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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES AND EXCHANGE
ACT OF 1934
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
-------------------------
For the fiscal year ended December 31, 1997 Commission File Number 33-60714
IVEX PACKAGING CORPORATION
(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 76-0171625
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
100 TRI-STATE DRIVE
LINCOLNSHIRE, ILLINOIS 60069
(Address of Principal Executive Office) (Zip Code)
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Registrant's Telephone number, including area code: (847) 945-9100
-------------------------
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class: Name of each Exchange on which registered:
Common Stock, $0.01 par value New York Stock Exchange
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Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
The aggregate market value of the voting stock held by non-affiliates of
the Registrant was $241.5 million based upon the closing price of $25.00 on
March 2, 1998.
At March 2, 1998, 20,426,666 shares of Common Stock, par value of $0.01,
were outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Part III incorporates by reference portions of the Registrant's Proxy
Statement relating to the Annual Meeting of Stockholders to be held on May 15,
1998.
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TABLE OF CONTENTS
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PAGE
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PART I
Item 1. Business.................................................... 1
Item 2. Properties.................................................. 6
Item 3. Legal Proceedings........................................... 7
Item 4. Submission of Matters to a Vote of Security Holders......... 7
PART II
Item 5. Market for the Registrant's Common Equity and Related
Stockholder Matters....................................... 9
Item 6. Selected Financial Data..................................... 9
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations................................. 11
Item 8. Financial Statements and Supplementary Data................. 17
Item 9. Changes In and Disagreements with Accountants on Accounting
and Financial Disclosures................................. 17
PART III
Item 10. Directors and Executive Officers of the Registrant.......... 18
Item 11. Executive Compensation...................................... 18
Item 12. Security Ownership of Certain Beneficial Owners and
Management................................................ 18
Item 13. Certain Relationships and Related Transactions.............. 18
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form
8-K....................................................... 19
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PART I
ITEM 1. BUSINESS
GENERAL
Ivex Packaging Corporation, a Delaware corporation (the "Company" or
"Ivex"), is a vertically integrated specialty packaging company that designs and
manufactures value-added plastic and paper-based flexible packaging products for
consumer and industrial packaging markets. Ivex focuses on niche markets which
management believes provide attractive margins and growth and where the
Company's integrated manufacturing capabilities can enhance its competitive
position. Ivex serves a variety of markets, providing packaging for food,
medical devices and electronic goods and protective packaging for industrial
products.
MARKETS
Consumer Packaging. The Consumer Packaging product group designs and
manufactures plastic and paper-based products for food packaging applications
and, more recently, for applications in the medical and electronics industries.
The Company produces a broad array of items, including plastic containers for
prepared foods, produce and baked goods; specialty paper products such as fluted
baking cups and liners for cookies and other baked goods; microwaveable
packaging materials; and protective packaging for medical devices and
electronics products. The Consumer Packaging product group markets its products
to a variety of end users, including national wholesale bakeries, supermarket
chains, foodservice distributors, fast-food chains, major agricultural growers,
medical equipment suppliers and electronics manufacturers. The Company also
manufactures a variety of plastic sheet and film products from several different
resins for internal use and sales to third party converters. Ivex is the leading
producer of oriented polystyrene ("OPS") sheet in North America. The Consumer
Packaging product group represented approximately 58% of the Company's net sales
and 61% of the Company's Adjusted EBITDA during the year ended December 31,
1997. The Company's Consumer Packaging product group is hereinafter sometimes
referred to as "Consumer Packaging".
Industrial Packaging. The Industrial Packaging product group manufactures
and coats film, paper and foil products for protective packaging and specialty
papers. The Company produces products for some of the fastest growing
applications in the protective packaging industry, including film and paper
maskings and self-sealing coated packaging applications. These products are
marketed primarily to consumer durable goods manufacturers, automotive
companies, other industrial manufacturers and integrated paper producers. The
Company also manufactures a variety of recycled kraft paper made from
post-consumer and post-industrial fibers and specialty lightweight paper made
primarily from virgin pulp for internal use and sales to third party converters.
The Industrial Packaging product group represented approximately 42% of the
Company's net sales and 39% of the Company's Adjusted EBITDA during the year
ended December 31, 1997. The Company's Industrial Packaging product group is
hereinafter sometimes referred to as "Industrial Packaging".
The Company's principal operating subsidiary is IPC, Inc. ("IPC") and IPC's
principal domestic operating subsidiaries are Kama of Illinois Corporation, Ivex
Paper Mill Corporation, IPMC, Inc. and Plastofilm Industries, Inc. and principal
foreign operating subsidiaries are Ivex Corporation and Ivex Holdings, Ltd. The
following trademarks used in this Form are owned by the Company or one of its
affiliates: Ivex(R), Kama(R), Plastofilm(R), M&R(TM), Jet-Pak(R), Jet-Lite(R)
and Jet-Cor(TM). IPC was formed in December 1992 to hold the businesses of the
Company and IPMC, Inc., companies owned by Acadia Partners, L.P. ("Acadia") and
certain related investors. As a condition to and concurrently with IPC's
December 1992 offering of $158.0 million of 12 1/2% Senior Subordinated Notes
due 2002 (the "12 1/2% IPC Notes"), the Company acquired all of the common stock
of IPMC, Inc. and transferred all of the Company's then existing operating
subsidiaries and IPMC, Inc. to IPC in exchange for all of the shares of IPC's
common stock and the assumption by IPC of certain debt obligations of the
Company. As a result, the Company's operating subsidiaries and IPMC, Inc. became
wholly-owned subsidiaries of IPC. In March 1993, the Company issued $160.0
million of 13 1/4% Senior Discount Debentures due 2005 (the "13 1/4% Company
Discount Debentures") for an aggregate consideration of approximately $65.0
million. The Company used a portion of the $65.0 million of proceeds from the
Discount Debentures to redeem certain securities of Acadia and certain related
investors and the Company contributed the remaining portion of the proceeds from
the 13 1/4% Company Discount Debentures
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to IPC. On October 6, 1997, the Company completed its initial public offering of
9,660,000 shares of its common stock (the "1997 Common Stock Offering") pursuant
to which the Company received net proceeds of $117.3 million which it used,
together with the proceeds of a $475.0 million amended and restated credit
facility, to redeem all of the 12 1/2% IPC Notes and all of the 13 1/4% Company
Discount Debentures.
The Company's principal executive offices are located at 100 Tri-State
Drive, Suite 200, Lincolnshire, Illinois 60069, and its telephone number is
(847) 945-9100.
GENERAL DESCRIPTION
The following table illustrates the products that Ivex manufactures:
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12 MONTHS ENDED
DECEMBER 31, 1997
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NET ADJUSTED
PRODUCT GROUP SALES EBITDA PRODUCT CUSTOMERS END PRODUCT USES
- ------------------------ -------- -------- ------------------ ------------------ ------------------
<S> <C> <C> <C> <C> <C>
Consumer Packaging...... $313,695 $56,704 Plastic Supermarkets, Plastic hinged and
containers, foodservice two-piece
corrugated paper distributors, fast containers, trays
liners and food chains, for deli foods,
speciality paper bakery and salads, cookies,
products, OPS confectionary berries and cakes,
sheet and film, companies, food film for envelopes
HIPS sheet, PET processors, and box windows,
sheet, PP sheet, plastic protective plastic
PVC sheet and HDPE converters, packaging for
sheet envelope and medical and
folding carton electronics
manufacturers, applications,
medical device and paper liners for
supply companies cookies,
and electronics microwaveable
manufacturers packaging
materials, fluted
bakery cups and
specialty paper
products
Industrial Packaging.... 224,780 36,118 Protective Automotive Paper and film
packaging, companies, protective masking
including coated consumer durables materials,
paper and plastic, manufacturers, cohesive
single face other industrial self-sealing
corrugated paper, manufacturers, packaging papers,
shippers and paper distributors coated papers for
mailers and and manufacturers stamps, labels and
manufactured of postage stamps, business forms,
paper, including business forms and single face
kraft papers and paper converters corrugated paper
specialty for packaging,
lightweight virgin shippers and
papers mailers, grocery
and food bags,
specialty
lightweight papers
for fast food and
candy wrappers
Corporate Expenses (6,018)
-------- -------
Total................... $538,475 $86,804
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CONSUMER PACKAGING
General. The Consumer Packaging product group is an integrated manufacturer
of plastic and paper products for use in a wide array of food applications and,
since its acquisitions of Plastofilm Industries, Inc. ("Plastofilm") and Crystal
Thermoplastics, Inc. ("Crystal"), medical and electronics packaging
applications. The food packaging products are typically used for items sold in
supermarkets, wholesale and retail bakeries, fast-food restaurants and
institutional foodservice outlets. The Company's medical packaging products
typically are used by the major medical supply companies for sterility packaging
and its electronics packaging products generally are used as cushioning
materials.
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Products. Consumer Packaging's products consist primarily of thermoformed
plastic containers used in food, medical and electronics markets and paper
products used in food packaging applications. Thermoformed plastic packaging
includes hinged and two-piece containers, trays for delicatessen foods, salads,
cookies, cakes and other items, sterility packaging for medical applications and
cushioning products for the electronics industry. Paper products consist of
single face corrugated paper liners for cookies and other baked goods,
microwaveable materials, fluted cups for baking and other specialty paper
products.
As part of its integrated operations, Ivex manufactures OPS sheet and also
produces OPS film, high impact polystyrene ("HIPS") sheet, polyethylene
terephthelate ("PET") sheet, polypropylene ("PP") sheet, high density
polyethylene ("HDPE") sheet and polyvinyl chloride ("PVC") sheet. OPS sheet is
widely used in packaging applications where clarity, rigidity and material yield
are significant considerations. HIPS sheet is used in similar applications where
clarity is not as important, but where additional stress or crack resistance is
required. PET, PP, HDPE and PVC sheet are also typically used in applications
that require stress or crack resistance. OPS film is a thinner gauge version of
OPS sheet with applications primarily in windows for envelopes and folding
cartons as well as labels. The Company's OPS sheet and film, HIPS sheet, PET
sheet, PP sheet, HDPE sheet and PVC sheet are marketed under the Company's
Kama(R) brand name.
Markets. The principal markets for Ivex's food packaging products include
supermarkets, particularly in-store bakery, delicatessen and prepared food
sections; national wholesale bakeries; and food service outlets, particularly
fast-food restaurants and institutions such as schools, hospitals and corporate
cafeterias. The principal markets for the Company's medical and electronics
packaging include medical device and supply manufacturers and electronics
manufacturers.
Ivex employs a national sales force to service each of the specific market
segments that it targets. Approximately half of the packaging customers are
serviced through distributors, with the balance serviced directly by the
Company's national account sales representatives. The Company also markets to
end-users served by its distributors, such as small and regional supermarkets
and convenience food outlets. Brokers are also used to further penetrate
specific geographic markets and access prospective customers.
Manufacturing. The Company's plastic packaging products are manufactured
internally at the Company's two polystyrene polymerization, seven extrusion and
twelve thermoforming facilities. Polystyrene polymerization is the process of
converting liquid styrene monomer into polystyrene through heat and agitation
under high pressure. The Company produces high quality polystyrene as measured
by the polystyrene's low residual monomer levels.
Extrusion is the process of converting plastic resin into plastic sheet and
film used in the thermoforming process. In 1997, the Company produced
approximately 77 million pounds of polystyrene resin and purchased approximately
91 million pounds of polystyrene resin and approximately 32 million pounds of
other plastic resin from third-party sources. The Company is one of only two OPS
producers that have polystyrene polymerization manufacturing facilities.
Ivex's plastic thermoforming and paper converting operations are
principally conducted in fourteen facilities located throughout North America
and Europe.
INDUSTRIAL PACKAGING
General. The Industrial Packaging product group is an integrated
manufacturer and coater of a variety of film, paper and foil products for
protective packaging and a manufacturer and coater of various grades of papers.
Products. Protective packaging products include protective paper and film
maskings; self-sealing coated packaging papers, films and corrugated paper; and
heavy-duty mailing envelopes marketed under the brand names Jet-Lite(R),
Jet-Cor(TM) and Jet-Pak(R). The Company's manufactured papers include
post-consumer and post-industrial recycled paper products (including lightweight
kraft paper for grocery and food bags and
3
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heavyweight crepe kraft paper for bag closures), and specialty lightweight
papers from virgin pulp used in the flexible packaging and food packaging
industries. The Company's coated papers include water-activated gummed papers
used for postage stamps, labels, and envelopes, release papers used for
high-pressure decorative laminates, and laminations used for lottery ticket
stock and decorative labels.
Markets. The Company's industrial packaging products are used in a wide
variety of commercial and industrial applications.
Ivex believes that it is one of the largest producers of industrial
protective masking materials in North America. The Company's products in this
market range from adhesive coated paper and films to coextruded films with
adhesive properties. These paper and film maskings are used to protect surfaces
during manufacturing, handling, storage and shipping. The Company's products
must meet specifications for a broad array of surfaces requiring protection,
including glass, plastic, wood, polished and painted metals, automotive trim,
plastic laminates, furniture and marble.
Ivex applies adhesive and cohesive coatings to paper, films and single face
corrugated paper products for high-speed, high-volume, self-sealing packaging
applications. A cohesive package is designed to stick to itself and not to the
contents. The Company uses proprietary formulations of adhesive and cohesive
materials to meet specialized customer requirements. Typical end-users of
self-sealing packaging systems are the major U.S. automotive parts manufacturers
and book publishers. The Company also produces water-activated gummed printing
papers used for labels, commercial and postage stamps and business forms and
release papers that are used in the manufacture of high pressure decorative
laminates.
All of Ivex's low density polyethylene film is used internally in the
production of its film masking and self-sealing packaging products and
approximately 25% of the Company's recycled kraft paper is used internally in
the production of single face corrugated paper, cohesive coated paper and
mailing envelopes. Principal third-party markets for the Company's manufactured
paper products are food packaging, industrial packaging, bag converting and
industrial converting, including grocery and food bags; envelopes; bag closures
in pet food, seed, and fertilizer packaging; and fast-food and candy wrappers.
These markets require high service levels, including fast delivery and the
ability to produce a variety of colors, weights and formulations. Customers for
the Company's manufactured paper products include large, integrated paper
producers as well as packaging companies.
Manufacturing. Ivex's primary raw materials for protective packaging
products, principally low density polyethylene, specialty chemicals and paper,
are obtained from external sources as well as from the Company's low density
polyethylene extrusion facility and recycled paper mill operations.
Ivex's coating and paper converting operations are conducted at eleven
facilities throughout the U.S. and Canada.
All of the paper produced at three of the Company's four paper mills is
made entirely from post-consumer and post-industrial fibers, including old
corrugated containers ("OCC") and double-lined kraft ("DLK"). The Company was
among the first to use 100% recycled post-industrial fibers at one of its mills.
Recycled paper accounts for approximately 65% of the total output of the
Company's paper operations. The products at the Company's fourth mill in
Detroit, Michigan are principally produced from virgin pulp and post-industrial
recycled fiber. The Company has installed recycling equipment at its mill in
Detroit, Michigan which enables the mill to substitute recycled material for a
portion of the higher-cost virgin pulp.
COMPETITION
The Company operates in markets that are highly competitive and faces
substantial competition throughout all of its product lines from numerous
national and regional companies. Many of these competitors are considerably
larger than the Company and have substantially greater financial and other
resources than the Company, while others are significantly smaller with lower
fixed costs and greater operating flexibility. In addition to price, competition
with respect to many of the Company's products is based on quality, supplier
response time, service and timely and complete order fulfillment.
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The Company's main competitor in the supermarket and foodservice segments
is Tenneco Packaging. In the bakery area, the Company competes primarily with
Detroit Forming Inc. in plastic products and Fort James Corporation in paper
products. The Company competes with several manufacturers of OPS sheet,
including Detroit Forming and Plastic Suppliers, Inc. In the medical and
electronics markets, the Company competes with many regional thermoformers,
including Prent Corporation and Placon Corp. The Company competes primarily with
the Dow Chemical Company in the OPS film market. Ivex's major competitors in
protective masking include a joint venture between Minnesota Mining and
Manufacturing Company and Sealed Air Corporation, American Biltrite, Inc. and
Main Tape Company, Inc. The Company competes primarily with Sealed Air
Corporation and AVI Products, Inc. in the mailing envelope market.
EMPLOYEES
As of December 31, 1997, the Company had 25 employees at its Lincolnshire,
Illinois corporate headquarters and had 3,201 employees at plant locations, of
which 713 were salaried and 2,488 were hourly. Of the hourly workers,
approximately 1,055 were members of unions. The Company has collective
bargaining agreements with nine unions in effect with respect to certain hourly
employees at the Company's Joliet, Peoria, Chagrin Falls, Detroit, Troy, Newton,
Avenel, Grove City, Elyria, Newcastle and Laval facilities. There have been no
significant interruptions or curtailments of operations due to labor disputes in
the last five years, and the Company believes that relations with its employees
are good. The collective bargaining agreements at the Company's Avenel, Chagrin
Falls and Newcastle facilities will expire in 1998; the collective bargaining
agreement at the Company's Troy facility will expire in 1999; the collective
bargaining agreements at the Company's facilities in Elyria, Joliet, Peoria and
Laval will expire in 2000; the collective bargaining agreement at the Company's
facilities in Grove City and Detroit will expire in 2001; and the collective
bargaining agreement at the Company's Newton facility will expire in 2002.
RAW MATERIALS
Styrene monomer, polystyrene, polyethylene, polypropylene, polyvinyl
chloride and various paper-based commodities (including recycled and virgin
fiber) constitute the principal raw materials used in the manufacture of the
Company's products. Generally, these raw materials are readily available from a
wide variety of suppliers. Costs for all of the significant raw materials used
by the Company tend to fluctuate with various economic factors which generally
affect the Company and its competitors. The availability of raw materials was
adequate during 1997 although prices for certain items such as styrene monomer,
polystyrene, OCC, DLK and virgin fiber have been volatile and may continue to
fluctuate, in some instances adversely to the Company.
TRADEMARKS, PATENTS AND LICENSES
While the Company has registered and unregistered trademarks for many of
its product lines, these trademarks, other than the Company's rights to the
trademarks "Ivex(R)", "Plastofilm(R)" and "Kama(R)", are not considered material
to the conduct of the Company's business. The Company owns or licenses a number
of patents but such patents and licenses are not considered material to the
conduct of the Company's business and the Company does not believe that any of
its businesses are substantially dependent on patent protection. The Company's
material proprietary technologies are considered by the Company to be trade
secrets and know-how and are not protected by patents or licenses.
CUSTOMERS, SALES AND BACKLOG
No material portion of the Company's business is dependent upon a single or
very few customers, except that the Company's extruded OPS film is sold
principally to one customer with which the Company believes that it has a good
relationship. No one customer accounted for more than 10% of the Company's
aggregate net sales for the fiscal year ended December 31, 1997. In general, the
backlog of orders is not significant or material to an understanding of the
Company's businesses.
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ENVIRONMENTAL MATTERS AND GOVERNMENT REGULATION
The past and present business operations of the Company and the past and
present ownership and operations of real property by the Company are subject to
extensive and changing federal, state, local and foreign environmental laws and
regulations pertaining to the discharge of materials into the environment, the
handling and disposition of wastes (including solid and hazardous wastes) or
otherwise relating to the protection of the environment. As is the case with
manufacturers in general, if a release of hazardous substances occurs on or from
the Company's properties or any associated offsite disposal location, or if
contamination from prior activities is discovered at any of the Company's
properties, the Company may be held liable. From time to time, the Company is
involved in regulatory proceedings and inquiries relating to compliance with
environmental laws, permits and other environmental matters.
The Company is currently involved with environmental remediation and
on-going maintenance at certain of its facilities. The Company believes that the
costs of such remediation have been adequately reserved for and that such costs
are unlikely to have a material adverse effect on the Company. No assurance can
be given, however, that additional environmental issues relating to the
presently known remediation matters or identified sites or to other sites or
matters will not require additional investigation, assessment or expenditures.
The Company has a reserve of approximately $2.1 million as of December 31, 1997
for its known future environmental remediation costs. Because an environmental
reserve is not established until a liability is determined to be probable and
reasonably estimable, all potential future remedial costs may not be covered by
this reserve. The Company has made and will continue to make capital
expenditures to maintain compliance with environmental requirements. The Company
does not expect its 1998 and 1999 spending on environmental capital projects to
be material.
During 1991, the Company responded to an information request regarding the
Global Landfill, New Jersey site and since such time has not received any
further notifications regarding such site. During 1993, the Company was named a
PRP at the Delta Chemicals, Pennsylvania Superfund site, and in 1995 the Company
paid a de minimis settlement of less than $20,000 at that site. During 1995, the
Company paid $500 in connection with a de minimis consent order relating to the
American Chemical Service site. In addition, over the past few years, the
Company has received notices of potential liability relating to three Superfund
sites for which the Company believes a former owner of the facilities subject to
such notices will be responsible, and the Company has forwarded such notices to
such former owner and has had no further involvement at those sites. In
addition, during 1996 the Company answered a complaint regarding the Huth Oil,
Ohio Superfund site, and during 1997 this claim was voluntarily dismissed by the
plaintiffs in the action. Although the Company endeavors to carefully manage its
waste, because Superfund liability is strict and retroactive, it is possible
that in the future the Company may be identified as a PRP with respect to other
waste disposal sites.
The plastics industry, in general, and the Company also are subject to
existing and potential federal, state, local and foreign legislation designed to
reduce solid wastes by requiring, among other things, plastics to be degradable
in landfills, minimum levels of recycled content, various recycling
requirements, disposal fees and limits on the use of plastic products. In
addition, various consumer and special interest groups have lobbied from time to
time for the implementation of these and other such similar measures. Although
the Company believes that the legislation promulgated to date and such
initiatives to date have not had a material adverse effect on the Company, there
can be no assurance that any such future legislative or regulatory efforts or
future initiatives would not have a material adverse effect on the Company.
The United States Food and Drug Administration (the "FDA") regulates the
content of direct-contact food containers and packages, including containers and
packages made from recycled OPS and paper products. The FDA currently limits the
amount of recycled materials that can be used in such containers and packages.
To comply with these regulations, the Company has instituted various compliance
programs.
ITEM 2. PROPERTIES
The Company and its subsidiaries use various owned and leased plants,
warehouses, and other facilities in their operations. The facilities are
considered to be suitable and adequate for the conduct of the businesses
involved although the machinery, plant and equipment at such facilities are,
from time to time, subject to
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scheduled and unscheduled maintenance. As of December 31, 1997, the Company had
twenty-seven non-warehouse facilities, twenty of which are located in the U.S.,
five in Canada and two in the United Kingdom and, except as noted below, all are
owned by IPC or a subsidiary of IPC. With certain limited exceptions, all of the
owned real estate is subject to mortgages securing IPC's indebtedness under the
Company's existing credit facility.
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LOCATION FUNCTION SQUARE FOOTAGE
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DOMESTIC
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Avenel, NJ(1)............................. Extrusion 55,000
Bellwood, IL.............................. Paper Converting and Film Coating 71,000
Bellwood, IL(2)........................... Paper Converting 71,000
Bridgeview, IL............................ Paper Converting 115,000
Chagrin Falls, OH......................... Paper Mill 120,000
Cumberland, RI............................ Thermoforming 60,000
Detroit, MI............................... Paper Mill 255,000
Elyria, OH(3)............................. Extrusion 80,000
Grant Park, IL............................ Thermoforming/Engineering 184,000
Grove City, PA(4)......................... Thermoforming/Paper Converting 236,000
Hazleton, PA(5)........................... Polymerization/Extrusion 166,000
Joliet, IL................................ Paper Mill/Paper Converting 410,000
Madison, GA............................... Thermoforming/Paper Converting 141,000
Manteno, IL............................... Extrusion 105,000
Newton, MA(6)............................. Paper and Film Converting/Coating 225,000
Peoria, IL................................ Paper Mill 234,000
Sparks, NV(7)............................. Thermoforming 40,000
Troy, OH.................................. Paper Converting/Coating 320,000
Visalia, CA............................... Thermoforming/Paper Converting 144,000
Wheaton, IL............................... Thermoforming/Engineering 120,000
INTERNATIONAL
- ------------------------------------------
Enniskillen, Northern Ireland(8).......... Thermoforming/Engineering 16,000
Laval, Quebec............................. Thermoforming/Extrusion/Engineering 60,000
Longueuil, Quebec......................... Thermoforming/Paper Converting 32,000
Newcastle, Ontario........................ Extrusion 45,000
Sedgefield, England....................... Thermoforming/Extrusion 48,000
Summerstown, Ontario...................... Thermoforming 55,000
Toronto, Ontario.......................... Paper Converting 54,000
</TABLE>
- -------------------------
(1) Leased facility, with its lease expiring on December 31, 2003, subject to
IPC's right to extend the lease for two successive five-year periods upon
IPC's written notice to the lessor thereof not more than 12 nor less than 6
months prior to the end of the then current lease term.
(2) Leased facility, with its lease expiring on January 8, 2003.
(3) Leased facility, with its lease expiring on September 30, 2001, subject to
IPC's right to extend the lease for an additional five-year period and, upon
specified terms and conditions, to purchase the property.
(4) This facility is held subject to an installment sales contract with Grove
City Industrial Development Corporation that holds title to the facility.
(5) Leased facility, with its lease expiring on October 4, 1998, subject to
IPC's right to extend the lease for two successive five-year periods upon
IPC's written notice to lessor not more than 24 nor less than 6 months prior
to the end of the then current lease term. This Lease was recently extended
for an additional five year period ending October 2003.
(6) Leased facility, with its lease expiring on December 5, 2001, with three
one-year options to extend.
(7) Leased facility, with its lease expiring on December 31, 1999.
(8) Leased facility, with its lease expiring on May 10, 2016.
ITEM 3. LEGAL PROCEEDINGS
From time to time the Company and its subsidiaries are involved in various
litigation matters arising in the ordinary course of business. The Company
believes that none of the matters in which the Company or its subsidiaries are
currently involved, either individually or in the aggregate, is material to the
Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
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EXECUTIVE OFFICERS OF THE COMPANY
Set forth below are the name, age, positions and offices held (as of the
date hereof) and a brief account of the business experience for each executive
officer of the Company.
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NAME AGE POSITION
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<S> <C> <C>
George V. Bayly......... 55 Director, Chairman of the Board, President and Chief
Executive Officer of the Company since January 1991.
Frank V. Tannura........ 41 Director of the Company since August 1995. Vice President
and Chief Financial Officer of the Company since October
1989.
Richard R. Cote......... 46 Vice President and Treasurer of the Company since August
1994. Mr. Cote was Assistant Vice President and Treasurer of
the Company from March 1992 to August 1994.
Robert W. Crichton...... 41 Vice President and General Manager of the Company since
February 1998. From February 1997 to February 1998, Mr.
Crichton was Vice President and General Manager of the
Company's surface protection business and prior to 1997,
President of Sonoco Products Company's Flexible Packaging
Division.
Thomas S. Ellsworth..... 52 Vice President and General Manager of the Company since
1994. Mr. Ellsworth was Vice President of the Company's
paper mill operations from 1992 to 1994.
Robert W. George........ 50 Vice President and General Manager of the Company since
August 1996. From 1993 to 1996, Mr. George was President and
Chief Executive Officer of Plastofilm Industries, Inc. and
prior to 1993, President of Nitrobar Incorporated.
Gene J. Gentili......... 50 Vice President and General Manager of the Company since
1994. Vice President of Sales of the Company from 1993 to
1994. Mr. Gentili was director of national accounts for the
Company from 1991 to 1993.
Roger A. Kurinsky....... 47 Vice President and General Manager of the Company since
1994. Vice President of Marketing of the Company from 1991
to 1994.
Jeremy S. Lawrence...... 46 Vice President of Human Resources of the Company since May
1991.
G. Douglas Patterson.... 40 Vice President and General Counsel of the Company since June
1991.
David E. Wartner........ 31 Corporate Controller of the Company since 1994. Prior to
1994, Mr. Wartner was associated with Price Waterhouse LLP.
Eugene M. Whitacre...... 41 Vice President and General Manager of the Company since
February 1991.
</TABLE>
8
<PAGE> 11
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
Prior to the 1997 Common Stock Offering, the Company's common stock, par
value $0.01 per share, was owned entirely by Acadia, certain related investors
and certain executive officers of the Company. Subsequent to the 1997 Common
Stock Offering, the Company's common stock trades on the New York Stock
Exchange, under the ticker symbol IXX. The high and low sales prices for the
common stock for the calendar quarter ended December 31, 1997, are shown below.
<TABLE>
<CAPTION>
PRICES
-------------
QUARTER HIGH LOW
------- ---- ---
<S> <C> <C> <C>
1997.......................................... Fourth 24 19 9/16
</TABLE>
The approximate number of shareholders of record of the Company's common
stock as of March 6, 1998 was 252 holders. The Company has never paid cash
dividends on its common stock. Any payment of cash dividends in the future will
be at the discretion of the Company's Board of Directors and will depend upon
the financial condition, capital requirements and earnings of the Company as
well as other factors that the Company's Board of Directors may deem relevant.
In addition, the Company's New Credit Facility (as hereinafter defined)
prohibits the payment of dividends on the Company's common stock.
ITEM 6. SELECTED FINANCIAL DATA
The selected financial data presented below for, and as of the end of, each
of the years in the five year period ended December 31, 1997, are derived from
the consolidated audited financial statements of the Company. The financial data
of Ivex reflect the following acquisitions as of the respective acquisition
dates: Packaging Products, Inc. ("PPI") as of September 11, 1995; Plastofilm as
of August 16, 1996; Trio Products, Inc. ("Trio") as of September 11, 1996; the
OPS business based in the United Kingdom (the "European OPS Business") as of
January 11, 1997; M&R Plastics Inc. ("M&R") as of February 21, 1997; AVPEX
International Corporation ("AVP") as of August 8, 1997; and Crystal as of
November 3, 1997. The selected financial data should be read in conjunction with
the consolidated financial statements and notes thereto.
<TABLE>
<CAPTION>
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Net sales................................. $538,475 $451,807 $451,569 $390,975 $366,851
Net income (loss) before extraordinary
loss.................................... (9,540) 8,668 (22,125) (9,293) (129,098)
Net income (loss) before extraordinary
loss per share -- basic and diluted..... (0.75) 0.84 (2.14) (0.90) (12.63)
BALANCE SHEET DATA:
Total assets.............................. $427,723 $315,901 $294,911 $304,246 $297,674
Long-term debt............................ 319,055 352,893 353,717 330,768 330,201
Stockholders' deficit..................... (12,169) (127,344) (136,332) (111,266) (101,579)
</TABLE>
SUPPLEMENTAL FINANCIAL DATA
The unaudited supplemental financial data below are presented to illustrate
the historical results of operations and selected financial data of the Company
for each of the years in the three year period ended
9
<PAGE> 12
December 31, 1997 for the purposes of the statement of operations and other
operating data, and as of the dates presented below for the purposes of the
balance sheet data.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------
1997 1996 1995
---- ---- ----
(DOLLARS IN THOUSANDS,
EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Net sales................................................... $538,475 $451,807 $451,569
Gross profit................................................ 119,660 100,383 85,160
Selling and administrative.................................. 58,924 47,462 42,567
Amortization of intangibles(1).............................. 1,111 621 1,904
Write-off of goodwill(1).................................... 13,471
Special charges(2).......................................... 53,329 4,960
-------- -------- --------
Income from operations...................................... 6,296 52,300 22,258
Interest expense............................................ 41,889 42,732 43,270
-------- -------- --------
Income (loss) before income taxes and extraordinary loss.... (35,593) 9,568 (21,012)
Income tax provision (benefit).............................. (26,053) 900 1,113
-------- -------- --------
Income (loss) before extraordinary loss..................... (9,540) 8,668 (22,125)
Extraordinary loss(3)....................................... (26,730) (2,359)
-------- -------- --------
Net income (loss)........................................... $(36,270) $ 8,668 $(24,484)
======== ======== ========
Earnings (loss) per share -- basic and diluted(4):
Income (loss) before extraordinary loss................... $ (0.75) $ 0.84 $ (2.14)
======== ======== ========
Net income (loss)......................................... $ (2.85) $ 0.84 $ (2.37)
======== ======== ========
OTHER OPERATING DATA:
Cash flow from operating activities......................... $ 36,475 $ 49,202 $ 22,746
Cash flow used by investing activities...................... (68,191) (38,136) (29,871)
Cash flow from (used by) financing activities............... 34,883 (13,074) 5,666
Adjusted EBIT(5)............................................ 59,625 52,300 41,828
Depreciation and amortization(1)............................ 27,179 22,724 35,871
Adjusted EBITDA(6).......................................... 86,804 75,024 63,089
Capital expenditures........................................ 25,364 17,633 19,385
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------------
1997 1996 1995
---- ---- ----
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
BALANCE SHEET DATA:
Working capital(7).......................................... $ 41,741 $ 32,539 $ 38,090
Total assets................................................ 427,723 315,901 294,911
Long-term debt.............................................. 319,055 352,893 353,717
Stockholders' deficit....................................... (12,169) (127,344) (136,332)
</TABLE>
- -------------------------
(1) Depreciation and amortization for the year ended December 31, 1995 includes
the accelerated write-off of goodwill associated with a portion of the
Company's Industrial Packaging product group of $13,471 and the accelerated
write-off of a non-compete agreement of $1,139.
(2) Operating results for the year ended December 31, 1997 include a
nonrecurring non-cash compensation charge of $53,329 in connection with the
Company's conversion, pursuant to the Amended and Restated Stock Option and
Purchase Agreement (the "IPC Option Plan"), dated as of January 1, 1993, of
certain key executives' stock options which were exercisable for 16,321
shares of IPC's common stock (the "IPC Options") into 2,114,133 newly issued
shares of the Company's common stock and newly issued stock options
exercisable for 817,067 shares of the Company's common stock. The
nonrecurring compensation
10
<PAGE> 13
charge consists of (i) a non-cash compensation charge of $33,826 associated
with the conversion of the IPC Options into shares of the Company's common
stock and (ii) a non-cash compensation charge of $19,503 associated with the
accrual of future Company payments to senior management of an amount which
(after taxes) will enable such management to pay interest on the loans made
to them by the Company. Operating results for the year ended December 31,
1995 include the following special charges: $2,250 associated with IPC's
special incentive agreement with certain executive officers, $1,950 of costs
related to an attempted initial public equity offering and a reduction of
land value of $760 associated with a donation of certain land to the Village
of Chagrin Falls, Ohio.
(3) During 1997, the Company recorded an extraordinary loss of $26,730 (net of
tax of $15,035) associated with the refinancing of substantially all of its
debt. During 1995, in connection with the refinancing of IPC's credit
facility, the Company wrote-off deferred financing costs of $2,359.
(4) The earnings (loss) per share amounts give effect to the Company's
9.65-for-1 stock split effective October 6, 1997.
(5) Adjusted EBIT for the year ended December 31, 1997 includes income from
operations adjusted to exclude a special charge of $53,329. Adjusted EBIT
for the year ended December 31, 1995 includes income from operations
adjusted to exclude a special charge of $4,960, the accelerated write-off of
a non-compete agreement of $1,139 and the goodwill write-off of $13,471. The
Company believes that Adjusted EBIT provides additional information for
determining its ability to meet future debt service requirements. However,
Adjusted EBIT is not a defined term under generally accepted accounting
principles ("GAAP") and is not indicative of operating income or cash flow
from operations as determined under GAAP.
(6) Adjusted EBITDA includes income from operations adjusted to exclude
depreciation and amortization expenses, goodwill write-off and special
charges. The Company believes that Adjusted EBITDA provides additional
information for determining its ability to meet future debt service
requirements. However, Adjusted EBITDA is not a defined term under GAAP and
is not indicative of operating income or cash flow from operations as
determined under GAAP.
(7) Working capital is determined to be the excess of current assets over
current liabilities (including the current portion of long-term debt).
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion addresses the information and financial data
contained in "Supplemental Financial Data" presented in Item 6. References to
the Company or Ivex herein reflect the consolidated results of Ivex Packaging
Corporation.
RESULTS OF OPERATIONS -- FOR THE YEARS ENDED DECEMBER 31, 1997, 1996 AND 1995
Net Sales
The Company's net sales increased by 19.2% during the year ended December
31, 1997 over the Company's net sales during the corresponding period in 1996
primarily as a result of incremental sales volume associated with recently
completed acquisitions, including the 1997 acquisitions (the European OPS
Business, M&R, AVP and Crystal) and the 1996 acquisitions (Plastofilm and Trio).
Net sales for the year ended December 31, 1996 were consistent with 1995, as
incremental sales from the 1996 acquisitions and unit volume increases were
offset by lower average selling prices. The following table sets forth
information with respect to net sales of the Company's product groups for the
periods presented.
<TABLE>
<CAPTION>
% OF % OF % OF
1997 NET SALES 1996 NET SALES 1995 NET SALES
---- --------- ---- --------- ---- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Consumer Packaging................. $313,695 58.3 $234,584 51.9 $219,806 48.7
Industrial Packaging............... 224,780 41.7 217,223 48.1 231,763 51.3
-------- ----- -------- ----- -------- -----
Total......................... $538,475 100.0 $451,807 100.0 $451,569 100.0
======== ===== ======== ===== ======== =====
</TABLE>
11
<PAGE> 14
Consumer Packaging's net sales increased by 33.7% in 1997 from 1996 levels
and 6.7% in 1996 from 1995 levels. The increase in 1997 net sales compared to
1996 is primarily the result of incremental sales volume associated with the
1997 acquisitions and a full year effect of the 1996 acquisitions. Additionally,
the 1997 increase is the result of increased unit sales volume of extruded sheet
and film and converted plastic and paper products partially offset by decreased
average selling prices. The increase in 1996 compared to 1995 is the result of
increased unit sales volume of extruded sheet and film and the third quarter
1996 acquisitions of Plastofilm and Trio partially offset by a decrease in
average selling prices of substantially all products (primarily related to lower
raw material costs during 1996). Late in 1995, Consumer Packaging increased OPS
extrusion capacity with the completion of a new extrusion line in Manteno,
Illinois. With this increased capacity, the Company sold 16.9% more pounds of
extruded sheet and film during 1996 than during 1995. The 1996 increases in
volume were partially offset by a decrease of 15.5% in the average selling price
per pound of OPS in 1996 compared to 1995 (primarily related to lower raw
material costs during 1996). Net sales of converted plastic and paper products
were consistent during 1996 compared to 1995 reflecting slightly increased unit
volume offset by decreased average selling prices (primarily related to lower
raw material costs during 1996).
Industrial Packaging's net sales increased by 3.5% in 1997 from 1996 and
decreased by 6.3% in 1996 from 1995. The increase in 1997 from 1996 is
attributable to increased unit sales volume of recycled and specialty
lightweight paper and protective packaging (primarily surface protection masking
products). The 1997 increase was partially offset by a decline in the unit sales
volume of coated and laminated products and decreased average selling prices for
the Company's recycled and specialty lightweight paper. During 1997, the unit
sales volume of recycled and specialty lightweight paper increased 9.8% but the
average selling price decreased 4.0%. The decrease in net sales in 1996 from
1995 is primarily attributable to a decrease in the unit sales volume and
average selling price of the Company's recycled and specialty lightweight paper
and a significant decrease in the net sales volume of coated paper for stamp
applications, partially offset by increased net sales of protective packaging
products. During 1996, the unit sales volume of recycled and specialty
lightweight paper decreased 9.1% and the average selling price decreased 13.0%
due to declining raw material costs and aggressive competitive pricing in the
industry. The 1996 decrease in net sales volume was partially offset by
increased net sales of protective packaging products, primarily associated with
the third quarter 1995 acquisition of PPI and increased net sales of masking and
cohesive products for applications in the automotive, housing and mail order
industries.
Gross Profit
The Company's gross profit increased 19.2% during 1997 compared to 1996
primarily as a result of the recently completed acquisitions and the increased
unit sales volume. The increased gross profit during 1997 was partially offset
by decreased margins in the Company's recycled and specialty paper operations
and in the Company's polymerization operations. Gross profit margin was 22.2% in
both 1997 and 1996.
The Company's gross profit increased 17.9% during 1996 compared to 1995
primarily as a result of the acquisitions and increased unit sales volume
discussed above, the increased profitability of the Company's converted plastic
and converted paper operations, the incremental effects of the Trio, Plastofilm
and PPI acquisitions and decreased raw material costs (including styrene
monomer, polystyrene, OCC, DLK and virgin pulp). These increases were offset, in
part, by the decreased profitability of the Company's polymerization operations
and specialty and lightweight paper operations. Gross profit margin increased to
22.2% in 1996 from 18.9% in 1995. The gross profit margin increase during 1996
is primarily attributable to cost decreases for certain of the Company's raw
materials and improved operational efficiencies as a result of greater unit
volume of extruded sheet and film.
Operating Expenses
Selling and administrative expenses increased 24.1% during 1997 compared to
1996 primarily as a result of the recently completed acquisitions. As a
percentage of net sales, selling and administrative expenses increased to 10.9%
in 1997 compared to 10.5% in 1996 primarily due to the higher selling and
administrative expenses associated with the Company's recently acquired medical
and electronics packaging products group
12
<PAGE> 15
and the additional management committed to the Company's surface protection
products group. Such increase was partially offset by a reduction in incentive
compensation.
Selling and administrative expenses increased 11.5% during 1996 compared to
1995 and as a percentage of net sales increased to 10.5% during 1996 compared to
9.4% in 1995. The increase in selling and administrative expenses is primarily
attributable to the PPI, Plastofilm and Trio acquisitions. The increase as a
percentage of net sales is attributable to the decreases in the Company's
average selling price as discussed above.
Amortization of intangibles increased during 1997 compared to 1996 as a
result of the incremental goodwill amortization associated with the recent
acquisitions. Amortization of intangibles decreased during 1996 compared to 1995
as a result of the accelerated write-off of a non-compete agreement of $1.1
million during 1995.
During 1995, the Company wrote off $13.5 million of the goodwill associated
with a portion of its Industrial Packaging businesses. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations --
Results of Operations -- For the Years Ended December 31, 1997, 1996 and 1995 --
Goodwill Write-off."
During the third quarter of 1997, the Company recorded a nonrecurring
non-cash compensation charge of $53.3 million in connection with the Company's
conversion, pursuant to the IPC Option Plan, of the IPC Options into 2,114,133
newly issued shares of the Company's common stock and newly issued stock options
exercisable for 817,067 shares of the Company's common stock. The nonrecurring
compensation charge consists of (i) a non-cash compensation charge of $33.8
million associated with the conversion of the IPC Options into shares of the
Company's common stock and (ii) a non-cash compensation charge of $19.5 million
associated with the accrual of future Company payments to senior management of
an amount which (after taxes) will enable such management to pay interest on the
loans made to them by the Company. Such loans were made to senior management
pursuant to the IPC Option Plan to enable them to pay their individual income
taxes payable in connection with the conversion of the IPC Options.
The $5.0 million of special charges taken in 1995 is comprised of the
following: a $2.3 million charge associated with cash payments made under IPC's
long-term special incentive agreement with senior management; a $2.0 million
charge associated with the costs related to the Company's attempted public
equity offering during the fourth quarter of 1995; and a reduction of land value
of $760,000 associated with the Company's donation of a portion of its Chagrin
Falls, Ohio paper mill site to the Village of Chagrin Falls.
Goodwill Write-off
During 1995, a portion of the Industrial Packaging businesses (such portion
having been acquired primarily in the 1989 acquisition of L&CP Corporation) had
experienced less sales volume growth and lower profitability than anticipated.
As a consequence, and in response to dynamic market conditions, during the
second quarter of 1995 the Company realigned the management of these businesses
based on three distinct operating units -- masking, graphics and other
protective products. Consistent with its accounting policy at that time, the
Company made a reassessment of the goodwill for these businesses as of the
second quarter of 1995 and concluded that the goodwill for the graphics and
protective products businesses was impaired. Accordingly, the Company recorded
an impairment of $13.5 million during the second quarter of 1995. See "Financial
Statements and Supplementary Data -- Notes 2 and 15" to the Company's
consolidated financial statements.
Income from Operations
Income from operations and operating margin were $6.3 million and 1.2%,
respectively, during 1997, compared to $52.3 million and 11.6%, respectively,
during 1996 and $22.3 million and 4.9%, respectively, during 1995. The decrease
in the income from operations in 1997 compared with 1996 is the result of the
special charge recorded in 1997. Without this special charge, operating income
and margin would have been $59.6 million and 11.1%, respectively in 1997. The
increase in 1997 operating income (before special charge)
13
<PAGE> 16
is primarily the result of the recently completed acquisitions and the decrease
in the 1997 operating margin (before special charge) is the result of the
increased operating expenses as a percentage of net sales. The increase in 1996
income from operations and operating margin compared to 1995 primarily results
from the $13.5 million goodwill write-off and $5.0 million of special charges
recorded during 1995. Without these special charges during 1995, operating
income and operating margin would have been $40.7 million and 9.0%,
respectively, in 1995. The increase in 1996 income from operations and operating
margin over 1995 income from operations and operating margin (before the 1995
write-off of goodwill and the special charges) was attributable to the improved
gross profit and gross profit margin discussed above.
Interest Expense
Interest expense during 1997 was $41.9 million compared to $42.7 million
and $43.3 million during 1996 and 1995, respectively. The decrease in 1997
interest compared to 1996 is the result of the Company's initial public offering
and refinancing completed during the fourth quarter of 1997. The decrease in
1996 from 1995 primarily results from lower interest rates during 1996 as a
result of the Company's refinancing of its senior credit facility during the
fourth quarter of 1995. The Company's interest expense should be reduced in 1998
as a result of the refinancing associated with the Company's initial public
offering during 1997.
Income Taxes
The Company's tax benefit for 1997 reflects the deferred benefit of the
pre-tax loss recorded in 1997 and a $13.2 million deferred benefit associated
with the reversal of a portion of the Company's valuation allowance for deferred
tax assets. During the third quarter of 1997, the Company determined that it was
more likely than not that a portion of its deferred tax assets (comprised
primarily of net operating loss carryforwards) would be realizable given the
Company's initial public offering and refinancing. The Company's tax provisions
during 1996 and 1995 primarily reflect provisions for federal alternative
minimum tax and state taxes.
Extraordinary Loss
The extraordinary loss in 1997 of $26.7 million (net of tax of $15.0
million) consists of $32.3 million of premiums paid to retire the 13 1/4% Senior
Discount Debentures and the 12 1/2% Subordinated Notes, the write-off of $8.2
million of deferred financing costs related to the retired debt and the
refinancing of the Company's senior credit facility, and $1.2 million of
expenses incurred to retire the debt and the existing credit facility.
The extraordinary loss in 1995 reflects the write-off of deferred loan
costs of $2.4 million written off in connection with the refinancing of IPC's
existing credit facility with a new $160 million senior credit facility during
the fourth quarter of 1995.
Net Income/Loss
Net loss was $36.3 million in 1997 compared to net income of $8.7 million
in 1996. The net loss during 1997 is primarily the result of the special charge
and extraordinary loss recorded during 1997.
Net income was $8.7 million in 1996 compared to a net loss of $24.5 million
in 1995. The improved net income during 1996 is primarily the result of the
Company's improved gross profit during 1996 and the $13.5 million goodwill
write-off and $5.0 million of special charges recorded during 1995.
Adjusted EBITDA
Adjusted EBITDA includes income from operations adjusted to exclude
depreciation and amortization expenses, goodwill write-off and special charges.
The Company believes that Adjusted EBITDA provides additional information for
determining its ability to meet future debt service requirements. However,
Adjusted EBITDA is not a defined term under GAAP and is not indicative of
operating income or cash flow from operations as determined under GAAP.
14
<PAGE> 17
The following table sets forth information with respect to Adjusted EBITDA
of the Company's product groups for the periods presented.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------------------------------
% OF % OF % OF
1997 NET SALES 1996 NET SALES 1995 NET SALES
---- --------- ---- --------- ---- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Consumer Packaging.................... $56,704 18.1 $43,776 18.7 $36,954 16.8
Industrial Packaging.................. 36,118 16.1 37,694 17.4 31,744 13.7
Corporate expenses.................... (6,018) -- (6,446) -- (5,609) --
------- ------- -------
Total............................ $86,804 16.1 $75,024 16.6 $63,089 14.0
======= ======= =======
</TABLE>
The Company's Adjusted EBITDA increased by $11.8 million to $86.8 million
in 1997, an Adjusted EBITDA margin of 16.1%, compared to 1996 Adjusted EBITDA of
$75.0 million and an Adjusted EBITDA margin of 16.6%. The increase in Consumer
Packaging's Adjusted EBITDA during 1997 is primarily attributable to the
incremental Adjusted EBITDA from the recently completed acquisitions and the
improved profitability associated with the increased sales volume of extruded
sheet and film and converted plastic and paper products. The 1997 increase was
partially offset by decreased profitability of the Company's polymerization
operations and poor European thermoforming operating performance. The decrease
in Industrial Packaging's Adjusted EBITDA during 1997 is the result of weak
margins in the Company's recycled and specialty paper operations and increased
operating expenses in the Company's surface protection business. Corporate
expense decreased 6.6% from $6.4 million to $6.0 million primarily as a result
of reduced incentive compensation.
The Company's Adjusted EBITDA increased by $11.9 million to $75.0 million
in 1996, an Adjusted EBITDA margin of 16.6%, compared to 1995 Adjusted EBITDA of
$63.1 million and an Adjusted EBITDA margin of 14.0%. The increase in Consumer
Packaging's Adjusted EBITDA during 1996 is primarily attributable to the
increased gross profit associated with the extruded sheet and film volume
increases, improved operating performance of converted plastic and paper
operations and incremental EBITDA from Plastofilm. Such increases were partially
offset by decreased profitability of the Company's polymerization operations.
The increase in Industrial Packaging's Adjusted EBITDA during 1996 is primarily
the result of the incremental EBITDA from PPI and the improved sales volume of
protective packaging products. Corporate expenses increased 14.9% from $5.6
million to $6.4 million primarily as the result of increased incentive
compensation.
LIQUIDITY AND CAPITAL RESOURCES
On October 6, 1997, the Company completed an initial public offering (the
"Offering") of 9,660,000 shares of common stock of the Company. In connection
with the Offering, the Company increased its authorized capital stock to
45,000,000 shares of common stock and effected a 9.65-for-1 stock split of its
outstanding common stock. In connection with the Offering, the Company sold to
the underwriters 7,960,000 previously unissued shares of common stock at an
initial public offering price of $16.00 per share yielding net proceeds of
$117.3 million. Acadia Partners, L.P. and certain related investors ("Acadia")
sold to the underwriters 1,700,000 previously issued and outstanding shares of
common stock owned by them. The Company did not receive any of the proceeds from
the sale of shares of common stock by Acadia.
The Offering was a component of a comprehensive refinancing strategy of the
Company to significantly lower its interest expense, strengthen its balance
sheet and provide financial flexibility to enable Ivex to continue to pursue
investment opportunities. As part of this refinancing, simultaneously with the
consummation of the Offering, IPC entered into a new credit facility (the "New
Credit Facility") that refinanced its existing credit facility. The New Credit
Facility provides for maximum borrowings by IPC of an aggregate principal amount
of up to $475.0 million to be provided by the banks thereunder. The New Credit
Facility consists of term loans of $300.0 million and a revolving credit
facility of up to $175.0 million (up to $65.0 million of which may be in the
form of letters of credit).
15
<PAGE> 18
The Company used the proceeds of the Offering together with borrowings
under the New Credit Facility to refinance substantially all of its existing
indebtedness. During the fourth quarter of 1997, the Company repurchased all of
the 12 1/2% Subordinated Notes due 2002 (the "12 1/2% Subordinated Notes") and
repurchased all of the 13 1/4% Discount Debentures due 2005 (the "13 1/4%
Discount Debentures"). In connection with the above repurchase of the 12 1/2%
Subordinated Notes and the 13 1/4% Discount Debentures, the Company paid
premiums aggregating $32.3 million. In connection with the refinancing, the
Company incurred expense of approximately $8.2 million related to the write-off
of previously capitalized debt issuance costs and paid costs of $1.2 million
associated with the repurchase of existing debt.
At December 31, 1997, the Company had cash and cash equivalents of $6.0
million and $127.8 million was available under the revolving credit portion of
IPC's senior credit facility. IPC's working capital at December 31, 1997 was
$41.7 million.
The primary short-term and long-term operating cash requirements for the
Company are for debt service, working capital and capital expenditures. The
Company expects to rely on cash generated from operations supplemented by
revolving credit facility borrowings under the New Credit Facility (as of
December 31, 1997, $127.8 million was available under the revolving credit
portion of the New Credit Facility) to fund the Company's principal short-term
and long-term cash requirements.
The New Credit Facility is comprised of a $150.0 million Term A Loan,
$150.0 million Term B Loan and $175.0 million revolving credit facility (up to
$65.0 million of which may be in the form of letters of credit). The Term A Loan
is required to be repaid in quarterly payments totaling $3.75 million in 1997,
$16.25 million in 1998, $21.25 million in 1999, $25.0 million in 2000, $26.25
million in 2001, $31.25 million in 2002 and $26.25 million in 2003 and the Term
B Loan is required to be repaid in quarterly payments totaling $1.5 million per
annum through September 30, 2003 and four installments of $35.25 million on
December 31, 2003, March 31, 2004, June 30, 2004 and September 30, 2004. The
interest rate of the New Credit Facility can be, at the election of IPC, based
upon LIBOR or the Adjusted Base Rate, as defined therein, and is subject to
certain performance pricing adjustments. The Term A Loan and loans under the
revolving credit facility bear interest at rates up to LIBOR plus 1.625% or the
Adjusted Base Rate plus 0.625%. As of December 31, 1997, such rates are 1.375%
plus LIBOR. The Term B Loan bears interest at rates up to LIBOR plus 2.00% or
the Adjusted Base Rate plus 1.0%. As of December 31, 1997, such rates are 1.75%
plus LIBOR. Borrowings are secured by substantially all the assets of the
Company and its subsidiaries. The revolving credit facility and Term A Loan will
terminate on September 30, 2003 and the Term B Loan will terminate on September
30, 2004. Under the New Credit Facility, IPC is required to maintain certain
financial ratios and levels of net worth and future indebtedness and dividends
are restricted, among other things.
During 1997, the Company entered into interest rate swap agreements with a
group of banks having notional amounts totaling $100.0 million through November
5, 2002. These agreements effectively fix a portion of the Company's LIBOR base
rate at 6.12% during this period. Concurrently with the implementation of the
swap agreements, the Company also entered into no cost interest rate collar
agreements with a group of banks having notional amounts totaling $100.0 million
through November 5, 2002. These collar agreements effectively fix the LIBOR base
rate at a maximum of 7.00% and allow for the Company to pay the market LIBOR
from a floor of 5.55% to the maximum rate. If LIBOR falls below 5.55%, the
Company is required to pay the floor rate of 5.55%. During 1996, the Company
entered into interest rate swap agreements for the term loans for notional
amounts totaling $60.0 million through January 19, 1999. Such agreements
effectively fix the Company's LIBOR base rate at 5.33% during this period.
Income or expense related to settlements under these agreements are recorded as
adjustments to interest expense in the Company's financial statements.
IPC's industrial revenue bonds require monthly interest payments and are
due in varying amounts and dates through 2009. Certain letters of credit under
the Company's New Credit Facility provide credit enhancement for IPC's
industrial revenue bonds.
16
<PAGE> 19
The Company made capital expenditures of $25.4 million, $17.6 million and
$19.4 million in 1997, 1996 and 1995, respectively. The Company was not
committed under any material contractual obligations for capital expenditures as
of December 31, 1997.
The Company is currently undergoing an enterprise-wide assessment of its
Year 2000 expenses.
RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
Reporting Comprehensive Income
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive
Income," which will require the Company to disclose, in financial statement
format, all non-owner changes in equity. Such changes include cumulative foreign
currency translation adjustments and certain minimum pension liabilities. SFAS
No. 130 is effective for fiscal years beginning after December 15, 1997 and
requires presentation of prior period financial statements for comparability
purposes. The Company expects to adopt this standard during the year ended
December 31, 1998.
Disclosures about Segments of an Enterprise and Related Information
In June 1997, the FASB issued SFAS No. 131, "Disclosures about Segments of
an Enterprise and Related Information," which established standards for
reporting information about operating segments in annual financial statements
and interim financial reports. It also establishes standards for related
disclosures about products and services, geographic areas and major customers.
SFAS No. 131 is effective for fiscal years beginning after December 15, 1997 and
requires presentation of prior period financial statements for comparability
purposes. The Company is currently evaluating its required disclosures under
SFAS No. 131 and expects to adopt this standard during the year ended December
31, 1998.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements herein constitute "forward-looking statements" within
the meaning of the Private Securities Litigation Reform Act of 1995 (the "Reform
Act"). Such forward-looking statements involve known and unknown risks,
uncertainties and other factors which may cause the actual results, performance
or achievements of the Company to be materially different from any future
results, performance or achievements expressed or implied by such
forward-looking statements. Such factors include, among others, the following:
raw material costs and availability (see "Business -- Raw Materials");
competition (see "Business -- Competition"); environmental matters and
government regulation (see "Business -- Environmental Matters and Government
Regulation"); and the Company's actual performance and highly leveraged
financial condition (see "-- Goodwill Write-Off" and "-- Liquidity and Capital
Resources" above).
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The Company's financial statements and supplementary data are included on
pages 25 to 46. See Index to Financial Statements and Supplementary Data on page
19.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURES
None.
17
<PAGE> 20
PART III
With respect to Items 10 through 13, the Company will file with the
Securities and Exchange Commission, within 120 days of the close of its fiscal
year, a definitive proxy statement pursuant to Regulation 14-A under the
Securities Exchange Act of 1934 (the "Proxy Statement").
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information regarding directors of the Company will be set forth in the
Company's Proxy Statement relating to the Annual Meeting of Stockholders to be
held on May 15, 1998 and, to the extent required, is incorporated herein by
reference. Information regarding executive officers of the Company is set forth
under the caption "Executive Officers."
ITEM 11. EXECUTIVE COMPENSATION
Information regarding executive compensation will be set forth in the
Company's Proxy Statement relating to the Annual Meeting of Stockholders to be
held on May 15, 1998 and, to the extent required, is incorporated herein by
reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information regarding security ownership of certain beneficial owners and
management will be set forth in the Company's Proxy Statement relating to the
Annual Meeting of Stockholders to be held on May 15, 1998 and, to the extent
required, is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information regarding certain relationships and related transactions will
be set forth in the Company's Proxy Statement relating to the Annual Meeting of
Stockholders to be held on May 15, 1998 and, to the extent required, is
incorporated herein by reference.
18
<PAGE> 21
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(A)(1) THE FOLLOWING FINANCIAL STATEMENTS OF THE COMPANY ARE INCLUDED ON
PAGES 25 TO 41.
- Report of Independent Accountants
- Consolidated Balance Sheets at December 31, 1997 and 1996
- Consolidated Statements of Operations for the years ended December 31,
1997, 1996 and 1995
- Consolidated Statements of Changes in Stockholders' Deficit for the years
ended December 31, 1997, 1996 and 1995
- Consolidated Statements of Cash Flows for the years ended December 31,
1997, 1996 and 1995
- Notes to Consolidated Financial Statements
(A)(2) FINANCIAL STATEMENT SCHEDULES FOR THE YEAR ENDED DECEMBER 31, 1997
ARE INCLUDED ON PAGES 42 TO 46.
- Schedule I -- Condensed Financial Information
- Schedule II -- Valuation and Qualifying Accounts and Reserves
All other schedules of the Company for which provision is made in the
applicable accounting regulations of the Securities and Exchange Commission are
not required, are inapplicable or have been disclosed in the notes to the
consolidated financial statements and therefore have been omitted.
19
<PAGE> 22
(A)(3) EXHIBITS.
<TABLE>
<CAPTION>
INCORPORATED BY REFERENCE
TO THE FOLLOWING
--------------------------------------
EXHIBIT EXHIBIT REGISTRATION NUMBER
NUMBER DESCRIPTION OF DOCUMENT NUMBER OR REPORT
- ------- ----------------------- ------- -------------------
<C> <S> <C> <C>
3.1 Amended and Restated Certificate of Incorporation
of Ivex Packaging Corporation ("Holdings" or
"Ivex").......................................... 3.3 Ivex Amendment No. 8 to
Form S-1
(Registration No. 33-95436)
3.2 Amended By-Laws of Ivex.......................... 3.4 Ivex Amendment No. 8 to
Form S-1
(Registration No. 33-95436)
3.3 Form of Certificate of Elimination of Senior
Cumulative Exchangeable Preferred Stock of
Ivex............................................. 3.5 Ivex Amendment No. 8 to
Form S-1
(Registration No. 33-95436)
4.1 Form of Registration Rights Agreement, dated as
of September 30, 1997, among Ivex, Acadia
Partners, L.P., and the other stockholders party
thereto.......................................... 4.3 Ivex Amendment No. 8 to
Form S-1
(Registration No. 33-95436)
* 4.2 Amended and Restated Credit Agreement, dated as
of October 2, 1997, by and among IPC, Ivex,
NationsBank, N.A. and Bankers Trust, as agents,
and the guarantors and lenders identified on the
signature pages thereto..........................
*4.3 Amended and Restated Pledge Agreement, dated as
of October 2, 1997, among IPC, Ivex certain of
IPC's subsidiaries and NationsBank, N.A. and
Bankers Trust Company, as agents.................
*4.4 Form of Amended and Restated Security Agreement,
dated as of October 2, 1997, among IPC, Ivex and
certain of IPC's domestic subsidiaries and
NationsBank, N.A. and Bankers Trust Company, as
agents...........................................
*4.5 Form of Amended and Restated Mortgage and
Security Agreement...............................
10.1 Form of Ivex Senior Management Annual Incentive
Plan(1).......................................... 10.1 Ivex Amendment No. 8 to
Form S-1
(Registration No. 33-95436)
10.2 Form of Executive Deferred Compensation
Plan (1)......................................... 10.3 IPC 1994 Form 10-K
(File No. 33-52150)
10.3 Form of Trust Agreement, dated October 17, 1996,
between IPC, Inc. and the trustee thereof
relating to executive deferred compensation
(1).............................................. 10.3 Ivex 1996 Form 10-K
(File No. 33-60714)
</TABLE>
20
<PAGE> 23
<TABLE>
<CAPTION>
INCORPORATED BY REFERENCE
TO THE FOLLOWING
--------------------------------------
EXHIBIT EXHIBIT REGISTRATION NUMBER
NUMBER DESCRIPTION OF DOCUMENT NUMBER OR REPORT
- ------- ----------------------- ------- -------------------
<C> <S> <C> <C>
10.4 Form of IPC Stock Purchase and Option Agreement,
dated as of January 1, 1993, among IPC, Ivex,
Acadia Partners, L.P. and each of certain senior
managers of IPC with the Ivex Stock Purchase and
Option Agreement attached thereto (1)............ 10.2 IPC 1993 Form 10-K
(Registration No. 33-52150)
10.5 Form of Amended and Restated IPC, Inc. Stock
Option and Purchase Agreement and Amended and
Restated Ivex Packaging Corporation Stock Option
and Purchase Agreement, each dated as of January
1, 1996 (1)...................................... 10.16 Ivex 6/30/96 Form 10-Q
(File No. 33-60714)
10.6 IPC Retirement Plan and Trust, as amended and
Restated May 1, 1992 (1)......................... 10.3 IPC Form S-1
(Registration No. 33-52150)
10.7 Amended and Restated Employment Agreement, dated
as of May 30, 1996, between George V. Bayly and
IPC (1).......................................... 10.14 Ivex 6/30/96 Form 10-Q
(File No. 33-60714)
10.8 Employment Agreement, dated as of December 31,
1992, between IPC and Frank V. Tannura (1)....... 10.30 IPC 6/30/93 Form 10-Q
(File No. 33-52150)
10.9 Amendment No. 1, dated as of September 11, 1995,
to the Employment Agreement, dated as of December
31, 1992, between IPC and Frank V. Tannura (1)... 10.59 IPC 6/30/95 Form 10-Q
(File No. 33-52150)
10.10 Amendment No. 2 to Employment Agreement, dated
May 30, 1996, between IPC and Frank V. Tannura... 10.15 Ivex 6/30/96 Form 10-Q
(File No. 33-60714)
10.11 Form of Severance Agreement between the Company
and certain named executive officers (1)......... 1.1 IPC 1994 Form 10-K
(File No. 33-52150)
10.12 Form of Ivex Packaging Corporation 1997 Long-Term
Stock Incentive Plan (1)......................... 10.45 Ivex Amendment No. 8 to
Form S-1
(Registration No. 33-95436)
* 10.13 Form of Senior Management's Promissory Note to
IPC (1)..........................................
10.14 Loan Agreement, dated as of December 1, 1987,
between the County of Kankakee, Illinois and Ivex
of Delaware, Inc. (n/k/a IPC, Inc.).............. 10.11 IPC Form S-1
(Registration No. 33-52150)
10.15 Loan Agreement, dated as of June 1, 1988, between
the Development Authority of Morgan County and
Ivex of Delaware, Inc. (n/k/a IPC, Inc.)......... 10.13 IPC Form S-1
(Registration No. 33-52150)
</TABLE>
21
<PAGE> 24
<TABLE>
<CAPTION>
INCORPORATED BY REFERENCE
TO THE FOLLOWING
--------------------------------------
EXHIBIT EXHIBIT REGISTRATION NUMBER
NUMBER DESCRIPTION OF DOCUMENT NUMBER OR REPORT
- ------- ----------------------- ------- -------------------
<C> <S> <C> <C>
10.16 Loan Agreement, dated as of October 1, 1987,
between the County of Will, Illinois and LPX, Inc
(n/k/a IPC, Inc.)................................ 10.15 IPC Form S-1
(Registration No. 33-52150)
10.17 Loan Agreement, dated as of April 1, 1988,
between the Illinois Development Finance
Authority and Ivex of Delaware, Inc. (n/k/a IPC,
Inc.)............................................ 10.17 IPC Form S-1
(Registration No. 33-52150)
10.18 Indenture of Trust, dated as of March 1, 1989,
between Marine Midland Bank, N.A. and Ivex of
Delaware, Inc. (n/k/a IPC, Inc.)................. 10.19 IPC Form S-1
(Registration No. 33-52150)
10.19 Loan Agreement, dated November 1, 1985, between
the Village of Bridgeview, Illinois and L&CP
Corporation (n/k/a IPC, Inc.).................... 10.21 IPC Form S-1
(Registration No. 33-52150)
10.20 Loan Agreement, dated as of June 1, 1988, between
City of Troy, Ohio and L&CP Corporation (n/k/a
IPC, Inc.)....................................... 10.23 IPC Form S-1
(Registration No. 33-52150)
10.21 Lease Agreement, dated as of December 5, 1996,
between State Street Bank and Trust Company and
IPC.............................................. 10.46 Ivex 1996 Form 10-K
(File No. 33-60714)
10.22 Lease, dated as of October 4, 1988, between
Seymour C. Graham and Kama Corporation (n/k/a
IPC, Inc.)....................................... 10.33 IPC Form S-1
(Registration No. 33-52150)
10.23 Amendment to Lease, dated as of December 20,
1988, between Seymour C. Graham and Kama
Corporation (n/k/a IPC, Inc.).................... 10.34 IPC Form S-1
(Registration No. 33-52150)
10.24 Lease, dated June 20, 1995, between Howard H.
Gelb and Eunice Gelb and Kama Corporation (n/k/a
IPC, Inc.)....................................... 10.44 Ivex 1995 Form 10-K
(File No. 33-60714)
* 10.25 Industrial Building Lease, dated January 8, 1998,
between Arapahoe Properties, L.L.C. and Packaging
Products, Inc....................................
10.26 Lease, dated as of September 11, 1996, by and
between Joseph P. Bennett and Trio Products,
Inc.............................................. 10.54 Ivex 1996 Form 10-K
(File No. 33-60714)
10.27 Installment Sales Agreement, dated as of December
12, 1990, between Grove City Industrial
Development Corporation and Ivex Converted
Products Corporation (n/k/a IPC, Inc.)........... 10.39 IPC Form S-1
(Registration No. 33-52150)
</TABLE>
22
<PAGE> 25
<TABLE>
<CAPTION>
INCORPORATED BY REFERENCE
TO THE FOLLOWING
--------------------------------------
EXHIBIT EXHIBIT REGISTRATION NUMBER
NUMBER DESCRIPTION OF DOCUMENT NUMBER OR REPORT
- ------- ----------------------- ------- -------------------
<C> <S> <C> <C>
10.28 Tax Sharing Agreement, dated as of December 17,
1992, between Ivex and IPC and certain of IPC's
subsidiaries..................................... 10.40 Ivex Form S-4
(Registration No. 33-60714)
10.29 Agreement and Plan of Merger, dated as of May 17,
1996 (as amended), among IPC, CFI Industries,
Inc. and Equity Partners......................... A-1 CFI Industries, Inc.'s
Proxy Statement dated
7/22/96
10.30 Form of Voting Agreement among Acadia, certain
related investors and certain members of Ivex
Management....................................... 10.47 Ivex Amendment No. 8 to
Form S-1
(Registration No. 33-95436)
21.1 Subsidiaries of Ivex............................. 21.1 Ivex Amendment No. 6 to
Form S-1 (Registration No.
33-95436)
* 23.1 Consent of Price Waterhouse LLP..................
27 Financial Data Schedule, which is submitted
electronically to the Securities and Exchange
Commission for information only and not filed....
</TABLE>
- -------------------------
* Filed herewith.
(1) Management contact or compensatory plan or arrangement required to be filed
as an Exhibit to this Form 10-K pursuant to Item 14(c) of this report.
(B) REPORTS ON FORM 8-K.
None.
23
<PAGE> 26
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934, THE REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON
ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED ON MARCH 30, 1998.
IVEX PACKAGING CORPORATION
By: /s/ GEORGE V. BAYLY
------------------------------------
Name: George V. Bayly
Title: President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature to this
Report appears below hereby constitutes and appoints G. Douglas Patterson as
such person's true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution for such person and in such person's name, place
and stead, in any and all capacities, to sign and to file with the Securities
and Exchange Commission any and all amendments to this Report, with exhibits
thereto and other documents in connection therewith, hereby ratifying and
confirming all that said attorney-in-fact and agent, or any substitute therefor,
may lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THIS
REPORT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON
MARCH 30, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ GEORGE V. BAYLY Director, Chairman of the Board, President and Chief
- --------------------------------------------- Executive Officer (Principal Executive Officer)
George V. Bayly
/s/ FRANK V. TANNURA Director, Vice President and Chief Financial Officer
- --------------------------------------------- (Principal Financial Officer)
Frank V. Tannura
/s/ DAVID E. WARTNER Corporate Controller (Principal Accounting Officer)
- ---------------------------------------------
David E. Wartner
/s/ GLENN R. AUGUST Director
- ---------------------------------------------
Glenn R. August
/s/ ANTHONY P. SCOTTO Director
- ---------------------------------------------
Anthony P. Scotto
/s/ WILLIAM J. WHITE Director
- ---------------------------------------------
William J. White
/s/ R. JAMES COMEAUX Director
- ---------------------------------------------
R. James Comeaux
</TABLE>
24
<PAGE> 27
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders
of Ivex Packaging Corporation:
In our opinion, the consolidated financial statements listed in the index
appearing under Item 14(a)(1) and (2) on page 19 present fairly, in all material
respects, the financial position of Ivex Packaging Corporation ("the Company")
and its subsidiaries at December 31, 1997 and 1996, and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1997, in conformity with generally accepted accounting principles.
These financial statements are the responsibility of the Company's management;
our responsibility is to express an opinion on these financial statements based
on our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
PRICE WATERHOUSE LLP
Chicago, Illinois
January 20, 1998
25
<PAGE> 28
IVEX PACKAGING CORPORATION
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------
1997 1996
---- ----
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents................................. $ 5,989 $ 2,822
Accounts receivable trade, net of allowance............... 64,952 51,638
Inventories............................................... 59,706 49,023
Prepaid expenses and other................................ 5,759 5,395
--------- ---------
Total current assets................................... 136,406 108,878
--------- ---------
Property, Plant and Equipment:
Buildings and improvements................................ 56,336 49,038
Machinery and equipment................................... 272,602 231,526
Construction in progress.................................. 9,225 8,069
--------- ---------
338,163 288,633
Less -- Accumulated depreciation.......................... (149,207) (123,957)
--------- ---------
188,956 164,676
Land...................................................... 9,077 8,304
--------- ---------
Total property, plant and equipment.................... 198,033 172,980
--------- ---------
Other assets:
Goodwill, net of accumulated amortization................. 35,278 20,506
Deferred income taxes..................................... 36,647
Management receivable..................................... 11,135
Miscellaneous............................................. 10,224 13,537
--------- ---------
Total other assets..................................... 93,284 34,043
--------- ---------
Total Assets................................................ $ 427,723 $ 315,901
========= =========
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current Liabilities:
Current installments of long-term debt.................... $ 19,744 $ 5,921
Accounts payable.......................................... 38,675 36,748
Accrued salary and wages.................................. 9,114 8,603
Self insurance reserves................................... 6,799 7,453
Accrued rebates and discounts............................. 4,596 3,824
Accrued interest.......................................... 4,191 1,680
Other accrued expenses.................................... 11,546 12,110
--------- ---------
Total current liabilities.............................. 94,665 76,339
--------- ---------
Long-Term Debt.............................................. 319,055 352,893
--------- ---------
Other Long-Term Liabilities................................. 21,868 5,243
--------- ---------
Deferred Income Taxes....................................... 4,304 8,770
--------- ---------
Commitments.................................................
--------- ---------
Stockholders' Deficit:
Common stock, $.01 par value -- 45,000,000 shares
authorized; 20,426,666 and 10,352,533 shares issued and
outstanding............................................ 204 11
Paid in capital in excess of par value.................... 328,322 177,375
Accumulated deficit....................................... (339,836) (303,566)
Foreign currency translation adjustment................... (859) (1,164)
--------- ---------
Total stockholders' deficit............................ (12,169) (127,344)
--------- ---------
Total Liabilities and Stockholders' Deficit................. $ 427,723 $ 315,901
========= =========
</TABLE>
The accompanying notes are an integral part of this statement.
26
<PAGE> 29
IVEX PACKAGING CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Net sales................................................ $538,475 $451,807 $451,569
Cost of goods sold....................................... 418,815 351,424 366,409
---------- ---------- ----------
Gross profit............................................. 119,660 100,383 85,160
---------- ---------- ----------
Operating expenses:
Selling................................................ 27,625 20,306 18,027
Administrative......................................... 31,299 27,156 24,540
Amortization of intangibles............................ 1,111 621 1,904
Write-off of goodwill.................................. 13,471
Special charges........................................ 53,329 4,960
---------- ---------- ----------
Total operating expenses................................. 113,364 48,083 62,902
---------- ---------- ----------
Income from operations................................... 6,296 52,300 22,258
Interest expense......................................... 41,889 42,732 43,270
---------- ---------- ----------
Income (loss) before income taxes and extraordinary
loss................................................... (35,593) 9,568 (21,012)
Income tax (benefit) provision........................... (26,053) 900 1,113
---------- ---------- ----------
Income (loss) before extraordinary loss.................. (9,540) 8,668 (22,125)
Extraordinary loss....................................... (26,730) (2,359)
---------- ---------- ----------
Net income (loss)........................................ $(36,270) $ 8,668 $(24,484)
========== ========== ==========
Earnings (loss) per share:
Basic:
Income (loss) before extraordinary loss............. $ (0.75) $ 0.84 $ (2.14)
Extraordinary loss.................................. (2.10) (0.23)
---------- ---------- ----------
Net income (loss)................................... $ (2.85) $ 0.84 $ (2.37)
========== ========== ==========
Weighted average shares outstanding................. 12,747,029 10,352,533 10,352,533
========== ========== ==========
Diluted:
Income (loss) before extraordinary loss............. $ (0.75) $ 0.84 $ (2.14)
Extraordinary loss.................................. (2.10) (0.23)
---------- ---------- ----------
Net income (loss)................................... $ (2.85) $ 0.84 $ (2.37)
========== ========== ==========
Weighted average shares outstanding................. 12,747,029 10,352,533 10,352,533
========== ========== ==========
</TABLE>
The accompanying notes are an integral part of this statement.
27
<PAGE> 30
IVEX PACKAGING CORPORATION
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' DEFICIT
(DOLLARS IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
PAID IN FOREIGN
COMMON STOCK CAPITAL CURRENCY
------------------- IN EXCESS OF ACCUMULATED TRANSLATION STOCKHOLDERS'
SHARES AMOUNT PAR VALUE DEFICIT ADJUSTMENT DEFICIT
------ ------ ------------ ----------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1994..................... 1,072,246 $ 11 $177,375 $(287,750) $ (902) $(111,266)
Foreign currency translation adjustment........ (582) (582)
Net loss....................................... (24,484) (24,484)
---------- ---- -------- --------- ------- ---------
Balance at December 31, 1995..................... 1,072,246 11 177,375 (312,234) (1,484) (136,332)
Foreign currency translation adjustment........ 320 320
Net income..................................... 8,668 8,668
---------- ---- -------- --------- ------- ---------
Balance at December 31, 1996..................... 1,072,246 11 177,375 (303,566) (1,164) (127,344)
Foreign currency translation adjustment........ 305 305
Issuance of management shares.................. 218,968 2 33,824 33,826
Common stock split............................. 11,175,452 112 (112)
Issuance of common stock....................... 7,960,000 79 117,235 117,314
Net loss....................................... (36,270) (36,270)
---------- ---- -------- --------- ------- ---------
Balance at December 31, 1997..................... 20,426,666 $204 $328,322 $(339,836) $ (859) $ (12,169)
========== ==== ======== ========= ======= =========
</TABLE>
The accompanying notes are an integral part of this statement.
28
<PAGE> 31
IVEX PACKAGING CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss)......................................... $ (36,270) $ 8,668 $(24,484)
Adjustments to reconcile net income (loss) to net cash
from operating activities:
Depreciation of properties........................... 26,068 22,103 20,496
Amortization of intangibles and debt issue costs..... 2,404 2,028 19,689
Non-cash interest.................................... 11,223 12,801 11,232
Non-cash special charge.............................. 53,329
Extraordinary loss................................... 26,730
Deferred income taxes................................ (28,433)
Write-down of property, plant and equipment, net..... 760
--------- -------- --------
55,051 45,600 27,693
Change in operating assets and liabilities:
Accounts receivable................................ (7,342) 528 (550)
Inventories........................................ (4,946) (743) 4,371
Prepaid expenses and other assets.................. (212) 621 (930)
Accounts payable................................... (3,907) 1,516 (8,486)
Accrued expenses and other liabilities............. (2,169) 1,680 648
--------- -------- --------
Net cash from operating activities................. 36,475 49,202 22,746
--------- -------- --------
Cash flows from financing activities:
Proceeds from issuance of stock........................... 117,314
Proceeds from senior credit facility...................... 300,000 60,000
Payment of senior credit facility......................... (59,125) (5,000) (59,870)
Proceeds from revolving credit facility................... 1,000 8,500
Payment of revolving credit facility...................... (8,500)
Redemption of 13 1/4% Discount Debentures................. (117,363)
Redemption of 12 1/2% Subordinated Notes.................. (157,423)
Management loan........................................... (11,625)
Debt redemption costs..................................... (33,339)
Payment of debt issue costs............................... (4,303) (296) (2,779)
Other, net................................................ (253) 722 (185)
--------- -------- --------
Net cash from (used by) financing activities....... 34,883 (13,074) 5,666
--------- -------- --------
Cash flows from investing activities:
Purchase of property, plant and equipment................. (25,364) (17,633) (19,385)
Proceeds from sale of real estate......................... 1,034
Acquisitions.............................................. (42,728) (20,786) (11,735)
Other, net................................................ (99) 283 215
--------- -------- --------
Net cash used by investing activities.............. (68,191) (38,136) (29,871)
--------- -------- --------
Net increase (decrease) in cash and cash equivalents........ 3,167 (2,008) (1,459)
Cash and cash equivalents at beginning of period............ 2,822 4,830 6,289
--------- -------- --------
Cash and cash equivalents at end of period.................. $ 5,989 $ 2,822 $ 4,830
========= ======== ========
Supplemental cash flow disclosures:
Cash paid during the year for:
Interest................................................ $ 28,761 $ 28,592 $ 30,004
Income taxes............................................ 1,561 1,199 1,052
Supplemental schedule of non-cash investing and financing
activities:
Issuance of non-current note for accounts receivable...... 1,000
The Company purchased all of the capital stock of CFI
Industries, Inc. In conjunction with the acquisition,
liabilities were assumed as follows:
Fair value of assets acquired........................... $ 27,127
Cash paid for the capital stock......................... (18,423)
--------
Liabilities assumed.................................. $ 8,704
========
</TABLE>
The accompanying notes are an integral part of this statement.
29
<PAGE> 32
IVEX PACKAGING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
NOTE 1 -- ORGANIZATION:
Ivex Packaging Corporation (the "Company") owns 100% of the common stock of
IPC, Inc. ("IPC"). The Company is a holding company with no operations of its
own and IPC has no contractual obligations to distribute funds to the Company.
NOTE 2 -- SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
The preparation of financial statements in conformity with generally
accepted accounting principles ("GAAP") requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Nature of operations
IPC engages in the business of manufacturing plastic and paper packaging
products for different end-use packaging applications principally with customers
in North America and Europe. These applications include: (i) the integrated
production and conversion of oriented polystyrene sheet and other plastic sheet
into thermoformed packaging products and the sale of such sheet to other
packaging thermoformers; (ii) the manufacture and sale of coated and laminated
kraft paper and plastic materials and single face corrugated products as
protective materials in the packaging of industrial products; and (iii) the
manufacture and sale of unbleached kraft paper and various lightweight specialty
grades of paper for industrial and food service packaging applications.
Accordingly, the accompanying financial data are reported as a single segment.
Principles of consolidation
All the accounts of the wholly-owned subsidiaries of the Company have been
consolidated. All significant intercompany transactions and accounts have been
eliminated.
Revenue recognition
The Company recognizes revenue upon shipment of products.
Cash and cash equivalents
The Company considers all short-term deposits with initial maturities of
three months or less to be cash equivalents.
Accounts receivable
Accounts receivable at December 31, 1997 and 1996 consist of the following:
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
Accounts receivable........................................ $67,496 $53,718
Less -- Allowance for doubtful accounts.................... (2,544) (2,080)
------- -------
$64,952 $51,638
======= =======
</TABLE>
Accounts receivable from sales to customers are unsecured.
30
<PAGE> 33
IVEX PACKAGING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
Inventories
Inventories are stated at the lower of cost or market using the first-in,
first-out (FIFO) method to determine the cost of raw materials and finished
goods.
Inventories at December 31, 1997 and 1996 consist of the following:
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
Raw materials.............................................. $32,200 $26,483
Finished goods............................................. 27,506 22,540
------- -------
$59,706 $49,023
======= =======
</TABLE>
Property, plant and equipment
Depreciation of property, plant and equipment is computed using the
straight-line method over the estimated useful lives of the assets. Expenditures
for maintenance and repairs are charged to operations as incurred; major
improvements are capitalized.
Income taxes
The Company recognizes deferred tax assets and liabilities for the expected
future tax consequences of events that have been recognized in the Company's
financial statements or tax returns. In estimating future tax consequences, the
Company generally considers all expected future events other than enactments of
changes in the tax law or rates.
Employee benefit plans
IPC and its subsidiaries have defined contribution and defined benefit
plans covering substantially all employees. IPC's contributions to the defined
contribution plans are determined by matching employee contributions and by
discretionary contributions. Defined benefit plan contributions are determined
by independent actuaries and are generally funded in the minimum annual amount
required by the Employee Retirement Income Security Act of 1974.
IPC provides limited post retirement benefits to a select group of
employees. The current period cost and reserves related to these benefits are
not material.
Goodwill and other long-lived assets
Goodwill represents the excess purchase price over fair value of net assets
acquired and is being amortized using the straight-line method over a forty year
period. Accumulated amortization was $19,593 and $18,781 as of December 31, 1997
and 1996, respectively.
During 1996, the Company adopted SFAS No. 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of."
This statement requires that long-lived assets and certain identifiable
intangibles be reviewed for impairment whenever events or changes in
circumstances indicate that the carrying amount of assets may not be
recoverable. If the expected future cash flows (undiscounted and without
interest charges) is less than the carrying amount of the asset an impairment
loss is recognized. The effect of adopting this new accounting standard did not
have an impact on the financial position of the Company. Prior to 1996, an
impairment was recognized if it was probable that the present value of expected
future cash flows (discounted and with interest charges) was less than the
carrying amounts of goodwill and other long-lived assets.
31
<PAGE> 34
IVEX PACKAGING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
Earnings per share
During 1997, the Company adopted SFAS No. 128, "Earnings per share," which
requires the presentation of basic and diluted earnings per share. Basic
earnings (loss) per share excludes dilution and is computed by dividing income
(loss) by the weighted average number of common shares outstanding during each
period. Diluted earnings (loss) per share reflects the potential dilution that
could occur if common stock options are exercised and is computed by dividing
income (loss) by the weighted average number of common shares outstanding,
including common stock equivalent shares, issuable upon exercise of outstanding
stock options, to the extent that they would have a dilutive effect on the per
share amounts. During the periods presented, the Company's common stock
equivalents did not have a dilutive effect on the earnings per share amounts.
Foreign currency translation
The financial statements of the Company's foreign subsidiaries are
maintained in local currency which is the functional currency. The balance
sheets of these subsidiaries are translated at exchange rates in effect at the
balance sheet date and the related statements of operations are translated at
weighted average rates of exchange for the year. Translation adjustments
resulting from this process are reflected as a separate component of
stockholders' deficit. Gains and losses resulting from foreign exchange
transactions are recorded in the results from operations. Such amounts were not
significant in 1997, 1996 and 1995.
Fair value of financial instruments
The carrying amount of financial instruments approximates their estimated
fair value based on market prices for the same or similar type of financial
instruments.
Reclassifications
Certain amounts in the consolidated balance sheets for 1996 have been
reclassified to conform to the 1997 presentation.
NOTE 3 -- INITIAL PUBLIC OFFERING AND REFINANCING:
On October 6, 1997, the Company completed an initial public offering (the
"Offering") of 9,660,000 shares of common stock of the Company. In connection
with the Offering, the Company increased its authorized capital stock to
45,000,000 shares of common stock and effected a 9.65-for-1 stock split of its
outstanding common stock. All share and per share data have been adjusted to
give effect to the increased authorized capital stock and stock split. In the
Offering, the Company sold to the underwriters 7,960,000 previously unissued
shares of common stock at an initial public offering price of $16.00 per share
yielding net proceeds of $117,314. Acadia Partners, L.P. and certain related
investors ("Acadia") sold to the underwriters 1,700,000 previously issued and
outstanding shares of common stock owned by them. The Company did not receive
any of the proceeds from the sale of shares of common stock by Acadia.
The Offering is a component of a comprehensive refinancing strategy of the
Company to significantly lower its interest expense, strengthen its balance
sheet and provide financial flexibility to enable Ivex to continue to pursue
investment opportunities. As part of this refinancing, simultaneously with the
consummation of the Offering, the Company entered into a new credit facility
(the "New Credit Facility") that refinanced its existing credit facility. The
Company used the proceeds of the Offering together with borrowings under the New
Credit Facility to refinance substantially all of its existing indebtedness.
During the fourth quarter of 1997, the Company repurchased all of its 12 1/2%
Subordinated Notes due 2002 (the "12 1/2% Subordinated Notes") and repurchased
all of its 13 1/4% Discount Debentures due 2005 (the "13 1/4% Discount
Debentures") .
32
<PAGE> 35
IVEX PACKAGING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
In connection with the above repurchase of the 12 1/2% Subordinated Notes
and the 13 1/4% Discount Debentures, the Company paid premiums aggregating
$32,374. In connection with the refinancing, the Company incurred expense of
approximately $8,177 related to the write-off of previously capitalized debt
issuance costs and paid costs of $1,214 associated with the repurchase of
existing debt. See Note 12 -- Extraordinary loss from extinguishment of debt.
NOTE 4 -- MISCELLANEOUS OTHER ASSETS:
Miscellaneous other assets at December 31, 1997 and 1996 consist of the
following:
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
Deferred financing costs................................... $ 5,065 $13,416
Less -- Accumulated amortization........................... (516) (4,370)
------- -------
4,549 9,046
Other...................................................... 5,675 4,491
------- -------
$10,224 $13,537
======= =======
</TABLE>
Deferred financing costs are being amortized over the term of the related
debt.
NOTE 5 -- LONG-TERM DEBT:
Long-term debt comprised the following at December 31, 1997 and 1996:
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
Senior credit facility (A)............................... $296,875 $ 55,000
Industrial revenue bonds (B)............................. 39,736 38,293
12 1/2% Subordinated Notes, net of discount (C).......... 157,340
13 1/4% Discount Debentures, net of discount (D)......... 106,139
Other.................................................... 2,188 2,042
-------- --------
Total debt outstanding.............................. 338,799 358,814
Less -- Current installments of long-term debt........... (19,744) (5,921)
-------- --------
Long-term debt...................................... $319,055 $352,893
======== ========
</TABLE>
A. Senior Credit Facility -- On October 6, 1997, the Company refinanced its
existing credit facility with the New Credit Facility. The New Credit Facility
is comprised of a $150,000 Term A Loan, $150,000 Term B Loan and $175,000
revolving credit facility (up to $65,000 of which may be in the form of letters
of credit). The Term A Loan is required to be repaid in quarterly payments
totaling $3,750 in 1997, $16,250 in 1998, $21,250 in 1999, $25,000 in 2000,
$26,250 in 2001, $31,250 in 2002 and $26,250 in 2003 and the Term B Loan is
required to be repaid in quarterly payments totaling $1,500 per annum through
September 30, 2003 and installments of $35,250 on December 31, 2003, March 31,
2004, June 30, 2004 and September 30, 2004. The interest rate of the New Credit
Facility can be, at the election of the Company, based upon LIBOR or the
Adjusted Base Rate, as defined, and is subject to certain performance pricing
adjustments. The Term A Loan and loans under the revolving credit facility bear
interest at rates up to LIBOR plus 1.625% or the Adjusted Base Rate plus 0.625%.
At December 31, 1997, such rates are 1.375% plus LIBOR. The Term B Loan bears
interest at rates up to LIBOR plus 2.00% or the Adjusted Base Rate plus 1.0%. As
of December 31, 1997, such rates are 1.75% plus LIBOR. Borrowings are secured by
substantially all the assets of the Company and its subsidiaries. The revolving
credit facility and Term A Loan will terminate on September 30, 2003 and the
Term B Loan will terminate on September 30, 2004. Under the New Credit Facility,
the Company is required to maintain certain financial ratios and levels of net
worth, and future indebtedness and dividends are
33
<PAGE> 36
IVEX PACKAGING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
restricted, among other things. Limitations on dividends, advances and loans
between IPC and the Company, as defined in the New Credit Facility, restrict
substantially all of IPC's net assets.
During 1997, the Company entered into interest rate swap agreements with a
group of banks having notional amounts totaling $100,000 through November 5,
2002. These agreements effectively fix a portion of the Company's LIBOR base
rate at 6.12% during this period. Concurrently, the Company also entered into
interest rate collar agreements with a group of banks having notional amounts
totaling $100,000 through November 5, 2002. These collar agreements effectively
fix the LIBOR base rate at a maximum of 7.00% and allow for the Company to pay
the market LIBOR from a floor of 5.55% to the maximum rate. If LIBOR falls below
5.55%, the Company is required to pay the floor rate of 5.55%. During 1996, the
Company entered into interest rate swap agreements for the term loans for
notional amounts totaling $60,000 through January 19, 1999. Such agreements
effectively fix the Company's LIBOR base rate at 5.33% during this period.
Income or expense related to settlements under these agreements are recorded as
adjustments to interest expense in the Company's financial statements
B. Industrial Revenue Bonds -- Industrial Revenue Bonds requiring monthly
interest payments with average effective rates during 1997 and 1996 of 6.0% and
5.8%, respectively, are due in varying amounts and dates through 2009 and are
secured by certain assets of IPC. Letters of credit under the New Credit
Facility provide credit enhancement for the Industrial Revenue Bonds.
C. 12 1/2% Subordinated Notes -- IPC issued $158,000 of the 12 1/2%
Subordinated Notes on December 17, 1992. The 12 1/2% Subordinated Notes were
repurchased in connection with the initial public offering and refinancing
during the fourth quarter of 1997.
D. 13 1/4% Discount Debentures -- The Company issued $160,000 of the
13 1/4% Discount Debentures for an aggregate consideration of approximately
$65,000 on March 8, 1993. The 13 1/4% Company Discount Debentures were
repurchased in connection with the initial public offering and refinancing
during the fourth quarter of 1997.
Long-term debt principal maturities are as follows:
<TABLE>
<S> <C>
1998........................................................ $ 19,744
1999........................................................ 25,471
2000........................................................ 29,235
2001........................................................ 30,501
2002........................................................ 35,351
Thereafter.................................................. 198,497
--------
$338,799
========
</TABLE>
NOTE 6 -- INCOME TAXES:
The components of the income tax provision shown in the statement of
operations are as follows:
<TABLE>
<CAPTION>
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Current provision:
Federal.......................................... $ 415 $ 142
State............................................ $ 454 485 971
Foreign.......................................... 1,926
Deferred provision (benefit)....................... (26,059) 9,029
Benefit of net operating loss carryovers........... (2,374) (9,029)
-------- ------- ------
$(26,053) $ 900 $1,113
======== ======= ======
</TABLE>
34
<PAGE> 37
IVEX PACKAGING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
The provision recognized for income taxes differs from the amount
determined by applying the U.S. federal income tax rate of 35% due to the
following:
<TABLE>
<CAPTION>
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Income (loss) before income taxes and
extraordinary loss............................. $(35,593) $ 9,568 $(21,012)
======== ======= ========
Computed expected provision (benefit) at the
statutory rate................................. $(12,458) $ 3,349 $ (7,354)
Adjustments to the computed expected provision
(benefit) resulting from:
Reduction of valuation allowance............... (13,200)
Amortization of goodwill....................... 151 77 4,862
Net operating loss carryover adjustments....... (2,374) (3,077) 2,701
State income taxes, net........................ 713 417 610
Other, net..................................... 1,115 134 294
-------- ------- --------
$(26,053) $ 900 $ 1,113
======== ======= ========
</TABLE>
U.S. federal deferred tax liabilities (assets) are comprised of the
following:
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
Depreciation............................................. $ 34,323 $ 33,449
Basis differences of acquired assets..................... 3,176 3,969
-------- --------
Total deferred tax liabilities......................... 37,499 37,418
-------- --------
Environmental reserves................................... (320) (330)
Non-compete agreements................................... (263) (613)
Self insurance reserves.................................. (1,767) (1,979)
Original issue discount accretion........................ (14,394)
Management compensation accrual.......................... (6,524)
Other.................................................... (4,884) (2,727)
Net operating loss carryover............................. (62,688) (26,795)
-------- --------
Total deferred tax assets.............................. (76,446) (46,838)
Valuation allowance on deferred tax assets............. 2,300 18,190
-------- --------
Net deferred tax assets............................. (74,146) (28,648)
-------- --------
Deferred tax liability (asset)........................... $(36,647) $ 8,770
======== ========
</TABLE>
The Company's foreign and state deferred tax liabilities of $4,304 arise
primarily due to differences between book and tax depreciation.
At December 31, 1997, the Company has U.S. federal net operating loss
carryovers, including the net operating loss carryovers of IPC, for income tax
reporting purposes of approximately $179,108. Approximately $95,500 of these
losses will be limited in their annual usage to approximately $11,000 per year
under Section 382 of the Internal Revenue Code. These carryovers expire between
2005 and 2012. In the event of a change in ownership of the Company these net
operating loss carryovers may be limited. During 1997, the Company determined
that it was more likely than not that a portion of its net operating loss
carryovers would be realized primarily as the result of the Offering and
refinancing. See Note 3 -- Initial Public Offering and Refinancing. Accordingly,
the valuation allowance recorded against certain of the net operating loss
carryovers was reduced by $13,200.
35
<PAGE> 38
IVEX PACKAGING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
NOTE 7 -- EMPLOYEE BENEFIT PLANS:
Net periodic pension expense related to the defined benefit plans for the
years ended December 31, 1997, 1996 and 1995 is comprised of the following
components:
<TABLE>
<CAPTION>
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Service cost component -- benefits earned by
employees for services during this period........ $ 279 $ 290 $ 265
Interest cost component -- increase in projected
benefit obligation due to the passage of time.... 1,248 1,208 1,070
Return on plan assets, net of administrative
expense.......................................... (1,645) (1,317) (1,926)
Net amortization and deferral...................... 568 372 1,084
------- ------- -------
Net periodic pension cost.......................... $ 450 $ 553 $ 493
======= ======= =======
</TABLE>
Plan assets are invested in money market, equity and bond funds. The
following table sets forth the funded status of these plans as of the date of
the latest available actuarial valuation.
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
Actuarial present value of vested benefit obligation....... $16,558 $15,139
======= =======
Actuarial present value of accumulated benefit
obligation............................................... $16,871 $15,252
======= =======
Fair value of the plans' assets............................ $15,576 $14,202
Actuarial present value of projected benefit obligation.... 16,990 15,357
------- -------
Fair value of the plans' assets less than the projected
benefit obligation....................................... (1,414) (1,155)
Unrecognized net transition obligation..................... 333 398
Unrecognized prior service cost............................ 834 952
Unrecognized net loss...................................... 1,580 650
------- -------
Prepaid pension expense.................................... $ 1,333 $ 845
======= =======
</TABLE>
The following table sets forth significant assumptions utilized in the
actuarial valuation.
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
Discount rate used to adjust for the time value of
money................................................ 8.0% 8.5%
Expected rate of increase in employee compensation
costs................................................ 0%-5% 0%-5%
Expected long-term rate of return on assets............ 9.0% 9.0%
</TABLE>
The charge to operations under IPC's defined benefit and defined
contribution plans was approximately $3,814, $2,351 and $2,063 for the years
ended December 31, 1997, 1996 and 1995, respectively.
NOTE 8 -- STOCK OPTION AND INCENTIVE PLANS:
The 1997 Stock Incentive Plan
In connection with the initial public offering, the Company adopted the
Ivex Packaging Corporation 1997 Long-Term Stock Incentive Plan (the "1997 Stock
Incentive Plan") which authorizes the grant of stock awards, as defined, to
participants with respect to a maximum of 2,000,000 shares of the Company's
common stock.
Under the 1997 Stock Incentive Plan, the Company granted nonqualified
options to purchase 468,000 shares of its common stock at an exercise price of
$16.00 per share (fair market value on the date of grant).
36
<PAGE> 39
IVEX PACKAGING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
These options were granted on September 30, 1997, vest over a three year period
and expire in 2007. As of December 31, 1997, all of these options were
outstanding and none were exercisable.
The IPC Option Plan
IPC and the Company established a stock option plan (the "IPC Option Plan")
for certain key executives, effective January 1, 1993. Pursuant to the IPC
Option Plan, IPC irrevocably granted options to purchase 17,270 shares of its
common stock at an exercise price of $619.56 per share approximating fair market
value (the "IPC Options"). The IPC Option Plan also provided IPC and the
participants with certain rights to exchange options to purchase IPC's common
stock for options to purchase the Company's common stock.
On January 1, 1996, the IPC Option Plan was amended and extended to grant
an additional 6,908 options subject to vesting over three years from January 1,
1996, and such options were available to be earned based on operating income, as
defined. The provisions of the options were substantially the same as the
previously issued options.
On September 30, 1997, earned and vested IPC Options exercisable for 16,321
shares of IPC's common stock (comprising all of the IPC Options outstanding on
such date) were exchanged for 2,114,133 newly issued shares of the Company's
common stock and newly issued nonqualified stock options exercisable for 817,067
shares of the Company's common stock at an option price of $16.00 (fair market
value at the date of grant). Such options expire in 2007 and, as of December 31,
1997, all of these options were outstanding and exercisable. The Company
recorded a nonrecurring compensation charge in connection with the above
exchange. See Note 9 -- Special Charges.
SFAS 123 Disclosures
The Company adopted the disclosure-only provisions of SFAS No. 123,
"Accounting for Stock-Based Compensation." Under the provisions of such
statement, the Company is required to at least disclose the pro forma impact of
recognizing compensation expense for the fair value of those options granted
since January 1, 1996. Under the provisions of SFAS No. 123, the Company has not
recognized any compensation cost for stock option plans. On a pro forma basis,
had compensation cost for the Company's stock option plan been determined based
on the fair value at the grant date for awards during 1997 and 1996 consistent
with the provisions of SFAS No. 123, the Company's net income (loss) and
earnings (loss) per share would have been as follows:
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
Net income (loss).......................................... $(17,224) $8,548
======== ======
Earnings (loss) per share.................................. $(1.35) $0.83
======== ======
</TABLE>
During 1997, the Company's pro forma net income was determined under the
assumption that options granted in exchange for the IPC Options were fully
earned and vested and the options granted under the 1997 Stock Incentive Plan
were fully earned with equal vesting over the three years from September 30,
1997. The fair value of the options granted was estimated on the date earned
using the Black-Scholes option-pricing model and utilized the following
weighted-average assumptions for options earned in 1997: dividend yield of
0.00%; expected volatility of 21.25%; risk-free interest rate of 5.91%; and
expected lives of 3 years.
During 1996, the Company's pro forma net income was determined under the
assumption that all applicable options were earned when available with equal
vesting over the three years from January 1, 1996. The fair value of the options
granted was estimated on the date earned using the Black-Scholes option-pricing
37
<PAGE> 40
IVEX PACKAGING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
model and utilized the following weighted-average assumptions for options earned
in 1996: dividend yield of 0.00%; expected volatility of 22.63%; risk-free
interest rate of 5.28%; and expected lives of 3 years.
The Incentive Agreement
IPC also entered into a special incentive agreement (the "Incentive
Agreement") with certain key executives, effective January 1, 1993. The
Incentive Agreement provided for a special incentive payment of up to $2,250
upon the occurrence of certain events as defined in the Incentive Agreement.
During 1995, management earned all of the special incentive payment and,
accordingly, IPC recorded expense of $2,250. As of December 31, 1996, all
amounts to be paid pursuant to the terms of the Incentive Agreement have been
paid. See Note 9 -- Special Charges.
NOTE 9 -- SPECIAL CHARGES:
During the third quarter of 1997, the Company recorded a nonrecurring
non-cash compensation charge of $53,329 in connection with the Company's
conversion, pursuant to the IPC Option Plan, of the IPC Options into 2,114,133
newly issued shares of the Company's common stock and newly issued stock options
exercisable for 817,067 shares of the Company's common stock. The nonrecurring
compensation charge consists of (i) a non-cash compensation charge of $33,826
associated with the conversion of the IPC Options into shares of the Company's
common stock and (ii) a non-cash compensation charge of $19,503 associated with
the accrual of future Company payments to senior management of an amount which
(after taxes) will enable such management to pay interest on the loans made to
them by the Company. As of December 31, 1997, the balance of this management
compensation accrual is $18,641 (including the current portion of approximately
$2,000). Such loans were made to senior management pursuant to the IPC Option
Plan to enable them to pay their individual income taxes payable in connection
with the conversion of the IPC Options. These loans bear interest at the minimum
applicable federal rate at the date of funding (approximately 6.7%) and are
secured only by the newly issued shares of stock exchanged for the IPC options
and are nonrecourse to any other personal assets. As of December 31, 1997, the
Company had funded $11,135 of such loans.
During the fourth quarter of 1995, the Company recorded the following
special charges: $2,250 associated with the Incentive Agreement, $1,950 of costs
related to an attempted initial public equity offering and a reduction of land
value of $760 associated with a donation of land to the Village of Chagrin
Falls, Ohio.
NOTE 10 -- RELATED PARTY TRANSACTIONS:
The Company paid a management fee to Acadia of $400 in 1997, 1996 and 1995.
In addition, in connection with the Company's initial public offering, the
Company paid a one-time $500 fee to Acadia and certain related investors.
Pursuant to a consulting agreement, Nicolaus Paper Inc. ("Nicolaus") pays
IPC a performance-based consulting fee in an annual amount between $250 and $500
for certain services rendered to Nicolaus by IPC. During 1997, the Company
recorded consulting fee income of $350 related to this agreement. Additionally,
during 1997 the Company purchased $1,867 of paper at market prices from
Nicolaus. Certain executive officers and directors of the Company together with
certain members of management of Oak Hill Partners, Inc. (Acadia's investment
advisor) own substantially all of the outstanding common stock of Nicolaus.
NOTE 11 -- COMMITMENTS:
IPC leases certain of its facilities and equipment under non-cancelable
operating leases, some of which contain renewal options, escalation clauses and
requirements that IPC pay taxes, insurance and maintenance
38
<PAGE> 41
IVEX PACKAGING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
costs. Approximate future minimum annual rental payments under non-cancelable
operating lease agreements are as follows:
<TABLE>
<S> <C>
1998........................................................ $4,598
1999........................................................ 4,268
2000........................................................ 3,306
2001........................................................ 8,336
2002........................................................ 793
Thereafter.................................................. 300
</TABLE>
Rent expense under operating leases included in the accompanying statement
of operations aggregated approximately $6,832, $4,954 and $4,339 during 1997,
1996 and 1995, respectively.
NOTE 12 -- EXTRAORDINARY LOSS FROM EXTINGUISHMENT OF DEBT:
An extraordinary loss of $26,730 (net of tax benefit of $15,035) was
recorded in the consolidated statements of operations for the year ended
December 31, 1997. This loss consists of $32,374 of premiums paid to retire the
13 1/4% Discount Debentures and the 12 1/2% Subordinated Notes, the write-off of
$8,177 of deferred financing costs related to the retired debt and the
refinancing of the Company's existing credit facility, and $1,214 of expenses
incurred to retire the debt.
Deferred financing costs of $2,359 written off in connection with the
refinancing of IPC's senior credit facility are presented as an extraordinary
item in the consolidated statement of operations for the year ended December 31,
1995.
NOTE 13 -- ACQUISITIONS:
On January 17, 1997, the Company purchased substantially all of the assets,
excluding accounts receivable, of the oriented polystyrene ("OPS") business of
Viskase Limited located in Sedgefield, England for $11,907. On February 21,
1997, the Company purchased all of the outstanding common stock of M&R Plastics,
Inc. ("M&R") located in Laval, Quebec for $18,651, including the repayment of
certain indebtedness of M&R and related acquisition fees and expenses. The OPS
business of Viskase and M&R are integrated producers and converters of OPS sheet
with primary applications in food packaging markets. On August 8, 1997, the
Company purchased all of the outstanding common stock of AVPEX International
Corporation ("AVP") located in Newcastle, Canada for $8,103, including the
repayment of certain indebtedness of AVP and related fees and expenses. AVP
extrudes and converts OPS film with applications primarily in windows for
envelopes and folding cartons. On November 3, 1997, the Company purchased all of
the outstanding common stock of Crystal Thermoplastics, Inc. ("Crystal") of
Cumberland, Rhode Island for $4,067 (plus assumed debt of $1,468). Crystal
manufactures thermoformed plastic packaging for the medical and electronics
markets. The purchase price of M&R, AVP and Crystal may be increased if certain
performance targets are met over the next one to three years.
On August 16, 1996, IPC acquired CFI Industries, Inc. ("CFI" or
"Plastofilm") for an aggregate purchase price of $18,423, including the
repayment of certain indebtedness of CFI and related acquisition fees and
expenses. Through its subsidiary, Plastofilm Industries, CFI is a fully
integrated custom thermoformer of plastic packaging products for the medical,
electronic and personal care industries.
The acquired businesses were financed through revolving credit borrowings
under the Company's senior credit facility. All of these acquisitions were
accounted for as a purchase; accordingly, the purchase price was allocated to
the specific assets acquired and liabilities assumed based upon their fair value
at date of acquisition. The Company's consolidated financial statements for 1997
and 1996 include the results of operations and cash flows of these acquisitions
from the purchase date. Adjusting for the full year effect of the
39
<PAGE> 42
IVEX PACKAGING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
acquisitions, unaudited pro forma net sales would have been approximately
$18,000 and $81,000 higher than the Company's reported net sales in 1997 and
1996, respectively. Unaudited pro forma net income (loss) before extraordinary
loss and net income (loss) are not materially different than the Company's
reported results. The unaudited pro forma results of operations were prepared as
if these acquisitions had occurred as of the beginning of 1996, after giving
effect for certain adjustments. These unaudited pro forma results were prepared
for comparative purposes only and do not purport to be indicative of what would
have occurred had the acquisition been made as of the beginning of the year, or
of results which may occur in the future.
NOTE 14 -- FOREIGN OPERATIONS:
The Company has operations in the United States, Canada and the United
Kingdom. The following table allocates net sales, operating income and
identifiable assets between U.S. operations and non U.S. operations.
<TABLE>
<CAPTION>
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Net sales:
United States............................................. $469,323 $432,242 $431,356
Foreign subsidiaries...................................... 69,152 19,565 20,213
-------- -------- --------
$538,475 $451,807 $451,569
======== ======== ========
Operating income:
United States............................................. $ 1,289 $ 51,264 $ 21,395
Foreign subsidiaries...................................... 5,007 1,036 863
-------- -------- --------
$ 6,296 $ 52,300 $ 22,258
======== ======== ========
Identifiable assets:
United States............................................. $356,589 $302,755 $284,367
Foreign subsidiaries...................................... 71,134 13,146 10,544
-------- -------- --------
$427,723 $315,901 $294,911
======== ======== ========
</TABLE>
NOTE 15 -- GOODWILL:
During 1995, a portion of the Industrial Packaging businesses (such portion
having been acquired primarily in the 1989 acquisition of L&CP Corporation) had
experienced less sales volume growth and lower profitability than anticipated.
As a consequence, and in response to dynamic market conditions, during the
second quarter of 1995 the Company realigned the management of these businesses
based on three distinct operating units -- masking, graphics and other
protective products.
Consistent with its accounting policy for goodwill and long-lived assets at
that time, the Company made a reassessment of its remaining goodwill, all of
which pertained to the above operating units, during the second quarter of 1995
and revised its projections to more accurately reflect expected future results.
The Company segregated the assets and cash flows of these three operating units
to the lowest level for which cash flows are identifiable and independent of one
another at that time. In order to evaluate its goodwill impairment, the Company
projected the cash flows allocable to these businesses over the estimated
remaining goodwill amortization periods of approximately 34 years. The Company
then discounted such cash flows at a rate of 16 1/2% which it believed was
commensurate with the risk involved. The Company selected a pre-tax weighted
average cost of capital (reflective of comparable companies within its industry)
for purposes of discounting its cash flows. The discounted cash flows of each
business were then compared to the sum of the business groups' working capital
and net book value of fixed assets. Impairment of goodwill was then measured by
comparing the remaining discounted cash flow to the net book value of the
business groups' goodwill. Upon comparison, the discounted cash flows for the
graphics and other protective products businesses were insufficient to recover
40
<PAGE> 43
IVEX PACKAGING CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- CONTINUED
each of such businesses' goodwill. Accordingly, the Company recorded an
impairment of $13,471 during the second quarter of 1995.
The 1995 revised projections for this portion of the Company's business
were extrapolated from market conditions and competitive pressures existing at
that time and were based upon, among other things, the assumptions that growth
of operating income before depreciation and amortization would range from 2-6%
per year through 1999, from 1-3% per year from 2000-2010 and 0% per year from
2011-2029. The growth assumptions for the graphics and other protective products
businesses were lower than the masking business. The projections assumed that
capital expenditures would generally be consistent with depreciation over the
long term. The Company believes that its revised projections based on the June
1995 existing historic financial trends and market conditions were its best
estimate at that time of its future performance and that the Company's
performance at such projected levels will not substantially detract from the
Company's future earnings. However, there can be no assurances that such
estimates will be indicative of future results, which ultimately may be less
than or greater than these estimates.
NOTE 16 -- UNAUDITED QUARTERLY RESULTS:
Summarized unaudited quarterly data for the years ended December 31, 1997
and 1996 are as follows:
<TABLE>
<CAPTION>
QUARTER ENDED
---------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
1997 1997 1997 1997(A)
--------- -------- ------------- ------------
<S> <C> <C> <C> <C>
Net sales....................................... $127,864 $136,170 $137,448 $136,993
Gross Profit.................................... 26,370 29,991 32,202 31,097
Income (loss) from operations................... 11,780 14,602 (36,710) 16,624
Income (loss) before extraordinary loss......... 324 2,363 (17,890) 5,663
Net income (loss)............................... 324 2,363 (17,890) (21,067)
Earnings (loss) per share: (b)
Income (loss) before extraordinary loss....... $0.03 $0.23 $(1.72) $0.28
Net income (loss)............................. $0.03 $0.23 $(1.72) $(1.06)
</TABLE>
<TABLE>
<CAPTION>
QUARTER ENDED
---------------------------------------------------
MARCH 31, JUNE 30, SEPTEMBER 30, DECEMBER 31,
1996 1996 1996 1996
--------- -------- ------------- ------------
<S> <C> <C> <C> <C>
Net sales....................................... $104,216 $106,227 $118,652 $122,712
Gross Profit.................................... 21,452 24,323 26,589 28,019
Income from operations.......................... 10,194 13,191 14,194 14,721
Net income (loss)............................... (791) 2,515 3,289 3,655
Earnings (loss) per share:
Net income (loss)............................. $(0.07) $0.24 $0.32 $0.35
</TABLE>
- -------------------------
(a) Reflects the extraordinary loss on extinguishment of debt in the quarter
ended December 31, 1997 (see Note 12).
(b) As a result of the initial public offering in the quarter ended December 31,
1997, the sum of the earnings per share for the four quarters of 1997, which
is based on weighted average shares outstanding during each quarter, does
not equal earnings per share for the year.
41
<PAGE> 44
IVEX PACKAGING CORPORATION
SCHEDULE I -- CONDENSED FINANCIAL INFORMATION
(PARENT COMPANY ONLY)
BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1997 1996
---- ----
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents................................. $ 9 $ 27
--------- ---------
Total current assets................................... 9 27
Investment in subsidiary.................................... 73,418 73,418
Due from IPC, Inc........................................... 13,694
Debt issue costs, net....................................... 2,419
--------- ---------
Total assets........................................... $ 87,121 $ 75,864
========= =========
LIABILITIES AND STOCKHOLDERS' DEFICIT
Long-term debt.............................................. $ $ 106,139
--------- ---------
Stockholders' equity (deficit):
Common stock, $.01 par value -- 45,000,000 shares
authorized; 20,426,666 and 10,352,533 shares issued and
outstanding............................................ 204 11
Paid in capital in excess of par value.................... 328,322 177,375
Accumulated deficit....................................... (241,405) (207,661)
--------- ---------
Total stockholders' equity (deficit)................... 87,121 (30,275)
--------- ---------
Total liabilities and stockholders' equity (deficit)...... $ 87,121 $ 75,864
========= =========
</TABLE>
See Notes to Consolidated Financial Statements in Item 8.
42
<PAGE> 45
IVEX PACKAGING CORPORATION
SCHEDULE I -- CONDENSED FINANCIAL INFORMATION
(PARENT COMPANY ONLY)
STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------------
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Interest expense............................................ $ 11,447 $ 13,075 $ 11,508
-------- -------- --------
Loss before extraordinary loss.............................. (11,447) (13,075) (11,508)
Extraordinary loss.......................................... (22,297)
-------- -------- --------
Net loss.................................................... $(33,744) $(13,075) $(11,508)
======== ======== ========
</TABLE>
See Notes to Consolidated Financial Statements in Item 8.
43
<PAGE> 46
IVEX PACKAGING CORPORATION
SCHEDULE I -- CONDENSED FINANCIAL INFORMATION
(PARENT COMPANY ONLY)
STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIT)
(DOLLARS IN THOUSANDS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
COMMON STOCK PAID IN CAPITAL STOCKHOLDERS'
-------------------- IN EXCESS OF ACCUMULATED EQUITY
SHARES AMOUNT PAR VALUE DEFICIT (DEFICIT)
------ ------ --------------- ----------- -------------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1994......... 1,072,246 $ 11 $177,375 $(183,078) $ (5,692)
Net loss........................... (11,508) (11,508)
---------- ---- -------- --------- --------
Balance at December 31, 1995......... 1,072,246 11 177,375 (194,586) (17,200)
Net loss........................... (13,075) (13,075)
---------- ---- -------- --------- --------
Balance at December 31, 1996......... 1,072,246 11 177,375 (207,661) (30,275)
Issuance of management shares...... 218,968 2 33,824 33,826
Common stock split................. 11,175,452 112 (112)
Issuance of common stock........... 7,960,000 79 117,235 117,314
Net loss........................... (33,744) (33,744)
---------- ---- -------- --------- --------
Balance at December 31, 1997......... 20,426,666 $204 $328,322 $(241,405) $ 87,121
========== ==== ======== ========= ========
</TABLE>
See Notes to Consolidated Financial Statements in Item 8.
44
<PAGE> 47
IVEX PACKAGING CORPORATION
SCHEDULE I -- CONDENSED FINANCIAL INFORMATION
(PARENT COMPANY ONLY)
STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
---------------------------------
1997 1996 1997
---- ---- ----
<S> <C> <C> <C>
Cash flows used by operating activities:
Net loss.................................................. $ (33,744) $(13,075) $(11,508)
Adjustments to reconcile net loss to net cash used by
operating activities:
Amortization of debt issue costs.......................... 207 264 264
Non-cash interest......................................... 11,223 12,801 11,232
Extraordinary loss........................................ 22,297
--------- -------- --------
(17) (10) (12)
Cash flows from financing activities:
Proceeds from issuance of stock........................... 117,314
Redemption of 13 1/4% discount debentures................. (117,363)
Debt redemption costs..................................... (20,084)
Transfer from IPC, Inc.................................... 20,132
--------- -------- --------
Net cash used by financing activities................ (1)
--------- -------- --------
Net decrease in cash and cash equivalents................. (18) (10) (12)
Cash and cash equivalents at beginning of period.......... 27 37 49
--------- -------- --------
Cash and cash equivalents at end of period................ $ 9 $ 27 $ 37
========= ======== ========
</TABLE>
See Notes to Consolidated Financial Statements in Item 8.
45
<PAGE> 48
IVEX PACKAGING CORPORATION
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
BEGINNING ENDING
DESCRIPTION BALANCE ADDITIONS DEDUCTIONS BALANCE
----------- --------- --------- ---------- -------
<S> <C> <C> <C> <C>
Accounts receivable -- allowance for doubtful
accounts:
1995............................................. $ 1,445 $ 943 $ (376)(1) $ 2,012
1996............................................. 2,012 281 (213)(1) 2,080
1997............................................. 2,080 1,050 (586)(1) 2,544
Income Taxes -- valuation allowance:
1995............................................. 19,872 4,028 -- 23,900
1996............................................. 23,900 -- (5,710) 18,190
1997............................................. 18,190 -- (15,890)(2) 2,300
</TABLE>
- -------------------------
(1) Accounts charged off, less recoveries.
(2) Reflects the utilization of net operating loss carryovers for a portion of
1997 and the reversal of $13,200 of valuation allowance during the third
quarter of 1997.
46
<PAGE> 49
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF DOCUMENT PAGE
- ------- ----------------------- ------------
<C> <S> <C> <C>
3.1 -- Amended and Restated Certificate of Incorporation of Ivex
Packaging Corporation ("Holdings" or "Ivex")
3.2 -- Amended By-Laws of Ivex
3.3 -- Form of Certificate of Elimination of Senior Cumulative
Exchangeable Preferred Stock of Ivex
4.1 -- Form of Registration Rights Agreement, dated as of September
30, 1997, among Ivex, Acadia Partners, L.P., and the other
stockholders party thereto
*4.2 -- Amended and Restated Credit Agreement, dated as of October
2, 1997, by and among IPC, Ivex, NationsBank, N.A. and
Bankers Trust, as agents, and the guarantees and lenders
identified on the signature pages thereto
*4.3 -- Form of Amended and Restated Pledge Agreement, dated as of
October 2, 1997, among Ivex, IPC, certain of IPC's
subsidiaries and NationsBank, N.A., and Bankers Trust
Company, as agents
*4.4 -- Form of Amended and Restated Security Agreement, dated as of
October 2, 1997, among Ivex, IPC, and certain of IPC's
subsidiaries and NationsBank, N.A., and Bankers Trust
Company, as agents
*4.5 -- Form of Amended and Restated Mortgage and Security Agreement
10.1 -- Form of Ivex Senior Management Annual Incentive Plan(1)
10.2 -- Form of Executive Deferred Compensation Plan(1)
10.3 -- Form of Trust Agreement, dated October 17, 1996, between
IPC, Inc. and the trustee thereof relating to executive
deferred compensation(1)
10.4 -- Form of IPC Stock Option and Purchase Agreement, dated as of
January 1, 1993, among IPC, Ivex, Acadia Partners, L.P. and
each of certain senior managers of IPC with the Ivex Stock
Option and Purchase Agreement attached thereto(1)
10.5 -- Form of Amended and Restated IPC Stock Option and Purchase
Agreement and Amended and Restated Ivex Stock Option and
Purchase Agreement, each dated as of January 1, 1996(1)
10.6 -- IPC Retirement Plan and Trust, as amended and Restated May
1, 1992(1)
10.7 -- Amended and Restated Employment Agreement, dated as of May
30, 1996, between George V. Bayly and IPC(1)
10.8 -- Employment Agreement, dated as of December 31, 1992, between
IPC and Frank V. Tannura(1)
10.9 -- Amendment No. 1, dated as of September 11, 1995, to the
Employment Agreement, dated as of December 31, 1992, between
IPC and Frank V. Tannura(1)
10.10 -- Amendment No. 2 to Employment Agreement, dated May 30, 1996,
between IPC and Frank V. Tannura(1)
10.11 -- Form of Severance Agreement between the Company and certain
named executive officers(1)
10.12 -- Form of Ivex Packaging Corporation 1997 Long-Term Stock
Incentive Plan(1)
*10.13 -- Form of Senior Management's Promissory Note to IPC(1)
10.14 -- Loan Agreement, dated as of December 1, 1987, between the
County of Kankakee, Illinois and Ivex of Delaware, Inc.
(n/k/a IPC, Inc.)
</TABLE>
<PAGE> 50
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF DOCUMENT PAGE
- ------- ----------------------- ------------
<C> <S> <C> <C>
10.15 -- Loan Agreement, dated as of June 1, 1988, between the
Development Authority of Morgan County and Ivex of Delaware,
Inc. (n/k/a IPC, Inc.)
10.16 -- Loan Agreement, dated as of October 1, 1987, between the
County of Will, Illinois and LPX, Inc. (n/k/a IPC, Inc.)
10.17 -- Loan Agreement, dated as of April 1, 1988, between the
Illinois Development Finance Authority and Ivex of Delaware,
Inc. (n/k/a IPC, Inc.)
10.18 -- Indenture of Trust, dated as of March 1, 1989, between
Marine Midland Bank, N.A. and Ivex of Delaware, Inc. (n/k/a
IPC, Inc.)
10.19 -- Loan Agreement, dated November 1, 1985, between the Village
of Bridgeview, Illinois and L&CP Corporation (n/k/a IPC,
Inc.)
10.20 -- Loan Agreement, dated as of June 1, 1988, between City of
Troy, Ohio and L&CP Corporation (n/k/a IPC, Inc.)
10.21 -- Lease Agreement, dated as of December 5, 1996, between State
Street Bank and Trust Company and IPC
10.22 -- Lease, dated as of October 4, 1988, between Seymour C.
Graham and Kama Corporation (n/k/a IPC, Inc)
10.23 -- Amendment to Lease, dated as of December 20, 1988, between
Seymour C. Graham and Kama Corporation (n/k/a IPC, Inc.)
10.24 -- Lease, dated June 20, 1995, between Howard H. Gelb and
Eunice Gelb and Kama Corporation (n/k/a IPC, Inc.)
*10.25 -- Industrial Building Lease, dated January 8, 1998, between
Arapahoe Properties, L.L.C. and Packaging Products, Inc.
10.26 -- Lease, dated as of September 11, 1996, by and between Joseph
P. Bennett and Trio Products, Inc.
10.27 -- Installment Sales Agreement, dated as of December 12, 1990,
between Grove City Industrial Development Corporation and
Ivex Converted Products Corporation (n/k/a IPC, Inc.)
10.28 -- Tax Sharing Agreement, dated as of December 17, 1992,
between Ivex and IPC and certain of IPC's subsidiaries
10.29 -- Agreement and Plan of Merger, dated as of May 17, 1996 (as
amended), among IPC, CFI Industries, Inc. and Equity
Partners
10.30 -- Form of Voting Agreement among Acadia, certain related
investors and certain members of Ivex Management
21.1 -- Subsidiaries of Ivex
*23.1 -- Consent of Price Waterhouse LLP
27 -- Financial Data Schedule, which is submitted electronically
to the Securities and Exchange Commission for information
only and not filed.
</TABLE>
- -------------------------
(1) Management contract or compensatory plan or arrangement required to be
filed as an Exhibit to this Form 10-K pursuant to Item 14(c) of this
report.
* Filed herewith.
* * * * *
<PAGE> 1
EXHIBIT 4.2
AMENDED AND RESTATED
CREDIT AGREEMENT
among
IPC, INC.
as Borrower,
AND
IVEX PACKAGING CORPORATION
AND
THE DOMESTIC SUBSIDIARIES OF IPC, INC.
as Guarantors,
AND
THE LENDERS IDENTIFIED HEREIN,
AND
NATIONSBANK, N.A.
as Administrative Agent
AND
BANKERS TRUST COMPANY
as Documentation Agent
DATED AS OF OCTOBER 2, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Computation of Time Periods and Other Definitional Provisions. . . . . . . . . . . . . . . . . 25
1.3 Accounting Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2 CREDIT FACILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.1 Revolving Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.2 Letter of Credit Subfacility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.3 Tranche A Term Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.4 Tranche B Term Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
2.5 Continuations and Conversions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2.6 Minimum Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT . . . . . . . . . . . . . . . . . . 39
3.1 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.2 Place and Manner of Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
3.3 Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
3.4 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
3.5 Payment in full at Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
3.6 Computations of Interest and Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
3.7 Pro Rata Treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
3.8 Sharing of Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
3.9 Capital Adequacy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
3.10 Inability To Determine Interest Rate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
3.11 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
3.12 Requirements of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
3.13 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
3.14 Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 4 GUARANTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
4.1 Guaranty of Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
4.2 Obligations Unconditional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
4.3 Modifications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4.4 Waiver of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
4.5 Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.6 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.7 Limitation of Guaranty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
4.8 Rights of Contribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
</TABLE>
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<TABLE>
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SECTION 5 CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.1 Closing Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.2 Conditions to All Extensions of Credit. . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 6 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.1 Organization and Good Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.2 Due Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.3 No Conflicts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.4 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.5 Enforceable Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.6 Financial Condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.7 No Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.8 Ownership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.9 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.10 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.11 Material Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.12 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.13 Compliance with Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.14 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.15 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
6.16 Use of Proceeds; Margin Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.17 Government Regulation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.18 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
6.19 Intellectual Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.20 Solvency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.21 Investments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.22 Location of Collateral. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
6.23 No Financing of Corporate Takeovers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
6.24 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
6.25 Licenses, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
6.26 No Burdensome Restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
6.27 Collateral Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 7 AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
7.1 Information Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
7.2 Financial Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
7.3 Preservation of Existence and Franchises. . . . . . . . . . . . . . . . . . . . . . . . . . . 77
7.4 Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
7.5 Compliance with Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
7.6 Payment of Taxes and Other Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
7.7 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
7.8 Maintenance of Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
7.9 Performance of Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
7.10 Collateral. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
7.11 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
</TABLE>
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<TABLE>
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7.12 Audits/Inspections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
7.13 Additional Credit Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
7.14 Interest Rate Protection Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
7.15 Subordinated Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
7.16 Further Assurances Regarding Landlord Waivers. . . . . . . . . . . . . . . . . . . . . . . . 81
7.17 Information Update. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 8 NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
8.1 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
8.2 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
8.3 Nature of Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
8.4 Consolidation and Merger. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
8.5 Sale or Lease of Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
8.6 Sale Leasebacks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
8.7 Advances, Acquisitions, Investments and Loans. . . . . . . . . . . . . . . . . . . . . . . . . 84
8.8 Restricted Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
8.9 Transactions with Affiliates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
8.10 Ownership of Borrower. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
8.11 Fiscal Year; Organizational Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
8.12 Subordinated Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
8.13 No Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
8.14 Negative Pledges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
8.15 Limitation on Foreign Operations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
8.16 Margin Regulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 9 EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.1 Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
9.2 Acceleration; Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
9.3 Allocation of Payments After Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 10 AGENCY PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
10.1 Appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
10.2 Delegation of Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
10.3 Exculpatory Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
10.4 Reliance on Communications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
10.5 Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
10.6 Non-Reliance on Agents and Other Lenders. . . . . . . . . . . . . . . . . . . . . . . . . . . 95
10.7 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
10.8 Agents in Their Individual Capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
10.9 Successor Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 11 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
11.1 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
11.2 Right of Set-Off. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
11.3 Benefit of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
</TABLE>
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11.4 No Waiver; Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
11.5 Payment of Expenses; Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
11.6 Amendments, Waivers and Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
11.7 Counterparts/Telecopy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
11.8 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
11.9 Defaulting Lender. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
11.10 Survival of Indemnification and Representations and Warranties. . . . . . . . . . . . . . 103
11.11 Governing Law; Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
11.12 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
11.13 Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
11.14 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
11.15 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
11.16 Entirety. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
11.17 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
11.18 Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
</TABLE>
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<PAGE> 6
SCHEDULES
Schedule 1.1(a) Commitment Percentages
Schedule 1.1(b) Existing Letters of Credit
Schedule 5.1(e)(i) Mortgaged Properties
Schedule 5.1(e)(ii) Leasehold Mortgaged Properties
Schedule 6.9 Indebtedness
Schedule 6.15 Subsidiaries
Schedule 6.18 Environmental Matters
Schedule 6.19 Intellectual Property
Schedule 6.22(a) Real Property Locations
Schedule 6.22(b) Personal Property Locations
Schedule 6.22(c) Chief Executive Offices
Schedule 7.7 Insurance
Schedule 7.16 Other Leasehold Properties
Schedule 8.2 Liens
Schedule 8.7 Investments
Schedule 8.9 Affiliate Transactions
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.1(b) Form of Notice of Borrowing
Exhibit 2.1(e) Form of Revolving Note
Exhibit 2.3(d) Form of Tranche A Term Note
Exhibit 2.4(d) Form of New Commitment Agreement
Exhibit 2.4(e) Form of Tranche B Term Note
Exhibit 2.5 Form of Notice of Continuation/Conversion
Exhibit 7.1(d) Form of Officer's Certificate
Exhibit 7.13 Form of Joinder Agreement
Exhibit 11.3 Form of Assignment Agreement
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<PAGE> 7
AMENDED AND RESTATED
CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT (this "Credit Agreement"),
is entered into as of October 2, 1997 among IPC, INC., a Delaware corporation
("Borrower"), IVEX PACKAGING CORPORATION, a Delaware corporation ("Holdings"),
each of Borrower's Domestic Subsidiaries (the Borrower's Domestic Subsidiaries,
together with Holdings, individually a "Guarantor" and collectively the
"Guarantors"), the Lenders (as defined herein), NATIONSBANK, N.A., as
Administrative Agent for the Lenders and BANKERS TRUST COMPANY, as
Documentation Agent for the Lenders.
RECITALS
WHEREAS, the Borrower, the Guarantors, the lenders party thereto and
NationsBank, N.A., as agent entered into that certain Amended and Restated
Credit Agreement dated as of March 24, 1997 which provided a $205 million
credit facility to the Borrower (the "Prior Credit Agreement"). The credit
facility provided pursuant to the Prior Credit Agreement replaced and
refinanced the credit facilities provided to the Borrower by NationsBank, N.A.,
as agent and certain other lenders pursuant to a credit agreement dated as of
December 7, 1995.
WHEREAS, the Borrower and the Guarantors have requested the Lenders to
provide a new amended and restated senior secured credit facility to replace
and refinance the credit facility provided pursuant to the Prior Credit
Agreement. Specifically, the Borrower and the Guarantors have requested that,
among other things, this new amended and restated senior secured credit
facility (i) provide up to $475 million of indebtedness to the Borrower and
(ii) extend the final maturity of the credit facilities provided under the
Prior Credit Agreement.
WHEREAS, the Lenders party hereto have agreed to make the requested
amended and restated senior secured credit facility available to the Borrower
on the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINITIONS.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
<PAGE> 8
"Acadia" means Acadia Partners, L.P., a Delaware limited
partnership.
"Additional Credit Party" means each Person that becomes a
Guarantor after the Closing Date, as provided in Section 7.13.
"Adjusted Base Rate" means the Base Rate plus the Applicable
Percentage.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
Applicable Percentage.
"Administrative Agent" means NationsBank, N.A. (or any
successor thereto) or any successor administrative agent appointed
pursuant to Section 10.9.
"Administrative Agent Fee Letter" means that certain letter
agreement dated as of August 5, 1997 between the Administrative Agent
and the Borrower, as it may be amended, modified, supplemented or
replaced from time to time.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited
to all directors and officers of such Person), controlled by or under
direct or indirect common control with such Person. A Person shall be
deemed to control a Person if such Person possesses, directly or
indirectly, the power (i) to vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or
(ii) to direct or cause direction of the management and policies of
such Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agency Services Address" means NationsBank, N.A.,
NC1-001-15-04, 101 South Tryon Street, Charlotte, North Carolina
28255, Attn: Agency Services, or such other address as may be
identified by written notice from the Administrative Agent to the
Borrower.
"Agents" means the Administrative Agent, the Documentation
Agent and the Collateral Agent and any successors and assigns in such
capacity.
"Agents Fee Letter" means that certain letter agreement dated
as of August 5, 1997 among the Agents and the Borrower, as it may be
amended, modified, supplemented or replaced from time to time.
"Applicable Percentage" means the appropriate applicable
percentages corresponding to the Leverage Ratio in effect as of the
most recent Calculation Date as shown below:
- 2 -
<PAGE> 9
<TABLE>
<CAPTION>
===========================================================================================================================
Applicable Applicable
Percentage Percentage Applicable Applicable
Pricing For For Base Applicable Applicable Percentage Percentage
Level Leverage Ratio Eurodollar Rate Loans Percentage Percentage for for Base
Loans that that are for Letter For Eurodollar Rate Loans
are Revolving Revolving of Credit Commitment Loans that that are
Loans or Loans or Fees Fees are Tranche Tranche B
Tranche A Tranche A B Term Term Loans
Term Loans Term Loans Loans
===========================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------
I < 2.75 to 1.0 0.625% 0% 0.625% 0.1875 % 1.500% 0.500%
-
- ---------------------------------------------------------------------------------------------------------------------------
II < 3.5 to 1.0 0.875% 0% 0.875% 0.250% 1.500% 0.750%
-
but > 2.75 to 1.0
- ---------------------------------------------------------------------------------------------------------------------------
III < 4.0 to 1.0 1.125% 0.125% 1.125% 0.250% 1.750% 0.750%
-
but > 3.5 to 1.0
- ---------------------------------------------------------------------------------------------------------------------------
IV < 4.5 to 1.0 but 1.375% 0.375% 1.375% 0.250% 1.750% 0.750%
-
> 4.0 to 1.0
- ---------------------------------------------------------------------------------------------------------------------------
V > 4.5 to 1.0 1.625% 0.625 % 1.625% 0.375% 2.000% 1.000%
===========================================================================================================================
</TABLE>
The Applicable Percentage for Base Rate Loans, Eurodollar
Loans, the Letter of Credit Fees and the Commitment Fees shall, in
each case, be determined and adjusted quarterly on the date (each a
"Calculation Date") five Business Days after the date by which the
Borrower is required to provide the officer's certificate in
accordance with the provisions of Section 7.1(d); provided that the
initial Applicable Percentage for Base Rate Loans, Eurodollar Loans,
the Letter of Credit Fees and the Commitment Fees shall be based on
Pricing Level IV (as shown above) and shall remain at Pricing Level IV
until the Calculation Date occurring immediately after March 31, 1998
(unless on any Calculation Date occurring at any time prior to March
31, 1998 the then current Leverage Ratio is greater than 4.5 to 1.0,
in which case the Applicable Percentage for Base Rate Loans,
Eurodollar Loans, Letter of Credit Fees and Commitment Fees shall be
based on Pricing Level V until the next Calculation Date) and,
thereafter, the Pricing Level shall be determined by the then current
Leverage Ratio; and provided further that if the Borrower fails to
provide the officer's certificate required by Section 7.1(d) on or
before the most recent Calculation Date, the Applicable Percentage for
Base Rate Loans, Eurodollar Loans, the Letter of Credit Fees and the
Commitment Fees from such Calculation Date shall be based on Pricing
Level V until such time that an appropriate officer's certificate is
provided whereupon the Pricing Level shall be determined by the then
current Leverage Ratio. Each Applicable Percentage shall be effective
from one Calculation Date until the next Calculation Date. Any
adjustment in the Applicable Percentage shall be applicable to all
existing Loans and Letters of Credit as well as any new Loans made or
Letters of Credit issued. The Borrower shall promptly deliver to the
Administrative Agent at the address set forth on Schedule 11.1 and at
the Agency Services Address the information required by Section 7.1(d)
in accordance with the terms of Section 7.1(d).
"Asset Disposition" means the disposition of any or all of the
assets (including without limitation any capital stock of any
Subsidiary of such Person) of a Credit Party or any of its
Subsidiaries whether by sale, lease, transfer or otherwise, other than
transfers of assets permitted by Section 8.5 and other than any losses
of assets or destroyed assets permitted by Section 7.7.
- 3 -
<PAGE> 10
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"Bankruptcy Event" has the meaning set forth in Section
9.1(f).
"Base Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1%)
equal to the greater of (a) the Federal Funds Rate in effect on such
day plus 1/2 of 1% or (b) the Prime Rate in effect on such day. If
for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is
unable after due inquiry to ascertain the Federal Funds Rate for any
reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms of the
definition of "Federal Funds Rate", the Base Rate shall be determined
without regard to clause (a) of the first sentence of this definition
until the circumstances giving rise to such inability no longer exist.
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, respectively.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" means IPC, Inc., a Delaware corporation, together
with any successors and permitted assigns.
"Business Day" means any day other than a Saturday, a Sunday,
a legal holiday or a day on which banking institutions are authorized
or required by law or other governmental action to close in Charlotte,
North Carolina or New York, New York; provided that in the case of
Eurodollar Loans, such day is also a day on which dealings between
banks are carried on in U.S. dollar deposits in the London interbank
market.
"Calculation Date" has the meaning set forth in the definition
of Applicable Percentage.
"Capital Expenditures" means all expenditures of Holdings and
its Subsidiaries which, in accordance with GAAP, would be classified
as capital expenditures, including, without limitation, Capital
Leases.
"Capital Lease" means, as applied to any Person, any lease of
any property (whether real, personal or mixed) by that Person as
lessee which, in accordance with GAAP, is or should be accounted for
as a capital lease on the balance sheet of that Person.
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof
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<PAGE> 11
(provided that the full faith and credit of the United States of
America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (b) U.S. dollar
denominated time and demand deposits and certificates of deposit of
(i) any Lender, (ii) any domestic commercial bank having capital and
surplus in excess of $500,000,000 or (iii) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent
thereof or from Moody's is at least P-1 or the equivalent thereof (any
such bank being an "Approved Bank"), in each case with maturities of
not more than 270 days from the date of acquisition, (c) commercial
paper and variable or fixed rate notes issued by any Approved Bank (or
by the parent company thereof) or any variable rate notes issued by,
or guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent
thereof) or better by Moody's and maturing within six months of the
date of acquisition, (d) repurchase agreements with a bank or trust
company (including any of the Lenders) or recognized securities dealer
having capital and surplus in excess of $500,000,000 for direct
obligations issued by or fully guaranteed by the United States of
America in which the Borrower shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date
of purchase thereof, a fair market value of at least 100% of the
amount of the repurchase obligations and (e) Investments, classified
in accordance with GAAP as current assets, in money market investment
programs registered under the Investment Company Act of 1940, as
amended, which are administered by reputable financial institutions
having capital of at least $500,000,000 and the portfolios of which
are limited to Investments of the character described in the foregoing
subdivisions (a) through (d).
"Change of Control" means any "person" or "group" (within the
meaning of Section 13(d) or 14(d) of the Exchange Act), in each case,
other than Acadia and/or Senior Management has become, directly or
indirectly, the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a Person shall be deemed to
have "beneficial ownership" of all shares that any such Person has the
right to acquire, whether such right is exercisable immediately or
only after the passage of time), by way of merger, consolidation or
otherwise, of 20% or more of the Voting Stock of Holdings on a
fully-diluted basis, after giving effect to the conversion and
exercise of all outstanding warrants, options and other securities of
Holdings (whether or not such securities are then currently
convertible or exercisable); provided that a change of control shall
not be deemed to occur upon (a) the acquisition by the direct or
indirect partners of Acadia (or their Affiliates) of shares of
Holding's Voting Stock pursuant to a distribution made in connection
with the winding-up of Acadia or (b) the acquisition of any Voting
Stock of Holdings by any Person, the majority of the equity of which
is owned by Persons (or their Affiliates) that in the aggregate
currently control, or own a majority of the equity of, Acadia.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986 and the rules
and regulations promulgated thereunder, as amended, modified,
succeeded or replaced from time to time.
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<PAGE> 12
"Collateral" means all collateral described in and covered by
the Collateral Documents.
"Collateral Agent" means NationsBank, N.A. (or any successor
thereto) or any successor collateral agent appointed pursuant to
Section 10.9.
"Collateral Documents" means the Security Agreement, the
Pledge Agreement, the Mortgage Documents and such other documents
executed and delivered by any Credit Party in connection with the
attachment and perfection of the Lenders' security interests in the
assets of the Credit Parties, including without limitation, UCC
financing statements and patent and trademark filings with respect to
the Material Intellectual Property.
"Commitment Fees" means the fees payable to the Lenders
pursuant to Section 3.4(a).
"Commitments" means the Revolving Committed Amount, the
Tranche A Term Loan Committed Amount and the Tranche B Term Loan
Committed Amount.
"Credit Documents" means this Credit Agreement, the Notes, any
Joinder Agreement, the Collateral Documents, the LOC Documents, and
all other related agreements and documents issued or delivered by any
Credit Party hereunder or thereunder or pursuant hereto or thereto.
"Credit Parties" means the Borrower and the Guarantors and
"Credit Party" means any one of them.
"Credit Party Obligations" means, without duplication, (a) all
of the obligations of the Credit Parties to the Lenders (including the
Issuing Lenders) and the Agents, whenever arising, under this Credit
Agreement, the Notes, the Collateral Documents or any of the other
Credit Documents to which the Borrower or any other Credit Party is a
party (including, but not limited to, any interest accruing after the
occurrence of a Bankruptcy Event with respect to any Credit Party,
regardless of whether such interest is an allowed claim under the
Bankruptcy Code) and (b) all liabilities and obligations owing from
such Credit Party to any Lender, or any Affiliate of a Lender, arising
under Hedging Agreements.
"Debt Issuance" means the issuance of any Indebtedness for
borrowed money by a Credit Party or any of its Subsidiaries, other
than Indebtedness permitted by Section 8.1.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
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<PAGE> 13
"Defaulting Lender" means, at any time, any Lender that, (a)
has failed to make a Loan or purchase a Participation Interest
required pursuant to the terms of this Credit Agreement (but only for
so long as such Loan is not made or such Participation Interest is not
purchased), (b) has failed to pay to the Agents or any Lender an
amount owed by such Lender pursuant to the terms of this Credit
Agreement (but only for so long as such amount has not been repaid) or
(c) has been deemed insolvent or has become subject to a bankruptcy or
insolvency proceeding or to a receiver, trustee or similar official.
"Documentation Agent" means Bankers Trust Company (or any
successor thereto) or any successor documentation agent appointed
pursuant to Section 10.9.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Domestic Subsidiaries" means all direct and indirect
Subsidiaries of Holdings or the Borrower that are domiciled,
incorporated or organized under the laws of any state of the United
States or the District of Columbia. As of the Closing Date, the
Domestic Subsidiaries are as set forth on Schedule 6.15.
"EBITDA" means, for any period, with respect to Holdings and
its Subsidiaries on a consolidated basis, the sum of (a) Net Income
for such period plus (b) an amount which, in the determination of Net
Income for such period has been deducted for (i) Interest Expense for
such period, (ii) total Federal, state, foreign or other income taxes
for such period, (iii) all depreciation, amortization and other
non-cash charges for such period, all as determined in accordance with
GAAP, (iv) the net loss on the sale or disposition of any real
property, and (v) all extraordinary losses, all as determined in
accordance with GAAP, less (c) an amount which, in the determination
of Net Income for such period has been added for (i) the net gain on
the sale or disposition of any real property and (ii) all
extraordinary gains, all as determined in accordance with GAAP, plus
(d) the charges equal to the amount of all transaction costs incurred
by Holdings and its Subsidiaries in connection with (A) the initial
public offering of the common stock of Holdings, (B) this Credit
Agreement, (C) the redemption by Holdings of the Holdings Debentures
and (D) the payment by the Borrower of the Subordinated Notes.
"Effective Date" means the date on which the conditions set
forth in Section 5.1 shall have been fulfilled (or waived in the sole
discretion of the Lenders) and on which the initial Loans shall have
been made and/or the initial Letters of Credit shall have been issued.
"Eligible Assignee" means (a) any Lender or Affiliate or
subsidiary of a Lender, (b) any other commercial bank, financial
institution, institutional lender or "accredited investor" (as defined
in Regulation D of the Securities and Exchange Commission) and (c) any
registered investment company that is not an Affiliate of the
Borrower.
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<PAGE> 14
"Environmental Claim" means any investigation, written notice,
violation, written demand, written allegation, action, suit,
injunction, judgment, order, consent decree, penalty, fine, lien,
proceeding, or written claim whether administrative, judicial, or
private in nature arising (a) pursuant to, or in connection with, an
actual or alleged violation of, any Environmental Law, (b) in
connection with any Hazardous Material, (c) from any assessment,
abatement, removal, remedial, corrective, or other response action in
connection with an Environmental Law or other order of a Governmental
Authority or (d) from any actual or alleged damage, injury, threat, or
harm to natural resources, or the environment or health or safety from
the release of any Hazardous Materials.
"Environmental Laws" means any current or future legal
requirement of any Governmental Authority pertaining to (a) the
protection of health, safety, and the indoor or outdoor environment,
(b) the conservation, management, or use of natural resources and
wildlife, (c) the protection or use of surface water and groundwater
or (d) the management, manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, release,
threatened release, abatement, removal, remediation or handling of, or
exposure to, any Hazardous Material or (e) pollution (including any
release to air, land, surface water and groundwater) and includes,
without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendment of 1984,
42 USC 6901 et seq., Federal Water Pollution Control Act, as amended
by the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of
1966, as amended, 42 USC 7401 et seq., Toxic Substances Control Act of
1976, 15 USC 2601 et seq., Hazardous Materials Transportation Act, 49
USC App. 1801 et seq., Occupational Safety and Health Act of 1970, as
amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et
seq., Emergency Planning and Community Right-to-Know Act of 1986, 42
USC 11001 et seq., National Environmental Policy Act of 1969, 42 USC
4321 et seq., Safe Drinking Water Act of 1974, as amended, 42 USC
300(f) et seq., any analogous federal, state, provincial or local or
any similar, implementing or successor law, and any amendment, rule,
regulation, order, or directive issued thereunder.
"Equity Issuance" means any issuance by a Credit Party or any
of its Subsidiaries to any Person other than the Borrower or any of
its Subsidiaries of shares of its capital stock or other equity
interests whether pursuant to the exercise of options (other than
stock issued to managers, officers or directors pursuant to stock
option plans or equity plans) or warrants or pursuant to the
conversion of any debt securities to equity or otherwise.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
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<PAGE> 15
"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with any Credit Party or
any of its Subsidiaries within the meaning of Section 4001(a)(14) of
ERISA, or is a member of a group which includes any Credit Party or
any of its Subsidiaries and which is treated as a single employer
under Sections 414(b), (c), (m), or (o) of the Code.
"Eurodollar Loan" means a Loan bearing interest based at a
rate determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
determined pursuant to the following formula:
Eurodollar Rate = London Interbank Offered Rate
-------------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as such regulation may be amended
from time to time or any successor regulation, as the maximum reserve
requirement (including, without limitation, any basic, supplemental,
emergency, special, or marginal reserves) applicable with respect to
Eurocurrency liabilities as that term is defined in Regulation D (or
against any other category of liabilities that includes deposits by
reference to which the interest rate of Eurodollar Loans is
determined), whether or not Lender has any Eurocurrency liabilities
subject to such reserve requirement at that time. Eurodollar Loans
shall be deemed to constitute Eurocurrency liabilities and as such
shall be deemed subject to reserve requirements without benefits of
credits for proration, exceptions or offsets that may be available
from time to time to a Lender. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Event of Default" has the meaning specified in Section 9.1
hereof.
"Excess Cash Flow" means, with respect to the Borrower and its
Subsidiaries on a consolidated basis, for any fiscal year, an amount
equal to (a) EBITDA minus (b) Capital Expenditures and Investments
minus (c) cash Interest Expense minus (d) Federal, state and other
income taxes actually paid minus (e) Principal Amortization Payment
and principal payments under other Indebtedness minus (f) voluntary
prepayments made with respect to the Term Loans minus (g) dividends
paid to Holdings to redeem Holdings Debentures or as otherwise
permitted by this Credit Agreement in accordance with the terms of
this Credit Agreement unless such dividends were a result of an
increase of the Tranche B Term Loan Committed Amount in accordance
with the terms of Section 2.4(d) minus (h) so long as the Term Loans
have been paid in full, that portion of any prepayment made with
respect to the Revolving Loans to the extent the Revolving Committed
Amount is permanently reduced by such prepayment, minus (i) any excess
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<PAGE> 16
cash flow mandatory prepayment made or required to be made by a
Foreign Subsidiary pursuant to any agreement governing the
Indebtedness permitted by Section 8.1(j) in each case for such fiscal
year.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as
amended, modified, succeeded or replaced from time to time.
"Existing Letters of Credit" means the letters of credit
described by date of issuance, letter of credit number, undrawn
amount, name of beneficiary and the date of expiry on Schedule 1.1(b)
hereto.
"Extension of Credit" means, as to any Lender, the making of a
Loan by such Lender (or a participation therein by a Lender) or the
issuance of, or participation in, a Letter of Credit by such Lender.
"Federal Funds Rate" means for any day the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members 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 and (b) if no such rate is so published on such
next preceding Business Day, the Federal Funds Rate for such day shall
be the average rate quoted to the Administrative Agent on such day on
such transactions as determined by the Administrative Agent.
"Fee Letters" means (a) the Agents Fee Letter and (b) the
Administrative Agent Fee Letter.
"First Tier Foreign Subsidiaries" means, at any date of
determination, each Foreign Subsidiary in which any one or more of the
Borrower and its Domestic Subsidiaries owns directly more than 50%, in
the aggregate, of the Voting Stock of such Foreign Subsidiary.
"Fixed Charge Coverage Ratio" means, with respect to Holdings
and its Subsidiaries on a consolidated basis, the ratio of (a) EBITDA
minus Capital Expenditures to (b) the sum of, without duplication, (i)
cash Interest Expense plus (ii) Federal, state and other income taxes
paid in cash plus (iii) Scheduled Funded Debt Payments plus (iv)
repayments of Holdings Debentures provided such repayments are not
made with Tranche B Term Loan advances plus (v) cash interest due on
Holdings Debentures, as such ratio shall be calculated from time to
time giving effect to the Interim Adjustments.
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<PAGE> 17
"Foreign Subsidiaries" means all Subsidiaries of a Credit
Party that are not Domestic Subsidiaries, including any Subsidiary of
a Credit Party incorporated or organized under the laws of Puerto
Rico.
"Funded Debt" means, without duplication, the sum of (a) all
Indebtedness of Holdings and its Subsidiaries for borrowed money,
excluding intercompany items, (b) all purchase money Indebtedness of
Holdings and its Subsidiaries, (c) the principal portion of all
obligations of Holdings and its Subsidiaries under Capital Leases, (d)
(i) all obligations for unreimbursed draws on letters of credit issued
for the account of Holdings or any of its Subsidiaries (other than
letters of credit supporting trade payables in the ordinary course of
business), and (ii) all obligations, contingent or otherwise, relative
to the face amount of banker's acceptances issued for the account of
Holdings or any of its Subsidiaries, (e) all Guaranty Obligations of
Holdings and its Subsidiaries with respect to Funded Debt of another
Person, (f) all Funded Debt of another entity secured by a Lien on any
property of Holdings or any of its Subsidiaries but only to the extent
of the value of such property, whether or not such Funded Debt has
been assumed by Holdings or any of its Subsidiaries, (g) all Funded
Debt of any partnership or unincorporated joint venture to the extent
Holdings or one of its Subsidiaries is legally obligated, net of any
assets of such partnership or joint venture and (h) with respect to
Holdings or any of its Subsidiaries (other than the Indebtedness with
respect to the Newton Property permitted by Section 8.1(i)) the
principal balance outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet
financing product where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease
in accordance with GAAP.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to Section
1.3.
"Governmental Authority" means any Federal, state, local,
provincial or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guarantor" means Holdings, each of the Domestic Subsidiaries
of the Borrower and each Additional Credit Party which has executed a
Joinder Agreement, together with their successors and assigns.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Indebtedness,
leases, dividends or other obligations of any other Person in any
manner, whether direct or indirect, and including without limitation
any obligation, whether or not contingent, (a) to purchase any such
Indebtedness or other obligation or any property constituting security
therefor, (b) to advance or provide funds or other support for the
payment or purchase of such Indebtedness or obligation or to maintain
working capital, solvency or other balance sheet condition of such
other Person (including, without limitation, maintenance agreements,
comfort letters, take or pay arrangements, put
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<PAGE> 18
agreements or similar agreements or arrangements) for the benefit of
the holder of Indebtedness of such other Person, (c) to lease or
purchase property, securities or services primarily for the purpose of
assuring the owner of such Indebtedness or obligation, or (d) to
otherwise assure or hold harmless the owner of such Indebtedness or
obligation against loss in respect thereof. The amount of any
Guaranty Obligation hereunder shall (subject to any limitations set
forth therein) be deemed to be an amount equal to the outstanding
principal amount (or maximum principal amount, if larger) of the
Indebtedness in respect of which such Guaranty Obligation is made.
"Hazardous Materials" means any substance, material or waste
defined or regulated in or under any Environmental Laws.
"Hedging Agreements" means, collectively, interest rate
protection agreements, foreign currency exchange agreements, commodity
purchase or option agreements or other interest or exchange rate or
commodity price hedging agreements, in each case, entered into or
purchased by a Credit Party.
"Holdings" means Ivex Packaging Corporation, a Delaware
corporation.
"Holdings Debentures" means those certain 13 1/4% Senior
Discount Debentures due 2005 issued by Ivex Packaging Corporation
f/k/a Ivex Holdings Corporation as of March 8, 1993, as amended
through the Closing Date and as further amended, restated, substituted
or replaced from time to time in accordance with the terms of this
Credit Agreement.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c)
all obligations of such Person under conditional sale or other title
retention agreements relating to property purchased by such Person to
the extent of the value of such property (other than customary
reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (d) all obligations,
including without limitation intercompany items, of such Person issued
or assumed as the deferred purchase price of property or services
purchased by such Person which would appear as liabilities on a
balance sheet of such Person, (e) all Indebtedness of others secured
by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on, or
payable out of the proceeds of production from, property owned or
acquired by such Person, whether or not the obligations secured
thereby have been assumed, (f) all Guaranty Obligations of such
Person, (g) the principal portion of all obligations of such Person
under (i) Capital Leases and (ii) any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet
financing product of such Person where such transaction is considered
borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP, (h) all obligations of such
Person in respect of Hedging Agreements, (i) the maximum face amount
of all performance and standby letters of credit issued or bankers'
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<PAGE> 19
acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (j) all preferred stock issued by such Person and
required by the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due by a fixed date, (k) all other
obligations which would be shown as a liability on the balance sheet
of such Person and (l) the aggregate amount of uncollected accounts
receivable of such Person subject at such time to a sale of
receivables (or similar transaction) regardless of whether such
transaction is effected without recourse to such Person or in a manner
that would not be reflected on the balance sheet of such Person in
accordance with GAAP. The Indebtedness of any Person shall include
the Indebtedness of any partnership or unincorporated joint venture in
which such Person is legally obligated net of any tangible assets of
such partnership or joint venture.
"Insignificant Subsidiary" means any Subsidiary of the
Borrower that (a) has assets consisting of less than 2.5% of the Total
Assets and (b) for the most recent fiscal year of the Borrower,
accounted for less than 2.5% of the consolidated revenues of Holdings
and its Subsidiaries and (c) is not necessary to the ongoing business
of Holdings and its Subsidiaries taken as a whole.
"Interest Coverage Ratio" means, with respect to Holdings and
its Subsidiaries on a consolidated basis, the ratio of (a) EBITDA to
(b) cash Interest Expense, as such ratio is calculated from time to
time giving effect to the Interim Adjustments.
"Interest Expense" means, for any period, with respect to
Holdings and its Subsidiaries on a consolidated basis, all interest
expense, including the interest component under Capital Leases and
Receivables Transactions, as determined in accordance with GAAP.
"Interest Payment Date" means (a) as to Base Rate Loans, the
last day of each fiscal quarter of the Borrower and the Revolving Loan
Maturity Date, the Tranche A Term Loan Maturity Date or the Tranche B
Term Loan Maturity Date as applicable, and (b) as to Eurodollar Loans,
the last day of each applicable Interest Period, or, if earlier, the
date such Loans or a portion of such Loans are prepaid and the
Revolving Loan Maturity Date, the Tranche A Term Loan Maturity Date or
the Tranche B Term Loan Maturity Date, as applicable, and in addition
where the applicable Interest Period for a Eurodollar Loan is greater
than three months, then also the date three months from the beginning
of the Interest Period and each three months thereafter.
"Interest Period" means, as to Eurodollar Loans, a period of
one, two, three or six months' duration, as the Borrower may elect,
commencing, in each case, on the date of the borrowing (including
continuations and conversions thereof); provided, however, (a) if any
Interest Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
(except that where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day),
(b) no Interest Period shall extend beyond the Revolving Loan Maturity
Date, the Tranche A Term Loan Maturity Date or the Tranche B Term Loan
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<PAGE> 20
Maturity Date as applicable, (c) with regard to the Term Loans, no
Interest Period shall extend beyond any Principal Amortization Payment
Date unless the portion of Tranche A Term Loans or Tranche B Term
Loans comprised of Base Rate Loans together with the portion of
Tranche A Term Loans or Tranche B Term Loans comprised of Eurodollar
Loans with Interest Periods expiring prior to the date such Principal
Amortization Payment is due, is at least equal to the amount of such
Principal Amortization Payment due on such date and (d) where an
Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month in which the Interest Period
is to end, such Interest Period shall end on the last Business Day of
such calendar month.
"Interim Adjustments" means that, subsequent to the addition
of a New Company, the Interest Coverage Ratio, the Fixed Charge
Coverage Ratio and the Leverage Ratio shall be calculated using the
adjustments and assumptions set forth below:
EBITDA, Capital Expenditures, Interest Expense and Scheduled
Funded Debt Payments for any New Company will be calculated commencing
after the acquisition of such New Company as follows:
(a) for any partial fiscal quarter that occurs
immediately subsequent to the addition of the New Company and for the
first three full fiscal quarters subsequent to the addition of the New
Company, EBITDA, Capital Expenditures, Interest Expense and Scheduled
Funded Debt Payments for the New Company, for the quarter ending on
such date, shall be multiplied times a ratio equal to (i) 365 divided
by (ii) the number of days elapsed since the date of the addition of
the New Company until the last day of such quarter; and
(b) for the fourth full fiscal quarter subsequent to the
addition of the New Company and each fiscal quarter end thereafter,
EBITDA, Capital Expenditures, Interest Expense and Scheduled Funded
Debt Payments for the New Company shall be the actual amounts for the
four quarter period ending on such date.
"Investment" means (a) the acquisition (whether for cash,
property, services, assumption of Indebtedness, securities or
otherwise) of assets, shares of capital stock, bonds, notes,
debentures, partnership, joint ventures or other ownership interests
or other securities of any Person or (b) any deposit with, or advance,
loan or other extension of credit to, such Person (other than deposits
made in connection with the purchase of equipment or other assets in
the ordinary course of business) or (c) any other capital contribution
to or investment in such Person, including, without limitation, any
Guaranty Obligation (including any support for a Letter of Credit
issued on behalf of such Person) incurred for the benefit of such
Person.
"Issuing Lender" means (a) with respect to certain Existing
Letters of Credit, Societe Generale, Southwest Agency and (b) with
respect to certain Existing Letters of Credit and any new Letters of
Credit, NationsBank, N.A. or any successor Administrative Agent.
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<PAGE> 21
"Issuing Lender Fees" has the meaning set forth in Section
3.4(b).
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Exhibit 7.13.
"Leasehold Mortgage" has the meaning set forth in Section
5.1(e).
"Leasehold Mortgaged Properties" has the meaning set forth in
Section 5.1(e).
"Lender" means any of the Persons identified as a "Lender" on
the signature pages hereto, and any Person which may become a Lender
by way of assignment in accordance with the terms of Section 11.3,
together with their successors and permitted assigns.
"Letter of Credit" means (a) any standby or commercial letter
of credit issued for the account of the Borrower by an Issuing Lender
pursuant to Section 2.2, as such letters of credit may be amended,
modified, extended, renewed or replaced and (b) any Existing Letter of
Credit.
"Letter of Credit Fees" has the meaning assigned to such term
in Section 3.4(b).
"Leverage Ratio" means, with respect to Holdings and its
Subsidiaries on a consolidated basis, the ratio of (a) Funded Debt on
such date to (b) EBITDA for the twelve month period ending on such
date, as such ratio is calculated from time to time giving effect to
Interim Adjustments.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory
or otherwise), preference, priority or charge of any kind, including,
without limitation, any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, and any lease in
the nature thereof.
"Loan" or "Loans" means the Revolving Loans, the Tranche A
Term Loans and/or the Tranche B Term Loans (or a portion of any
Revolving Loan, the Tranche A Term Loans or the Tranche B Term Loans),
individually or collectively, as appropriate.
"LOC Documents" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents delivered
in connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or
providing for (a) the rights and obligations of the parties concerned
or at risk or (b) any collateral security for such obligations.
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<PAGE> 22
"LOC Obligations" means, at any time, the sum of (a) the
maximum amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding,
assuming compliance with all requirements for drawings referred to in
such Letters of Credit plus (b) the aggregate amount of all drawings
under Letters of Credit honored by an Issuing Lender but not
theretofore reimbursed.
"LOC Participants" means the Lenders whose Revolving Loan
Commitment Percentage is greater than zero.
"London Interbank Offered Rate" means, with respect to any
Eurodollar Loan for the Interest Period applicable thereto, the rate
of interest per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate 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; provided, however, if more than one rate is specified
on Telerate Page 3750, the applicable rate shall be the arithmetic
mean of all such rates. If, for any reason, such rate is not
available, the term "London Interbank Offered Rate" shall mean, with
respect to any Eurodollar Loan for the Interest Period applicable
thereto, the rate of interest 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.
"Management" means any current officer or director of the
Borrower.
"Mandatory Borrowing" has the meaning set forth in Section
2.2(e).
"Margin Stock" means "margin stock" as defined in Regulation
U, Regulation X or Regulation G.
"Material Adverse Effect" means a material adverse effect,
after taking into account applicable insurance, if any, on (a) the
operations, financial condition or business or prospects of Holdings
and its Subsidiaries taken as a whole, (b) the ability of a Credit
Party to perform in any material respect its respective obligations
under this Credit Agreement or any of the other Credit Documents, or
(c) the validity or enforceability of this Credit Agreement, any of
the other Credit Documents, or the rights and remedies of the Lenders
hereunder or thereunder taken as a whole.
"Material Intellectual Property" has the meaning set forth in
the Security Agreement.
"Moody's" means Moody's Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
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<PAGE> 23
"Mortgage Documents" means the Mortgages, the Leasehold
Mortgages and such other documents and agreements executed or
delivered by any Credit Party in connection with the Real Properties.
"Mortgage Policies" has the meaning set forth in Section
5.1(e).
"Mortgages" has the meaning set forth in Section 5.1(e).
"Mortgaged Properties" has the meaning set forth in Section
5.1(e).
"Multiemployer Plan" means a Plan covered by Title IV of ERISA
which is a multiemployer plan as defined in Section 3(37) or
4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of
ERISA, other than a Multiemployer Plan, which any Credit Party or any
of its Subsidiaries or any ERISA Affiliate and at least one employer
other than a Credit Party or any of its Subsidiaries or any ERISA
Affiliate are contributing sponsors.
"Net Cash Proceeds" means the gross cash proceeds (including
cash actually received by way of deferred payment pursuant to a
promissory note, receivable, or otherwise) received from an Asset
Disposition, an Equity Issuance or a Debt Issuance, net of (a)
transaction costs payable to third parties, (b) a good faith estimate
of the taxes payable with respect to such proceeds (including, without
duplication, withholding taxes) and (c) with respect to any Asset
Disposition, the outstanding Indebtedness (other than the Loans)
required to be repaid as a result of such Asset Disposition.
"Net Income" means, for any period, the net income after taxes
for such period of Holdings and its Subsidiaries on a consolidated
basis, as determined in accordance with GAAP.
"Net Worth" means, as of any date, shareholders' equity or net
worth of Holdings and its Subsidiaries on a consolidated basis, as
determined in accordance with GAAP.
"New Company" means a Person that is acquired by, and becomes
a Subsidiary of, a Credit Party (or a Subsidiary that is established
to purchase the assets of another Person) as long as, during the first
four full fiscal quarters subsequent to such acquisition, it remains a
separate Subsidiary of a Credit Party.
"Newton Property" means the property leased by the Borrower
located in Newton, Massachusetts.
"Non-Excluded Taxes" has the meaning set forth in Section
3.13.
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<PAGE> 24
"Note" or "Notes" means the Revolving Notes, the Tranche A
Term Notes and/or the Tranche B Term Notes, individually or
collectively, as appropriate.
"Notice of Borrowing" means a request by the Borrower for a
Revolving Loan, in the form of Exhibit 2.1(b).
"Notice of Continuation/Conversion" means a request by the
Borrower to continue an existing Eurodollar Loan to a new Interest
Period or to convert a Eurodollar Loan to a Base Rate Loan or a Base
Rate Loan to a Eurodollar Loan, in the form of Exhibit 2.1(e).
"Other Leasehold Properties" has the meaning set forth in
Section 7.16.
"Participation Interest" means the Extension of Credit by a
Lender by way of a purchase of a participation in Letters of Credit or
LOC Obligations as provided in Section 2.2 or in any Loans as provided
in Section 3.8.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereto.
"Permitted Acquisition" means an acquisition of all or part of
the assets or stock of another Person by a Credit Party or any
Subsidiary; provided that after giving effect to such acquisition (a)
there is at least $25,000,000 of availability under the Revolving
Committed Amount, (b) the Borrower and its Subsidiaries are in
compliance, on a Pro Forma Basis, with all of the covenants set forth
in Section 7.2, (c) in the case of an acquisition of the stock of
another Person, the board of directors (or other comparable governing
body) or stockholders, as appropriate, of such Person shall have
approved such acquisition, (d) no Change of Control shall have
occurred, (e) not including any acquisition or a portion thereof made
with the issuance of capital stock, the total cost of any one
acquisition shall not exceed $40,000,000, and together with other
acquisitions made by the Credit Parties or any of their Subsidiaries
during such calendar year, the aggregate acquisition costs of the
Credit Parties and their Subsidiaries taken as a whole shall not
exceed $75,000,000 and (f) no Default or Event of Default exists and
is continuing.
"Permitted Investments" means Investments which are (a) cash
or Cash Equivalents, (b) accounts receivable created, acquired or made
in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms, (c) Investments in a Guarantor
(other than Holdings), (d) loans to directors, officers, employees,
agents, customers or suppliers in the ordinary course of business for
reasonable business expenses, (e) loans to Management to finance
purchases (or tax obligations relating to such purchases) of Holdings'
capital stock not to exceed $15,000,000, in the aggregate, at any one
time, (f) Permitted Acquisitions, (g) Investments in foreign joint
ventures not to exceed $10,000,000, in the aggregate, at any one time,
(h) the purchase of stock or options of Holdings by Holdings from (i)
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<PAGE> 25
employees who voluntarily or involuntarily terminate their employment
with the Borrower or any of its Subsidiaries or (ii) Senior
Management, subsequent to the Closing Date, not to exceed $5,000,000
in the aggregate, (i) the redemption of Subordinated Debt as permitted
by this Credit Agreement, (j) the Investments set forth on Schedule
8.7, (k) Investments in other Credit Parties and their Subsidiaries
subject to Section 8.15 and (l) the purchase of other securities not
to exceed $5,000,000 in the aggregate.
"Permitted Liens" means (a) Liens securing Credit Party
Obligations, (b) Liens for taxes not yet due or Liens for taxes being
contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been established (and
as to which the property subject to any such Lien is not yet subject
to foreclosure, sale, collection, levy or loss on account thereof),
(c) Liens in respect of property imposed by law arising in the
ordinary course of business such as materialmen's, mechanics',
warehousemen's, carrier's, landlords' and other nonconsensual
statutory Liens and other like Liens which are not delinquent for a
period of more than sixty days or, if due and payable, are being
contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP in effect from time to
time have been established (and as to which the property subject to
any such Lien is not yet subject to foreclosure, sale or loss on
account thereof), (d) pledges or deposits made in the ordinary course
of business to secure payment of worker's compensation insurance,
unemployment insurance, pensions or social security programs, (e)
Liens arising from good faith deposits in connection with or to secure
performance of tenders, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations
incurred in the ordinary course of business (other than obligations in
respect of the payment of borrowed money), (f) Liens arising from good
faith deposits in connection with or to secure performance of
statutory obligations and surety and appeal bonds, (g) easements,
rights-of-way, restrictions (including zoning restrictions), matters
of plat, minor defects or irregularities in title and other similar
charges or encumbrances not, in any material respect, impairing the
use of the encumbered property for its intended purposes, (h) judgment
Liens that would not constitute an Event of Default, (i) Liens on
receivables sold pursuant to a Receivables Transaction, (j) Liens in
connection with Indebtedness permitted by Section 8.1(e), 8.1(i) and
8.1(j), (k) Liens constituting intellectual property licenses entered
into in the ordinary course of business, (l) Liens on the real
property of a corporation which becomes a Subsidiary of the Borrower
or is merged with or into a Credit Party after the Closing Date that
secures Indebtedness permitted by Section 8.1(h); provided, that (i)
such Liens existed at the time such corporation became a Subsidiary of
the Borrower or was merged with or into a Credit Party and were not
created in anticipation thereof, (ii) such Liens do not extend to any
property other than the actual property acquired in connection with
such acquisition and (iii) at such time, no Default or Event of
Default exists or shall result from such transaction; (m) Liens
arising by virtue of any statutory or common law provision relating to
banker's liens, rights of setoff or similar rights as to deposit
accounts or other funds maintained with a creditor depository
institution, (n) Liens identified on Schedule 8.2 and (o) any Liens
granted in connection with any amendment, restatement, supplement,
renewal, replacement, extension or refunding (or successive
amendments, restatements,
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<PAGE> 26
supplements, renewals, replacements, extensions or refundings) in
whole or part of any such Liens or the Indebtedness permitted by
Section 8.1(b); provided that the principal amount of Indebtedness
secured by any such Lien does not exceed the principal amount of such
Indebtedness outstanding immediately prior to such amendment,
restatement, supplement, renewal, replacement, extension or refunding.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated), or any Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which any
Credit Party or any of its Subsidiaries or any ERISA Affiliate is (or,
if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" within the meaning of Section
3(5) of ERISA.
"Pledge Agreement" means the Amended and Restated Pledge
Agreement executed and delivered by each of the applicable Credit
Parties in favor of the Collateral Agent, for the benefit of the
Lenders, to secure their obligations under the Credit Documents, as
amended, modified, extended, renewed or replaced from time to time.
"Prime Rate" means the per annum rate of interest established
from time to time by the Administrative Agent at its principal office
in Charlotte, North Carolina (or such other principal office of the
Administrative Agent as communicated in writing to the Borrower and
the Lenders) as its Prime Rate. Any change in the interest rate
resulting from a change in the Prime Rate shall become effective as of
12:01 a.m. of the Business Day on which each change in the Prime Rate
is announced by the Administrative Agent. The Prime Rate is a
reference rate used by the Administrative Agent in determining
interest rates on certain loans and is not intended to be the lowest
rate of interest charged on any extension of credit to any debtor.
"Principal Amortization Payment" means a principal payment on
the Term Loans as set forth in Section 2.3(c) or 2.4(c).
"Principal Amortization Payment Date" means the date a
Principal Amortization Payment is due.
"Pro Forma Basis" means, with respect to a Permitted
Acquisition, that such Permitted Acquisition shall be deemed to have
occurred as of the first day of the four fiscal quarter period ending
as of the last day of the most recent fiscal quarter for which the
Lenders have received the financial information required by Section
7.1(b).
"Real Properties" means the Mortgaged Properties, the
Leasehold Mortgaged Properties and the Other Leasehold Properties.
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<PAGE> 27
"Receivables Transaction" means a transaction in which a
Credit Party sells or grants a security interest in its trade
receivables, to the extent such transaction has been approved by the
Required Lenders in their sole discretion.
"Regulation D, G, U, T or X" means Regulation D, G, U, T or X,
respectively, of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion
thereof.
"Reportable Event" means a "reportable event" as defined in
Section 4043 of ERISA with respect to which the notice requirements to
the PBGC have not been waived.
"Required Lenders" means Lenders whose aggregate Credit
Exposure (as hereinafter defined) constitutes at least 51% of the
Credit Exposure of all Lenders at such time; provided, however, that
if any Lender shall be a Defaulting Lender at such time then there
shall be excluded from the determination of Required Lenders the
aggregate principal amount of Credit Exposure of such Lender at such
time. For purposes of the preceding sentence, the term "Credit
Exposure" as applied to each Lender shall mean (a) at any time prior
to the termination of the Commitments, the sum of (i) the Revolving
Commitment Percentage of such Lender multiplied by the Revolving
Committed Amount, plus (ii) the Tranche A Term Loan Commitment
Percentage of such Lender multiplied by the aggregate principal amount
of Tranche A Term Loans outstanding at such time, plus (iii) the
Tranche B Term Loan Commitment Percentage of such Lender multiplied by
the aggregate principal amount of Tranche B Term Loans outstanding at
such time and (b) at any time after the termination of the
Commitments, the sum of (i) the principal balance of the outstanding
Loans of such Lender plus (ii) such Lender's Participation Interests
in the face amount of the outstanding Letters of Credit.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or final, non-appealable determination of an arbitrator or
a court or other Governmental Authority, in each case applicable to or
binding upon such Person or to which any of its material property is
subject.
"Revolving Committed Amount" means ONE HUNDRED SEVENTY FIVE
MILLION DOLLARS ($175,000,000) or such lesser amount as the Revolving
Committed Amount may be reduced pursuant to Section 2.1(d) or Section
3.3(c).
"Revolving Loan Commitment Percentage" means, for each Lender,
the percentage identified as its Revolving Commitment Percentage on
Schedule 1.1(a), as such percentage may be modified in connection with
any assignment made in accordance with the provisions of Section 11.3.
"Revolving Loan Maturity Date" means October 2, 2003.
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<PAGE> 28
"Revolving Loans" means the Revolving Loans made to the
Borrower pursuant to Section 2.1.
"Revolving Note" or "Revolving Notes" means the promissory
notes of the Borrower in favor of each of the Lenders evidencing the
Revolving Loans provided pursuant to Section 2.1, individually or
collectively, as appropriate, as such promissory notes may be amended,
modified, supplemented, extended, renewed or replaced from time to
time and as evidenced in the form of Exhibit 2.1(e).
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., or any successor or assignee of the business of
such division in the business of rating securities.
"Scheduled Funded Debt Payments" means, as of the date of
determination, for Holdings and its Subsidiaries on a consolidated
basis, the sum of all scheduled payments of principal on Funded Debt
for the twelve month period ending on the date of determination
(including the principal component of payments due on leases that are
required to be capitalized in accordance with GAAP during the twelve
month period ending on the date of determination); it being understood
that Scheduled Funded Debt Payments shall not include voluntary
prepayments or the mandatory prepayments required pursuant to Section
3.3.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Security Agreement" means the Amended and Restated Security
Agreement executed and delivered by each of the Credit Parties in
favor of the Collateral Agent for the benefit of the Lenders to secure
their obligations under the Credit Documents, as such may be amended,
modified, extended, renewed, restated or replaced from time to time.
"Senior Management" means those directors of Holdings and
those officers of Holdings holding the offices identified in the
section entitled "Management Section" in that certain Registration
Statement No. 33-95436 on Form S-1 effective with the Securities and
Exchange Commission on September 30, 1997.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"Solvent" means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as
they mature in the normal course of business, (b) such Person does not
intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and
liabilities mature in their ordinary course, (c) such Person is not
engaged in a business or a transaction, and is not about to engage in
a business or a transaction, for which such Person's assets would
constitute unreasonably
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<PAGE> 29
small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged or is to
engage, (d) the fair value of the assets of such Person is greater
than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person and (e) the present fair
saleable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured. In computing
the amount of contingent liabilities at any time, it is intended that
such liabilities will be computed at the amount which, in light of all
the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
"Subordinated Debt" means the Holdings Debentures and the
Subordinated Notes, as such may be amended, modified, restated,
substituted or replaced from time to time in accordance with the terms
of this Credit Agreement.
"Subordinated Notes" means those certain 12 1/2% Senior
Subordinated Notes due 2002 issued by IPC, Inc. f/k/a Ivex Packaging
Corporation as Issuer as of December 15, 1992 as amended through the
Closing Date and as further amended, modified, restated, substituted
or replaced from time to time in accordance with the terms of this
Credit Agreement.
"Subordinated Notes Call Date" means December 15, 1997 or such
other Business Day (prior to December 31, 1997) on which the Borrower
intends to repurchase all of the then outstanding Subordinated Notes
as requested in writing by the Borrower at least one Business Day
prior thereto.
"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any
class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries, and
(b) any partnership, association, joint venture or other entity in
which such person directly or indirectly through Subsidiaries has more
than a 50% equity interest at any time.
"Term Loans" means the Tranche A Term Loans and the Tranche B
Term Loans.
"Termination Event" means (a) with respect to any Single
Employer Plan, the occurrence of a Reportable Event or the substantial
cessation of operations (within the meaning of Section 4062(e) of
ERISA); (b) the withdrawal of any Credit Party or any of its
Subsidiaries or any ERISA Affiliate from a Multiple Employer Plan
during a plan year in which it was a substantial employer (as such
term is defined in Section 4001(a)(2) of ERISA), or the termination of
a Multiple Employer Plan; (c) the distribution of a notice of intent
to terminate or the actual termination of a Plan pursuant to Section
4041(a)(2) or 4041A of ERISA; (d) the institution of proceedings to
terminate or the actual termination
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<PAGE> 30
of a Plan by the PBGC under Section 4042 of ERISA; (e) any event or
condition which might reasonably constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan; or (f) the complete or partial withdrawal of any
Credit Party or any of its Subsidiaries or any ERISA Affiliate from a
Multiemployer Plan.
"Title Properties" has the meaning set forth in Section
5.1(e).
"Total Assets" means, as of any date, all items which, in
accordance with GAAP, would be classified as assets of Holdings and
its Subsidiaries on a consolidated basis.
"Tranche A Term Loans" means the Term Loans made to the
Borrower pursuant to Section 2.3(a).
"Tranche A Term Loan Commitment Percentage" means, for each
Lender, the percentage identified as its Tranche A Term Loan
Commitment Percentage on Schedule 1.1(a), as such percentage may be
modified in connection with any assignment made in accordance with the
provisions of Section 11.3.
"Tranche A Term Loan Committed Amount" means ONE HUNDRED FIFTY
MILLION DOLLARS ($150,000,000).
"Tranche A Term Loan Maturity Date" means October 2, 2003.
"Tranche A Term Note" or "Tranche A Term Notes" means the
amended and restated promissory notes of the Borrower in favor of each
of the Lenders evidencing the Tranche A Term Loans provided pursuant
to Section 2.3(a), individually or collectively, as appropriate, as
such promissory notes may be amended, modified, supplemented,
extended, renewed or replaced from time to time.
"Tranche B Term Loans" means the Term Loans made to the
Borrower pursuant to Section 2.4(a).
"Tranche B Term Loan Commitment Percentage" means, for each
Lender, the percentage identified as its Tranche B Term Loan
Commitment Percentage on Schedule 1.1(a), as such percentage may be
modified in connection with any assignment made in accordance with the
provisions of Section 11.3.
"Tranche B Term Loan Committed Amount" means ONE HUNDRED FIFTY
MILLION DOLLARS ($150,000,000) less the amount of Holdings Debentures
not tendered on the Tranche B Term Loan Funding Dates; provided that
the Tranche B Term Loan Committed Amount may be increased subsequent
to the Closing Date in accordance with the terms of Section 2.4(d).
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<PAGE> 31
"Tranche B Term Loan Funding Dates" means up to two dates,
both of which must be a Business Day and must occur no later than
thirty (30) days subsequent to the Closing Date, each as selected by
the Borrower upon three Business Days prior written notice to the
Administrative Agent.
"Tranche B Term Loan Maturity Date" means October 2, 2004.
"Tranche B Term Note" or "Tranche B Term Notes" means the
amended and restated promissory notes of the Borrower in favor of each
of the Lenders evidencing the Tranche B Term Loans provided pursuant
to Section 2.4(a), individually or collectively, as appropriate, as
such promissory notes may be amended, modified, supplemented,
extended, renewed or replaced from time to time.
"Unused Commitment" means, for any period, the sum of (a) the
amount by which (i) the then applicable aggregate Revolving Committed
Amount exceeds (ii) the daily average sum for such period of the
outstanding aggregate principal amount of all Revolving Loans plus the
aggregate amount of LOC Obligations outstanding, (b) prior to the
earlier of (I) the actual Subordinated Notes Call Date and (II)
December 31, 1997, the amount by which the (i) Tranche A Term Loan
Committed Amount exceeds (ii) the aggregate principal amount of the
Tranche A Term Loans made on the Effective Date and (c) prior to the
last Tranche B Term Loan Funding Date, the amount by which the (i)
Tranche B Term Loan Committed Amount exceeds (ii) the aggregate
principal amount of the Tranche B Term Loans made.
"Voting Stock" of a corporation means all classes of the
capital stock of such corporation then outstanding and normally
entitled to vote in the election of directors.
1.2 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL PROVISIONS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding." References in this Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Agreement unless otherwise specifically provided.
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 7.1 (or,
prior to the delivery of the first financial statements pursuant to Section
7.1, consistent with the financial statements described in Section 5.1(g);
provided, however, if (a) the Borrower shall object to determining such
compliance on such basis at the time of delivery of such financial statements
due to any change in GAAP or the rules promulgated with respect thereto or (b)
the Administrative Agent or the Required Lenders shall so object in writing
within 30 days after delivery of such financial statements, then such
calculations shall be made on a basis consistent with GAAP as in effect as of
the date of the most recent financial statements delivered by the Borrower to
the Lenders to which no such objection shall have been made.
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<PAGE> 32
SECTION 2
CREDIT FACILITIES
2.1 REVOLVING LOANS.
(a) Revolving Loan Commitment. Subject to the terms and
conditions set forth herein, each Lender who has a Revolving Loan
Commitment Percentage that is greater than zero (the "Revolving Loan
Lenders") severally agrees to make revolving loans (each a "Revolving
Loan" and collectively the "Revolving Loans") to the Borrower, in
Dollars, at any time and from time to time, during the period from and
including the Effective Date to but not including the Revolving Loan
Maturity Date (or such earlier date if the Revolving Committed Amount
has been terminated as provided herein) equal to its Revolving Loan
Commitment Percentage of each of the Revolving Loans requested by the
Borrower; provided, however, that (i) the sum of the aggregate amount
of Revolving Loans outstanding plus the aggregate amount of LOC
Obligations outstanding shall not exceed the Revolving Committed
Amount and (ii) with respect to each individual Revolving Loan Lender,
the Revolving Loan Lender's pro rata share of outstanding Revolving
Loans plus such Revolving Loan Lender's pro rata share of outstanding
LOC Obligations shall not exceed such Revolving Loan Lender's
Revolving Loan Commitment Percentage of the Revolving Committed
Amount. Subject to the terms of this Credit Agreement (including
Section 3.3), the Borrower may borrow, repay and reborrow Revolving
Loans.
(b) Method of Borrowing for Revolving Loans. By no later
than 11:00 a.m. (i) on the date of the requested borrowing of
Revolving Loans that will be Base Rate Loans or (ii) three Business
Days prior to the date of the requested borrowing of Revolving Loans
that will be Eurodollar Loans, the Borrower shall submit a written
Notice of Borrowing in the form of Exhibit 2.1(b) to the
Administrative Agent setting forth (A) the amount requested, (B)
whether such Revolving Loans shall accrue interest at the Adjusted
Base Rate or the Adjusted Eurodollar Rate, (C) with respect to
Revolving Loans that will be Eurodollar Loans, the Interest Period
applicable thereto and (D) certification that the Borrower has
complied in all respects with Section 5.2. All Revolving Loans made
on the Effective Date shall be Base Rate Loans. Thereafter, all or
any portion of such Revolving Loans may be converted into Eurodollar
Loans in accordance with the terms of Section 2.5.
- 26 -
<PAGE> 33
(c) Funding of Revolving Loans. Upon receipt of a Notice
of Borrowing, the Administrative Agent shall promptly inform the
Lenders as to the terms thereof. Each applicable Lender shall make
its Revolving Loan Commitment Percentage of the requested Revolving
Loans available to the Administrative Agent by 2:00 p.m. on the date
specified in the Notice of Borrowing by deposit, in Dollars, of
immediately available funds at the offices of the Administrative Agent
at its principal office in Charlotte, North Carolina or at such other
address as the Administrative Agent may designate in writing. The
amount of the requested Revolving Loans will then be made available to
the Borrower by the Administrative Agent by crediting the account of
the Borrower on the books of such office of the Administrative Agent,
to the extent the amount of such Revolving Loans are made available to
the Administrative Agent.
No Lender shall be responsible for the failure or delay by any
other Lender in its obligation to make Revolving Loans hereunder;
provided, however, that the failure of any Lender to fulfill its
obligations hereunder shall not relieve any other Lender of its
obligations hereunder. Unless the Administrative Agent shall have
been notified by any Lender prior to the date of any such Revolving
Loan that such Lender does not intend to make available to the
Administrative Agent its portion of the Revolving Loans to be made on
such date, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on the date of
such Revolving Loans, and the Administrative Agent in reliance upon
such assumption, may (in its sole discretion but without any
obligation to do so) make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to
the Administrative Agent, the Administrative Agent shall be able to
recover such corresponding amount from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent will
promptly notify the Borrower, and the Borrower shall immediately pay
such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover from the Lender
or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount
was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative
Agent at a per annum rate equal to (i) from the Borrower at the
applicable rate for such Revolving Loan pursuant to the Notice of
Borrowing and (ii) from a Lender at the Federal Funds Rate.
(d) Reductions of Revolving Committed Amount. Upon at
least three Business Days' notice, the Borrower shall have the right
to permanently terminate or reduce the aggregate unused amount of the
Revolving Committed Amount at any time or from time to time; provided
that (i) each partial reduction shall be in an aggregate amount at
least equal to $5,000,000 and in integral multiples of $1,000,000
above such amount and (ii) no reduction shall be made which would
reduce the Revolving Committed Amount to an amount less than the
aggregate amount of outstanding Revolving Loans plus the aggregate
amount of outstanding LOC Obligations. Any reduction in (or
termination of) the Revolving Committed Amount shall be permanent and
may not be
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<PAGE> 34
reinstated. The Administrative Agent shall immediately notify the
Lenders of any reduction in the Revolving Committed Amount.
(e) Notes. The Revolving Loans made by each Lender shall
be evidenced by a duly executed promissory note of the Borrower to
each applicable Lender in the face amount of its Revolving Loan
Commitment Percentage of the Revolving Committed Amount in
substantially the form of Exhibit 2.1(e).
2.2 LETTER OF CREDIT SUBFACILITY.
(a) Issuance. Subject to the terms and conditions hereof
and of the LOC Documents, if any, and any other terms and conditions
which the Issuing Lenders may reasonably require (so long as such
terms and conditions do not impose any financial obligation on or
require any Lien (not otherwise contemplated by this Credit Agreement)
to be given by any Credit Party or conflict with any obligation of, or
detract from any action which may be taken by, any Credit Party or
their Subsidiaries under this Credit Agreement), an Issuing Lender, as
applicable, shall from time to time upon request issue (from the
Effective Date to the Revolving Loan Maturity Date and in a form
reasonably acceptable to the applicable Issuing Lender), in Dollars,
and the LOC Participants shall participate in, letters of credit (the
"Letters of Credit") for the account of the Borrower; provided,
however, that (i) the aggregate amount of LOC Obligations shall not at
any time exceed SIXTY FIVE MILLION DOLLARS ($65,000,000), (ii) the sum
of the aggregate amount of LOC Obligations outstanding plus Revolving
Loans outstanding shall not exceed the Revolving Committed Amount and
(iii) with respect to each individual LOC Participant, the LOC
Participant's pro rata share of outstanding Revolving Loans plus its
pro rata share of outstanding LOC Obligations shall not exceed such
LOC Participant's Revolving Loan Commitment Percentage of the
Revolving Committed Amount. The issuance and expiry date of each
Letter of Credit shall be a Business Day. Except as otherwise
expressly agreed upon by all the LOC Participants, no Letter of Credit
shall have an original expiry date more than one year from the date of
issuance, or as extended, shall have an expiry date extending beyond
the Revolving Loan Maturity Date. Each Letter of Credit shall be
either (x) a standby letter of credit issued to support the
obligations (including pension or insurance obligations), contingent
or otherwise, of the Borrower or any of its Subsidiaries, or (y) a
commercial letter of credit in respect of the purchase of goods or
services by the Borrower or any of its Subsidiaries in the ordinary
course of business. Each Letter of Credit shall comply with the
related LOC Documents.
(b) Notice and Reports. The request for the issuance of
a Letter of Credit shall be submitted to the applicable Issuing Lender
at least three Business Days prior to the requested date of issuance.
The Issuing Lenders will, at least quarterly and more frequently upon
request, provide to the Administrative Agent for dissemination to the
Lenders a detailed report specifying the Letters of Credit which are
then issued and outstanding and any activity with respect thereto
which may have occurred since the date of the prior report, and
including therein, among other things, the account party, the
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<PAGE> 35
beneficiary, the face amount, and the expiry date as well as any
payments or expirations which may have occurred. The Issuing Lenders
will further provide to the Administrative Agent, promptly upon
request, copies of the Letters of Credit and the other LOC Documents,
and the Administrative Agent, upon the request of a Lender, will
provide copies of the Letters of Credit and other LOC Documents in its
possession to such Lender.
(c) Participations.
(i) Each LOC Participant acknowledges and
confirms that it has a Participation Interest in the liability
of the applicable Issuing Lender under each Existing Letter of
Credit in an amount equal to its Revolving Loan Commitment
Percentage of such Existing Letters of Credit. The Borrower's
reimbursement obligations in respect of each Existing Letter
of Credit, and each LOC Participant's obligations in
connection therewith, shall be governed by the terms of this
Credit Agreement.
(ii) Each LOC Participant, upon issuance of a
Letter of Credit, shall be deemed to have purchased without
recourse a risk participation from the applicable Issuing
Lender in such Letter of Credit and each LOC Document related
thereto and the rights and obligations arising thereunder and
any collateral relating thereto, in each case in an amount
equal to its Revolving Loan Commitment Percentage of the
obligations under such Letter of Credit, and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and
not as surety, and be obligated to pay to the applicable
Issuing Lender therefor and discharge when due, its Revolving
Loan Commitment Percentage of the obligations arising under
such Letter of Credit. Without limiting the scope and nature
of each LOC Participant's participation in any Letter of
Credit, to the extent that an Issuing Lender has not been
reimbursed as required hereunder or under any such Letter of
Credit, each such LOC Participant shall pay to an Issuing
Lender its Revolving Loan Commitment Percentage of such
unreimbursed drawing in same day funds on the day of
notification by such Issuing Lender of an unreimbursed drawing
pursuant to the provisions of subsection (d). The obligation
of each LOC Participant to so reimburse an Issuing Lender
shall be absolute and unconditional and shall not be affected
by the occurrence of a Default, an Event of Default or any
other occurrence or event. Any such reimbursement shall not
relieve or otherwise impair the obligation of the Borrower or
any other Credit Party to reimburse such Issuing Lender under
any Letter of Credit, together with interest as hereinafter
provided.
(d) Reimbursement. In the event of any drawing under any
Letter of Credit, an Issuing Lender will promptly notify the Borrower.
Unless the Borrower shall immediately notify such Issuing Lender of
its intent to otherwise reimburse such Issuing Lender, the Borrower
shall be deemed to have requested a Revolving Loan at the Adjusted
Base Rate in the amount of the drawing as provided in subsection (e)
hereof, the
- 29 -
<PAGE> 36
proceeds of which will be used to satisfy the reimbursement
obligations. The Borrower shall reimburse such Issuing Lender on the
day of drawing under any Letter of Credit either with the proceeds of
a Revolving Loan obtained hereunder or otherwise in same day funds as
provided herein or in the LOC Documents. If the Borrower shall fail
to reimburse such Issuing Lender as provided hereinabove, the
unreimbursed amount of such drawing shall bear interest at a per annum
rate equal to the Base Rate plus the Applicable Percentage for the
Base Rate Loans that are Revolving Loans plus two percent (2%). The
Borrower's reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of (but without
waiver of) any rights of set-off, counterclaim or defense to payment
the applicable account party or the Borrower may claim or have against
such Issuing Lender, the Agents, the Lenders, the beneficiary of the
Letter of Credit drawn upon or any other Person, including without
limitation, any defense based on any failure of the applicable account
party, the Borrower or any other Credit Party to receive consideration
or the legality, validity, regularity or unenforceability of the
Letter of Credit; provided, however, that the Borrower may have a
claim against an Issuing Lender, and such Issuing Lender may be liable
to the Borrower, to the extent of any actual damages suffered by the
Borrower as a result of such Issuing Lender's gross negligence or
willful misconduct in failing to pay a drawing under a Letter of
Credit presented in strict conformity therewith. The Issuing Lenders
will promptly notify the LOC Participants of the amount of any
unreimbursed drawing and each LOC Participant shall promptly pay to
the Administrative Agent for the account of the applicable Issuing
Lender, in Dollars and in immediately available funds, the amount of
such LOC Participant's Revolving Loan Commitment Percentage of such
unreimbursed drawing. Such payment shall be made on the day such
notice is received by such Lender from an Issuing Lender if such
notice is received at or before 2:00 p.m., otherwise such payment
shall be made at or before 12:00 Noon on the Business Day next
succeeding the day such notice is received. If such LOC Participant
does not pay such amount to an Issuing Lender in full upon such
request, such LOC Participant shall, on demand, pay to the
Administrative Agent for the account of such Issuing Lender interest
on the unpaid amount during the period from the date the LOC
Participant received the notice regarding the unreimbursed drawing
until such LOC Participant pays such amount to such Issuing Lender in
full at a rate per annum equal to, if paid within two Business Days of
the date of drawing, the Federal Funds Rate and thereafter at a rate
equal to the Base Rate. Each LOC Participant's obligation to make
such payment to an Issuing Lender, and the right of an Issuing Lender
to receive the same, shall be absolute and unconditional, shall not be
affected by any circumstance whatsoever and without regard to the
termination of this Credit Agreement or the Commitments hereunder, the
existence of a Default or Event of Default or the acceleration of the
obligations hereunder and shall be made without any offset, abatement,
withholding or reduction whatsoever.
(e) Repayment with Revolving Loans. On any day on which
the Borrower shall have requested, or been deemed to have requested, a
Revolving Loan borrowing to reimburse a drawing under a Letter of
Credit, the Administrative Agent shall give notice to the applicable
Lenders that a Revolving Loan has been requested or deemed requested
in connection with a drawing under a Letter of Credit, in which case a
Revolving Loan
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<PAGE> 37
borrowing comprised initially solely of Base Rate Loans (each such
borrowing, a "Mandatory Borrowing") shall be immediately made from all
applicable Lenders (without giving effect to any termination of the
Commitments pursuant to Section 9.2) pro rata based on each Lender's
respective Revolving Loan Commitment Percentage and the proceeds
thereof shall be paid directly to the applicable Issuing Lender for
application to the respective LOC Obligations. Each such Lender
hereby irrevocably agrees to make such Revolving Loans immediately
upon any such request or deemed request on account of each such
Mandatory Borrowing in the amount and in the manner specified in the
preceding sentence and on the same such date notwithstanding (i) the
amount of Mandatory Borrowing may not comply with the minimum amount
for borrowings of Revolving Loans otherwise required hereunder, (ii)
whether any conditions specified in Section 5.2 are then satisfied,
(iii) whether a Default or Event of Default then exists, (iv) failure
of any such request or deemed request for Revolving Loans to be made
by the time otherwise required hereunder, (v) the date of such
Mandatory Borrowing, or (vi) any reduction in the Revolving Committed
Amount or any termination of the Commitments. In the event that any
Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result
of the commencement of a proceeding under the Bankruptcy Code with
respect to the Borrower or any other Credit Party), then each such
Lender hereby agrees that it shall forthwith fund (as of the date the
Mandatory Borrowing would otherwise have occurred, but adjusted for
any payments received from the Borrower on or after such date and
prior to such purchase) its Participation Interest in the outstanding
LOC Obligations in an amount equal to such Lender's Revolving Loan
Commitment Percentage thereof; provided, further, that in the event
any Lender shall fail to fund its Participation Interest on the day
the Mandatory Borrowing would otherwise have occurred, then the amount
of such Lender's unfunded Participation Interest therein shall bear
interest payable to such Issuing Lender upon demand, at the rate equal
to, if paid within two Business Days of such date, the Federal Funds
Rate, and thereafter at a rate equal to the Base Rate.
(f) Modification and Extension. The issuance of any
supplement, modification or amendment which increases the face amount
of an existing Letter of Credit or renewal, or extensions to any
Letter of Credit shall, for purposes hereof, be treated in all
respects the same as the issuance of a new Letter of Credit hereunder.
(g) Uniform Customs and Practices. The Issuing Lender
may have the Letters of Credit be subject to The Uniform Customs and
Practice for Documentary Credits, as published as of the date of issue
by the International Chamber of Commerce (Publication No. 500 or the
most recent publication, the "UCP"), in which case the UCP may be
incorporated therein and deemed in all respects to be a part thereof.
(h) Responsibility of Issuing Lenders. It is expressly
understood and agreed as between the Lenders that the obligations of
the Issuing Lenders hereunder to the LOC Participants are only those
expressly set forth in this Credit Agreement and that an Issuing
Lender shall be entitled to assume that the conditions precedent set
forth in Section 5.2 have been satisfied unless it shall have acquired
actual knowledge that any
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<PAGE> 38
such condition precedent has not been satisfied; provided, however,
that nothing set forth in this Section 2.2 shall be deemed to
prejudice the right of any LOC Participant to recover from an Issuing
Lender any amounts made available by such LOC Participant to such
Issuing Lender pursuant to this Section 2.2 in the event that it is
determined by a court of competent jurisdiction that the payment with
respect to a Letter of Credit constituted gross negligence or willful
misconduct on the part of such Issuing Lender.
(i) Conflict with LOC Documents. In the event of any
conflict between this Credit Agreement and any LOC Document, this
Credit Agreement shall govern.
(j) Indemnification of Issuing Lenders.
(i) In addition to its other obligations under
this Credit Agreement, the Borrower hereby agrees to protect,
indemnify, pay and save the Issuing Lenders harmless from and
against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable
attorneys' fees) that the Issuing Lenders may incur or be
subject to as a consequence, direct or indirect, of (A) the
issuance of any Letter of Credit or (B) the failure of an
Issuing Lender to honor a drawing under a Letter of Credit as
a result of any act or omission, whether rightful or wrongful,
of any present or future de jure or de facto government or
governmental authority (all such acts or omissions, herein
called "Government Acts").
(ii) As between the Borrower and an Issuing
Lender, the Borrower shall assume all risks of the acts,
omissions or misuse of any Letter of Credit by the beneficiary
thereof. The Issuing Lenders shall not be responsible for
(except in the case of (A), (B) and (C) below if an Issuing
Lender has actual knowledge to the contrary): (A) the form,
validity, sufficiency, accuracy, genuineness or legal effect
of any document submitted by any party in connection with the
application for and issuance of any Letter of Credit, even if
it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason; (C) failure of the beneficiary of
a Letter of Credit to comply fully with conditions required in
order to draw upon a Letter of Credit; (D) errors, omissions,
interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (E) errors in interpretation
of technical terms; (F) any loss or delay in the transmission
or otherwise of any document required in order to make a
drawing under a Letter of Credit or of the proceeds thereof;
and (G) any consequences arising from causes beyond the
control of an Issuing Lender, including, without limitation,
any Government Acts. None of the above shall affect, impair,
or prevent the vesting of an Issuing Lender's rights or powers
hereunder.
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<PAGE> 39
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth,
any action taken or omitted by an Issuing Lender, under or in
connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put
such Issuing Lender under any resulting liability to the
Borrower or any other Credit Party. It is the intention of
the parties that this Credit Agreement shall be construed and
applied to protect and indemnify the Issuing Lenders against
any and all risks involved in the issuance of the Letters of
Credit, all of which risks are hereby assumed by the Borrower,
including, without limitation, any and all risks of the acts
or omissions, whether rightful or wrongful, of any present or
future Government Acts. An Issuing Lender shall not, in any
way, be liable for any failure by such Issuing Lender or
anyone else to pay any drawing under any Letter of Credit as a
result of any Government Acts or any other cause beyond the
control of such Issuing Lender.
(iv) Nothing in this subsection (j) is intended to
limit the reimbursement obligation of the Borrower contained
in this Section 2.2. The obligations of the Borrower under
this subsection (j) shall survive the termination of this
Credit Agreement. No act or omission of any current or prior
beneficiary of a Letter of Credit shall in any way affect or
impair the rights of an Issuing Lender to enforce any right,
power or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary
contained in this subsection (j), the Borrower shall have no
obligation to indemnify an Issuing Lender in respect of any
liability incurred by such Issuing Lender arising solely out
of the gross negligence or willful misconduct of such Issuing
Lender. Nothing in this Credit Agreement shall relieve an
Issuing Lender of any liability to the Borrower in respect of
any action taken by such Issuing Lender which action
constitutes gross negligence or willful misconduct of such
Issuing Lender or a violation of the UCP or Uniform Commercial
Code (as applicable), as determined by a court of competent
jurisdiction.
2.3 TRANCHE A TERM LOANS.
(a) Tranche A Term Loan Commitment. Subject to the terms
and conditions set forth herein, each Lender whose Tranche A Term Loan
Commitment Percentage is greater than zero severally agrees to make
available to the Borrower, on the Effective Date and on the
Subordinated Notes Call Date such Lender's Tranche A Term Loan
Commitment Percentage of the amount of the Tranche A Term Loan
Committed Amount requested by the Borrower to be advanced on such date
for the purposes hereinafter set forth. Subject to and upon the terms
and conditions set forth herein (including, without limitation, the
terms and conditions set forth in Section 5.2), the Tranche A Term
Loans shall be made in two separate advances. The first advance shall
occur on the Effective Date and the second advance shall occur on the
Subordinated Notes Call Date. The Borrower shall provide the
Administrative Agent with written notice of the amount of the
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<PAGE> 40
advance needed by the Borrower on the Effective Date. That portion of
the Tranche A Term Loan Committed Amount not advanced to the Borrower
on the Effective Date shall be advanced to the Borrower on the
Subordinated Notes Call Date. Amounts repaid on the Tranche A Term
Loans may not be reborrowed.
(b) Funding of Tranche A Term Loans. Each applicable
Lender will make its Tranche A Term Loan Commitment Percentage of each
Tranche A Term Loan advance available to the Administrative Agent by
deposit, in Dollars and in immediately available funds, at the offices
of the Administrative Agent at its principal office in Charlotte,
North Carolina or at such other address as the Administrative Agent
may designate in writing. The amount of the Tranche A Term Loans will
then be made available to the Borrower by the Administrative Agent by
crediting the account of the Borrower on the books of such office of
the Administrative Agent, to the extent the amount of such Tranche A
Term Loans are made available to the Administrative Agent or otherwise
in accordance with the Borrower's disbursement instructions. All
Tranche A Term Loans made on the Effective Date and on the
Subordinated Notes Call Date shall be Base Rate Loans. Thereafter,
all or any portion of the Tranche A Term Loans may be converted into
Eurodollar Loans in accordance with the terms of Section 2.5.
No Lender shall be responsible for the failure or delay by any
other Lender in its obligation to make a Tranche A Term Loan
hereunder; provided, however, that the failure of any Lender to
fulfill its obligations hereunder shall not relieve any other Lender
of its obligations hereunder. If the Administrative Agent shall have
received an executed signature page to this Credit Agreement (whether
an original or via telecopy) from a Lender, the Administrative Agent
may assume that such Lender has or will make available to the
Administrative Agent its Tranche A Term Loan Commitment Percentage of
each Tranche A Term Loan advance on the Effective Date and on the
Subordinated Notes Call Date, and the Administrative Agent in reliance
upon such assumption, may (in its sole discretion but without any
obligation to do so) make available to the Borrower a corresponding
amount of each Tranche A Term Loan advance. If such corresponding
amount is not in fact made available to the Administrative Agent, the
Administrative Agent shall be able to recover such corresponding
amount from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent will promptly notify the Borrower,
and the Borrower shall immediately pay such corresponding amount to
the Administrative Agent. The Administrative Agent shall also be
entitled to recover from the Lender or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from
the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding
amount is recovered by the Administrative Agent at a per annum rate
equal to (i) from the Borrower at the applicable rate for such Tranche
A Term Loan and (ii) from a Lender at the Federal Funds Rate.
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<PAGE> 41
(c) Repayment of Tranche A Term Loans. The principal
amount of the Tranche A Term Loan shall be repaid in quarterly
installments as follows, unless accelerated sooner pursuant to Section
9.2:
<TABLE>
<CAPTION>
TRANCHE A TERM LOAN
PRINCIPAL AMORTIZATION PRINCIPAL AMORTIZATION
PAYMENT DATES PAYMENT
<S> <C>
December 31, 1997 $3,750,000
March 31, 1998 $3,750,000
June 30, 1998 $3,750,000
September 30, 1998 $3,750,000
December 31, 1998 $5,000,000
March 31, 1999 $5,000,000
June 30, 1999 $5,000,000
September 30, 1999 $5,000,000
December 31, 1999 $6,250,000
March 31, 2000 $6,250,000
June 30, 2000 $6,250,000
September 30, 2000 $6,250,000
December 31, 2000 $6,250,000
March 31, 2001 $6,250,000
June 30, 2001 $6,250,000
September 30, 2001 $6,250,000
December 31, 2001 $7,500,000
March 31, 2002 $7,500,000
June 30, 2002 $7,500,000
September 30, 2002 $7,500,000
December 31, 2002 $8,750,000
March 31, 2003 $8,750,000
June 30, 2003 $8,750,000
September 30, 2003 $8,750,000
Total $150,000,000
</TABLE>
(d) Tranche A Term Notes. The Tranche A Term Loan made
by each Lender shall be evidenced by a duly executed promissory note
of the Borrower to each applicable Lender in the face amount of its
Tranche A Term Loan Commitment Percentage of the Tranche A Term Loan
Committed Amount in substantially the form of Exhibit 2.3(d).
2.4 TRANCHE B TERM LOANS.
(a) Tranche B Term Loan Commitment. Subject to the terms
and conditions set forth herein, each Lender whose Tranche B Term Loan
Commitment Percentage is greater than zero severally agrees to make
available to the Borrower on the Tranche B Term Loan Funding Dates
such Lender's Tranche B Term Loan Commitment Percentage of the amount
of the Tranche B Term Loan Committed Amount requested by the Borrower
to be advanced on such date for the purposes hereinafter set forth.
So long as no Default or Event of Default exists and is continuing,
the initial Tranche B Term Loans
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<PAGE> 42
shall be made, at the option of the Borrower, on one or both of the
Tranche B Term Loan Funding Dates. Amounts repaid on the Tranche B
Term Loans may not be reborrowed.
(b) Funding of Term Loans. Each applicable Lender will
make its Tranche B Term Loan Commitment Percentage of each Tranche B
Term Loan advance available to the Administrative Agent by deposit, in
Dollars and in immediately available funds, at the offices of the
Administrative Agent at its principal office in Charlotte, North
Carolina or at such other address as the Administrative Agent may
designate in writing. The amount of the Tranche B Term Loans will
then be made available to the Borrower by the Administrative Agent by
crediting the account of the Borrower on the books of such office of
the Administrative Agent or otherwise in accordance with the
Borrower's disbursement instructions, to the extent the amount of such
Tranche B Term Loans are made available to the Administrative Agent.
All Tranche B Term Loans made on the Tranche B Term Loan Funding Dates
and any additional Tranche B Term Loans provided to the Borrower after
an increase in the Tranche B Term Loan Committed Amount pursuant to
the terms of Section 2.4(d) shall be Base Rate Loans on the date made.
Thereafter, all or any portion of the Tranche B Term Loans may be
converted into Eurodollar Loans in accordance with the terms of
Section 2.5.
No Lender shall be responsible for the failure or delay by any
other Lender in its obligation to make a Tranche B Term Loan
hereunder; provided, however, that the failure of any Lender to
fulfill its obligations hereunder shall not relieve any other Lender
of its obligations hereunder. If the Administrative Agent shall have
(x) received an executed signature page to this Credit Agreement
(whether an original or via telecopy) from a Lender or (y) written
confirmation that a Lender plans to fund an increase in the Tranche B
Term Loan Committed Amount pursuant to Section 2.4(d), the
Administrative Agent may assume that such Lender has or will make the
amount of its Tranche B Term Loans available to the Administrative
Agent on the Effective Date or on the date of the increase, as
applicable, and the Administrative Agent in reliance upon such
assumption, may (in its sole discretion but without any obligation to
do so) make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the
Administrative Agent, the Administrative Agent shall be able to
recover such corresponding amount from such Lender. If such Lender
does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent will
promptly notify the Borrower, and the Borrower shall immediately pay
such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover from the Lender
or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount
was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative
Agent at a per annum rate equal to (i) from the Borrower at the
applicable rate for such Tranche B Term Loan and (ii) from a Lender at
the Federal Funds Rate.
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<PAGE> 43
(c) Repayment of Tranche B Term Loans. The principal
amount of the Tranche B Term Loans shall be repaid in quarterly
installments as follows, unless accelerated sooner pursuant to Section
9.2:
<TABLE>
<CAPTION>
TRANCHE B TERM LOAN PRINCIPAL
PRINCIPAL AMORTIZATION AMORTIZATION PAYMENT (SHOWN AS A
PAYMENT DATES PERCENTAGE OF THE THEN TRANCHE B TERM
LOAN COMMITTED AMOUNT)
<S> <C>
December 31, 1997 .250%
March 31, 1998 .250%
June 30, 1998 .250%
September 30, 1998 .250%
December 31, 1998 .250%
March 31, 1999 .250%
June 30, 1999 .250%
September 30, 1999 .250%
December 31, 1999 .250%
March 31, 2000 .250%
June 30, 2000 .250%
September 30, 2000 .250%
December 31, 2000 .250%
March 31, 2001 .250%
June 30, 2001 .250%
September 30, 2001 .250%
December 31, 2001 .250%
March 31, 2002 .250%
June 30, 2002 .250%
September 30, 2002 .250%
December 31, 2002 .250%
March 31, 2003 .250%
June 30, 2003 .250%
September 30, 2003 .250%
December 31, 2003 23.500%
March 31, 2004 23.500%
June 30, 2004 23.500%
September 30, 2004 Remaining amount of
Tranche B Term Loans
</TABLE>
(d) Increase in Tranche B Term Loan Commitment. The
Borrower shall have the right, from time to time, to increase the
Tranche B Term Loan Committed Amount; provided that:
(i) any increase in the Tranche B Term Loan
Committed Amount must be in a minimum amount of $5,000,000 and
in integral multiples of $1,000,000 above such amount;
(ii) in no event may the Tranche B Term Loan
Committed Amount be increased to an aggregate amount greater
than One Hundred Fifty Million Dollars ($150,000,000);
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<PAGE> 44
(iii) as of the date of such increase in the
Tranche B Term Loan Committed Amount, after giving pro forma
effect to the new advance of Tranche B Term Loans to be made
under the increased Tranche B Term Loan Committed Amount, the
Credit Parties shall be in compliance with all the financial
covenants set forth in Section 7.2;
(iv) any such increase in the Tranche B Term Loan
Committed Amount shall be provided, at the option of the
Borrower, by (A) an existing Lender or any existing Lenders,
as applicable upon such existing Lender's or Lenders' written
consent (to be provided in their sole discretion), as
applicable and/or (B) one or more institutions that is not an
existing Lender; provided that such institution (x) is an
Eligible Assignee and (y) becomes a Lender under this Credit
Agreement pursuant to the execution and delivery of a New
Commitment Agreement in substantially the form of Exhibit
2.4(d);
(v) funds borrowed pursuant to any increase in
the Tranche B Term Loan Committed Amount are used by the
Borrower to repurchase Holding Debentures;
(vi) the Borrower shall execute new Tranche B Term
Note(s) as necessary to reflect any increase in the Tranche B
Term Loan Committed Amount;
(vii) the Borrower shall have paid all actual fees
and expenses owed to the Lenders and the Administrative Agent
in connection with any such increase in the Tranche B Term
Loan Committed Amount; and
(viii) Schedule 1.1(a) shall be revised (without any
need to obtain the consent of any of the Lenders) to reflect
the change in the Tranche B Term Loan Commitment Percentages
of the Lenders as a result of such increase in the Tranche B
Term Loan Committed Amount.
(e) Tranche B Term Notes. The Tranche B Term Loan made
by each Lender shall be evidenced by a duly executed promissory note
of the Borrower to each applicable Lender in the face amount of its
Tranche B Term Loan Commitment Percentage of the Tranche B Term Loan
Committed Amount in substantially the form of Exhibit 2.4(e).
2.5 CONTINUATIONS AND CONVERSIONS.
The Borrower shall have the option, on any Business Day, to continue
existing Eurodollar Loans for a subsequent Interest Period, to convert Base
Rate Loans into Eurodollar Loans or to convert Eurodollar Loans into Base Rate
Loans; provided, however, that (i) each such continuation or conversion must be
requested by the Borrower pursuant to a written Notice of
Continuation/Conversion, in the form of Exhibit 2.5, in compliance with the
terms set forth
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<PAGE> 45
below, (ii) except as provided in Section 3.12, Eurodollar Loans may only be
continued or converted into Base Rate Loans on the last day of the Interest
Period applicable thereto, (iii) Eurodollar Loans may not be continued nor may
Base Rate Loans be converted into Eurodollar Loans if on the date of such
conversion or continuation a Default or an Event of Default has occurred and is
continuing and (iv) any request to continue a Eurodollar Loan that fails to
comply with the terms set forth below in this Section 2.5 or any failure to
request a continuation of a Eurodollar Loan at the end of an Interest Period
shall constitute a conversion to a Base Rate Loan on the last day of the
applicable Interest Period. Each continuation or conversion must be requested
by the Borrower no later than 11:00 a.m. (A) on the date for a requested
conversion of a Eurodollar Loan to a Base Rate Loan or (B) three Business Days
prior to the date for a requested continuation of a Eurodollar Loan or
conversion of a Base Rate Loan to a Eurodollar Loan, in each case pursuant to a
written Notice of Continuation/Conversion submitted to the Administrative Agent
which shall set forth (x) whether the Borrower wishes to continue or convert
such Loans and (y) if the request is to continue a Eurodollar Loan or convert a
Base Rate Loan to a Eurodollar Loan, the Interest Period applicable thereto.
2.6 MINIMUM AMOUNTS.
Each request for a borrowing, conversion or continuation shall be
subject to the requirements that (i) each Eurodollar Loan shall be in a minimum
amount of $5,000,000 and in integral multiples of $500,000 in excess thereof,
(ii) each Base Rate Loan shall be in a minimum amount of the lesser of
$1,000,000 (and integral multiples of $100,000 in excess thereof) or the
remaining amount available under the Revolving Committed Amount, the Tranche A
Term Loan Committed Amount or the Tranche B Term Loan Committed Amount, as
applicable, and (iii) no more than fifteen Eurodollar Loans shall be
outstanding hereunder at any one time. For the purposes of this Section, all
Eurodollar Loans with the same Interest Periods that begin and end on the same
date shall be considered as one Eurodollar Loan, but Eurodollar Loans with
different Interest Periods, even if they begin on the same date, shall be
considered as separate Eurodollar Loans.
SECTION 3
GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT
3.1 INTEREST.
(a) Interest Rate. All Base Rate Loans shall accrue
interest at the Adjusted Base Rate and all Eurodollar Loans shall
accrue interest at the Adjusted Eurodollar Rate.
(b) Default Rate of Interest. Upon the occurrence, and
during the continuance, of an Event of Default, the principal of and,
to the extent permitted by law, interest on the Loans and any other
amounts owing hereunder or under the other Credit Documents (including
without limitation fees and expenses) shall, after written notice of
same to the Borrower, bear interest, payable on demand, at a per annum
rate equal to 2%
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<PAGE> 46
plus the rate which would otherwise be applicable (or if no rate is
applicable, then the rate for Revolving Loans that are Base Rate Loans
plus two percent (2%) per annum).
(c) Interest Payments. Interest on Loans shall be due
and payable in arrears on each Interest Payment Date. If an Interest
Payment Date falls on a date which is not a Business Day, such
Interest Payment Date shall be deemed to be the next succeeding
Business Day, except that in the case of Eurodollar Loans where the
next succeeding Business Day falls in the next succeeding calendar
month, then on the next preceding day.
3.2 PLACE AND MANNER OF PAYMENTS.
All payments of principal, interest, fees, expenses and other amounts
to be made by a Credit Party under this Credit Agreement shall be received not
later than 2:00 p.m. on the date when due, in Dollars and in immediately
available funds, by the Administrative Agent at its offices in Charlotte, North
Carolina. Payments received after such time shall be deemed to have been
received on the next Business Day. The Borrower shall, at the time it makes
any payment under this Credit Agreement, specify to the Administrative Agent,
the Loans, Letters of Credit, fees or other amounts payable by the Borrower
hereunder to which such payment is to be applied (and in the event that it
fails to specify, or if such application would be inconsistent with the terms
hereof, the Administrative Agent shall, subject to Section 3.7, distribute such
payment to the Lenders in such manner as the Administrative Agent may deem
appropriate). The Administrative Agent will distribute such payments to the
applicable Lenders on the date received if any such payment is received prior
to 2:00 p.m.; otherwise the Administrative Agent will distribute such payment
to the applicable Lenders on the next succeeding Business Day. Whenever any
payment hereunder shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day
(subject to accrual of interest and fees for the period of such extension),
except that in the case of Eurodollar Loans, if the extension would cause the
payment to be made in the next following calendar month, then such payment
shall instead be made on the next preceding Business Day.
3.3 PREPAYMENTS.
(a) Voluntary Prepayments. Subject to the terms of
Section 3.4(d), the Borrower shall have the right to prepay Loans in
whole or in part from time to time without premium or penalty;
provided, however, that (i) Eurodollar Loans may only be prepaid on
three Business Days' prior written notice to the Administrative Agent
and any prepayment of Eurodollar Loans will be subject to Section
3.14, (ii) each such partial prepayment of Loans shall be in the
minimum principal amount of $1,000,000 and integral multiples of
$100,000 in excess thereof and (iii) voluntary prepayments with
respect to the Term Loans shall be applied pro rata between the
outstanding Tranche A Term Loans and Tranche B Term Loans (pro rata
among the remaining Principal Amortization Payments).
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<PAGE> 47
(b) Mandatory Prepayments.
(i) Revolving Committed Amount. If at any time
the sum of the aggregate amount of Revolving Loans outstanding
plus LOC Obligations outstanding exceeds the Revolving
Committed Amount, the Borrower shall immediately make a
principal payment to the Administrative Agent in the manner
and in an amount necessary to be in compliance with Section
2.1.
(ii) Excess Cash Flow. Within 10 days after the
date the audited financial statements are required to be
delivered pursuant to Section 7.1(a) for each fiscal year,
commencing with the fiscal year ending December 31, 1998, the
Borrower shall make a prepayment of the Loans in an amount
equal to (a) 75% of the Excess Cash Flow earned during the
preceding fiscal year if, as of such fiscal year end, the
current Leverage Ratio is greater than or equal to 4.0 to 1.0,
(b) 50% of the Excess Cash Flow earned during the preceding
fiscal year if, as of such fiscal year end, the current
Leverage Ratio is less than 4.0 to 1.0 but greater than or
equal to 3.0 to 1.0 and (c) 0% of Excess Cash Flow earned
during the preceding fiscal year if, as of such fiscal year
end, the current Leverage Ratio is less than 3.0 to 1.0 (to be
applied as set forth in Section 3.3(c) below).
(iii) Asset Sales. Immediately upon receipt by a
Credit Party or any of its Subsidiaries of proceeds from any
Asset Disposition, the Borrower shall forward an amount equal
to 100% of the Net Cash Proceeds of such Asset Disposition to
the Lenders as a prepayment of the Loans (to be applied as set
forth in Section 3.3(c) below). Notwithstanding the
foregoing, in the event a Foreign Subsidiary is required to
forward all or a percentage of the Net Cash Proceeds received
from a disposition of assets of such Foreign Subsidiary in
accordance with the terms of any agreement governing the
Indebtedness permitted by Section 8.1(j), the Borrower shall
only have to forward to the Lenders as a prepayment of the
Loans that portion of the Net Cash Proceeds from such Asset
Disposition remaining with such Foreign Subsidiary after
making the prepayment required by the respective agreement
governing the Section 8.1(j) Indebtedness.
(iv) Receivables Transaction. Immediately upon
the receipt by a Credit Party or any of its Subsidiaries of
proceeds from a Receivables Transaction, the Borrower shall
forward an amount equal to 100% of the Net Cash Proceeds of
such Receivables Transaction to the Lenders as a prepayment of
the Loans (to be applied as set forth in Section 3.3(c)
below).
(v) Issuances of Equity. Immediately upon
receipt by a Credit Party or any of its Subsidiaries of
proceeds from any Equity Issuance (other than the issuance of
shares of capital stock of Holdings pursuant to the initial
public offering of capital stock of Holdings), the Borrower
shall forward 50% of the Net Cash Proceeds of such Equity
Issuance to the Lenders as a prepayment of the Loans (to be
applied as set forth in Section 3.3(c) below).
Notwithstanding the
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<PAGE> 48
foregoing sentence, prepayments made by the Borrower pursuant
to the terms of this Section 3.3(b)(v) shall not exceed
$50,000,000 in the aggregate.
(vi) Issuance of Debt. Immediately upon receipt
by a Credit Party or any of its Subsidiaries of proceeds from
any Debt Issuance, the Borrower shall forward 100% of the Net
Cash Proceeds of such Debt Issuance to the Lenders as a
prepayment of the Loans (to be applied as set forth in Section
3.3(c) below).
(c) Application of Prepayments. All amounts required to
be paid pursuant to Section 3.3(b)(i) shall be applied first to
Revolving Loans and second to a cash collateral account in respect of
LOC Obligations. All amounts required to be paid pursuant to Section
3.3(b)(ii), (iii), (iv), (v) and (vi) above shall be applied first,
pro rata between the outstanding Tranche A Term Loans and the Tranche
B Term Loans (pro rata among the remaining Principal Amortization
Payments) until the Term Loans have been paid in full, second, to the
Revolving Loans (with a corresponding reduction in the Revolving
Committed Amount) until the Revolving Committed Amount shall be
reduced to zero and third, to a cash collateral account in respect of
LOC Obligations. One or more holders of the Tranche B Term Loans may
decline to accept a mandatory prepayment under Sections 3.3(b)(ii),
(iii), (iv), (v) or (vi) (to the extent there are sufficient Tranche A
Term Loans outstanding to be paid with such prepayment) in which case
such declined prepayments shall be allocated pro rata among the
Tranche A Term Loans and Tranche B Term Loans held by Lenders
accepting such prepayments. Within the parameters of the applications
set forth above, prepayments shall be applied first to Base Rate Loans
and then to Eurodollar Loans in direct order of Interest Period
maturities. All prepayments hereunder shall be subject to Section
3.14.
3.4 FEES.
(a) Commitment Fees. In consideration of the Revolving
Committed Amount, Tranche A Term Loan Committed Amount and Tranche B
Term Loan Committed Amount being made available by the Lenders
hereunder, the Borrower agrees to pay to the Administrative Agent, for
the pro rata benefit of each applicable Lender (based on each Lender's
Revolving Loan Commitment Percentage of the Revolving Committed
Amount, Tranche A Term Loan Commitment Percentage of the Tranche A
Term Loan Committed Amount and Tranche B Term Loan Commitment
Percentage of the Tranche B Term Loan Committed Amount, as
applicable), a per annum fee equal to the Applicable Percentage for
Commitment Fees multiplied by the applicable Unused Commitment (the
"Commitment Fees"). The Commitment Fees accrued prior to the Closing
Date shall be paid on the Effective Date and future Commitment Fees
shall commence to accrue on the Effective Date to and excluding (i)
with respect to the Revolving Committed Amount, the earlier of the
Revolving Loan Maturity Date or the date on which the Revolving
Committed Amount is terminated (ii) with respect to the Tranche A Term
Loan, the earlier of the Subordinated Notes Call Date and December 31,
1997 and (iii) with respect to the Tranche B Term Loan, the last of
the two Tranche B Term Loan Funding Dates, and shall be due and
payable in arrears on the last day of each
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<PAGE> 49
fiscal quarter of the Borrower (as well as on the Revolving Loan
Maturity Date, Subordinated Notes Call Date (or December 31, 1997),
and the last of the two Tranche B Term Loan Funding Dates, as
applicable, and on any date that the Revolving Committed Amount is
reduced) for the immediately preceding fiscal quarter (or portion
thereof), beginning with the first of such dates to occur after the
Closing Date.
(b) Letter of Credit Fees.
(i) Letter of Credit Fees. In consideration of
the issuance of Letters of Credit hereunder, the Borrower
agrees to pay to the applicable Issuing Lender for the pro
rata benefit of the applicable Lenders (based on each Lender's
Revolving Loan Commitment Percentage of the Revolving
Committed Amount), a fee (the "Letter of Credit Fees") equal
to the Applicable Percentage for the Letter of Credit Fees on
the average daily maximum amount available to be drawn under
each such Letter of Credit from the date of issuance to the
date of expiration. The Letter of Credit Fees will be payable
in arrears on the last day of each fiscal quarter of the
Borrower (as well as on the Revolving Loan Maturity Date) for
the immediately preceding fiscal quarter (or portion thereof),
beginning with the first of such dates to occur after the
Closing Date.
(ii) Issuing Lender Fees. In addition to the
Letter of Credit Fees payable pursuant to subsection (i)
above, the Borrower shall pay to the applicable Issuing Lender
for its own account, without sharing by the other Lenders, (A)
a fee equal to one-eighth of one percent (1/8%) per annum on
the total sum of the undrawn amounts of all Letters of Credit
issued by the Issuing Lenders, such fee to be paid in arrears
15 days after the last day of each fiscal quarter of the
Borrower (as well as on the Revolving Loan Maturity Date) and
(B) the customary charges from time to time to the Issuing
Lenders for their services in connection with the issuance,
amendment, payment, transfer, administration, cancellation and
conversion of, and drawings under, such Letters of Credit
(collectively, the "Issuing Lender Fees").
(c) Administrative Fees. The Borrower agrees to pay to
the Administrative Agent, for its own account, an annual fee in
accordance with the terms of the Fee Letters.
(d) Prepayment Premium. In the event any of the Tranche
B Term Loans are voluntarily prepaid prior to the date one year from
the Effective Date, the Borrower agrees to pay a pro rata prepayment
premium to the Lenders that have made Tranche B Term Loan advances to
the Borrower in an amount equal to one and one-half percent (1.5%) of
the principal amount of Tranche B Term Loans voluntarily prepaid.
3.5 PAYMENT IN FULL AT MATURITY.
(a) On the Revolving Loan Maturity Date, the entire
outstanding principal balance of all Revolving Loans and all LOC
Obligations, together with accrued but
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<PAGE> 50
unpaid interest and all other sums owing with respect thereto, shall
be due and payable in full, unless accelerated sooner pursuant to
Section 9.2.
(b) On the Tranche A Term Loan Maturity Date, the entire
outstanding principal balance of all Tranche A Term Loans, together
with accrued but unpaid interest and all other sums owing with respect
thereto, shall be due and payable in full, unless accelerated sooner
pursuant to Section 9.2.
(c) On the Tranche B Term Loan Maturity Date, the entire
outstanding principal balance of all Tranche B Term Loans, together
with accrued but unpaid interest and all other sums owing with respect
thereto, shall be due and payable in full, unless accelerated sooner
pursuant to Section 9.2.
3.6 COMPUTATIONS OF INTEREST AND FEES.
(a) Except for Base Rate Loans, in which case interest
shall be computed on the basis of a 365 or 366 day year as the case
may be, all computations of interest and fees hereunder shall be made
on the basis of the actual number of days elapsed over a year of 360
days. Interest shall accrue from and include the date of borrowing
(or continuation or conversion) but exclude the date of payment.
(b) It is the intent of the Lenders and the Credit
Parties to conform to and contract in strict compliance with
applicable usury law from time to time in effect. All agreements
between the Lenders and the Borrower are hereby limited by the
provisions of this paragraph which shall override and control all such
agreements, whether now existing or hereafter arising and whether
written or oral. In no way, nor in any event or contingency
(including but not limited to prepayment or acceleration of the
maturity of any obligation), shall the interest taken, reserved,
contracted for, charged, or received under this Credit Agreement,
under the Notes or otherwise, exceed the maximum nonusurious amount
permissible under applicable law. If, from any possible construction
of any of the Credit Documents or any other document, interest would
otherwise be payable in excess of the maximum nonusurious amount, any
such construction shall be subject to the provisions of this paragraph
and such documents shall be automatically reduced to the maximum
nonusurious amount permitted under applicable law, without the
necessity of execution of any amendment or new document. If any
Lender shall ever receive anything of value which is characterized as
interest on the Loans under applicable law and which would, apart from
this provision, be in excess of the maximum lawful amount, an amount
equal to the amount which would have been excessive interest shall,
without penalty, be applied to the reduction of the principal amount
owing on the Loans and not to the payment of interest, or refunded to
the Borrower or the other payor thereof if and to the extent such
amount which would have been excessive exceeds such unpaid principal
amount of the Loans. The right to demand payment of the Loans or any
other indebtedness evidenced by any of the Credit Documents does not
include the right to receive any interest which has not otherwise
accrued on the date of such demand, and the Lenders do not intend to
charge or receive any unearned interest in the event of such
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<PAGE> 51
demand. All interest paid or agreed to be paid to the Lenders with
respect to the Loans shall, to the extent permitted by applicable law,
be amortized, prorated, allocated, and spread throughout the full
stated term (including any renewal or extension) of the Loans so that
the amount of interest on account of such indebtedness does not exceed
the maximum nonusurious amount permitted by applicable law.
3.7 PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) Loans. Each Revolving Loan borrowing (including,
without limitation, each Mandatory Borrowing), each payment or
prepayment of principal of any Loan, each payment of fees (other than
the Issuing Lender Fees retained by each Issuing Lender for its own
account and the Administrative Fees retained by the Administrative
Agent for its own account), each reduction of the Revolving Committed
Amount, and each conversion or continuation of any Loan, shall (except
as otherwise provided in Section 3.11) be allocated pro rata among the
relevant Lenders in accordance with the respective Revolving Loan
Commitment Percentages, Tranche A Term Loan Commitment Percentages and
Tranche B Term Loan Commitment Percentages, as applicable, of such
Lenders (or, if the Commitments of such Lenders have expired or been
terminated, in accordance with the respective principal amounts of the
outstanding Loans and Participation Interests of such Lenders);
provided that, if any Lender shall have failed to pay its applicable
pro rata share of any Revolving Loan, any Tranche A Term Loan or any
Tranche B Term Loan, then any amount to which such Lender would
otherwise be entitled pursuant to this subsection (a) shall instead be
payable to the Administrative Agent until the share of such Loan not
funded by such Lender has been repaid; provided further, that in the
event any amount paid to any Lender pursuant to this subsection (a) is
rescinded or must otherwise be returned by the Administrative Agent,
each Lender shall, upon the request of the Administrative Agent, repay
to the Administrative Agent the amount so paid to such Lender, with
interest for the period commencing on the date such payment is
returned by the Administrative Agent until the date the Administrative
Agent receives such repayment at a rate per annum equal to, during the
period to but excluding the date two Business Days after such request,
the Federal Funds Rate, and thereafter, the Base Rate; and
(b) Letters of Credit. Each payment of unreimbursed
drawings in respect of LOC Obligations shall be allocated to each LOC
Participant pro rata in accordance with its Revolving Loan Commitment
Percentage; provided that, if any LOC Participant shall have failed to
pay its applicable pro rata share of any drawing under any Letter of
Credit, then any amount to which such LOC Participant would otherwise
be entitled pursuant to this subsection (b) shall instead be payable
to the applicable Issuing Lender until the share of such unreimbursed
drawing not funded by such Lender has been repaid; provided further,
that in the event any amount paid to any LOC Participant pursuant to
this subsection (b) is rescinded or must otherwise be returned by an
Issuing Lender, each LOC Participant shall, upon the request of such
Issuing Lender, repay to the
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<PAGE> 52
Administrative Agent for the account of such Issuing Lender the amount
so paid to such LOC Participant, with interest for the period
commencing on the date such payment is returned by such Issuing Lender
until the date such Issuing Lender receives such repayment at a rate
per annum equal to, during the period to but excluding the date two
Business Days after such request, the Federal Funds Rate, and
thereafter, the Base Rate.
3.8 SHARING OF PAYMENTS.
The Lenders agree among themselves that, except to the extent
otherwise provided herein, in the event that any Lender shall obtain payment in
respect of any Loan, unreimbursed drawing with respect to any LOC Obligations
or any other obligation owing to such Lender under this Credit Agreement
through the exercise of a right of setoff, banker's lien or counterclaim, or
pursuant to a secured claim under Section 506 of the Bankruptcy Code or other
security or interest arising from, or in lieu of, such secured claim, received
by such Lender under any applicable bankruptcy, insolvency or other similar law
or otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
pay in cash or purchase from the other Lenders a participation in such Loans,
LOC Obligations, and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all
Lenders share such payment in accordance with their respective ratable shares
as provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker's lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by payment in cash or a
repurchase of a participation theretofore sold, return its share of that
benefit (together with its share of any accrued interest payable with respect
thereto) to each Lender whose payment shall have been rescinded or otherwise
restored. The Borrower agrees that any Lender so purchasing such a
participation may, to the fullest extent permitted by law, exercise all rights
of payment, including setoff, banker's lien or counterclaim, with respect to
such participation as fully as if such Lender were a holder of such Loan, LOC
Obligation or other obligation in the amount of such participation. Except as
otherwise expressly provided in this Credit Agreement, if any Lender or an
Agent shall fail to remit to an Agent or any other Lender an amount payable by
such Lender or such Agent to such Agent or such other Lender pursuant to this
Credit Agreement on the date when such amount is due, such payments shall be
made together with interest thereon for each date from the date such amount is
due until the date such amount is paid to such Agent or such other Lender at a
rate per annum equal to the Federal Funds Rate. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured
claim in lieu of a setoff to which this Section 3.8 applies, such Lender shall,
to the extent practicable, exercise its rights in respect of such secured claim
in a manner consistent with the rights of the Lenders under this Section 3.8 to
share in the benefits of any recovery on such secured claim.
3.9 CAPITAL ADEQUACY.
If, after the date hereof, any Lender has determined that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank or
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comparable agency charged with the interpretation or administration thereof in
the interpretation or administration of, any applicable law, rule or regulation
regarding capital adequacy, or compliance by such Lender, or its parent
corporation, with any request or directive regarding capital adequacy (whether
or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's (or parent corporation's) capital or assets as a consequence
of its commitments or obligations hereunder to a level below that which such
Lender, or its parent corporation, could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender's
(or parent corporation's) policies with respect to capital adequacy), then,
upon notice from such Lender to the Borrower, the Borrower shall be obligated
to pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction. Each determination by any such Lender of amounts
owing under this Section shall, absent manifest error, be conclusive and
binding on the parties hereto. This covenant shall survive the termination of
this Credit Agreement and the payment of the Loans and all other amounts
payable hereunder.
3.10 INABILITY TO DETERMINE INTEREST RATE.
If prior to the first day of any Interest Period, the Administrative
Agent shall have determined in good faith (which determination shall be
conclusive and binding upon the Borrower) 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, the Administrative
Agent shall give telecopy or telephonic notice thereof to the Borrower and the
Lenders as soon as practicable thereafter, and will also give prompt written
notice to the Borrower when such conditions no longer exist. If such notice is
given (a) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as Base Rate Loans, (b) any Loans that were to
have been converted on the first day of such Interest Period to or continued as
Eurodollar Loans shall be converted to or continued as Base Rate Loans and (c)
any outstanding Eurodollar Loans shall be converted, on the first day of such
Interest Period, to Base Rate Loans. Until such notice has been withdrawn by
the Administrative Agent, no further Eurodollar Loans shall be made or
continued as such, nor shall the Borrower have the right to convert Base Rate
Loans to Eurodollar Loans.
3.11 ILLEGALITY.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application
thereof occurring after the Closing Date shall make it unlawful for any Lender
to make or maintain Eurodollar Loans as contemplated by this Credit Agreement,
(a) such Lender shall promptly give written notice of such circumstances to the
Borrower and the Administrative Agent (which notice shall be withdrawn whenever
such circumstances no longer exist), (b) the commitment of such Lender
hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert a Base Rate Loan to Eurodollar Loans shall forthwith be canceled and,
until such time as it shall no longer be unlawful for such Lender to make or
maintain Eurodollar Loans, such Lender shall then have a commitment only to
make a Base Rate Loan when a Eurodollar Loan is requested and (c) such
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Lender's Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to Base Rate Loans on the respective last days or the then
current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs
on a day which is not the last day of the then current Interest Period with
respect thereto, the Borrower shall pay to such Lender such amounts, if any, as
may be required pursuant to Section 3.14.
3.12 REQUIREMENTS OF LAW.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender, or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in each case made
subsequent to the Closing Date (or, if later, the date on which such Lender
becomes a Lender):
(a) shall subject such Lender to any tax of any kind
whatsoever with respect to any Letter of Credit, any Eurodollar Loans
made by it or its obligation to make Eurodollar Loans, or change the
basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by Section 3.13 (including
Non-Excluded Taxes imposed solely by reason of any failure of such
Lender to comply with its obligations under Section 3.13(b)) and
changes in taxes measured by or imposed upon the overall net income,
or franchise tax (imposed in lieu of such net income tax), of such
Lender or its applicable lending office, branch, or any affiliate
thereof);
(b) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(c) shall impose on such Lender any other condition
(excluding any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the Borrower from such Lender,
through the Administrative Agent, in accordance herewith, the Borrower shall be
obligated to promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable, provided that, in any such case, the Borrower may elect to convert
the Eurodollar Loans made by such Lender hereunder to Base Rate Loans by giving
the Administrative Agent at least one Business Day's notice of such election,
in which case the Borrower shall promptly pay to such Lender, upon demand,
without duplication, such amounts, if any, as may be required pursuant to
Section 3.14. If any Lender becomes entitled to claim any additional amounts
pursuant to this Section 3.12, it
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shall provide prompt notice thereof to the Borrower, through the Administrative
Agent, certifying (x) that one of the events described in this Section 3.12 has
occurred and describing in reasonable detail the nature of such event, (y) as
to the increased cost or reduced amount resulting from such event and (z) as to
the additional amount demanded by such Lender and a reasonably detailed
explanation of the calculation thereof. Such a certificate as to any
additional amounts payable pursuant to this Section 3.12 submitted by such
Lender, through the Administrative Agent, to the Borrower shall be conclusive
and binding on the parties hereto in the absence of manifest error. This
covenant shall survive the termination of this Credit Agreement and the payment
of the Loans and all other amounts payable hereunder.
3.13 TAXES.
(a) Except as provided below in this Section 3.13, all
payments made by the Borrower under this Credit Agreement and any
Notes shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp
or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any court, or governmental body, agency or other official,
excluding taxes measured by or imposed upon the overall net income of
the Administrative Agent or any Lender or its applicable lending
office, or any branch or affiliate thereof, and all franchise taxes,
branch taxes, taxes on doing business or taxes on the overall capital
or net worth of any Lender or its applicable lending office, or any
branch or affiliate thereof, in each case imposed in lieu of net
income taxes: (i) by the jurisdiction under the laws of which such
Lender, applicable lending office, branch or affiliate is organized or
is located, or in which its principal executive office is located, or
any nation within which such jurisdiction is located or any political
subdivision thereof; or (ii) by reason of any connection between the
jurisdiction imposing such tax and such Lender, applicable lending
office, branch or affiliate other than a connection arising solely
from such Lender having executed, delivered or performed its
obligations, or received payment under or enforced, this Credit
Agreement or any Notes. If any such non- excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under
any Notes, (A) the amounts so payable to the Administrative Agent or
such Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non-Excluded
Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Credit Agreement and any
Notes, provided, however, that the Borrower shall be entitled to
deduct and withhold any Non- Excluded Taxes and shall not be required
to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state
thereof if such Lender fails to comply with the requirements of
paragraph (b) of this Section 3.13 whenever any Non-Excluded Taxes are
payable by the Borrower, and (B) as promptly as possible after
requested the Borrower shall send to the Administrative Agent for its
own account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay any
Non- Excluded Taxes when
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due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative
Agent and any Lender for any incremental taxes, interest or penalties
that may become payable by the Administrative Agent or any Lender as a
result of any such failure. The agreements in this subsection shall
survive the termination of this Credit Agreement and the payment of
the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws
of the United States of America or a state thereof shall:
(i) (A) on or before the date of any payment
by the Borrower under this Credit Agreement or Notes
to such Lender, deliver to the Borrower and the
Administrative Agent (x) two duly completed copies of
United States Internal Revenue Service Form 1001 or
4224, or successor applicable form, as the case may
be, certifying that it is entitled to receive
payments under this Credit Agreement and any Notes
without deduction or withholding of any United States
federal income taxes and (y) an Internal Revenue
Service Form W-8 or W-9, or successor applicable
form, as the case may be, certifying that it is
entitled to an exemption from United States backup
withholding tax;
(B) deliver to the Borrower and the
Administrative Agent two further copies of any such
form or certification on or before the date that any
such form or certification expires or becomes
obsolete and after the occurrence of any event
requiring a change in the most recent form previously
delivered by it to the Borrower; and
(C) obtain such extensions of time for
filing and complete such forms or certifications as
may reasonably be requested by the Borrower or the
Administrative Agent; or
(ii) in the case of any such Lender that is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code,
(A) represent to the Borrower (for the benefit of the Borrower
and the Administrative Agent) that it is not a bank within the
meaning of Section 881(c)(3)(A) of the Code, (B) agree to
furnish to the Borrower, on or before the date of any payment
by the Borrower, with a copy to the Administrative Agent, two
accurate and complete original signed copies of Internal
Revenue Service Form W-8, or successor applicable form
certifying to such Lender's legal entitlement at the date of
such certificate to an exemption from U.S. withholding tax
under the provisions of Section 881(c) of the Code with
respect to payments to be made under this Credit Agreement and
any Notes (and to deliver to the Borrower and the
Administrative Agent two further copies of such form on or
before the date it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the
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Borrower or the Administrative Agent for filing and completing
such forms), and (C) agree, to the extent legally entitled to
do so, upon reasonable request by the Borrower, to provide to
the Borrower (for the benefit of the Borrower and the
Administrative Agent) such other forms as may be reasonably
required in order to establish the legal entitlement of such
Lender to an exemption from withholding with respect to
payments under this Credit Agreement and any Notes.
Notwithstanding the above, if any change in treaty, law or regulation
has occurred after the date such Person becomes a Lender hereunder
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 so advises the Borrower and the Administrative
Agent then such Lender shall be exempt from such requirements. Each
Person that shall become a Lender or a participant of a Lender
pursuant to Section 11.3 shall, upon the effectiveness of the related
transfer, be required to provide all of the forms, certifications and
statements required pursuant to this subsection (b); provided that in
the case of a participant of a Lender, the obligations of such
participant of a Lender pursuant to this subsection (b) shall be
determined as if the participant of a Lender were a Lender except that
such participant of a Lender shall furnish all such required forms,
certifications and statements to the Lender from which the related
participation shall have been purchased.
3.14 COMPENSATION.
The Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur as a
consequence of (a) default by the Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrower in making any prepayment of a Eurodollar Loan after
the Borrower has given a notice thereof in accordance with the provisions of
this Credit Agreement or (c) the making of a prepayment of Eurodollar Loans on
a day which is not the last day of an Interest Period with respect thereto.
With respect to Eurodollar Loans, such indemnification shall be an amount equal
to (i) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to
the last day of the applicable Interest Period (or, in the case of a failure to
borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Eurodollar Loans provided for herein (excluding, however, the Applicable
Percentage included therein, if any) minus (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Lender
on such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank Eurodollar market. The agreements in this
Section shall survive the termination of this Credit Agreement and the payment
of the Loans and all other amounts payable hereunder.
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SECTION 4
GUARANTY
4.1 GUARANTY OF PAYMENT.
Subject to Section 4.7 below, each of the Guarantors hereby, jointly
and severally, unconditionally guarantees to each Lender, each Affiliate of
Lender that enters into a Hedging Agreement and the Agents the prompt payment
of the Credit Party Obligations in full when due (whether at stated maturity,
as a mandatory prepayment, by acceleration or otherwise). The Guarantors
additionally, jointly and severally, unconditionally guarantee to each Lender,
each Affiliate of a Lender that enters into a Hedging Agreement and the Agents
the timely performance of all other obligations under the Credit Documents and
such Hedging Agreements. This Guaranty is a guaranty of payment and not of
collection and is a continuing guaranty and shall apply to all Credit Party
Obligations whenever arising.
4.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors hereunder are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Credit Documents or the Hedging Agreements, or any
other agreement or instrument referred to therein, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor. Each Guarantor agrees that this Guaranty may be enforced
by the Lenders without the necessity at any time of resorting to or exhausting
any other security or collateral and without the necessity at any time of
having recourse to the Notes or any other of the Credit Documents or any
collateral, if any, hereafter securing the Credit Party Obligations or
otherwise and each Guarantor hereby waives the right to require the Lenders to
proceed against the Borrower or any other Person (including a co-guarantor) or
to require the Lenders to pursue any other remedy or enforce any other right.
Each Guarantor further agrees that it shall have no right of subrogation,
indemnity, reimbursement or contribution against the Borrower or any other
Guarantor of the Credit Party Obligations for amounts paid under this Guaranty
until such time as the Lenders (and any Affiliates of Lenders entering into
Hedging Agreements) have been paid in full, all Commitments under the Credit
Agreement have been terminated and no Person or Governmental Authority shall
have any right to request any return or reimbursement of funds from the Lenders
in connection with monies received under the Credit Documents. Each Guarantor
further agrees that nothing contained herein shall prevent the Lenders from
suing on the Notes or any of the other Credit Documents or any of the Hedging
Agreements or foreclosing its security interest in or Lien on any collateral,
if any, securing the Credit Party Obligations or from exercising any other
rights available to it under this Credit Agreement, the Notes, any other of the
Credit Documents, or any other instrument of security, if any, and the exercise
of any of the aforesaid rights and the completion of any foreclosure
proceedings shall not constitute a discharge of any of any Guarantor's
obligations hereunder; it being the purpose and intent of each Guarantor that
its obligations hereunder shall be absolute, independent and unconditional
under any and all circumstances. Neither any Guarantor's obligations under
this Guaranty nor any remedy for the
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enforcement thereof shall be impaired, modified, changed or released in any
manner whatsoever by an impairment, modification, change, release or limitation
of the liability of the Borrower or by reason of the bankruptcy or insolvency
of the Borrower. Each Guarantor waives any and all notice of the creation,
renewal, extension or accrual of any of the Credit Party Obligations and notice
of or proof of reliance of by any Agent or any Lender upon this Guarantee or
acceptance of this Guarantee. The Credit Party Obligations, and any of them,
shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guarantee. All
dealings between the Borrower and any of the Guarantors, on the one hand, and
the Agents and the Lenders, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon this Guarantee.
4.3 MODIFICATIONS.
Each Guarantor agrees that (a) all or any part of the security now or
hereafter held for the Credit Party Obligations, if any, may be exchanged,
compromised or surrendered from time to time; (b) the Lenders shall not have
any obligation to protect, perfect, secure or insure any such security
interests, liens or encumbrances now or hereafter held, if any, for the Credit
Party Obligations or the properties subject thereto; (c) the time or place of
payment of the Credit Party Obligations may be changed or extended, in whole or
in part, to a time certain or otherwise, and may be renewed or accelerated, in
whole or in part; (d) the Borrower and any other party liable for payment under
the Credit Documents may be granted indulgences generally; (e) any of the
provisions of the Notes or any of the other Credit Documents may be modified,
amended or waived; (f) any party (including any co-guarantor) liable for the
payment thereof may be granted indulgences or be released; and (g) any deposit
balance for the credit of the Borrower or any other party liable for the
payment of the Credit Party Obligations or liable upon any security therefor
may be released, in whole or in part, at, before or after the stated, extended
or accelerated maturity of the Credit Party Obligations, all without notice to
or further assent by such Guarantor, which shall remain bound thereon,
notwithstanding any such exchange, compromise, surrender, extension, renewal,
acceleration, modification, indulgence or release.
4.4 WAIVER OF RIGHTS.
Each Guarantor expressly waives: (a) notice of acceptance of this
Guaranty by the Lenders and of all extensions of credit to the Borrower by the
Lenders; (b) presentment and demand for payment or performance of any of the
Credit Party Obligations; (c) protest and notice of dishonor or of default
(except as specifically required in the Credit Agreement) with respect to the
Credit Party Obligations or with respect to any security therefor; (d) notice
of the Lenders obtaining, amending, substituting for, releasing, waiving or
modifying any security interest, lien or encumbrance, if any, hereafter
securing the Credit Party Obligations, or the Lenders' subordinating,
compromising, discharging or releasing such security interests, liens or
encumbrances, if any; (e) all other notices to which such Guarantor might
otherwise be entitled; and (f) demand for payment under this Guaranty.
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4.5 REINSTATEMENT.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment
by or on behalf of any Person in respect of the Credit Party Obligations is
rescinded or must be otherwise restored by any holder of any of the Credit
Party Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agents and each Lender on demand for all reasonable costs and expenses
(including, without limitation, reasonable fees of counsel) incurred by an
Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
4.6 REMEDIES.
The Guarantors agree that, as between the Guarantors, on the one hand,
and the Agents and the Lenders, on the other hand, the Credit Party Obligations
may be declared to be forthwith due and payable as provided in Section 9 (and
shall be deemed to have become automatically due and payable in the
circumstances provided in Section 9) notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing such Credit Party
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or such Credit Party
Obligations being deemed to have become automatically due and payable), such
Credit Party Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors. The Guarantors
acknowledge and agree that their obligations hereunder are secured in
accordance with the terms of the Security Agreements and the other Collateral
Documents and that the Lenders may exercise their remedies thereunder in
accordance with the terms thereof.
4.7 LIMITATION OF GUARANTY.
Notwithstanding any provision to the contrary contained herein or in
any of the other Credit Documents, (a) to the extent the obligations of any
Guarantor shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers) then the obligations of such
Guarantor hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including, without
limitation, the Bankruptcy Code) and (b) the obligations of Holdings hereunder
and under the Credit Documents, in the aggregate, shall be limited to an amount
equal to $146,298,000, unless at least ninety percent (90%) of the Holdings
Debentures have been repurchased, in which case no such limitation shall apply.
4.8 RIGHTS OF CONTRIBUTION.
The Credit Parties agree among themselves that, in connection with
payments made hereunder, each Credit Party shall have contribution rights
against the other Credit Parties as permitted under applicable law. Such
contribution rights shall be subordinate and subject in right
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of payment to the obligations of the Credit Parties under the Credit Documents
and no Credit Party shall exercise such rights of contribution until all Credit
Party Obligations have been paid in full and the Commitments terminated.
SECTION 5
CONDITIONS PRECEDENT
5.1 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement and
make the initial Extension of Credit is subject to satisfaction of the
following conditions:
(a) Executed Credit Documents. Receipt by the
Administrative Agent of duly executed copies of: (i) this Credit
Agreement; (ii) the Notes; (iii) the Collateral Documents; and (iv)
all other Credit Documents, each in form and substance reasonably
acceptable to the Administrative Agent in its sole discretion.
(b) Corporate Documents. Receipt by the Administrative
Agent of the following:
(i) Charter Documents. Copies of the articles or
certificates of incorporation or other charter documents of
each Credit Party certified to be true and complete as of a
recent date by the appropriate Governmental Authority of the
state or other jurisdiction of its incorporation and certified
by a secretary or assistant secretary of such Credit Party to
be true and correct as of the Effective Date.
(ii) Bylaws. A copy of the bylaws of each Credit
Party certified by a secretary or assistant secretary of such
Credit Party to be true and correct as of the Effective Date.
(iii) Resolutions. Copies of resolutions of the
Board of Directors of each Credit Party approving and adopting
the Credit Documents to which it is a party, the transactions
contemplated therein and authorizing execution and delivery
thereof, certified by a secretary or assistant secretary of
such Credit Party to be true and correct and in full force and
effect as of the Effective Date.
(iv) Good Standing. Copies of (A) certificates of
good standing, existence or its equivalent with respect to
each Credit Party certified as of a recent date by the
appropriate Governmental Authorities of the state or other
jurisdiction of incorporation and each other jurisdiction in
which the failure to so qualify and be in good standing would
have a Material Adverse Effect on the business or operations
of a Credit Party in such jurisdiction and (B) to the extent
available, a
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certificate indicating payment of all corporate franchise
taxes certified as of a recent date by the appropriate
governmental taxing authorities.
(v) Incumbency. An incumbency certificate of
each Credit Party certified by a secretary or assistant
secretary to be true and correct as of the Effective Date.
(c) Opinion of Counsel. Receipt by the Administrative
Agent of an opinion, or opinions (which shall cover, among other
things, authority, legality, validity, binding effect, enforceability
and attachment and perfection of liens), reasonably satisfactory to
the Administrative Agent, addressed to the Administrative Agent on
behalf of the Lenders and dated as of the Effective Date, from legal
counsel to the Credit Parties.
(d) Personal Property Collateral. The Collateral Agent
shall have received, in form and substance reasonably satisfactory to
the Collateral Agent:
(i) searches of Uniform Commercial Code ("UCC")
filings in the jurisdiction of the chief executive office of
each Credit Party and each jurisdiction where any Collateral
is located or where a filing would need to be made in order to
perfect the Lenders' security interest in the Collateral,
copies of the financing statements on file in such
jurisdictions and evidence that no Liens exist other than
Permitted Liens;
(ii) to the extent not previously received by the
Collateral Agent, duly executed UCC financing statements for
each appropriate jurisdiction as is necessary, in the
Collateral Agent's sole discretion, to perfect the Lenders'
security interest in the Collateral;
(iii) searches of ownership of registrations and
applications for Material Intellectual Property in the
appropriate governmental offices in the United States of
America and such patent/trademark/copyright filings with
respect to the Material Intellectual Property as requested by
the Collateral Agent as are reasonably necessary to perfect
the security interest of the Collateral Agent therein in the
United States of America;
(iv) to the extent not previously received by the
Collateral Agent, all stock certificates evidencing the stock
pledged to the Collateral Agent pursuant to the Pledge
Agreement, together with duly executed in blank undated stock
powers attached thereto; and
(v) to the extent not previously received by the
Collateral Agent, all instruments and chattel paper in the
possession of a Credit Party as required pursuant to the
Collateral Documents together with allonges or assignments as
may be necessary or appropriate to perfect the Lenders'
security interest in the Collateral.
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(e) Real Property Collateral. The Collateral Agent shall
have received, in form and substance reasonably satisfactory to the
Collateral Agent:
(i) (A) fully executed and notarized mortgages,
deeds of trust or deeds to secure debt and/or (B) fully
executed and notarized amendments to existing mortgages, deeds
of trust or deeds to secure debt of record in favor of the
Collateral Agent, as appropriate, (each such mortgage, deed of
trust and deed to secure debt and each existing mortgage, deed
of trust and deed to secure debt of record as amended by the
amendments, as appropriate, referenced above shall be referred
to herein as a "Mortgage" and collectively as "Mortgages") for
each real property asset owned by a Credit Party as set forth
on Schedule 5.1(e)(i) (each of those real property assets on
Schedule 5.1(e)(i) being a "Mortgaged Property" and
collectively the "Mortgaged Properties"), together with such
UCC-1 or UCC-3 financing statements, as appropriate, as the
Collateral Agent shall deem appropriate with respect to each
such Mortgaged Property;
(ii) (A) fully executed and notarized leasehold
mortgages, deeds of trust or deeds to secure debt and/or (B)
fully executed and notarized amendments to existing leasehold
mortgages, deeds of trust or deeds to secure debt, as
appropriate, (each such leasehold mortgage, deed of trust and
deed to secure debt and each existing leasehold mortgage, deed
of trust and deed to secure debt of record as amended by the
amendments, as appropriate, referenced above, a "Leasehold
Mortgage" and collectively the "Leasehold Mortgages") for each
leasehold interest of a Credit Party set forth on Schedule
5.1(e)(ii) (each a "Leasehold Mortgaged Property" and
collectively the "Leasehold Mortgaged Properties"), together
with such UCC-1 or UCC-3 financing statements, as appropriate,
as the Collateral Agent shall deem appropriate with respect to
such Leasehold Mortgaged Properties and evidence that each
leasehold estate set forth on Schedule 5.1(e)(ii) is in the
name of a Credit Party;
(iii) ALTA or other appropriate form mortgagee
title insurance policies (the "Mortgage Policies") issued by
Chicago Title Insurance Company or other title insurers
satisfactory to the Collateral Agent (the "Title Insurance
Company"), in an amount satisfactory to the Collateral Agent
with respect to each Mortgaged Property and each Leasehold
Mortgaged Property (collectively, the "Title Properties"),
which amount shall not exceed the fair market value for each
such Title Property, assuring the Collateral Agent that the
applicable Mortgages or Leasehold Mortgages, as applicable,
create valid and enforceable first priority mortgage liens on
the respective Title Properties, free and clear of all defects
and encumbrances except Permitted Liens which Mortgage
Policies shall be in form and substance reasonably
satisfactory to the Collateral Agent and containing such
endorsements as shall be reasonably satisfactory to the
Collateral Agent and for any other matters that the Collateral
Agent may request, and providing affirmative
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insurance and such reinsurance as the Collateral Agent may
request, all of the foregoing in form and substance reasonably
satisfactory to the Agents;
(iv) to the extent not previously delivered to the
Collateral Agent, maps or plats of an as-built survey of the
sites of the Title Properties certified to the Collateral
Agent and the Title Insurance Company in a manner reasonably
satisfactory to them, dated a date satisfactory to the
Collateral Agent and the Title Insurance Company by an
independent professional licensed land surveyor reasonably
satisfactory to the Collateral Agent and the Title Insurance
Company, which maps or plats and the surveys on which they are
based shall be sufficient to delete any standard printed
survey exception contained in the applicable title policy and
be made in accordance with the Minimum Standard Detail
Requirements for Land Title Surveys jointly established and
adopted by the American Land Title Association and the
American Congress on Surveying and Mapping in 1992, and,
without limiting the generality of the foregoing, there shall
be surveyed and shown on such maps, plats or surveys the
following: (A) the locations on such sites of all the
buildings, structures and other improvements and the
established building setback lines; (B) the lines of streets
abutting the sites and width thereof; (C) all access and other
easements appurtenant to the sites necessary to use the sites;
(D) all roadways, paths, driveways, easements, encroachments
and overhanging projections and similar encumbrances affecting
the site, whether recorded, apparent from a physical
inspection of the sites or otherwise known to the surveyor;
(E) any encroachments on any adjoining property by the
building structures and improvements on the sites; and (F) if
the site is described as being on a filed map, a legend
relating the survey to said map;
(v) an opinion of counsel (which counsel shall be
satisfactory to the Collateral Agent) in the state in which
each Mortgaged Property and Leasehold Mortgaged Property is
located with respect to the enforceability of the Mortgages
and Leasehold Mortgages, standard remedies with respect
thereto, and sufficiency of the form of UCC-1 and/or UCC-3
financing statements to be recorded or filed in such state and
such other matters as the Collateral Agent may request, in
form and substance reasonably satisfactory to the Collateral
Agent (with respect to any Mortgage or Leasehold Mortgage
which is being amended in connection with this Credit
Agreement, counsel shall opine that such Mortgage or Leasehold
Mortgage (together with all amendments thereto) is enforceable
against the respective Credit Party);
(vi) to the extent not previously delivered to the
Collateral Agent, zoning letters from appropriate authorities
in form and substance acceptable to the Collateral Agent or
other evidence satisfactory to the Collateral Agent that each
of the Title Properties, and the uses of the Title Properties,
are in compliance in all material respects with all applicable
zoning laws, including the zoning designation made for each of
the Title Properties, the permitted uses of each such Title
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Properties under such zoning designation and zoning
requirements as to parking, lot size, ingress, egress and
building setbacks;
(vii) to the extent not previously delivered to the
Collateral Agent, certification from Bankers Hazard
Determination Services or Borrower's land surveyor in a form
reasonably satisfactory to the Collateral Agent or other
evidence acceptable to the Collateral Agent that none of the
improvements on the Title Properties located within the United
States are located within any area designated by the Director
of the Federal Emergency Management Agency as a "special flood
hazard" area or if any improvements on the Title Properties
are located within a "special flood hazard" area, evidence of
a flood insurance policy from a company and in an amount
satisfactory to the Collateral Agent for the applicable
portion of the premises, naming the Collateral Agent, for the
benefit of the Lenders, as mortgagee;
(viii) to the extent not previously delivered to the
Collateral Agent, with respect to the Mortgaged Properties
located in Bridgeview, Illinois and Troy, Ohio, a fully
executed and notarized modification of the existing mortgage
or deed of trust in favor of the issuer of the applicable
letter of credit securing the bond financing on such property,
in form and substance acceptable to the Collateral Agent,
which amends and modifies such mortgage or deed of trust to
secure, among other things, the obligations of the Credit
Parties under this Credit Agreement; and
(ix) to the extent not previously delivered to the
Collateral Agent, with respect to the Mortgaged Property
located in Grove City, Pennsylvania, (A) such estoppel
letters, consents and waivers from the owner of such Mortgaged
Property and the holder of any existing mortgage or deed of
trust on such Mortgaged Property, as may be reasonably
required by the Collateral Agent, which estoppel letters shall
be in form and substance reasonably satisfactory to the
Collateral Agent and (B) evidence that the installment sale
contract pursuant to which the Borrower's interest in such
Mortgaged Property is derived or a memorandum of such contract
with respect thereto, or other evidence of such contract in
form and substance reasonably satisfactory to the Collateral
Agent, has been recorded in all places to the extent necessary
or desirable, in the reasonable judgment of the Collateral
Agent, so as to enable the Mortgage encumbering such Mortgaged
Property to effectively create a valid and enforceable lien
(subject only to Permitted Liens) on the Borrower's rights and
interests in such Mortgaged Property in favor of the
Collateral Agent (or such other Person as may be required or
desired under local law) for the benefit of Lenders.
(f) Environmental Reports. The Administrative Agent
shall have received, in form and substance satisfactory to the
Administrative Agent, environmental site assessment reports and
related documents with respect to all Real Properties.
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(g) Financial Statements. Receipt and approval by the
Administrative Agent of (i) the consolidated financial statements of
Holdings, the Borrower and their Subsidiaries for each of the fiscal
years ending December 31, 1994, 1995 and 1996, including balance
sheets and income and cash flow statements, audited by nationally
recognized independent public accountants and containing an
unqualified opinion of such firm that such statements present fairly,
in all material respects, the consolidated financial position and
results of operations of Holdings, the Borrower and their
Subsidiaries, and are prepared in conformity with GAAP, (ii) unaudited
consolidated financial statements of Holdings, the Borrower and their
Subsidiaries for the fiscal quarter ending June 30, 1997, (iii)
company prepared working capital detail of Holdings, the Borrower and
their Subsidiaries for the most recent twelve month period, together
with projections for working capital for the twelve month period
subsequent to the Closing Date, (iv) a satisfactory proforma
consolidated balance sheet of Holdings, the Borrower and their
Subsidiaries as of the Closing Date giving effect to the transactions
contemplated hereby, reviewed by nationally recognized independent
accountants, (v) satisfactory projections of Holdings, the Borrower or
any of their Subsidiaries (the "Projections") for each twelve month
period through the twelve month period ending seven (7) years from the
Closing Date and (vi) such other financial information deemed
reasonably necessary for review in connection herewith.
(h) Evidence of Insurance. Receipt by the Administrative
Agent of copies of insurance policies or certificates of insurance of
the Credit Parties evidencing liability and casualty insurance meeting
the requirements set forth in the Credit Documents, including, but not
limited to, naming the Collateral Agent as additional insured or loss
payee on behalf of the Lenders.
(i) Material Adverse Effect. No event shall have occurred
since December 31, 1996 that has had or would be reasonably expected
to have a Material Adverse Effect.
(j) Litigation. There shall not exist any pending or
threatened action, suit, investigation or proceeding against a Credit
Party or any of their Subsidiaries that would have or would reasonably
be expected to have a Material Adverse Effect.
(k) Officer's Certificates.
(i) The Administrative Agent shall have received
a certificate or certificates executed by the chief financial
officer or treasurer of the Borrower as of the Effective Date
stating that (A) the Borrower and each of the Borrower's
Subsidiaries are in compliance with all existing financial
obligations, (B) all governmental, shareholder and third party
consents and approvals, if any, with respect to the Credit
Documents and the transactions contemplated thereby have been
obtained, (C) no action, suit, investigation or proceeding is
pending or, to the best knowledge of such chief financial
officer, threatened in any court or before any arbitrator or
governmental instrumentality that purports to affect the
Borrower, any of the Borrower's Subsidiaries or any
transaction contemplated by
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the Credit Documents, if such action, suit, investigation or
proceeding could be reasonably expected to have a Material
Adverse Effect, (D) the financial statements and information
delivered to the Administrative Agent on or before the
Effective Date were prepared in good faith and using
reasonable assumptions, (E) no event or condition has occurred
since December 31, 1996 which has had or might be reasonably
expected to have a Material Adverse Effect and (F) immediately
after giving effect to this Credit Agreement, the other Credit
Documents and all the transactions contemplated therein to
occur on such date, (1) the Borrower and each of the
Borrower's Subsidiaries is Solvent, (2) no Default or Event of
Default exists, (3) all representations and warranties
contained herein and in the other Credit Documents are true
and correct in all material respects, and (4) the Credit
Parties are in compliance with each of the financial covenants
set forth in Section 7.2.
(ii) The Administrative Agent shall have received
a certificate or certificates executed by the chief financial
officer or treasurer of Holdings as of the Effective Date
stating that (A) Holdings is in compliance with all existing
financial obligations and (B) immediately after giving effect
to this Credit Agreement, the other Credit Documents and all
the transactions contemplated therein, Holdings is Solvent.
(l) Payment of Prior Credit Facility. Receipt by the
Administrative Agent of evidence that all obligations outstanding
under the Prior Credit Agreement have been or are in the process of
being paid in full and all obligations (other than those
indemnifications that specifically survive) have been or are being
terminated.
(m) Initial Public Offering. Receipt by the
Administrative Agent of evidence satisfactory to the Administrative
Agent of the completion of the initial public offering of common stock
of Holdings with net proceeds received from such offering of at least
$90 million.
(n) Subordinated Debt. To the extent not previously
received by the Administrative Agent, copies of all documentation
evidencing the Subordinated Debt certified by an officer of the
Borrower and Holdings, as applicable, to be true and correct, and the
Administrative Agent shall be satisfied that the execution and
delivery of the Credit Documents does not conflict with the terms of
the Holdings Debentures or the Subordinated Notes.
(o) Stock Ownership Arrangements. Receipt by the
Administrative Agent of copies, certified by the Borrower to be true
and correct as of the Effective Date, of all documentation evidencing
the stock ownership arrangements of Management.
(p) Consent. Receipt by the Administrative Agent of
evidence that all governmental, shareholder and material third party
consents and approvals necessary or
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desirable in connection with the execution and delivery of the Credit
Documents and the consummation of the transactions set forth therein
have been obtained.
(q) Fees and Expenses. Payment by the Credit Parties of
all fees and expenses owed by them to the Lenders and the Agents,
including, without limitation, payments to the Agents set forth in the
Fee Letters.
(r) Other. Receipt by the Lenders of such other
documents, instruments, agreements or information as reasonably and
timely requested by any Lender, including, but not limited to,
information regarding litigation, tax, accounting, labor, insurance,
pension liabilities (actual or contingent), real estate leases,
material contracts, debt agreements, property ownership and contingent
liabilities of the Credit Parties and their Subsidiaries.
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make Loans (including the obligations of the
Lenders to make the second advance with respect to the Tranche A Term Loans as
set forth in Section 2.3(a) or the obligation of any Lender to fund an increase
in the Tranche B Term Loans in accordance with Section 2.4(b) or (d)), nor
shall an Issuing Lender be required to issue or extend a Letter of Credit
unless:
(a) Notice. The Borrower shall have delivered (i) in the
case of any new Revolving Loan, a Notice of Borrowing, duly executed
and completed, by the time specified in Section 2.1, (ii) in the case
of any Letter of Credit, the applicable Issuing Lender shall have
received an appropriate request for issuance in accordance with the
provisions of Section 2.2 or (iii) in the case of the second advance
with respect to the Tranche A Term Loans or any advance in connection
with an increase in the Tranche B Term Loans, the Borrower shall have
delivered notice of its desire to receive such advance at least one
Business Day prior to such advance;
(b) Representations and Warranties. The representations
and warranties made by the Credit Parties in any Credit Document are
true and correct in all material respects at and as if made as of such
date;
(c) No Default. No Default or Event of Default shall
exist or be continuing either prior to or after giving effect thereto;
(d) No Material Adverse Effect. There shall not have
occurred any Material Adverse Effect since December 31, 1996; and
(e) Availability. Immediately after giving effect to the
making of a Revolving Loan (and the application of the proceeds
thereof) or to the issuance of a Letter of Credit, as the case may be,
the sum of the Revolving Loans outstanding plus LOC Obligations
outstanding shall not exceed the Revolving Committed Amount.
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The delivery of each Notice of Borrowing and each request for a Letter of
Credit shall constitute a representation and warranty by the Borrower of the
correctness of the matters specified in subsections (b), (c), (d) and (e)
above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
Each Credit Party hereby represents and warrants to the Agents and
each Lender that:
6.1 ORGANIZATION AND GOOD STANDING.
Holdings, the Borrower and each of their Subsidiaries (a) is a
corporation duly incorporated or formed, validly existing and in good standing
(or its equivalent) under the laws of the State (or other jurisdiction) of its
incorporation or formation, (b) is duly qualified and in good standing as a
foreign corporation authorized to do business in every United States
jurisdiction where the failure to so qualify would have a Material Adverse
Effect and (c) has the requisite corporate power and authority to own its
properties and to carry on its business as now conducted and as proposed to be
conducted.
6.2 DUE AUTHORIZATION.
Each Credit Party (a) has the requisite corporate power and authority
to execute, deliver and perform this Credit Agreement and the other Credit
Documents to which it is a party and to incur the obligations herein and
therein provided for and (b) is duly authorized to, and has been authorized by
all necessary corporate action, to execute, deliver and perform this Credit
Agreement and the other Credit Documents to which it is a party.
6.3 NO CONFLICTS.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by such Credit Party will (a)
violate or conflict with any provision of its articles or certificate of
incorporation or bylaws, (b) materially violate, contravene or conflict with
any law, regulation (including, without limitation, Regulation U or Regulation
X), order, writ, judgment, injunction, decree or permit applicable to it, (c)
violate, contravene or materially conflict with contractual provisions of, or
cause an event of default under, any indenture, loan agreement, mortgage, deed
of trust, contract or other agreement or instrument to which it is a party or
by which it may be bound, the violation of which could have or might be
reasonably expected to have a Material Adverse Effect, or (d) result in or
require the creation of any Lien (other than those contemplated in or created
in connection with the Credit Documents) upon or with respect to its
properties.
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6.4 CONSENTS.
No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental Authority or
third party in respect of any Credit Party is required in connection with the
execution, delivery or performance of this Credit Agreement or any of the other
Credit Documents by a Credit Party, or if required, such consent, approval and
authorization has been obtained.
6.5 ENFORCEABLE OBLIGATIONS.
This Credit Agreement and the other Credit Documents have been duly
executed and delivered and constitute legal, valid and binding obligations of
each Credit Party enforceable against such Credit Party in accordance with
their respective terms, except as may be limited by bankruptcy or insolvency
laws or similar laws affecting creditors' rights generally or by general
equitable principles.
6.6 FINANCIAL CONDITION.
The financial statements and financial information provided to the
Lenders as described in Section 7.1 fairly present the financial condition and
operations of Holdings, the Borrower and their Subsidiaries as of the date of
each such statement. In addition, such financial statements were prepared in
accordance with GAAP and, since the audited financial statements dated December
31, 1996, there have occurred no changes or circumstances which have had or are
likely to have a Material Adverse Effect.
6.7 NO DEFAULT.
No Default or Event of Default has occurred and continues to exist.
6.8 OWNERSHIP.
Other than Permitted Liens, each Credit Party, and each of its
Subsidiaries, is the owner of (free and clear of all Liens) and has good and
marketable title to (a) all of its Mortgaged Properties (except as indicated on
the Mortgage Policies accepted by the Collateral Agent) and (b) all of its
other respective assets.
6.9 INDEBTEDNESS.
The Credit Parties and their Subsidiaries have no Indebtedness except
(a) as disclosed in the financial statements referenced in Section 5.1(g), (b)
as set forth on Schedule 6.9 and (c) as otherwise permitted by this Credit
Agreement.
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6.10 LITIGATION.
There are no actions, suits or legal, equitable, arbitration or
administrative proceedings, pending or, to the knowledge of any Credit Party,
threatened against Holdings, the Borrower or any of their Subsidiaries which
would have or would be reasonably expected to have a Material Adverse Effect.
6.11 MATERIAL AGREEMENTS.
Neither Holdings, the Borrower nor any of their Subsidiaries is in
default in any respect under any contract, lease, loan agreement, indenture,
mortgage, security agreement or other agreement or obligation to which it is a
party or by which any of its properties is bound which default would have or
would be reasonably expected to have a Material Adverse Effect.
6.12 TAXES.
Each of Holdings, the Borrower and their Subsidiaries, has filed, or
caused to be filed, all tax returns (federal, state, local and foreign)
required to be filed and paid all amounts of taxes shown thereon to be due
(including interest and penalties) and has paid all other taxes, fees,
assessments and other governmental charges (including mortgage recording taxes,
documentary stamp taxes and intangibles taxes) owing by it, except for such
taxes (i) which are not yet delinquent or (ii) that are being contested in good
faith and by proper proceedings, and against which adequate reserves are being
maintained in accordance with GAAP in effect from time to time. No Credit
Party is aware of any proposed material tax assessments against it, any of its
Subsidiaries or any other Credit Party.
6.13 COMPLIANCE WITH LAW.
Each of Holdings, the Borrower and their Subsidiaries, is in
compliance with all laws, rules, regulations, orders and decrees (including
without limitation Environmental Laws) applicable to it, or to its properties,
unless such failure to comply would not have or be reasonably expected to have
a Material Adverse Effect.
6.14 ERISA.
Except as would not result or be reasonably expected to result in a
Material Adverse Effect:
(a) During the five-year period prior to the date on
which this representation is made or deemed made: (i) no Termination
Event has occurred, and, to the best knowledge of the Credit Parties,
no event or condition has occurred or exists as a result of which any
Termination Event could reasonably be expected to occur, with respect
to any Plan; (ii) no "accumulated funding deficiency," as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether
or not waived, has occurred with respect to any Plan; (iii) each Plan
has been maintained, operated, and funded in compliance with its
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own terms and in material compliance with the provisions of ERISA, the
Code, and any other applicable federal or state laws; and (iv) no lien
in favor of the PBGC or a Plan has arisen or is reasonably likely to
arise on account of any Plan.
(b) The actuarial present value of all "benefit
liabilities" under each Single Employer Plan (determined within the
meaning of Section 401(a)(2) of the Code, utilizing the actuarial
assumptions used to fund such Plans), whether or not vested, did not,
as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the current value of the
assets of such Plan allocable to such accrued liabilities.
(c) Neither a Credit Party, nor any of its Subsidiaries
nor any ERISA Affiliate has incurred, or, to the best knowledge of the
Credit Parties, are reasonably expected to incur, any withdrawal
liability under ERISA to any Multiemployer Plan or Multiple Employer
Plan. Neither the Borrower, any of its Subsidiaries nor any ERISA
Affiliate has received any notification that any Multiemployer Plan is
in reorganization (within the meaning of Section 4241 of ERISA), is
insolvent (within the meaning of Section 4245 of ERISA), or has been
terminated (within the meaning of Title IV of ERISA), and no
Multiemployer Plan is, to the best knowledge of the Credit Parties,
reasonably expected to be in reorganization, insolvent, or terminated.
(d) No prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach of
fiduciary responsibility has occurred with respect to a Plan which has
subjected or is reasonably likely to subject the Borrower or any of
its Subsidiaries or any ERISA Affiliate to any liability under
Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the
Code, or under any agreement or other instrument pursuant to which the
Borrower or any of its Subsidiaries or any ERISA Affiliate has agreed
or is required to indemnify any person against any such liability.
(e) The present value (determined using actuarial and
other assumptions which are reasonable with respect to the benefits
provided and the employees participating) of the liability of the
Borrower and its Subsidiaries and each ERISA Affiliate for
post-retirement welfare benefits to be provided to their current and
former employees under Plans which are welfare benefit plans (as
defined in Section 3(1) of ERISA), net of all assets under all such
Plans allocable to such benefits, are reflected on the Financial
Statements in accordance with FASB 106.
(f) Each Plan which is a welfare plan (as defined in
Section 3(1) of ERISA) to which Sections 601- 609 of ERISA and Section
4980B of the Code apply has been administered in compliance in all
material respects with such sections.
6.15 SUBSIDIARIES.
Set forth on Schedule 6.15 is a complete and accurate list of all
Subsidiaries of each Credit Party as of the Closing Date. Information on
Schedule 6.15 includes, as of the Closing
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Date, jurisdiction of incorporation; the number of shares of each class of
capital stock or other equity interests outstanding; the number and percentage
of outstanding shares of each class owned (directly or indirectly) by such
Credit Party; and the number and effect, if exercised, of all outstanding
options, warrants, rights of conversion or purchase and all other similar
rights with respect thereto. The outstanding capital stock and other equity
interests of all such Subsidiaries is validly issued, fully paid and
non-assessable and is owned by each such Credit Party, directly or indirectly,
free and clear of all Liens (other than those arising under or contemplated in
connection with the Credit Documents). Other than as set forth in Schedule
6.15, as of the Closing Date, neither any Credit Party nor any Subsidiary
thereof has outstanding any securities convertible into or exchangeable for its
capital stock nor does any such Person have outstanding any rights to subscribe
for or to purchase or any options for the purchase of, or any agreements
providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to its capital stock.
6.16 USE OF PROCEEDS; MARGIN STOCK.
The proceeds of the Loans hereunder will be used solely for the
purposes specified in Section 7.11. None of the proceeds of the Loans will be
used in a manner which would violate or result in a violation of Regulation U,
Regulation X or Regulation G or for any other purpose which might be
inconsistent with the provisions of Regulation U, Regulation X, Regulation G or
Regulation T. As of the Closing Date, none of the Credit Parties owns any
Margin Stock. Following the application of the proceeds of each Loan, less
than 25% of the value (as determined by any reasonable method) of the assets of
Holdings and its Subsidiaries (on a consolidated and an unconsolidated basis)
which are subject to any limitation on sale, pledge or other restriction
hereunder taken as a whole are and will continue to be, Margin Stock, it being
understood that the Credit Parties may only purchase Margin Stock if it
qualifies as a Permitted Investment.
6.17 GOVERNMENT REGULATION.
No Credit Party, nor any of its Subsidiaries, is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act,
the Investment Company Act of 1940 or the Interstate Commerce Act, each as
amended. In addition, no Credit Party is an "investment company" registered
or required to be registered under the Investment Company Act of 1940, as
amended, or controlled by such a company, or a "holding company," or a
"Subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "Subsidiary" or a "holding company," within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
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6.18 ENVIRONMENTAL MATTERS.
(a) Except to the extent it would not cause or be
reasonably expected to cause a Material Adverse Effect:
(i) each of the Real Properties and all other
real property owned or leased by any Credit Party or any one
of its Subsidiaries (collectively, the "Properties") and all
operations at the Properties are in compliance with all
applicable Environmental Laws, and there is no violation of
any Environmental Law with respect to the Properties or the
businesses operated by a Credit Party or any of their
Subsidiaries (the "Businesses"), and there are no conditions
relating to the Businesses or Properties that could give rise
to liability under any applicable Environmental Laws.
(ii) None of the Properties contains, or has
previously contained, any Hazardous Materials at, on or under
the Properties in amounts or concentrations that, if release,
constitute or constituted a violation of, or could give rise
to liability under, Environmental Laws.
(iii) No Credit Party has received any written or
verbal notice of, or inquiry from any Governmental Authority,
any violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the
Properties or the Businesses, nor does any Credit Party have
knowledge or reason to believe that any such notice is being
threatened.
(iv) Hazardous Materials have not been transported
or disposed of from the Properties, or generated, treated,
stored or disposed of at, on or under any of the Properties or
any other location, in each case by or on behalf of any Credit
Party or any of their Subsidiaries.
(v) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of a
Credit Party, threatened, under any Environmental Law to which
a Credit Party or any of their Subsidiaries is or will be
named as a party, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to a
Credit Party or any of their Subsidiaries, the Properties or
the Businesses.
(vi) There has been no release or threat of
release of Hazardous Materials at or from the Properties, or
arising from or related to the operations (including, without
limitation, disposal) of a Credit Party or any of their
Subsidiaries in connection with the Properties or otherwise in
connection with the Businesses.
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(vii) Neither a Credit Party nor any of their
Subsidiaries has assumed any liability of any Person (other
than another Credit Party) under any Environmental Law.
(b) The Borrower has adopted procedures that are designed
to (i) ensure that each Credit Party and their Subsidiaries, any of
their operations and each of the properties owned or leased by each
Credit Party and their Subsidiaries remains in material compliance
with applicable Environmental Laws and (ii) minimize any liabilities
or potential liabilities that each Credit Party and their
Subsidiaries, any of their operations and each of the properties owned
or leased by each Credit Party and their Subsidiaries may have under
applicable Environmental Laws.
(c) As of the Closing Date, no Credit Party is aware of
any material environmental issues other than as set forth on Schedule
6.18, none of which has caused or could be reasonably expected to
cause a Material Adverse Effect.
6.19 INTELLECTUAL PROPERTY.
Each Credit Party and each of their Subsidiaries owns, or has the
legal right to use, all Material Intellectual Property owned or licensed by it.
Set forth on Schedule 6.19 is a list of all registrations and applications for
Material Intellectual Property owned by each Credit Party and a list of all
license agreements to which a Credit Party is a party relating to Material
Intellectual Property that any Credit Party has the right to use as of the
Closing Date. Except as provided on Schedule 6.19, as of the Closing Date, no
claim has been asserted and is pending by any Person against any Credit Party
challenging or questioning the use of any such Material Intellectual Property
or the validity or effectiveness of any such Material Intellectual Property,
nor does any Credit Party know of any such claim, and to the Credit Parties'
knowledge the use of such Material Intellectual Property by a Credit Party or
any of their Subsidiaries does not infringe on the rights of any Person.
Except as set forth on Schedule 6.19, as of the Closing Date, none of the
Material Intellectual Property owned by a Credit Party is the subject of any
licensing or franchise agreement.
6.20 SOLVENCY.
Each Credit Party is and, after consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.
6.21 INVESTMENTS.
All Investments of each Credit Party and each of their Subsidiaries
are either Permitted Investments or otherwise permitted by the terms of this
Credit Agreement.
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6.22 LOCATION OF COLLATERAL.
Set forth on Schedule 6.22(a) is a list of all Real Properties with
street address, county or district and state where located as of the Closing
Date. Set forth on Schedule 6.22(b) is a list of all locations where any
personal property of a Credit Party is located, including county or district
and state where located as of the Closing Date. Set forth on Schedule 6.22(c)
is the chief executive office and principal place of business of each Credit
Party as of the Closing Date.
6.23 NO FINANCING OF CORPORATE TAKEOVERS.
Other than the repurchase of the Subordinated Notes and the Holdings
Debentures in accordance with the terms of this Credit Agreement, no proceeds
of the Loans hereunder have been or will be used to acquire, directly or
indirectly, any security in any transaction which is subject to Sections 13 or
14(d) of the Securities Exchange Act of 1934, as amended, or to refinance any
Indebtedness used to acquire any such securities.
6.24 DISCLOSURE.
Neither (a) this Credit Agreement nor (b) any financial statements
delivered to the Lenders nor (c) any other document, certificate or written
statement on the date as of which such document, certificate or statement is
made or certified, furnished to the Lenders by any Credit Party (including any
officer or director of a Credit Party) in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements contained
therein or herein in light of the circumstances in which they were made, taken
as a whole, not misleading; provided that projections and assumptions expressed
in the information, exhibits, reports, certificates, statements and documents
so furnished were reasonable based on the information available at the time so
furnished, but no Credit Party makes any representation or warranty that such
projections or assumptions will prove in the future to be accurate or that any
Credit Party or any of their Subsidiaries will achieve the financial results
reflected therein.
6.25 LICENSES, ETC.
The Credit Parties have obtained and hold in full force and effect,
all franchises, licenses, permits, certificates, authorizations,
qualifications, accreditations, easements, rights of way and other rights,
consents and approvals which are necessary for the operation of their
respective businesses as presently conducted, except where the failure to
obtain same would not have a Material Adverse Effect.
6.26 NO BURDENSOME RESTRICTIONS.
No Credit Party, nor any of their Subsidiaries, is a party to any
agreement or instrument or subject to any charter or corporate restriction
which, individually or in the aggregate, would have or be reasonably expected
to have a Material Adverse Effect.
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6.27 COLLATERAL DOCUMENTS.
The Collateral Documents create valid security interests in, and Liens
on, the Collateral purported to be covered thereby, which security interests
and Liens are and will remain perfected security interests and Liens to the
extent required by the Collateral Documents, prior to all other Liens other
than Permitted Liens. Each of the representations and warranties made by the
Credit Parties and their Subsidiaries in the Collateral Documents is true and
correct in all material respects. Notwithstanding the foregoing, it is
understood that certain Collateral can only be perfected upon the filing of
adequate financing statements in appropriate filing offices.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that until the Loans and
LOC Obligations, together with interest and fees and other obligations
hereunder other than obligations that expressly survive the termination of this
Credit Agreement, have been paid in full and the Commitments and Letters of
Credit hereunder shall have terminated:
7.1 INFORMATION COVENANTS.
The Borrower will furnish, or cause to be furnished, to the
Administrative Agent and, except as otherwise specifically provided below, each
of the Lenders:
(a) Annual Financial Statements. As soon as available,
and in any event within 90 days after the close of each fiscal year of
the Borrower, a consolidated balance sheet and income statement of
Holdings and its Subsidiaries and the Borrower and its Subsidiaries,
as of the end of such fiscal year, together with related consolidated
statements of operations and retained earnings and of cash flows for
such fiscal year, setting forth in comparative form consolidated
figures for the preceding fiscal year, all such financial information
described above to be in reasonable form and detail and audited by
independent certified public accountants of recognized national
standing reasonably acceptable to the Administrative Agent and whose
opinion shall be to the effect that such financial statements have
been prepared in accordance with GAAP (except for changes with which
such accountants concur) and shall not be limited as to the scope of
the audit or qualified in any manner.
(b) Quarterly Financial Statements. As soon as
available, and in any event within 45 days after the close of each of
the first three fiscal quarters of the Borrower (other than the fourth
fiscal quarter, in which case 90 days after the end thereof), (i) a
consolidated balance sheet and income statement of Holdings and its
Subsidiaries, and the Borrower and its Subsidiaries, as of the end of
such fiscal quarter, together with related consolidated statements of
operations and retained earnings and of cash flows for such fiscal
quarter in each case setting forth in comparative form consolidated
figures for
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the corresponding period of the preceding fiscal year, all such
financial information described above to be in reasonable form and
detail and reasonably acceptable to the Administrative Agent, and
accompanied by a management discussion as to such financial
information and a certificate of the chief financial officer or
treasurer of the Borrower to the effect that such quarterly financial
statements fairly present in all material respects the financial
condition and results of operations of Holdings, the Borrower and
their Subsidiaries and have been prepared in accordance with GAAP,
subject to changes resulting from audit and normal year-end audit
adjustments.
(c) Monthly Financial Statements. As soon as available
and in any event within 35 days after the end of each month of the
Borrower (other than the last month of the first three fiscal quarters
in which case 45 days after the end thereof), a consolidated balance
sheet and income statement of Holdings and its Subsidiaries, and the
Borrower and its Subsidiaries as at the end of such month, together
with related consolidated statements of operations and retained
earnings and of cash flows for such month in each case setting forth
in comparative form consolidated figures for the corresponding period
of the preceding fiscal year (and such other financial information as
reasonably requested by the Administrative Agent or the Required
Lenders, including financial information regarding the divisions of
the Borrower), all such financial information described above to be in
reasonable form and detail and reasonably acceptable to the
Administrative Agent, and accompanied by a management discussion as to
such financial information and a certificate of the chief financial
officer or treasurer of the Borrower to the effect that such monthly
financial statements fairly present in all material respects the
financial condition and results of operations of Holdings, the
Borrower and their Subsidiaries and have been prepared in accordance
with GAAP, subject to changes resulting from audit and normal year-end
audit adjustments.
(d) Officer's Certificate. At the time of delivery of
the financial statements provided for in Sections 7.1(a) and 7.1(b)
above, a certificate of the chief financial officer or treasurer of
the Borrower substantially in the form of Exhibit 7.1(d), (i)
demonstrating compliance with the financial covenants contained in
Section 7.2 by calculation thereof as of the end of each such fiscal
period, (ii) demonstrating compliance with any other terms of the
Credit Agreement as requested by the Administrative Agent and (iii)
stating that no Default or Event of Default exists, or if any Default
or Event of Default does exist, specifying the nature and extent
thereof and what action the Borrower proposes to take with respect
thereto. The Borrower shall also deliver a copy of such certificate
to the Agency Services Address.
(e) Annual Business Plan and Budgets. At least 30 days
after the end of each fiscal year of the Borrower, beginning with the
fiscal year ending December 31, 1997, an annual business plan and
budget of Holdings, the Borrower and each of its operating groups
containing, among other things, pro forma financial statements for the
next fiscal year.
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(f) Compliance With Certain Provisions of the Credit
Agreement. Within 90 days after the end of each fiscal year of the
Borrower, the Borrower shall deliver a certificate, containing
information regarding (i) the calculation of Excess Cash Flow, and
(ii) the amount of any Asset Dispositions, Debt Issuances, Equity
Issuances and Receivables Transactions that were made during the prior
fiscal year.
(g) Accountant's Certificate. Within the period for
delivery of the annual financial statements provided in Section
7.1(a), a certificate of the accountants conducting the annual audit
stating that they have reviewed this Credit Agreement and stating
further whether, in the course of their audit, they have become aware
of any Default or Event of Default and, if any such Default or Event
of Default exists, specifying the nature and extent thereof.
(h) Auditor's Reports. Promptly upon receipt thereof, a
copy of any "management letter" submitted by independent accountants
to Holdings, the Borrower or any of their Subsidiaries in connection
with any annual, interim or special audit of the books of Holdings,
the Borrower or any of their Subsidiaries.
(i) Reports. Promptly upon transmission or receipt
thereof, (a) copies of any filings and registrations with, and reports
to or from, the Securities and Exchange Commission, or any successor
agency, and copies of all financial statements, proxy statements,
notices and reports as Holdings, the Borrower or any of their
Subsidiaries shall send to its shareholders generally or to a holder
of any Indebtedness owed by Holdings, the Borrower or any of their
Subsidiaries in its capacity as such a holder and (b) upon the written
request of the Administrative Agent, all reports and written
information to and from the United States Environmental Protection
Agency, or any state or local agency responsible for environmental
matters, the United States Occupational Health and Safety
Administration, or any state or local agency responsible for health
and safety matters, or any successor agencies or authorities
concerning environmental, health or safety matters.
(j) Notices. Upon a Credit Party obtaining knowledge
thereof, such Credit Party will give written notice to the
Administrative Agent immediately of (a) the occurrence of an event or
condition consisting of a Default or Event of Default, specifying the
nature and existence thereof and what action the Borrower proposes to
take with respect thereto, and (b) the occurrence of any of the
following with respect to Holdings, the Borrower or any of their
Subsidiaries (i) the pendency or commencement of any litigation,
arbitral or governmental proceeding against Holdings, the Borrower or
any of their Subsidiaries which if adversely determined would have or
would be reasonably expected to have a Material Adverse Effect, or
(ii) the institution of any proceedings against Holdings, the Borrower
or any of their Subsidiaries with respect to, or the receipt of notice
by such Person of potential liability or responsibility for violation,
or alleged violation of any federal, state or local law, rule or
regulation, including but not limited to, Environmental Laws, the
violation of which would have or would be reasonably expected to have
a Material Adverse Effect.
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(k) ERISA. Upon any of the Credit Parties or any ERISA
Affiliate obtaining knowledge thereof, the Borrower will give written
notice to the Administrative Agent promptly (and in any event within
five Business Days) of any of the following which would have or would
be reasonably expected to have a Material Adverse Effect: (i) any
event or condition, including, but not limited to, any Reportable
Event, that constitutes, or might reasonably lead to, a Termination
Event; (ii) with respect to any Multiemployer Plan, the receipt of
notice as prescribed in ERISA or otherwise of any withdrawal liability
assessed against the Credit Parties or any of their ERISA Affiliates,
or of a determination that any Multiemployer Plan is in reorganization
or insolvent (both within the meaning of Title IV of ERISA); (iii) the
failure to make full payment on or before the due date (including
extensions) thereof of all amounts which Holdings, the Borrower or any
of their Subsidiaries or ERISA Affiliates is required to contribute to
each Plan pursuant to its terms and as required to meet the minimum
funding standard set forth in ERISA and the Code with respect thereto;
or (iv) any change in the funding status of any Plan that could have a
Material Adverse Effect; together, with a description of any such
event or condition or a copy of any such notice and a statement by a
principal financial officer of the Borrower briefly setting forth the
details regarding such event, condition, or notice, and the action, if
any, which has been or is being taken or is proposed to be taken by
the Credit Parties with respect thereto. Promptly upon request, the
Borrower shall furnish the Administrative Agent with such additional
information concerning any Plan as may be reasonably requested (and in
the case of a Multiemployer Plan is reasonably available to the Credit
Parties or their Subsidiaries), including, but not limited to, copies
of each annual report/return (Form 5500 series), as well as all
schedules and attachments thereto required to be filed with the
Department of Labor and/or the Internal Revenue Service pursuant to
ERISA and the Code, respectively, for each "plan year" (within the
meaning of Section 3(39) of ERISA).
(l) Environmental.
(i) Upon the reasonable written request of the
Administrative Agent, the Borrower will furnish or cause to be
furnished to the Administrative Agent, at the Borrower's
expense, a report of an environmental assessment of reasonable
scope, form and depth, including, where appropriate, invasive
soil or groundwater sampling, by a consultant reasonably
acceptable to the Administrative Agent as to the nature and
extent of the presence of any Hazardous Materials on any
property owned, leased or operated by a Credit Party and as to
the compliance by the Credit Parties with Environmental Laws.
If the Borrower fails to deliver such an environmental report
within seventy-five (75) days after receipt of such written
request then the Administrative Agent may arrange for same,
and the Borrower hereby grants to the Administrative Agent and
its representatives access to such properties and a license of
a scope reasonably necessary to undertake such an assessment
(including, where appropriate, invasive soil or groundwater
sampling). The reasonable cost of any assessment arranged for
by the Administrative Agent
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pursuant to this provision will be payable by the Borrower on
demand and added to the obligations secured by the Collateral
Documents.
(ii) Each Credit Party will conduct and complete
all investigations, studies, sampling, and testing and all
remedial, removal, and other actions necessary to address all
Hazardous Materials on, from, or affecting any real property
owned or leased by a Credit Party to the extent necessary to
be in compliance with all Environmental Laws and all other
applicable federal, state, and local laws, regulations, rules
and policies and with the orders and directives of all
Governmental Authorities exercising jurisdiction over such
real property to the extent any failure to do so would cause
or be reasonably expected to cause a Material Adverse Effect.
(m) Other Information. With reasonable promptness upon
any such request, such other information regarding the business,
properties or financial condition of the Credit Parties and their
Subsidiaries as the Administrative Agent or the Required Lenders may
reasonably request.
7.2 FINANCIAL COVENANTS.
(a) Leverage Ratio. The Leverage Ratio, as of the end of
each fiscal quarter, for the twelve month period ending on such date,
shall be less than or equal to:
(i) From the Effective Date to and including
March 31, 1998, 5.0 to 1.0;
(ii) From April 1, 1998 to and including September
30, 1998, 4.5 to 1.0;
(iii) From October 1, 1998 to and including
September 30, 1999, 4.25 to 1.0;
(iv) From October 1, 1999 to and including
September 30, 2000, 3.75 to 1.0; and
(v) From October 1, 2000 and thereafter, 3.5 to
1.0.
(b) Interest Coverage Ratio. The Interest Coverage
Ratio, as of the end of each fiscal quarter, for the twelve month
period ending on such date, shall be greater than or equal to:
(i) From the Effective Date to and including
March 31, 1998, 2.35 to 1.0;
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(ii) From April 1, 1998 to and including September
30, 1998, 2.4 to 1.0;
(iii) From October 1, 1998 to and including
September 30, 1999, 2.5 to 1.0;
(iv) From October 1, 1999 to and including
September 30, 2000, 2.75 to 1.0; and
(v) From October 1, 2000 and thereafter, 3.0 to
1.0.
(c) Net Worth. At all times Net Worth shall be greater
than or equal to:
(i) From the Effective Date to and including
December 30, 1997, negative Sixty Million (- $60,000,000);
(ii) From December 31, 1997 to and including March
30, 1998, negative Fifty Five Million (- $55,000,000);
(iii) From March 31, 1998 to and including June 29,
1998, negative Fifty Million (- $50,000,000);
(iv) From June 30, 1998 to and including September
29, 1998, negative Forty Five Million (- $45,000,000);
(v) From September 30, 1998 to and including
December 30, 1998, negative Forty Million (- $40,000,000);
(vi) From December 31, 1998 to and including
December 30, 1999, negative Thirty Five Million
(-$35,000,000);
(vii) From December 31, 1999 to and including
December 30, 2000, negative Twenty Million (- $20,000,000);
(viii) From December 31, 2000 to and including
December 30, 2001, Five Million ($5,000,000);
(ix) From December 31, 2001 to and including
December 30, 2002, Twenty Five Million ($25,000,000);
(x) From December 31, 2002 to and including
December 30, 2003, Forty Five Million ($45,000,000); and
(xi) From December 31, 2003 and thereafter, Sixty
Five Million ($65,000,000).
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(d) Fixed Charge Coverage. The Fixed Charge Coverage
Ratio, as of the end of each fiscal quarter, for the twelve month
period ending on such date, shall be greater than or equal to 1.0 to
1.0.
7.3 PRESERVATION OF EXISTENCE AND FRANCHISES.
Each of the Credit Parties will, and will cause its Subsidiaries to,
do all things necessary to preserve and keep in full force and effect its
existence, rights, franchises and authority unless any such Credit Party
determines that any such rights, franchises or authority is no longer necessary
to the conduct of its business.
7.4 BOOKS AND RECORDS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
keep complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of GAAP (including the
establishment and maintenance of appropriate reserves).
7.5 COMPLIANCE WITH LAW.
Each of the Credit Parties will, and will cause its Subsidiaries to,
comply with all laws, rules, regulations and orders, and all applicable
restrictions imposed by all Governmental Authorities, applicable to it and its
property (including, without limitation, Environmental Laws) if noncompliance
with any such law, rule, regulation, order or restriction would have or
reasonably be expected to have a Material Adverse Effect.
7.6 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
pay and discharge (a) all taxes, assessments and governmental charges or levies
imposed upon it, or upon its income or profits, or upon any of its properties,
before they shall become delinquent, (b) all lawful claims (including claims
for labor, materials and supplies) which, if unpaid, might give rise to a Lien
upon any of its properties, and (c) except as prohibited hereunder, all of its
other Indebtedness as it shall become due; provided, however, that a Credit
Party or its Subsidiary shall not be required to pay (i) any such tax,
assessment, charge, levy, claim or Indebtedness which is being contested in
good faith by appropriate proceedings and as to which adequate reserves
therefor have been established in accordance with GAAP or (ii) any such payment
in (a), (b) or (c) above if the failure to make such payment does not give rise
to an immediate right to foreclose on a Lien securing such amounts or would not
have or be reasonably expected to cause a Material Adverse Effect.
7.7 INSURANCE.
Each of the Credit Parties will at all times maintain in full force
and effect insurance (including worker's compensation insurance, liability
insurance, casualty insurance and business
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interruption insurance) in such amounts, covering such risks and liabilities
and with such deductibles or self-insurance retentions as are in accordance
with normal industry practice. All policies shall have the Collateral Agent,
on behalf of the Lenders, as an additional insured or loss payee.
In the event there occurs any material loss, damage to or destruction of the
Collateral of any Credit Party or any part thereof, such Credit Party shall
promptly give written notice thereof to the Administrative Agent generally
describing the nature and extent of such damage or destruction. In the case of
any such loss, damage to or destruction of the Collateral of any Credit Party
or any part thereof, such Credit Party, whether or not the insurance proceeds,
if any, received on account of such damage or destruction shall be sufficient
for that purpose, at such Credit Party's cost and expense, will promptly repair
or replace the Collateral of such Credit Party so lost, damaged or destroyed;
provided, however, that such Credit Party need not repair or replace the
Collateral of such Credit Party so lost, damaged or destroyed to the extent the
failure to make such repair or replacement (a) is desirable to the proper
conduct of the business of such Credit Party in the ordinary course and
otherwise is in the best interest of such Credit Party and (b) would not
materially impair the rights and benefits of the Administrative Agent or the
Lenders under this Credit Agreement or any other Credit Document. In the event
a Credit Party shall receive any proceeds of such insurance in a net amount in
excess of $5,000,000 for any single occurrence, such Credit Party will
immediately pay over such proceeds to the Administrative Agent, for payment on
the Credit Party Obligations; provided, however, that the Administrative Agent
agrees to release such insurance proceeds to such Credit Party for replacement
or restoration of the portion of the Collateral of such Credit Party lost,
damaged or destroyed if, but only if, (A) no Default or Event of Default shall
have occurred and be continuing at the time of release, (B) written application
for such release is received by the Administrative Agent from such Credit Party
within 30 days after written notice of receipt of such proceeds and (C) the
Administrative Agent has received evidence reasonably satisfactory to it that
the Collateral lost, damaged or destroyed has been or will be replaced or
restored to its condition immediately prior to the loss, destruction or other
event giving rise to the payment of such insurance proceeds or such proceeds
are used in a manner reasonably acceptable to the Administrative Agent. All
insurance proceeds shall be subject to the security interest of the Collateral
Agent under the Security Agreement.
The present insurance coverage as of the Closing Date of Holdings, the Borrower
and their Subsidiaries is outlined as to carrier, policy number, expiration
date, type and amount on Schedule 7.7. The Borrower agrees to provide to the
Administrative Agent notice once per annum as to any material changes in such
insurance coverage.
7.8 MAINTENANCE OF PROPERTY.
Each of the Credit Parties will, and will cause its Subsidiaries to,
maintain and preserve its properties and equipment material to the conduct of
its business in good repair, working order and condition, normal wear and tear
excepted, and will make, or cause to be made, in such properties and equipment
from time to time all repairs, renewals, replacements, extensions, additions,
betterments and improvements thereto as may be needed or proper, to the extent
and in
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the manner customary for companies in similar businesses unless any such Credit
Party determines any such properties or equipment are no longer necessary to
the conduct of its business.
7.9 PERFORMANCE OF OBLIGATIONS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
perform in all material respects all of its obligations under the terms of all
material agreements, indentures, mortgages, security agreements or other debt
instruments to which it is a party or by which it is bound.
7.10 COLLATERAL.
If, subsequent to the Effective Date, a Credit Party shall (i) acquire
any personal property which would be required to be delivered to the Collateral
Agent in accordance with the Collateral Documents or any fee simple interest in
real property, Material Intellectual Property or securities or (ii) enter into
any lease agreement with respect to any real property (not including immaterial
office space) not part of the Real Properties as of the Closing Date, the
Borrower shall notify the Administrative Agent of same in each case as soon as
practicable after the acquisition thereof or execution of such lease agreement,
as appropriate. Each Credit Party shall adhere to the covenants regarding the
location of personal property as set forth in the Security Agreement. Each
Credit Party shall take such action, as reasonably requested by the
Administrative Agent, to ensure that the Lenders have a first priority
perfected Lien in all real and personal property of the Credit Parties as set
forth in the Collateral Documents (whether now owned or hereafter acquired),
subject only to Permitted Liens.
7.11 USE OF PROCEEDS.
The Credit Parties will use the proceeds of the Loans solely (a) to
refinance all Indebtedness outstanding under the Prior Credit Agreement, (b) to
repurchase Subordinated Notes and Holding Debentures, (c) to pay premiums, fees
and expenses in connection with the Credit Agreement and the repurchase of
Subordinated Notes and Holdings Debentures, (d) to provide letters of credit
for general corporate purposes including the credit enhancement of the existing
outstanding principal balance under certain industrial revenue bonds in
connection with the Mortgaged Properties, (e) to provide working capital and
for general corporate purposes including Permitted Investments, (f) to make
Permitted Acquisitions and (g) to provide loans to Management pursuant to stock
ownership arrangements of Management in an amount not to exceed $15,000,000 in
the aggregate. The Credit Parties will use the Letters of Credit solely for
the purposes set forth in Section 2.2(a).
7.12 AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours, each Credit
Party will permit, and will cause its Subsidiaries to permit, representatives
appointed by the Administrative Agent or the Required Lenders, including,
without limitation, independent accountants, agents, attorneys and appraisers
to visit and inspect such Credit Party's property, including its books and
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records, its accounts receivable and inventory, its facilities and its other
business assets, and to make photocopies or photographs thereof and to write
down and record any information such representative obtains and shall permit
the Administrative Agent, the Required Lenders or their representatives to
investigate and verify the accuracy of information provided to the Lenders, and
to discuss all such matters with the officers, employees and representatives of
the Credit Parties. The Credit Parties agree that the Administrative Agent and
its representatives may conduct an annual audit of the Collateral (or may audit
the Collateral at any time during the existence of an Event of Default), at the
expense of the Borrower.
7.13 ADDITIONAL CREDIT PARTIES.
At the time any Person becomes a Subsidiary of a Credit Party, the
Borrower shall so notify the Administrative Agent and promptly thereafter (but
in any event within 30 days after the date thereof) shall cause such Person to
(a) if it is a Domestic Subsidiary, execute a Joinder Agreement in
substantially the same form as Exhibit 7.13, (b) cause all of the capital stock
of such Person (if it is a Domestic Subsidiary) or 65% of the capital stock of
such Person (if it is a First Tier Foreign Subsidiary) to be delivered to the
Collateral Agent (together with undated stock powers signed in blank) and
pledged to the Collateral Agent pursuant to an appropriate pledge agreement in
substantially the form of the Pledge Agreement (or a joinder to the existing
Pledge Agreement) and otherwise in a form acceptable to the Collateral Agent,
(c) if such Person is a Domestic Subsidiary, pledge all of its assets to the
Collateral Agent pursuant to a security agreement in substantially the form of
the Security Agreement (or a joinder to the existing Security Agreement) and
otherwise in a form acceptable to the Collateral Agent, and (d) if such Person
is a Domestic Subsidiary and has any Subsidiaries, (A) deliver all of the
capital stock of such Domestic Subsidiaries owned by it and 65% of the stock of
the First Tier Foreign Subsidiaries owned by it (together with undated stock
powers signed in blank) to the Collateral Agent and (B) execute a pledge
agreement in substantially the form of the Pledge Agreement (or a joinder to
the existing Pledge Agreement) and otherwise in a form acceptable to the
Collateral Agent, (e) if such Person is a Domestic Subsidiary and owns or
leases any real property, execute any and all necessary mortgages, deeds of
trust, deeds to secure debt or other appropriate real estate collateral
documentation in a form acceptable to the Collateral Agent (or use its
commercially reasonable efforts to cause to be delivered to the Collateral
Agent a landlord waiver or estoppel letter with respect thereto in a form
reasonably acceptable to the Collateral Agent) and (f) deliver such other
documentation as the Collateral Agent may reasonably request in connection with
the foregoing, including, without limitation, appropriate UCC-1 financing
statements, real estate title insurance policies, environmental reports,
landlord's waivers, certified resolutions and other organizational and
authorizing documents of such Person and favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity, binding
effect and enforceability of the documentation referred to above), all in form,
content and scope reasonably satisfactory to the Collateral Agent.
7.14 INTEREST RATE PROTECTION AGREEMENTS.
Within ninety (90) days after the Closing Date, the Borrower shall
enter into and maintain interest rate protection agreements, in form and
substance acceptable to Administrative Agent,
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protecting against, for a period expiring no earlier than three years from the
date such interest rate protection agreement is purchased, fluctuations in
interest rates and in a notional amount of at least fifty percent (50%) of the
outstanding principal amount of the Term Loans.
7.15 SUBORDINATED NOTES.
The Borrower will prepay or repurchase all the Subordinated Notes on
or before the Subordinated Notes Call Date.
7.16 FURTHER ASSURANCES REGARDING LANDLORD WAIVERS.
As soon as practicable after the Effective Date and in any event not
later than 60 days after the Closing Date the Credit Parties shall use their
commercially reasonable efforts to cause to be delivered to the Collateral
Agent, in form and substance reasonably satisfactory to the Collateral Agent,
an estoppel letter, consent or waiver from the landlords with respect to each
leasehold estate of a Credit Party set forth on Schedule 7.16 (each an "Other
Leasehold Property" and collectively the "Other Leasehold Properties"), which
estoppel letters, consents or waivers shall, among other things, recognize the
Collateral Agent's first priority security interest in all personal property
located on the Other Leasehold Properties and provide a waiver of such
landlord's rights in such personal property in form and substance reasonably
satisfactory to the Collateral Agent.
7.17 INFORMATION UPDATE.
Each of the Credit Parties hereby agrees that it shall promptly (and
in any event within ten Business Days) update Schedule 6.15, Schedule 6.19
and/or Schedule 6.22 upon the request of the Administrative Agent or the
Required Lenders; provided, however, each of the Lenders hereby agrees that
such update of Schedule 6.15, Schedule 6.19 and/or Schedule 6.22 shall not be
considered an amendment or change to the Credit Agreement and therefore will
not require the signature of the Required Lenders.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that until the Loans and
LOC Obligations, together with interest, fees and other obligations hereunder
other than obligations that expressly survive the termination of this Credit
Agreement, have been paid in full and the Commitments and Letters of Credit
hereunder shall have terminated:
8.1 INDEBTEDNESS.
Neither Holdings, the Borrower nor any of their Subsidiaries will
contract, create, incur, assume or permit to exist any Indebtedness, except:
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(a) Indebtedness arising under this Credit Agreement and
the other Credit Documents;
(b) Indebtedness existing as of the Closing Date as
referenced in Section 6.9 (and renewals, refinancings, replacements or
extensions thereof on terms and conditions no more favorable, in the
aggregate, to such Person than such existing Indebtedness and in a
principal amount not in excess of that outstanding as of the date of
such renewal, refinancing, replacement or extension);
(c) Indebtedness in respect of current accounts payable
and accrued expenses incurred in the ordinary course of business and
to the extent not current, accounts payable and accrued expenses that
are subject to bona fide dispute;
(d) Indebtedness owing by (i) one Credit Party to another
Credit Party, (ii) a Foreign Subsidiary to another Foreign Subsidiary,
(iii) a Credit Party to a Foreign Subsidiary and (iv) a Foreign
Subsidiary to a Credit Party provided such Indebtedness is a Permitted
Investment;
(e) Indebtedness with respect to Capital Leases and
purchase money Indebtedness, provided that (i) the total of all such
Indebtedness shall not exceed $5,000,000, in the aggregate, at any one
time, (ii) such Indebtedness when incurred shall not exceed the
purchase price of the asset(s) financed and (iii) no such Indebtedness
shall be refinanced for a principal amount in excess of the principal
balance outstanding thereon at the time of such refinancing;
(f) Indebtedness in connection with a permitted
Receivables Transaction;
(g) Indebtedness evidenced by the interest rate
protection agreements referred to in Section 7.14 or any other Hedging
Agreement entered into in the ordinary course of business and not for
speculative purposes;
(h) Indebtedness existing with respect to real property
or any industrial revenue bond financing of a corporation which
becomes a Subsidiary of the Borrower or is merged with or into a
Credit Party after the date hereof; provided that (A) such
Indebtedness existed at the time such corporation became a Subsidiary
of the Borrower or was merged with or into a Credit Party, (B) such
Indebtedness was not incurred in anticipation thereof, (C) at such
time no Default or Event of Default exists or shall result from such
transaction and (D) such Indebtedness is more favorable than available
under this Credit Agreement;
(i) Indebtedness with respect to the Newton Property not
to exceed $9,000,000;
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(j) Indebtedness incurred by Foreign Subsidiaries (in
addition to such Indebtedness permitted by Section 8.1(d) above) not
to exceed $30,000,000, in the aggregate, at any one time; and
(k) other unsecured Indebtedness (in addition to
Indebtedness otherwise permitted under this Section 8.1) which does
not exceed $5,000,000, in the aggregate, at any one time.
8.2 LIENS.
Neither Holdings, the Borrower nor any of their Subsidiaries will
contract, create, incur, assume or permit to exist any Lien with respect to any
of its property or assets of any kind (whether real or personal, tangible or
intangible), whether now owned or after acquired, except for Permitted Liens.
8.3 NATURE OF BUSINESS.
Neither Holdings, the Borrower nor any of their Subsidiaries will
alter the character of its business from that conducted as of the Effective
Date or engage in any business other than the business conducted as of the
Effective Date and activities which are substantially similar or related
thereto.
8.4 CONSOLIDATION AND MERGER.
Neither Holdings, the Borrower nor any of their Subsidiaries will
enter into any transaction of merger or consolidation or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution); provided that
notwithstanding the foregoing provisions of this Section 8.4, the following
actions may be taken if after giving effect thereto no Default or Event of
Default exists and provided that other actions are taken as reasonably
necessary to ensure that the Lenders have a Lien on all Collateral subject only
to Permitted Liens:
(a) any Credit Party other than Holdings may be merged or
consolidated with or into the Borrower or any other Credit Party;
provided that if such transaction shall be between the Borrower and
another Credit Party, the Borrower shall be the continuing or
surviving corporation;
(b) any Credit Party other than Holdings may merge or
consolidate with any other Person (other than another Credit Party) if
such Credit Party shall be the continuing or surviving corporation or
such other Person may be the surviving corporation if such other
Person becomes a Credit Party hereunder in accordance with the terms
of this Credit Agreement upon consummation of such merger and takes
such other action as required by the Collateral Agent; provided,
however, notwithstanding the foregoing, if the Borrower is involved in
such merger or consolidation with any other Person, the Borrower shall
be the surviving corporation; and
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(c) any Foreign Subsidiary may merge or consolidate with
any other Foreign Subsidiary.
8.5 SALE OR LEASE OF ASSETS.
Unless the Net Cash Proceeds are forwarded to the Administrative Agent
as set forth in Section 3.3(b)(iii), neither Holdings, the Borrower nor any of
their Subsidiaries will convey, sell, lease, transfer or otherwise dispose of,
in one transaction or a series of transactions, all or any part of its business
or assets whether now owned or hereafter acquired, including, without
limitation, inventory, receivables, leasehold interests, and securities but
excluding (i) any inventory or other assets sold, leased or disposed of (or
simultaneously replaced with like goods) in the ordinary course of business,
(ii) obsolete, idle or worn-out assets no longer used or useful in its
business, (iii) subject to Section 8.4, the sale, lease or transfer or other
disposal by a Credit Party of any or all of its assets or the capital stock of
any other Credit Party to the Borrower, another Credit Party or other Person
provided such Person promptly becomes a Credit Party in accordance with the
terms of Section 7.13, (iv) permitted Receivables Transactions, if
consideration paid by third parties does not exceed, in the aggregate,
$50,000,000, and all proceeds from same are paid to the Lenders as set forth in
Section 3.3(b)(iv), (v) license agreements entered, as licensor, in the
ordinary course of business for use of intellectual property or other
intangible assets of any Credit Party or any of their Subsidiaries, (vi)
transfers constituting Permitted Investments, (vii) other sales of assets of
the Credit Parties or any of their Subsidiaries not to exceed $1,000,000, in
the aggregate, during any fiscal year of the Borrower and (viii) other sales of
assets of the Foreign Subsidiaries; provided that the Borrower complies with
the terms of Section 3.3(b)(iii).
8.6 SALE LEASEBACKS.
Except with the consent of the Required Lenders, none of the Credit
Parties will, nor will it permit any of its Subsidiaries to, directly or
indirectly become or remain liable as lessee or as guarantor or other surety
with respect to any lease, whether an operating lease or a capital lease, of
any property (whether real or personal or mixed), whether now owned or
hereafter acquired, (a) which such Credit Party or Subsidiary has sold or
transferred or is to sell or transfer to any other Person other than a Credit
Party or (b) which such Credit Party or Subsidiary intends to use for
substantially the same purpose as any other property which has been sold or is
to be sold or transferred by such Credit Party or Subsidiary to any Person
other than a Credit Party in connection with such lease.
8.7 ADVANCES, INVESTMENTS AND LOANS.
Neither Holdings, the Borrower nor any of their Subsidiaries will make
any Investments except for Permitted Investments.
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8.8 RESTRICTED PAYMENTS.
Neither Holdings, the Borrower nor any of their Subsidiaries will,
directly or indirectly, (a) declare or pay any dividends (whether cash or
otherwise) or make any other distribution upon any shares of its capital stock
of any class or (b) purchase, redeem or otherwise acquire or retire or make any
provisions for redemption, acquisition or retirement of any shares of its
capital stock of any class or any warrants or options to purchase any such
shares other than a Permitted Investment; provided that (i) if no Default or
Event of Default exists and is continuing, the Borrower may pay dividends to
Holdings, (A) for administration expenses up to $1,000,000 per year, (B) to
allow for the repurchase of stock or options of Holdings that constitutes a
Permitted Investment, (C) to allow for the payment of taxes in accordance with
that certain Tax Allocation Agreement dated as of December 17, 1992 among Ivex
Packaging Corporation f/k/a Ivex Holdings Corporation and its Subsidiaries, (D)
subsequent to September 14, 2000, to pay interest on the Holdings Debentures
and (E) to allow for the redemption by Holdings of the Holdings Debentures,
(ii) (A) Subsidiaries of the Borrower may pay dividends to the Borrower or to
another Credit Party that is a Subsidiary of the Borrower and (B) Foreign
Subsidiaries may pay dividends to another Foreign Subsidiary, and (iii)
Holdings may repurchase the capital stock of Holdings so long as such
repurchase constitutes a Permitted Investment.
8.9 TRANSACTIONS WITH AFFILIATES.
Except as set forth on Schedule 8.9, neither Holdings, the Borrower
nor any of their Subsidiaries will enter into any transaction or series of
transactions, whether or not in the ordinary course of business, with any
officer, director, shareholder, or Affiliate (other than a Subsidiary of
Holdings) other than on terms and conditions substantially as favorable as
would be obtainable in a comparable arm's-length transaction with a Person
other than an officer, director, shareholder, Subsidiary or Affiliate.
8.10 OWNERSHIP OF BORROWER.
Holdings will not sell, transfer or otherwise dispose of any shares of
capital stock of the Borrower. Furthermore, Holdings will not hold any assets
other than (a) the stock of the Borrower, (b) such amounts allowed to be
transferred to Holdings pursuant to Section 8.8 and (c) net proceeds from an
equity offering by Holdings for a period not to exceed 90 days from the date of
such equity offering. Holdings may not have any liabilities other than the
liabilities under the Credit Documents, the Holdings Debentures and tax
liabilities and other liabilities in the ordinary course of business.
8.11 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
Neither Holdings, the Borrower nor any of their Subsidiaries will (a)
change its fiscal year without the prior written consent of the Required
Lenders or (b) in any manner that would reasonably be likely to adversely
affect the rights of the Lenders, change its articles or certificate of
incorporation or its bylaws.
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8.12 SUBORDINATED DEBT.
Neither Holdings nor the Borrower will amend, modify or waive any of
the terms and conditions of the Holdings Debentures or the Subordinated Notes,
as applicable, in a manner that would adversely affect the Lenders, or their
rights under the Credit Documents, without the prior written consent of the
Required Lenders; provided that any amendment to the terms and conditions of
the Subordinated Debt solely to allow for the redemption or other acquisition
of Holdings Debentures or Subordinated Notes in accordance with the terms
hereof shall not be deemed to adversely affect the Lenders.
8.13 NO LIMITATIONS.
No Credit Party will, nor will it permit its Subsidiaries to, directly
or indirectly, create or otherwise cause, incur, assume, suffer or permit to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any such Person to (a) pay dividends or make any other
distribution on any of such Person's capital stock, (b) pay any Indebtedness
owed to the Borrower or any other Credit Party, (c) make loans or advances to
any other Credit Party or (d) transfer any of its property to any other Credit
Party, except for encumbrances or restrictions existing under or by reason of
(i) customary non-assignment or net worth provisions in any lease governing a
leasehold interest, license or other contract, (ii) any agreement or other
instrument of a Person existing at the time it becomes a Subsidiary of the
Borrower; provided that such encumbrance or restriction is not applicable to
any other Person, or any property of any other Person, other than such Person
becoming a Subsidiary of the Borrower and was not entered into in contemplation
of such Person becoming a Subsidiary of the Borrower, (iii) this Credit
Agreement and the other Credit Documents, (iv) any agreement of a Credit Party
or any of its Subsidiaries in effect as of the Closing Date governing
Indebtedness of a Credit Party or any of its Subsidiaries outstanding as of the
Closing Date and, if such Indebtedness is renewed, extended or refinanced in
accordance with the terms of this Credit Agreement, such other restrictions in
the agreements governing the renewed, extended or refinanced Indebtedness (and
successive renewals, extensions and refinancings thereof in accordance with the
terms of this Credit Agreement) provided such restrictions are no more
restrictive in any material respect than those contained in the agreements
governing such outstanding Indebtedness being renewed, extended or refinanced,
(v) any agreement governing Indebtedness permitted by Section 8.1(f), (g) and
(k) provided such restrictions are no more restrictive in any material respect
than those contained in the Credit Documents, (vi) any agreement governing
Indebtedness permitted by Section 8.1(h), (vii) any agreement of a Foreign
Subsidiary governing Indebtedness permitted by Section 8.1(j), (viii) any
agreement establishing Permitted Liens with respect to those assets subject to
such Permitted Liens and (ix) any agreement of a foreign joint venture in
effect at such time such foreign joint venture becomes a Subsidiary of a Credit
Party.
8.14 NEGATIVE PLEDGES.
Except as set forth in the Credit Documents and in any agreements
governing Indebtedness permitted by Schedule 8.1(b), a Credit Party will not,
nor will it permit any of its
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Domestic Subsidiaries to, enter into, assume or become subject to any agreement
prohibiting or otherwise restricting the creation or assumption of any Lien
upon its properties or assets, whether now owned or hereafter acquired, or
requiring the grant of any security for such obligation if security is given
for some other obligation; except for any prohibition or restriction existing
under or by reason of (i) Indebtedness permitted by Section 8.1(b), (ii)
customary non-assignment provisions in leases, licenses and other contracts,
(iii) restrictions in agreements establishing Permitted Liens with respect to
the assets subject to such Permitted Liens, (iv) any agreement governing
Indebtedness permitted by Section 8.1(f), (g) and (k) provided such
restrictions are no more restrictive in any material respect than those
contained in the Credit Documents, (v) any agreement of a Foreign Subsidiary
governing Indebtedness permitted by Section 8.1(j) and (vi) any agreement
governing Indebtedness permitted by Section 8.1(h).
8.15 LIMITATION ON FOREIGN OPERATIONS.
The Credit Parties will not, nor will they permit any of their
Subsidiaries to, allow the Foreign Subsidiaries to have assets which in the
aggregate constitute more than 30% of Total Assets at any time.
8.16 MARGIN REGULATIONS.
The Credit Parties will not, nor will they permit any of their
Subsidiaries to, use any of the proceeds of the Loans to purchase or carry any
Margin Stock in violation of Regulation U, Regulation X or Regulation G. The
Credit Parties will not, nor will they permit any of their Subsidiaries to, own
any Margin Stock to the extent the value of all Margin Stock of Holdings and
its Subsidiaries (on a consolidated and unconsolidated basis) would equal or
exceed 25% of the value (as determined by any reasonable method) of the assets
of Holdings and its Subsidiaries (on a consolidated and unconsolidated basis).
SECTION 9
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall:
(i) default in the payment when due of any
principal of any of the Loans or of any reimbursement
obligation arising from drawings under Letters of Credit; or
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(ii) default, and such default shall continue for
three or more days, in the payment when due of any interest on
the Loans, or of any fees or other amounts owing hereunder,
under any of the other Credit Documents or in connection
herewith.
(b) Representations. Any representation, warranty or
statement made or deemed to be made by any Credit Party herein, in any
of the other Credit Documents, or in any statement or certificate
delivered or required to be delivered pursuant hereto or thereto shall
prove untrue in any material respect on the date as of which it was
deemed to have been made.
(c) Covenants. Any Credit Party shall:
(i) default in the due performance or observance
of any term, covenant or agreement contained in Sections 7.2,
7.3, 7.5, 7.11, 7.15, 7.17 or 8.1 through 8.16 inclusive; or
(ii) default in the due performance or observance
by it of any term, covenant or agreement contained in Section
7.1 and such default shall continue unremedied for a period of
five Business Days after the earlier of an officer of Credit
Party becoming aware of such default or notice thereof is
given by the Administrative Agent; or
(iii) default in the due performance or observance
by it of any term, covenant or agreement (other than those
referred to in subsections (a), (b) or (c)(i) or (ii) of this
Section 9.1) contained in this Credit Agreement and such
default shall continue unremedied for a period of at least 30
days after the earlier of an officer of a Credit Party
becoming aware of such default or notice thereof given by the
Administrative Agent.
(d) Other Credit Documents. (i) Any Credit Party shall
default in the due performance or observance of any term, covenant or
agreement in any of the other Credit Documents and such default shall
continue unremedied for a period of at least 30 days after the earlier
of an officer of a Credit Party becoming aware of such default or
notice thereof given by the Administrative Agent, or (ii) any Credit
Document shall fail to be in full force and effect or any Credit
Document shall fail to give the Agents and/or the Lenders the security
interests, liens, rights, powers and privileges purported to be
created thereby or any Credit Party or any Person acting by or on
behalf of any Credit Party shall deny or disaffirm its obligations
under the Credit Documents.
(e) Guaranties. The guaranty given by the Credit Parties
hereunder or by any Additional Credit Party hereafter or any provision
thereof shall cease to be in full force and effect, or any guarantor
thereunder or any Person acting by or on behalf of such guarantor
shall deny or disaffirm such Guarantor's obligations under such
guaranty.
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(f) Bankruptcy, etc. The occurrence of any of the
following with respect to a Credit Party or any of its Subsidiaries
(other than Insignificant Subsidiaries) (each a "Bankruptcy Event"):
(i) a court or governmental agency having jurisdiction in the premises
shall enter a decree or order for relief in respect of a Credit Party
or any of its Subsidiaries (other than Insignificant Subsidiaries) in
an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of a Credit Party or any of its Subsidiaries (other than
Insignificant Subsidiaries) or for any substantial part of its
property or ordering the winding up or liquidation of its affairs; or
(ii) an involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect is commenced against a
Credit Party or any of its Subsidiaries (other than Insignificant
Subsidiaries) and such petition remains unstayed and in effect for a
period of 60 consecutive days; or (iii) a Credit Party or any of its
Subsidiaries (other than Insignificant Subsidiaries) shall commence a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent
to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of such
Person or any substantial part of its property or make any general
assignment for the benefit of creditors; or (iv) a Credit Party or any
of its Subsidiaries (other than Insignificant Subsidiaries) shall
admit in writing its inability to pay its debts generally as they
become due or is not generally paying its debts as they become due; or
(v) a Credit Party or any of its Subsidiaries (other than
Insignificant Subsidiaries) shall take any action in furtherance of
any of the aforesaid purposes.
(g) Defaults under Other Agreements. With respect to any
Indebtedness (other than Indebtedness outstanding under this Credit
Agreement) of a Credit Party or any of its Subsidiaries in a principal
amount in excess of $5,000,000 individually, or in the aggregate,
including, without limitation, the Subordinated Debt (i) a Credit
Party or any of its Subsidiaries shall (A) default in any payment
(beyond the applicable grace period with respect thereto, if any) with
respect to any such Indebtedness, or (B) default (after giving effect
to any applicable grace period) in the observance or performance
relating to such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
or condition shall occur or condition exist, the effect of which
default or other event or condition is to cause, or permit, the holder
or holders of such Indebtedness (or trustee or agent on behalf of such
holders) to cause (determined without regard to whether any notice or
lapse of time is required) any such Indebtedness to become due prior
to its stated maturity; or (ii) any such Indebtedness shall be
declared due and payable, or required to be prepaid other than by a
regularly scheduled required prepayment prior to the stated maturity
thereof; or (iii) any such Indebtedness shall mature and remain
unpaid.
(h) Judgments. One or more judgments, orders, or decrees
shall be entered against a Credit Party or any of its Subsidiaries
involving a liability of $2,500,000 or more, in the aggregate, (to the
extent not paid or covered by insurance provided by a
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carrier who has acknowledged coverage) and such judgments, orders or
decrees (i) are the subject of any enforcement proceeding commenced by
any creditor or (ii) shall continue unsatisfied, undischarged and
unstayed for a period ending on the first to occur of (A) the last day
on which such judgment, order or decree becomes final and unappealable
or (B) 60 days.
(i) ERISA. The occurrence of any of the following events
or conditions which in the aggregate would have a Material Adverse
Effect: (A) any "accumulated funding deficiency," as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether
or not waived, shall exist with respect to any Plan, or any lien shall
arise on the assets of a Credit Party or any of its Subsidiaries or
any ERISA Affiliate in favor of the PBGC or a Plan; (B) a Termination
Event shall occur with respect to a Single Employer Plan, which is, in
the reasonable opinion of the Administrative Agent, likely to result
in the termination of such Plan for purposes of Title IV of ERISA; (C)
a Termination Event shall occur with respect to a Multiemployer Plan
or Multiple Employer Plan, which is, in the reasonable opinion of the
Administrative Agent, likely to result in (i) the termination of such
Plan for purposes of Title IV of ERISA, or (ii) a Credit Party or any
of its Subsidiaries or any ERISA Affiliate incurring any liability in
connection with a withdrawal from, reorganization of (within the
meaning of Section 4241 of ERISA), or insolvency (within the meaning
of Section 4245 of ERISA) of such Plan; or (D) any prohibited
transaction (within the meaning of Section 406 of ERISA or Section
4975 of the Code) or breach of fiduciary responsibility shall occur
which may subject a Credit Party or any of its Subsidiaries or any
ERISA Affiliate to any liability under Sections 406, 409, 502(i), or
502(l) of ERISA or Section 4975 of the Code, or under any agreement or
other instrument pursuant to which a Credit Party or any of its
Subsidiaries or any ERISA Affiliate has agreed or is required to
indemnify any person against any such liability.
(j) Ownership. There shall occur a Change of Control.
(k) Subordinated Debt. The holders of the Subordinated
Notes or the holders of the Holdings Debentures assert in a legal
proceeding (or any Governmental Authority with applicable jurisdiction
determines) that the Lenders are not either (i) holders of Senior
Indebtedness (as defined in the Subordinated Notes) or (ii) holders of
Senior Obligations (as defined in the Holdings Debentures), as
applicable.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived in writing by the
Required Lenders (or the Lenders as may be required hereunder) or cured to the
satisfaction of the Required Lenders (or the Lenders as may be required
hereunder), the Administrative Agent shall, upon the request and direction of
the Required Lenders, by written notice to the Borrower, take any of the
following actions without prejudice to the rights of the Administrative Agent
or any Lender to enforce its claims against the Credit Parties, except as
otherwise specifically provided for herein:
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(a) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(b) Acceleration of Loans. Declare the unpaid principal
of and any accrued interest in respect of all Loans, any reimbursement
obligations arising from drawings under Letters of Credit and any and
all other indebtedness or obligations of any and every kind owing by a
Credit Party to any of the Lenders hereunder to be due whereupon the
same shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
the Credit Parties.
(c) Cash Collateral. Direct the Borrower to pay (and the
Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default under Section 9.1(f), they will
immediately pay) to the Administrative Agent additional cash, to be
held by the Administrative Agent, for the benefit of the applicable
Lenders, in a cash collateral account as additional security for the
LOC Obligations in respect of subsequent drawings under all then
outstanding Letters of Credit in an amount equal to the maximum
aggregate amount which may be drawn under all Letters of Credits then
outstanding.
(d) Enforcement of Rights. Enforce any and all rights
and interests created and existing under the Credit Documents,
including, without limitation, all rights and remedies existing under
the Collateral Documents, all rights and remedies against a Guarantor
and all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(f) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations under Letters of Credit, all accrued
interest in respect thereof, all accrued and unpaid fees and other indebtedness
or obligations owing to the Lenders hereunder shall immediately become due and
payable without the giving of any notice or other action by the Agents or the
Lenders, which notice or other action is expressly waived by the Credit
Parties.
Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code
or any other insolvency statute.
9.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
Notwithstanding any other provisions of this Credit Agreement, after
the occurrence and during the continuance of an Event of Default, all amounts
collected or received by an Agent or any Lender on account of amounts
outstanding under any of the Credit Documents or in respect of the Collateral
shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Agents in connection with
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enforcing the rights of the Lenders under the Credit Documents and any
protective advances made by the Agents with respect to the Collateral
under or pursuant to the terms of the Collateral Documents;
SECOND, to payment of any fees owed to an Agent or an Issuing
Lender;
THIRD, to the payment of all reasonable out-of-pocket costs
and expenses, (including, without limitation, reasonable attorneys'
fees) of each of the Lenders in connection with enforcing its rights
under the Credit Documents;
FOURTH, to the payment of all accrued fees and interest
payable to the Lenders hereunder;
FIFTH, to the payment of the outstanding principal amount of
the Loans and unreimbursed drawings under Letters of Credit, to the
payment or cash collateralization of the outstanding LOC Obligations
and to any principal amounts outstanding under Hedging Agreements, pro
rata as set forth below;
SIXTH, to all other obligations which shall have become due
and payable under the Credit Documents and not repaid pursuant to
clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans,
LOC Obligations and obligations under Hedging Agreements held by such Lender
bears to the aggregate then outstanding Loans, LOC Obligations and obligations
under Hedging Agreements) of amounts available to be applied pursuant to
clauses "THIRD", "FOURTH," "FIFTH" and "SIXTH" above; and (c) to the extent
that any amounts available for distribution pursuant to clause "FIFTH" above
are attributable to the issued but undrawn amount of outstanding Letters of
Credit, such amounts shall be held by the Collateral Agent in a cash collateral
account and applied (x) first, to reimburse the Issuing Lenders from time to
time for any drawings under such Letters of Credit and (y) then, following the
expiration of all Letters of Credit, to all other obligations of the types
described in clauses "FIFTH" and "SIXTH" above in the manner provided in this
Section 9.3.
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SECTION 10
AGENCY PROVISIONS
10.1 APPOINTMENT.
Each Lender hereby designates and appoints NationsBank, N.A. as
Administrative Agent and Collateral Agent and Bankers Trust Company as
Documentation Agent of such Lender to act as specified herein and the other
Credit Documents, and each such Lender hereby authorizes the Agents, as the
agents for such Lender, to take such action on its behalf under the provisions
of this Credit Agreement and the other Credit Documents and to exercise such
powers and perform such duties as are expressly delegated by the terms and of
the other Credit Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere
herein and in the other Credit Documents, the Agents shall not have any duties
or responsibilities, except those expressly set forth herein and therein, or
any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Credit Agreement or any of the other Credit Documents, or shall
otherwise exist against the Agents. The provisions of this Section are solely
for the benefit of the Agents and the Lenders and none of the Credit Parties
shall have any rights as a third party beneficiary of the provisions. In
performing its functions and duties under this Credit Agreement and the other
Credit Documents, each Agent shall act solely as an agent of the Lenders and
does not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for any Credit Party.
10.2 DELEGATION OF DUTIES.
An Agent may execute any of its duties hereunder or under the other
Credit Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
An Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.
10.3 EXCULPATORY PROVISIONS.
Neither the Agents nor any of their officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection herewith or in connection with any of the other Credit Documents
(except for its or such Person's own gross negligence or willful misconduct) or
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any of the Credit Parties contained
herein or in any of the other Credit Documents or in any certificate, report,
document, financial statement or other written or oral statement referred to or
provided for in, or received by an Agent under or in connection herewith or in
connection with the other Credit Documents, or enforceability or sufficiency
therefor of any of the other Credit Documents, or for any failure of the
Borrower to perform its obligations hereunder or thereunder. The Agents shall
not be responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Credit Agreement, or any
of the other Credit
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Documents or for any representations, warranties, recitals or statements made
herein or therein or made by the Borrower or any Credit Party in any written or
oral statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith
furnished or made by an Agent to the Lenders or by or on behalf of the Credit
Parties to the Agents or any Lender or be required to ascertain or inquire as
to the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or the use of the Letters of Credit or of the existence
or possible existence of any Default or Event of Default or to inspect the
properties, books or records of the Credit Parties. The Agents are not
trustees for the Lenders and owe no fiduciary duty to the Lenders.
10.4 RELIANCE ON COMMUNICATIONS.
The Agents shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any of the Credit Parties, independent accountants and
other experts selected by the Agents with reasonable care). The Agents may
deem and treat the Lenders as the owner of its interests hereunder for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Administrative Agent in accordance with Section
11.3(b). The Agents shall be fully justified in failing or refusing to take
any action under this Credit Agreement or under any of the other Credit
Documents unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action. The Agents shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or under any of the other Credit Documents in
accordance with a request of the Required Lenders (or to the extent
specifically provided in Section 11.6, all the Lenders) and such request and
any action taken or failure to act pursuant thereto shall be binding upon all
the Lenders (including their successors and assigns).
10.5 NOTICE OF DEFAULT.
An Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless such Agent has
received notice from a Lender or a Credit Party referring to the Credit
Document, describing such Default or Event of Default and stating that such
notice is a "notice of default." In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders.
Subsequent to an Event of Default and during the continuation thereof,
the Administrative Agent shall, if requested by a Lender, conduct a phase I
environmental audit, and, where necessary, a phase II environmental audit on
any parcel of real estate owned by a Credit
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Party prior to proceeding with foreclosing on any real property of a Credit
Party or exercising voting rights or other remedies with respect to any Pledged
Shares (as defined in the Pledge Agreement).
10.6 NON-RELIANCE ON AGENTS AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Agents nor any of
their officers, directors, employees, agents, attorneys-in-fact or affiliates
has made any representations or warranties to it and that no act by the Agents
or any affiliate thereof hereinafter taken, including any review of the affairs
of any Credit Party, shall be deemed to constitute any representation or
warranty by the Agents to any Lender. Each Lender represents to the Agents
that it has, independently and without reliance upon the Agents or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Credit Parties and made its own decision to make its
Loans hereunder and enter into this Credit Agreement. Each Lender also
represents that it will, independently and without reliance upon the Agents or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Credit Agreement, and
to make such investigation as it deems necessary to inform itself as to the
business, assets, operations, property, financial and other conditions,
prospects and creditworthiness of the Credit Parties. Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Administrative Agent hereunder, the Agents shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, assets, property, financial or other
conditions, prospects or creditworthiness of the Credit Parties which may come
into the possession of the Agents or any of their officers, directors,
employees, agents, attorneys-in-fact or affiliates.
10.7 INDEMNIFICATION.
The Lenders agree to indemnify each Agent in its capacity as such (to
the extent not reimbursed by the Borrower and without limiting the obligation
of the Borrower to do so), ratably according to their respective Commitments
(or if the Commitments have expired or been terminated, in accordance with the
respective principal amounts of outstanding Loans and Participation Interest of
the Lenders), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including without limitation at
any time following payment in full of the Credit Party Obligations) be imposed
on, incurred by or asserted against an Agent in its capacity as such in any way
relating to or arising out of this Credit Agreement or the other Credit
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by an Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of an Agent. If any indemnity furnished to an Agent for any purpose
shall, in the opinion of
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such Agent, be insufficient or become impaired, such Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished. The agreements in this
Section shall survive the payment of the Credit Party Obligations and all other
amounts payable hereunder and under the other Credit Documents.
10.8 AGENTS IN THEIR INDIVIDUAL CAPACITY.
Each Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower or any other
Credit Party as though such Agent were not an Agent hereunder. With respect to
the Loans made and Letters of Credit issued and all obligations owing to it, an
Agent shall have the same rights and powers under this Credit Agreement as any
Lender and may exercise the same as though they were not an Agent, and the
terms "Lender" and "Lenders" shall include each Agent in its individual
capacity.
10.9 SUCCESSOR AGENT.
Any Agent may, at any time, resign upon 20 days written notice to the
Lenders. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Agent provided such successor Agent is a Lender
hereunder or qualifies under clause (b) of the definition of Eligible Assignee.
If no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 45 days after the notice of
resignation, then the retiring Agent shall select a successor Agent provided
such successor is a Lender hereunder or qualifies under clause (b) of the
definition of Eligible Assignee. Upon the acceptance of any appointment as an
Agent hereunder by a successor, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations as an Agent, as appropriate, under this Credit Agreement and the
other Credit Documents and the provisions of this Section 10.9 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
an Agent under this Credit Agreement.
SECTION 11
MISCELLANEOUS
11.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set out below, (c) the Business Day following the day on which the same
has been delivered prepaid to a reputable national overnight air courier
service, or (d) the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address or telecopy numbers set forth on Schedule
11.1, or at such other address as such party may specify by written notice to
the other parties hereto.
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11.2 RIGHT OF SET-OFF.
In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and during the continuation thereof, each
Lender is authorized at any time and from time to time, without presentment,
demand, protest or other notice of any kind (all of which rights being hereby
expressly waived), to set-off and to appropriate and apply any and all deposits
(general or special) and any other indebtedness at any time held or owing by
such Lender (including, without limitation, branches, agencies or Affiliates of
such Lender wherever located) to or for the credit or the account of any Credit
Party against obligations and liabilities of such Credit Party to the Lenders
hereunder, under the Notes, the other Credit Documents or otherwise,
irrespective of whether the Administrative Agent or the Lenders shall have made
any demand hereunder and although such obligations, liabilities or claims, or
any of them, may be contingent or unmatured, and any such set-off shall be
deemed to have been made immediately upon the occurrence of an Event of Default
even though such charge is made or entered on the books of such Lender
subsequent thereto. The Credit Parties hereby agree that any Person purchasing
a participation in the Loans and Commitments hereunder pursuant to Section
11.3(c) or 3.8 may exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a Lender hereunder.
11.3 BENEFIT OF AGREEMENT.
(a) Generally. This Credit Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided that none of
the Credit Parties may assign and transfer any of its interests
without the prior written consent of all the Lenders; and provided
further that the rights of each Lender to transfer, assign or grant
participations in its rights and/or obligations hereunder shall be
limited as set forth in Section 11.3. Notwithstanding the above,
nothing herein shall restrict, prevent or prohibit any Lender from (A)
pledging its Loans hereunder to a Federal Reserve Bank in support of
borrowings made by such Lender from such Federal Reserve Bank, (B)
granting assignments or participations in such Lender's Loans and/or
Commitments hereunder to its parent company and/or to any Affiliate of
such Lender or to any existing Lender or Affiliate thereof, provided
that the Issuing Lenders shall be notified of any such assignment or
participation, or (C) with the prior consent of the Borrower and the
Administrative Agent and in compliance with all applicable laws,
pledge all or any portion of its Notes or Loans to a trustee for the
benefit of investors to secure such Lender's obligations to such
investors.
(b) Assignments. In addition to the assignments
permitted by Section 11.3(a), each Lender may, with the prior written
consent of the Borrower, the Issuing Lenders (subject to the
limitations set forth below) and the Administrative Agent (provided
that no consent of the Borrower shall be required during the existence
and continuation of an Event of Default), which consents shall not be
unreasonably withheld or delayed (it being understood that the
Borrower may refuse to consent to an assignment to a potential
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competitor of the Borrower), assign all or a portion of its rights and
obligations hereunder pursuant to an assignment agreement
substantially in the form of Exhibit 11.3 to one or more Eligible
Assignees; provided that (i) any such assignment shall be in a minimum
aggregate amount of $5,000,000 of the Commitments and in integral
multiples of $1,000,000 above such amount (or the remaining amount of
Commitments held by such Lender) and (ii) each such assignment shall
be of a constant, not varying, percentage of all of the assigning
Lender's rights and obligations under the Commitment being assigned.
Any assignment hereunder shall be effective upon satisfaction of the
conditions set forth above and delivery to the Administrative Agent of
a duly executed assignment agreement together with a transfer fee of
$3,500 payable to the Administrative Agent for its own account. The
consent of an Issuing Lender hereunder shall only be required in
connection with an assignment of all or a portion of the Revolving
Committed Amount, and each Issuing Lender hereby agrees it will
consent to any assignee that is a commercial bank that (A) is rated
B/C or better by Thompson Bankwatch and (B) has assets in excess of
$1,000,000,000. Upon the effectiveness of any such assignment, the
assignee shall become a "Lender" for all purposes of this Credit
Agreement and the other Credit Documents and, to the extent of such
assignment, the assigning Lender shall be relieved of its obligations
hereunder to the extent of the Loans and Commitment components being
assigned. Along such lines the Borrower agrees that upon notice of
any such assignment and surrender of the appropriate Note or Notes, it
will promptly provide to the assigning Lender and to the assignee
separate promissory notes in the amount of their respective interests
substantially in the form of the original Note or Notes (but with
notation thereon that it is given in substitution for and replacement
of the original Note or Notes or any replacement notes thereof).
By executing and delivering an assignment agreement in accordance with
this Section 11.3(b), the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and
the other parties hereto as follows: (i) such assigning Lender
warrants that it is the legal and beneficial owner of the interest
being assigned thereby free and clear of any adverse claim and the
assignee warrants that it is an Eligible Assignee; (ii) except as set
forth in clause (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant
hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Credit
Agreement, any of the other Credit Documents or any other instrument
or document furnished pursuant hereto or thereto or the financial
condition of any Credit Party or the performance or observance by any
Credit Party of any of its obligations under this Credit Agreement,
any of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto; (iii) such assignor and assignee
each represents and warrants that it is legally authorized to enter
into such assignment agreement; (iv) such assignee confirms that it
has received a copy of this Credit Agreement, the other Credit
Documents and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
such assignment agreement; (v) such assignee will independently and
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without reliance upon the Agents, such assigning Lender or any other
Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Credit Agreement and the other
Credit Documents; (vi) such assignee appoints and authorizes the
Agents to take such action on its behalf and to exercise such powers
under this Credit Agreement or any other Credit Document as are
delegated to the Agents by the terms or thereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Credit Agreement and the other
Credit Documents are required to be performed by it as a Lender.
(c) Participations. Each Lender may sell, transfer,
grant or assign participations in all or any part of such Lender's
interests and obligations hereunder; provided that (i) such selling
Lender shall remain a "Lender" for all purposes under this Credit
Agreement (such selling Lender's obligations under the Credit
Documents remaining unchanged) and the participant shall not
constitute a Lender hereunder, (ii) no such participant shall have, or
be granted, rights to approve any amendment or waiver relating to this
Credit Agreement or the other Credit Documents except to the extent
any such amendment or waiver would (A) reduce the principal of or rate
of interest on or fees in respect of any Loans in which the
participant is participating or increase any Commitments with respect
thereto, (B) postpone the date fixed for any payment of principal
(including the extension of the final maturity of any Loan or the date
of any mandatory prepayment), interest or fees in which the
participant is participating, or (C) release all or substantially all
of the collateral or guaranties (except as expressly provided in the
Credit Documents) supporting any of the Loans or Commitments in which
the participant is participating, (iii) sub-participations by the
participant (except to an Affiliate, parent company or Affiliate of a
parent company of the participant) shall be prohibited and (iv) any
such participations shall be in a minimum aggregate amount of
$5,000,000 of the Commitments and in integral multiples of $1,000,000
in excess thereof. In the case of any such participation, the
participant shall not have any rights under this Credit Agreement or
the other Credit Documents (the participant's rights against the
selling Lender in respect of such participation to be those set forth
in the participation agreement with such Lender creating such
participation) and all amounts payable by the Borrower hereunder shall
be determined as if such Lender had not sold such participation;
provided, however, that such participant shall be entitled to receive
additional amounts under Sections 3.9, 3.12, 3.13 and 3.14 to the same
extent that the Lender from which such participant acquired its
participation would be entitled to the benefit of such cost protection
provisions; provided that any participant seeking reimbursement under
Sections 3.9, 3.12, 3.13 or 3.14 shall comply with the obligations
imposed on a Lender by each such Section.
(d) Registration. The Administrative Agent, acting for
this purpose solely on behalf of the Borrower, shall maintain a
register (the "Register") for the recordation of the names and
addresses of the Lenders and the principal amount of the Loans owing
to each Lender from time to time. The entries in the Register shall
be conclusive, in the absence
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of manifest error, and the Borrower, the Agents and the Lenders shall
treat each Person whose name is recorded in the Register as the owner
of a Loan or other obligation hereunder for all purposes of this
Credit Agreement and the other Credit Documents, notwithstanding
notice to the contrary. Any assignment of any Loan or other
obligation hereunder shall be effective only upon appropriate entries
with respect thereto being made in the Register. The Register shall
be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of an Agent or any Lender in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any Credit Party and
the Agents or any Lender shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Agents or any Lender would otherwise have. No
notice to or demand on any Credit Party in any case shall entitle any Credit
Party to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agents or the Lenders
to any other or further action in any circumstances without notice or demand.
11.5 PAYMENT OF EXPENSES; INDEMNIFICATION.
The Credit Parties agree to: (a) pay all reasonable out-of-pocket
costs and expenses of (i) the Administrative Agent and the Issuing Lenders in
connection with (A) the negotiation, preparation, execution and delivery and
administration of this Credit Agreement and the other Credit Documents and the
documents and instruments referred to therein (including, without limitation,
the reasonable fees and expenses of Moore & Van Allen, special counsel to the
Administrative Agent, the fees and expenses of counsel for the Administrative
Agent in connection with collateral issues or foreign issues and the fees and
expenses of counsel to an Issuing Lender in connection with amendments to the
Existing Letters of Credit), and (B) any amendment, waiver or consent relating
hereto and thereto including, but not limited to, any such amendments, waivers
or consents resulting from or related to any work-out, renegotiation or
restructure relating to the performance by the Credit Parties under this Credit
Agreement and (ii) the Agents and the Lenders (during the existence of an Event
of Default) in connection with (A) enforcement of the Credit Documents and the
documents and instruments referred to therein, including, without limitation,
in connection with any such enforcement, the reasonable fees and disbursements
of counsel for the Agents and each of the Lenders, and (B) any bankruptcy or
insolvency proceeding of a Credit Party of any of its Subsidiaries and (b)
indemnify each Lender, its officers, directors, employees, representatives and
agents from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by any of them as a result
of, or arising out of, or in any way related to, or by reason of, any
investigation, litigation or other proceeding (whether or not any Lender is a
party thereto) related to (i) the entering into and/or performance of any
Credit Document or the use of proceeds of any Loans
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(including other extensions of credit) hereunder or the consummation of any
other transactions contemplated in any Credit Document, including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding (but
excluding any such losses, liabilities, claims, damages or expenses to the
extent incurred by reason of gross negligence or willful misconduct on the part
of the Person to be indemnified), (ii) any Environmental Claim and (iii) any
claims for Non-Excluded Taxes.
11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any other Credit Document nor any
of the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is
in writing and signed by the Required Lenders; provided that no such amendment,
change, waiver, discharge or termination shall without the consent of each
Lender affected thereby:
(a) extend the scheduled maturities (including the final
maturity) of any Loan or extend or waive any Principal Amortization
Payment of any Loan or any portion thereof;
(b) reduce the rate or extend the time of payment of
interest (other than as a result of waiving the applicability of any
post-default increase in interest rates) thereon or fees hereunder;
(c) reduce or waive the principal amount of any Loan;
(d) increase or extend the Commitment of a Lender over
the amount thereof in effect (it being understood and agreed that a
waiver of any Default or Event of Default or a waiver of any mandatory
reduction in the Commitments shall not constitute a change in the
terms of any Commitment of any Lender); provided that the Tranche B
Term Loan Committed Amount may be increased in accordance with Section
2.4.
(e) release all or substantially all of the Collateral
securing the Credit Party Obligations hereunder (provided that the
Collateral Agent may, without consent from any other Lender, release
any Collateral that is sold or transferred by a Credit Party in
conformance with Section 8.5);
(f) release the Borrower from its obligations or release
all or substantially all of the other Credit Parties from their
respective obligations under the Credit Documents;
(g) amend, modify or waive any provision of this Section
or Section 3.4(a), 3.4(b)(i), 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12,
3.13, 3.14, 5.2, 9.1(a), 9.3, 11.2, 11.3 or 11.5;
(h) reduce any percentage specified in, or otherwise
modify, the definition of Required Lenders; or
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(i) consent to the assignment or transfer by the Borrower
(or another Credit Party) of any of its rights and obligations under
(or in respect of) the Credit Documents.
Any amendment to Section 3.3(b) or any of the defined terms contained in such
Section 3.3(b) shall be effective upon the written consent of the Required
Lenders.
No amendment or change that affects the application of prepayments pursuant to
Section 3.3(c) or the allocation of payments between the Tranche A Term Loans
and Tranche B Loans shall be effective unless Lenders holding in the aggregate
at least 51% of the outstanding Tranche A Terms Loans and at least 51% of the
Tranche B Term Loans shall consent to such amendment or change in allocation of
payments.
No provision of Section 10 may be amended without the consent of the
Administrative Agent. No provision affecting an Issuing Lender's rights to (a)
reimbursement or indemnity under Section 2.2 or (b) any fronting fee under
Section 3.4(b)(ii) may be amended without the consent of such Issuing Lender.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote
as such Lender sees fit on any reorganization plan that affects the Loans or
the Letters of Credit, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent
provisions set forth herein and (y) the Required Lenders may consent to allow a
Credit Party to use cash collateral in the context of a bankruptcy or
insolvency proceeding.
11.7 COUNTERPARTS/TELECOPY.
This Credit Agreement may be executed in any number of counterparts,
each of which where so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. Delivery of executed
counterparts by telecopy shall be as effective as an original and shall
constitute a representation that an original will be delivered.
11.8 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 DEFAULTING LENDER.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then notwithstanding the provisions of Section 11.6 it shall not be
entitled to vote on any matter requiring the consent of the Required Lenders or
to object to any matter requiring the consent of all the Lenders; provided,
however, that all other benefits and obligations under the Credit Documents
shall apply to such Defaulting Lender.
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<PAGE> 109
11.10 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND
WARRANTIES.
All indemnities set forth herein and all representations and
warranties made herein shall survive the execution and delivery of this Credit
Agreement, the making of the Loans, the issuance of the Letters of Credit and
the repayment of the Loans, LOC Obligations and other obligations and the
termination of the Commitments hereunder. This Credit Agreement shall
terminate upon the termination of all the Commitments and the repayment in full
of the aggregate outstanding principal amount of all Loans, LOC Obligations,
all interest accrued thereon, and all fees and expenses and other amounts due
and payable under the Credit Agreement; provided, however, notwithstanding the
foregoing all obligations of the Credit Parties that expressly survive the
termination of this Credit Agreement shall continue to remain in full force and
effect following the termination of this Credit Agreement.
11.11 GOVERNING LAW; JURISDICTION.
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (other than the Mortgage Documents which
are governed by the laws of the State where the real property is
located that is covered by such Mortgage Document). Any legal action
or proceeding with respect to this Credit Agreement or any other
Credit Document may be brought in the courts of the State of North
Carolina or of the United States for the Western District of North
Carolina, and, by execution and delivery of this Credit Agreement,
each Credit Party hereby irrevocably accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction of
such courts. Each Credit Party further irrevocably consents to the
service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to it at the address for notices
pursuant to Section 11.1, such service to become effective 30 days
after such mailing. Nothing herein shall affect the right of a Lender
to serve process in any other manner permitted by law or to commence
legal proceedings or to otherwise proceed against a Credit Party in
any other jurisdiction. Each Credit Party agrees that a final
judgment in any action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law; provided that nothing in this Section
11.11(a) is intended to impair a Credit Party's right under applicable
law to appeal or seek a stay of any judgment.
(b) Each Credit Party hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of
any of the aforesaid actions or proceedings arising out of or in
connection with this Credit Agreement or any other Credit Document
brought in the courts referred to in subsection (a) hereof and hereby
further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such
court has been brought in an inconvenient forum.
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<PAGE> 110
11.12 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11.13 TIME.
All references to time herein shall be references to Eastern Standard
Time or Eastern Daylight time, as the case may be, unless specified otherwise.
11.14 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.15 FURTHER ASSURANCES.
The Credit Parties agree, upon the request of the Administrative
Agent, to promptly take such actions, as reasonably requested, as is necessary
to carry out the intent of this Credit Agreement and the other Credit
Documents, including, but not limited to, such actions as are necessary to
ensure that the Lenders have a perfected security interest in the Collateral
subject to no Liens other than Permitted Liens.
11.16 ENTIRETY.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
11.17 BINDING EFFECT.
This Credit Agreement shall become effective at such time when all of
the conditions set forth in Section 5.1 have been satisfied or waived by the
Lenders and it shall have been executed by each of the Credit Parties and the
Agents, and the Agents shall have received copies (telefaxed or otherwise)
which, when taken together, bear the signatures of each Lender (including the
Issuing Lenders), and thereafter this Credit Agreement shall be binding upon
and inure to the benefit of each Credit Party, the Agents and each Lender and
their respective successors and assigns. Upon this Credit Agreement becoming
effective, the Prior Credit
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<PAGE> 111
Agreement shall be deemed terminated and the Credit Parties and the lenders
party to the Prior Credit Agreement shall no longer have any obligations
thereunder (other than those obligations in the Prior Credit Agreement that
expressly survive the termination of the Prior Credit Agreement).
11.18 ACKNOWLEDGMENTS.
The Credit Parties hereby acknowledge that:
(a) they have discussed with counsel the terms of this
Credit Agreement and the other Collateral Documents;
(b) neither the Agents nor any Lender has any fiduciary
relationship with or fiduciary duty to any of the Credit Parties
arising out of or in connection with this Credit Agreement or any of
the other Credit Documents, and the relationship between the Agents
and the Lenders, on the one hand, and the Credit Parties, on the other
hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture or partnership is created hereby or
by the other Credit Documents or otherwise exists by virtue of the
transactions contemplated hereby among the Lenders or among the Credit
Parties and the Lenders or among the Credit Parties and the
Administrative Agent.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 112
Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWER: IPC, INC.
a Delaware corporation
By:
------------------------------------
Name: Richard R. Cote
Title: Vice President and Treasurer
GUARANTORS: IVEX PACKAGING CORPORATION
a Delaware corporation
IVEX PAPER MILL CORPORATION
a Delaware corporation
IPMC HOLDING CORPORATION
a Delaware corporation
IPMC, INC.
a Delaware corporation
VALLEY EXPRESS LINES, INC.
a Delaware corporation
KAMA OF ILLINOIS CORPORATION
a Delaware corporation
PACKAGING PRODUCTS, INC.
a Delaware corporation
CFI INDUSTRIES, INC.
a Delaware corporation
CFI RECYCLING, INC.
a Delaware corporation
PLASTOFILM INDUSTRIES, INC.
a Delaware corporation
TRIO PRODUCTS, INC.
a Delaware corporation
By:
------------------------------------
Name: Richard R. Cote
Title: Vice President and Treasurer
of each of the above named
Guarantors
<PAGE> 113
Signature Page to Amended and Restated Credit Agreement, dated as of October 2,
1997, among IPC, Inc., as Borrower, Ivex Packaging Corporation and the Domestic
Subsidiaries of IPC, Inc., as Guarantors, the Lenders party thereto,
NationsBank, N.A., as Administrative Agent and Bankers Trust Company, as
Documentation Agent.
LENDERS:
NATIONSBANK, N.A.,
individually in its capacity as a
Lender and in its capacity as
Administrative Agent and Collateral
Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BANKERS TRUST COMPANY,
individually in its capacity as a
Lender and in its capacity as
Documentation Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
<PAGE> 1
EXHIBIT 4.3
AMENDED AND RESTATED
PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT (this "Pledge Agreement")
is entered into as October 2, 1997 among IPC, INC., a Delaware corporation (the
"Borrower"), IVEX PACKAGING CORPORATION, a Delaware corporation ("Holdings"),
each of the Domestic Subsidiaries of the Borrower (the Borrower's Domestic
Subsidiaries, together with Holdings, individually a "Guarantor" and
collectively the "Guarantors"), BANKERS TRUST COMPANY, in its capacity as
documentation agent (in such capacity, the "Documentation Agent") and
NATIONSBANK, N.A., in its capacity as collateral agent (in such capacity, the
"Collateral Agent") for the lenders from time to time party to the Credit
Agreement described below (the "Lenders").
RECITALS
WHEREAS, the Borrower, the Guarantors, the lenders party thereto and
NationsBank, N.A., as agent entered into that certain Amended and Restated
Credit Agreement dated as of March 24, 1997 which provided a $205 million
credit facility to the Borrower (the "Prior Credit Agreement"). The credit
facility provided pursuant to the Prior Credit Agreement replaced and
refinanced the credit facilities provided to the Borrower by NationsBank, N.A.,
as agent and certain other lenders pursuant to a credit agreement dated as of
December 7, 1995.
WHEREAS, the Borrower and the Guarantors have requested the Lenders to
provide and the Lenders have agreed to provide a new amended and restated
senior secured credit facility to replace and refinance the credit facility
provided pursuant to the Prior Credit Agreement. Specifically, the Borrower
and the Guarantors have requested that, among other things, the new amended and
restated senior secured credit facility (i) provide up to $475 million of
indebtedness to the Borrower and (ii) extend the final maturity of the credit
facilities provided under the Prior Credit Agreement.
WHEREAS, the Prior Credit Agreement has been amended and restated
pursuant to that certain Amended and Restated Credit Agreement, dated as of the
date hereof (as amended, modified, extended, renewed or replaced from time to
time, the "Credit Agreement"), among the Borrower, the Guarantors, the Lenders,
the Documentation Agent and the Collateral Agent, in its capacity as
administrative agent.
WHEREAS, the Lenders have required that the Borrower and the
Guarantors (the Guarantors together with the Borrower, individually a
"Pledgor", and collectively the "Pledgors") secure or resecure, as applicable,
their respective obligations under the Credit Agreement and the other Credit
Documents in accordance with the terms of this Pledge Agreement.
<PAGE> 2
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein but not otherwise
defined shall have the meanings ascribed to such terms in the Credit Agreement.
For purposes of this Pledge Agreement, the term "Lender" shall include any
Affiliate of any Lender which has entered into a Hedging Agreement with the
Borrower.
2. Pledge and Grant of Security Interest. To secure the prompt
payment and performance in full when due, whether by lapse of time or
otherwise, of the Pledgor Obligations (as defined in Section 3 hereof), each
Pledgor hereby pledges and assigns to the Collateral Agent, for the benefit of
the Lenders, and grants to the Collateral Agent, for the benefit of the
Lenders, a continuing security interest (and, as applicable, acknowledges and
reaffirms any prior pledge, assignment and/or security interest granted in
favor of the Collateral Agent, for the benefit of the Lenders) in any and all
right, title and interest of such Pledgor in and to the following, whether now
owned or existing or owned, acquired, or arising hereafter (collectively, the
"Pledged Collateral"):
(a) Pledged Shares. (i) 100% (or, if less, the full
amount owned by such Pledgor) of the issued and outstanding shares of
capital stock owned by such Pledgor of each Domestic Subsidiary (as
set forth on Schedule 2(a) attached hereto) and (ii) 65% (or, if less,
the full amount owned by such Pledgor) of the issued and outstanding
shares of each class of capital stock or other ownership interests
entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) ("Voting Equity") and 100% (or, if less, the full
amount owned by such Pledgor) of the issued and outstanding shares of
each class of capital stock or other ownership interests not entitled
to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2))
("Non-Voting Equity") owned by such Pledgor of each First Tier Foreign
Subsidiary (as set forth on Schedule 2(a) attached hereto), in each
case together with the certificates (or other agreements or
instruments), if any, representing such shares, and all options and
other rights, contractual or otherwise, with respect thereto
(collectively, together with the shares of capital stock described in
Section 2(b) and 2(c) below, the "Pledged Shares"), including, but not
limited to, the following:
(y) all shares or securities representing a
dividend on any of the Pledged Shares, or representing a
distribution or return of capital upon or in respect of the
Pledged Shares, or resulting from a stock split, revision,
reclassification or other exchange therefor, and any
subscriptions, warrants, rights or options issued to the
holder of, or otherwise in respect of, the Pledged Shares; and
(z) without affecting the obligations of such
Pledgor under any provision prohibiting such action hereunder,
in the event of any consolidation or merger in which a Person
set forth on Schedule 2(a) is not the surviving corporation,
all shares of each class of the capital stock of the successor
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<PAGE> 3
corporation formed by or resulting from such consolidation or
merger (or 65% of the shares if the successor corporation is a
First Tier Foreign Subsidiary).
(b) Additional Shares. 100% (or, if less, the full
amount owned by such Pledgor) of the issued and outstanding shares of
capital stock owned by such Pledgor of any Person which hereafter
becomes a Domestic Subsidiary and 65% (or, if less, the full amount
owned by such Pledgor) of the Voting Equity and 100% (or, if less, the
full amount owned by such Pledgor) of the Non-Voting Equity owned by
such Pledgor of any Person which hereafter becomes a First Tier
Foreign Subsidiary, including, without limitation, the certificates
(or other agreements or instruments), if any, representing such
shares.
(c) Other Equity Interests. Any and all other equity
interests of each Pledgor in any Domestic Subsidiary or any First Tier
Foreign Subsidiary; provided that with respect to any capital stock or
equity interest in any First Tier Foreign Subsidiary, not more than
65% of the capital stock or equity interest in any such First Tier
Foreign Subsidiary is pledged hereunder.
(d) Proceeds. All proceeds and products of the
foregoing, however and whenever acquired and in whatever form;
provided that none of the foregoing Collateral shall include any shares of
capital stock or equity interests which constitute Margin Stock.
Without limiting the generality of the foregoing, it is hereby specifically
understood and agreed that a Pledgor may from time to time hereafter deliver
additional shares of stock to the Collateral Agent as collateral security for
the Pledgor Obligations. Upon delivery to the Collateral Agent, such
additional shares of stock shall be deemed to be part of the Pledged Collateral
of such Pledgor and shall be subject to the terms of this Pledge Agreement
whether or not Schedule 2(a) is amended to refer to such additional shares.
3. Security for Pledgor Obligations. The security interest
created hereby in the Pledged Collateral of each Pledgor constitutes continuing
collateral security for all of the following, whether now existing or hereafter
incurred (the "Pledgor Obligations"):
(a) In the case of the Borrower, the prompt performance
and observance by the Borrower of all obligations of the Borrower
under the Credit Agreement, the Notes, this Pledge Agreement and the
other Credit Documents to which the Borrower is a party;
(b) In the case of the Guarantors, the prompt performance
and observance by such Guarantor of all obligations of such Guarantor
under the Credit Agreement, this Pledge Agreement and the other Credit
Documents to which such Guarantor is a party, including, without
limitation, its guaranty obligations arising under Section 4 of the
Credit Agreement; and
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<PAGE> 4
(c) Subject to Section 25 hereof, all other indebtedness,
liabilities and obligations of any kind or nature owing from any
Pledgor to any Lender or the Collateral Agent in connection with (i)
this Pledge Agreement or any other Credit Document, whether now
existing or hereafter arising, due or to become due, direct or
indirect, absolute or contingent, and howsoever evidenced, held or
acquired, together with any and all modifications, extensions,
renewals and/or substitutions of any of the foregoing, (ii) collecting
and enforcing the Credit Party Obligations and (iii) liabilities
arising under Hedging Agreements entered into with a Lender or an
Affiliate of a Lender pursuant to the Credit Agreement.
4. Delivery of the Pledged Collateral. Each Pledgor hereby
agrees that:
(a) Each Pledgor shall deliver to the Collateral Agent
(i) simultaneously with or prior to the execution and delivery of this
Pledge Agreement, all certificates representing the Pledged Shares of
such Pledgor and (ii) promptly upon the receipt thereof by or on
behalf of a Pledgor, all other certificates and instruments
constituting Pledged Collateral of a Pledgor. Prior to delivery to the
Collateral Agent, all such certificates and instruments constituting
Pledged Collateral of a Pledgor shall be held in trust by such Pledgor
for the benefit of the Collateral Agent pursuant hereto. All such
certificates shall be delivered in suitable form for transfer by
delivery or shall be accompanied by duly executed instruments of
transfer or assignment in blank, in the form provided in Schedule 4(a)
attached hereto.
(b) Additional Securities. If such Pledgor shall receive
by virtue of its being or having been the owner of any Pledged
Collateral, any (i) stock certificate, including without limitation,
any certificate representing a stock dividend or distribution in
connection with any increase or reduction of capital,
reclassification, merger, consolidation, sale of assets, combination
of shares, stock splits, spin-off or split-off, promissory notes or
other instrument; (ii) option or right, whether as an addition to,
substitution for, or an exchange for, any Pledged Collateral or
otherwise; (iii) dividends payable in securities; or (iv)
distributions of securities in connection with a partial or total
liquidation, dissolution or reduction of capital, capital surplus or
paid-in surplus, then such Pledgor shall receive such stock
certificate, instrument, option, right or distribution in trust for
the benefit of the Collateral Agent, shall segregate it from such
Pledgor's other property and shall deliver it forthwith to the
Collateral Agent in the exact form received together with any
necessary endorsement and/or appropriate stock power duly executed in
blank in the form provided in Schedule 4(a), to be held by the
Collateral Agent as Pledged Collateral and as further collateral
security for the Pledgor Obligations.
(c) Financing Statements. Each Pledgor shall execute and
deliver to the Collateral Agent such UCC or other applicable financing
statements as may be reasonably requested by the Collateral Agent in
order to perfect and protect the security interest created hereby in
the Pledged Collateral of such Pledgor.
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<PAGE> 5
5. Representations and Warranties. Each Pledgor hereby
represents and warrants to the Collateral Agent, for the benefit of the
Lenders:
(a) Authorization of Pledged Shares. The Pledged Shares
are duly authorized and validly issued, are fully paid and
nonassessable and are not subject to the preemptive rights of any
Person. All other shares of stock constituting Pledged Collateral
will be duly authorized and validly issued, fully paid and
nonassessable and not subject to the preemptive rights of any Person.
(b) Title. Each Pledgor owns the Pledged Collateral of
such Pledgor and will at all times be the legal and beneficial owner
of such Pledged Collateral free and clear of any Lien, except for the
security interest created by this Pledge Agreement and other Permitted
Liens. There exists no "adverse claim" within the meaning of Article
8 of the Uniform Commercial Code as in effect in the State of New York
(the "UCC") with respect to the Pledged Shares of such Pledgor.
(c) Exercising of Rights. The exercise by the Collateral
Agent of its rights and remedies hereunder will not violate any law or
governmental regulation or any material contractual restriction
binding on or affecting a Pledgor or any of its property.
(d) Pledgor's Authority. No authorization, approval or
action by, and no notice or filing with any Governmental Authority or
with the issuer of any Pledged Stock is required either (i) for the
pledge made by a Pledgor or for the granting of the security interest
by a Pledgor pursuant to this Pledge Agreement; or (ii) for the
exercise by the Collateral Agent or the Lenders of their rights and
remedies hereunder (except as may be required by laws affecting the
offering and sale of securities).
(e) Security Interest/Priority. This Pledge Agreement
creates a valid security interest in favor of the Collateral Agent,
for the benefit of the Lenders, in the Pledged Collateral. The taking
of possession by the Collateral Agent of the certificates, endorsed in
blank or endorsed to the Collateral Agent, representing the Pledged
Shares and all other certificates and instruments constituting Pledged
Collateral will perfect and establish the first priority of the
Collateral Agent's security interest in the Pledged Shares and, when
properly perfected by filing or registration, in all other Pledged
Collateral represented by such Pledged Shares and instruments securing
the Pledgor Obligations. Except as set forth in this Section 5(e), no
action is necessary to perfect or otherwise protect such security
interest.
(f) No Other Shares. As of the Closing Date, no Pledgor
owns any shares of stock other than as set forth on Schedule 2(a)
attached hereto.
6. Covenants. Each Pledgor hereby covenants, that so long as any
of the Pledgor Obligations remain outstanding (other than any obligations with
respect to the indemnities which shall survive termination of the Credit
Documents) and until all of the Commitments shall have been terminated, such
Pledgor shall:
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<PAGE> 6
(a) Books and Records. Mark its books and records (and
shall cause the issuer of the Pledged Shares of such Pledgor to mark
its books and records) to reflect the security interest granted to the
Collateral Agent, for the benefit of the Lenders, pursuant to this
Pledge Agreement.
(b) Defense of Title. Warrant and defend title to and
ownership of the Pledged Collateral of such Pledgor at its own expense
against the claims and demands of all other parties claiming an
interest therein, keep the Pledged Collateral free from all Liens,
except for those created hereunder and the security interest created
hereby and except for Permitted Liens, and not sell, exchange,
transfer, assign, lease or otherwise dispose of the Pledged Collateral
of such Pledgor or any interest therein, except as permitted under the
Credit Agreement and the other Credit Documents.
(c) Further Assurances. Promptly execute and deliver at
its expense all further instruments and documents and take all further
action that may be necessary and desirable or that the Collateral
Agent may reasonably request in order to (i) perfect and protect the
security interest created hereby in the Pledged Collateral of such
Pledgor (including without limitation any and all action necessary to
satisfy the Collateral Agent that the Collateral Agent has obtained a
first priority perfected security interest in any capital stock); (ii)
enable the Collateral Agent to exercise and enforce its rights and
remedies hereunder in respect of the Pledged Collateral of such
Pledgor; and (iii) otherwise effect the purposes of this Pledge
Agreement, including, without limitation and if requested by the
Collateral Agent, if an Event of Default shall have occurred and be
continuing, delivering to the Collateral Agent irrevocable proxies in
respect of the Pledged Collateral of such Pledgor.
(d) Amendments. Not make or consent to any amendment or
other modification or waiver with respect to any of the Pledged
Collateral of such Pledgor or enter into any agreement or allow to
exist any restriction with respect to any of the Pledged Collateral of
such Pledgor other than pursuant hereto or as may be permitted under
the Credit Agreement.
(e) Compliance with Securities Laws. File all reports
and other information now or hereafter required to be filed by such
Pledgor with the United States Securities and Exchange Commission and
any other state, federal or foreign agency in connection with the
ownership of the Pledged Collateral of such Pledgor.
7. Advances by Lenders. On failure of any Pledgor to perform any
of the covenants and agreements contained herein, the Collateral Agent may, at
its sole option and in its sole discretion, perform the same and in so doing
may expend such sums as the Collateral Agent may reasonably deem advisable in
the performance thereof, including, without limitation, the payment of any
insurance premiums, the payment of any taxes, a payment to obtain a release of
a Lien or potential Lien, expenditures made in defending against any adverse
claim and all other expenditures which the Collateral Agent or the Lenders may
make for the protection of the
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<PAGE> 7
security hereof or which may be compelled to make by operation of law. All
such sums and amounts so expended shall be repayable by the Pledgors on a joint
and several basis (subject to Section 25 hereof) promptly upon timely notice
thereof and demand therefor, shall constitute additional Pledgor Obligations
and shall bear interest from the date said amounts are expended at the default
rate provided in Section 3.1(b) of the Credit Agreement for Revolving Loans
that are Base Rate Loans. No such performance of any covenant or agreement by
the Collateral Agent or the Lenders on behalf of any Pledgor, and no such
advance or expenditure therefor, shall relieve the Pledgors of any default
under the terms of this Pledge Agreement, the other Credit Documents or any
Hedging Agreement. The Lenders may make any payment hereby authorized in
accordance with any bill, statement or estimate procured from the appropriate
public office or holder of the claim to be discharged without inquiry into the
accuracy of such bill, statement or estimate or into the validity of any tax
assessment, sale, forfeiture, tax lien, title or claim except to the extent
such payment is being contested in good faith by a Pledgor in appropriate
proceedings and against which adequate reserves are being maintained in
accordance with GAAP.
8. Events of Default. The occurrence of an event which under the
Credit Agreement would constitute an Event of Default shall be an Event of
Default hereunder (an "Event of Default").
9. Remedies Upon Default. If any Event of Default shall have
occurred and be continuing:
(a) Rights and Remedies. The Collateral Agent may
exercise in respect of the Pledged Collateral of any Pledgor, in
addition to other rights and remedies provided for herein or otherwise
available to it, all rights and remedies of a secured party under the
UCC or any other applicable law.
(b) Sale of Pledged Collateral. Without limiting the
generality of this Section and without notice, the Collateral Agent
may, in its sole discretion, sell or otherwise dispose of or realize
upon the Pledged Collateral, or any part thereof, in one or more
parcels, at public or private sale, at any exchange or broker's board
or elsewhere, at such price or prices and on such other terms as the
Collateral Agent may deem commercially reasonable, for cash, credit or
for future delivery or otherwise in accordance with applicable law.
To the extent permitted by law, any Lender may in such event, bid for
the purchase of such securities. Each Pledgor agrees that, to the
extent notice of sale shall be required by law and has not been waived
by such Pledgor, any requirement of reasonable notice shall be met if
notice, specifying the place of any public sale or the time after
which any private sale is to be made, is personally served on or
mailed, postage prepaid, to Holdings, on behalf of such Pledgor, in
accordance with the notice provisions of Section 11.1 of the Credit
Agreement at least 10 days before the time of such sale. The
Collateral Agent shall not be obligated to make any sale of Pledged
Collateral of such Pledgor regardless of notice of sale having been
given. The Collateral Agent may adjourn any public or private sale
from time to time by announcement at the time and
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<PAGE> 8
place fixed therefore, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.
(c) Private Sale. The Pledgors recognize that the
Collateral Agent may deem it impracticable to effect a public sale of
all or any part of the Pledged Shares or any of the securities
constituting Pledged Collateral and that the Collateral Agent may,
therefore, determine to make one or more private sales of any such
securities to a restricted group of purchasers who will be obligated
to agree, among other things, to acquire such securities for their own
account, for investment and not with a view to the distribution or
resale thereof. Each Pledgor acknowledges that any such private sale
may be at prices and on terms less favorable to the seller than the
prices and other terms which might have been obtained at a public sale
and, notwithstanding the foregoing, agrees that such private sale
shall be deemed to have been made in a commercially reasonable manner
and that the Collateral Agent shall have no obligation to delay sale
of any such securities for the period of time necessary to permit the
issuer of such securities to register such securities for public sale
under the Securities Act of 1933. Each Pledgor further acknowledges
and agrees that any offer to sell such securities which has been (i)
publicly advertised on a bona fide basis in a newspaper or other
publication of general circulation in the financial community of New
York, New York (to the extent that such offer may be advertised
without prior registration under the Securities Act of 1933), or (ii)
made privately in the manner described above shall be deemed to
involve a "public sale" under the UCC, notwithstanding that such sale
may not constitute a "public offering" under the Securities Act of
1933, and the Collateral Agent may, in such event, bid for the
purchase of such securities.
(d) Retention of Pledged Collateral. The Collateral
Agent may, after complying with Section 9-505(2) of the UCC or
otherwise complying with the requirements of applicable law of the
relevant jurisdiction, retain all or any portion of the Pledged
Collateral in satisfaction of the Pledgor Obligations. Unless and
until the Collateral Agent shall have provided such notices, however,
the Collateral Agent shall not be deemed to have retained any Pledged
Collateral in satisfaction of any Pledgor Obligations for any reason.
(e) Deficiency. In the event that the proceeds of any
sale, collection or realization are insufficient to pay all amounts to
which the Collateral Agent or the Lenders are legally entitled, the
Pledgors shall be jointly and severally liable (subject to Section 25
hereof) for the deficiency, together with interest thereon at the
default rate provided in Section 3.1(b) of the Credit Agreement for
Revolving Loans that are Base Rate Loans, together with the costs of
collection and the reasonable fees of any attorneys employed by the
Collateral Agent to collect such deficiency. Any surplus remaining
after the full payment and satisfaction of the Pledgor Obligations
shall be returned to the Pledgors or to whomsoever a court of
competent jurisdiction shall determine to be entitled thereto.
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<PAGE> 9
10. Rights of the Collateral Agent.
(a) Power of Attorney. In addition to other powers of
attorney contained herein, each Pledgor hereby designates and appoints
the Collateral Agent, on behalf of the Lenders, and each of its
designees or agents as attorney-in-fact of such Pledgor, irrevocably
and with power of substitution, with authority to take any or all of
the following actions upon the occurrence and during the continuance
of an Event of Default:
(i) to demand, collect, settle, compromise,
adjust and give discharges and releases concerning the Pledged
Collateral of such Pledgor, all as the Collateral Agent may
reasonably determine;
(ii) to commence and prosecute any actions at any
court for the purposes of collecting any of the Pledged
Collateral of such Pledgor and enforcing any other right in
respect thereof;
(iii) to defend, settle or compromise any action
brought and, in connection therewith, give such discharge or
release as the Collateral Agent may deem reasonably
appropriate;
(iv) to pay or discharge taxes, liens, security
interests, or other encumbrances levied or placed on or
threatened against the Pledged Collateral of such Pledgor;
(v) to direct any parties liable for any payment
under any of the Pledged Collateral of such Pledgor to make
payment of any and all monies due and to become due thereunder
directly to the Collateral Agent or as the Collateral Agent
shall direct;
(vi) to receive payment of and receipt for any and
all monies, claims, and other amounts due and to become due at
any time in respect of or arising out of any Pledged
Collateral of such Pledgor;
(vii) to sign and endorse any drafts, assignments,
proxies, stock powers, verifications, notices and other
documents relating to the Pledged Collateral of such Pledgor;
(viii) to settle, compromise or adjust any suit,
action or proceeding described above and, in connection
therewith, to give such discharges or releases as the
Collateral Agent may deem reasonably appropriate;
(ix) execute and deliver all assignments,
conveyances, statements, financing statements, renewal
financing statements, pledge agreements, affidavits, notices
and other agreements, instruments and documents that the
Collateral Agent reasonably may determine necessary in order
to perfect and maintain the
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<PAGE> 10
security interests and liens granted in this Pledge Agreement
and in order to fully consummate all of the transactions
contemplated therein; provided that the Collateral Agent will
provide notice to the appropriate Obligors of any of the
foregoing within 10 days of the execution, delivery and
filing, if any, thereof and will promptly thereafter provide
copies of any of the foregoing executed and delivered by the
Collateral Agent, including, if received by the Collateral
Agent, acknowledgment copies of any financing statements so
filed;
(x) to exchange any of the Pledged Collateral or
other property upon any merger, consolidation, reorganization,
recapitalization or other readjustment of the issuer thereof
and, in connection therewith, deposit any of the Pledged
Collateral of such Pledgor with any committee, depository,
transfer agent, registrar or other designated agency upon such
terms as the Collateral Agent may determine;
(xi) to vote for a shareholder resolution, or to
sign an instrument in writing, sanctioning the transfer of any
or all of the Pledged Shares of such Pledgor into the name of
the Collateral Agent or one or more of the Lenders or into the
name of any transferee to whom the Pledged Shares of such
Pledgor or any part thereof may be sold pursuant to Section 9
hereof; and
(xii) to do and perform all such other acts and
things as the Collateral Agent may reasonably deem to be
necessary, proper or convenient in connection with the Pledged
Collateral of such Pledgor to effect the purposes of this
Pledge Agreement.
This power of attorney is a power coupled with an interest and shall
be irrevocable (i) for so long as any of the Pledgor Obligations
remain outstanding, (other than any obligations with respect to the
indemnities which shall survive the termination of the Credit
Documents) and (ii) until all of the Commitments shall have been
terminated. The Collateral Agent shall be under no duty to exercise
or withhold the exercise of any of the rights, powers, privileges and
options expressly or implicitly granted to the Collateral Agent in
this Pledge Agreement, and shall not be liable for any failure to do
so or any delay in doing so. The Collateral Agent shall not be liable
for any act or omission or for any error of judgment or any mistake of
fact or law in its individual capacity or its capacity as
attorney-in-fact except acts or omissions resulting from its gross
negligence or willful misconduct. This power of attorney is conferred
on the Collateral Agent solely to protect, preserve and realize upon
its security interest in Pledged Collateral.
(b) Performance by the Collateral Agent of Pledgor's
Obligations. If any Pledgor fails to perform any agreement or
obligation contained herein, after the occurrence and during the
continuance of an Event of Default, the Collateral Agent itself may
perform, or cause performance of, such agreement or obligation, and
the reasonable expenses of the Collateral Agent incurred in connection
therewith shall be payable by the Pledgors on a joint and several
basis pursuant to Section 25 hereof.
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<PAGE> 11
(c) Assignment by the Collateral Agent. The Collateral
Agent may, in accordance with the terms of the Credit Agreement, be
replaced and the successor Collateral Agent shall be entitled to all
of the rights and remedies of the Collateral Agent under this Pledge
Agreement in relation thereto.
(d) The Collateral Agent's Duty of Care. Other than the
exercise of reasonable care to assure the safe custody of the Pledged
Collateral while being held by the Collateral Agent hereunder, the
Collateral Agent shall have no duty or liability to preserve rights
pertaining thereto, it being understood and agreed that Pledgors shall
be responsible for preservation of all rights in the Pledged
Collateral of such Pledgor, and the Collateral Agent shall be relieved
of all responsibility for Pledged Collateral upon surrendering it or
tendering the surrender of it to the Pledgors. The Collateral Agent
shall be deemed to have exercised reasonable care in the custody and
preservation of the Pledged Collateral in its possession if such
Pledged Collateral is accorded treatment substantially equal to that
which the Collateral Agent accords its own property, which shall be no
less than the treatment employed by a reasonable and prudent agent in
the industry, it being understood that the Collateral Agent shall not
have responsibility for (i) ascertaining or taking action with respect
to calls, conversions, exchanges, maturities, tenders or other matters
relating to any Pledged Collateral, whether or not the Collateral
Agent has or is deemed to have knowledge of such matters; or (ii)
taking any necessary steps to preserve rights against any parties with
respect to any Pledged Collateral.
(e) Voting Rights in Respect of the Pledged Collateral.
(i) So long as no Event of Default shall have
occurred and be continuing, to the extent permitted by law,
each Pledgor may exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral of such
Pledgor or any part thereof for any purpose not inconsistent
with the terms of this Pledge Agreement or the Credit
Agreement; and
(ii) Upon the occurrence and during the
continuance of an Event of Default, all rights of a Pledgor to
exercise the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to paragraph (i) of
this Section 10(e) shall cease and all such rights shall
thereupon become vested in the Collateral Agent which shall
thereupon have the sole right to exercise such voting and
other consensual rights.
(f) Dividend Rights in Respect of the Pledged Collateral.
(i) So long as no Event of Default shall have
occurred and be continuing and subject to Section 4(b) hereof,
each Pledgor may receive and retain any and all dividends
(other than stock dividends and other dividends constituting
Pledged Collateral which are addressed hereinabove) or
interest paid
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<PAGE> 12
in respect of the Pledged Collateral to the extent they are
allowed under the Credit Agreement.
(ii) Upon the occurrence and during the continuance
of an Event of Default:
(A) all rights of a Pledgor to receive
the dividends and interest payments which it would
otherwise be authorized to receive and retain
pursuant to paragraph (i) of this Section 10(f) shall
cease and all such rights shall thereupon be vested
in the Collateral Agent which shall thereupon have
the sole right to receive and hold as Pledged
Collateral such dividends and interest payments; and
(B) all dividends and interest payments
which are received by a Pledgor contrary to the
provisions of paragraph (A) of this Section shall be
received in trust for the benefit of the Collateral
Agent, shall be segregated from other property or
funds of such Pledgor, and shall be forthwith paid
over to the Collateral Agent as Pledged Collateral in
the exact form received, to be held by the Collateral
Agent as Pledged Collateral and as further collateral
security for the Pledgor Obligations.
(g) Release of Pledged Collateral. The Collateral Agent
may release any of the Pledged Collateral from this Pledge Agreement
or may substitute any of the Pledged Collateral for other Pledged
Collateral without altering, varying or diminishing in any way the
force, effect, lien, pledge or security interest of this Pledge
Agreement as to any Pledged Collateral not expressly released or
substituted, and this Pledge Agreement shall continue as a first
priority lien, security interest, pledge and charge on all Pledged
Collateral not expressly released or substituted so long as any of the
Pledgor Obligations remain outstanding.
11. Application of Proceeds. Upon the occurrence and during the
continuance of an Event of Default, any payments in respect of the Pledgor
Obligations and any proceeds of any Pledged Collateral, when received by the
Collateral Agent or any of the Lenders in cash or its equivalent, will be
applied in reduction of the Pledgor Obligations in the order set forth in
Section 9.3 of the Credit Agreement, and each Pledgor irrevocably waives the
right to direct the application of such payments and proceeds and acknowledges
and agrees that the Collateral Agent shall have the continuing and exclusive
right to apply and reapply any and all such payments and proceeds in the
Collateral Agent's sole discretion, notwithstanding any entry to the contrary
upon any of its books and records.
12. Costs of Counsel. At all times hereafter, the Pledgors agree
to promptly pay upon demand any and all reasonable documented costs and
expenses of the Collateral Agent or the Lenders, (a) as required under Section
11.5 of the Credit Agreement and (b) as necessary to protect the Pledged
Collateral or to exercise any rights or remedies under this Pledge Agreement or
with respect to any Pledged Collateral. All of the foregoing costs and
expenses shall
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<PAGE> 13
constitute Pledgor Obligations hereunder as set forth under Section 11.5 of the
Credit Agreement.
13. Continuing Agreement.
(a) This Pledge Agreement shall be a continuing agreement
in every respect and shall remain in full force and effect so long as
any amounts payable under any Credit Document or any Letter of Credit
shall remain outstanding, and until all of the Commitments thereunder
shall have terminated (other than any obligations with respect to the
indemnities set forth in the Credit Documents which shall survive the
termination of the Credit Documents). Upon such payment and
termination, this Pledge Agreement shall be automatically terminated
and, the Lenders shall, upon the request and at the expense of the
Pledgors, forthwith release all of its liens and security interests
hereunder. Notwithstanding the foregoing all releases and indemnities
provided hereunder shall survive termination of this Pledge Agreement.
(b) This Pledge Agreement shall continue to be effective
or be automatically reinstated, as the case may be, if at any time
payment, in whole or in part, of any of the Pledgor Obligations is
rescinded or must otherwise be restored or returned by the Collateral
Agent or any Lender as a preference, fraudulent conveyance or
otherwise under any bankruptcy, insolvency or similar law, all as
though such payment had not been made; provided that in the event
payment of all or any part of the Pledgor Obligations is rescinded or
must be restored or returned, all reasonable costs and expenses
(including without limitation any reasonable legal fees and
disbursements) incurred by the Collateral Agent or any Lender in
defending and enforcing such reinstatement shall be deemed to be
included as a part of the Pledgor Obligations.
14. Amendments; Waivers; Modifications. This Pledge Agreement and
the provisions hereof may not be amended, waived, modified, changed, discharged
or terminated except as set forth in Section 11.6 of the Credit Agreement.
15. Successors in Interest. This Pledge Agreement shall create a
continuing security interest in the Collateral and shall be binding upon each
Pledgor, its successors and assigns and shall inure, together with the rights
and remedies of the Collateral Agent and the Lenders hereunder, to the benefit
of the Collateral Agent and the Lenders and their successors and permitted
assigns; provided, however, that none of the Pledgors may assign its rights or
delegate its duties hereunder without the prior written consent of each Lender
or the Required Lenders (unless otherwise permitted by the Credit Agreement) as
required by the Credit Agreement. To the fullest extent permitted by law, each
Pledgor hereby releases the Collateral Agent and each Lender, and its
successors and assigns, from any liability for any act or omission relating to
this Pledge Agreement or the Collateral, except for any liability arising from
the gross negligence or willful misconduct of the Collateral Agent, or such
Lender, or its officers, employees or agents.
16. Notices. All notices required or permitted to be given under
this Pledge Agreement shall be in conformance with Section 11.1 of the Credit
Agreement.
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<PAGE> 14
17. Counterparts. This Pledge Agreement may be executed in any
number of counterparts, each of which where so executed and delivered shall be
an original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Pledge Agreement to produce or
account for more than one such counterpart.
18. Headings. The headings of the sections and subsections hereof
are provided for convenience only and shall not in any way affect the meaning
or construction of any provision of this Pledge Agreement.
19. Governing Law; Submission to Jurisdiction; Venue.
(a) THIS PLEDGE AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Any
legal action or proceeding with respect to this Pledge Agreement may
be brought in the courts of the State of North Carolina, or of the
United States for the Western District of North Carolina, and, by
execution and delivery of this Pledge Agreement, each Pledgor hereby
irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of such courts. Each
Pledgor further irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by registered or certified mail, postage
prepaid, to it at the address for notices pursuant to Section 11.1 of
the Credit Agreement, such service to become effective 30 days after
such mailing. Nothing herein shall affect the right of the Collateral
Agent to serve process in any other manner permitted by law or to
commence legal proceedings or to otherwise proceed against any Pledgor
in any other jurisdiction.
(b) Each Pledgor hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection
with this Pledge Agreement brought in the courts referred to in
subsection (a) hereof and hereby further irrevocably waives and agrees
not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an
inconvenient forum.
20. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES TO THIS PLEDGE AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS PLEDGE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
21. Severability. If any provision of any of the Pledge Agreement
is determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
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<PAGE> 15
22. Entirety. This Pledge Agreement, the other Credit Documents
and the Hedging Agreements represent the entire agreement of the parties hereto
and thereto and supersede all prior agreements and understandings, oral or
written, if any, including any commitment letters or correspondence relating to
the Credit Documents and the Hedging Agreements or the transactions
contemplated herein and therein.
23. Survival. All representations and warranties of the Pledgors
hereunder shall survive the execution and delivery of this Pledge Agreement,
the other Credit Documents and the Hedging Agreements, the delivery of the
Notes and the making of the Loans and the issuance of the Letters of Credit
under the Credit Agreement.
24. Other Security. To the extent that any of the Pledgor
Obligations are now or hereafter secured by property other than the Pledged
Collateral (including, without limitation, real and personal property owned by
a Pledgor), or by a guarantee, endorsement or property of any other Person,
then to the extent the Collateral Agent and the Lenders shall have the right to
proceed against such other property, guarantee or endorsement, upon the
occurrence and continuance of any Event of Default, to the extent the
applicable security agreement, guarantee or endorsement or other applicable
document so provides, and the Collateral Agent and the Lenders have the right,
in their sole discretion, to determine which rights, security, liens, security
interests or remedies, the Collateral Agent and the Lenders shall at any time
pursue, relinquish, subordinate, modify or take with respect thereto, without
in any way modifying or affecting any of them or any of the Collateral Agent's
and the Lenders' rights or the Pledgor Obligations under this Pledge Agreement,
under any other Credit Document or under any Hedging Agreement.
25. Joint and Several Obligations of Pledgors.
(a) Subject to clause (c), each of the Pledgors is
accepting joint and several liability hereunder in consideration of
the financial accommodation to be provided by the Lenders under the
Credit Agreement, for the mutual benefit, directly and indirectly, of
each of the Pledgors and in consideration of the undertakings of each
of the Pledgors to accept joint and several liability for the
obligations of each of them.
(b) Subject to clause (c), each of the Pledgors jointly
and severally hereby irrevocably and unconditionally accepts, not
merely as a surety but also as a co-debtor, joint and several
liability with the other Pledgors with respect to the payment and
performance of all of the Pledgor Obligations arising under this
Pledge Agreement, the other Credit Documents and the Hedging
Agreements, it being the intention of the parties hereto that all the
Pledgor Obligations shall be the joint and several obligations of each
of the Pledgors without preferences or distinction among them.
(c) Notwithstanding any provision to the contrary
contained herein or in any other of the Credit Documents,
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<PAGE> 16
(i) to the extent the obligations of a Guarantor
shall be adjudicated to be invalid or unenforceable for any
reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent
conveyances or transfers) then the obligations of such
Guarantor hereunder shall be limited to the maximum amount
that is permissible under applicable law (whether federal or
state and including, without limitation, the Bankruptcy Code),
and
(ii) the obligations of Holdings hereunder and
under the Credit Documents, in the aggregate, shall be limited
to an amount equal to $146,298,000.00, unless at least ninety
percent (90%) of the Holdings Debentures have been
repurchased, in which case no such limitation shall apply.
26. Rights of Required Lenders. All rights of the Collateral
Agent hereunder, if not exercised by the Collateral Agent, must be exercised by
the Collateral Agent upon the request of the Required Lenders.
[remainder of page intentionally left blank]
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<PAGE> 17
Each of the Pledgors has caused a counterpart of this Pledge Agreement
to be duly executed and delivered as of the date first above written.
BORROWER: IPC, INC.,
a Delaware corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
<PAGE> 18
GUARANTORS: IVEX PACKAGING CORPORATION,
a Delaware corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
IVEX PAPER MILL CORPORATION,
a Delaware corporation
IPMC HOLDING CORPORATION,
a Delaware corporation
IPMC, INC.,
a Delaware corporation
VALLEY EXPRESS LINES, INC.,
a Delaware corporation
KAMA OF ILLINOIS CORPORATION,
a Delaware corporation
PACKAGING PRODUCTS, INC.,
a Delaware corporation
CFI INDUSTRIES, INC.,
a Delaware corporation
PLASTOFILM INDUSTRIES, INC.,
a Delaware corporation
CFI RECYCLING, INC.,
a Delaware corporation
TRIO PRODUCTS, INC.,
a Delaware corporation
By:
----------------------------------------
Name:
--------------------------------------
Title: of each of
----------------------------
the above named Guarantors
<PAGE> 19
Accepted and agreed to as of the date first above written.
NATIONSBANK, N.A., as Collateral Agent
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
<PAGE> 1
EXHIBIT 4.4
AMENDED AND RESTATED
SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT (this "Security
Agreement") is entered into as October 2, 1997 among IPC, INC., a Delaware
corporation (the "Borrower"), IVEX PACKAGING CORPORATION, a Delaware
corporation ("Holdings"), each of the Domestic Subsidiaries of the Borrower
(the Borrower's Domestic Subsidiaries, together with Holdings, individually a
"Guarantor" and collectively the "Guarantors"), BANKERS TRUST COMPANY, in its
capacity as documentation agent (in such capacity, the "Documentation Agent")
and NATIONSBANK, N.A., in its capacity as collateral agent (in such capacity,
the "Collateral Agent") for the lenders from time to time party to the Credit
Agreement described below (the "Lenders").
RECITALS
WHEREAS, the Borrower, the Guarantors, the lenders party thereto and
NationsBank, N.A., as agent entered into that certain Amended and Restated
Credit Agreement dated as of March 24, 1997 which provided a $205 million
credit facility to the Borrower (the "Prior Credit Agreement"). The credit
facility provided pursuant to the Prior Credit Agreement replaced and
refinanced the credit facilities provided to the Borrower by NationsBank, N.A.,
as agent and certain other lenders pursuant to a credit agreement dated as of
December 7, 1995.
WHEREAS, the Borrower and the Guarantors have requested the Lenders to
provide and the Lenders have agreed to provide a new amended and restated
senior secured credit facility to replace and refinance the credit facility
provided pursuant to the Prior Credit Agreement. Specifically, the Borrower
and the Guarantors have requested that, among other things, the new amended and
restated senior secured credit facility (i) provide up to $475 million of
indebtedness to the Borrower and (ii) extend the final maturity of the credit
facilities provided under the Prior Credit Agreement.
WHEREAS, the Prior Credit Agreement has been amended and restated
pursuant to that certain Amended and Restated Credit Agreement, dated as of the
date hereof (as amended, modified, extended, renewed or replaced from time to
time, the "Credit Agreement"), among the Borrower, the Guarantors, the Lenders,
the Documentation Agent and the Collateral Agent, in its capacity as
administrative agent.
WHEREAS, the Lenders have required that the Borrower and the
Guarantors (the Guarantors together with the Borrower, individually an
"Obligor", and collectively the "Obligors") secure or resecure, as applicable,
their respective obligations under the Credit Agreement and the other Credit
Documents in accordance with the terms of this Security Agreement.
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<PAGE> 2
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
(a) Unless otherwise defined herein, capitalized terms
used herein shall have the meanings ascribed to such terms in the
Credit Agreement. All terms used in this Security Agreement that are
defined in the Uniform Commercial Code in effect in the State of New
York (the "UCC") and which are not otherwise defined herein shall have
the meanings set forth therein. For purposes of this Security
Agreement, the term "Lender" shall include any Affiliate of any Lender
which has entered into a Hedging Agreement with the Borrower.
(b) In addition, the following terms shall have the
following meanings:
"Copyright Licenses": any written agreement, naming
any Obligor as licensor, granting any right under any
Copyright including, without limitation, any thereof referred
to in Schedule 6.19 to the Credit Agreement.
"Copyrights": (a) all copyrights in all works
subject to copyright protection pursuant to Title 17 of the
United States Code or applicable copyright legislation in any
other country, now existing or hereafter created or acquired,
all registrations and recordings thereof, and all applications
in connection therewith, whether in the United States
Copyright Office or in any similar office or agency of the
United States, any State thereof or any other country or any
political subdivision thereof, or otherwise, including,
without limitation, any thereof referred to in Schedule 6.19
to the Credit Agreement, (b) all renewals thereof including,
without limitation, any thereof referred to in Schedule 6.19
to the Credit Agreement and (c) all actions for infringement
concerning the foregoing.
"Excluded Equipment": all de-inking equipment (not
to exceed a maximum aggregate value of $6,000,000) purchased
from Milnor Corporation for use at the Detroit, Michigan
facility of IPMC, Inc.
"Material Intellectual Property": means all
Copyrights, Copyright Licenses, Patents, Patent Licenses,
Trademarks and Trademark Licenses in which the failure by a
Credit Party to maintain such Copyright, Copyright License,
Patent, Patent License, Trademark and Trademark License would
have a Material Adverse Effect.
"Patent License": all agreements, whether written or
oral, providing for the grant by or to an Obligor of any right
to manufacture, use or sell any invention covered by a Patent,
including, without limitation, any thereof referred to in
Schedule 6.19 to the Credit Agreement.
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<PAGE> 3
"Patents": (a) all letters patent of the United
States or any other country, and all reissues and extensions
thereof, including, without limitation, any thereof referred
to in Schedule 6.19 to the Credit Agreement, (b) all
applications for letters patent of the United States or any
other country and all divisions, continuations and
continuations-in-part thereof, including, without limitation,
any thereof referred to in Schedule 6.19 to the Credit
Agreement and (c) all actions for infringement concerning the
foregoing, including the right to sue for and to recover and
retain all damages and profits arising from past
infringements.
"Trademark License": means any agreement, written or
oral, providing for the grant by or to an Obligor of any right
to use any Trademark, including, without limitation, any
thereof referred to in Schedule 6.19 to the Credit Agreement.
"Trademarks": (a) all trademarks, trade names,
corporate names, company names, business names, fictitious
business names, trade styles, service marks, logos and other
source or business identifiers, and the goodwill associated
therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent and
Trademark Office or in any similar office or agency of the
United States, any State thereof or any other country or any
political subdivision thereof, or otherwise, including,
without limitation, any thereof referred to in Schedule 6.19
to the Credit Agreement, (b) all renewals thereof including,
without limitation, any thereof referred to in Schedule 6.19
to the Credit Agreement and (c) all actions for infringement
concerning the foregoing, including the right to sue for and
to recover and retain all damages and profits arising from
past infringements.
2. Grant of Security Interest in the Collateral. To secure the
prompt payment and performance in full when due, whether by lapse of time,
acceleration or otherwise, of the Secured Obligations (as defined in Section 3
hereof), each Obligor hereby grants to the Collateral Agent, for the benefit of
the Lenders, a continuing security interest in (and, as applicable,
acknowledges and reaffirms any prior security interest granted to the
Collateral Agent, for the benefit of the Lenders), and a right to set off
against, any and all right, title and interest of such Obligor in and to the
following, whether now owned or existing or owned, acquired, or arising
hereafter (collectively, the "Collateral"):
(a) All equipment, including, without limitation, all
vehicles, rolling stock, machinery, tools, furniture, furnishings,
office equipment and trade fixtures, but excluding any computer
equipment in which ABB Credit has a first priority security interest
as of the date hereof; provided, however that no security interest
shall exist in the Excluded Equipment until such time as the Michigan
Department of Natural Resources shall have released its security
interest in the same;
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<PAGE> 4
(b) All accounts and receivables and all goods
represented by or securing accounts and receivables, including,
without limitation, all rents and tenant payments, if any; provided,
that such security interest will be released as necessary and
appropriate if, and to the extent that, a Receivables Transaction
occurs;
(c) All inventory, including, without limitation, all raw
materials, all work in process and all goods held by an Obligor for
sale or lease;
(d) All contract rights, including, without limitation,
all rights under management agreements, tax sharing agreements and
lease agreements and all rights to payment of money, tax refunds and
insurance proceeds, but excluding any contract (other than those
contracts with respect to any Leasehold Mortgaged Property) identified
on Schedule 5(e) hereto;
(e) All other general intangibles;
(f) All instruments, documents, chattel paper,
securities, policies and certificates of insurance, deposits, cash or
other goods;
(g) All books, records, ledger cards, files,
correspondence, computer software, tapes, disks and related data
processing software (owned by an Obligor or in which an Obligor has an
interest) that at any time evidence or contain information relating to
any Collateral or are otherwise necessary or helpful in the collection
thereof or realization thereupon;
(h) All Copyrights, Copyright Licenses, Patents, Patent
Licenses, Trademarks and Trademark Licenses;
(i) All other personal property of any kind or type
whatsoever owned by an Obligor;
(j) All accessions and additions to, and substitutions
and replacements of, any and all of the foregoing, whether now
existing or hereafter arising; and
(k) All proceeds and products of the foregoing and all
insurance relating to the foregoing collateral and all proceeds
thereof (including, without limitation, insurance proceeds payable on
account of business interruption), whether now existing or hereafter
arising.
Notwithstanding anything in this Security Agreement to the contrary,
with respect to each item of Collateral constituting an agreement, license,
permit or other instrument of any Obligor, such item shall be subject to the
security interest created hereby only to the extent that the granting of such
security interest does not, under the terms of such agreement, license, permit
or other instrument, or as provided by law, cause any default under or
termination of such agreement, license, permit or other instrument or the loss
of any material right of such Obligor
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<PAGE> 5
thereunder; provided, however, that in no event shall the foregoing be
construed to exclude from the security interest created by this Security
Agreement, proceeds or products of any such agreement, license, permit or other
instrument of such Obligor or any accounts receivable or the right to payments
due or become due such Obligor under any such agreement or other instrument.
The Obligors and the Collateral Agent, on behalf of the Lenders,
hereby acknowledge and agree that (i) the Collateral shall exclude the Newton
Property until such time as any Obligor shall obtain a fee interest in the
Newton Property and (ii) the security interest created hereby in the Collateral
is not to be construed as an assignment of any Copyrights, Copyright Licenses,
Patents, Patent Licenses, Trademarks or Trademark Licenses.
3. Security for Obligations. The security interest created
hereby in the Collateral constitutes continuing collateral security for all of
the following, whether now existing or hereafter incurred (the "Secured
Obligations"):
(a) In the case of the Borrower, the prompt performance
and observance by the Borrower of all obligations of the Borrower
under the Credit Agreement, the Notes, this Security Agreement and the
other Credit Documents to which the Borrower is a party;
(b) In the case of the Guarantors, the prompt performance
and observance by such Guarantor of all obligations of such Guarantor
under the Credit Agreement, this Security Agreement and the other
Credit Documents to which such Guarantor is a party, including,
without limitation, its guaranty obligations arising under Section 4
of the Credit Agreement; and
(c) Subject to Section 25 hereof, all other indebtedness,
liabilities and obligations of any kind or nature owing from any
Obligor to any Lender or the Collateral Agent in connection with (i)
this Security Agreement or any other Credit Document, whether now
existing or hereafter arising, due or to become due, direct or
indirect, absolute or contingent, and howsoever evidenced, held or
acquired, together with any and all modifications, extensions,
renewals and/or substitutions of any of the foregoing, (ii) collecting
and enforcing the Credit Party Obligations and (iii) liabilities
arising under Hedging Agreements entered into pursuant to the Credit
Agreement.
4. Provisions Relating to Accounts Receivable.
(a) Anything herein to the contrary notwithstanding, each
of the Obligors shall remain liable under each of the accounts
receivable to observe and perform all the conditions and obligations
to be observed and performed by it thereunder, all in accordance with
the terms of any agreement giving rise to each such account
receivable. Neither the Collateral Agent nor any Lender shall have
any obligation or liability under any account receivable (or any
agreement giving rise thereto) by reason of or arising out of this
Security Agreement or the receipt by the Collateral Agent or any
Lender of any payment relating to
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<PAGE> 6
such account receivable pursuant hereto, nor shall the Collateral
Agent or any Lender be obligated in any manner to perform any of the
obligations of an Obligor under or pursuant to any account receivable
(or any agreement giving rise thereto), to make any payment, to make
any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any
party under any account receivable (or any agreement giving rise
thereto), to present or file any claim, to take any action to enforce
any performance or to collect the payment of any amounts which may
have been assigned to it or to which it may be entitled at any time or
times; provided, however, that the Collateral Agent agrees to execute
all documents reasonably necessary to enable the Obligors to collect
upon any accounts receivable.
(b) Once during each calendar year or at any time after
the occurrence and during the continuation of an Event of Default, the
Collateral Agent shall have the right, but not the obligation, to make
test verifications of the accounts receivable in any manner and
through any medium that it reasonably considers advisable, and the
Obligors shall furnish all such assistance and information as the
Collateral Agent may require in connection with such test
verifications. At any time and from time to time, upon the Collateral
Agent's request, the Obligors shall cause independent public
accountants or others satisfactory to the Collateral Agent to furnish
(once each calendar year at the expense of the Obligors and at all
other times at the expense of the Lenders) to the Collateral Agent
reports showing reconciliations, aging and test verifications of, and
trial balances for, the accounts receivable. After the occurrence and
during the continuance of an Event of Default, the Collateral Agent in
its own name or in the name of others may communicate with account
debtors on the accounts receivable to verify with them to the
Collateral Agent's satisfaction the existence, amount and terms of any
accounts receivable.
5. Representations and Warranties. Each Obligor hereby represents
and warrants to the Collateral Agent, for the benefit of the Lenders:
(a) Chief Executive Office; Books & Records. As of the
Closing Date, each Obligor's chief executive office and chief place of
business is (and for the prior four months have been) located at the
locations set forth on Schedule 6.22(c) to the Credit Agreement, and
each Obligor keeps its books and records at such locations.
(b) Location of Collateral. As of the Closing Date, the
location of all tangible property included in the Collateral owned by
each Obligor is as shown on Schedule 6.22(b) to the Credit Agreement;
provided, however that the Obligors, in the aggregate, may have up to
$10,000,000 (determined on the basis of Obligors' costs) of inventory
held by customers pursuant to consignment arrangements or held in
third party warehouses.
(c) Ownership. Each Obligor is the legal and beneficial
owner of its Collateral and has the right to pledge, sell, assign or
transfer the same (excluding any Collateral which is non-assignable by
its terms). As of the Closing Date, each Obligor's legal name is as
shown in this Security Agreement and no Obligor has in the past four
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<PAGE> 7
months changed its name, been party to a merger, consolidation or
other change in structure or used any tradename except as set forth in
Schedule 5(c) attached hereto.
(d) Security Interest/Priority. This Security Agreement
creates a valid security interest in favor of the Collateral Agent,
for the benefit of the Lenders, in the Collateral (excluding any
Collateral which is non-assignable by its terms) of such Obligor and,
when properly perfected by filing, recordation or registration, shall
constitute a valid perfected security interest in such Collateral, to
the extent such security can be perfected by filing under the UCC or
other applicable personal property security legislation, free and
clear of all Liens except for Permitted Liens.
(e) Contracts; Agreements. Except as provided in
Schedule 5(e) attached hereto, as of the Closing Date, the Obligors
have no material contracts or agreements which are non-assignable by
their terms or which prevent the granting of a security interest
therein.
(f) Receivables. (i) Each receivable of the Obligors and
the papers and documents relating thereto are genuine and in all
material respects what they purport to be, (ii) in the case of each
receivable which is an account receivable, each receivable arises out
of (A) a bona fide sale of goods sold and delivered by such Obligor
(or is in the process of being delivered) or (B) services theretofore
actually rendered by such Obligor to, the account debtor named
therein, (iii) no receivable (excluding inter-company receivables) of
an Obligor is evidenced by any instrument or chattel paper valued in
excess of $100,000, unless such instrument or chattel paper has been
theretofore endorsed over and delivered to the Collateral Agent except
as otherwise provided in Section 6(c) below and (iv) no surety bond
was required or given in connection with any receivables of an Obligor
or the contracts or purchase orders out of which they arose.
(g) Inventory. As of the Closing Date, except as
permitted under Section 5(b) hereof, no inventory is held by an
Obligor pursuant to consignment, sale or return, sale on approval or
similar arrangement.
(h) Copyrights, Patents and Trademarks.
(i) Schedule 6.19 to the Credit Agreement
includes all Material Intellectual Property which is the
subject of a registration or application and all material
Trademark Licenses, Copyright Licenses and Patent Licenses
owned by the Obligors in their own names as of the date
hereof.
(ii) Except as set forth in Schedule 6.19 to the
Credit Agreement, to the best of each Obligor's knowledge,
each Copyright, Copyright License, Patent, Patent License,
Trademark and Trademark License of such Obligor included in
the Material Intellectual Property is valid, subsisting,
unexpired, enforceable and has not been abandoned.
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<PAGE> 8
(iii) Except as set forth in Schedule 6.19 to the
Credit Agreement, none of the Copyrights, Patents or
Trademarks included in the Material Intellectual Property
owned by the Obligor is the subject of any licensing or
franchise agreement.
(iv) No holding, decision or judgment has been
rendered by any Governmental Authority which would be
reasonably likely to limit, cancel or question the validity of
any Material Intellectual Property.
(v) No action or proceeding is pending seeking to
limit, cancel or question the validity of any Material
Intellectual Property, which, if adversely determined, would
be reasonably likely to have a Material Adverse Effect.
(vi) All applications pertaining to the Material
Intellectual Property of each Obligor have been duly and
properly filed, and all registrations or letters pertaining to
such Material Intellectual Property have been duly and
properly filed and issued.
(vii) Except as permitted under the Credit
Agreement, no Obligor has made any assignment or agreement in
conflict with the security interest in the Material
Intellectual Property of each Obligor hereunder.
6. Covenants. Each Obligor covenants that, so long as any of the
Secured Obligations remain outstanding (other than any obligations with respect
to the indemnities set forth in the Credit Documents which shall survive the
termination of the Credit Documents) and until all of the Commitments shall
have been terminated, such Obligor shall:
(a) Other Liens. Defend the Collateral against the
claims and demands of all other parties claiming an interest therein,
keep the Collateral free from all Liens, except for Permitted Liens
and Liens arising pursuant to consignment arrangements permitted under
Sections 5(b) and 5(g) hereto, and not sell, exchange, transfer,
assign, lease or otherwise dispose of the Collateral or any interest
therein, except as permitted under the Credit Agreement.
(b) Preservation of Collateral. Keep the Collateral in
good order, condition and repair in all material respects and not use
the Collateral in violation of the provisions of this Security
Agreement or any other agreement relating to the Collateral or any
policy insuring the Collateral or any applicable statute, law, bylaw,
rule, regulation or ordinance, except as permitted under the Credit
Agreement.
(c) Instruments/Chattel Paper. Deliver to the Collateral
Agent all instruments and chattel paper valued in excess of $100,000
which represents or relates to the Collateral other than (i)
instruments evidencing debt obligations from one Credit Party to
another Credit Party and (ii) instruments evidencing debt obligations
from employees of a
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<PAGE> 9
Credit Party to a Credit Party if such debt was incurred as a result
of tax obligations attributed from the owning of stock options.
(d) Change in Location/Change of Name. Not, without
providing 30 days prior written notice to the Collateral Agent and
without filing such further financing statements or amendments to any
previously filed financing statements as the Collateral Agent may
require; provided that the Collateral Agent shall promptly provide
information to the Obligors regarding financing statements and
amendments to be required after receipt of such notice, (i) change the
location of its chief executive office and chief place of business (as
well as its books and records) from the locations set forth on
Schedule 6.22(c) to the Credit Agreement, (ii) change the location of
its Collateral from the locations set forth for such Obligor on
Schedule 6.22(b) of the Credit Agreement, except as otherwise
permitted by Section 5(b) hereof or as set forth in the Credit
Agreement, or (iii) change its name, be party to a merger,
consolidation or other change in structure or use any tradename other
than as set forth on Schedule 5(c) attached hereto.
(e) Inspection. Upon reasonable notice, and during
reasonable hours, at all times allow the Collateral Agent or its
representatives to visit and inspect the Collateral as set forth in
Section 7.12 of the Credit Agreement.
(f) Inventory. Not change the location of the Collateral
from that set forth on Schedule 6.22(b) of the Credit Agreement
(unless proper notice is given as required by Section 6(d) above) or
subject any inventory to consignment arrangements; provided that
inventory, up to an aggregate amount of $10,000,000, may be held by
customers pursuant to consignment arrangements or held in third party
warehouses.
(g) Contracts; Agreements. Not enter into any material
contracts or agreements which are non-assignable to the Collateral
Agent or the Lenders by their terms or which prevent the granting of a
security interest to the Collateral Agent or the Lenders.
(h) Perfection of Security Interest. Execute and deliver
to the Collateral Agent such agreements, assignments or instruments
(including affidavits, notices, reaffirmations and amendments and
restatements of existing documents, as the Collateral Agent may
reasonably request) and do all such other things as the Collateral
Agent may reasonably deem necessary or appropriate (i) to assure to
the Collateral Agent its security interests hereunder, including, but
not limited to, (A) such financing statements (including renewal
statements) or amendments thereof or supplements thereto or other
instruments as the Collateral Agent may from time to time reasonably
request in order to perfect and maintain the security interests
granted hereunder in accordance with the UCC, (B) with regard to
Copyrights that would constitute Material Intellectual Property, a
Notice of Grant of Security Interest in such Copyrights for filing
with the United States Copyright Office a form satisfactory to the
Collateral Agent (C) with regard to Patents that would constitute
Material Intellectual Property, a Notice of Grant of Security Interest
in such Patents for filing with the United States Patent and Trademark
Office in a form
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<PAGE> 10
satisfactory to the Collateral Agent, and (D) with regard to
Trademarks that would constitute Material Intellectual Property, a
Notice of Grant of Security Interest in such Trademarks for filing
with the United States Patent and Trademark Office in a form
satisfactory to the Collateral Agent (ii) to consummate the
transactions contemplated hereby and (iii) to otherwise protect and
assure the Collateral Agent of its rights and interests hereunder. To
that end, each Obligor agrees that the Collateral Agent may file one
or more financing statements disclosing the Collateral Agent's
security interest in any or all of the Collateral of such Obligor
without, to the extent permitted by law, such Obligor's signature
thereon; provided that the Collateral Agent will provide a notice to
the appropriate Obligor of any of the foregoing within 10 days of the
execution, delivery and filing, if any, thereof and will promptly
thereafter provide copies of any of the foregoing executed and
delivered by the Collateral Agent, including, if received by the
Collateral Agent, acknowledgment copies of any financing statements as
filed. Furthermore, each Obligor hereby irrevocably makes, constitutes
and appoints the Collateral Agent, its nominee or any other person
whom the Collateral Agent may designate, as such Obligor's attorney in
fact with full power and for the limited purpose to sign in the name
of such Obligor any such financing statements, or amendments and
supplements to financing statements, renewal financing statements,
notices or any similar documents which in the Collateral Agent's
reasonable discretion would be necessary or appropriate in order to
perfect and maintain perfection of the security interests granted
hereunder. The power of attorney granted hereunder is coupled with an
interest and is and shall remain irrevocable so long as the Credit
Agreement is in effect (other than any obligations with respect to the
indemnities and the representations and warranties set forth in the
Credit Documents which shall survive the termination of the Credit
Documents) or any amounts payable thereunder, under any other Credit
Document or Hedging Agreement, or under any Letter of Credit shall
remain outstanding, and until all of the Commitments thereunder shall
have terminated. Each Obligor hereby agrees that a carbon,
photographic or other reproduction of this Security Agreement or any
such financing statement is sufficient for filing as a financing
statement by the Collateral Agent without notice thereof to such
Obligor wherever the Collateral Agent may in its sole discretion
desire to file the same. In the event for any reason the law of any
jurisdiction other than New York becomes or is applicable to the
Collateral of any Obligor or any part thereof, or to any of the
Secured Obligations, such Obligor agrees to execute and deliver all
such instruments and to do all such other things as the Collateral
Agent in its sole discretion reasonably deems necessary or appropriate
to preserve, protect and enforce the security interests of the
Collateral Agent under the law of such other jurisdiction (and, if an
Obligor shall fail to do so promptly upon the request of the
Collateral Agent, then the Collateral Agent may execute any and all
such requested documents on behalf of such Obligor pursuant to the
power of attorney granted hereinabove). If any Collateral is in the
possession or control of an Obligor's agents and the Collateral Agent
so requests, such Obligor agrees to notify such agents in writing of
the Collateral Agent's security interest therein and, upon occurrence
and continuance of an Event of Default, upon the Collateral Agent's
request, instruct them to hold all such Collateral for the Lenders'
account and subject to the Collateral Agent's instructions.
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<PAGE> 11
Each Obligor agrees to mark its books and records to reflect the security
interest of the Collateral Agent in the Collateral.
(i) Treatment of Receivables. Not grant or extend the time for
payment of any receivable, or compromise or settle any receivable for less than
the full amount thereof, or release any person or property, in whole or in
part, from payment thereof, or allow any credit or discount thereon, other than
as normal and customary in the ordinary course of an Obligor's business
(including the acceptance of certain notes by the Borrower in its sales of
polystyrene sheets and films).
(j) Covenants Relating to Copyrights.
(i) Except as otherwise permitted by the Credit
Agreement, employ any Copyright that would constitute Material
Intellectual Property with such notice of copyright as may be
required by law to secure copyright protection.
(ii) Except as otherwise permitted by the Credit
Agreement, not do any act or knowingly omit to do any act
whereby any Copyright that would constitute Material
Intellectual Property may become invalidated and (A) not do
any act, or knowingly omit to do any act, whereby any such
Copyright may become injected into the public domain; (B)
notify the Collateral Agent immediately if it knows, or has
reason to know, that any such Copyright may become injected
into the public domain or of any adverse determination or
development (including, without limitation, the institution
of, or any such determination or development in, any court or
tribunal in the United States or any other country), other
than a non-final determination of any such court, regarding an
Obligor's ownership of any such Copyright or its validity; (C)
take all necessary steps as it shall deem appropriate under
the circumstances to maintain and pursue each application (and
to use its reasonable efforts to obtain the relevant
registration) and to maintain each registration of each such
Copyright owned by an Obligor including, without limitation,
filing of applications for renewal where necessary; and (D)
promptly notify the Collateral Agent of any material
infringement of any such Copyright of an Obligor of which it
becomes aware and take such actions as it shall reasonably
deem appropriate under the circumstances to protect such
Copyright, including, where appropriate, the bringing of suit
for infringement, seeking injunctive relief and seeking to
recover any and all damages for such infringement.
(iii) Except as otherwise permitted by the Credit
Agreement, not make any assignment or agreement in conflict
with the security interest in any Copyright that would
constitute Material Intellectual Property of each Obligor
hereunder.
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<PAGE> 12
(k) Covenants Relating to Patents and Trademarks.
(i) (A) Except as otherwise permitted by the
Credit Agreement, continue to use each Trademark that would
constitute Material Intellectual Property in such a manner as
to maintain such Trademark in full force free from any claim
of abandonment for non-use, (B) use its best efforts to
control the quality of products and services offered under
such Trademark by licensees of the Trademark, (C) employ such
Trademark with the appropriate notice of registration or
notice of trademark, as applicable, sufficient to protect such
Trademark, (D) not adopt or use any mark which is confusingly
similar or a colorable imitation of such Trademark unless the
Collateral Agent, for the ratable benefit of the Lenders,
shall obtain a perfected security interest in such mark
pursuant to this Security Agreement, and (E) except as
otherwise permitted by the Credit Agreement, not (and not
permit any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby any such Trademark may
become invalidated.
(ii) Except as otherwise permitted by the Credit
Agreement, not do any act, or knowingly omit to do any act,
whereby any Patent that would constitute Material Intellectual
Property may become abandoned or dedicated.
(iii) Notify the Collateral Agent and the Lenders
immediately if it knows, or has reason to know, that any
application or registration relating to any Patent or
Trademark that would constitute Material Intellectual Property
may become abandoned or dedicated, or of any adverse
determination or development (including, without limitation,
the institution of, or any such determination or development
in, any proceeding in the United States Patent and Trademark
Office or any court or tribunal in any country), other than
non-final determinations of any such office or court,
regarding an Obligor's ownership of any such Patent or
Trademark or its right to register the same or to keep and
maintain the same.
(iv) Take all reasonable and necessary steps, as
it shall deem appropriate under the circumstances, including,
without limitation, in any proceeding before the United States
Patent and Trademark Office, or any similar office or agency
in any other country or any political subdivision thereof, to
maintain and pursue each application (and use its best efforts
to obtain the relevant registration) and to maintain each
registration of the Patents and Trademarks that would
constitute Material Intellectual Property, including, without
limitation, filing of applications for renewal, affidavits of
use and affidavits of incontestability.
(v) Promptly notify the Collateral Agent and the
Lenders after it learns that any Patent or Trademark that
would constitute Material Intellectual Property included in
the Collateral is infringed, misappropriated or diluted by a
third party, and take such actions as it shall reasonably deem
appropriate under the circumstances to protect such Patent or
Trademark, including, where appropriate, the bringing of suit
for infringement, misappropriation or dilution, seeking
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<PAGE> 13
injunctive relief where appropriate and seeking to recover any
and all damages for such infringement, misappropriation or
dilution.
(vi) Except as otherwise permitted by the Credit
Agreement, not make any assignment or agreement in conflict
with the security interest in the Patents or Trademarks that
would constitute Material Intellectual Property of each
Obligor hereunder.
(l) New Patents, Copyrights and Trademarks. Whenever an
Obligor, either by itself or through an agent, employee, licensee or
designee, shall file an application for the registration of any
Copyright, Patent or Trademark that would constitute Material
Intellectual Property with the United States Patent and Trademark
Office or any similar office or agency in any other country or any
political subdivision thereof, an Obligor shall report such filing to
the Collateral Agent and the Lenders within five Business Days after
the last day of the fiscal quarter in which such filing occurs. Upon
request of the Collateral Agent, an Obligor shall promptly provide the
Collateral Agent with (i) a listing of all such applications (together
with a listing of the issuance of registrations or letters on present
applications), which new applications and issued registrations or
letters shall be subject to the terms and conditions hereunder, and
(ii) (A) with respect to new registrations of Copyrights that would
constitute Material Intellectual Property, a duly executed amendment
or modification to the Notice of Security Interest in such Copyrights,
(B) with respect to new Patents that would constitute Material
Intellectual Property, a duly executed amendment or modification to
the Notice of Security Interest in such Patents, (C) with respect to
new applications or registrations of Trademarks that would constitute
Material Intellectual Property, a duly executed amendment or
modification to the Notice of Security Interest in such Trademarks or
(D) such other duly executed documents as the Collateral Agent may
request in a form acceptable to counsel for the Collateral Agent and
suitable for recording to evidence the security interest in the
Copyright, Patent or Trademark that would constitute Material
Intellectual Property which is the subject of such new application or
registration to the Collateral Agent as provided in Section 2 hereof,
and subject to all the terms hereof; provided, however, that unless an
Event of Default shall have occurred and be continuing, no special
documents need be provided with respect to recording a security
interest or assignment in Copyrights, Patents or Trademarks filed or
registered in jurisdictions outside the United States.
(m) Insurance. Insure, repair and replace the Collateral
of such Obligor as set forth in the Credit Agreement. All insurance
proceeds received in connection with the Collateral shall be subject
to the security interest of the Collateral Agent hereunder.
7. Advances by Lenders. On failure of any Obligor to perform any
of the covenants and agreements contained herein, the Collateral Agent may, at
its sole option and in its sole discretion, perform the same and in so doing
may expend such sums as the Collateral Agent may reasonably deem advisable in
the performance thereof, including, without limitation, the payment of any
insurance premiums, the payment of any taxes, a payment to obtain a release of
a Lien or
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<PAGE> 14
potential Lien, expenditures made in defending against any adverse claim and
all other expenditures which the Collateral Agent or the Lenders may make for
the protection of the security hereof or which may be compelled to make by
operation of law. All such sums and amounts so expended shall be repayable by
the Obligors on a joint and several basis promptly upon timely notice thereof
and demand therefor, shall constitute additional Secured Obligations and shall
bear interest from the date said amounts are expended at the default rate
provided in Section 3.1(b) of the Credit Agreement for Revolving Loans that are
Base Rate Loans. No such performance of any covenant or agreement by the
Collateral Agent or the Lenders on behalf of any Obligor, and no such advance
or expenditure therefor, shall relieve the Obligors of any default under the
terms of this Security Agreement, the other Credit Documents or any Hedging
Agreement. The Lenders may make any payment hereby authorized in accordance
with any bill, statement or estimate procured from the appropriate public
office or holder of the claim to be discharged without inquiry into the
accuracy of such bill, statement or estimate or into the validity of any tax
assessment, sale, forfeiture, tax lien, title or claim except to the extent
such payment is being contested in good faith by an Obligor in appropriate
proceedings and against which adequate reserves are being maintained in
accordance with GAAP in effect from time to time.
8. Events of Default.
The occurrence of an event which under the Credit Agreement would
constitute an Event of Default shall be an Event of Default hereunder (an
"Event of Default").
9. Remedies.
(a) General Remedies. Upon the occurrence of an Event of
Default and during continuation thereof, the Lenders shall have, in
addition to the rights and remedies provided herein, in the Credit
Documents, in the Hedging Agreements or by law (including, but not
limited to, the rights and remedies set forth in the Uniform
Commercial Code of the jurisdiction applicable to the affected
Collateral), the rights and remedies of a secured party under the UCC
to the extent permitted by law and further, the Collateral Agent may,
with or without judicial process or the aid and assistance of others,
(i) enter on any premises on which any of the Collateral may be
located and, without resistance or interference by the Obligors, take
possession of the Collateral, (ii) dispose of any Collateral on any
such premises, (iii) require the Obligors to assemble and make
available to the Collateral Agent at the expense of the Obligors any
Collateral at any place and time designated by the Collateral Agent
which is reasonably convenient to both parties, (iv) remove any
Collateral from any such premises for the purpose of effecting sale or
other disposition thereof, and/or (v) without demand and without
advertisement, notice, hearing or process of law, all of which each of
the Obligors hereby waives to the fullest extent permitted by law, at
any place and time or times, sell and deliver any or all Collateral
held by or for it at public or private sale, by one or more contracts,
in one or more parcels, for cash, upon credit or otherwise, at such
prices and upon such terms as the Collateral Agent deems advisable, in
its sole discretion (subject to any and all mandatory legal
requirements). In addition to all other sums due the Collateral Agent
and the
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<PAGE> 15
Lenders with respect to the Secured Obligations, the Obligors shall
pay the Collateral Agent and each of the Lenders all reasonable
documented costs and expenses incurred by the Collateral Agent or any
such Lender, including, but not limited to, reasonable attorneys' fees
and court costs, in obtaining or liquidating the Collateral, in
enforcing payment of the Secured Obligations, or in the prosecution or
defense of any action or proceeding by or against the Collateral Agent
or the Lenders or the Obligors concerning any matter arising out of or
connected with this Security Agreement, any Collateral or the Secured
Obligations, including, without limitation, any of the foregoing
arising in, arising under or related to a case under the Bankruptcy
Code. To the extent the rights of notice cannot be legally waived
hereunder, each Obligor agrees that any requirement of reasonable
notice shall be met if such notice is personally served on or mailed,
postage prepaid, to the Borrower in accordance with the notice
provisions of Section 11.1 of the Credit Agreement at least 10 days
before the time of sale or other event giving rise to the requirement
of such notice. The Collateral Agent and the Lenders shall not be
obligated to make any sale or other disposition of the Collateral
regardless of notice having been given. To the extent permitted by
law, any Lender may be a purchaser at any such sale. To the extent
permitted by applicable law, each of the Obligors hereby waives all of
its rights of redemption with respect to any such sale. Subject to
the provisions of applicable law, the Collateral Agent and the Lenders
may postpone or cause the postponement of the sale of all or any
portion of the Collateral by announcement at the time and place of
such sale, and such sale may, without further notice, to the extent
permitted by law, be made at the time and place to which the sale was
postponed, or the Collateral Agent and the Lenders may further
postpone such sale by announcement made at such time and place.
(b) Remedies relating to Receivables. Upon the
occurrence of an Event of Default and during the continuation thereof,
whether or not the Collateral Agent has exercised any or all of its
rights and remedies hereunder, each Obligor will promptly upon written
request of the Collateral Agent instruct all account debtors to remit
all payments in respect of the receivables to a mailing location
selected by the Collateral Agent. In addition, upon the occurrence
and during the continuance of an Event of Default, the Collateral
Agent or its designee may notify any Obligor's customers and account
debtors that the receivables of such Obligor have been assigned to the
Collateral Agent or of the Collateral Agent's security interest
therein, and may (either in its own name or in the name of an Obligor
or both) demand, collect (including without limitation by way of a
lockbox arrangement), receive, take receipt for, sell, sue for,
compound, settle, compromise and give acquittance for any and all
amounts due or to become due on receivables, and, in the Collateral
Agent's discretion, file any claim or take any other action or
proceeding to protect and realize upon the security interest of the
Lenders in the receivables. Each Obligor acknowledges and agrees that
the proceeds of its receivables remitted to or on behalf of the
Collateral Agent in accordance with the provisions hereof shall be
solely for the Collateral Agent's own convenience and that such
Obligor shall not have any right, title or interest in such accounts
or in any such other amounts except as expressly provided herein. The
Collateral Agent and the Lenders shall have no liability or
responsibility to any Obligor for acceptance of a check, draft or
other order for payment of money bearing the legend "payment in full"
or words of similar import or any
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<PAGE> 16
other restrictive legend or endorsement or be responsible for
determining the correctness of any remittance. Each Obligor hereby
agrees to indemnify the Collateral Agent and the Lenders from and
against all liabilities, damages, losses, actions, claims, judgments,
costs, expenses, charges and reasonable attorneys' fees suffered or
incurred by the Collateral Agent or the Lenders (each, an "Indemnified
Party") as a result of actions taken by the Collateral Agent in
accordance with the foregoing except as relating to or arising out of
the gross negligence or willful misconduct of an Indemnified Party or
its officers, employees or agents. In the case of any investigation,
litigation or other proceeding, the foregoing indemnity shall be
effective whether or not such investigation, litigation or proceeding
is brought by an Obligor, its directors, shareholders or creditors or
an Indemnified Party or any other Person. The foregoing indemnity
shall survive the repayment of the Secured Obligations and the
termination of the Commitments.
(c) Access. In addition to the rights and remedies
hereunder, upon the occurrence of an Event of Default and during the
continuance thereof, the Collateral Agent shall have the right to
enter and remain upon the various premises of the Obligors without
cost or charge to the Collateral Agent, and use the same, together
with materials, supplies, books and records of the Obligors for the
purpose of collecting and liquidating the Collateral, or for preparing
for sale and conducting the sale of the Collateral, whether by
foreclosure, auction or otherwise. In addition, upon the occurrence
of an Event of Default and during the continuance thereof, the
Collateral Agent may remove Collateral, or any part thereof, from such
premises and/or any records with respect thereto, in order to
effectively collect or liquidate such Collateral.
(d) Nonexclusive Nature of Remedies. Failure by the
Collateral Agent or the Lenders to exercise any right, remedy or
option under this Security Agreement, any other Credit Document or any
Hedging Agreement or as provided by law, or any delay by the
Collateral Agent or the Lenders in exercising the same, shall not
operate as a waiver of any such right, remedy or option. No waiver
hereunder shall be effective unless it is in writing, signed by the
party against whom such waiver is sought to be enforced and then only
to the extent specifically stated, which in the case of the Collateral
Agent or the Lenders shall only be granted as provided herein. To the
extent permitted by law, neither the Collateral Agent, the Lenders,
nor any party acting as attorney for the Collateral Agent or the
Lenders, shall be liable hereunder for any acts or omissions or for
any error of judgment or mistake of fact or law other than their gross
negligence or willful misconduct. The rights and remedies of the
Collateral Agent and the Lenders under this Security Agreement shall
be cumulative and not exclusive of any other right or remedy which the
Collateral Agent or the Lenders may have.
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<PAGE> 17
(e) Retention of Collateral. The Collateral Agent may,
after complying with Section 9-505(2) of the UCC or otherwise
complying with the requirements of applicable law of the relevant
jurisdiction, to the extent the Collateral Agent is in possession of
any of the Collateral, retain the Collateral in satisfaction of the
Secured Obligations. Unless and until the Collateral Agent shall have
provided such notices, however, the Collateral Agent shall not be
deemed to have retained any Collateral in satisfaction of any Secured
Obligations for any reason.
(f) Deficiency. In the event that the proceeds of any
sale, collection or realization are insufficient to pay all amounts to
which the Collateral Agent or the Lenders are legally entitled, the
Obligors shall be jointly and severally liable for the deficiency,
together with interest thereon at the default rate specified in
Section 3.1(b) of the Credit Agreement for Revolving Loans that are
Base Rate Loans, together with the costs of collection and the
reasonable fees of any attorneys employed by the Collateral Agent to
collect such deficiency. Any surplus remaining after the full payment
and satisfaction of the Secured Obligations shall be returned to the
Obligors or to whomsoever a court of competent jurisdiction shall
determine to be entitled thereto.
10. Rights of the Collateral Agent.
(a) Power of Attorney. In addition to other powers of
attorney contained herein, each Obligor hereby designates and appoints
the Collateral Agent, on behalf of the Lenders, and each of its
designees or agents, as attorney-in-fact of such Obligor, irrevocably
and with power of substitution, with authority to take any or all of
the following actions upon the occurrence and during the continuance
of an Event of Default:
(i) to demand, collect, settle, compromise,
adjust and give discharges and releases concerning the
Collateral, all as the Collateral Agent may reasonably
determine;
(ii) to commence and prosecute any actions at any
court for the purposes of collecting any Collateral and
enforcing any other right in respect thereof;
(iii) to defend, settle or compromise any action
brought and, in connection therewith, give such discharge or
release as the Collateral Agent may deem reasonably
appropriate;
(iv) receive, open and dispose of mail addressed
to an Obligor and endorse checks, notes, drafts, acceptances,
money orders, bills of lading, warehouse receipts or other
instruments or documents evidencing payment, shipment or
storage of the goods giving rise to the Collateral of such
Obligor on behalf of and in the name of such Obligor, or
securing, or relating to such Collateral;
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<PAGE> 18
(v) sell, assign, transfer, make any agreement
in respect of, or otherwise deal with or exercise rights in
respect of, any Collateral or the goods or services which have
given rise thereto, as fully and completely as though the
Collateral Agent were the absolute owner thereof for all
purposes;
(vi) adjust and settle claims under any insurance
policy relating thereto;
(vii) execute and deliver all assignments,
conveyances, statements, financing statements, renewal
financing statements, security agreements, affidavits, notices
and other agreements, instruments and documents that the
Collateral Agent may reasonably determine necessary in order
to perfect and maintain the security interests and liens
granted in this Security Agreement and in order to fully
consummate all of the transactions contemplated therein;
(viii) institute any foreclosure proceedings that the
Collateral Agent may deem appropriate; and
(ix) do and perform all such other acts and things
as the Collateral Agent may reasonably deem to be necessary,
proper or convenient in connection with the Collateral.
This power of attorney is a power coupled with an interest and shall
be irrevocable (i) for so long as any of the Secured Obligations
remain outstanding, and (ii) until all of the Commitments shall have
been terminated. The Collateral Agent shall be under no duty to
exercise or withhold the exercise of any of the rights, powers,
privileges and options expressly or implicitly granted to the
Collateral Agent in this Security Agreement, and shall not be liable
for any failure to do so or any delay in doing so. The Collateral
Agent shall not be liable for any act or omission or for any error of
judgment or any mistake of fact or law in its individual capacity or
its capacity as attorney-in-fact except acts or omissions resulting
from its gross negligence or willful misconduct. This power of
attorney is conferred on the Collateral Agent solely to protect,
preserve and realize upon its security interest in the Collateral.
(b) Assignment by the Collateral Agent. The Collateral
Agent may in accordance with the terms of the Credit Agreement be
replaced and the successor Collateral Agent shall be entitled to all
of the rights and remedies of the Collateral Agent under this Security
Agreement in relation thereto.
(c) The Collateral Agent's Duty of Care. Other than the
exercise of reasonable care to assure the safe custody of the
Collateral while being held by the Collateral Agent hereunder, the
Collateral Agent shall have no duty or liability to preserve rights
pertaining thereto, it being understood and agreed that the Obligors
shall be responsible for preservation of all rights in the Collateral,
and the Collateral Agent shall be relieved of all responsibility for
the Collateral upon surrendering it or tendering the surrender of it
to the Obligors. The Collateral Agent shall be deemed to have
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<PAGE> 19
exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which the Collateral Agent accords its own
property, which shall be no less than the treatment employed by a
reasonable and prudent agent in the industry, it being understood that
the Collateral Agent shall not have responsibility for taking any
necessary steps to preserve rights against any parties with respect to
any of the Collateral.
11. Application of Proceeds. Upon the occurrence and during the
continuance of an Event of Default, any payments in respect of the Secured
Obligations and any proceeds of the Collateral, when received by the Collateral
Agent or any of the Lenders in cash or its equivalent, will be applied in
reduction of the Secured Obligations in the order set forth in Section 9.3 of
the Credit Agreement, and each Obligor irrevocably waives the right to direct
the application of such payments and proceeds and acknowledges and agrees that
the Collateral Agent shall have the continuing and exclusive right to apply and
reapply any and all such payments and proceeds in the Collateral Agent's sole
discretion, notwithstanding any entry to the contrary upon any of its books and
records.
12. Costs of Counsel. At all times hereafter, the Obligors agree
to promptly pay upon demand any and all reasonable documented costs and
expenses of the Collateral Agent or the Lenders, (i) as required under Section
11.5 of the Credit Agreement and (ii) as necessary to protect the Collateral or
to exercise any rights or remedies under this Security Agreement with respect
to any Collateral. All of the foregoing costs and expenses shall constitute
Secured Obligations hereunder.
13. Continuing Agreement.
(a) This Security Agreement shall be a continuing
agreement in every respect and shall remain in full force and effect
so long as the Secured Obligations are outstanding, any amounts
payable thereunder or under any other Credit Document shall remain
outstanding, and until all of the Commitments thereunder shall have
terminated (other than any obligations with respect to the indemnities
set forth in the Credit Documents which shall survive the termination
of the Credit Documents). Upon such payment and termination, this
Security Agreement shall be automatically terminated and, the
Collateral Agent and the Lenders shall, upon the request and at the
expense of the Obligors, forthwith release all of its liens and
security interests hereunder and shall execute and deliver all UCC
termination statements and/or other documents reasonably requested by
the Obligors evidencing such termination. Notwithstanding the
foregoing all releases and indemnities provided hereunder shall
survive termination of this Security Agreement.
(b) This Security Agreement shall continue to be
effective or be automatically reinstated, as the case may be, if at
any time payment, in whole or in part, of any of the Secured
Obligations is rescinded or must otherwise be restored or returned by
the Collateral Agent or any Lender as a preference, fraudulent
conveyance or otherwise under any bankruptcy, insolvency or similar
law, all as though such payment had not been
-19-
<PAGE> 20
made; provided that in the event payment of all or any part of the
Secured Obligations is rescinded or must be restored or returned, all
reasonable costs and expenses (including without limitation any
reasonable legal fees and disbursements) incurred by the Collateral
Agent or any Lender in defending and enforcing such reinstatement
shall be deemed to be included as a part of the Secured Obligations.
14. Amendments; Waivers; Modifications. This Security Agreement
and the provisions hereof may not be amended, waived, modified, changed,
discharged or terminated except as set forth in Section 11.6 of the Credit
Agreement.
15. Successors in Interest. This Security Agreement shall create
a continuing security interest in the Collateral and shall be binding upon each
Obligor, its successors and assigns and shall inure, together with the rights
and remedies of the Collateral Agent and the Lenders hereunder, to the benefit
of the Collateral Agent and the Lenders and their successors and permitted
assigns; provided, however, that none of the Obligors may assign its rights or
delegate its duties hereunder without the prior written consent of each Lender
or the Required Lenders, as required by the Credit Agreement. To the fullest
extent permitted by law, each Obligor hereby releases the Collateral Agent and
each Lender, and its successors and assigns, from any liability for any act or
omission relating to this Security Agreement or the Collateral, except for any
liability arising from the gross negligence or willful misconduct of the
Collateral Agent, or such Lender, or its officers, employees or agents.
16. Notices. All notices required or permitted to be given under
this Security Agreement shall be in conformance with Section 11.1 of the Credit
Agreement.
17. Counterparts. This Security Agreement may be executed in any
number of counterparts, each of which where so executed and delivered shall be
an original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Security Agreement to produce or
account for more than one such counterpart.
18. Headings. The headings of the sections and subsections hereof
are provided for convenience only and shall not in any way affect the meaning
or construction of any provision of this Security Agreement.
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<PAGE> 21
19. Governing Law; Submission to Jurisdiction; Venue.
(a) THIS SECURITY AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK. Any legal action or proceeding with respect to this
Security Agreement may be brought in the courts of the State of North
Carolina, or of the United States for the Western District of North
Carolina, and, by execution and delivery of this Security Agreement,
each Obligor hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of such
courts. Each Obligor further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address for notices pursuant to
Section 11.1 of the Credit Agreement, such service to become effective
30 days after such mailing. Nothing herein shall affect the right of
the Collateral Agent to serve process in any other manner permitted by
law or to commence legal proceedings or to otherwise proceed against
any Obligor in any other jurisdiction.
(b) Each Obligor hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out of or in connection
with this Security Agreement brought in the courts referred to in
subsection (a) hereof and hereby further irrevocably waives and agrees
not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an
inconvenient forum.
20. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES TO THIS SECURITY AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
21. Severability. If any provision of this Security Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
22. Entirety. This Security Agreement, the other Credit Documents
and the Hedging Agreements represent the entire agreement of the parties hereto
and thereto, and supersede all prior agreements and understandings, oral or
written, if any, including any commitment letters or correspondence relating to
the Credit Documents and the Hedging Agreements or the transactions
contemplated herein and therein.
23. Survival. All representations and warranties of the Obligors
hereunder shall survive the execution and delivery of this Security Agreement,
the other Credit Documents and
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<PAGE> 22
the Hedging Agreements, the delivery of the Notes and the making of the Loans
and the issuance of the Letters of Credit under the Credit Agreement.
24. Other Security. To the extent that any of the Secured
Obligations are now or hereafter secured by property other than the Collateral
(including, without limitation, real property and securities owned by an
Obligor), or by a guarantee, endorsement or property of any other Person, then
to the extent the Collateral Agent and the Lenders shall have the right to
proceed against such other property, guarantee or endorsement upon the
occurrence and continuance of any Event of Default to the extent the applicable
security agreement, guarantee or endorsement or other applicable document so
provides, and the Collateral Agent and the Lenders have the right, in their
sole discretion, to determine which rights, security, liens, security interests
or remedies the Collateral Agent and the Lenders shall at any time pursue,
relinquish, subordinate, modify or take with respect thereto, without in any
way modifying or affecting any of them or any of the Collateral Agent's and the
Lenders' rights or the Secured Obligations under this Security Agreement, under
any other Credit Document or under any Hedging Agreement.
25. Joint and Several Obligations of Obligors.
(a) Subject to clause (c), each of the Obligors is
accepting joint and several liability hereunder in consideration of
the financial accommodation to be provided by the Lenders under the
Credit Agreement, for the mutual benefit, directly and indirectly, of
each of the Obligors and in consideration of the undertakings of each
of the Obligors to accept joint and several liability for the
obligations of each of them.
(b) Subject to clause (c), each of the Obligors jointly
and severally hereby irrevocably and unconditionally accepts, not
merely as a surety but also as a co-debtor, joint and several
liability with the other Obligors with respect to the payment and
performance of all of the Secured Obligations arising under this
Security Agreement and the other Credit Documents, it being the
intention of the parties hereto that all the Obligations shall be the
joint and several obligations of each of the Obligors without
preferences or distinction among them.
(c) Notwithstanding any provision to the contrary
contained herein or in any other of the Credit Documents,
(i) to the extent the obligations of a Guarantor
shall be adjudicated to be invalid or unenforceable for any
reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent
conveyances or transfers) then the obligations of each
Guarantor hereunder shall be limited to the maximum amount
that is permissible under applicable law (whether federal or
state and including, without limitation, the Bankruptcy Code),
and
(ii) the obligations of Holdings hereunder and
under the Credit Documents, in the aggregate, shall be limited
to an amount equal to $146,298,000,
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<PAGE> 23
unless at least ninety percent (90%) of the Holdings
Debentures have been repurchased, in which case no such
limitation shall apply.
26. Rights of Required Lenders. All rights of the Collateral
Agent hereunder, if not exercised by the Collateral Agent, must be exercised by
the Collateral Agent if directed by the Required Lenders.
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<PAGE> 24
Each of the parties hereto has caused a counterpart of this Security
Agreement to be duly executed and delivered as of the date first above written.
BORROWER: IPC, INC.
- -------- Delaware corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[signatures continue]
<PAGE> 25
GUARANTORS: IVEX PACKAGING CORPORATION,
- ---------- a Delaware corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
IVEX PAPER MILL CORPORATION,
a Delaware corporation
IPMC HOLDING CORPORATION,
a Delaware corporation
IPMC, INC.,
a Delaware corporation
VALLEY EXPRESS LINES, INC.,
a Delaware corporation
KAMA OF ILLINOIS CORPORATION,
a Delaware corporation
PACKAGING PRODUCTS, INC.,
a Delaware corporation
CFI INDUSTRIES, INC.,
a Delaware corporation
PLASTOFILM INDUSTRIES, INC.,
a Delaware corporation
CFI RECYCLING, INC.,
a Delaware corporation
TRIO PRODUCTS, INC.,
a Delaware corporation
By:
----------------------------------------
Name:
--------------------------------------
Title: of each of
----------------------------
the above named Guarantors
<PAGE> 26
Accepted and agreed to as of the date first above written.
NATIONSBANK, N.A., as Collateral Agent
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
<PAGE> 1
EXHIBIT 4.5
Drawn By and Return To:
Moore & Van Allen, PLLC (MBG)
NationsBank Corporate Center
100 North Tryon Street, Floor 47
Charlotte, North Carolina 28202-4003
AMENDED AND RESTATED
MORTGAGE AND
SECURITY AGREEMENT
COLLATERAL IS OR INCLUDES FIXTURES
THIS AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT (the
"Mortgage"), dated as of October 2, 1997, is by and between IPC, INC., a
Delaware corporation (the "Borrower"), successor in title by merger to Ivex
Coated Products Corporation, a Massachusetts corporation ("Ivex") and
NATIONSBANK, N.A., as Collateral Agent for the Lenders under the Credit
Agreement hereinafter defined (in its capacity as Collateral Agent hereunder,
together with any successor in such capacity, hereinafter the "Collateral
Agent").
RECITALS:
WHEREAS, the Borrower, Ivex Packaging Corporation, a Delaware
corporation ("Holdings"), each of the Borrower's Domestic Subsidiaries (the
Borrower's Domestic Subsidiaries, together with Holdings, individually a
"Guarantor" and collectively the "Guarantors"), the lenders party thereto and
NationsBank, N.A., as agent entered into that certain Amended and Restated
Credit Agreement dated as of March 24, 1997 which provided a $205 million
credit facility to the Borrower (the "Prior Credit Agreement"). The credit
facility provided pursuant to the Prior Credit Agreement replaced and
refinanced the credit facilities provided to the Borrower by NationsBank, N.A.,
as agent and certain other lenders pursuant to a credit agreement dated as of
December 7, 1995.
WHEREAS, the obligations of the Borrower to NationsBank, N.A., as
agent and various other lenders under the Prior Credit Agreement are secured by
a Mortgage and Security Agreement dated as of December 7, 1995 recorded as
Document No. __________ in the land records of ____________________, as
modified by that certain First Amendment to Mortgage and Security Agreement
dated as of January 12, 1996 recorded as Document No. __________ in the land
records of ____________________, and that certain Second Amendment to Mortgage
and Security Agreement dated as of March 24, 1997 recorded as Document No.
__________ in the land records of ____________________, covering certain real
property located in __________ as particularly described on Exhibit A attached
thereto
<PAGE> 2
and hereto, and the improvements and personal property located thereon (the
"Prior Mortgage").
WHEREAS, pursuant to that certain Amended and Restated Credit
Agreement dated as of the date hereof (as amended, modified, extended, renewed
or replaced from time to time, the "Credit Agreement") among the Borrower, the
Guarantors, the Collateral Agent in its capacity as Administrative Agent (the
"Administrative Agent"), Bankers Trust Company, as Documentation Agent (the
"Documentation Agent") and various other banks and financial institutions as
may now or hereafter become a party thereto (such banks and financial
institutions, together with their successors and assigns, may hereafter be
referred to collectively as the "Lenders" and individually as a "Lender"), the
Lenders have agreed to amend and restate the Prior Credit Agreement to (i)
provide up to $475 million of indebtedness to the Borrower and (ii) extend the
final maturity of the credit facilities provided under the Prior Credit
Agreement. Terms used herein and not otherwise defined shall have the meaning
ascribed to such terms in the Credit Agreement.
WHEREAS, the Lenders have required, as a condition precedent to making
Extensions of Credit pursuant to the terms of the Credit Agreement, that the
Borrower amend and restate the Prior Mortgage as set forth herein.
W I T N E S S E T H:
The Borrower, in consideration of the indebtedness herein recited and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, irrevocably grants, releases, sells, remises, bargains,
assigns, pledges, warrants, mortgages, transfers and conveys to the Collateral
Agent and the Collateral Agent's successors and assigns, subject to the further
terms of this Mortgage, all of the following described land, real property
interests, buildings, improvements, fixtures, furniture and appliances and
other personal property:
(a) All that tract or parcel of land and other real property
interests in ____________________ more particularly described in Exhibit A
attached hereto and made a part hereof (the "Land"); and
(b) All buildings and improvements of every kind and description
now or hereafter erected or placed on the aforesaid Land (the "Improvements")
and all materials intended for construction, reconstruction, alteration and
repair of such Improvements now or hereafter erected thereon, all of which
materials shall be deemed to be included within the premises hereby conveyed
immediately upon the delivery thereof to the aforesaid Land, and all fixtures
and articles of personal property now or hereafter owned by the Borrower and
attached to or contained in and used in connection with the aforesaid Land and
Improvements including, but not limited to, all furniture, furnishings,
apparatus, machinery, equipment, motors, elevators, fittings, radiators,
ranges, refrigerators, awnings, shades, screens, blinds, carpeting, office
equipment and other furnishings and all plumbing, heating, lighting, cooking,
laundry,
-2-
<PAGE> 3
ventilating, refrigerating, incinerating, air conditioning and sprinkler
equipment and fixtures and appurtenances thereto and all renewals or
replacements thereof or articles in substitution thereof, whether or not the
same are or shall be attached to the Land and Improvements in any manner (the
"Tangible Personalty") and all proceeds of the Tangible Personalty
(hereinafter, the Land, Improvements and Tangible Personalty may be
collectively referred to as the "Premises").
TO HAVE AND HOLD the same, together with all privileges,
hereditaments, easements and appurtenances thereunto belonging, to the
Collateral Agent and the Collateral Agent's successors and assigns to secure
the indebtedness herein recited;
And, as additional security for said indebtedness, the Borrower hereby
conditionally assigns to the Collateral Agent all right, title and interest of
the Borrower in and to the security deposits, rents, issues, profits and
revenues of the Premises from time to time accruing (the "Rents and Profits"),
reserving only the right to the Borrower to collect and enjoy the same as long
as there shall exist no Event of Default (as defined in Article III).
As additional collateral and further security for the indebtedness,
the Borrower does hereby assign to the Collateral Agent and grants to the
Collateral Agent a security interest in all of the right, title and interest of
the Borrower in and to any and all insurance policies and proceeds thereof and
any and all leases (including equipment leases), rental agreements, sales
contracts, management contracts, franchise agreements, construction contracts,
architects' contracts, technical services agreements, or other contracts,
licenses and permits now or hereafter affecting the Premises (the "Intangible
Personalty") or any part thereof, and the Borrower agrees to execute and
deliver to the Collateral Agent such additional instruments, in form and
substance reasonably satisfactory to the Collateral Agent, as may hereafter be
requested by the Collateral Agent to evidence and confirm said assignment;
provided, however, that acceptance of any such assignment shall not be
construed as a consent by the Collateral Agent to any lease, rental agreement,
management contract, franchise agreement, construction contract, technical
services agreement or other contract, license or permit, or to impose upon the
Collateral Agent any obligation with respect thereto.
All the Tangible Personalty which comprise a part of the Premises
shall, as far as permitted by law, be deemed to be affixed to the aforesaid
Land and conveyed therewith. As to the balance of the Tangible Personalty and
the Intangible Personalty, this Mortgage shall be considered to be a security
agreement which creates a security interest in such items for the benefit of
the Collateral Agent. In that regard, the Borrower grants to the Collateral
Agent all of the rights and remedies of a secured party under the __________
Uniform Commercial Code.
The Borrower and the Collateral Agent covenant, represent and agree as
follows:
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ARTICLE I
Secured Obligations
1.1 Obligations Secured. The Administrative Agent, the Documentation
Agent and the Lenders have agreed to establish a $475,000,000 credit facility
(hereinafter the loans and extensions of credit thereunder may be called the
"Loans") in favor of the Borrower pursuant to the terms of the Credit Agreement
and as evidenced by (i) those revolving credit promissory notes of the Borrower
(as referenced and defined in the Credit Agreement, as amended, modified,
supplemented, extended, renewed or replaced from time to time, the "Revolving
Notes"), (ii) those tranche A term loan promissory notes of the Borrower (as
referenced and defined in the Credit Agreement, as amended, modified,
supplemented, extended, renewed or replaced from time to time, the "Tranche A
Term Notes"), (iii) those tranche B term loan promissory notes of the Borrower
(as referenced and defined in the Credit Agreement, as amended, modified,
supplemented, extended, renewed or replaced from time to time, the "Tranche B
Term Notes") (hereinafter the Revolving Notes, the Tranche A Term Notes and the
Tranche B Term Notes may be referred to as the "Notes") and (iv) those letters
of credit for the account of the Borrower or any other Credit Party (as
referenced in the Credit Agreement, the "Letters of Credit").
1.2 Amount Secured. This Mortgage secures all present and future
advances and extensions of credit that may subsequently be made to the Borrower
under the Credit Documents and all other indebtedness and obligations of the
Borrower to the Administrative Agent or the Lenders, now or hereafter existing
that relates to the Credit Documents.
1.3 Maturity Date. (i) Payment by the Borrower of the principal
and interest on the Revolving Loans, Tranche A Term Loans and Tranche B Term
Loans and (ii) reimbursement by the Borrower of any drawings on Letters of
Credit, will be in accordance with the Credit Agreement, which Credit Agreement
provides for the payment on the Revolving Notes and Tranche A Term Notes and
reimbursement on the Letters of Credit on or before October 2, 2003, which is
the final maturity date of the Revolving Notes, Tranche A Term Notes and
Letters of Credit and for the payment on the Tranche B Term Notes on or before
October 2, 2004, which is the final maturity date of the Tranche B Term Notes.
ARTICLE II
The Borrower's Covenants, Representations and Agreements
2.1 Title to Property. The Borrower represents and warrants that it
is seized of the Land, the Improvements (and any fixtures) and the Tangible
Personalty (to the extent such Tangible Personalty constitutes fixtures) in fee
(and has title to any appurtenant easements) and has the right to convey the
same, that title to such property is free and clear of all encumbrances except
for the matters shown on the title insurance policy accepted by the Collateral
Agent in connection with this Mortgage (the "Permitted Encumbrances") and any
Permitted Liens, and
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that it will warrant and defend the title to such property except for the
Permitted Encumbrances and the Permitted Liens against the claims of all
persons or parties. As to the balance of the Premises, the Rents and Profits
and the Intangible Personalty, the Borrower represents and warrants that it has
title to such property, that it has the right to convey such property except
for Permitted Liens and that it will warrant and defend such property against
the claims of all persons or parties.
2.2 Taxes and Fees. The Borrower will pay on or before the date that
the same become delinquent all taxes, general and special assessments, special
service area charges or taxes, taxes or charges levied pursuant to any tax
increment financing program, area or district which may affect the Premises
regardless of how such charges or taxes are designated by the government
authority imposing the same, insurance premiums, permit fees, inspection fees,
license fees, water and sewer charges, franchise fees and equipment rents and
any other charges or fees against it or the Premises (and the Borrower, upon
request of the Collateral Agent, will submit to the Collateral Agent receipts
evidencing said payments); provided, however, that the Borrower shall not be
required to pay any tax or assessment, which it is diligently contesting in
good faith by appropriate proceedings, and for which the Borrower has furnished
the Collateral Agent with bonds or other security in form and amount acceptable
to the Collateral Agent in its sole discretion, but only so long as there is no
liability to the Collateral Agent or the Lenders or risk of loss, sale or
forfeiture of any portion of the Premises or collateral pledged to the
Collateral Agent in excess of such bonds or other security.
2.3 Reimbursement. Subject to the Borrower's right to contest
contained in Section 2.2 hereof, the Borrower agrees that if it shall fail to
pay on or before the date that the same become delinquent any tax, assessment
or charge levied or assessed against the Premises or any utility charge,
whether public or private, or any insurance premium or if it shall fail to
procure the insurance coverage and the delivery of the insurance certificates
required hereunder, or if it shall fail to pay any other charge or fee
described in Sections 2.2, 2.3, 2.6 or 2.9 hereof, then the Collateral Agent,
at its option, may pay or procure the same. The Borrower will reimburse the
Collateral Agent upon demand for any sums of money paid by the Collateral Agent
pursuant to this Section, together with interest on each such payment at the
default rate of interest set forth in the Credit Agreement, and all such sums
and interest thereon shall be secured hereby.
2.4 Additional Documents. The Borrower agrees to execute and deliver
to the Collateral Agent, concurrently with the execution of this Mortgage and
upon the request of the Collateral Agent from time to time hereafter, all
financing statements and other documents reasonably required to perfect and
maintain the security interest created hereby. The Borrower hereby irrevocably
(as long as the Loans remain unpaid and the Commitments remain outstanding)
makes, constitutes and appoints the Collateral Agent as the true and lawful
attorney of the Borrower to sign the name of the Borrower (provided the
Borrower has failed or refused to timely execute such documents upon request of
the Collateral Agent) on any financing statement, continuation of financing
statement or similar document required to perfect or continue such security
interests.
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2.5 Sale or Encumbrance. Except as permitted by the Credit
Agreement, the Borrower will not sell, encumber or otherwise dispose of any of
the Tangible Personalty except to incorporate such into the Improvements or
replace such with goods of quality and value at least equal to that replaced.
In the event the Borrower sells or otherwise disposes of any of the Tangible
Personalty in contravention of the foregoing sentence, the Collateral Agent's
security interest in the proceeds of the Tangible Personalty shall continue
pursuant to this Mortgage.
2.6 Fees and Expenses. The Borrower will pay or reimburse the
Collateral Agent for all reasonable attorneys' fees, costs and expenses
incurred by the Collateral Agent in any action, legal proceeding or dispute of
any kind which affects the Loans, the interest created herein, the Premises,
the Rents and Profits or the Intangible Personalty, including but not limited
to, any foreclosure of this Mortgage, enforcement of payment of the Notes or
any other amount due under the Credit Documents, any condemnation action
involving the Premises or any action to protect the security hereof. Any such
amounts paid by the Collateral Agent shall be due and payable upon demand and
shall be secured hereby.
2.7 Leases and Other Agreements. Without first obtaining on each
occasion the written approval of the Collateral Agent, the Borrower shall not,
except as permitted by the Credit Agreement, enter into, cancel, surrender or
modify or permit the cancellation of any lease (including any equipment lease),
rental agreement, management contract, franchise agreement, construction
contract, technical services agreement or other contract, license or permit now
or hereafter affecting the Premises, or modify any of said instruments, or
accept or permit to be made, any prepayment of any installment of rent or fees
thereunder; provided, however, the Borrower may take any of the foregoing
actions without the consent of the Collateral Agent if the same will not cause
a Material Adverse Effect. Certified copies of each such approved lease or
other agreement shall be submitted to the Collateral Agent as soon as possible.
The Borrower shall faithfully keep and perform, or cause to be kept and
performed, in all material respects, all of the covenants, conditions, and
agreements contained in each of said instruments, now or hereafter existing, on
the part of the Borrower to be kept and performed (including performance of all
covenants to be performed under any and all leases of the Premises or any part
thereof) and shall at all times use commercially reasonable efforts to enforce,
with respect to each other party to said instruments, all obligations,
covenants and agreements by such other party to be performed thereunder.
2.8 Maintenance of Premises. Except as provided otherwise in the
Credit Agreement, the Borrower will abstain from and will not permit the
commission of waste in or about the Premises and will maintain, or cause to be
maintained, the Premises in good condition and repair, reasonable wear and tear
excepted.
2.9 Insurance.
(a) Liability: The Borrower covenants to maintain or
cause to be maintained, general accident and public liability insurance against
all claims for bodily injury, death or property damage occurring upon, in or
about any part of the Premises. The policies must be from companies and in
amounts reasonably satisfactory to the Collateral Agent.
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(b) Hazard: The Borrower covenants to maintain or cause
to be maintained at all times hazard insurance on the Premises. The policy
must be from a company satisfactory to the Collateral Agent, must be in an
amount reasonably satisfactory to the Collateral Agent, can only include
co-insurance provisions satisfactory to the Collateral Agent, must include
provisions for a minimum 30 day advance written notice to the Collateral Agent
of any intended policy cancellation or non-renewal, and must designate the
Collateral Agent as mortgagee and loss payee in a standard mortgagee
endorsement, as its interests may appear.
(c) Flood: If any part of the Improvements is located in
an area having "special flood hazards" as defined in the Federal Flood Disaster
Protection Act of 1973, a flood insurance policy naming the Collateral Agent as
mortgagee must be submitted to the Collateral Agent. The policy must be from a
company and in an amount satisfactory to the Collateral Agent and must include
provisions for a minimum 30-day advance written notice to the Collateral Agent
of any intended policy cancellation or non-renewal.
(d) Delivery of Policies and Renewals: The Borrower
agrees to deliver to the Collateral Agent, as additional security hereto, the
original policies of such insurance as is required by the Collateral Agent
pursuant to subsections (a), (b) and (c) hereof and of any additional insurance
which shall be taken out upon the Premises while any part of the Loans shall
remain unpaid. Renewals of such policies shall be so delivered at least ten
(10) days before any such insurance shall expire. In the event the Borrower
fails to maintain insurance as required hereunder the Collateral Agent has the
right to procure such insurance whether or not the Borrower's failure to
maintain such insurance constitutes an Event of Default (as defined in Article
III) or an event or condition which, upon the giving of notice or the passage
of time, or both, would constitute an Event of Default. Any amounts paid by
the Collateral Agent for insurance shall be due and payable to the Collateral
Agent upon demand and shall be secured by this Mortgage.
(e) Proof of Loss; Claims Settlement: In the event of
loss, the Borrower shall give prompt notice thereof to the insurance carrier
and the Collateral Agent, and the Collateral Agent may make proof of loss if
not made promptly by the Borrower. The Collateral Agent is hereby authorized,
in its sole discretion, to adjust, compromise and collect the proceeds of any
insurance claims for application in accordance with subsection (f) below.
(f) Use of Proceeds: In case of any material loss,
damage to or destruction of the Premises or any part thereof, the Borrower
shall promptly give written notice thereof to the Collateral Agent generally
describing the nature and extent of such damage or destruction. In case of any
loss, damage to or destruction of the Premises or any part thereof, the
Borrower, whether or not the insurance proceeds, if any, received on account of
such damage or destruction shall be sufficient for that purpose, at the
Borrower's cost and expense, will promptly repair or replace the Premises so
lost, damaged or destroyed; provided, however, that the Borrower need not
repair or replace the Premises so lost, damaged or destroyed to the extent the
failure to make such repair or replacement (i) is desirable to the proper
conduct of the business of the Borrower at the Premises in the ordinary course
and otherwise in the best interest of the Borrower and (ii)
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would not materially impair the rights and benefits of the Collateral Agent or
the Lenders under this Mortgage or any other Credit Document. In the event the
Borrower shall receive any proceeds of such insurance in a net amount in excess
of $5,000,000, the Borrower will immediately pay over such proceeds to the
Collateral Agent for payment of the Credit Party Obligations; provided,
however, the Collateral Agent agrees to release such insurance proceeds to the
Borrower for restoration or repair of the Premises if, but only if, (A) no
Default or Event of Default shall have occurred or be continuing at the time of
release, (B) written application for such release is received by the Collateral
Agent from the Borrower within 30 days of receipt of such proceeds and (C) the
Collateral Agent has received evidence reasonable satisfactory to it that the
Premises lost, damaged or destroyed has been or will be replaced or restored to
its condition immediately prior to the loss, destruction or other event giving
rise to the payment of such insurance proceeds or such proceeds are used in a
manner reasonably acceptable to the Collateral Agent. All insurance proceeds
shall be subject to the security interest of the Collateral Agent and Lenders
under this Mortgage. Wherever provision is made herein for insurance policies
to bear mortgagee clauses or other loss payable clauses or endorsements in
favor of the Collateral Agent, or to confer authority upon the Collateral Agent
to settle or participate in the settlement of losses under policies of
insurance or to hold and disburse or otherwise control use of insurance
proceeds, from and after the entry of judgment of foreclosure all such rights
and powers of the Collateral Agent shall continue in the Collateral Agent as
judgment creditor or mortgagee until confirmation of sale.
2.10 Eminent Domain. The Borrower assigns to the Collateral Agent
any proceeds or awards which may become due by reason of any condemnation or
other taking for public use of the whole or any part of the Premises or any
rights appurtenant thereto, and the Collateral Agent may, at its option, either
apply the same to the Notes or release the same to the Borrower without thereby
incurring any liability to any other person. The Borrower agrees to execute
such further assignments and agreements as may be reasonably required by the
Collateral Agent to assure the effectiveness of this Section. In the event any
governmental agency or authority shall require or commence any proceedings for
the demolition of any buildings or structures comprising a part of the
Premises, or shall commence any proceedings to condemn or otherwise take
pursuant to the power of eminent domain a material portion of the Premises, the
Borrower shall promptly notify the Collateral Agent of such requirement or
commencement of proceeding (for demolition, condemnation or other taking).
2.11 Transfer of Premises. Except as provided otherwise in the
Credit Agreement, the Borrower covenants and agrees with the Collateral Agent
that the Borrower shall not sell, transfer, convey, mortgage, encumber or
otherwise dispose of the Premises, the Rents and Profits or the Intangible
Personalty or any part thereof or any interest therein or engage in subordinate
financing with respect thereto during the term of this Mortgage without the
prior written consent of the Collateral Agent.
2.12 Compliance with Law. Except as provided otherwise in the Credit
Agreement, the Borrower will comply with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, all Governmental
Authorities in respect of the ownership of the
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Premises (including applicable statutes, regulations, orders and restrictions
relating to environmental standards and controls).
2.13 Inspection. The Borrower will permit the Collateral Agent, or
its agents, at all reasonable times and with advance prior notice to enter and
pass through or over the Premises for the purpose of inspecting same; provided,
however, unless an Event of Default shall have occurred and be continuing
inspections shall be at reasonable times during the Borrower's normal business
hours.
2.14 Releases and Waivers. The Borrower agrees that no release by
the Collateral Agent of any portion of the Premises, the Rents and Profits or
the Intangible Personalty, no subordination of lien, no forbearance on the part
of the Lenders or the Collateral Agent to collect on the Loans, or any part
thereof, no waiver of any right granted or remedy available to the Collateral
Agent and no action taken or not taken by the Collateral Agent shall in any way
have the effect of releasing the Borrower from full responsibility to the
Lenders and the Collateral Agent for the complete discharge of each and every
of the Borrower's obligations hereunder.
ARTICLE III
Event of Default
An Event of Default shall exist under the terms of this Mortgage upon
the existence of an Event of Default under the terms of the Credit Agreement.
ARTICLE IV
Foreclosure
4.1 Acceleration of Loan; Foreclosure. Upon the occurrence and
during the continuance of an Event of Default the entire balance of the Loans
and any other obligations due under the Credit Documents, including all accrued
interest, shall, at the option of the Collateral Agent, become immediately due
and payable. Upon failure to pay the Loans or reimburse any other amounts due
under the Credit Documents in full at any stated or accelerated maturity, the
Collateral Agent shall have the right to foreclose this Mortgage in any manner
permitted by applicable law and in accordance with the terms of this Mortgage
for the indebtedness and obligations secured hereby. If the foreclosure is for
less than all of the indebtedness secured hereby, the lien of this Mortgage
shall continue for the balance of the indebtedness and obligations secured
hereby. Without limitation of any other provisions of this Mortgage, if the
Collateral Agent shall incur or expend any sums, including without limitation
attorneys' fees, whether or not in connection with any action or proceeding, to
sustain the lien of this Mortgage or its priority, or to protect or enforce any
of the Collateral Agent's rights hereunder, or to recover any indebtedness
secured hereby, all such sums shall become immediately due and payable by the
Borrower with interest thereon. All such sums shall be secured by this
Mortgage
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and shall be a lien on the Premises prior to any right, title, interest, or
claim, in, to or upon the Premises attaching or accruing subsequent to the lien
of this Mortgage.
4.2 Fees and Expenses. Without limitation of Section 4.1, in any
suit to foreclose the lien hereof, the Collateral Agent shall be allowed to
include as additional indebtedness secured hereby in the decree for sale all
costs and expenses which may be paid or incurred by or on behalf of the
Borrower or any holder or holders of the Notes or other indebtedness secured
hereby (plus interest thereon) for attorneys' fees, appraiser's fees,
receiver's costs and expenses, insurance, taxes, outlays for documentary and
expert evidence, costs for preservation of the Premises, stenographer's
charges, publication costs and costs of procuring all abstracts of title, title
searches and examinations, guarantee policies and similar data and assurances
with respect to title as the Collateral Agent may deem to be reasonably
necessary either to prosecute such suit or to evidence to bidders at any sale
which may be had pursuant to such decree the true condition of the title to or
value of the Premises or for any other reasonable purpose. Subject to
applicable law, the amount of any such costs and expenses which may be paid or
incurred after the decree for sale is entered may be estimated and the amount
of such estimate may be allowed and included as additional indebtedness secured
hereby in the decree for sale.
4.3 Proceeds of Sale. Following a foreclosure sale, the proceeds of
such sale shall, subject to applicable law, be applied in accordance with
Section 9.3 of the Credit Agreement.
ARTICLE V
Additional Rights and Remedies of the Collateral Agent
5.1 Rights Upon Maturity or an Event of Default. Upon the occurrence
and during the continuance of an Event of Default, the Collateral Agent,
immediately and without additional notice and without liability therefor to the
Borrower, except for gross negligence, and subject to and as permitted by
applicable law, may do or cause to be done any or all of the following: (a)
take physical possession of the Premises; (b) exercise its right to collect the
Rents and Profits; (c) enter into contracts for the completion, repair and
maintenance of the Improvements thereon; (d) expend Loan funds and any rents,
income and profits derived from the Premises for payment of any taxes,
insurance premiums, assessments and charges for completion, repair and
maintenance of the Improvements, preservation of the lien of this Mortgage and
satisfaction and fulfillment of any liabilities or obligations of the Borrower
arising out of or in any way connected with the construction of Improvements on
the Premises whether or not such liabilities and obligations in any way affect,
or may affect, the lien of this Mortgage; (e) enter into leases demising the
Premises or any part thereof; (f) take such steps to protect and enforce the
specific performance of any covenant, condition or agreement in the Notes, this
Mortgage, the Credit Agreement, or the other Credit Documents, or to aid the
execution of any power herein granted; and (g) generally, supervise, manage,
and contract with reference to the Premises as if the Collateral Agent were
equitable owner of the Premises. Notwithstanding the occurrence of an Event of
Default or acceleration of the Loans or any other indebtedness secured hereby,
the Collateral Agent shall continue to have the right to pay money, whether or
not Loan funds, for
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the purposes described in Sections 2.2, 2.3, 2.6 and 2.9 hereof, and all such
sums and interest thereon shall be secured hereby. The Borrower also agrees
that any of the foregoing rights and remedies of the Collateral Agent may be
exercised at any time independently of the exercise of any other such rights
and remedies, and the Collateral Agent may continue to exercise any or all such
rights and remedies until the Event(s) of Default are cured with the consent of
the Collateral Agent or until foreclosure and the conveyance of the Premises to
the high bidder or until the Credit Agreement is no longer in effect or the
Loans and other indebtedness secured hereby are otherwise satisfied or paid in
full.
5.2 Appointment of Receiver. If upon the maturity of the Loans or
any other amounts or obligations under the Credit Documents, the same remain
unpaid or unsatisfied, or upon the occurrence and continuance of an Event of
Default, the Agent shall be entitled, without additional notice and without
regard to the adequacy of any security for the Loans or other obligations under
the Credit Documents or the solvency of any party bound for its payment, to
seek the appointment of a receiver to take possession of and to operate the
Premises, and to collect the rents, issues, profits, and income thereof, all
expenses of which shall be added to the Loans or other indebtedness under the
Credit Documents and secured hereby. The receiver shall have all the rights
and powers permitted under the laws of the State of __________. All costs and
expenses (including receiver's fees, attorney's fees and costs incurred in
connection with the appointment of a receiver) shall be secured by this
Security Deed. Notwithstanding the appointment of any receiver, trustee or
other custodian, the Agent shall be entitled to retain possession and control
of any cash or other instruments, at the time held by or payable or deliverable
under the terms of the Security Deed to the Agent to the fullest extent
permitted by law.
5.3 Waivers. No waiver of any Event of Default shall at any time
thereafter be held to be a waiver of any rights of the Collateral Agent stated
anywhere in the Notes, this Mortgage, the Credit Agreement or any of the other
Credit Documents, nor shall any waiver of a prior Event of Default operate to
waive any subsequent Event(s) of Default. All remedies provided in this
Mortgage, in the Notes, in the Credit Agreement and in the other Credit
Documents are cumulative and may, at the election of the Collateral Agent, be
exercised alternatively, successively, or in any manner and are in addition to
any other rights provided by law.
5.4 Foreclosure as to Matured Debt. Upon the occurrence of an
Event of Default, the Collateral Agent shall have the right to proceed with
foreclosure (judicial or nonjudicial) in accordance with applicable law of the
liens and security interests hereunder without declaring the entire secured
indebtedness due, and in such event any such foreclosure sale may be made
subject to the unmatured part of the secured indebtedness; and any such sale
shall not in any manner affect the unmatured part of the secured indebtedness,
but as to such unmatured part this Mortgage shall remain in full force and
effect just as though no sale had been made. The proceeds of such sale shall
be applied as provided in Section 4.3 hereof.
5.5 Delivery of Possession After Foreclosure. In the event there
is a foreclosure sale hereunder and at the time of such sale, the Borrower or
the Borrower's heirs, devisees, representatives, successors or assigns are
occupying or using the Premises, or any part thereof, each and all immediately
shall become the tenant of the purchaser at such sale, which tenancy
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shall be a tenancy from day to day, terminable at the will of either landlord
or tenant, at a reasonable rental per day based upon the value of the property
occupied, such rental to be due daily to the purchaser; and to the extent
permitted by applicable law, the purchaser at such sale, notwithstanding any
language herein apparently to the contrary, shall have the sole option to
demand possession immediately following the sale or to permit the occupants to
remain as tenants at will. In the event the tenant fails to surrender
possession of said property upon demand, the purchaser shall be entitled to
institute and maintain a summary action for possession of the property (such as
an action for forcible detainer) in any court having jurisdiction.
ARTICLE VI
General Conditions
6.1 Terms. The singular used herein shall be deemed to include the
plural; the masculine deemed to include the feminine and neuter; and the named
parties deemed to include their heirs, successors and assigns. The term
"Lender" shall include any payee of the indebtedness hereby secured or any
transferee thereof whether by operation of law or otherwise.
6.2 Notices. All notices and other communications required to be
given hereunder shall have been given and shall be effective (i) when
delivered, (ii) when transmitted via telecopy (or other facsimile device) to
the number set out below, (iii) the Business Day following the day on which the
same has been delivered prepaid to a reputable national overnight air courier
service, or (iv) the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address or telecopy numbers set forth below, or at
such other address as such party may specify by written notice to the other
parties hereto.
to the Borrower:
IPC, Inc.
100 Tri State Drive, Suite 200
Lincolnshire, Illinois 60069
Attention: Chief Financial Officer
Phone: 847-945-9100
Fax: 847-945-9184
to the Collateral Agent:
NationsBank, N.A.
Sears Tower
233 South Wacker Drive, Suite 2800
Chicago, Illinois 60606
Attention: Carter Smith
Phone: 312-234-5643
Fax: 312-234-5601
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6.3 Greater Estate. In the event that the Borrower is the owner of a
leasehold estate with respect to any portion of the Premises and, prior to the
satisfaction of the indebtedness and the cancellation of this Mortgage of
record, the Borrower obtains a fee estate in such portion of the Premises,
then, such fee estate shall automatically, and without further action of any
kind on the part of the Borrower, be and become subject to the security lien of
this Mortgage.
6.4 Subrogation. If all or any part of the proceeds of the Loans
or any other indebtedness secured hereby and made by the Collateral Agent to
the Borrower, or any amount paid out or advanced by the Collateral Agent, shall
be used directly or indirectly to pay off, discharge or satisfy, in whole or in
part, any prior or junior lien or encumbrance upon the Premises, or any part
thereof, then all such amounts shall constitute part of the indebtedness
secured hereby and the Collateral Agent shall be subrogated to such other lien
or encumbrance and to any additional security held by the holder thereof and
shall have the benefit of the priority of all of same.
6.5 Imposition of Tax. In the event of the passage of any state,
federal, municipal or other governmental law, order, rule or regulation, in
any manner changing or modifying the laws now in force governing the taxation
of debts secured by mortgages or the manner of collecting taxes so as to affect
adversely the Collateral Agent or the Lenders, the Borrower will promptly pay
any such tax on or before the due date thereof.
6.6 Invalidation of Provisions. Invalidation of any one or more of
the provisions of this Mortgage shall in no way affect any of the other
provisions hereof, which shall remain in full force and effect.
6.7 Headings. The captions and headings herein are inserted only as
a matter of convenience and for reference and in no way define, limit, or
describe the scope of this Mortgage nor the intent of any provision hereof.
6.8 Conflicting Terms. In the event the terms and conditions of this
Mortgage conflict with the terms and conditions of the Credit Agreement, the
terms and conditions of the Credit Agreement shall control and supersede the
provisions of this Mortgage with respect to such conflicts. Notwithstanding
the foregoing, nothing contained herein is intended or shall be construed to
affect or alter any choice of law or governing law provision contained in any
other Credit Document, except to the extent such choice of law or governing law
provision shall apply to this Mortgage.
6.9 GOVERNING LAW. THIS MORTGAGE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF __________.
-13-
<PAGE> 14
IN WITNESS WHEREOF, the Borrower has executed this Mortgage under seal
as of the above written date.
IPC, INC., a Delaware corporation
ATTEST: By:
----------------------------------------
Name:
-------------------------------------
By: Title:
------------------- -------------------------------------
Title: _____ Secretary
(Corporate Seal)
-14-
<PAGE> 15
STATE OF
------------
COUNTY OF
-----------
I _________________________, a Notary Public, in and for said County,
in the State aforesaid, DO HEREBY CERTIFY that ______________ President of IPC,
INC., a Delaware corporation, and ___________ Secretary of said corporation,
are personally known to me to be the same persons whose names are subscribed to
the foregoing instrument and as such ______________________ President and
____________ Secretary, respectively, appeared before me this day in person and
acknowledged that they signed and delivered said instrument as their own free
and voluntary act and as the free and voluntary act of said corporation, for
the uses and purposes therein set forth; and said _______________ Secretary
then and there acknowledged that (s)he, as custodian of the corporate seal of
said corporation, did affix the corporate seal of said corporation to said
instrument as his/her own free and voluntary act and as the free and voluntary
act of said corporation, for the uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal, this ___ day of ___________, 1997.
--------------------------------
Notary Public
My Commission expires:
----------
-15-
<PAGE> 1
EXHIBIT 10.13
NON-RECOURSE DEMAND PROMISSORY NOTE
U.S.$[_________] Lincolnshire, Illinois
September 30, 1997
The undersigned (the "Payor"), a U.S. citizen with a principal
residence at the address set forth below the signature line hereof, for value
received, promises to pay to the order of IPC, Inc., a Delaware corporation and
its successors and assigns (the "Payee"), the principal sum of _______________
U.S. Dollars (U.S. $_________) as provided herein, together with interest, on
the terms set forth herein, on the outstanding principal amount of this Note,
until paid in full, at the Stated Rate (as hereinafter defined), such interest
to be payable annually, in arrears on the last business day of each calendar
year commencing on December 31, 1997. For purposes of this Note, the term
"Stated Rate" shall mean the lowest permissible annual rate allowable without
imputation of income under Section 7872 of the Internal Revenue Code.
The outstanding principal amount of this Note shall be repaid
in full on the earlier to occur (the "Maturity Date") of (x) the Payee's oral or
written demand for repayment, or (y) the date that the Payor's employment is
terminated for any reason, or (z) the Payor's sale or other disposition of all
of the Payor's Ivex Common Shares (or if a portion of the Payor's Ivex Common
Shares are sold or otherwise disposed of, a portion of the principal amount of
this Note (such proportion shall be equal to the percentage of the Payor's Ivex
Common Shares so sold) shall be immediately due and payable). For purposes of
this Note, the term "Ivex Common Shares" shall mean the Payor's 4,000 shares of
common stock of Ivex Packaging Corporation which the Payor received from Ivex
Packaging Corporation in connection with Ivex Packaging Corporation's initial
public offering of its common stock.
1. PAYMENTS AND PREPAYMENTS.
1.1 Payments and prepayments of principal and interest on this Note
shall be made at 100 Tri-State Drive, Suite 200, Lincolnshire, Illinois 60069,
Attention Chief Financial Officer, or such other place or places within the
United States as may be
<PAGE> 2
Page 2
Promissory Note
September 30, 1997
specified by the Payee in a written notice to the Payor at least five (5)
business days before a given payment date.
1.2 Payments and prepayments of principal and interest on this Note
shall be made in lawful money of the United States of America by delivery to the
Payee of the Payor's good check in the proper amount on the due date of each
payment or prepayment or otherwise transferring funds so as to be received by
the Payee on the due date of each such payment or prepayment.
1.3 If any payment on this Note becomes due and payable on a Saturday,
Sunday or other day on which commercial banks in Chicago, Illinois are
authorized or required by law to close, the maturity thereof shall be extended
to the next succeeding business day, and, with respect to payments of principal,
interest thereon shall be payable during such extension at the then applicable
rate.
1.4 The Payor shall have the right from time to time to prepay this
Note in whole or in part in multiples of $1,000, together with interest on the
amount prepaid to the date of prepayment, without penalty or premium. All
prepayments made hereunder shall be applied first to any interest on the
principal amount being prepaid and then to the principal amount of this Note.
Upon payment of part of the principal amount of this Note, the Payor may require
the Payee to present this Note for notation of such payment and, if this Note is
paid in full, require the Payee to surrender this Note.
1.5 Upon payment in full of all outstanding principal, interest and
other amounts due under this Note, the Payor's obligations in respect of payment
of this Note shall terminate and the Payee shall return it to the Payor.
2. NON-RECOURSE OBLIGATION; COLLATERAL FOR OBLIGATION.
The Payor and the Payee hereby acknowledge and agree that the
proceeds of this Note were utilized by the Payor to pay the Payor's individual
income taxes that Payor incurred as a result of the Payor's receipt of the Ivex
Common Shares. The Payor and the Payee hereby acknowledge and agree that this
Note is non-recourse to the Payor and to all of Payor's assets (other than the
Ivex Common Shares). The Payor hereby pledges to the Payee the Payor's Ivex
Common Shares and hereby grants to Payee a first security interest in the Ivex
Common Shares as collateral for the Payor's obligations hereunder and the Payor
hereby agrees
<PAGE> 3
Page 3
Promissory Note
September 30, 1997
that during the term hereof the Payor shall not otherwise lien,
pledge or grant any other security interest in such shares. If a default
hereunder shall have occurred and be continuing, the Company may exercise all
rights and remedies of a secured party under the Uniform Commercial Code, from
time to time in effect, in the State of Illinois.
3. MISCELLANEOUS.
3.1 Upon receipt of evidence reasonably satisfactory to the Payor of
the loss, theft, destruction or mutilation of this Note, and upon surrender of
the Note, if mutilated, the Payor will make and deliver to the Payee a new Note
of like tenor in lieu of such lost, stolen, destroyed or mutilated Note.
3.2 THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PAYOR AND THE
PAYEE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE
STATE OF ILLINOIS. The Payor acknowledges that this Note has been negotiated and
delivered in Illinois, and shall be governed by and construed in accordance with
the internal laws of the State of Illinois without reference to: (i) its
judicially or statutorily pronounced rules regarding conflict of laws or choice
of law; (ii) where any other instrument is executed or delivered; (iii) where
any payment or other performance required by any such instrument is made or
required to be made; (iv) where any breach of any provision of any such
instrument occurs or any cause of action otherwise accrues; (v) where any action
or other proceeding is instituted or pending; (vi) the nationality, citizenship,
domicile, principal place of business or jurisdiction or organization or
domestication of any party; (vii) whether the laws of the forum jurisdiction
otherwise would apply the laws of a jurisdiction other than the State of
Illinois; or (viii) any combination of the foregoing. As a further inducement to
the Payee to advance funds as contemplated hereby, the Payee irrevocably (a)
agrees that any suit, action or other legal proceeding relating to the
enforcement or collection of this Note and/or the loan may be brought in the
Northern District of Illinois, if federal jurisdiction is available, and,
otherwise, in the Circuit Court of Cook County, at the Payee's option; (b)
consents to the jurisdiction of each such court in any such suit, action or
proceeding; (c) waives any objection which the Payor may have to the laying of
venue in any such suit, action or proceeding in either such court; and (d)
agrees to join the Payee in any petition for removal to either such court
brought by the Payee.
<PAGE> 4
Page 4
Promissory Note
September 30, 1997
3.3 This Note inures to and binds the successors, assigns and legal
representatives of the Payor, provided however, that the Payor cannot assign
this Note or assign or delegate any of its rights or obligations hereunder
without the prior written consent of the Payee in each instance.
3.4 All amounts due hereunder shall be paid without deduction, set off
or counterclaim, all of which rights the Payor expressly waives. All parties now
and hereafter liable with respect to this Note hereby waive presentment, demand,
protest and all other notices of any kind.
3.5 If Payee delays in exercising or fails to exercise any of its
rights under this Note, such delay or failure shall not constitute a waiver of
any of Payee's rights, or of any breach, default or failure of condition of or
under this Note. No waiver by the Payee of any of its rights, or of any such
breach, default or failure of condition shall be effective, unless the waiver is
expressly stated in a writing signed by the Payee. All of the Payee's remedies
in connection with this Note or under applicable law shall be cumulative, and
the Payee's exercise of any one or more of those remedies shall not constitute
an election of remedies.
3.6 If any provision of this Note is unenforceable, invalid or
contrary to law, or its inclusion herein would affect the validity, legality or
enforcement of this Note, such provision shall be limited to the extent
necessary to render the same valid or shall be excised from this Note, as the
circumstances require, and this Note shall be construed as if said provision had
been incorporated herein as so limited or as if said provision had not been
included herein, as the case may be.
3.7 THE PAYOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN
ANYWAY IN CONNECTION WITH THIS NOTE AND ACKNOWLEDGES THAT IT HAS BEEN
REPRESENTED BY INDEPENDENT LEGAL COUNSEL IN THE SIGNING OF THIS NOTE AND IN THE
MAKING OF THIS WAIVER.
<PAGE> 5
Page 5
Promissory Note
September 30, 1997
IN WITNESS WHEREOF, the Payor has executed this Note as of the day and
year first above written.
By:
----------------------------------
Address of Principal Residence:
----------------------------------
----------------------------------
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 (No. 333-47397) of Ivex Packaging Corporation of our
report dated January 20, 1998 appearing on page 25 of this Annual Report on
Form 10-K.
PRICE WATERHOUSE, LLP
Chicago, Illinois
March 30, 1998
<PAGE> 1
EXHIBIT 10.25
INDUSTRIAL BUILDING LEASE
CAUTION: Consult a lawyer before using or acting under this form. Neither the
publisher nor the seller of this form makes any warranty with respect thereto,
including any warranty for merchantability or fitness for a particular purpose.
(The Above Space For Recorder's Use Only)
<TABLE>
<S> <C>
- -------------------------------------------------
TERM OF LEASE
- -------------------------------------------------
BEGINNING ENDING
- -------------------------------------------------
JANUARY 9, 1998 JANUARY 8, 2003
- ------------------------------------------------- -------------------------------------------------------------------
MONTHLY RENT DATE OF LEASE LOCATION OF PREMISES
- ------------------------------------------------- -------------------------------------------------------------------
SEE ATTACHED RIDER JANUARY 9, 1998
3100 WEST RANDOLPH, BELLWOOD, ILLINOIS
(APPROXIMATELY 66,289 SQUARE FEET)
- ---------------------------------------------------------------------------------------------------------------------
PURPOSE
- ---------------------------------------------------------------------------------------------------------------------
MANUFACTURING, STORAGE AND PROCESSING OF PAPER PRODUCTS AND PACKAGING MATERIALS
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C> <C>
NAME: o Packaging Products, Inc. NAME: o Arapahoe Properties, L.L.C.
ADDRESS: o 3212 West Randolph ADDRESS: o 2340 Des Plaines Ave., Suite 303
CITY: o Bellwood, IL 60104 CITY: o Des Plaines, IL 60018-3224
</TABLE>
In consideration of the mutual covenants and agreements herein stated, Lessor
hereby leases to Lessee and Lessee hereby leases from Lessor solely for the
above purpose the premises designated above (the "Premises"), together with the
appurtenances thereto, for the above Term.
Page 1
<PAGE> 2
LEASE COVENANTS AND AGREEMENTS
1. RENT. Lessee shall pay Lessor or Lessor's agent as rent for the Premises the
sum stated above, monthly in advance, until termination of this lease, at
Lessor's address stated above or such other address as Lessor may designate in
writing.
Page 2
<PAGE> 3
2. CONDITION AND UPKEEP OF PREMISES. Lessee has examined and knows the condition
of the Premises and has received the same in good order and repair, and
acknowledges that no representations as to the condition and repair thereof have
been made by Lessor, or his agent, prior to or at the execution of this lease
that are not herein expressed; Lessee will keep the Premises including all
appurtenances, in good repair, replacing all broken glass with glass of the same
size and quality as that broken, and will replace all damaged plumbing fixtures
with others of equal quality, and will keep the Premises, including adjoining
alleys, in a clean and healthful condition according to the applicable municipal
ordinances and the direction of the proper public officers during the term of
this Lease at Lessee's expense, and will without injury to the roof, remove all
snow and ice from the same when necessary, and will remove the snow and ice from
the sidewalk abutting the Premises; and upon the termination of this lease, in
any way, will yield up the Premises to Lessor, in good condition and repair,
loss by fire and ordinary wear excepted, and will deliver the keys therefor at
the place of payment of said rent.
3. LESSEE NOT TO MISUSE; SUBLET; ASSIGNMENT. Lessee will not allow Premises to
be used for any purpose that will increase the rate of insurance thereon, nor
for any purpose other than that hereinbefore specified, and will not load floors
with machinery or goods beyond the floor load rating prescribed by applicable
municipal ordinances, and will not allow the Premises to be occupied in whole,
or in part, by any other person, and will not sublet the same, or any part
thereof, nor assign this lease without in each case the written consent of the
Lessor (which will not unreasonably be withheld) first had, and Lessee will not
permit any transfer by operation of law of the interest in Premises acquired
through this lease, and will not permit Premises to be used for any unlawful
purpose, or for any purpose that will injure the reputation of the building or
increase the fire hazard of the building, or disturb the tenants or the
neighborhood, and will not permit the same to remain vacant or unoccupied for
more than ten consecutive days; and will not allow any signs, cards or placards
to be posted, or placed thereon, nor permit any alteration of or addition to any
of the Premises, except in each such case by written consent of Lessor (which
will not unreasonably be withheld); all alterations and additions to the
Premises shall remain for the benefit of Lessor unless otherwise provided in the
consent aforesaid.
4. MECHANIC'S LIEN. Lessee will not permit any mechanic's lien or liens to be
placed upon the Premises or any building or improvement thereon during the term
hereof, and in case of the filing of such lien Lessee will promptly pay same. If
default in payment thereof shall continue for thirty (30) days after written
notice thereof from Lessor to the Lessee, the Lessor shall have the right and
privilege at Lessor's option of paying the same or any portion thereof without
inquiry as to the validity thereof, and any amounts so paid, including expenses
and interest, shall be so much additional indebtedness hereunder due from Lessee
to Lessor and shall be repaid to Lessor immediately on rendition of bill
therefor.
5. INDEMNITY FOR ACCIDENTS. Lessee covenants and agrees that he will protect and
save and keep the Lessor forever harmless and indemnified against and from any
penalty or damages or charges imposed for any violation of any laws or
ordinances, whether occasioned by the neglect of Lessee or those holding under
Lessee, and that Lessee will at all times protect, indemnify and save and keep
harmless the Lessor against and from any and al loss, cost, damage or expense,
arising out of or from any accident or other occurrence on or about the
Premises, causing injury to any person or property whomsoever or whatsoever,
except to the extent caused by the gross negligence or willful misconduct of
Lessor or Lessor's failure to comply with the terms of this lease and will
protect, indemnify and save and keep harmless the Lessor against and from any
and all claims and against and from any and all loss, cost, damage or expense
arising out of any failure of Lessee in any respect to comply with and perform
all the requirements and provision hereof.
6. NON-LIABILITY OF LESSOR. Except as provided by Illinois statute, Lessor shall
not be liable for any damage occasioned by failure to keep the Premises in
repair, nor for any damage done or occasioned by or from plumbing, gas, water,
sprinkler, steam or other pipes or sewerage or the bursting, leaking or running
of any pipes, tank or plumbing fixtures, in, above, upon or about Premises or
any building or improvement thereon nor for any damage occasioned by water, snow
or ice being upon or coming through the roof, skylights, trap door other
otherwise, nor for any damages arising from acts or neglect of any owners or
occupants of adjacent or contiguous property.
7. WATER, GAS AND ELECTRIC CHARGES. Lessee will pay, in addition to the rent
above specified, all water rents, gas and electric light and power bills taxed,
levied or charged on the Premises, for and during the time for which this lease
is granted, and in case said water rents and bills for gas, electric light and
power shall not be paid when due, Lessor shall have the right to pay the same,
which amounts so paid, together with any sums paid by Lessor to keep the
Premises in a clean and healthy condition, as above specified, are declared to
be so much additional rent and payable with the installment of rent next due
thereafter.
8. KEEP PREMISES IN REPAIR. Except as otherwise set forth herein, Lessor shall
not be obliged to incur any expense for repairing any improvements upon said
demised premises or connected therewith, and except as otherwise set forth
herein, the Lessee
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<PAGE> 4
at his own expense will keep all improvements in good repair (injury by fire, or
other causes beyond Lessee's control excepted) as well as in a good tenantable
and wholesome condition, and will comply with all local or general regulations,
laws and ordinances applicable thereto, as well as lawful requirements of all
competent authorities in that behalf. Lessee will, as far as possible, keep said
improvements from deterioration ordinary wear and tear excepted. If Lessee does
not make repairs as required hereunder promptly and adequately, Lessor may but
need not make such repairs and pay the costs thereof, and such costs shall be so
much additional rent immediately due from and payable by Lessee to Lessor.
9. ACCESS TO PREMISES. Lessee will allow Lessor free access to the Premises for
the purpose of examining or exhibiting the same, or to make any repairs, or
alterations thereof which Lessor may see fit to make and will allow to have
placed upon the Premises at all reasonable times notice of "For Sale" and "To
Rent", and will not interfere with the same. Notwithstanding the foregoing,
Lessor shall have immediate access to the Premises at any time in case of any
emergency.
10. ABANDONMENT AND RELETTING. If Lessee shall abandon or vacate the Premises,
or if Lessee's right to occupy the Premises be terminated by Lessor by reason of
Lessee's breach of any of the covenants herein, the same may be relet by Lessor
for such rent and upon such terms as Lessor may deem fit, subject to Illinois
statute; and if a sufficient sum shall not thus be realized monthly, after
paying the expenses of such re-letting and collecting to satisfy the rent hereby
reserved, Lessee agrees to satisfy and pay all deficiency monthly during the
remaining period of this lease.
11. HOLDING OVER. Lessee will, at the termination of this lease by lapse of time
or otherwise, yield up immediate possession to Lessor, and failing so to do,
will pay as liquidated damages, for the whole time such possession is withheld,
the sum of Five Hundred Fifty and No/Dollars ($550.00) per day; but the
provisions of this clause shall not be held as a waiver by Lessor of any right
of re-entry as hereinafter set forth; nor shall the receipt of said rent or any
part thereof, or any other act in apparent affirmance or tenancy, operate as a
waiver of the right to forfeit this lease and the term hereby granted for the
period still unexpired, for a breach of any of the covenants herein.
12. EXTRA FIRE HAZARD. There shall not be allowed, kept, or used on the Premises
any inflammable or explosive liquids or materials save such as may be necessary
for use in the business of the Lessee, and in such case, any such substances
shall be delivered and stored in amount, and used, in accordance with the rules
of the applicable Board of Underwriters and statutes and ordinances now or
hereafter in force.
13. DEFAULT BY LESSEE. If default be made in the payment of the above rent, or
any part thereof, or in any of the covenants herein contained to be kept by the
Lessee, Lessor may at any time thereafter at his election declare said term
ended and reenter the Premises or any part thereof, with or (to the extent
permitted by law) without notice or process of law, and remove Lessee or any
persons occupying the same, without prejudice to any remedies which might
otherwise be used for arrears of rent, and Lessor shall have at all times the
right to distrain for rent due.
14. NO RENT DEDUCTION OR SET OFF. Lessee's covenant to pay rent is and shall be
independent of each and every other covenant of this lease. Lessee agrees that
any claim by Lessee against Lessor shall not be deducted from rent nor set off
against any claim for rent in any action.
15. RENT AFTER NOTICE OR SUIT. It is further agreed, by the parties hereto, that
after the service or notice or the commencement of a suit or after final
judgment for possession of the Premises, Lessor may receive and collect any rent
due, and the payment of said rent shall not waive or affect said notice, said
suit, or said judgment.
16. PAYMENT OF COSTS. Lessee will pay and discharge all reasonable costs,
attorneys' fees and expenses that shall be made and incurred by Lessor in
enforcing the covenants and agreements of this lease.
17. RIGHTS CUMULATIVE. The rights and remedies of Lessor under this lease are
cumulative. The exercise or use of any one or more thereof shall not bar Lessor
from exercise or use of any other right or remedy provided herein or otherwise
provided by law, nor shall exercise nor use of any right or remedy by Lessor
waive any other right or remedy.
18. FIRE AND CASUALTY. In case the Premises shall be rendered untenantable
during the term of this lease by fire or other casualty, Lessor at his option
may terminate the lease or repair the Premises within 60 days thereafter. If
Lessor elects to repair, this lease shall remove in effect provided such repairs
are completed within said time. If Lessor shall not have repaired the Premises
Page 4
<PAGE> 5
within said time, then at the end of such time the term hereby created shall
terminate. If this lease is terminated by reason of fire or casualty as herein
specified, rent shall be apportioned and paid to the day of such fire or
casualty.
19. SUBORDINATION. This lease is subordinate to all mortgages which may now or
hereafter affect the Premises.
20. PLURALS; SUCCESSORS. The words "Lessor" and "Lessee" wherever herein
occurring and used shall be construed to mean "Lessors" and "Lessees" in case
more than one person constitutes either party to this lease; and all the
covenants and agreements contained shall be binding upon, and inure to, their
respective successors, heirs, executors, administrators and assigns and may be
exercised by his or their attorney or agent.
21. SEVERABILITY. Wherever possible each provision of this lease shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this lease shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this lease.
If this instrument is executed by a corporation, such execution has been
authorized by a duly adopted resolution of the Board of Directors of such
corporation.
This lease consists of pages hereto have executed this instrument
this day and year first above written.
LESSOR: LESSEE:
Page 5
<PAGE> 6
22. (A) The monthly rental for the term of the Lease is as follows:
<TABLE>
<CAPTION>
DATE MONTHLY RENTAL
---- --------------
<S> <C>
Year One $19,217.62
Year Two $19,794.15
Year Three $20,387.97
Year Four $20,999.61
Year Five $21,629.60
</TABLE>
23. Lessor shall maintain the exterior and structural parts of the building,
being the roof, walls, heating plant and boiler. Lessee shall undertake, at its
own expense, the removal of snow, care of the lawn, and the parking lot.
24. Lessee shall maintain and repair the interior of the Premises, and will keep
the Premises in a clean and healthful condition according to the applicable
municipal ordinances and the direction of the proper public officers during the
term of this Lease, at the expense of the Lessee. Upon the termination of this
Lease, in any way, the Lessee will yield up the Premises to the Lessor, in good
condition and repair, loss by fire, other casualty and ordinary wear excepted,
and will deliver the keys therefor at the place of payment of said rent.
25. Lessor shall maintain all-risk fire and other casualty insurance on the
building and pay the premiums therefor; provided, however, if the rate of
insurance is increased as a result of the use and occupancy by the Lessee, then
the Lessee will pay the increase caused by Lessee's occupancy.
Page 6
<PAGE> 7
The amount of such increase paid by the Lessee will be limited to that portion
of the increase caused solely by the Lessee's use and operation. The Lessor
agrees to furnish Lessee
Page 7
<PAGE> 8
evidence of insurance coverage and Lessor agrees to increase the insurance
coverage to include structural improvements, made by Lessee, that become a
permanent part of the building.
26. Lessor shall maintain the sprinkler system in good working condition at its
own expense and in compliance with the standards and requirements of the Fire
Insurance Association and other appropriate regulatory bodies. Lessor shall also
maintain portions of the building under its control in compliance with all
applicable Factory Insurance Association standards, and in compliance with all
applicable municipal ordinances. Provided, however, that the Lessee shall not be
excused from maintaining the interior of the Premises under its control.
27. No part of the building equipment or fixtures, including but not limited to
the fluorescent lights, bus bars and power boxes, shall be removed without the
written consent of the Lessor. Reasonable approval shall not be refused and
changes to be made will be submitted within sixty (60) days of the signing of
the Lease for Lessor approval.
28. Lessee covenants at all times to comply with all federal, state and local
environmental protective laws and regulations. In the event that the Lessee
violates any of the provisions of said laws, as a result of which the Lessor is
made a party defendant or charged by any governmental agency as being in
violation of said laws, as the result of the Lessee's use and occupancy of the
Premises, then the Lessee agrees to undertake and pay for the costs of defense
of the Lessor in any such proceeding, including the payment of reasonable
attorney's fees, court costs, and any damages or fines assessed, as a result of
the Lessee's breach of any such laws. Further, in the event of any
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<PAGE> 9
such violation by the Lessee, the Lessor may, at its option, terminate this
Lease. Lessor shall have all rights against Lessee available to a landlord under
Illinois law.
29. If Lessee shall default in the performance of any covenant required to be
performed by virtue of any provision of this Lease at the expiration of ten (10)
days after written notice of such defaults without cure by Lessee, the Lessor
may, but shall not be required to perform the same for the account and at the
expense of the Lessee. If Lessor at any time elects to pay any sum of money, or
do an act which will require the payment of any sum of money by reason of the
failure of the Lessee to comply with any provision hereof, or if Lessor incurs
any expense including reasonable attorney's fees in instituting, prosecuting or
defending any action or proceeding instituted by reason of any default of the
Lessee, the sum or sums so paid by Lessor (including any costs incurred by
performance pursuant to the first sentence hereof), with all interest, costs and
expenses, shall be deemed to be additional rent and shall be due from the Lessee
to the Lessor on the next regular monthly rental payment date following the
incurring of such expenses, together with interest at the rate of ten (10%)
percent per annum from the date of any such payment.
30. If the Premises shall be partially damaged by fire or other insured cause
the damages shall be repaired by and at the expense of Lessor, to the extent of
available insurance proceeds, and the rent, until such repairs shall be made,
shall be reduced in the proportion which the floor area of said part of the
demised Premises bears to the floor area of the entire demised Premises. Lessor
shall not be liable for the reasonable delay which may arise by reason of
adjustment of insurance on the part
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<PAGE> 10
of Lessor or Lessee, and for reasonable delay related to such repairs or any
other cause beyond Lessor's control.
If the demised Premises are totally damaged or are rendered wholly untenantable
by fire or other cause, and if Lessor shall decide not to rebuild the same, or
if the building shall be so damaged that Lessor shall decide to demolish it,
then in any of such events, Lessor may, within ninety (90) days after such fire
or other cause, give Lessee written notice of such decision, and thereupon the
term of this Lease shall expire. Upon the expiration of said ninety-day (90)
period, Lessee shall thereupon vacate the demised Premises and surrender the
same to Lessor. Rent shall abate to the extent the Leased Premises are
untenantable.
31. In the event that the whole of the demised Premises shall be condemned or
taken in any manner for any public or quasi-public use, this Lease and the term
hereby granted shall forthwith cease and terminate as of the date of vesting of
title. In the event that only a part of the demised Premises shall be so
condemned or taken, then, effective as of the date of vesting of title, the rent
hereunder for such part shall be equitably abated in the same proportion that
the area of the part taken bears to the total floor area of the demised
Premises, and this Lease shall then continue as to such part not so taken;
provided that if the remaining portion of the Premises is reasonably
insufficient for Lessee's operation, Lessee shall have the right to terminate
the Lease.
In the event of any condemnation or taking of all or part of
the building, Lessor shall be entitled to receive the entire award in the
condemnation proceeding; provided, however, that the Lessee shall have the
right, at its sole cost and expense, to terminate this Lease if the remaining
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<PAGE> 11
portion of the Premises is reasonably insufficient for Lessee's operation, and
in any event, the rent shall be reduced in proportion in which the floor area of
said part of the demised Premises so condemned bears to the floor area of the
entire demised Premises, and to assert a separate claim in any condemnation
proceeding for its personal property and tenants' and Lessee's improvements.
32. It is understood that any equipment of the Lessee installed in the Premises
during the term of this Lease, shall be and remain the property of the Lessee,
and the Lessee shall have the right to remove the same upon the termination of
the Lease, provided that any such removal shall be without any damage or
destruction to the Premises, and Lessee shall correct and restore the Premises
so affected to their original condition.
33. Lessor agrees to spend up to $75,000 using contractors reasonably approved
by Lessee to replace sections of the roof requiring repair and will commence
construction on the roof replacement within the first four (4) months of the
commencement date of Lease. Lessor further agrees to repair the front walkway
(sidewalk) to the front door of the Premises and the caulking around the windows
to the Premises, the cost of which shall be paid by Lessee amortized over a five
(5) year period and added to the monthly rental described in paragraph 1 of this
Rider.
34. Lessor intends to market the Premises for sale and has advised Lessee, in
writing, of the terms on which Lessor intends to offer the Premises. Lessee has
declined to purchase the Premises and Lessor therefore has no further
obligations to present the Premises to Lessee for purchase. Lessee understands
that it is Lessor's intention to market the Premises for sale, and agrees to
grant
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<PAGE> 12
reasonable access to the Premises to the Lessor, its agents and prospective
purchasers during normal business hours and for reletting purposes during the
last year of the Lease.
35. Regarding Paragraphs 8, 24 and 29, Lessor will be responsible for making and
paying costs for improvement required by the Americans with Disabilities Act
(ADA).
36. Regarding Paragraph 31 and 32, if more than 25% of Premises are taken or
become untenantable, Lessee shall have the right to terminate the Lease.
37. Notices intended for Lessor shall be as addressed as follows:
Arapahoe Properties, L.L.C.
2340 Des Plaines Avenue, Suite 303
Des Plaines, Illinois 60018
Notices intended for Lessee shall be addressed as follows:
Packaging Products, Inc.
3212 West Randolph
Bellwood, Illinois 60104
with a copy to :
IPC, Inc.
c/o Ivex Packaging Corporation
100 Tri-State Drive
Suite 200
Lincolnshire, Illinois 60069
Attention: General Counsel
38. Upon execution of this Lease, the Industrial Building Lease, dated October
19, 1992, as amended, shall terminate and become null and void.
39. This Lease may be executed in counterparts, each of which shall be deemed an
original, and all of which, when taken together, shall constitute one Lease.
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<PAGE> 13
LESSEE: LESSOR:
PACKAGING PRODUCTS, INC. ARAPAHOE PROPERTIES, L.L.C.
By: By:
Page 13
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEET AT DECEMBER 31, 1997 AND THE CONSOLIDATED STATEMENT
OF OPERATIONS FOR THE TWELVE MONTHS ENDED DECEMBER 31, 1997 AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 5,989
<SECURITIES> 0
<RECEIVABLES> 67,496
<ALLOWANCES> 2,544
<INVENTORY> 59,706
<CURRENT-ASSETS> 136,406
<PP&E> 347,240
<DEPRECIATION> 149,207
<TOTAL-ASSETS> 427,723
<CURRENT-LIABILITIES> 94,665
<BONDS> 319,055
0
0
<COMMON> 204
<OTHER-SE> (12,373)
<TOTAL-LIABILITY-AND-EQUITY> 427,723
<SALES> 538,475
<TOTAL-REVENUES> 538,475
<CGS> 418,815
<TOTAL-COSTS> 418,815
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 41,889
<INCOME-PRETAX> (35,593)
<INCOME-TAX> (26,053)
<INCOME-CONTINUING> (9,540)
<DISCONTINUED> 0
<EXTRAORDINARY> (26,730)
<CHANGES> 0
<NET-INCOME> (36,270)
<EPS-PRIMARY> (2.85)
<EPS-DILUTED> (2.85)
</TABLE>
