to pay to the Swingline Lender on demand the amount
required to repay such Swingline Loans in full. In addition, the
Borrower hereby authorizes the Administrative Agent to charge any
account maintained by the Borrower with the Swingline Lender (up to
the amount available therein) in order to immediately pay the
Swingline Lender the amount of such Swingline Loans to the extent
amounts received from the Lenders are not sufficient to repay in
full the outstanding Swingline Loans requested or required to be
repaid. If any portion of any such amount paid to the Swingline
Lender shall be recovered by or on behalf of
26
the Borrower from the Swingline Lender in bankruptcy or otherwise,
the loss of the amount so recovered shall be ratably shared among
all the Lenders in accordance with their respective Commitment
Percentages.
(c) AMOUNT OF EACH SWINGLINE BORROWING. Each Swingline Loan shall
be made in an aggregate principal amount of $500,000 or a whole
multiple of $l00,000 in excess thereof.
(d) NOTICE OF BORROWING.
(i) The Borrower shall give the Swingline Lender irrevocable
prior written notice (a "NOTICE OF SWINGLINE BORROWING")
substantially in the form attached as EXHIBIT B-2 no later than
11:00 a.m. (Charlotte time) (i) on the same Business Day as each
Base Rate Loan, (ii) at least three (3) Business Days before each
Offshore Rate Loan or (iii) on such other Business Day as may be
mutually agreeable to the Swingline Lender and the Borrower, of its
intention to borrow, specifying (A) the date of such borrowing,
which shall be a Business Day, (B) the amount of such borrowing,
which shall be in an amount equal to the unused amount of the
Swingline Commitment or less, (C) whether such Swingline Loan is to
be an Offshore Rate Loan, a Base Rate Loan or a Swingline Loan
bearing interest at an alternative rate mutually agreeable to the
Swingline Lender and the Borrower (in each case subject to the
consent of the Swingline Lender) and (D) in the case of an Offshore
Rate Loan, the duration of the Interest Period applicable thereto.
Notices received after 1:00 p.m. (Charlotte time) shall be deemed
received on the next Business Day.
(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 2.6(b), with the Borrower irrevocably
agreeing,
<PAGE>
by its incurrence of any Swingline Loan, to the making of the
Mandatory Borrowings as set forth in Section 2.6(b).
(e) DISBURSEMENT OF FUNDS. Not later than 2:00 p.m. (Charlotte
time) on the proposed borrowing date, the Swingline Lender will make
available to the Administrative Agent, for the account of the Borrower,
at the office of the Administrative Agent in funds immediately available
to the Administrative Agent, the amount of the Swingline Loan to be made
on such borrowing date. In the case of Mandatory Borrowings, no later
than 2:00 p.m. (Charlotte time) on the date specified in Section 2.6(b)
each Lender will make available to the Administrative Agent, for the
account of the Borrower, at the office of the Administrative Agent in
funds immediately available to the Administrative Agent, such Lender's
Commitment Percentage of Mandatory Borrowings to be made on such
borrowing date. The Borrower hereby irrevocably authorizes the
Administrative Agent to disburse the proceeds of each borrowing
requested pursuant to this Section 2.6 in immediately available funds
by crediting or wiring such proceeds to the deposit account of the
Borrower identified in the most recent Notice of Account Designation or
as may be otherwise agreed upon by the Borrower and the Administrative
Agent from time to time or, in the case of Mandatory Borrowings, in the
manner specified in Section 2.6(b)(i). Subject to Section 4.7 hereof,
the Administrative Agent shall not be obligated to disburse the
proceeds of any Swingline Loan requested pursuant to this Section 2.6
to the extent that the Swingline Lender has not made available to the
Administrative Agent the amount of such Swingline Loan.
27
(f) NOTES. The Swingline Lender's Swingline Loans shall be
evidenced by such Lender's respective Revolving Credit Note.
(g) USAGE UNDER FIVE YEAR FACILITY COMMITMENTS. While any
Swingline Loan made under the Five Year Facility is outstanding, the
Five Year Facility Commitment of each Lender shall be deemed used for
all purposes by an amount equal to its pro rata share (based on its
respective Five Year Facility Commitment Percentage) of the principal
amount of such Swingline Loan.
SECTION 2.7 COMMITMENT REDUCTIONS.
(a) VOLUNTARY REDUCTION. The Borrower shall have the right at any
time and from time to time, upon at least four (4) Business Days' prior
written notice to the Administrative Agent, to permanently reduce
(except as provided below), without premium or penalty, (i) (A) the
entire 364 Day Facility Commitment at any time or (B) portions of the
364 Day Facility Commitment from time to time in an aggregate principal
amount not less than $5,000,000 or any whole multiple of $1,000,000 in
excess thereof or (ii) (A) the entire Five Year Facility Commitment at
any time or (B) portions of the Five Year Facility Commitment from time
to time, in an aggregate principal amount not less than $5,000,000 or
any whole multiple of $1,000,000 in excess thereof.
(b) PAYMENTS RELATED TO A VOLUNTARY REDUCTION.
(i) Each permanent reduction of the 364 Day Facility
Commitment made pursuant to this Section 2.7 shall be accompanied,
if necessary, by a payment of principal sufficient to reduce the
aggregate
<PAGE>
outstanding Revolving Credit Loans made under the 364 Day Facility
to the amount of the new 364 Day Facility Commitment after such
reduction to the 364 Day Facility Commitment. Any reduction of the
364 Day Facility Commitment to zero (including upon termination of
the 364 Day Facility on the 364 Day Facility Termination Date)
shall be accompanied by payment of all outstanding Revolving Credit
Loans made under the 364 Day Facility and shall result in the
termination of the 364 Day Facility Commitment and the 364 Day
Facility. If the reduction of the 364 Day Facility Commitment
requires the repayment of any Offshore Rate Loan, such repayment
shall be accompanied by any amount required to be paid pursuant
to Section 4.9 hereof. Notwithstanding anything herein to the
contrary, the 364 Day Facility Commitment may not be permanently
reduced by such an amount so that after such reduction, the 364 Day
Facility Commitment is less than the aggregate amount of all unpaid
principal of and interest on outstanding Competitive Bid Loans made
under the 364 Day Facility.
(ii) Each permanent reduction of the Five Year Facility
Commitment made pursuant to this Section 2.7 shall be accompanied,
if necessary, by a payment of principal sufficient to reduce the
aggregate outstanding Revolving Credit Loans and Swingline Loans
made under the Five Year Facility and L/C Obligations, as
applicable, to the amount of the new Five Year Facility Commitment
after such
28
reduction to the Five Year Facility Commitment and, if the Five
Year Facility Commitment as so reduced is less than the aggregate
amount of all outstanding Letters of Credit, the Borrower shall be
required to deposit in a cash collateral account opened by the
Administrative Agent an amount equal to the amount by which the
aggregate then undrawn and unexpired amount of such Letters of
Credit exceeds the Five Year Facility Commitment as so reduced.
Such cash collateral shall be applied in accordance with Section
11.2(b). Any reduction of the Five Year Facility Commitment to
zero (including upon termination of the Five Year Facility on the
Five Year Facility Termination Date) shall be accompanied by
payment of all outstanding Revolving Credit Loans and Swingline
Loans made under the Five Year Facility (and furnishing of cash
collateral satisfactory to the Administrative Agent for all L/C
Obligations) and shall result in the termination of the Five Year
Facility Commitment and the Five Year Facility. If the reduction
of the Five Year Facility Commitment requires the repayment of any
Offshore Rate Loan, such repayment shall be accompanied by any
amount required to be paid pursuant to Section 4.9 hereof.
Notwithstanding anything herein to the contrary,
the Five Year Facility Commitment may not be permanently reduced by
such an amount so that after such reduction, the Five Year Facility
Commitment is less than the aggregate amount of all unpaid
principal of and interest on outstanding Competitive Bid Loans made
under the Five Year Facility.
SECTION 2.8 TERMINATION; EXTENSION OPTION.
(a) TERMINATION OF 364 DAY FACILITY. The 364 Day Facility shall
terminate on the earliest of (a) the 364 Day Facility Specified
Maturity Date, (b) the date of termination of the 364 Day Facility
Commitment by the Borrower pursuant to Section 2.7(a), and (c) the date
<PAGE>
of termination by the Administrative Agent on behalf of the Lenders
pursuant to Section 11.2(a).
(b) TERMINATION OF FIVE YEAR FACILITY. The Five Year Facility
shall terminate on the earliest of (a) the Five Year Facility Specified
Maturity Date, (b) the date of termination of the Five Year Facility
Commitment by the Borrower pursuant to Section 2.7(a), and (c) the date
of termination by the Administrative Agent on behalf of the Lenders
pursuant to Section 11.2(a).
(c) 364 DAY FACILITY SPECIFIED MATURITY DATE EXTENSION OPTION. If
(i) the Borrower shall have delivered to the Administrative Agent a
written notice requesting an extension of the 364 Day Facility
Specified Maturity Date at least three (3) Business Days prior to the
364 Day Facility Specified Maturity Date then in effect (which notice
the Administrative Agent shall promptly transmit to each Lender) and
(ii) no Default or Event of Default exists on the otherwise applicable
364 Day Facility Specified Maturity Date, then such otherwise
applicable 364 Day Facility Specified Maturity Date shall be extended
to the first anniversary of the 364 Day Facility Specified Maturity
Date then in effect. No additional borrowings may be made under the
364 Day Facility during such extension period and any amounts repaid on
Loans outstanding under the 364 Day Facility during such extension
period may not be reborrowed.
29
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C COMMITMENT.
Subject to the terms and conditions hereof, each Issuing Lender, in
reliance on the agreements of the other Lenders set forth in Section
3.4(a), agrees to issue standby and/or trade letters of credit
("LETTERS OF CREDIT") for the account of the Borrower on any Business
Day from the Closing Date through but not including the Five Year
Facility Termination Date in such form as may be approved from time to
time by such Issuing Lender; PROVIDED, that no Issuing Lender shall
have any obligation to issue any Letter of Credit if, after giving
effect to such issuance, (a) the L/C Obligations would exceed the L/C
Commitment or (b) the sum of (i) the aggregate principal amount of
outstanding Revolving Credit Loans made under the Five Year Facility,
(ii) the aggregate principal amount of outstanding Swingline Loans made
under the Five Year Facility, (iii) the aggregate principal amount of
L/C Obligations and (iv) the aggregate principal amount of Competitive
Bid Loans made under the Five Year Facility, would exceed the Five Year
Facility Commitment. Each Letter of Credit shall (A) be denominated in
Dollars, (B) be a letter of credit issued to support obligations of the
Borrower or any of its Subsidiaries, contingent or otherwise, incurred
in the ordinary course of business, (C) expire on a date no later than
one year from the date of issuance thereof and no later than the Five
Year Facility Termination Date and (D) be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the
State in which the corporate headquarters of the relevant Issuing
Lender is located or such other jurisdiction as is acceptable to the
relevant Issuing Lender. No Issuing Lender shall at any time be
obligated to issue any Letter of Credit hereunder if such
<PAGE>
issuance would conflict with, or cause such Issuing Lender or any L/C
Participant to exceed any limits imposed by, any Applicable Law.
References herein to "issue" and derivations thereof with respect to
Letters of Credit shall also include extensions or modifications of any
existing Letters of Credit, unless the context otherwise requires.
SECTION 3.2 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT.
The Borrower may from time to time request that any Issuing Lender
issue a Letter of Credit (or amend, extend or renew an outstanding
Letter of Credit) by delivering to such Issuing Lender at any Issuing
Lender's office at any address mutually acceptable to the Borrower and
such Issuing Lender an L/C Application therefor, completed to the
satisfaction of such Issuing Lender, and such other certificates,
documents and other papers and information as such Issuing Lender may
reasonably request. The L/C Application will contain a representation
and warranty that the conditions specified in Section 5.3 hereof have
been satisfied or waived in writing by the Administrative Agent as of
the date of the L/C Application. Upon receipt of any L/C Application,
such Issuing Lender shall process such L/C Application and the
certificates, documents and other papers and information delivered to
it in connection therewith in accordance with its customary procedures
and shall, subject to Section 3.1, this Section 3.2 and Article V
hereof, promptly issue the Letter of Credit (or amend, extend or renew
the outstanding Letter of Credit) requested thereby (but in no event
shall any Issuing Lender be required to issue any Letter of Credit (or
amend, extend or renew an outstanding
30
Letter of Credit) earlier than three (3) Business Days after its
receipt of the L/C Application therefor and all such other
certificates, documents and other papers and information relating
thereto) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed by such Issuing
Lender and the Borrower. Within fifteen (15) Business Days after the
end of each calendar quarter, each Issuing Lender (or the
Administrative Agent if the Administrative Agent agrees to undertake
such action) shall report to each Lender all Letters of Credit issued
by it during the previous calendar quarter and the average daily
undrawn and unexpired amounts for all Letters of Credit for each day in
such calendar quarter.
SECTION 3.3 FEES AND OTHER CHARGES.
(a) The Borrower agrees to pay to the Administrative Agent, for
the account of each Issuing Lender and the L/C Participants, a letter
of credit fee (the "L/C FEE") with respect to each Letter of Credit
issued by such Issuing Lender in an amount equal to the Applicable
Percentage for L/C Fee TIMES the average daily undrawn amount of such
issued Letters of Credit as reported by such Issuing Lender (or the
Administrative Agent) pursuant to Section 3.2. Such fee shall be
payable quarterly in arrears on the last Business Day of each calendar
quarter, commencing on the first of such dates to occur after the
Closing Date, and on the Five Year Facility Termination Date.
(b) The Administrative Agent shall, promptly following its receipt
thereof, distribute to each Issuing Lender and the L/C Participants the
L/C Fees received by the Administrative Agent in accordance with their
respective Five Year Facility Commitment Percentages.
<PAGE>
(c) In addition to the L/C Fees, the Borrower agrees to pay to the
relevant Issuing Lender that has issued a Letter of Credit at the
request of the Borrower, for such Issuing Lender's own account without
sharing by the other Lenders, (i) a fronting fee of 0.125% per annum on
the aggregate stated amount of such Letter of Credit for the
stated duration thereof and (ii) customary charges of such Issuing
Lender with respect to the issuance, amendment, transfer,
administration, cancellation and conversion of, and drawings under,
such Letters of Credit.
SECTION 3.4 L/C PARTICIPATIONS.
(a) Each Issuing Lender irrevocably agrees to grant and hereby
grants to each L/C Participant, and, to induce such Issuing Lender to
issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from
such Issuing Lender, on the terms and conditions hereinafter stated,
for such L/C Participant's own account and risk, an undivided interest
equal to such L/C Participant's Five Year Facility Commitment
Percentage in such Issuing Lender's obligations and rights under each
Letter of Credit issued hereunder and the amount of each draft paid by
such Issuing Lender thereunder. Each L/C Participant unconditionally
and irrevocably agrees with each Issuing Lender that, if a draft is
paid under any Letter of Credit for which such Issuing Lender is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to such Issuing Lender upon
demand at such Issuing Lender's address for notices specified herein an
amount equal to such L/C Participant's Five Year Facility Commitment
Percentage of the amount of such draft, or any part thereof, which is
not so reimbursed.
31
(b) Upon becoming aware of any amount required to be paid by any
L/C Participant to any Issuing Lender pursuant to Section 3.4(a) in
respect of any unreimbursed portion of any payment made by such Issuing
Lender under any Letter of Credit, the Administrative Agent shall
notify each L/C Participant of the amount and due date of such required
payment and such L/C Participant shall pay to such Issuing Lender the
amount specified on the applicable due date. If any such amount is
paid to such Issuing Lender after the date such payment is due, such
L/C Participant shall pay to such Issuing Lender on demand, in addition
to such amount, the product of (i) such amount, TIMES (ii) the daily
average Federal Funds Rate as determined by the Administrative Agent
during the period from and including the date such payment is due to
the date on which such payment is immediately available to such Issuing
Lender, TIMES (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is
360. A certificate of any Issuing Lender with respect to any amounts
owing under this Section 3.4(b) shall be conclusive in the absence of
manifest error. With respect to payment to any Issuing Lender of the
unreimbursed amounts described in this Section 3.4(b), if the L/C
Participants receive notice that any such payment is due (A) prior to
1:00 p.m. (Charlotte time) on any Business Day, such payment shall be
due that Business Day, and (B) after 1:00 p.m. (Charlotte time) on any
Business Day, such payment shall be due on the following Business Day.
(c) Whenever, at any time after any Issuing Lender has made
payment under any Letter of Credit and has received from any L/C
Participant its Five Year Facility Commitment Percentage of such
payment in accordance
<PAGE>
with this Section 3.4, such Issuing Lender receives any payment related
to such Letter of Credit (whether directly from the Borrower or
otherwise, or any payment of interest on account thereof), such Issuing
Lender will distribute to such L/C Participant its PRO RATA share
thereof in accordance with such L/C Participant's Five Year Facility
Commitment Percentage; PROVIDED, that in the event that any such
payment received by such Issuing Lender shall be required to be
returned by such Issuing Lender, such L/C Participant shall return to
such Issuing Lender the portion thereof previously distributed by such
Issuing Lender to it.
SECTION 3.5 REIMBURSEMENT OBLIGATION OF THE BORROWER.
The Borrower agrees to reimburse each Issuing Lender on each date
such Issuing Lender or the Administrative Agent notifies the Borrower
of the date and amount of a draft paid under any Letter of Credit
requested by the Borrower for the amount of (i) such draft so paid and
(ii) any taxes, fees, charges or other costs or expenses incurred by
any Issuing Lender in connection with such payment. Each such payment
shall be made to any Issuing Lender at its address for notices
specified herein in lawful money of the United States and in
immediately available funds. Interest shall be payable on any and all
amounts remaining unpaid by the Borrower under this Article III from
the date such amounts become payable (whether at stated maturity, by
acceleration or otherwise) until payment
in full at the rate which would be payable on any outstanding Base Rate
Loans which were then overdue. If the Borrower fails to timely
reimburse such Issuing Lender on the date the Borrower receives the
notice referred to in this Section 3.5, the Borrower shall be deemed to
have timely given a Notice of Revolving Credit Borrowing pursuant to
Section 2.2 hereunder to the Administrative Agent requesting the
Lenders to make a Base Rate
32
Loan under the Five Year Facility on such date in an amount equal to
the amount of such draft paid, together with any taxes, fees, charges
or other costs or expenses incurred by any Issuing Lender and to be
reimbursed pursuant to this Section 3.5 and, regardless of whether or
not the conditions precedent specified in Article V have been
satisfied, the Lenders shall make Base Rate Loans in such amount, the
proceeds of which shall be applied to reimburse such Issuing Lender for
the amount of the related drawing and costs and expenses.
Notwithstanding the foregoing, nothing in this Section 3.5 shall
obligate the Lenders to make such Base Rate Loans if the making of such
Base Rate Loans would violate the automatic stay under federal
bankruptcy laws.
SECTION 3.6 OBLIGATIONS ABSOLUTE.
The Borrower's obligations under this Article III (including
without limitation the Reimbursement Obligation) shall be absolute and
unconditional under any and all circumstances and irrespective of any
set-off, counterclaim or defense to payment which the Borrower may have
or have had against any Issuing Lender or any beneficiary of a Letter
of Credit. The Borrower also agrees with each Issuing Lender that no
Issuing Lender shall be responsible for, and the Borrower's
Reimbursement Obligation under Section 3.5 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to
be invalid, fraudulent or forged, or any dispute between or among the
Borrower and any beneficiary of any Letter of Credit or any other party
<PAGE>
to which such Letter of Credit may be transferred or any claims
whatsoever of the Borrower against any beneficiary of such Letter
of Credit or any such transferee. No Issuing Lender shall be liable
for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions
caused by such Issuing Lender's gross negligence or willful misconduct.
The Borrower agrees that any action taken or omitted by any Issuing
Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards of care
specified in the Uniform Customs and, to the extent not inconsistent
therewith, the UCC shall be binding on the Borrower and shall not
result in any liability of any Issuing Lender to the Borrower.
The responsibility of each Issuing Lender to the Borrower in connection
with any draft presented for payment under any Letter of Credit shall,
in addition to any payment obligation expressly provided for in such
Letter of Credit, be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of
Credit.
SECTION 3.7 EFFECT OF L/C APPLICATION.
To the extent that any provision of any L/C Application related to
any Letter of Credit is inconsistent with the provisions of this
Article III, the provisions of this Article III shall apply.
33
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1 INTEREST.
(a) INTEREST RATE OPTIONS. Subject to the provisions of this
Section 4.1, at the election of the Borrower, the aggregate principal
balance of any Revolving Credit Loans and Swingline Loans (if the
Swingline Lender consents to such election) shall bear interest at (i)
the Base Rate or (ii) the Offshore Rate PLUS the Applicable Percentage
for Offshore Rate Loans under the 364 Day Facility or the Five Year
Facility, as applicable; PROVIDED that (A) such interest rate shall be
increased by any amount required pursuant to Section 4.1(f) and (B)
Offshore Rate Loans shall not be available until three (3) Business
Days after the Closing Date. The Borrower shall select the rate of
interest and Interest Period, if any, applicable to any Revolving
Credit Loan or Swingline Loan at the time a Notice of Revolving Credit
Borrowing is given pursuant to Section 2.2, or at the time a Notice of
Swingline Borrowing is given pursuant to Section 2.6(d) or at the time
a Notice of Conversion/Continuation is given pursuant to Section 4.2.
Each Revolving Credit Loan, Swingline Loan, or portion thereof bearing
interest based on the Base Rate shall be a "Base Rate Loan," and each
Revolving Credit Loan, Swingline Loan, or portion thereof bearing
interest based on the Offshore Rate shall be an "Offshore Rate Loan."
Any Revolving Credit Loan or Swingline Loan or any portion thereof as
to which the Borrower has not duly specified an interest rate as
provided herein shall be deemed a Base Rate Loan. A Competitive Bid
Loan will bear interest at the Competitive Bid Rate specified in the
Competitive Bid accepted by the Borrower with respect to such
Competitive Bid Loan.
<PAGE>
(b) INTEREST PERIODS. In connection with each Offshore Rate Loan
and each Competitive Bid Loan, the Borrower, by giving notice at the
times described in Section 4.1(a), shall elect an interest period
(each, an "INTEREST PERIOD") to be applicable to such Revolving Credit
Loan or such Competitive Bid Loan, which Interest Period shall, unless
otherwise agreed by the Administrative Agent and the Lenders, be a
period of one (1), two (2), three (3) or six (6) months with respect to
each Offshore Rate Loan and a period of seven (7) days to 183 days with
respect to each Competitive Bid Loan; PROVIDED that:
(i) the Interest Period shall commence on the date of advance
of or conversion to any Offshore Rate Loan and, in the case of
immediately successive Interest Periods, each successive Interest
Period shall commence on the date on which the next preceding
Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; PROVIDED, that if any Interest Period
with respect to an Offshore Rate Loan would otherwise expire on a
day that is not a Business Day but is a day of the month after which
no further Business Day occurs in such month, such Interest Period
shall expire on the next preceding Business Day;
34
(iii) any Interest Period with respect to an Offshore Rate Loan
that 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 relevant calendar month at the end of such
Interest Period;
(iv) no Interest Period shall extend beyond the Termination
Date of the facility under which the Offshore Rate Loan or
Competitive Bid Loan with respect to which such Interest Period
relates was made; and
(v) there shall be no more than six (6) Offshore Rate Loans
outstanding hereunder at any time (it being understood that, for
purposes hereof, Offshore Rate Loans with different Interest Periods
shall be considered as separate Offshore Rate Loans, even if they
begin on the same date, although borrowings, extensions and
conversions may, in accordance with the provisions hereof, be
combined by the Borrower at the end of existing Interest Periods to
constitute a new Offshore Rate Loan with a single Interest Period).
(c) DEFAULT RATE, ETC. Subject to Section 11.3, unless otherwise
agreed by the Administrative Agent and the Required Lenders, upon the
occurrence and during the continuance of an Event of Default, (i) the
Borrower shall no longer have the option to request Offshore Rate
Loans, (ii) all outstanding Offshore Rate Loans shall bear interest at
a rate per annum equal to two percent (2%) in excess of the rate then
applicable to such Offshore Rate Loans until the end of the applicable
Interest Period and thereafter at a rate equal to two percent (2%) in
excess of the rate then applicable to Base Rate Loans, (iii) all
outstanding Base Rate Loans shall bear interest at a rate per annum
equal to two percent (2%) in excess of the rate then applicable to Base
Rate Loans and (iv)
<PAGE>
each outstanding Competitive Bid Loan shall bear interest at a rate per
annum equal to two percent (2%) in excess of the rate then applicable
to such Competitive Bid Loan. Interest shall continue to accrue on the
amount of Loans outstanding after the filing by or against the Borrower
of any petition seeking any relief in bankruptcy or under any act or
law pertaining to insolvency or debtor relief, whether state, federal
or foreign.
(d) INTEREST PAYMENT AND COMPUTATION. Interest on each Base Rate
Loan shall be payable in arrears on the last Business Day of each
calendar quarter commencing on the first of such dates to occur after
the Closing Date, and interest on each Offshore Rate Loan and each
Competitive Bid Loan shall be payable on the last day of each Interest
Period applicable thereto, and if such Interest Period exceeds three
(3) months, at the end of each three (3) month interval during such
Interest Period. Interest on all Loans and all fees payable hereunder
shall be computed on the basis of a 360-day year and assessed for the
actual number of days elapsed; PROVIDED that interest on Loans bearing
interest at a rate based upon the Prime Rate shall be computed on the
basis of a 365- or 366-day year, as applicable.
(e) MAXIMUM RATE. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the
Notes charged or collected pursuant to the terms of this Agreement or
pursuant to any of the Notes exceed the highest rate permissible under
any Applicable Law which a court of competent jurisdiction shall, in a
final determination, deem applicable hereto. In the event that such
a court determines that the Lenders have charged or received
35
interest hereunder in excess of the highest applicable rate, the rate
in effect hereunder shall automatically be reduced to the maximum rate
permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option (i) promptly refund to the Borrower any interest
received by Lenders in excess of the maximum lawful rate or (ii) shall
apply such excess to the principal balance of the Obligations. It is
the intent hereof that the Borrower not pay or contract to pay, and
that neither the Administrative Agent nor any Lender receive or
contract to receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may be paid by the Borrower under
Applicable Law.
(f) UTILIZATION FEE. In the case of all Loans, on each day that
Utilization is equal to or greater than 25% the otherwise applicable
interest rate determined pursuant to Section 4.1(a) shall be increased
by the Utilization Fee.
SECTION 4.2 CONVERSION AND CONTINUATION OF REVOLVING CREDIT
LOANS.
Provided that no Default or Event of Default has occurred and is
then continuing, and subject to the terms of this Agreement, the
Borrower shall have the option (a) to convert all or any portion of its
outstanding Base Rate Loans in a principal amount equal to $5,000,000
or any whole multiple of $1,000,000 in excess thereof into one or more
Offshore Rate Loans and (b)(i) to convert all or any part of its
outstanding Offshore Rate Loans in a principal amount equal to
$1,000,000 or a whole multiple of $500,000 in excess thereof into Base
Rate Loans or (ii) to continue Offshore Rate Loans as Offshore Rate
Loans for an
<PAGE>
additional Interest Period; PROVIDED that if any conversion or
continuation is made prior to the expiration of any Interest Period,
the Borrower shall pay any amount required to be paid pursuant to
Section 4.9 hereof. Whenever the Borrower desires to convert or
continue Revolving Credit Loans or Swingline Loans as provided above,
the Borrower shall give the Administrative Agent irrevocable prior
written notice in the form attached as EXHIBIT F (a "NOTICE OF
CONVERSION/CONTINUATION") not later than 11:00 a.m. (Charlotte time)
three (3) Business Days before the day on which a proposed conversion
or continuation of such Revolving Credit Loan or Swingline Loan is to
be effective (except in the case of a conversion of an Offshore Rate
Loan to a Base Rate Loan, in which case same day notice not later than
11:00 a.m. (Charlotte time) by the Borrower shall be sufficient)
specifying (A) the Revolving Credit Loans or Swingline Loans to be
converted or continued, the facility under which such Loans were made
and, in the case of any Offshore Rate Loan to be converted or
continued, the last day of the Interest Period therefor, (B) the
effective date of such conversion or continuation (which shall be a
Business Day), (C) the principal amount of such Revolving Credit Loans
to be converted or continued and (D) the Interest Period to be
applicable to such converted or continued Offshore Rate Loan. The
Administrative Agent shall promptly notify the Lenders of such Notice
of Conversion/Continuation.
SECTION 4.3 FACILITY FEES.
(a) 364 DAY FACILITY. The Borrower agrees to pay to the
Administrative Agent, for the account of the Lenders, a non-refundable
facility fee (the "364 DAY FACILITY FEE") at a rate per annum equal to
the Applicable Percentage for Facility Fee for the 364 Day Facility on
the average daily amount of the aggregate 364 Day Facility Commitment
during the applicable period, regardless of usage. The 364 Day
Facility Fee shall apply to the period commencing on the Closing Date
and ending
36
on the termination of the 364 Day Facility Commitment and shall be
payable in arrears on the last Business Day of each calendar quarter
for the immediately preceding calendar quarter (or portion thereof),
beginning with the first such date to occur after the Closing Date.
Such 364 Day Facility Fee shall be distributed by the Administrative
Agent to the Lenders PRO RATA in accordance with the Lenders'
respective 364 Day Facility Commitment Percentages.
(b) FIVE YEAR FACILITY. The Borrower agrees to pay to the
Administrative Agent, for the account of the Lenders, a non-refundable
facility fee (the "FIVE YEAR FACILITY FEE") at a rate per annum equal
to the Applicable Percentage for Facility Fee for the Five Year
Facility on the average daily amount of the aggregate Five Year
Facility Commitment during the applicable period, regardless of usage.
The Five Year Facility Fee shall apply to the period commencing on the
Closing Date and ending on the termination of the Five Year Facility
Commitment and shall be payable in arrears on the last Business Day of
each calendar quarter for the immediately preceding calendar quarter
(or portion thereof), beginning with the first such date to occur after
the Closing Date. Such Five Year Facility Fee shall be distributed by
the Administrative Agent to the Lenders PRO RATA in accordance with the
Lenders' respective Five Year Facility Commitment Percentages.
<PAGE>
SECTION 4.4 MANNER OF PAYMENT.
Each payment by a Credit Party on account of the principal of or
interest on the Loans or of any fee, commission or other amounts
(including the Reimbursement Obligation) payable to the Lenders under
this Agreement or any Note shall be made on the date specified for
payment under this Agreement to the Administrative Agent at the
Administrative Agent's Office for the account of the Lenders (other
than as set forth below), in Dollars, in immediately available funds
and shall be made without any set-off, counterclaim or deduction
whatsoever. Such payments shall be made no later than 2:00 p.m.
(Charlotte time) on the relevant date. Any payment received after
1:00 p.m. (Charlotte time) but before 2:00 p.m. (Charlotte time) on a
due date shall be deemed a payment on such date for the purposes of
Section 11.1, but for all other purposes shall be deemed to have been
made on the next succeeding Business Day. Any payment received after
2:00 p.m. (Charlotte time) shall be deemed to have been made on the
next succeeding Business Day for all purposes. Each payment to the
Administrative Agent of the L/C Fees shall be made in like manner, but
for the account of the Issuing Lenders and the L/C Participants. Each
payment to the Administrative Agent of Administrative Agent's fees or
expenses shall be made for the account of the Administrative Agent and
any amount payable to any Lender under Section 2.5, 2.6, 4.8, 4.9,
4.10, 4.11 or 13.2 shall be paid to the Administrative Agent for the
account of the applicable Lender. The Administrative Agent shall
distribute any such payments received by it for the account ofany other
Lender to such Lender promptly following receipt thereof and shall wire
advice of the amount of such credit to such Lender. Subject to Section
4.l(b)(ii), if any payment under this Agreement or any Note shall be
specified to be made upon a day which is not a Business Day, it shall
be made on the next succeeding day which is a Business Day and such
extension of time shall in such case be included in computing any
interest if payable along with such payment.
37
SECTION 4.5 CREDITING OF PAYMENTS AND PROCEEDS.
In the event that any Credit Party shall fail to pay any of the
Obligations when due and the Obligations have been accelerated pursuant
to Section 11.2, all payments received by the Lenders upon the Notes
and the other Obligations and all net proceeds from the enforcement of
the Obligations shall be applied first to all expenses then due and
payable by the Credit Parties hereunder, then to all indemnity
obligations then due and payable by the Credit Parties hereunder, then
to all Administrative Agent's fees then due and payable, then to all
commitment and other fees and commissions then due and payable, then to
accrued and unpaid interest on the Notes, the Reimbursement Obligations
and any termination payments due in respect of a Hedging Agreement with
any Lender or Affiliate of a Lender (which Hedging Agreement is
permitted hereunder) (PRO RATA in accordance with all such amounts
due), then to the principal amount of the Notes and Reimbursement
Obligations (PRO RATA in accordance with all such amounts due) and
then to the cash collateral account described in Section 11.2(b) hereof
to the extent of any L/C Obligations then outstanding, in that order.
SECTION 4.6 ADJUSTMENTS.
If any Lender (a "BENEFITED LENDER") shall at any time receive any
<PAGE>
payment of all or part of the Obligations owing to it, or interest
thereon, or if any Lender shall at any time receive any collateral in
respect to the Obligations owing to it (whether voluntarily or
involuntarily, by set-off or otherwise) in a greater proportion than
any such payment to and collateral received by any other Lender, if
any, in respect of the Obligations owing to such other Lender, or
interest thereon, such Benefited Lender shall purchase for cash from
the other Lenders such portion of each such other Lender's Extensions
of Credit, or shall provide such other Lenders with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to
cause such Benefited Lender to share the excess payment or benefits of
such collateral or proceeds ratably with each of the Lenders; PROVIDED,
that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned to the extent
of such recovery, but without interest. The Borrower agrees that each
Lender so purchasing a portion of another Lender's Extensions of Credit
may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
SECTION 4.7 NATURE OF OBLIGATIONS OF LENDERS REGARDING
EXTENSIONS OF CREDIT; ASSUMPTION BY THE ADMINISTRATIVE AGENT.
The obligations of the Lenders under this Agreement to make the
Loans and issue or participate in Letters of Credit are several and are
not joint or joint and several. Unless the Administrative Agent shall
have received notice from a Lender prior to a proposed borrowing date
(or, in the case of a Base Rate Loan, by 2:00 p.m. (Charlotte time) on
such borrowing date) that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of the Revolving
Credit Loans to be borrowed, the amount of Competitive Bid Loans to be
made by such Lender or, if such Lender is the Swingline Lender, subject
to Section 2.6(a), the amount of Swingline Loans to be made, on such
date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has
38
made such portion or amount available to the Administrative Agent on
the proposed borrowing date in accordance with Sections 2.2(b), 2.5(f)
and 2.6(e), and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding
amount. If such amount is made available to the Administrative Agent
on a date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount, until paid, equal to the
product of (a) the amount not made available by such Lender in
accordance with the terms hereof, TIMES (b) the daily average Federal
Funds Rate during such period as determined by the Administrative
Agent, TIMES (c) a fraction the numerator of which is the number of
days that elapse from and including such borrowing date to the date on
which such amount not made available by such Lender in accordance with
the terms hereof shall have become immediately available to the
Administrative Agent and the denominator of which is 360. A
certificate of the Administrative Agent with respect to any amounts
owing under this Section 4.7 shall be conclusive, absent manifest
error. If such Lender's Commitment Percentage of such Revolving Credit
Loans, the amount of Competitive Bid Loans made by such Lender, or, if
such Lender is the Swingline Lender,
<PAGE>
the amount of such Swingline Loans, is not made available to the
Administrative Agent by such Lender within three (3) Business Days of
such borrowing date, the Administrative Agent shall be entitled to
recover such amount made available by the Administrative Agent with
interest thereon at the rate per annum applicable to such borrowing, on
demand, from the Borrower. The failure of any Lender to make available
its Commitment Percentage of any Revolving Credit Loan, the amount of a
Competitive Bid Loan or the amount of a Swingline Loan requested by the
Borrower shall not relieve it or any other Lender of its obligation
hereunder to make its Commitment Percentage of such Revolving Credit
Loan, the amount of the Competitive Bid Loan or the amount of the
Swingline Loan, respectively, available on the borrowing date, but no
Lender shall be responsible for the failure of any other Lender to make
its Commitment Percentage of such Revolving Credit Loan, the amount of
such Competitive Bid Loan or the amount of such Swingline Loan,
available on the borrowing date.
SECTION 4.8 CHANGED CIRCUMSTANCES.
(a) CIRCUMSTANCES AFFECTING OFFSHORE RATE AVAILABILITY. If with
respect to any Interest Period: (i) the Administrative Agent or any
Lender (after consultation with the Administrative Agent) shall
determine that for any reason adequate and reasonable means do not
exist for determining the Offshore Rate for any requested Interest
Period with respect to a proposed Offshore Rate Loan or (ii) the
Required Lenders reasonably determine (which determination shall be
conclusive) and notify the Administrative Agent that the LIBOR Rate
will not adequately and fairly reflect the cost to the Required Lenders
of funding Offshore Rate Loans for such Interest Period, then the
Administrative Agent shall forthwith give notice thereof to the
Borrower. Thereafter, until the Administrative Agent notifies the
Borrower that such circumstances no longer exist, the obligation of the
Lenders to make Offshore Rate Loans and the right of the Borrower to
convert any Revolving Credit Loan to or continue any Revolving Credit
Loan as an Offshore Rate Loan shall be suspended, and the Borrower
shall repay in full (or cause to be repaid in full) the then
outstanding principal amount of each such Offshore Rate Loan together
with accrued interest thereon, on the last day of the then current
Interest Period applicable to such Offshore Rate Loan or convert the
then outstanding principal amount of each such Offshore Rate Loan to a
Base Rate Loan as of the last day of such Interest Period.
39
(b) LAWS AFFECTING OFFSHORE RATE AVAILABILITY. If, after the date
hereof, the introduction of, or any change in, any Applicable Law or
any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any
Lender (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) issued after the
date hereof of any such Governmental Authority, central bank or
comparable agency, shall make it unlawful or impossible for any of the
Lenders (or any of their respective Lending Offices) to honor its
obligations hereunder to make or maintain any Offshore Rate Loan, such
Lender shall promptly give notice thereof to the Administrative Agent
and the Administrative Agent shall promptly give notice to the Borrower
and the other Lenders. Thereafter, until the Administrative Agent
notifies the Borrower that such circumstances no longer exist, (i) the
obligations of
<PAGE>
the affected Lenders to make Offshore Rate Loans and the right of the
Borrower to convert any Revolving Credit Loan of the affected Lenders
or continue any Revolving Credit Loan of the affected Lenders as an
Offshore Rate Loan shall be suspended and thereafter the Borrower may
select only Base Rate Loans hereunder, (ii) if any of the Lenders may
not lawfully continue to maintain an Offshore Rate Loan to the end of
the then current Interest Period applicable thereto as an Offshore Rate
Loan, the applicable Offshore Rate Loan of the affected Lenders shall
immediately be converted to a Base Rate Loan for the remainder of such
Interest Period and the Borrower shall pay any amount required to be
paid pursuant to Section 4.9 in connection therewith and (iii) if any
of the Lenders may not lawfully continue to maintain a Competitive Bid
Loan which bears interest at a rate based on the Offshore Rate to the
end of the then current Interest Period applicable thereto at such rate
of interest, such Competitive Bid Loan of the affected Lender sall
immediately be converted to a Base Rate Loan for the remainder of such
Interest Period. The Borrower shall repay the outstanding principal
amount of any Competitive Bid Loans converted into Base Rate Loans in
accordance with clause (iii) of this Section 4.8(b), together with all
accrued but unpaid interest thereon and any amount required to be paid
pursuant to Section 4.9 hereof, on the last day of the Interest Period
applicable to such Competitive Bid Loans.
(c) INCREASED COSTS. If, after the date hereof, the introduction
of, or any change in, any Applicable Law, or in the interpretation or
administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any of the Lenders (or any of their
respective Lending Offices) with any request or directive (whether or
not having the force of law) issued after the date hereof of such
Authority, central bank or comparable agency:
(i) shall subject any of the Lenders (or any of their
respective Lending Offices) to any tax, duty or other charge with
respect to any Note, Letter of Credit or L/C Application or shall
change the basis of taxation of payments to any of the Lenders (or
any of their respective Lending Offices) of the principal of or
interest on any Note, Letter of Credit or L/C Application or any
other amounts due under this Agreement in respect thereof (except
for changes in the rate of tax on the overall net income of any of
the Lenders or any of their respective Lending Offices imposed by
the jurisdiction in which such Lender is organized or is or should
be qualified to do business or such Lending Office is located); or
40
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of
Governors of the Federal Reserve System, other than those used to
calculate the LIBOR Rate), special deposit, insurance or capital
or similar requirement against assets of, deposits with or for the
account of, or credit extended by any of the Lenders (or any of
their respective Lending Offices) or shall impose on any of the
Lenders (or any of their respective Lending Offices) or the
foreign exchange and interbank markets any other condition
affecting any Note;
and the result of any event of the kind described in the foregoing
<PAGE>
clause (i) or this clause (ii), is to increase the costs to any of the
Lenders of maintaining any Offshore Rate Loan, Competitive Bid Loan or
issuing or participating in Letters of Credit or to reduce the yield or
amount of any sum received or receivable by any of the Lenders under
this Agreement or under the Notes or any Letter of Credit or L/C
Application, then such Lender may promptly notify the Administrative
Agent, and the Administrative Agent shall promptly notify the Borrower
of such fact and demand compensation therefor and, within fifteen (15)
days after such notice by the Administrative Agent, the Borrower shall
pay to such Lender such additional amount or amounts as will compensate
such Lender or Lenders for such increased cost or reduction. The
Administrative Agent and the applicable Lender will promptly notify the
Borrower of any event of which it has knowledge which will entitle such
Lender to compensation pursuant to this Section 4.8(c); PROVIDED that
the Administrative Agent shall incur no liability whatsoever to the
Lenders or the Borrower in the event it fails to do so. The amount of
such compensation shall be determined, in the applicable Lender's
reasonable discretion, based upon the assumption that such Lender
funded its Aggregate Revolving Credit Commitment Percentage of the
Offshore Rate Loans, or the amount of any Competitive Bid Loans made by
such Lender, in the London interbank market and using any reasonable
attribution or averaging methods which such Lender deems appropriate
and practical. A certificate of such Lender setting forth in
reasonable detail the basis for determining such amount or amounts
necessary to compensate such Lender shall be forwarded to the Borrower
through the Administrative Agent and shall be conclusively presumed to
be correct save for manifest error.
SECTION 4.9 INDEMNITY.
The Borrower hereby indemnifies each of the Lenders against any
loss or expense which may arise or be attributable to each Lender's
obtaining, liquidating or employing deposits or other funds acquired
to effect, fund or maintain any Loan (a) as a consequence of any
failure by the Borrower to make any payment when due of any amount due
hereunder in connection with an Offshore Rate Loan, (b) due to any
failure of the Borrower to borrow on a date specified therefor in a
Notice of Revolving Credit Borrowing, Notice of Swingline Borrowing,
Competitive Bid Request or Notice of Continuation/Conversion or (c) due
to any payment, prepayment or conversion of any Offshore Rate Loan on a
date other than the last day of the Interest Period therefor. The
amount of such loss or expense shall be determined, in the applicable
Lender's reasonable discretion, based upon the assumption that such
Lender funded its Commitment Percentage of the Offshore Rate Loans in
the London interbank market and using any reasonable attribution or
averaging methods which such Lender deems appropriate and practical. A
certificate of such Lender setting forth in reasonable detail the basis
for determining such amount or amounts necessary to compensate such
Lender shall be forwarded
41
to the Borrower through the Administrative Agent and shall be
conclusively presumed to be correct save for manifest error.
SECTION 4.10 CAPITAL REQUIREMENTS.
If either (a) the introduction of, or any change in, or in the
interpretation of, any Applicable Law or (b) compliance with any
guideline or request issued after the date hereof from any central bank
<PAGE>
or comparable agency or other Governmental Authority (whether or not
having the force of law), has or would have the effect of reducing the
rate of return on the capital of, or has affected or would affect the
amount of capital required to be maintained by, any Lender or any
corporation controlling such Lender as a consequence of, or with
reference to any Lender's 364 Day Facility Commitment or Five Year
Facility Commitment or with reference to the Swingline Lender's
Swingline Commitment and other commitments of this type, below the
rate which the Lender or such other corporation could have achieved but
for such introduction, change or compliance, then within five (5)
Business Days after written demand by any such Lender, the Borrower
shall pay to such Lender from time to time as specified by such Lender
additional amounts sufficient to compensate such Lender or other
corporation for such reduction. A certificate of such Lender setting
forth in reasonable detail the basis for determining such amounts
necessary to compensate such Lender shall be forwarded to the Borrower
through the Administrative Agent and shall be conclusively presumed to
be correct save for manifest error.
SECTION 4.11 TAXES.
(a) PAYMENTS FREE AND CLEAR. Any and all payments by the Borrower
hereunder or under the Notes or the Letters of Credit shall be made
free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholding, and
all liabilities with respect thereto excluding, (i) in the case of each
Lender and the Administrative Agent, income and franchise taxes imposed
on (or measured by) its net income by the United States of America or
by the jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or its principal
office is located or is or should be qualified to do business or any
political subdivision thereof, or in the case of any Lender, in which
its applicable Lending Office is located (PROVIDED, however, that no
Lender shall be deemed to be located in any jurisdiction solely as a
result of taking any action related to this Agreement, the Notes or
Letters of Credit) and (ii) any branch profits tax imposed by the
United States of America or any similar tax imposed by any other
jurisdiction described in clause (i) above (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "TAXES"). If the Borrower
shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note or Letter of Credit to any
Lender or the Administrative Agent, (A) the sum payable shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable
under this Section 4.11) such Lender or the Administrative Agent (as
the case may be) receives an amount equal to the amount such party
would have received had no such deductions been made, (B) the Borrower
shall make such deductions, (C) the Borrower shall pay the full amount
deducted to the relevant taxing authority or other authority in
accordance with applicable law, and (D) the Borrower shall deliver to
the Administrative Agent evidence of such payment to the relevant
taxing authority or other authority in the
42
manner provided in Section 4.11(d). The Borrower shall not, however,
be required to pay any amounts pursuant to clause (A) of the preceding
sentence to any Foreign Lender or the Administrative Agent not
<PAGE>
organized under the laws of the United States of America or a state
thereof (or the District of Columbia) if such Foreign Lender or the
Administrative Agent fails to comply with the requirements of paragraph
(e) of this Section 4.11.
(b) STAMP AND OTHER TAXES. In addition, the Borrower shall pay
any present or future stamp, registration, recordation or documentary
taxes or any other similar fees or charges or excise or property taxes,
levies of the United States or any state or political subdivision
thereof or any applicable foreign jurisdiction which arise from any
payment made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement, the Loans, the
Letters of Credit, the other Loan Documents, or the perfection of any
rights or security interest in respect thereto (hereinafter referred to
as "OTHER TAXES").
(c) INDEMNITY. The Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes and Other Taxes imposed by
any jurisdiction on amounts payable under this Section 4.11) paid by
such Lender or the Administrative Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. A certificate as to the
amount of such payment or liability prepared by a Lender or the
Administrative Agent, absent manifest error, shall be conclusive,
PROVIDED that if the Borrower reasonably believes that such Taxes or
Other Taxes were not correctly or legally asserted, such Lender or the
Administrative Agent (as the case may be) shall use reasonable efforts
to cooperate with the Borrower, at the Borrower's expense, to obtain a
refund of such Taxes or Other Taxes. Such indemnification shall be made
within thirty (30) days from the date such Lender or the Administrative
Agent (as the case may be) makes written demand therefor. If a Lender
or the Administrative Agent shall become aware that it is entitled to
receive a refund in respect of Taxes or Other Taxes, it promptly shall
notify the Borrower of the availability of such refund and shall,
within sixty (60) days after receipt of a request by the Borrower
pursue or timely claim such refund at the Borrower's expense. If any
Lender or the Administrative Agent receives a refund in respect of any
Taxes or Other Taxes for which such Lender or the Administrative Agent
has received payment from the Borrower hereunder, it promptly shall
repay such refund (plus interest received, if any) to the Borrower (but
only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section 4.11 with respect to Taxes or
Other Taxes giving rise to such refund), PROVIDED that the Borrower,
upon the request of such Lender or the Administrative Agent, agrees to
return such refund (plus any penalties, interest or other charges
required to be paid) to such Lender or the Administrative Agent in the
event such Lender or the Administrative Agent is required to repay such
refund to the relevant taxing authority.
(d) EVIDENCE OF PAYMENT. Within thirty (30) days after the date
of any payment of Taxes or Other Taxes, the Borrower shall furnish to
the Administrative Agent, at its address referred to in Section 13.1,
the original or a certified copy of a receipt evidencing payment
thereof or other evidence of payment satisfactory to the Administrative
Agent.
43
<PAGE>
(e) DELIVERY OF TAX FORMS. Each Foreign Lender shall deliver to
the Borrower, with a copy to the Administrative Agent, on the Closing
Date or concurrently with the delivery of the relevant Assignment and
Acceptance, as applicable, (i) two United States Internal Revenue
Service Forms 4224 or Forms 1001, as applicable (or successor forms)
properly completed and certifying in each case that such Foreign Lender
is entitled to a complete exemption from withholding or deduction for
or on account of any United States federal income taxes, and (ii) 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 taxes. Each Foreign Lender further agrees to deliver to
the Borrower, with a copy to the Administrative Agent, a Form 1001 or
4224 and Form W-8 or W-9, or successor applicable forms or 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 Borrower, certifying in the case of a Form 1001 or 4224 that
such Foreign Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal
income taxes (unless in any such case an event (including without
limitation any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required
which renders such forms inapplicable or the exemption to which such
forms relate unavailable and such Foreign Lender notifies the Borrower
and the Administrative Agent that it is not entitled to receive
payments without deduction or withholding of United States federal
income taxes) and, in the case of a Form W-8 or W-9, establishing an
exemption from United States backup withholding tax.
(f) SURVIVAL. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of
the Borrower contained in this Section 4.11 shall survive the payment
in full of the Obligations and the termination of the 364 Day Facility
Commitment and the Five Year Facility Commitment, but shall be limited
in duration to the applicable statute of limitations for Taxes or Other
Taxes for which indemnification is sought.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 5.1 CLOSING.
The parties hereto shall execute and deliver this Agreement as of
9:00 a.m. (Charlotte time) on December 10, 1999 or on such other date
and at such other time as the parties hereto shall mutually agree.
SECTION 5.2 CONDITIONS TO CLOSING.
The obligations of the Lenders to close this Agreement are subject
to the satisfaction or waiver of each of the following conditions:
44
(a) EXECUTED LOAN DOCUMENTS. This Agreement, the Revolving Credit
Notes and all other applicable Loan Documents shall have been duly
authorized, executed and delivered to the Administrative Agent by the
parties thereto, shall be in full force and effect and no default
<PAGE>
(including without limitation a Default) shall exist thereunder, and
the Credit Parties shall have delivered original counterparts thereof
to the Administrative Agent.
(b) CLOSING CERTIFICATES; ETC.
(i) OFFICERS' CERTIFICATES. The Administrative Agent shall
have received a certificate from a Responsible Officer on behalf of
each Credit Party, in form and substance reasonably satisfactory to the
Administrative Agent, to the effect that all representations and
warranties of such Credit Party contained in this Agreement and the
other Loan Documents are true, correct and complete in all material
respects; that such Credit Party is not in violation of any of the
covenants contained in this Agreement and the other Loan Documents;
that, after giving effect to the transactions contemplated by this
Agreement, no Default or Event of Default has occurred and is
continuing; and that each of the closing conditions has been satisfied
or waived (assuming satisfaction of the Administrative Agent where not
advised otherwise).
(ii) GENERAL CERTIFICATES. The Administrative Agent shall
have received a certificate of the secretary, assistant secretary or
general counsel of each Credit Party certifying as to the incumbency
and genuineness of the signature of each officer of such Credit Party
executing Loan Documents to which it is a party and certifying that
attached thereto is a true, correct and complete copy of (A) the
articles of incorporation of such Credit Party and all amendments
thereto, certified as of a recent date by the appropriate
Governmental Authority in its jurisdiction of incorporation, (B) the
bylaws of such Credit Party as in effect on the date of such
certifications, (C) resolutions duly adopted by the Board of
Directors of such Credit Party authorizing, as applicable, the
borrowings contemplated hereunder and the execution, delivery and
performance of this Agreement and the other Loan Documents to which
it is a party, and (D) each certificate required to be delivered
pursuant to Section 5.2(b)(iii).
(iii) CERTIFICATES OF GOOD STANDING. The Administrative Agent
shall have received long-form certificates as of a recent date of
the good standing or active status, as applicable, of the Credit
Parties and their Material Subsidiaries under the laws of their
respective jurisdictions of organization and short-form certificates
as of a recent date of the good standing of the Borrower under
the laws of each other jurisdiction where the Borrower is qualified
to do business and where a failure to be so qualified could
reasonably be expected to have a Material Adverse Effect.
(iv) OPINIONS OF COUNSEL. The Administrative Agent shall have
received opinions in form and substance reasonably satisfactory to
the Administrative Agent of counsel to the Credit Parties, addressed
to the Administrative Agent and the Lenders with respect to the
Credit Parties, the Loan Documents and such other matters as the
Administrative Agent shall reasonably request.
45
(c) CONSENTS; DEFAULTS.
(i) GOVERNMENTAL AND THIRD PARTY APPROVALS. The Borrower shall
<PAGE>
have obtained all approvals, authorizations and consents of any
Person and of all Governmental Authorities and courts having
jurisdiction necessary in order to enter into this Agreement and the
other Loan Documents as of the Closing Date. Additionally, there
shall not exist any judgment, order, injunction or other restraint
issued or filed or a hearing seeking injunctive relief or other
restraint pending or notified prohibiting or imposing materially
adverse conditions upon the transactions contemplated by this
Agreement and the other Loan Documents or otherwise referred to
herein or therein.
(ii) NO EVENT OF DEFAULT. No Default or Event of Default shall
have occurred and be continuing.
(d) NO MATERIAL ADVERSE EFFECT. Since December 31, 1998 nothing
shall have occurred (and neither the Administrative Agent nor the
Lenders shall have become aware of any facts or conditions not
previously known) which has had, or could reasonably be expected to
have, a Material Adverse Effect.
(e) FINANCIAL MATTERS.
(i) FINANCIAL STATEMENTS. The Administrative Agent shall have
received the Annual Report on Form 10-K of the Borrower for the
fiscal year ended as of December 31, 1998 and the Quarterly Report on
Form 10-Q of the Borrower for the fiscal quarter ended as of
September 30, 1999.
(ii) PAYMENT AT CLOSING. The Borrower shall have paid any
accrued and unpaid fees or commissions due hereunder (including,
without limitation, reasonable legal fees and expenses) to the
Administrative Agent and Lenders, and to any other Person such amount
as may be due thereto in connection with the transactions
contemplated hereby, including all taxes, fees and other charges in
connection with the execution, delivery, recording, filing and
registration of any of the Loan Documents.
(f) LITIGATION. Except as set forth in the Current SEC Reports,
as of the Closing Date, there shall be no actions, suits or proceedings
pending or, to the best knowledge of the Borrower, threatened (i) with
respect to this Agreement or any other Loan Document or (ii) which the
Administrative Agent or the Required Lenders shall reasonably determine
could reasonably be expected to have a Material Adverse Effect.
(g) TERMINATION OF PRIOR BANK COMMITMENT. The Prior Bank
Commitment shall have been (or will be upon the initial borrowing
hereunder and the application of the proceeds thereof) (i) paid in
full, (ii) the obligations of the Borrower satisfied thereunder and
(iii) either (A) all outstanding promissory notes issued by the
Borrower with respect thereto canceled and the originally executed
copies thereof returned to the Borrower or the Administrative Agent
(who shall promptly forward such notes to the Borrower) or (B) the
Administrative Agent otherwise shall have received evidence
satisfactory to it that such Prior Bank Commitment
46
has been amended and restated by this Agreement; PROVIDED that
arrangements may be made so that any outstanding letter of credit
<PAGE>
issued under such committed facilities may remain outstanding as
necessary.
(h) MISCELLANEOUS.
(i) PROCEEDINGS AND DOCUMENTS. All Loan Documents, opinions,
certificates and other instruments and all proceedings in connection
with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to the Administrative
Agent.
(ii) YEAR 2000. The Administrative Agent shall have received
and reviewed information in form and substance reasonably
satisfactory to it confirming that (A) the Borrower and its
Subsidiaries are taking all necessary and appropriate steps to
ascertain the extent of, and to quantify and successfully address,
business and financial risks facing the Borrower and its Subsidiaries
as a result of what is commonly referred to as the "YEAR 2000
PROBLEM" (I.E., the inability of certain computer applications to
recognize and perform date sensitive functions involving certain
dates prior to and after December 31, 1999), including risks
resulting from the failure of key vendors and customers of the
Borrower and its Subsidiaries to successfully address the Year 2000
Problem, and (B) the Borrower's and its Subsidiaries' material
computer applications and those of its key vendors and customers
will, on a timely basis, adequately address the Year 2000 Problem in
each case sufficient to avoid a Material Adverse Effect.
(iii) ACCURACY AND COMPLETENESS OF INFORMATION. All
information taken as an entirety made available to the Administrative
Agent or the Lenders by the Credit Parties or any of their
representatives in connection with the transactions contemplated
hereby ("INFORMATION") is and will be complete and correct in all
material respects as of the date made available to the Administrative
Agent and does not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements contained therein not misleading.
SECTION 5.3 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligation of each Lender to make any Extension of Credit
hereunder (including the initial Extension of Credit to be made
hereunder) is subject to the satisfaction of the following conditions
precedent on the relevant borrowing or issue date, as applicable:
(a) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties contained in Article VI shall be true
and correct in all material respects on and as of such borrowing or
issuance date with the same effect as if made on and as of such date,
except for any representation and warranty made as of an earlier date,
which representation and warranty shall remain true and correct in all
material respects as of such earlier date.
(b) NO EXISTING DEFAULT. No Default or Event of Default shall
have occurred and be continuing hereunder (i) on the borrowing date
with respect to such Loan or after giving effect to the Loans to be
47
<PAGE>
made one such date or (ii) on the issue date with respect to such
Letter of Credit or after giving effect to such Letters of Credit on
such date.
(c) NOTICE OF REVOLVING CREDIT BORROWING. The Administrative
Agent shall have received a Notice of Revolving Credit Borrowing from
the relevant Borrower in accordance with Section 2.2(a) or a
Competitive Bid Request in accordance with Section 2.5(a) and a Notice
of Account Designation specifying the account or accounts to which the
proceeds of any Loans made after the Closing Date are to be disbursed.
The occurrence of the Closing Date and the acceptance by the
Borrower of the benefits of each Extension of Credit hereunder shall
constitute a representation and warranty by the Borrower to the
Administrative Agent and each of the Lenders that all the conditions
specified in Sections 5.2 and 5.3 and applicable to such borrowing have
been satisfied as of that time. All of the Notes, certificates, legal
opinions and other documents and papers referred to in Sections 5.2 and
5.3, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except
for the Notes, in sufficient counterparts or copies for each of the
Lenders and shall be in form and substance reasonably satisfactory to
the Administrative Agent.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES
SECTION 6.1 REPRESENTATIONS AND WARRANTIES.
To induce the Administrative Agent and Lenders to enter into this
Agreement and to induce the Lenders to make Extensions of Credit, each
Credit Party hereby represents and warrants to the Administrative Agent
and Lenders that:
(a) ORGANIZATION; POWER; QUALIFICATION. Each of the Credit Parties
and their Material Subsidiaries is duly organized, validly existing and
in good standing or active status, as applicable, under the laws of the
jurisdiction of its incorporation or formation, has the power and
authority to own its properties and to carry on its business as now
being and hereafter proposed to be conducted and is duly qualified and
authorized to do business in each jurisdiction in which the character
of its properties or the nature of its business requires such
qualification and authorization, except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect.
(b) OWNERSHIP. Each Subsidiary of each of the Credit Parties as
of the Closing Date is listed on SCHEDULE 6.L(B). As of the Closing
Date, all outstanding shares of each such Subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable
(subject to Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law, relating to shareholders' liability for employee
wages, in the case of Wisconsin corporations). As of the Closing
Date, there are no outstanding stock purchase warrants, subscriptions,
options, securities, instruments or other rights of any type or nature
whatsoever, which are convertible into, exchangeable for or otherwise
48
provide for or permit the issuance of capital stock of the Credit
<PAGE>
Parties or their Subsidiaries, except as described in the Current SEC
Reports.
(c) AUTHORIZATION OF AGREEMENT, LOAN DOCUMENTS AND BORROWING.
Each of the Credit Parties and, if applicable, their Subsidiaries has
the right, power and authority and has taken all necessary corporate
and other action to authorize the execution, delivery and performance
of each of the Loan Documents to which it is a party in accordance with
its respective terms. Each of the Loan Documents has been duly
executed and delivered by the duly authorized officers of the Credit
Parties and each of their Subsidiaries party thereto, as applicable,
and each such document constitutes the legal, valid and binding
obligation of the Credit Parties and, if applicable, each of their
Subsidiaries party thereto, enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar state or federal debtor relief
laws from time to time in effect which affect the enforcement of
creditors' rights in general and the availability of equitable
remedies.
(d) COMPLIANCE OF AGREEMENT, LOAN DOCUMENTS AND BORROWING WITH
LAWS, ETC. The execution, delivery and performance by the Credit
Parties and their Subsidiaries of the Loan Documents to which each such
Person is a party, in accordance with their respective terms, the
borrowings hereunder and the transactions contemplated hereby do not
and will not, by the passage of time, the giving of notice or
otherwise, (i) require any of the Credit Parties or any of their
Subsidiaries to obtain any Governmental Approval not otherwise already
obtained or violate any Applicable Law relating to the Credit Parties
or any of their Subsidiaries, (ii) conflict with, result in a breach of
or constitute a default under the articles of incorporation, bylaws or
other organizational documents of the Credit Parties or any of their
Subsidiaries or any indenture or other material agreement or instrument
to which such Person is a party or by which any of its properties
may be bound or any Governmental Approval relating to such Person
except as could not reasonably be expected to have a Material Adverse
Effect, or (iii) result in or require the creation or imposition of any
material Lien upon or with respect to any property now owned or
hereafter acquired by such Person.
(e) COMPLIANCE WITH LAW; GOVERNMENTAL APPROVALS. Other than with
respect to environmental matters, which are treated exclusively in
Section 6.1(h) hereof, each of the Credit Parties and their respective
Subsidiaries (i) has all Governmental Approvals required by any
Applicable Law for it to conduct its business, each of which is in full
force and effect, is final and not subject to review on appeal and is
not the subject of any pending or, to the best of the Credit Parties'
knowledge, threatened attack by direct or collateral proceeding, and
(ii) is in compliance with each Governmental Approval applicable to it
and in compliance with all other Applicable Laws relating to it or any
of its respective properties; in each case, except where the failure to
do so could not reasonably be expected to have a Material Adverse
Effect.
(f) TAX RETURNS AND PAYMENTS. Each of the Credit Parties and
their respective Subsidiaries has timely filed or caused to be filed
all federal and state, local and other tax returns required by
Applicable Law to be filed, and has paid, or made adequate provision
for the payment of, all federal and state, local and other taxes,
<PAGE>
assessments and governmental charges or levies upon it and its
property, income, profits and assets which are due and payable, except
taxes (i) that are being contested in good faith by appropriate
49
proceedings and for which such Credit Party or Subsidiary, as
applicable, has set aside on its books adequate reserves or (ii) to
the extent the failure to do so could not reasonably be expected to
have a Material Adverse Effect. No Governmental Authority has asserted
any material Lien or other claim against the Credit Parties or any
Subsidiary thereof with respect to unpaid taxes which has not been
discharged or resolved. The charges, accruals and reserves on the
books of each of the Credit Parties and any of their respective
Subsidiaries in respect of federal and all material state, local and
other taxes for all Fiscal Years and portions thereof since the
organization of each of the Credit Parties and any of their
Subsidiaries are, in the judgment of the Credit Parties, adequate, and
the Credit Parties do not anticipate any material additional taxes or
assessments for any of such years.
(g) INTELLECTUAL PROPERTY MATTERS. Each of the Credit Parties and
its Subsidiaries owns or possesses rights to use all franchises,
licenses, copyrights, copyright applications, patents, patent rights or
licenses, patent applications, trademarks, trademark rights, trade
names, trade name rights, copyrights and rights with respect to the
foregoing which are required to conduct its business except where the
failure to do so could not reasonably be expected to have a Material
Adverse Effect. No event has occurred which, to the knowledge of the
Credit Parties, permits, or after notice or lapse of time or both would
permit, the revocation or termination of any such rights, and, to the
knowledge of the Credit Parties, neither the Credit Parties nor any
Subsidiary thereof is liable to any Person for infringement under
Applicable Law with respect to any such rights as a result of its
business operations, except as could not reasonably be expected to have
a Material Adverse Effect.
(h) ENVIRONMENTAL MATTERS. Except as set forth in the Current SEC
Reports or as otherwise could not reasonably be expected to have a
Material Adverse Effect:
(i) The properties of the Credit Parties and their Subsidiaries
(including soils, surface waters, groundwaters on, at or under such
properties) do not contain and are not otherwise affected by, and to
the Credit Parties' knowledge have not previously contained or been
affected by, any Hazardous Materials in amounts or concentrations
which (A) constitute or constituted a violation of applicable
Environmental Laws or (B) could give rise to liability or obligation
under applicable Environmental Laws;
(ii) The properties of the Credit Parties and their
Subsidiaries and all operations conducted in connection therewith are
in compliance, and have been in compliance, with all applicable
Environmental Laws, and there are no Hazardous Materials at, under or
about such properties or such operations which could reasonably be
expected to interfere with the continued operation of such
properties;
(iii) The Credit Parties and their Subsidiaries have obtained,
are in compliance with, and have made all appropriate filings for
<PAGE>
issuance or renewal of, all permits, licenses, and other governmental
consents required by applicable Environmental Laws ("ENVIRONMENTAL
PERMITS"), and all such Environmental Permits are in full force and
effect;
50
(iv) Neither any of the Credit Parties nor any Subsidiary
thereof has received any notice of violation, alleged violation,
non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws, nor do
the Credit Parties have knowledge or reason to believe that any such
notice will be received or is being threatened;
(v) To the knowledge of the Credit Parties, Hazardous Materials
have not been transported or disposed of from the properties of the
Credit Parties or any of their Subsidiaries in violation of, or in a
manner or to a location which could reasonably be expected to give
rise to liability under, Environmental Laws, nor, to the knowledge of
the Credit Parties, have any Hazardous Materials been generated,
treated, stored or disposed of at, on or under any of such properties
in violation of, or in a manner which could reasonably be expected to
give rise to liability under, any Environmental Laws;
(vi) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the Credit Parties,
threatened, under any Environmental Law to which any of the Credit
Parties or any Subsidiary thereof has been or will be named as a
party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any
Environmental Law with respect to the properties or operations of the
Credit Parties and their Subsidiaries; and
(vii) To the knowledge of the Credit Parties, there has been no
release, or threat of release, of Hazardous Materials at or from the
properties of the Credit Parties or any of their Subsidiaries, in
violation of or in amounts or in a manner that could reasonably be
expected to give rise to liability under Environmental Laws.
(i) ERISA.
(i) Each of the Credit Parties and each ERISA Affiliate is in
compliance with all applicable provisions of ERISA and the
regulations and published interpretations thereunder with respect to
all Employee Benefit Plans except where any such noncompliance could
not reasonably be expected to have a Material Adverse Effect. Except
for any failure that would not reasonably be expected to have a
Material Adverse Effect, each Employee Benefit Plan that is intended
to be qualified under Section 401(a) of the Code has been determined
by the Internal Revenue Service to be so qualified, and each trust
related to such plan has been determined to be exempt under Section
501(a) of the Code. No liability that could reasonably be expected
to have a Material Adverse Effect has been incurred by the Credit
Parties or any ERISA Affiliate which remains unsatisfied for any
taxes or penalties with respect to any Employee Benefit Plan or any
Multiemployer Plan;
<PAGE>
(ii) No accumulated funding deficiency (as defined in Section
412 of the Code) has been incurred (without regard to any waiver
granted under Section 412 of the Code), nor has any funding waiver
from the Internal Revenue Service been received or requested with
51
respect to any Pension Plan except for any accumulated funding
deficiency that could not reasonably be expected to have a Material
Adverse Effect;
(iii) Neither the Credit Parties nor any ERISA Affiliate has:
(A) engaged in a nonexempt prohibited transaction described in
Section 406 of ERISA or Section 4975 of the Code, (B) incurred any
liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due
and unpaid, (C) failed to make a required contribution or payment to
a Multiemployer Plan, or (D) failed to make a required installment or
other required payment under Section 412 of the Code except where any
of the foregoing individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect;
(iv) No Termination Event that could reasonably be expected to
result in a Material Adverse Effect has occurred or is reasonably
expected to occur; and
(v) No proceeding, claim, lawsuit and/or investigation is
existing or, to the knowledge of the Credit Parties, threatened
concerning or involving any Employee Benefit Plan that could
reasonably be expected to result in a Material Adverse Effect.
(j) MARGIN STOCK. Neither the Credit Parties nor any Subsidiary
thereof is engaged principally or as one of its activities in the
business of extending credit for the purpose of ``purchasing'' or
"carrying" any ``margin stock'' (as each such term is defined or used
in Regulation U of the Board of Governors of the Federal Reserve
System). No part of the proceeds of any of the Loans or Letters of
Credit will be used for purchasing or carrying margin stock, unless the
Credit Parties shall have given the Administrative Agent and Lenders
prior notice of such event and such other information as is reasonably
necessary to permit the Administrative Agent and Lenders to comply, in
a timely fashion, with all reporting obligations required by Applicable
Law, or for any purpose which violates, or which would be inconsistent
with, the provisions of Regulation T, U or X of such Board of
Governors.
(k) GOVERNMENT REGULATION. Neither the Credit Parties nor any
Subsidiary thereof is an "investment company" or a company "controlled"
by an "investment company" (as each such term is defined or used in the
Investment Company Act of 1940, as amended) and neither the Borrower
nor any Subsidiary thereof is, or after giving effect to any Extension
of Credit will be, subject to regulation under the Public Utility
Holding Company Act of 1935 or the Interstate Commerce Act, each as
amended.
(l) BURDENSOME PROVISIONS. Neither the Credit Parties nor any
Subsidiary thereof is a party to any indenture, agreement, lease or
other instrument, or subject to any corporate or partnership
restriction, Governmental Approval or Applicable Law which is so
unusual or burdensome as in the foreseeable future could be reasonably
<PAGE>
expected to have a Material Adverse Affect. The Credit Parties and
their Subsidiaries do not presently anticipate that future expenditures
needed to meet the provisions of any statutes, orders, rules or
regulations of a Governmental Authority will be so burdensome as to
have a Material Adverse Effect.
(m) FINANCIAL STATEMENTS; FINANCIAL CONDITION: ETC.
52
(i) The (A) audited Consolidated balance sheets of the Credit
Parties and their Subsidiaries as of December 31, 1998 and the
related statements of income, stockholders' equity and cash flows
for the Fiscal Year then ended and (B) unaudited Consolidated balance
sheet of the Credit Parties and their Subsidiaries as of September
30, 1999, and related unaudited interim statements of income,
stockholders' equity and cash flows, copies of which have been
furnished to the Administrative Agent and each Lender, have been
prepared in accordance with GAAP (except as set forth in the notes
thereto), are complete in all material respects and fairly present in
all material respects the assets, liabilities and financial position
of the Credit Parties and their Subsidiaries as at such dates, and
the results of the operations and changes of financial position for
the periods then ended, subject to normal year end adjustments.
(ii) As of the Closing Date, (A) the sum of the assets, at a
fair valuation, of each Credit Party on a stand-alone basis and of
the Credit Parties and their Subsidiaries taken as a whole will
exceed its or their debts, respectively; (B) each Credit Party on a
stand-alonebasis and the Credit Parties and their Subsidiaries taken
as a whole has not incurred and does not intend to incur, and does
not believe that it will incur, debts beyond its or their ability to
pay such debts as such debts mature, respectively; and (C) each
Credit Party on a stand-alone basis and the Credit Parties and their
Subsidiaries taken as a whole will have sufficient capital with
which to conduct its or their business, respectively. For purposes
of this Section, "debt" means any liability on a claim, and "claim"
means (I) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or
unsecured or (II) right to an equitable remedy for breach of
performance if such breach gives rise to a payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or
unsecured. The amount of contingent liabilities at any time shall
be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
(n) NO MATERIAL ADVERSE CHANGE. Since December 31, 1998, there
has been no Material Adverse Effect.
(o) LIENS. None of the properties and assets of the Credit
Parties or any Subsidiary thereof is subject to any Lien, except Liens
permitted pursuant to Section 9.2.
(p) DEBT AND SUPPORT OBLIGATIONS. SCHEDULE 6.1(P) is a complete
and correct listing of all Debt and Support Obligations of the Credit
<PAGE>
Parties and their Subsidiaries as of the Closing Date in excess of
$5,000,000.
(q) LITIGATION. Except for matters existing on the Closing Date
and set forth in the Current SEC Reports, there are no actions, suits
or proceedings pending nor, to the knowledge of the Credit Parties,
threatened against or affecting the Credit Parties or any Subsidiary
thereof or any of their respective properties in any court or before
53
any arbitrator of any kind or before or by any Governmental Authority,
which could reasonably be expected to have a Material Adverse Effect.
(r) ABSENCE OF DEFAULTS. Since September 30, 1999, to the
knowledge of the Borrower, no event has occurred and is continuing
which constitutes a Default or an Event of Default.
(s) ABSENCE OF BANKRUPTCY EVENTS. Since September 30, 1999, no
event has occurred or is continuing which constitutes a Bankruptcy
Event.
(t) ACCURACY AND COMPLETENESS OF INFORMATION. As of the Closing
Date, the Credit Parties have disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which they or any of
their Subsidiaries are subject, and all other matters known to them,
other than general market, economic and industry conditions, that,
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect. The written information, taken as a whole,
furnished by or on behalf of the Credit Parties to the Administrative
Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) does not contain any material misstatement of
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED that, with respect to any projected
financial information, the Credit Parties represent only that such
information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
(u) YEAR 2000 COMPLIANCE. The Credit Parties have (i) initiated a
review and assessment of all areas within their and each of their
Subsidiaries' material business and operations that could reasonably be
expected to be adversely affected by the Year 2000 Problem, (ii)
developed a plan, strategy or other approach for addressing the Year
2000 Problem on a timely basis, and (iii) implemented that plan,
strategy or other approach. Based on the foregoing and upon the Credit
Parties' reliance on (i) any Year 2000 consulting services, study,
report or any other information performed or provided by any Person
other than the Credit Parties or any of their Subsidiaries and (ii) any
certification or assurance of Year 2000 compliance provided by any
vendor, supplier, servicer, manufacturer, customer or other provider of
any hardware or software product or other computer applications
installed at the Credit Parties or any of their Subsidiaries, the
Credit Parties believe, as of the Closing Date, that all computer
applications (including, limited to the Credit Parties' inquiries,
those disclosed by their suppliers, vendors and customers) that are
material to their or any of their Subsidiaries' business and operations
are reasonably expected on a timely basis to be able to perform
properly date-sensitive functions for all dates before and after
<PAGE>
December 31, 1999 (that is, be "YEAR 2000 COMPLIANT"), except to the
extent that a failure to do so could not reasonably be expected to have
a Material Adverse Effect.
(v) PROPERTY. The Credit Parties and their Subsidiaries have good
and marketable title to all material properties owned by them and valid
leasehold interests in all material properties leased by them,
including all property reflected in the Current SEC Reports and in the
balance sheets referred to in Section 6.l(m)(i) (except as sold or
otherwise
54
disposed of since the date of such balance sheet in the ordinary course
of business or as permitted by the terms of this Agreement), free and
clear of all Liens, except Liens permitted pursuant to Section 9.2.
(w) LABOR PRACTICES. Neither the Credit Parties nor any of their
Subsidiaries is engaged in any unfair labor practices that could
reasonably be expected to have a Material Adverse Effect. There is (i)
no unfair labor practice complaint pending against any Credit Party or
any of their Subsidiaries or, to the knowledge of the Credit Parties,
threatened against the Credit Parties or any of their Subsidiaries,
before the National Labor Relations Board, and no grievance or
arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Credit Parties or any of
their Subsidiaries or, to the knowledge of the Credit Parties,
threatened against the Credit Parties or any of their Subsidiaries,
(ii) no strike, labor dispute, slowdown or stoppage pending against the
Credit Parties or any of their Subsidiaries or, to the knowledge of the
Credit Parties, threatened against the Credit Parties or any of their
Subsidiaries and (iii) no union representation question exists with
respect to the employees of the Credit Parties or any of their
Subsidiaries except (with respect to any matter specified in clause
(i), (ii) or (iii) above, either individually or in the aggregate) such
as could not reasonably be expected to have a Material Adverse Effect.
(x) SEC REPORTS. During the preceding three (3) Fiscal Years, the
Borrower and its Subsidiaries have filed all forms, reports, statements
(including proxy statements) and other documents (such filings by the
Credit Parties and their Subsidiaries are collectively referred to as
the "SEC REPORTS"), required to be filed by it with the Securities and
Exchange Commission. The SEC Reports (i) were prepared in all material
respects in accordance with the requirements of the Securities Act of
1933, as amended, and the Securities Exchange Act of 1934, as amended,
as the case may be, and the rules and regulations of the Securities
Exchange Commission thereunder applicable to such SEC Reports at the
time of filing thereof and (ii) did not at the time they were filed
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, which untrue statement or
omission was not corrected in a subsequent SEC Report.
SECTION 6.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.
All representations and warranties set forth in this Article VI and
all representations and warranties contained in any certificate related
hereto, or any of the Loan Documents (including but not limited to any
such representation or warranty made in or in connection with any
<PAGE>
amendment thereto) shall constitute representations and warranties made
under this Agreement. All representations and warranties made under
this Agreement shall be made or deemed to be made at and as of the
Closing Date, shall survive the Closing Date and shall not be waived by
the execution and delivery of this Agreement, any investigation made by
or on behalf of the Lenders or any borrowing hereunder.
55
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations (other than Obligations under Hedging
Agreements) have been paid and satisfied in full and the later of the
364 Day Facility Termination Date or the Five Year Facility Termination
Date, unless consent has been obtained in the manner set forth in
Section 13.10 hereof, the Credit Parties will furnish or cause to be
furnished to the Administrative Agent and to the Lenders at their
respective addresses as set forth in Section 13.1 and on SCHEDULE 13.1,
or such other office as may be designated by the Administrative Agent
and Lenders from time to time:
SECTION 7.1 FINANCIAL STATEMENTS, ETC.
(a) QUARTERLY FINANCIAL STATEMENTS. As soon as practicable and in
any event within sixty (60) days after the end of each of the first
three fiscal quarters of each Fiscal Year, either (i) a copy of a
report on Form 10-Q, or any successor form, and any amendments
thereto, filed by the Borrower with the Securities and Exchange
Commission with respect to the immediately preceding fiscal quarter or
(ii) an unaudited Consolidated balance sheet of the Borrower and its
Subsidiaries as of the close of such fiscal quarter and unaudited
Consolidated statements of income, stockholders' equity and cash flows
for the fiscal quarter then ended and that portion of the Fiscal Year
then ended, including the notes thereto, all in reasonable detail
setting forth in comparative form the corresponding figures for the
corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the preceding Fiscal Year and prepared by the
Borrower in accordance with GAAP and, if applicable, containing
disclosure of the effect on the financial position or results of
operations of any change in the application of accounting principles
and practices during the period, and certified by a Responsible Officer
of the Borrower to present fairly in all material respects the
financial condition of the Borrower and its Subsidiaries as of their
respective dates and the results of operations of the Borrower and its
Subsidiaries for the respective periods then ended, subject to normal
year end adjustments.
(b) ANNUAL FINANCIAL STATEMENTS. As soon as practicable and in
any event within one hundred twenty (120) days after the end of each
Fiscal Year, either (i) a copy of a report on Form 10-K, or any
successor form, and any amendments thereto, filed by the Borrower with
the Securities and Exchange Commission with respect to the immediately
preceding Fiscal Year or (ii) an audited Consolidated balance sheet of
the Borrower and its Subsidiaries as of the close of such Fiscal Year
and audited Consolidated statements of income, stockholders' equity and
cash flows for the Fiscal Year then ended, including the notes thereto,
all in reasonable detail setting forth in comparative form the
<PAGE>
corresponding figures for the preceding Fiscal Year and prepared by a
nationally recognized independent certified public accounting firm
acceptable to the Administrative Agent in accordance with GAAP and, if
applicable, containing disclosure of the effect on the financial
position or results of operation of any change in the application of
accounting principles and practices during the year, and accompanied by
a report thereon by such certified public accountants that is not
qualified with respect to scope limitations imposed by the Borrower or
any of its Subsidiaries or with respect to accounting principles
followed by the Borrower or any of its Subsidiaries not in accordance
with GAAP.
56
(c) ANNUAL BUDGETS. As soon as practicable and in any event
within sixty (60) days after the end of each Fiscal Year, an annual
business plan and budget of the Borrower and its Subsidiaries for the
Fiscal Year immediately following such Fiscal Year end, containing
among other things projections of pro forma financial statements for
such fiscal year.
SECTION 7.2 OFFICER'S COMPLIANCE CERTIFICATE.
At each time financial statements are delivered pursuant to Section
7.1(a) or (b) a certificate of a Responsible Officer of the Borrower in
the form of EXHIBIT G attached hereto (an "OFFICER'S COMPLIANCE
CERTIFICATE") including the calculations prepared by such Responsible
Officer required to establish whether or not the Credit Parties and
their Subsidiaries are in compliance with the financial covenants set
forth in Section 9.1 hereof as at the end of each respective period.
SECTION 7.3 ACCOUNTANTS' CERTIFICATE.
At each time financial statements are delivered pursuant to Section
7.1(b), a certificate of the independent public accountants certifying
such financial statements addressed to the Administrative Agent for the
benefit of the Lenders stating that in making the examination necessary
for the certification of such financial statements, they obtained no
knowledge of any Default or Event of Default or, if such is not the
case, specifying such Default or Event of Default and its nature and
period of existence.
SECTION 7.4 OTHER REPORTS.
(a) Promptly after the filing thereof, a copy of (i) each report
or other filing made by any of the Credit Parties or any or their
Subsidiaries with the Securities and Exchange Commission and required
by the Securities and Exchange Commission to be delivered to the
shareholders of the Credit Parties or any or their Subsidiaries, (ii)
each report made by the Credit Parties or any of their Subsidiaries to
the Securities and Exchange Commission on Form 8-K and (iii) each final
registration statement of the Credit Parties or any of their
Subsidiaries filed with the Securities and Exchange Commission, except
in connection with pension plans and other employee benefit plans; and
(b) Such other information regarding the operations, business
affairs and financial condition of the Credit Parties or any of their
Subsidiaries relating to the ability of the Credit Parties or any of
their Subsidiaries to perform their obligations under the Loan
Documents as the Administrative Agent or any Lender may reasonably
<PAGE>
request.
SECTION 7.5 NOTICE OF LITIGATION AND OTHER MATTERS.
Prompt (but in no event later than three (3) Business Days after an
executive officer of any of the Credit Parties obtains knowledge
thereof) telephonic (confirmed in writing) or written notice of:
57
(a) the commencement of all proceedings and investigations by or
before any Governmental Authority and all actions and proceedings in
any court or before any arbitrator against or involving any of the
Credit Parties or any Subsidiary thereof or any of their respective
properties, assets or businesses (i) which in the reasonable judgment
of the Credit Parties could reasonably be expected to have a Material
Adverse Effect, (ii) with respect to any material Debt of the Credit
Parties or any of their Subsidiaries or (iii) with respect to any Loan
Document;
(b) any notice of any violation received by any of the Credit
Parties or any Subsidiary thereof from any Governmental Authority
including, without limitation, any notice of violation of Environmental
Laws, which in the reasonable judgment of the Credit Parties in any
such case could reasonably be expected to have a Material Adverse
Effect;
(c) (i) any unfavorable determination letter from the Internal
Revenue Service regarding the qualification of an Employee Benefit Plan
under Section 401(a) of the Code (along with a copy thereof) which
could reasonably be expected to have a Material Adverse Effect, (ii)
all notices received by any of the Credit Parties or any ERISA
Affiliate of the PBGC's intent to terminate any Pension Plan or to have
a trustee appointed to administer any Pension Plan, (iii) all notices
received by any of the Credit Parties or any ERISA Affiliate from a
Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA which could
reasonably be expected to have a Material Adverse Effect, (iv) the
Credit Parties obtaining knowledge or reason to know that the Credit
Parties or any ERISA Affiliate has filed or intends to file a notice of
intent to terminate any Pension Plan under a distress termination
within the meaning of Section 4041(c) of ERISA and (v) the occurrence
of a Reportable Event;
(d) the occurrence of any event which constitutes, or which could
reasonably be expected to result in, a Default or an Event of Default;
and
(e) the occurrence of any event which constitutes, or which could
reasonably be expected to result in, a Material Adverse Effect.
SECTION 7.6 ACCURACY OF INFORMATION.
All written information, reports, statements and other papers and
data furnished by or on behalf of the Credit Parties to the
Administrative Agent or any Lender (other than financial forecasts)
whether pursuant to this Article VII or any other provision of this
Agreement, shall be, at the time the same is so furnished, true and
complete in all material respects.
<PAGE>
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations (other than any Obligations under any
Hedging Agreement) have been paid and satisfied in full and the 364 Day
Facility Commitment and the Five Year Facility Commitment have expired
or been terminated, unless consent has been obtained in the manner
provided
58
for in Section 13.l0, the Credit Parties will, and will cause each of
their respective Subsidiaries to:
SECTION 8.1 PRESERVATION OF CORPORATE EXISTENCE AND RELATED
MATTERS.
Except as permitted by Section 9.3, preserve and maintain its
separate corporate existence and all rights, franchises, licenses and
privileges necessary to the conduct of its business, and qualify and
remain qualified as a foreign corporation and authorized to do business
in each jurisdiction where the nature and scope of its activities
require it to so qualify under Applicable Law, except where the failure
to so preserve and maintain its existence and rights or to so qualify
would not have a Material Adverse Effect.
SECTION 8.2 MAINTENANCE OF PROPERTY.
Protect and preserve all properties useful in and material to its
business, including copyrights, patents, trade names and trademarks;
maintain in good working order and condition all buildings, equipment
and other tangible real and personal property material to the conduct
of its business, ordinary wear and tear excepted; and from time to time
make or cause to be made all renewals, replacements and additions to
such property necessary for the conduct of its business, so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times, except, in each case, where the
failure to do so would not have a Material Adverse Effect.
SECTION 8.3 INSURANCE.
Maintain insurance with financially sound and reputable insurance
companies against such risks and in such amounts as are consistent with
past practices and prudent business practice (and in any event
consistent with normal industry practice), and as may be required by
Applicable Law.
SECTION 8.4 ACCOUNTING METHODS AND FINANCIAL RECORDS.
Maintain a system of accounting, and keep such books, records and
accounts (which shall be true and complete in all material respects) as
may be required or as may be necessary to permit the preparation of
financial statements in accordance with GAAP and in compliance with the
regulations of any Governmental Authority having jurisdiction over it
or any of its properties.
SECTION 8.5 PAYMENT AND PERFORMANCE OF OBLIGATIONS.
(a) Pay and perform all Obligations under this Agreement and the
other Loan Documents.
<PAGE>
(b) Pay and discharge (i) all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or
profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and (ii) all other material
indebtedness, obligations and liabilities in accordance with customary
trade practices;
59
PROVIDED that the Credit Parties or such Subsidiary may contest any
item described in clause (i) or (ii) of this Section 8.5(b) in good
faith and by proper proceedings so long as adequate reserves are
maintained with respect thereto to the extent required by GAAP.
(c) Perform all of its obligations under the terms of each
mortgage, indenture, security agreement, loan agreement or credit
agreement and each other agreement, contract or instrument by which it
is bound, except where such non-performances as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
SECTION 8.6 COMPLIANCE WITH LAWS AND APPROVALS.
Observe and remain in compliance with all Applicable Laws and
maintain in full force and effect all Governmental Approvals, in each
case applicable to the conduct of its business, except where the
failure to observe or comply could not reasonably be expected to have a
Material Adverse Effect.
SECTION 8.7 ENVIRONMENTAL LAWS.
In addition to and without limiting the generality of Section 8.6,
(a) comply with, and use best efforts to ensure such compliance by all
tenants and subtenants with all applicable Environmental Laws and
obtain and comply with and maintain, and ensure that all tenants and
subtenants obtain and comply with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by
applicable Environmental Laws, except where the failure to comply could
not reasonably be expected to have a Material Adverse Effect, (b)
conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under
Environmental Laws, and promptly comply with all lawful orders and
directives of any Governmental Authority regarding Environmental Laws,
except (i) where the failure to do so could not reasonably be expected
to have a Material Adverse Effect or (ii) to the extent the Credit
Parties or any of their Subsidiaries are contesting, in good faith, any
such requirement, order or directive before the appropriate
Governmental Authority so long as adequate reserves are maintained with
respect thereto to the extent required by GAAP, and (c) defend,
indemnify and hold harmless the Administrative Agent and the Lenders,
and their respective parents, Subsidiaries, Affiliates, employees,
agents, officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to the violation of,
noncompliance with or liability under any Environmental Laws applicable
to the operations or properties of the Credit Parties or such
Subsidiaries, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable
attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses,
<PAGE>
except to the extent that any of the foregoing directly result from the
gross negligence or willful misconduct of the party seeking
indemnification therefor.
60
SECTION 8.8 COMPLIANCE WITH ERISA.
In addition to and without limiting the generality of Section 8.6,
(a) comply with all applicable provisions of ERISA and the Code and the
regulations and published interpretations thereunder with respect to
all Employee Benefit Plans, except where the failure to so comply could
not reasonably be expected to have a Material Adverse Effect, (b) not
take any action or fail to take action the result of which would result
in a liability to the PBGC or to a Multiemployer Plan in an amount that
could reasonably be expected to have a Material Adverse Effect, and (c)
furnish to the Administrative Agent upon the Administrative Agent's
request such additional information about any Employee Benefit Plan
concerning compliance with this covenant as may be reasonably requested
by the Administrative Agent.
SECTION 8.9 CONDUCT OF BUSINESS.
Maintain substantially all of its businesses in substantially the
same fields as the businesses conducted on the Closing Date and in
lines of business reasonably related thereto or as otherwise permitted
pursuant to the terms of this Agreement.
SECTION 8.10 VISITS AND INSPECTIONS.
Permit representatives of the Administrative Agent or any Lender,
from time to time upon reasonable prior notice and during ordinary
business hours, to visit and inspect its properties; if a Default or an
Event of Default exists, inspect and make extracts from its books,
records and files, including, but not limited to, management letters
prepared by independent accountants; and discuss with its principal
officers, and its independent accountants, its business, assets,
liabilities, financial condition, results of operations and business
prospects.
SECTION 8.11 USE OF PROCEEDS.
Use the proceeds of the Extensions of Credit for the purposes set
forth in Section 2.1(b).
SECTION 8.12 YEAR 2000 COMPATIBILITY.
Take all actions reasonably necessary to assure that the Credit
Parties' computer based systems (which if not functional would have a
Material Adverse Effect) are able to operate and effectively process
data in a manner that is Year 2000 compliant (as defined in Section
6.1(u)). At the request of the Administrative Agent or any Lender, the
Credit Parties shall provide information to the Administrative Agent
concerning the Credit Parties' Year 2000 compliance.
SECTION 8.13 ADDITIONAL CREDIT PARTIES.
As soon as practicable and in any event within 30 days after any
<PAGE>
Person becomes a Subsidiary of the Borrower, the Borrower shall provide
the Administrative Agent with written notice thereof setting forth
information in reasonable detail describing the ownership of such
Person and shall (a) if such Person is a Material Subsidiary of the
Borrower, cause such Person to execute a Guarantor Joinder Agreement in
substantially the same form as EXHIBIT E, and (b) cause such Person
61
to deliver such other documentation as the Administrative Agent may
reasonably request in connection with the foregoing, including, without
limitation, certified resolutions and other organizational and
authorizing documents of such Person, favorable opinions of counsel to
such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation
referred to above) and other items of the types required to be
delivered pursuant to Section 5.2(b), all in form, content and scope
reasonably satisfactory to the Administrative Agent.
ARTICLE IX
NEGATIVE COVENANTS
Until all of the Obligations (other than any Obligations under any
Hedging Agreement) have been paid and satisfied in full and the 364 Day
Facility Commitment and the Five Year Facility Commitment have expired
or been terminated unless consent has been obtained in the manner set
forth in Section 13.10:
SECTION 9.1 FINANCIAL COVENANTS.
(a) MAXIMUM FUNDED DEBT/CAPITALIZATION RATIO. As of the end of
each fiscal quarter, commencing with the end of the first fiscal
quarter ending after the Closing Date, the Credit Parties will not
permit the Funded Debt/Capitalization Ratio to be greater than 60%.
(b) MINIMUM INTEREST COVERAGE RATIO. As of the end of each fiscal
quarter, commencing with the end of the first fiscal quarter ending
after the Closing Date, the Credit Parties will not permit the Interest
Coverage Ratio to be less than 3.00 to 1.00.
(c) MINIMUM NET WORTH. At all times after the Closing Date, the
Credit Parties will not permit the Consolidated Net Worth to be less
than $300,000,000 PLUS, as of the end of each fiscal quarter,
commencing with the end of the first fiscal quarter ending after the
Closing Date, 25% of Consolidated Net Income for the fiscal quarter
then ended, such increases to be cumulative.
SECTION 9.2 LIMITATIONS ON LIENS.
The Credit Parties will not, and will not permit any of their
Subsidiaries to, create, incur, assume or suffer to exist any Lien on,
or with respect to, any of their assets or properties (including
without limitation shares of capital stock or other ownership
interests), real or personal, whether now owned or hereafter acquired,
except:
(a) Liens existing on the Closing Date and set forth on SCHEDULE
<PAGE>
9.2;
(b) Liens for taxes, assessments and other governmental charges or
levies not yet due or as to which the period of grace, if any, related
thereto has not expired or which are being contested in good faith and
by
62
appropriate proceedingsif adequate reserves are maintained to the
extent required by GAAP;
(c) The claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals
incurred in the ordinary course of business, (i) which are not overdue
for a period of more than thirty (30) days or (ii) which are being
contested in good faith and by appropriate proceedings if adequate
reserves are maintained to the extent required by GAAP;
(d) Liens consisting of deposits or pledges made in the ordinary
course of business (i) in connection with, or to secure payment of,
obligations under workers' compensation, unemployment insurance or
similar legislation or obligations under customer service contracts, or
(ii) to secure (or to obtain letters of credit that secure) the
performance of tenders, statutory obligations, surety bonds, appeal
bonds, bids, leases (other than Capital Leases), performance bonds,
purchase, construction or sales contracts and other similar
obligations, in each case not incurred or made in connection with the
borrowing of money, the obtaining of advances or credit or the payment
of the deferred purchase price of property;
(e) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use
of real property, which in the aggregate are not substantial in amount
and which do not, in any case, detract from the value of any material
parcel of real property or impair the use thereof in the ordinary
conduct of business;
(f) Liens in favor of the Administrative Agent for the benefit of
the Administrative Agent and the Lenders;
(g) Liens on the property or assets of any Subsidiary existing at
the time such Subsidiary becomes a Subsidiary of a Credit Party and not
incurred in contemplation thereof, as long as the outstanding principal
amount of the Debt secured thereby is not voluntarily increased by such
Subsidiary after the date such Subsidiary becomes a Subsidiary of such
Credit Party;
(h) Liens on the property or assets of the Credit Parties or any
Subsidiary securing Debt which is incurred to finance the acquisition
of such property or assets, PROVIDED that (i) each such Lien shall be
created substantially simultaneously with the acquisition of the
related property or assets; (ii) each such Lien does not at any time
encumber any property other than the related property or assets
financed by such Debt; (iii) the principal amount of Debt secured by
each such Lien is not increased; and (iv) the principal amount of Debt
secured by each such Lien shall at no time exceed 100% of the original
purchase price of such related property or assets at the time acquired;
<PAGE>
(i) Liens consisting of judgment or judicial attachment Liens,
provided that (i) the claims giving rise to such Liens are being
diligently contested in good faith by appropriate proceedings, (ii)
adequate reserves for the obligations secured by such Liens have been
established and (iii) enforcement of such Liens has been stayed;
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(j) Liens on property or assets of the Borrower or any Subsidiary
securing Indebtedness owing to the Borrower or any other Credit Party;
and
(k) Liens not otherwise permitted by this Section 9.2 securing
Debt not in excess of fifteen percent (15%) of Consolidated Total
Assets in the aggregate at any time outstanding.
SECTION 9.3 LIMITATIONS ON MERGERS AND LIQUIDATION.
None of the Credit Parties will, or will permit any of its
Subsidiaries to, merge, consolidate or enter into any similar
combination with any other Person or liquidate, wind-up or dissolve
itself (or suffer any liquidation or dissolution), except:
(a) Any Credit Party or a Subsidiary may merge with another
Person, PROVIDED that (i) such Person is organized under the law of the
United States or one of its states, (ii) such Credit Party or the
Subsidiary, as the case may be, is the corporation surviving such
merger, (iii) immediately prior to and after giving effect to such
merger, no Default or Event of Default exists or would exist and (iv)
the Board of Directors of such Person has approved such merger;
(b) Any Wholly-Owned Subsidiary of a Credit Party may merge into a
Credit Party or any other Wholly-Owned Subsidiary of a Credit Party;
and
(c) Any Wholly-Owned Subsidiary of a Credit Party may liquidate,
wind-up or dissolve itself into a Credit Party or any other
Wholly-Owned Subsidiary of a Credit Party.
SECTION 9.4 LIMITATIONS ON SALE OR TRANSFER OF ASSETS.
The Credit Parties will not, and will not permit any of their
Subsidiaries to, convey, sell, lease, assign, transfer or otherwise
dispose of:
(a) (i) More than 20% of Consolidated Total Assets during any
Fiscal Year measured as of the last day of the immediately preceding
Fiscal Year or (ii) more than 50% of Consolidated Total Assets measured
as of September 30, 1999 during the term of this Agreement;
(b) Any of their property, business or assets if such transaction
would reasonably be expected to have a Material Adverse Effect; or
(c) Any of their property, business or assets if immediately prior
to or after giving effect to such transaction a Default or an Event of
Default exists or would exist.
SECTION 9.5 PROHIBITIONS ON LIMITATIONS ON DIVIDENDS AND
DISTRIBUTIONS.
<PAGE>
The Credit Parties will not permit any Subsidiary to agree to,
incur, assume or suffer to exist any restriction, limitation or other
encumbrance (by covenant or otherwise) on the ability of such
Subsidiary to make any payment to a Credit Party or any of its
Subsidiaries (in the form of dividends, intercompany advances or
otherwise), except:
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(a) Restrictions and limitations existing on the Closing Date and
described on SCHEDULE 9.5;
(b) Restrictions and limitations applicable to a Subsidiary
existing at the time such Subsidiary becomes a Subsidiary of a Credit
Party and not incurred in contemplation thereof, as long as no such
restriction or limitation is made more restrictive after the date
such Subsidiary becomes a Subsidiary of such Credit Party; and
(c) Other restrictions and limitations that are not material
either individually or in the aggregate.
SECTION 9.6 TRANSACTIONS WITH AFFILIATES.
The Credit Parties will not, and will not permit any of their
Subsidiaries to, directly or indirectly (a) make any loan or advance
to, or purchase or assume any note or other obligation to or from, any
of its officers, directors, shareholders or Affiliates, or to or from
any member of the immediate family of any of its officers, directors,
shareholders or Affiliates, other than (i) loans or advances to
customers of the Credit Parties and their Subsidiaries in the ordinary
course of business which are arm's length, (ii) loans or advances from
a Credit Party to another Credit Party, and (iii) any other loan or
advance or assumption that would not cause the aggregate amount of all
such loans and advances and assumed notes and advances to exceed
$5,000,000, (b) enter into, or be a party to, any subcontract of any
operations or other transaction with any of its Affiliates, except
pursuant to the reasonable requirements of its business and upon fair
and reasonable terms that are no less favorable to it than it would
obtain in a comparable arm's length transaction with a Person not its
Affiliate and except for transactions which are not material either
individually or in the aggregate. Nothing contained in this Section
9.6 shall prohibit the Credit Parties or any of their Subsidiaries that
have obtained an ownership interest in a customer in connection with a
loan or credit workout to provide non-standard payment or other terms
to such customer or otherwise to do business with such customer in the
ordinary course of business.
SECTION 9.7 CERTAIN ACCOUNTING CHANGES.
The Credit Parties will not (a) change their Fiscal Year ends in
order to avoid a Default or an Event of Default or if a Material
Adverse Effect would result therefrom or (b) make any material change
in their accounting treatment and reporting practices except as
required by GAAP.
SECTION 9.8 LIMITATIONS ON ACQUISITIONS.
The Credit Parties will not, and will not permit any of their
Subsidiaries to, acquire all or any portion of the capital stock or
other ownership interest in any Person which is not a Subsidiary or all
or any substantial portion of the assets, property and/or operations of
<PAGE>
a Person which is not a Subsidiary, UNLESS (a) the Person, assets,
property and/or operations being acquired engage in or are engaged in
the same line of business as that engaged in by the Borrower and its
Subsidiaries on the Closing Date or a business reasonably related
thereto, (b) in the case of
65
an acquisition of capital stock or other ownership interest of a
Person, the Board of Directors of the Person which is the subject of
such acquisition shall have approved the acquisition and (c) after
giving effect to such acquisition, no Default or Event of Default would
exist.
SECTION 9.9 SALE LEASEBACK TRANSACTIONS.
The Credit Parties will not, and will not permit any of their
Subsidiaries to, sell or transfer any material property or assets to
anyone (other than the Borrower or a Wholly-Owned Subsidiary of the
Borrower) with the intention of taking back a lease of such property or
assets or any similar property or assets, except in connection with a
lease for a temporary period during or at the end of which it is
intended that the use by such Credit Party or its Subsidiary of such
property or assets will be discontinued.
ARTICLE X
GUARANTY
SECTION 10.1 GUARANTY OF PAYMENT.
Subject to Section 10.7 below, each Guarantor hereby
unconditionally guarantees to each Lender and the Administrative Agent
the prompt payment of the Guaranteed Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration
or otherwise). This guaranty is a guaranty of payment and not solely of
collection and is a continuing guaranty and shall apply to all
Guaranteed Obligations whenever arising.
SECTION 10.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors hereunder are absolute and
unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of this Agreement, or any other agreement
or instrument referred to herein, to the fullest extent permitted by
Applicable Law, irrespective of any other circumstance whatsoever which
might otherwise constitute a legal or equitable discharge or defense of
a surety or guarantor. Each Guarantor agrees that this guaranty may be
enforced by the Lenders without the necessity at any time of resorting
to or exhausting any security or collateral and without the necessity
at any time of having recourse to the Notes, this Agreement or any
other Loan Document or any collateral, if any, hereafter securing the
Guaranteed Obligations or otherwise and each Guarantor hereby waives
the right to require the Lenders to proceed against any other Guarantor
or any other Person (including a co-guarantor) or to require the
Lenders to pursue any other remedy or enforce any other right. Each
Guarantor further agrees
66
that it shall have no right of subrogation, indemnity, reimbursement or
contribution against any other Guarantor (or any other guarantor of the
<PAGE>
Guaranteed Obligations) for amounts paid under this guaranty until such
time as the Lenders have been paid in full, all commitments under this
Agreement have been terminated and no Person or Governmental Authority
shall have any right to request any return or reimbursement of funds
from the Lenders in connection with monies received under this
Agreement. Each Guarantor further agrees that nothing contained herein
shall prevent the Lenders from suing on the Notes, this Agreement or
any other Loan Document or foreclosing its security interest in or Lien
on any collateral, if any, securing the Guaranteed Obligations or from
exercising any other rights available to it under this Agreement, the
Notes, or any other instrument of security, if any, and the exercise of
any of the aforesaid rights and the completion of any foreclosure
proceedings shall not constitute a discharge of any Guarantor's
obligations hereunder; it being the purpose and intent of each
Guarantor that its obligations hereunder shall be absolute, independent
and unconditional under any and all circumstances. Neither a
Guarantor's obligations under this guaranty nor any remedy for the
enforcement thereof shall be impaired, modified, changed or released in
any manner whatsoever by an impairment, modification, change, release
or limitation of the liability of any other Guarantor or by reason of
the bankruptcy or insolvency of such other Guarantor. Each Guarantor
waives any and all notice of the creation, renewal, extension or
accrual of any of the Guaranteed Obligations and notice of or proof of
reliance of by the Administrative Agent or any Lender upon this
guaranty or acceptance of this guaranty. The Guaranteed Obligations,
and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in
reliance upon this guaranty. All dealings between the Borrower and the
Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, likewise shall be conclusively presumed to
have been had or consummated in reliance upon this guaranty.
SECTION 10.3 MODIFICATIONS.
Each Guarantor agrees that (a) all or any part of the security
which hereafter may be held for the Guaranteed Obligations, if any, may
be exchanged, compromised or surrendered from time to time; (b) the
Lenders shall not have any obligation to protect, perfect, secure or
insure any such security interests, liens or encumbrances which
hereafter may be held, if any, for the Guaranteed Obligations or the
properties subject thereto; (c) the time or place of payment of the
Guaranteed Obligations may be changed or extended, in whole or in part,
to a time certain or otherwise, and may be renewed or accelerated, in
whole or in part; (d) the Borrower and any other party liable for
payment under this Agreement may be granted indulgences generally; (e)
any of the provisions of the Notes, this Agreement or any other Loan
Document may be modified, amended or waived; (f) any party (including
any co-guarantor) liable for the payment thereof may be granted
indulgences or be released; and (g) any deposit balance for the credit
of the Borrower or any other party liable for the payment of the
Guaranteed Obligations or liable upon any security therefor may be
released, in whole or in part, at, before or after the stated, extended
or accelerated maturity of the Guaranteed Obligations, all without
notice to or further assent by such Guarantor, which shall remain bound
thereon, notwithstanding any such exchange, compromise, surrender,
extension, renewal, acceleration, modification, indulgence or release.
<PAGE>
SECTION 10.4 WAIVER OF RIGHTS.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this guaranty by the
Lenders and of all Extensions of Credit to the Borrower by the Lenders;
(b) presentment and demand for payment or performance of any of the
Guaranteed Obligations; (c) protest and notice of dishonor or of
default
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(except as specifically required in this Agreement) with respect to the
Guaranteed Obligations or with respect to any security therefor; (d)
notice of the Lenders obtaining, amending, substituting for, releasing,
waiving or modifying any Lien, if any, hereafter securing the
Guaranteed Obligations, or the Lenders' subordinating, compromising,
discharging or releasing such Liens, if any; (e) all other notices to
which the Borrower might otherwise be entitled in connection with the
guaranty evidenced by this Article X; and (f) demand for payment under
this guaranty.
SECTION 10.5 REINSTATEMENT.
The obligations of each Guarantor under this Article X shall be
automatically reinstated if and to the extent that for any reason any
payment by or on behalf of any Person in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of
any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and
each Lender on demand for all reasonable costs and expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred
by the Administrative Agent or such Lender in connection with such
rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.
SECTION 10.6 REMEDIES.
Each Guarantor agrees that, as between such Guarantor, on the one
hand, and the Administrative Agent and the Lenders, on the other hand,
the Guaranteed Obligations may be declared to be forthwith due and
payable as provided in Section 11.2 (and shall be deemed to have become
automatically due and payable in the circumstances provided in Section
11.2) notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing such Guaranteed Obligations
from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or such Guaranteed
Obligations being deemed to have become automatically due and payable),
such Guaranteed Obligations (whether or not due and payable by any
other Person) shall forthwith become due and payable by such Guarantor.
SECTION 10.7 LIMITATION OF GUARANTY.
Notwithstanding any provision to the contrary contained herein, to
the extent the obligations of a Guarantor shall be adjudicated to be
invalid or unenforceable for any reason (including, without limitation,
because of any applicable state or federal law relating to fraudulent
conveyances or transfers) then the obligations of such Guarantor
<PAGE>
hereunder shall be limited to the maximum amount that is permissible
under Applicable Law (whether federal or state and including, without
limitation, the Federal Bankruptcy Code (as now or hereinafter in
effect)).
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ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 EVENTS OF DEFAULT.
Each of the following shall constitute an Event of Default,
whatever the reason for such event and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) DEFAULT IN PAYMENT OF PRINCIPAL OF LOANS AND REIMBURSEMENT
OBLIGATION. The Borrower shall default in any payment of principal of
any Loan, Note or Reimbursement Obligation when and as due (whether at
maturity, by reason of acceleration or otherwise).
(b) OTHER PAYMENT DEFAULT. The Borrower shall default in the
payment when and as due (whether at maturity, by reason of acceleration
or otherwise) of any interest, fees or other amounts owing on any Loan,
Note or Reimbursement Obligation or the payment of any other Obligation
(other than any Obligation under any Hedging Agreement), and such
default shall continue unremedied for three (3) Business Days after the
earlier of a Responsible Officer of a Credit Party becoming aware of
such default or written notice thereof has been given to the Borrower
by the Administrative Agent.
(c) MISREPRESENTATION. Any representation, warranty or statement
made or deemed to be made by any Credit Party or any of its
Subsidiaries, if applicable, under this Agreement, any Loan Document or
any amendment hereto or thereto or in any certificate delivered to the
Administrative Agent or to any Lender pursuant hereto and thereto,
shall at any time prove to have been incorrect or misleading in any
material respect when made or deemed made.
(d) DEFAULT IN PERFORMANCE OF CERTAIN COVENANTS. Any of the
Credit Parties shall default in the performance or observance of any
covenant or agreement contained in Article IX.
(e) DEFAULT IN PERFORMANCE OF OTHER COVENANTS AND CONDITIONS. Any
of the Credit Parties or any Subsidiary thereof, if applicable, shall
default in the performance or observance of any term, covenant,
condition or agreement contained in this Agreement (other than as
specifically provided for otherwise in this Section 11.1) or any other
Loan Document and such default shall continue for a period of thirty
(30) days after the earlier of a Responsible Officer of a Credit Party
becoming aware of such default or written notice thereof has been given
to the Borrower by the Administrative Agent.
(f) HEDGING AGREEMENT. Any termination payments in an amount greater
<PAGE>
than $5,000,000 shall be due by any Credit Party under any Hedging
Agreement and suchamount is not paid within thirty (30) Business Days
of the due date thereof.
(g) DEBT CROSS-DEFAULT. Any of the Credit Parties or any of their
Subsidiaries shall (i) default in the payment of any Debt (other than
Debt under this Agreement, the Notes or any
69
Reimbursement Obligation) the aggregate outstanding amount of which
Debt is in excess of $10,000,000, beyond the period of grace if any,
provided in the instrument or agreement under which such Debt was
created, or (ii) default in the observance or performance of any other
agreement or condition relating to any Debt (other than Debt under this
Agreement, the Notes or any Reimbursement Obligation), the aggregate
outstanding amount of which Debt is in excess of $10,000,000 or
contained in any instrument or agreement evidencing, securing or
relating thereto or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Debt (or a trustee or agent on
behalf of such holder or holders) to cause, with the giving of notice
if required, any such Debt to become due prior to its stated maturity
(any such notice having been given and any applicable grace period
having expired).
(h) CHANGE IN CONTROL. An event described in clause (i), (ii) or
(iii) below shall have occurred: (i) during any period of twelve (12)
consecutive months, individuals who at the beginning of such period
constituted the board of directors of the Borrower (together with any
new directors whose election by such board or whose nomination for
election by the shareholders of the Borrower was approved by a vote of
a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) and who were
entitled to vote on such matters, cease for any reason to constitute a
majority of the board of directors of the Borrower then in office, (ii)
any person or group of persons (within the meaning of Section 13(d) of
the Securities Exchange Act of 1934, as amended), other than Senior
Management (as defined below), shall obtain ownership or control in one
or more series of transactions of more than 50% of the common stock or
50% of the voting power of the Borrower entitled to vote in the
election of members of the board of directors of the Borrower or (iii)
there shall have occurred under any indenture or other instrument
evidencing any Debt in excess of $5,000,000 any "change in control" (as
defined in such indenture or other evidence of debt) obligating the
Borrower to repurchase, redeem or repay all or any part of the debt or
capital stock provided for therein (any such event, a "CHANGE IN
CONTROL"). For purposes hereof, "Senior Management" shall mean a
person who is either a member of the Borrower's board of directors or a
senior corporate officer of the Borrower, in each case holding such
position as of the Closing Date and as of the date of any Change in
Control.
(i) VOLUNTARY BANKRUPTCY PROCEEDING. Any Credit Party or any
Material Subsidiary thereof shall (i) commence a voluntary case under
the federal bankruptcy laws (as now or hereafter in effect), (ii) file
a petition seeking to take advantage of any other laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding up
or composition for adjustment of debts, (iii) consent to or fail to
<PAGE>
contest in a timely and appropriate manner any petition filed against
it in an involuntary case under such bankruptcy laws or other laws,(iv)
apply for or consent to, or fail to contest in a timely and appropriate
manner, the appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator of itself or of a substantial part of
its property, domestic or foreign, (v) admit in writing its inability
to pay its debts as they become due, (vi) make a general assignment for
the benefit of creditors, or (vii) take any corporate action for the
purpose of authorizing any of the foregoing.
70
(j) INVOLUNTARY BANKRUPTCY PROCEEDING. A case or other proceeding
shall be commenced against any Credit Party or any Material Subsidiary
thereof in any court of competent jurisdiction seeking (i) relief under
the federal bankruptcy laws (as now or hereafter in effect) or under
any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition for adjustment of
debts, or (ii) the appointment of a trustee, receiver, custodian,
liquidator or the like for any Credit Party or any Material Subsidiary
thereof or for all or any substantial part of their respective assets,
domestic or foreign, and such case or proceeding shall continue without
dismissal or stay for a period of sixty (60) consecutive days, or an
order granting the relief requested in such case or proceeding
(including, but not limited to, an order for relief under such federal
bankruptcy laws) shall be entered.
(k) ENFORCEMENT. A creditor or an encumbrance attaches or takes
possession of, or a distress, execution, sequestration or other process
is levied or enforced upon or sued out against, any of the undertakings
and assets of any Credit Party or any Material Subsidiary thereof and
(if capable of discharge) such possession is not terminated or such
attachment or process is not satisfied, removed or discharge within
fifteen (15) days.
(l) SIMILAR EVENTS. Any event occurs or any proceeding is taken
with respect to any Credit Party or any Material Subsidiary in any
jurisdiction to which it is subject which has an effect equivalent or
similar to any of the events set forth in Sections 11.1(i), (j) or (k).
(m) JUDGMENT. A judgment or order for the payment of money which
causes the aggregate amount of all such judgments to exceed $10,000,000
in any Fiscal Year shall be entered against any Credit Party or any
Subsidiary thereof by any court and such judgment or order shall not,
within ninety (90) days after entry thereof, be bonded, discharged or
stayed pending appeal, or shall not be discharged within ninety (90)
days after the expiration of such stay.
(n) GUARANTY. At any time after the execution and delivery
thereof, the guaranty given by a Guarantor hereunder or any provision
thereof shall cease to be in full force or effect as to such Guarantor,
or such Guarantor or any Person acting by or on behalf of such
Guarantor shall deny or disaffirm such Guarantor's obligations under
such guaranty or such Guarantor shall default in the due performance or
observance of any term, covenant or agreement on its part to be
performed or observed pursuant to such guaranty.
(o) ERISA. An event described in each clause (i), (ii) and (iii)
below shall have occurred: (i) any Pension Plan shall fail to satisfy
<PAGE>
the minimum funding standard required for any plan year or part thereof
under Section 412 of the Code or Section 302 of ERISA or a waiver of
such standard or extension of any amortization period is sought or
granted under Section 412 of the Code or Section 303 or 304 of ERISA, a
Reportable Event shall have occurred, a contributing sponsor (as
defined in Section 4001(a)(13) of ERISA) of a Pension Plan subject to
Title IV of ERISA shall be subject to the advance reporting requirement
of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62 , .63, .64,
.65, .66, .67 or .68 of PBGC Regulation Section 4043 shall be
reasonably expected to occur with respect to such Pension Plan within
the following thirty (30) days, any Pension Plan which is subject to
Title IV of ERISA shall have had or is likely to have a
71
trustee appointed to administer such Pension Plan, any Pension Plan
which is subject to Title IV of ERISA is, shall have been or is likely
to be terminated or to be the subject of termination proceedings under
ERISA, any Pension Plan shall have an Unfunded Current Liability, a
contribution required to be made with respect to a Pension Plan or a
Foreign Pension Plan has not been timely made, the Credit Parties or
any of their Subsidiaries or any ERISA Affiliate has incurred or is
likely to incur any liability to or on account of a Pension Plan under
Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on
account of a group health plan (as defined in Section 607(1) of ERISA
or Section 4980B(g)(2) of the Code) under Section 4980B of the Code, or
the Credit Parties or any of their Subsidiaries has incurred or is
likely to incur liabilities pursuant to one or more employee welfare
benefit plans (as defined in Section 3(1) of ERISA) that provide
benefits to retired employees or other former employees (other than as
required by Sectio 601 of ERISA) or Pension Plans or Foreign Pension
Plans; (ii) there shall result from any such event or events the
imposition of a lien, the granting of a security interest or a
liability or a material risk of such a lien being imposed, such
security interest being granted or such liability being incurred, and
(iii) such lien, security interest or liability, individually, and/or
in the aggregate, has had, or could reasonably be expected to have, a
Material Adverse Effect.
SECTION 11.2 REMEDIES.
Upon the occurrence of an Event of Default, with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of
the Required Lenders, the Administrative Agent shall, by notice to the
Credit Parties:
(a) ACCELERATION: TERMINATION OF FACILITIES. Declare the principal
of and interest on the Loans, the Notes and the Reimbursement
Obligations at the time outstanding, and all other amounts owed to the
Lenders and to the Administrative Agent under this Agreement or any of
the other Loan Documents (other than any Hedging Agreement) (including,
without limitation, all L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) and all other Obligations
(other than Obligations owing under any Hedging Agreement), to be
forthwith due and payable, whereupon the same shall immediately become
due and payable without presentment, demand, protest or other notice of
any kind, all of which
<PAGE>
are expressly waived, anything in this Agreement or the other Loan
Documents to the contrary notwithstanding, and terminate the Credit
Facility and any right of the Borrower to request borrowings or Letters
of Credit thereunder; PROVIDED, that upon the occurrence of an Event of
Default specified in Section 11.1(i), (j), (k) or (1) with respect to
the Credit Parties, the Credit Facility shall be automatically
terminated and all Obligations (other than obligations owing under any
Hedging Agreement) shall automatically become due and payable.
(b) LETTERS OF CREDIT. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the
time of an acceleration pursuant to the preceding paragraph, require
the Borrower at such time to deposit or cause to be deposited in a cash
collateral account opened by the Administrative Agent an amount equal
to the aggregate then undrawn and unexpired amount of such Letters of
Credit. Amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of drafts drawn
72
under such Letters of Credit, and the unused portion thereof after all
such Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay the other Obligations. After all such
Letters of Credit shall have expired or been fully drawn upon, the
Reimbursement Obligation shall have been satisfied and all other
Obligations shall have been paid in full, the balance, if any, in such
cash collateral account shall be promptly returned to the Borrower.
(c) RIGHTS OF COLLECTION. Exercise on behalf of the Lenders all
of its other rights and remedies under this Agreement, the other Loan
Documents and Applicable Law, in order to satisfy all of the
Obligations.
SECTION 11.3 RIGHTS AND REMEDIES CUMULATIVE; NON-WAIVER; ETC.
The enumeration of the rights and remedies of the Administrative
Agent and the Lenders set forth in this Agreement is not intended to be
exhaustive and the exercise by the Administrative Agent and the Lenders
of any right or remedy shall not preclude the exercise of any other
rights or remedies, all of which shall be cumulative, and shall be in
addition to any other right or remedy given hereunder or under the Loan
Documents or that may now or hereafter exist in law or in equity or by
suit or otherwise. No delay or failure to take action on the part of
the Administrative Agent or any Lender in exercising any right, power
or privilege shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude other
or further exercise thereof or the exercise of any other right, power
or privilege or shall be construed to be a waiver of any Event of
Default. No course of dealing between the Credit Parties, the
Administrative Agent and the Lenders or their respective agents or
employees shall be effective to change, modify or discharge any
provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
ARTICLE XII
THE ADMINISTRATIVE AGENT
<PAGE>
SECTION 12.1 APPOINTMENT.
Each of the Lenders hereby irrevocably designates and appoints Bank
of America as Administrative Agent of such Lender under this Agreement
and the other Loan Documents for the term hereof and each such Lender
irrevocably authorizes Bank of America as Administrative Agent for such
Lender, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Administrative
Agent by the terms of this Agreement and such other Loan Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this
Agreement or such other Loan Documents, the Administrative Agent shall
not have any duties or responsibilities, except those expressly set
forth herein and therein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or the
other Loan Documents or otherwise exist against the Administrative
Agent. Any reference to the Administrative Agent in this Article XII
shall be deemed to refer to
73
the Administrative Agent solely in its capacity as Administrative Agent
and not in its capacity as a Lender.
SECTION 12.2 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its respective duties
under this Agreement and the other Loan Documents by or through agents
or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by the Administrative Agent with
reasonable care.
SECTION 12.3 EXCULPATORY PROVISIONS.
Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact, Subsidiaries or
Affiliates shall be (a) liable for any action lawfully taken or omitted
to be taken by it or such Person under or in connection with this
Agreement or the other Loan Documents (except for actions occasioned
solely by its or such Person's own gross negligence or willful
misconduct), or (b) responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by any
Credit Party or any of its Subsidiaries or any officer thereof
contained in this Agreement or the other Loan Documents or in any
certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or the other Loan Documents or for the
value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or the other Loan Documents or for any
failure of any Credit Party or any of its Subsidiaries to perform its
obligations hereunder or thereunder. The Administrative Agent shall
not be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in,
or conditions of, this Agreement, or to inspect the properties, books
or records of any Credit Party or any of its Subsidiaries.
<PAGE>
SECTION 12.4 RELIANCE BY THE ADMINISTRATIVE AGENT.
The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
consent,certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel
to the Credit Parties), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may
deem and treat the payee of any Note as the owner thereof for all
purposes unless such Note shall have been transferred in accordance
with Section 13.9 hereof. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this
Agreement and the other Loan Documents unless it shall first receive
such advice or concurrence of the Required Lenders (or, when expressly
required hereby or by the relevant other Loan Document, all the
Lenders) as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing
to take any such action except for its own gross negligence or willful
misconduct. The Administrative Agent shall in all cases be fully
74
protected in acting, or in refraining from acting, under this Agreement
and the Notes in accordance with a request of the Required Lenders
(or, when expressly required hereby, all the Lenders), and such request
and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Notes.
SECTION 12.5 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder
unless it has received notice from a Lender or the Credit Parties
referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." In the
event that the Administrative Agent receives such a notice, it shall
promptly give notice thereof to the Lenders. The Administrative Agent
shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Lenders;
PROVIDED that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders, EXCEPT to the extent
that other provisions of this Agreement expressly require that any such
action be taken or not be taken only with the consent and authorization
or the request of the Lenders or Required Lenders, as applicable.
SECTION 12.6 NON-RELIANCE ON THE ADMINISTRATIVE AGENT AND OTHER
LENDERS.
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates has made any
representations or warranties to it and that no act by the
Administrative Agent
<PAGE>
hereinafter taken, including any review of the affairs of the Credit
Parties or any of their respective Subsidiaries, shall be deemed to
constitute any representation or warranty by the Administrative Agent
to any Lender. Each Lender represents to the Administrative Agent that
it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and
other condition and creditworthiness of the Credit Parties and their
respective Subsidiaries and made its own decision to make its Loans and
issue or participate in Letters of Credit hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement and the
other Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Credit
Parties and their respective Subsidiaries. Except for notices, reports
and other documents expressly required to be furnished to the Lenders
by the Administrative Agent hereunder or by the other Loan Documents,
the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the
business, operations, property, financial and other condition or
creditworthiness of any Credit Party or any of its Subsidiaries which
75
may come into the possession of the Administrative Agent or any of its
respective officers, directors, employees, agents, atorneys-in-fact,
Subsidiaries or Affiliates.
SECTION 12.7 INDEMNIFICATION.
The Lenders agree to indemnify the Administrative Agent in its
capacity as such and (to the extent not reimbursed by the Credit
Parties and without limiting the obligation of the Credit Parties to do
so), ratably according to the respective amounts of their Aggregate
Revolving Credit Commitment Percentages from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any
time following the payment of the Notes or any Reimbursement
Obligation) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of this
Agreement or the other Loan Documents, or any documents contemplated by
or referred to herein or therein or the transactions contemplated
hereby or thereby or any action taken or omitted by the Administrative
Agent under or in connection with any of the foregoing; PROVIDED that
no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent they
result from the Administrative Agent's bad faith, gross negligence or
willful misconduct. The agreements in this Section 12.7 shall survive
the payment of the Notes, any Reimbursement Obligation and all other
amounts payable hereunder and the termination of this Agreement.
SECTION 12.8 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
<PAGE>
The Administrative Agent and its respective Subsidiaries and
Affiliates may make loans to, accept deposits from and generally engage
in any kind of business with the Credit Parties as though the
Administrative Agent were not an Administrative Agent hereunder. With
respect to any Loans made or renewed by it and any Note issued to it
and with respect to any Letter of Credit issued by it or participated
in by it, the Administrative Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender
and may exercise the same as though it were not an Administrative
Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
SECTION 12.9 RESIGNATION OF THE ADMINISTRATIVE AGENT; SUCCESSOR
ADMINISTRATIVE AGENT.
Subject to the appointment and acceptance of a successor as provided
below, the Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Credit Parties. Upon any such
resignation, the Required Lenders shall have the right, subject to the
approval of the Credit Parties (so long as no Default or Event of
Default has occurred and is continuing), to appoint a successor
Administrative Agent, which successor shall have minimum capital and
surplus of at least $500,000,000. If no successor Administrative Agent
shall have been so appointed by the Required Lenders, been approved (so
long as no Default or Event of Default has occurred and is continuing)
by the Credit Parties or have accepted such appointment within thirty
(30) days after the Administrative Agent's giving of notice of
resignation, then the Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent
76
reasonably acceptable to the Credit Parties (so long as no Default or
Event of Default has occurred and is continuing), which successor shall
have minimum capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent
shall thereupon succeed to and become vested with all rights, powers,
privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this
Section 12.9 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 NOTICES.
(a) METHOD OF COMMUNICATION. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in
writing, or by telephone subsequently confirmed in writing. Any notice
shall be effective if delivered by hand delivery or sent via telecopy,
recognized overnight courier service or certified mail, return receipt
requested,
<PAGE>
and shall be presumed to be received by a party hereto (i) on the date
of delivery if delivered by hand or sent by telecopy, (ii) on the next
Business Day if sent by recognized overnight courier service and (iii)
on the third Business Day following the date sent by certified mail,
return receipt requested. A telephonic notice to the Administrative
Agent as understood by the Administrative Agent will be deemed to be
the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) ADDRESSES FOR NOTICES. Notices to any party shall be sent to
it at the following addresses, or any other address as to which all the
other parties are notified in writing.
If to the Borrower or any Guarantor:
c/o Wausau-Mosinee Paper Corporation
1244 Kronenwetter Drive
Mosinee, Wisconsin 54455-9099
Attention: Gary P. Peterson
Telephone: (715) 692-2002
Telecopier: (715) 692-2082
77
If to Bank of America as Administrative Agent:
Bank of America, N.A.
Agency Administrative Services
1850 Gateway Boulevard, 5th Floor
Concord, California 94520-3281
Attention: Michael P. Costa
Telephone: (925) 675-8439
Telecopier: (925) 969-2806
If to any Lender:
To the Address set forth on SCHEDULE 13.1 hereto
(c) ADMINISTRATIVE AGENT'S OFFICE. The Administrative Agent
hereby designates its office located at the address set forth above, or
any subsequent office which shall have been specified for such purpose
by written notice to the Borrower and the Lenders, as the
Administrative Agent's Office referred to herein, to which payments due
are to be made and at which Loans will be disbursed.
SECTION 13.2 EXPENSES, INDEMNITY.
The Borrower agrees to (a) pay all reasonable out-of-pocket
expenses of the Administrative Agent and the Arranger in connection
with (i) the preparation, execution and delivery of this Agreement and
each other Loan Document, whenever the same shall be executed and
delivered, including without limitation the reasonable out-of-pocket
syndication and due diligence expenses and reasonable fees and
disbursements of counsel for the Administrative Agent (including the
allocated cost of internal counsel) and (ii) the preparation, execution
and delivery of any waiver, amendment or consent by the Administrative
Agent, the Arranger or the Lenders relating to this Agreement or any
other Loan Document, including without limitation reasonable fees and
disbursements of counsel for the Administrative Agent (including the
allocated cost of internal
<PAGE>
counsel), (b) pay all reasonable out-of-pocket expenses of the
Administrative Agent actually incurred in connection with the
administration of the Credit Facility, (c) pay all reasonable
out-of-pocket expenses of the Administrative Agent, the Arranger and
each Lender actually incurred in connection with the enforcement of any
rights and remedies of the Administrative Agent, the Arranger and the
Lenders under the Credit Facility, including, to the extent reasonable
under the circumstances, consulting with accountants, attorneys and
other Persons concerning the nature, scope or value of any right or
remedy of the Administrative Agent, the Arranger or any Lender
hereunder or under any other Loan Document or any factual matters in
connection therewith, which expenses shall include without limitation
the reasonable fees and disbursements of such Persons (including the
allocated cost of internal counsel), and (d) defend, indemnify and hold
harmless the Administrative Agent, the Arranger and the Lenders, and
their respective parents, Subsidiaries, Affiliates, employees, agents,
officers and directors, from and against any losses, penalties, fines,
liabilities, settlements, damages, costs and expenses, suffered by any
such Person in connection with any claim, investigation, litigation or
other proceeding (whether or not the Administrative Agent, the Arranger
or any Lender is a party thereto) and the prosecution and defense
thereof, arising out of or in any way connected with this Agreement,
78
the Credit Facility, any other Loan Document, the Loans or the Notes or
as a result of the breach of any of the Credit Parties' obligations
hereunder, including without limitation reasonable attorney's fees
(including the allocated cost of internal counsel), consultant's fees
and settlement costs (but excluding any losses, penalties, fines
liabilities, settlements, damages, costs and expenses to the extent
incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified (as finally determined by a court of competent
jurisdiction)).
SECTION 13.3 SET-OFF.
In addition to any rights now or hereafter granted under Applicable
Law and not by way of limitation of any such rights, upon and after the
occurrence of any Event of Default and during the continuance thereof,
the Lenders and any assignee or participant of a Lender in accordance
with Section 13.9 are hereby authorized by the Credit Parties at any
time or from time to time, without notice to the Credit Parties or to
any other Person, any such notice being hereby expressly waived, to set
off and to appropriate and to apply (including, without limitation, the
right to combine currencies) any and all deposits (general or special,
time or demand, including, but not limited to, indebtedness evidenced
by certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by the Lenders, or any such
assignee or participant to or for the credit or the accounts of the
Borrower against and on account of the Obligations irrespective of
whether or not (a) the Lenders shall have made any demand under this
Agreement or any of the other Loan Documents or (b) the Administrative
Agent shall have declared any or all of the Obligations to be due and
payable as permitted by Section 11.2 and although such Obligations
shall be contingent or unmatured.
SECTION 13.4 GOVERNING LAW.
<PAGE>
This Agreement, the Notes and the other Loan Documents, unless
otherwise expressly set forth therein, shall be governed by, construed
and enforced in accordance with the laws of the State of Illinois,
without giving effect to the conflict of law principles thereof.
SECTION 13.5 CONSENT TO JURISDICTION.
Each of the parties hereto hereby irrevocably consents to the
personal jurisdiction of the state and federal courts located in
Illinois, in any action, claim or other proceeding arising out of any
dispute in connection with this Agreement, the Notes and the other Loan
Documents, any rights or obligations hereunder or thereunder, or the
performance of such rights and obligations. Each of the parties hereto
hereby irrevocably consents to the service of a summons and complaint
and other process in any action, claim or proceeding brought by any
other party hereto in connection with this Agreement, the Notes or the
other Loan Documents, any rights or obligations hereunder or
thereunder, or the performance of such rights and obligations, on
behalf of itself or its property, in the manner specified in Section
13.1. Nothing in this Section 13.5 shall affect the right of any of
the parties hereto to serve legal process in any other manner permitted
by Applicable Law or affect the right of any of the parties hereto to
bring any action or proceeding against any other party hereto or its
properties in the courts of any other jurisdictions.
79
SECTION 13.6 WAIVER OF JURY TRIAL.
THE ADMINISTRATIVE AGENT, EACH LENDER AND EACH CREDIT PARTY HEREBY
WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER
PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS
AND OBLIGATIONS.
SECTION 13.7 REVERSAL OF PAYMENTS.
To the extent any Credit Party makes a payment or payments to the
Administrative Agent for the ratable benefit of the Lenders or the
Administrative Agent receives any payment or proceeds of the collateral
which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy law, state or federal law, common law or equitable
cause, then, to the extent of such payment or proceeds repaid, the
Obligations or part thereof intended to be satisfied shall be revived
and continued in full force and effect as if such payment or proceeds
had not been received by the Administrative Agent.
SECTION 13.8 ACCOUNTING MATTERS.
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with
GAAP, as in effect from time to time, PROVIDED that, if the Credit
Parties notify the Administrative Agent that the Credit Parties request
an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application
<PAGE>
thereof on the operation of such provision (or if the Administrative
Agent notifies the Credit Parties that the Required Lenders request
an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or
in the application there of, then such provision shall be interpreted
on the basis of GAAP as in effect and applied immediately before such
change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance therewith.
SECTION 13.9 SUCCESSORS AND ASSIGNS; PARTICIPATIONS;
CONFIDENTIALITY.
(a) BENEFIT OF AGREEMENT. This Agreement shall be binding upon
and inure to the benefit of the Credit Parties, the Administrative
Agent, the Arranger and the Lenders, all future holders of the Notes,
and their respective successors and permitted assigns, except that the
Credit Parties shall not assign or transfer any of their rights or
obligations under this Agreement without the prior written consent of
each Lender other than pursuant to Section 9.3.
(b) ASSIGNMENT BY LENDERS. Each Lender may assign to one or more
Eligible Assignees all or a portion of its interests, rights and
obligations under this Agreement (including,
80
without limitation, all or a portion of the Extensions of Credit at the
time owing to it and the Note held by it) PROVIDED that:
(i) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's Aggregate Revolving
Credit Commitment and all other rights and obligations under this
Agreement;
(ii) if less than all of the assigning Lender's Aggregate
Revolving Credit Commitment or Loans is to be assigned, the Aggregate
Revolving Credit Commitment or Loans so assigned shall not be less
than $1,000,000;
(iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording
in the Register, an Assignment and Acceptance in the form of EXHIBIT
H attached hereto (an "ASSIGNMENT AND ACCEPTANCE");
(iv) such assignment shall not, without the consent of the
Borrower, on behalf of itself and the other Credit Parties, require
the Borrower, or any other Credit Party, to file a registration
statement with the Securities and Exchange Commission or apply to or
qualify the Loans or the Notes under the blue sky laws of any state;
and
(v) the assigning Lender shall pay to the Administrative Agent
an assignment fee of $3,500 upon the execution by such Lender of the
Assignment and Acceptance (including, but not limited to, an
assignment by a Lender to another Lender); PROVIDED that no such fee
shall be payable upon any assignment by a Lender to an Affiliate
thereof.
<PAGE>
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 ten (10) Business Days after the
execution thereof, (A) the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned in such Assignment and
Acceptance, have the rights and obligations of a Lender hereby and (B)
the Lender thereunder shall, to the extent of the interest assigned in
such assignment, be released from its obligations under this Agreement.
(c) RIGHTS AND DUTIES UPON ASSIGNMENT. By executing and
delivering an Assignment and Acceptance, the assigning Lender
thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as set forth in such Assignment and
Acceptance.
(d) REGISTER. The Administrative Agent shall maintain a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders and the amount of
the Extensions of Credit with respect to each Lender from time to time
(the "REGISTER"). No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided
in this paragraph. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Administrative
Agent, the Arranger and the Lenders may treat each person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by
81
the Borrower or Lenders at any reasonable time and from time to time
upon reasonable prior notice.
(e) ISSUANCE OF NEW NOTES, ETC. Upon its receipt of an Assignment
and Acceptance executed by an assigning Lender and an Eligible
Assignee, together with any Note of such assigning Lender if such
Lender is assigning all of its interests hereunder, and any required
written consent to such assignment, the Administrative Agent shall, if
such Assignment and Acceptance has been completed and is substantially
in the form of EXHIBIT H:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the Register;
(iii) give prompt notice thereof to the Lenders and the
Borrower, on behalf of itself and the other Credit Parties; and
(iv) promptly deliver a copy of such Assignment and Acceptance
to the Borrower.
Within ten (10) Business Days after receipt of notice, the Borrower
shall execute and deliver to the Administrative Agent, in exchange for
the surrendered Note (if required pursuant to this Section), a new Note
to the order of such Eligible Assignee (if it is not already a Lender).
Such new Note shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of the
original Note delivered to the assigning Lender. Each surrendered Note
shall be canceled and returned to the Borrower.
<PAGE>
(f) PARTICIPATIONS. Each Lender may sell participations to one or
more banks or other entities in all or a portion of its rights and/or
obligations under this Agreement (including, without limitation, all or
a portion of its Extensions of Credit and the Notes held by it);
PROVIDED that:
(i) each such participation shall be in an amount not less than
$1,000,000;
(ii) such Lender's obligations under this Agreement (including,
without limitation, its Aggregate Revolving Credit Commitment) shall
remain unchanged;
(iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(iv) the Credit Parties, the Administrative Agent, the Arranger
and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations
under this Agreement;
(v) such Lender shall not permit such participant the right to
approve any waivers, amendments or other modifications to this
Agreement or any other Loan Document other than waivers, amendments
or modifications which would reduce the principal of or the interest
82
rate on any Loan or Reimbursement Obligation, extend the term or
increase the amount of the Aggregate Revolving Credit Commitment,
reduce the amount of any fees to which such participant is entitled,
extend any scheduled payment date for principal, interest or fees of
any Loan, or release any Guarantor from its guaranty hereunder,
except as expressly contemplated hereby or thereby; and
(vi) any such disposition shall not, without the consent of the
Borrower, on behalf of itself and the other Credit Parties, require
the Borrower or any other Credit Party, to (A) file a registration
statement with the Securities and Exchange Commission or apply to or
qualify the Revolving Credit Loans or the Revolving Credit Notes
under the blue sky law of any state or (B) have additional
compensation requirements pursuant to Sections 4.8, 4.10 or 4.11.
(g) DISCLOSURE OF INFORMATION; CONFIDENTIALITY. Each of the
Administrative Agent, the Issuing Lender and the Lenders agrees to
maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates,
directors, officers, employees and agents, including accountants, legal
counsel and other advisors (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority,
(c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section,
to any assignee of or
<PAGE>
participant in, or any prospective assignee of or participant in, any
of its rights or obligations under this Agreement, (g) with the prior
written consent of the Credit Parties, (h) to the extent such
Information (A) becomes publicly available other than as a result of a
breach of this Section by the disclosing party or (B) becomes available
to the Administrative Agent, the Issuing Lender or any Lender on a
nonconfidential basis from a source other than the Credit Parties or
(i) to GOLD SHEETS and other similar bank trade publications, such
information to consist of deal terms and other information (customarily
found in such publications) upon the Credit Parties' prior review and
approval, which shall not be unreasonably withheld or delayed. For the
purposes of this Section, "INFORMATION" means all information received
from the Credit Parties or any of their Subsidiaries relating to the
Credit Parties or their business, other than any such information that
is available to the Administrative Agent, the Issuing Lender or any
Lender on a nonconfidential basis prior to disclosure by the Credit
Parties. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information
as such Person would accord to its own confidential information.
(h) CERTAIN PLEDGES OR ASSIGNMENTS. Nothing herein shall prohibit
any Lender from pledging or assigning any Note to any Federal Reserve
Bank in accordance with Applicable Law.
83
SECTION 13.10 AMENDMENTS, WAIVERS AND CONSENTS.
Except as set forth below, any term, covenant, agreement or
condition of this Agreement or any of the other Loan Documents may be
amended or waived by the Lenders and any consent may be given by the
Lenders, if, but only if, such amendment, waiver or consent is in
writing signed by the Required Lenders (or by the Administrative Agent
with the consent of the Required Lenders) and delivered to the
Administrative Agent and, in the case of an amendment, signed by the
Credit Parties; PROVIDED, that no amendment, waiver or consent shall,
without the consent of each Lender affected thereby, (a) increase the
amount or extend the time of the obligation of the Lenders to make
Loans or issue or participate in Letters of Credit (except as expressly
contemplated by Section 2.8), (b) extend the originally scheduled time
or times of payment of the principal of any Loan or Reimbursement
Obligation or the time or times of payment of interest or fees on any
Loan or Reimbursement Obligation, (c) reduce the rate of interest or
fees payable on any Loan or Reimbursement Obligation, (d) reduce the
principal amount of any Loan or Reimbursement Obligation, (e) permit
any subordination of the principal or interest on any Loan or
Reimbursement Obligation, (f) permit any assignment (other than as
specifically permitted or contemplated in this Agreement) of any of the
Credit Parties' rights and obligations hereunder, (g) release any
Guarantor from its guaranty hereunder or (h) amend the provisions of
this Section 13.10 or the definition of Required Lenders. In addition,
no amendment, waiver or consent to the provisions of (i) Article XII
shall be made without the written consent of the Administrative Agent
and (ii) Article III shall be made without the written consent of each
Issuing Lender.
Notwithstanding the fact that the consent of all the Lenders is
<PAGE>
required in certain circumstances as set forth above, (x) each Lender
is entitled to vote as such Lender sees fit on any bankruptcy
reorganization plan that affects the Loans, and each Lender
acknowledges that the provisions of Section 1126(c) of the Federal
Bankruptcy Code (as now or hereafter in effect) supersedes the
unanimous consent provisions set forth herein and (y) the Required
Lenders may consent to allow a Credit Party to use cash collateral in
the context of a bankruptcy or insolvency proceeding.
SECTION 13.11 PERFORMANCE OF DUTIES.
The Credit Parties' obligations under this Agreement and each of
the Loan Documents shall be performed by the Credit Parties at their
sole cost and expense.
SECTION 13.12 ALL POWERS COUPLED WITH INTEREST.
All powers of attorney and other authorizations granted to the
Lenders, the Administrative Agent and any Persons designated by the
Administrative Agent or any Lender pursuant to any provisions of this
Agreement or any of the other Loan Documents shall be deemed coupled
with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied or the Credit Facility has not
been terminated.
84
SECTION 13.13 SURVIVAL OF INDEMNITIES.
Notwithstanding any termination of this Agreement, the indemnities
to which the Administrative Agent, the Arranger and the Lenders are
entitled under the provisions of this Article XIII and any other
provision of this Agreement and the Loan Documents shall continue in
full force and effect and shall protect the Administrative Agent, the
Arranger and the Lenders against events arising after such termination
as well as before, including after the Borrower's acceptance of the
Lenders' commitments for the Credit Facility, notwithstanding any
failure of such facility to close.
SECTION 13.14 TITLES AND CAPTIONS.
Titles and captions of Articles, Sections and subsections in this
Agreement are for convenience only, and neither limit nor amplify the
provisions of this Agreement.
SECTION 13.15 SEVERABILITY OF PROVISIONS.
Any provision of this Agreement or any other Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remainder of such provision
or the remaining provisions hereof or thereof or affecting the validity
or enforceability of such provision in any other jurisdiction.
SECTION 13.16 COUNTERPARTS.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when
so
<PAGE>
executed shall be deemed to be an original and shall be binding upon
all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement. Delivery of any
executed counterpart of a signature page of this Agreement by telecopy
shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 13.17 BINDING EFFECT; AMENDMENT AND RESTATEMENT;
TERM OF AGREEMENT.
(a) This Agreement shall become effective at such time, on or
after the Closing Date, that the conditions precedent set forth in
Section 5.2 have been satisfied or waived and when it shall have been
executed by each of the Credit Parties and the Administrative Agent,
and the Administrative Agent shall have received copies of the
signature pages hereto (telefaxed or otherwise) which, when taken
together, bear the signatures of each Lender (including the Issuing
Lender), and thereafter this Agreement shall be binding upon and
inure to the benefit of each Credit Party, each Lender (including the
Issuing Lender) and the Administrative Agent, together with their
permitted successors and assigns. The Credit Parties and the Lenders
(including the Issuing Lender) each hereby agrees that, at such time
as this Agreement shall have become effective pursuant to the
terms of the immediately preceding sentence, (i) the Existing
85
Credit Agreement automatically shall be deemed amended and restated
in its entirety by this Agreement, and any obligations and
commitments outstanding under the Existing Credit Agreement shall be
governed by the terms of this Agreement (as such obligations or
commitments may be modified or amended hereunder) and (ii) all of the
promissory notes executed by the Borrower in connection with the
Existing Credit Agreement automatically shall be deemed substituted
and replaced by the promissory notes executed in connection with
this Agreement, and the Lenders holding such prior notes agree
promptly to return them to the Borrower.
(b) This Agreement shall remain in effect from the Closing Date
through and including the date upon which all Obligations (other
than obligations owing by any Credit Party to any Lender or
Affiliate of a Lender or the Administrative Agent under any Hedging
Agreement) shall have been indefeasibly and irrevocably paid and
satisfied in full. No termination of this Agreement shall affect
the rights and obligations of the parties hereto arising prior to
such termination.
SECTION 13.18 INCONSISTENCIES WITH OTHER DOCUMENTS; INDEPENDENT
EFFECT OF COVENANTS.
(a) In the event there is a conflict or inconsistency between this
Agreement and any other Loan Document, the terms of this Agreement
shall control, PROVIDED, that in the event there is a conflict or
inconsistency between this Agreement and the letter agreements between
the Administrative Agent and the Borrower dated as of October 20, 1999
(the "LETTER AGREEMENTS"), which conflict or inconsistency relates
solely to a matter affecting (i) the Administrative Agent and/or its
Affiliates on one hand and (ii) the Borrower on the other, the Letter
Agreements shall control.
<PAGE>
(b) The Borrower expressly acknowledges and agrees that each
covenant contained in Article VIII and Article IX hereof shall be given
independent effect.
SECTION 13.19 INTERCREDITOR AGREEMENT.
Each Person that becomes a Lender hereunder in compliance with
Section 13.9 hereby agrees, promptly upon the request of the
Administrative Agent, to execute a joinder agreement, in substantially
the form of EXHIBIT I, to that certain Amended and Restated
Intercreditor Agreement dated as of August 31, 1999 among the Banks
party thereto, The Prudential Insurance Company of America, as holder
of the 1993 Senior Notes (as defined therein), and the 1993 Senior
Noteholders (as defined therein). The Credit Parties, the Lenders and
the Administrative Agent hereby agree that this Agreement shall
constitute the "Credit Agreement" as defined and referred to in the
Amended and Restated Intercreditor Agreement referred to above.
[Signature pages to follow]
86
Signature page to
Credit Agreement in
favor of Wausau-Mosinee
Paper Corporation
IN WITNESS WHEREOF, the parties hereto have caused their
duly authorized officers to execute and deliver this Agreement
as of the date first above written.
BORROWER: WAUSAU-MOSINEE PAPER
CORPORATION
By: GARY P. PETERSON
Name: Gary P. Peterson
Title: Sr. V.P. - Finance
GUARANTORS: RHINELANDER PAPER COMPANY, INC.
By: GARY P. PETERSON
Name: Gary P. Peterson
Title: Sr. V.P. - Finance
WAUSAU PAPERS OF NEW
HAMPSHIRE, INC.
By: GARY P. PETERSON
Name: Gary P. Peterson
Title: Sr. V.P. - Finance
<PAGE>
WAUSAU PAPERS OTIS MILL, INC.
By: GARY P. PETERSON
Name: Gary P. Peterson
Title: Sr. V.P. - Finance
MOSINEE PAPER CORPORATION
By: GARY P. PETERSON
Name: Gary P. Peterson
Title: Sr. V.P. - Finance
THE SORG PAPER COMPANY
By: GARY P. PETERSON
Name: Gary P. Peterson
Title: Sr. V.P. - Finance
THE MIDDLETOWN HYDRAULIC
COMPANY
By: GARY P. PETERSON
Name: Gary P. Peterson
Title: Sr. V.P. - Finance
MOSINEE HOLDINGS, INC.
By: GARY P. PETERSON
Name: Gary P. Peterson
Title: Sr. V.P. - Finance
BAY WEST PAPER CORPORATION
By: GARY P. PETERSON
Name: Gary P. Peterson
Title: Sr. V.P. - Finance
LENDERS: BANK OF AMERICA, N.A.,
Individually and as Administrative
Agent
By:
Name:
Title:
<PAGE>
BANK ONE, NA
By: JENNY A. GILPIN
Name: Jenny A. Gilpin
Title: First Vice President
M&I MARSHALL & ILSLEY BANK
By: DENNIS D. FINNIGAN
Name: Dennis D. Finnigan
Title: Vice President
HARRIS TRUST AND SAVINGS BANK
By: ANDREW K. PETERSON
Name: Andrew K. Peterson
Title: Vice President
Exhibit 10.17
WAUSAU-MOSINEE PAPER CORPORATION
INCENTIVE COMPENSATION PLANS
FOR
EXECUTIVE OFFICERS
(2000)
The Senior Vice President, Finance, Senior Vice President,
Administration, and Senior Vice President, Engineering and
Environmental Services each have a bonus opportunity equal to a
maximum of 75% of base salary based upon earnings per share. Incentive
bonuses will be 20% of base salary if earnings are $.92 per share and
will increase on a pro rata basis to a maximum of 75% of base salary at
$1.38 per share. These officers will also be entitled to a maximum
bonus of 25% of base salary upon satisfaction of individual performance
objectives established at the beginning of the year by the President
and CEO.
Each of the Senior Vice Presidents, Printing & Writing Group and
Towel & Tissue Group, will be eligible to earn an incentive bonus based
on the operating profits of his Group. In each case, achievement of
the Group's minimum targeted operating profit will result in incentive
compensation equal to 20% of base salary, with a pro rata increase of
up to 75% of base salary based upon achievement of operating profit
goals above the minimum targeted amount. The Senior Vice President,
Specialty Paper Group, will participate in a similar plan with the
exception that the range of incentive compensation tied to achievement
of the Group's minimum targeted operating profit will be 0% to 75% of
base salary. Each of these Senior Vice Presidents will be eligible to
earn incentive compensation in an amount equal to a maximum of 25% of
base salary for achievement of individual performance objectives
established at the beginning of the year by the President and CEO.
Earnings per share will be adjusted for accruals on SARs, bonus
expense, and extraordinary items.
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in:
(i)Post-Effective Amendment No. 1 to Registration Statement No.
33-44922 on Form S-8 pertaining to the Wausau-Mosinee Paper
Corporation 1991 Employee Stock Option Plan;
(ii)Post-Effective Amendment No. 2 to Registration Statement No.
333-02845 on Form S-8 pertaining to the Wausau-Mosinee Paper
Corporation Savings and Investment Plan;
(iii)Registration Statement No. 333-42445 on Form S-8 pertaining to
the Mosinee Paper Corporation 1985 Executive Stock Option Plan;
(iv)Registration Statement No. 333-42447 on Form S-8 pertaining to
the Mosinee Paper Corporation 1994 Executive Stock Option Plan;
of our report, dated January 26, 2000, on our audits of the
consolidated financial statements of Wausau-Mosinee Paper Corporation
as of December 31, 1999 and 1998, and for each of the years in the
three-year period ended December 31, 1999, which is included in this
Annual Report on Form 10-K.
Wausau, Wisconsin WIPFLI ULLRICH BERTELSON LLP
March 29, 2000
-58-
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FINANCIAL DATA SCHEDULE
ARTICLE 5 OF REGULATION S-X
</LEGEND>
<S> <C>
<PERIOD-TYPE> Year
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> DEC-31-1999
<CASH> 5,397
<SECURITIES> 0
<RECEIVABLES> 73,977
<ALLOWANCES> 11,285
<INVENTORY> 155,822
<CURRENT-ASSETS> 252,311
<PP&E> 653,823
<DEPRECIATION> 477,391
<TOTAL-ASSETS> 936,462
<CURRENT-LIABILITIES> 111,489
<BONDS> 220,476
<COMMON> 53,254
0
0
<OTHER-SE> 341,530
<TOTAL-LIABILITY-AND-EQUITY> 936,432
<SALES> 944,629
<TOTAL-REVENUES> 944,629
<CGS> 805,531
<TOTAL-COSTS> 805,531
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 110
<INTEREST-EXPENSE> 11,823
<INCOME-PRETAX> 68,017
<INCOME-TAX> 25,600
<INCOME-CONTINUING> 42,417
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 42,417
<EPS-BASIC> 0.81
<EPS-DILUTED> 0.81
</TABLE>
