UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
August 2, 1999
(Date of earliest event reported)
Commission file number: 0-20704
ACX TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Colorado 84-1208699
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
16000 Table Mountain Parkway, Golden, Colorado 80403
(Address of principal executive offices) (Zip Code)
(303) 271-7000
(Registrant's telephone number, including area code)
Item 2. Acquisition of Assets
On August 2, 1999, ACX Technologies, Inc. ("ACX") and Graphic
Packaging Corporation ("GPC") acquired the assets and liabilities
of the folding carton manufacturing business of Fort James
Corporation ("Fort James Folding Carton Business" or "FJFCB").
The assets acquired include twelve manufacturing plants, a
paperboard mill and related interest in a landfill, office leases,
equipment, technology, patents, contracts and inventories.
FJFCB is a major supplier of folding cartons to leading consumer
product companies for packaging food and pharmaceuticals. GPC
sells value-added folding carton packages primarily to the
beverage and frozen and dry foods markets. With the assets
acquired from FJFCB, GPC believes it will be the country's largest
folding carton company, with expanded technical capabilities.
The total cash consideration for the net assets of FJFCB was
$830 million. The acquisition was funded by a newly executed
$1.3 billion credit facility from Bank of America. N.A.
Prior to the transaction, there were no material relationships
between ACX and Fort James or any of their respective affiliates,
directors, or officers or, to the knowledge of ACX, any associate
of any such director or officer. Subsequent to the transaction
and in conjunction with the Asset Purchase Agreement, GPC and
Fort James entered into several agreements wherein GPC and Fort
James will purchase and supply to each other certain products or
services. A summary of these agreements is as follows:
SBS Board Supply Agreement
--------------------------
GPC agreed to purchase the lesser of its system wide
requirements or 80,000 tons of SBS paperboard annually for
ten years. The quantity may be reduced by certain com-
mitments and customer directed purchases and the board
must meet specifications and quality requirements. The
price is fixed for the first 18 months, and subsequently
will be adjusted quarterly according to a published index.
Roll Paper Supply Agreement
---------------------------
GPC agreed to purchase 12,000 tons of parent rolls for
3 years. The price is at market and is adjusted
quarterly based on a published index.
PE Extrusion Tolling Agreement
------------------------------
GPC agreed to use its best efforts to purchase coating
services, for the lesser of its system wide requirements
or 20,000 tons annually for 3 years. Prices are at
market and adjusted quarterly based on a published index.
Folding Carton Supply Agreement
-------------------------------
GPC agreed to sell various types of folding cartons to
Dixie and the Fort James Towel & Tissue facilities for
3 years. Fort James agreed to certain minimum quantities.
Prices are adjusted quarterly based on a published index.
Millwrap Supply Agreement
-------------------------
GPC agreed to sell millwrap to Fort James Towel & Tissue
facilities for 3 years. Fort James agreed to purchase
the lesser of its system wide requirements or 2,900 tons
annually. Prices are adjusted quarterly based on a
published index.
Flexo Printing Plate Supply Agreement
-------------------------------------
GPC agreed to sell flexo printing plates for 3 years.
Fort James agreed to purchase its system wide
requirements or a specified quantity and where
commercially practicable. Fort James may use local
suppliers if GPC cannot meet timing requirements.
Prices are adjusted quarterly based on changes in
certain raw material costs.
Cartons and Trays Broker Agreement
Freezer Paper Broker Agreement
----------------------------------
Fort James will act as broker for certain cartons,
trays and meat papers through its Dixie Foodservice
sales organization for 3 years. Commissions are a
percentage of net revenue.
Pressed Tray Tolling Agreement
------------------------------
Fort James agreed to press laminated substrates
supplied by GPC and ship finished products to GPC's
customers for 3 years. GPC agreed to purchase the
lesser of its system wide requirements or specified
volumes. Prices are adjusted quarterly based on
changes in labor and material costs.
In conjunction with these agreements, historical revenues to
FJFCB were approximately $20 million and historical purchases
from Fort James were approximately $63 million.
The Asset Purchase Agreement related to this acquisition is
included as Exhibit 2.1 and the Amendment Agreement is included
as Exhibit 2.2. The Credit Agreement with Bank of America is
included as Exhibit 4.1.
Item 7. Financial Statements & Exhibits
It is impracticable at this time for ACX to provide the
financial statements required to be filed with this Form 8-K.
ACX intends to file such required financial statements not
later than October 18, 1999.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
August 17, 1999 ACX Technologies, Inc.
By:/s/ Beth A. Parish
----------------------------
Beth A. Parish
(Controller and Principal
Accounting Officer)
Exhibit 2.1
ASSET PURCHASE AGREEMENT
AMONG
FORT JAMES CORPORATION,
ACX TECHNOLOGIES, INC.
AND
GRAPHIC PACKAGING CORPORATION
Dated as of April 25, 1999
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1 Definitions 1
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.1 Purchase and Sale 7
2.2 Excluded Assets 8
2.3 Assumed Liabilities; Excluded Liabilities 8
ARTICLE III
PURCHASE PRICE, WORKING CAPITAL ADJUSTMENT
3.1 Purchase Price 10
3.2 Working Capital Adjustment 10
3.3 Additional Payments 11
ARTICLE IV
RELATED AGREEMENTS
4.1 Related Agreements 12
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF FORT JAMES
5.1 Organization; Qualification 13
5.2 Authority Relative to this Agreement and the
Related Agreements 13
5.3 Consents and Approvals 13
5.4 Non-Contravention 13
5.5 Compliance with Laws 14
5.6 Environmental Matters 14
5.7 Licenses and Permits 14
5.8 Financial Statements 15
5.9 Litigation 15
5.10 Title to Properties 15
5.11 Leases 15
5.12 Intellectual Property 16
5.13 Listed Contracts 17
5.14 Labor Matters 17
5.15 Employee Benefit Plans 18
5.16 Conduct of Business and Management of Assets 19
5.17 Finders 20
5.18 Sufficiency of Assets 20
5.19 Customers 20
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
6.1 Organization; Qualification 21
6.2 Authority Relative to this Agreement and the
Related Agreements 21
6.3 Non-Contravention 21
6.4 Consents and Approvals 21
6.5 Litigation 21
6.6 Availability of Funds 22
6.7 Finders 22
ARTICLE VII
ADDITIONAL AGREEMENTS
7.1 Conduct of Business and Management of Assets 22
7.2 Forbearances by Fort James 22
7.3 Mail Received After Closing 23
7.4 Retention of Books and Records 23
7.5 Expenses 24
7.6 Confidentiality 24
7.7 Public Announcements 25
7.8 Efforts to Consummate 25
7.9 Further Assurances 25
7.10 Use of Fort James Name 25
7.11 No Solicitation of Employees 26
7.12 Antitrust Filings 26
7.13 Title Matters 27
7.14 Tax Matters 28
7.15 Access to Assets and Business Employees 28
7.16 Substitute Letters of Credit; Guarantees 28
7.17 Consents and Approvals 28
7.18 Negotiations 29
7.19 Audited Financial Statements 29
7.20 Year 2000 Compliance Program 29
ARTICLE VIII
BUSINESS EMPLOYEE AND EMPLOYEE BENEFIT MATTERS
8.1 Business Employees 29
8.2 Employment 30
8.3 Employee Benefits 30
8.4 Assumption of Liabilities 32
8.5 Collective Bargaining Agreements 32
8.6 Pension Plan for Salaried Business Employees 33
8.7 401(k) Plan 33
8.8 Pension Plan For Hourly Buiness Employees 34
8.9 Worker's Compensation 37
8.10 Vacation Pay 37
8.11 Welfare Plans 37
8.12 Plant Closing Laws 37
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF BUYER
9.1 Representations and Warranties 38
9.2 Performance of this Agreement 38
9.3 Proceedings 38
9.4 Consents and Approvals 38
9.5 Injunction, Litigation, etc. 38
9.6 Legislation 38
9.7 Related Agreements 38
9.8 Material Adverse Change 38
9.9 Opinion of Counsel for Fort James 39
9.10 Officer's Certificate 39
9.11 Audited Financial Statements 39
ARTICLE X
CONDITIONS TO OBLIGATIONS OF FORT JAMES
10.1 Representations and Warranties 39
10.2 Performance of this Agreement 39
10.3 Proceedings 39
10.4 Consents and Approvals 39
10.5 Injunction, Litigation, etc. 39
10.6 Legislation 40
10.7 Related Agreements 40
10.8 Officer's Certificate 40
ARTICLE XI
DELIVERIES, ETC., IN CONNECTION WITH CLOSING
11.1 Time and Place of Closing 40
11.2 Deliveries by Fort James 40
11.3 Deliveries by Buyer 41
11.4 Deliveries of Related Agreements 41
ARTICLE XII
INDEMNIFICATION
12.1 Indemnification by Fort James 41
12.2 Indemnification by Buyer 43
12.3 Article VIII Rights and Obligations Excluded 43
12.4 Survival Date 43
12.5 Definition of Loss 44
12.6 Third Party Claims 44
12.7 Subrogation Rights; No Duplication 45
ARTICLE XIII
TERMINATION, AMENDMENT AND WAIVER
13.1 Termination 45
13.2 Effect of Termination 46
13.3 Amendment 46
13.4 Extension; Waiver 46
ARTICLE XIV
GENERAL PROVISIONS
14.1 Notices 46
14.2 Interpretation 47
14.3 Counterparts 47
14.4 Miscellaneous 47
14.5 Third Party Beneficiaries 48
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement"), dated as of
April 25, 1999, is made among FORT JAMES CORPORATION, a Virginia
corporation ("Fort James"), ACX TECHNOLOGIES, INC., a Colorado
corporation ("ACX") and GRAPHIC PACKAGING CORPORATION, a Delaware
corporation ("GPC," and together with ACX, "Buyer").
RECITALS
WHEREAS, Fort James desires to sell, or cause its
Subsidiaries to sell, the assets described herein and Buyer
desires to purchase such assets, for the consideration
hereinafter set forth, including the assumption of certain
liabilities.
NOW THEREFORE, in consideration of the foregoing and the
representations, warranties, and agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used herein, the following terms have
the following meanings:
"accumulated funding deficiency" has the meaning set forth
in Section 5.15(d).
"Affiliate," with respect to any party, means a party,
person or entity that, directly, or indirectly through one or
more intermediaries, controls, is controlled by, or is under
common control with, such party, whether through the ownership of
voting securities, by contract or otherwise; provided, that with
respect to Buyer, Affiliate shall not include Coors Brewing
Company, Adolph Coors Company and their respective affiliates
except ACX and its direct and indirect subsidiaries.
"Agreement" has the meaning set forth in the introductory
paragraph hereof.
"Allocation Schedule" has the meaning set forth in Section
7.14(b).
"Antitrust Laws" means the Sherman Act, the Clayton Act, the
Antitrust Improvements Act, the Federal Trade Commission Act, and
all other federal and state statutes, rules, regulations, orders,
decrees, administrative and judicial doctrines, and other laws
that are designed or intended to prohibit, restrict or regulate
actions having the purpose or effect of monopolization or
restraint of trade.
"Applicable Percentage" has the meaning set forth in Section
12.1(c).
"Assets" has the meaning set forth in Section 2.1.
"Asset Transfer Date" has the meaning set forth in Section
8.8(g).
"Assumed Collective Bargaining Agreements" has the meaning
set forth in Section 8.5(a).
"Assumed Liabilities" has the meaning set forth in Section
2.3(a).
"Authority" means any national, federal, state or local
governmental, judicial or regulatory agency or authority within
or outside the United States.
"Basket" has the meaning set forth in Section 12.1(b).
"Business" means the business customarily operated by the
packaging business of Fort James with respect to the products
manufactured at the Transferred Sites. For purposes of clarity,
it is understood that the "Business" excludes (i) the business
operated in the St. Mary's, Georgia and Naheola, Alabama
facilities and (ii) the land and buildings located in Redmond,
Washington and Chambersburg, Pennsylvania.
"Business Employees" has the meaning set forth in Section
8.1.
"Business Intellectual Property" has the meaning set forth
in Section 2.1(d).
"Buyer" has the meaning set forth in the introductory
paragraph hereof.
"Buyer's DC Plan" has the meaning set forth in Section
8.7(a).
"Buyer FSA Plan" has the meaning set forth in Section
8.3(e).
"Buyer's Pension Plan" has the meaning set forth in Section
8.8(a).
"Buyer's Pension Trust" has the meaning set forth in Section
8.8(d).
"Cap" has the meaning set forth in Section 12.1(b).
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act codified at 42 U.S.C. 9601 et
seq. (including the amendments made by the Superfund Amendments
and Reauthorization Act of 1986).
"Closing" has the meaning set forth in Section 11.1.
"Closing Balance Sheet" has the meaning set forth in Section
3.2(a).
"Closing Date" has the meaning set forth in Section 11.1.
"Closing Working Capital" has the meaning set forth in
Section 3.2(a).
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidential Information" has the meaning set forth in
Section 7.6.
"Disputed Items" has the meaning set forth in Section
3.2(b).
"Employee Plans" has the meaning set forth in Section
5.15(a).
"Environmental Accrual Date" has the meaning set forth in
Section 12.1(c).
"Environmental Condition" means any condition existing at
any Transferred Site that relates to (i) the emission, discharge,
disposal, release or threatened release of any Hazardous
Substance into the environment, (ii) the treatment, storage,
recycling or other handling of any Hazardous Substance, or (iii)
the presence of any Hazardous Substance, including, but not
limited to, asbestos, in any building, structure or workplace or
on any of the Transferred Sites.
"Environmental Laws" means Environmental Statutes and any
common law governing the contamination, pollution or protection
of the environment or allocating liabilities in respect thereof.
"Environmental Statutes" means federal, state and local
statutes and regulations promulgated thereunder intended to
provide protection for public health and the environment,
including, without limitation, the Clean Air Act, the Clean Water
Act, CERCLA, the Solid Waste Disposal Act (including the Resource
Conservation and Recovery Act), the Toxic Substances Control Act,
their state statutory and regulatory counterparts and other
substantially similar foreign statutes and regulations.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" means any member of a controlled group of
corporations, any member of a group of trades or businesses under
common control, or any member of an affiliated service group with
Fort James within the meaning of Section 414(b), (c), (m), or (o)
of the Code, or Section 4001(a)(14) of ERISA.
"Excluded Assets" has the meaning set forth in Section 2.2.
"Excluded Liabilities" has the meaning set forth in Section
2.3(b).
"Filed Business Intellectual Property" means trade names,
trademarks and service marks, together with the associated
goodwill, letters patent, copyrights, design registrations and
inventor certificates as well as applications, registrations, and
certificates for any of the foregoing or any other intellectual
property which is used exclusively in, or applicable exclusively
to, the Business and embodied in a form which is filed or
registered with any Authority.
"Final Closing Working Capital" has the meaning set forth in
Sections 3.2(b) and 3.2(d).
"FJ 401(k) Plan" has the meaning set forth in Section
8.7(a).
"FJ FSA Plan" has the meaning set forth in Section 8.3(e).
"FJ Group" means Fort James and all of its Subsidiaries.
"FJ Pension Plan" has the meaning set forth in Section
8.8(a).
"FJ's Pension Trust" has the meaning set forth in Section
8.8(d).
"Fort James" has the meaning set forth in the introductory
paragraph hereof.
"Fort James Corporate Designations" has the meaning set
forth in Section 7.10(a).
"Fort James Material Adverse Effect" means a material
adverse effect on the consolidated financial position or results
of operations of the Business, taken as a whole, other than as a
result of (i) changes in general economic conditions or general
developments in the packaging industry or (ii) changes which
result from the announcement or performance of this Agreement and
the transactions contemplated hereby and compliance with the
covenants set forth herein.
"GAAP" means United States generally accepted accounting
principles.
"Hazardous Substance" means (i) any hazardous substance,
extremely hazardous substance, hazardous material, hazardous
waste, regulated substance or toxic substance (as those terms are
defined by any applicable Environmental Laws) and (ii) any
chemicals, pollutants, contaminants, or petroleum, crude oil or
any fraction thereof.
"Hourly Business Employees" has the meaning set forth in
Section 8.2(b).
"Indemnitee" has the meaning set forth in Section 12.4(a).
"Indemnitor" has the meaning set forth in Section 12.4(a).
"Inventory" has the meaning set forth in Section 2.1(c).
"Knowledge of Fort James" means the actual knowledge of
those officers and employees of Fort James listed on
Schedule 1.1-A.
"Large Brokers" has the meaning set forth in Section 5.19.
"Large Customers" has the meaning set forth in Section 5.19.
"Leased Assets" means any real property, improvements,
equipment or other assets leased to a Person within the FJ Group
and used solely in connection with the Business.
"Leased Premises" means that real property leased by Fort
James or any of its Subsidiaries, as lessee, and listed on
Schedule 1.1-B.
"Legal Action" has the meaning set forth in Section 12.5.
"Lessee Lease" and "Lessee Leases" have the respective
meanings set forth in Section 5.11.
"Lessor Lease" and "Lessor Leases" have the respective
meanings set forth in Section 5.11.
"Liability" means any liability or obligation (whether known
or unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, and whether due or to become due).
"Listed Contract" has the meaning set forth in Section 5.13.
"Losses" has the meaning set forth in Section 12.5.
"Major Leases" has the meaning set forth in Section 5.11(b).
"Major Leases Title Commitment" has the meaning set forth in
Section 7.13(a).
"Major Leases Title Package" has the meaning set forth in
Section 7.13(b).
"March Balance Sheet" means the unaudited balance sheet for
the Business as of March 28, 1999, reflecting the Business as
proposed to be transferred hereunder, previously delivered by
Fort James to Buyer and included as Schedule 3.2(a) hereto.
"Non-Filed Business Intellectual Property" means unpatented
technology, inventions, trade secrets, processes, know-how,
designs and formulae and unfiled trade names, trademarks and
service marks, together with the associated goodwill,
unregistered copyrights and other industrial or intellectual
property which is used exclusively in, or applicable exclusively
to, the Business and not filed or registered with an Authority.
"Opening Working Capital" has the meaning set forth in
Section 3.2(e).
"P&L" has the meaning set forth in Section 5.8(b).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Exceptions" means (i) statutory liens for current
taxes or assessments not yet due and payable or being contested
in good faith; (ii) terms and conditions of any Lessor Leases;
(iii) the current zoning and subdivision laws and regulations
applicable to any Real Property; and (iv) such liens,
imperfections in title, charges, easements, restrictions,
encumbrances (including any of the foregoing shown by the surveys
referred to in Section 7.13) as would not have a Fort James
Material Adverse Effect.
"Person" means an individual, partnership (general or
limited), corporation, association or other form of business
organization (whether or not regarded as a legal entity under
applicable law), trust, estate or any other entity.
"Pre-Closing Environmental Loss" has the meaning set forth
in Section 12.1(c).
"Purchase Price" has the meaning set forth in Section 3.1.
"Rate of Return" has the meaning set forth in Section
8.8(g).
"Real Property" has the meaning set forth in Section 2.1(a).
"Real Property Title Commitment" has the meaning set forth
in Section 7.13(a).
"Real Property Title Package" has the meaning set forth in
Section 7.13(a).
"Related Agreements" has the meaning set forth in Section
4.1.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping or disposing into the environment.
"Remedial Actions" means actions required under
Environmental Laws to clean up or to contain or otherwise to
ameliorate or remedy any Environmental Condition, including but
not limited to preventing a Release or threatened Release and
performing studies, investigations and monitoring.
"Representative" has the meaning set forth in Section 7.6.
"Salaried Business Employees" has the meaning set forth in
Section 8.2(b).
"section 411(d)(6) protected benefits" has the meaning set
forth in Section 8.7(a).
"Subsidiary," when used with respect to any Person, means
any corporation or other business entity, whether or not
incorporated, of which such Person holds, directly or indirectly,
more than 50% of the securities or interests having, by their
terms, ordinary voting power to elect members of the Board of
Directors, or other persons performing similar functions with
respect to such entity.
"Title Commitment" has the meaning set forth in Section
7.13(a).
"Title Defect" has the meaning set forth in Section 7.13(a).
"Transfer Amount" has the meaning set forth in Section
8.8(e).
"Transfer Fees" has the meaning set forth in Section 7.5(b).
"Transferred Employees" has the meaning set forth in Section
8.2(a).
"Transferred Hourly Employees" has the meaning set forth in
Section 8.3(a).
"Transferred Pension Participants" has the meaning set forth
in Section 8.8(a).
"Transferred Salaried Employees" has the meaning set forth
in Section 8.3(a).
"Transferred Sites" means the Real Property and the Leased
Premises.
"Transition Services Agreement" has the meaning set forth in
Section 4.1(b).
"Window Period" has the meaning set forth in Section 8.3(a).
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.1 Purchase and Sale. Fort James agrees to sell and to
cause its Subsidiaries to sell, to Buyer and Buyer agrees to
purchase from Fort James and its designated Subsidiaries at
Closing all of the right, title and interest of Fort James or
any Person within the FJ Group in and to the following assets,
properties and rights other than the Excluded Assets
(collectively, the "Assets"):
(a) the real property listed in Schedule 2.1(a) together
with the buildings, fixtures and other improvements located
thereon and the appurtenances thereto (the "Real Property");
(b) the machinery, equipment, furniture, vehicles, tools,
supplies and other tangible personal property which (i) is
ordinarily located on the Transferred Sites or (ii) is listed
on the attached Schedule 2.1(b);
(c) the raw materials, work-in-process, finished goods,
stores, supplies and spare parts which are located at the
Transferred Sites or are in transit thereto or which are located
elsewhere and relate solely to the Business (the "Inventory");
(d) except to the extent specified in Schedule 5.12, the
Filed Business Intellectual Property listed in Schedule 5.12,
the Non-Filed Business Intellectual Property listed in Schedule
5.12, and licenses to Filed Business Intellectual Property and
Non-Filed Business Intellectual Property listed in Schedule 5.12
(such Filed Business Intellectual Property, such Non-Filed
Business Intellectual Property, and such licenses thereto,
collectively, the "Business Intellectual Property");
(e) all of the rights of every Person within the FJ Group
under (i) the Listed Contracts, (ii) the Lessee Leases and (iii)
all other contracts and commitments to the extent the same relate
exclusively to the Business;
(f) to the extent assignable, all federal, state, local
and foreign governmental licenses, permits, approvals and
authorizations held by any Person within the FJ Group to the
extent the same relate solely to the Business;
(g) all accounts receivable and notes receivable arising
from the Business, including receivables from Transferred
Employees;
(h) all property records, production records, engineering
records, purchasing and sales records, personnel and payroll
records for Transferred Employees, accounting records, customer
and vendor lists and other records and files (including, but not
limited to, any such records maintained in connection with any
computer system, but subject to the provisions of any applicable
Related Agreement) used exclusively in the Business; a co-
ownership interest in any of the foregoing assets which are used
only in part in the Business, but only to the extent of such use;
and copies of the information relating to the Business contained
in the computer files referred to in Section 2.2(d), but only to
the extent such information relates to the Business; provided,
however, that the transfer of the assets and properties referred
to in this Section 2.1(h) that do not constitute indicia of
title, may, at the option of Fort James, consist of transfer of
true, correct and complete copies thereof;
(i) subject to the provisions of Section 7.10, all
purchase orders, forms, labels, stationery, shipping
materials, catalogues, brochures, art work, photographs
and advertising materials which relate solely to the
Business or which are located at any Transferred Site;
(j) those categories of prepaid expenses and deferred
charges created in the ordinary course of the Business
which are listed on Schedule 2.1(j);
(k) all rights, choses in action and claims, known or
unknown, matured or unmatured, accrued or contingent,
against third parties arising solely out of the Business
or the ownership or operation of the Assets; and
(l) Fort James' one-third interest in the Kalamazoo
Valley Group Landfill Partnership.
2.2 Excluded Assets. The following assets (the "Excluded
Assets") to the extent that, but for this sentence, they would
constitute Assets, shall not be included in the Assets:
(a) all cash and cash equivalents, including cash on hand
or in bank accounts, certificates of deposit, commercial paper
and securities, except petty cash funds located at the
Transferred Sites;
(b) all prepaid expenses and deferred charges other
than those listed in Schedule 2.1(j);
(c) the real property, improvements, equipment and
all other assets to be leased from a member of the FJ Group
pursuant to any Related Agreement, and any Leased Assets
(other than the leasehold interest therein);
(d) all computer files which contain any records or lists
relating to any business of the FJ Group other than the Business;
(e) the excluded technology listed in Schedule 2.2(e);
(f) all assets listed in Schedule 2.2(f); and
(g) all prepaid insurance premiums.
2.3 Assumed Liabilities; Excluded Liabilities. (a) Except
to the extent set forth in Section 2.3(b), Buyer shall assume, at
the Closing, all Liabilities and obligations of any Person within
the FJ Group to the extent such Liabilities and obligations
relate exclusively to the Business or to the Assets
(collectively, the "Assumed Liabilities"), including, without
limitation, the following:
(i) the current liabilities related to the Business
or the Assets, including, but not limited to, all accounts
and trade payables, all Liabilities and all obligations
accruable as a current liability on Fort James' financial
statements at Closing to the extent such payables,
liabilities and obligations are related exclusively to the
Business or the Assets;
(ii) all Liabilities and obligations of any Person
within the FJ Group with respect to goods or services
delivered or to be delivered to customers of the
Business arising from orders placed prior to or following
the Closing;
(iii) all Liabilities and obligations of any Person
within the FJ Group under the Listed Contracts, the Lessee
Leases and any other contract, commitment, license, permit,
approval, authorization or other agreement or arrangement
constituting part of the Assets under Section 2.1(e);
(iv) all Liabilities and obligations of any Person
within the FJ Group existing at Closing and relating to
Business Employees and employee benefits for Business
Employees, except to the extent such liabilities and
obligations are specifically retained by the FJ Group
pursuant to Article VIII;
(v) subject to Section 12.1(c) hereof, all Liabilities
and obligations under Environmental Laws of any Person
within the FJ Group (including, without limitation, any
obligation to conduct or to pay for any Remedial Action for
any Environmental Condition or any obligation to correct or
to pay a penalty for failure to comply with Environmental
Statutes), in connection with facts, events, conditions,
actions or omissions existing or occurring prior to or after
Closing, to the extent that such liability, obligation,
condition or failure (A) exists on any Real Property, or
real property constituting Leased Premises at the Transferred
Sites or (B) is a Liability arising under Environmental Laws
with respect to hazardous substances, contaminants, pollu-
tants or petroleum products leaching or physically migrating
from Transferred Sites to adjacent or nearby properties, and
including, without limitation, those liabilities listed on
Schedule 2.3(a)(v);
(vi) all Liabilities or obligations of any member of
the FJ Group in connection with the Port of Portland
Industrial Development Revenue Bonds; and
(vii) all other Liabilities described on Schedule
2.3(a)(vii).
(b) The following Liabilities and obligations (the
"Excluded Liabilities") shall be excluded from the Assumed
Liabilities:
(i) Liabilities for federal, state and local income
and franchise taxes and any other taxes incurred by any
Persons within the FJ Group in the conduct of the Business
or with respect to the Assets before Closing, except as is
otherwise provided in this Agreement;
(ii) all Liabilities or obligations to the extent
relating to the acquisition, ownership or use of any of the
Excluded Assets;
(iii) all Liabilities or obligations arising under
Environmental Laws in connection with facts, events,
conditions, actions or omissions existing on or occurring
prior to Closing at locations other than the Transferred
Sites; and
(iv) any Liabilities listed on Schedule 2.3(b)(iv).
ARTICLE III
PURCHASE PRICE, WORKING CAPITAL ADJUSTMENT
3.1 Purchase Price. The consideration to be paid for the
Assets (the "Purchase Price") shall be $830 million, in cash,
subject to adjustment as provided in Section 3.2.
3.2 Working Capital Adjustment. (a) Immediately after the
Closing, Fort James and Buyer shall jointly cause
PricewaterhouseCoopers LLP to prepare an audited balance sheet of
the Business as of the Closing Date (the "Closing Balance Sheet")
and schedules setting forth the Closing Working Capital as of the
end of the last shift on the day next preceding the date of the
Closing. "Closing Working Capital" shall equal the current
assets less the current liabilities as reflected in the Closing
Balance Sheet. The Closing Balance Sheet shall be prepared on a
basis consistent with the preparation of the March Balance Sheet
and taking into account the assets transferred and liabilities
assumed pursuant to this Agreement. The Closing Balance Sheet
(together with the schedules setting forth Closing Working
Capital), shall be completed and delivered to the parties no
later than 60 days after Closing. All items in the schedules
setting forth the Closing Working Capital the amounts of which
are not objected to or questioned by Fort James or Buyer during
the 15-day period following completion and delivery of the
Closing Balance Sheet shall be deemed agreed upon by the parties
and shall be deemed conclusive for purposes of determining the
Final Closing Working Capital, as defined herein.
(b) As promptly as practicable, but no later than 15 days
after completion and delivery of the Closing Balance Sheet, the
parties shall attempt to resolve any items comprising Closing
Working Capital as to which the parties differ (the "Disputed
Items"). If during such 15-day period the parties are able to
resolve all Disputed Items, the Closing Working Capital so
agreed upon shall be the "Final Closing Working Capital."
(c) If during such 15-day period any such Disputed Items
cannot be resolved, those items to the extent of the amounts
agreed upon by the parties shall be deemed agreed upon, shall no
longer constitute Disputed Items and shall be conclusive for
purposes of determining the Final Closing Working Capital and
each of Fort James and Buyer shall promptly thereafter but in no
event more than 10 days thereafter cause an accounting firm of
internationally recognized standing reasonably satisfactory to
them promptly to review this Agreement and the remaining
Disputed Items for purposes of resolving the remaining Disputed
Items and calculating the Final Closing Working Capital. In
making such calculation, such accounting firm shall make a
determination only of Disputed Items not resolved by the parties
and in the case of all other items shall use the amounts which
are agreed upon by the parties. Such accounting firm shall
deliver to Fort James and to Buyer, as promptly as practicable,
a report setting forth its resolution of the remaining Disputed
Items and its calculation of Closing Working Capital. Such
report shall be final and binding upon the parties hereto. The
cost of such review and report shall be borne by the party
against whom the disagreement is in large part resolved or, if
the resolution does not substantially favor either party, such
costs shall be borne equally by Fort James and Buyer. In all
events, such accounting firm will determine the assessment of
such costs.
(d) The Closing Working Capital agreed to by the parties
or as calculated by the accounting firm as set forth in
Section 3.2(c) above, as the case may be, shall be the "Final
Closing Working Capital," which shall be conclusive for all
purposes of this Agreement.
(e) If the Final Closing Working Capital is greater than
$72,294,000 (the "Opening Working Capital"), Buyer shall promptly
pay to (or as directed by) Fort James, in the manner and with
interest as provided in Section 3.2(f), the amount of the
difference. If the Final Closing Working Capital is less than
Opening Working Capital, Fort James shall promptly pay to (or as
directed by) Buyer, in the manner and with interest as provided
in Section 3.2(f), the amount of the difference. Any such
payment pursuant to this Section 3.2(e) shall be made at a
mutually convenient time and place (i) within 5 business days
after Buyer and Fort James agree upon the Final Closing Working
Capital pursuant to Section 3.2(b) or (ii) if Disputed Items are
referred to a firm of independent accountants pursuant to Section
3.2(c), then within 10 business days after the delivery of the
report of such firm referred to in Section 3.2(c).
(f) Any payments pursuant to this Section 3.2(f) shall be
made by causing such payments to be credited in immediately
available funds to the account of Buyer or of Fort James, as the
case may be, as may be designated by the party receiving payment.
The amount of any payment to be made pursuant to this Section
3.2(f) shall bear interest from and including the date of Closing
to but excluding the date of payment at a rate per annum equal to
the Prime Rate as published by The Chase Manhattan Bank. Such
interest shall be payable at the same time as the payment to
which it relates and shall be calculated daily on the basis of a
year of 365 days and the actual number of days for which interest
is due.
3.3 Additional Payments. (a) If any Asset or the Business
shall suffer any damage, destruction or loss after the date
hereof, but before the date of Closing, and such Asset or the
Business and the related casualty are covered by any insurance
policy maintained by any Person within the FJ Group: Fort James
shall pay to Buyer, as soon as practicable after receipt by Fort
James, in cash, the amount by which the proceeds from such policy
in respect of such damage, destruction or loss exceeds the sum of
(i) any amount recorded on the Closing Balance Sheet as a current
liability with respect to repair, restoration or replacement
related to such damage, destruction or loss; (ii) the amount if
any by which the current assets included in the Closing Balance
Sheet shall have been reduced from the current assets shown on
the March Balance Sheet by reason of such damage, destruction or
loss, and (iii) any amount paid by any Person within the FJ Group
after the date hereof in cash for the repair, restoration or
replacement of the damaged or destroyed asset.
(b) All proceeds of insurance which are applicable to
insured claims of third parties included in the Assumed
Liabilities and are received by any Person within the FJ Group
after Closing shall (i) be used to discharge, in whole or in part,
the applicable Assumed Liabilities, (ii) be paid to Buyer if, and
to the extent that, such Assumed Liabilities have been discharged
by Buyer or Buyer has made a reimbursement to Fort James in
respect of such claim or (iii) be retained by Fort James if, and
to the extent that, such Assumed Liabilities have been discharged
by any Person within the FJ Group and Buyer has not made a
reimbursement to Fort James in respect of such claim.
ARTICLE IV
RELATED AGREEMENTS
4.1 Related Agreements. In connection with the
consummation of the transactions contemplated hereby, Fort James
(or the Subsidiary of Fort James named therein) and Buyer shall
enter into each of the following agreements (collectively, the
"Related Agreements") at or prior to the Closing:
(a) each of the supply agreements listed in Exhibit A
hereto, substantially in the form of Exhibit A hereto, and upon
the terms and conditions set forth in the separate term sheets for
each such agreement included in Exhibit A hereto;
(b) each of the broker agreements listed in Exhibit B
hereto, upon the terms and conditions set forth in such Exhibit B;
and
(c) a transition services agreement (the "Transition
Services Agreement") providing for the provision by Fort James to
Buyer of such of the services listed in Exhibit C hereto as Buyer
elects in writing, no later than 20 business days prior to Closing,
upon terms and conditions customary for such arrangements and at a
price to Buyer equal to Fort James' fully-loaded cost of
providing such service (which shall be comparable to amounts
reflected in the P&L) in addition to any one-time costs in
connection with the provision of such service. The Transition
Services Agreement will address (i) the operation of the
Chambersburg facility until such facility is shut down (which
shut down is anticipated to occur in July 1999) and (ii) the
removal of the Chambersburg equipment at Buyer's sole cost and
expense following such shut down; provided that Fort James shall
be responsible for the disposal of such Chambersburg equipment
that Buyer chooses not to remove. In addition, the Transition
Services Agreement will provide that (i) Fort James will grant to
Buyer a royalty-free nonexclusive license relating to Pressed
High Performance plate and related tooling patents and technology
for use in manufacturing food packaging for sale in channels
where food is sold in the packaging at wholesale, and (ii) Fort
James will retain in the technology being transferred to Buyer, a
royalty-free nonexclusive license relating to Microwave packaging
patents and technology for use in manufacturing food packaging
for sale in channels where food is not sold in the packaging at
wholesale.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF FORT JAMES
Fort James hereby represents and warrants to Buyer that:
5.1 Organization; Qualification. Fort James is a
corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Virginia and has corporate
power and authority to own all of its properties and assets and
to carry on its business as it is now being conducted. Fort James
and each member of the FJ Group engaged in the Business are duly
qualified and in good standing to do business in each jurisdiction
in which the property owned, leased or operated by it or the nature
of the business conducted by it makes such qualification necessary
except in those jurisdictions where the failure to be duly
qualified and in good standing would not have a Fort James
Material Adverse Effect.
5.2 Authority Relative to this Agreement and the Related
Agreements. Each Person within the FJ Group has the corporate
power and authority to execute and deliver each agreement or
other document to be executed by it in connection with the
transactions contemplated by this Agreement and to consummate the
transactions contemplated on its part thereby. The execution and
delivery by each Person within the FJ Group of each agreement or
other document to be executed by it in connection with the
transactions contemplated by this Agreement, and the consummation
by it of any transactions contemplated on its part hereby and
thereby, have been duly authorized by such Person's Board of
Directors and no other corporate proceedings on the part of such
Person are necessary with respect thereto. Assuming the due
authorization, execution and delivery by Buyer of this Agreement,
this Agreement constitutes, and each agreement or other document
to be executed by a Person within the FJ Group in connection with
the transactions contemplated by this Agreement (when executed
and delivered by Fort James or that other Person within the FJ
Group) will constitute, valid and binding obligations of Fort
James and/or such other Person within the FJ Group, as the case
may be, enforceable in accordance with their terms.
5.3 Consents and Approvals. Except as set forth in
Schedule 5.3, there is no requirement applicable to any Person
within the FJ Group to make any filing with, or to obtain any
permit, authorization, consent or approval from, any third
party (including any Authority) as a condition to the
consummation of the transactions contemplated by this Agreement,
other than such requirements, the failure of which to satisfy
would not have a Fort James Material Adverse Effect.
5.4 Non-Contravention. The execution and delivery by Fort
James of this Agreement and by each Person within the FJ Group
of the other agreements and documents to be executed in
connection with the transactions contemplated by this Agreement
and the consummation of the transactions contemplated thereby
will not (a) violate or result in a breach of any provision of
the Articles of Incorporation or Bylaws of Fort James or such
other Person within the FJ Group, as the case may be, (b) result
in a default (or give rise to any right of termination,
cancellation or acceleration) under the terms, conditions or
provisions of any note, bond, mortgage, indenture, license,
agreement, lease or other instrument or obligation to which Fort
James or such other Person within the FJ Group, as the case may
be, is a party or by which Fort James or such other member of the
FJ Group, as the case may be, or any of the Assets may be bound,
except for such defaults (or rights of termination, cancellation
or acceleration) as to which requisite waivers or consents have
been or shall be obtained by Fort James before the Closing or
which would not have a Fort James Material Adverse Effect, or
(c) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to any Person within the FJ Group or any of
the Assets or the Business (other than any applicable "bulk
sales" laws), excluding from the foregoing clause (c) such
violations that would not have a Fort James Material Adverse
Effect.
5.5 Compliance with Laws. Except as set forth in Schedules
5.5, 5.6 and 5.7 or as would not have a Fort James Material
Adverse Effect, all Persons within the FJ Group have operated the
Business in compliance with all laws, regulations, policies,
guidelines, orders, judgments or decrees of any Authority
applicable to, or having jurisdiction over, Persons within the FJ
Group, the Assets or the Business. Except as set forth in
Schedule 5.6, with respect to the Business, to the Knowledge of
Fort James: (a) no Person within the FJ Group has received from
any Authority any notice of any failure to so comply, and (b) no
Person within the FJ Group is currently subject to any sanction
for such noncompliance.
5.6 Environmental Matters. Except as described on Schedule
5.6, Persons within the FJ Group have obtained all federal, state
and local permits, licenses and other authorizations and have
submitted all notices, which are required under applicable
Environmental Laws in connection with the Business, other than
licenses, permits, and other authorizations, the failure of which
to obtain would not have a Fort James Material Adverse Effect.
Except as described on Schedule 5.6, and except for such
noncompliance as would not have a Fort James Material Adverse
Effect, the Assets and the Business are in compliance with all
terms and conditions of such permits, licenses and
authorizations, and are also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables of any
Environmental Law or order, decree, judgment notice or demand
letter entered, promulgated or approved thereunder, and no action
is pending to revoke or modify any such permit, license or
authorization. Except as described on Schedule 5.6, neither Fort
James nor any of its Subsidiaries has received notice from any
Authority or Person of any failure of the Assets or the Business
to comply with, or of any liability or any potential liability of
the Assets or the Business under, any Environmental Law, except
for any such Environmental Law the failure to comply with which
would not have a Fort James Material Adverse Effect. Except as
set forth in Schedule 5.6, or for any Excluded Liability, or as
would not have a Fort James Material Adverse Effect: (i) none of
the Transferred Sites, the Assets or the Business has released or
disposed of any Hazardous Substances, and no Person in the FJ
Group knows of any prior releases or disposal of Hazardous
Substances on the Transferred Sites or related to the Assets or
the Business, and (ii) there are no physical or environmental
conditions located at the Transferred Sites or related to the
Assets or the Business that would give rise to remedial
obligations.
5.7 Licenses and Permits. Except as set forth on Schedule
5.7, all material federal, state and local permits and licenses
that any Person within the FJ Group is required to obtain that
are related to the Business or the ownership or operation of the
Assets have been obtained and are currently in full force and
effect other than such permits and licenses the failure of which
to obtain would not have a Fort James Material Adverse Effect.
Except as set forth in Schedule 5.7 or as would not have a Fort
James Material Adverse Effect, no Person within the FJ Group has
violated the terms or conditions of any such license or permit,
no notice of a violation of any such license or permit has been
received by any Person within the FJ Group or recorded or
published, and no proceeding is pending, to revoke, prevent the
renewal of, or limit any such license or permit.
5.8 Financial Statements. (a) Fort James has previously
furnished Buyer with the March Balance Sheet. Such unaudited
balance sheet has been prepared in conformity with GAAP (except
as otherwise set forth in the comments accompanying such balance
sheet) applied on a basis consistent with Fort James' historical
accounting policies and procedures with respect to the Business
used in the preparation of Fort James' audited financial
statements.
(b) Fort James has previously furnished Buyer with an
unaudited profit and loss statement for the Business for the
fiscal year ended December 27, 1998, a copy of which is attached
as Schedule 5.8(b) (the "P&L"). Such unaudited P&L has been
prepared in conformity with GAAP (except as otherwise set forth
in the comments accompanying such P&L) applied on a basis
consistent with Fort James' historical accounting policies and
procedures with respect to the Business used in the preparation
of Fort James' audited financial statements.
5.9 Litigation. Except as set forth in Schedule 5.9, there
are no actions, suits, claims, investigations or proceedings
(legal, administrative or arbitrative) pending or, to the
Knowledge of Fort James, threatened against any Person within the
FJ Group which relate to the Assets or the Business, whether at
law or in equity and whether civil or criminal in nature, before
any federal, state, municipal, foreign country's or other court,
arbitrator, governmental department, commission, agency or
instrumentality, nor are there any judgments, decrees or orders
of any such court, arbitrator, governmental department,
commission, agency or instrumentality outstanding against any
Person within the FJ Group which relate to the Assets or the
Business and which, in either case, have, or, if adversely
determined, could be reasonably expected to have, a Fort James
Material Adverse Effect.
5.10 Title to Properties. (a) Except as set forth in
Schedule 5.10 and except for Permitted Exceptions, Fort James
or another Person of the FJ Group has good and valid fee simple
title to the Real Property; and
(b) no portion of any Transferred Site is subject to any
proceeding for its sale, condemnation, expropriation or taking
(by eminent domain or otherwise) by any Authority nor, to the
Knowledge of Fort James, has any such sale, condemnation,
expropriation or taking been proposed or threatened.
5.11 Leases. (a) Schedule 5.11 lists all leases,
agreements and commitments to lease, under which any Person
within the FJ Group is the lessee (each, a "Lessee Lease" and,
collectively, the "Lessee Leases"), and all leases, agreements
and commitments to lease, under which any Person within the FJ
Group is the lessor (each a "Lessor Lease" and, collectively,
the "Lessor Leases") that relate, in each case, exclusively to
the Business and to either real or personal property, other than
leases of personal property which may be canceled without
material penalty upon not more than 60 days' notice or which
require the payment of not more than $10,000 per month. Except
as set forth in Schedule 5.11, there is not, with respect to any
of the Lessee Leases or the Lessor Leases, any existing material
default or event of default on the part of any Person within the
FJ Group or, to the Knowledge of Fort James, any existing
material default or event of default on the part of any other
party to the Lessee Leases or the Lessor Leases.
(b) Except as set forth in Schedule 5.11, no payments are
required by any Person within the FJ Group to maintain the Lessee
Leases relating to the Portland and Mississauga facilities (the
"Major Leases") other than as provided therein, and no person has
made any claim with respect to the Major Leases that would
materially interfere with the use of the premises by the tenant
in the conduct of its business.
5.12 Intellectual Property. Schedules 5.12(a-e) set forth a
complete and correct list of the Business Intellectual Property
that is used exclusively in, or is applicable exclusively to, the
Business. Except as set forth in Schedules 5.12(a-e), Fort James
or another member of the FJ Group owns the Business Intellectual
Property and such Business Intellectual Property is subsisting on
the date hereof. Except as set forth on Schedules 5.12(a-e),
there are no licenses of Business Intellectual Property to third
parties. Except as set forth in Schedules 5.12(a-e), there is no
claim, suit, action or proceeding pending or, to the Knowledge of
Fort James, threatened against any Person within the FJ Group
asserting that its use of any Business Intellectual Property
infringes upon the rights of any third parties. Except as set
forth on Schedules 5.12(a-e), to the Knowledge of Fort James,
there are no third parties infringing upon the Business
Intellectual Property.
(a) Schedule 5.12(a) sets forth a complete and correct list
of the Filed Business Intellectual Property (including patents,
pending applications for letters patent and registered
trademarks) that is used exclusively in, or is applicable
exclusively to, the Business.
(b) Schedule 5.12(b) sets forth a complete and correct list
of the Filed Business Intellectual Property (including patents,
pending applications for letters patent and registered
trademarks) owned by third parties that is licensed to Fort James
and used exclusively in, or is applicable exclusively to the
Business.
(c) Schedule 5.12(c) sets forth a complete and correct list
of the Filed Business Intellectual Property (including patents,
pending applications for letters patent and registered
trademarks) that is used in, or is applicable to, the Business
which is also applicable to portions of Fort James other than the
Business.
(d) Schedule 5.12(d) sets forth a complete and correct list
of the Filed Business Intellectual Property (including patents,
pending applications for letters patent and registered
trademarks) owned by third parties that is licensed to Fort James
and is used in, or is applicable to the Business which is also
applicable to portions of Fort James other than the Business.
(e) Schedule 5.12(e) sets forth a complete and correct list
of the Unfiled Business Intellectual Property which has been
reduced to a record of invention that is used exclusively in, or
is applicable exclusively to, the Business.
(f) Schedule 5.12(f) sets forth a complete and correct list
of the Unfiled Business Intellectual Property which has been
reduced to a record of invention that is used in, or is appli-
cable to, the Business which is also applicable to portions of
Fort James other than the Business.
5.13 Listed Contracts. Schedule 5.13 contains a complete
and correct list of every contract, agreement or commitment of
any Person within the FJ Group, other than Lessee Leases and
Lessor Leases (each, a "Listed Contract"):
(a) which provides for aggregate future payments by the
Business of more than $250,000, except for purchase orders or
sales orders arising in the ordinary course of business, in
which case such contract, agreement or commitment is listed
only if any party thereto is obligated to make payments during
the term thereof which will exceed $1,000,000 in the aggregate;
(b) which provides for the sale, lease to a third party
or other disposition, after the date hereof and other than in
the ordinary course of business, of any of the Assets;
(c) which is a mortgage, indenture, note, or installment
obligation, or other instrument evidencing indebtedness to be
assumed by Buyer;
(d) which is a guaranty of any obligation for borrowings or
performance, excluding endorsements or guaranties of instruments
made in the ordinary course of business;
(e) which is an agreement or other arrangement for the
purchase of any real estate, machinery, equipment, or other
capital assets in excess of $250,000; or
(f) which is an agreement imposing material non-competition
or exclusive dealing obligations on the Business.
Except as set forth in Schedule 5.13, all of the Listed Contracts
are in full force and effect and there has not occurred, with
respect to any Listed Contract, any material default or event of
default on the part of any Person within the FJ Group or, to the
Knowledge of any Person within the FJ Group, any other party
thereto.
5.14 Labor Matters. Schedule 5.14 sets forth a complete and
correct list of every collective bargaining agreement covering
Business Employees. Fort James has provided Buyer with true,
complete and correct copies of each of such collective bargaining
agreements and all amendments and modifications (excluding
exhibits) thereto.
(a) Except as set forth on Schedule 5.14, and except for
grievances that have not ripened into arbitration or litigation,
as of the date hereof there are no controversies, disagreements
or disputes pending between Fort James or any other member of the
FJ Group and any of their respective employees or union
representatives that would have a Fort James Material Adverse
Effect.
(b) Except as set forth on Schedule 5.14, or as would not
have a Fort James Material Adverse Effect:
(i) during the last three years immediately preceding
the date of this Agreement, with respect to the Business
Employees, there have been no labor strikes, slow downs,
lockouts or general employment disputes at any of the
Transferred Sites;
(ii) there have within the past three years immediately
preceding the date of this Agreement occurred (A) no events
that have legally required any member of the FJ Group to
hold a union election with respect to any Transferred Site
or (B) to the Knowledge of Fort James, any union organizing
activities, or any demand for recognition from a labor
organization; and
(iii) there have within the past three years immediately
preceding the date of this Agreement been no unfair labor
practice charges filed with the National Labor Relations
Board against any member within the FJ Group related to the
Business or the Assets.
5.15 Employee Benefit Plans. (a) Schedule 5.15(a) lists
all of the material employee benefit and compensation plans,
programs and arrangements, including, without limitation:
(i) all retirement, savings and other pension plans other than
"multiemployer plans," (as defined in Section 4001(a)(3) of
ERISA) (ii) all health, severance, insurance, disability and
other employee welfare plans; and (iii) all employment,
incentive, vacation and other similar plans, that are maintained
by Fort James, or any Person within the FJ Group, with respect to
Business Employees, or to which Fort James or any Person within
the FJ Group contributes on behalf of the Business Employees
(collectively, the "Employee Plans").
(b) Except as would not have a Fort James Material Adverse
Effect: (i) the Employee Plans that are maintained by Fort James
or a member of the FJ Group are in compliance with applicable
laws and regulations, including, to the extent applicable, ERISA
and the Code, (ii) Fort James and, to the extent applicable, each
other member of the FJ Group has administered the Employee Plans
in accordance with applicable laws and regulations, including, to
the extent applicable, ERISA and the Code, and (iii) each
Employee Plan that is intended to be qualified under Section
401(a) of the Code is so qualified.
(c) Fort James has made available to Buyer copies of all
Employee Plans and, where applicable, summary plan descriptions
and annual reports filed within the last year pursuant to ERISA
or the Code with respect to the Employee Plans.
(d) Except as would not have a Fort James Material Adverse
Effect, neither Fort James nor any Person within the FJ Group has
engaged in any prohibited transactions, as defined in Section
4975 of the Code, with respect to any Employee Plan. Except as
would not have a Fort James Material Adverse Effect, (i) no
Employee Plan that is a defined benefit pension plan (as defined
in 3(35) of ERISA) maintained or contributed to by Fort James or
an ERISA Affiliate or any trust established thereunder that is
subject to Section 302 of ERISA and Section 412 of the Code has
incurred any "accumulated funding deficiency" (as defined in
Section 302 of ERISA and Section 412 of the Code), whether or not
waived, (ii) all contributions required to be made with respect
thereto on or prior to Closing have been timely made, and (iii)
with respect to the FJ Pension Plan, the present value of accrued
benefits under such plan, based upon the actuarial assumptions
used to prepare the most recent actuarial valuation for such
plan, did not, as of its most recent valuation date, exceed the
then current value of the assets of such plan. Except as would
not have a Fort James Material Adverse Effect, no lien exists
with respect to any Employee Plan under Section 412(n) of the
Code with respect to any assets of Fort James or of any ERISA
Affiliate.
(e) Schedule 5.15(e) contains a true and correct list of
all employment and consulting contracts with an original term in
excess of 60 days, providing for compensation on a yearly basis
in excess of $250,000, and not otherwise listed on Schedule 5.13
or 5.15(a), to which any Person within the FJ Group is a party
in connection with the Business. Except as set forth on
Schedule 5.15(e), each of such contracts is in full force and
effect and there has not occurred, with respect to any such
contract, any material default or event of default on the part
of any Person within the FJ Group or, to the Knowledge of Fort
James, any other party to such contracts.
(f) The Central States, Southeast and Southwest areas
Pension Fund is the only multiemployer plan (as defined in ERISA)
to which Fort James or an ERISA Affiliate contributes with
respect to any Business Employee. The number of individuals with
respect to whom contributions are being made as of the date
hereof is approximately 15.
5.16 Conduct of Business and Management of Assets.
(a) Between March 28, 1999 and the date hereof, Persons
within the FJ Group have conducted the Business, and have
managed the Assets in the ordinary course of business
consistent with past practice.
(b) Between March 28, 1999 and the date hereof, with
respect to the Business and the Assets, no Person within the
FJ Group has:
(i) made capital expenditures, other than
substantially in accordance with the capital plan of
the Business attached hereto as Schedule 5.16(b)(i);
(ii) made a disposition of assets in excess of
$1,000,000, other than dispositions of inventory in
the ordinary course of business of the Business;
(iii) made loans or advances to, or investments in,
other parties in excess of $500,000 in the aggregate;
(iv) entered into employment, severance, compensation
or similar agreements with Business Employees, except (A)
for incentive programs that by their terms expire at or
before Closing or (B) in the ordinary course of business;
(v) made increases in compensation or benefits
payable to Business Employees other than in the ordinary
course of business;
(vi) suffered or incurred any significant damage,
destruction of property or other loss, whether or not
insured; or
(vii) incurred additional long-term debt.
(c) Between March 28, 1999 and the date hereof, with
respect to the Business and the Assets, the Persons within the
FJ Group have:
(i) maintained their books and records in accordance
with past accounting practices;
(ii) maintained the same level and types of insurance
as previously maintained; and
(iii) used commercially reasonable efforts to preserve
the Business and the Assets.
5.17 Finders. Except for Goldman, Sachs & Co., no broker,
finder or investment banker is entitled to any fee or commission
from Fort James for services rendered on behalf of Fort James in
connection with the transactions contemplated by this Agreement.
5.18 Sufficiency of Assets. The Assets to be transferred
pursuant to paragraphs (a)-(g), (i) and (l) of Section 2.1,
include all of the assets of the types covered by such paragraphs
as are reasonably necessary to conduct the Business in
substantially the same manner as it is presently being conducted.
5.19 Customers. Schedule 5.19 sets forth: (i) a list of
the twenty largest customers of the Business, determined by
dollar volume of gross sales for the most recently ended fiscal
year (the "Large Customers"), and the dollar volume of sales to
each such customer during the most recently ended fiscal year,
and (ii) a list of the brokers and distributors of the Business
that accounted for at least $1,000,000 in sales by the Business
during the most recently ended fiscal year (the "Large Brokers"),
and the dollar volume of the sales of the Business to or through
each Large Broker during the most recently ended fiscal year.
Except as described on Schedule 5.19 as of the date hereof, to
the Knowledge of Fort James, no Large Customer or Large Broker
has terminated, or given notice that it intends to terminate,
its existing relationship with any Person within the FJ Group.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Fort James that:
6.1 Organization; Qualification. Each Buyer is a
corporation duly organized, validly existing and in good
standing under the laws of Delaware, in the case of GPC, and
Colorado, in the case of ACX. Each Buyer has the corporate
power and authority to own all of its properties and assets
and to carry on its business as it is now being conducted and
as is contemplated to be carried on hereunder. Each Buyer is
duly qualified and in good standing to do business in each
jurisdiction in which the property owned, leased or operated
by it or the nature of the Business makes such qualification
necessary except in those jurisdictions where the failure to
be duly qualified and in good standing would not have a
material adverse effect on such Buyer.
6.2 Authority Relative to this Agreement and the Related
Agreements. Each Buyer has the corporate power and authority to
execute and deliver this Agreement and the Related Agreements to
which it is contemplated to be a party and to consummate the
transactions contemplated on its part hereby and thereby. The
execution and delivery by each Buyer of this Agreement and the
Related Agreements to which it is a party and the consummation by
each Buyer of the transactions contemplated on its part hereby
and thereby, have been duly authorized by its Board of Directors
and no other corporate proceedings on its part are necessary with
respect thereto. This Agreement constitutes, and any Related
Agreement to which a Buyer is a party, when executed and
delivered by it will constitute, the valid and binding obligation
of such Buyer, enforceable in accordance with its terms.
6.3 Non-Contravention. Except as set forth in Schedule 6.3
hereto, the execution and delivery by each Buyer of this
Agreement do not, and its execution and delivery of any Related
Agreements to which such Buyer is a party and the consummation of
the transactions contemplated hereby and thereby will not (a)
violate or result in a breach of any provision of such Buyer's
Articles of Incorporation or Bylaws, (b) result in a default (or
give rise to any right of termination, cancellation or
acceleration) under the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, agreement, lease or
other instrument or obligation to which such Buyer is a party or
by which such Buyer may be bound, or (c) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to
Buyer (other than any applicable "bulk sales" laws).
6.4 Consents and Approvals. Except for applicable filings
under the HSR Act or as set forth in Schedule 6.3 hereto, there
is no requirement applicable to either Buyer to make any filing
with, or to obtain any permit, authorization, consent or approval
from, any third party (including any Authority) as a condition to
the consummation of the transactions contemplated by this
Agreement.
6.5 Litigation. There are no actions, suits, claims,
investigations or proceedings (legal, administrative or
arbitrative) pending or threatened against either Buyer, whether
at law or in equity and whether civil or criminal in nature
before any federal, state, municipal or other court, arbitrator,
governmental department, commission, agency or instrumentality,
nor are there any judgments, decrees or orders of any such court,
arbitrator, governmental department, commission, agency or
instrumentality outstanding against either Buyer which have, or,
if adversely determined, could be reasonably expected to have, a
material adverse effect on such Buyer's ability to consummate the
transactions contemplated hereunder, or which seek specifically
to prevent, restrict or delay the consummation of the transaction
as contemplated hereby or the fulfillment of any of the
conditions of this Agreement.
6.6 Availability of Funds. Buyer has, or will have prior
to the Closing, sufficient cash, available lines of credit or
other sources of immediately available funds to enable it to
consummate the transactions contemplated by this Agreement.
Buyer has provided to Fort James copies of binding commitment
letters with respect to the financing required for the
transaction.
6.7 Finders. Except for Donaldson, Lufkin & Jenrette, no
broker, finder or investment banker is entitled to any fee or
commission from Buyer for services rendered on behalf of Buyer in
connection with the transactions contemplated by this Agreement.
ARTICLE VII
ADDITIONAL AGREEMENTS
7.1 Conduct of Business and Management of Assets. From and
after the date hereof and until the Closing, Fort James shall use
reasonable commercial efforts (a) to conduct the Business in the
ordinary course of business consistent with past practice; (b) to
preserve intact the present business organization and operations
of the Business; (c) to keep available the services of its
employees and (d) to preserve its relationships with licensors,
suppliers, dealers, customers and others having business
relationships with the Business.
7.2 Forbearances by Fort James. Except as specifically
contemplated by this Agreement, Fort James shall not, and shall
cause each Person within the FJ Group, from the date hereof until
the Closing, without the written consent of Buyer (not to be
unreasonably withheld), not to:
(a) sell, dispose of, transfer or encumber any of the
Assets except in the ordinary course of business;
(b) make any significant acquisition of assets other than
in the ordinary course of business;
(c) amend, modify or cancel any Listed Contract, Lessee
Lease or Lessor Lease except in accordance with its terms;
(d) enter into any employment, severance, compensation or
similar agreements with any Business Employee other than in the
ordinary course of business or as may be required by law or
existing contractual arrangements;
(e) increase the compensation of, or benefits payable to,
Business Employees other than in the ordinary course of business
or as may be required by law or existing contractual
arrangements;
(f) change the assumptions underlying or the methods of
calculating any bad debt, contingency, or other reserve relating
to the Business;
(g) dispose of or permit to lapse any right to the
possession, use or enjoyment of any Business Intellectual
Property or dispose of or disclose to any person not authorized
to have such information any Non-Filed Business Intellectual
Property or other confidential Business Intellectual Property;
(h) incur any long term indebtedness that would be required
hereunder to be assumed by Buyer;
(i) enter into or renew any collective bargaining or labor
agreement (oral and legally binding or written) with respect to
the Business, except with respect to the agreement with the
Paperworkers and Allied Chemical Workers Union AFL-CIO Local No.
1010, which relates to the Paperboard Packaging Group in
Kalamazoo, Michigan and is due to expire in July 1999 which Fort
James will negotiate in good faith to renew as heretofore agreed
by Buyer, it being understood that if Fort James makes such an
offer of renewal and negotiates in good faith, any failure by
such union to agree to such renewal shall not result in a breach
by Fort James of any representation, covenant or closing
condition hereunder;
(j) cancel or reduce any insurance coverage relating to the
Assets, unless such coverage is replaced; or
(k) agree, so as to legally bind Buyer whether in writing or
otherwise, to take any of the actions set forth in this Section
7.2 and not otherwise permitted by this Agreement.
7.3 Mail Received After Closing. Following the Closing,
Buyer may receive and open all mail addressed to any Person
within the FJ Group and may deal with the contents thereof in
its discretion to the extent that such mail and the contents
thereof relate to the Business. Buyer shall deliver or cause to
be delivered to Fort James, promptly after receipt by Buyer, all
mail, including, without limitation, payments of accounts or
claims receivable, addressed to any Person within the FJ Group
which does not relate to the Business.
7.4 Retention of Books and Records. Buyer will retain and
maintain, in an organized and retrievable manner, all documents
and records pertaining to the periods before the Closing in
accordance with Fort James' record management policies. Buyer
will retain and maintain all machine-sensible records, such as
computer tapes, disks, diskettes, etc., which are considered
books and records within the meaning of Code Section 6001, in
accordance with Internal Revenue Procedure 91-59 or such amending
or superseding guidance as issued by the Internal Revenue
Service. Buyer will make available such documents and records,
machine sensible records, computer time, and assistance from
Buyer's personnel as may be reasonably requested by Fort James in
order to expeditiously comply with all pertinent requests from
the Internal Revenue Service and state taxing authorities which
relate to periods prior to the Closing.
7.5 Expenses. (a) Except as otherwise provided in this
Agreement, all costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses.
(b) All sales, use, transfer taxes and other non-income
taxes and any fees (including deed recordation fees and filing
fees, if any) incurred in connection with this Agreement and the
transactions contemplated hereby (the "Transfer Fees") will be
borne by Buyer. At Fort James' direction, Buyer will file all
necessary tax returns and other documents required to be filed
with respect to all such Transfer Fees. Fort James will
cooperate with Buyer to the extent reasonably necessary to enable
Buyer to make such filings and join in the execution of any tax
returns or other documents as may be required in order for Buyer
to comply with the provisions of this Section.
(c) If the transactions contemplated by this Agreement are
not consummated for any reason other than (i) a failure by Fort
James to satisfy the conditions set forth in Article IX hereof
or (ii) by mutual written consent of the parties hereto, then
within five (5) business days of the termination of this
Agreement, Buyer shall pay to Fort James by wire transfer of
immediately available funds to an account designated by Fort
James an amount equal to $20,000,000, which payment, when made,
shall be Fort James' exclusive remedy in the event of such
non-consummation.
7.6 Confidentiality. Buyer shall hold, and shall cause its
respective officers, directors, employees, representatives,
consultants and advisors (each, a "Representative"), to hold, and
Fort James shall hold, and shall cause its respective
Representatives and the Representatives of any Person within the
FJ Group to hold, in strict confidence, unless compelled to
disclose by judicial or administrative process or by other
requirements of law, all documents and information obtained by
such parties, respectively, in connection with the transactions
contemplated hereby or otherwise obtained hereunder
("Confidential Information," which term shall, after Closing,
with respect to Fort James' obligations hereunder, include
documents and information relating to the Assets) except to the
extent that such Confidential Information has been or has become
(a) generally available to the public other than as a result of
disclosure by any party hereunder or a Representative of a party
hereunder if such source is not bound by a confidentiality
agreement prohibiting such disclosure or is not entitled to the
protection offered hereby, (b) available to the public on a
nonconfidential basis from a source other than a Representative
of a party entitled to the protection offered hereby, or (c)
known to the party receiving such Confidential Information before
the date of disclosure of such Confidential Information to such
party. Nothing herein shall preclude a party or a Representative
of a party receiving Confidential Information from using and/or
disclosing information rightfully received from a third party to
the extent rightfully permitted by the third party. Nothing
contained in this Section 7.6 shall preclude the disclosure of
Confidential Information, on the condition that it remains
confidential, to auditors, attorneys, lenders, financial advisors
and other consultants and advisors in connection with the
performance of their duties in preparation for the consummation
of the transactions contemplated hereby nor shall it prevent
Buyer's disclosure after Closing of any document or information
constituting an Asset.
7.7 Public Announcements. The parties shall consult with
each other before issuing any press releases or otherwise making
any public statements with respect to this Agreement and the
transactions contemplated hereby and, subject to any applicable
disclosure requirements, no party shall issue any such press
release or make any such public statement without the consent of
the other party hereto, which consent shall not be unreasonably
withheld.
7.8 Efforts to Consummate. Subject to the terms and
conditions of this Agreement, each of the parties hereto shall
use its best efforts to take, or to cause to be taken, all action
and to do, or to cause to be done, all things necessary, proper
or advisable to consummate, as promptly as practicable, the
transactions contemplated hereby, including, but not limited to,
the satisfaction of the conditions listed in Articles IX or X
that are within the control of such party and the obtaining of
all consents, waivers, authorizations, orders and approvals of
third parties, whether private or governmental, required of it
by this Agreement. Each party shall cooperate fully with the
other party hereto in assisting such party to comply with this
Section 7.8.
7.9 Further Assurances. (a) Fort James shall use its best
efforts to implement the provisions of this Agreement, and, for
such purpose, at the request of Buyer, will, at or after the
Closing, promptly execute and deliver, or cause to be so executed
and delivered, such documents to Buyer and take such further
action as Buyer may deem reasonably necessary or desirable to
facilitate or better evidence the consummation of the
transactions contemplated hereby.
(b) Buyer shall use its best efforts to implement the
provisions of this Agreement, and, for such purpose, at the
request of Fort James, will, at or after the Closing, promptly
execute and deliver, or cause to be so executed and delivered,
such documents to Fort James and take such further action as
Fort James may deem reasonably necessary or desirable to
facilitate or better evidence the consummation of the
transactions contemplated hereby.
7.10 Use of Fort James Name. As soon as practicable after
the Closing, Buyer (a) shall remove all names, logos or marks
which include the words "Fort James" or "James River" or the
letters "FJ" or "JR" ("Fort James Corporate Designations") from,
or render the same illegible on, all Assets on which such Fort
James Corporate Designations are imprinted or legible or (b)
shall discontinue use of any asset described in clause (a)
bearing Fort James Corporate Designations. Notwithstanding the
foregoing, Buyer shall be permitted to use the Fort James
Corporate Designations with respect to Inventory constituting
finished goods on which a Fort James Corporate Designation is
imprinted or affixed at the Closing until such Inventory is sold.
After such Inventory has been sold, Buyer shall have no rights
to use the Fort James Corporate Designations. Buyer undertakes
to use reasonable best efforts to sell such Inventory within
12 months after the Closing. At the end of such period referred
to in the preceding sentence (or upon completion of the removal,
rendering illegible or discontinuance of the Fort James Corporate
Designations and variations thereof described above, whichever
occurs sooner), an executive officer of Buyer shall notify Fort
James that (a) all such Inventory has been sold or destroyed; or
(b) such removal, rendering illegible or discontinuance has been
completed. Except as expressly permitted by this Section 7.10,
neither Buyer nor any of its respective Affiliates shall use the
Fort James Corporate Designations or any similar mark or name.
7.11 No Solicitation of Employees. (a) For a period of one
year after the Closing, neither party nor any Representative of
such party shall, in any manner, directly or indirectly, (i)
solicit any employee of the other party or any Affiliate of the
other party to terminate his or her employment with such party or
its Affiliate, or (ii) otherwise recruit or encourage any such
employee to become, or hire any such employee as, an employee of,
or a consultant to, the party bound hereby.
(b) As promptly as practicable after the Closing, Buyer
shall use its best efforts to advise the appropriate Subsidiaries
and Representatives of Buyer (including the department heads and
human resources personnel) of its obligations set forth in this
Section 7.11.
(c) Notwithstanding clauses (a) and (b) of this Section
7.11, no party hereto shall be restricted from soliciting for
employment any employee of any other party hereto who has left
the employment of such other party other than as a result of
the breach of this Section 7.11 by any party hereto.
7.12 Antitrust Filings. (a) Fort James and Buyer shall
each (i) take promptly all actions necessary to make the filings
required of it or any of its Affiliates under the applicable
Antitrust Laws, (ii) comply at the earliest practicable date with
any request for additional information or documentary material
received by it or any of its Affiliates from the Federal Trade
Commission or the Antitrust Division of the Department of Justice
pursuant to the Antitrust Improvements Act and (iii) cooperate in
connection with any filing under applicable Antitrust Laws and in
connection with resolving any investigation or other inquiry
concerning the transactions contemplated by this Agreement
commenced by any of the Federal Trade Commission, the Antitrust
Division of the Department of Justice or the Attorney General of
any state.
(b) Fort James and Buyer shall each use all best efforts to
resolve such objections, if any, as may be asserted with respect
to the transactions contemplated by this Agreement under any
Antitrust Law. If any administrative, judicial or legislative
action or proceeding is instituted or threatened to be instituted
challenging the transactions contemplated by this Agreement as
violative of any Antitrust Law, each party hereto shall cooperate
to contest and resist any such action or proceeding, and to have
vacated, lifted, reversed or overturned any decree, judgment,
injunction or other order (whether temporary, preliminary or
permanent) that is in effect and that restricts, prevents or
prohibits consummation of the transactions contemplated by this
Agreement, including, without limitation, by pursuing all
reasonable avenues of administrative and judicial appeal.
(c) Fort James and Buyer shall each promptly inform the
other party of any material communication made to, or received
by such party from, the Federal Trade Commission, the Department
of Justice or any other governmental or regulatory authority
regarding any of the transactions contemplated hereby.
7.13 Title Matters. (a) Fort James and Buyer will, as soon
as practicable after the execution and delivery of this Agreement,
cause, to be issued one or more title commitments (whether one or
more, the "Title Commitment") for policies of owner's title
insurance with respect to the Real Property (the "Real Property
Title Commitment") and policies of leasehold title insurance with
respect to the Major Leases (the "Major Leases Title Commitment")
and current surveys and will cause to be made ALTA surveys. Fort
James and Buyer shall each bear 50% of the cost of the Title
Commitment and ALTA surveys. Buyer shall procure and pay
premiums for such title insurance as it requires. At Buyer's
request, the Closing may be postponed until the date that is 15
days after the later of the date hereof or the date of the
delivery to Buyer of the Real Property Title Commitment together
with copies of all recorded documents listed as title exceptions
in the Real Property Title Commitment (collectively, the "Real
Property Title Package"). Within 5 days of the later of the date
hereof or the date of the delivery to Buyer of the Real Property
Title Package, Buyer shall notify Fort James of any title matter
reflected in the Real Property Title Commitment that constitutes
a breach of the representation set forth in Section 5.10 (any
such title matter being a "Title Defect").
(b) At Buyer's request, Closing may be postponed until the
date that is 15 days after Fort James' delivery to Buyer of the
Major Leases Title Commitment, together with copies of all
recorded documents listed as title exceptions in the Major Leases
Title Commitment (collectively, the "Major Leases Title Package").
Within 5 days of Fort James' delivery to Buyer of the Major
Leases Title Package, Buyer shall notify Fort James of any title
matter reflected in the Major Leases Title Commitment that
constitutes a breach of the representation set forth in Section
5.10 (any such title matter being a "Title Defect").
(c) Within 5 days of receiving notice from Buyer of any
Title Defect, Fort James shall notify Buyer, with respect to
each such Title Defect, whether Fort James has elected to
(i) cure such matter or otherwise cause the same to be deleted
from, or insured over in, the Title Commitment, (ii) pay to Buyer
the amount by which the value of the Real Property is diminished
as a result of the existence of such Title Defect at Closing (or
as soon thereafter as the amount can be established, the parties
hereby agreeing to enter into an appropriate agreement at
Closing relating to the establishment of such amount by reference
to the conclusion of qualified real estate appraisers if Fort
James elects to make such payment in respect of any Title Defect
and the parties cannot agree by Closing as to the amount of such
diminution in value); or (iii) take no action with respect to
such Title Defect; provided Fort James shall be required to
remove any lien which is not a Permitted Exception securing a
monetary obligation which can be removed by the payment of money
the amount of which is ascertainable from the face of the
document or which has been determined in writing from the holder
of such obligation. If Buyer does not deliver written notice of
its objections to any Title Defect within the time specified
above for such notice, Buyer shall be deemed to have waived all
rights it may have against Fort James (including the right to
refuse to consummate the transactions called for in this
Agreement or the right otherwise to claim breach of the
representation set forth in Section 5.10) with respect to such
Title Defect. If Fort James fails to respond, within the time
set forth above, to any objection to Title Defects timely
delivered by Buyer as set forth above, Fort James shall be deemed
to have elected to respond as set forth in subsection (ii) above
with respect to such Title Defect. If Fort James elects to
respond as set forth in subsection (iii) above with respect to
one or more Title Defects, Buyer may terminate this Agreement by
delivering notice of its election to do so within two days of
Fort James' delivery of its notice to Buyer that Fort James has
elected to take no action with respect to the Title Defect(s) at
issue. If Buyer does not deliver written notice of its election
to terminate this Agreement within the time specified above for
such notice, Buyer shall be deemed to have waived all rights it
may have against Fort James with respect to Title Defects
disclosed in the Title Commitment (including the right to refuse
to consummate the transactions called for in this Agreement or
the right otherwise to claim breach of the representations set
forth in Section 5.10 or breach of this Section).
7.14 Tax Matters. (a) Buyer will be responsible for the
preparation and filing of all federal, state and local franchise,
property, payroll, and other non-income tax returns, arising with
respect to the operation of the Business and the ownership of the
Assets for all periods after the date of Closing. Buyer will
make all payments required with respect to any such tax returns.
(b) Fort James and Buyer shall allocate the Purchase Price
(including, for purposes of this Section, any other consideration
paid by Buyer and any Assumed Liabilities) among the Assets in
the manner set forth on Schedule 7.14 (the "Allocation
Schedule"). Fort James and Buyer each agrees to file Internal
Revenue Service Form 8594 and any required attachments thereto,
together with all federal, state, local, and foreign tax returns,
in accordance with the Allocation Schedule. Fort James and Buyer
each agrees to provide the other promptly with any other
information required to update the Allocation Schedule at or
after the Closing as described in the Allocation Schedule.
7.15 Access to Assets and Business Employees. From the date
hereof until Closing or the earlier termination or expiration of
this Agreement, Fort James shall provide Buyer, Buyer's
accountants, representatives, and prospective lenders, with
reasonable opportunities to further investigate the Assets and
interview Business Employees during normal business hours upon
reasonable prior notice from Buyer, for reasonable purposes,
including the preparation of audited financial statements of the
Business and lenders' due diligence, provided that no such
investigations or interviews shall unreasonably interfere with
the operation of the Business or Fort James' other business.
7.16 Substitute Letters of Credit; Guarantees. Effective as
of the Closing, Buyer shall procure substitute letters of credit,
and shall cause itself to be substituted in all respects for any
member of the FJ Group with respect to, the letter of credit and
guarantees listed in Schedule 7.16.
7.17 Consents and Approvals. Except for any consents,
waivers, authorizations or approvals the failure of which to
obtain would not have a Fort James Material Adverse Effect, Fort
James shall use its best efforts to obtain all necessary consents,
waivers, authorizations and approvals of all Authorities and of
all other Persons reasonably required in connection with the
execution, delivery and performance by it of this Agreement,
including but not limited to, consents to assign (a) the Listed
Contracts, (b) the Lessee Leases and (c) all other contracts and
commitments to the extent the same relate exclusively to the
Business. In the event that any Listed Contract or Lessee Lease
is not transferable to Buyer, Fort James shall use commercially
reasonable efforts to maintain such Listed Contract or Lessee
Lease for the benefit of Buyer, provided that Buyer shall be
responsible for performing Fort James' obligations under any such
Listed Contract or Lessee Lease. Fort James shall use reasonable
efforts to assign to Buyer the Microsoft licenses exclusively
related to the Business, it being understood that Fort James
shall not be required to incur any cost or expense in connection
therewith.
7.18 Negotiations. For a period of 75 days from and after
the date hereof, no Person within the FJ Group, nor their
officers or directors nor anyone acting on behalf of any Person
within the FJ Group or such persons shall, directly or
indirectly, encourage, solicit, engage in discussions or
negotiations with, or provide any information to, any person,
firm, or other entity or group (other than Buyer or its
representatives) concerning any merger, sale of substantial
assets, purchase or sale of shares of capital stock or similar
transaction involving the Business or any other transaction
inconsistent with the transactions contemplated hereby.
7.19 Audited Financial Statements. Fort James will use
reasonable efforts to prepare and deliver to Buyer audited pro
forma balance sheets and pro forma statements of income as of
December 27, 1998 and December 28, 1997, and for each of the
three fiscal years in the period ended December 27, 1998, which
statements shall reflect the Business as it is proposed to be
transferred hereunder.
7.20 Year 2000 Compliance Program. Fort James shall continue
through the Closing Date the implementation, in accordance with
the capital plan, of its existing program with respect to Year
2000 compliance in connection with the Business.
ARTICLE VIII
BUSINESS EMPLOYEE AND EMPLOYEE BENEFIT MATTERS
8.1 Business Employees. For purposes of this Article VIII,
"Business Employees" are hereby defined as follows:
(a) all persons actively employed by Fort James or any
member of the FJ Group in the Business immediately before Closing;
(b) all employees of Fort James or any member of the FJ
Group (i) who are (A) absent from work with the Business on account
of sickness (other than employees who are, as of the Closing Date,
on long-term disability or have been approved by the carrier for
long-term disability) or leave of absence at Closing and (B)
released to return to work (and actually return to work) their
regularly scheduled number of hours within 12 weeks from the day
such employee left active employment or commenced working a
reduced schedule or (ii) for whom an obligation to recall, rehire
or otherwise return to employment exists under an Assumed
Collective Bargaining Agreement; and
(c) all employees of Fort James or any member of the FJ
Group who would not otherwise be employed in the Business
immediately before the Closing but who, with the mutual consent
of Fort James and Buyer, become employees of the Business at or
before the Closing.
8.2 Employment. (a) Effective as of the Closing Date,
Buyer shall make an offer of initial employment to each Business
Employee at the same base salary and on substantially the same
other terms and conditions as in effect immediately prior to
Closing. For purposes of the preceding sentence, in order for
an offer of employment to a given Business Employee to be made
on "substantially the same other terms and conditions," it shall
also be required to be made for employment at the same location
as that where the particular Business Employee is employed as of
Closing, except that the Business Employees employed at
Deerfield, Illinois and Neenah, Wisconsin may, instead, be
offered employment at Golden, Colorado, or another headquarters,
research and development or divisional office facility of Buyer
or the Business. Buyer's employment of those Business Employees
who accept offers of employment shall be deemed to commence on
the Closing Date. Those Business Employees who accept such
offers of employment shall be referred to herein as the
"Transferred Employees."
(b) After the Closing, Fort James shall not be responsible
for wages, salaries and other employee benefits for Transferred
Employees for service (including deemed service) of such
Transferred Employees with the Buyer after the Closing; it being
understood that Buyer shall be responsible for paying or
providing (or reimbursing Fort James for the cost of paying or
providing) any wages, salaries and other employee benefits to all
Transferred Employees, including those employees described in
Section 8.1(b)(i) above, for all periods following the Closing
Date. For purposes of this Article VIII, all persons described
above who are compensated on an hourly basis or who have been or
are subject to a collective bargaining agreement shall be
referred to as "Hourly Business Employees," and all persons
described above who are compensated on a salaried basis (or a non-
union hourly basis) shall be referred to as "Salaried Business
Employees." Prior to execution of this Agreement, Fort James has
provided Buyer with a preliminary list of Business Employees, and
Fort James and Buyer will agree on a final list of Business
Employees prior to the Closing, based upon new employees hired by
the Business and departures of employees of the Business prior to
Closing, and upon mutually agreed additions and deletions to such
list. Fort James shall cooperate with Buyer and Fort James shall
provide information reasonably requested by Buyer in order to
enable Buyer to hire the Transferred Employees and enroll the
Transferred Employees in Buyer's benefit plans.
8.3 Employee Benefits. (a) Subject to the other
provisions of this Article VIII, Buyer agrees that for a period
of at least one year after the Closing Date (the "Window Period")
it will (i) provide all Transferred Employees with severance
benefits at least as favorable as those provided to such
Transferred Employees immediately prior to the Closing Date;
(ii) provide all Transferred Employees who were Salaried Business
Employees ("Transferred Salaried Employees") with medical and
other welfare benefits no less favorable than those provided to
such Transferred Salaried Employees immediately prior to the
Closing Date; (iii) provide Transferred Salaried Employees with
a wage and salary program no less favorable than that in place
at the Business immediately prior to the Closing Date;
(iv) provide all Transferred Salaried Employees with other
compensation and benefits no less favorable in the aggregate than
the compensation (including incentive compensation) and benefits
provided to such Transferred Salaried Employees immediately prior
to the Closing Date; and (v) provide Transferred Employees who
were Hourly Business Employees ("Transferred Hourly Employees")
covered under the Assumed Collective Bargaining Agreements (as
hereinafter defined), such compensation and benefits as are from
time to time required by such collective bargaining agreements.
In addition, Buyer agrees to give all Transferred Employees
service credit for all periods of employment with Fort James or
any member of the FJ Group prior to the Closing Date for all
purposes under any plan adopted or maintained by Buyer or any of
its Subsidiaries in which Transferred Employees participate.
Buyer agrees to waive any limitations regarding pre-existing
conditions for medical coverage under any medical plan in which
Transferred Employees participate, and to give full credit during
calendar year 1999 for any copayments made and deductibles fully
or partially satisfied prior to the Closing with respect to
Employee Plans, under any welfare or other employee benefit plans
maintained by Buyer or any of its Subsidiaries in which
Transferred Employees participate after the Closing. Subject to
paragraph (d) hereof, from and after the Closing Date, Buyer
shall be solely responsible for all termination and severance
benefits, costs, charges and liabilities of any nature incurred
with respect to (A) a Transferred Employee on or after the
Closing, including, without limitation, any claims arising out of
or relating to any plant closing, mass layoff, termination or
similar event under applicable law occurring on or after the
Closing and (B) any Business Employee who does not become a
Transferred Employee and with respect to whom Buyer's failure to
comply with the employment offer requirements of Section 8.2(a)
results in such Business Employee being able to claim a
termination or severance benefit.
(b) Buyer shall be responsible for the administration of
and shall assume any and all obligations, if any, arising under
the continuation coverage requirements of Section 4980B of the
Code and Part 6 of Title I of ERISA with respect to the Trans-
ferred Employees and their beneficiaries who are eligible to
exercise their rights to such coverage as of or following the
Closing Date.
(c) Except as provided in Section 8.5 hereof, as of the
Closing Date, the Business Employees shall cease active parti-
cipation in each Employee Plan and no additional benefits shall
be accrued thereunder for such employees. Except as provided
hereunder, Fort James shall retain all assets and liabilities
under such Employee Plans for Business Employees.
(d) Buyer shall not be responsible for assuming any
employment agreements with the Transferred Employees, and Fort
James shall retain liability for any severance benefits due
under such employment agreements.
(e) As of the Closing Date, Buyer shall designate or
establish for the benefit of Transferred Employees a
medical and dependent care expense reimbursement program
(the "Buyer FSA Plan") substantially similar to the Fort
James Flexible Spending Accounts program (the "FJ FSA
Plan"). Fort James shall transfer the assets (up to the
maximum aggregate limit for claims under the Buyer FSA
Plan) withheld from the Transferred Employees' paychecks
during calendar year 1999 through the Closing Date less
any reimbursements properly made to such Transferred
Employees for calendar year 1999 expenses under the FJ
FSA Plan. With respect to the remainder of the calendar
year following the Closing, Buyer shall honor and execute
under the Buyer FSA Plan the payroll deduction elections
effective for each Transferred Employee under the FJ FSA
Plan as of the Closing Date and shall pay claims made by
such Transferred Employee under the terms of the Buyer
FSA Plan, without regard to when the claims arose.
8.4 Assumption of Liabilities. Except as specifically
provided otherwise in this Article VIII, at Closing, Buyer
shall assume all employee-related liabilities and obligations
that are payable at or after the Closing Date with respect to
Business Employees and their beneficiaries and dependents,
without regard to when such liabilities and obligations
arose; provided, however, that Buyer, except as specifically
provided otherwise in this Article VIII (including, without
limitation, the last sentence of Section 8.3(a)), shall not
assume any liabilities or obligations that are payable prior
to, at or after the Closing with respect to any employee
benefit plans that are maintained by Fort James or its
Affiliates, or with respect to Business Employees who do not
become Transferred Employees.
8.5 Collective Bargaining Agreements. (a) At Closing,
Buyer shall adopt and assume the collective bargaining agreements
listed on Schedule 8.5(a) (the "Assumed Collective Bargaining
Agreements"). At and after the Closing, any obligations that may
be payable under the Assumed Collective Bargaining Agreements,
with respect to Hourly Business Employees, regardless of whether
such obligations relate to services performed before or after the
Closing, shall be the sole responsibility of Buyer.
(b) With respect to each multiemployer plan that is listed
on Schedule 8.5(b) and that covers Hourly Business Employees,
Fort James and Buyer agree as follows, in accordance with the
provisions of Section 4204 of ERISA:
(i) Buyer hereby assumes, effective at Closing, the
obligation of any Person within the FJ Group to contribute
to each such multiemployer plan for such Hourly Business
Employees.
(ii) Buyer shall provide to each such multiemployer
plan the bond or escrow amount described in Section
4204(a)(1)(B) of ERISA, unless the bond or escrow amount
is waived by the PBGC.
(iii) The parties agree that, unless the PBGC waives
the requirements of Section 4204(a)(1)(C) of ERISA, if
Buyer withdraws from any such multiemployer plan in a
withdrawal described in Section 4204(a)(1)(C) of ERISA
with respect to the Business during the first five plan
years beginning after Closing and does not pay its
liability to the multiemployer plan on account of such
withdrawal, Fort James shall be secondarily liable to the
multiemployer plan for any withdrawal liability that any
Person within the FJ Group would have had to the plan with
respect to the Hourly Business Employees in the absence of
Section 4204(a) of ERISA, to the extent required by
Section 4204 of ERISA. Notwithstanding the provisions of
the preceding sentence and Section 4204 of ERISA, it is
hereby expressly agreed that if any Person within the FJ
Group incurs any secondary withdrawal liability under the
preceding sentence, Buyer shall indemnify Fort James and
hold it harmless from any and all Losses incurred by any
such Person within the FJ Group by reason of such
secondary liability.
As soon as is practicable after Closing, Fort James and Buyer
shall request from the PBGC an exemption from the requirements of
Section 4204(a)(1)(B) and 4204(a)(1)(C) of ERISA.
8.6 Pension Plan for Salaried Business Employees. Buyer
shall not assume any of Fort James' rights and obligations with
respect to the Fort James Corporation Pension Plan for Salaried
and Other Non-Bargaining Unit Employees. As of the Closing, the
Business Employees shall cease active participation in such plan
and no additional benefits shall accrue thereunder. Fort James
shall retain all assets and liabilities under such plan.
8.7 401(k) Plan. (a) Effective as of the Closing, Buyer
shall establish a defined contribution plan and trust (or amend
an existing defined contribution plan) for Transferred Employees
(which for a period of at least one year following Closing shall
be generally comparable to the Fort James 401(k) Plan (the "FJ
401(k) Plan")) and which shall be qualified under Sections 401
and 501 of the Code and which shall provide for salary reduction
contributions pursuant to Section 401(k) of the Code ("Buyer's
DC Plan"). Buyer's DC Plan shall provide that each Transferred
Employee shall be given credit under Buyer's DC Plan, for
purposes of determining eligibility to participate, eligibility
for benefits, benefit calculations, benefit forms and vesting,
for the Transferred Employee's service with Fort James, or any
member of the FJ Group and each of their predecessor companies,
to the extent that the FJ 401(k) Plan gave credit for such
service. If the Buyer amends one or more existing defined
contribution plans, the Buyer shall ensure that all "section
411(d)(6) protected benefits" (as defined in Treasury Regulation
1.411(d)-4) provided by the FJ 401(k) Plan are preserved in the
amended existing, defined contribution plan. From and after the
Closing, Transferred Employees shall not accrue additional
benefits under defined contribution plans maintained by Fort
James or its Affiliates.
(b) Assets of the FJ 401(k) Plan equal to the account
balances of the Transferred Employees under the FJ 401(k) Plan
shall be transferred to Buyer's DC Plan as soon as practicable
after the Closing. If practicable, the transfer shall be made
as of the last day of the first calendar quarter ending after the
Closing. The transfer shall be made in kind, and Buyer shall
cause the Buyer's DC Plan to continue to maintain an investment
fund for Fort James common stock for such Transferred Employees;
provided, that Buyer's DC Plan may provide that (i) no new
contributions to Buyer's DC Plan shall be invested in such
investment fund and (ii) any portion of the account balance of a
Transferred Employee that is transferred out of such investment
fund may not be reinvested in the investment fund. Any
outstanding plan loans to Transferred Employees shall be
transferred with the underlying accounts. The account balances
of the Transferred Employees shall be valued as of the date on
which the transfer is made. The account balances of Transferred
Employees in the FJ 401(k)Plan shall share in the earnings,
appreciation and depreciation of the investment funds in which
the accounts are invested for the period between the Closing and
the date on which the transfer is made.
(c) Any benefits that are payable to Transferred Employees
from the FJ 401(k) Plan after the Closing and before assets are
transferred shall be paid from the FJ 401(k) Plan in the ordinary
course. The amount to be transferred to Buyer's DC Plan shall be
reduced by the amount of such payments.
(d) The account balances to be credited under Buyer's DC
Plan for Transferred Employees shall not be less than the account
balances of the Transferred Employees under the FJ 401(k) Plan as
of the date on which the transfer is made. Effective on the date
of the transfer of FJ 401(k) Plan assets, (i) Buyer's DC Plan
shall assume all liabilities in connection with the account
balances of Transferred Employees under the FJ 401(k) Plan, and
(ii) Fort James, its Affiliates and the FJ 401(k) Plan shall have
no further liability with respect to the account balances of
Transferred Employees. Fort James and its Affiliates shall have
no liability with respect to Buyer's DC Plan.
(e) Buyer shall request that the Internal Revenue Service
issue a favorable determination letter with respect to the
qualification under Sections 401 and 501 of the Code of Buyer's
DC Plan and the related trust. Buyer shall make such changes to
Buyer's DC Plan as may be required by the Internal Revenue
Service in order for the Internal Revenue Service to issue a
favorable determination letter. Buyer shall provide Fort James
with a copy of the determination letter received from the
Internal Revenue Service with respect to Buyer's DC Plan as soon
as the determination letter is received.
(f) The transfer under this Section 8.7 shall not take
place until Buyer has delivered to Fort James either (i) a copy
of a determination letter from the Internal Revenue Service to
the effect that the Buyer's DC Plan is qualified under Section
401(a) of the Code, together with documentation reasonably
satisfactory to Fort James of the due adoption of any amendments
to the Buyer's DC Plan required by the Internal Revenue Service
as a condition to such qualification and certification from the
Buyer that no events have occurred that would adversely affect
the continued validity of such determination letter (apart from
the enactment of any Federal law for which the remedial
amendment period under Section 401(b) of the Code has not yet
expired), or (ii) an opinion of outside counsel reasonably
satisfactory in form and substance to Fort James that the
Buyer's DC Plan is qualified under Section 401(a) of the Code
as of the date of transfer, and Fort James has delivered to the
Buyer either (A) a copy of a determination letter from the
Internal Revenue Service to the effect that the FJ 401(k) Plan
is qualified under Section 401(a) of the Code, together with
documentation reasonably satisfactory to the Buyer of the due
adoption of any amendments to the FJ 401(k) Plan required by
the Internal Revenue Service as a condition to such
qualification and a certification from Fort James that no
events have occurred that would adversely affect the continued
validity of such letters (apart from the enactment of any
Federal law for which the remedial amendment period under
Section 401(b) of the Code has not yet expired), or (B) an
opinion of outside counsel reasonably satisfactory in form and
substance to the Buyer that the FJ 401(k) Plan is qualified
under Section 401(a) of the Code as of the date of transfer.
8.8 Pension Plan For Hourly Business Employees.
(a) Effective as of the Closing Date, Buyer shall
establish a new defined benefit pension plan, and/or amend an
existing defined benefit pension plan ("Buyer's Pension Plan"),
to provide the benefits described in this Section 8.8. From
and after the Closing Date, Buyer's Pension Plan shall cover
at least those Transferred Employees who, as of the Closing
Date, are active participants in the JR II Retirement Plan
(the "FJ Pension Plan"). Such Transferred Employees are
referred to hereinafter as the "Transferred Pension
Participants."
(b) Effective as of the date of the asset transfer
contemplated by this Section 8.8, Buyer shall assume under
Buyer's Pension Plan all liability and responsibility for
the provision of the accrued pension benefits for and on
behalf of the Transferred Pension Participants and for
the eligible surviving spouses and/or other contingent
beneficiaries of such Transferred Pension Participants,
which liability and responsibility had been the obligation
of Fort James prior to the date of the asset transfer
contemplated in this Section 8.8. Fort James shall retain
all liability and responsibility, under the applicable
pension plans, for participants in the FJ Pension Plan who
are not Transferred Employees, and for the eligible
surviving spouses and/or other contingent beneficiaries of
such participants.
(c) Buyer's Pension Plan with respect to all Transferred
Pension Participants shall be governed by the applicable
collective bargaining agreements. For each Transferred Pension
Participant, Buyer's Pension Plan shall recognize periods of
employment by, and compensation from, Fort James and its
Affiliates and any predecessors of such entities, as employment
by, and compensation from, Buyer for all purposes under Buyer's
Pension Plan, to the extent recognized under the FJ Pension
Plan.
(d) In conjunction with the establishment and/or amendment
of Buyer's Pension Plan, Buyer as of the Closing Date shall, to
the extent necessary, establish, or amend, a funding arrangement
for Buyer's Pension Plan through a qualified trust under Section
501 of the Code. Such funding arrangement shall be referred to
hereinafter as "Buyer's Pension Trust." The Fort James qualified
pension trust shall be referred to hereinafter as "FJ's Pension
Trust."
(e) As soon as practicable after the later of (i) the
Closing Date, and (ii) the final determination of the Transfer
Amount (as hereinafter defined) pursuant to Sections 8.8(f) and
(g), Fort James shall direct the trustee of FJ's Pension Trust to
transfer to Buyer's Pension Trust, in cash, the amount of assets
(the "Transfer Amount") of FJ's Pension Trust described below.
Subject to subparagraph (f) below, the Transfer Amount shall be
determined by an actuary selected by Fort James, and shall be the
amount required to be transferred with respect to the Transferred
Pension Participants to satisfy the requirements of Section
414(l) of the Code, determined as of the Closing Date (based upon
the actuarial assumptions deemed appropriate by the PBGC as of
the Closing Date under Section 414(l) of the Code for purposes of
determining the discount rate and retirement rates, and all other
actuarial assumptions used to determine accrued benefit
obligations for the last actuarial report performed for the FJ
Pension Plan prior to Closing). The transfer of the Transfer
Amount shall not take place until after the latest of (A) the
expiration of the 30-day period following the filing of any
required notices with the Internal Revenue Service pursuant to
Section 6058(b) of the Code, and (B) the date the Buyer has
delivered to Fort James either (1) a copy of a determination
letter from the Internal Revenue Service to the effect that the
Buyer's Pension Plan is qualified under Section 401(a) of the
Code, together with documentation reasonably satisfactory to Fort
James of the due adoption of any amendments to the Buyer's
Pension Plan required by the Internal Revenue Service as a
condition to such qualification and certification from the Buyer
that no events have occurred that would adversely affect the
continued validity of such determination letter (apart from the
enactment of any Federal law for which the remedial amendment
period under Section 401(b) of the Code has not yet expired), or
(2) an opinion of outside counsel reasonably satisfactory in form
and substance to Fort James that the Buyer's Pension Plan is
qualified under Section 401(a) of the Code as of the date of
transfer, and the date Fort James has delivered to the Buyer
either (1) a copy of a determination letter from the Internal
Revenue Service to the effect that the FJ Pension Plan is
qualified under Section 401(a) of the Code, together with
documentation reasonably satisfactory to the Buyer of the due
adoption of any amendments to the FJ Pension Plan required by the
Internal Revenue Service as a condition to such qualification and
a certification from Fort James that no events have occurred that
would adversely affect the continued validity of such letters
(apart from the enactment of any Federal law for which the
remedial amendment period under Section 401(b) of the Code has
not yet expired), or (2) an opinion of outside counsel reasonably
satisfactory in form and substance to the Buyer that the FJ
Pension Plan is qualified under Section 401(a) of the Code as of
the date of transfer.
(f) Fort James shall, within the period of ninety (90)
consecutive calendar days next following the date on which its
actuary has received all information from Buyer which is required
to determine, in accordance with the preceding Section 8.8(e),
the Transfer Amount, notify Buyer of the Transfer Amount, and
shall provide Buyer with a copy of the actuarial computations
relating to the determination of the Transfer Amount and all
information and data on which such calculations were based.
Buyer shall notify Fort James in writing of Buyer's agreement
with such determination, or shall submit to Fort James a written
list of points of disagreement, within a period of thirty (30)
consecutive calendar days next following the date of Buyer's
receipt of Fort James' notification. If Buyer submits to Fort
James any such written list of points of disagreement, and if
such disagreement cannot be resolved by Buyer's and Fort James'
actuaries, or otherwise to the satisfaction of Buyer and Fort
James, within the period of thirty (30) consecutive calendar days
next following the date of receipt of such list by Fort James,
then the disagreement shall be resolved by a third independent
actuary to be mutually selected by Buyer and Fort James no later
than thirty (30) consecutive calendar days after the end of the
first thirty (30) day period. The opinion of such third actuary
shall be returned to Buyer and Fort James in writing as soon as
possible thereafter, and shall be accepted by both Buyer and Fort
James as conclusive in the matter. The fees and charges of such
third actuary shall be shared equally by Buyer and Fort James.
(g) The transfer of the Transfer Amount, as finally
determined ursuant to Sections 8.8(e) and (f), from FJ's Pension
Trust to Buyer's Pension Trust, shall be completed as soon as
practicable after such final determination. The Transfer Amount:
(i) shall be increased or decreased by the rate of
return on the assets in the FJ Pension Trust (the "Rate of
Return") commencing on the date next following the Closing
Date and ending on the date immediately prior to the date
on which the Transfer Amount is so transferred (the "Asset
Transfer Date"), as applied solely to the Transfer Amount;
and
(ii) shall be decreased by the sum of the amount of any
benefit payments which are made to or on behalf of the
Transferred Pension Participants from FJ's Pension Trust
prior to the Asset Transfer Date (with such amount increased
or decreased by the Rate of Return as applied solely to the
amount of such benefit payments from the Closing Date
through the Asset Transfer Date).
(h) On and after the Closing Date, but prior to the Asset
Transfer Date, Fort James shall direct the trustee of FJ's
Pension Trust to pay benefits therefrom to or on behalf of any
Transferred Pension Participant who is, or becomes entitled to
benefits under the FJ Pension Plan on or after the Closing Date,
but prior to the Asset Transfer Date, with such payments to be
made in accordance with written instructions furnished by Buyer
to Fort James from time to time; subject, however, to Fort James'
audit and approval of the proper computation of such benefits.
8.9 Worker's Compensation. At Closing, Buyer shall assume
liability for all claims under worker's compensation laws that
are payable at or after the Closing with respect to Transferred
Employees, without regard to when the liabilities arose.
8.10 Vacation Pay. Buyer shall assume liability for all
unpaid vacation pay earned, banked or accrued by Transferred
Employees prior to the Closing. After the Closing, Fort James
shall have no liability for vacation pay for Transferred
Employees.
8.11 Welfare Plans. (a) Fort James shall retain all assets
relating to the Employee Plans that are welfare benefit plans and
shall be liable for and shall hold Buyer harmless from and
against all claims for the benefits described below by
participants of such plans which are incurred prior to the
Closing Date. For purposes of this Agreement, the following
claims shall be deemed to be incurred as follows: (i) life,
accidental death and dismemberment and business travel accident
insurance benefits, upon the death or accident giving rise to
such benefits; (ii) health, dental and/or prescription drug
benefits, on the date such services, materials or supplies were
provided; and (iii) long-term disability benefits, on the
eligibility date determined by the long-term disability carrier
for the individual.
(b) Fort James shall be liable for and shall hold Buyer
harmless from and against any retiree welfare benefits to be
provided to retirees of the Business who have actually retired
prior to the Closing Date or to the Business Employees who have
attained age 55 with 15 years of service as of the Closing Date
and are eligible for retiree welfare benefits under an Employee
Plan as of the Closing Date. Buyer shall be liable for and
shall hold Fort James harmless from and against any retiree
welfare benefits for Transferred Hourly Employees who are or
may become eligible for retiree welfare benefits pursuant to an
Assumed Collective Bargaining Agreement.
8.12 Plant Closing Laws. Buyer shall be responsible for
providing any notice required, pursuant to the United States
Federal Worker Adjustment and Retraining Act of 1988, any
successor United States federal law, and any applicable plant
closing notification law with respect to a layoff or plant
closing relating to the Business that occurs as a result of or
after the Closing. Fort James shall be responsible for
providing any such notice with respect to a layoff or plant
closing occurring prior to the Closing.
ARTICLE IX
CONDITIONS TO OBLIGATIONS OF BUYER
The obligations of Buyer to consummate the transactions
contemplated by this Agreement shall be subject, to the extent
not waived, to the satisfaction of each of the following
conditions before or at the Closing:
9.1 Representations and Warranties. Except for changes
contemplated by this Agreement, the representations and
warranties of Fort James contained in this Agreement that are
qualified by materiality shall be true, and all other such
representations and warranties shall be true and correct in all
material respects, in each case at and as of the date of this
Agreement and as of the Closing, provided that representations
and warranties made as of a specified date need be so true and
correct (as described above) only as of the specified date.
9.2 Performance of this Agreement. Fort James shall have
performed all obligations and complied with all conditions
required by this Agreement to be performed or complied with by
it before or at the Closing, to the extent not waived.
9.3 Proceedings. All corporate and other proceedings to
be taken by Fort James in connection with the transactions
contemplated hereby shall have been completed, all such
proceedings and all documents incident thereto shall be
reasonably satisfactory in substance and form to Buyer and
Buyer shall have received all such counterpart originals or
certified or other copies of such documents as Buyer may
reasonably request.
9.4 Consents and Approvals. All consents, authorizations,
orders or approvals of any Authority or Person which Fort James
is required to obtain in order to consummate the transactions
contemplated by this Agreement shall have been obtained by Fort
James and all waiting periods specified by law with respect
thereto shall have passed, other than any such consents,
authorizations, orders or approvals for which the failure to so
obtain would not have a Fort James Material Adverse Effect.
9.5 Injunction, Litigation, etc. No order of any court or
administrative agency shall be in effect which restrains or
prohibits the consummation of the transactions contemplated
hereby, nor shall there be pending any action or proceeding by
or before any Authority which is likely to prohibit, or
successfully challenge the validity of any of the transactions
contemplated by this Agreement.
9.6 Legislation. No statute, rule or regulation shall have
been enacted which prohibits or restricts the consummation of the
transactions contemplated hereby.
9.7 Related Agreements. Each Person of the FJ Group shall
have executed and delivered each of the Related Agreements to
which it is a party.
9.8 Material Adverse Change. There shall not have occurred
since March 28, 1999, any event which has resulted in a Fort
James Material Adverse Effect.
9.9 Opinion of Counsel for Fort James. Buyer shall have
received an opinion from Wachtell, Lipton, Rosen & Katz as to the
matters specified in Schedule 9.9, in form and substance
reasonably satisfactory to Buyer and its counsel.
9.10 Officer's Certificate. Buyer shall have received a
certificate, dated the Closing Date, signed by the Chief
Financial Officer of Fort James, certifying that the conditions
specified in this Article IX have been fulfilled.
9.11 Audited Financial Statements. Buyer shall have
received an audited pro forma balance sheet and pro forma
statement of income for the Business as of December 27, 1998.
ARTICLE X
CONDITIONS TO OBLIGATIONS OF FORT JAMES
The obligations of Fort James to consummate the transactions
contemplated by this Agreement shall be subject, to the extent
not waived, to the satisfaction of each of the following
conditions before or at Closing:
10.1 Representations and Warranties. Except for changes
contemplated by this Agreement, the representations and
warranties of Buyer contained in this Agreement that are
qualified by materiality shall be true, and all other such
representations and warranties shall be true and correct in all
material respects, in each case at and as of the date of this
Agreement, and as of the Closing, provided that representations
and warranties made as of a specified date need be so true and
correct (as described above) only as of the specified date.
10.2 Performance of this Agreement. Buyer shall have
performed all obligations and complied with all conditions
required by this Agreement to be performed or complied with by
it before or at the Closing, to the extent not waived.
10.3 Proceedings. All corporate and other proceedings to be
taken by Buyer in connection with the transactions contemplated
hereby shall have been completed, all such proceedings and all
documents incident thereto shall be reasonably satisfactory in
substance and form to Fort James, and Fort James shall have
received all such counterpart originals or other copies of such
documents as Fort James may reasonably request.
10.4 Consents and Approvals. All consents, authorizations,
orders or approvals of any Authority which Buyer is required to
obtain in order to consummate the transactions contemplated by
this Agreement shall have been obtained by Buyer and all waiting
periods specified by law with respect thereto shall have passed.
10.5 Injunction, Litigation, etc. No order of any court or
administrative agency shall be in effect which restrains or
prohibits the consummation of the transactions contemplated
hereby, nor shall there be pending, any action or proceeding by
or before any Authority which is likely to prohibit, or
successfully challenge the validity of any of the transactions
contemplated by this Agreement.
10.6 Legislation. No statute, rule or regulation shall
have been enacted which prohibits or restricts the consummation
of the transactions contemplated hereby.
10.7 Related Agreements. Buyer shall have executed and
delivered each of the Related Agreements to which it is to be a
named party.
10.8 Officer's Certificate. Fort James shall have
received a certificate, dated the Closing Date, signed by the
Chief Financial Officer of Buyer, certifying that the conditions
specified in this Article X have been fulfilled.
ARTICLE XI
DELIVERIES, ETC., IN CONNECTION WITH CLOSING
11.1 Time and Place of Closing. The closing (the "Closing")
shall occur as soon as practicable, but in no event later than
five business days following the satisfaction of the conditions
set forth in Articles IX and X, at the offices of Wachtell,
Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York, or
at the request of either party, such other date and place as the
parties shall agree. If the Closing takes place, the Closing and
all of the transactions contemplated by this Agreement shall be
deemed to have occurred simultaneously and become effective as of
12:01 a.m. on the date of Closing. The date on which the Closing
shall occur is referred to herein as the "Closing Date."
11.2 Deliveries by Fort James. At or before the Closing,
Fort James shall deliver to Buyer, as applicable, the following:
(a) duly executed deeds from the applicable member of the
FJ Group in recordable form which convey to Buyer title to the
Real Property, subject to Permitted Exceptions and subject to the
exceptions and exclusions contained in the Title Commitment as of
the Closing, other than any Title Defect which Fort James has
elected to cure or otherwise delete pursuant to Section
7.13(c)(i). Fort James will provide to Buyer's title insurance
company (i) customary good standing certificates and corporate
authorizations, (ii) owner's affidavits acceptable to such title
insurer to remove any exception for (A) mechanics' or
materialmens' liens and (B) rights of parties in possession, and
(iii) a gap indemnity acceptable to such title insurer for
insuring over the "gap" (i.e. the time period since the effective
date of the title company's last checkdown of title);
(b) a bill of sale and such other document or documents
(suitable for filing, registration or recording, if applicable)
as are necessary to transfer to Buyer the Assets other than the
Real Property, which transfer documents shall be without recourse
and shall contain no representations or warranties;
(c) evidence that all of the proceedings contemplated by
Section 9.3 have been completed;
(d) copies of any consents obtained as contemplated by
Section 9.4;
(e) certificates from the State Corporation Commission of
Virginia evidencing the good standing of Fort James in the
Commonwealth of Virginia as of a recent date;
(f) each of the Related Agreements executed by the Person
of the FJ Group that is a party thereto; and
(g) such additional documents as Buyer may reasonably
request.
11.3 Deliveries by Buyer. At or before the Closing, Buyer
shall deliver to Fort James, as applicable, the following:
(a) the Purchase Price pursuant to Section 3.1;
(b) a duly executed assumption of the Assumed Liabilities;
(c) evidence that all of the proceedings contemplated by
Section 10.3 have been completed;
(d) copies of any consents obtained as contemplated by
Section 10.4;
(e) certificates from the Secretary of State of the States
of Delaware and Colorado as to the good standing of each Buyer in
such State as of the most recent date obtainable;
(f) each of the Related Agreements duly executed by the
Buyer; and
(g) such additional documents as Fort James may reasonably
request.
11.4 Deliveries of Related Agreements. At or before the
Closing, each of the parties to each Related Agreement shall
deliver an executed copy of such Agreement to the other parties
thereto.
ARTICLE XII
INDEMNIFICATION
12.1 Indemnification by Fort James. (a) Subject to the
limitations contained in this Article XII, effective upon the
Closing, Fort James shall indemnify and hold Buyer harmless
against all Losses arising out of:
(i) any breach of a representation or warranty made
by Fort James in this Agreement (other than the
representations and warranties contained in (A) Section 5.6,
which representations and warranties shall not survive
Closing, with Buyer's sole recourse being under Section
12.1(c), and (B) Section 5.10(a), which representations and
warranties shall not survive Closing, with Buyer's sole
recourse being under such title insurance policies as Buyer
chooses to procure under Section 7.13 hereof);
(ii) the breach of any agreement of Fort James
contained in this Agreement (but not the Related Agreements,
or obligations under Article VIII hereof, which shall stand
on their own); or
(iii) any Excluded Liability.
(b) Notwithstanding the foregoing, in the case of Losses
incurred as a result of the events described in Sections
12.1(a)(i) and (ii), Fort James shall not be liable for
indemnification hereunder unless and until the aggregate amount
of such Losses exceeds $20,000,000 (the "Basket"), in which event
Buyer shall be entitled to indemnification as set forth above
solely to the extent that such Losses exceed such Basket,
provided, however, that Fort James' aggregate liability with
respect to Sections 12.1(a)(i) and (ii) shall in no event exceed
$100 million (the "Cap"). Neither the Basket nor the Cap shall
apply to Losses under Section 12.1(a)(iii) above or Section
12.1(c) below.
(c) Any Loss to the extent attributable to conditions
existing at, or acts or omissions on or before, the Closing with
respect to any Environmental Condition existing on any
Transferred Site (including Losses arising under Environmental
Laws with respect to hazardous substances, contaminants,
pollutants or petroleum products leaching or physically migrating
from Transferred Sites that results from contamination or
pollution of a Transferred Site), that, as of Closing, constitutes
a violation of, or otherwise gives rise to any Liability under,
any Environmental Laws, but excluding any such Loss to the extent
arising from any change in law after the Closing, is a
"Pre-Closing Environmental Loss." The date that a requirement of
remediation or other action, or a claim for damages, penalties,
fines or other similar costs or expenses or for equitable relief
is first made by an Authority, or demanded by a potential
plaintiff with respect to any such Environmental Condition is the
"Environmental Accrual Date" with respect to such Environmental
Condition. Notwithstanding any provision of this Agreement to
the contrary, Buyer shall not be entitled to any indemnification
or reimbursement from Fort James with respect to any Pre-Closing
Environmental Loss except to the extent that such Pre-Closing
Environmental Loss arises out of an Environmental Condition
having an Environmental Accrual Date before the fifth anniversary
of Closing and such Pre-Closing Environmental Losses from and
after Closing, in the aggregate, exceed $10 million and then,
only for the percentage of such excess specified herein. Subject
to the foregoing: for each period of twelve months following the
Closing and before the fifth anniversary of Closing, Fort James
shall indemnify Buyer for Pre-Closing Environmental Losses
arising from items having an Environmental Accrual Date during
such twelve month period in an amount equal to the Applicable
Percentage of such Pre-Closing Environmental Loss. The
"Applicable Percentage" shall be 80% for events or conditions
with an Environmental Accrual Date during the period between
Closing and the first anniversary of Closing, 60% for events or
conditions with an Environmental Accrual Date during the period
between the first anniversary of Closing and the second
anniversary of Closing, 40% for events or conditions with an
Environmental Accrual Date during the period between the second
anniversary of Closing and the third anniversary of Closing, 20%
for events or conditions with an Environmental Accrual Date
during the period between the third anniversary of Closing and
the fourth anniversary of Closing, and 10% for events or
conditions with an Environmental Accrual Date during the period
between the fourth anniversary of Closing and the fifth
anniversary of Closing.
12.2 Indemnification by Buyer. (a) Subject to the
limitations contained in this Article XII, effective upon the
Closing, Buyer shall indemnify and hold Fort James harmless
against all Losses arising out of:
(i) any breach of a representation or warranty made
by Buyer in this Agreement;
(ii) the breach of any agreement of Buyer contained in
this Agreement (but not the Related Agreements, or obliga-
tions under Article VIII hereof, which shall stand on their
own); or
(iii) any Assumed Liability or the failure by Buyer to
discharge any Assumed Liability.
(b) Notwithstanding the foregoing, in the case of Losses
incurred as a result of the events described in Sections
12.2(a)(i) and (ii), Buyer shall not be liable for
indemnification hereunder unless and until the aggregate amount
of such Losses exceeds the Basket, in which event Fort James
shall be entitled to indemnification as set forth above solely to
the extent that such Losses exceed such Basket; provided,
however, that Buyer's aggregate liability with respect to
Sections 12.2(a)(i) and (ii) shall in no event exceed the Cap.
Neither the Basket nor the Cap shall apply to Losses under
Section 12.2(a)(iii) above.
12.3 Article VIII Rights and Obligations Excluded. The
rights and obligations of Fort James and Buyer under Section
12.1(c) and Article VIII hereof shall not be subject to the Basket
or the Cap, or in the case of obligations under Article VIII, any
other provisions of this Article XII, but shall apply separately
in accordance with their terms.
12.4 Survival Date. (a) The indemnification obligations of
each party (the "Indemnitor") obligated to provide indemnifica-
tion to the other (the "Indemnitee") under Section 12.1(a)(i) or
Section 12.2(a)(i) shall lapse and become of no further force and
effect with respect to all claims not made by Indemnitee's
delivery to the Indemnitor of written notice containing details
reasonably sufficient to disclose to Indemnitor the nature and
scope of the claim by the eighteen month anniversary of the
Closing. Notwithstanding anything contained herein to the
contrary, no indemnified party shall be entitled to indemnifica-
tion with respect to any claim under Section 12.1(a)(i) or
12.2(a)(i), if such indemnified party has actual knowledge prior
to Closing of any circumstance constituting a breach or failure
of any such representation or warranty resulting in such claim
where such breach would have entitled such indemnified party not
to consummate the transactions contemplated by this Agreement at
Closing.
(b) The indemnification obligations under Sections
12.1(a)(ii) and (iii) and Sections 12.2(a)(ii) and (iii) shall
not be limited by time, but shall survive in accordance with the
terms of the underlying obligations to which they relate.
12.5 Definition of Loss. For purposes of this Article XII
and Article VIII, "Losses" shall mean, collectively, any and all
claims, damages, Liabilities, liens, losses or other obligations
whatsoever, together with costs and expenses, including, without
limitation, reasonable fees and disbursements of counsel and any
consultants or experts and expenses of investigation incurred by
an Indemnitee entitled to indemnification hereunder as a result
of a matter giving rise to a claim for indemnification hereunder,
incurred in connection with any action, suit or proceeding
("Legal Action") instituted against the Indemnitee determined,
net of the:
(a) tax savings realized by the Indemnitee in respect of
such matter net of any tax consequences of the indemnity payment;
(b) insurance proceeds to which the Indemnitee is entitled
in respect of such matter; and
(c) indemnity payments to which the Indemnitee is entitled
from parties other than the indemnifying party hereunder in
respect of such matter.
Notwithstanding any provision of this Article XII, any
damages to the extent attributable to a failure to reasonably
mitigate damages shall not constitute Losses.
12.6 Third Party Claims. (a) Each of the parties must
follow the procedures set forth in the following paragraphs of
this Section 12.6 in order to be entitled to indemnification
with respect to claims resulting from the assertion of liability
by persons or entities not parties to this Agreement, including
claims by any Authority for penalties, fines and assessments.
(b) The party seeking indemnification shall give prompt
written notice to the party from whom indemnification is sought
of any assertion of liability by a third party which might give
rise to a claim by the indemnified party against the indemnifying
party based on the indemnity agreements contained in this
Agreement, stating the nature and basis of the assertion and the
amount thereof, to the extent known.
(c) In the event that any Legal Action is brought against
an indemnified party with respect to which the indemnifying party
may have liability under an indemnity agreement contained in this
Agreement, the Legal Action shall, upon the written agreement of
the indemnifying party that it is obligated to indemnify under
such an indemnity agreement, be defended by the indemnifying
party and such defense shall include all appeals or reviews which
counsel for the indemnifying party shall deem appropriate. In
any such Legal Action the indemnified party shall have the right
to be represented by advisory counsel and accountants, at its own
expense, and the indemnifying party shall keep the indemnified
party fully informed as to such proceeding, at all stages
thereof, whether or not the indemnified party is represented by
its own counsel.
(d) Until the indemnifying party shall have assumed the
defense of any Legal Action, or if the indemnified and indemnify-
ing parties are both named parties in such Legal Action and the
indemnified party shall have reasonably concluded that there may
be defenses available to it that are materially different from or
in addition to the defenses available to the indemnifying party
(in which case the indemnifying party shall not be entitled to
assume the defense of such Legal Action, but shall remain
responsible for its obligation as an indemnitor), all legal and
other reasonable expenses incurred by the indemnified party as a
result of such Legal Action shall be borne by the indemnifying
party. In such event, the indemnified party shall make available
to the indemnifying party and its attorneys and accountants, for
review and copying, its books and records relating to such Legal
Action and the parties shall render to each other such assistance
as may reasonably be requested to facilitate the proper and
adequate defense of any such Legal Action.
(e) The indemnifying party shall not make any settlement of
any claim without the written consent of the indemnified party,
which consent shall not be unreasonably withheld. Without
limiting the generality of the foregoing, it shall not be deemed
unreasonable to withhold consent to a settlement involving
injunctive or other equitable relief against the indemnified party
or its assets, employees, business or methods of doing business.
(f) The indemnifying party shall be relieved of its obliga-
tion to indemnify the indemnified party to the extent that any
failure to give or delay in giving timely notice as required by
this Section 12.6 prejudices the indemnifying party.
12.7 Subrogation Rights; No Duplication. (a) Any Indemnitor
required to make a payment under this Article XII shall be
subrogated, to the extent of such payment, to the rights of the
entity to which such payment has been made for reimbursement or
indemnification against third parties relating to the claim on
which such payment has been based.
(b) Notwithstanding anything in this Article XII to the
contrary, the obligations of each Indemnitor and its Affiliates
pursuant to this Article XII shall be without duplication as
between entities to which such Indemnitor and its Affiliates are
required to make payments.
ARTICLE XIII
TERMINATION, AMENDMENT AND WAIVER
13.1 Termination. This Agreement may be terminated at any
time before the Closing:
(i) by mutual written consent of the parties hereto;
(ii) by either Fort James on the one hand, or Buyer on
theother, if there has been a material breach on the part of
the other of a representation, warranty or agreement
contained herein, or in any writing delivered pursuant to
the provisions of this Agreement, which remains uncured;
provided, however, that no breach of representation or
warranty shall form the basis of a right to terminate this
Agreement if the party to whom such representation or
warranty was made or its officers, directors or
representatives had notice of the existence of such breach
on or before the date of this Agreement; or
(iii) by Fort James or Buyer if the Closing has not
occurred by the date which is 120 days after the date of this
Agreement.
13.2 Effect of Termination. If this Agreement is terminated
pursuant to Section 13.1, this Agreement shall become wholly void
and of no further force and effect and there shall be no further
liability or obligation on the part of any party hereto, except
to pay such expenses and amounts as are required of it pursuant
to Section 7.5 hereof, and to comply with the confidentiality
provisions of Section 7.6. No such termination shall relieve
either party of any liability to the other for any breach of this
Agreement prior to the date of termination; provided that in no
event shall either party be liable to the other for any amount in
excess of $20,000,000 in connection with such a pre-Closing
breach.
13.3 Amendment. This Agreement may be amended at any time
only by writing executed by each of the parties hereto.
13.4 Extension; Waiver. At any time before the Closing, any
party to this Agreement which is entitled to the benefits thereof
may (a) extend the time for the performance of any of the
obligations of another party hereto, (b) waive any
misrepresentation (including an omission) or breach of a
representation or warranty of another party hereto, whether
contained herein or in any exhibit, schedule or document
delivered pursuant hereto, or (c) waive compliance of another
party hereto with any of the agreements or conditions contained
herein. Any such extension or waiver shall be valid if set forth
in a written instrument signed by the party or parties giving the
extension or waiver.
ARTICLE XIV
GENERAL PROVISIONS
14.1 Notices. All notices and other communications required
or permitted hereunder shall be in writing (including telefax or
similar writing) and shall be given,
(a) if to Fort James, to:
Fort James Corporation
1650 Lake Cook Road
PO Box 89
Deerfield, Illinois 60015-0089
Attention: Clifford A. Cutchins, IV
Telefax: (847) 317-5481
with copies to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention: Patricia A. Vlahakis
Telefax: (212) 403-2000
(b) if to Buyer, to:
ACX Technologies, Inc.
16000 Table Mountain Parkway
Golden, Colorado 80403
Attention: Jill B.W. Sisson
Telefax: (303) 271-7055
with a copy to:
Holme Roberts & Owen LLP
1700 Lincoln Street
Suite 4100
Denver, Colorado 80203
Attention: W. Dean Salter
Telefax: (303) 866-0200
or (c) in either case, to such other person or to such other
address or telefax number as the party to whom notice is to be
given may have furnished the other parties in writing by like
notice. If mailed, any such communication shall be deemed to
have been given on the third business day following the day on
which the communication is posted by registered or certified mail
(return receipt requested). If given by any other means it shall
be deemed to have been given when delivered to the address
specified in this Section 14.1.
14.2 Interpretation. The headings contained in this Agree-
ment are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement. Unless the context
otherwise requires, terms (including defined terms) used in the
plural include the singular, and vice versa.
14.3 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
14.4 Miscellaneous. This Agreement (a) constitutes the
entire agreement and supersedes all other prior agreements and
understandings, both written and oral, between the parties with
respect to the subject matter hereof; (b) is not intended to and
shall not confer upon any person, association or entity, other
than the parties hereto, any rights or remedies with respect to
the subject matter or any provision hereof; (c) shall not be
assigned by operation of law or otherwise, except that Buyer may
assign this Agreement to a wholly-owned subsidiary of ACX
provided that each of ACX and GPC remains obligated under the
terms hereunder; and (d) shall be governed in all respects by the
laws of the state of Delaware without regard to its laws or
regulations relating to choice of law.
14.5 Third Party Beneficiaries. Nothing herein contained,
whether express or implied, is intended to confer any right or
remedy under or by reason of this Agreement other than to the
parties hereto and their respective successors and assigns, and
no action may be brought by a third party claiming as a third
party beneficiary to this Agreement or the transactions
contemplated herein.
IN WITNESS WHEREOF the parties hereto have caused this
Agreement to be executed by their duly authorized officers.
FORT JAMES CORPORATION
By:/s/Ernst A. Haberli
Name: Ernst A. Haberli
Title: EVP-CFO
ACX TECHNOLOGIES, INC.
By:/s/Jeffrey H. Coors
Name: Jeffrey H. Coors
Title: President and Co-CEO
GRAPHIC PACKAGING CORPORATION
By:/s/Jeffrey H. Coors
Name: Jeffrey H. Coors
Title: President and CEO
Exhibit 2.2
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT (this "Agreement"), dated August 2,
1999 among Fort James Corporation, a Virginia corporation ("Fort
James"), ACX Technologies, Inc., a Colorado corporation ("ACX")
and Graphic Packaging Corporation ("GPC," and together with ACX,
"Buyer"). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the
Asset Purchase Agreement among Fort James, ACX and GPC, dated as
of April 25, 1999 (the "Asset Purchase Agreement").
WHEREAS, the parties hereto have entered into the Asset
Purchase Agreement, pursuant to which Fort James has agreed to
sell, or cause its Subsidiaries to sell, the Assets, and Buyer
has agreed to purchase such Assets, for the consideration set
forth in the Asset Purchase Agreement, and to assume the Assumed
Liabilities, upon the terms and conditions set forth in the Asset
Purchase Agreement;
WHEREAS, Schedule 2.3(a)(v) to the Asset Purchase
Agreement was delivered concurrently with the Asset Purchase
Agreement on April 25, 1999 ("Execution Schedule 2.3(a)(v)");
WHEREAS, the parties hereto have mutually agreed to
revise Execution Schedule 2.3(a)(v) in various respects and have
further agreed that such revised schedule, attached hereto as
Exhibit A ("Closing Schedule 2.3(a)(v)"), shall replace and
supersede in all respects Execution Schedule 2.3(a)(v);
WHEREAS, Schedule 2.3(a)(vii) to the Asset Purchase
Agreement was delivered concurrently with the Asset Purchase
Agreement on April 25, 1999 ("Execution Schedule 2.3(a)(vii)");
WHEREAS, the parties hereto have mutually agreed to
revise Execution Schedule 2.3(a)(vii) in various respects and
have further agreed that such revised schedule, attached hereto
as Exhibit B ("Closing Schedule 2.3(a)(vii)"), shall replace and
supersede in all respects Execution Schedule 2.3(a)(vii);
WHEREAS, Schedule 2.3(b)(iv) to the Asset Purchase
Agreement was delivered concurrently with the Asset Purchase
Agreement on April 25, 1999 ("Execution Schedule 2.3(b)(iv)");
WHEREAS, the parties hereto have mutually agreed to
revise Execution Schedule 2.3(b)(iv) in various respects and have
further agreed that such revised schedule, attached hereto as
Exhibit C ("Closing Schedule 2.3(b)(iv)"), shall replace and
supersede in all respects Execution Schedule 2.3(b)(iv);
WHEREAS, Schedule 5.12 to the Asset Purchase Agreement
was delivered concurrently with the Asset Purchase Agreement on
April 25, 1999 ("Execution Schedule 5.12");
WHEREAS, the parties hereto have mutually agreed to
revise Execution Schedule 5.12 in various respects and have
further agreed that such revised schedule, attached hereto as
Exhibit D ("Closing Schedule 5.12"), shall replace and supersede
in all respects Execution Schedule 5.12;
WHEREAS, Schedule 7.14 to the Asset Purchase Agreement
was delivered concurrently with the Asset Purchase Agreement on
April 25, 1999 ("Execution Schedule 7.14");
WHEREAS, the parties hereto have mutually agreed to
revise Execution Schedule 7.14 in various respects and have
further agreed that such revised schedule, attached hereto as
Exhibit E ("Closing Schedule 7.14"), shall replace and supersede
in all respects Execution Schedule 7.14;
WHEREAS, Schedule 7.16 to the Asset Purchase Agreement
was delivered concurrently with the Asset Purchase Agreement on
April 25, 1999 ("Execution Schedule 7.16");
WHEREAS, the parties hereto have mutually agreed to
revise Execution Schedule 7.16 in various respects and have
further agreed that such revised schedule, attached hereto as
Exhibit F ("Closing Schedule 7.16"), shall replace and supersede
in all respects Execution Schedule 7.16;
WHEREAS, the parties hereto have mutually agreed to
modify Section 2.1(d) of the Asset Purchase Agreement as set
forth below;
WHEREAS, the parties hereto have mutually agreed to
modify Section 2.1(l) of the Asset Purchase Agreement as set
forth below;
WHEREAS, the parties hereto have mutually agreed to
modify the Purchase Price provided for in Section 3.1 of the
Asset Purchase Agreement as set forth below;
WHEREAS, the parties hereto have mutually agreed to
modify Sections 5.12(e) and 5.12(f) of the Asset Purchase
Agreement as set forth below; and
WHEREAS, the parties hereto have mutually agreed to
modify Section 7.5(b) of the Asset Purchase Agreement as set
forth below.
NOW, THEREFORE, in consideration of the foregoing and
the premises, representations, warranties and agreements
contained in the Asset Purchase Agreement, the parties hereto
agree as follows:
FIRST: Closing Schedule 2.3(a)(v), attached hereto
as Exhibit A, shall replace and supersede in all respects
Execution Schedule 2.3(a)(v). All references in the Asset
Purchase Agreement to "Schedule 2.3(a)(v)" shall mean Closing
Schedule 2.3(a)(v).
SECOND: Closing Schedule 2.3(a)(vii), attached hereto
as Exhibit B, shall replace and supersede in all respects
Execution Schedule 2.3(a)(vii). All references in the Asset
Purchase Agreement to "Schedule 2.3(a)(vii)" shall mean Closing
Schedule 2.3(a)(vii).
THIRD: Closing Schedule 2.3(b)(iv), attached hereto
as Exhibit C, shall replace and supersede in all respects
Execution Schedule 2.3(b)(iv). All references in the Asset
Purchase Agreement to "Schedule 2.3(b)(iv)" shall mean Closing
Schedule 2.3(b)(iv).
FOURTH: Closing Schedule 5.12, attached hereto as
Exhibit D, shall replace and supersede in all respects Execution
Schedule 5.12. All references in the Asset Purchase Agreement to
"Schedule 5.12" shall mean Closing Schedule 5.12.
FIFTH: Closing Schedule 7.14, attached hereto as
Exhibit E, shall replace and supersede in all respects Execution
Schedule 7.14. All references in the Asset Purchase Agreement to
"Schedule 7.14" shall mean Closing Schedule 7.14.
SIXTH: Closing Schedule 7.16, attached hereto as
Exhibit F, shall replace and supersede in all respects Execution
Schedule 7.16. All references in the Asset Purchase Agreement to
"Schedule 7.16" shall mean Closing Schedule 7.16.
SEVENTH: Effective hereby, Section 2.1(d) is hereby
deleted and replaced in its entirety by the following:
"(d) except to the extent specified in Schedule 5.12,
the Filed Business Intellectual Property listed in Schedule 5.12,
any Non-Filed Business Intellectual Property, and licenses to
Filed Business Intellectual Property and Non-Filed Business
Intellectual Property listed in Schedule 5.12 (such Filed
Business Intellectual Property, such Non-Filed Business
Intellectual Property, and such licenses thereto, collectively,
the "Business Intellectual Property");"
EIGHTH: Effective hereby, Section 2.1(l) is amended
by replacing the words "one-third" with the word "entire";
NINTH: Effective hereby, Section 3.1 is amended by
replacing "$830 million" with "$825,804,000."
TENTH: Effective hereby, Sections 5.12(e) and
5.12(f) are amended by replacing the word "Unfiled" (wherever it
appears in such sections) with the word "Non-Filed";
ELEVENTH: Effective hereby, Section 7.5(b) is amended
by adding the following proviso at the end of the second sentence
of Section 7.5(b):
", provided, however, that Fort James shall file any
sales tax returns, subject to Buyer's reasonable review and
comment"
TWELFTH: This Agreement shall be construed and
enforced in accordance with the laws of the state of Delaware
without regard to its laws or regulations relating to choice of
law.
THIRTEENTH: This Agreement may be executed in two or
more counterparts, each of which shall be considered an original,
but all of which together shall constitute the same instrument.
IN WITNESS WHEREOF the parties hereto have caused this
Amendment Agreement to be executed by their duly authorized
officers.
FORT JAMES CORPORATION
By:/s/ Clifford A. Cutchins, IV
Name: Clifford A. Cutchins, IV
Title: Senior Vice President,
General Counsel
ACX TECHNOLOGIES, INC.
By:/s/ Jill B.W. Sisson
Name: Jill B.W. Sisson
Title: Secretary
GRAPHIC PACKAGING CORPORATION
By:/s/ Jill B.W. Sisson
Name: Jill B.W. Sisson
Title: Assistant Secretary
Exhibit 4.1
REVOLVING CREDIT AND TERM LOAN AGREEMENT
among
ACX TECHNOLOGIES, INC.,
Borrower
BANC OF AMERICA SECURITIES LLC,
Sole Lead Arranger and Book Manager
BANK OF AMERICA, N.A.,
Administrative Agent,
the Managing Agents and Co-Agents defined herein,
and
THE LENDERS NAMED HEREIN,
Lenders
$1,300,000,000
SENIOR CREDIT FACILITIES
Dated as of August 2, 1999
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS AND TERMS 1
1.1 Definitions 1
1.2 Number and Gender of Words; Other References 22
1.3 Accounting Principles 22
SECTION 2 BORROWING PROVISIONS 23
2.1 Revolver Facility 23
2.2 Term Loan Facility 23
2.3 180-Day Term Facility 23
2.4 One-Year Term Facility 23
2.5 LC Subfacility 23
2.6 Swing Line Subfacility. 26
2.7 Terminations or Reductions of Commitments 28
2.8 Borrowing Procedure 28
SECTION 3 TERMS OF PAYMENT 29
3.1 Loan Accounts, Notes, and Payments 29
3.2 Interest and Principal Payments 30
3.3 Prepayments 31
3.4 Interest Options 33
3.5 Quotation of Rates 33
3.6 Default Rate 33
3.7 Interest Recapture 33
3.8 Interest Calculations 34
3.9 Maximum Rate 34
3.10 Interest Periods 34
3.11 Conversions 35
3.12 Order of Application 35
3.13 Sharing of Payments, Etc. 36
3.14 Offset 36
3.15 Booking Borrowings 36
SECTION 4 CHANGE IN CIRCUMSTANCES 36
4.1 Increased Cost and Reduced Return 36
4.2 Limitation on Types of Loans 38
4.3 Illegality 38
4.4 Treatment of Affected Loans 38
4.5 Compensation 39
4.6 Taxes 39
SECTION 5 FEES 41
5.1 Treatment of Fees 41
5.2 Fees of Administrative Agent and Arranger 41
5.3 Revolver Facility Commitment Fees 41
5.4 LC Fees 41
SECTION 6 SECURITY; GUARANTIES 42
6.1 Collateral 42
6.2 Additional Collateral 42
6.3 Guaranties 43
6.4 Future Liens 43
6.5 Release of Collateral 43
6.6 Negative Pledge 44
SECTION 7 CONDITIONS PRECEDENT 44
7.1 Conditions Precedent to Closing 44
7.2 Conditions Precedent to a Permitted Acquisition 45
7.3 Conditions Precedent to Each Borrowing 45
7.4 Borrowing Notices and LC Requests 45
SECTION 8 REPRESENTATIONS AND WARRANTIES 46
8.1 Purpose of Credit Facilities 46
8.2 Existence, Good Standing, and Authority 46
8.3 Subsidiaries; Capital Stock 46
8.4 Authorization and Contravention 46
8.5 Binding Effect 47
8.6 Financial Statements 47
8.7 Litigation, Claims, Investigations 47
8.8 Taxes 47
8.9 Environmental Matters 48
8.10 Employee Benefit Plans 48
8.11 Properties; Liens; Leases 48
8.12 Government Regulations 48
8.13 Transactions with Affiliates 49
8.14 Debt 49
8.15 Material Agreements 49
8.16 Insurance 49
8.17 Labor Matters 49
8.18 Solvency 49
8.19 Intellectual Property 49
8.20 Compliance with Laws 50
8.21 The Ft. James Acquisition 50
8.22 Permitted Acquisitions 50
8.23 Regulation U 51
8.24 Tradename 51
8.25 Year 2000 Compliance 51
8.26 No Default 51
8.27 Full Disclosure 51
SECTION 9 COVENANTS 51
9.1 Use of Proceeds 52
9.2 Books and Records 52
9.3 Items to be Furnished 52
9.4 Inspections 54
9.5 Taxes 54
9.6 Payment of Obligations 54
9.7 Maintenance of Existence, Assets, and Business 54
9.8 Insurance 55
9.9 Preservation and Protection of Rights 55
9.10 Employee Benefit Plans 55
9.11 Environmental Laws 55
9.12 Debt and Guaranties 56
9.13 Liens 57
9.14 Transactions with Affiliates 58
9.15 Compliance with Laws and Documents 59
9.16 Permitted Acquisitions, Subsidiary Guaranties,
and Collateral Documents 59
9.17 Assignment 59
9.18 Fiscal Year and Accounting Methods 59
9.19 Government Regulations 59
9.20 Loans, Advances, and Investments 59
9.21 Distributions 60
9.22 Restrictions on Subsidiaries 61
9.23 Sale of Assets 61
9.24 Sale-Leaseback Financings 61
9.25 Mergers and Dissolutions; Sale of Capital Stock 61
9.26 New Business 62
9.27 Affiliate Subordination Agreements 62
9.28 Amendments to Documents 62
9.29 Year 2000 Compliance 62
9.30 Financial Covenants 62
9.31 Financial Hedges 64
SECTION 10 DEFAULT 65
10.1 Payment of Obligation 65
10.2 Covenants 65
10.3 Debtor Relief 65
10.4 Judgments and Attachments 65
10.5 Government Action 66
10.6 Misrepresentation 66
10.7 Change of Control 66
10.8 Default Under Other Debt and Agreements 66
10.9 Employee Benefit Plans 66
10.10 Validity and Enforceability of Loan Documents 66
10.11 Environmental Liability 67
10.12 Pledged Stock; Collateral Documents 67
SECTION 11 RIGHTS AND REMEDIES 67
11.1 Remedies Upon Default 67
11.2 Company Waivers 67
11.3 Performance by Administrative Agent 68
11.4 Delegation of Duties and Rights 68
11.5 Not in Control 68
11.6 Course of Dealing 68
11.7 Cumulative Rights 68
11.8 Application of Proceeds 69
11.9 Certain Proceedings 69
11.10 Expenditures by Lenders 69
11.11 Indemnification 69
SECTION 12 AGREEMENT AMONG LENDERS 70
12.1 Administrative Agent 70
12.2 Expenses 71
12.3 Proportionate Absorption of Losses 72
12.4 Delegation of Duties; Reliance 72
12.5 Limitation of Liability 72
12.6 Default; Collateral 73
12.7 Limitation of Liability 73
12.8 Relationship of Lenders 73
12.9 Benefits of Agreement 73
12.10 Obligations Several 74
12.11 Financial Hedges 74
12.12 Agents 74
SECTION 13 MISCELLANEOUS 74
13.1 Headings 74
13.2 Nonbusiness Days 74
13.3 Notices 74
13.4 Form and Number of Documents 75
13.5 Exceptions to Covenants 75
13.6 Survival 75
13.7 Governing Law 75
13.8 Invalid Provisions 75
13.9 Entirety 75
13.10 Jurisdiction; Venue; Service of Process; Jury Trial 76
13.11 Amendments, Consents, Conflicts, and Waivers 76
13.12 Multiple Counterparts 77
13.13 Successors and Assigns; Assignments
and Participations 77
13.14 Discharge Only Upon Payment in Full; Reinstatement
in Certain Circumstances 80
SCHEDULES AND EXHIBITS
Schedule 2.1 - Lenders and Commitments
Schedule 7.1 - Conditions Precedent to Closing
Schedule 7.1A - Post-Closing Requirements
Schedule 7.2 - Conditions Precedent to Permitted Acquisition
Schedule 8.3 - Subsidiaries
Schedule 8.24 - Tradenames
Schedule 9.12 - Existing Debt
Schedule 9.13 - Existing Liens
Schedule 9.20 - Existing Investments
Exhibit A-1 - Form of Revolver Note
Exhibit A-2 - Form of Term Loan Note
Exhibit A-3 - Form of 180-Day Term Note
Exhibit A-4 - Form of One-Year Term Note
Exhibit A-5 - Form of Swing Line Note
Exhibit B-1 - Form of Borrowing Notice
Exhibit B-2 - Form of Conversion Notice
Exhibit B-3 - Form of LC Request
Exhibit C - Form of Guaranty
Exhibit D - Form of Pledge Agreement
Exhibit E-1 - Form of Compliance Certificate
Exhibit E-2 - Form of Permitted Acquisition Compliance
Certificate
Exhibit E-3 - Form of Permitted Acquisition Loan
Closing Certificate
Exhibit F - Form of Assignment and Acceptance Agreement
Exhibit G-1 - Form of Opinion of Counsel of Borrower
Exhibit G-2 - Form of Opinion of Local Counsel
Exhibit G-3 - Form of Opinion of Foreign Counsel
Exhibit H - Form of Affiliate Subordination Agreement
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS REVOLVING CREDIT AND TERM LOAN AGREEMENT is entered
into as of August 2, 1999, among ACX TECHNOLOGIES, INC.
("Borrower"), Lenders (hereinafter defined), and BANK OF AMERICA,
N.A., as Administrative Agent (hereinafter defined), for itself
and the other Lenders, and the Managing Agents (hereinafter
defined) and Co-Agents (hereinafter defined).
RECITALS
A. Borrower has entered into an Asset Purchase Agreement
dated as of April 25, 1999, among Borrower, Graphic Packaging
Corporation, and Fort James Corporation, pursuant to which
Borrower or one or more of its wholly-owned subsidiaries will
acquire a portion of the packaging division owned by Fort James
Corporation and its subsidiaries (the "Ft. James Acquisition").
B. Borrower has requested that Lenders extend credit to
Borrower in the form of this Revolving Credit and Term Loan
Agreement (the "Agreement"), providing for a revolving loan
facility in the aggregate principal amount of $450,000,000, a
term loan facility in the aggregate principal amount of
$325,000,000, a 180-day term loan facility in the aggregate
principal amount of $125,000,000, and a one-year term loan
facility in the aggregate principal amount of $400,000,000 to
enable, among other things, the consummation of the Ft. James
Acquisition and the refinancing of certain existing indebtedness
of Borrower.
C. Upon and subject to the terms and conditions of this
Agreement, Lenders are willing to extend such credit to Borrower.
Accordingly, in consideration of the mutual covenants
contained herein, the parties hereto agree, as follows:
SECTION 1 DEFINITIONS AND TERMS.
1.1 Definitions. As used herein:
180-Day Term Commitment means an amount (subject to
reduction or cancellation as herein provided) equal to
$125,000,000.
180-Day Term Facility means the credit facility as described
in and subject to the limitations set forth in Section 2.3
hereof.
180-Day Term Lenders means, on any date of determination,
any Lender that has a Committed Sum under the 180-Day Term
Facility.
180-Day Term Note means a promissory note substantially in
the form of Exhibit A-3, and all renewals and extensions of all
or any part thereof.
180-Day Term Principal Debt means, on any date of
determination, the aggregate unpaid principal balance of all
Borrowings under the 180-Day Term Facility.
Acquisition means any transaction or series of related
transactions for the purpose of, or resulting in, directly or
indirectly, (a) the acquisition by any Company of all or
substantially all of the assets of a Person or of any business or
division of a Person, (b) the acquisition by any Company of more
than 50% of any class of Voting Stock (or similar ownership
interests) of any Person (provided that, formation or
organization of any entity shall not constitute an "Acquisition"
to the extent that the amount of the loan, advance, investment,
or capital contribution in such entity constitutes a permitted
investment under Section 9.20); or (c) a merger, consolidation,
amalgamation, or other combination by any Company with another
Person if a Company is the surviving entity; provided that, in
any merger involving Borrower, Borrower must be the surviving
entity.
Adjusted Eurodollar Rate means, for any Eurodollar Rate
Borrowing for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined by the Administrative Agent to be equal to the
quotient obtained by dividing (a) the Eurodollar Rate for such
Eurodollar Rate Borrowing for such Interest Period by (b) 1 minus
the Reserve Requirement for such Eurodollar Rate Borrowing for
such Interest Period.
Administrative Agent means Bank of America, N.A., and its
permitted successors or assigns as "Administrative Agent" for
Lenders under this Agreement.
Affiliate of any Person means any other individual or entity
who directly or indirectly controls, or is controlled by, or is
under common control with, such Person, and, for purposes of this
definition only, "control," "controlled by," and "under common
control with" mean possession, directly or indirectly, of the
power to direct or cause the direction of management or policies
(whether through ownership of voting securities, by contract, or
otherwise).
Agents means, collectively, the Administrative Agent, the
Managing Agents, and the Co-Agents.
Agreement means this Revolving Credit and Term Loan
Agreement (as the same may hereafter be amended, modified,
supplemented, or restated from time to time).
Applicable Lending Office means, for each Lender and for
each Type of Borrowing, the "Lending Office" of such Lender (or
an Affiliate of such Lender) designated on Schedule 2.1 attached
hereto or such other office that such Lender (or an Affiliate of
such Lender) may from time to time specify to Administrative
Agent and Borrower by written notice in accordance with the terms
hereof.
Applicable Margin means either:
(a) On any date of determination occurring on or prior to
the later of (i) February 1, 2000, or (ii) the date upon which
that portion of the Obligation outstanding under both the 180-Day
Term Facility and the One-Year Term Facility has been fully
repaid, the percentage per annum set forth in the table below for
the appropriate Type of Borrowing or commitment fees (as the case
may be):
Applicable Margin
- -----------------------------------------------------------------
Eurodollar Rate Commitment
Base Rate Borrowings Borrowings Fees
-------------------- --------------- ----------
1.00% 2.500% .500%
or
(b) solely with respect to Borrowings and commitment fees
under the Revolver Facility and the Term Loan Facility, on any
date of determination occurring after the later of (i) February
1, 2000, or (ii) the date upon which that portion of the
Obligation outstanding under both the 180-Day Term Facility and
the One-Year Term Facility has been fully repaid, the percentage
per annum set forth in the table below for the Type of Borrowing
or commitment fees (as the case may be) that corresponds to the
Leverage Ratio at such date of determination, as calculated based
on the quarterly Compliance Certificate of Borrower most recently
delivered pursuant to Section 9.3 hereof:
Leverage Ratio Applicable Margin
- ---------------------- --------------------------------------
Eurodollar
Base Rate Rate Commitment
Borrowings Borrowings Fees
---------- ---------- ----------
Less than 2.00:1.0 0% .750% .200%
Greater than or equal 0% 1.000% .250%
to 2.00:1.0,
but less than 3.00:1.0
Greater than or equal 0% 1.375% .300%
to 3.00:1.0,
but less than 3.5:1.0
Greater than or equal .250% 1.750% .375%
to 3.5:1.0,
but less than 4.00:1.0
Greater than or equal .750% 2.250% .500%
to 4.0:1.0
The provisions in Item (b) preceding are further subject to, the
following:
(i) With respect to any adjustments in the Applicable
Margin as a result of changes in the Leverage Ratio, such
adjustment shall be effective commencing on the second
Business Day after the delivery of Financial Statements (and
the related Compliance Certificate) pursuant to Sections
9.3(a) and 9.3(b) or the most recent Permitted Acquisition
Compliance Certificate for a Permitted Acquisition, as the
case may be; and
(ii) If Borrower fails to timely furnish to Lenders the
Financial Statements and related Compliance Certificates as
required to be delivered pursuant to Sections 9.3(a) and
9.3(b), and such failure shall not be remedied within five
days after written notice thereof from Administrative Agent
or any Lender, then (unless the Default Rate has been
effected by Required Lenders pursuant to Section 3.6) the
Applicable Margin shall be the maximum Applicable Margin
specified in the Table above.
Approved Fund means, with respect to any Lender that is a
fund or commingled investment vehicle that invests in loans, any
other fund that invests in loans and is managed or advised by the
same investment advisor as such Lender or by an Affiliate of such
investment advisor.
Arranger means Banc of America Securities LLC, and its
successors and assigns, in its capacity as sole lead arranger and
book manager under the Loan Documents.
Assumed Taxes means, (a) with respect to any Equity
Issuance, an amount equal to such incremental annual increase in
franchise or other similar Taxes as Borrower estimates in good
faith shall be payable as a result of such Equity Issuance, and
(b) with respect to any sale of a Designated Asset or any
Significant Sale, or the Golden Aluminum Company Sale, an amount
equal to such percentage (as Borrower estimates in good faith to
be its effective rate) of the taxable gain for federal and state
income tax purposes with respect to such sale.
ASTM Standards means the standards for environmental
assessment set forth in "Standard Practice for Environmental Site
Assessments: Phase I Environmental Site Process (E 1527)."
Authorizations means all filings, recordings, and
registrations with, and all validations or exemptions, approvals,
orders, authorizations, consents, franchises, licenses,
certificates, and permits from, any Governmental Authority.
Bank of America means Bank of America, N.A., in its
individual capacity as a Lender, and its successors and assigns.
Base Rate means, for any day, the rate per annum equal to
the higher of (a) the Federal Funds Rate for such day plus one-
half of one percent (.5%) and (b) the Prime Rate for such day.
Any change in the Base Rate due to a change in the Prime Rate or
the Federal Funds Rate shall be effective on the effective date
of such change in the Prime Rate or the Federal Funds Rate.
Base Rate Borrowing means a Borrowing bearing interest at
the sum of the Base Rate plus the Applicable Margin for Base Rate
Borrowings for the relevant Facility.
Borrower means ACX Technologies, Inc., a Colorado
corporation, together with any successor or assign of Borrower
permitted by the Loan Documents.
Borrowing means any amount disbursed (a) by one or more
Lenders to Borrower under the Loan Documents (under the Revolver
Facility, the LC Subfacility, the Swing Line Subfacility, the
Term Loan Facility, the 180-Day Term Facility, or the One-Year
Term Facility), whether such amount constitutes an original
disbursement of funds, the continuation of an amount outstanding,
or payment of a draft under an LC, or (b) by any Lender in
accordance with, and to satisfy the obligations of any Company
under, any Loan Document.
Borrowing Date is defined in Section 2.8(a).
Borrowing Notice means a request for Borrowing made pursuant
to Section 2.8(a), substantially in the form of Exhibit B-1.
Britton Debt means Debt evidenced by or arising in
connection with (a) the Note Agreement dated March 11, 1996 by
and among ACX Group Limited (formerly Britton Group plc) and
National Westminster Bank Plc constituting up to pounds
5,000,000 Variable Rate Unsecured Loan Notes due 2006, and (b)
the pounds 213,300 1.75% unsecured loan notes 1993 issued by
ACX Group Limited (formerly Britton Group plc).
Business Day means (a) for all purposes, any day other than
Saturday, Sunday, and any other day on which commercial banking
institutions are required or authorized by Law to be closed in
Dallas, Texas, or Denver, Colorado, (b) in addition to the
foregoing, in respect of any Eurodollar Rate Borrowing, a day on
which dealings in Dollars are conducted in the London interbank
market and commercial banks are open for international business
in London, England, and (c) in addition to the foregoing, for
purposes of any fundings in, or conversions to or from, Foreign
Currency, a day when commercial banks are open for international
business in the principal financial center in the country which
issues such Foreign Currency, as determined by Administrative
Agent.
Capital Expenditures means an expenditure for the
acquisition, construction, improvement, or replacement of land,
buildings, equipment, or other fixed or capital assets or
leaseholds (excluding expenditures properly chargeable to repairs
or maintenance) including any obligations to pay rent or other
amounts under a Capital Lease; provided, however, that Capital
Expenditures shall not include Permitted Acquisitions.
Capital Lease means any capital lease or sublease which
should be capitalized on a balance sheet in accordance with GAAP.
Cash Equivalents means:
(a) Readily marketable, direct, full faith and credit
obligations of the United States of America, or obligations
guaranteed by the full faith and credit of the United States
of America, maturing within not more than one year from the
date of acquisition;
(b) Short term certificates of deposit and time
deposits, which mature within one year from the date of
issuance issued by a United States federal or state
chartered commercial bank of recognized standing, which has
capital and unimpaired surplus in excess of $500,000,000.00
and which bank or its holding company has a short-term
commercial paper rating of at least A-1 or the equivalent by
S&P or at least P-1 or the equivalent by Moody's;
(c) Commercial paper maturing in 365 days or less from
the date of issuance and rated either "P-1" by Moody's or "A-
1" by S&P;
(d) Debt instruments of a domestic issuer which mature
in one year or less and which are rated "A" or better by
Moody's or S&P on the date of acquisition of such
investment; and
(e) Demand deposit accounts which are maintained in
the ordinary course of business.
Ceramics Spinoff means the planned pro rata Distribution to
Borrower's shareholders of all outstanding shares of Coors
Porcelain Company.
Closing Date means the date upon which this Agreement has
been executed by Borrower, Lenders, and Administrative Agent and
all conditions precedent specified in Section 7.1 have been
satisfied or waived.
Co-Agents means, collectively, ABN AMRO Bank, N.V.,
BankBoston, N.A., The Bank of Nova Scotia, Bayerische Hypo- und
Vereinsbank AG, New York Branch, The First National Bank of
Chicago, First Union National Bank, Fleet National Bank, Paribas,
Union Bank of California, N.A., and U.S. Bank National
Association.
Code means the Internal Revenue Code of 1986, as amended,
together with the rules and regulations promulgated thereunder.
Collateral means all of the items and types of property
described in now existing or hereafter created Collateral
Documents and all cash and non-cash proceeds thereof.
Collateral Documents means all security agreements, Pledge
Agreements, financing statements, assignments of partnership
interests, and Guaranties at any time delivered to Administrative
Agent to create or evidence Liens securing the Obligation,
together with all reaffirmations, amendments, and modifications
thereof or supplements thereto.
Commitment Percentage means, at any date of determination,
for any Lender with respect to a particular Facility, the
proportion (stated as a percentage) that its Committed Sum for
such Facility bears to the aggregate Committed Sums of all
Lenders for such Facility.
Committed Sum means, for any Lender with respect to a
particular Facility, at any date of determination, the amount
stated beside each Lender's name under the heading for that
Facility on the most-recently amended Schedule 2.1 to this
Agreement (which amount is subject to increase, reduction, or
cancellation in accordance with this Agreement).
Companies means, at any date of determination thereof,
Borrower and each of its Subsidiaries; and Company means, on any
date of determination, Borrower or any of its Subsidiaries.
Compliance Certificate means a certificate signed by a
Responsible Officer, substantially in the form of Exhibit E-1.
Consequential Loss means any amount due pursuant to
Section 4.5.
Consolidated Net Income means, for any period of
determination, the net income of the Companies, determined on a
consolidated basis, after Taxes, but excluding, (i) extraordinary
items and (ii) any equity interests of the Companies in the
unremitted earnings of any Person that is not a Subsidiary.
Consolidated Net Worth means, on any date of determination,
the total shareholder's equity of the Companies as the same would
appear on a consolidated balance sheet of the Companies prepared
in accordance with GAAP as of such date of determination, but
excluding any stock, common or preferred, not both issued and
outstanding.
Consolidated Total Capitalization means, at any date of
determination, the sum of (i) the Consolidated Net Worth plus
(ii) the Total Debt.
Conversion Notice means a request pursuant to Section 3.11,
substantially in the form of Exhibit B-2.
Current Financials means, at the time of any determination
thereof, the more recently delivered to Lenders of either (a) (i)
the audited Financial Statements for the fiscal year ended
December 31, 1998, calculated on a consolidated basis for the
Companies; (ii) the audited Financial Statements for the fiscal
year 1998, calculated with respect to the assets and related
operations acquired by the Companies in the Ft. James
Acquisition; and (iii) a pro forma combined balance sheet of the
Companies, adjusted to give effect to the Ft. James Acquisition
and the incurrence of Debt contemplated by this Agreement, which
balance sheet has been reviewed by independent public accountants
of recognized national standing and shall be prepared assuming
that the Ft. James Acquisition and the incurrence of Debt under
this Agreement occurred at the end of the first fiscal quarter
1999; or (b) the Financial Statements required to be delivered
under Sections 9.3(a) or 9.3(b), as the case may be, prepared on
a consolidated basis for the Companies.
Debt means (without duplication), for any Person, the sum of
the following: (a) all liabilities, obligations, and
indebtedness of such Person which in accordance with GAAP should
be classified upon such Person's balance sheet as liabilities in
respect of (i) money borrowed, including, without limitation, the
Principal Debt and obligations evidenced by bonds, notes,
debentures, or other similar instruments, (ii) obligations of
such Person under Capital Leases,(iii) obligations of such Person
under non-compete agreements entered into in connection with
Permitted Acquisitions, and (iv) obligations of such Person
issued or assumed as the deferred purchase price of property, all
conditional sale obligations, and obligations under any title
retention agreement (but excluding trade accounts payable arising
in the ordinary course of business); (b) all obligations of the
type referred to in clauses (a)(i) through (a)(iv) preceding of
other Persons for the payment of which such Person is responsible
or liable as obligor, guarantor, or otherwise (each such guaranty
to constitute Debt in an amount equal to the amount of such other
Person's Debt so guaranteed); (c) all obligations of the type
referred to in clauses (a)(i) through clause (a)(iv) and
clause (b) preceding of other Persons secured by any Lien on any
property or asset of such Person (whether or not such obligation
is assumed by such Person), the amount of such obligation being
deemed to be the lesser of the value of such property or assets
or the amount of the obligation so secured; (d) the face amount
of all letters of credit and banker's acceptances issued for the
account of such Person, and without duplication, all drafts drawn
and unpaid thereunder; (e) net payments under Financial Hedges;
and (f) all Redeemable Preferred Stock of any Company.
Debt Issuance means Debt of any Company issued or incurred
after the Closing Date, other than Permitted Debt contemplated by
Sections 9.12(a) through (j).
Debtor Relief Laws means the Bankruptcy Code of the United
States of America and all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, fraudulent transfer or
conveyance, suspension of payments, or similar Laws from time to
time in effect affecting the Rights of creditors generally.
Default is defined in Section 10.
Default Rate means, (i) with respect to any Borrowing, on
any date a per annum rate of interest equal from day to day to
the lesser of (a) the non-Default interest rate applicable to
such Borrowing, plus 2% and (b) the Maximum Rate, and (ii) with
respect to any other Obligation under the Loan Documents, the
lesser of (a) the Base Rate plus the then-effective Applicable
Margin for Base Rate Borrowings plus 2% and (b) the Maximum Rate.
Designated Assets means the assets related to the Flexible
Packaging Division and the Solar Division, and those assets of
the Companies designated to Administrative Agent in writing on
the Closing Date and thereafter from time to time, which
Designated Assets must be reasonably acceptable to Administrative
Agent.
Distribution for any Person means, with respect to any
shares of any capital stock or other equity securities issued by
such Person, (a) the retirement, redemption, purchase, or other
acquisition for value of any such securities, (b) the declaration
or payment of any dividend on or with respect to any such
securities, and (c) any other payment by such Person with respect
to such securities.
Dollar Equivalent, at any time, means (a) any amount
denominated in Dollars and (b) for any amount denominated in a
Foreign Currency, an amount of Dollars into which Administrative
Agent determines that it could convert the relevant amount of
that Foreign Currency by using the applicable-quoted-spot rate
reported on the appropriate page of the Reuters Screen at 11:00
a.m. (London time) three Business Days before the day on which
the calculation is made.
Dollars and the symbol $ means lawful money of the United
States of America.
Domestic Subsidiary means a Subsidiary of Borrower that is
organized or incorporated under the Laws of a jurisdiction of the
United States.
EBITDA means, for the Companies on a consolidated basis, as
calculated at any date of determination for a specified Rolling
Period, the sum (without duplication, without giving effect to
any extraordinary losses or gains during such Rolling Period and
adjusted as required to take into account any minority ownership
interest) of (a) net income or deficit during such Rolling
Period, plus (b) to the extent already deducted in computing such
net income (i) income Tax expense during such Rolling Period,
(ii) Interest Expense during such Rolling Period,
(iii) depreciation, amortization, and other non-cash-expense
items during such Rolling Period, and (iv) any losses on the sale
or disposition of assets (other than in the ordinary course of
business) during such Rolling Period, less (c) all other non-cash
components of income, less (d) any gains on the sale or
disposition of assets (other than in the ordinary course of
business) during such Rolling Period.
Eligible Assignee means (a) a Lender; (b) an Affiliate of a
Lender (so long as such assignment is not made in conjunction
with the sale of such Affiliate); (c) an Approved Fund of any
Lender; and (d) any other Person approved by Administrative Agent
(which approval will not be unreasonably withheld or delayed by
Administrative Agent) and, unless a Default or Potential Default
has occurred and is continuing at the time any assignment is
effected in accordance with Section 13.13, Borrower, such
approval not to be unreasonably withheld or delayed by Borrower
and such approval to be deemed given by Borrower if no objection
is received by the assigning Lender and the Administrative Agent
from Borrower within five Business Days after notice of such
proposed assignment has been provided by the assigning Lender to
Borrower; provided, however, that neither Borrower nor any
Affiliate of Borrower shall qualify as an Eligible Assignee.
Employee Plan means an employee pension benefit plan covered
by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and established or maintained by
Borrower or any ERISA Affiliate, but not including any
Multiemployer Plan.
Environmental Investigation means any written environmental
site assessment, investigation, audit, compliance audit, or
compliance review conducted at any time or from time to time
(whether at the request of Administrative Agent or any Lender,
upon the order or request of a Governmental Authority, or at the
voluntary instigation of any Company) concerning the property,
business operations, or activities of any Company, including,
without limitation, (a) air, soil, groundwater, or surface-water
sampling and monitoring; and (b) preparation and implementation
of any closure or remedial plans.
Environmental Law means any applicable Law that relates to
(a) the protection of air, groundwater, surface water, soil, or
other environmental media, (b) the protection of the environment,
including natural resources, (c) the regulation of any
pollutants, contaminants, wastes, and Hazardous Substances,
including, without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. 9601 et
seq.) ("CERCLA"), the Clean Air Act (42 U.S.C. 7401 et seq.),
the Federal Water Pollution Control Act, as amended by the Clean
Water Act (33 U.S.C. 1251 et seq.), the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.), the
Emergency Planning and Community Right to Know Act of 1986
(42 U.S.C. 11001 et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. 1801 et seq.), the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the
Oil Pollution Act (33 U.S.C. 2701 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. 6901 et seq.), the
Rivers and Harbors Act (33 U.S.C. 401 et seq.), the Safe
Drinking Water Act (42 U.S.C. 201 and 300f et seq.), the
Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and the Hazardous and Solid Waste
Amendments of 1984 (42 U.S.C. 6901 et seq.), the Toxic
Substances Control Act (15 U.S.C. 2601 et seq.), and analogous
state and local Laws, as any of the foregoing may have been and
may be amended or supplemented from time to time, and any
analogous future enacted or adopted Law, or (d) the Release or
threatened Release of Hazardous Substances.
Environmental Liability means any obligation, liability
(including, without limitation, any strict liability), loss,
fine, penalty, charge, Lien, damage, cost, or expense of any kind
to the extent that it results (a) from any violation of or any
obligation or liability under any Environmental Law, (b) from the
presence, Release, or threatened Release of any Hazardous
Substance, or (c) from actual or threatened damages to natural
resources.
Environmental Permit means any permit, license, or other
Authorization from any Governmental Authority that is required
under any Environmental Law for the lawful conduct of any
business, process, or other activity.
Equity Issuance means the issuance on and after the Closing
Date by any Company of any shares of any class of stock,
warrants, or other equity interests, other than present and
future shares of stock, options, or warrants issued to employees,
directors, or consultants of the Companies, or stock issued upon
their exercise.
ERISA means the Employee Retirement Income Security Act of
1974, as amended, and the regulations and rulings thereunder.
ERISA Affiliate means any company or trade or business
(whether or not incorporated) which, for purposes of Title IV of
ERISA, is a member of Borrower's controlled group or which is
under common control with Borrower within the meaning of
Section 414(b), (c), (m), or (o) of the Code.
ERISA Event means any of the following: (a) the occurrence
of a Reportable Event; (b) the application for a minimum funding
waiver with respect to an Employee Plan, or becoming obligated to
file with the PBGC a notice of failure to make a required payment
with respect to any Employee Plan; (c) the provision by the
administrator of any Employee Plan of a notice of intent to
terminate such Employee Plan; (d) the withdrawal by any Company
or ERISA Affiliate, in whole or in part, from a Multiemployer
Plan; (e) the occurrence of any condition (under ERISA, the Code,
or otherwise) for the imposition of a Lien in favor of the PBGC
on the assets of any Company; (f) the adoption of an amendment to
an Employee Plan requiring the provision of security to such
Employee Plan; (g) institution by the PBGC of proceedings to
terminate or impose liability in respect of (other than premiums
under Section 4007 of ERISA), any Employee Plan, or the
occurrence of any event or condition that constitutes grounds for
termination of, or the appointment of a trustee to administer,
any Employee Plan; (h) institution by the sponsor of a
Multiemployer Plan of proceedings to terminate or reorganize such
Multiemployer Plan, or to impose withdrawal liability on any
Company or ERISA Affiliate with respect to such Multiemployer
Plan; (i) the cessation of operations at a facility of any
Company or any ERISA Affiliate in the circumstances described in
Section 4062(e) of ERISA; or (j) any Company or ERISA Affiliate
has engaged in any "prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of the Code).
Eurodollar Rate means, for any Eurodollar Rate Borrowing for
any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Dow Jones Markets Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars 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. If for any reason such rate is not available, the term
"Eurodollar Rate" shall mean, for any Eurodollar Rate Borrowing
for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars 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
applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%).
Eurodollar Rate Borrowing means a Borrowing bearing interest
at the sum of the Adjusted Eurodollar Rate plus the Applicable
Margin for Eurodollar Rate Borrowings for the relevant Facility.
Exhibit means an exhibit to this Agreement unless otherwise
specified.
Facilities means, collectively, the Revolver Facility, the
Term Loan Facility, the 180-Day Term Facility, and the One-Year
Term Facility; Facility means, any of the Revolver Facility, the
Term Loan Facility, the 180-Day Term Facility, or the One-Year
Term Facility.
Federal Funds Rate means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined (which determination shall be conclusive and binding,
absent manifest error) by Administrative Agent to be equal to the
weighted average of the rates on overnight Federal funds
transactions with member banks of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Business Day as
so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate
charged to the Administrative Agent (in its individual capacity)
on such day on such transactions as determined by the
Administrative Agent (which determination shall be conclusive and
binding, absent manifest error).
Financial Hedge means a rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity option,
equity or equity index swap, equity or equity index option, bond
option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency
option, or any other similar transaction (including any option
with respect to any of the foregoing transactions), so long as
any such Financial Hedge obtained by any Company satisfies the
following requirements: (a) any Lender or financial institution
issuing such Financial Hedge shall calculate its credit exposure
in a reasonable and customary manner; (b) all documentation for
such Financial Hedge shall conform to ISDA standards and must be
acceptable to Administrative Agent with respect to any
intercreditor issues (unless issued by any Lender or Affiliate of
a Lender); (c) if issued by any Lender or any Affiliate of a
Lender to Borrower, the credit exposure under such Financial
Hedge shall be secured after the Lien Triggering Date by Liens in
and to the Collateral as evidenced by the Collateral Documents on
a pari passu basis with the Liens of Administrative Agent (held
for the benefit of Lenders), and such Lender or Affiliate issuing
a Financial Hedge shall, by acceptance of the benefits of such
Liens in the Collateral agree to the provisions of Section 12.11;
and (d) such Financial Hedge shall be incurred in the ordinary
course of business and consistent with prior business practices
of the Companies and not for speculative purposes.
Financial Statements means balance sheets, statements of
operations, and statements of cash flows prepared in accordance
with GAAP, which statements of operations and statements of cash
flows shall be in comparative form to the corresponding period of
the preceding fiscal year, and which balance sheets shall be in
comparative form to the corresponding period of the preceding
fiscal year. In addition, any annual Financial Statements must
include statements of shareholders' equity prepared in accordance
with GAAP, which statements of shareholders' equity shall be in
comparative form to the prior fiscal year-end figures.
Flexible Packaging Division means some or all of the
business assets of Graphic Packaging Corporation, an indirect
Wholly-owned Subsidiary of Borrower, dedicated to developing,
manufacturing, and selling flexible packaging products.
Foreign Currency means any freely-convertible lawful
currency, other than Dollars, acceptable to Administrative Agent,
so long as (a) such currency is dealt with in the London
interbank deposit market, (b) such currency is freely
transferable and convertible into Dollars in the London foreign
exchange market, and (c) no central bank or other governmental
authorization in the country of issue of such currency is
required to permit use of such currency by Administrative Agent
for issuing LCs or honoring drafts presented under LCs in such
currency; provided, that if, after the issuance of an LC in a
Foreign Currency, the Foreign Currency denominated in such LC
ceases to be lawful currency freely-convertible into Dollars and
is replaced by a European single or common currency (the "Euro"),
then thereafter the Foreign Currency for purposes of such LC
shall be the Euro.
Foreign Subsidiary means a Subsidiary of Borrower that is
organized or incorporated under the Laws of any jurisdiction
other than a jurisdiction of the United States.
Ft. James Acquisition means the Acquisition consummated on
the Closing Date by Borrower or one or more of its Wholly-owned
Subsidiaries of a portion of the packaging division of Fort James
Corporation and its Subsidiaries pursuant to the Ft. James
Acquisition Agreement.
Ft. James Acquisition Agreement means the Asset Purchase
Agreement dated as of April 25, 1999, among Borrower, Graphics
Packaging Corporation, and Fort James Corporation, together with
all amendments or modifications thereto made in conformity with
Section 9.28(b).
Ft. James Acquisition Documents means the Ft. James
Acquisition Agreement and all documents or instruments executed
pursuant thereto, together with all amendments, modifications,
supplements, or restatements thereof made in conformity with
Section 9.28(b).
GAAP means generally accepted accounting principles of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and the Financial Accounting
Standards Board which are applicable from time to time.
Golden Aluminum Company Acquisition means the Acquisition of
Golden Aluminum Company from Crown Cork & Seal Company, Inc.
pursuant to the terms of the Stock Purchase Agreement among
Golden Aluminum Company, Crown Cork & Seal Company, Inc., and
Borrower dated as of March 1, 1997.
Golden Aluminum Company Sale means the disposition for fair
value in one or more transactions, of Golden Aluminum Company or
its assets.
Governmental Authority means any (a) local, state,
municipal, federal, or foreign judicial, executive, or
legislative instrumentality, (b) private arbitration board or
panel, or (c) central bank.
Guarantor means any Person, including, but not limited to,
any Domestic Subsidiary of Borrower, who undertakes to be liable
for all or any part of the Obligation by execution of a Guaranty
or otherwise.
Guaranty means (a) a Guaranty in substantially the form and
upon the terms of Exhibit C, executed and delivered by any Person
pursuant to the requirements of the Loan Documents; and (b) any
amendments, modifications, supplements, restatements,
ratifications, or reaffirmations of any Guaranty made in
accordance with the Loan Documents.
Hazardous Substance means (a) any substance that is
designated, defined, or classified as a hazardous waste,
hazardous material, pollutant, contaminant, or toxic or hazardous
substance, or that is otherwise regulated, under any
Environmental Law, including without limitation, any hazardous
substance within the meaning of Section 101(14) of CERCLA,
(b) petroleum, oil, gasoline, natural gas, fuel oil, motor oil,
waste oil, diesel fuel, jet fuel, and other petroleum
hydrocarbons, (c) asbestos and asbestos-containing materials in
any form, (d) polychlorinated biphenyls, or (e) urea formaldehyde
foam.
Interest Expense means, for any period of calculation
thereof, for any Person, the aggregate amount of all interest
(including commitment fees) on all Debt of such Person, whether
paid in cash or accrued as a liability and payable in cash during
such period (including, without limitation, imputed interest on
Capital Lease obligations; the amortization of any original issue
discount on any Debt; the interest portion of any deferred
payment obligation; all commissions, discounts, and other fees
and charges owed with respect to letters of credit or bankers'
acceptance financing; and the interest component of any Debt that
is guaranteed or secured by such Person).
Interest Period is determined in accordance with
Section 3.10.
Laws means all applicable statutes, laws, treaties,
ordinances, tariff requirements, rules, regulations, orders,
writs, injunctions, and decrees of any Governmental Authority.
LC means any standby letter of credit issued hereunder by
Administrative Agent pursuant to an LC Agreement.
LC Agreement means a letter of credit application and
agreement (in form and substance satisfactory to Administrative
Agent) submitted by Borrower to Administrative Agent for the
issuance of an LC for the account of Borrower; provided that this
Agreement shall control any conflict between this Agreement and
any such LC Agreement.
LC Exposure means, at any time and without duplication, the
sum of the Dollar-Equivalent of (a) the aggregate undrawn portion
of all uncancelled and unexpired LCs plus (b) the aggregate
unpaid reimbursement obligations of Borrower in respect of
drawings under any LC.
LC Request means a request pursuant to Section 2.5(a),
substantially in the form of Exhibit B-3.
LC Subfacility means a subfacility of the Revolver Facility
for the issuance of LCs as described in and subject to the
limitations of Section 2.5, under which the LC Exposure may never
(a) collectively exceed the Dollar-Equivalent of $25,000,000 and
(b) together with the Revolver Principal Debt may never exceed
the Revolver Commitment.
Lenders means, on any date of determination, the financial
institutions named on Schedule 2.1 (as the same may be amended
from time to time by Administrative Agent to reflect the
assignments made in accordance with Section 13.13(b)), and
subject to the terms and conditions of this Agreement, and their
respective permitted successors and assigns (but not any
Participant who is not otherwise a party to this Agreement);
provided that, solely for purposes of any Collateral Document and
Section 12 and Sections 3.13 and 3.14, and "Lenders" shall also
include any Lender or Affiliate of a Lender who is party to a
Financial Hedge with Borrower and their respective successors and
assigns (for purposes hereof, each Lender shall be deemed to have
entered into this Agreement for and on behalf of any Affiliate
now or hereafter party to a Financial Hedge with Borrower).
Leverage Ratio means, on any date of determination, the
ratio of (i) the Total Debt on such date to (ii) EBITDA
calculated for the Rolling Period then most-recently ended. For
purposes of calculating the Leverage Ratio, EBITDA for any
Company, as the case may be, shall be calculated after giving
effect to Acquisitions and divestitures of Persons (to the extent
permitted by the Loan Documents) during such period as if such
transactions had occurred on the first day of such period,
regardless of whether the effect is positive or negative. In
addition, for purposes of calculating the Leverage Ratio, EBITDA
shall be increased by $6,000,000 for the Rolling Period ending
September 30, 1999, $4,500,000 for the Rolling Period ending
December 31, 1999, $3,000,000 for the Rolling Period ending
March 31, 2000, and $1,500,000 for the Rolling Period ending
June 30, 2000; provided, however, that except to the extent
permitted for Rolling Periods ending on or prior to June 30, 2000
(as set forth in the preceding sentence), calculations of EBITDA
for Leverage Ratio purposes shall exclude any increase in EBITDA
which would be the result of any expense Borrower projects to be
eliminated by any proposed Acquisition (but not any expense which
is actually eliminated).
Lien means any lien, mortgage, security interest, pledge,
assignment, charge, title retention agreement, or encumbrance of
any kind, and any other Right of or agreed arrangement with any
creditor (other than under or relating to subordination or other
intercreditor arrangements) to have its claim satisfied out of
any property or assets, or the proceeds therefrom, prior to the
general creditors of the owner thereof.
Lien Triggering Date means the earlier of (a) February 1,
2000, if either (i) the Obligation arising under both the 180-Day
Term Facility and the One-Year Term Facility has not been repaid
in full or (ii) the Leverage Ratio is greater than 4.0 to 1.0, or
(b) the date upon which the PBGC institutes proceedings (or
provides notice of its intention to commence proceedings) to
terminate or impose liability in respect of (other than premiums
under Section 4007 of ERISA) any Employee Plan, or to appoint a
trustee to administer any Employee Plan or commences to take any
action that could result in the imposition of a Lien. For
purposes of clause (a) hereof, determination of the Leverage
Ratio will be based upon a certificate from Borrower (in form and
detail satisfactory to Administrative Agent) calculating the
Leverage Ratio for the Rolling Period ending December 31, 1999;
provided that, any Acquisitions and divestitures occurring during
the period after December 31, 1999, and on or prior to February
1, 2000, shall be reflected in the Leverage Ratio calculation as
if such transaction had occurred on the first day of such Rolling
Period (regardless of whether the effect is positive or
negative).
Litigation means any action by or before any Governmental
Authority.
Loan Documents means (a) this Agreement, the Notes, the
Collateral Documents, LCs, and LC Agreements, (b) all agreements,
documents, or instruments in favor of Agents or Lenders ever
delivered pursuant to this Agreement or otherwise delivered in
connection with all or any part of the Obligation on and after
the Closing Date, and (c) any and all future renewals,
extensions, restatements, reaffirmations, or amendments of, or
supplements to, all or any part of the foregoing.
Loan Parties means, on any date of determination, Borrower
and all Guarantors.
Managing Agents means, collectively, Morgan Guaranty Trust
Company of New York and Wachovia Bank, N.A.
Material Adverse Event means any one or more circumstances
or events which, individually or collectively, could reasonably
be expected to result in any (a) material impairment of the
ability of the Companies (taken as a whole) to perform any
payment or other material obligations under the Loan Documents or
the ability of Administrative Agent or any Lender to enforce any
such obligations or any of their respective material Rights under
the Loan Documents, (b) material and adverse effect on the
business, properties, condition (financial or otherwise), or
results of operations of the Companies (taken as a whole), or
(c) Default or Potential Default.
Material Agreement means any material written or oral
agreement, contract, commitment, or understanding to which any
Company is a party, by which such Company is directly or
indirectly bound, or to which any assets of such Company may be
subject (excluding purchase orders for material and inventory in
the ordinary course of business), which involves revenue payable
to any Company in excess of $100,000,000 in the aggregate during
any 12-month period, or financial obligations of any Company in
excess of $10,000,000 in the aggregate during any 12-month
period, and which is not cancellable by such Company upon 30 days
or less notice without liability for further payment (other than
nominal penalties).
Material Foreign Subsidiary means, on any date of
determination, based on the most-recently delivered consolidated
Financial Statements of the Companies for the four-fiscal quarter
period then-ended, any Foreign Subsidiary which satisfies one or
more of the following financial criteria for the applicable
period of determination: (a) revenues of such Foreign Subsidiary
exceed $10,000,000, (b) EBITDA of such Foreign Subsidiary exceeds
$1,000,000, (c) total assets of such Foreign Subsidiary exceed
$10,000,000, or (d) net worth of such Foreign Subsidiary exceeds
$5,000,000.
Material Subsidiary means, for purposes of Section 10.3, any
Subsidiary of Borrower (or any group of Subsidiaries of Borrower)
that individually or collectively satisfies one or more of the
following financial criteria for the applicable period of
determination: (a) revenues of such Subsidiary of Borrower (or
any group of Subsidiaries of Borrower) exceed $20,000,000,
(b) EBITDA of such Subsidiary of Borrower (or any group of
Subsidiaries of Borrower) exceeds $3,000,000, (c) total assets of
such Subsidiary of Borrower (or any group of Subsidiaries of
Borrower) exceed $20,000,000, or (d) net worth of such Subsidiary
of Borrower (or any group of Subsidiaries of Borrower) exceeds
$10,000,000.
Maximum Amount and Maximum Rate respectively mean, for each
Lender, the maximum non-usurious amount and the maximum non-
usurious rate of interest which, under applicable Law, such
Lender is permitted to contract for, charge, take, reserve, or
receive on the Obligation.
Moody's means Moody's Investors Service, Inc. or any
successor thereto.
Multiemployer Plan means a multiemployer plan as defined in
Sections 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the
Code to which any Company or any ERISA Affiliate is making, has
made, is accruing, or has accrued, an obligation to make
contributions or has, within any of the preceding five plan
years, made or accrued an obligation to make contributions.
Net Cash Proceeds means (a) with respect to the Golden
Aluminum Company Sale, or any sale or disposition of any
Designated Asset or any Significant Sale, cash (freely
convertible into Dollars) (including, solely with respect to the
Golden Aluminum Company Sale, the sale of the Solar Division, and
any Significant Sale, any cash received by way of deferred
payment pursuant to a promissory note or otherwise, but only as
and when received) received, on or after the date of consummation
of such sale, by any Company from such sale, after (i) deduction
of Assumed Taxes, (ii) payment of all usual and customary
brokerage commissions and all other reasonable fees and expenses
related to such sale (including, without limitation, reasonable
attorneys' fees and closing costs incurred in connection with
such sale), (iii) deduction of appropriate amounts to be provided
by Borrower or any Company as a reserve, in accordance with GAAP,
against any liabilities retained by any Company after such sale,
which liabilities are associated with the asset or assets being
sold, including, without limitation, pension and other post-
employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations
associated with such sale, and (iv) deduction for the amount of
any Debt (other than the Obligation) secured by the respective
asset or assets being sold, which Debt is required to be repaid
as a result of such sale; (b) with respect to any Debt Issuance,
cash (freely convertible in to Dollars) received, on or after the
date of such Debt Issuance, by any Company from such Debt
Issuance, after (i) payment of all reasonable attorneys' fees and
usual and customary underwriting commissions, closing costs, and
other reasonable expenses associated with such Debt Issuance,
(ii) deduction of all deposits, escrow amounts, or other reserves
required to be maintained by any Company in connection with such
Debt, and (iii) deductions for the amount of any other Debt
(other than the Obligation) which is required to be repaid
concurrently with or otherwise as a result of the incurrence of
such Debt; (c) with respect to any Equity Issuance, cash (freely
convertible into Dollars) (including any cash received by way of
deferred payment pursuant to a promissory note, or otherwise, but
only as and when received) received, on or after the date of such
Equity Issuance, by the Borrower from such Equity Issuance, net
of usual and customary transaction costs and expenses associated
with such Equity Issuance and Assumed Taxes; and (d) with respect
to the Ceramics Spinoff, cash (freely convertible into Dollars)
received by Borrower from Coors Porcelain Company substantially
concurrently with the consummation of the Ceramics Spinoff,
whether as repayment of inter-Company Debt, as a Distribution, or
as consideration for an inter-Company transfer of assets.
Notes means, at the time of any determination thereof, all
outstanding and unpaid Revolver Notes, Term Notes, 180-Day Term
Notes, One-Year Term Notes, and the Swing Line Note.
Obligation means all present and future indebtedness,
liabilities, and obligations, and all renewals and extensions
thereof, or any part thereof, now or hereafter owed to
Administrative Agent, any other Agent, any Lender, or any
Affiliate of any Lender by any Company arising from, by virtue
of, or pursuant to any Loan Document, together with all interest
accruing thereon, fees, costs, and expenses (including, without
limitation, all attorneys' fees and expenses incurred in the
enforcement or collection thereof) payable under the Loan
Documents; provided that, all references to the "Obligation" in
the Collateral Documents and in Sections 3.12, 3.13 and 3.14,
shall, in addition to the foregoing, also include all present and
future indebtedness, liabilities, and obligations (and all
renewals and extensions thereof or any part thereof) now or
hereafter owed to any Lender or any Affiliate of a Lender arising
from, by virtue of, or pursuant to any Financial Hedge entered
into by any Company.
One-Year Term Commitment means an amount (subject to
reduction or cancellation as herein provided) equal to
$400,000,000.
One-Year Term Facility means the credit facility as
described in and subject to the limitations set forth in
Section 2.4 hereof.
One-Year Term Lenders means, on any date of determination,
any Lender that has a Committed Sum under the One-Year Term
Facility.
One-Year Term Note means a promissory note substantially in
the form of Exhibit A-4, and all renewals and extensions of all
or any part thereof.
One-Year Term Principal Debt means, on any date of
determination, the aggregate unpaid principal balance of all
Borrowings under the One-Year Term Facility.
OSHA means the Occupational Safety and Health Act of 1970,
29 U.S.C. 671 et seq.
Participant is defined in Section 13.13(e).
PBGC means the Pension Benefit Guaranty Corporation, or any
successor thereof, established pursuant to ERISA.
PBGC Letter means the letter dated July 29, 1999, from the
PBGC to Borrower, which has been acknowledged by Borrower and
delivered to Administrative Agent, and which establishes the
understanding between Borrower and the PBGC relative to the
imposition and scope of the PBGC Liens.
PBGC Lien means Liens in and to those assets of the
Companies that can be secured solely by filing a financing
statement under the UCC created in favor of the PBGC on and after
the Lien Triggering Date in accordance with the terms of
Paragraph 1 of the PBGC Letter.
Permitted Acquisition means:
(a) The Ft. James Acquisition;
(b) Acquisitions by any Company of businesses which
are engaged in the same or related line of business as
Borrower and its Subsidiaries, with respect to which each of
the following requirements shall have been satisfied:
(i) the Purchase Price for such Acquisition must
be less than or equal to $50,000,000, and when
aggregated with the Purchase Price of each other
Permitted Acquisition consummated in such calendar
year, may not exceed $100,000,000 in the aggregate;
(ii) as of the closing of any Acquisition, the
Acquisition has been approved and recommended by the
board of directors of the Person to be acquired or from
which such business is to be acquired;
(iii) not less than 10 Business Days if the
closing of such Acquisition is to occur prior to the
Lien Triggering Date or 20 Business Days if the closing
of such Acquisition is to occur on or after the Lien
Triggering Date prior to the closing of any
Acquisition, Borrower shall have delivered to
Administrative Agent a Permitted Acquisition Compliance
Certificate, (A) certifying compliance with the terms
and conditions of the Loan Documents, after giving
effect to the Acquisition, and (B) for any Acquisition
with a Purchase Price of $20,000,000 or more, including
(1) pro forma income and balance sheet projections for
the Companies (after giving effect to the Acquisition),
and (2) five year cash flow projections for the
Acquisition demonstrating compliance with the
Companies' applicable financial covenants and debt
amortization schedules;
(iv) prior to consummation of any Acquisition,
Borrower shall have satisfied the conditions precedent
set forth in Section 7.2;
(v) as of the closing of any Acquisition, after
giving effect to such Acquisition, the acquiring party
must be Solvent and the Companies, on a consolidated
basis, must be Solvent;
(vi) as of the closing of any Acquisition, no
Default or Potential Default shall exist or occur as a
result of, and after giving effect to, such
Acquisition; and
(vii) as of the closing of any Acquisition,
(A) if such Acquisition is structured as a merger,
Borrower, (or if such merger is with any Subsidiary of
Borrower, then a Domestic Subsidiary that is or becomes
a Loan Party) must be the surviving entity after giving
effect to such merger; and (B) if such Acquisition is
structured as a stock/equity acquisition, the acquiring
Company shall own not less than a 51% interest in the
entity being acquired and such acquired entity shall be
a Domestic Subsidiary that becomes a Loan Party;
(c) Acquisitions among Companies to the extent
permitted by and in accordance with Section 9.25;
(d) The Golden Aluminum Company Acquisition; or
(e) Any other Acquisition for which the prior written
consent of Required Lenders has been obtained.
Permitted Acquisition Compliance Certificate means a
certificate signed by a Responsible Officer of Borrower,
substantially in the form of Exhibit E-2.
Permitted Acquisition Loan Closing Certificate means a
certificate signed by a Responsible Officer of Borrower,
substantially in the form of Exhibit E-3.
Permitted Debt means Debt permitted under Section 9.12 as
described in such Section.
Permitted Liens means Liens permitted under Section 9.13 as
described in such Section.
Person means any individual, entity, or Governmental
Authority.
Pledge Agreement means (a) a Pledge Agreement in
substantially the form and upon the terms of Exhibit D, executed
and delivered by any Person pursuant to the requirements of the
Loan Documents; and (b) any amendments, modifications,
supplements, restatements, ratifications, or reaffirmations of
any Pledge Agreement made in accordance with the Loan Documents.
Potential Default means the occurrence of any event or
existence of any circumstance which, with the giving of notice or
lapse of time or both, would become a Default.
Prime Rate means the per annum rate of interest established
from time to time by Bank of America, N.A., as its prime rate,
which rate may not be the lowest rate of interest charged by Bank
of America, N.A. to its customers.
Principal Debt means, at the time of any determination
thereof, the sum of the Revolver Principal Debt, the Term Loan
Principal Debt, the 180-Day Term Principal Debt, and the One-Year
Term Principal Debt.
Pro Rata or Pro Rata Part, for each Lender, means on any
date of determination (a) for purposes of sharing any amount or
fee payable to any Lender in respect of a Facility or
Subfacility, the proportion which the portion of the Principal
Debt for the applicable Facility or Subfacility owed to such
Lender (whether held directly or through a participation in
respect of the LC Subfacility or Swing Line Subfacility and
determined after giving effect thereto) bears to the Principal
Debt under the applicable Facility or Subfacility owed to all
Lenders at the time in question, and (b) for all other purposes,
the proportion which the portion of the Principal Debt owed to
such Lender bears to the Principal Debt owed to all Lenders at
the time in question, or if no Principal Debt is outstanding,
then the proportion that the aggregate of such Lender's Committed
Sums then in effect under the Facilities bears to the Total
Commitment then in effect.
Purchase Price means, with respect to any Acquisition, all
direct, indirect, and deferred cash payments made to or for the
benefit of the Person being acquired (or whose assets are being
acquired), its shareholders, officers, directors, employees, or
Affiliates in connection with such Acquisition, including,
without limitation, the amount of any Debt being assumed in
connection with such Acquisition (and subject to the limitations
on Permitted Debt hereunder), seller financing, and payments
under non-competition or consulting agreements entered into in
connection with such Acquisition and similar agreements (but
expressly excluding any non-cash consideration and the value of
any stock, options, or warrants or other Rights to acquire stock
issued as part of the consideration in such transaction);
provided that, for the purposes hereof, non-competition
agreements and consulting agreements shall be valued at their
present value discounted over the term of such agreement at the
Base Rate in effect at the time of the Acquisition.
Qualifying Date means the Business Day upon which
Administrative Agent has received (in form and substance
reasonably acceptable to Administrative Agent) each of the
following: (i) Compliance Certificates (and related Financial
Statements for the consolidated Companies) for two consecutive
fiscal quarters, demonstrating that the Leverage Ratio for the
related two consecutive fiscal quarters is 3.5 to 1 or less and
(ii) evidence that the rating (or implied rating) established by
either S&P or Moody's applicable to Borrower's senior, unsecured,
non-credit-enhanced, long term indebtedness for borrowed money is
either BBB- or higher by S&P or Baa3 or higher by Moody's.
Redeemable Preferred Stock of any Person means any preferred
stock issued by such Person which is at any time prior to the
Termination Date for the Revolver Facility (i) mandatorily
redeemable (by sinking fund or similar payments or otherwise),
(ii) redeemable at the option of the holder thereof, or
(iii) convertible into Debt.
Refinanced Debt means Debt evidenced by or arising in
connection with the following (as renewed, extended, or amended
to date): (a) $250,000,000 Credit Agreement dated as of November
20, 1998, among Borrower, Wachovia Bank, N.A. (as Agent), and
Bank of America National Trust and Savings Association and ABN
AMRO Bank, N.V. (as Co-Agents) and certain lenders party thereto;
(b) the 7.84% Senior Notes due November 1, 1999, and the 8.13%
Senior Notes due November 1, 2001, issued by Borrower pursuant to
a Note Agreement dated as of November 1, 1994; and (c) the 7.19%
Series A Senior Notes due January 3, 2006, and the 7.01% Series B
Senior Notes due January 3, 2003, issued by Britton Group PLC
pursuant to a Note Purchase Agreement dated December 14, 1995, as
assumed by Borrower pursuant to an Assumption and Amendment
Agreement dated as of December 31, 1998.
Register is defined in Section 13.13(c).
Regulation D means Regulation D of the Board of Governors of
the Federal Reserve System, as amended.
Regulation U means Regulation U of the Board of Governors of
the Federal Reserve System, as amended.
Release means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, disposal, deposit, dispersal, migrating, or other
movement into the air, ground, or surface water, or soil.
Reportable Event shall have the meaning specified in
Section 4043 of ERISA or the regulations issued thereunder in
connection with an Employee Plan, excluding events for which the
notice requirement is waived under applicable PBGC regulations
other than those events described in sections 4043.21, 4043.24,
and 4043.28 of such regulations, including each such provision as
it may subsequently be renumbered.
Representatives means representatives, officers, directors,
employees, attorneys, and agents.
Required Lenders means (a) on any date of determination
prior to the Termination Date for the Revolver Facility, those
Lenders holding 51% or more of the sum of (i) the Revolver
Commitment plus (ii) the Term Loan Principal Debt plus the
180-Day Term Principal Debt plus the One-Year Term Principal
Debt; and (b) on any date of determination on or after the
Termination Date for the Revolver Facility, those Lenders holding
51% or more of the Principal Debt.
Reserve Requirement means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal,
special, supplemental, or emergency reserves) are required to be
maintained under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any
successor) by member banks of the Federal Reserve System against,
in the case of Eurodollar Rate Borrowings, "Eurocurrency
liabilities" (as such term is used in Regulation D). Without
limiting the effect of the foregoing, the Reserve Requirement
shall reflect any other reserves required by any Governmental
Authority to be maintained by such member banks with respect to
(a) any category of liabilities which includes deposits by
reference to which the Adjusted Eurodollar Rate is to be
determined, or (b) any category of extensions of credit or other
assets which include Eurodollar Rate Borrowings. The Adjusted
Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
Responsible Officer means the chairman, president, chief
executive officer, chief financial officer, controller, senior
vice president, or treasurer of Borrower, or, for all purposes
under the Loan Documents, any other officer designated from time
to time by the Board of Directors of Borrower, which designated
officer is acceptable to Administrative Agent.
Revolver Commitment means an amount (subject to reduction or
cancellation as herein provided) equal to $450,000,000.
Revolver Commitment Usage means, at the time of any
determination thereof, (without duplication) the sum of (i) the
aggregate Revolver Principal Debt (including the Swing Line
Principal Debt) plus (ii) LC Exposure.
Revolver Facility means the credit facility as described in
and subject to the limitations set forth in Section 2.1 hereof,
including the LC Subfacility and the Swing Line Subfacility.
Revolver Lenders means, on any date of determination, any
Lender that has a Committed Sum under the Revolver Facility.
Revolver Note means a promissory note substantially in the
form of Exhibit A-1, and all renewals and extensions of all or
any part thereof.
Revolver Principal Debt means, on any date of determination,
the aggregate unpaid principal balance of all Borrowings under
the Revolver Facility, together with the aggregate unpaid
reimbursement obligations of Borrower in respect of drawings
under any LC.
Rights means rights, remedies, powers, privileges, and
benefits.
Rolling Period means, on any date of determination, the most
recent four fiscal quarters ended on March 31, June 30,
September 30, or December 31 (as the case may be).
S&P means Standard & Poor's Rating Group, a division of
McGraw Hill, Inc., a New York corporation, or any successor
thereto.
Schedule means, unless specified otherwise, a schedule
attached to this Agreement, as the same may be supplemented and
modified from time to time in accordance with the terms of the
Loan Documents.
Significant Sale means any sale, lease, transfer, or other
disposition of any property or assets (tangible or intangible) by
any Company to any other Person (other than any sale, lease,
transfer, or other disposition (i) of any Designated Asset,
(ii) in connection with the Ceramics Spinoff, (iii) in connection
with the Golden Aluminum Company Sale, or (iv) contemplated by
Sections 9.23(a) through (e)) with respect to which the Net Cash
Proceeds received by the Companies for such asset disposition (or
when aggregated with the Net Cash Proceeds from all such other
asset dispositions occurring in the same calendar year) equals or
exceeds $10,000,000.
Solar Division means the Borrower's indirect 54% investment
in Golden Genesis Company, a distributor, integrator, and
marketer of solar electric systems.
Solvent means, as to a Person, that (a) the aggregate fair
market value of such Person's assets exceeds its liabilities
(whether contingent, subordinated, unmatured, unliquidated, or
otherwise), (b) such Person has sufficient cash flow to enable it
to pay its Debts as they mature, and (c) such Person does not
have unreasonably small capital to conduct such Person's
businesses.
Subfacilities means, collectively, the LC Subfacility and
the Swing Line Subfacility; Subfacility means, any of the LC
Subfacility or the Swing Line Subfacility.
Subordinated Debt means any Debt of the Companies which has
been subordinated to the Obligation on terms (including, without
limitation, subordination terms) acceptable to Administrative
Agent and its counsel.
Subsidiary of any Person means (a) any entity of which an
aggregate of more than 50% (in number of votes) of the stock is
owned of record or beneficially, directly or indirectly, by such
Person, or (b) any partnership (limited or general) of which such
Person shall at any time be the general partner or own fifty
percent (50%) or more of the issued and outstanding partnership
interests.
Swing Line Borrowing means any Borrowing under the Swing
Line Subfacility.
Swing Line Commitment means an amount (subject to
availability, reduction, or cancellation as herein provided)
equal to $20,000,000.
Swing Line Lender means Bank of America, N.A. and its
successors and assigns.
Swing Line Note means a promissory note in substantially the
form of Exhibit A-5, and all renewals and extensions of all or
any part thereof.
Swing Line Principal Debt means, on any date of
determination, that portion of the Revolver Principal Debt
outstanding under the Swing Line Subfacility.
Swing Line Subfacility means the subfacility under the
Revolver Facility described in, and subject to the limitations
of, Section 2.6.
Taxes means, for any Person, taxes, assessments, or other
governmental charges or levies imposed upon such Person, its
income, or any of its properties, franchises, or assets.
Termination Date means (a) for purposes of the Revolver
Facility, the earlier of (x) August 2, 2004, and (y) the
effective date of any other termination, cancellation, or
acceleration of all commitments to lend under the Revolver
Facility; (b) for purposes of the Term Loan Facility, the earlier
of (x) August 2, 2004, and (y) the effective date of any other
termination, cancellation, or acceleration of the Term Loan
Facility; (c) for purposes of the 180-Day Term Facility, the
earlier of (x) February 1, 2000, and (y) the effective date of
any other termination, cancellation, or acceleration of the 180-
Day Term Facility; and (d) for purposes of the One-Year Term
Facility, the earlier of (x) August 1, 2000, and (y) the
effective date of any other termination, cancellation, or
acceleration of the One-Year Term Facility.
Term Loan Facility means the credit facility as described in
and subject to the limitations set forth in Section 2.2 hereof.
Term Loan Commitment means an amount (subject to reduction
or cancellation as herein provided) equal to $325,000,000.
Term Loan Lenders means, on any date of determination, any
Lender that has a Committed Sum under the Term Loan Facility.
Term Loan Note means a promissory note substantially in the
form of Exhibit A-2, and all renewals and extensions of all or
any part thereof.
Term Loan Principal Debt means, on any date of
determination, the aggregate unpaid principal balance of all
Borrowings under the Term Loan Facility.
Total Assets means, on any date of determination, the total
assets of the Companies, as reflected on the most recently-
delivered consolidated Financial Statements of the Companies.
Total Commitment means, on any date of determination, the
sum of all Committed Sums then in effect for all Lenders in
respect of the Revolver Facility, the Term Loan Facility, the
180-Day Term Facility, and the One-Year Term Facility (as any of
the same may have been reduced or canceled as provided in the
Loan Documents).
Total Debt means, on any date of determination, the Debt of
the Companies determined on a consolidated basis, excluding the
following: (a) obligations of any Company under non-compete
agreements, (b) the undrawn amounts under any issued and
outstanding letters of credit or banker's acceptances issued for
the account of any Company, (c) net payments under Financial
Hedges, (d) any Debt described in clauses (c) and (f) of the
definition of "Debt" set forth in this Section 1.1, and
(e) guaranties by any Company of any Debt described in
clauses (a) - (d) hereof.
Type means any type of Borrowing determined with respect to
the interest option applicable thereto.
UCC means the Uniform Commercial Code enacted in the State
of New York or other applicable jurisdiction, as amended at the
time in question.
Voting Stock means securities (as such term is defined in
Section 2(1) of the Securities Act of 1933, as amended) of any
class or classes, the holders of which are ordinarily, in the
absence of contingencies, entitled to elect a majority of the
corporate directors (or Persons performing similar functions).
Wholly-owned when used in connection with any Subsidiary
shall mean a Subsidiary of which all of the issued and
outstanding shares of stock (except shares required as directors'
qualifying shares) shall be owned by Borrower or one or more of
its Wholly-owned Subsidiaries.
Year 2000 Compliant has the meaning given such term in
Section 8.25.
Year 2000 Plan has the meaning given such term in
Section 8.25.
1.2 Number and Gender of Words; Other References. Unless
otherwise specified in the Loan Documents, (a) where appropriate,
the singular includes the plural and vice versa, and words of any
gender include each other gender, (b) heading and caption
references may not be construed in interpreting provisions, (c)
monetary references are to currency of the United States of
America, (d) section, paragraph, annex, schedule, exhibit, and
similar references are to the particular Loan Document in which
they are used, (e) references to "telecopy," "facsimile," "fax,"
or similar terms are to facsimile or telecopy transmissions, (f)
references to "including" mean including without limiting the
generality of any description preceding that word, (g) the rule
of construction that references to general items that follow
references to specific items are limited to the same type or
character of those specific items is not applicable in the Loan
Documents, (h) references to any Person include that Person's
heirs, personal representatives, successors, trustees, receivers,
and permitted assigns, (i) references to any Law include every
amendment or supplement to it, rule and regulation adopted under
it, and successor or replacement for it, and (j) references to
any Loan Document or other document include every renewal and
extension of it, amendment and supplement to it, and replacement
or substitution for it.
1.3 Accounting Principles. All accounting and financial
terms used in the Loan Documents and the compliance with each
financial covenant therein shall be determined in accordance with
GAAP, and, all accounting principles shall be applied on a
consistent basis so that the accounting principles in a current
period are comparable in all material respects to those applied
during the preceding comparable period. If Borrower or any
Lender determines that a change in GAAP from that in effect on
the date hereof has altered the treatment of certain financial
data to its detriment under this Agreement, such party may, by
written notice to the others and Administrative Agent not later
than sixty (60) days after the end of the calendar quarter during
which such change in GAAP becomes effective, request
renegotiation of the financial covenants affected by such change.
If the Borrower and Required Lenders have not agreed on revised
covenants within thirty (30) days after delivery of such notice,
then, for purposes of this Agreement, GAAP will mean generally
accepted accounting principles on the date just prior to the date
on which the change that gave rise to the renegotiation occurred.
SECTION 2 BORROWING PROVISIONS.
2.1 Revolver Facility. Each Revolver Lender severally, but
not jointly, agrees to lend to Borrower such Revolver Lender's
Commitment Percentage of one or more Borrowings under the
Revolver Facility not to exceed such Revolver Lender's Committed
Sum under the Revolver Facility, which Borrowings may be repaid
and reborrowed from time to time in accordance with the terms and
provisions of the Loan Documents; provided that, (a) each such
Borrowing must occur on a Business Day and no later than the
Business Day immediately preceding the Termination Date for the
Revolver Facility; (b) each such Borrowing shall be in an amount
not less than $5,000,000 or a greater integral multiple of
$1,000,000 if a Eurodollar Rate Borrowing, or $1,000,000 or a
greater integral multiple of $100,000 if a Base Rate Borrowing or
Swing Line Borrowing, and (c) on any date of determination, the
Revolver Commitment Usage shall never exceed the Revolver
Commitment.
2.2 Term Loan Facility. Each Term Loan Lender severally,
but not jointly, agrees to lend to Borrower in a single Borrowing
on the Closing Date such Term Loan Lender's Commitment Percentage
of the Term Loan Commitment. If all or any portion of the Term
Loan Principal Debt is paid or prepaid, then the amount so repaid
may not be reborrowed.
2.3 180-Day Term Facility. Each 180-Day Term Lender
severally, but not jointly, agrees to lend to Borrower such
180-Day Term Lender's Commitment Percentage of the 180-Day Term
Commitment in a single Borrowing on the Closing Date. If all or
any portion of the 180-Day Term Principal Debt is paid or
prepaid, then the amount so repaid may not be reborrowed.
2.4 One-Year Term Facility. Each One-Year Term Lender
severally, but not jointly, agrees to lend to Borrower such
One-Year Term Lender's Commitment Percentage of the One-Year Term
Commitment in a single Borrowing on the Closing Date. If all or
any portion of the One-Year Term Principal Debt is paid or
prepaid, then the amount so repaid may not be reborrowed.
2.5 LC Subfacility.
(a) Conditions. Subject to the terms and conditions
of this Agreement and applicable Law, Administrative Agent
agrees to issue LCs (denominated in Dollars or, upon
Borrower's request and subject to this Section 2.5, in a
Foreign Currency) upon Borrower's application therefor by
delivering to Administrative Agent a properly completed LC
Request and an LC Agreement, both of which must be received
by Administrative Agent no later than 10:00 a.m. Dallas,
Texas time three Business Days before the Business Day on
which the requested LC is to be issued, so long as (i) on
any date of determination and after giving effect to any LC
to be issued on such date, the Revolver Commitment Usage
(calculated at the then Dollar-Equivalent of that amount)
shall never exceed the Revolver Commitment then in effect,
(ii) on any date of determination and after giving effect to
any LC to be issued on such date, the LC Exposure
(calculated at the then Dollar-Equivalent of that amount)
shall never exceed $25,000,000 (as such commitment under the
LC Subfacility may be reduced or canceled as herein
provided), (iii) at the time of issuance of such LC, no
Default or Potential Default shall exist, and (iv) each LC
must expire no later than the earlier of the 30th day prior
to the Termination Date for the Revolver Facility or one
year from its issuance; provided that, any LC may provide
for automatic renewal for successive twelve month periods
(but no renewal period may extend beyond the 30th day prior
to the Termination Date for the Revolver Facility) unless
Administrative Agent has given prior notice to the
applicable beneficiary of its election not to extend such
LC.
(b) Participations. Immediately upon the issuance by
Administrative Agent of any LC, Administrative Agent shall
be deemed to have sold and transferred to each other
Revolver Lender, and each other such Revolver Lender shall
be deemed irrevocably and unconditionally to have purchased
and received from Administrative Agent, without recourse or
warranty, an undivided interest and participation, to the
extent of such Revolver Lender's Commitment Percentage
(based upon the Revolver Facility) in such LC (calculated
from time to time at the Dollar-Equivalent amount of such
LC), the LC Application related thereto, and all Rights of
Administrative Agent in respect thereof (other than Rights
to receive certain fees provided for in Section 5.4(b)).
(c) Reimbursement Obligation. To induce
Administrative Agent to issue and maintain LCs and to induce
Revolver Lenders to participate in issued LCs, Borrower
agrees to pay or reimburse Administrative Agent (i) no later
than one Business day after the date on which any draft is
presented under any LC, the Dollar-Equivalent amount
(calculated at the then Dollar-Equivalent of such amount) of
any draft paid or to be paid by Administrative Agent and
(ii) promptly, upon demand, the amount of any fees (in
addition to the fees described in Section 5) which
Administrative Agent customarily charges for amending LC
Agreements, for honoring drafts under letters of credit, and
taking similar action in connection with letters of credit.
If Borrower has not reimbursed Administrative Agent for any
draft paid or to be paid within one Business Day after such
draft is presented under any LC, Administrative Agent is
hereby irrevocably authorized to fund such reimbursement
obligations (calculated at the then Dollar-Equivalent of
such amount) as a Base Rate Borrowing under the Revolver
Facility to the extent of availability and if the conditions
precedent in this Agreement for such a Borrowing (other than
any notice requirements or minimum funding amounts) have, to
Administrative Agent's knowledge, been satisfied. The
proceeds of such Borrowing shall be advanced directly to
Administrative Agent in payment of Borrower's unpaid
reimbursement obligations. If for any reason, funds cannot
be advanced under the Revolver Facility, then Borrower's
reimbursement obligation shall constitute a demand
obligation. Borrower's obligations under this
Section 2.5(c) are absolute and unconditional under any and
all circumstances and irrespective of any setoff,
counterclaim, or defense to payment which Borrower may have
at any time against Administrative Agent or any other
Person. From the date that Administrative Agent pays a
draft under an LC until the related reimbursement obligation
of Borrower is paid or funded by proceeds of a Borrowing,
unpaid reimbursement obligations (calculated at the then
Dollar-Equivalent of such amount) shall accrue interest at
the Default Rate, which accrued interest shall be payable on
demand.
(d) General. Administrative Agent shall promptly
notify Borrower of the date and amount of any draft
(calculated at the then Dollar-Equivalent of such amount)
presented for honor under any LC (but failure to give any
such notice shall not affect Borrower's obligations under
this Agreement). Administrative Agent shall pay the
requested amount (calculated at the then Dollar-Equivalent
of such amount) upon presentment of a draft for honor unless
such presentment on its face does not comply with the terms
of the applicable LC. When making payment, Administrative
Agent may disregard (i) any default or potential default
that exists under any other agreement and (ii) the
obligations under any other agreement that have or have not
been performed by the beneficiary or any other Person (and
Administrative Agent shall not be liable for any obligation
of any Person thereunder). Borrower's reimbursement
obligations to Administrative Agent and Revolver Lenders,
and each Revolver Lender's obligations to Administrative
Agent, under this Section 2.5 are absolute and unconditional
irrespective of, and Administrative Agent is not responsible
for, (i) the validity, enforceability, sufficiency,
accuracy, or genuineness of documents or endorsements which
appear appropriate on their face (even if they are in any
respect invalid, unenforceable, insufficient, inaccurate,
fraudulent, or forged), (ii) any dispute by any Company with
or any Company's claims, setoffs, defenses, counterclaims,
or other Rights against Administrative Lender, any Revolver
Lender, or any other Person, or (iii) the occurrence of any
Potential Default or Default. However, nothing in this
Section 2.5 constitutes a waiver of the Rights of Borrower
or any Revolver Lender to assert any claim or defense based
upon the gross negligence or willful misconduct of
Administrative Agent. To the extent any Revolver Lender has
funded its ratable share of any draft under an LC, then
Administrative Agent shall promptly distribute reimbursement
payments received from Borrower to such Revolver Lender
according to its ratable share. In the event any payment by
Borrower received by Administrative Agent with respect to an
LC and distributed to Revolver Lenders on account of their
participations therein is thereafter set aside, avoided, or
recovered from Administrative Agent in connection with any
receivership, liquidation, or bankruptcy proceeding, each
Revolver Lender which received such distribution shall, upon
demand by Administrative Agent, contribute such Revolver
Lender's ratable portion of the amount (calculated at the
then Dollar-Equivalent of such amount) set aside, avoided,
or recovered, together with interest at the rate required to
be paid by Administrative Agent upon the amount required to
be repaid by it.
(e) Obligation of Lenders. If Borrower fails to
reimburse Administrative Agent as provided in Section 2.5(c)
within 24 hours of the demand therefor by Administrative
Agent and funds cannot be advanced under the Revolver
Facility to satisfy the reimbursement obligations, then
Administrative Agent shall promptly notify each Revolver
Lender of Borrower's failure, of the date and amount of the
draft (calculated at the then Dollar-Equivalent of such
amount) paid, and of such Revolver Lender's Commitment
Percentage (based upon the Revolver Facility) thereof. Each
Revolver Lender shall promptly and unconditionally fund its
participation interest in such unreimbursed draft by making
available to Administrative Agent in Dollars in immediately
available funds such Revolver Lender's Commitment Percentage
(based upon the Revolver Facility) of the unreimbursed draft
(calculated at the then Dollar-Equivalent of such amount).
Funds are due and payable to Administrative Agent on or
before the close of business on the Business Day when
Administrative Agent gives notice to each Revolver Lender of
Borrower's reimbursement failure (if given prior to
1:00 p.m., Dallas, Texas time) or on the next succeeding
Business Day (if notice was given after 1:00 p.m., Dallas,
Texas time). All amounts payable by any Revolver Lender
shall accrue interest at the Federal Funds Rate from the day
the applicable draft is paid by Administrative Agent to (but
not including) the date the amount is paid by the Revolver
Lender to Administrative Agent.
(f) Duties of Administrative Agent as Issuing Lender.
Administrative Agent agrees with each Revolver Lender that
it will exercise and give the same care and attention to
each LC as it gives to its other letters of credit .
Administrative Agent's sole liability to each Revolver
Lender with respect to such LCs (other than liability
arising from the gross negligence or willful misconduct of
Administrative Agent) shall be to distribute promptly to
each Revolver Lender who has acquired a participating
interest therein such Revolver Lender's ratable portion of
any payments made to Administrative Agent by Borrower
pursuant to Section 2.5(d). Each Revolver Lender and
Borrower agree that, in paying any draw under any LC,
Administrative Agent shall not have any responsibility to
obtain any document (other than any documents required by
the respective LC) or to ascertain or inquire as to any
document's validity, enforceability, sufficiency, accuracy,
or genuineness or the authority of any Person delivering any
such document. Administrative Agent, Revolver Lenders, and
their respective Representatives shall not be liable to any
other Lender or any Company for any LCs use or for any
beneficiary's acts or omissions. Any action, inaction,
error, delay, or omission taken or suffered by
Administrative Agent or any of its Representatives under or
in connection with any LC, applicable drafts or documents,
or the transmission, dispatch, or delivery of any related
message or advice, if in good faith and in conformity with
such Laws as Administrative Agent or any of its
Representatives may deem applicable and in accordance with
the standards of care specified in the Uniform Customs and
Practice for Documentary Credits issued by the International
Chamber of Commerce, as in effect on the date of issue of
such LC, shall be binding upon the Companies and Lenders and
shall not place Administrative Agent or any of its
Representatives under any resulting liability to any Company
or any Lender.
(g) Cash Collateral. On the Termination Date for the
Revolver Facility, or on any date that the LC Exposure
exceeds the then-effective commitment under the LC
Subfacility, or upon any demand by Administrative Agent upon
the occurrence and during the continuance of a Default,
Borrower shall provide to Administrative Agent, for the
benefit of Revolver Lenders, (i) cash collateral in Dollars
in an amount equal to 105% of the LC Exposure existing on
such date (calculated at the then Dollar-Equivalent of such
amount), such cash and all interest thereon shall constitute
cash collateral for all LCs, and (ii) such additional cash
collateral as Administrative Agent may from time to time
require, so that the cash collateral amount shall at all
times equal or exceed 105% the LC Exposure (calculated at
the then Dollar-Equivalent of such amount). Any cash
collateral deposited under this clause (g), and all interest
earned thereon, shall be held by Administrative Agent and
invested and reinvested at the expense and the written
direction of Borrower, in U.S. Treasury Bills with
maturities of no more than ninety (90) days from the date of
investment.
(h) Indemnification. Borrower shall protect,
indemnify, pay (calculated at the then Dollar-Equivalent of
such amount), and save Administrative Agent and each Lender
harmless from and against any and all claims, demands,
liabilities, damages, or losses of, or owed to third parties
(including any of the foregoing arising from the negligence
of Administrative Agent, Lenders, or their respective
representatives), and any and all related costs, charges,
and expenses (including reasonable attorneys' fees), which
Administrative Agent, or any Lender may incur or be subject
to as a consequence, direct or indirect, of (A) the issuance
of any LC, (B) any dispute about an LC, or (C) the failure
of Administrative Agent to honor a draft under such LC as a
result of any act or omission (whether right or wrong) of
any present or future Governmental Authority. However, no
Person is entitled to indemnity hereunder for its own gross
negligence or willful misconduct. The foregoing indemnity
provisions shall survive the satisfaction and payment of the
Obligation and termination of this Agreement.
(i) LC Agreements. Although referenced in any LC,
terms of any particular agreement or other obligation to the
beneficiary are not incorporated into this Agreement in any
manner. The fees and other amounts payable with respect to
each LC are as provided in this Agreement, drafts under any
LC shall be deemed part of the Obligation, and in the event
of any conflict between the terms of this Agreement and any
LC Agreement, the terms of this Agreement shall be
controlling.
2.6 Swing Line Subfacility.
(a) For the convenience of the parties and as an
integral part of the transactions contemplated by the Loan
Documents, Swing Line Lender, solely for its own account,
agrees to make any requested Borrowing of $1,000,000 or a
greater integral multiple of $100,000, subject to those
terms and conditions applicable to Borrowings set forth in
Section 7.3(b), (c), (d), (e), and (f), directly to Borrower
as a Swing Line Borrowing without requiring any other Lender
to fund its Pro Rata Part thereof unless and until
Section 2.6(b) is applicable; provided that: (i) each Swing
Line Borrowing must occur on a Business Day and no later
than the Business Day immediately preceding the Termination
Date for the Revolver Facility; (ii) the aggregate Swing
Line Principal Debt outstanding on any date of determination
shall not exceed the Swing Line Commitment; (iii) on any
date of determination, the Revolver Commitment Usage shall
never exceed the Revolver Commitment; (iv) the Swing Line
Principal Debt outstanding on any date of determination
shall not exceed the Revolver Commitment then in effect;
(v) at the time of such Swing Line Borrowing, no Default or
Potential Default shall have occurred and be continuing;
(vi) each Swing Line Borrowing shall bear interest at a rate
per annum equal to a rate mutually agreed to by Borrower and
Swing Line Lender; provided that at any time after Revolver
Lenders are deemed to have purchased, pursuant to
Section 2.6(b), a participation in any Swing Line Borrowing,
such Borrowing shall bear interest at the Default Rate; and
(vii) no additional Swing Line Borrowing shall be made at
any time after any Revolver Lender has refused,
notwithstanding the requirements of Section 2.6(b), to
purchase a participation in any Swing Line Borrowing as
provided in such Section, and until such purchase shall
occur or until the Swing Line Borrowing has been repaid.
Each Borrowing under the Swing Line Subfacility shall be
available and may be prepaid on same day telephonic notice
from Borrower to Swing Line Lender, so long as such notice
is received by Swing Line Lender prior to 1:00 p.m., Dallas,
Texas time. Accrued interest on Swing Line Borrowings shall
be due and payable on each March 31, June 30, September 30,
and December 31, and on the Termination Date for the
Revolver Facility.
(b) Borrowings under the Swing Line Subfacility shall
be due one Business Day after demand. If Borrower fails to
repay any Swing Line Borrowing as provided herein, and funds
cannot be or are not advanced under the Revolver Facility to
satisfy the obligations under the Swing Line Subfacility,
Administrative Agent shall timely notify each Revolver
Lender of such failure and of the date and amount not paid.
No later than the close of business on the date such notice
is given (if such notice was given prior to 12:00 noon,
Dallas, Texas time on any Business Day, or, if made at any
other time, on the next Business Day following the date of
such notice), each Revolver Lender shall be deemed to have
irrevocably and unconditionally purchased and received from
Swing Line Lender an undivided interest and participation in
such Swing Line Borrowing to the extent of such Revolver
Lender's Pro Rata Part (with respect to the Revolver
Facility) thereof, and each Revolver Lender shall make
available to Swing Line Lender in immediately available
funds such Revolver Lender's Pro Rata Part (with respect to
the Revolver Facility) of the unpaid amount of such Swing
Line Borrowing. All such amounts payable by any Revolver
Lender shall include interest thereon from the date on which
such payment is payable by such Revolver Lender to, but not
including, the date such amount is paid by such Revolver
Lender to Administrative Agent, at the Federal Funds Rate.
If such Revolver Lender does not promptly pay such amount
upon Administrative Agent's demand therefor, and until such
time as such Revolver Lender makes the required payment,
Swing Line Lender shall be deemed to continue to have
outstanding a Swing Line Borrowing in the amount of such
unpaid obligation. Each payment by Borrower of all or any
part of any Swing Line Borrowing shall be paid to
Administrative Agent for the ratable benefit of Swing Line
Lender and those Revolver Lenders who have funded their
participations in such Swing Line Principal Debt under this
Section 2.6(b); provided that, with respect to any such
participation, all interest accruing on the Swing Line
Principal Debt to which such participation relates prior to
the date of funding such participation shall be payable
solely to Swing Line Lender for its own account. In the
event that any payment received by the Swing Line Lender is
required to be returned, each Revolver Lender will return to
the Swing Line Lender any portion thereof previously
distributed by the Swing Line Lender to it.
(c) Notwithstanding anything to the contrary in this
Agreement, each Revolver Lender's obligation to fund the
Borrowings and to purchase and fund participating interests
pursuant to Section 2.6(b) shall be absolute and
unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any setoff, counterclaim,
recoupment, defense, or other right which such Revolver
Lender or Borrower may have against the Swing Line Lender,
Borrower, or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Potential Default or
a Default or the failure to satisfy any of the conditions
specified in Section 7; (iii) any adverse change in the
condition (financial or otherwise) of any Company; (iv) any
breach of this Agreement by Borrower, any Guarantor, or any
Lender; or (v) any other circumstance, happening, or event
whatsoever, whether or not similar to any of the foregoing.
2.7 Terminations or Reductions of Commitments.
(a) Voluntary Commitment Reductions. Without premium
or penalty, and upon giving not less than three Business
Days prior written and irrevocable notice to Administrative
Agent, Borrower may terminate in whole or in part the unused
portion of the Revolver Commitment, the Swing Line
Commitment, or the commitment under the LC Subfacility;
provided that: (i) each partial termination of the Revolver
Commitment shall be in an amount of not less than
$10,000,000 or a greater integral multiple of $5,000,000;
each partial termination of the Swing Line Subfacility or
the LC Subfacility shall be in an amount of not less than
$1,000,000 or a greater integral multiple of $250,000; and
(ii) on any date of determination, the amount of the
Revolver Commitment may not be reduced below the Revolver
Commitment Usage; the Swing Line Commitment may not be
reduced below the Swing Line Principal Debt; and the
commitment under the LC Subfacility shall not be reduced
below the LC Exposure. At the time of any Revolver
Commitment termination, Borrower shall pay to Administrative
Agent, for the account of each Revolver Lender, as
applicable, any amounts that may then be due under
Section 3.3(c), all accrued and unpaid fees then due and
payable under this Agreement, the interest attributable to
the amount of that reduction, and any related Consequential
Loss. Any part of the Revolver Commitment that is
terminated may not be reinstated.
(b) Mandatory Commitment Reduction. As of the date of
any principal payment or prepayment of any Term Loan
Principal Debt, 180-Day Term Principal Debt, or One-Year
Term Principal Debt, the Term Loan Commitment, the 180-Day
Term Commitment, or the One-Year Term Commitment (as the
case may be) shall be reduced by the amount of the
respective principal payment or prepayment, and each Term
Loan Lender's Committed Sum under the Term Loan Facility,
each 180-Day Term Lender's Committed Sum under the 180-Day
Term Facility, or each One-Year Term Lender's Committed Sum
under the One-Year Term Facility (as the case may be) shall
be ratably reduced by the amount of each such principal
payment or prepayment.
(c) Additional Reductions. The Swing Line Commitment
and the commitment under the LC Subfacility shall each be
reduced from time to time on the date of any mandatory or
voluntary reduction of the Revolver Commitment by the
amount, if any, by which each such Subfacility exceeds the
Revolver Commitment after giving effect to such reduction of
the Revolver Commitment.
(d) Ratable Allocation of Revolver Commitment
Reductions. Each reduction of the Revolver Commitment under
this Section 2.7 shall be allocated among the Revolver
Lenders in accordance with their respective Commitment
Percentages under the Revolver Facility.
2.8 Borrowing Procedure. The following procedures apply to
all Borrowings (other than Swing Line Borrowings and Borrowings
pursuant to Section 2.5(c)):
(a) Borrowing Request. Borrower may request a
Borrowing by making or delivering a Borrowing Notice (that
may be telephonic if confirmed in writing within two
Business Days) to Administrative Agent requesting that
Lenders fund a Borrowing on a certain date (the "Borrowing
Date"), which Borrowing Notice (i) shall be irrevocable and
binding on Borrower, (ii) shall specify the Facility or
Facilities under which such Borrowing is being made,
(iii) shall specify the Borrowing Date, amount, Type, and
(for a Borrowing comprised of Eurodollar Rate Borrowings)
Interest Period, and (iv) must be received by Administrative
Agent no later than 11:00 a.m. Dallas, Texas time on either
the third Business Day preceding the Borrowing Date for any
Eurodollar Rate Borrowing or the same Business Day for any
Base Rate Borrowing. Administrative Agent shall timely
notify each Lender with respect to each Borrowing Notice.
(b) Funding. Each Lender shall remit its Commitment
Percentage for the relevant Facility of each requested
Borrowing to Administrative Agent's principal office in
Dallas, Texas, in funds which are or will be available for
immediate use by Administrative Agent by 1:00 p.m. Dallas,
Texas time on the applicable Borrowing Date. Subject to
receipt of such funds, Administrative Agent shall (unless to
its actual knowledge any of the conditions precedent
therefor have not been satisfied by Borrower or waived by
the requisite Lenders under Section 13.11) make such funds
available to Borrower by (at Borrower's option) (i) wiring
the funds to or for the account of Borrower or
(ii) depositing the funds in Borrower's account with
Administrative Agent.
(c) Funding Assumed. Absent contrary written notice
from a Lender, Administrative Agent may assume that each
Lender has made its Commitment Percentage of the requested
Borrowing available to Administrative Agent on the
applicable Borrowing Date, and Administrative Agent may, in
reliance upon such assumption (but shall not be required
to), make available to Borrower a corresponding amount. If
a Lender fails to make its Commitment Percentage of any
requested Borrowing available to Administrative Agent on the
applicable Borrowing Date, Administrative Agent may recover
the applicable amount on demand, (i) from that Lender
together with interest, commencing on the Borrowing Date and
ending on (but excluding) the date Administrative Agent
recovers the amount from that Lender, at an annual interest
rate equal to the Federal-Funds Rate, or (ii) if that Lender
fails to pay its amount upon demand, then from Borrower. No
Lender is responsible for the failure of any other Lender to
make its Commitment Percentage of any Borrowing available as
required by Section 2.8(b); however, failure of any Lender
to make its Commitment Percentage of any Borrowing so
available does not excuse any other Lender from making its
Commitment Percentage of any Borrowing so available.
SECTION 3 TERMS OF PAYMENT.
3.1 Loan Accounts, Notes, and Payments.
(a) Loan Accounts; Noteless Transaction. The
Principal Debt owed to each Lender shall be evidenced by one
or more loan accounts or records maintained by such Lender
in the ordinary course of business. The loan accounts or
records maintained by the Administrative Agent (including,
without limitation, the Register) and each Lender shall be
prima facie evidence absent manifest error of the amount of
the Borrowings made by Borrower from each Lender under this
Agreement (and the Facilities and Subfacilities thereunder)
and the interest and principal payments thereon. Any
failure to so record or any error in doing so shall not,
however, limit or otherwise affect the obligation of
Borrower under the Loan Documents to pay any amount owing
with respect to the Obligation.
(b) Notes. Upon the request of any Lender, made
through the Administrative Agent, the Principal Debt owed to
such Lender may be evidenced by one or more of the following
Notes (as the case may be): (i) a Revolver Note (with
respect to Revolver Principal Debt other than under the
Swing Line Subfacility); (ii) a Swing Line Note (with
respect to Revolver Principal Debt arising under the Swing
Line Subfacility); (iii) a Term Loan Note (with respect to
Term Loan Principal Debt); (iv) a 180-Day Term Note (with
respect to the 180-Day Term Principal Debt); and (v) a
One-Year Term Note (with respect to the One-Year Term
Principal Debt).
(c) Payment. All payments of principal, interest, and
other amounts to be made by Borrower under this Agreement
and the other Loan Documents shall be made to Administrative
Agent at its principal office in Dallas, Texas in Dollars
and in funds which are or will be available for immediate
use by Administrative Agent by 12:00 noon Dallas, Texas time
on the day due, without setoff, deduction, or counterclaim.
Subject to Section 3.8 and the definition of "Interest
Period" herein, whenever any payment under this Agreement or
any other Loan Document shall be stated to be due on a day
that is not a Business Day, such payment may be made on the
next succeeding Business Day, and such extension of time in
such case shall be included in the computation of interest
and fees, as applicable and as the case may be. Payments
made after 12:00 noon, Dallas, Texas, time shall be deemed
made on the Business Day next following. Administrative
Agent shall pay to each Lender any payment of principal,
interest, or other amount to which such Lender is entitled
hereunder on the same day Administrative Agent shall have
received the same from Borrower; provided such payment is
received by Administrative Agent prior to 12:00 noon,
Dallas, Texas time, and otherwise before 12:00 noon Dallas,
Texas time on the Business Day next following.
(d) Payment Assumed. Unless Administrative Agent has
received notice from Borrower prior to the date on which any
payment is due under this Agreement that Borrower will not
make that payment in full, Administrative Agent may assume
that Borrower has made the full payment due and
Administrative Agent may, in reliance upon that assumption,
cause to be distributed to the appropriate Lender on that
date the amount then due to such Lenders. If and to the
extent Borrower does not make the full payment due to
Administrative Agent, each Lender shall repay to
Administrative Agent on demand the amount distributed to
that Lender by Administrative Agent together with interest
for each day from the date that Lender received payment from
Administrative Agent until the date that Lender repays
Administrative Agent (unless such repayment is made on the
same day as such distribution), at an annual interest rate
equal to the Federal Funds Rate.
3.2 Interest and Principal Payments.
(a) Interest. Accrued interest on each Eurodollar
Rate Borrowing is due and payable on the last day of its
respective Interest Period and on the Termination Date for
the applicable Facility; provided that, if any Interest
Period is greater than three months, then accrued interest
is also due and payable on the three month anniversary of
the date on which such Interest Period commences and on each
three month anniversary thereof, as well as on the last day
of such Interest Period. Accrued interest on each Base Rate
Borrowing shall be due and payable on each March 31,
June 30, September 30, and December 31, and on the
Termination Date for the applicable Facility.
(b) Revolver Principal Debt. The Revolver Principal
Debt is due and payable on the Termination Date for the
Revolver Facility.
(c) Term Loan Principal Debt. The Term Loan Principal
Debt is due and payable in quarterly installments in the
principal amounts indicated in the table below, commencing
on March 31, 2000, and continuing thereafter on the last
Business Day of each March, June, September, and December,
with the final payment due on the Termination Date for the
Term Loan Facility, in accordance with the following
amortization schedule:
Quarterly
Principal
Quarter Ending Installments
----------------- ----------------
March 31, 2000, $6,250,000/each
June 30, 2000,
September 30,
2000, and
December 31, 2000
March 31, 2001, $12,500,000/each
June 30, 2001,
September 30,
2001, and
December 31, 2001
March 31, 2002, $17,500,000/each
June 30, 2002,
September 30,
2002, and
December 31, 2002
March 31, 2003, $20,000,000/each
June 30, 2003,
September 30,
2003, and
December 31, 2003
March 31, 2004, $25,000,000/each
and June 30, 2004
August 2, 2004 $50,000,000
(d) 180-Day Term Principal Debt. The 180-Day Term
Principal Debt is due and payable in a single installment on
the Termination Date for the 180-Day Term Facility.
(e) One-Year Term Principal Debt. The One-Year Term
Principal Debt is due and payable in a single installment on
the Termination Date for the One-Year Term Facility.
3.3 Prepayments.
(a) Optional Prepayments. Except as set forth herein,
after giving Administrative Agent advance written notice of
the intent to prepay, Borrower may voluntarily prepay all or
any part of the Revolver Principal Debt, the Swing Line
Principal Debt, the Term Loan Principal Debt, the 180-Day
Term Principal Debt, or the One-Year Term Principal Debt
from time to time and at any time, in whole or in part,
without premium or penalty; provided that: (i) such notice
must be received by Administrative Agent by 12:00 noon,
Dallas, Texas time, one Business Day preceding the date of
prepayment of any Borrowing; (ii) each such partial
prepayment must be in a minimum amount of at least
$5,000,000 or a greater integral multiple of $1,000,000
thereof or such lesser amount as may be outstanding under
the applicable Facility (or with respect to prepayments of
the Swing Line Principal Debt, $1,000,000 or a greater
integral multiple of $250,000 thereof or such lesser amount
as may be outstanding under the Swing Line Subfacility);
(iii) any Eurodollar Rate Borrowing may only be prepaid at
the end of an applicable Interest Period (unless Borrower
pays the amount of any Consequential Loss); and (iv)
Borrower shall pay any related Consequential Loss within
ten (10) days after demand therefor. Conversions under
Section 3.11 are not prepayments. Each notice of prepayment
shall specify the prepayment date, the Facility hereunder
being prepaid, and the Type of Borrowing(s) and amount(s) of
such Borrowing(s) to be prepaid and shall constitute a
binding obligation of Borrower to make a prepayment on the
date stated therein, together with (unless such prepayment
is made with respect to a Base Rate Borrowing or Swing Line
Borrowing) accrued and unpaid interest to the date of such
payment on the aggregate principal amount prepaid. Unless a
Default or Potential Default has occurred and is continuing
(or would arise as a result thereof), any payment or
prepayment of the Revolver Principal Debt may be reborrowed
by Borrower, subject to the terms and conditions hereof.
(b) Mandatory Prepayments from Net Cash Proceeds.
Until such time as the Principal Debt has been repaid in
full, the Principal Debt shall be permanently prepaid in the
amounts and upon the occurrence of any of the following
events:
(i) Concurrently with any Debt Issuance by any
Company, the Principal Debt shall be permanently
prepaid, in the order and manner specified herein, by
an amount equal to 100% of the Net Cash Proceeds
realized by any Company from such Debt Issuance;
(ii) Concurrently with the sale of any Designated
Asset or the Golden Aluminum Company Sale, the
Principal Debt shall be permanently prepaid, in the
order and manner specified herein, by an amount equal
to 100% of the Net Cash Proceeds realized by any
Company from any such sale, or in the case of the
Golden Aluminum Company Sale, as and when any deferred
Purchase Price is received;
(iii) Concurrently with the consummation of
any Significant Sale by any Company (which Significant
Sale must be otherwise permitted under the Loan
Documents or shall have been consented to by Required
Lenders), the Principal Debt shall be permanently
prepaid in the order and manner specified herein, by an
amount equal to 100% of the Net Cash Proceeds realized
by any Company from such Significant Sale or as and
when any deferred Purchase Price is received (or if
such disposition is a Significant Sale as a result of
aggregation with other asset dispositions in the same
fiscal year, 100% of the aggregate Net Cash Proceeds
received from all such asset dispositions in the
calendar year in excess of $10,000,000), if such Net
Cash Proceeds or any portion thereof have not been
reinvested in similar assets of the Companies within
12 months from the date of consummation of such
Significant Sale or other asset disposition, as the
case may be;
(iv) Concurrently with any Equity Issuance by any
Company, the Principal Debt shall be permanently
prepaid in the order and manner specified herein, by an
amount equal to (a) 100% of the Net Cash Proceeds
realized by any Company from such Equity Issuance, if
the Leverage Ratio determined as of the date of the
Equity Issuance (immediately prior to giving effect to
such mandatory prepayment) is greater than or equal to
4.0 to 1.0 or (b) 75% of the Net Cash Proceeds realized
by any Company from such Equity Issuance if the
Leverage Ratio determined as of the date of the Equity
Issuance (immediately prior to giving effect to such
mandatory prepayment) is less than 4.0 to 1.0; and
(v) Concurrently with the Ceramics Spinoff, the
Principal Debt shall be permanently prepaid in the
order and manner specified herein, by an amount equal
to 100% of the Net Cash Proceeds realized by Borrower
from the repayment of any inter-Company Debt owed by,
Distributions paid by, or consideration received for
inter-Company asset dispositions from Coors Porcelain
Company or any of its Subsidiaries to Borrower.
Each commitment reduction or prepayment under this
Section 3.3(b) shall be applied as follows: (i) first, as a
prepayment of the Obligation arising under the 180-Day Term
Facility until paid in full, (ii) second, as a prepayment of
the Obligation arising under the One-Year Term Facility
until paid in full, (iii) third, as a prepayment of the
Obligation arising under the Term Loan Facility until paid
in full, and (iv) fourth, if the commitment reduction or
prepayment under Section 3.3(b)(ii), (iii), or (v) occurs
prior to the Qualifying Date, as a reduction of the Revolver
Commitment and if required pursuant to Section 3.3(c), a
mandatory prepayment of the Revolver Principal Debt. All
mandatory prepayments of the Term Loan Principal Debt shall
be applied Pro Rata to the Term Loan Principal Debt owed to
each Term Loan Lender and shall be applied to the regularly-
scheduled Term Loan Principal Debt reductions as set forth
in Section 3.2(c) in inverse order of maturities. All
mandatory prepayments of the 180-Day Term Principal Debt or
the One-Year Term Principal Debt shall be applied Pro Rata
to the 180-Day Term Principal Debt or the One-Year Term
Principal Debt (as the case may be) owed to each 180-Day
Term Lender or One-Year Term Lender.
(c) Revolver Facility Mandatory Payments/Reductions.
On any date of determination if the Revolver Commitment
Usage exceeds the Revolver Commitment then in effect
(including any Revolver Commitment reduction pursuant to
Section 3.3(b)) or the Swing Line Principal Debt exceeds the
Swing Line Commitment then in effect, then Borrower shall
make a mandatory prepayment of the Revolver Principal Debt
or the Swing Line Principal Debt, as the case may be, in at
least the amount of such excess, together with (x) all
accrued and unpaid interest on the principal amount so
prepaid and (y) any Consequential Loss arising as a result
thereof; provided that, if no Swing Line Principal Debt or
Revolver Principal Debt is then outstanding, Borrower shall
provide to Administrative Agent, for the benefit of Lenders,
cash collateral in Dollars in an amount at least equal to
105% such excess. All mandatory prepayments under the
Revolver Facility or Revolver Commitment reductions
hereunder shall be allocated among the Revolver Lenders in
accordance with their respective Commitment Percentages
under the Revolver Facility.
(d) Mandatory Prepayments of Interest/Consequential
Loss. All prepayments under Section 3.3(b) and (c) shall be
made, together with accrued interest to the date of such
prepayment on the principal amount prepaid, together with
any Consequential Loss arising as a result thereof.
3.4 Interest Options. Except that the Eurodollar Rate may
not be selected when a Default or Potential Default exists and
except as otherwise provided in this Agreement, Borrowings bear
interest at a rate per annum equal to the lesser of (a) as to the
respective Type of Borrowing (as designated by Borrower in
accordance with this Agreement), the Base Rate plus the
Applicable Margin for Base Rate Borrowings or the Adjusted
Eurodollar Rate plus the Applicable Margin for Eurodollar Rate
Borrowings, and (b) the Maximum Rate. Each change in the Base
Rate or the Maximum Rate, subject to the terms of this Agreement,
will become effective, without notice to Borrower or any other
Person, upon the effective date of such change.
3.5 Quotation of Rates. Borrower may call Administrative
Agent before delivering a Borrowing Notice to receive an
indication of the rates then in effect, but such indicated rates
do not bind Administrative Agent or Lenders or affect the rate of
interest that is actually in effect when the Borrowing Notice is
given or on the Borrowing Date.
3.6 Default Rate. At the option of Required Lenders and to
the extent permitted by Law, all past-due Principal Debt, all
past due payment and reimbursement obligations in connection with
LCs, and past due interest accruing on any of the foregoing shall
bear interest from maturity (stated or by acceleration) at the
Default Rate until paid, regardless whether such payment is made
before or after entry of a judgment.
3.7 Interest Recapture. If the designated rate applicable
to any Borrowing exceeds the Maximum Rate, the rate of interest
on such Borrowing shall be limited to the Maximum Rate, but any
subsequent reductions in such designated rate shall not reduce
the rate of interest thereon below the Maximum Rate until the
total amount of interest accrued thereon equals the amount of
interest which would have accrued thereon if such designated rate
had at all times been in effect. In the event that at maturity
(stated or by acceleration), or at final payment of the Principal
Debt, the total amount of interest paid or accrued is less than
the amount of interest which would have accrued if such
designated rates had at all times been in effect, then, at such
time and to the extent permitted by Law, Borrower shall pay an
amount equal to the difference between (a) the lesser of the
amount of interest which would have accrued if such designated
rates had at all times been in effect and the amount of interest
which would have accrued if the Maximum Rate had at all times
been in effect, and (b) the amount of interest actually paid or
accrued on the Principal Debt.
3.8 Interest Calculations. Interest will be calculated on
the basis of actual number of days (including the first day but
excluding the last day) elapsed but computed as if each calendar
year consisted of 360 days in the case of an Eurodollar Rate
Borrowing (unless the calculation would result in an interest
rate greater than the Maximum Rate, in which event interest will
be calculated on the basis of a year of 365 or 366 days, as the
case may be) and 365 or 366 days, as the case may be, in the case
of a Base Rate Borrowing. All interest rate determinations and
calculations by Administrative Agent are conclusive and binding
absent manifest error.
3.9 Maximum Rate. Regardless of any provision contained in
any Loan Document, neither Administrative Agent nor any Lender
shall ever be entitled to contract for, charge, take, reserve,
receive, or apply, as interest on all or any part of the
Obligation, any amount in excess of the Maximum Rate, and, if
Lenders ever do so, then such excess shall be deemed a partial
prepayment of principal and treated hereunder as such and any
remaining excess shall be refunded to Borrower. In determining
if the interest paid or payable exceeds the Maximum Rate,
Borrower and Lenders shall, to the maximum extent permitted under
applicable Law, (a) treat all Borrowings as but a single
extension of credit (and Lenders and Borrower agree that such is
the case and that provision herein for multiple Borrowings is for
convenience only), (b) characterize any nonprincipal payment as
an expense, fee, or premium rather than as interest, (c) exclude
voluntary prepayments and the effects thereof, and (d) amortize,
prorate, allocate, and spread the total amount of interest
throughout the entire contemplated term of the Obligation.
However, if the Obligation is paid and performed in full prior to
the end of the full contemplated term thereof, and if the
interest received for the actual period of existence thereof
exceeds the Maximum Amount, Lenders shall refund such excess,
and, in such event, Lenders shall not, to the extent permitted by
Law, be subject to any penalties provided by any Laws for
contracting for, charging, taking, reserving, or receiving
interest in excess of the Maximum Amount. If the Laws of the
State of Texas are applicable for purposes of determining the
"Maximum Rate" or the "Maximum Amount," then those terms mean the
"indicated rate ceiling" from time to time in effect under
Article 5069-1.04, Title 79, Revised Civil Statutes of Texas, as
amended. Borrower agrees that Chapter 15, Subtitle 79, Revised
Civil Statutes of Texas, 1925, as amended (which regulates
certain revolving credit loan accounts and revolving triparty
accounts), does not apply to the Obligation.
3.10 Interest Periods. When Borrower requests any
Eurodollar Rate Borrowing, Borrower may elect the interest period
(each an "Interest Period") applicable thereto, which may be, at
Borrower's option, one, two, three, or six months (or other
periods, if requested by Borrower and consented to by all Lenders
which have been requested to make such Borrowing); provided,
however, that: (a) the initial Interest Period for a Eurodollar
Rate Borrowing shall commence on the date of such Borrowing
(including the date of any conversion thereto), and each Interest
Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest Period
applicable thereto expires; (b) if any Interest Period for a
Eurodollar Rate Borrowing begins on a day for which there is no
numerically corresponding Business Day in the calendar month at
the end of such Interest Period, such Interest Period shall end
on the next Business Day immediately following what otherwise
would have been such numerically corresponding day in the
calendar month at the end of such Interest Period (unless such
date would be in a different calendar month from what would have
been the month at the end of such Interest Period, or unless
there is no numerically corresponding day in the calendar month
at the end of the Interest Period; whereupon, such Interest
Period shall end on the last Business Day in the calendar month
at the end of such Interest Period); (c) no Interest Period may
be chosen with respect to any portion of the Principal Debt which
would extend beyond the scheduled repayment date (including any
dates on which mandatory prepayments are required to be made) for
such portion of the Principal Debt; and (d) no more than an
aggregate of ten (10) Interest Periods shall be in effect at one
time.
3.11 Conversions. Borrower may (a) convert a Eurodollar
Rate Borrowing on the last day of the applicable Interest Period
to a Base Rate Borrowing, (b) convert a Base Rate Borrowing at
any time to a Eurodollar Rate Borrowing, and (c) elect a new
Interest Period (in the case of a Eurodollar Rate Borrowing), by
giving a Conversion Notice to Administrative Agent no later than
11:00 a.m. Dallas, Texas time on the third Business Day prior to
the date of conversion or the last day of the Interest Period, as
the case may be (in the case of a conversion to a Eurodollar Rate
Borrowing or an election of a new Interest Period), and no later
than 11:00 a.m. Dallas, Texas on the last Business Day of the
Interest Period (in the case of a conversion to a Base Rate
Borrowing); provided that, the principal amount converted to, or
continued as, a Eurodollar Rate Borrowing shall be in an amount
not less than $5,000,000 or a greater integral multiple of
$1,000,000 (or such lesser amount as may be outstanding under any
Facility). Administrative Agent shall timely notify each Lender
with respect to each Conversion Notice. Absent Borrower's
Conversion Notice or election of a new Interest Period, a
Eurodollar Rate Borrowing shall be deemed converted to a Base
Rate Borrowing effective as of the expiration of the Interest
Period applicable thereto. The right to convert from a Base Rate
Borrowing to a Eurodollar Rate Borrowing, or to continue as a
Eurodollar Rate Borrowing, shall not be available during the
occurrence of a Default or Potential Default.
3.12 Order of Application.
(a) No Default. If no Default or Potential Default
exists and if no order of application is otherwise specified
in Section 3.3 or otherwise in the Loan Documents, payments
and prepayments of the Obligation shall be applied first to
fees, second to accrued interest then due and payable on the
Principal Debt, and then to the remaining Obligation in the
order and manner as Borrower may direct.
(b) Default. If a Default or Potential Default exists
(or if Borrower fails to give directions as permitted under
Section 3.12(a)), any payment or prepayment (including
proceeds from the exercise of any Rights) shall be applied
to the Obligation in the following order: (i) to the
ratable payment of all fees, expenses, and indemnities for
which Agents or Lenders have not been paid or reimbursed in
accordance with the Loan Documents (as used in this
Section 3.12(b)(i), a "ratable payment" for any Lender or
any Agent shall be, on any date of determination, that
proportion which the portion of the total fees, expenses,
and indemnities owed to such Lender or such Agent bears to
the total aggregate fees, expenses, and indemnities owed to
Agents and all Lenders on such date of determination);
(ii) to the ratable payment of accrued and unpaid interest
on the Principal Debt (as used in this Section 3.12(b)(ii),
"ratable payment" means, for any Lender, on any date of
determination, that proportion which the accrued and unpaid
interest on the Principal Debt owed to such Lender bears to
the total accrued and unpaid interest on the Principal Debt
owed to all Lenders); (iii) to the ratable payment of the
Swing Line Principal Debt which is due and payable and which
remains unfunded by any Borrowing under the Revolver
Facility; provided that, such payments shall be allocated
ratably among the Swing Line Lender and the Revolver Lenders
which have funded their participations in the Swing Line
Principal Debt; (iv) to the ratable payment of any
reimbursement obligation with respect to any LC issued
pursuant to the Agreement which is due and payable and which
remains unfunded by any Borrowing, provided that, such
payments shall be allocated ratably among Administrative
Agent (as the issuing Lender) and the Lenders which have
funded their participations in such LC; (v) to the ratable
payment of the Principal Debt (as used in this
Section 3.12(b)(v), "ratable payment" means for any Lender,
on any date of determination, that proportion which the
Principal Debt owed to such Lender bears to the Principal
Debt owed to all Lenders; (vi) to provide cash collateral in
an amount equal to 105% of the LC Exposure then existing in
accordance with Section 2.5(g); and (vii) to the payment of
the remaining Obligation in the order and manner Required
Lenders deem appropriate.
Subject to the provisions of Section 12 and provided that
Administrative Agent shall not in any event be bound to inquire
into or to determine the validity, scope, or priority of any
interest or entitlement of any Lender and may suspend all
payments or seek appropriate relief (including, without
limitation, instructions from Required Lenders or an action in
the nature of interpleader) in the event of any doubt or dispute
as to any apportionment or distribution contemplated hereby,
Administrative Agent shall promptly distribute such amounts to
each Lender in accordance with the Agreement and the related Loan
Documents.
3.13 Sharing of Payments, Etc. If any Lender shall obtain
any payment or prepayment with respect to the Obligation (whether
voluntary, involuntary, or otherwise, including, without
limitation, as a result of exercising its Rights under
Section 3.14) which is in excess of its ratable share of any such
payment, then such Lender shall purchase from the other Lenders
such participations as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each
other Lender. If all or any portion of such excess payment is
subsequently recovered from such purchasing Lender, then the
purchase shall be rescinded and the purchase price restored to
the extent of such recovery. Borrower agrees that any Lender
purchasing a participation from another Lender pursuant to this
Section may, to the fullest extent permitted by Law, exercise all
of its Rights of payment (including the Right of offset) with
respect to such participation as fully as if such Lender were the
direct creditor of Borrower in the amount of such participation.
3.14 Offset. If a Default exists, each Lender shall be
entitled to exercise (for the benefit of all Lenders in
accordance with Section 3.13) the Rights of offset and/or
banker's Lien against each and every account and other property,
or any interest therein, which any Company may now or hereafter
have with, or which is now or hereafter in the possession of,
such Lender to the extent of the full amount of the Obligation.
3.15 Booking Borrowings. To the extent permitted by Law,
any Lender may make, carry, or transfer its Borrowings at, to, or
for the account of any of its branch offices or the office of any
of its Affiliates; provided that, no Affiliate shall be entitled
to receive any greater payment under Section 4 than the
transferor Lender would have been entitled to receive with
respect to such Borrowings.
SECTION 4 CHANGE IN CIRCUMSTANCES.
4.1 Increased Cost and Reduced Return.
(a) Changes in Law. If, after the date hereof, the
adoption of any applicable Law or any change in any
applicable Law or any change in the interpretation or
administration thereof by any Governmental Authority, or
compliance by any Lender (or its Applicable Lending Office)
with any request or directive (whether or not having the
force of law) of any such Governmental Authority:
(i) shall subject such Lender (or its Applicable
Lending Office) to any Tax or other charge with respect
to any Eurodollar Rate Borrowing, its Notes, or its
obligation to loan Eurodollar Rate Borrowings, or
change the basis of taxation of any amounts payable to
such Lender (or its Applicable Lending Office) under
this Agreement or its Notes in respect of any
Eurodollar Rate Borrowings (other than Taxes imposed on
the overall net income of such Lender by the
jurisdiction in which such Lender has its principal
office or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable
any reserve, special deposit, assessment, or similar
requirement (other than the Reserve Requirement
utilized in the determination of the Adjusted
Eurodollar Rate) relating to any extensions of credit
or other assets of, or any deposits with or other
liabilities or commitments of, such Lender (or its
Applicable Lending Office), including the commitments
of such Lender hereunder; or
(iii) shall impose on such Lender (or its
Applicable Lending Office) or the London interbank
market any other condition affecting this Agreement or
its Notes or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to materially
increase the cost to such Lender (or its Applicable Lending
Office) of making, converting into, continuing, or
maintaining any Eurodollar Rate Borrowings or to reduce any
sum received or receivable by such Lender (or its Applicable
Lending Office) under this Agreement or its Notes with
respect to any Eurodollar Rate Borrowing, then Borrower
shall pay to such Lender on demand such amount or amounts as
will compensate such Lender for such increased cost or
reduction. If any Lender requests compensation by Borrower
under this Section 4.1(a), Borrower may, by notice to such
Lender (with a copy to Administrative Agent), suspend the
obligation of such Lender to loan or continue Eurodollar
Rate Borrowings, or to convert Borrowings of any other Type
into Eurodollar Rate Borrowings, until the event or
condition giving rise to such request ceases to be in effect
(in which case the provisions of Section 4.4 shall be
applicable); provided, that such suspension shall not affect
the right of such Lender to receive the compensation so
requested.
(b) Capital Adequacy. If, after the date hereof, any
Lender shall have determined that the adoption of any
applicable Law regarding capital adequacy or any change
therein or in the interpretation or administration thereof
by any Governmental Authority charged with the
interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having
the force of law) of any such Governmental Authority has or
would have the effect of reducing the rate of return on the
capital of such Lender or any corporation controlling such
Lender as a consequence of such Lender's obligations
hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its
policies with respect to capital adequacy), then from time
to time upon demand Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender
for such reduction.
(c) Changes in Applicable Lending Office.
Compensation Statement. Each Lender shall promptly notify
Borrower and Administrative Agent of any event of which it
has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this Section
and will designate a different Applicable Lending Office if
such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the judgment
of such Lender, be otherwise materially disadvantageous to
it. Any Lender claiming compensation under this Section
shall furnish to Borrower and Administrative Agent a
statement setting forth the additional amount or amounts to
be paid to it hereunder which shall be prima facie evidence
of the amount due. In determining such amount, such Lender
may (i) use any reasonable averaging and attribution
methods; (ii) not seek compensation under this Section 4.1
unless such Lender generally seeks such compensation from
other borrowers in similar circumstances under comparable
provisions of other credit agreements, if any; and (iii) not
be entitled to compensation under this Section 4.1 for any
costs incurred or reductions suffered with respect to any
date unless it shall have notified Borrower that it will
demand compensation for such costs or reductions not more
than 180 days after such date.
4.2 Limitation on Types of Loans. If on or prior to the
first day of any Interest Period for any Eurodollar Rate
Borrowing:
(a) Inability to Determine Eurodollar Rate.
Administrative Agent reasonably determines (which
determination shall be conclusive) that by reason of
circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period and Administrative
Agent makes similar determinations for other borrowers in
similar circumstances under comparable provisions of other
credit agreements, if any; or
(b) Costs of Funds. Required Lenders determine (which
determination shall be conclusive) and notify Administrative
Agent that the Adjusted Eurodollar Rate will not adequately
and fairly reflect the cost to the Lenders of funding
Eurodollar Rate Borrowings for such Interest Period and
Required Lenders make similar determinations for other
borrowers in similar circumstances under comparable
provisions of other credit agreements, if any;
then Administrative Agent shall give Borrower prompt notice
thereof specifying the relevant amounts or periods, and so long
as such condition remains in effect, the Lenders shall be under
no obligation to fund additional Eurodollar Rate Borrowings,
continue Eurodollar Rate Borrowings, or to convert Base Rate
Borrowings into Eurodollar Rate Borrowings, and Borrower shall,
on the last day(s) of the then current Interest Period(s) for the
outstanding Eurodollar Rate Borrowings, either prepay such
Borrowings or convert such Borrowings into Base Rate Borrowings
in accordance with the terms of this Agreement.
4.3 Illegality. Notwithstanding any other provision
of this Agreement, in the event that it becomes unlawful for any
Lender or its Applicable Lending Office to make, maintain, or
fund Eurodollar Rate Borrowings hereunder, then such Lender shall
promptly notify Borrower thereof and such Lender's obligation to
make or continue Eurodollar Rate Borrowings and to convert other
Base Rate Borrowings into Eurodollar Rate Borrowings shall be
suspended until such time as such Lender may again make,
maintain, and fund Eurodollar Rate Borrowings (in which case the
provisions of Section 4.4 shall be applicable).
4.4 Treatment of Affected Loans. If the obligation of any
Lender to fund Eurodollar Rate Borrowings or to continue, or to
convert Base Rate Borrowings into Eurodollar Rate Borrowings,
shall be suspended pursuant to Sections 4.1, 4.2, or 4.3 hereof,
such Lender's Eurodollar Rate Borrowings shall be automatically
converted into Base Rate Borrowings on the last day(s) of the
then current Interest Period(s) for Eurodollar Rate Borrowings
(or, in the case of a conversion required by Section 4.3 hereof,
on such earlier date as such Lender may specify to Borrower with
a copy to Administrative Agent) and, unless and until such Lender
gives notice as provided below that the circumstances specified
in Sections 4.1, 4.2, or 4.3 hereof that gave rise to such
conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Rate
Borrowings have been so converted, all payments and
prepayments of principal that would otherwise be applied to
such Lender's Eurodollar Rate Borrowings shall be applied
instead to its Base Rate Borrowings; and
(b) all Borrowings that would otherwise be made or
continued by such Lender as Eurodollar Rate Borrowings shall
be made or continued instead as Base Rate Borrowings, and
all Borrowings of such Lender that would otherwise be
converted into Eurodollar Rate Borrowings shall be converted
instead into (or shall remain as) Base Rate Borrowings.
If such Lender gives notice to Borrower (with a copy to
Administrative Agent) that the circumstances specified in
Sections 4.1, 4.2, or 4.3 hereof that gave rise to the conversion
of such Lender's Eurodollar Rate Borrowings pursuant to this
Section 4.4 no longer exist (which such Lender agrees to do
promptly upon such circumstances ceasing to exist) at a time when
Eurodollar Rate Borrowings made by other Lenders are outstanding,
such Lender's Base Rate Borrowings shall be automatically
converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Eurodollar Rate Borrowings, to the
extent necessary so that, after giving effect thereto, all
Eurodollar Rate Borrowings held by the Lenders and by such Lender
are held pro rata (as to principal amounts, Types, and Interest
Periods) in accordance with their respective Commitments.
4.5 Compensation. Upon the request of any Lender, Borrower
shall pay to such Lender such amount or amounts as shall be
sufficient (in the reasonable opinion of such Lender) to
compensate it for any loss, cost, or expense (including loss of
anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or conversion of a
Eurodollar Rate Borrowing for any reason (including, without
limitation, the acceleration of the loan pursuant to
Section 11.1) on a date other than the last day of the
Interest Period for such Borrowing; or
(b) any failure by Borrower for any reason (including,
without limitation, the failure of any condition precedent
specified in Section 7.3 to be satisfied) to borrow,
convert, continue, or prepay a Eurodollar Rate Borrowing on
the date for such borrowing, conversion, continuation, or
prepayment specified in the relevant notice of borrowing,
prepayment, continuation, or conversion under this
Agreement.
; provided, however, that any Lender shall calculate the
compensation due pursuant to this Section 4.5 in a similar manner
as such Lender utilizes to determine such compensation due from
other borrowers in similar circumstances under comparable
provisions of other credit agreements, if any.
4.6 Taxes.
(a) General. Any and all payments by Borrower to or
for the account of any Lender or Administrative Agent
hereunder or under any other Loan Document shall be made
free and clear of and without deduction for any and all
present or future Taxes, excluding, in the case of each
Lender and Administrative Agent, Taxes imposed on its income
and franchise Taxes imposed on it by the jurisdiction under
the Laws of which such Lender (or its Applicable Lending
Office) or Administrative Agent (as the case may be) is
organized, or any political subdivision thereof. If
Borrower shall be required by Law to deduct any Taxes from
or in respect of any sum payable under this Agreement or any
other Loan Document to any Lender or Administrative Agent,
(i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions
applicable to additional sums payable under this
Section 4.6) such Lender or Administrative Agent receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) Borrower shall make such
deductions, (iii) Borrower shall pay the full amount
deducted to the relevant taxation authority or other
authority in accordance with applicable Law, and (iv)
Borrower shall furnish to Administrative Agent, at its
address listed in Schedule 2.1, the original or a certified
copy of a receipt evidencing payment thereof.
(b) Stamp and Documentary Taxes. In addition, to the
extent permitted by applicable Law, Borrower agrees to pay
any and all present or future stamp or documentary taxes and
any other excise or property taxes or charges or similar
levies which arise from any payment made under this
Agreement or any other Loan Document or from the execution
or delivery of, or otherwise with respect to, this Agreement
or any other Loan Document (hereinafter referred to as
"Other Taxes").
(c) Indemnification for Taxes. Borrower agrees to
indemnify each Lender and Administrative Agent for the full
amount of Taxes and Other Taxes which Borrower is obligated
to pay under this Section 4.6 (including, without
limitation, any Taxes or Other Taxes imposed or asserted by
any jurisdiction on amounts payable under this Section 4.6)
paid by such Lender or Administrative Agent (as the case may
be) and any liability (including penalties, interest, and
expenses) arising therefrom or with respect thereto.
(d) Withholding Tax Forms. Each Lender organized
under the Laws of a jurisdiction outside the United States,
on or prior to the date of its execution and delivery of
this Agreement in the case of each Lender listed on the
signature pages hereof and on or prior to the date on which
it becomes a Lender in the case of each other Lender, and
from time to time thereafter if requested in writing by
Borrower or Administrative Agent (but only so long as such
Lender remains lawfully able to do so), shall provide
Borrower and Administrative Agent with (i) if such Lender is
a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Lender is
entitled to benefits under an income tax treaty to which the
United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that
the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or
business in the United States, or (ii) if such Lender is not
a "bank" within the meaning of Section 881(c)(3)(A) of the
Code and intends to claim an exemption from United States
withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest," a Form W-
8, or any successor form prescribed by the Internal Revenue
Service, and a certificate representing that such Lender is
not a bank for purposes of Section 881(c) of the Code, is
not a 10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Code) of Borrower, and is not a
controlled foreign corporation related to Borrower (within
the meaning of Section 864(d)(4) of the Code). Each Lender
which so delivers a W-8, Form 1001, or 4224 further
undertakes to deliver to Borrower and Administrative Agent
additional forms (or a successor form) on or before the date
such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most
recent form so delivered by it, in each case certifying that
such Lender is entitled to receive payments from Borrower
under any Loan Document without deduction or withholding (or
at a reduced rate of deduction or withholding) of any United
States federal income taxes, unless 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 all such forms
inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it
and such Lender advises Borrower and Administrative Agent
that it is not capable of receiving such payments without
any deduction or withholding of United States federal income
tax.
(e) Failure to Provide Withholding Forms; Changes in
Tax Laws. For any period with respect to which a Lender has
failed to provide Borrower and Administrative Agent with the
appropriate form pursuant to Section 4.6(d) (unless such
failure is due to a change in Law occurring subsequent to
the date on which a form originally was required to be
provided), such Lender shall not be entitled to
indemnification under Section 4.6(a) or 4.6(b) with respect
to Taxes imposed by the United States; provided, however,
that should a Lender, which is otherwise exempt from or
subject to a reduced rate of withholding tax, become subject
to Taxes because of its failure to deliver a form required
hereunder, Borrower shall take such steps as such Lender
shall reasonably request to assist such Lender to recover
such Taxes.
(f) Change in Applicable Lending Office. If Borrower
is required to pay additional amounts to or for the account
of any Lender pursuant to this Section 4.6, then such Lender
will agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so as to
eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the reasonable judgment
of such Lender, is not otherwise materially disadvantageous
to such Lender.
(g) Tax Payment Receipts. Within thirty (30) days
after the date of any payment of Taxes, Borrower shall
furnish to Administrative Agent the original or a certified
copy of a receipt evidencing such payment.
(h) Survival. Without prejudice to the survival of
any other agreement of Borrower hereunder, the agreements
and obligations of Borrower contained in this Section 4.6
shall survive the termination of the Total Commitment and
the payment in full of the Obligation.
SECTION 5 FEES.
5.1 Treatment of Fees. Except as otherwise provided by
Law, the fees described in this Section 5: (a) do not constitute
compensation for the use, detention, or forbearance of money,
(b) are in addition to, and not in lieu of, interest and expenses
otherwise described in this Agreement, (c) shall be payable in
accordance with Section 3.1, (d) shall be non-refundable,
(e) shall, to the fullest extent permitted by Law, bear interest,
if not paid when due, at the Default Rate, and (f) shall be
calculated on the basis of actual number of days (including the
first day but excluding the last day) elapsed, but computed as if
each calendar year consisted of 360 days, unless such computation
would result in interest being computed in excess of the Maximum
Rate, in which event such computation shall be made on the basis
of a year of 365 or 366 days, as the case may be.
5.2 Fees of Administrative Agent and Arranger. Borrower
shall pay to Administrative Agent and Arranger, as the case may
be, solely for their respective accounts, the fees described in
that certain separate letter agreement dated as of April 25,
1999, between Borrower, Administrative Agent, and Arranger.
5.3 Revolver Facility Commitment Fees. Following the
Closing Date, Borrower shall pay to Administrative Agent, for the
ratable account of Revolver Lenders, a commitment fee, calculated
daily from the Closing Date but payable in installments in
arrears on each March 31, June 30, September 30, and December 31
and on the Termination Date for the Revolver Facility, commencing
September 30, 1999. On any day of determination, the commitment
fee shall be an amount equal to the Applicable Margin for
Commitment Fees multiplied by the amount by which (a) the
Revolver Commitment on such day exceeds (b) the Revolver
Commitment Usage on such day. Each such installment shall be
calculated in accordance with Section 5.1(f). Solely for the
purposes of this Section 5.3, (i) determinations of the average
daily Revolver Commitment Usage shall exclude the Swing Line
Principal Debt; and (ii)"ratable" shall mean, for any period of
calculation, with respect to any Revolver Lender, that proportion
which (x) the average daily unused Revolver Committed Sum of such
Revolver Lender during such period bears to (y) the amount of the
average daily unused Revolver Commitment during such period.
5.4 LC Fees. As an inducement for the issuance (including,
without limitation, any extension) of each LC, Borrower agrees to
pay to Administrative Agent:
(a) For the account of each Lender, according to each
Lender's Commitment Percentage under the Revolver Facility
on the day the fee is payable, an issuance fee payable
quarterly in arrears for so long as each such LC is
outstanding, on the last Business Day of each March, June,
September, and December and on the expiry date of the LC.
The issuance fee for each LC or any extension thereof shall
be in an amount equal to the product of (a) the Applicable
Margin for Eurodollar Rate Borrowings in effect on the date
of payment of such fee (calculated on a per annum basis)
multiplied by (b) the stated amount (calculated on a Dollar-
Equivalent basis) of such LC.
(b) For the account of Administrative Agent, as the
issuer of LCs, payable on the date of issuance of any LC (or
any extension thereof) a fronting fee of 0.125% of the face
amount of such LC (or extensions thereof). In addition,
Borrower shall pay to Administrative Agent, for its
individual account, standard administrative charges for LC
amendments.
SECTION 6. SECURITY; GUARANTIES.
6.1 Collateral. To secure full and complete payment and
performance of the Obligation, the Companies hereby jointly and
severally grant and convey to, and create in favor of,
Administrative Agent (for the ratable benefit of the Lenders)
first priority Liens in and to the following on the terms and
conditions set forth in the Collateral Documents: (i) all of the
issued and outstanding stock of the Domestic Subsidiaries owned
by Borrower or any Domestic Subsidiary and (ii) 65% of the
outstanding stock of each of the Material Foreign Subsidiaries
owned by Borrower or any Domestic Subsidiary; provided that, the
stock of Golden Genesis Company and its Subsidiaries will not be
required to be pledged hereunder unless such Companies are not
sold by Borrower, and the mandatory prepayments required by
Section 3.3(b)(ii) have not been made by Borrower, on or prior to
the 5th Business Day following the Closing Date. In addition,
promptly after the designation, formation, or acquisition of any
new Domestic Subsidiary or after any Foreign Subsidiary becomes a
Material Foreign Subsidiary as reflected on the most-recently
delivered Financial Statements, Borrower shall execute and
deliver to Administrative Agent all instruments and documents
(including, without limitation, Collateral Documents and all
certificates and instruments representing shares of stock), and
shall take all further action that may be necessary or desirable,
or that Administrative Agent may reasonably request, to grant and
perfect first priority Liens in favor of Administrative Agent
(for the ratable benefit of the Lenders) in all of the issued and
outstanding stock of each new Domestic Subsidiary owned by
Borrower or any Domestic Subsidiary and 65% of the issued and
outstanding stock of each new Material Foreign Subsidiary owned
by Borrower or any Domestic Subsidiary as security for the
Obligation.
6.2 Additional Collateral. On the Lien Triggering Date,
Borrower and its Domestic Subsidiaries shall jointly and
severally grant and convey to, and create in favor of
Administrative Agent (for the ratable benefit of the Lenders)
first priority Liens (subject to Permitted Liens) in, to, and on
all material assets of the Borrower and its Domestic Subsidiaries
as more particularly described in the Collateral Documents (the
"Collateral") and shall deliver the Collateral Documents and
other documents requested by Administrative Agent to
Administrative Agent within 21 days of request therefor; provided
that, (i) no Agent or any Lender assumes or is made the
transferee of any obligations of any Company regarding any of the
Collateral; and (ii) nothing in this Section 6.2 shall be deemed
to be a waiver of any Default or Potential Default existing on
the Lien Triggering Date or to limit or modify any Rights
Administrative Agent or Lenders may have with respect to any such
Default or Potential Default. In such regard, upon the request
of Administrative Agent, Borrower agrees (and agrees to cause the
Companies) to commence preparation and negotiation of the
Collateral Documents, to conduct all requested Lien searches in
the name of the Companies with respect to the Collateral, and to
take such other action as Administrative Agent may reasonably
request to enable the creation and perfection of first priority
Liens on the Collateral as contemplated in this Section 6.2.
6.3 Guaranties. As an inducement to Agents and Lenders to
enter into this Agreement, Borrower shall cause each Domestic
Subsidiary to execute and deliver to Administrative Agent a
Guaranty substantially in the form and upon the terms of
Exhibit C, providing for the guarantee of payment and performance
of the Obligation; provided that, guaranties from Golden Genesis
Company and its Subsidiaries will not be required hereunder
unless such Companies are not sold by Borrower, and the mandatory
prepayments required by Section 3.3(b)(ii) have not been made by
Borrower, on or prior to the 5th Business Day following the
Closing Date.
6.4 Future Liens. Promptly after (a) the acquisition of
any material assets (real, personal, tangible, or intangible) by
Borrower or any Domestic Subsidiary on or after the Lien
Triggering Date, (b) the removal, termination, or expiration of
any prohibitions upon the granting of a Lien in any material
asset (real, personal, tangible, or intangible) of Borrower or
any Domestic Subsidiary on or after the Lien Triggering Date, or
(c) upon the designation, formation, or acquisition of any new
Domestic Subsidiary on or after the Lien Triggering Date (the
assets of such new Domestic Subsidiary and the assets described
in clauses (a) and (b) hereof are referred to herein as the
"Additional Assets"), Borrower shall (or shall cause such
Domestic Subsidiary to) execute and deliver to Administrative
Agent all further instruments and documents (including, without
limitation, Collateral Documents and all certificates and
instruments evidencing Debt and any realty appraisals or
environmental reports as Administrative Agent may require with
respect to any such Additional Assets), and shall take all
further action that may be necessary or desirable, or that
Administrative Agent may reasonably request, to grant, perfect,
and protect Liens in favor of Administrative Agent for the
benefit of the Lenders in such Additional Assets, as security for
the Obligation; it being expressly understood that the granting
of such additional security for the Obligation is a material
inducement to the execution and delivery of this Agreement by
each Lender. Upon satisfying the terms and conditions hereof,
such Additional Assets shall be included in the "Collateral" for
all purposes under the Loan Documents, and all references to the
"Collateral" in the Loan Documents shall include the Additional
Assets.
6.5 Release of Collateral.
(a) Sales of Collateral. Upon any sale, transfer, or
disposition of Collateral which is expressly permitted
pursuant to the Loan Documents (or is otherwise authorized
by Required Lenders or Lenders, as the case may be), and
upon ten (10) Business Days' prior written request by
Borrower (which request must be accompanied by true and
correct copies of (i) all material documents of transfer or
disposition, including any contract of sale, (ii) a
preliminary closing statement and instructions to the title
company, if any, and (iii) all requested release
instruments), Administrative Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such
documents as may be necessary to evidence the release of
Liens granted to Administrative Agent for the benefit of
Lenders pursuant hereto in such Collateral.
(b) Ceramics Spinoff. Concurrently with the
consummation of the Ceramics Spinoff and related payment of
the mandatory prepayment of the Obligation required under
Section 3.3(b)(v), Administrative Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such
documents as may be necessary to evidence the release of the
Guaranties of Coors Porcelain Company and its Subsidiaries
and the release of all Liens granted to Administrative Agent
(for the benefit of Lenders) in and to the stock issued by,
and (if after the Lien Triggering Date) any assets of, Coors
Porcelain Company and its Subsidiaries.
(c) Permitted Mergers and Dissolutions. If any
merger, sale, or dissolution permitted by Section 9.25
results in the dissolution of a Loan Party or results in a
surviving entity which is not (or is not required to become)
a Loan Party under the Loan Documents, then upon ten (10)
Business Days' prior written request by Borrower (which
request must be accompanied by true and correct copies of
(i) all material documents relating to such merger,
dissolution, or sale, and (ii) all requested release
instruments) and subject to compliance with any applicable
mandatory prepayment requirements of Section 3.3,
Administrative Agent shall (and is hereby irrevocably
authorized by the Lenders to) execute such documents as may
be necessary to evidence the release of the Guaranties of
such merged or dissolved Loan Party and the release of all
Liens granted to Administrative Agent (for the benefit of
Lenders) in and to the stock or assets of such merged or
dissolved Loan Party.
(d) Qualifying Date. Upon the occurrence of the
Qualifying Date and to the extent the Lien Triggering Date
has occurred and Liens have been granted to Administrative
Agent (for the benefit of Lenders) pursuant to Section 6.2,
Administrative Agent shall (and is hereby irrevocably
authorized by the Lenders to) execute such documents as may
be necessary to evidence the release of Liens (other than
Liens granted pursuant to Section 6.1) granted to
Administrative Agent for the benefit of Lenders in the
assets of Borrower and the Domestic Subsidiaries; provided,
however, that the Liens granted to Administrative Agent (for
the benefit of Lenders) in the stock of the Domestic
Subsidiaries and the Material Foreign Subsidiaries shall not
be released.
(e) General Provisions. The actions of Administrative
Agent under this Section 6.5 are subject to the following:
(i) no such release of Liens or Guaranties shall be granted
if any Default or Potential Default has occurred and is
continuing, including, without limitation, the failure to
make certain mandatory prepayments in accordance with
Section 3.3(b) in conjunction with the sale or transfer of
such Collateral, the Ceramics Spinoff, or such permitted
merger or dissolution (as applicable); (ii) no such release
of Liens and Guaranties on any assets shall be granted by
Administrative Agent and Lenders, unless and until any and
all Liens on the such assets created in favor of the PBGC
have been released; (iii) Administrative Agent shall not be
required to execute any such document on terms which, in
Administrative Agent's opinion, would expose Administrative
Agent to liability or create any obligation or entail any
consequence other than the release of such Liens without
recourse or warranty; and (iv) such release shall not in any
manner discharge, affect, or impair the Obligation, or Liens
upon (or obligations of any Company in respect of) all
interests retained by the Companies, including (without
limitation) the proceeds of any sale, all of which shall
continue to constitute Collateral.
6.6 Negative Pledge. To the extent Administrative Agent
agrees to delay the perfection or attachment of any Lien on
immaterial assets of the Companies consistent with the
requirements of Section 6.2 hereof, for whatever reason, the
Companies hereby covenant and agree not to directly create,
incur, grant, suffer, or permit to be created or incurred any
Lien on any such assets, other than Permitted Liens.
Furthermore, within thirty (30) days of the request of
Administrative Agent, Borrower shall (or shall cause each Company
to) execute and deliver to Administrative Agent all instruments
and documents (including, without limitation, certificates and
instruments and documents representing shares of stock or
evidencing Debt) and shall take all further action that may be
necessary or desirable, or that Administrative Agent may
reasonably request, to grant, perfect, and protect Liens in favor
of Administrative Agent for the benefit of Lenders, in such
assets, as security for the Obligation; it being expressly
understood that the provisions of this negative pledge are a
material inducement to the execution and delivery of this
Agreement by each Lender.
SECTION 7 CONDITIONS PRECEDENT.
7.1 Conditions Precedent to Closing. This Agreement shall
not become effective, and Lenders shall not be obligated to
advance any Borrowing or issue any LC, unless Administrative
Agent has received all of the agreements, documents, instruments,
and other items described on Schedule 7.1 (other than each item
listed on Schedule 7.1A, which items are permitted to be
delivered after the Closing Date, but not later than the
respective date for delivery for each such item specified on
Schedule 7.1A).
7.2 Conditions Precedent to a Permitted Acquisition. On or
prior to the consummation of any Permitted Acquisition (other
than the Ft. James Acquisition) (whether or not the purchase
price for such Acquisition is funded by Borrowings), Borrower
shall have satisfied the conditions and delivered, or caused to
be delivered, to Administrative Agent, all documents and
certificates set forth on Schedule 7.2 by no later than the dates
specified for satisfaction of such conditions on Schedule 7.2.
Promptly upon receipt of each Permitted Acquisition Compliance
Certificate and each Permitted Acquisition Loan Closing
Certificate, Administrative Agent shall provide copies of such
certificates to Lenders. All documentation delivered and
satisfaction of conditions pursuant to the requirements of
Section 7.2 must be reasonably satisfactory to Administrative
Agent. To the extent any Borrowing is being requested in
connection with the consummation of the Acquisition, the
conditions set forth in Sections 7.2 and 7.3 hereof must be
satisfied prior to the making of any such Borrowing.
7.3 Conditions Precedent to Each Borrowing. In addition to
the conditions stated in Sections 7.1 and 7.2, Lenders will not
be obligated to fund (as opposed to continue or convert) any
Borrowing, and Administrative Agent will not be obligated to
issue any LC, as the case may be, unless on the date of such
Borrowing (and after giving effect thereto): (a) Administrative
Agent shall have timely received therefor a Borrowing Notice or a
LC Request (together with the applicable LC Agreement), as the
case may be; (b) Administrative Agent shall have timely received,
as applicable, the LC fees provided for in Sections 5.4 and 5.5;
(c) all of the representations and warranties of each Company set
forth in the Loan Documents are true and correct in all material
respects (except to the extent that (i) the representations and
warranties speak to a specific date or (ii) the facts on which
such representations and warranties are based have been changed
by transactions permitted by the Loan Documents); (d) no change
in the financial condition or business of any Company which could
be a Material Adverse Event shall have occurred; (e) no Default
or Potential Default shall have occurred and be continuing;
(f) the funding of such Borrowings and issuance of such LC, as
the case may be, are permitted by Law; and (g) upon the
reasonable request of Administrative Agent, Borrower shall
deliver to Administrative Agent evidence substantiating any of
the matters in the Loan Documents which are necessary to enable
Borrower to qualify for such Borrowing. Each Borrowing Notice
and LC Request delivered to Administrative Agent shall constitute
the representation and warranty by Borrower to Administrative
Agent that the statements above are true and correct in all
respects. Each condition precedent in this Agreement is material
to the transactions contemplated in this Agreement, and time is
of the essence in respect of each thereof. Subject to the prior
approval of Required Lenders, Lenders may fund any Borrowing, and
Administrative Agent may issue any LC, without all conditions
being satisfied, but, to the extent permitted by Law, the same
shall not be deemed to be a waiver of the requirement that each
such condition precedent be satisfied as a prerequisite for any
subsequent funding or issuance, unless Required Lenders
specifically waive each such item in writing.
7.4 Borrowing Notices and LC Requests. Each Borrowing
Notice (whether telephonic or written) and LC Request constitutes
a representation and warranty by Borrower that, as of the
Borrowing Date or the date of issuance of the requested LC, as
the case may be, all of the conditions precedent in Section 7
applicable thereto have been satisfied.
SECTION 8 REPRESENTATIONS AND WARRANTIES. Borrower represents
and warrants to Administrative Agent and Lenders as follows:
8.1 Purpose of Credit Facilities. Borrower will use (or
will loan such proceeds to other Loan Parties to so use) all
proceeds of Borrowings for one or more of the following: (a) to
finance all or a portion of the Ft. James Acquisition and the
related costs and expenses; (b) to finance other Permitted
Acquisitions; (c) to refinance the Refinanced Debt; (d) for
working capital of the Companies; and (e) for general corporate
purposes of the Companies. No Company is engaged principally, or
as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation U. No part of the
proceeds of any Borrowing will be used, directly or indirectly,
for a purpose which violates any Law, including, without
limitation, the provisions of Regulations T, U, or X (as enacted
by the Board of Governors of the Federal Reserve System, as
amended).
8.2 Existence, Good Standing, and Authority. Each Company
is duly organized, validly existing, and (so long as applicable
to the respective jurisdiction) in good standing under the Laws
of its jurisdiction of organization (such jurisdictions being
identified on Schedule 8.3, as supplemented in writing from time
to time by an amendment to that Schedule delivered by Borrower to
Administrative Agent to reflect any changes to such Schedule as a
result of transactions permitted by the Loan Documents). Except
where the failure to do so could not reasonably be expected to
constitute a Material Adverse Event, each Company is duly
qualified to transact business and (so long as applicable to the
respective jurisdiction) is in good standing in each jurisdiction
where the nature and extent of its business and properties
require the same. Except where the failure to do so could not
reasonably be expected to constitute a Material Adverse Event,
each Company possesses all requisite authority and power to
conduct its business as is now being conducted and as proposed
under the Loan Documents to be conducted and to own and operate
its business as now owned and operated and as proposed to be
owned and operated.
8.3 Subsidiaries; Capital Stock. The Companies have no
Subsidiaries except as disclosed on Schedule 8.3 (as supplemented
from time to time in writing by an amendment to that Schedule
delivered by Borrower to Administrative Agent to reflect any
changes to such Schedule as a result of transactions permitted by
the Loan Documents). All Material Foreign Subsidiaries are
described as such on Schedule 8.3. All of the outstanding shares
of capital stock (or similar voting interests) of each Subsidiary
are duly authorized, validly issued, fully paid, and
nonassessable and are owned of record and beneficially as set
forth on Schedule 8.3 (as supplemented and modified in writing
from time to time by an amendment to that Schedule delivered by
Borrower to Administrative Agent to reflect any changes to such
Schedule as a result of transactions permitted by the Loan
Documents), free and clear of any Liens, restrictions, claims, or
rights of another Person, other than Permitted Liens, and none of
such shares owned by any Company is subject to any restriction on
transfer thereof except for restrictions imposed by securities
Laws and general corporate Laws. No Company (other than
Borrower) has outstanding any warrant, option, or other right of
any Person to acquire any of its capital stock or similar equity
interests.
8.4 Authorization and Contravention. The execution and
delivery by each Company of each Loan Document to which it is a
party and the performance by such Company of its obligations
under such Loan Documents (a) are within the corporate power of
such Company, (b) will have been duly authorized by all necessary
corporate or partnership action on the part of such Company when
such Loan Document is executed and delivered, (c) require no
action by or in respect of, or filing with, any Governmental
Authority, which action or filing has not been taken or made on
or prior to the Closing Date (or if later, the date of execution
and delivery of such Loan Document), (d) will not violate any
provision of the articles of incorporation, bylaws, or
partnership agreement of such Company, (e) will not violate any
provision of Law applicable to it, other than such violations
which individually or collectively could not be a Material
Adverse Event, (f) will not violate any written or oral
agreements, contracts, commitments, or understandings to which it
is a party, other than such violations which could not be a
Material Adverse Event and could not reasonably be expected to
impose any liability on any Agent or Lender, or (g) will not
result in the creation or imposition of any Lien on any asset of
any Company (except for the Liens in favor of Administrative
Agent and the Lenders, securing the Obligation). The Companies
have (or will have upon consummation thereof) all necessary
consents and approvals of any Person or Governmental Authority
required to be obtained in order to effect the Ft. James
Acquisition and any other asset transfer, change of control,
merger, or consolidation permitted by the Loan Documents, other
than the failure to obtain such consents or approvals which could
not reasonably be expected to be a Material Adverse Event.
8.5 Binding Effect. Upon execution and delivery by all
parties thereto, each Loan Document will constitute a legal,
valid, and binding obligation of each Company party thereto,
enforceable against each such Company in accordance with its
terms, except as enforceability may be limited by applicable
Debtor Relief Laws and general principles of equity.
8.6 Financial Statements. The Current Financials were
prepared in accordance with GAAP and present fairly, in all
material respects, the consolidated financial condition, results
of operations, and cash flows of the Companies as of and for the
portion of the fiscal year ending on the date or dates thereof
(subject only to normal year-end audit adjustments for interim
statements). There were no material liabilities, direct or
indirect, fixed or contingent, of the Companies as of the date or
dates of the Current Financials which are required under GAAP to
be reflected therein or in the notes thereto, and are not so
reflected. Except for transactions directly related to,
specifically contemplated by, or expressly permitted by, the Loan
Documents, (a) there have been no changes in the consolidated
financial condition of the Companies from that shown in the
Current Financials after such date which could be a Material
Adverse Event, and (b) neither Borrower nor any Company has
incurred any liability (including, without limitation, any
liability under any Environmental Law), direct or indirect, fixed
or contingent, after such date which could be a Material Adverse
Event.
8.7 Litigation, Claims, Investigations. No Company is
subject to, or aware of the threat of, any Litigation which is
reasonably likely to be determined adversely to any Company, and,
if so adversely determined, could (individually or collectively
with other Litigation) be a Material Adverse Event. There are no
outstanding orders or judgments for the payment of money in
excess of $10,000,000 (individually or collectively) or any
warrant of attachment, sequestration, or similar proceeding
against the assets of any Company having a value (individually or
collectively) of $10,000,000 or more which is not either
(a) stayed on appeal or (b) being diligently contested in good
faith by appropriate proceedings with adequate reserves having
been set aside on the books of such Company in accordance with
GAAP. Other than the PBGC investigation resulting in the PBGC
Lien, there are no formal complaints, suits, claims,
investigations, or proceedings initiated at or by any
Governmental Authority pending or, to Borrower's knowledge,
threatened by or against any Company (a) relating to the Ft.
James Acquisition or the assets being acquired pursuant to the
Ft. James Acquisition, (b) relating to the transactions evidenced
by the Loan Documents, or (c) which could reasonably be expected
to be a Material Adverse Event, nor any judgments, decrees, or
orders of any Governmental Authority outstanding against any
Company that could reasonably be expected to be a Material
Adverse Event.
8.8 Taxes. All Tax returns of each Company required to be
filed have been filed (or extensions have been granted) prior to
delinquency, except for any such returns for which the failure to
so file could not be a Material Adverse Event, and all Taxes
imposed upon each Company which are due and payable have been
paid prior to delinquency, other than Taxes for which the
criteria for Permitted Liens (as specified in Section 9.13(b)(x))
have been satisfied or for which nonpayment thereof could not
constitute a Material Adverse Event.
8.9 Environmental Matters. The Companies conduct and have
conducted ongoing reviews to determine that its properties and
operations are in material compliance with the Environmental Laws
and to identify and evaluate associated costs and liabilities
(including, without limitation, (i) any capital or operating
expenditures required for clean-up or closure of properties
presently or previously owned, operated, or used, or of
properties to be acquired, (ii) any capital or operating
expenditure required to achieve or maintain compliance with
Environmental Laws and all Environmental Permits held by any
Company; (iii) any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or
reduction in the level of, or change in the nature of operation
of, any facility; (iv) any costs or liabilities in connection
with off-site disposal of wastes or Hazardous Substances; and
(v) any actual or potential liability to third parties, including
employees, and any related costs and expenses). In addition,
there is (a) no environmental condition or circumstance, such as
the presence or Release of any Hazardous Substance, on any
property presently or previously owned, operated, or used by any
Company that could reasonably be expected to be a Material
Adverse Event, (b) no Environmental Liability or violation of or
by any Company of any Environmental Law, except for such
liabilities or violations that could not reasonably be expected
to be a Material Adverse Event, and (c) no obligation by any
Company to address any Environmental Liability or remedy any vio
lation of any Environmental Law, except for such obligations that
could not reasonably be expected to be a Material Adverse Event.
Except where not a Material Adverse Event, the Companies possess
all necessary Environmental Permits and approvals required to
conduct their respective operations and are operating in
substantial compliance thereunder.
8.10 Employee Benefit Plans. (a) No Employee Plan has
incurred an "accumulated funding deficiency" (as defined in
Section 302 of ERISA and Section 412 of the Code), (b) no Company
or any ERISA Affiliate has incurred material liability to the
PBGC or with respect to an Employee Plan, which liability is
currently due and remains unpaid under Title IV of ERISA, (c)
each Employee Plan subject to ERISA and the Code complies in all
material respects, both in form and operation, with ERISA and the
Code, (d) other than the request by the PBGC for the imposition
of the PBGC Lien in accordance with the PBGC Letter, no ERISA
Event has occurred or is reasonably expected to occur with
respect to any Employee Plan or Multiemployer Plan which,
individually or collectively with all other ERISA Events then
existing, could reasonably be expected to be a Material Adverse
Event, (e) the present value of all accrued benefits under each
Employee Plan (based on actuarial assumptions used for funding
purposes in the most recent actuarial valuation prepared by the
Employee Plan's actuary with respect to such Employee Plan) did
not, as of the last annual actuarial valuation date for such
Employee Plan, exceed the then-current value of the assets of
such Employee Plan, and (f) the present value of accrued benefits
under each Employee Plan (based on PBGC actuarial assumptions
used for plan termination), on any date of determination
occurring prior to the Qualifying Date, does not exceed the value
of the assets of such Employee Plan by more than $30,000,000.
8.11 Properties; Liens; Leases. Each Company has good and
marketable title to all its property reflected on the Current
Financials, except (a) for (i) property that is obsolete,
(ii) property that has been disposed of in the ordinary course of
business, or (iii) property with title defects or failures in
title which, when considered in the aggregate, could not
reasonably be expected to be a Material Adverse Event, or (b) as
otherwise permitted by the Loan Documents. Except for Permitted
Liens, there is no Lien on any material property of any Company.
No Company is party or subject to any agreement, instrument, or
order which in any way restricts any Company's ability to allow
Liens to exist upon any of its assets, except relating to
Permitted Liens. Except where not a Material Adverse Event, (a)
each Company enjoys peaceful and undisturbed possession under all
leases necessary for the operation of its properties, assets, and
business and (b) all material leases under which any Company is a
lessee are in full force and effect.
8.12 Government Regulations. No Company is subject to
regulation under the Investment Company Act of 1940, as amended,
the Public Utility Holding Company Act of 1935, as amended, or
any other Law (other than Regulations T, U, and X of the Board of
Governors of the Federal Reserve System) which regulates the
incurrence of Debt.
8.13 Transactions with Affiliates. Except as permitted in
Section 9.14, no Company is a party to a material transaction
with any of its Affiliates (excluding transactions between or
among Loan Parties), other than transactions in the ordinary
course of business and upon fair and reasonable terms not
materially less favorable than such Company could obtain or could
become entitled to in an arm's-length transaction with a Person
that was not its Affiliate.
8.14 Debt. No Company has any Debt, other than Permitted
Debt.
8.15 Material Agreements. There are no failures of any
Material Agreements to which any Company is a party to be in full
force and effect which could be a Material Adverse Event, and no
default or potential default exists on the part of any Company or
any other party thereunder which could be a Material Adverse
Event.
8.16 Insurance. Each Company maintains, with financially
sound, responsible, and reputable insurance companies or
associations, insurance concerning its properties and businesses
against such casualties and contingencies and of such types and
in such amounts (and with co-insurance and deductibles) as is
customary in the case of same or similar businesses.
8.17 Labor Matters. There are no actual or threatened
strikes, labor disputes, slow downs, walkouts, or other concerted
interruptions of operations by the employees of any Company that
could be a Material Adverse Event. Hours worked by and payment
made to employees of the Companies have not been in violation of
the Fair Labor Standards Act or any other applicable Law dealing
with such matters, other than any such violations, individually
or collectively, which could not constitute a Material Adverse
Event. All payments due from any Company for employee health and
welfare insurance, including, without limitation, workers
compensation insurance, have been paid or accrued as a liability
on its books, other than any such nonpayments which could not,
individually or collectively, constitute a Material Adverse
Event. The business activities and operations of each Company
are in compliance with OSHA and other applicable health and
safety laws, except to the extent that any non-compliance could
not reasonably be expected to be a Material Adverse Event.
8.18 Solvency. At the time of each Borrowing hereunder, and
on the dates of the Ft. James Acquisition and each other
Permitted Acquisition, each Company is (and after giving effect
to the transactions contemplated by the Loan Documents, the
Ft. James Acquisition, any other Permitted Acquisition, and any
related incurrence of additional Debt, will be) Solvent.
8.19 Intellectual Property. Except where not reasonably
expected to be a Material Adverse Event, each Company owns or has
sufficient and legally enforceable rights to use all licenses,
patents, patent applications, copyrights, service marks,
trademarks, trademark applications, and trade names necessary to
continue to conduct its businesses as heretofore conducted by it,
now conducted by it, and now proposed to be conducted by it.
Each Company is conducting its business without infringement or
claim of infringement of any license, patent, copyright, service
mark, trademark, trade name, trade secret, or other intellectual
property right of others, other than any such infringements or
claims which, if successfully asserted against or determined
adversely to any Company, could not, individually or
collectively, constitute a Material Adverse Event.
8.20 Compliance with Laws. No Company is in violation of
any Laws (including, without limitation, Environmental Laws),
other than such violations which could not, individually or
collectively, reasonably be expected to be a Material Adverse
Event. No Company has received notice alleging any noncompliance
with or any obligation or liability under any Laws (including,
without limitation, Environmental Laws), except for such
noncompliance, obligation, or liability which no longer exists,
or which could not reasonably be expected to constitute a
Material Adverse Event.
8.21 The Ft. James Acquisition. The Ft. James Acquisition
Agreement has been executed and delivered by all parties thereto
and represents the valid and binding agreement of the parties
thereto, enforceable in all material respects in accordance with
its terms (except as enforceability may be limited by applicable
Debtor Relief Laws and general principles of equity). On and as
of the Closing Date, the execution and delivery by Borrower of
the Ft. James Acquisition Documents, and the performance by
Borrower and each Company of its obligations thereunder (a) are
within the corporate power of such Company, (b) have been duly
authorized by all necessary corporate action on the part of such
Company, (c) require no action by or in respect of, or filing
with any Governmental Authority, which action or filing has not
been taken or made on or prior to the Closing Date except where
the failure to take or make such actions or filings could not
reasonably be expected to be a Material Adverse Event, (d) do not
violate any provision of the articles of incorporation or bylaws
of such Company, (e) do not violate any provision of Law
applicable to it, other than such violations which individually
or collectively could not be a Material Adverse Event, (f) do not
violate any Material Agreements to which it is a party, other
than such violations which could not be a Material Adverse Event,
(g) do not result in the creation or imposition of any Lien on
any asset of any Company or their predecessors in interest (other
than Permitted Liens), and (h) immediately prior to, and after
giving pro forma effect thereto, no Default or Potential Default
exists or arises under the Loan Documents. On and as of the
Closing Date, the Companies have obtained all necessary consents
and approvals of any Person or Governmental Authority required to
be obtained in order for such Company to effectuate the Ft. James
Acquisition and the transactions contemplated by the Ft. James
Acquisition Agreement, except to the extent any such failure
could not be a Material Adverse Event and would not reasonably be
expected to materially impair the value to the Companies of, or
the benefits to be derived by the Companies or their predecessors
in interest from, the Ft. James Acquisition. On the Closing
Date, all conditions precedent under the Ft. James Acquisition
Agreement, to the parties' obligations to consummate such Ft.
James Acquisition have been satisfied in all material respects or
waived in compliance with Section 9.28(b), and concurrently with
the Closing Date, the Ft. James Acquisition shall have been
consummated.
8.22 Permitted Acquisitions.
(a) Validity. With respect to any Permitted
Acquisition, each Company party thereto has the power and
authority under the Laws of its state of incorporation and
under its articles of incorporation and bylaws or
partnership agreement, as applicable, to enter into and
perform the related Acquisition agreement to which it is a
party and all other agreements, documents, and actions
required thereunder; and all actions (corporate or
otherwise) necessary or appropriate by such Companies (as
the case may be) for the execution and performance of said
Acquisition agreements, and all other documents, agreements,
and actions required thereunder have, or at the consummation
of such Permitted Acquisition, will have been taken, and,
upon their execution, such Acquisition agreements will
constitute the valid and binding obligation of the Companies
party thereto, enforceable in accordance with their
respective terms (except as enforceability may be limited by
applicable Debtor Relief Laws and general principles of
equity).
(b) No Violations. With respect to any Permitted
Acquisition, the making and performance of the related
Acquisition agreements, and all other agreements, documents,
and actions required thereunder, will not violate any
provision of any Law, including, without limitation, all
state corporate Laws and judicial precedents of the states
of incorporation or formation of the Companies, and will not
violate any provisions of the articles of incorporation and
bylaws or Partnership Agreements of the Companies, or
constitute a default under any agreement by which any
Company or its respective property may be bound, unless such
default could not reasonably be expected to constitute a
Material Adverse Event.
8.23 Regulation U. "Margin Stock" (as defined in
Regulation U) constitutes less than 25% of those assets of any
Company which is subject to any limitation on sale, pledge, or
other restrictions hereunder.
8.24 Tradename. Except as listed on Schedule 8.24, no
Company has exclusively used or transacted business in any
jurisdiction under any other corporate or trade name in the five-
year period preceding the date hereof.
8.25 Year 2000 Compliance. The Companies have (i) initiated
a review and assessment of all material areas within their
business and operations that could be adversely affected by the
"Year 2000 Problem" (that is, the risk that computer applications
used by the Companies may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior
to and any date after December 31, 1999), (ii) developed and
delivered to Administrative Agent and Lenders by the Closing
Date, a plan and time line for addressing the Year 2000 Problem
no later than September 30, 1999 (the "Year 2000 Plan"), and
(iii) to date, implemented in all material respects the Year 2000
Plan in accordance with that timetable (except to the extent that
a failure to do so could not reasonably be expected to constitute
a Material Adverse Event). Borrower reasonably believes that all
computer applications (including those of its suppliers and
vendors) that are material to any of the Companies' business and
operations will on a timely basis be able to perform properly
date-sensitive functions for all dates before and after
September 30, 1999 (that is, be "Year 2000 Compliant"), except to
the extent that a failure to do so could not reasonably be
expected to constitute a Material Adverse Event.
8.26 No Default. No Default or Potential Default exists or
will arise as a result of the execution of the Loan Documents, of
any Borrowing hereunder, or after giving effect to consummation
of the Ft. James Acquisition.
8.27 Full Disclosure. As of the Closing Date, there is no
material fact or condition relating to the Loan Documents or the
financial condition, business, or property of any Company (or,
with respect to events prior to the Closing Date, to the best of
Borrower's knowledge, Ft. James Corporation and its Subsidiaries)
which could reasonably be expected to be a Material Adverse Event
and which has not been related, in writing, to Administrative
Agent. All material information heretofore furnished by any
Company to any Lender or Administrative Agent in connection with
the Loan Documents was, and all such information hereafter
furnished by any Company to any Lender or Administrative Agent
will be, true and correct in all material respects or prepared in
good faith based upon assumptions Borrower believes to be
reasonable on the date as of which such information is stated or
certified.
SECTION 9 COVENANTS. Borrower covenants and agrees (and agrees
to cause its ERISA Affiliates with respect to Section 9.10) to
perform, observe, and comply and to cause each Company to
perform, observe, and comply with each of the following
covenants, from the Closing Date and so long thereafter as
Lenders are committed to lend or issue LCs under this Agreement
and thereafter until the Obligation is fully paid and performed
and no LCs remain outstanding, unless Borrower receives a prior
written consent to the contrary by Administrative Agent as
authorized by the requisite Lenders in accordance with
Section 13.11:
9.1 Use of Proceeds. Borrower shall use LCs and the
proceeds of Borrowings only for the purposes represented herein.
9.2 Books and Records. The Companies shall maintain books,
records, and accounts necessary to prepare Financial Statements
in accordance with GAAP.
9.3 Items to be Furnished. Borrower shall cause the
following to be furnished to Administrative Agent for delivery to
Lenders:
(a) Promptly after preparation, and no later than 95
days after the last day of each fiscal year of Borrower,
Financial Statements showing the consolidated financial
condition and results of operations of the Companies
calculated as of, and for the year ended on, such day, each
accompanied by:
(i) the unqualified opinion of a firm of
nationally-recognized independent certified public
accountants, based on an audit using generally accepted
auditing standards, that such Financial Statements were
prepared in accordance with GAAP and present fairly in
all material respects the consolidated financial
condition and results of operations of Borrower and its
Subsidiaries;
(ii) a certificate from such accounting firm to
Administrative Agent indicating that during its audit
it obtained no knowledge of any Default or Potential
Default or, if it obtained such knowledge, the nature
and period of existence thereof; and
(iii) a Compliance Certificate.
(b) Promptly after preparation, and no later than 50
days after the last day of the first three fiscal quarters
of each fiscal year of Borrower, Financial Statements
showing the consolidated financial condition and results of
operations calculated for the Companies for such fiscal
quarter and for the period from the beginning of the then-
current fiscal year to, such last day, accompanied by a
Compliance Certificate with respect to such Financial
Statements.
(c) Promptly upon receipt thereof, copies of all
auditor's annual management letters delivered to Borrower.
(d) Notice, promptly (but not later than 10 Business
Days) after Borrower knows or has reason to know of (i) the
existence and status of any Litigation which could be a
Material Adverse Event, or of any order or judgment for the
payment of money which (individually or collectively) is in
excess of $10,000,000, or any warrant of attachment,
sequestration, or similar proceeding against the assets of
any Company having a value (individually or collectively) of
$10,000,000, (ii) any material change in any material fact
or circumstance represented or warranted in any Loan
Document, (iii) a Default or Potential Default specifying
the nature thereof and what action Borrower or any other
Company has taken, is taking, or proposes to take with
respect thereto, (iv) any federal, state, or local Law
limiting or controlling the operations of any Company which
has been issued or adopted hereafter and which could be a
Material Adverse Event, (v) the receipt by any Company of
notice of any violation or alleged violation of any
Environmental Law or Environmental Permit or any
Environmental Liability or potential Environmental
Liability, which violation or liability or alleged violation
or liability could, individually or collectively, with other
such environmental violations or allegations, constitute a
Material Adverse Event, or (vii) the occurrence of an ERISA
Event or the incurrence of any liability by any Company or
ERISA Affiliate with respect to any ERISA Event, which ERISA
Event or liabilities (individually or in the aggregate with
all other then existing ERISA Events and related liabilities
of the Companies and ERISA Affiliates) could reasonably be
expected to be a Material Adverse Event, specifying the
nature thereof and what action any Company or ERISA
Affiliate has taken, is taking, or proposes to take with
respect thereto and providing copies of (A) all notices from
the PBGC terminating or appointing a trustee for any
Employee Plan, (B) all notices of termination or
reorganization from any sponsor of a Multiemployer Plan, (C)
all notices from any sponsor of a Multiemployer Plan
imposing withdrawal liability on any Company or ERISA
Affiliate, and (D) all notices from the PBGC regarding a
potential Reportable Event or a request for information to
assess the impact of any proposed transaction of Borrower or
any of its ERISA Affiliates.
(e) Promptly after any of the information or
disclosures provided on any of the Schedules delivered
pursuant to this Agreement, any Annexes to any of the Pledge
Agreements, or any Annexes required to be updated pursuant
to the terms of any other Collateral Document becomes
outdated or incorrect in any material respect, such revised
or updated Schedule(s) or Annexes as may be necessary or
appropriate to update or correct such information or
disclosures; provided that, in the case of amendments and
supplements to Schedules 9.12, 9.13, and 9.20 or any
amendments or supplements to Annexes to the Pledge
Agreements or to Annexes required to be updated pursuant to
the terms of any other Collateral Document having the effect
of deleting any Collateral, such amended or supplemented
Schedules or Annexes shall not be deemed accepted for
purposes of the Loan Documents and shall not be part of the
Loan Documents unless and until approved by Required
Lenders.
(f) Concurrently with the delivery of each set of
annual and quarterly Financial Statements required in
Sections 9.3(a) and (b) above, a statement of a Responsible
Officer to the effect that nothing has come to his attention
to cause him to believe that benchmarks or milestones
established in the Year 2000 Plan have not been met in a
manner such that the hardware and software systems will not
be Year 2000 Compliant by September 30, 1999.
(g) Within 5 Business Days after Borrower becomes
aware of any material deviation from the Year 2000 Plan
which would cause substantial compliance with the Year 2000
Plan not to be achieved by September 30, 1999, a statement
of a Responsible Officer setting forth the details thereof
and the action which the Companies are taking or propose to
take with respect thereto.
(h) Promptly upon the receipt thereof, a copy of any
third party assessment of any Company's Year 2000 Plan,
together with any recommendations made by such third party
with respect to Year 2000 compliance.
(i) Promptly after the filing thereof, a true,
correct, and complete copy of each Form 10-K, Form 10-Q,
Form 8-K, or other material reports or filings filed by or
on behalf of any Company with the Securities and Exchange
Commission.
(j) Promptly upon request therefor by Administrative
Agent or Lenders (which Lenders hold, in the aggregate, at
least 25% of the Total Commitment, or if no portion of the
Total Commitment is then outstanding, 25% of the Principal
Debt, and make such request through Administrative Agent),
such information (not otherwise required to be furnished
under the Loan Documents) respecting the business affairs,
assets, and liabilities of the Companies, and such opinions,
certifications, and documents, in addition to those
mentioned in this Agreement, as reasonably requested.
(k) With respect to the post-closing requirements set
forth on Schedule 7.1A, deliver, or cause to be delivered,
to Administrative Agent, all agreements, documents,
instruments, or other items listed on Schedule 7.1A on or
prior to the date specified for delivery thereof on
Schedule 7.1A.
9.4 Inspections. The Companies shall allow Administrative
Agent or any Lender (or their respective Representatives): (a) to
inspect any of their properties and to review reports, files, and
other records and (b) to make and take away copies of reports,
files, and records, to conduct tests or investigations, and to
discuss any of their affairs, conditions, and finances with other
creditors, directors, officers, employees, other representatives,
and independent accountants of the Companies, from time to time;
provided that, notwithstanding the foregoing, if no Default or
Potential Default exists, (i) any inspections hereunder must be
upon reasonable notice and during reasonable business hours and
must be limited to inspections by Administrative Agent and its
Representatives unless Required Lenders request that one or more
Lenders or their Representatives also be permitted to make such
inspections and (ii) the consent of Borrower (which will not be
unreasonably withheld or delayed) will be required for
Administrative Agent, any Lender, or their respective
Representative to take any action contemplated in clause (b)
preceding.
9.5 Taxes. Each Company (a) shall promptly pay when due
any and all Taxes other than Taxes the applicability, amount, or
validity of which is being contested in good faith by lawful
proceedings diligently conducted, and against which reserve or
other provision required by GAAP has been made, and in respect of
which levy and execution of any Lien securing same have been and
continue to be stayed, and (b) shall not, directly or indirectly,
use any portion of the proceeds of any Borrowing to pay the wages
of employees unless a timely payment to or deposit with the
appropriate Governmental Authorities of all amounts of Tax
required to be deducted and withheld with respect to such wages
is also made.
9.6 Payment of Obligations. Borrower shall pay the
Obligation in accordance with the terms and provisions of the
Loan Documents. Each Company (a) shall promptly pay (or renew
and extend) all of its material obligations as the same become
due (unless such obligations -- other than the Obligation -- are
being contested in good faith by appropriate proceedings),
(b) shall not (i) make any voluntary prepayment of principal of,
or interest on, any other Debt (other than the Obligation),
whether subordinate to the Obligation or not, other than the
Britton Debt, or (ii) use proceeds from the Facilities to make
any payment or prepayment of principal of, or interest on, or
sinking fund payment in respect of any other Debt of any Company,
including, without limitation, any Subordinated Debt, other than
the Refinanced Debt and the Britton Debt, and (iii) shall not,
directly or indirectly, pay, prepay, redeem or purchase, or
deposit funds or property for the payment (including, without
limitation, a payment in respect of any sinking fund, defeasance
of any Subordinated Debt, other than the Britton Debt),
prepayment, redemption, or purchase of, Subordinated Debt, except
that so long as no Potential Default or Default exists at the
time of, or would exist immediately following, such payment,
Borrower may from time to time make payments of interest
(excluding payments arising from any acceleration of maturity
thereof) on the Subordinated Debt to the extent required by the
terms of the instruments evidencing such Subordinated Debt so
long as such interest payments are payable at intervals no less
than 90 days.
9.7 Maintenance of Existence, Assets, and Business. Each
Company shall at all times: (a) except in connection with
permitted mergers and dissolutions under Section 9.25 or
permitted dispositions under Section 9.23, maintain its existence
and good standing in the jurisdiction of its organization; and
(b) except where not a Material Adverse Event, (i) maintain its
authority to transact business and good standing in all other
jurisdictions necessary for its business and (ii) maintain all
licenses, permits, and franchises (including, without limitation,
Environmental Permits) necessary for its business. Each Company
shall keep all of its assets which are useful in and necessary to
its business in good working order and condition (ordinary wear
and tear excepted) and make all necessary repairs thereto and
replacements thereof.
9.8 Insurance. Each Company shall, at its costs and
expense, maintain with financially sound, responsible, and
reputable insurance companies or associations insurance covering
its properties and business against such risks, in such amounts,
and with no greater risk retention as are customarily maintained,
insured, or retained by companies of established repute engaged
in the same or similar business as such Company. Upon the
request of Administrative Agent, Borrower will furnish to Lenders
information presented in reasonable detail as to the insurance so
carried. In addition to the foregoing, on and after the Lien
Triggering Date, the Companies shall maintain such insurance and
obtain such reasonable insurance certificates and endorsements as
are specified in the Collateral Documents.
9.9 Preservation and Protection of Rights. Each Company
shall perform such acts and duly authorize, execute, acknowledge,
deliver, file, and record any additional agreements, documents,
instruments, and certificates as Administrative Agent or Required
Lenders may reasonably deem necessary or appropriate in order to
preserve and protect the Rights of Administrative Agent and
Lenders under any Loan Document.
9.10 Employee Benefit Plans. Other than the creation of the
PBGC Lien on and after the Lien Triggering Date in compliance
with Section 9.13(b)(ix), except where not a Material Adverse
Event (individually or collectively), no Company shall permit any
of the events or circumstances described in Section 8.10 to exist
or occur.
9.11 Environmental Laws. Each Company shall (a) operate and
manage its business and otherwise conduct its affairs in
compliance with, and shall promptly take corrective action to
remedy any non-compliance with or respond to any obligation or
liability under, all applicable Environmental Laws and
Environmental Permits, except to the extent noncompliance,
obligation, or liability could not reasonably be expected to
constitute a Material Adverse Event, (b) promptly investigate and
remediate any known Release or threatened Release of any
Hazardous Substance on any property owned by any Company or at
any facility operated by any Company to the extent and degree
necessary to comply with applicable Environmental Law and to
assure that any Release or threatened Release does not result in
endangerment to human health or the environment or any adverse
impact to adjacent or other property, and (c) establish and
maintain a management system designed to ensure material
compliance with applicable Environmental Laws and Environmental
Permits and minimize material financial and other risks to each
Company arising under applicable Environmental Laws or as a
result of environmentally-related injuries to Persons or
property. Within 180 days after the Closing Date, Borrower shall
cause Environmental Investigations pursuant to ASTM Standard (as
applicable) to be conducted and completed with respect to the
properties acquired in the Ft. James Acquisition and related
business operations and activities thereon, which Environmental
Investigation shall be conducted by such Person and in such scope
and detail as are reasonably acceptable to Administrative Agent.
To the extent such Environmental Investigations on the properties
and businesses acquired in the Ft. James Acquisition reflect any
material Environmental Liability or material potential
Environmental Liability, Borrower shall promptly assert and
diligently pursue a claim for indemnification under the Ft. James
Acquisition Agreement. On and after the Lien Triggering Date,
the Companies shall cause to be conducted and completed such
Environmental Investigations pursuant to ASTM Standards (to the
extent applicable) on the properties or businesses of the
Companies as Administrative Agent may reasonably request, which
Environmental Investigations shall be conducted and completed by
such Persons within such reasonable period of time, and in such
form and scope as is reasonably acceptable to Administrative
Agent.
9.12 Debt and Guaranties. No Company shall, directly or
indirectly, create, incur, or suffer to exist any direct,
indirect, fixed, or contingent liability for any Debt, other
than:
(a) The Obligation and Guaranties thereof and Debt
arising under any Financial Hedge with a Lender or an
Affiliate of a Lender so long as such Financial Hedge
constitutes a swap, collar, floor, cap, or other similar
contract which is intended to reduce or eliminate the risk
of fluctuation in interest rates on the Total Debt;
(b) Debt of the Companies existing on the Closing Date
and described on Schedule 9.12, together with all renewals,
extensions, amendments, modifications, and refinancings
thereof, so long as (x) the principal amount of any
refinanced Debt shall not exceed the principal amount of the
Debt being refinanced immediately prior to giving effect to
any such refinancing; and (y) no Default or Potential
Default exists or arises as a result of any such renewal,
extension, amendment, modification, or refinancing;
(c) Debt incurred by Borrower under any Financial
Hedge (other than Financial Hedges constituting Debt
permitted by clauses (a) and (b) of this Section 9.12) not
to exceed $25,000,000 prior to the Qualifying Date and
$50,000,000 on and after the Qualifying Date in the
aggregate on any date of determination; for the purposes of
this Agreement, the amount of Debt under any Financial Hedge
shall be the amount determined on any date of determination,
based on the assumption that such Financial Hedge had
terminated on such date of determination, and in making such
determination, if such Financial Hedge provides for the
netting of amounts payable by and to Borrower thereunder or
if such Financial Hedge provides for the simultaneous
payment of amounts by and to Borrower, then in each such
case, the amount of Debt shall be the net amount so
determined;
(d) Endorsements of checks or drafts in the ordinary
course of business;
(e) Debt of any Company (other than any Foreign
Subsidiary) owed to any Loan Party;
(f) Contingent liabilities of any Company for any Debt
of any Loan Party;
(g) Debt of any Foreign Subsidiary owed to any Loan
Party or any contingent liabilities of any Loan Party with
respect to the Debt of any Foreign Subsidiary, so long as
and only to the extent that such loans or contingent
obligations are permitted under Section 9.20(i) (as the case
may be);
(h) Debt of any Company existing at the time any asset
or Person is acquired by, or merged or consolidated with or
into, any Company (and renewals, extensions, amendments, and
modifications of such Debt), so long as (i) such Debt was
not incurred in contemplation of such acquisition, merger,
or consolidation, (ii) no Default or Potential Default then
exists or arises as a result thereof, (iii) no other Company
(other than the existing obligors at the time such Person or
asset was acquired or guaranties by Borrower to the extent
permitted by Section 9.12(f)) shall have or incur any direct
or indirect liability for such Debt, and (iv) the principal
amount of any such Debt shall not be increased by any
renewal, extension, amendment, modification, or refinancing
thereof (unless such increased amount is otherwise permitted
to be incurred in compliance with Section 9.12(j));
(i) Debt incurred or assumed by any Company for the
purpose of financing all or any part of the cost of any
asset (including Capital Leases and renewals, extensions,
amendments, and modifications of such Debt), so long as
(i) the aggregate amount of such Debt (together with any and
all amendments, modifications, or refinancings thereof) does
not exceed $25,000,000 prior to the Qualifying Date and
$50,000,000 on and after the Qualifying Date, and (ii) no
Default or Potential Default then exists or arises as a
result of such Debt incurrence;
(j) Debt of any Company not otherwise permitted by
this Section 9.12, so long as such Debt does not exceed in
the aggregate $25,000,000 prior to the Qualifying Date and
$50,000,000 on and after the Qualifying Date;
(k) Debt of any Loan Party not otherwise permitted by
this Section 9.12 incurred or created so long as (i) no
Default or Potential Default exists on the date any such
Debt is created or arises as a result of any Debt incurrence
or Borrowing thereunder; (ii) the provisions of the
documents evidencing such Debt are not materially more
restrictive (as reasonably determined by Administrative
Agent) than the provisions of the Loan Documents, including,
without limitation, any requirements for mandatory
prepayments or redemptions at any time where similar
payments are not required under the Loan Documents;
(iii) such Debt does not mature earlier than one year
following the Termination Date for the Revolver Facility and
shall amortize in such amounts and on such dates as are
reasonably acceptable to Administrative Agent; (iv) such
Debt is unsecured; and (v) the documents pursuant to which
such Debt is issued (including, without limitation, any
subordination provisions therein) are reasonably
satisfactory to Administrative Agent and its counsel; and
(l) Debt incurred by Coors Porcelain Company
concurrently with the consummation of the Ceramics Spinoff.
9.13 Liens. No Company will, directly or indirectly,
(a) enter into or permit to exist any arrangement or agreement
which directly or indirectly prohibits any Company from creating
or incurring any Lien on any of its assets, other than (i) the
Loan Documents, and (ii) all arrangements and agreements arising
under Debt permitted by Section 9.12(i), so long as any such Lien
prohibition is limited to the property or assets financed by such
Debt; or (b) create, incur, or suffer or permit to be created or
incurred or to exist any Lien upon any of its assets, except:
(i) Liens securing the Obligation, and so long as the
Obligation is ratably secured therewith, Liens securing Debt
incurred by any Company under any Financial Hedge with any
Lender or an Affiliate of any Lender to the extent permitted
under Section 9.12;
(ii) Liens existing on the Closing Date, so long as
such Liens are described on Schedule 9.13 and the Debt
secured by all Liens permitted under this
Section 9.13(b)(ii) shall not exceed in the aggregate
$10,000,000;
(iii) Liens securing Permitted Debt incurred
pursuant to Section 9.12(i), so long as (x) any such Lien
does not extend to any asset other than the asset purchased
or financed by such Debt, and (y) any such Lien attached to
such asset concurrently with or within 180 days of the
related asset acquisition;
(iv) Liens securing Permitted Debt incurred pursuant to
Section 9.12(h), so long as (x) any such Lien was not
created in contemplation of such acquisition, merger, or
consolidation, (y) the Debt secured by all Liens permitted
under this Section 9.13(b)(iv) shall not exceed $25,000,000
on any date of determination prior to the Qualifying Date or
$50,000,000 on any date of determination occurring on and
after the Qualifying Date, and (z) any such Lien does not
and shall not extend to any asset other than the assets
secured immediately prior to the acquisition;
(v) Pledges or deposits made to secure payment of
worker's compensation, or to participate in any fund in
connection with worker's compensation, unemployment
insurance, pensions, or other social security programs, but
expressly excluding any Liens in favor of the PBGC or
otherwise arising under ERISA;
(vi) Good-faith pledges or deposits made to secure
performance of bids, tenders, insurance or other contracts
(other than for the repayment of borrowed money), or leases,
or to secure statutory obligations, surety or appeal bonds,
or indemnity, performance, or other similar bonds as all
such Liens arise in the ordinary course of business of the
Companies;
(vii) Encumbrances consisting of zoning
restrictions, easements, other restrictions on the use of
real property, or other matters of record affecting real
property, none of which impair in any respect the use of
such property by the Person in question in the operation of
its business, and none of which is violated by existing or
proposed structures or land use, except impairments or
violations which, individually or collectively, could not
reasonably be expected to be a Material Adverse Event;
(viii) Liens of landlords or of mortgagees of
landlords, arising solely by operation of law, on fixtures
and movable property located on premises leased in the
ordinary course of business;
(ix) On and after the Lien Triggering Date, the PBGC
Lien, so long as, (A) Administrative Agent (for the benefit
of the Lenders) has taken Liens in the Collateral pursuant
to Section 6.2, (B) the obligations secured by the PBGC Lien
permitted under this Section 9.13(b)(ix) shall not exceed
$22,600,000 on any date of determination, (C) such PBGC Lien
is pari passu or subordinate to the Lien of Administrative
Agent (held for the benefit of Lenders) in such assets,
(D) the PBGC and Administrative Agent (for the benefit of
Lenders) have entered into an intercreditor agreement, in
form and substance satisfactory to Administrative Agent, and
(E) the PBGC Lien is limited to those assets that can be
secured solely by filing a financing statement under the
UCC; and
(x) The following, so long as the validity or amount
thereof is being contested in good faith and by appropriate
and lawful proceedings diligently conducted, reserve or
other appropriate provisions (if any) required by GAAP shall
have been made, levy and execution thereon have been stayed
and continue to be stayed or is not imminent, and they do
not in the aggregate detract from the value of the property
of the Person in question, or impair the use thereof in the
operation of its business (if such detraction in value or
impairment could reasonably be expected to be a Material
Adverse Event): (i) claims and Liens for Taxes (other than
Liens relating to Environmental Laws or ERISA); (ii) claims
and Liens upon, and defects of title to, real or personal
property, including any attachment of personal or real
property or other legal process prior to adjudication of a
dispute of the merits; and (iii) claims and Liens of
mechanics, materialmen, warehousemen, carriers, landlords,
or other like Liens.
9.14 Transactions with Affiliates. No Company shall enter
into any material transaction with any of its Affiliates
(excluding transactions among or between Loan Parties), other
than (i) transactions in the ordinary course of business and upon
fair and reasonable terms not materially less favorable than such
Company could obtain or could become entitled to in an
arm's-length transaction with a Person that was not its
Affiliate, or (ii) transactions between the Companies and any
Affiliate (excluding any Loan Party) on terms of the kind
customarily employed to allocate charges among members of a
consolidated group of entities, in each such case, that are fair
and reasonable to the Companies, provided that, with respect to
such transactions permitted in clause (ii), the aggregate
consideration for such transactions does not exceed $1,000,000 in
any calendar year.
9.15 Compliance with Laws and Documents. No Company shall
violate the provisions of any Laws (including, without
limitation, Environmental Laws, Environmental Permits, ERISA, and
OSHA) applicable to it or any material written or oral agreement,
contract, commitment, or understanding to which it is a party, if
such violation alone, or when aggregated with all other such
violations, could be a Material Adverse Event; no Company shall
violate the provisions of its articles of incorporation, bylaws,
or partnership agreement, or modify, repeal, replace, or amend
any provision of its articles of incorporation, bylaws, or
partnership agreement, if such action could adversely affect the
Rights of Lenders.
9.16 Permitted Acquisitions, Subsidiary Guaranties, and
Collateral Documents. In connection with each Permitted
Acquisition, Borrower shall deliver, or cause to be delivered to,
Administrative Agent each of the items described on Schedule 7.2,
on or before the date specified on such Schedule for each such
item. Borrower shall cause each Subsidiary that becomes a
Domestic Subsidiary of any Company after the Closing Date
(whether as a result of acquisition, merger, creation, or
otherwise) (a) to execute a Guaranty on the date such entity
becomes a Domestic Subsidiary of a Company and promptly deliver
(but in no event later than 10 days following consummation of
such creation, acquisition, or merger) such Guaranty to
Administrative Agent and (b) if after the Lien Triggering Date,
to execute and deliver to Administrative Agent all required
Collateral Documents creating Liens in favor of Administrative
Agent on all the material assets of such Domestic Subsidiary.
9.17 Assignment. No Company shall assign or transfer any of
its Rights, duties, or obligations under any of the Loan
Documents.
9.18 Fiscal Year and Accounting Methods. No Company will
change its fiscal year for book accounting purposes or change its
method of accounting, other than (a) immaterial changes in
methods or as required by GAAP, (b) in connection with a
Permitted Acquisition, such changes to the newly-acquired entity
so as to conform its fiscal year and its method of accounting to
those of the Companies, or (c) changes in accounting methods
which are permitted by GAAP, so long as Borrower gives written
notice of any material proposed accounting method change to
Administrative Agent not later than sixty (60) days prior to the
delivery of the first Financial Statements and related Compliance
Certificate that would reflect such an accounting change, and
subject to Administrative Agent's Right to request renegotiation
of any financial covenants materially affected by such change in
accounting method, if any; provided that, if Administrative Agent
has requested the renegotiation of any financial covenants and
Borrower and Required Lenders have not agreed on revised
covenants within thirty (30) days after delivery of such notice,
Borrower shall not be permitted to make such change in method of
accounting; provided further that, nothing herein is intended to
alter the Rights of Borrower, Lenders, and Administrative Agent
pursuant to Section 1.3 in the event of changes in GAAP.
9.19 Government Regulations. No Company will conduct its
business in such a way that it will become subject to regulation
under the Investment Company Act of 1940, as amended, the Public
Utility Holding Company Act of 1935, as amended, or any other Law
(other than Regulations T, U, and X of the Board of Governors of
the Federal Reserve System) which regulates the incurrence of
Debt.
9.20 Loans, Advances, and Investments. No Company shall
make any loan, advance, extension of credit, or capital
contribution to, make any investment in, purchase or commit to
purchase any stock or other securities or evidences of Debt of,
or interests in, or guaranty any Debt of, any other Person
(collectively, "Investments"), other than:
(a) Investments (including without limitation,
existing investments in Foreign Subsidiaries) existing on
the Closing Date as described on Schedule 9.20;
(b) Cash Equivalents;
(c) Investments of any Loan Party in respect of any
other Loan Party;
(d) Permitted Acquisitions (other than Acquisitions
of, by, or resulting in, Foreign Subsidiaries); provided,
however, that to the extent that any Permitted Acquisition
results in the formation or Acquisition of one or more
Foreign Subsidiaries, Borrower shall provide to
Administrative Agent such information as Administrative
Agent shall reasonably request to evidence the portion of
the Purchase Price attributable to such Foreign Subsidiaries
(the "Foreign Investment"), which Foreign Investment must be
permitted by Section 9.20(i);
(e) Trade accounts receivable which are for goods
furnished or services rendered in the ordinary course of
business;
(f) Financial Hedges permitted by the Loan Documents;
(g) Loans or advances to any Companies' directors,
officers, and employees not to exceed $5,000,000 in the
aggregate for all Companies at any time outstanding;
(h) Deferred purchase obligations of the buyer owed to
any Company arising in connection with the Golden Aluminum
Company Sale, the sale of the Solar Division to the extent
permitted by Section 9.23(f), or sales permitted by Section
9.23(h);
(i) So long as no Default or Potential Default then
exists or arises, (i) investments in Foreign Subsidiaries
(other than those existing on the Closing Date),
(ii) Acquisitions of, by, or resulting in, Foreign
Subsidiaries, and (iii) investments in other Persons (other
than the Loan Parties), which investments in the aggregate
under this clause (i) do not exceed $25,000,000 prior to the
Qualifying Date or $75,000,000 on and after the Qualifying
Date, determined on a cumulative basis from and after the
Closing Date; and
(j) Loans or advances to a Loan Party from any Foreign
Subsidiary, so long as such loans or advances are
subordinated to the Obligation on terms and conditions
satisfactory to Administrative Agent.
9.21 Distributions. No Company may directly or indirectly
declare, make, or pay any Distribution, other than:
(a) Distributions declared, made, or paid by Borrower which are
wholly in the form of its capital stock; (b) Distributions by any
Company to any Loan Party; (c) subject to compliance with the
mandatory prepayment requirements of Section 3.3(b)(v),
Distributions effecting the Ceramics Spinoff, so long as (i) no
Default or Potential Default exists or arises as a result
thereof, (ii) the Companies have obtained all necessary approvals
from all Governmental Authorities, including, without limitation,
the PBGC, if necessary; and (iii) substantially concurrent with
the consummation of the Ceramics Spinoff, Borrower receives from
Coors Porcelain Company or its Subsidiaries, a cash Distribution,
a cash repayment of inter-Company Debt, or cash consideration for
an inter-Company transfer of assets in an amount not less than
$200,000,000; and (d) on and after the Qualifying Date,
Distributions that do not exceed the sum of (i) $25,000,000 plus
(ii) 75% of the cumulative Consolidated Net Income (or minus 100%
of cumulative consolidated net loss) for the period beginning
with the first fiscal quarter after the Qualifying Date through
the end of the most recent full fiscal quarter (treated for this
purpose as a single accounting period). Notwithstanding the
foregoing, Distributions are permitted hereunder only to the
extent such Distribution is made in accordance with applicable
Law and constitutes a valid, non-voidable transaction.
9.22 Restrictions on Subsidiaries. Except as may be
required in connection with a pending permitted disposition of a
Subsidiary, no Subsidiary of Borrower nor any Guarantor shall
enter into or permit to exist any material arrangement or
agreement (other than the Loan Documents) which directly or
indirectly prohibits any such Subsidiary from (a) declaring,
making, or paying, directly or indirectly, any Distribution to
Borrower or any other Company, (b) paying any Debt owed to
Borrower or any other Company, (c) making loans, advances, or
investments to Borrower or any other Company, or (d) transferring
any of its property or assets to Borrower or any other Company.
9.23 Sale of Assets. No Company shall sell, assign,
transfer, or otherwise dispose of any of its assets, other than
(a) sales of inventory in the ordinary course of business,
(b) the sale, discount, or transfer of delinquent accounts
receivable in the ordinary course of business for purposes of
collection, (c) occasional sales of immaterial assets for
consideration not less than the fair market value thereof,
(d) dispositions of obsolete assets, (e) sale, leases, or other
disposition among Loan Parties; (f) the sale or disposition for
fair value for cash or Cash Equivalents and not by way of
deferred payment pursuant to a promissory note (other than a
promissory note payable to Borrower or Golden Technologies
Company, Inc. in an amount not to exceed $1,500,000 delivered by
the purchaser in connection with the sale of the Solar Division)
in one or more transactions of the Flexible Packaging Division,
the Solar Division, or any other Designated Asset, so long as
concurrently with such disposition, Borrower shall make the
mandatory prepayments required by Section 3.3(b)(ii), (g) the
Golden Aluminum Company Sale, which may be for cash, Cash
Equivalents, or by way of deferred payment pursuant to a
promissory note, so long as concurrently with such disposition,
Borrower shall make the mandatory prepayments required by
Section 3.3(b)(ii) and the Companies have obtained all necessary
approvals from all Governmental Authorities; including, without
limitation, if necessary the PBGC, and (h) if no Default or
Potential Default then exists or arises as a result thereof,
sales of other assets for fair value for cash, Cash Equivalents,
or by way of deferred payment pursuant to a promissory note
(including, without limitation, sales or transfers of assets to
Companies that are not Loan Parties); so long as (i) the
aggregate value of all assets sold pursuant to clause (h) during
any fiscal year shall not exceed 5% of the Total Assets of the
Companies as of the end of the immediately-preceding fiscal year
if prior to the Qualifying Date, or 10% on and after the
Qualifying Date, and (ii) concurrently with such disposition,
Borrower shall make the mandatory prepayments (if any) required
by Section 3.3(b)(iii).
9.24 Sale-Leaseback Financings. No Company will enter into
any sale-leaseback arrangement with any Person pursuant to which
such Company shall lease any asset (whether now owned or
hereafter acquired) if such asset has been or is to be sold or
transferred by any Company to any other Person.
9.25 Mergers and Dissolutions; Sale of Capital Stock. No
Company will, directly or indirectly, merge or consolidate with
any other Person, other than if no Default or Potential Default
then exists or arises, (a) in connection with a Permitted
Acquisition if the survivor is, or concurrently with the
Permitted Acquisition becomes, a Company organized under the Laws
of a jurisdiction of the United States; (b) mergers or
consolidations involving Borrower (including a Permitted
Acquisition effected as a merger) if Borrower is the surviving
entity; (c) mergers among Companies; provided that, in any merger
involving Borrower (including a Permitted Acquisition effected as
a merger), Borrower must be the surviving entity, and, in any
merger involving any other Loan Party (including a Permitted
Acquisition effected as a merger), a Loan Party which is a Wholly-
owned Subsidiary must be the surviving entity. Notwithstanding
the foregoing, Borrower may merge with and into any Loan Party,
so long as (i) no Default or Potential Default then exists or
arises as a result thereof, (ii) the successor corporation, after
giving effect to such merger, is a Loan Party that owns, directly
or indirectly, all Subsidiaries previously owned by Borrower, and
(iii) the successor corporation shall expressly assume all
obligations of Borrower for payment of the Obligation and
performance under the Loan Documents and shall deliver (or cause
to be delivered) such written amendments and legal opinions with
respect thereto, as Administrative Agent may reasonably request.
No Company shall liquidate, wind up, or dissolve (or suffer any
liquidation or dissolution), other than (i) liquidations, wind
ups, or dissolutions incident to mergers permitted under this
Section 9.25, (ii) dissolution of any Loan Party if substantially
all of its assets have been conveyed to another Loan Party or
disposed of as permitted by and in accordance with the
requirements of Section 9.23, or (iii) dissolution of any
Subsidiary other than a Loan Party if substantially all of its
assets have been conveyed to another Subsidiary or disposed of as
permitted by and in accordance with the requirements of
Section 9.23. No Company may sell, assign, lease, transfer, or
otherwise dispose of the capital stock (or other ownership
interests) of any other Company, except for (i) sales, leases,
transfers, or other such dispositions between Companies permitted
by and in accordance with the requirements of Section 9.23 and
(ii) the Ceramics Spinoff, so long as concurrently with the
Ceramics Spinoff, Borrower shall make the mandatory prepayments
required by Section 3.3(b)(v).
9.26 New Business. No Company will, directly or indirectly,
permit or suffer to exist any material change in the type of
businesses in which it is engaged from the businesses of the
Companies as conducted on the Closing Date.
9.27 Affiliate Subordination Agreements. The Companies
shall, simultaneously with the creation of any and all future
Debt of any Company to any one or more Affiliates (other than a
Loan Party), cause the appropriate Affiliate or Affiliates to
execute and deliver to Administrative Agent an agreement,
substantially in the form of Exhibit H, subordinating the payment
of such Debt to the payment of the Obligation.
9.28 Amendments to Documents. No Company shall either
(a) amend, modify, repeal, replace or permit the amendment,
modification, repeal, or replacement of its articles of
incorporation, bylaws, articles of incorporation, partnership
agreement, or other organizational documents as in effect on the
Closing Date, if such action could adversely affect the Rights of
Lenders; (b) without the prior written consent of Administrative
Agent, amend, modify, or waive any material provision of any
material Ft. James Acquisition Document (other than the supply
agreements, the broker agreements, the intellectual property
cross-licensing agreements, the facility sharing agreement, and
any employee benefit plans being created or executed pursuant to
or in connection with the Ft. James Acquisition Agreement);
(c) without the prior written consent of Administrative Agent,
amend or modify the terms of any Subordinated Debt, including,
without limitation, any modification of the Subordinated Debt
which changes the maturity thereof, the interest rates
thereunder, or the subordination provisions therein; or (d)
without the prior written consent of Required Lenders, amend or
modify the PBGC Letter or enter into any other agreement with the
PBGC with respect to the PBGC Lien.
9.29 Year 2000 Compliance. The Companies shall have all
hardware and software systems Year 2000 Compliant and ready
(including all internal and external testing) on or before
September 30, 1999, unless the failure to do so could not
reasonably be expected to be a Material Adverse Event.
9.30 Financial Covenants. As calculated on a consolidated
basis for the Companies (unless otherwise indicated):
(a) Leverage Ratio. Borrower shall never permit the
Leverage Ratio of the Companies at any date of determination
(each a "compliance date") to be greater than the ratio
shown in the table below which corresponds to the period in
which the applicable compliance date occurs:
Maximum Leverage
Period Ratio
------------------------- ----------------
September 30, 1999, to 5.00 to 1
and including
December 30, 1999
December 31, 1999, to and 4.75 to 1
including June 29, 2000
June 30, 2000, to 4.00 to 1
and including
December 30, 2000
December 31, 2000, to 3.50 to 1
and including
December 30, 2001
December 31, 2001, to 3.00 to 1
and including
December 30, 2002
December 31, 2002, and 2.75 to 1
thereafter
; provided, however, that if on or after December 31, 1999,
the Obligation arising under both the 180-Day Term Facility
and the One-Year Term Facility has been repaid in full, then
the maximum Leverage Ratio for the period from the date the
Obligation arising under both the 180-Day Term Facility and
the One-Year Term Facility has been repaid to June 29, 2000,
shall be 4.25 to 1, notwithstanding any contrary requirement
set forth in the foregoing table.
(b) Minimum Consolidated Net Worth. During the period
from October 1, 1999, through December 31, 1999, Borrower
shall never permit its Consolidated Net Worth to be less
than $370,000,000. On and after January 1, 2000, Borrower
shall never permit its Consolidated Net Worth to be less
than the sum of (i) $370,000,000, plus (ii) 75% of the
cumulative Consolidated Net Income (if positive) determined
from January 1, 2000, to any date of determination, plus
(iii) 100% of the Net Cash Proceeds of all Equity Issuances
effected by any Company (excluding the Net Cash Proceeds of
any Equity Issuance by a Company to another Company).
(c) Interest Coverage. Borrower shall never permit
the ratio (determined quarterly on a cumulative basis from
October 1, 1999, for fiscal quarters ending December 31,
1999, March 31, 2000, and June 30, 2000, and thereafter,
determined on a quarterly basis for the Rolling Period then-
ending) of (i) EBITDA to (ii) the Companies' Interest
Expense to be less than the ratio shown in the table below
which corresponds to the applicable fiscal quarter:
Fiscal Quarter(s) Minimum Interest
Ending Coverage Ratio
---------------------- ----------------
December 31, 1999, and 2.00 to 1
March 31, 2000
June 30, 2000, and 2.50 to 1
September 30, 2000
December 31, 2000, 3.00 to 1
March 31, 2001,
June 30, 2001,
and September 30, 2001
December 31, 2001, and 4.00 to 1
thereafter
(d) Total Debt to Consolidated Total Capitalization.
Borrower shall never permit the ratio (expressed as a
percentage) of the Total Debt to the Consolidated Total
Capitalization at any date of determination (each a
"compliance date") to be greater than the percentage shown
in the table below which corresponds to the period in which
the applicable compliance date occurs:
Maximum Total Debt/
Consolidated Total
Period Capitalization Ratio
---------------------- --------------------
September 30, 1999, to 75%
and including
December 30, 1999
December 31, 1999, to 72%
and including June 29,
2000
June 30, 2000, to and 65%
including December 30,
2000
December 31, 2000, to 60%
and including
December 30, 2001
December 31, 2001, to 55%
and including
December 30, 2002
December 31, 2002, and 50%
thereafter
(e) Capital Expenditures. Commencing on and after
January 1, 2000, the Companies shall not make Capital
Expenditures in any fiscal year if the aggregate amount of
such expenditures would exceed $75,000,000.
9.31 Financial Hedges.
(a) Borrower shall, within 30 days after the Closing
Date, enter into, purchase, or acquire Financial Hedges
providing interest rate protection, in a form and upon terms
reasonably acceptable to Administrative Agent and issued by
one or more Lenders, Affiliates of Lenders, or an
institution acceptable to Administrative Agent (which
consent will not be unreasonably withheld) with a duration
of at least two years, which Financial Hedges shall assure
that the net interest cost to Borrower on at least
$100,000,000 of the Principal Debt is fixed, capped, or
hedged; provided, however, that the protected fixed, capped,
or hedged rate shall be no greater than 2.0% above the
Eurodollar Rate on the date such Financial Hedges are
purchased.
(b) Borrower shall, within 30 days after the Lien
Triggering Date, enter into, purchase, or acquire Financial
Hedges providing interest rate protection, in a form and
upon terms reasonably acceptable to Administrative Agent and
issued by one or more Lenders, any Affiliates of Lenders, or
an institution acceptable to Administrative Agent (which
consent will not be unreasonably withheld) with a duration
of at least two years, which Financial Hedges shall assure
that the net interest cost to Borrower is fixed, capped, or
hedged on at least fifty percent (50%) of the Principal Debt
outstanding on the date such Financial Hedges are purchased
("Hedge Date"); provided, however, that the protected fixed,
capped, or hedged rate shall be no greater than 2.0% above
the Eurodollar Rate on the Hedge Date. Notwithstanding the
foregoing, any Financial Hedge purchased under Section
9.31(b) may be reduced from time to time after the Hedge
Date, so long as on any date of reduction, the Financial
Hedges maintained in accordance with this Section 9.31(b)
shall assure that the net interest cost to Borrower is
fixed, capped, or hedged on at least fifty percent (50%) of
the Principal Debt existing on the Hedge Date, as such
Principal Debt may have been reduced after the Hedge Date;
for purposes hereof, any repayments of Principal Debt shall
be deemed to be applied first to that portion of the
Principal Debt that is not hedged under this Section
9.31(b), then to the Hedged Debt.
(c) Notwithstanding the foregoing, after the
occurrence of the Qualifying Date, no Financial Hedges are
required to be maintained under this Section 9.31.
SECTION 10 DEFAULT. The term "Default" means the occurrence
of any one or more of the following events:
10.1 Payment of Obligation. The failure or refusal of any
Company to pay (a) all or any part of the Principal Debt when the
same becomes due (whether by its terms, by acceleration, or as
otherwise provided in the Loan Documents); or (b) any other part
of the Obligation (including, without limitation, any deposit of
cash collateral required pursuant to Section 2.7) on or before
five calendar days after the date due.
10.2 Covenants. The failure or refusal of Borrower (and, if
applicable, any other Company) to punctually and properly
perform, observe, and comply with:
(a) Any covenant, agreement, or condition contained in
Sections 9.1, 9.3(a) and (b), 9.4, 9.12, 9.13, 9.16, 9.17,
9.20 through 9.25, and 9.30;
(b) Any covenant, agreement, or conditions contained
in Sections 9.3(c) through (j), 9.6 (other than the
covenants to pay the Obligation as set forth therein, which
shall be governed by Section 10.1), 9.14, and 9.29, and such
failure continues for five days; and
(c) Any other covenant, agreement, or condition
contained in any Loan Document (other than the covenants to
pay the Obligation or provide cash collateral set forth in
Section 10.1 and the covenants in Section 10.2(a) and (b)),
and such failure or refusal continues for 30 days after
(i) Administrative Agent gives notice thereof, or
(ii) Borrower otherwise becomes aware of such failure or
refusal.
10.3 Debtor Relief. Borrower or any Material Subsidiary
(a) shall not be Solvent, (b) fails to pay its Debts generally as
they become due, (c) voluntarily seeks, consents to, or
acquiesces in the benefit of any Debtor Relief Law, other than as
a creditor or claimant, or (d) becomes a party to or is made the
subject of any proceeding provided for by any Debtor Relief Law,
other than as a creditor or claimant, that could suspend or
otherwise adversely affect the Rights of Administrative Agent or
any Lender granted in the Loan Documents (unless, in the event
such proceeding is involuntary, the petition instituting same is
dismissed within 60 days after its filing).
10.4 Judgments and Attachments. Any Company fails, within
10 days after entry, to pay, bond, or otherwise discharge any
judgment or order for the payment of money in excess of
$10,000,000 (individually or collectively) or any warrant of
attachment, sequestration, or similar proceeding against any
Company's assets having a value (individually or collectively) of
$10,000,000 which is not stayed on appeal.
10.5 Government Action. (a) A final non-appealable order is
issued by any Governmental Authority, including, but not limited
to, the United States Justice Department, seeking to cause any
Company to divest a significant portion of its assets pursuant to
any antitrust, restraint of trade, unfair competition, industry
regulation, or similar Laws, or (b) any Governmental Authority
shall condemn, seize, or otherwise appropriate, or take custody
or control of all or any substantial portion of the assets of any
Company.
10.6 Misrepresentation. Any representation or warranty made
by any Company contained in any Loan Document shall at any time
prove to have been incorrect in any material respect when made.
10.7 Change of Control. (i) Any Person or group of Persons
(within the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934 (as amended from time to time the "Exchange
Act")), other than any Special Shareholders, shall have acquired
beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities Exchange Commission pursuant to the
Exchange Act) of 50% or more of the outstanding shares of common
stock of Borrower; (ii) commencing on the earlier of 60 days
after the date upon which the Ceramics Spinoff is consummated or
June 1, 2000, during any 12 consecutive calendar months
thereafter, individuals who were directors of Borrower on the
first day of such period shall cease to constitute a majority of
Borrower's board of directors; (iii) the Special Shareholders
cease to own at least 20% of the outstanding shares of common
stock of Borrower; or (iv) except as otherwise permitted pursuant
to this Agreement, Borrower ceases to own the percentage of the
issued and outstanding equity interests issued by its
Subsidiaries as determined on the Closing Date or, if thereafter
acquired, on the date of the related Acquisition. As used
herein, "Special Shareholders" shall mean any trust, the primary
beneficiaries of which are descendants of Adolph Coors, Sr. or
spouses of such descendants, or the trustees of any such trusts.
10.8 Default Under Other Debt and Agreements. (a) The
Borrower or any one or more Companies fail to pay when due (after
lapse of any applicable grace periods) any Debt of such Company
(other than the Obligation) in excess (individually or
collectively) of $10,000,000 if prior to the Qualifying Date or
$20,000,000 on and after the Qualifying Date; (b) the
acceleration of any Debt of Borrower or any one or more Companies
or the occurrence of any event or condition (which with notice or
lapse of time) would enable the holder of such Debt or any Person
acting on behalf of such holder to accelerate the maturing
thereof, which Debt exceeds (individually or collectively)
$10,000,000 if prior to the Qualifying Date or $20,000,000 on and
after the Qualifying Date; or (c) any default exists under any
Material Agreement, which default under such Material Agreement
could reasonably be expected to be a Material Adverse Event.
10.9 Employee Benefit Plans. (a) Any Company or ERISA
Affiliate shall fail to pay when due an amount or amounts for
which it is liable under Title IV of ERISA, which unpaid amounts
exceed $5,000,000 in the aggregate; or (b) an ERISA Event shall
occur or exist with respect to any Employee Plan or Multiemployer
Plan, and as a result of such ERISA Event and all other ERISA
Events then-existing, the aggregate liabilities incurred (or in
the reasonable judgment of Required Lenders, likely to be
incurred) of the Companies and the ERISA Affiliates to any
Employee Plan, Multiemployer Plan, or the PBGC (or any
combination thereof) shall exceed $30,000,000.
10.10 Validity and Enforceability of Loan Documents.
Any Loan Document shall, at any time after its execution and
delivery and for any reason, cease to be in full force and effect
in any material respect or be declared to be null and void (other
than in accordance with the terms hereof or thereof) or the
validity or enforceability thereof shall be contested by any
Company party thereto or any Company shall deny in writing that
it has any or any further liability or obligations under any Loan
Document to which it is a party.
10.11 Environmental Liability. If any event or
condition shall occur or exist with respect to any Environmental
Law, Environmental Permit, or Hazardous Substance, and as a
result of such event or condition, any Company shall have
incurred or in the opinion of Administrative Agent or Required
Lenders be reasonably likely to incur an Environmental Liability
in excess of $10,000,000 if prior to the Qualifying Date or
$20,000,000 on and after the Qualifying Date during any
consecutive twelve (12) month period.
10.12 Pledged Stock; Collateral Documents. If (i) the
Administrative Agent ceases to hold as Collateral (for the
benefit of Lenders) a perfected first priority Lien on all of the
issued and outstanding shares of common stock of the Domestic
Subsidiaries issued to any Loan Party and 65% of the issued and
outstanding shares of common stock of the Material Foreign
Subsidiaries issued to Borrower or any Domestic Subsidiary, and
such failure is not cured within five days; or (ii) any
Collateral Document after delivery thereof pursuant to Section 6
shall for any reason (other than pursuant to the terms thereof)
cease to create a valid and perfected first priority Lien on and
security interest in the Collateral purported to be covered
thereby, except as permitted under the Loan Documents.
SECTION 11 RIGHTS AND REMEDIES.
11.1 Remedies Upon Default.
(a) Debtor Relief. If a Default exists under
Sections 10.3(c) or 10.3(d), the commitment to extend credit
hereunder shall automatically terminate and the entire
unpaid balance of the Obligation shall automatically become
due and payable without any action or notice of any kind
whatsoever and Borrower shall be required to provide cash
collateral in an amount equal to 105% of the LC Exposure
then existing in accordance with Section 2.5(g).
(b) Other Defaults. If any Default exists,
Administrative Agent shall, upon the request of Required
Lenders (subject to the terms of Section 12) or Required
Lenders may (if Administrative Agent fails to act), do any
one or more of the following: (i) if the maturity of the
Obligation has not already been accelerated under
Section 11.1(a), declare the entire unpaid balance of the
Obligation, or any part thereof, immediately due and
payable, whereupon it shall be due and payable;
(ii) terminate the commitments of Lenders to extend credit
hereunder; (iii) reduce any claim to judgment; (iv) to the
extent permitted by Law, exercise (or request each Lender
to, and each Lender shall be entitled to, exercise) the
Rights of offset or banker's Lien against the interest of
each Company in and to every account and other property of
each Company which are in the possession of Administrative
Agent or any Lender to the extent of the full amount of the
Obligation (to the extent permitted by Law, each Company
being deemed directly obligated to each Lender in the full
amount of the Obligation for such purposes); (v) if the
maturity of the Obligation has not already been accelerated
under Section 11.1(a), demand Borrower to provide cash
collateral in an amount equal to 105% of the LC Exposure
then existing in accordance with Section 2.5(g); and
(vi) exercise any and all other legal or equitable Rights
afforded by the Loan Documents, the Laws of the State of New
York, or any other applicable jurisdiction as Administrative
Agent or Required Lenders (as the case may be) shall deem
appropriate, or otherwise, including, but not limited to,
the Right to bring suit or other proceedings before any
Governmental Authority either for specific performance of
any covenant or condition contained in any of the Loan
Documents or in aid of the exercise of any Right granted to
Administrative Agent or any Lender in any of the Loan
Documents.
11.2 Company Waivers. To the extent permitted by Law, the
Companies hereby waive presentment and demand for payment,
protest, notice of intention to accelerate, notice of
acceleration, and notice of protest and nonpayment, and agree
that their respective liability with respect to the Obligation
(or any part thereof) shall not be affected by any renewal or
extension in the time of payment of the Obligation (or any part
thereof), by any indulgence, or by any release or change in any
security for the payment of the Obligation (or any part thereof).
11.3 Performance by Administrative Agent. If any material
covenant, duty, or agreement of any Company is not performed in
accordance with the terms of the Loan Documents, after the
occurrence and during the continuance of a Default,
Administrative Agent may, at its option (but subject to the
approval of Required Lenders), perform or attempt to perform such
covenant, duty, or agreement on behalf of such Company. In such
event, any amount expended by Administrative Agent in such
performance or attempted performance shall be payable by the
Companies, jointly and severally, to Administrative Agent on
demand, shall become part of the Obligation, and shall bear
interest at the Default Rate from the date of such expenditure by
Administrative Agent until paid. Notwithstanding the foregoing,
it is expressly understood that Administrative Agent does not
assume, and shall never have, except by its express written
consent, any liability or responsibility for the performance of
any covenant, duty, or agreement of any Company.
11.4 Delegation of Duties and Rights. Lenders may perform
any of their duties or exercise any of their Rights under the
Loan Documents by or through their respective Representatives.
11.5 Not in Control. Nothing in any Loan Document shall, or
shall be deemed to (a) give any Agent or any Lender the Right to
exercise control over the assets (including real property),
affairs, or management of any Company prior to foreclosure
thereon, (b) preclude or interfere with compliance by any Company
with any Law (including, without limitation, any Environmental
Law), or (c) require any act or omission by any Company that may
be harmful to Persons or property. Any "Material Adverse Event"
or other materiality qualifier in any representation, warranty,
covenant, or other provision of any Loan Document is included for
the purposes of defining the agreement between the parties and
shall not, and shall not be deemed to, mean that any Agent or any
Lender acquiesces in any non-compliance by any Company with any
Law or document, or that any Agent or any Lender does not expect
the Companies to promptly, diligently, and continuously carry out
all appropriate removal, remediation, and termination activities
required or appropriate in accordance with all Environmental
Laws. The Agents and the Lenders have no fiduciary relationship
with or fiduciary duty to Borrower or any Company arising out of
or in connection with the Loan Documents, and the relationship
between the Agents and the Lenders, on the one hand, and Borrower
and the Companies, on the other hand, in connection with the Loan
Documents is solely that of debtor and creditor. The power of the
Agents and Lenders under the Loan Documents is limited to the
Rights provided in the Loan Documents, which Rights exist solely
to assure payment and performance of the Obligation and may be
exercised in a manner calculated by the Agents and Lenders in
their respective good faith business judgment.
11.6 Course of Dealing. The acceptance by Administrative
Agent or Lenders at any time and from time to time of partial
payment on the Obligation shall not be deemed to be a waiver of
any Default then existing. No waiver by Administrative Agent,
Required Lenders, or Lenders of any Default shall be deemed to be
a waiver of any other then-existing or subsequent Default. No
delay or omission by Administrative Agent, Required Lenders, or
Lenders in exercising any Right under the Loan Documents shall
impair such Right or be construed as a waiver thereof or any
acquiescence therein, nor shall any single or partial exercise of
any such Right preclude other or further exercise thereof, or the
exercise of any other Right under the Loan Documents or
otherwise.
11.7 Cumulative Rights. All Rights available to
Administrative Agent and Lenders under the Loan Documents are
cumulative of and in addition to all other Rights granted to
Administrative Agent and Lenders at law or in equity, whether or
not the Obligation is due and payable and whether or not
Administrative Agent or Lenders have instituted any suit for
collection, foreclosure, or other action in connection with the
Loan Documents.
11.8 Application of Proceeds. Any and all proceeds ever
received by Administrative Agent or Lenders from the exercise of
any Rights pertaining to the Obligation shall be applied to the
Obligation in the order and manner set forth in Section 3.12.
11.9 Certain Proceedings. Each Company will promptly
execute and deliver, or cause the execution and delivery of, all
applications, certificates, instruments, registration statements,
and all other documents and papers Administrative Agent or
Lenders may reasonably request in connection with the obtaining
of any consent, approval, registration, qualification, permit,
license, or Authorization of any Governmental Authority or other
Person necessary or appropriate for the effective exercise of any
Rights under the Loan Documents. Because the Companies agree
that Administrative Agent's and Lenders' remedies at Law for
failure of the Companies to comply with the provisions of this
Section would be inadequate and that such failure would not be
adequately compensable in damages, the Companies agree that the
covenants of this Section may be specifically enforced.
11.10 Expenditures by Lenders. Borrower shall promptly
pay within fifteen (15) Business Days after request therefor
(a) all reasonable costs, fees, and expenses paid or incurred by
Administrative Agent and Arranger, incident to any Loan Document
(including, but not limited to, the reasonable fees and expenses
of counsel to Administrative Agent and Arranger in connection
with the negotiation, preparation, delivery, execution,
coordination, and administration of the Loan Documents and any
related amendment, waiver, or consent) and (b) all reasonable
costs and expenses of Lenders and Administrative Agent incurred
by Administrative Agent or any Lender in connection with the
enforcement of the obligations of any Company arising under the
Loan Documents following a Default or Potential Default
(including, without limitation, costs and expenses incurred in
connection with any workout or bankruptcy) or the exercise of any
Rights arising under the Loan Documents (including, but not
limited to, reasonable attorneys' fees including allocated cost
of internal counsel, court costs and other costs of collection),
all of which shall be a part of the Obligation and shall bear
interest at the Default Rate from the date due until the date
repaid.
11.11 Indemnification. Borrower and each Guarantor (by
execution of a Guaranty) agree to indemnify and hold harmless
each Agent, Arranger, and each Lender and each of their
respective affiliates and their respective officers, directors,
employees, agents, attorneys, and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses,
liabilities (including, without limitation, any Environmental
Liabilities), costs, and expenses (including, without limitation,
reasonable attorneys' fees) that may be incurred by or asserted
or awarded against any Indemnified Party, in each case arising
out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation, or
proceeding or preparation of defense in connection therewith) the
Loan Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Borrowings
(including any of the foregoing arising from the negligence of
the Indemnified Party), except to the extent such claim, damage,
loss, liability, cost, or expense is found in a final, non-
appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation
or other proceeding to which the indemnity in this Section 11.11
applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the
Borrower, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. Borrower and each Company
agree not to assert any claim against any indemnified party on
any theory of liability (including, without limitation, any
Environmental Liability), for special, indirect, consequential,
or punitive damages arising out of or otherwise relating to the
Loan Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Borrowings.
Without prejudice to the survival of any other agreement of the
Borrower and each Guarantor hereunder, the agreements and
obligations of the Borrower and each Guarantor contained in this
Section 11.11 shall survive the payment in full of the Borrowings
and all other amounts payable under this Agreement.
SECTION 12 AGREEMENT AMONG LENDERS.
12.1 Administrative Agent.
(a) Appointment of Administrative Agent. Each Lender
hereby appoints Bank of America, N.A. (and Bank of America,
N.A. hereby accepts such appointment) as its nominee and
agent, in its name and on its behalf: (i) to act as nominee
for and on behalf of such Lender in and under all Loan
Documents; (ii) to arrange the means whereby the funds of
Lenders are to be made available to Borrower under the Loan
Documents; (iii) to take such action as may be requested by
any Lender under the Loan Documents (when such Lender is
entitled to make such request under the Loan Documents and
after such requesting Lender has obtained the concurrence of
such other Lenders as may be required under the Loan
Documents); (iv) to receive all documents and items to be
furnished to Lenders under the Loan Documents; (v) to timely
distribute, and Administrative Agent agrees to so
distribute, to each Lender all material information,
requests, documents, and items received from Borrower under
the Loan Documents; (vi) to promptly distribute to each
Lender its ratable part of each payment or prepayment
(whether voluntary, as proceeds of collateral upon or after
foreclosure, as proceeds of insurance thereon, or otherwise)
in accordance with the terms of the Loan Documents; (vii) to
deliver to the appropriate Persons requests, demands,
approvals, and consents received from Lenders; and (viii) to
execute, on behalf of Lenders, such releases or other
documents or instruments as are permitted by the Loan
Documents or as directed by Lenders from time to time;
provided, however, Administrative Agent shall not be
required to take any action which exposes Administrative
Agent to personal liability or which is contrary to the Loan
Documents or applicable Law.
(b) Resignation of Administrative Agent. Successor
Administrative Agents. Administrative Agent may resign at
any time as Administrative Agent under the Loan Documents by
giving written notice thereof to Lenders and may be removed
as Administrative Agent under the Loan Documents at any time
with cause by Required Lenders. Should the initial or any
successor Administrative Agent ever cease to be a party
hereto or should the initial or any successor Administrative
Agent ever resign or be removed as Administrative Agent,
then Required Lenders shall elect the successor
Administrative Agent from among the Lenders (other than the
resigning Administrative Agent). If no successor
Administrative Agent shall have been so appointed by
Required Lenders, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or
Required Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf
of Lenders, appoint a successor Administrative Agent, which
shall be a United States commercial bank having a combined
capital and surplus of at least $1,000,000,000. Upon the
acceptance of any appointment as Administrative Agent under
the Loan Documents by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to
and become vested with all the Rights and assumes all the
duties and obligations of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged
from its duties and obligations of Administrative Agent
under the Loan Documents (provided, however, that when used
in connection with LCs issued and outstanding prior to the
appointment of the successor Administrative Agent,
"Administrative Agent" shall continue to refer solely to the
bank that issued the outstanding LC; provided further that
any LCs issued or renewed after the appointment of any
successor Administrative Agent shall be issued by such
successor Administrative Agent), and each Lender shall
execute such documents as any Lender may reasonably request
to reflect such change in and under the Loan Documents.
After any retiring Administrative Agent's resignation or
removal as Administrative Agent under the Loan Documents,
the provisions of this Section 12 shall inure to its benefit
as to any actions taken or omitted to be taken by it while
it was Administrative Agent under the Loan Documents.
(c) Administrative Agent as a Lender. Non-Fiduciary.
Administrative Agent, in its capacity as a Lender, shall
have the same Rights under the Loan Documents as any other
Lender and may exercise the same as though it were not
acting as Administrative Agent; the term "Lender" shall,
unless the context otherwise indicates, include
Administrative Agent; and any resignation, or removal of the
Administrative Agent hereunder shall not impair or otherwise
affect any Rights, duties, or obligations which it has or
may have in its capacity as an individual Lender. Each
Lender and Borrower agree that Administrative Agent is not a
fiduciary for Lenders or for Borrower but simply is acting
in the capacity described herein to alleviate administrative
burdens for both Borrower and Lenders, that Administrative
Agent has no duties or responsibilities to Lenders or
Borrower except those expressly set forth herein, and that
Administrative Agent in its capacity as a Lender has all
Rights of any other Lender.
(d) Other Activities of Administrative Agent.
Administrative Agent and its Affiliates may now or hereafter
be engaged in one or more loan, letter of credit, leasing,
or other financing transactions with Borrower, act as
trustee or depositary for Borrower, or otherwise be engaged
in other transactions with Borrower (collectively, the
"other activities") not the subject of the Loan Documents.
Without limiting the Rights of Lenders specifically set
forth in the Loan Documents, Administrative Agent and its
Affiliates shall not be responsible to account to Lenders
for such other activities, and no Lender shall have any
interest in any other activities, any present or future
guaranties by or for the account of Borrower which are not
contemplated or included in the Loan Documents, any present
or future offset exercised by Administrative Agent and its
Affiliates in respect of such other activities, any present
or future property taken as security for any such other
activities, or any property now or hereafter in the
possession or control of Administrative Agent or its
Affiliates which may be or become security for the
obligations of Borrower arising under the Loan Documents by
reason of the general description of indebtedness secured or
of property contained in any other agreements, documents, or
instruments related to any such other activities; provided
that, if any payments in respect of such guaranties or such
property or the proceeds thereof shall be applied to
reduction of the obligations of Borrower arising under the
Loan Documents, then each Lender shall be entitled to share
in such application ratably.
12.2 Expenses. Upon demand by Administrative Agent, each
Lender shall pay its Pro Rata Part of any reasonable expenses
(including, without limitation, court costs, reasonable
attorneys' fees, and other costs of collection) incurred by
Administrative Agent in connection with any of the Loan Documents
if and to the extent Administrative Agent does not receive
reimbursement therefor from other sources within 60 days after
incurred; provided that, each Lender shall be entitled to receive
its Pro Rata Part of any reimbursement for such expenses, or part
thereof, which Administrative Agent subsequently receives from
such other sources.
12.3 Proportionate Absorption of Losses. Except as
otherwise provided in the Loan Documents, nothing in the Loan
Documents shall be deemed to give any Lender any advantage over
any other Lender insofar as the Obligation arising under the Loan
Documents is concerned, or to relieve any Lender from absorbing
its Pro Rata Part of any losses sustained with respect to the
Obligation (except to the extent such losses result from
unilateral actions or inactions of any Lender that are not made
in accordance with the terms and provisions of the Loan
Documents).
12.4 Delegation of Duties; Reliance. Administrative Agent
may perform any of its duties or exercise any of its Rights under
the Loan Documents by or through its Representatives.
Administrative Agent and its Representatives shall (a) be
entitled to rely upon (and shall be protected in relying upon)
any writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telecopy, telegram, telex or teletype message,
statement, order, or other documents or conversation believed by
it or them to be genuine and correct and to have been signed or
made by the proper Person and, with respect to legal matters,
upon opinion of counsel selected by Administrative Agent, (b) be
entitled to deem and treat each Lender as the owner and holder of
the Obligation owed to such Lender for all purposes until,
subject to Section 13.13, written notice of the assignment or
transfer thereof shall have been given to and received by
Administrative Agent (and any request, authorization, consent, or
approval of any Lender shall be conclusive and binding on each
subsequent holder, assignee, or transferee of the Obligation owed
to such Lender or portion thereof until such notice is given and
received), (c) not be deemed to have notice of the occurrence of
a Default unless a responsible officer of Administrative Agent,
who handles matters associated with the Loan Documents and
transactions thereunder, has received written notice from a
Lender or Borrower and stating that such notice is a "Notice of
Default," and (d) be entitled to consult with legal counsel
(including counsel for Borrower), independent accountants, and
other experts selected by Administrative Agent and shall not be
liable for any action taken or omitted to be taken in good faith
by it in accordance with the advice of such counsel, accountants,
or experts.
12.5 Limitation of Liability.
(a) General. None of the Agents or any of their
respective Representatives shall be liable for any action
taken or omitted to be taken by it or them under the Loan
Documents in good faith and reasonably believed by it or
them to be within the discretion or power conferred upon it
or them by the Loan Documents or be responsible for the
consequences of any error of judgment, except for fraud,
gross negligence, or willful misconduct; and none of the
Agents or any of their respective Representatives has a
fiduciary relationship with any Lender by virtue of the Loan
Documents (provided that, nothing herein shall negate the
obligation of Administrative Agent to account for funds
received by it for the account of any Lender).
(b) Non-Discretionary Actions. Indemnification.
Unless indemnified to its satisfaction against loss, cost,
liability, and expense, neither Administrative Agent nor any
other Agent shall be compelled to do any act under the Loan
Documents or to take any action toward the execution or
enforcement of the powers thereby created or to prosecute or
defend any suit in respect of the Loan Documents. If
Administrative Agent requests instructions from Lenders or
Required Lenders, as the case may be, with respect to any
act or action (including, but not limited to, any failure to
act) in connection with any Loan Document, Administrative
Agent shall be entitled (but shall not be required) to
refrain (without incurring any liability to any Person by so
refraining) from such act or action unless and until it has
received such instructions. Except where action of Required
Lenders or all Lenders is required in the Loan Documents,
Administrative Agent may act hereunder in its own discretion
without requesting instructions. In no event, however, shall
Administrative Agent or any of its respective
Representatives be required to take any action which it or
they determine could incur for it or them criminal or
onerous civil liability. Without limiting the generality of
the foregoing, no Lender shall have any right of action
against Administrative Agent as a result of Administrative
Agent's acting or refraining from acting hereunder in
accordance with the instructions of Required Lenders (or all
Lenders if required in the Loan Documents).
(c) Independent Credit Decision. Neither
Administrative Agent nor any other Agent shall be
responsible in any manner to any Lender or any Participant
for, and each Lender represents and warrants that it has not
relied upon Administrative Agent or any other Agent in
respect of, (i) the creditworthiness of any Company and the
risks involved to such Lender, (ii) the effectiveness,
enforceability, genuineness, validity, or the due execution
of any Loan Document, (iii) any representation, warranty,
document, certificate, report, or statement made therein or
furnished thereunder or in connection therewith, (iv) the
existence, priority, or perfection of any Lien hereafter
granted or purported to be granted under any Loan Document,
or (v) observation of or compliance with any of the terms,
covenants, or conditions of any Loan Document on the part of
any Company. Each Lender agrees to indemnify Administrative
Agent and its respective Representatives and hold them
harmless from and against (but limited to such Lender's Pro
Rata Part of) any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
reasonable expenses, and reasonable disbursements of any
kind or nature whatsoever which may be imposed on, asserted
against, or incurred by them in any way relating to or
arising out of the Loan Documents or any action taken or
omitted by them under the Loan Documents (including any of
the foregoing arising from the negligence of Administrative
Agent or its Representatives), to the extent Administrative
Agent and its respective Representatives are not reimbursed
for such amounts by any Company (provided that,
Administrative Agent, and its respective Representatives
shall not have the right to be indemnified hereunder for its
or their own fraud, gross negligence, or willful
misconduct).
12.6 Default; Collateral. Upon the occurrence and
continuance of a Default, Lenders agree to promptly confer in
order that Required Lenders or Lenders, as the case may be, may
agree upon a course of action for the enforcement of the Rights
of Lenders; and Administrative Agent shall be entitled to refrain
from taking any action (without incurring any liability to any
Person for so refraining) unless and until Administrative Agent
shall have received instructions from Required Lenders. All
rights of action under this Agreement and under the Notes and all
rights to the Collateral, if any, hereunder may be enforced by
Administrative Agent and any suit or proceeding instituted by
Administrative Agent in furtherance of such enforcement shall be
brought in its name as Administrative Agent without the necessity
of joining as plaintiffs or defendants any other Lender, and the
recovery of any judgment shall be for the benefit of Lenders
subject to the expenses of Administrative Agent. In actions with
respect to any property of Borrower, Administrative Agent is
acting for the ratable benefit of each Lender. Any and all
agreements to subordinate (whether made heretofore or hereafter)
other indebtedness or obligations of Borrower to the Obligation
shall be construed as being for the ratable benefit of each
Lender.
12.7 Limitation of Liability. To the extent permitted by
Law, (a) neither Administrative Agent nor any other Agent (acting
in their respective agent capacities) shall incur any liability
to any other Lender, Agent, or Participant except for acts or
omissions resulting from its own fraud, gross negligence or
willful misconduct, and (b) neither Administrative Agent nor any
other Agent, Lender, or Participant shall incur any liability to
any other Person for any act or omission of any other Agent,
Lender, or Participant.
12.8 Relationship of Lenders. Nothing herein shall be
construed as creating a partnership or joint venture among Agents
and Lenders.
12.9 Benefits of Agreement. None of the provisions of this
Section 12 shall inure to the benefit of any Company or any other
Person other than Lenders; consequently, no Company or any other
Person shall be entitled to rely upon, or to raise as a defense,
in any manner whatsoever, the failure of any Agent or any Lender
to comply with such provisions.
12.10 Obligations Several. The obligations of Lenders
hereunder are several, and each Lender hereunder shall not be
responsible for the obligations of the other Lenders hereunder,
nor will the failure of one Lender to perform any of its
obligations hereunder relieve the other Lenders from the
performance of their respective obligations hereunder
12.11 Financial Hedges. To the extent any Lender or
Affiliate of a Lender issues a Financial Hedge in accordance with
the requirements of the Loan Documents and accepts the benefits
of the Liens in the Collateral arising pursuant to the Collateral
Documents, such Lender (for itself and on behalf of its
Affiliate) agrees (i) to appoint Bank of America, N.A., as its
nominee and agent, to act for and on behalf of such Lender or
Affiliate thereof in connection with the Collateral Documents and
(ii) to be bound by the terms of this Section 12; whereupon all
references to "Lender" in this Section 12 and in the Collateral
Documents shall include, on any date of determination, any Lender
or Affiliate of a Lender that is party to a then-effective
Financial Hedge which complies with the requirements of the Loan
Document. Additionally, if the Obligation owed to any Lender or
Affiliate of a Lender consists solely of Debt arising under a
Financial Hedge (such Lender or Affiliate being referred to in
this Section 12.11 as an "Issuing Lender"), then such Issuing
Lender (by accepting the benefits of any Collateral Documents)
acknowledges and agrees that pursuant to the Loan Documents and
without notice to or consent of such Issuing Lender: (i) Liens in
the Collateral may be released in whole or in part; (ii) all
Guaranties may be released; (iii) any Collateral Document may be
amended, modified, supplemented, or restated; and (iv) all or any
part of the Collateral may be permitted to secure other Debt.
12.12 Agents. None of the Lenders identified in this
Agreement as "Managing Agent" or "Co-Agent" shall have any
rights, powers, obligations, liabilities, responsibilities, or
duties under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of the
Lenders so identified as a "Managing Agent" or "Co-Agent" shall
have or be deemed to have any fiduciary relationship with any
Lender.
SECTION 13 MISCELLANEOUS.
13.1 Headings. The headings, captions, and arrangements
used in any of the Loan Documents are, unless specified
otherwise, for convenience only and shall not be deemed to limit,
amplify, or modify the terms of the Loan Documents, nor affect
the meaning thereof.
13.2 Nonbusiness Days. In any case where any payment or
action is due under any Loan Document on a day which is not a
Business Day, such payment or action may be delayed until the
next-succeeding Business Day, but interest and fees shall
continue to accrue in respect of any payment to which it is
applicable until such payment is in fact made; provided that, if,
in the case of any such payment in respect of a Eurodollar Rate
Borrowing, the next-succeeding Business Day is in the next
calendar month, then such payment shall be made on the next-
preceding Business Day.
13.3 Notices. Unless specifically otherwise provided,
whenever any Loan Document requires or permits any consent,
approval, notice, request, or demand from one party to another,
such communication must be in writing (which may be by telex or
telecopy) to be effective and shall be deemed to have been given
(a) if by telex, when transmitted to the telex number, if any,
for such party, and the appropriate answer back is received,
(b) if by telecopy, when transmitted to the telecopy number for
such party with written confirmation of transmission (and all
such communications sent by telecopy shall be confirmed promptly
thereafter by personal delivery or mailing in accordance with the
provisions of this section; provided, that any requirement in
this parenthetical shall not affect the date on which such
telecopy shall be deemed to have been delivered), (c) if by mail,
on the third Business Day after it is enclosed in an envelope,
properly addressed to such party, properly stamped, sealed, and
deposited in the appropriate official postal service, or (d) if
by any other means, when actually delivered to such party. Until
changed by notice pursuant hereto, the address (and telex and
telecopy numbers, if any) for Administrative Agent and each
Lender is set forth on Schedule 2.1, and for Borrower and each
Company is the address set forth by Borrower's signature on the
signature page of this Agreement and for each Guarantor is the
address set forth by such Guarantor's signature on the signature
page of its Guaranty. A copy of each communication to
Administrative Agent shall also be sent to Haynes and Boone, LLP,
901 Main Street, Dallas, Texas 75202, Fax: 214/651-5940, Attn:
Karen S. Nelson. A copy of each communication to Borrower, any
Company, or any Guarantor shall also be sent to Holme Roberts &
Owen LLP, 1700 Lincoln, Suite 4100, Denver Colorado 80203, Fax
303/866-0200, Attn: W. Dean Salter.
13.4 Form and Number of Documents. Each agreement,
document, instrument, or other writing to be furnished under any
provision of this Agreement must be in form and substance and in
such number of counterparts as may be reasonably satisfactory to
Administrative Agent and its counsel.
13.5 Exceptions to Covenants. No Company shall take any
action or fail to take any action which is permitted as an
exception to any of the covenants contained in any Loan Document
if such action or omission would result in the breach of any
other covenant contained in any of the Loan Documents.
13.6 Survival. All covenants, agreements, undertakings,
representations, and warranties made in any of the Loan Documents
shall survive all closings under the Loan Documents and, except
as otherwise indicated, shall not be affected by any
investigation made by any party. All rights of, and provisions
relating to, reimbursement and indemnification of Administrative
Agent or any Lender shall survive termination of this Agreement
and payment in full of the Obligation.
13.7 Governing Law. The Loan Documents have been entered
into pursuant to Section 5-1401 of the New York General
Obligations Law and the substantive laws of the State of New York
(except to the extent the laws of another jurisdiction govern the
creation, perfection, validity, or enforcement of Liens under the
Collateral Documents), and the applicable federal laws of the
United States of America shall govern the validity, construction,
enforcement and interpretation of this Agreement and all of the
other Loan Documents.
13.8 Invalid Provisions. If any provision in any Loan
Document is held to be illegal, invalid, or unenforceable, such
provision shall be fully severable; the appropriate Loan Document
shall be construed and enforced as if such provision had never
comprised a part thereof; and the remaining provisions thereof
shall remain in full force and effect and shall not be affected
by such provision or by its severance therefrom. Administrative
Agent, Lenders, and each Company party to such Loan Document
agree to negotiate, in good faith, the terms of a replacement
provision as similar to the severed provision as may be possible
and be legal, valid, and enforceable.
13.9 Entirety. The Rights and Obligations of the Companies,
Guarantors, Lenders, and Agents Shall Be Determined Solely from
Written Agreements, Documents, and Instruments, and Any Prior
Oral Agreements Between Such Parties Are Superseded by and Merged
into Such Writings. This Agreement (As Amended in Writing from
Time to Time) and the Other Written Loan Documents Executed by
Any Company, any Guarantor, Any Lender, and/or any Agent,
(Together with All Commitment Letters and Fee Letters only as
such Commitment Letters and Fee Letters Relate to the Payment of
Fees after the Closing Date) Represent the Final Agreement
Between the Companies, the Guarantors, Lenders, and Agents, and
May Not Be Contradicted by Evidence of Prior, Contemporaneous, or
Subsequent Oral Agreements by Such Parties. There Are No
Unwritten Oral Agreements Between Such Parties. Except as set
forth above, no other terms of the Commitment Letters survive
execution of this Agreement.
13.10 Jurisdiction; Venue; Service of Process; Jury
Trial. Each Party Hereto, in Each Case for Itself, its
Successors and Assigns, Hereby (A) irrevocably Submits to the
Nonexclusive Jurisdiction of the State (pursuant to
Section 5-1402 of the New York General Obligations Law) and
Federal Courts Located in the Borough of Manhattan in the State
of New York, and Agrees and Consents That Service of Process May
Be Made upon it in Any Legal Proceeding Arising out of or in
Connection with the Loan Documents and the Obligation by Service
of Process as Provided by New York Law, (B) irrevocably Waives,
to the Fullest Extent Permitted by Law, Any Objection Which it
May Now or Hereafter Have to the Laying of Venue of Any
Litigation Arising out of or in Connection with the Loan
Documents and the Obligation Brought in Any Such Court,
(C) irrevocably Waives Any Claims That Any Litigation Brought in
Any Such Court Has Been Brought in an Inconvenient Forum,
(D) agrees to Designate and Maintain an Agent for Service of
Process in New York in Connection with Any Such Litigation and to
Deliver to Administrative Agent Evidence Thereof, If Requested,
(E) irrevocably Consents to the Service of Process out of Any of
the Aforementioned Courts in Any Such Litigation by the Mailing
of Copies Thereof by Certified Mail, Return Receipt Requested,
Postage Prepaid, at its Address Set Forth Herein, (F) irrevocably
Agrees That Any Legal Proceeding Against Any Party Hereto Arising
out of or in Connection with the Loan Documents or the Obligation
Shall Be Brought in One of the Aforementioned Courts, and
(G) irrevocably Waives, to the Fullest Extent Permitted by Law,
its Respective Rights to a Jury Trial of Any Claim or Cause of
Action Based upon or Arising out of Any Loan Document or the
Transactions Contemplated Thereby. The scope of each of the
foregoing waivers is intended to be all-encompassing of any and
all disputes that may be filed in any court and that relate to
the subject matter of this transaction, including, without
limitation, contract claims, tort claims, breach of duty claims,
and all other common law and statutory claims. The Companies,
Guarantors, and each other party to this Agreement acknowledge
that this waiver is a material inducement to the agreement of
each party hereto to enter into a business relationship, that
each has already relied on this waiver in entering into this
Agreement, and each will continue to rely on each of such waivers
in related future dealings. The Companies, Guarantors, and each
other party to this Agreement warrant and represent that they
have reviewed these waivers with their legal counsel, and that
they knowingly and voluntarily agree to each such waiver
following consultation with legal counsel. THE WAIVERS IN THIS
SECTION 13.10 ARE IRREVOCABLE, MEANING THAT THEY MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THESE WAIVERS SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS, AND REPLACEMENTS
TO OR OF THIS OR ANY OTHER LOAN DOCUMENT. In the event of
Litigation, this Agreement may be filed as a written consent to a
trial by the court.
13.11 Amendments, Consents, Conflicts, and Waivers.
(a) Except as otherwise specifically provided,
(i) this Agreement may only be amended, modified, or waived
by an instrument in writing executed jointly by Borrower and
Required Lenders, and, in the case of any matter affecting
Administrative Agent (except removal of Administrative Agent
as provided in Section 12) by Administrative Agent, and may
only be supplemented by documents delivered or to be
delivered in accordance with the express terms hereof, and
(ii) the other Loan Documents may only be the subject of an
amendment, modification, or waiver if Borrower and Required
Lenders, and, in the case of any matter affecting
Administrative Agent (except as set forth above),
Administrative Agent, have approved same.
(b) Any amendment to or consent or waiver under this
Agreement or any Loan Document which purports to accomplish
any of the following must be by an instrument in writing
executed by Borrower and executed (or approved, as the case
may be) by each Lender affected thereby, and, in the case of
any matter affecting Administrative Agent, by Administrative
Agent: (i) postpones or delays any date fixed by the Loan
Documents for any payment or mandatory prepayment of all or
any part of the Obligation payable to such Lender or
Administrative Agent; (ii) reduces the interest rate or
decreases the amount of any payment of principal, interest,
fees, or other sums payable to Administrative Agent or any
such Lender hereunder (except such reductions as are
contemplated by this Agreement); (iii) changes the
definition of "Required Lenders"; (iv) changes the order of
application of any payment or prepayment set forth in
Sections 3.3 and 3.12 in any manner that materially affects
such Lender or Administrative Agent; (v) except as otherwise
permitted by any Loan Document, waives compliance with,
amends, or releases any material Guaranty; (vi) releases any
material Collateral for the Obligation or permits the
creation, incurrence, assumption, or existence of any Lien
on all or substantially all of the Collateral to secure any
obligations, other than Liens securing the Obligation and
the PBGC Lien; (vii) extends the Lien Triggering Date; or
(viii) changes this clause (b) or any other matter
specifically requiring the consent of all Lenders hereunder.
Without the consent of such Lender, no Lender's "Committed
Sum" or "Commitment Percentage" may be increased.
(c) Any conflict or ambiguity between the terms and
provisions herein and terms and provisions in any other Loan
Document shall be controlled by the terms and provisions
herein.
(d) No course of dealing nor any failure or delay by
Administrative Agent, any Lender, or any of their respective
Representatives with respect to exercising any Right of
Administrative Agent or any Lender hereunder shall operate
as a waiver thereof. A waiver must be in writing and signed
by Administrative Agent and Required Lenders (or by all
Lenders, if required hereunder) to be effective, and such
waiver will be effective only in the specific instance and
for the specific purpose for which it is given.
13.12 Multiple Counterparts. This Agreement may be
executed in a number of identical counterparts, each of which
shall be deemed an original for all purposes and all of which
constitute, collectively, one agreement; but, in making proof of
this Agreement, it shall not be necessary to produce or account
for more than one such counterpart. It is not necessary that
each Lender execute the same counterpart so long as identical
counterparts are executed by Borrower, each Lender, and
Administrative Agent. This Agreement shall become effective when
counterparts hereof shall have been executed and delivered to
Administrative Agent by each Lender, Administrative Agent, and
Borrower, or, when Administrative Agent shall have received
telecopied, telexed, or other evidence satisfactory to it that
such party has executed and is delivering to Administrative Agent
a counterpart hereof.
13.13 Successors and Assigns; Assignments and
Participations.
(a) This Agreement shall be binding upon, and inure to
the benefit of the parties hereto and their respective
successors and assigns, except that (i) Borrower may not,
directly or indirectly, assign or transfer, or attempt to
assign or transfer, any of its Rights, duties or obligations
under any Loan Documents without the express written consent
of all Lenders, and (ii) except as permitted under this
Section, no Lender may transfer, pledge, assign, sell any
participation in, or otherwise encumber its portion of the
Obligation.
(b) Each Lender may assign to one or more Eligible
Assignees all or a portion of its Rights and obligations
under this Agreement and the other Loan Documents
(including, without limitation, all or a portion of its
Borrowings and its Notes (to the extent any Principal Debt
owed to such assigning Lender is evidenced by a Note or
Notes)); provided, however, that:
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to
another Lender, an Affiliate of a Lender, or an
Approved Fund of any Lender, or in the case of an
assignment of all of a Lender's Rights and obligations
under this Agreement and the other Loan Documents, any
partial assignment under any Facility shall not be less
than the following amounts for the Facility indicated
unless Borrower and Administrative Agent consent
thereto (at their sole discretion) in writing (which
may be evidenced by their acceptance and execution of
the related Assignment and Acceptance Agreement):
Facility Minimum Assignment
------------- ---------------------------
Revolver $5,000,000 (inclusive of
Facility any concurrent assignments
under the Term
Loan Facility, the 180-Day
Term Facility, or the
One-Year Term Facility by
the assigning Lender to
the same assignee)
Term Loan $5,000,000 (inclusive of
Facility any concurrent assignments
under the Revolver
Facility, the 180-Day Term
Facility, or the One-Year
Term Facility by the
assigning Lender to the
same assignee)
180-Day Term $1,000,000
Facility
One-Year Term $1,000,000
Facility
; provided that, no partial assignment for any Facility
(including any assignment among Lenders) may result in
any Lender holding less than $1,000,000 in any
Facility.
(iii) each such assignment by a Lender shall
be of a proportionate part of all of the assigning
Lender's Rights and obligations under this Agreement
and the Notes (to the extent any Principal Debt owed to
such assigning Lender is evidenced by a Note or Notes),
except that this clause (iii) shall not be construed to
prohibit the assignment of a proportionate part of all
of the assigning Lender's Rights and obligations in
respect of one Facility; and
(iv) the parties to such assignment shall execute
and deliver to the Administrative Agent for its
acceptance an Assignment and Acceptance Agreement
substantially in the form of Exhibit F hereto, together
with any Notes (to the extent any Principal Debt owed
to such assigning Lender is evidenced by a Note or
Notes) subject to such assignment and a processing fee
of $3,500, including, without limitation, any
assignment between Lenders; provided, however, that
with respect to an assignment to any other Lender, an
Affiliate of the assigning Lender, or an Approved Fund
of such assigning Lender, the processing fee shall be
$1,500.
Upon execution, delivery, and acceptance of such Assignment
and Acceptance Agreement, the assignee thereunder shall be a
party hereto and, to the extent of such assignment, have the
obligations, Rights, and benefits of a Lender under the Loan
Documents and the assigning Lender shall, to the extent of
such assignment, relinquish its Rights and be released from
its obligations under the Loan Documents. Upon the
consummation of any assignment pursuant to this Section, but
only upon the request of the assignor or assignee made
through Administrative Agent, Borrower shall issue
appropriate Notes to the assignor and the assignee,
reflecting such Assignment and Acceptance. If the assignee
is not incorporated under the laws of the United States of
America or a state thereof, it shall deliver to Borrower and
Administrative Agent certification as to exemption from
deduction or withholding of Taxes in accordance with
Section 4.6.
(c) Administrative Agent shall maintain at its address
referred to in Section 13.3 a copy of each Assignment and
Acceptance Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of
the Lenders and the Commitment, and principal amount of the
Borrowings owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest
error, and Borrower, Administrative Agent, and the Lenders
may treat each Person whose name is recorded in the Register
as a Lender hereunder for all purposes of the Loan
Documents. The Register shall be available for inspection
by Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice. Upon the
consummation of any assignment in accordance with this
Section 13.13, Schedule 2.1 shall automatically be deemed
amended (to the extent required) by Administrative Agent to
reflect the name, address, and respective Committed Sums
under the Facilities of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance
Agreement executed by the parties thereto, together with any
Notes (to the extent any Principal Debt owed to such
assigning Lender is evidenced by a Note or Notes) subject to
such assignment and payment of the processing fee, the
Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the
form of Exhibit F hereto, (i) accept such Assignment and
Acceptance Agreement, (ii) record the information contained
therein in the Register, and (iii) give prompt notice
thereof to the parties thereto.
(e) Subject to the provisions of this Section and in
accordance with applicable Law, any Lender may, in the
ordinary course of its business and in accordance with
applicable Law, at any time sell to one or more Persons
(each a "Participant") participating interests in its
portion of the Obligation; provided, however, that neither
Borrower nor any Affiliate of Borrower shall be a
Participant. In the event of any such sale to a
Participant, (i) such Lender shall remain a "Lender" under
this Agreement and the Participant shall not constitute a
"Lender" hereunder, (ii) such Lender's obligations under
this Agreement shall remain unchanged, (iii) such Lender
shall remain solely responsible for the performance thereof,
(iv) such Lender shall remain the holder of its share of the
Principal Debt for all purposes under this Agreement,
(v) Borrower and Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such
Lender's Rights and obligations under the Loan Documents,
and (vi) such Lender shall be solely responsible for any
withholding taxes or any filing or reporting requirements
relating to such participation and shall hold Borrower and
Administrative Agent and their respective successors,
permitted assigns, officers, directors, employees, agents,
and representatives harmless against the same. Participants
shall have no Rights under the Loan Documents, other than
certain voting Rights as provided below. Subject to the
following, each Lender shall be entitled to obtain (on
behalf of its Participants) the benefits of Section 4 with
respect to all participations in its part of the Obligation
outstanding from time to time so long as Borrower shall not
be obligated to pay any amount in excess of the amount that
would be due to such Lender under Section 4 calculated as
though no participations have been made. No Lender shall
sell any participating interest under which the Participant
shall have any Rights to approve any amendment,
modification, or waiver of any Loan Document, except to the
extent such amendment, modification, or waiver extends the
due date for payment of any amount in respect of principal
(other than mandatory prepayments), interest, or fees due
under the Loan Documents, reduces the interest rate or the
amount of principal or fees applicable to the Obligation
(except such reductions as are contemplated by this
Agreement), or releases any material Guaranty or all or any
substantial portion of the Collateral for the Obligation
under the Loan Documents (except such releases as are
contemplated by this Agreement); provided that, in those
cases where a Participant is entitled to the benefits of
Section 4 or a Lender grants Rights to its Participants to
approve amendments to or waivers of the Loan Documents
respecting the matters previously described in this
sentence, such Lender must include a voting mechanism in the
relevant participation agreement or agreements, as the case
may be, whereby a majority of such Lender's portion of the
Obligation (whether held by such Lender or Participant)
shall control the vote for all of such Lender's portion of
the Obligation. Except in the case of the sale of a
participating interest to another Lender, the relevant
participation agreement shall not permit the Participant to
transfer, pledge, assign, sell participations in, or
otherwise encumber its portion of the Obligation, unless the
consent of the transferring Lender (which consent will not
be unreasonably withheld) has been obtained.
(f) Notwithstanding any other provision set forth in
this Agreement, any Lender may, without notice to, or the
consent of Borrower or Administrative Agent, at any time
assign and pledge all or any portion of its Borrowings and
its Notes (to the extent any Principal Debt owed to such
assigning Lender is evidenced by a Note or Notes) to any
Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such
Federal Reserve Bank or any Lender which is a fund may
pledge all or any portion of its Borrowings and its Notes to
its trustee in support of its obligations to its trustee.
No such assignment shall release the assigning Lender from
its obligations hereunder.
(g) Any Lender may furnish any information concerning
the Companies in the possession of such Lender from time to
time to Eligible Assignees and Participants (including
prospective Eligible Assignees and Participants).
13.14 Discharge Only Upon Payment in Full; Reinstatement
in Certain Circumstances. The obligations of each Company under
the Loan Documents shall remain in full force and effect until
termination of the Total Commitment, payment in full of the
Principal Debt and of all interest, fees, and other amounts of
the Obligation then due and owing, and expiration of all LCs,
except that Sections 4, 11, and 13, and any other provisions
under the Loan Documents expressly intended to survive by the
terms hereof or by the terms of the applicable Loan Documents,
shall survive such termination. If at any time any payment of
the principal of or interest on any Note or any other amount
payable by any Company under any Loan Document is rescinded or
must be otherwise restored or returned upon the insolvency,
bankruptcy, or reorganization of such Company or otherwise, the
obligations of each Company under the Loan Documents with respect
to such payment shall be reinstated as though such payment had
been due but not made at such time.
[Remainder of Page Intentionally Blank.
Signature Pages Follow.]
