SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
AMENDMENT TO APPLICATION OR REPORT
FILED PURSUANT TO SECTION 12, 13, or 15(d) of THE SECURITIES
EXCHANGE ACT OF 1934
STONE CONTAINER CORPORATION
(Exact name of registrant as specified in its charter)
Amendment No. 2
The undersigned registrant hereby amends the following items and
exhibits of its Application for Registration on Form 8-A, as amended,
as set forth in the pages attached hereto:
See Annex A for a list of all such items and exhibits amended.
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this amendment to be signed on its
behalf by the undersigned, thereunto duly authorized.
STONE CONTAINER CORPORATION
By: __/s/ Leslie T. Lederer_____________
Name: Leslie T. Lederer
Title: Vice President, Secretary and Counsel
Dated November 18, 1998
Annex A
Item 1. Description of Registrant's Securities to be Registered.
Reference is hereby made to the Form 8-A of Stone Container
Corporation (the "Company") filed with the Securities and Exchange
Commission (the "Commission") on February 6, 1992, as amended by
Amendment No. 1 thereto on Form 8 filed with the Commission on
February 13, 1992, and such Form 8-A and such Form 8 are hereby
incorporated by reference herein. Capitalized terms not defined
herein shall have the meanings as set forth in the Form 8-A,
as amended by the Form 8.
The Form 8-A, as amended by Form 8, registered pursuant to Section
12(b) of the Securities Exchange Act of 1934, as amended, the
Company's (i) 6 3/4% Convertible Subordinated Debentures due 2007 (the
"Convertible Debentures") issued under an Indenture (the "Indenture")
dated as of February 15, 1992 between the Company and The Bank of New
York, as trustee (the "Trustee"), (ii) $1.75 Series E Cumulative
Convertible Exchangeable Preferred Stock, par value $.01 per share
(the "Preferred Stock"), and (iii) 7% Convertible Subordinated
Exchange Debentures due 2007 (the "Exchange Debentures") dated as of
February 15, 1992 between the Company and the Trustee.
On November 18, 1998, JSC Acquisition Corporation ("Sub"), a Delaware
corporation and a wholly owned subsidiary of Jefferson Smurfit
Corporation, a Delaware Corporation ("JSC"), merged with and into the
Company, with the Company surviving as a wholly owned subsidiary of
JSC (the "Merger"). The Merger was consummated pursuant to an
Agreement and Plan of Merger dated as of May 10, 1998, among JSC, Sub,
and the Company, as amended by Amendment No. 1 thereto dated
October 2, 1998 (the "Merger Agreement"). In the Merger,
each outstanding share of common stock of the Company was converted
into .99 of a share of JSC common stock, par value $.01 per share
("SSCC Common Stock"), and JSC was renamed Smurfit-Stone Container
Corporation ("SSCC").
In connection with the Merger and pursuant to the terms of the
Indenture, JSC and the Company entered into a supplemental indenture
dated November 18, 1998 with the Trustee amending and supplementing
the Indenture (the "Supplemental Indenture"), providing that,
among other things, the Convertible Debentures, which were previously
convertible into the Company's common stock, are now convertible into
SSCC Common Stock. The Supplemental Indenture is attached hereto as
Exhibit 3 and is hereby incorporated by reference herein.
Also in connection with the Merger and pursuant to the terms of the
Certificate of Merger effecting the Merger, the Preferred Stock, which
was previously convertible into the Company's common stock, is now
convertible into SSCC Common Stock. The Certificate of Merger is
attached hereto as Exhibit 7 and is incorporated by reference herein.
In addition, prior to the Merger and as contemplated in the Merger
Agreement, the Company amended its certificate of incorporation (the
"Amendment") to provide the Preferred Stock with voting rights.
Pursuant to the Amendment, the holders of the Preferred Stock are
entitled to vote upon all matters upon which holders of the Company's
common stock have the right to vote and are entitled to one vote
thereon per share of Preferred Stock (except that in the case of the
election of directors (other than in the case the election of specified
Preferred Stock directors) holders of shares of the
Preferred Stock shall have the same cumulative voting rights as
holders of Stone Common Stock), with the holders of the Preferred
Stock and the Stone Common Stock voting together as one class on any
such matters, except as otherwise provided by law. The Amendment is
attached hereto as Exhibit 6 and is incorporated by reference herein.
The summary of the foregoing documents does not purport to be complete
and is qualified in its entirety by reference to the Exhibits attached
hereto.
Item 2. Exhibits
Item 2 of the Form 8-A is hereby amended to read in its entirety as
follows:
1. Indenture dated as of February 15, 1992 between the Company
and the Trustee relating to the Convertible Debentures (the
"Convertible Indenture"), filed as Exhibit 4(p) to the
Company's Registration Statement on Form S-3 (Registration
No. 33-45978), is hereby incorporated by reference.
2. Form of Convertible Debenture, included in Exhibit 4(p) to
the Company's Registration Statement on Form S-3
(Registration No. 45978), is hereby incorporated by
reference.
3. First Supplemental Indenture, dated November 18, 1998 among
JSC, the Company and the Trustee amending the Convertible
Indenture, is attached hereto.
4. Specimen certificate representing the Preferred Stock, filed
as Exhibit 4(g) to the Company's Registration Statement on
Form S-3 (Registration No. 33-45374), is hereby incorporated
by reference.
5. Restated Certificate of Incorporation of the Company, filed
as Exhibit 3(a) to the Company's Registration Statement on
Form S-1 (Registration No. 33-54769), is hereby incorporated
by reference.
6. Certificate of Amendment to the Company's Restated
Certificate of Incorporation, dated as of November 18, 1998,
is attached hereto.
7. Certificate of Merger, effecting the Merger and amending the
Company's Restated Certificate of Incorporation, as filed
with the Delaware Secretary of State on November 18, 1998,
is attached hereto.
8. Form of Indenture between the Company and the Trustee,
relating to the Exchange Debentures, filed as Exhibit 4(d)
to the Company's Registration Statement on Form S-3
(Registration No. 33-45374), is hereby incorporated by
reference.
9. Form of Exchange Debenture, included in Exhibit 4(d) to the
Company's Registration Statement on Form S-3 (Registration
No. 33-45374), is hereby incorporated by reference.
10. By-laws of the Company, as amended March 23, 1998, filed as
Exhibit 3(b) to the Company's Annual Report on Form 10-K for
the year ending December 31, 1997, are hereby incorporated
by reference.
11. Rights Agreement, dated as of July 25, 1988, between the
Company and The First National Bank of Chicago, filed as
Exhibit 1 to the Company's Form 8-A Registration Statement
dated July 27, 1988, is hereby incorporated by reference.
12. Amendment to Rights Agreement, dated as of July 23, 1990,
between the Company and The First National Bank of Chicago,
filed as Exhibit 1A to the Company's Form 8 dated August 2,
1990 amending the Company's Registration Statement on Form
8-A dated July 27, 1988, is hereby incorporated by
reference.
13. Amendment to Rights Agreement, dated as of May 16, 1996,
between the Company and First Chicago Trust Company of New
York, filed as Exhibit 1 to the Company's Form 8 dated
August 2, 1990 amending the Company's Registration Statement
on Form 8-A dated July 27, 1988, as amended, is hereby
incorporated by reference.
14. Amendment to Rights Agreement, dated as of May 10, 1998,
between the Company and First Chicago Trust Company of New
York, filed as Exhibit 1 to the Company's Form 8 dated May
13, 1998 amending the Company's Registration Statement on
Form 8-A dated July 27, 1988, as amended, is hereby
incorporated by reference.
15. Amended and Restated Credit Agreement ("Credit Agreement")
dated as of November 18, 1998 among the Company, the
financial institutions signatory thereto, and Bankers Trust
Company, as agent, is attached hereto.
16. Guaranty, dated October 7, 1983, between the Company and The
Continental Group, Inc., filed as Exhibit 4(h) to the
Company's Registration Statement on Form S-3 (Registration
No. 33-36218), is hereby incorporated by reference.
17. Amendment No. 1 to Guaranty, dated as of June 1, 1996, among
Continental Holdings, Inc., Continental Group, Inc. and the
Company, filed as Exhibit 4(r) to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1996, is
hereby incorporated by reference.
18. Indenture dated as of August 16, 1996 between Stone
Container Finance Company of Canada (the "Issuer"), the
Company, as guarantor, and The Bank of New York, as Trustee,
relating to the Issuer's 11 1/2 percent Senior Notes due 2006,
filed as Exhibit 4(u) to the Company's Annual Report on Form
10-K for the year ended December 31, 1996, is hereby
incorporated by reference.
19. Indenture dated as of July 24, 1996 between the Company and
The Bank of New York, as Trustee, relating to the Rating
Adjustable Senior Notes due 2016, filed as Exhibit 4.1 to
the Company's Registration Statement on Form S-4
(Registration No. 333-12155), is hereby incorporated by
reference.
20. First Supplemental Indenture dated July 24, 1996 between the
Company and The Bank of New York, as Trustee, relating to
the Rating Adjustable Senior Notes due 2016, filed as
Exhibit 4.2 to the Company's Registration Statement on Form
S-4 (Registration No. 333-12155), is hereby incorporated by
reference.
21. Indenture dated as of October 12, 1994 between the Company
and Norwest Bank Minnesota, N.A., as Trustee, relating to
the 10_ percent First Mortgage Notes due October 1, 2002,
filed as Exhibit 4(b) to the Company's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1994, is
hereby incorporated by reference.
22. Indenture dated as of October 12, 1994 between the Company
and The Bank of New York, as Trustee, relating to the 11 1/2
percent Senior Notes due October 1, 2004, filed as Exhibit
4(c) to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1994, is hereby incorporated by
reference.
23. Senior Subordinated Indenture, dated as of March 15, 1992,
between the Company and The Bank of New York, as Trustee,
filed as Exhibit 4(a) to the Company's Registration
Statement Form S-3 (Registration No. 33-46764), is hereby
incorporated by reference.
24. First Supplemental Indenture dated as of May 28, 1997
between the Company and The Bank of New York as Trustee,
relating to the Indenture dated as of March 15, 1992, filed
as Exhibit 4(i) (i) to the Company's Current Report on Form
8-K dated May 28, 1997, is hereby incorporated by reference.
25. Indenture, dated as of November 1, 1991, between the Company
and The Bank of New York, as Trustee, relating to the
Company's Senior Debt Securities, filed as Exhibit 4(u) to
the Company's Registration Statement on Form S-3
(Registration No. 33-45374), is hereby incorporated by
reference.
26. First Supplemental Indenture dated as of June 23, 1993,
between the Company and The Bank of New York, as Trustee,
relating to the Indenture, dated as of November 1, 1991,
between the Company and The Bank of New York, as Trustee,
filed as Exhibit 4(aa) to the Company's Registration
Statement on Form S-3 (Registration No. 33-66086), is hereby
incorporated by reference.
27. Second Supplemental Indenture dated as of February 1, 1994,
between the Company and The Bank of New York, as Trustee,
relating to the Indenture, dated as of November 1, 1991, as
amended, filed as Exhibit 4.2 to the Company's Current
Report on Form 8-K, dated January 24, 1994, is hereby
incorporated by reference.
Exhibit
Number Description
3 First Supplemental Indenture, dated November 18, 1998,
among JSC, the Company and the Trustee amending the
Convertible Indenture.
6 Certificate of Amendment to the Company's Restated
Certificate of Incorporation, dated as of
November 18, 1998.
7 Certificate of Merger, effecting the Merger and amending
the Company's Restated Certificate of Incorporation,
as filed with the Delaware Secretary of State on
November 18, 1998.
15 Amended and Restated Credit Agreement, dated as of
November 18, 1998 among the Company, the financial
institutions signatory thereto, and Bankers Trust Company,
as agent.
EXHIBIT 3
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE dated as of November 18, 1998
(this "First Supplemental Indenture") among Jefferson Smurfit
Corporation, a Delaware corporation ("JSC"), Stone Container
Corporation, a Delaware corporation (the "Company"), and The Bank of
New York, a New York banking corporation, as Trustee (the "Trustee").
WITNESSETH
WHEREAS, the Company and the Trustee have executed and delivered an
Indenture dated as of February 15, 1992 (the "Indenture"), pursuant to
which the Company has issued 6 3/4% Convertible Subordinated Debentures
due February 15, 2007 (the "Securities");
WHEREAS, on the date hereof, pursuant to an Agreement and Plan of
Merger dated as of May 10, 1998, as amended, among the Company, JSC
and JSC Acquisition Corporation, a Delaware corporation and a wholly
owned subsidiary of JSC ("Merger Sub"), (i) Merger Sub is being merged
with and into the Company, with the Company continuing as the
surviving corporation (the "Merger"), and (ii) each outstanding share
of common stock, par value $0.01 per share, of the Company ("Common
Stock") (other than shares of Common Stock owned by JSC or any wholly
owned subsidiary of JSC, or shares of Common Stock owned by the
Company as treasury stock) is being converted into 0.99 of a
share of common stock, par value $0.01 per share, of JSC ("JSC Common
Stock");
WHEREAS, the Company has delivered to the Trustee, pursuant to
Section 7.01 of the Indenture, an Officers' Certificate and an Opinion
of Counsel, each stating that the Merger and this First Supplemental
Indenture comply with Article 7 of the Indenture and that all
conditions precedent in the Indenture relating to the Merger have been
complied with;
WHEREAS, Section 4.12 of the Indenture provides, among
other things, that in the case of any merger of the Company with
another Person, the Company shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
outstanding shall have the right to convert such Security into the
kind and amount of shares of stock or other securities or property
receivable upon such merger by a Holder of the number of shares of
Common Stock into which such Security might have been converted
immediately prior to such merger;
WHEREAS, Section 11.01 of the Indenture permits the Company and the
Trustee, at any time and from time to time, without notice to or the
consent of any Holders of Securities, to enter into one or more
supplemental indentures for the purpose of making provisions with
respect to matters arising under the Indenture, provided that such
action does not adversely affect the interests of the Holders of
the Securities in any material respect; and
WHEREAS, JSC and the Company have requested that the Trustee execute
and deliver this First Supplemental Indenture pursuant to Section
11.01 of the Indenture, and all requirements necessary to make this
First Supplemental Indenture a valid instrument in accordance with its
terms have been performed and the execution and delivery of this First
Supplemental Indenture have been duly authorized in all respects by
each of JSC and the Company;
NOW, THEREFORE, JSC, the Company and the Trustee covenant and agree as
follows:
ARTICLE 1
AUTHORIZATION; DEFINITIONS
SECTION 1.01. First Supplemental Indenture. This First Supplemental
Indenture is supplemental to, and is entered into in accordance with
Sections 4.12 and 11.01 of, the Indenture, and except as modified,
amended and supplemented by this First Supplemental Indenture, the
provisions of the Indenture are in all respects ratified and confirmed
and shall remain in full force and effect.
SECTION 1.02. Definitions. Except as expressly provided in Section
2.01 of this First Supplemental Indenture below and unless the context
shall otherwise require, all terms which are defined in Section 1.01
of the Indenture shall have the same meanings, respectively, in this
First Supplemental Indenture as such terms are given in said Section
1.01 of the Indenture.
ARTICLE 2
AMENDMENTS TO THE INDENTURE
SECTION 2.01. Amendments to Section 1.01 of the Indenture. (a)
Section 1.01 of the Indenture is hereby amended by inserting the
following new definitions:
"First Supplemental Indenture" means the First Supplemental Indenture
dated as of November 18, 1998 among the Company, JSC and the Trustee
to the Indenture.
"JSC" means Jefferson Smurfit Corporation, a Delaware corporation.
"Successor Issuer" has the meaning specified in Section 4.14 of the
Indenture, as amended by the First Supplemental Indenture.
"Successor Securities" has the meaning specified in Section 4.14 of
the Indenture, as amended by the First Supplemental Indenture.
(b) The defined terms "Board of Directors," "Common Stock,"
"Officer," "Officers' Certificate," "Opinion of Counsel," "Senior
Indebtedness" and "Subsidiary" are hereby amended by adding the words
"or any Successor Issuer, as applicable" after the words "the Company"
in each place they appear in such defined terms.
SECTION 2.02. Amendments to Article 11 of the Indenture. (a) Section
11.01 of the Indenture is hereby amended by adding the words "any
Successor Issuer," after the words "the Company."
(b)Section 11.02 of the Indenture is hereby amended by adding the words
", any Successor Issuer" after the words "the Company" in the first
sentence of such Section.
(c)Section 11.02 of the Indenture is hereby further amended by
adding the words "or any Successor Issuer" after the words "the
Company" in the second sentence of such Section.
SECTION 2.03. Amendments to Article 4. (a) Article 4 of the
Indenture is hereby amended by adding the following new section after
Section 4.13:
Section 4.14. Additional Conversion Adjustments.
From and after the time the Holder of any Security then
outstanding that is convertible into Common Stock shall have the
right in accordance with Section 4.12 of this Indenture to convert
such Security into securities (the "Successor Securities") of any
Person other than the Company (a "Successor Issuer"), all
references in this Article 4 to the words "the Company" shall for all
purposes of this Indenture and such Security be deemed to be
references to the Successor Issuer and all references in this Article
4 to the words "Common Stock" or "shares of Common Stock"
shall for all purposes of this Indenture and such Security be deemed
to be references to the Successor Securities; provided, however, the
foregoing shall not apply (i) to the reference to "the Company" in
the parenthetical contained in the first sentence of Section 4.01 of
this Indenture, (ii) to the reference to "the Company" in the last
sentence of the third paragraph of Section 4.02 of this Indenture or
(iii) to the reference to "the Company" in the ninth line of the first
paragraph of Section 4.12.
(b)The first paragraph of Section 4.12 of the Indenture is
hereby amended by adding the words "and JSC" after the words "or such
successor or purchasing corporation, as the case may be" in the ninth
line of such Section.
ARTICLE 3
CONVERSION
SECTION 3.01. Conversion of Securities. In accordance with the
provisions of Section 4.12 of the Indenture, following the Merger, a
Holder of a Security shall have the right to convert such Security
into shares of JSC Common Stock at a price of $34.28 per share (the
"Adjusted Conversion Price").
SECTION 3.02. Certain Adjustments. In accordance with the provisions
of Section 4.12 of the Indenture, following the Merger, upon the
occurrence of an event with respect to JSC which would have required
an adjustment to the Conversion Price pursuant to Article 4 of the
Indenture if such event had occurred with respect to the Company prior
to the Merger, the Adjusted Conversion Price shall be adjusted in a
manner as nearly equivalent as may be practicable to the adjustment to
the Conversion Price which would have been required pursuant to
Article 4 of the Indenture if such event had occurred with respect to
the Company prior to the Merger.
ARTICLE 4
MISCELLANEOUS
SECTION 4.01. Confirmation of Indenture. The Indenture, as
supplemented and amended by this First Supplemental Indenture, is in all
respects ratified and confirmed and the Indenture, this First Supplemental
Indenture and all indentures supplemental thereto shall be read, taken
and construed as one and the same instrument.
SECTION 4.02. Concerning the Trustee. The Trustee accepts the
Indenture, as supplemented by this First Supplemental Indenture, and
agrees to perform the same upon the terms and conditions set forth
therein as so supplemented. The Trustee shall not be responsible in
any manner whatsoever for or in respect of the validity or sufficiency
of the First Supplemental Indenture or the due execution hereof by the
Company or JSC or for or in respect of the recitals contained herein,
all of which are made by the Company and JSC solely.
SECTION 4.03. Governing Law. This First Supplemental Indenture, the
Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York without regard to
the principles of conflicts of laws.
SECTION 4.04. Separability. In case any one or more of the
provisions contained in this First Supplemental Indenture shall for
any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not
affect any other provisions of this First Supplemental Indenture, but
this First Supplemental Indenture shall be construed as if such
invalid, illegal or unenforceable provision had never been contained
herein.
SECTION 4.05. Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and
the same instrument.
SECTION 4.06. Effectiveness. This First Supplemental Indenture shall
become effective upon the effectiveness of the Merger.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year
first above written.
JEFFERSON SMURFIT CORPORATION
By:_/s/ Patrick J. Moore________________
Name: Patrick J. Moore
Title: Vice President and Chief Financial
Officer
STONE CONTAINER CORPORATION
By:_/s/ Roger W. Stone________________
Name: Roger W. Stone
Title: Chairman of the Board, President
and Chief Executive Officer
THE BANK OF NEW YORK, AS TRUSTEE
By:_/s/ Mary LaGumina_______________
Name: Mary LaGumina
Title:
EXHIBIT 6
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
STONE CONTAINER CORPORATION
Stone Container Corporation, a Delaware corporation
(the "Corporation"), organized and existing under and
by virtue of the General Corporation Law of the State
of Delaware DOES HEREBY CERTIFY:
1. That Section 4(a) of Subpart I.B. of ARTICLE
FOURTH of the Restated Certificate of Incorporation of
the Corporation is hereby amended so as to read in its
entirety as follows:
In addition to the voting rights provided in Sections
4(b), 7(b) and 9 and the voting rights required by
law, the holders of shares of the Series E Preferred
Stock shall be entitled to vote upon all matters upon
which holders of the Common Stock have the right to
vote and be entitled to one vote thereon per share of
Series E Preferred Stock (except that in the case of
the elections of directors (other than the election of
directors provided for in Section 4(b)), holders of
shares of the Series E Preferred Stock shall have the
same cumulative voting rights as holders of Common
Stock in accordance with Subpart II.C.), with the
holders of the Series E Preferred Stock and the Common
Stock voting together as one class on any such
matters, except as otherwise provided by law.
2. That the last sentence of Section 4(b) of Subpart
I.B. of ARTICLE FOURTH of the Restated Certificate of
Incorporation of the Corporation is hereby amended so
as to read in its entirety as follows:
Notwithstanding any voting rights that the holders of
the shares of the Series E Preferred Stock shall have
under this Section 4(b), holders of shares of the
Series E Preferred Stock shall not be divested of any
other voting rights rovided to such stockholders
pursuant to Sections 4(a), 7(b) and 9 or by law.
3. That, the aforesaid amendments were duly adopted
in accordance with Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, Stone Container Corporation has caused this
Certificate to be signed this 18th day of November, 1998.
STONE CONTAINER CORPORATION
By: _/s/ Leslie T. Lederer
Name: Leslie T. Lederer
Title: Vice President, Secretary and Counsel
EXHIBIT 7
CERTIFICATE OF MERGER
OF
JSC ACQUISITION CORPORATION
INTO
STONE CONTAINER CORPORATION
Pursuant to Section 251 of the
Delaware General Corporation Law
Stone Container Corporation, a Delaware corporation, which desires to
merge with JSC Acquisition Corporation, a Delaware corporation, hereby
certifies as follows:
FIRST: The name and state of incorporation of each of the constituent
corporations to the merger are as follows:
Name State of Incorporation
JSC Acquisition Corporation Delaware
Stone Container Corporation Delaware
SECOND: The Agreement and Plan of Merger (the "Merger Agreement")
dated as of May 10, 1998, as amended, among Jefferson Smurfit Corporation and
each of the constituent corporations to the merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent corporations in
accordance with the requirements of Section 251 of the Delaware General
Corporation Law.
THIRD: Stone Container Corporation is the surviving corporation of the
merger.
FOURTH: The merger shall be effective as of the time of the filing of this
Certificate.
FIFTH: The Restated Certificate of Incorporation, as amended, of Stone
Container Corporation shall be the certificate of incorporation of the
surviving corporation (the "Certificate of Incorporation"), except that
(i) Section 6 of Subpart I.B. of ARTICLE FOURTH of the Certificate of
Incorporation shall be amended to read in its entirety as set forth in
Exhibit A hereto and (ii) Section 7(b) of Subpart I.B. of ARTICLE FOURTH
of the Certificate of Incorporation shall be amended by adding the following
sentence as a new, penultimate sentence of Section 7(b):
Notwithstanding anything to the contrary in this Section 7, prior to giving
notice of intention to exchange, the Corporation shall amend or supplement
the Series E Indenture prior to the Series E Exchange Date in order to
conform the relevant terms thereof to read substantially similar to the
provisions of Section 6.
.
SIXTH: The executed Merger Agreement is on file at the principal place of
business of the surviving corporation, 150 North Michigan Avenue, Chicago,
Illinois 60621.
SEVENTH: A copy of the Merger Agreement will be furnished by the
surviving corporation, on request and without cost, to any stockholder of any
constituent corporation.
IN WITNESS WHEREOF, the undersigned has caused this Certificate of
Merger to be duly executed by its authorized officers.
Dated: November 18, 1998
STONE CONTAINER CORPORATION
By: _/s/ Leslie T. Lederer_________
Name: Leslie T. Lederer
Title: Vice President, Secretary and Counsel
EXHIBIT A
Section 6. Conversion.
(a) Holders of shares of the Series E Preferred Stock shall have the right,
exercisable at any time and from time to time, except in the case of shares of
the Series E Preferred Stock called for redemption or to be exchanged for
Series E Debentures (as described in Section 7 hereof), to convert all or any
such shares of the Series E Preferred Stock into shares of common stock, par
value $.01 per share ("SSCC Common Stock"), of Smurfit-Stone Container
Corporation (formerly known as Jefferson Smurfit Corporation), a Delaware
Corporation ("SSCC") (calculated as to each conversion to the nearest 1/100th
of a share) at the conversion price of $34.28 per share of SSCC Common Stock
(equivalent to a conversion rate of .729 shares of SSCC Common Stock for each
share of the Series E Preferred Stock so converted), subject to adjustment as
described below. In the case of shares of the Series E Preferred Stock called
for redemption or to be exchanged for Series E Debentures (as described in
Section 7 hereof), conversion rights will expire at the close of business on
the last business day preceding the Series E Redemption Date or the last
business day preceding the Series E Exchange Date (as hereinafter defined), as
the case may be. Notice of an optional redemption or exchange must be mailed
not less than 30 days and not more than 60 days prior to the Series E Redemption
Date or Series E Exchange Date, as the case may be. Upon conversion or
exchange, no adjustment or payment will be made for dividends or interest, but
if any holder surrenders a share of the Series E Preferred Stock for conversion
after the close of business on the record date for the payment of a dividend
and prior to the opening of business on the next dividend payment date, then,
notwithstanding such conversion, the dividend payable on such dividend payment
date will be paid to the registered holder of such share on such record date.
In such event, such share, when surrendered for conversion, must be accompanied
by payment of an amount equal to the dividend payable on such dividend payment
date on the share so converted.
(b) Any holder of a share or shares of the Series E Preferred Stock
electing to convert such share or shares thereof shall deliver the certificate
or certificates therefor to the principal office of any transfer agent for the
Common Stock, with the form of notice of election to convert as the Corporation
shall prescribe fully completed and duly executed and (if so required by the
Corporation or any conversion agent) accompanied by instruments of transfer in
form satisfactory to the Corporation and to any conversion agent, duly executed
by the registered holder or his duly authorized attorney, and transfer taxes,
stamps or funds therefor or evidence of payment thereof if required pursuant to
Section 6(a) or 6(d) hereof. The conversion right with respect to any such
shares shall be deemed to have been exercised at the date upon which the
certificates therefor accompanied by such duly executed notice of election and
instruments of transfer and such taxes, stamps, funds, or evidence of payment
shall have been so delivered, and the person or persons entitled to receive the
shares of SSCC Common Stock issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such shares of SSCC Common
Stock upon said date.
(c)No fractional shares of SSCC Common Stock or scrip representing fractional
shares shall be issued upon conversion of shares of the Series E Preferred
Stock. If more than one share of the Series E Preferred Stock shall be
surrendered for conversion at one time by the same holder, the number of
full shares of SSCC Common Stock which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate number of shares of the
Series E Preferred Stock so surrendered. Instead of any fractional shares of
SSCC Common Stock which would otherwise be issuable upon conversion of any
shares of the Series E Preferred Stock, the Corporation shall pay a cash
adjustment in respect of such fraction in an amount equal to the same fraction
of the closing price for SSCC Common Stock on the last business day preceding
the date of conversion. The closing price for such day shall be the last
reported sales price regular way or, in case no such reported sale takes place
on such date, the average of the reported closing bid and asked prices regular
way, in either case on the New York Stock Exchange, or if SSCC Common Stock is
not listed or admitted to trading on such Exchange, on the principal national
securities exchange on which SSCC Common Stock is listed or admitted to trading
or, if not listed or admitted to trading on any national securities exchange,
the closing sale price of SSCC Common Stock or in case no reported sale takes
place, the average of the closing bid and asked prices, on NASDAQ or any
comparable system. If SSCC Common Stock is not quoted on NASDAQ or any
comparable system, the Board of Directors of the Corporation shall in good
faith determine the current market price on the basis of such quotation as it
considers appropriate.
(d) If a holder converts a share or shares of the Series E Preferred
Stock, the Corporation shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of SSCC Common Stock upon the conversion. The
holder, however, shall pay to the Corporation the amount of any tax which is
due (or shall establish to the satisfaction of the Corporation payment thereof)
if the shares are to be issued in a name other than the name of such holder and
shall pay to the Corporation any amount required by the last sentence of
Section 6(a) hereof.
(e) The certificate of incorporation of SSCC, as amended, requires
SSCC to make available to the Corporation and to reserve and at all times have
reserved out of its authorized but unissued shares of SSCC Common Stock
enough shares of SSCC Common Stock to permit the conversion of the then
outstanding shares of the Series E Preferred Stock and to take all action
necessary so that all shares of SSCC Common Stock which may be issued upon
conversion of shares of the Series E Preferred Stock shall be validly issued,
fully paid and nonassessable. In order that the Corporation may deliver shares
of SSCC Common Stock upon conversion of shares of the Series E Preferred Stock,
the Corporation will endeavor to comply with all applicable Federal and State
securities laws and will endeavor to cause SSCC to list such shares of SSCC
Common Stock to be issued upon conversion on each securities exchange on
which SSCC Common Stock is listed.
(f) The conversion rate in effect at any time shall be subject to
adjustment from time to time as follows:
(i) In case SSCC shall (1) pay a dividend in shares
of SSCC Common Stock to holders of SSCC Common Stock, (2)
make a distribution in shares of SSCC Common Stock to holders of
SSCC Common Stock, (3) subdivide the outstanding shares of
SSCC Common Stock into a greater number of shares of SSCC
Common Stock or (4) combine the outstanding shares of SSCC
Common Stock into a smaller number of shares of SSCC Common
Stock, the conversion rate immediately prior to such action shall be
adjusted so that the holder of any shares of the Series E Preferred
Stock thereafter surrendered for conversion shall be entitled to
receive the number of shares of SSCC Common Stock which he
would have owned immediately following such action had such
shares of the Series E Preferred Stock been converted immediately
prior thereto. An adjustment made pursuant to this Section 6(f)(i)
shall become effective immediately after the record date in the case
of a dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision or combination.
(ii) In case SSCC shall issue rights or warrants to
substantially all holders of SSCC Common Stock entitling them (for
a period commencing no earlier than the record date for the
determination of holders of SSCC Common Stock entitled to
receive such rights or warrants and expiring not more than 45 days
after such record date) to subscribe for or purchase shares of SSCC
Common Stock (or securities convertible into shares of SSCC
Common Stock) at a price per share less than the current market
price (as determined pursuant to Section 6(f)(iv)) of SSCC
Common Stock on such record date, the number of shares of SSCC
Common Stock into which each share of the Series E Preferred
Stock shall be convertible shall be adjusted so that the same shall be
equal to the number determined by multiplying the number of
shares of SSCC Common Stock into which such share of the Series
E Preferred Stock was convertible immediately prior to such record
date by a fraction of which the numerator shall be the number of
shares of SSCC Common Stock outstanding on such record date
plus the number of additional shares of SSCC Common Stock
offered (or into which the convertible securities so offered are
convertible), and of which the denominator shall be the number of
shares of SSCC Common Stock outstanding on such record date,
plus the number of shares of SSCC Common Stock which the
aggregate offering price of the offered shares of SSCC Common
Stock (or the aggregate conversion price of the convertible
securities so offered) would purchase at such current market price.
Such adjustments shall become effective immediately after such
record date.
(iii) In case SSCC shall distribute to all holders of SSCC
Common Stock shares of any class of capital stock other than
SSCC Common Stock, evidences of indebtedness or other assets
(other than cash dividends out of current or retained earnings), or
shall distribute to substantially all holders of SSCC Common Stock
rights or warrants to subscribe for securities (other than those
referred to in Section 6(f)(ii)), then in each such case the number of
shares of SSCC Common Stock into which each share of the Series
E Preferred Stock shall be convertible shall be adjusted so that the
same shall equal the number determined by multiplying the number
of shares of SSCC Common Stock into which such share of the
Series E Preferred Stock was convertible immediately prior to the
date of such distribution by a fraction of which the numerator shall
be the current market price (determined as provided in Section
6(f)(iv)) of SSCC Common Stock on the record date mentioned
below, and of which the denominator shall be such current market
price of SSCC Common Stock, less the then fair market value (as
determined by the Board of Directors of the Corporation, whose
determination shall be conclusive evidence of such fair market
value) of the portion of the assets so distributed or of such
subscription rights or warrants applicable to one share of SSCC
Common Stock. Such adjustment shall become effective
immediately after the record date for the determination of the
holders of SSCC Common Stock entitled to receive such
distribution. Notwithstanding the foregoing, in the event that
SSCC shall distribute rights or warrants (other than those referred
to in Section 6(f)(ii)) ("Rights") pro rata to holders of SSCC
Common Stock, the Corporation may, in lieu of making any
adjustment pursuant to this Section 6(f)(iii), have SSCC make
proper provision so that each holder of a share of Series E
Preferred Stock who converts such share after the record date for
such distribution and prior to the expiration or redemption of the
Rights shall be entitled to receive upon such conversion, in addition
to the shares of SSCC Common Stock issuable upon such
conversion (the "Conversion Shares"), a number of Rights to be
determined as follows: (i) if such conversion occurs on or prior to
the date for the distribution to the holders of Rights of separate
certificates evidencing such Rights (the "Distribution Date"), the
same number of Rights to which a holder of a number of shares of
SSCC Common Stock equal to the number of Conversion Shares is
entitled at the time of such conversion in accordance with the terms
and provisions of and applicable to the Rights; and (ii) if such
conversion occurs after the Distribution Date, the same number of
Rights to which a holder of the number of shares of SSCC
Common Stock into which a share of the Series E Preferred Stock
so converted was convertible immediately prior to the Distribution
Date would have been entitled on the Distribution Date in
accordance with the terms and provisions of and applicable to the
Rights.
(iv) The current market price per share of SSCC
Common Stock on any date shall be deemed to be the average of
the daily closing prices for thirty consecutive trading days
commencing forty-five trading days before the day in question. The
closing price for each day shall be the last reported sales price
regular way or, in case no such reported sale takes place on such
date, the average of the reported closing bid and asked prices
regular way, in either case on the New York Stock Exchange, or if
SSCC Common Stock is not listed or admitted to trading on such
Exchange, on the principal national securities exchange on which
SSCC Common Stock is listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange,
the closing sale price of SSCC Common Stock, or in case no
reported sale takes place, the average of the closing bid and asked
prices, on NASDAQ or any comparable system, or if SSCC
Common Stock is not quoted on NASDAQ or any comparable
system, the closing sale price or, in case no reported sale takes
place, the average of the closing bid and asked prices, as furnished
by any two members of the National Association of Securities
Dealers, Inc. selected from time to time by the Corporation for that
purpose.
(v) In any case in which this Section 6 shall require that
an adjustment be made immediately following a record date, the
Corporation may elect to defer (but only until five business days
following the mailing of the notice described in Section 6(j))
delivering to the holder of any share of the Series E Preferred Stock
converted after such record date the shares of SSCC Common
Stock and other capital stock of SSCC deliverable upon such
conversion over and above the shares of SSCC Common Stock and
other capital stock of SSCC issuable upon such conversion only on
the basis of the conversion rate prior to adjustment; and, in lieu of
the shares the delivery of which is so deferred, the Corporation
shall request that SSCC issue or cause its transfer agents to issue
due bills or other appropriate evidence of the right to receive such
shares.
(g) No adjustment in the conversion rate shall be required until
cumulative adjustments result in a concomitant change of 1% or more of the
conversion price as existed prior to the last adjustment of the conversion
rate; provided, however, that any adjustments which by reason of this
Section 6(g) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this
Section 6 shall be made to the nearest cent or to the nearest one-hundredth
of a share, as the case may be. No adjustment to the conversion rate shall
be made for cash dividends.
(h)In the event that, as a result of an adjustment made pursuant
to Section 6(f), the holder of any share of the Series E Preferred Stock
thereafter surrendered for conversion shall become entitled to receive any
shares of capital stock of SSCC other than shares of SSCC Common Stock,
thereafter the number of such other shares so receivable upon conversion of any
shares of the Series E Preferred Stock shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to SSCC Common Stock contained in this Section 6.
(i) The Corporation may make such increases in the conversion
rate, in addition to those required by Sections 6(f)(i), (ii) and (iii), as it
considers to be advisable in order that any event treated for Federal income
tax purposes as a dividend of stock or stock rights shall not be taxable to
the recipients thereof.
(j) Whenever the conversion rate is adjusted, the Corporation
shall promptly mail to all holders of record of shares of the Series E
Preferred Stock a notice of the adjustment.
(k) In the event that:
(1) SSCC takes any action which would require an
adjustment in the conversion rate,
(2) SSCC consolidates or merges with, or transfers all
or substantially all of its assets to, another
corporation and stockholders of SSCC must
approve the transaction, or
(3) there is a dissolution or liquidation of SSCC,
a holder of shares of the Series E Preferred Stock may wish to convert some or
all of such shares into shares of SSCC Common Stock prior to the record date
for, or the effective date of, the transaction so that he may receive the
rights, warrants, securities or assets which a holder of shares of SSCC Common
Stock on that date may receive. Therefore, the Corporation shall mail to
holders of shares of the Series E Preferred Stock a notice stating the proposed
record or effective date, as the case may be. The Corporation shall mail the
notice at least 10 days before such date; however, failure to mail such notice
or any defect therein shall not affect the validity of any transaction referred
to in clause (1), (2) or (3) of this Section 6(k).
(l) If any of the following shall occur, namely: (i) any
reclassification or change of outstanding shares of SSCC Common Stock issuable
upon conversion of shares of the Series E Preferred Stock (other than a change
in par value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination), (ii) any consolidation
or merger to which SSCC is a party other than a merger in which SSCC is the
continuing corporation and which does not result in any reclassification of, or
change (other than a change in name, or par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination) in, outstanding shares of SSCC Common Stock or (iii) any sale or
conveyance of all or substantially all of the property or business of SSCC as
an entirety, then SSCC or such successor or purchasing corporation, as the
case may be, shall as a condition precedent to such reclassification, change,
consolidation, merger, sale or conveyance, provide in its certificate of
incorporation or other charter document that each share of the Series E
Preferred Stock shall be convertible into the kind and amount of shares of
capital stock and other securities and property (including cash) receivable
upon such reclassification, change, consolidation, merger, sale or conveyance
by a holder of the number of shares of SSCC Common Stock deliverable upon
conversion of such share of the Series E Preferred Stock immediately prior
to such reclassification, change, consolidation, merger, sale or conveyance.
Such certificate of incorporation or other charter document shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 6. The foregoing,
however, shall not in any way affect the right a holder of a share of the
Series E Preferred Stock may otherwise have, pursuant to clause (ii) of the
last sentence of Section 6(f)(iii), to receive Rights upon conversion of a
share of the Series E Preferred Stock. If, in the case of any such
consolidation, merger, sale or conveyance, the stock or other securities and
property (including cash) receivable thereupon by a holder of SSCC Common Stock
includes shares of capital stock or other securities and property of a
corporation other than the successor or purchasing corporation, as the case
may be, in such consolidation, merger, sale or conveyance, then the certificate
of incorporation or other charter document of such other corporation shall
contain such additional provisions to protect the interests of the holders of
shares of the Series E Preferred Stock as the Board of Directors of the
Corporation shall reasonably consider necessary by reason of the foregoing.
The provision of this Section 6(l) shall similarly apply to successive
consolidations, mergers, sales or conveyances.
EXHIBIT 15
STONE CONTAINER CORPORATION
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 18, 1998
with
THE FINANCIAL INSTITUTIONS SIGNATORY HERETO,
BANKERS TRUST COMPANY,
as Agent,
and
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION,
THE BANK OF NEW YORK,
THE BANK OF NOVA SCOTIA,
CREDIT AGRICOLE INDOSUEZ,
THE CHASE MANHATTAN BANK,
DRESDNER BANK AG-NEW YORK AND GRAND CAYMAN BRANCHES,
THE FIRST NATIONAL BANK OF CHICAGO,
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
NATIONSBANK, N.A.,
THE SUMITOMO BANK, LTD., CHICAGO BRANCH and
TORONTO DOMINION (TEXAS), INC.,
as Co-Agents
BT ALEX. BROWN INCORPORATED,
as Joint Book Manager and Lead Arranger
and
CHASE SECURITIES INC.,
as Joint Book Manager and Lead Arranger
TABLE OF CONTENTS
Page
ARTICLE IDEFINITIONS AND ACCOUNTING TERMS 3
Section 1.1 Definitional Appendix 3
Section 1.2 Accounting Terms; Financial Statements 3
ARTICLE II
LOAN PROVISIONS 4
Section 2.1 Loan Commitments 4
(a) Term Loan 4
(b) Revolving Loans 4
(c) Additional Term Loan 5
(d) Supplemental Revolving Loans 5
(e) D Tranche Term Loan 5
(f) E Tranche Term Loan 5
Section 2.2 Obligations; Notes 6
(a) Term Loan Obligations 6
(b) Revolving Loan Obligations 6
(c) Swing Line Loan Obligations 7
(d) Additional Term Loan Obligations 8
(e) Supplemental Revolving Loan Obligations 9
(f) D Tranche Term Loan Obligations 9
(g) E Tranche Term Loan Obligations 10
Section 2.3 Borrowing Options 11
Section 2.4 Minimum Amount of Each Borrowing 12
Section 2.5 Notice of Borrowing 12
Section 2.6 Conversion or Continuation 12
Section 2.7 Disbursement of Funds 13
Section 2.8 Interest 14
(a) Prime Rate Revolving Loans 14
(b) Eurodollar Rate Revolving Loans 14
(c) Prime Rate Term Loans 15
(d) Eurodollar Rate Term Loans 15
(e) Swing Line Loans 15
(f) Prime Rate Additional Term Loans 15
(g) Eurodollar Rate Additional Term Loans 15
(h) Prime Rate Supplemental Revolving Loans 15
(i) Eurodollar Rate Supplemental Revolving Loans 16
(j) Prime Rate D Tranche Term Loans 16
(k) Eurodollar Rate D Tranche Term Loans 16
(l) Prime Rate E Tranche Term Loans 16
(m) Eurodollar Rate E Tranche Term Loans 16
(n) Default Rate Interest 16
(o) Accrual and Payment of Interest 17
(p) Notification of Rate 17
(q) Maximum Interest 17
(r) Reference Banks 17
Section 2.9 Interest Rate Adjustments 17
Section 2.10 Interest Periods 17
Section 2.11 Swing Line Loans 18
(a) Swing Line Commitment 18
(b) Procedure for Swing Line Borrowing 18
(c) Refunding of Swing Line Loans 18
(d) Participation in Swing Line Loans 19
(e) Obligations Unconditional 19
Section 2.12 Letters of Credit 20
(a) Issuance by Facing Agent 20
(b) Participation of Revolving Lenders 21
(c) Requests for Issuance 21
(d) Reimbursement of Drawings 21
(e) Failure to Reimburse 22
(f) Letter of Credit Fees 22
(g) Reimbursement Obligation Unconditional 23
(h) Increased Costs 24
(i) Indemnification 25
(j) Letter of Credit Beneficiaries 25
(k) Facing Agent 25
(l) No Indemnification for Certain Acts 26
Section 2.13 Increased Costs, Illegality, Etc. 26
Section 2.14 Assignment of Commitments Under Certain Circumstances 28
Section 2.15 Change of Lending Office 29
Section 2.16 Funding Losses 30
Section 2.17 Pro Rata Borrowings 30
ARTICLE IIITERMINATION OF COMMITMENTS, PREPAYMENTS AND FEES 31
Section 3.1 Mandatory Revolving Loan, Supplemental Revolving
Loan and Swing Line Loan Prepayments and Commitment Reductions 31
Section 3.2 Voluntary Prepayments 31
Section 3.3 Voluntary Commitment Reductions 33
Section 3.4 Mandatory Prepayments 34
(a) Prepayments From Excess Cash Flow 34
(b) Prepayments From Incurrence of Indebtedness 35
(c) Prepayments From Asset Sales 35
(d) Prepayment From Abitibi Sale/Monetization 37
(e) Intentionally Omitted 37
(f) Prepayment from German Financing 37
Section 3.5 Other Provisions With Respect to the Loans 37
Section 3.6 Order of Prepayment and Payment 38
Section 3.7 Commitment Fees 41
Section 3.8 Amendment Fee 41
Section 3.9 Intentionally Omitted. 41
Section 3.10 Agent's Administrative Fee 42
Section 3.11 Payments 42
ARTICLE IVREPRESENTATIONS AND WARRANTIES 44
Section 4.1 Organization; Powers 44
Section 4.2 Authorization 44
Section 4.3 Enforceability 45
Section 4.4 Governmental Approvals 45
Section 4.5 Financial Statements 45
Section 4.6 No Material Adverse Change 45
Section 4.7 Title Properties; Possession Under Leases 46
Section 4.8 Subsidiaries 46
Section 4.9 Litigation; Compliance with Laws 46
Section 4.10 Agreements 46
Section 4.11 Federal Reserve Regulation 47
Section 4.12 Investment Company Act;
Public Utility Holding Company Act 47
Section 4.13 Use of Proceeds 47
Section 4.14 Tax Returns 47
Section 4.15 No Material Misstatements 47
Section 4.16 Employee Benefit Plans 47
Section 4.17 Environmental and Safety Matters 48
Section 4.18 Solvency 49
Section 4.19 Security Documents 50
Section 4.20 Labor Matters 50
Section 4.21 Location of Real Property 50
Section 4.22 Patents, Trademarks, etc 51
Section 4.23 Fiscal Quarters and Year 51
Section 4.24 Survival of Warranties; Covenant Regarding Disclosure 51
Section 4.25 Y2K Problem 52
ARTICLE V
COVENANTS 52
Section 5.1 Affirmative Covenants of the Borrower 52
5.1.1 Financial Data 52
5.1.2 Discharge of Taxes, etc. 56
5.1.3 Corporate Existence; Business 56
5.1.4 Compliance With Laws 56
5.1.5 Performance of Basic Agreements 56
5.1.6 Inspection of Books and Properties 56
5.1.7 Maintenance of Books and Records 57
5.1.8 ERISA 57
5.1.9 Insurance 58
5.1.10 Maintenance of Properties 58
5.1.11 Use of Proceeds 59
5.1.12 [Intentionally Omitted] 59
5.1.13 Redemption of Senior Subordinated Notes
and Stone Savannah Stock 60
5.1.14 Environmental Notification 60
5.1.15 Environmental Compliance 60
5.1.16 Additional Subsidiary Guarantees 61
5.1.17 Delayed Collateral. 61
5.1.18 Merger of Stone Southwest. 62
5.1.19 Additional Collateral 62
5.1.20 Stone Snowflake Sale Proceeds 63
5.1.21 Y2K Problem 63
5.1.22 Maintenance of Corporate Separateness 63
Section 5.2 Negative Covenants of the Borrower 64
5.2.1 Liens 64
5.2.2 Indebtedness for Money Borrowed 64
5.2.3 Guarantees 71
5.2.4 Affiliate Transactions 72
5.2.5 Dividends 73
5.2.6 Negative Debt Covenants 74
5.2.7 Investments 75
5.2.8 Mergers 78
5.2.9 Purchase of Stock or Assets 79
5.2.10 Prepayment of Indebtedness; Certain Amendments 81
5.2.11 Capital Expenditures 85
5.2.12 Sale of Assets 85
5.2.13 Sale of Accounts Receivable 87
5.2.14 Subsidiaries 88
5.2.15 Lease Payments 88
5.2.16 Accounts Receivable Financing Program 88
5.2.17 Stone-Canada 88
Section 5.3 Financial Covenants of the Borrower 89
5.3.1 Interest Coverage Ratio 89
5.3.2 Consolidated EBITDA 90
ARTICLE VI
CONDITIONS OF CREDIT 90
Section 6.1 Conditions Precedent to the Borrowing of Initial Loans 90
Section 6.2 Conditions Precedent to all Credit Events 93
(a) Representations and Warranties 93
(b) No Default 94
(c) Notice of Borrowing; Letter of Credit Request 94
(d) Other Information 94
Section 6.3 Conditions Precedent to Effectiveness of Agreement 94
ARTICLE VII
EVENTS OF DEFAULT 97
Section 7.1 Events of Default 97
(a) Payments 97
(b) Representations and Warranties 97
(c) Certain Covenants 97
(d) Other Covenants 97
(e) Bankruptcy 97
(f) Involuntary Proceedings 98
(g) Indebtedness for Money Borrowed 98
(h) Judgments 98
(i) Basic Agreements 98
(j) ERISA 99
(k) Other ERISA 99
(l) Cross-Defaults 99
(m) Change of Control 99
Section 7.2 Remedies 99
ARTICLE VIII
THE AGENT 101
Section 8.1 Appointment 101
Section 8.2 Nature of Duties 101
Section 8.3 Rights, Exculpation, Etc. 101
Section 8.4 Employment of Agents and Counsel 102
Section 8.5 Reliance 102
Section 8.6 Indemnification 102
Section 8.7 Notice of Default 103
Section 8.8 The Agent 103
Section 8.9 Resignation by the Agent 103
Section 8.10 Holders of Obligations 104
Section 8.11 Co-Agents 104
ARTICLE IX
MISCELLANEOUS 104
Section 9.1 No Waiver; Modifications in Writing 104
Section 9.2 Amendments 104
Section 9.3 Certain Other Amendments; Amendments Affecting
Additional Lenders, Supplemental Revolving Lenders,
D Tranche Lenders and E Tranche Lenders 105
Section 9.4 Notices, etc. 107
Section 9.5 Costs, Expenses and Taxes 107
Section 9.6 Indemnification 108
Section 9.7 Special Expenditures 109
Section 9.8 Confirmations 110
Section 9.9 Adjustment 110
Section 9.10 Right of Setoff 111
Section 9.11 Execution in Counterparts 111
Section 9.12 Binding Effect; Assignment 111
Section 9.13 Release of Collateral 116
Section 9.14 Consent to Jurisdiction; Waiver of Jury Trial 118
Section 9.15 Governing Law; Certain Relationships 119
Section 9.16 Severability of Provisions 119
Section 9.17 Headings 119
Section 9.18 Time 119
Section 9.19 Further Assurances 119
Section 9.20 Florida Real Property 120
Section 9.21 Effect of Restatement 120
DEFINITIONAL APPENDIX 1
INDEX OF EXHIBITS AND SCHEDULES
Exhibits
Exhibit 1.1(a) Form of Stone Container Security Agreement
Exhibit 1.1(b)-A Form of Stone Savannah Security Agreement
Exhibit 1.1(b)-B Form of Stone Southwest Security Agreement
Exhibit 1.1(c) Form of Subsidiary Guarantee
Exhibit 1.1(d)-A Form of Mortgage
Exhibit 1.1(d)-B Form of Leasehold Mortgage
Exhibit 1.1(e) Recourse Receivables Financings
Exhibit 1.1(f)-A Form of Pledge Agreement
Exhibit 1.1(f)-B Form of Pledge Agreement
Exhibit 2.2(a) Form of Term Note
Exhibit 2.2(b) Form of Revolving Note
Exhibit 2.2(c) Form of Swing Line Note
Exhibit 2.2(d) Form of Additional Term Note
Exhibit 2.2(e) Form of Supplemental Revolving Note
Exhibit 2.2(f) Form of D Tranche Term Note
Exhibit 2.2(g) Form of E Tranche Term Note
Exhibit 2.5 Form of Notice of Borrowing
Exhibit 2.6 Form of Notice of Conversion or Continuation
Exhibit 2.11(d) Form of Swing Line Loan Participation Certificate
Exhibit 2.12 Form of Request for Issuance/Amendment of Letter of Credit
Exhibit 3.12(c) Form of Tax Certificate
Exhibit 5.1.1 Form of Officer's Certificate pursuant to Section 5.1.1
Exhibit 5.2.2(d) Form of Intercompany Note
Exhibit 6.1(h) Form of Opinion of Sidley & Austin
Exhibit 6.1(m) Form of Certificate of Responsible Officer pursuant to
Section 6.1(m)
Exhibit 6.1(o)-A Form of Gelco Corporation L/C Agreement Amendment
Exhibit 6.1(o)-B Form of Westinghouse Electric Corporation L/C Agreement
Amendment
Exhibit 6.3(g) Form of Opinion of Sidley & Austin
Exhibit 6.3(l) Form of Certificate of Responsible Officer
Exhibit 9.12(d) Form of Assignment Agreement
Schedules
Schedule 1.1(a) Revolving Loan and Term Loan Commitments
Schedule 1.1(b) Performance Tests
Schedule 1.1(c) Mortgaged Properties
Schedule 1.1(d) Permitted Liens
Schedule 1.1(e) Additional Term Loan Commitments
Schedule 1.1(f) Supplemental Revolving Loan Commitments and D Tranche
Term Loan Commitments
Schedule 1.1(g) E Tranche Term Loan Commitments
Schedule 1.1(h) German Financing Term Sheet
Schedule 3.4 Existing Contractual Restrictions
Schedule 4.4 Governmental Approvals
Schedule 4.8 Subsidiaries
Schedule 4.9 Litigation
Schedule 4.17 Environmental Matters
Schedule 4.19(b) UCC Filing Offices
Schedule 4.19(c) Mortgage Filing Offices
Schedule 4.19(d) Trademark Filing Offices
Schedule 4.19(e) UCC Filing Offices (SNC)
Schedule 4.20 Labor Matters
Schedule 4.21(a) Owned Real Properties
Schedule 4.21(b) Leased Real Properties
Schedule 4.21(c) Timberland Properties
Schedule 5.2.2(b) Existing Indebtedness
Schedule 5.2.2(h) IRBs and IRB Put Contracts
Schedule 5.2.3 Guarantees
Schedule 5.2.4 Affiliate Transactions
Schedule 5.2.6 Encumbrances and Restrictions
Schedule 5.2.7 Investments
Schedule 5.2.7-A Commitments and Contracts
Schedule 5.2.8(g) Permitted Seminole Kraft Indebtedness
Schedule 6.1(g) Title Insurance relating to Mortgaged Properties
Schedule 9.13(a) Collateral Subject to Release Upon Revolver Termination
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is dated
as of November 18, 1998 and among Stone Container
Corporation, a Delaware corporation (the "Borrower"), the
undersigned financial institutions in their capacities as
lenders hereunder (hereinafter collectively, the "Lenders,"
and each individually, a "Lender"), Bankers Trust Company, as
agent (the "Agent") for the Lenders hereunder, and Bank of
America National Trust & Savings Association, The Bank of New
York, The Bank of Nova Scotia, Credit Agricole Indosuez, The
Chase Manhattan Bank, Dresdner Bank AG-New York and Grand
Cayman Branches, The First National Bank of Chicago, The Long-
Term Credit Bank of Japan, Ltd., NationsBank, N.A., The
Sumitomo Bank, Ltd., Chicago Branch and Toronto Dominion
(Texas), Inc., as co-agents for the Lenders (collectively, the
"Co-Agents," and each individually, a "Co-Agent").
RECITALS:
A The Borrower, the Agent, the Co-Agents and
certain financial institutions (the "Original Lenders")
previously entered into that certain Credit Agreement dated as
of October 12, 1994, as amended by the First Amendment,
Consent and Waiver of Credit Agreement dated as of January 30,
1995, the Second Amendment of Credit Agreement dated as of
April 12, 1995 and the Third Amendment of Credit Agreement and
Waiver Request dated as of June 30, 1995 (as so amended, the
"Original Credit Agreement") whereunder the Original Lenders
agreed to make a Term Loan to the Borrower in the original
aggregate principal amount of $400,000,000 and to make
available Revolving Loans to the Borrower under a revolving
credit facility (including a letter of credit subfacility and
a swing line facility), subject to certain restrictions set
forth therein, in an aggregate principal amount not to exceed
$450,000,000 at any time outstanding.
B The Borrower, the Agent, the Co-Agents and
certain financial institutions (the "First Restatement
Lenders") previously entered into that certain Amended and
Restated Credit Agreement dated as of August 29, 1995 (the
"First Restated Credit Agreement") whereunder the Borrower,
the Agent, the Co-Agents and the First Restatement Lenders
amended and restated the Original Credit Agreement and the
Additional Lenders agreed to make an Additional Term Loan to
the Borrower in the original aggregate principal amount of
$200,000,000.
C The Borrower, the Agent, the Co-Agents and
certain financial institutions (the "Second Restatement
Lenders") have entered into that certain Amended and Restated
Credit Agreement dated as of March 22, 1996, as amended by the
First Amendment of Credit Agreement dated as of June 20, 1996,
the Second Amendment of Credit Agreement dated as of December
18, 1996 and the Third Amendment of Credit Agreement dated as
of May 22, 1997 (as so amended, the "Second Restated Credit
Agreement") whereunder the Borrower, the Agent, the Co-Agents
and the Existing Lenders amended and restated the First
Restated Credit Agreement, the Supplemental Revolving Lenders
agreed to make Supplemental Revolving Loans to the Borrower in
an aggregate principal amount not to exceed $110,000,000 at
any time outstanding and the D Tranche Lenders agreed to make
a D Tranche Term Loan to the Borrower in the original
aggregate principal amount of $190,000,000.
D The Borrower, the Agent, the Co-Agents and
certain financial institutions (the "Existing Lenders")
have entered into that certain Amended and Restated Credit
Agreement dated as of June 19, 1997, as amended by the First
Amendment of Credit Agreement dated as of December 23, 1997,
the Second Amendment of Credit Agreement dated as of March 26,
1998, the Third Amendment of Credit Agreement dated as of June
5, 1998, the Fourth Amendment of Credit Agreement dated as of
July 31, 1998 and the Fifth Amendment of Credit Agreement
dated as of October 5, 1998 (as so amended, the "Existing
Credit Agreement"), whereunder the Borrower, the Agent, the
Co-Agents and the Existing Lenders amended and restated the
Second Restated Credit Agreement and the E Tranche Lenders
agreed to make an E Tranche Term Loan to the Borrower in the
original aggregate principal amount of $300,000,000.
E The proceeds of the Term Loan, Revolving
Loans, Letters of Credit and Swing Line Loans made or issued
under the Original Credit Agreement, the First Restated Credit
Agreement and the Existing Credit Agreement were used by the
Borrower (i) to provide all or a portion of the funds
necessary to repay in full all of the indebtedness outstanding
under the U.S. Credit Agreement on the Closing Date, (ii) to
make loans and/or capital contributions on the Closing Date to
Stone-Canada, which, concurrently therewith, repaid all of the
indebtedness outstanding under the Canadian Credit Agreements,
(iii) to provide all or a portion of the funds necessary to
repay all of the indebtedness outstanding under the Stone
Savannah Credit Agreement on the Closing Date and to
consummate the Stone Savannah Transactions, (iv) in the case
of Letters of Credit, to meet the ordinary course of business
letter of credit needs of the Borrower and its Subsidiaries
and (v) for ongoing working capital and general corporate
purposes of the Borrower and its Subsidiaries.
F The proceeds of the Additional Term Loan made
under the First Restated Credit Agreement by the Additional
Lenders were used by the Borrower to (i) voluntarily
repurchase, prepay, redeem or otherwise extinguish
Indebtedness of the Borrower consisting of (A) all or any
portion of the 8-7/8% Notes (including the payment of
principal and interest thereon), (B) all or any portion of the
12-1/8% Subordinated Debentures (including the payment of
principal and interest thereon) and/or (C) Senior Indebtedness
(including the payment of principal and interest thereon),
(ii) pay certain fees and expenses incurred in connection with
the execution and delivery of the First Restated Credit
Agreement and/or (iii) repay outstanding Revolving Loans under
the Original Credit Agreement.
G The proceeds of the Supplemental Revolving
Loans made under the Existing Credit Agreement by the
Supplemental Revolving Lenders have been and will be used by
the Borrower for ongoing working capital and general corporate
purposes of the Borrower and its Subsidiaries.
H The proceeds of the D Tranche Term Loan made
under the Second Restated Credit Agreement by the D Tranche
Lenders were used by the Borrower (i) directly or indirectly
to voluntarily repurchase, prepay, redeem or otherwise
extinguish other senior and/or subordinated Indebtedness for
Money Borrowed of the Borrower (including the payment of
principal, contractual premium, if any, and interest thereon)
and (ii) to pay certain fees and expenses incurred in
connection with the execution and delivery of the Second
Restated Credit Agreement.
I The proceeds of the E Tranche Term Loan made
under the Existing Credit Agreement by the E Tranche Lenders
were used by the Borrower to (i) repay outstanding Revolving
Loans and Supplemental Revolving Loans under the Second
Restated Credit Agreement, (ii) pay certain fees and expenses
incurred in connection with the execution and delivery of the
Existing Credit Agreement and (iii) to repay other Senior
Indebtedness.
J The Existing Lenders are willing to continue
to make the Term Loan, the Additional Term Loan, the D Tranche
Term Loan and the E Tranche Term Loan, and to continue to
extend commitments to continue to make the Revolving Loans,
Supplemental Revolving Loans and Swing Line Loans, and to
continue to issue or participate, as the case may be, in
Letters of Credit, to or for the benefit of the Borrower, in
each case for the respective purposes stated above and on the
terms and subject to the conditions hereinafter set forth.
K The Borrower, the Existing Lenders, the Agent
and the Co-Agents now desire to amend and restate the Existing
Credit Agreement on the terms and subject to the conditions
set forth herein.
L This Agreement shall become effective upon the
date (the "Restatement Date") on which, after it has been
executed by the Borrower, the Agent, the Required Lenders (as
defined in the Existing Credit Agreement), each of the
Revolving Lenders (as defined in the Existing Credit
Agreement), each of the Supplemental Revolving Lenders (as
defined in the Existing Credit Agreement) and the Majority
Term Lenders (as defined in the Existing Credit Agreement),
the Borrower has satisfied all of the conditions precedent
more particularly set forth in Section 6.3 (but in the event
such conditions have not been satisfied or waived on or before
December 31, 1998, this Agreement shall be of no force or
effect and the Existing Credit Agreement shall continue in
full force and effect).
NOW THEREFORE, in consideration of the premises and
of the mutual covenants herein contained, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Definitional Appendix. Unless the
context otherwise requires, each capitalized term used herein,
including the preamble and recitals above, and defined in the
attached Definitional Appendix (which shall be deemed to be a
part of this Agreement) shall have the meaning ascribed to
such term in the Definitional Appendix.
Section 1.2 Accounting Terms; Financial
Statements. All accounting terms used herein and not
expressly defined in this Agreement shall have the respective
meanings given to them in accordance with generally accepted
accounting principles in the United States of America or
Canada, as applicable, as in effect on the Restatement Date
(as applicable, the "Agreement Accounting Principles"); and
except as otherwise expressly provided herein, all
computations and determinations for purposes of determining
compliance with the financial requirements of this Agreement
shall be made in accordance with such generally accepted
accounting principles. Notwithstanding the foregoing
sentence, the financial statements required to be delivered
pursuant to Section 5.1.1 shall be prepared in accordance with
generally accepted accounting principles in the United States
or Canada, as applicable, as in effect on the respective dates
of their preparation. Where the Handbook of the Canadian
Institute of Chartered Accountants includes a statement on a
method of accounting relating to a Canadian Subsidiary of the
Borrower, such statement shall be regarded as the only
generally accepted accounting principle in effect in Canada
applicable to the circumstances that it covers.
Notwithstanding the foregoing, other than for purposes of the
financial statements referenced in Sections 5.1.1(b)(i) and
5.1.1(c)(i), in all computations of Capital Expenditures,
Consolidated Current Assets, Consolidated Current Liabilities,
Consolidated EBITDA, Consolidated Interest Expense,
Consolidated Net Income, Consolidated Net Loss, Consolidated
Tangible Net Worth, Total Consolidated Indebtedness for
Borrowed Money and all other "consolidated" amounts, and in
all computations referred to in the third sentence of Section
5.1.1(b) and clause (z) of the second sentence of Section
5.1.1(c), the assets, liabilities, income, losses, net worth
and other relevant amounts concerning S-CC and SVCPI shall not
be consolidated but shall instead, as applicable, be excluded
or accounted for utilizing the equity method.
ARTICLE II
LOAN PROVISIONS
Section 2.1 Loan Commitments.
(a) Term Loan. The Borrower and the Term Lenders
acknowledge the making of the Term Loan in accordance with the
terms of the Existing Credit Agreement and agree that the Term
Loan shall continue to be outstanding pursuant to the terms
and conditions of this Agreement and the other Loan Documents.
(b) Revolving Loans. Each Revolving Lender
severally, and for itself alone, agrees, on the terms and
subject to the conditions hereinafter set forth and in
reliance upon the representations and warranties set forth
herein and in the other Loan Documents, to continue to make
loans to the Borrower on a revolving basis from time to time
from and after the Restatement Date to, but not including, the
Revolver Termination Date, in its Revolving Loan Pro Rata
Share of such aggregate amount as the Borrower may request,
but not exceeding in an aggregate principal amount at any one
time outstanding (giving effect to the contemporaneous
application of any Revolving Loan proceeds to the payment of
any L/C Obligations or Swing Line Loans) the applicable
Revolving Loan Commitment of such Revolving Lender at such
time minus (i) such Revolving Lender's Revolving Loan Pro Rata
Share of the L/C Obligations outstanding at such time and (ii)
such Revolving Lender's Revolving Loan Pro Rata Share of Swing
Line Loans outstanding at such time. The Borrower and the
Revolving Lenders acknowledge the making of the Revolving
Loans which are outstanding on the Restatement Date in
accordance with the terms of the Existing Credit Agreement and
agree that such Revolving Loans shall continue to be
outstanding pursuant to the terms and conditions of this
Agreement and the other Loan Documents. Prior to the Revolver
Termination Date, Revolving Loans may be repaid and reborrowed
by the Borrower in accordance with the provisions hereof.
Notwithstanding the foregoing, in the event that the Borrower
repays Revolving Loans with proceeds from the Additional Term
Loan and/or the issuance or incurrence of Indebtedness
permitted by Section 5.2.2(w), the Borrower shall maintain a
Total Available Revolving Commitment in an amount not less
than (i) the aggregate amount of Revolving Loans repaid with
proceeds from the Additional Term Loan and/or the issuance or
incurrence of Indebtedness permitted by Section 5.2.2(w) minus
(ii) the aggregate amount of Revolving Loans incurred by the
Borrower after June 30, 1995, the proceeds of which are used
by the Borrower to repurchase, prepay, redeem or otherwise
extinguish any 8-7/8% Notes, any 12-1/8% Subordinated
Debentures or any Indebtedness for Money Borrowed of the
Borrower constituting Senior Indebtedness, in each case as
permitted by Section 5.2.10(a)(xiv), until the earlier to
occur of (A) the repurchase, prepayment or conversion in full
of all of the 8-7/8% Notes or (B) the repurchase, prepayment,
redemption or other extinguishment of 12-1/8% Subordinated
Debentures and/or Indebtedness for Money Borrowed of the
Borrower constituting Senior Indebtedness in an aggregate
amount equal to, if positive, (1) the aggregate amount of
proceeds received by the Borrower from the Additional Term
Loan and the issuance or incurrence of Indebtedness permitted
by Section 5.2.2(w) minus (2) the aggregate cash consideration
paid by or on behalf of the Borrower to repurchase or prepay
the 8-7/8% Notes as permitted by Section 5.2.10(a)(xiv).
(c) Additional Term Loan. The Borrower and the
Additional Lenders acknowledge the making of the Additional
Term Loan in accordance with the terms of the Existing Credit
Agreement and agree that the Additional Term Loan shall
continue to be outstanding pursuant to the terms and
conditions of this Agreement and the other Loan Documents.
(d) Supplemental Revolving Loans. Each
Supplemental Revolving Lender severally, and for itself alone,
agrees, on the terms and subject to the conditions hereinafter
set forth and in reliance upon the representations and
warranties set forth herein and in the other Loan Documents,
to continue to make loans to the Borrower on a revolving basis
from time to time from and after the Restatement Date to, but
not including, the Supplemental Revolver Termination Date, in
its Supplemental Revolving Loan Pro Rata Share of such
aggregate amount as the Borrower may request, but not
exceeding in an aggregate principal amount at any one time
outstanding the applicable Supplemental Revolving Loan
Commitment of such Supplemental Revolving Lender at such time.
The Borrower and the Supplemental Revolving Lenders
acknowledge the making of the Supplemental Revolving Loans
which are outstanding on the Restatement Date in accordance
with the terms of the Existing Credit Agreement and agree that
such Supplemental Revolving Loans shall continue to be
outstanding pursuant to the terms and conditions of this
Agreement and the other Loan Documents. Prior to the
Supplemental Revolver Termination Date, Supplemental Revolving
Loans may be repaid and reborrowed by the Borrower in
accordance with the provisions hereof.
(e) D Tranche Term Loan. The Borrower and the D
Tranche Lenders acknowledge the making of the D Tranche Term
Loan in accordance with the terms of the Existing Credit
Agreement and agree that the D Tranche Term Loan shall
continue to be outstanding pursuant to the terms and
conditions of this Agreement and the other Loan Documents.
(f) E Tranche Term Loan. The Borrower and the E
Tranche Lenders acknowledge the making of the E Tranche Term
Loan in accordance with the terms of the Existing Credit
Agreement and agree that the E Tranche Term Loan shall
continue to be outstanding pursuant to the terms and
conditions of this Agreement and the other Loan Documents.
Section 2.2 Obligations; Notes
(a) Term Loan Obligations. The Borrower's
obligation to each Term Lender to repay the principal of, and
interest on, the Term Loan made hereunder shall be evidenced
by a promissory note (each a "Term Note" and collectively the
"Term Notes") duly executed and delivered by the Borrower
substantially in the form of Exhibit 2.2(a) hereto, the terms
of which are incorporated herein by reference in their
entirety and made a part hereof and shall (i) be payable to
the order of each Term Lender (except in the case of a
Registered Note which shall be made payable to such Term
Lender or registered assigns) in the amount of such Lender's
Term Loan Commitment, (ii) be dated the Closing Date, (iii)
provide that the Term Loan evidenced thereby shall mature on
the Term Loan Maturity Date, (iv) bear interest as provided in
this Agreement and (v) have attached thereto a principal
payments schedule substantially in the form of the Schedule to
Exhibit 2.2(a). Each Term Lender shall, and is hereby
authorized to, make a notation on the principal payments
schedule of the date and the amount of any principal payments.
Such schedules as maintained by each Term Lender shall,
absent manifest error, constitute prima facie evidence of the
amount outstanding under the Term Loan. Notwithstanding the
foregoing, the failure to make a notation with respect to any
principal payment shall not limit or otherwise affect the
obligation of the Borrower hereunder or under any Term Note
with respect to the Term Loan and payments of principal or
interest by the Borrower shall not be affected by the failure
by any Term Lender to make a notation thereof on the principal
payments schedule nor shall such failure or error affect any
rights of the Borrower hereunder or under applicable law.
Subject to the earlier acceleration or prepayment of the Term
Loan as permitted or required by this Agreement, the Borrower
shall repay the outstanding principal balance of the Term Loan
in semi-annual installments payable to the order of the
respective Term Lenders (according to their Term Loan Pro Rata
Shares) on the dates and in the respective aggregate amounts
as follows:
Payment Date Amount
April 1, 1995 $2,000,000
October 1, 1995 $2,000,000
April 1, 1996 $2,000,000
October 1, 1996 $2,000,000
April 1, 1997 $2,000,000
October 1, 1997 $2,000,000
April 1, 1998 $2,000,000
October 1, 1998 $2,000,000
April 1, 1999 $2,000,000
April 1, 2000 $382,000,000
(b) Revolving Loan Obligations. The Borrower's
obligations to each Revolving Lender to repay the principal
of, and interest on, all of the Revolving Loans made by each
Revolving Lender hereunder shall be evidenced by a promissory
note (each a "Revolving Note" and collectively the "Revolving
Notes") duly executed and delivered by the Borrower
substantially in the form of Exhibit 2.2(b) hereto, the terms
of which are incorporated herein by reference in their
entirety and made a part hereof and shall (i) be payable to
the order of each Revolving Lender in the amount of such
Lender's Revolving Loan Commitment, (ii) be dated the Closing
Date, (iii) provide that each Revolving Loan evidenced thereby
shall be repaid on the Revolver Termination Date as provided
herein, (iv) bear interest as provided in this Agreement and
(v) have attached thereto a principal payments schedule
substantially in the form of the Schedule to Exhibit 2.2(b).
On the Closing Date and at the time of the making of each
Revolving Loan or principal payment, as the case may be, such
Revolving Lender shall, and is hereby authorized to, make a
notation on the principal payments schedule with respect to
such Lender's Revolving Note of the date and the amount of
each Revolving Loan or payment, as the case may be. Such
schedule as maintained by each Revolving Lender shall, absent
manifest error, constitute prima facie evidence of the amounts
outstanding under the Revolving Loans. Notwithstanding the
foregoing, the failure by any Revolving Lender to make a
notation with respect to any Revolving Loan shall not limit or
otherwise affect the obligation of the Borrower hereunder or
under such Lender's Revolving Note with respect to such
Revolving Loan and payments of principal by the Borrower shall
not be affected by the failure to make a notation thereof on
the principal payments schedule nor shall such failure or
error affect any rights of the Borrower hereunder or under
applicable law. Although the Revolving Notes shall be dated
the Closing Date, interest in respect thereof shall be payable
only for the periods during which the Revolving Loans
evidenced thereby are outstanding and although the stated
amount of the Revolving Notes shall be equal to each Revolving
Lender's Revolving Loan Commitment, each Revolving Note shall
be enforceable with respect to the Borrower's obligation to
pay the principal amount thereof only to the extent of the
unpaid principal amount of the Revolving Loans at the time
evidenced thereby. Subject to the earlier acceleration or
prepayment of the Revolving Loans as permitted or required by
this Agreement, the Borrower shall repay all Revolving Loans
then outstanding on the Revolver Termination Date.
(c) Swing Line Loan Obligations. The Borrower's
obligation to the Swing Line Lender to repay the principal of,
and interest on, all of the Swing Line Loans made by the Swing
Line Lender hereunder shall be evidenced by a promissory note
(the "Swing Line Note") duly executed and delivered by the
Borrower substantially in the form of Exhibit 2.2(c) hereto,
the terms of which are incorporated herein by reference in
their entirety and made a part hereof and shall (i) be payable
to the order of the Swing Line Lender in the amount of the
Swing Line Commitment, (ii) be dated the Closing Date, (iii)
provide that each Swing Line Loan evidenced thereby shall be
repaid as provided herein, (iv) bear interest as provided in
this Agreement and (v) have attached thereto a principal
payments schedule substantially in the form of the schedule to
Exhibit 2.2(c). On the Closing Date and at the time of the
making of each Swing Line Loan or principal payment, as the
case may be, the Swing Line Lender shall, and is hereby
authorized to, make a notation on the principal payments
schedule to the Swing Line Note of the date and the amount of
each Swing Line Loan or payment, as the case may be. Such
schedule as maintained by the Swing Line Lender shall, absent
manifest error, constitute prima facie evidence of the amounts
outstanding under the Swing Line Loans. Notwithstanding the
foregoing, the failure by the Swing Line Lender to make a
notation with respect to any Swing Line Loan shall not limit
or otherwise affect the obligation of the Borrower hereunder
or under the Swing Line Lender's Swing Line Note with respect
to such Swing Line Loan and payments of principal by the
Borrower shall not be affected by the failure to make a
notation thereof on the principal payments schedule nor shall
such failure or error affect any rights of the Borrower
hereunder or under applicable law. Although the Swing Line
Note shall be dated the Closing Date, interest in respect
thereof shall be payable only for the periods during which the
Swing Line Loans evidenced thereby are outstanding and
although the stated amount of the Swing Line Note shall be
equal to the Swing Line Commitment, the Swing Line Note shall
be enforceable with respect to the Borrower's obligation to
pay the principal amount thereof only to the extent of the
unpaid principal amount of the Swing Line Loans at the time
evidenced thereby. Subject to the earlier acceleration or
prepayment of the Swing Line Loans as permitted or required by
this Agreement, the Borrower shall repay all Swing Line Loans
outstanding on the Revolver Termination Date.
(d) Additional Term Loan Obligations. The
Borrower's obligation to each Additional Lender to repay the
principal of, and interest on, the Additional Term Loan made
hereunder shall be evidenced by a promissory note (each an
"Additional Term Note" and collectively the "Additional Term
Notes") duly executed and delivered by the Borrower
substantially in the form of Exhibit 2.2(d) hereto, the terms
of which are incorporated herein by reference in their
entirety and made a part hereof and shall (i) be payable to
the order of each Additional Lender (except in the case of a
Registered Note which shall be made payable to such Additional
Lender or registered assigns) in the amount of such Lender's
Additional Term Loan Commitment, (ii) be dated the First
Restatement Date, (iii) provide that the Additional Term Loan
evidenced thereby shall mature on the Additional Term Loan
Maturity Date, (iv) bear interest as provided in this
Agreement and (v) have attached thereto a principal payments
schedule substantially in the form of the Schedule to Exhibit
2.2(d). Each Additional Lender shall, and is hereby
authorized to, make a notation on the principal payments
schedule of the date and the amount of any principal payments.
Such schedules as maintained by each Additional Lender shall,
absent manifest error, constitute prima facie evidence of the
amount outstanding under the Additional Term Loan.
Notwithstanding the foregoing, the failure to make a notation
with respect to any principal payment shall not limit or
otherwise affect the obligation of the Borrower hereunder or
under any Additional Term Note with respect to the Additional
Term Loan and payments of principal or interest by the
Borrower shall not be affected by the failure by any
Additional Lender to make a notation thereof on the principal
payments schedule nor shall such failure or error affect any
rights of the Borrower hereunder or under applicable law.
Subject to the earlier acceleration or prepayment of the
Additional Term Loan as permitted or required by this
Agreement, the Borrower shall repay the outstanding principal
balance of the Additional Term Loan in semi-annual
installments payable to the order of the respective Additional
Lenders (according to their Additional Term Loan Pro Rata
Shares) on the dates and in the respective aggregate amounts
as follows:
Payment Date Amount
April 1, 1996 $1,000,000
October 1, 1996 $1,000,000
April 1, 1997 $1,000,000
October 1, 1997 $1,000,000
April 1, 1998 $1,000,000
October 1, 1998 $1,000,000
April 1, 1999 $1,000,000
October 1, 1999 $1,000,000
April 1, 2000 $1,000,000
October 1, 2000 $1,000,000
April 1, 2001 $1,000,000
October 1, 2001 $1,000,000
April 1, 2002 $1,000,000
October 1, 2002 $1,000,000
April 1, 2003 $93,000,000
October 1, 2003 $93,000,000
(e) Supplemental Revolving Loan Obligations. The
Borrower's obligations to each Supplemental Revolving Lender
to repay the principal of, and interest on, all of the
Supplemental Revolving Loans made by each Supplemental
Revolving Lender hereunder shall be evidenced by a promissory
note (each a "Supplemental Revolving Note" and collectively
the "Supplemental Revolving Notes") duly executed and
delivered by the Borrower substantially in the form of Exhibit
2.2(e) hereto, the terms of which are incorporated herein by
reference in their entirety and made a part hereof and shall
(i) be payable to the order of each Supplemental Revolving
Lender in the amount of such Lender's Supplemental Revolving
Loan Commitment, (ii) be dated the Second Restatement Date,
(iii) provide that each Supplemental Revolving Loan evidenced
thereby shall be repaid on the Supplemental Revolver
Termination Date as provided herein, (iv) bear interest as
provided in this Agreement and (v) have attached thereto a
principal payments schedule substantially in the form of the
Schedule to Exhibit 2.2(e). At the time of the making of each
Supplemental Revolving Loan or principal payment, as the case
may be, such Supplemental Revolving Lender shall, and is
hereby authorized to, make a notation on the principal
payments schedule with respect to such Lender's Supplemental
Revolving Note of the date and the amount of each Supplemental
Revolving Loan or payment, as the case may be. Such schedule
as maintained by each Supplemental Revolving Lender shall,
absent manifest error, constitute prima facie evidence of the
amounts outstanding under the Supplemental Revolving Loans.
Notwithstanding the foregoing, the failure by any
Supplemental Revolving Lender to make a notation with respect
to any Supplemental Revolving Loan shall not limit or
otherwise affect the obligation of the Borrower hereunder or
under such Lender's Supplemental Revolving Note with respect
to such Supplemental Revolving Loan and payments of principal
by the Borrower shall not be affected by the failure to make
a notation thereof on the principal payments schedule nor
shall such failure or error affect any rights of the Borrower
hereunder or under applicable law. Although the Supplemental
Revolving Notes shall be dated the Second Restatement Date,
interest in respect thereof shall be payable only for the
periods during which the Supplemental Revolving Loans
evidenced thereby are outstanding and although the stated
amount of the Supplemental Revolving Notes shall be equal to
each Supplemental Revolving Lender's Supplemental Revolving
Loan Commitment, each Supplemental Revolving Note shall be
enforceable with respect to the Borrower's obligation to pay
the principal amount thereof only to the extent of the unpaid
principal amount of the Supplemental Revolving Loans at the
time evidenced thereby. Subject to the earlier acceleration
or prepayment of the Supplemental Revolving Loans as permitted
or required by this Agreement, the Borrower shall repay all
Supplemental Revolving Loans then outstanding on the
Supplemental Revolver Termination Date.
(f) D Tranche Term Loan Obligations. The
Borrower's obligation to each D Tranche Lender to repay the
principal of, and interest on, the D Tranche Term Loan made
hereunder shall be evidenced by a promissory note (each a "D
Tranche Term Note" and collectively the "D Tranche Term
Notes") duly executed and delivered by the Borrower
substantially in the form of Exhibit 2.2(f) hereto, the terms
of which are incorporated herein by reference in their
entirety and made a part hereof and shall (i) be payable to
the order of each D Tranche Lender (except in the case of a
Registered Note which shall be made payable to such D Tranche
Lender or registered assigns) in the amount of such Lender's
D Tranche Term Loan Commitment, (ii) be dated the Second
Restatement Date, (iii) provide that the D Tranche Term Loan
evidenced thereby shall mature on the D Tranche Term Loan
Maturity Date, (iv) bear interest as provided in this
Agreement and (v) have attached thereto a principal payments
schedule substantially in the form of the Schedule to Exhibit
2.2(f). Each D Tranche Lender shall, and is hereby authorized
to, make a notation on the principal payments schedule of the
date and the amount of any principal payments. Such schedules
as maintained by each D Tranche Lender shall, absent manifest
error, constitute prima facie evidence of the amount
outstanding under the D Tranche Term Loan. Notwithstanding
the foregoing, the failure to make a notation with respect to
any principal payment shall not limit or otherwise affect the
obligation of the Borrower hereunder or under any D Tranche
Term Note with respect to the D Tranche Term Loan and payments
of principal or interest by the Borrower shall not be affected
by the failure by any D Tranche Lender to make a notation
thereof on the principal payments schedule nor shall such
failure or error affect any rights of the Borrower hereunder
or under applicable law. Subject to the earlier acceleration
or prepayment of the D Tranche Term Loan as permitted or
required by this Agreement, the Borrower shall repay the
outstanding principal balance of the D Tranche Term Loan in
semi-annual installments payable to the order of the
respective D Tranche Lenders (according to their D Tranche
Term Loan Pro Rata Shares) on the dates and in the respective
aggregate amounts as follows:
Payment Date Amount
October 1, 1996 $950,000
April 1, 1997 $950,000
October 1, 1997 $950,000
April 1, 1998 $950,000
October 1, 1998 $950,000
April 1, 1999 $950,000
October 1, 1999 $950,000
April 1, 2000 $950,000
October 1, 2000 $950,000
April 1, 2001 $950,000
October 1, 2001 $950,000
April 1, 2002 $950,000
October 1, 2002 $950,000
April 1, 2003 $88,350,000
October 1, 2003 $89,300,000
(g) E Tranche Term Loan Obligations. The
Borrower's obligation to each E Tranche Lender to repay the
principal of, and interest on, the E Tranche Term Loan made
hereunder shall be evidenced by a promissory note (each an "E
Tranche Term Note" and collectively the "E Tranche Term
Notes") duly executed and delivered by the Borrower
substantially in the form of Exhibit 2.2(g) hereto, the terms
of which are incorporated herein by reference in their
entirety and made a part hereof and shall (i) be payable to
the order of each E Tranche Lender (except in the case of a
Registered Note which shall be made payable to such E Tranche
Lender or registered assigns) in the amount of such Lender's
E Tranche Term Loan Commitment, (ii) be dated the Third
Restatement Date, (iii) provide that the E Tranche Term Loan
evidenced thereby shall mature on the E Tranche Term Loan
Maturity Date, (iv) bear interest as provided in this
Agreement and (v) have attached thereto a principal payments
schedule substantially in the form of the Schedule to Exhibit
2.2(g). Each E Tranche Lender shall, and is hereby authorized
to, make a notation on the principal payments schedule of the
date and the amount of any principal payments. Such schedules
as maintained by each E Tranche Lender shall, absent manifest
error, constitute prima facie evidence of the amount
outstanding under the E Tranche Term Loan. Notwithstanding
the foregoing, the failure to make a notation with respect to
any principal payment shall not limit or otherwise affect the
obligation of the Borrower hereunder or under any E Tranche
Term Note with respect to the E Tranche Term Loan and payments
of principal or interest by the Borrower shall not be affected
by the failure by any E Tranche Lender to make a notation
thereof on the principal payments schedule nor shall such
failure or error affect any rights of the Borrower hereunder
or under applicable law. Subject to the earlier acceleration
or prepayment of the E Tranche Term Loan as permitted or
required by this Agreement, the Borrower shall repay the
outstanding principal balance of the E Tranche Term Loan in
semi-annual installments payable to the order of the
respective E Tranche Lenders (according to their E Tranche
Term Loan Pro Rata Shares) on the dates and in the respective
aggregate amounts as follows:
Payment Date Amount
October 1, 1997 $1,500,000
April 1, 1998 $1,500,000
October 1, 1998 $1,500,000
April 1, 1999 $1,500,000
October 1, 1999 $1,500,000
April 1, 2000 $1,500,000
October 1, 2000 $1,500,000
April 1, 2001 $1,500,000
October 1, 2001 $1,500,000
April 1, 2002 $1,500,000
October 1, 2002 $1,500,000
April 1, 2003 $141,750,000
October 1, 2003 $141,750,000
Section 2.3 Borrowing Options. The Term Loan,
the Revolving Loans, the Additional Term Loan, the
Supplemental Revolving Loans, the D Tranche Term Loan and the
E Tranche Term Loan shall, at the option of the Borrower and
except as otherwise provided in this Agreement, consist of (i)
Prime Rate Loans, (ii) Eurodollar Rate Loans or (iii) part
Prime Rate Loans and part Eurodollar Rate Loans, provided that
all Loans made pursuant to the same Borrowing shall be of the
same Type. As to any Eurodollar Rate Loan, any Lender may, if
it so elects, fulfill its commitment to make such Loan by
causing a foreign branch or affiliate of such Lender to make
or continue such Loan, provided that in such event such
Lender's Revolving Loan Pro Rata Share, Term Loan Pro Rata
Share, Additional Term Loan Pro Rata Share, Supplemental
Revolving Loan Pro Rata Share, D Tranche Term Loan Pro Rata
Share or E Tranche Term Loan Pro Rata Share, as the case may
be, of the Loan shall, for purposes of this Agreement, be
considered to have been made by such Lender and the obligation
of the Borrower to repay such Lender's Revolving Loan Pro Rata
Share, Term Loan Pro Rata Share, Additional Term Loan Pro Rata
Share, Supplemental Revolving Loan Pro Rata Share, D Tranche
Term Loan Pro Rata Share or E Tranche Term Loan Pro Rata
Share, as the case may be, of the Loan shall nevertheless be
to such Lender and shall be deemed held by such Lender for the
account of such branch or affiliate.
Section 2.4 Minimum Amount of Each Borrowing.
The aggregate principal amount of each Borrowing by the
Borrower hereunder shall be not less than $5 million ($1
million in the case of Swing Line Loans) and, in each case, if
greater, shall be in an integral multiple of $1 million above
such minimum; provided, however, that (i) any Borrowing
consisting of Revolving Loans made pursuant to Section 2.11(c)
may be in the amount of the Swing Line Loan(s) refunded
thereby and (ii) such Revolving Loans shall be Prime Rate
Revolving Loans unless and until converted into Eurodollar
Rate Revolving Loans pursuant to the terms of Section 2.6.
Section 2.5 Notice of Borrowing. Whenever the
Borrower desires to make a Borrowing hereunder, it shall give
the Agent at its office located at One Bankers Trust Plaza,
130 Liberty Street, New York, New York 10006 at least one (1)
Business Day's prior written notice (or telephonic notice
promptly confirmed in writing) of each Prime Rate Loan, and at
least (3) three Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of each
Eurodollar Rate Loan, to be made hereunder. In each case such
notice shall be given prior to 1:00 p.m. (New York City time)
on the date specified. Each such notice (a "Notice of
Borrowing"), which shall be in the form of Exhibit 2.5 hereto,
shall be irrevocable, shall be deemed a representation by the
Borrower that all conditions precedent to such Borrowing have
been satisfied and shall specify (i) the aggregate principal
amount of the Loans to be made pursuant to such Borrowing,
(ii) the date of Borrowing (which shall be a Business Day) and
(iii) whether the Loans being made pursuant to such Borrowing
are to be Prime Rate Loans or Eurodollar Rate Loans and, with
respect to Eurodollar Rate Loans, the Interest Period to be
applicable thereto. The Agent shall as promptly as
practicable give each Revolving Lender and Supplemental
Revolving Lender written notice (or telephonic notice
confirmed in writing) of each proposed Borrowing with respect
to Revolving Loans and Supplemental Revolving Loans, of such
Revolving Lender's Revolving Loan Pro Rata Share thereof, of
such Supplemental Revolving Lender's Supplemental Revolving
Loan Pro Rata Share thereof and of the other matters covered
by the Notice of Borrowing. The Agent shall promptly give the
Borrower written or telephonic notice as to the aggregate
principal amount of Revolving Loans and Supplemental Revolving
Loans for each Borrowing as determined by the Agent pursuant
to Section 2.17. Without in any way limiting the Borrower's
obligation to confirm in writing any telephonic notice, the
Agent may act without liability upon the basis of telephonic
notice believed by the Agent in good faith to be from the
Borrower prior to receipt of written confirmation, with the
Agent's records being, absent manifest error, conclusive and
binding on all parties hereto.
Section 2.6 Conversion or Continuation. The
Borrower may elect (i) at any time to convert Prime Rate Loans
or any portion thereof to Eurodollar Rate Loans and (ii) at
the end of any Interest Period with respect thereto, to
convert Eurodollar Rate Loans or any portion thereof into
Prime Rate Loans or to continue such Eurodollar Rate Loans or
any portion thereof for an additional Interest Period;
provided, however, that the aggregate principal amount of the
Eurodollar Rate Loans for each Interest Period therefor must
be in an aggregate principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof. Each
conversion or continuation of Term Loans shall be allocated
among the Term Loans of the Term Lenders in accordance with
their respective Term Loan Pro Rata Shares. Each conversion
or continuation of Revolving Loans shall be allocated among
the Revolving Loans of the Revolving Lenders in accordance
with their respective Revolving Loan Pro Rata Shares. Each
conversion or continuation of Additional Term Loans shall be
allocated among the Additional Term Loans of the Additional
Lenders in accordance with their respective Additional Term
Loan Pro Rata Shares. Each conversion or continuation of
Supplemental Revolving Loans shall be allocated among the
Supplemental Revolving Loans of the Supplemental Revolving
Lenders in accordance with their respective Supplemental
Revolving Loan Pro Rata Shares. Each conversion or
continuation of D Tranche Term Loans shall be allocated among
the D Tranche Term Loans of the D Tranche Lenders in
accordance with their respective D Tranche Term Loan Pro Rata
Shares. Each conversion or continuation of E Tranche Term
Loans shall be allocated among the E Tranche Term Loans of the
E Tranche Lenders in accordance with their respective E
Tranche Term Loan Pro Rata Shares. Each such election shall
be in substantially the form of Exhibit 2.6 hereto (a "Notice
of Conversion or Continuation") and shall be made by giving
the Agent at least three Business Days' prior written notice
thereof, given not later than 1:00 p.m. (New York City time)
on such third prior Business Day, specifying the amount and
type of conversion or continuation, in the case of a
conversion to or a continuation of Eurodollar Rate Loans, the
Interest Period therefor, and in the case of a conversion, the
date of conversion (which date shall be a Business Day and, if
a conversion from Eurodollar Rate Loans, shall also be the
last day of the Interest Period therefor). The Agent shall
promptly notify each Revolving Lender, Term Lender, Additional
Lender, Supplemental Revolving Lender, D Tranche Lender or E
Tranche Lender, as applicable, of its receipt of a Notice of
Conversion or Continuation and of the contents thereof.
Notwithstanding the foregoing, no conversion in whole or in
part of Prime Rate Loans to Eurodollar Rate Loans, and no
continuation in whole or in part of Eurodollar Rate Loans upon
the expiration of any Interest Period therefor, shall be
permitted at any time at which an Unmatured Event of Default
or an Event of Default shall have occurred and be continuing.
If, within the time period required under the terms of this
Section 2.6, the Agent does not receive a Notice of Conversion
or Continuation from the Borrower containing a permitted
election to continue any Eurodollar Rate Loans for an
additional Interest Period or to convert any such Loans, then,
upon the expiration of the Interest Period therefor, such
Loans will automatically convert to Prime Rate Loans. Each
Notice of Conversion or Continuation shall be irrevocable.
Section 2.7 Disbursement of Funds. No later
than 12:00 noon (New York City time) on the date specified in
the applicable Notice of Borrowing, so long as the Agent has
notified such Lender of such Notice of Borrowing, each Lender
will make available its Revolving Loan Pro Rata Share, Term
Loan Pro Rata Share, Additional Term Loan Pro Rata Share,
Supplemental Revolving Loan Pro Rata Share, D Tranche Term
Loan Pro Rata Share or E Tranche Term Loan Pro Rata Share, as
the case may be, of the Borrowing requested to be made on such
date in Dollars and in immediately available funds, at the
office (the "Payment Office") of the Agent located at One
Bankers Trust Plaza, 130 Liberty Street, New York, New York
10006 (for the account of such non-U.S. office of the Agent as
the Agent may direct in the case of Eurodollar Rate Loans),
and the Agent will promptly make available to the Borrower at
the Payment Office the aggregate of the amounts so made
available by the applicable Lenders. Unless the Agent shall
have been notified by any Lender prior to the date of a
Borrowing that such Lender does not intend to make available
to the Agent such Lender's Revolving Loan Pro Rata Share, Term
Loan Pro Rata Share, Additional Term Loan Pro Rata Share,
Supplemental Revolving Loan Pro Rata Share, D Tranche Term
Loan Pro Rata Share or E Tranche Term Loan Pro Rata Share, as
the case may be, of such Borrowing, the Agent may assume that
such Lender has made such amount available to the Agent on
such date of Borrowing and the Agent may, in reliance upon
such assumption, make available to the Borrower a
corresponding amount. If such corresponding amount is not in
fact made available to the Agent by such Lender on the date of
Borrowing, the Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such
Lender does not pay such corresponding amount forthwith upon
the Agent's demand therefor, the Agent shall promptly notify
the Borrower and the Borrower shall immediately pay such
corresponding amount to the Agent. The Agent shall also be
entitled to recover from the Borrower interest on such
corresponding amount, in respect of each day from the date
such corresponding amount was made available by the Agent to
the Borrower to but excluding the date such corresponding
amount is recovered by the Agent, at a rate per annum equal to
the rate applicable to Prime Rate Loans or Eurodollar Rate
Loans, as the case may be, applicable during the period in
question and, upon payment of such amounts to the Agent, the
Borrower shall be entitled to recover such amounts from such
Lender. Any amounts due hereunder to the Agent from the
Lenders which are not paid when due shall bear interest
payable by such Lender, from the date due until the date paid,
at the Federal Funds Rate for the first three days after the
date such amount is due and thereafter at the Prime Rate,
together with the Agent's standard interbank processing fee.
Further, such Lender shall be deemed to have assigned any and
all payments of principal and interest made on its Loans,
amounts due with respect to Letters of Credit (or its
participations therein) and any other amounts due to it
hereunder first to the Agent to fund any outstanding Loans
made available on behalf of such Lender by the Agent pursuant
to this Section 2.7 until such Loans have been funded (as a
result of such assignment or otherwise) and then to fund Loans
of all Lenders other than such Lender until each Lender has
outstanding Loans equal to its Revolving Loan Pro Rata Share,
Term Loan Pro Rata Share, Additional Term Loan Pro Rata Share,
Supplemental Revolving Loan Pro Rata Share, D Tranche Term
Loan Pro Rata Share or E Tranche Term Loan Pro Rata Share, as
the case may be, of all Loans (as a result of such assignment
or otherwise). Such Lender shall not have recourse against
the Borrower with respect to any amounts paid to the Agent or
any Lender with respect to the preceding sentence; provided,
however, that such Lender shall have full recourse against the
Borrower to the extent of the amount of such Loans it has so
been deemed to have made. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its
Commitment hereunder or to prejudice any rights which the
Borrower may have against any Lender as a result of any
default by such Lender hereunder.
Section 2.8 Interest.
(a) Prime Rate Revolving Loans. The Borrower
agrees to pay interest in respect of the unpaid principal
amount of each Prime Rate Revolving Loan from the date the
proceeds thereof are made available to the Borrower (whether
pursuant to a new Borrowing or upon a conversion pursuant to
Section 2.6) until maturity (whether by acceleration or
otherwise) of such Prime Rate Revolving Loan or until such
Prime Rate Revolving Loan is converted into a Eurodollar Rate
Revolving Loan, at a rate per annum equal to the Prime Rate in
effect from time to time plus a Borrowing Margin of 2-1/2%.
(b) Eurodollar Rate Revolving Loans. The Borrower
agrees to pay interest in respect of the unpaid principal
amount of each Eurodollar Rate Revolving Loan from the date
the proceeds thereof are made available to the Borrower
(whether pursuant to a new Borrowing or upon a conversion
pursuant to Section 2.6) until maturity (whether by
acceleration or otherwise) of such Eurodollar Rate Revolving
Loan at a rate per annum equal to the relevant Eurodollar Rate
plus a Borrowing Margin of 3-1/2%.
(c) Prime Rate Term Loans. The Borrower agrees to
pay interest in respect of the unpaid principal amount of each
Prime Rate Term Loan from the date the proceeds thereof are
made available to the Borrower (whether pursuant to a new
Borrowing or upon a conversion pursuant to Section 2.6) until
maturity (whether by acceleration or otherwise) of such Prime
Rate Term Loan or until such Prime Rate Term Loan is converted
into a Eurodollar Rate Term Loan, at a rate per annum equal to
the Prime Rate in effect from time to time plus a Borrowing
Margin of 2-1/2%.
(d) Eurodollar Rate Term Loans. The Borrower
agrees to pay interest in respect of the unpaid principal
amount of each Eurodollar Rate Term Loan from the date the
proceeds thereof are made available to the Borrower (whether
pursuant to a new Borrowing or upon a conversion pursuant to
Section 2.6) until maturity (whether by acceleration or
otherwise) of such Eurodollar Rate Term Loan at a rate per
annum equal to the relevant Eurodollar Rate plus a Borrowing
Margin of 3-1/2%.
(e) Swing Line Loans. The Borrower agrees to pay
interest in respect of the unpaid principal amount of each
Swing Line Loan from the date the proceeds thereof are made
available to the Borrower until maturity (whether by
acceleration or otherwise) of such Swing Line Loan or until
such Swing Line Loan is converted to Revolving Loans at a rate
per annum equal to the Prime Rate in effect from time to time
plus a Borrowing Margin of 2-1/2%.
(f) Prime Rate Additional Term Loans. The Borrower
agrees to pay interest in respect of the unpaid principal
amount of each Prime Rate Additional Term Loan from the date
the proceeds thereof are made available to the Borrower
(whether pursuant to a new Borrowing or upon a conversion
pursuant to Section 2.6) until maturity (whether by
acceleration or otherwise) of such Prime Rate Additional Term
Loan or until such Prime Rate Additional Term Loan is
converted into a Eurodollar Rate Additional Term Loan, at a
rate per annum equal to the Prime Rate in effect from time to
time plus a Borrowing Margin of 2-1/2%.
(g) Eurodollar Rate Additional Term Loans. The
Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Rate Additional Term Loan
from the date the proceeds thereof are made available to the
Borrower (whether pursuant to a new Borrowing or upon a
conversion pursuant to Section 2.6) until maturity (whether by
acceleration or otherwise) of such Eurodollar Rate Additional
Term Loan at a rate per annum equal to the relevant Eurodollar
Rate plus a Borrowing Margin of 3-1/2%.
(h) Prime Rate Supplemental Revolving Loans. The
Borrower agrees to pay interest in respect of the unpaid
principal amount of each Prime Rate Supplemental Revolving
Loan from the date the proceeds thereof are made available to
the Borrower (whether pursuant to a new Borrowing or upon a
conversion pursuant to Section 2.6) until maturity (whether by
acceleration or otherwise) of such Prime Rate Supplemental
Revolving Loan or until such Prime Rate Supplemental Revolving
Loan is converted into a Eurodollar Rate Supplemental
Revolving Loan, at a rate per annum equal to the Prime Rate in
effect from time to time plus a Borrowing Margin of 2-1/2%.
(i) Eurodollar Rate Supplemental Revolving Loans.
The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Rate Supplemental
Revolving Loan from the date the proceeds thereof are made
available to the Borrower (whether pursuant to a new Borrowing
or upon a conversion pursuant to Section 2.6) until maturity
(whether by acceleration or otherwise) of such Eurodollar Rate
Supplemental Revolving Loan at a rate per annum equal to the
relevant Eurodollar Rate plus a Borrowing Margin of 3-1/2%.
(j) Prime Rate D Tranche Term Loans. The Borrower
agrees to pay interest in respect of the unpaid principal
amount of each Prime Rate D Tranche Term Loan from the date
the proceeds thereof are made available to the Borrower
(whether pursuant to a new Borrowing or upon a conversion
pursuant to Section 2.6) until maturity (whether by
acceleration or otherwise) of such Prime Rate D Tranche Term
Loan or until such Prime Rate D Tranche Term Loan is converted
into a Eurodollar Rate D Tranche Term Loan, at a rate per
annum equal to the Prime Rate in effect from time to time plus
a Borrowing Margin of 2-1/2%.
(k) Eurodollar Rate D Tranche Term Loans. The
Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Rate D Tranche Term Loan
from the date the proceeds thereof are made available to the
Borrower (whether pursuant to a new Borrowing or upon a
conversion pursuant to Section 2.6) until maturity (whether by
acceleration or otherwise) of such Eurodollar Rate D Tranche
Term Loan at a rate per annum equal to the relevant Eurodollar
Rate plus a Borrowing Margin of 3-1/2%.
(l) Prime Rate E Tranche Term Loans. The Borrower
agrees to pay interest in respect of the unpaid principal
amount of each Prime Rate E Tranche Term Loan from the date
the proceeds thereof are made available to the Borrower
(whether pursuant to a new Borrowing or upon a conversion
pursuant to Section 2.6) until maturity (whether by
acceleration or otherwise) of such Prime Rate E Tranche Term
Loan or until such Prime Rate E Tranche Term Loan is converted
into a Eurodollar Rate E Tranche Term Loan, at a rate per
annum equal to the Prime Rate in effect from time to time plus
a Borrowing Margin of 2-1/2%.
(m) Eurodollar Rate E Tranche Term Loans. The
Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Rate E Tranche Term Loan
from the date the proceeds thereof are made available to the
Borrower (whether pursuant to a new Borrowing or upon a
conversion pursuant to Section 2.6) until maturity (whether by
acceleration or otherwise) of such Eurodollar Rate E Tranche
Term Loan at a rate per annum equal to the relevant Eurodollar
Rate plus a Borrowing Margin of 3-1/2%.
(n) Default Rate Interest. Overdue principal and
(to the extent permitted by applicable law) overdue interest
in respect of each Loan shall bear interest, payable on
demand, after as well as before judgment, at a rate per annum
equal to (i) if such Loan is a Prime Rate Loan, the Prime Rate
plus the applicable Borrowing Margin set forth in Section
2.8(a), (c), (e), (f), (h), (j) or (l), as the case may be,
plus 2% per annum or (ii) if such Loan is a Eurodollar Rate
Loan, the Eurodollar Rate then in effect plus the applicable
Borrowing Margin set forth in Section 2.8(b), (d), (g), (i),
(k) or (m), as the case may be, plus 2% per annum (any such
applicable rate of interest in the foregoing clauses (i) and
(ii) being the "Default Rate").
(o) Accrual and Payment of Interest. Interest
shall accrue from and including the date of any Borrowing
(whether pursuant to a new Borrowing or upon a conversion
pursuant to Section 2.6) to but excluding the date of any
repayment thereof. Interest on Eurodollar Rate Loans shall be
payable by the Borrower in arrears on the last day of each
Interest Period and, in the case of an Interest Period in
excess of three months, at intervals of every three months
after the initial date of such Interest Period.
Notwithstanding the above, interest shall be due and payable
on any amount repaid or reborrowed, as the case may be, on the
date of such repayment or reborrowing, as the case may be, and
upon final maturity of such Loan (whether by acceleration or
otherwise) and after such maturity, on demand. Interest on
Prime Rate Loans shall be due and payable quarterly in arrears
on the Quarterly Payment Date of each year, on maturity
(whether by acceleration or otherwise) and after such
maturity, on demand. Interest on all Eurodollar Rate Loans
shall be computed on the basis of a year consisting of 360
days and actual days elapsed. Interest on all Prime Rate
Loans shall be computed on the basis of a year consisting of
365 or 366 days, as the case may be, and actual days elapsed.
(p) Notification of Rate. The Agent, upon
determining the Eurodollar Rate for any Interest Period, shall
promptly give the Borrower and the other Lenders written or
telephonic notice thereof. Such determination shall, absent
manifest error and subject to the provisions of Section 2.13,
be final, conclusive and binding upon all parties hereto.
(q) Maximum Interest. If any interest payment or
other charge or fee payable hereunder exceeds the maximum
amount then permitted by applicable law, the Borrower shall be
obligated to pay the maximum amount then permitted by
applicable law and the Borrower shall continue to pay the
maximum amount from time to time permitted by applicable law
until all such interest payments and other charges and fees
otherwise due hereunder (in the absence of such restraint
imposed by applicable law) have been paid in full.
(r) Reference Banks. If any Reference Bank shall
for any reason no longer have a Commitment or a Loan, such
Reference Bank shall thereupon cease to be a Reference Bank,
and if, as a result thereof, there shall only be one Reference
Bank remaining, the Borrower and the Agent (after consultation
with the Lenders) shall, by notice to the Lenders, designate
another Lender as a Reference Bank so that there shall at all
time be at least two Reference Banks. Each Reference Bank
shall use its best efforts to furnish quotations of rates to
the Agent as contemplated hereby. If any of the Reference
Banks shall be unable or shall otherwise fail to supply such
rates to the Agent upon its request, the rate of interest
shall, subject to the provisions of Section 2.13, be
determined on the basis of the quotations of the remaining
Reference Banks.
Section 2.9 Interest Rate Adjustments. The
Borrowing Margins for all Loans shall be adjusted from and
after the Restatement Date to give effect to the amendments to
such Borrowing Margins set forth in this Agreement.
Section 2.10 Interest Periods. At the time it
gives any Notice of Borrowing or a Notice of Conversion or
Continuation with respect to Eurodollar Rate Loans, the
Borrower shall elect, by giving the Agent written notice, the
interest period (each an "Interest Period") applicable to the
related Eurodollar Rate Borrowing, which Interest Period
shall, at the option of the Borrower, be a one, two, three or
six month period, provided that: (i) the Interest Period for
any Eurodollar Rate Loan shall commence on the date of such
Borrowing and each Interest Period occurring thereafter in
respect of a continuation of such Eurodollar Rate Loan shall
commence on the day on which the immediately preceding
Interest Period for such Loan expires; (ii) if any Interest
Period would otherwise expire on a day which is not a Business
Day, such Interest Period shall expire on the next succeeding
Business Day, provided, however, that if any Interest Period
in respect of a Eurodollar Rate Loan would otherwise expire on
a day which is not a Business Day and after which no Business
Day occurs in the same month, such Interest Period shall
expire on the immediately preceding Business Day; (iii) if an
Interest Period begins on the last Business Day of a calendar
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period), such Interest Period shall end on the last
Business Day of the first, second, third or sixth, as
applicable, succeeding calendar month; and (iv) no Interest
Period shall extend beyond the Revolver Termination Date for
any Revolving Loans, the Term Loan Maturity Date for the Term
Loan, the Additional Term Loan Maturity Date for the
Additional Term Loan, the Supplemental Revolver Termination
Date for any Supplemental Revolving Loans, the D Tranche Term
Loan Maturity Date for the D Tranche Term Loan or the E
Tranche Term Loan Maturity Date for the E Tranche Term Loan.
Section 2.11 Swing Line Loans.
(a) Swing Line Commitment. Subject to the terms
and conditions hereof, the Swing Line Lender agrees to make
swing line loans ("Swing Line Loans") to the Borrower on any
Business Day from time to time from and after the Closing Date
to, but not including, the Revolver Termination Date in an
aggregate principal amount at any one time outstanding not to
exceed $25,000,000; provided, however, that in no event may
the amount of any Borrowing of Swing Line Loans cause the
outstanding Revolving Loans of any Lender (other than the
Swing Line Lender), when added to such Lender's Revolving Loan
Pro Rata Share of the then outstanding Swing Line Loans and
L/C Obligations (after giving effect to the use of proceeds of
such Swing Line Loans) to exceed such Lender's Revolving Loan
Commitment. Amounts borrowed by the Borrower under this
Section 2.11(a) may be repaid and, to but excluding the
Revolver Termination Date, reborrowed.
(b) Procedure for Swing Line Borrowing. The
Swing Line Loans shall be made and maintained as Prime Rate
Loans and, notwithstanding Section 2.6, shall not be entitled
to be converted into Eurodollar Rate Loans. The Borrower
shall give the Agent and the Swing Line Lender irrevocable
notice (which notice must be received by the Agent and the
Swing Line Lender prior to 1:00 p.m., New York City time), on
the requested borrowing date (which shall be a Business Day)
specifying the amount of each requested Swing Line Loan, which
shall be in a minimum amount of $1,000,000 or an integral
multiple thereof. The proceeds of each Swing Line Loan will
then be made available to the Borrower by the Swing Line
Lender by crediting the account of the Borrower on the books
of the office of the Swing Line Lender specified in Section
2.7 with such proceeds.
(c) Refunding of Swing Line Loans. The Swing Line
Lender, at any time in its sole and absolute discretion, may
on behalf of the Borrower (which hereby irrevocably authorizes
the Swing Line Lender to so act on its behalf) request each
Revolving Lender (including the Swing Line Lender) to make a
Revolving Loan in an amount equal to such Revolving Lender's
Revolving Loan Pro Rata Share of the principal amount of the
Swing Line Loans (the "Refunded Swing Line Loans") outstanding
on the date such notice is given. Unless any of the events
described in Section 7.1(e) or 7.1(f) shall have occurred (in
which event the procedures of paragraph (d) of this Section
2.11 shall apply) and regardless of whether the conditions
precedent set forth in this Agreement to the making of a
Revolving Loan are then satisfied, each Revolving Lender shall
make the proceeds of its Revolving Loan available to the Agent
at its office specified in Section 2.7 prior to 1:00 p.m., New
York City time, in funds immediately available on the Business
Day next succeeding the date such notice is given. The
proceeds of such Revolving Loans shall be made immediately
available to the Swing Line Lender and immediately applied to
repay the Refunded Swing Line Loans, and, until converted into
Eurodollar Rate Loans, shall constitute Prime Rate Revolving
Loans.
(d) Participation in Swing Line Loans. If, prior
to the making of Prime Rate Revolving Loans pursuant to
paragraph (c) of this Section 2.11, one of the events
described in Sections 7.1(e) or 7.1(f) shall have occurred,
then, subject to the provisions of clause (e) below, each
Revolving Lender will, on the date such Revolving Loans were
to have been made, purchase from the Swing Line Lender an
undivided participating interest in the Refunded Swing Line
Loan in an amount equal to its Revolving Loan Pro Rata Share
of such Refunded Swing Line Loan. Upon request, each
Revolving Lender will immediately transfer to the Swing Line
Lender, in immediately available funds, the amount of its
participation and upon receipt thereof the Swing Line Lender
will deliver to such Lender a Swing Line Loan Participation
Certificate dated the date of receipt of such funds and in
such amount.
(e) Obligations Unconditional. Each Revolving
Lender's obligation to make Revolving Loans in accordance with
clause (c) above and to purchase participating interests in
accordance with clause (d) above shall be absolute and
unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have
against the Swing Line Lender, the Borrower or any other
Person for any reason whatsoever; (ii) the occurrence or
continuance of any Event of Default or Unmatured Event of
Default; (iii) any adverse change in the condition (financial
or otherwise) of the Borrower or any other Person; (iv) any
breach of this Agreement by the Borrower or any other Person;
(v) any inability of the Borrower to satisfy the conditions
precedent to Borrowing set forth in this Agreement on the date
upon which such participating interest is to be purchased or
(vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. If any
Revolving Lender does not make available to the Swing Line
Lender the amount required pursuant to clause (c) or (d)
above, as the case may be, the Swing Line Lender shall be
entitled to recover such amount on demand from such Lender,
together with interest thereon for each day from the date of
non-payment until such amount is paid in full at the Federal
Funds Rate for the first three days and at the Prime Rate
thereafter. Notwithstanding the foregoing provisions of this
Section 2.11(e), no Revolving Lender shall be required to make
a Revolving Loan to the Borrower for the purpose of refunding
a Swing Line Loan pursuant to clause (c) above or to purchase
a participating interest in a Swing Line Loan pursuant to
clause (d) above if an Event of Default or Unmatured Event of
Default has occurred and is continuing and, prior to the
making by the Swing Line Lender of such Swing Line Loan, the
Swing Line Lender has received written notice from such
Revolving Lender specifying that such Event of Default or
Unmatured Event of Default has occurred and is continuing,
describing the nature thereof and stating that, as a result
thereof, such Revolving Lender shall cease to make such
Refunded Swing Line Loans and purchase such participating
interests, as the case may be; provided, however, that the
obligation of such Revolving Lender to make such Refunded
Swing Line Loans and to purchase such participating interests
shall be reinstated upon the earlier to occur of (i) the date
upon which such Revolving Lender notifies the Swing Line
Lender that its prior notice has been withdrawn and (ii) the
date upon which the Event of Default or Unmatured Event of
Default specified in such notice no longer is continuing.
Section 2.12 Letters of Credit.
(a) Issuance by Facing Agent. Subject to the
terms and conditions hereof and provided that no Event of
Default or Unmatured Event of Default shall have occurred and
be continuing, the Borrower may request, in accordance with
this Section 2.12, that the Facing Agent issue on behalf of
the Revolving Lenders Letters of Credit denominated in
Dollars for the account of the Borrower with the face amount
of each Letter of Credit in a minimum amount of $250,000 or
such lesser amount as the Facing Agent may approve; provided,
however, that (i) each Letter of Credit shall be issued in
favor of a Permitted Beneficiary; (ii) the Borrower shall not
request the Facing Agent to issue any Letter of Credit if,
after giving effect to such issuance, the sum of the aggregate
Stated Amounts and unreimbursed drawings of the Letters of
Credit then outstanding would exceed $62,000,000 or if the
face amount of such requested Letter of Credit exceeds the
Total Available Revolving Commitment then in effect, and (iii)
in no event shall the Facing Agent issue any Letter of Credit
having an expiration date later than one year from the date of
issuance (or in any event later than thirty (30) days prior to
the Revolver Termination Date), provided that any such Letter
of Credit may be automatically extended to a date not later
than one year from its expiration date (but in no event later
than thirty (30) days prior to the Revolver Termination Date)
on an annual basis upon the satisfaction of the applicable
conditions set forth in Sections 6.2(a),(b) and (d) hereof
with respect to the issuance of any Letter of Credit, which
satisfaction the Facing Agent may require the Borrower to
certify in writing as a condition of any such extension. For
each such automatic extension of a Letter of Credit, the
Borrower shall deliver a written request to the Facing Agent
(with a copy to the Agent) no earlier than 150 days and no
later than 120 days prior to the expiration date thereof.
Such request shall affirm that as of the date thereof the
conditions for the issuance of a Letter of Credit set forth in
Section 6.2 are satisfied. After receipt by the Facing Agent
of such extension request, each such Letter of Credit shall be
automatically extended under the terms and conditions provided
above. Each request for an issuance of, or an amendment to,
a Letter of Credit shall be in the form of Exhibit 2.12
hereto, appropriately completed. The issuance of a Letter of
Credit pursuant to this Section 2.12 shall be deemed (A) to be
a Borrowing for purposes of, without limitation, the
satisfaction of the applicable conditions set forth in
Article VI hereof and (B) to reduce availability under the
Revolving Loan Commitments of the Revolving Lenders (except
for purposes of Section 3.7 with respect to the calculation of
Revolving Loan Commitment Fees) then in effect by an amount
equal to the sum of the aggregate Stated Amounts and
unreimbursed drawings of such Letter of Credit until such time
as such Letter of Credit is no longer outstanding and any
amounts drawn thereunder have been reimbursed. The Borrower,
each Facing Agent and the Revolving Lenders acknowledge the
issuance of the Letters of Credit which are outstanding on the
Restatement Date in accordance with the terms of the Existing
Credit Agreement and agree that such Letters of Credit shall
continue to be outstanding pursuant to the terms and
conditions of this Agreement and the other Loan Documents.
(b) Participation of Revolving Lenders.
Immediately upon the issuance of each Letter of Credit, each
Revolving Lender shall be deemed to, and hereby agrees to,
have irrevocably purchased from the Facing Agent a
participation in such Letter of Credit and drawings thereunder
in an amount equal to such Lender's Revolving Loan Pro Rata
Share of the maximum amount which is or at any time may become
available to be drawn thereunder. The Facing Agent shall give
the Agent written notice of the issuance or amendment of a
Letter of Credit on the date of issuance or amendment thereof
and provide the Agent with a copy of each Letter of Credit and
amendment thereto. The Agent shall give each Revolving
Lender written notice of the issuance and amendment of a
Letter of Credit within five (5) Business Days after each such
Letter of Credit has been issued or amended pursuant to the
terms hereof.
(c) Requests for Issuance. Whenever the Borrower
desires the issuance or extension (other than an automatic
extension) of a Letter of Credit, it shall deliver to the
Facing Agent and the Agent (with a duplicate copy to the
Agent's Letter of Credit department at One Bankers Trust
Plaza, 130 Liberty Street, New York, New York 10006, Attn:
Commercial Loan Division, Standby L/C Unit, 14th Floor for
Standby Letters of Credit and to the Agent's Global Assets
Letter of Credit Division, 130 Liberty Street, New York, New
York 10006, Attn: Trade Letter of Credit, 12th Floor for
Commercial Letters of Credit) a written notice in the form of
Exhibit 2.12 hereto no later than 1:00 p.m., (New York City
time) at least five (5) Business Days (or such shorter period
as may be agreed to by the Facing Agent in any particular
instance) in advance of the proposed date of issuance or
extension. That notice shall specify (i) the proposed date of
issuance or extension (which shall be a Business Day), (ii)
the type of Letter of Credit, (iii) the Stated Amount of the
Letter of Credit, (iv) the expiration date of the Letter of
Credit, (v) the name and address of the beneficiary (which
shall be a Permitted Beneficiary) and (vi) such other
information as the Facing Agent may reasonably request. Prior
to the date of issuance, the Borrower shall specify a precise
description of the documents and the verbatim text of any
certificate to be presented by the beneficiary which, if
presented by the beneficiary on or prior to the expiration
date of the Letter of Credit, would require the Facing Agent
to make payment under the Letter of Credit; provided, however,
that the Facing Agent, in its sole judgment, may require
changes in any such documents and certificates. In
determining whether to pay under any Letter of Credit, the
Facing Agent shall be responsible only to determine that the
documents and certificates required to be delivered under that
Letter of Credit have been delivered and that they comply on
their face with the requirements of that Letter of Credit. In
the event that any terms or conditions of such written notice
of issuance or amendment or any other document delivered in
connection therewith are inconsistent with the terms and
conditions of this Agreement, the terms and conditions of this
Agreement shall control.
(d) Reimbursement of Drawings. In the event of
any request for drawing under any Letter of Credit by the
beneficiary thereof, the Facing Agent shall notify the
Borrower, the Agent and the Revolving Lenders prior to the
date on which the Facing Agent intends to honor such drawing,
and the Borrower shall reimburse the Facing Agent on the day
on which such drawing is honored in an amount in same day
funds equal to the amount of such drawing, provided that,
anything contained in this Agreement to the contrary
notwithstanding, (i) unless the Borrower shall have notified
the Facing Agent and the Agent prior to 1:00 p.m. (New York
City time) one Business Day prior to such drawing that the
Borrower intends to reimburse the Facing Agent for the amount
of such drawing with funds other than the proceeds of
Revolving Loans, the Borrower shall be deemed to have timely
given a Notice of Borrowing to the Agent requesting the
Revolving Lenders to make a Prime Rate Revolving Loan on the
date on which such drawing is honored in an amount equal to
the amount of such drawing, and (ii) subject to satisfaction
or waiver of the conditions specified in Section 6.2, the
Revolving Lenders shall, on the date of such drawing, make a
Prime Rate Revolving Loan in the amount of such drawing, the
proceeds of which shall be made available to the Facing Agent
by the Agent and applied directly by the Facing Agent for the
amount of such drawing; and provided further, that, if for any
reason, proceeds of Revolving Loans are not received by the
Facing Agent on such date in an amount equal to the amount of
such drawing, the Borrower shall reimburse the Facing Agent,
on the Business Day immediately following the date of such
drawing, in an amount in same day funds equal to the excess of
the amount of such drawing over the amount of such Revolving
Loans, if any, which are so received, plus accrued interest on
such amount at the rate set forth in Section 2.12(f)(iii).
(e) Failure to Reimburse. In the event that the
Borrower shall fail to reimburse the Facing Agent as provided
in Section 2.12(d) in an amount equal to the amount of any
drawing honored by the Facing Agent under a Letter of Credit
issued by it, the Facing Agent shall promptly notify the Agent
and each Revolving Lender of the unreimbursed amount of such
drawing and of such Lender's respective participation therein.
Each Revolving Lender shall make available to the Agent for
distribution to the Facing Agent an amount equal to its
respective participation in same day funds at the office of
the Agent specified in such notice not later than 1:00 p.m.
(New York City time) on the Business Day after the date
notified by the Facing Agent. In the event that any Revolving
Lender fails to make available to the Facing Agent the amount
of such Lender's participation in such Letter of Credit as
provided in this Section 2.12(e), the Agent shall be entitled
on behalf of the Facing Agent to recover such amount on demand
from the Lender together with interest at the Federal Funds
Rate until three days after the date on which the Facing Agent
gives notice of payment and at the Prime Rate for each day
thereafter until such amount is paid. Further, such Lender
shall be deemed to have assigned any and all payments made of
principal and interest on its Loans, amounts due with respect
to its Letters of Credit and any other amounts due to it
hereunder to the Facing Agent to fund the amount of any drawn
Letter of Credit which such Lender was required to fund
pursuant to this Section 2.12(e) until such amount has been
funded (as a result of such assignment or otherwise). The
failure of any Lender to make funds available to the Facing
Agent of such amount shall not relieve any other Lender of its
obligation hereunder to make funds available to the Facing
Agent pursuant to this Section 2.12(e). The Agent shall
distribute to each Revolving Lender which has paid all amounts
payable by it under this Section 2.12(e) with respect to any
Letter of Credit issued by the Facing Agent such Lender's
Revolving Loan Pro Rata Share of all payments received by the
Facing Agent from the Borrower in reimbursement of drawings
honored by the Facing Agent under such Letter of Credit when
such payments are received.
(f) Letter of Credit Fees. The Borrower agrees
to pay to the Agent or the Facing Agent, as specified below,
the following amounts with respect to each Letter of Credit
issued by the Facing Agent:
(ii a facing fee to the Facing Agent in an
amount separately agreed to by the Borrower and the
Facing Agent;
(iii a Letter of Credit fee (the "Letter
of Credit Fee") per annum to the Agent equal to the
greater of (A) the applicable Borrowing Margin for
Eurodollar Rate Revolving Loans determined pursuant
to Section 2.8(b) as in effect from time to time
minus one-half percent (.50%) per annum, and (B)
one percent (1.0%) per annum, of the Stated Amount
of such Letter of Credit, payable quarterly in
arrears on April 1, July 1, October 1 and January 1
of each year (or if such day is not a Business Day,
then on and through the immediately preceding
Business Day), on the expiration date and after the
expiration date, on demand, commencing on the first
such day of the issuance of such Letter of Credit,
and calculated on the basis of a 360-day year and
the actual number of days elapsed;
(iiii to the Agent with respect to drawings
made under any such Letter of Credit, interest,
payable on demand, on the amount paid by the Facing
Agent in respect of each such drawing from the date
of the drawing through the date such amount is
reimbursed by the Borrower (including any such
reimbursement out of the proceeds of Revolving
Loans pursuant to Section 2.1(b)) at a rate that is
at all times equal to 2.0% per annum in excess of
the greatest interest rate otherwise payable under
this Agreement for Prime Rate Loans as then in
effect; and
(ivi to the Facing Agent with respect to the
issuance, amendment or transfer of any such Letter
of Credit and each drawing made thereunder,
documentary and processing charges in accordance
with the Facing Agent's standard schedule for such
charges in effect at the time of such issuance,
amendment, transfer or drawing, as the case may be.
Promptly upon receipt by the Agent of any amount
described in clause (ii) or (iii) of this Section 2.12(f), the
Agent shall distribute to each Revolving Lender its Revolving
Loan Pro Rata Share of such amount; provided, however, that
amounts described in clause (iii) above that accrue prior to
the date upon which Revolving Lenders are required (x) to fund
Prime Rate Revolving Loans pursuant to Section 2.12(d)(ii) or
(y) to make available to the Facing Agent the amount of such
Lender's participation in such Letter of Credit, as the case
may be, in respect of any unreimbursed drawings under any
Letter of Credit may be retained by the Agent.
(g) Reimbursement Obligation Unconditional. The
obligation of the Borrower to reimburse the Facing Agent for
drawings made under the Letters of Credit issued by the Facing
Agent shall be unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement under
all circumstances including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of any
Letter of Credit;
(ii) the existence of any claim, set-off, defense or
other right which the Borrower may have at any time
against a beneficiary or any transferee of any Letter of
Credit (or any persons or entities for whom any such
transferee may be acting), the Facing Agent or any other
Person, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated
transaction (including any underlying transaction between
the Borrower or one of its Subsidiaries and the
beneficiary for which the Letter of Credit was procured);
(iii) any draft, demand, certificate or any other
document presented under any Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or
inaccurate in any respect;
(iv) payment by the Facing Agent under any Letter of
Credit against presentation of a demand, draft or
certificate or other document which does not comply with
the terms of such Letter of Credit, provided that such
payment does not constitute gross negligence or willful
misconduct of the Facing Agent;
(v) any other circumstance or happening whatsoever
which is similar to any of the foregoing; or
(vi) the fact that an Event of Default shall have
occurred and be continuing.
(h)Increased Costs. If, after the Closing Date, by
reason of (i) any change in applicable law, regulation, rule,
decree or regulatory requirement or any change in the
interpretation or application by any judicial or regulatory
authority of any law, regulation, rule, decree or regulatory
requirement or (ii) compliance by the Facing Agent, the Agent
or any Revolving Lender with any direction, request or
requirement (whether or not having the force of law) of any
governmental or monetary authority including, without
limitation, Regulation D:
(A) the Facing Agent, the Agent or any Revolving
Lender shall be subject to any tax, levy, charge or
withholding of any nature or to any variation thereof or
to any penalty with respect to the maintenance or
fulfillment of its obligations under this
Section 2.12, whether directly or by such being imposed
on or suffered by the Facing Agent, the Agent or such
Revolving Lender (except for (x) changes in the rate of
tax on, or determined by reference to, the net income or
profits of such Lender imposed by the jurisdiction in
which such Lender's principal office or applicable
lending office is located and (y) United States
withholding taxes, which shall be governed by the
provisions of Section 3.11);
(B) any reserve, deposit or similar requirement of
any Governmental Authority is or shall be applicable,
imposed or modified in respect of any Letters of Credit
issued by the Facing Agent and participated in by the
Revolving Lenders; or
(C) there shall be imposed on the Facing Agent by
any Governmental Authority any other condition regarding
any Letter of Credit issued pursuant to this
Section 2.12;
and the result of the foregoing is to directly or indirectly
increase the cost to the Facing Agent, the Agent or any
Revolving Lender of issuing, making or maintaining any Letter
of Credit, or to reduce the amount receivable in respect
thereof by the Facing Agent, the Agent or any Revolving
Lender, then and in any case the Agent may, notify the
Borrower and the Borrower shall pay on demand such amounts as
the Agent may reasonably specify to be necessary to compensate
the Facing Agent, the Agent or any Revolving Lender for such
additional cost or reduced receipt together with interest on
such amount from the date demanded until payment in full
thereof at a rate equal at all times to the Default Rate. The
determination by the Facing Agent, the Agent or any Revolving
Lender of any amount due pursuant to this Section 2.12(h)
shall be set forth in a certificate delivered to the Agent
(which certificate the Agent shall promptly deliver to the
Borrower) setting forth the calculation thereof in reasonable
detail, and shall, in the absence of manifest error, be final,
conclusive and binding on all of the parties hereto.
(i) Indemnification. In addition to amounts
payable as elsewhere provided in this Section 2.12, the
Borrower hereby agrees to protect, indemnify, pay and hold the
Facing Agent, the Agent and the Revolving Lenders harmless
from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including
reasonable attorneys' fees and allocated costs of internal
counsel) which the Facing Agent, the Agent and the Revolving
Lenders may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of or payment of any drawing
under, any Letter of Credit, other than as a result of the
gross negligence or willful misconduct of the Facing Agent,
the Agent or any Revolving Lender as determined by a court of
competent jurisdiction, or (ii) the failure of the Facing
Agent to honor a drawing under any 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").
(j) Letter of Credit Beneficiaries. As between
(i) the Borrower and (ii) the Facing Agent, the Agent and the
Revolving Lenders, the Borrower assumes all risks of the acts
and omissions of, or misuse of the Letters of Credit issued by
the Facing Agent by, the respective beneficiaries of such
Letters of Credit. In furtherance and not in limitation of
the foregoing, the Facing Agent shall not be responsible: (A)
for 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 such
Letters of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (B) for the validity or sufficiency of
any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason;
(C) for failure of any such Letter of Credit to comply fully
with conditions required in order to draw on such Letter of
Credit; (D) for 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) for errors in interpretation of technical terms;
(F) for any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under any
such Letter of Credit or of the proceeds thereof; (G) for the
misapplication by the beneficiary of any such Letter of Credit
of the proceeds of any drawing under such Letter of Credit;
and (H) for any consequences arising from causes beyond the
control of the Facing Agent including, without limitation, any
Government Acts, in each case other than as a result of the
gross negligence or willful misconduct of the Facing Agent.
None of the above shall affect, impair, or prevent the
vesting of any of the Facing Agent's rights or powers
hereunder.
(k) Facing Agent. In furtherance and extension
and not in limitation of the specific provisions hereinabove
set forth, any action taken or omitted by the Facing Agent
under or in connection with the Letters of Credit issued by it
or the related certificates, if taken or omitted in good faith
and not with gross negligence or willful misconduct as
determined by a court of competent jurisdiction, shall not put
the Facing Agent under any resulting liability to the Borrower
or any Revolving Lender.
(l) No Indemnification for Certain Acts.
Notwithstanding anything to the contrary contained in this
Section 2.12, the Borrower shall have no obligation to
indemnify the Agent, the Facing Agent or any Revolving Lender
in respect of any liability incurred by the Agent, the Facing
Agent or any Revolving Lender arising out of the gross
negligence or willful misconduct of the Agent, the Facing
Agent or any Revolving Lender, as determined by a court of
competent jurisdiction, or out of the wrongful dishonor by the
Facing Agent of a proper demand for payment made under the
Letters of Credit issued by it.
Section 2.13 Increased Costs, Illegality, Etc
(a) In the event that any Lender shall have
determined (which determination shall, absent manifest error,
be final, conclusive and binding upon all parties hereto but,
with respect to clause (i) below, may be made only by the
Agent):
(i) on any Interest Rate Determination Date that,
by reason of any changes arising after the Closing Date
affecting the interbank Eurodollar market, adequate and
fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition
of Eurodollar Rate; or
(ii) at any time, any Lender shall incur increased costs
or reduction in the amounts received or receivable
hereunder with respect to any Eurodollar Rate Loan
because of (x) any change since the Closing Date, in the
case of any Eurodollar Rate Revolving Loan or Eurodollar
Rate Term Loan, since the First Restatement Date, in the
case of any Eurodollar Rate Additional Term Loan, since
the Second Restatement Date, in the case of any
Eurodollar Rate Supplemental Revolving Loan or any
Eurodollar Rate D Tranche Term Loan and since the Third
Restatement Date, in the case of any Eurodollar Rate E
Tranche Term Loan, in any applicable law or governmental
rule, regulation, order, guideline or request (whether or
not having the force of law) or in the interpretation or
administration thereof and including the introduction of
any new law or governmental rule, regulation, order,
guideline or request, such as, for example, but not
limited to: (A) a change in the basis of taxation of
payments to any Lender of the principal of or interest on
the Obligations or any other amounts payable hereunder
(except for (a) changes in the rate of tax on, or
determined by reference to, the net income or profits of
such Lender imposed by the jurisdiction in which its
principal office or applicable lending office is located
and (b) United States withholding taxes, which shall be
governed by the provisions of Section 3.11) or (B) a
change in official reserve requirements (but, in all
events, excluding reserves required under Regulation D to
the extent included in the computation of the Eurodollar
Rate) and/or (y) other circumstances since the Closing
Date, in the case of any Revolving Lender or Term Lender,
since the First Restatement Date, in the case of any
Additional Lender, since the Second Restatement Date, in
the case of any Supplemental Revolving Lender or any D
Tranche Lender and since the Third Restatement Date, in
the case of any E Tranche Lender, affecting such Lender
or the interbank Eurodollar market or the position of
such Lender in such market (excluding, however,
differences in a Lender's cost of funds from those of the
Agent which are solely the result of credit differences
between such Lender and the Agent); or
(iii) at any time, that the making or continuance of
any Eurodollar Rate Loan has been made (x) unlawful by
any law or governmental rule, regulation or order, (y)
impossible by compliance by any Lender in good faith with
any governmental request (whether or not having force of
law) or (z) impracticable as a result of a contingency
occurring after the Closing Date, in the case of any
Eurodollar Rate Revolving Loan or Eurodollar Rate Term
Loan, since the First Restatement Date, in the case of
any Eurodollar Rate Additional Term Loan, since the
Second Restatement Date, in the case of any Eurodollar
Rate Supplemental Revolving Loan or any Eurodollar Rate
D Tranche Term Loan, and since the Third Restatement
Date, in the case of any Eurodollar Rate E Tranche Term
Loan, which materially and adversely affects the
interbank Eurodollar market in general;
then, and in any such event, such Lender (or the Agent, in the
case of clause (i) above) shall promptly give notice (by
telephone confirmed in writing) to the Borrower and, except in
the case of clause (i) above, to the Agent of such
determination (which notice the Agent shall promptly transmit
to each of the other Lenders). Thereafter (x) in the case of
clause (i) above, Eurodollar Rate Loans shall no longer be
available until such time as the Agent notifies the Borrower
and the Lenders that the circumstances giving rise to such
notice by the Agent no longer exist, and any Notice of
Borrowing or Notice of Conversion or Continuation given by the
Borrower with respect to Eurodollar Rate Loans which have not
yet been incurred (including by way of conversion) shall be
deemed rescinded by the Borrower, (y) in the case of clause
(ii) above, the Borrower shall pay to such Lender, upon
written demand therefore, such additional amounts (in the form
of an increased rate of, or a different method of calculating,
interest or otherwise as such Lender shall determine) as shall
be required to compensate such Lender for such increased costs
or reductions in amounts received or receivable hereunder (a
written notice as to the additional amounts owed to such
Lender, showing the basis for the calculation thereof in
reasonable detail, submitted to the Borrower by such Lender
shall, absent manifest error, be final and conclusive and
binding on all the parties hereto; provided, however, that the
failure to give any such notice (unless the respective Lender
has intentionally withheld or delayed such notice, in which
case the respective Lender shall not be entitled to receive
additional amounts pursuant to this Section 2.13(a)(y) for
periods occurring prior to the 180th day before the giving of
such notice) shall not release or diminish the Borrower's
obligations to pay additional amounts pursuant to this Section
2.13(a)(y), and (z) in the case of clause (iii) above, the
Borrower shall take one of the actions specified in Section
2.13(b) as promptly as possible and, in any event, within the
time period required by law. In determining such additional
amounts pursuant to clause (y) of the immediately preceding
sentence, each Lender shall act reasonably and in good faith
and will, to the extent the increased costs or reductions in
amounts receivable relate to such Lender's loans in general
and are not specifically attributable to a Loan hereunder, use
averaging and attribution methods which are reasonable and
which cover all loans similar to the Loans made by such Lender
whether or not the loan documentation for such other loans
permits the Lender to receive increased costs of the type
described in this Section 2.13(a).
(b) At any time that any Eurodollar Rate Loan is
affected by the circumstances described in Section 2.13(a)(ii)
or (iii), the Borrower may (and in the case of a Eurodollar
Rate Loan affected by the circumstances described in Section
2.13(a)(iii) shall) either (i) if the affected Eurodollar Rate
Loan is then being made initially or pursuant to a conversion,
by giving the Agent telephonic notice (confirmed in writing)
on the same date that the Borrower was notified by the
affected Lender or the Agent pursuant to Section 2.13(a)(ii)
or (iii), cancel the respective Borrowing, or (ii) if the
affected Eurodollar Rate Loan is then outstanding, upon at
least three Business Days' written notice to the Agent,
require the affected Lender to convert such Eurodollar Rate
Loan into a Prime Rate Loan, provided that if more than one
Lender is affected at any time, then all affected Lenders must
be treated the same pursuant to this Section 2.13(b).
(c) Capital Requirements. If at any time after
the Closing Date, in the case of any Eurodollar Rate Revolving
Loan or Eurodollar Rate Term Loan, after the First Restatement
Date, in the case of any Eurodollar Rate Additional Term Loan,
after the Second Restatement Date, in the case of any
Eurodollar Rate Supplemental Revolving Loan or any Eurodollar
Rate D Tranche Term Loan, and after the Third Restatement
Date, in the case of any Eurodollar Rate E Tranche Term Loan,
any Lender determines that the introduction of or any change
in any applicable law or governmental rule, regulation, order,
guideline or request (whether or not having the force of law)
concerning capital adequacy, or any change in interpretation
or administration thereof by any Governmental Authority,
central bank or comparable agency, will have the effect of
increasing the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such
Lender based on the existence of such Lender's Commitments or
Loans hereunder or its obligations hereunder, then the
Borrower shall pay to such Lender, upon its written demand
therefor, such additional amounts as shall be required to
compensate such Lender or such other corporation for the
increased cost to such Lender or such other corporation or the
reduction in the rate of return to such Lender or such other
corporation as a result of such increase of capital. In
determining such additional amounts, each Lender will act
reasonably and in good faith and will use averaging and
attribution methods which are reasonable and which will, to
the extent the increased costs or reduction in the rate of
return relates to such Lender's commitments or obligations in
general and are not specifically attributable to the
Commitments, Loans and obligations hereunder, cover all
commitments and obligations similar to the Commitments, Loans
and obligations of such Lender hereunder whether or not the
loan documentation for such other commitments or obligations
permits the Lender to make the determination specified in this
Section 2.13(c), and such Lender's determination of
compensation owing under this Section 2.13(c) shall, absent
manifest error, be final, conclusive and binding on all the
parties hereto. Each Lender, upon determining that any
additional amounts will be payable pursuant to this Section
2.13(c), will give prompt written notice thereof to the Agent
and the Borrower, which notice shall show the basis for
calculation of such additional amounts in reasonable detail,
although the failure to give any such notice (unless the
respective Lender has intentionally withheld or delayed such
notice, in which case the respective Lender shall not be
entitled to receive additional amounts pursuant to this
Section 2.13(c) for periods occurring prior to the 180th day
before the giving of such notice) shall not release or
diminish any of the Borrower's obligations to pay additional
amounts pursuant to this Section 2.13(c). The obligations of
the Borrower under this Section 2.13(c) shall survive payment
in full of the Obligations and termination of this Agreement.
Section 2.14 Assignment of Commitments Under
Certain Circumstances. (a) If any Lender is owed increased
costs under Section 2.13(a)(ii) or (iii), Section 2.13(c),
Section 2.12(h) or Section 3.11 materially in excess of those
of the other Lenders, the Borrower shall have the right, but
not the obligation, at its own expense (including with respect
to the processing and recordation fee referred to in Section
9.12(d)) upon notice to such Lender and the Agent, if no
Unmatured Event of Default or Event of Default then exists, to
replace such Lender (the "Replaced Lender") with one or more
other Eligible Assignee or Assignees (collectively, the
"Replacement Lender") reasonably acceptable to the Agent,
provided that (i) at the time of any replacement pursuant to
this Section 2.14, the Replacement Lender shall enter into one
or more Assignment Agreements pursuant to which the
Replacement Lender shall acquire all of the Commitments and
outstanding Loans of, and participation in Letters of Credit
and Swing Line Loans by, the Replaced Lender and all rights
and obligations under any participation agreements to which
the Replaced Lender is a party with respect to the L/C
Agreement, and (ii) all obligations of the Borrower owing to
the Replaced Lender (including, without limitation, such
increased costs and excluding those specifically described in
clause (i) above in respect of which the assignment purchase
price has been, or is concurrently being paid) shall be paid
in full to such Replaced Lender concurrently with such
replacement. Upon the execution of the respective assignment
documentation and the payment of amounts referred to in
clauses (i) and (ii) above, the Replacement Lender shall
become a Lender hereunder and the Replaced Lender shall be
released from its obligations under the Loan Documents and
shall cease to constitute a Lender hereunder, except with
respect to indemnification provisions under this Agreement,
which shall survive as to such Replaced Lender.
Notwithstanding anything to the contrary contained above,
neither the Facing Agent nor the Swing Line Lender may be
replaced hereunder at any time while it has Letters of Credit
or Swing Line Loans, respectively, outstanding hereunder
unless arrangements satisfactory to the Facing Agent or Swing
Line Lender (including the furnishing of a standby letter of
credit in form and substance, and issued by an issuer
satisfactory to the Facing Agent or the furnishing of
collateral of a kind, in amounts and pursuant to arrangements
satisfactory to the Facing Agent) have been made with respect
to such outstanding Letters of Credit or Swing Line Loans.
(b) If, in connection with any proposed amendment,
modification, supplement, termination or waiver of or to any
of the provisions of this Agreement as contemplated (i) by
clauses (i) through (vi), inclusive, of the first proviso to
the first sentence of Section 9.2, (ii) by clauses (i) or (ii)
of the first sentence of Section 9.3, (iii) by clauses (i)
through (iv) of the second sentence of Section 9.3, (iv) by
clauses (i) through (iv) of the third sentence of Section 9.3,
(v) by clauses (i) through (iv) of the fourth sentence of
Section 9.3 or (vi) by clauses (i) through (iv) of the fifth
sentence of Section 9.3, the consent of the Required Lenders
is obtained but the consent of one or more of such other
Lenders whose consent is required is not obtained, then the
Borrower shall have the right, but not the obligation, at its
own expense (including with respect to the processing and
recordation fee referred to in Section 9.12(d)) upon notice to
such Lender and the Agent, so long as all non-consenting
Lenders whose individual consent is required are treated as
described below, to replace each such non-consenting Lender or
Lenders (or, at the option of the Borrower if the respective
Lender's consent is required with respect to less than all
Loans, to replace only the respective Loans of the respective
non-consenting Lender which gave rise to the need to obtain
such Lender's individual consent) with one or more Replacement
Lenders pursuant to Section 2.14(a) so long as at the time of
such replacement, each such Replacement Lender consents to the
proposed amendment, modification, supplement, waiver,
discharge, termination or other change.
Section 2.15 Change of Lending Office. Each
Lender agrees that it will use reasonable efforts to designate
an alternate Lending Office with respect to any of its
Eurodollar Rate Loans affected by the matters or circumstances
described in Section 2.13 to reduce the liability of the
Borrower or avoid the results described thereunder, so long as
such designation is not financially disadvantageous to such
Lender as determined by such Lender in its sole discretion and
will not result in the imposition upon the Borrower of an
increased liability for Taxes pursuant to Section 2.13(a) or
3.11(a).
Section 2.16 Funding Losses. The Borrower shall
compensate each Lender, upon its written request (which
request shall set forth the basis for requesting such amounts
in reasonable detail and which request shall, absent manifest
error, be final, conclusive and binding upon all of the
parties hereto), for all losses, expenses and liabilities
(including, without limitation, any interest paid by such
Lender to lenders of funds borrowed by it to make or carry its
Eurodollar Rate Loans to the extent not recovered by such
Lender in connection with the liquidation or re-employment of
such funds and including the compensation payable by such
Lender to a Person to which the Lender has participated all or
a portion of such Borrowing) and any loss sustained by such
Lender in connection with the good faith liquidation or good
faith re-employment of such funds (including, without
limitation, a return on such liquidation or re-employment that
would result in such Lender receiving less than it would have
received had such Eurodollar Rate Loan remained outstanding
until the last day of the Interest Period applicable to such
Eurodollar Rate Loans) which the Lender may sustain as a
result of: (i) for any reason (other than a default by such
Lender or the Agent) a Borrowing of, or conversion from or
into or continuation of, Eurodollar Rate Loans does not occur
on a date specified therefor in a Notice of Borrowing or
Notice of Conversion or Continuation (whether or not
withdrawn); (ii) any payment, prepayment or conversion or
continuation of any of its Eurodollar Rate Loans occurring for
any reason whatsoever on a date which is not the last day of
an Interest Period applicable thereto; (iii) any repayment of
any of its Eurodollar Rate Loans not being made on the date
specified in a notice of payment given by the Borrower; or
(iv) (A) any other failure by the Borrower to repay its
Eurodollar Rate Loans when required by the terms of this
Agreement or (B) an election made by the Borrower pursuant to
Section 2.14. A written notice as to additional amounts owed
such Lender under this Section 2.16 and delivered to the
Borrower and the Agent by such Lender shall, absent manifest
error, be final, conclusive and binding for all purposes.
Section 2.17 Pro Rata Borrowings. All Borrowings
of Term Loans, Additional Term Loans, Revolving Loans,
Supplemental Revolving Loans, D Tranche Term Loans and E
Tranche Term Loans under this Agreement shall be loaned by the
Term Lenders, Additional Lenders, Revolving Lenders,
Supplemental Revolving Lenders, D Tranche Lenders and E
Tranche Lenders, respectively, pro rata on the basis of their
respective Term Loan Pro Rata Shares, Additional Term Loan Pro
Rata Shares, Revolving Loan Pro Rata Shares, Supplemental
Revolving Loan Pro Rata Shares, D Tranche Term Loan Pro Rata
Shares and E Tranche Term Loan Pro Rata Shares, as the case
may be. No Lender shall be responsible for any default by any
other Lender in its obligation to make Loans hereunder and
each Lender shall be obligated to make the Loans provided to
be made by it hereunder, regardless of the failure of any
other Lender to fulfill its Commitment hereunder. Except with
respect to the initial Borrowing of Supplemental Revolving
Loans, if any, which may be made on the Second Restatement
Date pursuant to Section 6.3(k) and with respect to any
borrowings of Revolving Loans for the purpose of repayment of
Swing Line Loans pursuant to Section 2.11(c), all Borrowings
of Revolving Loans and Supplemental Revolving Loans shall be
made on a proportionate basis such that after giving effect to
such Borrowings and any proposed repayment of any Obligations
to be made on the proposed borrowing date of which the
Borrower has notified the Agent, the Revolving Loan
Availability Ratio and the Supplemental Revolving Loan
Availability Ratio are equalized as nearly as possible. Upon
receipt of a Notice of Borrowing, the Agent shall determine
such proportionate amounts of Revolving Loans and Supplemental
Revolving Loans to be borrowed and shall notify the Revolving
Lenders, Supplemental Revolving Lenders and the Borrower as
provided in Section 2.5. The determination by the Agent shall
be made at the time it receives a Notice of Borrowing, based
on the information the Borrower has provided to the Agent at
the time it delivers such Notice of Borrowing with respect to
anticipated repayments of Obligations, and shall be final,
conclusive and binding on all parties hereto.
ARTICLE III
TERMINATION OF COMMITMENTS, PREPAYMENTS AND FEES
Section 3.1 Mandatory Revolving Loan,
Supplemental Revolving Loan and Swing Line Loan Prepayments
and Commitment Reductions.
(a) If at any time the sum of (i) the aggregate
principal amount of all Revolving Loans and Swing Line Loans
outstanding plus (ii) the aggregate amount of L/C Obligations
outstanding exceeds the aggregate of the Revolving Loan
Commitments of the Revolving Lenders then in effect, the
Borrower shall immediately prepay the Revolving Loan
Obligations in an aggregate principal amount equal to such
excess together with any accrued but unpaid interest with
respect to such excess. If at any time the aggregate
principal amount of all Swing Line Loans outstanding exceeds
the Swing Line Commitment of the Swing Line Lender then in
effect, the Borrower shall immediately prepay the Swing Line
Loan Obligations in an aggregate principal amount equal to
such excess together with any accrued but unpaid interest with
respect to such excess. If at any time the aggregate
principal amount of all Supplemental Revolving Loans
outstanding for all Supplemental Revolving Lenders exceeds the
aggregate of the Supplemental Revolving Loan Commitments of
the Supplemental Revolving Lenders then in effect, the
Borrower shall immediately prepay the Supplemental Revolving
Loan Obligations in an aggregate principal amount equal to
such excess together with any accrued but unpaid interest with
respect to such excess.
(b) If an Event of Default shall have occurred and
the Agent shall have notified the Borrower of the election of
the Required Lenders to take any action specified in Section
7.2, the Revolving Loan Commitment of each Revolving Lender,
the Swing Line Commitment of the Swing Line Lender and the
Supplemental Revolving Loan Commitment of each Supplemental
Revolving Lender shall, subject to reinstatement pursuant to
Section 7.2, be automatically reduced to $0 without any
action on the part of or the giving of notice to the Borrower
by any Lender.
Section 3.2 Voluntary Prepayments.
(a) The Borrower may repay Revolving Loans, Terms
Loans, Additional Term Loans, Swing Line Loans, Supplemental
Revolving Loans, D Tranche Term Loans and E Tranche Term Loans
in whole at any time or in part from time to time, without
penalty or premium (except as provided in Section 3.2(b)), on
the following terms and conditions: (i) the Borrower shall
give the Agent written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay the Loans, the
amount of such prepayment and, in the case of Eurodollar Rate
Loans, the specific Borrowing or Borrowings pursuant to which
made, which notice shall be given by Borrower at least one
Business Day prior to the date of such prepayment (or by 11:00
a.m. (New York City time) on the date of prepayment in the
case of a prepayment of Swing Line Loans) and which notice
shall promptly be transmitted by the Agent to each of the
Lenders; (ii) each partial prepayment of any Borrowing (other
than a Borrowing of Swing Line Loans) shall be in an aggregate
principal amount of at least $5,000,000 and in integral
multiples of $1,000,000 above such minimum and each partial
prepayment of a Swing Line Loan shall be an aggregate
principal amount of at least $1,000,000 and in integral
multiples of $1,000,000 above such minimum, provided that no
partial prepayment of Eurodollar Rate Loans made pursuant to
a single Borrowing under the Term Loan, the Additional Term
Loan, the Revolving Loan, the Supplemental Revolving Loan, the
D Tranche Term Loan or the E Tranche Term Loan shall reduce
the outstanding Loans made pursuant to such Borrowing to an
amount less than the minimum borrowing amount as set forth in
Section 2.4; (iii) any repayment of a Eurodollar Rate Loan on
a day other than the last day of an Interest Period applicable
thereto shall be subject to the provisions of Section 2.16;
(iv) except as otherwise provided in Section 3.6(f), any
voluntary prepayment of the Term Loan, Additional Term Loan,
D Tranche Term Loan and E Tranche Term Loan must be made on a
proportionate basis based on the respective aggregate
outstanding principal amounts of such Loans, provided that
prior to September 30, 1997, any prepayment of the Term Loan,
Additional Term Loan and E Tranche Term Loan may be made on a
proportionate basis based solely on the respective aggregate
outstanding principal amounts of such Loans and without making
any proportionate prepayment of the D Tranche Term Loan; (v)
prepayments of Revolving Loans, Supplemental Revolving Loans,
Term Loans, Additional Term Loans, D Tranche Term Loans and E
Tranche Term Loans shall be applied pro rata among the
Revolving Lenders, Supplemental Revolving Lenders, Term
Lenders, Additional Lenders, D Tranche Lenders and E Tranche
Lenders, respectively, based on their respective Revolving
Loan Pro Rata Shares, Supplemental Revolving Loan Pro Rata
Shares, Term Loan Pro Rata Shares, Additional Term Loan Pro
Rata Shares, D Tranche Term Loan Pro Rata Shares and E Tranche
Term Loan Pro Rata Shares, as the case may be; (vi) in the
case of a voluntary prepayment of the Term Loans, Additional
Term Loans, D Tranche Term Loans and E Tranche Term Loans as
to which the Borrower requests a waiver pursuant to Section
3.6(f), the notice of prepayment shall be given at least ten
(10) Business Days prior to the date of such proposed
prepayment and shall, subject to Section 3.6(f), be
irrevocable; (vii) all prepayments of D Tranche Term Loans
shall be subject to Section 3.2(b); and (viii) voluntary
repayments of Revolving Loans and Supplemental Revolving Loans
shall be made in conjunction with one another such that after
giving effect to such repayments and any other proposed
repayments of Obligations to be made on the proposed repayment
date of which the Borrower has notified the Agent, the
Revolving Loan Availability Ratio and the Supplemental
Revolving Loan Availability Ratio are equalized as nearly as
possible, provided that, prior to any acceleration of the
Obligations pursuant to Section 7.2, the Agent shall apply
repayments without regard to such ratios to repay Eurodollar
Rate Loans coming due to the extent necessary to avoid or
minimize breakage costs and expenses imposed under Section
2.16. Upon receipt by the Agent of any notice provided by the
Borrower to voluntarily repay any Revolving Loans and
Supplemental Revolving Loans, the Agent shall determine the
relative amounts of Revolving Loans and/or Swing Line Loans to
be repaid and shall notify the Borrower as to such amounts.
The determination by the Agent shall be made at the time it
receives a notice of a proposed repayment of Revolving Loans
and/or Supplemental Revolving Loans, based on the information
the Borrower has provided to the Agent at the time it receives
such notice with respect to anticipated repayments of
Obligations, and shall be final, conclusive and binding on all
parties hereto. The notice provisions, the provisions with
respect to the minimum amount of any prepayment and the
provisions requiring prepayments in integral multiples above
such minimum amount of this Section 3.2 are for the benefit of
the Agent and may be waived unilaterally by the Agent.
(b) In the event that the Borrower voluntarily
prepays all or any portion of the D Tranche Term Loan pursuant
to Section 3.2(a) on or prior to September 30, 1997, the
Borrower shall, together with any such prepayment, pay to the
Agent for pro rata distribution to the D Tranche Lenders based
on their respective D Tranche Term Loan Pro Rata Shares, a
prepayment fee as additional compensation, and not as a
penalty, equal to (i) one percent (1.0%) of the principal
amount of D Tranche Term Loans repaid during the period from
the Restatement Date to and including March 31, 1997 and (ii)
one-half of one percent (.50%) of the principal amount of D
Tranche Term Loans repaid during the period from April 1, 1997
to and including September 30, 1997.
Section 3.3 Voluntary Commitment Reductions.
After the Restatement Date, the Borrower shall have the right,
upon at least five (5) Business Days' prior written notice to
the Agent and the Revolving Lenders, in the case of any
reduction in the Revolving Loan Commitments, and the
Supplemental Revolving Lenders, in the case of any reduction
in the Supplemental Revolving Loan Commitments, given prior to
10:00 a.m. (New York City time) on the fifth Business Day
preceding the proposed reduction date, without premium or
penalty, to permanently reduce or terminate the unutilized
portion of the aggregate of the Total Revolving Loan
Commitments or Total Supplemental Revolving Loan Commitments
in whole at any time or in part from time to time, in a
minimum aggregate amount of $5,000,000 (unless the Total
Revolving Loan Commitments or Total Supplemental Revolving
Loan Commitments, as the case may be, at such time is less
than $10,000,000, in which case, in an amount equal to the
Total Revolving Loan Commitments or Total Supplemental
Revolving Loan Commitments at such time) and, if such
reduction is greater than $5,000,000, in integral multiples of
$1,000,000 above such minimum; provided, however, that (i) no
such reduction or termination of the Revolving Loan
Commitments shall be permitted if, after giving effect thereto
and to any prepayment or payment of the Revolving Loans and
Swing Line Loans on the proposed reduction date, the then
outstanding aggregate principal amount of Revolving Loans and
Swing Line Loans plus the then aggregate amount of L/C
Obligations outstanding would exceed the aggregate Revolving
Loan Commitments of the Revolving Lenders then in effect, (ii)
no such reduction or termination of the Supplemental Revolving
Loan Commitments shall be permitted if, after giving effect
thereto and to any prepayment or payment of the Supplemental
Revolving Loans on the proposed reduction date, the aggregate
principal amount of Supplemental Revolving Loans outstanding
for all Supplemental Revolving Lenders would exceed the
aggregate Supplemental Revolving Loan Commitments of the
Supplemental Revolving Lenders then in effect, and (iii) all
prepayments of Eurodollar Rate Loans shall be subject to
Section 2.16. Any such reduction of the Total Revolving Loan
Commitments and the Total Supplemental Revolving Loan
Commitments shall be made in conjunction with one another on
a proportionate basis (with the $5,000,000 minimum amount
specified in the preceding sentence applying to the aggregate
amount of Revolving Loan Commitments and Supplemental
Revolving Loan Commitments being reduced) and any such
reduction shall apply proportionately to the Revolving Loan
Commitments of the Revolving Lenders and the Supplemental
Revolving Loan Commitments of the Supplemental Revolving
Lenders based on such Lender's Revolving Loan Pro Rata Share
or Supplemental Revolving Loan Pro Rata Share, as applicable.
Simultaneously with each reduction or termination of the
Revolving Loan Commitments, the Borrower shall pay to the
Agent for the account of each Revolving Lender the Revolving
Loan Commitment Fee accrued on the amount of the Revolving
Loan Commitments so reduced or terminated through the date
thereof. Simultaneously with each reduction or termination of
the Supplemental Revolving Loan Commitments, the Borrower
shall pay to the Agent for the account of each Supplemental
Revolving Lender the Supplemental Revolving Loan Commitment
Fee accrued on the amount of the Supplemental Revolving Loan
Commitments so reduced or terminated through the date thereof.
Section 3.4 Mandatory Prepayments. Subject in
each case to the provisions of Section 3.5:
(a) Prepayments From Excess Cash Flow. Within
five (5) Business Days after the delivery to the Agent of any
Excess Cash Flow Schedule pursuant to Section 5.1.1(b) or
5.1.1(c), beginning with the Excess Cash Flow Schedule
delivered in 1996 with respect to the Fiscal Quarter ending
June 30, 1996, the Borrower shall (i) with respect to Excess
Cash Flow reported for the Fiscal Quarters ending June 30,
1996 to and including September 30, 1997, prepay the Term Loan
and the Additional Term Loan and (ii) with respect to Excess
Cash Flow reported for all Fiscal Quarters ending after
September 30, 1997, prepay the Term Loan, the Additional Term
Loan, the D Tranche Term Loan and the E Tranche Term Loan, in
each case in accordance with Section 3.6 if the Excess Cash
Flow disclosed on such Excess Cash Flow Schedule with respect
to the preceding Fiscal Quarter is positive (but excluding the
first $37,500,000 of positive Excess Cash Flow in the last
three Fiscal Quarters in Fiscal Year 1996 and, thereafter,
excluding the first $50,000,000 of positive Excess Cash Flow
in any Fiscal Year). Any mandatory prepayment pursuant to
this Section 3.4(a) shall, subject to Section 3.6(f), be in an
amount equal to (A)(1) the amount of such positive Excess Cash
Flow (but excluding the first $37,500,000 of positive Excess
Cash Flow in the last three Fiscal Quarters in Fiscal Year
1996 and, thereafter, excluding the first $50,000,000 of
positive Excess Cash Flow in any Fiscal Year) multiplied by
(2) 50% or such lesser Excess Cash Flow Percentage as may be
in effect at such time, less (B) the amount of any voluntary
prepayment of the Term Loan, the Additional Term Loan, the D
Tranche Term Loan and the E Tranche Term Loan made during the
Fiscal Quarter in which such Excess Cash Flow is generated;
provided, however, that solely with respect to the calculation
of any mandatory prepayment pursuant to this Section 3.4(a)
for the Fiscal Quarters ending June 30, 1996 to and including
September 30, 1997, the portion of Excess Cash Flow that would
have been allocated to prepay the D Tranche Term Loan or the
E Tranche Term Loan if the D Tranche Term Loan or the E
Tranche Term Loan were required to be prepaid together with
the Term Loan and the Additional Term Loan shall be deemed to
be Waived Proceeds.
The Borrower and the Term Lenders acknowledge the
waiver, pursuant to Section 3.6(f) of the Existing Credit
Agreement, by the Term Lenders of their right to receive
mandatory prepayments of the Term Loan that would otherwise
have become due under Section 3.4(a) of the Existing Credit
Agreement with respect to Excess Cash Flow for the Fiscal
Quarters ending June 30, 1995 through and including March 31,
1996, all pursuant to the terms and conditions of Section 3 of
that certain Third Amendment of Credit Agreement and Waiver
Request dated as of June 30, 1995 by and among the Borrower,
the Agent, the Co-Agents and the Existing Lenders. The
Borrower, the Agent, the Co-Agents and the Lenders hereby
agree that upon the funding of the Additional Term Loan the
amount of waived Excess Cash Flow prepayments equal to the sum
of (a) the product of (i) the amount of positive Excess Cash
Flow in such Fiscal Quarters (but excluding the first
$50,000,000 of positive Excess Cash Flow in such Fiscal
Quarters) multiplied by (ii) 50%, minus (b) the amount of any
voluntary prepayments of the Term Loan made during such Fiscal
Quarters may be used for Permitted Uses (including Permitted
Uses described in clauses (ii) and (iii) of the definition of
"Permitted Uses").
(b) Prepayments From Incurrence of Indebtedness.
If the Borrower or any Wholly-Owned Subsidiary of the
Borrower receives any proceeds (whether in cash or marketable
securities) attributable to the issuance and sale or other
disposition of any Indebtedness for Money Borrowed described
in clause (i) of the definition of Indebtedness for Money
Borrowed of the Borrower or any Wholly-Owned Subsidiary of the
Borrower or any rights to acquire any such Indebtedness for
Money Borrowed described in clause (i) of the definition of
Indebtedness for Money Borrowed (other than (i) Indebtedness
permitted by Sections 5.2.2(a)-(f), (h)-(k), (m)-(o) and (q)-
(z), (ii) proceeds received by a Person which cannot be
remitted to the Borrower or a Subsidiary of the Borrower as a
result of any legal or contractual restriction applicable to
such Person existing on the Closing Date and identified on
Schedule 3.4 hereto and any legal or contractual restriction
contained in any Indebtedness which refinances any
Indebtedness referenced on Schedule 3.4 provided that the
terms thereof are no more onerous to the Borrower or any
Subsidiary than those existing on the Closing Date, (iii)
Indebtedness permitted by Section 5.2.2(p) which is not by the
terms of such Section required to be used to prepay the
Loans), then the Borrower shall prepay the Term Loan, the
Additional Term Loan, the D Tranche Term Loan and the E
Tranche Term Loan promptly (but in any event within five
Business Days after receipt of such proceeds) to the extent of
all of such proceeds from debt or debt securities (net of any
costs or expenses incurred in connection with the issuance or
sale or other disposition thereof).
(c) Prepayments From Asset Sales. If the Borrower
or any Wholly-Owned Subsidiary of the Borrower receives any
Material Sale Proceeds, then the Borrower shall prepay the
Obligations, to the extent of such proceeds, promptly (but in
any event within five Business Days) after the first date on
which such Persons have received Material Sale Proceeds
totaling an aggregate amount of $5 million or more and within
five Business Days after each date thereafter when such
Persons have received additional Material Sale Proceeds
totaling an aggregate of $5 million or more; provided,
however, that during the pendency of an Event of Default all
Material Sales Proceeds shall be payable upon the demand of
the Agent. "Material Sale Proceeds" means, without
duplication, (i) the cash or cash equivalent proceeds or
marketable securities resulting from the sale, issuance or
other disposition (including, without limitation, by a sale-
leaseback transaction) of (A) any assets, capital stock of any
Subsidiary or other tangible or intangible property or rights
(collectively, "Assets") not constituting CP&L Property,
Monetized Assets, Collateral or Mortgaged Property (unless
Substitute Collateral has been provided pursuant to Section
9.13(c)) and having an aggregate fair market value in excess
of $1 million for each separate transaction or series of
related transactions involving the same seller, (B) any
Collateral or Mortgaged Property (and including any Net Awards
and Net Proceeds required to be paid to the Agent pursuant to
the terms of the Mortgages) or (C) any securities, instruments
or other rights of any kind which are convertible into,
exchangeable for or otherwise entitled to receive any
Monetized Assets, less (ii) the amount of income taxes
directly payable and any direct costs or expenses incurred in
connection with such sale or disposition (provided that such
income taxes, costs and expenses attributable to any
subsequent conversion, exchange or other receipt of Monetized
Assets shall not be deducted for purposes of determining
Material Sale Proceeds), less (iii) the amount of indebtedness
secured by such Assets that are sold or otherwise disposed of,
which indebtedness is required to be and is repaid upon such
sale (but excluding the Loans and the indebtedness required to
be repaid upon any subsequent conversion, exchange or other
receipt of Monetized Assets), but Material Sales Proceeds
shall not include: (A) proceeds of inventory sold or
otherwise disposed of in the ordinary course of business; (B)
subject to the giving of notice to and deposit of funds with
the Agent as provided below, proceeds of Assets not
constituting (1) Monetized Assets or (2) Collateral or
Mortgaged Property (unless Substitute Collateral has been
provided pursuant to Section 9.13(c)), sold or exchanged to
the extent such proceeds are utilized in connection with the
replacement thereof within 180 days of the sale or exchange of
such assets; (C) proceeds of Permitted Investments; (D)
proceeds received by a Person which cannot be remitted to the
Borrower or a Subsidiary of the Borrower as a result of any
legal or contractual restriction applicable to such Person
existing on the Closing Date and identified on Schedule 3.4
hereto and any legal or contractual restriction contained in
any Indebtedness which refinances any Indebtedness referenced
on Schedule 3.4 provided that the terms thereof are no more
onerous to the Borrower or any Subsidiary than those existing
on the Closing Date; (E) proceeds resulting from the payment
of insurance with respect to such Assets provided such
proceeds are used for the replacement of such Assets or are
required to be applied to a purpose specified in a legal
instrument applicable to such Assets or from the payment of
business interruption insurance; (F) proceeds resulting from
the sale or other disposition of Assets between the Borrower
and any Wholly-Owned Subsidiary (other than a Restricted
Subsidiary) of the Borrower or between any Wholly-Owned
Subsidiaries (other than Restricted Subsidiaries) of the
Borrower; (G) up to an aggregate amount of $300 million (such
amount being referred to herein as the "Excluded Sale Proceeds
Basket") of net proceeds from the sale or other disposition of
Assets not constituting (1) Abitibi Shares, (2) the capital
stock of Stone Snowflake as permitted by Section 5.2.12(vi)
and (3) Collateral or Mortgaged Property or Assets
constituting Collateral or Mortgaged Property for which
Substitute Collateral has been provided pursuant to Section
9.13(c), designated by the Borrower in writing to the Agent as
being excluded from the prepayment requirements of this
Section (any amount so designated being "Excluded Sale
Proceeds"), with the Excluded Sale Proceeds Basket being
subject to reduction by the amount of the Abitibi 25% Portion;
(H) proceeds from the cancellation of the German Financing
Intercompany Note upon the consummation of the German
Financing Subsidiary Transfer; (I) proceeds from any Abitibi
Sale/Monetization; (J) proceeds from the sale or other
disposition of any Assets constituting collateral which
secures the Indebtedness under the First Mortgage Note
Documents; or (K) proceeds from the sale or other disposition
of any Assets constituting collateral which secures the
Indebtedness incurred pursuant to Section 5.2.2.(x) but only
to the extent such proceeds are promptly used to repay such
Indebtedness. The cash, cash equivalent proceeds or
marketable securities resulting from the repayment or other
liquidation of the investments permitted by Section 5.2.7(i)
shall be included within the meaning of "Material Sale
Proceeds." Proceeds described in subpart (B) of the exclusion
from the definition of Material Sale Proceeds shall be so
excluded only if, within five (5) Business Days after such
proceeds are received, the Borrower gives the Agent written
notice of its intent to utilize such proceeds for replacement
purposes and (to the extent such proceeds have not already
been so utilized) delivers such proceeds to the Agent to be
held in an account as security for the Obligations pursuant to
documentation satisfactory to the Agent. During the period
ending on the 180th day after receipt of such proceeds by the
Borrower or one of its Subsidiaries, the Borrower may, so long
as no Event of Default or Unmatured Event of Default shall
have occurred and be continuing, withdraw funds from such
account to pay or reimburse itself for such replacement costs.
Funds in such account shall be held and invested in the
manner prescribed for Deposited Monies pursuant to Section
3.5. All amounts remaining in such account at the conclusion
of such 180 day period shall, subject to Section 3.6(f), be
applied on such date as a prepayment pursuant to this Section
and Sections 3.5 and 3.6 as if constituting Material Sale
Proceeds received on such date.
(d) Prepayment From Abitibi Sale/Monetization. If
any Abitibi Sale/Monetization is consummated, the Borrower
shall as soon as practicable (but in any event within five
Business Days after the issuance or sale of any securities,
instruments or other rights that are convertible into,
exchangeable for or otherwise entitled to receive at any time
any Abitibi Shares, or after the sale or other disposition
(including any secondary public offering) of any Abitibi
Shares, in connection with any such Abitibi Sale/Monetization)
prepay the nearest scheduled installments of the Term Loan,
Additional Term Loan, D Tranche Term Loan and E Tranche Term
Loan set forth in Sections 2.2(a), (d), (f) and (g),
respectively, in an aggregate amount equal to 75% of the
aggregate proceeds from (i) the issuance or sale of any
securities, instruments or other rights that are convertible
into, exchangeable for or otherwise entitled to receive at any
time any Abitibi Shares, and (ii) the sale or other
disposition (including any secondary public offering) of any
Abitibi Shares, in each case in connection with any such
Abitibi Sale/Monetization net of income taxes directly payable
and any direct costs and expenses incurred in connection with
such Abitibi Sale/Monetization (provided that such income
taxes, costs and expenses attributable to any subsequent
conversion, exchange or other receipt of Abitibi Shares shall
not be deducted for purposes of determining such net proceeds)
(such amount being referred to herein as the "Abitibi 75%
Portion"). In connection with any such Abitibi
Sale/Monetization, the Borrower shall also apply the Abitibi
25% Portion as required pursuant to Section 5.2.12(v). To the
extent that any of the nearest scheduled installments of the
Term Loan, Additional Term Loan, D Tranche Term Loan and E
Tranche Term Loan occur on the same date and the Abitibi 75%
Portion is not sufficient to prepay all such scheduled
installments occurring on such date, then the remaining
portion of the Abitibi 75% Portion shall be applied pro rata
to such scheduled installments occurring on such date
according to the aggregate principal amount of all such
scheduled installments occurring on such date.
(e) Intentionally Omitted.
(f) Prepayment from German Financing. If the
German Financing is consummated, the Borrower shall as soon as
possible (but in any event within five Business Days after the
consummation of the German Financing and the incurrence of the
Indebtedness thereunder) prepay a portion of the E Tranche
Term Loan with all of the net proceeds of the Indebtedness
incurred in the German Financing, net of direct costs and
expenses incurred in connection with the German Financing.
Section 3.5 Other Provisions With Respect to the
Loans. Subject to the obligations of the Agent provided for
in this Section 3.5 and if no Event of Default or Unmatured
Event of Default shall have occurred and be continuing, any
monies otherwise required to be used to prepay a Eurodollar
Rate Loan pursuant to Section 3.4 on a date other than the
last day of the Interest Period applicable thereto shall be
paid to the Agent (the "Deposited Monies") when due but, until
the earlier of the occurrence of an Event of Default and the
end of the applicable Interest Period when the Deposited
Monies shall be applied to make such prepayment, shall be held
in an account by the Agent for the benefit of the Lenders and
the Borrower shall have no right to or interest in such funds
and such funds shall be used to prepay such Eurodollar Rate
Loan upon the earlier of the occurrence of an Event of Default
or at the end of the applicable Interest Period; provided,
however, that any funds held in such account shall be invested
by the Agent (to the extent the Agent is reasonably able to do
so) on behalf of the Borrower at the direction of the Borrower
in Permitted Investments selected by the Borrower and having
a maturity not exceeding the Business Day prior to the end of
the relevant Interest Period. Interest on the applicable
Loans shall continue to accrue until the Deposited Monies are
applied to the prepayment thereof. Any such investments shall
be held by the Agent or under the control of the Agent. The
interest accruing on such investments and any profits realized
from such investments shall be, after giving effect to such
repayment of such Loans with the Deposited Monies, paid to the
Borrower; provided, however, that any loss resulting from such
investments shall be charged to and be immediately payable by
the Borrower upon demand of the Agent.
Section 3.6 Order of Prepayment and Payment.
(a) All prepayments of principal of Revolving
Loans and Supplemental Revolving Loans made by the Borrower
pursuant to Sections 3.1 and 3.2 shall be made with interest
on such repaid Revolving Loans and Supplemental Revolving
Loans, and with respect to each Revolving Lender and
Supplemental Revolving Lender, in proportional amounts equal
to such Lender's Revolving Loan Pro Rata Share or Supplemental
Revolving Loan Pro Rata Share, as applicable, of such payment
and, shall be applied (i) first to the payment of Prime Rate
Loans and second to the payment of Eurodollar Rate Loans, and
(ii) with respect to Eurodollar Rate Loans, pro rata in order
of the maturity of such Loans.
(b) All prepayments of principal of the Term Loan,
the Additional Term Loan, the D Tranche Term Loan and the E
Tranche Term Loan made by the Borrower pursuant to Sections
3.2 or 3.4 (other than prepayments made (A) under Section
3.4(c) with any Material Sale Proceeds derived from the sale
of any Collateral or Mortgaged Property, (B) under Section
3.4(d) with any proceeds derived from any Abitibi
Sale/Monetization and (C) under Section 3.4(f) with the net
proceeds derived from the German Financing) shall be applied
(i) to the unpaid principal amount of the Term Loan, the
Additional Term Loan, the D Tranche Term Loan and the E
Tranche Term Loan in the inverse order of the remaining
regularly scheduled principal installments set forth in
Sections 2.2(a), (d), (f) and (g), together with accrued
interest on such prepaid principal amount and with respect to
each Term Lender, Additional Lender, D Tranche Lender and E
Tranche Lender, in proportional amounts based on such Lender's
outstanding principal amount of its Term Loan, Additional Term
Loan, D Tranche Term Loan or E Tranche Term Loan, as
applicable; and (ii) first to the payment of Prime Rate Loans
and second to the payment of Eurodollar Rate Loans, and within
such Eurodollar Rate Loans, pro rata in order of the maturity
of the Interest Periods of such Loans.
(c) All prepayments of principal made by the
Borrower pursuant to Section 3.4(c) out of Material Sale
Proceeds derived from the sale of Collateral or Mortgaged
Property (other than Collateral or Mortgaged Property for
which Substitute Collateral is provided in accordance with
Section 9.13(c)) shall be applied on a pro rata basis
(relative to the outstanding principal amount of the Term
Loan, Additional Term Loan, D Tranche Term Loan and E Tranche
Term Loan, and the aggregate amount of the Revolving Loan
Commitments and Supplemental Revolving Loan Commitments) to
the unpaid principal amount of the Term Loan, Additional Term
Loan, D Tranche Term Loan and E Tranche Term Loan and to the
unpaid principal amount of the Revolving Loans and
Supplemental Revolving Loans (to the extent thereof), and
contemporaneously with such prepayment there shall be a
permanent reduction of the aggregate outstanding Revolving
Loan Commitments and Supplemental Revolving Loan Commitments
(and with respect to each Revolving Lender and Supplemental
Revolving Lender, based on such Lender's Revolving Loan Pro
Rata Share and Supplemental Revolving Loan Pro Rata Share,
respectively)in an amount equal to such Revolving Loan and
Supplemental Revolving Loan pro rata portion of such Material
Sale Proceeds (the "Revolving Portion"). In the event that
any Material Sale Proceeds relative to the Revolving Portion
remain after the prepayment of Revolving Loans and
Supplemental Revolving Loans, any excess shall be deposited
with the Agent to cash collateralize any L/C Obligations then
outstanding, but only to the extent and in the aggregate
amount of such Obligations; provided, however, that the
Borrower shall only be required to deposit such excess
proceeds if and for so long as an Unmatured Event of Default
or an Event of Default has occurred and is continuing at such
time or if and to the extent the aggregate outstanding
Revolving Loan Commitments have, pursuant to the preceding
sentence, been reduced to an amount less than the L/C
Obligations then outstanding. Prepayments of Loans described
in this Section 3.6(c) shall be applied first to the payment
of Prime Rate Loans and second to the payment of Eurodollar
Rate Loans, and, within such Eurodollar Rate Loans, pro rata
in order of the maturity of such Loans. All prepayments of
principal of the Term Loan, Additional Term Loan, D Tranche
Term Loan and E Tranche Term Loan pursuant to this Section
3.6(c) shall be applied to the unpaid principal amount of the
Term Loan, Additional Term Loan, D Tranche Term Loan and E
Tranche Term Loan in the inverse order of the remaining
installments set forth in Sections 2.2(a), (d), (f) and (g).
(d) All regularly scheduled principal installments
on the Term Loan, Additional Term Loan, D Tranche Term Loan
and E Tranche Term Loan shall be applied first to the payment
of Prime Rate Loans and second to the payment of Eurodollar
Rate Loans.
(e) During the pendency of an Event of Default,
all payments in respect of the Obligations shall be applied
first to interest, fees, costs, expenses and other amounts
(other than principal) then owing, and second to principal;
provided, however, that proceeds of collateral realized
pursuant to the exercise of remedies under any security
instrument securing the Obligations shall be applied as
specified in such security instrument.
(f) Notwithstanding anything in Section 3.2, 3.4,
3.6 or 9.2 to the contrary, but subject to the last sentence
of this Section 3.6(f), at the request of the Borrower any
Term Lender, Additional Lender, D Tranche Lender or E Tranche
Lender may waive its right to receive all or any part of such
Lender's portion of any voluntary prepayment of the Term Loan,
Additional Term Loan, D Tranche Term Loan or E Tranche Term
Loan made under Section 3.2 or any mandatory prepayment of the
Term Loan, Additional Term Loan, D Tranche Term Loan or E
Tranche Term Loan required to be made under Section 3.4 (other
than Section 3.4(e)) (any such portion, "Waived Proceeds") by
delivering such waiver in writing to the Agent and the
Borrower, signed by an authorized officer of such Lender and
in form satisfactory to the Agent. Upon receipt of such
written waiver, the Borrower (i) shall, to the extent of any
voluntary prepayment of the Term Loan, Additional Term Loan,
D Tranche Term Loan or E Tranche Term Loan so waived, be
relieved of its obligation, if any, to prepay such amount
pursuant to Section 3.4(a) with respect to any Excess Cash
Flow reported by the Borrower for the Fiscal Quarter in which
such voluntary prepayment is made (or was proposed to be made)
and may apply such Waived Proceeds to Permitted Uses, and (ii)
shall, to the extent of any mandatory prepayment of the Term
Loan, Additional Term Loan, D Tranche Term Loan or E Tranche
Term Loan so waived, be relieved of its obligation to prepay
such amount and may apply such Waived Proceeds to Permitted
Uses. Any request by the Borrower for a waiver of any
prepayment pursuant to this Section 3.6(f) shall, except with
respect to the waiver request made to be effective on the
Second Restatement Date to the Term Lenders and Additional
Lenders, be made to the Term Lenders, Additional Lenders, D
Tranche Lenders and E Tranche Lenders on a pro rata basis
(relative to the outstanding principal amount of the Term
Loan, Additional Term Loan, D Tranche Term Loan and E Tranche
Term Loan), shall be in writing, shall be made in accordance
with Section 3.2(a)(vi) for any request for a waiver of any
voluntary prepayment and shall be delivered to the Agent,
which shall promptly distribute such request to the Term
Lenders, Additional Lenders, D Tranche Lenders and E Tranche
Lenders. Each Term Lender, Additional Lender, D Tranche
Lender and E Tranche Lender shall use reasonable efforts to
respond to such waiver request within five Business Days (or
such greater number of Business Days as the Borrower may
specify) following receipt of a written request therefor. Any
failure by a Term Lender, Additional Lender, D Tranche Lender
or E Tranche Lender to respond to such waiver request within
such period shall be deemed to be an election by such Lender
not to waive its right to receive its portion of such
prepayment and shall in no event give rise to any obligation
or liability of any kind on the part of such Lender.
Notwithstanding the foregoing, in the event the Borrower
requests a waiver under this Section 3.6(f) in connection with
the Abitibi 75% Portion of any Abitibi Sale/Monetization, any
such Waived Proceeds shall only be used by the Borrower as
follows: (i) the first $200,000,000 in the aggregate of such
Waived Proceeds and the Abitibi 25% Portion resulting from
such Abitibi Sale/Monetization shall be applied to prepay,
repurchase, redeem or otherwise extinguish any scheduled
installment or stated maturity of any Indebtedness for Money
Borrowed of the Borrower which, pursuant to the contractual
terms thereof, is scheduled for repayment or maturity prior to
May 15, 1999; and (ii) the remainder of such Waived Proceeds
shall be applied to prepay, repurchase, redeem or otherwise
extinguish (A) any Indebtedness for Money Borrowed of the
Borrower constituting Senior Indebtedness and/or (B) any
Indebtedness for Money Borrowed of the Borrower constituting
Subordinated Debt, provided that no more than 50% of the
aggregate amount of the remainder of such Waived Proceeds may
be used to prepay, repurchase, redeem or otherwise extinguish
Subordinated Debt.
(g) All prepayments of principal of the Term Loan,
Additional Term Loan, D Tranche Term Loan and E Tranche Term
Loan made by the Borrower pursuant to Section 3.4(d) shall be
applied (i) to the nearest scheduled installments of the Term
Loan, Additional Term Loan, D Tranche Term Loan and E Tranche
Term Loan as provided in Section 3.4(d), with such principal
portion being paid together with accrued interest on such
prepaid principal amount; and (ii) first to the payment of
Prime Rate Loans and second to the payment of Eurodollar Rate
Loans, and within such Eurodollar Rate Loans, pro rata in
order of the maturity of the Interest Periods of such Loans.
(h) All prepayments of principal of the E Tranche
Term Loan made by the Borrower pursuant to Section 3.4(f)
shall be applied (i) to the unpaid principal amount of the E
Tranche Term Loan in the inverse order of the remaining
regularly scheduled principal installments set forth in
Section 2.2(g); together with accrued interest on such prepaid
principal amount; and (ii) first to the payment of Prime Rate
Loans and second to the payment of Eurodollar Rate Loans, and
within such Eurodollar Rate Loans, pro rata in order of the
maturity of the Interest Periods of such Loans.
Section 3.7 Commitment Fees.
(a) The Borrower shall pay to the Agent for pro
rata distribution to each Revolving Lender (based on its
Revolving Loan Pro Rata Share) a commitment fee (the
"Revolving Loan Commitment Fee") for the period commencing on
the Closing Date to the Revolver Termination Date or the
earlier termination of the Revolving Loan Commitments,
computed at a rate equal to 1/2 of 1% per annum on the average
daily unused portion of the aggregate Revolving Loan
Commitments of the Revolving Lenders in effect at the time
under this Agreement; provided, however, that solely for
purposes of computing Commitment Fees, all outstanding Swing
Line Loans and L/C Obligations shall at all times be deemed to
be an unused portion of the aggregate Revolving Loan
Commitments.
(b) The Borrower shall pay to the Agent for pro
rata distribution to each Supplemental Revolving Lender (based
on its Supplemental Revolving Loan Pro Rata Share) a
commitment fee (the "Supplemental Revolving Loan Commitment
Fee") for the period commencing on the Restatement Date to the
Supplemental Revolver Termination Date or the earlier
termination of the Supplemental Revolving Loan Commitments,
computed at a rate equal to 1/2 of 1% per annum on the average
daily unused portion of the aggregate Supplemental Revolving
Loan Commitments of the Supplemental Revolving Lenders in
effect at the time under this Agreement.
(c) Unless otherwise specified herein, accrued
Revolving Loan Commitment Fees and Supplemental Revolving Loan
Commitment Fees payable under Sections 3.7(a) and (b) shall be
due and payable (i) quarterly on the Quarterly Payment Dates
of each year, (ii) on the Revolver Termination Date and
Supplemental Revolver Termination Date, and (iii) upon any
reduction or termination in whole or in part of the Revolving
Loan Commitments or Supplemental Revolving Loan Commitments.
The Revolving Loan commitment Fees and Supplemental Revolving
Loan Commitment Fees shall be computed on the basis of a year
consisting of 360 days and actual days elapsed.
Section 3.8 Amendment Fee. On the Restatement
Date the Borrower shall pay to the Agent for distribution to
the Existing Lenders which execute this Agreement and return
an acknowledgment letter to the Agent on or before 5:00 p.m.
(New York time) on November 12, 1998 an amendment fee equal to
(i) in the case of Revolving Lenders and Supplemental
Revolving Lenders, 1.00% of such Lender's Revolving Loan
Commitment and Supplemental Revolving Loan Commitment,
respectively, (ii) in the case of Term Lenders, 0.50% of such
Lender's outstanding Term Loan, and (iii) in the case of
Additional Lenders, D Tranche Lenders and E Tranche Lenders,
0.25% of such Lender's outstanding Additional Term Loan, D
Tranche Term Loan and E Tranche Term Loan (collectively, the
"Amendment Fee"); provided, however, that the Amendment Fee
shall be payable only in the event that this Agreement is
executed by the Required Lenders, each of the Revolving
Lenders, each of the Supplemental Revolving Lenders and the
Majority Term Lenders (as such terms are defined in the
Existing Credit Agreement).
Section 3.9 Intentionally Omitted
Section 3.10 Agent's Administrative Fee. The
Borrower shall pay to the Agent for its own account a
separately negotiated annual fee payable in arrears in equal
semi-annual installments as required by the separate agreement
between the Borrower and the Agent (the "Agent's
Administrative Fee").
Section 3.11 Payments.
(a) All payments by the Borrower under this
Agreement or under any Loan Document shall be made without
setoff, counterclaim or other defense and in such amounts as
may be necessary in order that all such payments (after
deduction or withholding for or on account of any present or
future taxes (withholding or otherwise), levies, imposts,
duties, assessments or other charges of whatsoever nature
imposed by any government or any political subdivision or
taxing authority thereof, other than any franchise tax or tax
imposed on or measured by the income of a Lender pursuant to
the income tax laws of the United States of America or the
jurisdictions where such Lender's principal or lending offices
are located (collectively the "Taxes")) shall not be less than
the amounts otherwise specified to be paid under this
Agreement. The Borrower shall indemnify and hold the Agent,
the Facing Agent and the Lenders harmless against any and all
such Taxes together with all interest or penalties owing in
respect thereof. A certificate as to any additional amount
payable to a Lender under this Section submitted to the
Borrower and the Agent by such Lender shall show in reasonable
detail the amount payable and the calculations used to
determine in good faith such amount, and shall, absent
manifest error, be final, conclusive and binding upon all
parties hereto. With respect to each deduction or withholding
for or on account of any Taxes, the Borrower shall promptly
furnish to each Lender such certificates, receipts and other
documents as may be reasonably required (in the judgment of
such Lender) to establish any tax credit to which such Lender
may be entitled.
(b) All payments (including prepayments) to be
made by the Borrower on account of principal or interest on
any of its Obligations shall be made to the Agent at its
Payment Office for the ratable account of the Revolving
Lenders, the Supplemental Revolving Lenders, the Term Lenders,
the Additional Lenders, the D Tranche Lenders, the E Tranche
Lenders or for the Swing Line Lender or the Facing Agent, as
the case may be, not later than 12:00 noon (New York City
time) on the date when due, in each case in lawful money of
the United States of America and in immediately available
funds. Except as required under Sections 2.12(h) and (i),
2.13, 2.16, 3.2(a), 3.12(a), 9.5 and 9.6 or as permitted under
Section 3.6(f), all payments (including prepayments) received
by the Agent on account of principal or interest on the
Obligations or Letter of Credit Fees, Revolving Loan
Commitment Fees or Supplemental Revolving Loan Commitment Fees
shall be deemed made, and shall be distributed by the Agent to
the Revolving Lenders, the Supplemental Revolving Lenders, the
Term Lenders, the Additional Lenders, the D Tranche Lenders,
the E Tranche Lenders, the Swing Line Lender or the Facing
Agent, as the case may be, and with respect to any such
payments to the Revolving Lenders, the Supplemental Revolving
Lenders, the Term Lenders, the Additional Lenders, the D
Tranche Lenders or the E Tranche Lenders, distributed by the
Agent to the Revolving Lenders, the Supplemental Revolving
Lenders, the Term Lenders, the Additional Lenders, the D
Tranche Lenders and the E Tranche Lenders in accordance with
their Revolving Loan Pro Rata Shares, Supplemental Revolving
Loan Pro Rata Shares, Term Loan Pro Rata Shares, Additional
Term Loan Pro Rata Shares, D Tranche Term Loan Pro Rata Shares
and E Tranche Term Loan Pro Rata Shares, respectively, and, as
among all Lenders (including the Swing Line Lender and the
Facing Agent), be applied ratably according to the amount of
principal, interest, Letter of Credit Fees, Revolving Loan
Commitment Fees or Supplemental Revolving Loan Commitment Fees
then due and owing to such Revolving Lenders, Supplemental
Revolving Lenders, Term Lenders, Additional Lenders, D Tranche
Lenders, E Tranche Lenders or the Swing Line Lender or the
Facing Agent, at the time such payment is received. If any
payment hereunder becomes due and payable on a day other than
a Business Day, such payment shall be extended to the next
succeeding Business Day (provided, however, that if a payment
in respect of a Eurodollar Rate Loan would otherwise be made
on a day which is not a Business Day and after which no
Business Day occurs in the same month, such payment shall be
made on the next preceding Business Day), and, with respect to
payments on principal and, to the extent permitted by law,
interest thereon, interest thereon shall be payable at the
then applicable rate during such extension. Payments received
after noon (New York City time) on any date shall be deemed
received on the next succeeding Business Day.
(c) Each Lender that is not a United States person
(as such term is defined in Section 7701(a)(30) of the Code),
shall submit to the Borrower within 31 days after it becomes
a Lender hereunder duly completed and signed copies of (i)
Internal Revenue Service ("IRS") Form 1001 (relating to such
Lender and entitling it to a complete exemption from United
States withholding on all amounts to be received by such
Lender at any Lending Office designated by such Lender,
including fees, under this Agreement) and, if necessary to
prevent backup withholding, IRS Form W-8 (relating to the
foreign status exemption from United States federal income tax
backup withholding), (ii) IRS Form 4224 (relating to all
amounts to be received by such Lender at any Lending Office
designated by such Lender, including fees, under this
Agreement) and, if necessary to prevent backup withholding,
IRS Form W-9 (certification of taxpayer identification number)
or (iii) IRS Form W-8 (relating to the exemption from United
States federal income tax withholding on payments of portfolio
interest under Section 871(h) or Section 881(c) of the Code)
together with a certificate substantially in the form of
Exhibit 3.12(c) hereto. Thereafter and from time to time,
each such Lender, to the extent legally entitled to do so,
shall submit to the Borrower such additional duly completed
and signed copies of the previously provided forms (or such
successor forms as shall be adopted from time to time by the
relevant United States taxing authorities) as may be (i)
requested by the Borrower from such Lender and (ii) required
under then-current United States law or regulations to avoid
United States withholding taxes on payment in respect of
amounts to be received by such Lender at any Lending Office
designated by such Lender, including fees, under this
Agreement. Upon the request of the Borrower, each Lender that
is a United States person (as such term is defined in Section
7701(a)(30) of the Code) shall submit to the Borrower a
certificate to the effect that it is such a United States
person. If any Lender determines that it is unable to submit
to the Borrower any form or certificate that such Lender is
obligated to submit pursuant to this Section, or that such
Lender is required to withdraw or cancel any such form or
certificate previously submitted, such Lender shall promptly
notify the Borrower of such fact. Any amount that would
otherwise have been required to be paid by the Borrower in
respect of United States withholding Taxes pursuant to this
Section shall not be payable by the Borrower to any Lender
that (i) is neither (a) entitled to submit the form or forms
required by the first sentence of this Section 3.12(c) (or
said successor forms) other than on account of a change in
applicable law or regulations or in any treaty after the date
hereof nor (b) a United States person (as such term is defined
in Section 7701(a)(30) of the Code), or (ii) has failed to
submit any form or certificate that it was required to file
pursuant to this Section and entitled to file under applicable
law.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Agent, the Co-Agents and the
Lenders to enter into this Agreement and the other Loan
Documents and to make the Loans, and issue (or participate in)
the Letters of Credit as provided herein, the Borrower makes
the following representations and warranties as of the
Restatement Date and as of the date of each subsequent Credit
Event, all of which shall survive the execution and delivery
of this Agreement and the other Loan Documents and the making
of the Loans and issuance of the Letters or Credit, with the
occurrence of each Credit Event on or after the Restatement
Date being deemed to constitute a representation and warranty
that the matters specified in this Article IV are true and
correct on and as of the Restatement Date and on and as of the
date of each such Credit Event, provided that any
representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct on the
date of each Credit Event but only as of such specified date,
and provided further, that any representation or warranty made
by the Borrower under the Original Credit Agreement, the First
Restated Credit Agreement, the Second Restated Credit
Agreement or the Existing Credit Agreement shall survive the
execution and delivery of this Agreement, and the termination
hereof:
Section 4.1 Organization; Powers. The Borrower
and each Subsidiary of the Borrower (a) is a corporation duly
organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, (b) has all
requisite power and authority to own its property and assets
and to carry on its business as now conducted, (c) is
qualified to do business in every jurisdiction where such
qualification is required by the nature of its business, the
character and location of its property, business or customers,
or the ownership or leasing of its properties, except for such
jurisdictions in which the failure so to qualify, in the
aggregate, could not reasonably be expected to result in a
Material Adverse Effect, and (d) has the corporate power and
authority to execute, deliver and perform its obligations
under each of the Loan Documents and each other agreement or
instrument contemplated thereby to which it is or will be a
party and, in the case of the Borrower, to borrow hereunder.
Section 4.2 Authorization. The execution,
delivery and performance by each of the Borrower and each
Subsidiary of the Borrower of each of the Basic Agreements to
which it is a party, the Borrowings hereunder, the issuance of
the Letters of Credit, the use of the proceeds of the Loans,
the Swing Line Loans and the Letters of Credit, the creation
of the security interests contemplated by the Loan Documents,
the Smurfit Merger, the Capital Infusion and the other
transactions contemplated by the Loan Documents and the
Transaction Documents (all the foregoing, collectively, the
"Transactions") (a) have been duly authorized by all
requisite corporate and, if required, stockholder action and
(b) will not (i) violate (A) any provision of law, statute,
rule or regulation, other than any law, statute, rule or
regulation the violation of which could not reasonably be
expected to result in a Material Adverse Effect, or of the
certificate of incorporation or other constitutive documents
or by-laws of the Borrower, any Subsidiary of the Borrower or
any of their respective Subsidiaries, (B) any order of any
Governmental Authority or (C) any provision of any indenture
or other material agreement or other material instrument to
which the Borrower, any Subsidiary of the Borrower or any of
their respective Subsidiaries is a party or by which any of
them or any of their property is or may be bound, (ii)
constitute (alone or with notice or lapse of time or both) a
default under any such indenture, agreement or other
instrument or (iii) result in the creation or imposition of
any Lien (other than any Lien created hereunder or under the
Loan Documents) upon or with respect to any property or assets
now owned or hereafter acquired by the Borrower, any
Subsidiary of the Borrower or any of their respective
Subsidiaries.
Section 4.3 Enforceability. This Agreement has
been duly executed and delivered by the Borrower and
constitutes, and each other Loan Document when executed and
delivered by the Borrower and each of the Borrower's
Subsidiaries party thereto will constitute, a legal, valid and
binding obligation of the Borrower and each of the Borrower's
Subsidiaries, as applicable, enforceable against each of them
in accordance with its terms (a) except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (b) subject to
general principles of equity.
Section 4.4 Governmental Approvals. No action,
consent or approval of, registration or filing with or any
other action by any Governmental Authority is or will be
required in connection with the Transactions, except for (a)
the filing of Uniform Commercial Code financing statements and
filings with the United States Patent and Trademark Office and
the United States Copyright Office to perfect the security
interests that can be perfected by such filings, (b)
recordation of the Mortgages, (c) such actions, consents,
approvals, registrations and filings set forth on Schedule 4.4
and (d) such actions, consents, approvals, registrations and
filings as have been made or obtained and are in full force
and effect.
Section 4.5 Financial Statements. The Borrower
has delivered to the Lenders (a) the audited financial
statements of such Person for the fiscal year ended December
31, 1997, together with such Person's annual report on Form
10-K, if any, filed with the Securities and Exchange
Commission, and (b) the unaudited financial statements of the
Borrower for the fiscal quarters ended March 31, June 30 and
September 30, 1998, together with the Borrower quarterly
report on Form 10-Q, if any, filed with the Securities and
Exchange Commission. All financial statements set forth or
referred to in the materials specified in the preceding
sentence were prepared in conformity with GAAP. All such
financial statements fairly present the consolidated financial
position of the Borrower and its Subsidiaries as at the date
thereof and the consolidated results of operations and changes
in financial position of the Borrower and its Subsidiaries for
each of the periods covered thereby. Except as disclosed in
such financial statements, none of the Borrower or any of its
Subsidiaries had, at the date of such financial statements or
on the Restatement Date, as the case may be, any material
contingent obligation, material contingent liability or
material liability for taxes, long-term lease or unusual
forward or long-term commitment or obligations to retired
employees for medical or other employee benefits that is not
reflected in the foregoing financial statements or the notes
thereto.
Section 4.6 No Material Adverse Change. Except
for the matters disclosed in the Borrower's Current Report on
Form 8-K filed with the Securities and Exchange Commission on
October 28, 1998, there has been no material adverse change in
the business, assets, operations, properties, prospects or
condition (financial or otherwise) of the Borrower and its
consolidated Subsidiaries, taken as a whole, since June 30,
1998.
Section 4.7 Title Properties; Possession Under
Leases. (a) Each of the Borrower and its Subsidiaries has
good and marketable title to, or valid leasehold interests in,
all its material properties and assets, except for minor
defects in title that do not interfere in any material respect
with its ability to conduct its business as currently
conducted. All such title to, or leasehold interest in,
material properties and assets are free and clear of Liens,
other than Liens expressly permitted by Section 5.2.1 (none of
which is superior to the Liens created hereunder or under the
Loan Documents) and Liens with respect to which the Agent has
received on or prior to the Restatement Date duly executed
releases and termination statements in connection therewith.
(b) Each of the Borrower and the Subsidiaries of
the Borrower has complied with all obligations under all
material leases to which it is a party and enjoys peaceful and
undisturbed possession under all such material leases
necessary in any material respect for the operation of their
respective properties and assets.
Section 4.8 Subsidiaries. Schedule 4.8 sets
forth as of the Restatement Date a list of all the
Subsidiaries of the Borrower, their jurisdiction of
organization and the percentage ownership interest of each of
them and any other Subsidiary therein. The capital stock of
each of the Subsidiaries is duly authorized, validly issued,
fully paid and nonassessable and, except as set forth on
Schedule 4.8, is owned free and clear of all Liens other than
nonconsensual Permitted Liens arising other than as a result
of a voluntary act of the Borrower. No authorized but
unissued treasury shares of capital stock of the Borrower or
any Subsidiary of the Borrower are subject to any option,
warrant, right to call or commitment of any kind or character
except as set forth on Schedule 4.8.
Section 4.9 Litigation; Compliance with Laws.
(a) Except as set forth in Schedule 4.9, there are not any
actions, suits or proceedings at law or in equity or by or
before any Governmental Authority now pending or, to the
knowledge of the Borrower, threatened against or affecting the
Borrower or any Subsidiary of the Borrower or any business or
property of any such Person that (i) involve any Loan Document
or the Transactions or (ii) could reasonably be expected to,
individually or in the aggregate, result in a Material Adverse
Effect.
(b) Neither the Borrower, any Subsidiary of the
Borrower nor any of their respective properties or assets is
(i) in violation of, nor will the continued operation of their
properties and assets as currently conducted violate, any law,
rule, regulation, statute (including any zoning, building,
environmental and safety law, ordinance, code or approval or
any building permits) or any restrictions of record or
agreements affecting the Mortgaged Properties, where such
violations could reasonably be expected to have a material
adverse effect on the value, use or operation of any such
Mortgaged Property or (ii) in default with respect to any
judgment, writ, injunction, decree or order of any
Governmental Authority, where such defaults, individually or
in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. The issuance of the Letters of
Credit will not violate any applicable law or regulation or
violate or be prohibited by any judgment, writ, injunction,
decree or order of any Governmental Authority.
Section 4.10 Agreements. None of the Borrower or
any Subsidiary of the Borrower is in default under any
provision of any indenture or other agreement or instrument
evidencing Indebtedness, or any other agreement or instrument
to which it is a party or by which it or any of its properties
or assets are or may be bound, where such default could
reasonably be expected to result in a Material Adverse Effect.
Section 4.11 Federal Reserve Regulation. None of
the Borrower or any Subsidiary of the Borrower is engaged
principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or
carrying Margin Stock.
(a) No part of the proceeds of any Letter of
Credit or any Loan or Swing Line Loan will be used, whether
directly or indirectly, and whether immediately, incidentally
or ultimately, (i) to purchase or carry Margin Stock or to
extend credit to others for the purpose of purchasing or
carrying Margin Stock or to refund indebtedness originally
incurred for such purpose or (ii) for any purpose that entails
a violation of, or is inconsistent with, the provisions of the
Regulations of the Board, including Regulation T, U or X.
Section 4.12 Investment Company Act; Public
Utility Holding Company Act. None of the Borrower or any
Subsidiary of the Borrower is an "investment company" as
defined in, or is subject to regulation under, the Investment
Company Act of 1940 or (b) is a "holding company" as defined
in, or is subject to regulation under, the Public Utility
Holding Company Act of 1935.
Section 4.13 Use of Proceeds. The Borrower will
use the proceeds of the Loans and will request the issuance of
Letters of Credit only for the purposes specified in Section
5.1.11.
Section 4.14 Tax Returns. Each of the Borrower
and each Subsidiary of the Borrower has filed or caused to be
filed all Federal, state and local income and other material
tax returns required to have been filed by it or with respect
to it and has paid or caused to be paid all taxes shown to be
due and payable on such returns or on any assessments received
by it or with respect to it, except taxes that are being
contested in good faith by appropriate proceedings and for
which it has set aside on its books adequate reserves in
accordance with GAAP.
Section 4.15 No Material Misstatements. The
information provided by or on behalf of the Borrower and
contained in the Basic Agreements, or any other document
provided in writing by or on behalf of the Borrower to the
Lenders and any other materials, documents and information
that the Borrower or any of its Affiliates may have furnished
to the Lenders, was as of the date of such Basic Agreements,
or any other document, the dates otherwise specified therein
or the dates upon which such information was provided,
accurate in all material respects and does not contain any
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, taken
as a whole, not misleading, provided that to the extent any
such information therein was based upon or constitutes a
forecast or projection, the Borrower represents only that it
acted in good faith and utilized reasonable assumptions, due
and careful consideration and the information actually known
to Responsible Officers at the time in the preparation of such
information.
Section 4.16 Employee Benefit Plans. Each of and
the Borrower and its ERISA Affiliates is in compliance in all
material respects with the applicable provisions of ERISA and
the Code and the regulations and published interpretations
thereunder. No Reportable Event has occurred in respect of
any Plan of the Borrower or any ERISA Affiliate. The present
value of all benefit liabilities under each Plan (based on
those assumptions used to fund such Plan) did not, as of the
last annual valuation date applicable thereto, exceed by more
than $25,000,000 the value of the assets of such Plan, and the
present value of all benefit liabilities of all Underfunded
Plans (based on those assumptions used to fund each such Plan)
did not, as of the last annual valuation dates applicable
thereto, exceed by more than $25,000,000 the value of the
assets of all such Underfunded Plans. None of the Borrower or
any ERISA Affiliate has incurred any Withdrawal Liability that
could result in a Material Adverse Effect. None of the
Borrower or any ERISA Affiliate has received any notification
that any Multiemployer Plan is in reorganization or has been
terminated within the meaning of Title IV of ERISA and no
Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated where such reorganization
or termination has resulted or could reasonably be expected to
result, through increases in the contributions required to be
made to such Plan or otherwise, in a Material Adverse Effect.
Section 4.17 Environmental and Safety Matters.
Except as set forth on Schedule 4.17:
(a) Each of the Borrower and each Subsidiary of
the Borrower has obtained all permits, licenses and other
authorizations that are required and material with respect to
the operation of the business of the Borrower and its
Subsidiaries, taken as a whole, under any Environmental Law,
and each such permit, license and authorization is in full
force and effect.
(b) Each of the Borrower and each Subsidiary of
the Borrower is in compliance with all material terms and
conditions of the permits, licenses and authorizations
specified in Section 4.17(a), and is also in compliance with
all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and
timetables contained in any Environmental Law applicable to it
and its business, assets, operations and properties, including
those arising under the Resource Conservation and Recovery Act
of 1976, as amended, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986
("CERCLA"), the Federal Water Pollution Control Act, the
Federal Clean Air Act, and the Toxic Substances Control Act
and any analogous or comparable state laws, except for such
instances of noncompliance that could not reasonably be
expected to result in a Material Adverse Effect.
(c) There is no civil, criminal or administrative
action, suit, demand, claim, hearing, notice of violation,
investigation, proceeding, notice or demand letter or request
for information pending or, to the knowledge of or the
Borrower or any Subsidiary of the Borrower, after inquiry,
threatened against the Borrower or any Subsidiary of the
Borrower under any Environmental Law that could reasonably be
expected to result in a Material Adverse Effect.
(d) None of the Borrower or any Subsidiary of the
Borrower has received notice that it has been identified as a
potentially responsible party under CERCLA or any comparable
state law, nor has the Borrower or any Subsidiary of the
Borrower received any notification that any hazardous
substances or any pollutant or contaminant, as defined in
CERCLA and its implementing regulations, or any toxic
substance, hazardous waste, hazardous constituents, hazardous
materials, asbestos or asbestos containing material,
polychlorinated biphenyls, petroleum, including crude oil and
any fractions thereof, or other wastes, chemicals, substances
or materials regulated by any Environmental Laws
(collectively, "Hazardous Materials") that it or any of
their respective predecessors in interest has used, generated,
stored, tested, handled, transported or disposed of, has been
found at any site at which any Governmental Authority or
private party is conducting a remedial investigation or other
action pursuant to any Environmental Law, except in each case
for any such notices that, individually or in the aggregate,
could not reasonably be expected to result in a Material
Adverse Effect.
(e) There have been no releases or threatened
releases (in each case as defined in CERCLA) of Hazardous
Materials by the Borrower or any Subsidiary of the Borrower
on, upon, into or from any of the Real Properties, which
releases or threatened releases could reasonably be expected
to result in a Material Adverse Effect. To the best knowledge
of the Borrower and each Subsidiary of the Borrower, there
have been no such releases or threatened releases on, upon,
under or into any real property in the vicinity of any of the
Real Properties that, through soil, surface water or
groundwater migration or contamination, may be located on, in
or under such Real Properties and which could reasonably be
expected to result in a Material Adverse Effect.
(f) To the best knowledge of the Borrower or any
Subsidiary of the Borrower there is no asbestos in, on, or at
any Real Properties or any facility or equipment of the
Borrower, or any Subsidiary of the Borrower except to the
extent that the presence of such material could not reasonably
be expected to result in a Material Adverse Effect.
(g) To the best knowledge of the Borrower and each
Subsidiary of the Borrower after due inquiry, none of the Real
Properties of the Borrower or any Subsidiary of the Borrower
is (i) listed or proposed for listing on the National
Priorities List under CERCLA or (ii) listed in the
Comprehensive Environmental Response, Compensation, Liability
Information System List promulgated pursuant to CERCLA, or on
any comparable list maintained by any Governmental Authority.
(h) There are no past or current events,
conditions, circumstances, activities, practices, incidents,
actions or plans that could reasonably be anticipated to
interfere with or prevent compliance with any Environmental
Law, or which may give rise to liability under any
Environmental Law, or otherwise form the basis of any claim,
action, demand, suit, proceeding, hearing or notice of
violation, study or investigation, based on or related to the
manufacture, processing, distribution, use, generation,
treatment, storage, disposal, transport, shipping or handling,
or the emission, discharge, release or threatened release into
the environment, of any Hazardous Material that could
reasonably be expected to result in a Material Adverse Effect.
Section 4.18 Solvency. After giving effect to
the Transactions to occur on the Restatement Date, (a) the
fair salable value of the assets of the Borrower and the
Subsidiaries of the Borrower, on a consolidated basis, will
exceed the amount that will be required to be paid on or in
respect of the existing debts and other liabilities (including
contingent liabilities) of the Borrower and the Subsidiaries
of the Borrower, on a consolidated basis, as they mature, (b)
the assets of the Borrower and the Subsidiaries of the
Borrower, on a consolidated basis, will not constitute
unreasonably small capital to carry out their businesses as
conducted or as proposed to be conducted, including the
capital needs of the Borrower and the Subsidiaries of the
Borrower, on a consolidated basis (taking into account the
particular capital requirements of the businesses conducted by
such entities and the projected capital requirements and
capital availability of such businesses) and (c) the Borrower
does not intend to, nor does the Borrower intend to permit any
Subsidiary of the Borrower to, and does not believe that the
Borrower or any such Subsidiary will, incur debts beyond its
ability to pay such debts as they mature (taking into account
the timing and amounts of cash to be received by the Borrower
or any such Subsidiary and the amounts to be payable on or in
respect of its obligations).
Section 4.19 Security Documents. (a) The Pledge
Agreements create in favor of the Agent, for the benefit of
the Beneficiaries (as defined therein), a legal, valid and
enforceable security interest in the Collateral (as defined in
the Pledge Agreements) and proceeds thereof and constitutes a
fully perfected first priority Lien on, and security interest
in, all right, title and interest of the Borrower and the
Subsidiaries of the Borrower party thereto, as applicable, in
such Collateral and the proceeds thereof, in each case prior
and superior in right to any other Person.
(b) The Security Agreements create in favor of the
Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the Collateral (as defined in
the Security Agreements) and proceeds thereof, and assuming
that financing statements in appropriate form have been filed
in the offices specified on Schedule 4.19(b), the Lien created
under the Security Agreements constitutes a fully perfected
Lien on, and security interest in, all right, title and
interest of the Borrower and the Subsidiaries of the Borrower
in such Collateral and the proceeds thereof, in each case
prior and superior in right to any other Person.
(c) The Mortgages create in favor of the Agent,
for the benefit of the Lenders, a legal, valid and enforceable
Lien on all of the Borrower's right, title and interest in and
to the Mortgaged Properties thereunder and the proceeds
thereof, and when the Mortgages are filed in the offices
specified on Schedule 4.19(c), the Mortgages will constitute
a fully perfected Lien on, and security interest in, all
right, title and interest of the Borrower in such Mortgaged
Properties and the proceeds thereof, in each case prior and
superior in right to any other Person.
Section 4.20 Labor Matters. As of the
Restatement Date, there are no strikes, lockouts or slowdowns
against the Borrower or any Subsidiary of the Borrower pending
or, to the knowledge of the Borrower, threatened, except as
set forth on Schedule 4.20. The hours worked by and payment
made to employees of the Borrower and each Subsidiary of the
Borrower have not been in violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or
foreign law dealing with such matters, where such violations
could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect. The
consummation of the Transactions will not give rise to a right
of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which the
Borrower or any Subsidiary of the Borrower is a party or by
which the Borrower or any Subsidiary of the Borrower is bound
on the Restatement Date.
Section 4.21 Location of Real Property. Schedule
4.21(a) sets forth completely and correctly as of the
Restatement Date all material real property owned by the
Borrower or any Subsidiary of the Borrower, the addresses
thereof and the county or counties in which such properties
are situated. All the real property set forth on Schedule
4.21(a) is owned in fee by the Borrower or a Subsidiary of the
Borrower.
(a) Schedule 4.21(b) sets forth completely and
correctly as of the Restatement Date all material real
property leased by the Borrower or any Subsidiary of the
Borrower the addresses thereof and the county or counties in
which such properties are situated. The Borrower or a
Subsidiary of the Borrower has a valid lease in all the Real
Property set forth on Schedule 4.21(b).
(b) Schedule 4.21(c) sets forth completely and
correctly as of the Restatement Date all material Timberland
Property, if any, owned by the Borrower or any Subsidiary of
the Borrower, the county or counties in which such Timberland
Property is situated and the approximate acreage of such
Timberland Property in such county or counties. All the
Timberland Property set forth on Schedule 4.21(c) is owned in
fee by the Borrower or, a Subsidiary of Borrower.
Section 4.22 Patents, Trademarks, etc. Each of
the Borrower and each Subsidiary of the Borrower owns, or is
licensed to use, all patents, trademarks, trade names,
copyrights, technology, know-how and processes, service marks
and rights with respect to the foregoing that are (a) used in
or necessary for the conduct of their respective businesses as
currently conducted and (b) material to the business, assets,
operations, properties, prospects or condition (financial or
otherwise) of such Person and its Subsidiaries taken as a
whole. The use of such patents, trademarks, trade names,
copyrights, technology, know-how, processes and rights with
respect to the foregoing by such Person and its Subsidiaries
does not infringe on the rights of any Person, subject to such
claims and infringements as do not, in the aggregate, give
rise to any liability on the part of any such Person and its
respective Subsidiaries that is material to such Person and
its Subsidiaries, taken as a whole. To the best knowledge of
the Borrower, its rights and the rights of its Subsidiaries to
sell, franchise or license under such brand names then being
used may be transferred in connection with any sale of assets
or stock of the related business by such Person or any of its
Subsidiaries with only such exceptions as would not be
material to the Borrower and its Subsidiaries, in each case,
taken as a whole.
Section 4.23 Fiscal Quarters and Year. The
fiscal quarters (the "Fiscal Quarters") of the Borrower and
its Subsidiaries begin on the first day of January, April,
July and October and end on the last day of March, June,
September and December, respectively, of each year. The
fiscal year (the "Fiscal Year") of the Borrower and each of
its Subsidiaries commences on January 1 and ends on December
31 of each calendar year.
Section 4.24 Survival of Warranties; Covenant
Regarding Disclosure. All representations and warranties
contained in the Original Credit Agreement, the First Restated
Credit Agreement, the Second Restated Credit Agreement, the
Existing Credit Agreement, this Agreement and the other Basic
Agreements shall survive the execution and delivery of this
Agreement and such other Basic Agreements, as the case may be,
and the termination hereof and thereof. The Borrower may from
time to time propose in writing to the Agent and Lenders
modifications or supplements to the disclosures contained
herein or the disclosure schedules attached to this Agreement
in order to maintain the accuracy thereof; provided, however,
that any modifications or supplements to the disclosures
contained in this Agreement or the disclosure schedules
attached to this Agreement and provided by the Borrower after
the Restatement Date shall not be deemed a part of this
Agreement until accepted in writing by the Required Lenders,
provided that a Lender shall be deemed to have accepted any
such proposed modification or supplement if such Lender fails
to give written notice of the rejection thereof within 30 days
after receipt from the Borrower of such proposed modification
or supplement expressly requesting acceptance thereof under
this Section 4.23.
Section 4.25 Y2K Problem. The Borrower has
reviewed its operations and those of its Subsidiaries with a
view to assessing whether its businesses, or the businesses of
any of its Subsidiaries, will be vulnerable to a Y2K Problem
or will be vulnerable in any material respect to the effects
of a Y2K Problem suffered by any of the Borrower's or any of
its Subsidiaries' major customers or suppliers. The Borrower
represents and warrants that it has a reasonable basis to
believe that no Y2K Problem with respect to the Borrower or
any of its Subsidiaries will cause a Material Adverse Effect.
ARTICLE V
COVENANTS
Section 5.1 Affirmative Covenants of the
Borrower. The Borrower covenants and agrees that for so long
as this Agreement is in effect and until the Obligations and
all other obligations incurred hereunder or under any other
Loan Document, whether or not matured, are paid in full and
all Commitments have terminated, the Borrower will, unless
first having procured the written consent of the Required
Lenders:
5.1.1 Financial Data. Furnish to the Agent and
each Lender:
(a) Within five (5) Business Days after an
Executive Officer of the Borrower shall have obtained
knowledge of the occurrence of an Event of Default and/or
an Unmatured Event of Default, the written statement of
the chief executive officer, chief operating officer,
chief financial officer or treasurer of the Borrower
setting forth the details of each such Event of Default
or Unmatured Event of Default which has occurred and is
continuing and the action which the Borrower proposes to
take with respect thereto.
(b) Within forty-five (45) days (or in the case
of the financial statements referenced in Sections
5.1.1(b)(ii), sixty (60) days) after the end of each
Fiscal Quarter (except the last Fiscal Quarter) of each
Fiscal Year of the Borrower, (i) unaudited financial
statements consisting of a consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of such
quarter and a consolidated statement of income and a
consolidated statement of cash flows of the Borrower and
its Subsidiaries for such quarter and for the portion of
the fiscal year through such quarter, all in reasonable
detail and certified (subject to normal year-end audit
adjustments) on behalf of the Borrower by the chief
executive officer, chief financial officer, chief
accounting officer or treasurer of the Borrower as having
been prepared in accordance with generally accepted
accounting principles consistently applied, (ii)
unaudited financial statements consisting of a
consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such quarter and a
consolidated statement of income and a consolidated
statement of cash flows of the Borrower and its
Subsidiaries for such quarter and for the portion of the
fiscal year through such quarter, all in reasonable
detail and certified (subject to normal year-end audit
adjustments) on behalf of the Borrower by the chief
executive officer, chief operating officer, chief
financial officer, chief accounting officer or treasurer
of the Borrower as having been prepared in accordance
with generally accepted accounting principles
consistently applied (except that in such statements S-CC
shall be accounted for utilizing the equity method) and
(iii) a schedule setting forth the computation of Excess
Cash Flow for the Fiscal Quarter then ended (an "Excess
Cash Flow Schedule"). The financial statements delivered
pursuant to Section 5.1.1(b)(i) shall be accompanied by
a certificate from such officer addressed to the Lenders
substantially in the form of Exhibit 5.1.1, to the extent
applicable, stating that no Event of Default and no
Unmatured Event of Default has come to his attention
which was continuing at the end of such quarter or on the
date of his certificate, or if such an Event of Default
or Unmatured Event of Default has come to his attention
and was continuing at the end of such quarter or on the
date of his certificate, indicating the nature of such
Event of Default or Unmatured Event of Default and the
action which the Borrower proposes to take with respect
thereto. Such certificate shall also detail the amount
of any Discretionary Funds originating during such Fiscal
Quarter, any utilization of Discretionary Funds during
such Fiscal Quarter, the amount of the Discretionary
Funds Basket and the Dividend Basket as of the end of
such Fiscal Quarter, the amount of any Debt Basket
Proceeds and Excess Excluded Sales Proceeds remaining in
the Discretionary Funds Basket after any utilization
thereof and any utilization of the Dividend Basket for
Investments, Acquisitions or Capital Expenditures during
such Fiscal Quarter and shall set forth detailed
computations as to the Borrower's compliance with the
covenants set forth in Sections 5.2.1 (with respect to
clause (o) of the definition of Permitted Liens), 5.2.2,
5.2.3, 5.2.5, 5.2.7, 5.2.9, 5.2.11, 5.2.12, 5.2.15, 5.3.1
and 5.3.2. To the extent that the accounting principles
utilized in the preparation of any financial statements
delivered by the Borrower pursuant to Section 5.1.1(b) or
(c) are at variance with the Agreement Accounting
Principles (other than accounting for S-CC utilizing the
equity method for purposes of the financial statements
delivered pursuant to Sections 5.1.1(b)(ii) and
5.1.1(c)(ii)), such financial statements shall be
accompanied by a statement detailing the nature of such
variance. In addition to the consolidated financial
statements delivered pursuant to Section 5.1.1 (b)(i),
the Borrower will provide, as soon as available and in
any event within sixty (60) days after the end of each
Fiscal Quarter (except the last Fiscal Quarter) of each
Fiscal Year of Stone-Canada, unaudited financial
statements consisting of a balance sheet and statement of
stockholders' equity of Stone-Canada as at the end of
such quarter and a statement of income and cash flows of
Stone-Canada for such quarter and for the portion of the
fiscal year through such quarter, all in reasonable
detail and certified (subject to normal year-end audit
adjustments) on behalf of Stone-Canada by the chief
executive officer, chief operating officer, chief
financial officer or treasurer of Stone-Canada as having
been prepared in accordance with generally accepted
accounting principles consistently applied.
(c) Within ninety (90) days after the end of each
Fiscal Year of the Borrower, (i) financial statements
consisting of a consolidated balance sheet and statement
of stockholders' equity of the Borrower and its
Subsidiaries as at the end of such fiscal year and a
consolidated statement of income and a consolidated
statement of cash flows of the Borrower and its
Subsidiaries for such fiscal year, setting forth in
comparative form the corresponding figures for the
preceding fiscal year, certified without qualification as
to scope of audit by independent public accountants of
recognized national standing and reputation selected by
the Borrower, (ii) unaudited financial statements,
consisting of a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such
fiscal year and a consolidated statement of income and a
consolidated statement of cash flows of the Borrower and
its Subsidiaries for such fiscal year, all in reasonable
detail and certified on behalf of the Borrower by the
chief executive officer, chief financial officer, chief
accounting officer or treasurer of the Borrower as having
been prepared in accordance with generally accepted
accounting principles consistently applied (except that
in such statements S-CC shall be accounted for utilizing
the equity method) and (iii) an Excess Cash Flow Schedule
setting forth the computation of Excess Cash Flow for the
last Fiscal Quarter in the Fiscal Year then ended. The
financial statements delivered pursuant to Section
5.1.1(c)(i) shall be accompanied by a certificate from
the chief executive officer, chief operating officer,
chief financial officer, chief accounting officer or
treasurer of the Borrower to the Lenders substantially in
the form of Exhibit 5.1.1, to the extent applicable, (y)
stating that no Event of Default and no Unmatured Event
of Default has come to his attention which was continuing
at the end of such fiscal year or on the date of his
certificate, or, if such an Event of Default or Unmatured
Event of Default has come to his attention which was so
continuing, the certificate shall indicate the nature of
such Event of Default or Unmatured Event of Default and
the action which the Borrower proposes to take with
respect thereto and (z) setting forth computations as to
the Borrower's compliance for the preceding fiscal year
with the covenants set forth in Sections 5.2.1 (with
respect to clause (o) of the definition of Permitted
Liens), 5.2.2, 5.2.3, 5.2.5, 5.2.7, 5.2.9, 5.2.11,
5.2.12, 5.2.15, 5.3.1 and 5.3.2. Such certificate shall
also detail the amount of any Discretionary Funds
originating during the final Fiscal Quarter of the
preceding Fiscal Year, any utilization of Discretionary
Funds during such Fiscal Quarter, the amount of the
Discretionary Funds Basket and the Dividend Basket as of
the end of such Fiscal Quarter, the amount of any Debt
Basket Proceeds and Excess Excluded Sale Proceeds
remaining in the Discretionary Funds Basket after any
utilization thereof and any utilization of the Dividend
Basket for Investments, Acquisitions or Capital
Expenditures during such Fiscal Quarter. In addition to
the consolidated financial statements delivered pursuant
to Section 5.1.1(c)(i), the Borrower will provide, as
soon as available and in any event within one hundred
twenty (120) days after the end of each fiscal year of
Stone-Canada, audited financial statements (to the extent
available, and, if unavailable, then unaudited financial
statements) consisting of a balance sheet and statement
of stockholders' equity of Stone-Canada as at the end of
such fiscal year and a statement of income and cash flows
of Stone-Canada for such fiscal year, setting forth in
comparative form the corresponding figures for the
preceding fiscal year, certified (i) in the case of
audited financial statements, without qualification as to
scope of audit by independent public accountants of
recognized national standing and reputation elected by
Stone-Canada; and (ii) in the case of unaudited
financials, by the chief executive officer, chief
operating officer, chief financial officer or treasurer
of Stone-Canada as having been prepared in accordance
with generally accepted accounting principles
consistently applied.
(d) Within ninety (90) days after the end of each
fiscal year of the Borrower, projections for the Borrower
and its Subsidiaries (except for S-CC, which shall be
accounted for utilizing the equity method) for the next
five Fiscal Years (on a quarter-by-quarter basis for the
next succeeding fiscal year and on a year-by-year basis
for the duration of such five year period), except with
respect to the first projections to be delivered in 1995,
which shall be for the next six Fiscal Years, consisting
of forecasted consolidated balance sheets, statements of
income and statements of cash flow, together with
appropriate supporting details and a statement of
underlying assumptions, all in substantially the form of
Exhibit 4.11(c) to the Existing Credit Agreement;
provided, however, that in no event shall the Borrower be
required to deliver projections covering any period
subsequent to the last day of the calendar year following
the year during which the later of (i) the D Tranche Term
Loan Maturity Date is scheduled to occur and (ii) the E
Tranche Term Loan Maturity Date is scheduled to occur.
(e) Within ninety (90) days after the end of each
Fiscal Year of the Borrower, a year to year variance
analysis which sets forth a reasonably detailed
reconciliation of the actual consolidated (except for S-
CC, which shall be accounted for utilizing the equity
method) financial results of the Borrower for such year
and the projections of results for such year previously
delivered by the Borrower pursuant to Section 5.1.1(d).
(f) Promptly upon any Executive Officer of the
Borrower obtaining knowledge thereof, notice of any
action, suit, proceeding or investigation pending or
threatened against or affecting the Borrower or any
Subsidiary of the Borrower or any of its or their
respective properties before any court, governmental
agency or regulatory authority (Federal, provincial,
state or local) which is reasonably likely to have a
Material Adverse Effect.
(g) Promptly upon their distribution, copies of
financial statements, reports, notices and proxy
statements sent by the Borrower or any publicly-held
Subsidiary of the Borrower to their respective security
holders generally (in their capacity as security holders
only) and all regular and periodic reports and final
registration statements or other official statements (and
all amendments or supplements thereto) required to be
filed by the Borrower or any publicly-held Subsidiary of
the Borrower with the Securities and Exchange Commission,
any competent securities regulatory authority in Canada
or with any national securities exchange on which any of
its securities are listed with respect to its securities
outstanding or to be outstanding and copies of all press
releases and other statements made available generally by
the Borrower or any publicly-held Subsidiary of the
Borrower to the public concerning material developments
in the business of the Borrower or any publicly-held
Subsidiary of the Borrower.
(h) Promptly upon their distribution or receipt,
as applicable, copies of all information delivered to the
lenders extending the German Financing and copies of all
notices given or received by the Borrower or any of its
Subsidiaries with respect to noncompliance with any term
or condition related to the German Financing, and, within
five (5) Business Days after obtaining knowledge of any
potential or actual event of default with respect to the
German Financing, the written statement of a Responsible
Officer of the Borrower setting forth the details of each
such event of default and the action which the Borrower
or any of its Subsidiaries proposes to take with respect
thereto.
(i) Such other information respecting the
properties, business affairs, financial condition and/or
operations of the Borrower or any Subsidiary of the
Borrower as any Lender through the Agent may from time to
time reasonably (with respect to frequency as well as
scope) request.
5.1.2 Discharge of Taxes, etc Pay and cause
each of its Subsidiaries to pay (i) all taxes, assessments and
governmental charges or levies imposed upon it or any of them
or upon its or any of their income, profits or property prior
to the date on which penalties attach thereto, and (ii) all
claims for labor, material or supplies which, if unpaid, might
become a Lien upon the property of the Borrower or any
Subsidiary prior to the time they are overdue and may become
a Lien upon any such property, except to the extent that the
aggregate of all such taxes, assessments, governmental
charges, levies, penalties and claims referred to in (i) and
(ii) above not so paid, does not exceed $25 million at any
time outstanding for the Borrower and its Subsidiaries taken
as a whole; provided, however, that neither the Borrower nor
any Subsidiary of the Borrower shall be required to pay or
discharge any such tax, assessment, charge, levy or claim
while the same is being contested by it in good faith and by
appropriate proceedings and so long as the Borrower or such
Subsidiary, as the case may be, shall have set aside on its
books reserves (segregated to the extent required by generally
accepted accounting principles) reasonably deemed by it to be
adequate with respect thereto.
5.1.3 Corporate Existence; Business.
(a) Except for the Mergers and the Smurfit Merger,
except as otherwise permitted by Section 5.2.8 and except that
any Subsidiary may be liquidated, dissolved, wound up, merged
or amalgamated (other than Seminole Kraft with respect to any
merger, unless, in the case of Seminole Kraft, such merger is
permitted by Section 5.2.8) where such liquidation,
dissolution, merger, winding-up or amalgamation will not have
a Material Adverse Effect, (i) preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its
corporate existence, rights and franchises and (ii) qualify
and remain qualified, and cause each of its Subsidiaries to
qualify and remain qualified, as a foreign corporation
authorized to do business in each other jurisdiction in which
the failure to so qualify or remain qualified would have a
Material Adverse Effect.
(b) Maintain and operate, and cause each of its
Subsidiaries to maintain and operate, its business in
substantially the manner in which it is currently conducted
and operated.
5.1.4 Compliance With Laws. Comply, and cause
each of its Subsidiaries to comply, with all laws, rules,
regulations and governmental orders (foreign, federal,
provincial, state and local) having applicability to any of
them or to the business or businesses at any time conducted by
any of them, where the failure to so comply would have a
Material Adverse Effect.
5.1.5 Performance of Basic Agreements. Duly
and punctually pay and perform its obligations and cause each
of its Subsidiaries to pay and perform its obligations under
the Basic Agreements in all material respects in accordance
with the terms thereof and without breach of the terms of each
thereof.
5.1.6 Inspection of Books and Properties.
(a) Permit, and cause each of its Subsidiaries to
permit, any Lender or its respective representatives
(including without limitation any accounting and/or financial
advisor or other similar professional retained by or on behalf
of the Agent pursuant to Section 9.5), at any reasonable time
during regular business hours, and from time to time upon
reasonable written notice of such Lender to the Borrower, to
visit and inspect its and their respective properties, to
examine and make copies of and take abstracts from its and
their respective records and books of account, and to discuss
its and their respective affairs, finances and accounts with
its and their respective principal officers and, with the
written consent of the Borrower (which consent shall not be
required if an Event of Default has occurred and is
continuing), their respective independent public accountants,
in all cases acting reasonably both as to frequency and as to
scope.
(b) The Agent and each Lender agree that all
materials and information (other than publicly available
material and information) obtained by or provided to the Agent
or such Lender pursuant to the foregoing provisions of this
Section which are identified or designated by the Borrower in
writing as confidential and which was not previously in the
possession of or known to the recipient thereof on a non-
confidential basis shall be held in confidence and that the
Agent or such Lender, as the case may be, will use its best
efforts not to disclose any such information unless the same
has previously been made public, provided that nothing in this
Agreement shall prohibit the Agent or such Lender, as the case
may be, from, or subject the Agent or such Lender to liability
for, disclosing any of such information (i) pursuant to any
order, writ, judgment, decree, injunction or ruling of any
governmental body (including any bank regulators) to whose
jurisdiction the Agent or such Lender may be subject, (ii)
pursuant to any applicable requirement of law or regulation,
(iii) to the auditors, attorneys and other advisors of the
Agent or such Lender to the extent required in connection with
their services to the Agent or such Lender with respect to
this Agreement, (iv) to the extent necessary in the
enforcement of rights hereunder or under the Basic Agreements
during the continuance of an Unmatured Event of Default or
Event of Default, (v) to actual or prospective Assignees or
participants as permitted by Section 9.12(g) or to any Lender
hereunder.
5.1.7 Maintenance of Books and Records. Keep,
or cause to be kept, and cause each of its Subsidiaries to
keep or cause to be kept, proper books of record and account,
in which complete and accurate entries are made reflecting its
and their business and financial transactions.
5.1.8 ERISA.
(a) Other than with respect to Stone-Canada and
its Subsidiaries (except to the extent that a Plan of Stone-
Canada or any Subsidiary of Stone-Canada is subject to ERISA),
(i) within ten (10) days, after it or any of its Subsidiaries
or any ERISA Affiliate knows that a Reportable Event has
occurred with respect to any Plan or Multiemployer Plan
(whether or not the requirement for notice of such Reportable
Event has been waived by the PBGC), deliver, or cause such
Subsidiary or any ERISA Affiliate to deliver to the Agent in
sufficient quantity for distribution to each Lender a
certificate of a Responsible Officer of the Borrower or such
Subsidiary or any ERISA Affiliate, as the case may be, setting
forth the details of such Reportable Event; provided, however,
that with respect to any Reportable Event described in ERISA
Section 4043(b)(3) this clause (i) shall not apply if the PBGC
has waived the requirement that notice of the Reportable Event
be given to the PBGC and if this clause (i) shall apply to any
Reportable Event described in ERISA Section 4043(b)(3) then
the ten (10)-day period of time referred to above shall be
extended to thirty days; (ii) upon the request of the Agent or
any Lender made from time to time and promptly confirmed in
writing, deliver to the Agent in sufficient quantity for
distribution to each Lender a copy of the most recent
available actuarial report and annual report completed with
respect to any Plan; (iii) within ten (10) days, after it or
any of its Subsidiaries or any ERISA Affiliate knows that any
of the following have occurred with respect to any Plan: (A)
any such Plan has been terminated, (B) the Plan Sponsor
initiates any action to terminate any such Plan, or (C) the
PBGC has instituted or will institute proceedings under
Section 4042 of ERISA to terminate any such Plan, deliver, or
cause such Subsidiary or ERISA Affiliate to deliver, to the
Agent and each Lender a written notice thereof; (iv) within
ten (10) days, after it or any of its Subsidiaries or any
ERISA Affiliate knows that any of them has caused a complete
withdrawal or partial withdrawal (within the meaning of
Sections 4203 and 4205, respectively, of ERISA) from any
Multiemployer Plan or a withdrawal from a Plan in which any
such entity was a substantial employer within the meaning of
Section 4001(a)(2) of ERISA (or a deemed withdrawal within the
meaning of Section 4062(e) of ERISA with respect to an
Underfunded Plan) deliver, or cause such Subsidiary or ERISA
Affiliate to deliver, to the Agent in sufficient quantity for
distribution to each Lender a written notice thereof; and (v)
within ten (10) days after it or any of its Subsidiaries or
any ERISA Affiliate knows that a prohibited transaction
(within the meaning of Section 406 of ERISA) with respect to
any Employee Benefit Plan has occurred and knows such
transaction will result in a material liability to such entity
under Section 4975 of the Code or otherwise, if such
transaction is not corrected, deliver, or cause such
Subsidiary or ERISA Affiliate to deliver, to the Agent in
sufficient quantity for distribution to each Lender a
certificate of an Executive Officer of the Borrower or such
Subsidiary or ERISA Affiliate, as the case may be, setting
forth the details of such prohibited transaction and such
entity's proposed response thereto. For purposes of this
Section, the Borrower, any of its Subsidiaries and any ERISA
Affiliate shall be deemed to have knowledge of all facts known
by the Plan Administrator of any Plan of which such entity is
the Plan Sponsor; provided, however, that with respect to any
Multiemployer Plan, the Borrower, any of its Subsidiaries and
any ERISA Affiliate shall not be deemed to have any knowledge
other than the actual knowledge of their respective officers.
(b) With respect to Stone-Canada and its
Subsidiaries, except for Europa Carton, A.G., within ten (10)
days after the Borrower or any of its Subsidiaries knows that
Stone-Canada or any of its Subsidiaries has unfunded
liabilities which exceed the liabilities set forth on
Schedule 4.15 to the Existing Credit Agreement arising out of
any pension plan to which Stone-Canada or any of its
Subsidiaries is a party or by which either is bound, deliver
to the Agent in sufficient quantity for distribution to each
Lender a certificate of a Responsible Officer of the Borrower
or such Subsidiary disclosing such unfunded liabilities.
5.1.9 Insurance. Maintain, and cause each of
its Subsidiaries to maintain, such insurance, to such extent
and against such hazards and liabilities, as is customarily
maintained by Persons similarly situated to the extent that
such insurance is available at commercially reasonable rates,
and furnish to the Agent in sufficient quantity for
distribution to each Lender, upon written request, information
as to the insurance carried by the Borrower or any Subsidiary
of the Borrower. The provisions of this Section 5.1.9 shall
be deemed to be supplemental to, but not duplicative of, the
provisions of any of the other Loan Documents that require the
maintenance of insurance with respect to the Collateral and
Mortgaged Property.
5.1.10 Maintenance of Properties. Except as to
equipment no longer used or useful to the business of the
Borrower and its Subsidiaries, keep and maintain all material
properties, equipment and other assets (and shall cause its
Subsidiaries to keep and maintain their respective material
properties, equipment and other assets) in good repair,
working order and condition (ordinary wear and tear excepted)
and shall make all necessary replacements thereof and renewals
and repairs thereto so that the value thereof and the
operating efficiency of the Borrower and its Subsidiaries
shall at all times be maintained and preserved in a manner
consistent with past practices of the Borrowers' and its
Subsidiaries' business. With respect to all items of leased
equipment, the Borrower shall, and shall cause its
Subsidiaries to, keep, maintain, repair, replace and operate
such leased properties, equipment and other assets in
accordance with the terms of the applicable lease, in either
case, to the extent failure to do so would result in a
Material Adverse Effect.
5.1.11 Use of Proceeds. (i) Use the proceeds of
the Term Loan, Revolving Loans, Letters of Credit and Swing
Line Loans (A) to provide all or a portion of the funds
necessary to repay in full all of the indebtedness outstanding
under the U.S. Credit Agreement on the Closing Date, (B) to
make loans and/or capital contributions on the Closing Date to
Stone-Canada, which will, on the Closing Date, repay all of
the indebtedness outstanding under the Canadian Credit
Agreements, (C) to repay in whole or in part the indebtedness
outstanding under the Stone Savannah Credit Agreement and to
fund the Stone Savannah Transactions, (D) in the case of
Letters of Credit, for general corporate purposes and (E) for
ongoing working capital and general corporate purposes; (ii)
use the proceeds of the Additional Term Loan to (A)
voluntarily repurchase, prepay, redeem or otherwise extinguish
Indebtedness of the Borrower consisting of (1) all or any
portion of the 8-7/8% Notes (including the payment of
principal and interest thereon), (2) all or any portion of the
12-1/8% Subordinated Debentures (including the payment of
principal and interest thereon) and/or (3) Senior Indebtedness
(including the payment of principal, premium, whether or not
stated, if any, and interest thereon), (B) pay certain fees
and expenses incurred in connection with the execution and
delivery of the First Restated Credit Agreement and/or (C)
repay outstanding Revolving Loans under the Original Credit
Agreement; (iii) use the proceeds of the D Tranche Term Loan
from time to time to, directly or indirectly, (A) repurchase,
repay, redeem or otherwise extinguish any senior or
subordinated Indebtedness for Money Borrowed of the Borrower
(other than the Obligations) (it being understood that, to the
extent of such proceeds, any such repurchase, repayment,
redemption or other extinguishment occurring on or after the
Second Restatement Date shall be deemed made directly or
indirectly out of such proceeds, with the Borrower having no
duty or obligation to escrow or segregate such proceeds until
such time as they are directly or indirectly applied), (B) pay
certain fees and expenses incurred in connection with the
execution and delivery of the Second Restated Credit Agreement
and/or (C) repay outstanding Revolving Loans under the First
Restated Credit Agreement; (iv) use the proceeds of the
Supplemental Revolving Loans for ongoing working capital and
general corporate purposes; (v) use the proceeds of the E
Tranche Term Loan (A) to repay outstanding Revolving Loans and
Supplemental Revolving Loans under the Existing Credit
Agreement, (B) to pay certain fees and expenses incurred in
connection with the execution and delivery of the Existing
Credit Agreement and (C) after the outstanding Revolving Loans
and Supplemental Revolving Loans under the Existing Credit
Agreement have been repaid in full, to prepay, repurchase,
redeem or otherwise extinguish any Indebtedness for Money
Borrowed of the Borrower constituting Senior Indebtedness
and/or for general corporate purposes; and (vi) not use any
part of the proceeds of any Loan or Letter of Credit hereunder
for any purpose other than as set forth in this Section,
including without limitation, to purchase or carry any Margin
Stock or to extend credit to others for such purpose in
violation of Regulation G, U or X of the Board.
5.1.12 [Intentionally Omitted.
5.1.13 Redemption of Senior Subordinated Notes
and Stone Savannah Stock. On or prior to December 30, 1994,
(i) cause the amounts deposited with the trustee under the
Stone Savannah Senior Subordinated Note Indenture on the
Closing Date to be used to redeem in full all of the Stone
Savannah Senior Subordinated Notes at par (plus stated
premium), together with accrued and unpaid interest thereon,
(ii) redeem in full or otherwise purchase, (A) all of the
outstanding Stone Savannah Preferred Stock at par (plus stated
premium), together with accrued and unpaid dividends thereon,
and (B) all of the issued and outstanding Stone Savannah
Common Stock not owned by the Borrower and (iii) cause Stone
Savannah to merge into the Borrower or make other arrangements
satisfactory to the Required Lenders with respect to the
Collateral and Mortgaged Property owned by Stone Savannah.
The redemptions and purchases described in (i) and (ii) of
this Section 5.1.13 are collectively referred to as the "Stone
Savannah Transactions".
5.1.14 Environmental Notification.
(a) Notify the Agent, in writing, promptly, and in
any event within twenty (20) days after a Responsible
Officer learns thereof, of any: (A) written notice or
claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person in an
amount in excess of $5,000,000 as a result of the Release
or threatened Release of any Contaminant into the
environment; (B) written notice that the Borrower or any
of its Subsidiaries is subject to investigation by any
governmental authority evaluating whether any Remedial
Action involving potential claims or costs to the
Borrower or its Subsidiaries in excess of $5,000,000 is
needed to respond to any material Release or threatened
Release of any Contaminant into the environment; or
(C) notice of violation to the Borrower or any of its
Subsidiaries of conditions which result in a notice of
violation of any Environmental Laws or Environmental
Permits, which could reasonably be expected to have a
Material Adverse Effect.
(b) Upon written request by the Agent, the
Borrower shall promptly submit to the Agent and the
Lenders a report providing an update of the status of
each environmental, health or safety compliance, hazard
or liability issue identified in any notice or report
required pursuant to clause (i) above and any other
environmental, health and safety compliance obligation,
remedial obligation or liability that could reasonably be
expected to have a Material Adverse Effect.
5.1.15 Environmental Compliance. The Borrower
shall, and shall cause each of its Subsidiaries, in the
exercise of its reasonable business judgment, to take prompt
and appropriate action to respond to any material non-
compliance with Environmental Laws or Environmental Permits or
to any unpermitted Release or threatened Release of a
Contaminant, and shall regularly report to the Agent on such
response. Without limiting the generality of the foregoing,
whenever the Agent or any Lender has a reasonable basis to
believe that the Borrower is not in material compliance with
all Environmental Laws or Environmental Permits or that any
property of the Borrower or its Subsidiaries, or any property
to which Contaminants generated by Borrower or its
Subsidiaries have come to be located ("Offsite Property") has
or may become contaminated or subject to an order or decree
such that any such non-compliance, contamination or order or
decree could reasonably be expected to have a Material Adverse
Effect then the Borrower agrees to, at the Agent's request and
the Borrower's expense: (a) cause a qualified environmental
engineer reasonably acceptable to the Agent to assess the site
where the alleged or actual noncompliance contamination has
occurred and prepare and deliver to the Agent, the Lenders and
the Borrower a report reasonably acceptable to Agent setting
forth the results of such assessments, a proposed plan and
schedule for responding to any environmental problems
described therein, and an estimate of the costs thereof; and
(b) provide the Agent, the Lenders and the Borrower a supple-
mental report of such engineer whenever the scope of the
environmental problems or the Borrower's response thereto or
the estimated costs thereof, shall change in any material
respect; or, as an alternative to subparagraphs (a) and (b)
above, the Borrower, upon the Agent's or any Lender's request,
shall allow the Agent or such Lender, as the case may be, or
an agent or representative of the Agent or such Lender, to
enter onto the property to conduct any desired environmental
audits and tests at the Borrower's expense. The Agent and the
Lenders hereby covenant and agree that any reports, records,
notices, estimates or other information they receive in
connection with this subsection shall be kept strictly
confidential, and shall not be disclosed to or used by any
Person (other than the Agent's or any Lender's authorized
representatives for the purpose of reviewing or enforcing the
Agent's or such Lender's rights hereunder or as permitted by
Section 9.12(g), which persons shall also be bound by this
sentence) unless and only to the extent that disclosure is
required pursuant to any Environmental Laws, Environmental
Permits, or order of a court of competent jurisdiction, in
which case the Agent or such Lender, as the case may be, shall
promptly notify the Borrower in writing of such requirement
and the nature and extent of the required disclosure.
5.1.16 Additional Subsidiary Guarantees. Upon
the request of the Agent, the Borrower shall cause any
domestic Subsidiary (other than StoneSub) from time to time
having assets with a fair market value in excess of $25
million to execute a Subsidiary Guarantee; provided, however,
that in the event the Borrower acquires, directly or
indirectly, a domestic Subsidiary in an Acquisition after the
Closing Date, such Subsidiary shall not be required to execute
a Subsidiary Guarantee so long as (i) all of the funds used by
the Borrower, directly or indirectly, to acquire such
Subsidiary were Discretionary Funds and (ii) neither the
Borrower nor any other Subsidiary shall make any loans or
advances to, or any Investments in (other than the initial
Investment therein), such Subsidiary, or assume, guarantee or
endorse or otherwise become directly or contingently liable in
respect of, any obligation of such Subsidiary until a
Subsidiary Guarantee is so delivered.
5.1.17 Delayed Collateral
(a) The parties acknowledge that as a result of
delays associated with title and survey matters, third party
consent requirements and other matters (i) with respect to
certain converting plants it has been impractical to
consummate on the Closing Date the mortgaging of the interests
of the Borrower or a Subsidiary, as applicable, in the
Mortgaged Property (the "Delayed Properties") marked with an
asterisk on Schedule 1.1(c), and (ii) with respect to certain
of the Mortgaged Properties that were mortgaged on the Closing
Date, certain title, survey, local counsel opinions and other
documents ("Ancillary Documents") may not be available on the
Closing Date.
(b) As soon as practicable, but in any event on or
prior to February 17, 1995, the Borrower shall, or, as
applicable, shall cause its applicable Subsidiaries to,
execute and deliver, or cause to be delivered, to the Agent
(i) Mortgages with respect to the Delayed Properties together
with all fixed assets and inventory located at such facilities
and including such environmental information and studies,
leases, title reports, title insurance (with all requirements
for the issuance thereof having been satisfied), lien
searches, opinions of counsel, evidence of recordation and
payment of applicable taxes as the Agent may reasonably
request and (ii) such Ancillary Documents as the Agent may
reasonably request. The Borrower shall also take or cause to
be taken all actions reasonably requested by the Agent in
order to perfect or protect the Liens of the Mortgages with
respect to the Delayed Properties. Without limiting the
foregoing, the Borrower shall use its best non-financial
efforts to secure such landlord consents, waivers and similar
documents as the Agent may reasonably request in connection
with leasehold mortgages and related mortgages or pledges of
the Delayed Properties.
(c) To the extent that the Agent shall, in its
sole discretion, determine that in light of environmental,
legal or other considerations it would be adverse to the
interests of the Lenders or impractical to accept as
collateral one or more of the Delayed Properties, it may in
writing release the Borrower from its obligations to pledge
any of such Delayed Properties, provided that the Borrower
shall provide, or cause to be provided, such alternative
collateral of reasonably comparable value as may be acceptable
to the Agent. Such additional collateral shall be granted
pursuant to such documentation and within such time period as
may be satisfactory to the Agent.
(d) To the extent that the Borrower or an
applicable Subsidiary is contractually prohibited from
granting a leasehold mortgage or mortgage on any Delayed
Property which is leased or subject to an industrial revenue
bond financing and the Borrower has complied with the last
sentence of Section 5.1.17(b), the Borrower shall be released
from its obligation to grant a leasehold mortgage or mortgage
thereupon but shall not be released from its obligation to
pledge the fixed assets or inventory located at such Delayed
Property unless the Borrower or its applicable Subsidiary is
contractually prohibited from doing so in the relevant lease.
5.1.18 Merger of Stone Southwest The Borrower
shall cause Stone Southwest to be merged with and into the
Borrower promptly after the earlier of (i) at such time as
when such merger would no longer cause a violation or breach
of the terms and conditions of the Stone Southwest Indenture
or any other material agreement or indenture to which Stone
Southwest is a party and (ii) such time as all Indebtedness
issued under the Stone Southwest Indenture and such other
agreements and indentures has been paid in full and such
merger is no longer restricted thereby.
5.1.19 Additional Collateral. As soon as
practicable, but in any event on or prior to January 30, 1997,
the Borrower shall execute and deliver, or cause to be
delivered, to the Agent a Mortgage and a Security Agreement
(or an amendment to the existing Security Agreement) with
respect to the Borrower's paper mill located in Jacksonville,
Florida and all fixed assets, inventory and other tangible
personal property located at such facility, together with such
surveys, environmental information and studies, title reports,
title insurance (with all requirements for the insurance
thereof having been satisfied), financing statements, lien
searches, opinions of counsel, evidence of recordation and
payment of applicable recording and other taxes as the Agent
may reasonably request, and all in form and substance
reasonably satisfactory to the Agent. The Borrower shall also
take or cause to be taken all actions reasonably requested by
the Agent in order to perfect or protect the Lien of the
Mortgage and Security Agreement with respect to such
properties and assets.
5.1.20 Stone Snowflake Sale Proceeds.
Substantially simultaneously with the consummation of the
Stone Snowflake Sale Transaction, cause Stone Snowflake to
declare and pay to the Borrower an extraordinary dividend in
an amount not less than the amount of proceeds received by
Stone Snowflake in the Stone Snowflake Sale Transaction which
would have constituted Material Sale Proceeds but for the
Borrower's election to treat such proceeds as Excluded Sale
Proceeds under the Excluded Sales Proceeds Basket pursuant to
the terms of the Fifth Amendment (such amount being the
"Snowflake Collateral Amount"). The Borrower shall cause
(i) the amount of proceeds received by the Borrower for the
sale of all of the capital stock of Apache Railway Corporation
which would have constituted Material Sale Proceeds but for
the Borrower's election to treat such proceeds as Excluded
Sale Proceeds under the Excluded Sales Proceeds Basket
pursuant to the terms of the Fifth Amendment (such amount
being the "Apache Collateral Amount") and (ii) the Snowflake
Collateral Amount to be paid for the Borrower's account
directly into the cash collateral account established pursuant
to the Stone Snowflake Cash Collateral Agreement. Prior to
consummating the Stone Snowflake Sale Transaction, the
Borrower shall execute and deliver to the Agent the Stone
Snowflake Cash Collateral Agreement, together with such
financing statements, legal opinions and other certificates
and documents as the Agent may reasonably request, all in form
and substance satisfactory to the Agent. The Borrower shall
also take or cause to be taken all actions reasonably
requested by the Agent in order to perfect or protect the Lien
of the Stone Snowflake Cash Collateral Agreement with respect
to such cash Collateral. The Borrower acknowledges and agrees
that, pursuant to Section 6 of the Stone Snowflake Pledge
Agreement, the Snowflake Collateral Amount constitutes, and
shall be held as, Collateral as required under the terms of
the Stone Snowflake Pledge Agreement and pursuant to the terms
and conditions of the Stone Snowflake Cash Collateral
Agreement.
5.1.21 Y2K Problem. The Borrower shall take all
commercially reasonable actions necessary and commit adequate
resources to assure that its computer-based and other systems
(and those of all Subsidiaries) are able to effectively
process dates, including dates before, on and after January 1,
2000, without experiencing any Y2K Problem that could cause a
Material Adverse Effect.
5.1.22 Maintenance of Corporate Separateness.
Satisfy, and cause each of its Subsidiaries to satisfy,
customary corporate formalities, including the maintenance of
corporate records. Neither the Borrower nor any Subsidiary of
the Borrower shall make any payment to a creditor of SSCC or
any of its Subsidiaries (other than the Borrower and its
Subsidiaries) in respect of any liability of SSCC or any of
its Subsidiaries (other than the Borrower and its
Subsidiaries), and no bank account of SSCC or any of its
Subsidiaries (other than the Borrower and its Subsidiaries)
shall be commingled with any bank account of the Borrower or
any Subsidiary of the Borrower. Any financial statements
distributed to any creditors of SSCC or any of its
Subsidiaries shall, to the extent permitted under GAAP,
clearly establish the corporate separateness of SSCC and its
Subsidiaries (other than the Borrower and its Subsidiaries)
from the Borrower and each of its Subsidiaries. Neither the
Borrower nor any of its Subsidiaries shall take any action, or
conduct its affairs in a manner, which is reasonably likely to
result in the corporate existence of SSCC or its Subsidiaries
(other than the Borrower and its Subsidiaries), on the one
hand, and of the Borrower or any Subsidiary of the Borrower,
on the other hand, being ignored, or in the assets and
liabilities of the Borrower or any Subsidiary of the Borrower
being substantively consolidated with those of SSCC or any of
its Subsidiaries (other than the Borrower and its
Subsidiaries) in a bankruptcy, reorganization or other
insolvency proceeding.
Section 5.2 Negative Covenants of the Borrower.
The Borrower covenants and agrees that for so long as this
Agreement is in effect and until the Obligations and all other
obligations incurred hereunder, whether or not matured, are
paid in full and all Commitments have terminated, without the
prior written consent of the Required Lenders, the Borrower
will not nor will it permit any Subsidiary of the Borrower to:
5.2.1 Liens. Except for Permitted Liens,
create, incur, assume or permit to exist any Lien on any of
its or any of its Subsidiaries' existing or future properties,
assets (including stock of any Subsidiaries), income or rights
in any thereof whether now owned or hereafter acquired.
5.2.2 Indebtedness for Money Borrowed. Create,
incur, assume or suffer to exist any Indebtedness for Money
Borrowed except for:
(a) the Obligations under the Loan Documents;
(b) Indebtedness for Money Borrowed as shown on
Schedule 5.2.2(b) hereto;
(c) Indebtedness for Money Borrowed incurred by
Europa Carton A.G., Stone Container GmbH, Ston Forestal,
S.A., Stone Container de Mexico S.A. de C.V., Cartomills,
S.A., Societe Emballages des Cevennes, S.A., Stone
Container Australia Pty. Ltd and Stone Container Japan
Co., Ltd. or any Subsidiary thereof, or any foreign
Subsidiary created or acquired after the Second
Restatement Date (other than a Subsidiary created or
existing under United States or Canadian laws, or any
State, Province or other subdivision thereof), in each
case which is not guaranteed by (except as permitted by
Section 5.2.3(i)) and is non-recourse to the Borrower or
any other Subsidiary of the Borrower (it being understood
and agreed that the German Financing Intercompany Note
shall not be deemed to make the Indebtedness incurred in
the German Financing recourse to the obligor thereof for
purposes of this Section 5.2.2(c));
(d) intercompany loans and advances (i) made in
the ordinary course of business to the Borrower or
Wholly-Owned Subsidiaries of the Borrower and, in the
case of non-Wholly-Owned Subsidiaries, Indebtedness
arising out of Investments permitted by Section 5.2.7;
(ii) evidenced by the German Financing Intercompany Note;
or (iii) made to StoneSub in an aggregate principal
amount at any time outstanding not in excess (together
with any unreimbursed capital contributions made pursuant
to Section 5.2.7(h)) of (A) the amounts contemplated from
time to time by the terms of the respective Receivables
Financings and (B) those amounts, up to an aggregate at
any one time outstanding of $5 million for each $100
million (on a pro-rated basis) of Receivables Financings
which have been established and are in existence at such
time, which may be advanced to StoneSub in order to cure
or remedy, or otherwise avoid the commencement of,
liquidation, termination or similar events in connection
with the Receivables Financings; provided, however, that
(1) all such intercompany loans and advances owing to or
in favor of the Borrower from Stone-Canada are evidenced
by an intercompany promissory note in the form of Exhibit
5.2.2(d) hereto (or such other form, in form and
substance satisfactory to the Agent), which notes are
delivered to the Agent and pledged by the Borrower to the
Agent as Collateral pursuant to a Pledge Agreement, (2)
except as otherwise expressly permitted under this
Agreement, this clause (d) shall not be deemed to permit
intercompany Indebtedness for Money Borrowed made to
SVCPI (other than pursuant to contractual agreements
permitted by this Agreement and as in effect on the date
hereof) or to S-CC or any of S-CC's Subsidiaries other
than Indebtedness for Money Borrowed made between S-CC
and its Subsidiaries or between Subsidiaries of S-CC, and
(3) this clause (d) shall not be deemed to permit
intercompany Indebtedness for Money Borrowed made to
Stone Container GmbH or any of its Subsidiaries except
for (x) Indebtedness for Money Borrowed made between
Stone Container GmbH and its Subsidiaries or between
Subsidiaries of Stone Container GmbH and (y) Indebtedness
for Money Borrowed evidenced by the German Financing
Intercompany Note;
(e) the Indebtedness for Money Borrowed of any
Person at the time such Person becomes a Subsidiary, or
is merged or consolidated with or into the Borrower or a
Subsidiary of the Borrower, so long as such Indebtedness
for Money Borrowed was not created in anticipation of or
as a result of such Person becoming a Subsidiary of the
Borrower or of such merger or consolidation;
(f) refinancings of Indebtedness for Money
Borrowed due to remarketing provisions, to provisions
relating to computing a variable rate of interest or to
provisions providing for the fixing of interest rates on
theretofore variable rate obligations as provided for in
the instruments pursuant to which such Indebtedness for
Money Borrowed was issued as in effect on the Restatement
Date or assumed pursuant to Section 5.2.2(e), provided
that the principal amount of such Indebtedness for Money
Borrowed is not increased thereby except to the extent
necessary to finance the fees and costs of such
refinancing;
(g) Indebtedness for Money Borrowed all the net
proceeds of which are used promptly (but in no event more
than five Business Days) after the date of the incurrence
of such Indebtedness for Money Borrowed to effect the
prepayments as set forth in Sections 3.4 and 3.6 so long
as: (i) with respect to any such Indebtedness for Money
Borrowed in an aggregate principal amount not to exceed
$300,000,000, (A) such Indebtedness for Money Borrowed is
not secured by any Lien (other than Permitted Liens
described in clause (h) of the definition of Permitted
Liens), (B) such Indebtedness has an average life which
is at least equal to one year greater than the remaining
average life of the Term Loan but is less than one year
greater than the remaining average life of the Additional
Term Loan, D Tranche Term Loan and the E Tranche Term
Loan, and (C) such Indebtedness has a maturity which is
at least one year after the latest date (taking into
account the application of all previous prepayments) on
which any regularly scheduled principal installment is at
the time due to be paid on the Term Loan but is less than
one year after the latest date (taking into account the
application of all previous prepayments) on which any
regularly scheduled principal installment is at the time
due to be paid on the Additional Term Loan, D Tranche
Term Loan and the E Tranche Term Loan; and (ii) with
respect to any such Indebtedness for Money Borrowed
(other than any such Indebtedness for Money Borrowed
referred to in clause (i) above), (A) such Indebtedness
for Money Borrowed is not secured by any Lien (other than
Permitted Liens described in clause (h) of the definition
of Permitted Liens), (B) such Indebtedness has an average
life which is at least equal to one year greater than the
remaining average life of the Additional Term Loan,
D Tranche Term Loan and the E Tranche Term Loan and (C)
such Indebtedness has a maturity which is at least one
year after the latest date (taking into account the
application of all previous prepayments) on which any
regularly scheduled principal installment is at the time
due to be paid on the Additional Term Loan, D Tranche
Term Loan and the E Tranche Term Loan;
(h) Indebtedness for Money Borrowed (i) in respect
of tax-exempt financings or (ii) all of the net proceeds
of which are used to effect a prepayment or defeasance of
any IRB identified on Schedule 5.2.2(h) hereto (A) in the
event that amendments to the Code are enacted which would
require that the Borrower prepay or defease such IRB, (B)
which is put to the Borrower pursuant to presently
existing contractual arrangements identified on Schedule
5.2.2 hereto and which the Borrower is not able to resell
at a market interest rate without effecting a
"reissuance" thereof for tax purposes, or (C) which is
being refinanced on terms requiring repayment of such
Indebtedness for Money Borrowed at times no earlier than
and in amounts no greater (except to the extent necessary
to finance the fees and costs of such refinancing) than
required by the present amortization schedule for the IRB
being refinanced and subject to covenants, defaults and
other terms which are not materially more restrictive
upon or disadvantageous to the obligor than the existing
terms;
(i) Indebtedness for Money Borrowed consisting of
Financing Lease Obligations; provided, however, that the
amount of such obligations incurred after the Restatement
Date and payable prior to the Additional Term Loan
Maturity Date, D Tranche Term Loan Maturity Date or the
E Tranche Term Loan Maturity Date shall not exceed $100
million;
(j) Indebtedness for Money Borrowed constituting
guarantees by the Borrower or any Subsidiary permitted by
Section 5.2.3;
(k) Indebtedness for Money Borrowed of the
Borrower or a Subsidiary of the Borrower, as the case may
be, issued, incurred or assumed in respect of the
purchase price of property which is not secured by any
Lien other than a Lien referred to in clause (b) of the
definition of Permitted Liens; provided, however, that
not more than $125 million in aggregate principal amount
of such Indebtedness for Money Borrowed shall mature
prior to the Additional Term Loan Maturity Date, D
Tranche Term Loan Maturity Date or the E Tranche Term
Loan Maturity Date;
(l) Subordinated Debt;
(m) Indebtedness for Money Borrowed consisting of
an unsecured line of credit not exceeding at any time
outstanding $50 million in aggregate principal amount by
Stone-Canada or any Subsidiary of Stone-Canada (other
than S-CC);
(n) Indebtedness for Money Borrowed as defined in
clause (vi) of the definition of such term contained in
the Definitional Appendix;
(o) Indebtedness for Money Borrowed incurred in
respect of (i) foreign exchange, interest rate swap,
interest rate cap insurance, hedging agreements or
similar arrangements entered into in the ordinary course
of business by the Borrower in connection with the
Obligations with a notional amount of such agreements not
exceeding the aggregate principal amount of the
Obligations, (ii) foreign exchange or currency swap
agreements or similar arrangements entered into in the
ordinary course of business by the Borrower or any
Subsidiary to protect the Borrower or any Subsidiary
against fluctuations in currency values and (iii) one or
more unsecured interest rate swap or similar hedging
arrangements entered into in the ordinary course of
business by the Borrower pursuant to which the fixed
interest rate payment obligations up to $500 million
aggregate principal amount of Indebtedness for Money
Borrowed at any time outstanding would be converted to
floating interest rate payment obligations;
(p) Indebtedness for Money Borrowed of the
Borrower as permitted by the penultimate sentence of
Section 5.2.13; and Indebtedness for Money Borrowed by
StoneSub from the Issuer pursuant to Receivables
Financings which in the aggregate shall not permit
StoneSub to incur Indebtedness for Money Borrowed in
excess of, subject to the third proviso of the
penultimate sentence of Section 5.2.13, $500 million at
any one time outstanding (and in the event that the
Accounts Receivable Financing Program includes Canadian
dollar Receivables of Subsidiaries organized under
Canadian laws, without giving effect to increases in such
amount after the date of the incurrence of such
Indebtedness for Money Borrowed, or portion thereof,
solely as the result of subsequent fluctuations in the
exchange rate between U.S. and Canadian dollars);
provided, however, that if (i) the Borrower either
(A) acquires any Subsidiaries not in existence as of the
Closing Date (other than through the formation of
Subsidiaries in the ordinary course of business to
conduct existing lines of business) or (B) enters into
any lines of business in which it is not engaged as of
the Closing Date and (ii) the Borrower and/or StoneSub
engages in a Receivables Financing or financing permitted
by the penultimate sentence of Section 5.2.13, in each
case with respect to the Receivables of the Subsidiary so
acquired or the line of business so acquired (each such
financing, solely to the extent relating to such new
Subsidiary or new line of business, a "New Receivables
Financing") then, in such event, the initial proceeds to
the Borrower or StoneSub (as applicable) of such New
Receivables Financing, net of the amount of any initial
deposit to, the applicable cash collateral spread
account and of the fees and expenses of the Borrower or
StoneSub incurred in establishing such New Receivables
Financing and net of any amounts required to refinance
then existing New Receivables Financings, shall be used
(following remittance to the Borrower or the
Participating Subsidiary, as applicable, for the purchase
of Receivables therefrom) to make a mandatory prepayment
as required by Section 3.4(b) in the order required by
Section 3.6(b) and (ii) in the case of any New
Receivables Financing structured as a borrowing by
StoneSub (or deemed to be a borrowing pursuant to the
terms hereof), StoneSub shall borrow (A) on the initial
date of any New Receivables Financing, the maximum
borrowings then available to it (based on the initial
amount of Receivables transferred) under such New
Receivables Financing (except that such initial maximum
borrowings may be reduced by no more than $2 million for
each New Receivables Financing for reasons of
administrative practicality) and (B) after such initial
date, in the reasonable business judgment of StoneSub,
the maximum borrowings practicable under such New
Receivables Financings which have been established and
are continuing. For purposes of this Agreement, (i) in
the event that the terms of any New Receivables Financing
are amended to increase the potential borrowings or sales
thereunder, the initial borrowing or sale by StoneSub
under such amended program shall be deemed to constitute
a borrowing or sale under an additional New Receivables
Financing to the extent of such increase, provided that
this clause (i) shall not apply in the event that the
increase in the potential borrowings or sales under such
New Receivables Financing is being made solely to finance
additional purchases of Receivables from then existing
business lines of Participating Subsidiaries whose
Receivables with respect to such business line or lines
have grown or are expected to grow as the result of price
increases, greater sales or similar changes in general
business lines, (ii) in the event that any sale or
purported sale of Receivables to StoneSub by the Borrower
or any Participating Subsidiary is required to be
recharacterized as a loan, the resulting obligations of
the Borrower or such Participating Subsidiary shall not
be deemed to be Indebtedness for Money Borrowed and (iii)
any Receivables Financing structured as a sale of
Receivables by StoneSub to the Issuer shall, for all
purposes of this Agreement, and regardless of the
treatment thereof by the Borrower on its financial
statements, be deemed to be an incurrence by StoneSub of
Indebtedness for Money Borrowed in respect of the
financing of the Receivables involved and not as a sale
of such Receivables by StoneSub;
(q) Indebtedness for Money Borrowed constituting
refinancings of Indebtedness for Money Borrowed
identified on Schedule 5.2.2(b) hereto or in Section
5.2.2(v) so long as the proceeds of such newly issued
Indebtedness for Money Borrowed are used promptly (but in
no event more than five Business Days, or such longer
period of time (not to exceed ninety (90) days) provided
such proceeds are held pursuant to escrow arrangements
satisfactory to the Agent) after the incurrence of such
Indebtedness for Money Borrowed to consummate such
refinancing; provided, however, that no such refinancing
shall shorten the final maturity or average loan life of
the refinanced Indebtedness, increase the collateral, if
any, securing any such refinanced Indebtedness (provided
that any collateral securing such refinanced Indebtedness
may be substituted with other property or assets so long
as the fair market value thereof does not exceed the fair
market value of the collateral being substituted at the
time of such substitution), be on terms which, taken as
a whole, are materially more adverse to the obligor or
modify in any way adverse to the Lenders any
subordination provisions applicable to such Indebtedness
and, to the extent the refinanced Indebtedness is non-
recourse to the Borrower and its other Subsidiaries and
is not otherwise permitted to be recourse Indebtedness,
such Indebtedness shall be non-recourse to the Borrower
and its other Subsidiaries;
(r) Indebtedness for Money Borrowed the net
proceeds of which are used to pay annual premiums for
property and casualty insurance policies maintained by
the Borrower or its Subsidiaries and other prepaid
amounts in respect of goods or services purchased by the
Borrower or its Subsidiaries in the ordinary course of
business, which Indebtedness at no time exceeds $40
million in aggregate outstanding principal amount, is
unsecured (except for Liens described in clause (n) of
the definition of Permitted Liens) and is incurred on
terms and pursuant to documentation satisfactory to the
Agent;
(s) from and after the date on which the Borrower
has repaid all outstanding Revolving Loan Obligations,
Supplemental Revolving Loan Obligations and Swing Line
Obligations, has terminated the Swing Line Commitment,
all Revolving Loan Commitments and all Supplemental
Revolving Loan Commitments, and there exists no L/C
Obligations, Indebtedness for Money Borrowed under a
replacement revolving credit facility in an aggregate
principal amount not to exceed $450 million, all of the
proceeds of which (net of issuance costs) are used for
general corporate purposes (including without limitation
repayment of Revolving Loans, Supplemental Revolving
Loans and Swing Line Loans), provided that such
Indebtedness for Money Borrowed shall be on terms not
materially more adverse to the Borrower than those
existing hereunder;
(t) secured or unsecured Indebtedness for Money
Borrowed in an aggregate principal amount not to exceed
$400 million for general corporate purposes; provided,
however, that (i) if such Indebtedness for Money Borrowed
constitutes Senior Indebtedness, the terms and conditions
of such Indebtedness and the documentation relating
thereto shall be substantially similar to, or shall be
not materially more burdensome or restrictive with
respect to the Borrower and its Subsidiaries or the Agent
and the Lenders than, the terms and conditions of, and
the documentation relating to, the Borrower's
Indebtedness for Money Borrowed issued pursuant to the
Senior Indentures, and such Senior Indebtedness shall
bear a market rate of interest for comparable instruments
at the time of issue or sale and shall have no scheduled
amortization payments or otherwise mature on or prior to
October 1, 2003, (ii) if such Indebtedness for Money
Borrowed does not constitute Senior Indebtedness, the
terms and conditions of such Indebtedness and the
documentation relating thereto shall be substantially
similar to the terms and conditions of, and the
documentation relating to, the Borrower's Subordinated
Debt issued pursuant to the Senior Subordinated Note
Indenture, and such Subordinated Debt shall bear a market
rate of interest for comparable instruments at the time
of issue or sale and shall have no scheduled amortization
payments or otherwise mature on or prior to October 1,
2003, (iii) to the extent such Indebtedness for Money
Borrowed is secured, such Liens are permitted by clause
(o) of the definition of Permitted Liens and the
Indebtedness secured thereby shall not be less than 66%
of the value of the collateral securing such Indebtedness
as of the date which such Indebtedness is incurred, as
such value is evidenced by appraisals or other
information delivered to the Agent by the Borrower, and
(iv) in no event shall any Subsidiary incur Indebtedness
pursuant to this subsection that is recourse to the
Borrower or any other Subsidiary if such Indebtedness
refinances Indebtedness that is non-recourse to the
Borrower and its other Subsidiaries and is not otherwise
permitted to be recourse to the Borrower and its other
Subsidiaries; and provided further, that until such time
as the Borrower has fully complied with provisions set
forth in the first proviso to Section 5.2.10(e), neither
the Borrower nor any of its Subsidiaries will incur any
further Indebtedness under this Section 5.2.2(t) from and
after March 26, 1998 except for the sole purpose of
repaying the Excess Revolver Amount, if any, as provided
in Section 5.2.10(e); and provided further, that if the
aggregate principal amount of Indebtedness which the
Borrower proposes to incur under this Section 5.2.2(t) in
order to repay the Excess Revolver Amount exceeds the
aggregate principal amount which the Borrower and its
Subsidiaries are permitted to incur under this Section
5.2.2(t) (after giving effect to all prior incurrences of
Indebtedness hereunder), then the aggregate principal
amount of Indebtedness permitted to be incurred under
this Section 5.2.2(t) shall be increased in an amount
necessary such that the principal amount of such
Indebtedness proposed to be incurred under this Section
5.2.2(t) will be equal to the Excess Revolver Amount;
(u) Indebtedness for Money Borrowed of S-CC and
Subsidiaries of S-CC to the extent permitted by the S-CC
Debt Documents. Any such Indebtedness for Money Borrowed
shall be non-recourse to the Borrower or any of its other
Subsidiaries (except S-CC and its Subsidiaries);
(v) Indebtedness for Money Borrowed incurred
pursuant to the Senior Notes and the First Mortgage
Notes;
(w) unsecured Indebtedness for Money Borrowed the
proceeds of which shall be used to repay Revolving Loans
and which shall be in an aggregate principal amount which
does not exceed the lesser of (i) the aggregate cash
consideration paid by or on behalf of the Borrower to
repurchase or prepay the 8-7/8% Notes plus the aggregate
cash consideration which the Borrower notifies the Agent
prior to the issuance of such Indebtedness for Money
Borrowed that it intends (although not obligated) to pay
to repurchase or prepay the remaining outstanding 8-7/8%
Notes, in each case, as permitted by Section
5.2.10(a)(xiv), and (ii) $50 million; provided, however,
that (A) if such unsecured Indebtedness for Money
Borrowed shall constitute Senior Indebtedness, then the
terms and conditions of such Indebtedness for Money
Borrowed, and the documentation relating thereto, shall
be substantially similar to the terms and conditions of,
and the documentation relating to, the Borrower's Senior
Indebtedness issued pursuant to the Indenture dated
November 1, 1991 between the Borrower and The Bank of New
York, as trustee, or the Indenture dated October 12, 1994
between the Borrower and The Bank of New York, as
trustee, and such Senior Indebtedness shall bear a market
rate of interest for comparable instruments at the time
of issue or sale and shall have no scheduled amortization
payments on or prior to October 1, 2003, and (B) if such
Indebtedness for Money Borrowed does not constitute
Senior Indebtedness, then the terms and conditions of
such Indebtedness for Money Borrowed, and the
documentation relating thereto, shall be substantially
similar to the terms and conditions of, and the
documentation relating to, the Borrower's Subordinated
Debt issued pursuant to the Indenture dated March 15,
1992 between the Borrower and The Bank of New York, as
trustee, and such Indebtedness shall bear a market rate
of interest for comparable instruments at the time of
issue or sale and shall have no scheduled amortization
payments on or prior to October 1, 2003;
(x) secured Indebtedness for Money Borrowed in an
aggregate principal amount not to exceed $100 million and
all the net proceeds of which may be used (i) for general
corporate purposes permitted hereunder and/or (ii) to
prepay, repurchase, redeem or otherwise extinguish any
scheduled installment or stated maturity of any other
Indebtedness for Money Borrowed of the Borrower which,
pursuant to the contractual terms thereof, is scheduled
for repayment or maturity on or before May 1, 1999;
provided, however, that (A) the terms and conditions of
such Indebtedness for Money Borrowed and the
documentation relating thereto shall be substantially
similar to, or shall be not materially more burdensome or
restrictive with respect to the Borrower and its
Subsidiaries or the Agent and the Lenders than, the terms
and conditions of, and the documentation relating to, the
Borrower's Indebtedness for Money Borrowed issued
pursuant to the Specified Senior Indentures (and other
terms and conditions which are normal and customary for
real estate securitizations and satisfactory to the
Agent), and such Indebtedness for Money Borrowed shall
bear a market rate of interest for comparable instruments
at the time of issue or sale and which has scheduled
amortization payments in an aggregate principal amount
not exceeding $20 million on or prior to October 1, 2003,
(B) such Indebtedness for Money Borrowed is secured by
mortgages on one or more box converting facilities owned
by the Borrower, which mortgages secure only the real
property and not any personal property (including
machinery and equipment) located at such facilities,
provided such Liens are permitted by clause (o) of the
definition of Permitted Liens and the value of the
collateral shall not exceed 200% of the Indebtedness
secured thereby as of the date such Indebtedness is
incurred, as such value is evidenced by appraisals or
other documentation satisfactory to the Agent, (C) the
documentation relating to such Indebtedness for Money
Borrowed shall be in form and substance satisfactory to
the Agent and (D) the Borrower and the Persons issuing or
extending such Indebtedness for Money Borrowed shall have
executed and delivered to the Agent such intercreditor
agreements as the Agent may request, in form and
substance satisfactory to the Agent;
(y) Intentionally Omitted; and
(z) Indebtedness for Money Borrowed issued or
incurred in connection with an Abitibi Sale/Monetization
the proceeds of which are used in accordance with Section
3.4(d) and 5.2.12(v); provided, however, that (A) such
Indebtedness shall bear a market rate of interest for
comparable instruments at the time of issue or sale, (B)
such Indebtedness for Money Borrowed shall constitute
Indebtedness which qualifies as Subordinated Capital Base
(as such term is utilized and defined in the Specified
Senior Indentures), and the terms and conditions of such
Indebtedness for Money Borrowed, and the documentation
relating thereto (other than terms and conditions
providing for the creation of a trust and related Lien
permitted by clause (t) of the definition of Permitted
Liens and exchange or conversion provisions relating to
the exchange or conversion of such Indebtedness for Money
Borrowed for or into Abitibi Shares), shall be
substantially similar to, or shall be not materially more
burdensome or restrictive with respect to the Borrower
and its Subsidiaries or the Agent and the Lenders than,
the terms and conditions of, and the documentation
relating to, the Borrower's Subordinated Debt issued
pursuant to the Indenture dated March 15, 1992 between
the Borrower and The Bank of New York, as trustee, and
(C) such Indebtedness for Money Borrowed shall only be
subject to a Lien permitted by clause (t) of the
definition of Permitted Liens.
Any Indebtedness for Money Borrowed used in the calculation of
any threshold amount specified in any clause of this Section
5.2.2 shall not be used to calculate the threshold amounts
specified in another of such clauses.
5.2.3 Guarantees. Assume, guarantee or
endorse, or otherwise become directly or contingently liable
in respect of, any obligation of any Person, except, without
duplication:
(a) subject to Section 5.3.2, the Borrower may
assume, guarantee or endorse, or otherwise become
directly or contingently liable in respect of, any
obligation of any Person, provided that notwithstanding
the foregoing the Borrower shall not be permitted to
assume, guarantee or otherwise take any of the foregoing
actions with respect to any Indebtedness for Money
Borrowed incurred by S-CC, Seminole Kraft (except as
permitted by Sections 5.2.8(g) and 5.2.10(a)(xiii)),
StoneSub, SVCPI or any Subsidiary of any of such entities
except as set forth on Schedule 5.2.3 hereto;
(b) by way of endorsement of negotiable instruments
for deposit or collection and similar transactions;
(c) guarantees identified on Schedule 5.2.3
hereto;
(d) guarantees by any Subsidiary of the Borrower
of Indebtedness for Money Borrowed constituting Financing
Lease Obligations of any of its Subsidiaries (other than
S-CC, SVCPI, or any of their respective Subsidiaries)
permitted by Section 5.2.2;
(e) guarantees by a Subsidiary of the Borrower
(other than S-CC or any of its Subsidiaries) in the
ordinary course of business of such Subsidiary of
Indebtedness of any Person not exceeding in principal
amount $75 million in the aggregate for the Subsidiaries
of the Borrower taken as a whole (excluding S-CC and any
of its Subsidiaries) at any time outstanding;
(f) as contemplated by Section 10.01 of the
Leveraged Lease;
(g) guarantees by a Subsidiary of the Borrower in
effect at the time of its becoming a Subsidiary of the
Borrower and not created in contemplation thereof;
(h) to the extent not otherwise permitted by this
Section, guarantees by and other contingent liabilities
of S-CC and Subsidiaries of S-CC to the extent permitted
by the S-CC Debt Documents; and
(i) guarantees by the Borrower or any Subsidiary
of the Borrower of Indebtedness of any Person not
exceeding $10 million in aggregate principal amount at
any time.
5.2.4 Affiliate Transactions. Enter into or
engage in any material transaction or contract (other than (i)
agreements existing on the Closing Date and identified on
Schedule 5.2.4 hereto, (ii) transactions or contracts with
affiliates permitted by Section 5.2.3, 5.2.7, 5.2.8 or 5.2.9,
(iii) the German Financing Intercompany Note and the German
Financing Subsidiary Transfer, (iv) agreements between S-CC
and any of its Subsidiaries or between Subsidiaries of S-CC,
and (v) transactions contemplated by the Transaction
Documents) with any Affiliate other than Wholly-Owned
Subsidiaries of the Borrower (except for the Restricted
Subsidiaries of the Borrower), on a basis less favorable to
the Borrower or such Subsidiary of the Borrower than those
that could be obtained at the time in a comparable good faith
arms length transaction with an unrelated third party. Except
as specified on Schedule 5.2.4 or as otherwise specifically
permitted under this Agreement, the Borrower shall not permit
any contract identified on Schedule 5.2.4 to be directly or
indirectly amended or extended without the prior consent of
the Required Lenders; provided, however, that any such
contract may be amended without the prior consent of the
Required Lenders if the applicable amendment is not materially
adverse to the Borrower or its applicable Subsidiary and if a
copy of the amendment is delivered to the Agent within five
Business Days after its execution.
5.2.5 Dividends. Declare or pay any dividend
or distribution, or purchase or redeem any shares of any class
of capital stock of the Borrower or any Subsidiary of the
Borrower, or make any other payment or distribution on or in
respect of any class of capital stock of the Borrower or any
of its Subsidiaries, or set aside any amounts for any such
purposes, except that:
(a) any Subsidiary may pay dividends or make
distributions (including, without limitation,
distributions in the form of the redemption or purchase
for cancellation of shares or in connection with the
reduction of capital) to the Borrower or to any Wholly-
Owned Subsidiary of the Borrower; provided, however, that
in no event shall Stone-Canada pay dividends or make
distributions in the form of the redemption or purchase
for cancellation of shares or in connection with the
reduction of capital) with respect to any shares of its
capital stock other than (i) shares of capital stock that
are owned of record by the Borrower or Stone Finance and
(ii) shares of capital stock issued in connection with an
Abitibi Sale/Monetization;
(b) the Borrower may pay cash dividends, make
distributions on its capital stock or make purchases or
redemptions of its capital stock to the extent that the
aggregate amount of all such dividends, distributions,
purchases and redemptions from October 1, 1994 to the
date of the proposed dividend, distribution, purchase or
redemption (after giving effect to such proposed
dividend, distribution, purchase or redemption) would not
exceed the sum of (A) an amount equal to (1) 75% of the
Consolidated Net Income of the Borrower for the period
from October 1, 1994 to the date of payment of such
proposed dividend, distribution, purchase or redemption
minus (2) 100% of the Consolidated Net Loss of the
Borrower for the period from October 1, 1994 to the date
of payment of such proposed dividend, distribution,
purchase or redemption plus (B) 100% of the cash proceeds
(net of the pro rata fees, costs and expenses of sale and
underwriting discounts and commissions) of sales of
common stock and Permitted Preferred Stock of the
Borrower from the Closing Date to the date of payment of
such proposed dividend, distribution, purchase or
redemption minus (C) the sum of the amount of Investments
made pursuant to Section 5.2.7(g), and Capital
Expenditures made pursuant to subsection (ii) of the
penultimate sentence of Section 5.2.11 plus (D) the
principal amount of all Subordinated Debt which is
converted into equity securities of the Borrower in
accordance with the terms of the instruments pursuant to
which such Subordinated Debt was issued, as in effect on
June 30, 1995, exclusive of the principal amount of any
8-7/8% Notes converted to equity securities of the
Borrower in connection with the transactions permitted by
Section 5.2.10(a)(xiv); provided, however, that without
respect to the foregoing limitations, the Borrower shall
be permitted to pay cash dividends and to make
distributions with respect to its Permitted Preferred
Stock outstanding as of the date hereof (but not with
respect to its common stock or subsequently issued
preferred stock) to the extent such dividends or
distributions are at the time permitted by the terms of
the Borrower's Indenture to the Bank of New York, as
trustee, dated as of March 15, 1992 as in effect on the
Restatement Date; and provided further, that if all of
the conditions to the declaration of a dividend or
distribution set out in this subsection are satisfied at
the time such dividend or distribution is declared, then,
subject to the proviso which follows Section 5.2.5(h),
such dividend or distribution may be paid or made within
forty-five (45) days after such declaration even if the
payment of such dividend, the making of such distribution
or the declaration thereof would not have been permitted
under this Section 5.2.5(b) at any time after such
declaration; and provided further, that solely for
purposes of computing Consolidated Net Income and
Consolidated Net Loss pursuant to clause (A) of this
Section 5.2.5(b), there shall be excluded from the
computation thereof (x) fees and other charges or write-
offs incurred or accrued (including, without limitation,
the write-off of previously unamortized debt issuance
costs related to the Debt Refinancing) in respect of
Indebtedness incurred or repaid in connection with the
consummation of this Agreement, the Related Transactions
and the Stone Savannah Transactions and (y) to the extent
not otherwise excluded from the computation thereof, any
non-cash loss recognized by the Borrower in respect of
the repurchase, prepayment, conversion, redemption or
other extinguishment of the 8-7/8% Notes pursuant to
Section 5.2.10(a)(xiv);
(c) the Borrower may distribute shares of its
common stock to holders of the same or another class of
its common stock as a stock dividend or in connection
with a stock split;
(d) the Borrower may distribute rights to purchase
for cash Permitted Preferred Stock or common stock to the
holders of its capital stock;
(e) the Borrower may exchange shares of its common
stock or Permitted Preferred Stock for any outstanding
shares of its capital stock other than preferred stock
which is not Permitted Preferred Stock;
(f) the Borrower may acquire the capital stock of
Stone Savannah as contemplated by Section 5.1.13;
(g) the Borrower or any Subsidiary of the Borrower
may make any Investment permitted by Section 5.2.7; and
(h) S-CC and its Subsidiaries may pay dividends or
may make distributions on their respective capital stock
or purchase or redeem any shares of any capital stock of
S-CC or its Subsidiaries, in each case to the extent not
prohibited by the terms of the S-CC Debt Documents;
provided, however, that in the case of clause (b) above no
Event of Default or Unmatured Event of Default shall have
occurred and be continuing before or after giving effect to
any such proposed dividend.
5.2.6 Negative Debt Covenants. Except for (i)
instruments evidencing Indebtedness for Money Borrowed set out
in Schedule 5.2.2(b) hereto, (ii) instruments set out in
Schedule 4.3 to the Original Credit Agreement or Schedule 3.4,
5.2.2(h) or 5.2.4 hereto, in either case as in effect on the
Closing Date, (iii) agreements to which StoneSub is or becomes
a party pursuant to the Accounts Receivable Financing Program,
(iv) the S-CC Debt Documents and other agreements to which S-
CC or any Subsidiary of S-CC is a party, (v) documentation
governing the German Financing or (vi) in the case of any
Person becoming a Subsidiary after the Closing Date,
agreements in existence at the time it becomes a Subsidiary to
the extent they were not entered into in anticipation of such
Person becoming a Subsidiary, directly or indirectly,
voluntarily create or otherwise voluntarily cause or suffer to
exist or become effective any encumbrance or restriction
(other than encumbrances or restrictions existing on the
Closing Date and referenced on Schedule 3.4 and any
encumbrances or restrictions contained in any Indebtedness
which refinances any Indebtedness referenced on Schedule 3.4
provided that the terms thereof are no more onerous to the
Borrower or any Subsidiary than those existing on the Closing
Date) on the ability of any Subsidiary of the Borrower to:
(A) pay dividends or make any other distributions on its
capital stock; (B) make loans or advances to the Borrower; or
(C) repay loans or advances from the Borrower. In addition,
the Borrower shall not, nor shall it permit any of its
Subsidiaries to, directly or indirectly, voluntarily create or
otherwise voluntarily cause or suffer to exist or become
effective any encumbrance or restriction upon its ability to
encumber any of its property to secure the Obligations or any
Subsidiary Guarantee or to guaranty the Obligations and
encumber its property to secure such guaranty except for (1)
encumbrances or restrictions set forth on Schedule 5.2.6
hereto, (2) encumbrances or restrictions upon StoneSub created
in connection with the Accounts Receivable Financing Program,
(3) in the case of any Person becoming a Subsidiary after the
Closing Date, encumbrances or restrictions existing at the
time it becomes a Subsidiary to the extent they were not
created in anticipation of such Person becoming a Subsidiary,
(4) Permitted Liens (provided that the reference to Permitted
Liens in this clause (4) shall not permit any contractual or
voluntary restriction upon the ability of the Borrower or any
Subsidiary to (x) encumber any of its property to secure the
Obligations or any Subsidiary Guarantee or (y) guaranty the
Obligations and encumber its property to secure such guaranty,
it being understood and agreed that any such restriction may
only be incurred under clause (1), (2), (3), (5) or (6) of
this sentence), (5) encumbrances or restrictions arising
pursuant to the documentation governing the German Financing
or the documentation governing the Indebtedness incurred
pursuant to Section 5.2.2.(x), or (6) encumbrances or
restrictions on S-CC or Subsidiaries of S-CC to the extent not
prohibited by the S-CC Debt Documents.
5.2.7 Investments. Have or make any Investment
in any Subsidiary or other Affiliate or any other Person
except for:
(a) existing Investments and commitments to make
Investments set forth on Schedule 5.2.7 hereto and
existing Investments and Investments to be made in the
future pursuant to the existing commitments or contracts
of the Borrower and its Subsidiaries set forth on
Schedule 5.2.7-A hereto, but in no event in excess of the
amounts specified on such Schedule 5.2.7-A;
(b) Permitted Investments;
(c) Investments in Wholly-Owned Subsidiaries of
the Borrower other than (i) Investments in StoneSub, (ii)
Investments in S-CC or any of S-CC's Subsidiaries (except
as specifically permitted by clause (j) of this Section),
(iii) Investments in Stone Container GmbH or any of Stone
Container GmbH's Subsidiaries (except for Investments in
Stone Container GmbH described on Schedule 5.2.7 hereto
and Investments by Stone Container GmbH in its
Subsidiaries) and (iv) additional Investments in SVCPI
made after the date, if any, on which such Person has
become a Wholly-Owned Subsidiary of the Borrower;
(d) in Fiscal Year 1994 and each Fiscal Year
thereafter, Investments (other than Investments in Stone
Container GmbH or any of its Subsidiaries) in an amount
equal to 15% of Capital Expenditures permitted in such
year by Section 5.2.11 (excluding Capital Expenditures
permitted by the final two sentences thereof but
including Capital Expenditure amounts carried over from
year to year so long as the Borrower had positive
Consolidated Net Income in the Fiscal Year in which such
carryover amount originates); provided, however, that the
amount of such Investments shall be reduced by the amount
of any Investments made by the Borrower or its
Subsidiaries during Fiscal Year 1994 and thereafter and
identified on Schedule 5.2.7-A (other than the Belgium
Cartomills Investment) and shall also be reduced by the
amount of any Acquisitions pursuant to Section
5.2.9(e)(i).
(e) Investments by the Borrower in Persons as
permitted by Section 5.2.9;
(f) loans or advances of a type included in the
definition of Investments and made by the Borrower or any
Subsidiary of the Borrower in the ordinary course of the
Borrower's or such Subsidiary's business; provided,
however, that no such loans or advances shall be made to
Stone Container GmbH or any of its Subsidiaries other
than (A) such loans and advances made between Stone
Container GmbH and its Subsidiaries or between
Subsidiaries of Stone Container GmbH and (B) cancellation
of the German Financing Intercompany Note as contemplated
in clause (vii) of Section 5.2.12;
(g) Investments (including Investments in S-CC and
SVCPI but excluding Investments in Stone Container GmbH
and its Subsidiaries) in amounts not exceeding the amount
of the Dividend Basket immediately prior to the making of
such Investment;
(h) Investments in StoneSub not in excess
(together with outstanding Indebtedness for Money
Borrowed under Section 5.2.2(d)(iii)) of (i) the amounts
contemplated from time to time by the terms of the
respective Receivables Financings and (ii) those amounts,
up to an aggregate at any one time outstanding, of $5
million for each $100 million (on a pro-rated basis) of
Receivables Financings which have been established and
are in existence at such time, which may be advanced to
StoneSub in order to cure or remedy, or otherwise avoid
the commencement of, liquidation, termination or similar
events in connection with the Receivables Financings;
(i) Investments made by the Borrower or any
Subsidiary of the Borrower in respect of debt or equity
securities to the extent received in a transaction
permitted by Section 5.2.8(b) or 5.2.12;
(j) Investments by S-CC in its Subsidiaries and
other Investments by S-CC and its Subsidiaries to the
extent not prohibited by the S-CC Debt Documents;
(k) Investments by Europa Carton, A.G. or Stone
Container GmbH out of the proceeds of Indebtedness
incurred by Europa Carton, A.G. or Stone Container GmbH,
respectively, pursuant to Section 5.2.2(c);
(l) additional Investments (other than Investments
in Stone Container GmbH, S-CC, SVCPI or any of their
respective Subsidiaries) out of Discretionary Funds
(other than any Discretionary Funds resulting from any
Debt Basket Proceeds or any Excess Excluded Sales
Proceeds) in an amount not to exceed the Discretionary
Funds Basket made at a time when no Event of Default or
Unmatured Event of Default shall have occurred and be
continuing;
(m) Investments in Stone Savannah on the Closing
Date as contemplated by Sections 5.1.13 and 6.1(l);
(n) Investments consisting of securities or notes
received in settlement of accounts receivable incurred in
the ordinary course of business from a customer which the
Borrower has reasonably determined is unable to make cash
payments in accordance with the terms of such account
receivable;
(o) additional Investments in amounts and pursuant
to the terms and conditions set forth on Schedule 1.1(b)
hereto;
(p) an additional Investment in Seminole Kraft in
an amount not to exceed $1,250,000 for the purpose of
acquiring the remaining 1% of outstanding capital stock
of Seminole Kraft that was not previously owned by the
Borrower; and
(q) the Borrower may contribute all of its retail
bag division assets (except for real estate owned by the
Borrower), including, without limitation, inventory,
equipment, customer lists, licenses and intellectual
property, but excluding trade accounts receivable which
have been sold by the Borrower to StoneSub, and assign
its liabilities and assign (or sublease) real estate
leases and equipment leases, which assets, liabilities
and leases, immediately prior to such contribution, are
utilized by the Borrower in its retail bag division, and
which assets do not exceed $55 million in aggregate book
value, to a newly formed limited liability company (the
"Retail Bag Joint Venture") in exchange for an initial
65% equity ownership interest in the Retail Bag Joint
Venture (it being understood that the initial
contribution of assets and liabilities may occur
contemporaneously or may occur over a period of time).
Except as specifically provided in the foregoing clauses (d)
(with respect to SVCPI only), (g) and (j) neither the Borrower
nor any Subsidiary shall be permitted to make additional
Investments in Stone Container GmbH, Seminole Kraft, S-CC,
SVCPI or any of their respective Subsidiaries (other than (A)
pursuant to contractual agreements permitted by this Agreement
and as in effect on the date hereof and set forth on Schedule
5.2.7-A and (B) Investments in Seminole Kraft, the proceeds of
which are promptly used to prepay Indebtedness for Money
Borrowed pursuant to Section 5.2.10(a)(xiii)).
5.2.8 Mergers. Merge into or consolidate or
amalgamate with any Person except that:
(a) any Wholly-Owned Subsidiary of the Borrower
(except for StoneSub and any Restricted Subsidiary) may
merge, consolidate or amalgamate with or into the
Borrower or another Wholly-Owned Subsidiary of the
Borrower (except for StoneSub and any Restricted
Subsidiary) and any corporation that is a StoneSub may
merge or consolidate with any other corporation that is
a StoneSub; provided, however, that StoneSub may merge
with and into the Borrower in order to consummate a
refinancing of the Receivables Financings existing on the
Closing Date so long as (i) the Borrower immediately
contributes and transfers all or a substantial portion of
the assets of StoneSub into a newly formed StoneSub in
connection with such refinancing and (ii) all
Indebtedness of the StoneSub which has been merged with
and into the Borrower is immediately repaid in full with
the proceeds of such refinancing;
(b) any Subsidiary of the Borrower may merge with
a third party in a transaction for which the Borrower or
one of its Wholly-Owned Subsidiaries receives less than
$50 million in aggregate consideration or in a
transaction in which the Borrower or one of its Wholly-
Owned Subsidiaries receives $50 million or more in
aggregate consideration and receives (i) at least 70% of
such consideration for such merger in cash or cash
equivalents and readily marketable securities, (ii) non-
cash consideration for such merger consisting of debt
obligations of the purchaser and (iii) if any
consideration to be received consists of a note or other
debt obligation, such note or debt obligation shall be
either (A) a note which is not by its terms or the terms
of any related instrument subordinate to any other
indebtedness or (B) a note or debt obligation secured by
a first priority security interest in the assets of the
Subsidiary of the Borrower so merged subject only to the
Permitted Liens described in subsections (c) and (f) of
the definition of Permitted Liens;
(c) any Wholly-Owned Subsidiary of the Borrower
may merge with a third party in a transaction in which
the only consideration paid by the Borrower or such
Subsidiary of the Borrower is common stock of the
Borrower or Permitted Preferred Stock;
(d) a Wholly-Owned Subsidiary may be liquidated
and its assets distributed to one or more Wholly-Owned
Subsidiaries and/or the Borrower;
(e) the Borrower may merge or consolidate with any
Person (except for StoneSub, SVCPI and any Restricted
Subsidiaries and Wholly-Owned Subsidiaries that borrow
independently on a non-recourse basis) so long as (i) the
Borrower is the surviving entity, (ii) the Consolidated
Tangible Net Worth of the Borrower immediately following
such merger or consolidation is greater than or equal to
the Consolidated Tangible Net Worth of the Borrower
immediately prior to such merger or consolidation and
(iii) at the time of such merger or consolidation and
immediately thereafter no Event of Default or Unmatured
Event of Default shall have occurred and be continuing;
(f) (A) any Wholly-Owned Subsidiary of S-CC may
merge with S-CC or with any other Wholly-Owned Subsidiary
of S-CC to the extent not prohibited by the S-CC Debt
Documents and S-CC or any Subsidiary of S-CC may merge
with a third party to the extent not prohibited by the S-
CC Debt Documents, and (B) any Wholly-Owned Subsidiary of
Stone Container GmbH may merge with Stone Container GmbH
or with any other Wholly-Owned Subsidiary of Stone
Container GmbH;
(g) Seminole Kraft may merge with and into the
Borrower with the Borrower as the surviving corporation,
provided that (i) the Borrower shall have prepaid,
defeased or otherwise deposited under an irrevocable
trust agreement in form and substance reasonably
satisfactory to the Agent, or caused to be prepaid,
defeased or so deposited, pursuant to the terms and
conditions of Section 5.2.10(a)(xiii), the Indebtedness
of Seminole Kraft under (A) the Credit Agreement dated as
of March 27, 1991, as amended, among Seminole Kraft,
Citibank, N.A., as agent, and the financial institutions
party thereto and (B) Seminole Kraft's 13.50%
Subordinated Notes due October 15, 1996 issued under the
Indenture dated as of October 15, 1986, as supplemented
and amended, between Seminole Kraft and Norwest Bank, as
successor trustee to Manufacturers Hanover Trust Company,
(ii) Seminole Kraft shall have no Indebtedness for Money
Borrowed outstanding at the time of such merger other
than the Indebtedness for Money Borrowed set forth on
Schedule 5.2.8(g) hereto, (iii) on the date of such
merger the Borrower shall deliver to the Agent a
certificate of a Responsible Officer of the Borrower
certifying that both before and after giving effect to
the prepayment of such Indebtedness and the consummation
of such merger, no Event of Default or Unmatured Event of
Default has occurred is continuing and the
representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and
correct in all material respects at and as of the date
thereof as though made on and as of the date thereof
(except to the extent specifically made with regard to a
particular date) and (iv) such merger shall occur on or
prior to June 30, 1995; and
(h) the Borrower may consummate the Smurfit Merger
pursuant to the terms and conditions of the Smurfit
Merger Documents.
The Borrower shall cause any equity interest or other non-cash
consideration received by the Borrower or any of its
Subsidiaries in consideration of any transaction permitted by
this Section and involving aggregate consideration of $50
million or more to be pledged by the Borrower or such
Subsidiary, as applicable, to the Agent for the benefit of the
Lenders pursuant to a Supplemental Pledge Agreement. For
purposes of this Section, the use of the terms "merge" and
"merger" shall be deemed to include, in the case of Canadian
Subsidiaries of the Borrower, the terms "amalgamate" and
"amalgamation," respectively.
5.2.9 Purchase of Stock or Assets. Acquire any assets,
capital stock or debt securities of any Person (an
"Acquisition") except that:
(a) the Borrower and its Subsidiaries may acquire
assets other than capital stock in the ordinary course of
business;
(b) the Borrower or any Subsidiary of the Borrower
may purchase assets or capital stock of a Person for a
consideration consisting in whole of common stock or
Permitted Preferred Stock of the Borrower so long as no
Event of Default or Unmatured Event of Default shall have
occurred and be continuing after giving effect to such
Investment;
(c) the Borrower or any Subsidiary of the Borrower
may make any Investment permitted by Section 5.2.7
hereof;
(d) the Borrower may purchase the Facility
pursuant to Section 10.01, 10.04 or 19.09 of the
Leveraged Lease;
(e) the Borrower or any Subsidiary of the Borrower
may make Acquisitions for cash consideration or property,
provided that the aggregate cash consideration or
property paid by the Borrower and its Subsidiaries for
such Acquisition shall not exceed (i) the maximum amount
of Investments then permitted pursuant to Section
5.2.7(d) plus (ii) after such maximum amount has been
reduced to zero, and so long as no Event of Default or
Unmatured Event of Default shall have occurred and be
continuing, an amount of Discretionary Funds (other than
any Discretionary Funds resulting from any Debt Basket
Proceeds or any Excess Excluded Sales Proceeds) not
exceeding the Discretionary Funds Basket;
(f) the Borrower or any Subsidiary may make
Acquisitions for cash consideration or property provided
that the cash consideration or property paid by the
Borrower and its Subsidiaries for any Acquisition shall
not exceed the amount of the Dividend Basket immediately
prior to the making of such Acquisition;
(g) Capital Expenditures permitted by Section
5.2.11 hereof and expenditures of the type described in
subsections (i)-(v) of the definition of Capital
Expenditures may be made;
(h) [Intentionally Omitted];
(i) the Borrower or any Subsidiary of the Borrower
may acquire assets in connection with the asset exchanges
permitted by the first proviso to the first sentence of
Section 5.2.12;
(j) the Borrower or any Subsidiary of the Borrower
may acquire capital stock or debt securities to the
extent permitted by Section 5.2.10;
(k) StoneSub may purchase or otherwise acquire an
interest in Receivables (with cash or by means of the
issuance of Indebtedness for Money Borrowed permitted by
Section 5.2.2(d)(iii)) pursuant to the Accounts
Receivable Financing Program; and
(l) S-CC may make Acquisitions to the extent not
prohibited by the S-CC Debt Documents.
Any acquisition or purchase counted for purposes of any of
Sections 5.2.9(a)-(l) shall not be counted for the purposes of
any other such subsection.
5.2.10 Prepayment of Indebtedness; Certain
Amendments.
(a) Make any voluntary purchase or prepayment of
or defease any Indebtedness for Money Borrowed or
purchase, voluntarily redeem or otherwise voluntarily
acquire any preferred or preference stock of the Borrower
or any of its Subsidiaries, except (i) the Obligations
(to the extent otherwise permitted hereby); (ii) a
prepayment or defeasance of the IRBs as permitted in
Section 5.2.2(h); (iii) [intentionally omitted]; (iv)
repayment of the unsecured lines of credit permitted by
Section 5.2.2(m) or of intercompany loans or advances
permitted by Section 5.2.2(d) other than the German
Financing Intercompany Note; (v) the redemption or
purchase of preferred or preference stock of (A) Stone-
Canada to the extent held of record by the Borrower or
(B) any Wholly-Owned Subsidiaries of Stone-Canada (other
than Stone Container GmbH and its Subsidiaries); (vi)
refinancings permitted by Section 5.2.2; (vii) a purchase
or acquisition permitted under Section 5.2.7; (viii) S-CC
or any Subsidiary of S-CC may voluntarily purchase,
prepay or defease any of its Indebtedness for Money
Borrowed or any preferred or preference stock of S-CC or
any Subsidiary of S-CC; (ix) so long as no Event of
Default or Unmatured Event of Default shall have occurred
and be continuing, the prepayment of any maturity or
maturities of debt securities of the Borrower (including
the payment of principal, stated premium, if any, and
interest thereon) out of Discretionary Funds in an amount
not to exceed the Discretionary Funds Basket; (x) the
Debt Refinancing and the Stone Savannah Transactions, all
of which shall occur on the Closing Date, except as
otherwise provided in Section 5.1.13, as a Related
Transaction pursuant to the Transaction Documents; (xi)
transactions permitted by Section 5.2.10(b); (xii)
prepayments of Indebtedness for Money Borrowed utilizing
the proceeds of Indebtedness permitted by Section
5.2.2(t); (xiii) the Borrower may voluntarily prepay, or
cause to be prepaid, the Indebtedness of Seminole Kraft
consisting of (A) Indebtedness under the Credit Agreement
dated as of March 27, 1991, as amended, among Seminole
Kraft, Citibank, N.A., as agent, and the financial
institutions party thereto, (B) Seminole Kraft's 13.50%
Subordinated Notes due October 15, 1996 issued under the
Indenture dated as of October 15, 1986, as supplemented
and amended, between Seminole Kraft and Norwest Bank, as
successor trustee to Manufacturers Hanover Trust Company,
and (C) if necessary, up to $8,400,000 of Indebtedness
under the 1991 Settlement Agreement dated as of March 26,
1991 entered into by Champion International Corporation
and Seminole Kraft, so long as the aggregate amount of
all such Indebtedness prepaid does not exceed
$140,000,000, and may use proceeds of the Revolving Loan
to prepay any such Indebtedness for Money Borrowed,
provided that (1) all existing Liens securing any such
Indebtedness for Money Borrowed of Seminole Kraft are
promptly released upon the prepayment of such
Indebtedness for Money Borrowed and (2) the Borrower
shall, promptly upon the prepayment of such Indebtedness
for Money Borrowed, cause Seminole Kraft to be merged
with and into the Borrower pursuant to the terms and
conditions of Section 5.2.8(g); (xiv) the Borrower may
use proceeds of Revolving Loans to voluntarily
repurchase, prepay, redeem or otherwise extinguish the
Indebtedness consisting of (A) all or any portion of the
8-7/8% Notes (including the payment of principal and
interest thereon) and (B) all or any portion of the 12-
1/8% Subordinated Debentures at par value (including the
payment of principal or par value and interest thereon)
and/or any Indebtedness for Money Borrowed of the
Borrower constituting Senior Indebtedness (including the
payment of principal, premium, whether or not stated, if
any, and interest thereon), provided that (1) no
Unmatured Event of Default or Event of Default shall have
occurred and be continuing at the time of any such
repurchase, prepayment, redemption or extinguishment (or,
if irrevocable notice must be given to affect a
redemption or extinguishment, then at the time of giving
such notice) and (2) (i) the aggregate amount of cash
consideration paid by or on behalf of the Borrower to
repurchase, prepay, redeem or otherwise extinguish
Indebtedness pursuant to this clause (xiv) shall not
exceed the lesser of (x) $250,000,000 or (y) the
aggregate principal amount or par value of such
Indebtedness repurchased, prepaid, redeemed or otherwise
extinguished, and (ii) the aggregate amount of cash
consideration paid by or on behalf of the Borrower to
repurchase, prepay, redeem or otherwise extinguish 12-
1/8% Subordinated Debentures or Senior Indebtedness under
clause (B) above shall not exceed (x) $250,000,000 minus
(y) the aggregate cash consideration paid by or on behalf
of the Borrower in connection with the repurchase or
prepayment of the 8-7/8% Notes pursuant to clause (A)
above; (xv) prepayments, repurchases, redemptions and
other extinguishments of Indebtedness for Money Borrowed
utilizing (A) the proceeds of Indebtedness permitted by
clause (ii) of Section 5.2.2.(x), (B) utilizing proceeds
from an Abitibi Sale/Monetization in accordance with
Section 5.2.12(v), and (C) utilizing proceeds from the E
Tranche Term Loan in accordance with Section 5.1.11(v);
(xvi) prepayments of the Indebtedness permitted by
Section 5.2.2(x) utilizing proceeds from the sale or
other disposition of any Assets constituting collateral
which secures such Indebtedness; (xvii) StoneSub may
prepay, or otherwise cause a reduction in, Indebtedness
for Money Borrowed owing to the Issuer utilizing funds
arising from the collection of Receivables; and (xviii)
the obligor under the German Financing Intercompany Note
may affect the cancellation of such note in full on or
prior to March 31, 1998 solely in consideration of the
German Financing Subsidiary Transfer. For purposes of
this Section 5.2.10(a), a "voluntary purchase or
prepayment" of Indebtedness for Money Borrowed shall
include, without limitation, the purchase of any
Subordinated Debt or any Indebtedness created pursuant to
or evidenced by any of the Specified Senior Indentures or
any other indenture or agreement in connection with or as
a consequence of any "change of control" (or any other
similar term) as such term is defined or used in any
Subordinated Debt or any indenture relating thereto or
any Indebtedness created pursuant to or evidenced by any
Specified Senior Indenture or any other indenture or
agreement where such "change of control" arises from a
transaction approved by the Board of Directors of the
Borrower, which purchase shall be prohibited by this
Section 5.2.10(a).
(b) Amend, modify, cancel or issue any securities
(except for debt securities which are otherwise permitted
by Section 5.2.2) in exchange for any Indebtedness for
Money Borrowed or any preferred or preference stock of
the Borrower or any of its Subsidiaries, except that (i)
the Borrower may issue its common stock or Permitted
Preferred Stock in exchange for Indebtedness for Money
Borrowed; (ii) any Wholly-Owned Subsidiary of Stone-
Canada may issue common, preferred or preference stock to
any other Wholly-Owned Subsidiary in exchange for
intercompany debt; (iii) subject to the terms of the
Pledge Agreements, Stone-Canada may issue common and/or
preferred shares of capital stock to the Borrower in
exchange for intercompany debt of Stone-Canada to the
Borrower or in exchange for preferred shares of capital
stock of Stone-Canada held by the Borrower; and (iv) with
respect to S-CC or any of its Subsidiaries, to the extent
not prohibited by the S-CC Debt Documents; or
(c) Materially amend, modify or grant any material
waiver (for purposes hereof any amendment, modification
or waiver with respect to subordination provisions,
increasing the principal amount, increasing the interest
rate or shortening maturity shall be deemed material)
with respect to any indenture (including, without
limitation, the Senior Subordinated Note Indenture), note
or other instrument (including, without limitation, the
Continental Guaranty) evidencing or creating such
Indebtedness for Money Borrowed or preferred stock of the
Borrower or any Subsidiary (other than Permitted
Preferred Stock which remains Permitted Preferred Stock
after giving effect to any such amendment, modification
or waiver) or pursuant to which any such Indebtedness for
Money Borrowed or preferred stock was issued, provided
that this clause (c) shall not apply to (i) agreements
for Indebtedness for Money Borrowed of S-CC or any
Subsidiary of S-CC which Indebtedness is nonrecourse to
the Borrower or any other Subsidiary of the Borrower
(other than S-CC or any Subsidiary of S-CC, as the case
may be), (ii) any amendment, supplement, modification or
grant of a waiver with respect to any indenture, note or
other instrument evidencing or creating Indebtedness for
Money Borrowed of the Borrower or any Subsidiary solely
to permit the transactions contemplated by Section
5.2.12(v) which are not adverse to the interests of the
Agent and the Lenders, (iii) any amendment, supplement,
modification or grant of a waiver with respect to any
indenture evidencing or creating Indebtedness for Money
Borrowed of the Borrower or any Subsidiary which is not
more burdensome or restrictive with respect to the
Borrower and its Subsidiaries, and is not adverse to the
interests of the Agent and the Lenders, or (iv) any
agreement, document or instrument executed and delivered,
or otherwise created, in connection with or pursuant to
the German Financing, it being understood and agreed that
clause (d) below shall apply in such circumstances.
(d) (i) Amend, modify, grant any waiver of or
otherwise change any provision of any agreement, document
or instrument executed and delivered, or otherwise
created, in connection with or pursuant to the German
Financing or the Indebtedness incurred pursuant to
Section 5.2.2(x), except for any amendment, modification,
waiver or other change which does not in any way
adversely affect the interests of the Agent and the
Lenders (for purposes hereof any such amendment,
modification, waiver or other change that would shorten
the final scheduled maturity of any loan, increase the
rate or shorten the time of payment of interest or fees,
increase the principal amount of any loan, increase the
amount or shorten the time of payment of any scheduled
amortization payment, increase the collateral securing
the Indebtedness incurred in connection with the German
Financing or the Indebtedness incurred pursuant to
Section 5.2.2(x) or issue any additional guarantees with
respect to the German Financing shall be deemed to
adversely affect the interests of the Agent and the
Lenders), provided that the Borrower shall promptly
notify, in writing, the Agent of any such amendment,
modification, waiver or other change and shall deliver
together with any such notice a copy of such amendment,
modification, waiver or other change; (ii) enter into any
new agreement, document or instrument with respect to or
in connection with the German Financing or the
Indebtedness incurred pursuant to Section 5.2.2(x)
subsequent to the initial consummation of the German
Financing or issuance of such Indebtedness, respectively;
or (iii) amend, modify, grant any waiver or otherwise
change any provision of the German Financing Intercompany
Note.
(e) Make any mandatory offer to purchase, or
redeem or purchase, any Indebtedness created pursuant to
or evidenced by any of the Specified Senior Indentures
pursuant to a "Deficiency Offer" made in accordance with
Article Eleven (or any other similar Article or
provision) of any thereof (it being understood and agreed
that no such Deficiency Offer may be directly or
indirectly made out of the proceeds of Indebtedness
incurred as permitted by Section 5.2.2(q) or out of
Discretionary Funds); provided, however, that the
Borrower may make a Deficiency Offer solely with respect
to the Borrower's failure to maintain the Minimum
Subordinated Capital Base (as such term is defined in
each of the Senior Indentures) as of Borrower's two
consecutive Fiscal Quarters ended December 31, 1997 and
March 31, 1998, no later than April 7, 1998 (regardless
of the actual payment date for securities accepted
pursuant to such Deficiency Offer) in accordance with the
terms and conditions set forth in Article Eleven of each
of the Senior Indentures, and purchase any securities
tendered in such Deficiency Offer, provided that the
Borrower satisfies each of the following conditions: (i)
the sum of (A) the Total Available Revolving Commitment
plus (B) the Total Available Supplemental Revolving
Commitment shall be equal to or greater than $225,000,000
on the final date for the tender of securities in such
Deficiency Offer (and after taking into effect any
proposed borrowings of Revolving Loans and Supplemental
Revolving Loans, the proceeds of which are proposed to be
used to purchase securities tendered in such Deficiency
Offer and accepted for payment); (ii) on the final date
for the tender of securities in such Deficiency Offer,
all of the securities outstanding under the Specified
Senior Indentures (other than the 12-5/8% Senior Notes
due July 15, 1998, the 11-7/8% Senior Notes due December
1, 1998 and the 9-7/8% Senior Notes due February 1, 2001)
shall be trading at a price of not less than par value as
quoted to the Agent by at least two out of three
independent brokers and/or market makers acceptable to
the Agent; and (iii) in the event the Borrower uses
proceeds, whether directly or indirectly, of Revolving
Loans and/or Supplemental Revolving Loans in an aggregate
amount in excess of $60,000,000 (such amount in excess of
$60,000,000 being referred to herein as the "Excess
Revolver Amount"), then the Borrower shall repay such
Excess Revolver Amount (provided that the Borrower shall
not be obligated to repay such Excess Revolver Amount
until the Excess Revolver Amount is equal to or greater
than $5,000,000) on or before the 90th day following the
last incurrence of such Revolving Loans and/or
Supplemental Loans, the proceeds of which are used,
directly or indirectly, to fund such Deficiency Offer,
with proceeds from the incurrence of Indebtedness which
the Borrower or any of its Subsidiaries incurs in
compliance with the terms and conditions of this
Agreement (including, without limitation, Section 5.2.2)
and the Specified Senior Indentures; and provided
further, that the terms and conditions of the foregoing
proviso shall not be construed to permit the Borrower to
make any subsequent Deficiency Offer following the one-
time Deficiency Offer that is expressly permitted in the
foregoing proviso, any such subsequent Deficiency Offer
remaining expressly prohibited by this Section 5.2.10(e).
5.2.11 Capital Expenditures. Expend or incur
any Capital Expenditure in any Fiscal Year if the aggregate
amount of the Capital Expenditures expended or incurred by the
Borrower and its Subsidiaries (exclusive of S-CC and
Subsidiaries of S-CC) in such Fiscal Year would exceed the
following amounts, as such amounts may be increased in any
Fiscal Year pursuant to the terms and conditions set forth on
Schedule 1.1(b):
Fiscal Year Amount
1994 $225 million
1995 $225 million
1996 and each Fiscal
Year thereafter $275 million
Each of the foregoing amounts established for Fiscal Years
commencing with and including 1994 may be carried forward from
one year to the next to the extent not used for Capital
Expenditures (or for Investments pursuant to Section 5.2.7(d))
during any prior Fiscal Year. Capital Expenditures permitted
above (i) shall be reduced for any Fiscal year by the amount
of Investments made during such Fiscal Year pursuant to
Section 5.2.7(d) and by the amount of expenditures made during
such Fiscal Year pursuant to Section 5.2.9(e), (ii) at the
option of the Borrower, may be increased at any time or from
time to time by an amount not exceeding the amount of the
Dividend Basket immediately prior to the making of such
Capital Expenditure, and (iii) at the option of the Borrower,
so long as no Event of Default or Unmatured Event of Default
shall have occurred and be continuing, may be increased at any
time or from time to time by an amount of Discretionary Funds
(other than any Discretionary Funds resulting from any Debt
Basket Proceeds or any Excess Excluded Sales Proceeds) not
exceeding the Discretionary Funds Basket. Notwithstanding the
foregoing limitations on Capital Expenditures in this Section
5.2.11, (A) the Borrower and its Subsidiaries may make Cluster
Expenditures and (B) Europa Carton, A.G. and Stone Container
GmbH may make Capital Expenditures out of the proceeds of
Indebtedness incurred by Europa Carton, A.G. or Stone
Container GmbH, respectively, pursuant to Section 5.2.2(c).
5.2.12 Sale of Assets. Sell, lease, assign,
transfer or otherwise dispose of, or sell or issue any
securities, instruments or other rights of any kind which are
convertible into, exchangeable for or otherwise entitled to
receive, any Asset (other than cash or Permitted Investments)
or related group of Assets, including shares of capital stock,
to a Person which is not the Borrower or a Wholly-Owned
Subsidiary of the Borrower (other than a Restricted
Subsidiary) except sales or other dispositions of inventory in
the ordinary course of business for cash or represented by
accounts receivable, unless the transaction (i) is a
disposition permitted by Section 5.2.13, (ii) is a disposition
of Collateral or Mortgaged Property and is for consideration
consisting solely of cash, cash equivalents or readily
marketable securities, (iii) is a disposition not involving
Collateral or Mortgaged Property, or any Monetized Assets, and
is for aggregate consideration of not more than $50 million,
(iv) is a disposition not involving Collateral or Mortgaged
Property, or any Monetized Assets, and is for aggregate
consideration in excess of $50 million, of which at least 70%
consists of cash or cash equivalents and readily marketable
securities and any non-cash consideration consists of debt
obligations of the purchaser which are either in the form of
(A) a note which is not by its terms or the terms of any
related instrument subordinate to any other indebtedness or
(B) a note or debt obligation secured by a first priority
security interest in the assets of the purchaser purchased in
such transaction subject only to the Permitted Liens described
in subsections (c) and (f) of the definition of Permitted
Liens, (v) is an Abitibi Sale/Monetization and within (A) five
Business Days after the issuance or sale of any securities,
instruments or other rights, or after the sale or other
disposition, in connection with such Abitibi
Sale/Monetization, the Borrower shall use the Abitibi 75%
Portion to effect the prepayments in accordance with Section
3.4(d), and (B) five Business Days after the issuance or sale
of any securities, instruments or other rights, or after the
sale or other disposition, in connection with such Abitibi
Sale/Monetization (or such longer period of time so long as
proceeds are held pursuant to escrow arrangements satisfactory
to the Agent), the Borrower shall (1) use the first
$200,000,000 in the aggregate of the Abitibi 25% Portion to
prepay, repurchase, redeem or otherwise extinguish any
scheduled installment or stated maturity of any Indebtedness
for Money Borrowed of the Borrower which, pursuant to the
contractual terms thereof, is scheduled for repayment or
maturity prior to May 15, 1999, and (2) use the remainder of
the Abitibi 25% Portion to prepay, repurchase, redeem or
otherwise extinguish (x) any Indebtedness for Money Borrowed
of the Borrower constituting Senior Indebtedness and/or (y)
any Indebtedness for Money Borrowed of the Borrower
constituting Subordinated Debt, provided that no more than 50%
of the aggregate amount of the remainder of the Abitibi 25%
Portion may be used to prepay, repurchase, redeem or otherwise
extinguish Subordinated Debt; (vi) [intentionally deleted] or
(vii) is a sale or transfer of all of the capital stock of one
or more direct or indirect Subsidiaries of the Borrower (other
than Stone-Canada) which are organized in a foreign country,
to Stone Container GmbH or one of its Subsidiaries (such sale
or transfer being referred to herein as the "German Financing
Subsidiary Transfer") provided that (A) the aggregate fair
market value of all such capital stock to be sold or
transferred, as such value is determined by the Agent in its
sole discretion, shall not exceed the lesser of (1) the Dollar
equivalent of DM 90,000,000 and (2) the Dollar equivalent of
the outstanding principal amount owing under the German
Financing Intercompany Note, (B) the sole consideration for
such sale or transfer is the cancellation of the German
Financing Intercompany Note and (C) on the effective date of
such transfer or exchange the Agent shall have received a
certificate from the Borrower's chief executive or chief
financial officer certifying that no Event of Default or
Unmatured Event of Default has occurred and is continuing as
of such date, both before and after giving effect to such sale
or transfer. Notwithstanding the foregoing, (A) mills and
plant facilities and leasehold interests therein not
constituting Collateral or Mortgaged Property may be exchanged
for like-kind assets on an arms-length basis, (B) S-CC and any
Subsidiary of S-CC may sell, lease, assign, transfer or
otherwise dispose of assets to the extent not prohibited by,
and in accordance with the requirements of, the S-CC Debt
Documents; and (C) in no event may the Borrower sell, lease,
assign or otherwise transfer any Collateral or Mortgaged
Property to any Subsidiary unless Substitute Collateral is
provided in accordance with Section 9.13(c), except (x) to the
extent provided in the Security Agreements and Mortgages and
(y) that the Borrower may, on or prior to June 30, 1998,
transfer Collateral or Mortgaged Property relating to the
production of newsprint at the Borrower's manufacturing
facility located at Snowflake, Arizona to a newly formed
Wholly-Owned Subsidiary of the Borrower, provided that (1) the
transfer of such assets to Stone Snowflake shall be pursuant
to documentation satisfactory to the Agent and (2) prior to or
contemporaneously with such transfer, the Borrower shall
execute and deliver a Pledge Agreement in form and substance
satisfactory to the Agent pursuant to which the Borrower shall
pledge to the Agent to secure the Obligations all of the
outstanding capital stock of Stone Snowflake, Stone Snowflake
shall execute and deliver an unsecured Subsidiary Guarantee
(which guarantee shall include covenants by Stone Snowflake
prohibiting it from incurring Indebtedness or trade payables
and from creating or suffering to exist Liens on its property
(other than certain Liens acceptable to the Agent) and
requiring Stone Snowflake's obligations to the Borrower with
respect to the Borrower's payment of Stone Snowflake's trade
payables to be evidenced by an intercompany note payable by
Stone Snowflake to the Borrower, which note is subordinated to
such Subsidiary Guarantee and is pledged to the Agent to
secure the Obligations), and such other documents and legal
opinions as requested by the Agent, all pursuant to
documentation in form and substance satisfactory to the Agent.
The Borrower shall cause any equity interest or other non-
cash consideration received by the Borrower or any of its
Subsidiaries in consideration of any transaction permitted by
this Section and involving aggregate consideration of $50
million or more to be pledged by the recipient thereof to the
Agent for the benefit of the Lenders pursuant to a
Supplemental Pledge Agreement; provided, however, that such
requirement shall not apply if (i) the Assets disposed of are
subject to a Lien and such equity interest or other non-cash
consideration is required to be and is pledged or paid over to
the holder of such Lien or (ii) such consideration constitutes
Excluded Sale Proceeds. Notwithstanding the foregoing, the
Borrower may contribute and transfer its property and assets
to the Retail Bag Joint Venture as permitted by Section
5.2.7(q) in connection with the initial capitalization (it
being understood that the initial capitalization and related
transfers of property may occur contemporaneously or over a
period of time) of the Retail Bag Joint Venture.
5.2.13 Sale of Accounts Receivable. Sell or
otherwise dispose of any account receivable, including any
sale or transfer to any Subsidiary of the Borrower, except
that (a) any Subsidiary of the Borrower may sell or transfer
any of its accounts receivable to the Borrower, (b) the
Borrower or any Subsidiary of the Borrower may sell its
accounts receivable in the ordinary course of business
consistent with the Borrower's or such Subsidiaries'
collection practices as in effect from time to time and not as
part of a financing and (c) the Borrower or any Participating
Subsidiary may sell or otherwise grant an interest in its
Receivables to StoneSub, and StoneSub may sell or otherwise
grant an interest in its Receivables to other Persons, in each
case pursuant to the Accounts Receivable Financing Program.
In addition to the foregoing, the Borrower or any Subsidiary
eligible to be a Participating Subsidiary may directly sell
interests in Receivables to a financial institution or other
Person (whether on a revolving purchase basis or in a one-time
transaction); provided, however, that all such sales shall be
on terms (considered as a whole) not materially more onerous
to the Borrower and the Lenders than those permitted for sales
by StoneSub to the Issuer under the Receivables Financings in
existence on the Closing Date; and provided further, that any
such sales of receivables shall, for all other purposes of
this Agreement, and regardless of the treatment thereof by the
Borrower on its financial statements, be deemed to be an
incurrence by the Borrower of Indebtedness for Money Borrowed
in respect of the financing of the receivables involved and
not as a sale of such receivables; and provided further, that
the aggregate of the Indebtedness for Money Borrowed deemed to
have been incurred and at any time outstanding pursuant to
this sentence shall reduce on a dollar-for-dollar basis the
aggregate principal amount of Indebtedness for Money Borrowed
which StoneSub is permitted to have outstanding at any time
under Section 5.2.2(p) pursuant to Receivables Financings.
Notwithstanding anything in this Section to the contrary, S-CC
and its Subsidiaries shall be permitted to dispose of any
account receivable to the extent not prohibited by the S-CC
Debt Documents.
5.2.14 Subsidiaries. (a) Other than non-Wholly-
Owned Subsidiaries in existence on the Closing Date, S-CC and
Subsidiaries of S-CC, permit to exist Subsidiaries which are
not Wholly-Owned Subsidiaries; or (b) permit any Subsidiary
which was a Wholly-Owned Subsidiary on the Closing Date to
cease to be a Wholly-Owned Subsidiary, except in either case
as otherwise permitted by Sections 5.2.8, or 5.2.12, as a
result of honoring the existing contractual commitments
referenced on Schedule 5.2.7-A or, in the case of clause (b),
as a result of a transaction otherwise permitted hereby
whereby such entity ceases to be a Subsidiary.
Notwithstanding the foregoing clause (a) of this Section
5.2.14, the Borrower may maintain Graficarton S.A., a
corporation organized and existing under the laws of Spain
("Graficarton S.A."), 96% of the issued and outstanding
capital stock of which is owned by the Borrower as of the
Restatement Date, as a non-Wholly-Owned Subsidiary so long as
the Borrower's percentage ownership interest in Graficarton
S.A. is not reduced after the Restatement Date except as
otherwise permitted by clause (b) of this Section 5.2.14.
5.2.15 Lease Payments. Except for lease
payments arising in connection with the Leveraged Lease or any
Financing Lease, incur, assume or suffer to exist or permit
any of its Subsidiaries to incur, assume or suffer to exist,
any obligation for rental payments as lessee, whether directly
or as guarantor, if after giving effect thereto, the aggregate
amount of lease payments required to be made by the Borrower
and its Subsidiaries (other than S-CC and Subsidiaries of S-
CC) will exceed $150 million during any calendar year,
provided, however, that S-CC and its Subsidiaries may incur,
assume or suffer to exist any obligations for rental payments,
as lessee, whether directly or as guarantor, to the extent not
prohibited by the S-CC Debt Documents.
5.2.16 Accounts Receivable Financing Program.
Enter into any initial documentation in connection with a
Receivables Financing or any sales of receivables permitted by
the penultimate sentence of Section 5.2.13 unless such
documentation (i) has been approved by the Required Lenders or
is on terms and conditions which, taken as a whole, are not
materially more adverse to the Borrower and the Lenders than
the documentation in existence on the Closing Date with
respect to existing Receivables Financings or (ii) is non-
material documentation entered into pursuant to such approved
documentation or amend or modify in any material respect any
of such documentation unless such amendment or modification
has been so approved or otherwise satisfies the conditions of
clause (i) above.
5.2.17 Stone-Canada. Allow Stone-Canada or
Stone Finance to (a) issue any shares of capital stock
(whether common, preferred or otherwise) on or after the
Restatement Date (other than (i) a designated series of
preferred stock issued by Stone-Canada to Stone Finance in
connection with principal and interest payments on the 11-1/2%
Senior Notes due August 15, 2006 issued by Stone Finance and
(ii) the issuance of shares of capital stock by Stone-Canada
in connection with an Abitibi Sale/Monetization, provided that
65% of all outstanding preferred stock of Stone-Canada (other
than preferred stock issued pursuant to clause (ii) above) is
at all time pledged to the Agent to secure the Obligations
pursuant to documentation reasonably satisfactory to the
Agent), or (b) use any funds received from the Borrower or any
other Subsidiary of the Borrower (other than Stone Container
GmbH), whether directly or indirectly, and in whatever form
(including, without limitation, through intercompany loans or
advances or through the issuance, sale, redemption, exchange
or other transaction involving capital stock, through the
payment of fees for management, investment banking or other
similar fees for services, or otherwise), to directly or
indirectly make any payments with respect to, or to repay any
Indebtedness owing pursuant to, the German Financing
Intercompany Note (other than a cancellation thereof as
contemplated in clause (vii) of Section 5.2.12) or the German
Financing.
Section 5.3 Financial Covenants of the Borrower.
The Borrower covenants and agrees that for so long as this
Agreement is in effect and until the Obligations and all other
obligations incurred hereunder whether or not matured, are
paid in full, the Borrower will, unless first having procured
the written consent of the Required Lenders:
5.3.1 Interest Coverage Ratio. As of the end
of each Fiscal Quarter, calculated for the most recently
completed four Fiscal Quarters (but if four Fiscal Quarters
have not been completed since the Closing Date, then for the
number of Fiscal Quarters that have been completed since the
Closing Date) maintain an Interest Coverage Ratio for such
period ending on a date set forth below of not less than the
ratio set forth opposite such date:
Date Ratio
December 31, 1994 1.00 to 1
March 31, 1995 1.15 to 1
June 30, 1995 1.25 to 1
September 30, 1995 1.35 to 1
December 31, 1995 1.50 to 1
March 31, 1996 1.65 to 1
June 30, 1996 1.75 to 1
September 30, 1996 1.85 to 1
December 31, 1996 1.00 to 1
March 31, 1997 0.65 to 1
June 30, 1997 0.35 to 1
September 30, 1997 0.35 to 1
December 31, 1997 0.25 to 1
March 31, 1998 0.50 to 1
June 30, 1998 0.55 to 1
September 30, 1998 0.50 to 1
December 31, 1998 0.50 to 1
March 31, 1999 0.50 to 1
June 30, 1999 0.55 to 1
September 30, 1999 0.65 to 1
December 31, 1999 0.85 to 1
March 31, 2000 1.00 to 1
June 30, 2000 1.10 to 1
September 30, 2000 1.25 to 1
December 31, 2000 1.25 to 1
March 31, 2001
and thereafter 1.50 to 1
5.3.2 Consolidated EBITDA. As of the end of
each Fiscal Quarter, calculated for the most recently
completed four Fiscal Quarters, maintain Consolidated EBITDA
for such period ending on a date set forth below of not less
than the amount set forth opposite such date:
Date Amount
December 31, 1998 $200,000,000
March 31, 1999 $225,000,000
June 30, 1999 $225,000,000
September 30, 1999 $250,000,000
December 31, 1999 $300,000,000
March 31, 2000 $325,000,000
June 30, 2000 $350,000,000
September 30, 2000 $375,000,000
December 31, 2000 $400,000,000
March 31, 2001
and thereafter $450,000,000
ARTICLE VI
CONDITIONS OF CREDIT
Section 6.1 Conditions Precedent to the Borrowing of
Initial Loans. The right of the Borrower to make the
Borrowing of the Initial Loans and the obligation of the
Lenders to make the Initial Loans under this Agreement shall
be subject to the fulfillment, at or prior to the time of the
making of such Initial Loans, of each of the following
conditions:
(a) The Borrower shall have duly executed and
delivered to the Agent, with a signed counterpart for each
Lender, this Agreement and, subject to Section 5.1.17, all of
the other Loan Documents, all of which shall be in full force
and effect.
(b) All of the other Basic Agreements shall have
been duly executed and delivered in form and substance
satisfactory to the Agent and shall be in full force and
effect.
(c) No Event of Default or Unmatured Event of
Default shall have occurred and be continuing or will occur
after giving effect to the making of the Initial Loans and the
consummation of the transactions contemplated by the Basic
Agreements.
(d) The Mergers shall have been consummated in
compliance with the Merger Documents and with all applicable
laws. The Agent shall have received duly executed copies of
the Merger documents as filed with the Secretary of the State
of Delaware.
(e) The Agent shall have received proof that the
applicable Loan Documents and appropriate financing statements
and other documents required by the applicable Loan Documents
have been filed and/or recorded in such jurisdictions as the
Agent shall have specified or arrangements for such filing or
recording satisfactory to the Agent have been made; provided,
however, that with respect to the recordations of the
Mortgages in the real estate records of any jurisdictions,
proof of recordation shall not be required if the Agent
receives the title insurance or binders to assure the same in
accordance with this Section 6.1.
(f) The Agent shall have received copies of
searches of financing statements filed under the Uniform
Commercial Code, lien and judgment searches and title
searches, as appropriate, with respect to the Collateral and
the Mortgaged Property which searches are reasonably
satisfactory to the Agent.
(g) Subject to Section 5.1.17, the Agent shall
have received binding policies of mortgagee's title insurance
(with such co-insurance and/or reinsurance arrangements as are
satisfactory to the Agent and with such special endorsements
as the Agent shall require, all in form reasonably
satisfactory to the Agent), together with such surveys as the
Agent shall require, on each parcel of the Mortgaged Property
specified by the Agent pursuant to policies on the applicable
ALTA form which will insure that the mortgagees thereunder
will have a valid first mortgage lien (subject to Permitted
Liens) in the amounts specified on Schedule 6.1(g) hereto,
subject to such exceptions as are provided for in the
Mortgages.
(h) The Agent shall have received the signed
opinion of Sidley & Austin, counsel to the Borrower and its
Subsidiaries, dated the Closing Date and addressed to the
Agent, the Co-Agents and all of the Lenders in substantially
the form set forth on Exhibit 6.1(h) hereto, with such changes
(if any) therein as shall be acceptable to the Agent and as to
such other matters as the Agent may reasonably request, and
the Agent shall have received the signed opinions addressed to
all of the Lenders of such local counsel reasonably
satisfactory to the Agent as the Agent may reasonably request.
(i) The Agent shall have received a copy of all
resolutions (in form and substance reasonably satisfactory to
the Agent) adopted by the Board of Directors of each of the
Borrower and those Subsidiaries (including, without
limitation, each of the Stone Merger Subsidiaries and Stone
Southwest Merger Subsidiaries) as reasonably deemed necessary
by the Agent, authorizing or relating to (i) the execution,
delivery and performance of the Basic Agreements and the other
documents and instruments provided for therein, (ii) the
consummation of the Mergers, and (iii) the consummation of the
transactions contemplated hereby and thereby, (iv) the
granting and confirmation of the liens, pledges, mortgages and
security interests pursuant to the Security Agreements, and
the Mortgages by the Borrower and its applicable Subsidiaries,
together with by-laws of the Borrower and such Subsidiaries,
all certified by the Secretary or a Vice-President of the
Borrower and such Subsidiary. Such certificate shall be dated
the Closing Date and shall state that the resolutions set
forth therein have not been amended, modified, revoked or
rescinded as of such date and are at such date in full force
and effect.
(j) The Agent shall have received certified copies
of the charters of each of the Borrower and those Subsidiaries
as reasonably deemed necessary by the Agent in their
respective jurisdictions of incorporation and evidence of
their good standing therein.
(k) The Agent shall have received a certificate of
the Secretary or a Vice-President of the Borrower, dated the
Closing Date as to the incumbency and signature of the
officers of the Borrower and any applicable Subsidiary
executing any Basic Agreement and any certificate or other
document or instrument to be delivered pursuant thereto by or
on behalf of the Borrower or such Subsidiary, together with
evidence of the incumbency of such Secretary or Vice-
President, as the case may be.
(l) Contemporaneously with the funding of the
Initial Loans, the Borrower shall have (i) paid in full all
outstanding indebtedness under the U.S. Credit Agreement, the
U.S. Credit Agreement shall have been terminated and all Liens
existing pursuant thereto shall have been released and
terminated, (ii) made loans and/or capital contributions to
Stone-Canada, the proceeds of which Stone-Canada shall have
used to pay in full all outstanding indebtedness under the
Canadian Credit Agreements such that the Canadian Credit
Agreements shall have been terminated and all Liens existing
pursuant thereto shall have been released and terminated,
(iii) caused the payment in full of all outstanding
indebtedness under the Stone Savannah Credit Agreement such
that the Stone Savannah Credit Agreement shall have been
terminated and all Liens existing pursuant thereto shall have
been released and terminated, and (iv) shall have given
irrevocable notice of redemption to the trustee of the Stone
Savannah Senior Subordinated Note Indenture with respect to
all outstanding Stone Savannah Senior Subordinated Notes and
shall have caused to be deposited with such trustee funds
sufficient to redeem in full all of the Stone Savannah Senior
Subordinated Notes at par (plus stated premium), together with
interest accrued and to accrue through the date of redemption,
which shall be on or prior to December 30, 1994. All of the
foregoing shall be pursuant to documentation reasonably
satisfactory to the Agent.
(m) The Agent shall have received a certificate
executed by a Responsible Officer on behalf of the Borrower,
dated the Closing Date and in the form of Exhibit 6.1(m)
hereto.
(n) All outstanding participations in the Florence
Letters of Credit shall have been terminated and all Revolving
Lenders (other than BT) shall have entered into a
Participation Agreement with respect to its Revolving Loan Pro
Rata share of the Florence L/C Obligations.
(o) Each of Westinghouse Electric Corporation,
Gelco Corporation and BT shall have entered into amendments to
the L/C Agreement in substantially the forms of Exhibits
6.1(o)-A and B hereto.
(p) Contemporaneously with the funding of the
Initial Loans, the Borrower shall have paid in full all
accrued Revolving Loan Commitment Fees and the Facility Fee.
(q) The Borrower shall have paid the Agent the
Agent's Fees due on the Closing Date.
(r) The Agent shall have received a Notice of
Borrowing by 3:00 p.m. New York time on the Business Day prior
to the Closing Date with respect to its Initial Loans
hereunder.
(s) The Agent shall have received the
Environmental Study, the results of which shall be acceptable
to the Agent.
(t) The Agent shall have received certificates of
insurance evidencing insurance required to be maintained
pursuant to Section 5.1.9 and the other Loan Documents,
evidence of full payment of premiums thereon and loss payable
endorsements, all as required by this Agreement and the other
Loan Documents.
(u) The Borrower shall have realized gross
proceeds of $700 million from the issuance and sale of the
Senior Notes and the First Mortgage Notes and the Agent shall
have received a duly executed copy of each of the Senior Note
Documents and the First Mortgage Note Documents, the terms,
conditions, representations, warranties, covenants, events of
default and other provisions of which shall be satisfactory in
all respects to the Agent.
(v) The Borrower shall have entered into a letter
agreement with the Facing Agent providing for Letter of Credit
fees, in form and substance satisfactory to the Facing Agent.
(w) All corporate and other proceedings taken in
connection with the transactions hereunder at or prior to the
Closing Date and all documents incident thereto shall be
reasonably satisfactory in form and substance to the Agent.
(x) The Agent shall have received such other
documents or legal opinions as the Agent or the Required
Lenders may reasonably request, all in form and substance
satisfactory to the Agent. The Borrower shall have furnished
to the Agent or the Lenders such additional copies or executed
counterparts of the documents referred to above as the Agent
or any Lender may request.
Section 6.2 Conditions Precedent to all Credit
Events. The right of the Borrower to make any Borrowing or to
have issued any Letter of Credit, and the obligation of each
Lender to make a Loan (including the Loans made on the
Restatement Date and Swing Line Loans) in respect of any such
Borrowing and the obligation of the Facing Agent to issue or
any Revolving Lender to participate in any Letter of Credit
shall, in each case, be subject to the fulfillment at or prior
to the time of the making of such Borrowing, or the issuance
of such Letter of Credit, as the case may be, of each of the
following conditions:
(a) Representations and Warranties. The
representations and warranties contained in Article IV of this
Agreement and in the other Loan Documents shall each be true
and correct in all material respects at and as of such time,
as though made on and as of such time except to the extent
such representations and warranties are expressly made as of
a specified date in which event such representation and
warranty shall be true and correct as of such specified date.
(b) No Default. No Unmatured Event of Default or
Event of Default shall have occurred and shall then be
continuing on such date or will occur after giving effect to
such Borrowing (including without limitation the use of
proceeds requirements set forth in Section 5.1.11).
(c) Notice of Borrowing; Letter of Credit Request.
(i) Prior to the making of each Loan, the Agent
shall have received a Notice of Borrowing meeting the
requirements of Section 2.5.
(ii) Prior to the issuance of each Letter of Credit,
the Agent and the Facing Agent shall have received a
request for the issuance of a Letter of Credit meeting
the requirements of Section 2.12(c).
(d) Other Information. The Agent shall have
received such other instruments and documents as the Agent or
the Required Lenders may reasonably request in connection with
the Loans and Letters of Credit and all such instruments and
documents shall be reasonably satisfactory in form and
substance to the Agent.
The acceptance of the benefits of each such Credit
Event by the Borrower shall be deemed to constitute a
representation and warranty by it to the effect of paragraphs
(a), (b) and (c) of this Section 6.2.
Section 6.3 Conditions Precedent to
Effectiveness of Agreement. The amendments to the Existing
Credit Agreement embodied in this Agreement shall not be
effective (in which case the Existing Credit Agreement shall
remain in full force and effect) unless and until the Borrower
shall have furnished to the Agent, or unless and until the
following conditions precedent have been satisfied, in each
case on or prior to the Restatement Date:
(a) The Borrower, the Agent, the Required Lenders
(as defined in the Existing Credit Agreement), each of the
Revolving Lenders (as defined in the Existing Credit
Agreement), each of the Supplemental Revolving Lenders (as
defined in the Existing Credit Agreement) and the Majority
Term Lenders (as defined in the Existing Credit Agreement)
shall have duly executed and delivered this Agreement.
(b) All of the other Basic Agreements shall be in
full force and effect.
(c) No Event of Default or Unmatured Event of
Default shall have occurred and be continuing or will occur
after giving effect to the consummation of the transactions
contemplated herein (including, without limitation, the
consummation of the Smurfit Merger pursuant to the Smurfit
Merger Documents).
(d) The Agent shall have received true, correct
and complete copies of the Smurfit Merger Documents which
shall be in form and substance reasonably satisfactory to the
Agent. The Smurfit Merger Documents and the transactions
contemplated thereby shall have been duly approved by the
board of directors and the stockholders of the Borrower, SSCC
and JSC Acquisition, all Smurfit Merger Documents shall have
been duly executed and delivered by the parties thereto and
shall be in full force and effect. All representations and
warranties contained in the Smurfit Merger Documents are true
and correct in all material respects both prior to and after
giving effect to the effectiveness of this Agreement and the
consummation of the Smurfit Merger, each of the conditions
precedent to the obligations of the Borrower, SSCC and JSC
Acquisition to consummate the Smurfit Merger as set forth in
the Smurfit Merger Documents shall have been satisfied to the
satisfaction of the Agent, and prior to or substantially
simultaneously with the effectiveness of this Agreement, the
Smurfit Merger shall have been consummated in accordance with
the Smurfit Merger Documents and all applicable laws, rules
and regulations.
(e) The Agent shall have received true, correct
and complete copies of the Capital Infusion Documents which
shall be in form and substance reasonably satisfactory to the
Agent. The Capital Infusion Documents and the transactions
contemplated thereby shall have been duly approved by the
board of directors and, to the extent required under
applicable law, the Stockholders, of SSCC and the Borrower,
all Capital Infusion Documents shall have been duly executed
and delivered by the parties thereto and shall be in full
force and effect. Prior to or substantially simultaneously
with the effectiveness of this Agreement, the Borrower shall
have received gross cash proceeds of not less than
$290,000,000 from SSCC as an investment in the form of common
equity (the "Capital Infusion") in accordance with the
Capital Infusion Documents, and all of the proceeds of the
Capital Infusion shall have been used by the Borrower solely
to (i) repay outstanding Revolving Loans and Supplemental
Revolving Loans, and (ii) pay fees and expenses in connection
with the transactions contemplated by the Smurfit Merger and
this Agreement.
(f) All material approvals, consents,
authorizations, licenses, permits, orders, filings and
declarations of and with any governmental or regulatory body,
agency or authority or any Person necessary in connection with
the Smurfit Merger Documents, the Capital Infusion Documents,
this Agreement and the transactions otherwise contemplated
thereby and hereby shall have been obtained and made and be in
full force and effect, including, without limitation, all
filings required to be made and any approval required to be
received (including any action required to be taken as a
condition thereto) pursuant to the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, in each case on a basis
acceptable to the Agent.
(g) The Agent shall have received the signed
opinion of Sidley & Austin, counsel to the Borrower and its
Subsidiaries, dated the Restatement Date and addressed to the
Agent, the Co-Agents and all of the Lenders in substantially
the form set forth on Exhibit 6.3(g) hereto, with such changes
(if any) therein as shall be acceptable to the Agent and as to
such other matters as the Agent may reasonably request, and
the Agent shall have received the signed opinions addressed to
all of the Lenders of such local and foreign counsel
reasonably satisfactory to the Agent as the Agent may
reasonably request.
(h) The Agent shall have received a copy of the
resolutions (in form and substance reasonably satisfactory to
the Agent) adopted by the Board of Directors of the Borrower,
authorizing or relating to (i) the execution, delivery and
performance of this Agreement and the other documents and
instruments provided for herein, (ii) the consummation of the
transactions contemplated hereby and thereby (including,
without limitation, the Smurfit Merger and the Capital
Infusion), (iii) the confirmation of the liens, pledges,
mortgages and security interests granted pursuant to the
Security Agreements, the Pledge Agreements and the Mortgages
by the Borrower, together with the articles of incorporation
and by-laws of the Borrower, all certified by the Secretary or
an Assistant Secretary of the Borrower. Such certificate
shall be dated the Restatement Date and shall state that the
resolutions, articles of incorporation and by-laws set forth
therein have not been amended, modified, revoked or rescinded
as of such date and are at such date in full force and effect.
(i) The Agent shall have received certified copies
of the certificate of incorporation of the Borrower from its
jurisdiction of incorporation and evidence of its good
standing therein.
(j) The Agent shall have received a certificate of
the Secretary or an Assistant Secretary of the Borrower, dated
the Restatement Date as to the incumbency and signature of the
officers of the Borrower executing any Loan Document and any
certificate or other document or instrument to be delivered
pursuant hereto by or on behalf of the Borrower, together with
evidence of the incumbency of such Secretary or Assistant
Secretary, as the case may be.
(k) The Agent shall have received duly executed
amendments and restatements of the Pledge Agreements each
dated as of June 19, 1997 between the Borrower and the Agent
with original stock certificates and intercompany promissory
notes evidencing 65% of the outstanding common and preferred
stock of Stone-Canada (with the existing recourse to such
common and preferred stock of Stone-Canada being deleted
therefrom) and Stone Finance, and any Stone-Canada
intercompany notes, pledged to the Agent pursuant to the
Pledge Agreements, together with undated stock powers and note
powers duly executed in blank, all in form and substance
reasonably satisfactory to the Agent.
(l) The Agent shall have received a certificate
executed by a Responsible Officer on behalf of the Borrower,
dated the Restatement Date and in the form of Exhibit 6.3(l)
hereto.
(m) The Borrower shall have paid in full the
Amendment Fees.
(n) All corporate and other proceedings taken in
connection with the transactions hereunder at or prior to the
Restatement Date and all documents incident thereto shall be
reasonably satisfactory in form and substance to the Agent.
(o) The Agent shall have received such other
documents or legal opinions as the Agent or the Required
Lenders may reasonably request, all in form and substance
satisfactory to the Agent. The Borrower shall have furnished
to the Agent or the Lenders such additional copies or executed
counterparts of the documents referred to above as the Agent
or any Lender may request.
In the event that all of the foregoing conditions
precedent have not been satisfied or waived on or before
December 31, 1998, this Agreement shall be of no further force
and effect and the Existing Credit Agreement shall continue in
full force and effect.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.1 Events of Default. The occurrence
of any of the following events shall constitute an "Event of
Default":
(a) Payments. The Borrower (i) shall fail to pay
when due (whether at maturity, upon acceleration, by mandatory
prepayment or otherwise) any payment of principal on any
Obligation or (ii) shall default in the payment of interest on
any Obligation or default in the payment of any fee or other
amount owing hereunder or under any other Loan Document when
due and, in the case of this clause (ii), such default in
payment shall continue for a period of five (5) Business Days;
or
(b) Representations and Warranties. Any
representation or warranty on the part of the Borrower
contained in, or incorporated by reference in, any Basic
Agreement or any document, instrument or certificate delivered
pursuant thereto shall have been incorrect in any material
respect when made or deemed to have been made; or
(c) Certain Covenants. The Borrower shall default
in the performance or observance of any term, covenant,
condition or agreement on its part to be performed or observed
under Section 5.1 (except Sections 5.1.1(b)-(h), 5.1.2,
5.1.3(b), 5.1.4, 5.1.5 (giving effect to any cure or remedy
periods in the documents referred to in such Sections), 5.1.6,
5.1.7, 5.1.8, 5.1.9, and 5.1.15), 5.2 (except for Section
5.2.1 with respect to non-contractual Liens) or 5.3; or
(d) Other Covenants. The Borrower shall default
in the performance or observance of any term, covenant,
condition or agreement on its part to be performed or observed
hereunder or under any Basic Agreement (and not constituting
an Event of Default under any other clause of this Section
7.1) and, with respect only to such defaults as are capable of
being remedied, such default shall continue unremedied for a
period of thirty (30) days after written or telephonic
(promptly confirmed in writing) notice thereof has been given
to the Borrower by the Agent or any Lender; or
(e) Bankruptcy. The Borrower or any of its
Subsidiaries shall become insolvent or generally fail to pay,
or admit in writing its inability to pay, its debts as they
become due, or shall voluntarily commence any proceeding or
file any petition under any bankruptcy, insolvency or similar
law or seeking dissolution or reorganization or the
appointment of a receiver, trustee, custodian or liquidator
for it or a substantial portion of its property, assets or
business or to effect a plan or other arrangement with its
creditors, or shall file any answer admitting the jurisdiction
of the court and the material allegations of an involuntary
petition filed against it in any bankruptcy, insolvency or
similar proceeding, or shall be adjudicated bankrupt, or shall
make a general assignment for the benefit of creditors, or
shall consent to, or acquiesce in the appointment of, a
receiver, trustee, custodian or liquidator for a substantial
portion of its property, assets or business; or
(f) Involuntary Proceedings. Involuntary
proceedings or an involuntary petition shall be commenced or
filed against the Borrower or any of its Subsidiaries under
any bankruptcy, insolvency or similar law or seeking the
dissolution or reorganization of it or the appointment of a
receiver, trustee, custodian or liquidator for it or of a
substantial part of its property, assets or business, or any
writ, judgment, warrant of attachment, execution or similar
process shall be issued or levied against a substantial part
of its property, assets or business, and such proceedings or
petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not
be released, vacated or fully bonded, within sixty (60) days
after commencement, filing or levy, as the case may be, or any
order for relief shall be entered in any such proceeding; or
(g) Indebtedness for Money Borrowed. (i) The
Borrower or any of its Subsidiaries (other than SVCPI) shall
default in the payment when due, whether at stated maturity or
otherwise, of any Indebtedness for Money Borrowed having an
aggregate principal amount of $10 million or more, (ii) an
event of default as defined in any mortgage, indenture,
agreement or instrument under which there may be issued, or by
which there may be secured or evidenced, any such Indebtedness
for Money Borrowed shall occur which permits any holder
thereof to cause any such Indebtedness for Money Borrowed of
the Borrower or any of its Subsidiaries (other than SVCPI) to
become due and payable prior to the stated maturity or due
date thereof, or (iii) any event or condition shall occur
which with notice or lapse of time or both permits such
Indebtedness for Money Borrowed of the Borrower or any of its
Subsidiaries (other than SVCPI) to be declared due and
payable, or any such Indebtedness for Money Borrowed is
declared to be due and payable, prior to its stated maturity
or due date; provided, however, that solely with respect to S-
CC or any of its Subsidiaries (but only in the event that S-CC
constitutes a Subsidiary of the Borrower), (A) any event
described in subsection (i) above shall constitute an Event of
Default only if the payment default relates to the final
maturity of the relevant Indebtedness for Money Borrowed and
the holder thereof has commenced legal action in respect of
such default and (B) any event described in subsection (ii) or
(iii) above shall constitute an Event of Default only if the
relevant "event of default", "event" or "condition" results in
any such Indebtedness for Money Borrowed being declared due
and payable prior to its stated maturity or due date; or
(h) Judgments. One or more judgments or decrees
shall be entered against the Borrower or any of its
Subsidiaries involving, individually or in the aggregate, a
liability of $10 million or more and a sufficient number of
such judgments or decrees shall not have been vacated,
discharged, satisfied or stayed pending appeal within thirty
(30) days from the entry thereof so as to bring the aggregate
below the $10 million threshold set forth above; or
(i) Basic Agreements. (i) Any of the Basic
Agreements shall cease for any reason to be in full force and
effect (other than termination in accordance with its terms)
or the obligor thereunder shall disavow or seek to discontinue
its obligations thereunder, or shall contest the validity or
enforceability of any thereof; or (ii) any Lien purported to
be granted pursuant to the Security Agreements, the Pledge
Agreements or the Mortgages for any reason shall cease to be
a legal, valid or enforceable lien and security interest in
the Collateral or the Mortgaged Property, as the case may be;
or
(j) ERISA. Either (i) any Reportable Event which
constitutes reasonable grounds for the termination of any Plan
by the PBGC or for the appointment by the appropriate United
States District Court of a trustee to administer or liquidate
any Plan shall have occurred; (ii) a trustee shall be
appointed by a United States District Court to administer any
Plan; (iii) the PBGC shall institute proceedings to terminate
any Plan; (iv) any Plan shall be terminated; or (v) the
Borrower, any of its Subsidiaries or any ERISA Affiliate shall
become liable to the PBGC pursuant to ERISA Sections 4063 or
4064; and the aggregate outstanding liability of the Borrower,
all of its Subsidiaries, and all ERISA Affiliates with respect
to the Plan (assuming the Plan had terminated) and all other
Plans as to which any of the events (i) through (v) has
occurred exceeds $10 million or a contribution failure occurs
with respect to any Plan sufficient to give rise to a Lien
under Section 302(f) of ERISA; or
(k) Other ERISA. Either (i) a trustee shall be
appointed by a United States District Court to administer any
Multiemployer Plan; (ii) the PBGC shall institute proceedings
to terminate any Multiemployer Plan; (iii) the Borrower, any
of its Subsidiaries or any ERISA Affiliates shall become
liable to any Multiemployer Plan pursuant to ERISA Section
4201; or (iv) any Multiemployer Plan shall be terminated; and
the aggregate outstanding liability of the Borrower, all of
its Subsidiaries, and all ERISA Affiliates with respect to the
Multiemployer Plan (assuming the Multiemployer Plan had
terminated if either (i) or (ii) has occurred) and all other
Multiemployer Plans as to which any of the events (i) through
(iv) has occurred exceeds $20 million; or
(l) Cross-Defaults. Any default or event of
default shall occur under any of the Subsidiary Guarantees,
the Security Agreements, the Mortgages, any other Basic
Agreement, the L/C Agreement or the Continental Guaranty;
provided, however, that for purposes of this Section and
Section 7.1(g), no Default or Event of Default shall be deemed
to have occurred under the Continental Guaranty to the extent
that such Default or Event of Default arises solely out of a
cross-default under the Continental Guaranty to the debt
instruments of SVCPI or S-CC and Continental has neither
sought to enforce any remedies under the Continental Guaranty
in respect thereof nor given the Borrower written notice of
its intent to do so upon the passage of time or the occurrence
or non-occurrence of specified events; or
(m) Change of Control. There shall have occurred
a Change of Control.
Section 7.2 Remedies. If an Event of Default
shall occur and be continuing, the Agent may and, at the
direction of the Required Lenders shall, take one or more of
the following actions: (a) by written or oral or telephonic
notice (in the case of oral or telephonic notice confirmed in
writing promptly thereafter) to the Borrower declare the Total
Maximum Commitment to be terminated whereupon the Total
Maximum Commitment shall forthwith terminate, (b) by written
or oral or telephonic notice (in the case of oral or
telephonic notice confirmed in writing promptly thereafter) to
the Borrower declare all sums then owing by the Borrower
hereunder to be forthwith due and payable, whereupon all such
sums shall become and be immediately due and payable without
presentment, demand, protest or notice of any kind (except as
expressly provided for herein), all of which are hereby
expressly waived by the Borrower, or (c) exercise any remedies
available under any Loan Document or otherwise. In the case
of the occurrence of any Event of Default described in clause
(e) or (f) of Section 7.1, the Total Maximum Commitment shall
forthwith terminate and the Obligations, together with accrued
interest thereon, shall become due and payable forthwith
without the requirement of any such acceleration or request,
and without presentment, demand, protest or other notice of
any kind, all of which are expressly waived, and other amounts
payable by the Borrower hereunder shall also become
immediately due and payable, all without notice of any kind.
If the maturity of the Obligations has been
accelerated pursuant to the preceding paragraph, the Borrower
shall, on the Business Day it receives notice from the Agent
or the Required Lenders thereof, deposit in an account with
the Agent, for the benefit of the Revolving Lenders, an amount
in cash equal to the L/C Obligations as of such date. Such
deposit shall be held by the Agent as collateral for the
payment and performance of the L/C Obligations. The Agent
shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than
any interest earned on the investment of such deposits in
Permitted Investments, which investments shall be made at the
option and sole discretion of the Agent, such deposits shall
not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Monies in such
account shall (i) automatically be applied by the Agent to
reimburse the Facing Agent and BT for any Letter of Credit
disbursement, (ii) be held for the satisfaction of the
reimbursement obligations of the Borrower at such time and
(iii) be applied to satisfy the Obligations. If the Borrower
is required to provide an amount of cash collateral hereunder
as a result of an acceleration of the Obligations, such amount
(to the extent not applied as aforesaid) shall be returned to
the Borrower within three Business Days after all Events of
Default have been cured or waived and the acceleration has
been rescinded and annulled as provided in the succeeding
paragraph.
Anything in this Section 7.2 to the contrary
notwithstanding, the Agent shall, if requested by the Required
Lenders (or all the Lenders if required by the terms of
Section 9.2), within thirty (30) days of (a) the delivery to
the Borrower of a notice of acceleration of the Obligations or
(b) an automatic acceleration of the Obligations by reason of
the occurrence of any Event of Default described in clause (e)
or (f) of Section 7.1, rescind and annul any acceleration of
the Obligations; provided, however, that at the time such
acceleration is so rescinded and annulled (i) all past due
interest and principal, if any, on the Obligations and all
other sums payable under this Agreement and the other Loan
Documents (except any principal and interest on any
Obligations which has become due and payable by reason of such
acceleration pursuant to this Section 7.2) shall have been
duly paid and (ii) no other Event of Default or Unmatured
Event of Default shall have occurred and be continuing and the
Agent shall have received the certificate of an Executive
Officer of the Borrower to such effect. If any reduction in
commitments has occurred pursuant to this Section 7.2 in
connection with any such acceleration, then upon the
rescission and annulment of such acceleration pursuant to this
Section 7.2, the Revolving Loan Commitment of each Revolving
Lender, the Supplemental Revolving Loan Commitment of each
Supplemental Lender and the Swing Line Commitment of the Swing
Line Lender shall be reinstated to the respective amounts
thereof which would have been in effect on the date of such
rescission and annulment had no commitment reduction occurred
pursuant to this Section 7.2.
ARTICLE VIII
THE AGENT
In this Article VIII, the Lenders agree among
themselves as follows:
Section 8.1 Appointment. The Lenders hereby
appoint BT as Agent hereunder and under each other Loan
Document as herein specified. Each Lender hereby irrevocably
authorizes and each holder of any Obligation by the acceptance
thereof shall be deemed irrevocably to authorize the Agent to
take such action on its behalf under the provisions of this
Agreement and the other Basic Agreements (including, without
limitation, to give notices and take such actions on behalf of
the Required Lenders as are consented to in writing by the
Required Lenders) and any other instruments, documents and
agreements referred to herein and therein and to exercise such
powers hereunder and thereunder as are specifically delegated
to the Agent by the terms hereof and thereof and such other
powers as are reasonably incidental thereto. The Agent may
perform any of their respective duties hereunder, or under the
Loan Documents, by or through their respective agents or
employees.
Section 8.2 Nature of Duties. The Agent shall
not have any duties or responsibilities, express or implied,
except those expressly set forth in this Agreement and the
other Loan Documents. The duties of the Agent shall be
mechanical and administrative in nature. The Agent shall not
have by reason of this Agreement a fiduciary relationship in
respect of any Lender, any Co-Agent or the Borrower. Nothing
in this Agreement or any of the Loan Documents, expressed or
implied, is intended to or shall be so construed as to impose
upon the Agent any obligations in respect of this Agreement or
any of the Loan Documents except as expressly set forth herein
or therein. Each Lender shall make its own independent
investigation of the financial condition and affairs of the
Borrower and its Subsidiaries in connection with the making
and the continuance of the Loans and the issuance of Letters
of Credit hereunder, and shall make its own appraisal of the
creditworthiness of the Borrower. The Agent shall not have
any duty or responsibility, either initially or on a
continuing basis, to provide any Lender with any credit or
other information with respect thereto, whether coming into
its possession before making of the Loans or at any time or
times thereafter. The Agent will promptly notify each Lender
at any time that the Required Lenders have instructed it to
act or refrain from acting pursuant to Article VII.
Section 8.3 Rights, Exculpation, Etc Neither
the Agent nor any of its officers, directors, employees or
agents shall be liable to any Lender for any action taken or
omitted by it hereunder or under any of the Loan Documents, or
in connection herewith or therewith, unless caused by its or
their gross negligence or willful misconduct. Neither the
Agent nor any of its officers, directors, employees or agents
shall be responsible to any Lender for or have any duty to
ascertain, inquire into, or verify (i) any recitals,
statements, representations or warranties made in connection
with any Loan Document or any Borrowing hereunder, (ii) the
performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including,
without limitation, any agreement by an obligor to furnish
information directly to each Lender, (iii) the satisfaction of
any condition specified in Article VI, except receipt of items
required to be delivered to the Agent, or (iv) the execution,
effectiveness, genuineness, validity, enforceability,
collectability or sufficiency of any of the Loan Documents or
the financial condition of the Borrower or any of its
Subsidiaries. The Agent shall not be required to make any
inquiry concerning either the performance or observance of any
of the terms, provisions or conditions of any of the Loan
Documents or the financial condition of the Borrower or any of
its Subsidiaries, or the existence or possible existence of
any Unmatured Event of Default or Event of Default unless
requested to do so by the Required Lenders. The Agent shall
have no duty to disclose to the Co-Agents or the Lenders
information that is not required to be furnished by the
Borrower to the Agent at such time, but is voluntarily
furnished by the Borrower to the Agent (either in its capacity
as Agent or in its individual capacity). The Agent may at any
time request instructions from the Lenders with respect to any
actions or approvals which by the terms of any of the Loan
Documents the Agent is permitted or required to take or to
grant, and if such instructions are requested, the Agent shall
be absolutely entitled to refrain from taking any action or to
withhold any approval and shall not be under any liability
whatsoever to any Person for refraining from any action or
withholding any approval under any of the Loan Documents until
it shall have received such instructions from the Required
Lenders. Any such instructions and any action taken or
failure to act pursuant thereto shall be binding on all of the
Lenders. Without limiting the foregoing, no Lender shall have
any right of action whatsoever against the Agent as a result
of the Agent acting or refraining from acting under any of the
Loan Documents in accordance with the instructions of the
Required Lenders. The Lenders hereby acknowledge that the
Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this
Agreement unless it shall be requested in writing to do so by
the Required Lenders.
Section 8.4 Employment of Agents and Counsel.
The Agent may execute any of its duties as Agent hereunder and
under any other Loan Document by or through employees, agents
and attorneys-in-fact and shall not be answerable to the
Lenders or the Co-Agents, except as to money or securities
received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by
it with reasonable care. The Agent shall be entitled to
advice of counsel concerning all matters pertaining to the
agency hereby created and its duties hereunder and under any
other Loan Document.
Section 8.5 Reliance. The Agent shall be
entitled to rely upon any written notice, statement,
certificate, order or other document or any telephone message
reasonably believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person, and, with
respect to all matters pertaining to any of the Loan Documents
and its duties hereunder or thereunder, upon advice of counsel
selected by it.
Section 8.6 Indemnification. To the extent that
the Agent is not reimbursed and indemnified by the Borrower,
the Lenders will reimburse and indemnify the Agent for and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent, acting
pursuant hereto, in any way relating to or arising out of any
of the Loan Documents or any action taken or omitted by the
Agent, under any of the Loan Documents, in proportion to each
Lender's respective ratable share of the aggregate of the
Total Maximum Commitment (or, if the Commitments have been
terminated, in proportion to their Commitments immediately
prior to such termination); provided, however, that no Lender
shall be liable for any fees payable to the Agent pursuant to
Section 3.9 or for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the
Agent's gross negligence or willful misconduct. The
obligations of the Lenders under this Section 8.6 shall
survive the payment in full of the Obligations and the
termination of this Agreement.
Section 8.7 Notice of Default. The Agent shall
not be deemed to have knowledge or notice of the occurrence of
any Event of Default or Unmatured Event of Default hereunder
unless the Agent has received written notice from a Lender or
the Borrower referring to this Agreement describing such Event
of Default or Unmatured Event of Default and stating that such
notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall give prompt notice
thereof to the Lenders.
Section 8.8 The Agent Individually. With
respect to its Revolving Loan Pro Rata Share, Term Loan Pro
Rata Share, Additional Term Loan Pro Rata Share, Supplemental
Revolving Loan Pro Rata Share, D Tranche Term Loan Pro Rata
Share, E Tranche Term Loan Pro Rata Share, Maximum Commitment,
Additional Term Loan Commitment, Supplemental Revolving Loan
Commitment and D Tranche Term Loan Commitment hereunder and
the Loans made or Letters of Credit issued by it, the Agent in
its individual capacity shall have and may exercise the same
rights and powers hereunder and is subject to the same
obligations and liabilities as and to the extent set forth
herein for any other Lender or holder of an Obligation. The
terms "Lenders", "Required Lenders", "Majority Revolving
Lenders", "Majority Term Lenders", "Majority Additional Term
Lenders", "Majority Supplemental Revolving Lenders", "Majority
D Tranche Term Lenders" or "Majority E Tranche Term Lenders"
or any similar terms shall, unless the context clearly
otherwise indicates, include the Agent in its individual
capacity as a Lender, one of the Required Lenders or a holder
of an Obligation. The Agent may accept deposits from, lend
money to, and generally engage in any kind of banking, trust
or other business with the Borrower or any Subsidiary of the
Borrower as if they were not acting as Agent pursuant hereto.
Section 8.9 Resignation by the Agent.
(a) The Agent may resign from the performance of
all its functions and duties hereunder at any time by giving
15 Business Days' prior written notice to the Borrower and the
Lenders. Such resignation shall take effect upon the
acceptance by a successor Agent of appointment pursuant to
clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation by the
Agent, the Required Lenders shall appoint a successor Agent
who shall be satisfactory to the Borrower and shall be a bank
with an office in New York, New York having a combined capital
and surplus of at least $500,000,000 or an Affiliate of any
such bank.
(c) If a successor Agent shall not have been so
appointed within said 15 Business Day period, the Agent, with
the consent of the Borrower, shall then appoint a successor
Agent who shall serve as Agent until such time, if any, as the
Required Lenders, with the consent of the Borrower, appoint a
successor Agent as provided above.
(d) If no successor Agent has been appointed
pursuant to clause (b) or (c) by the 20th Business Day after
the date such notice of resignation was given by the Agent,
the Agent's resignation shall become effective and the
Required Lenders shall thereafter perform all the duties of
the Agent hereunder until such time, if any, as the Required
Lenders, with the consent of the Borrower, appoint a successor
Agent as provided above.
Section 8.10 Holders of Obligations. The Agent
may deem and treat the payee of any Obligation as reflected on
the books and records of the Agent as the owner thereof for
all purposes hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed with the
Agent pursuant to Section 9.12(d). Any request, authority or
consent of any Person who, at the time of making such request
or giving such authority or consent, is the holder of any
Obligation shall be conclusive and binding on any subsequent
holder, transferee or assignee of such Obligation or of any
Obligation or Obligations granted in exchange therefor.
Section 8.11 Co-Agents. None of the Lenders
identified on the cover page or signature pages of this
Agreement as a "Co-Agent" shall have any right, power,
obligation, liability, responsibility or duty under this
Agreement or any other Loan Document other than those
applicable to all Lenders as such. Each Lender acknowledges
that it has not relied, and will not rely, on any of the
Lenders identified as Co-Agents in deciding to enter into this
Agreement or in taking or refraining from taking any action
hereunder or pursuant hereto.
ARTICLE IX
MISCELLANEOUS
Section 9.1 No Waiver; Modifications in Writing.
No failure or delay on the part of the Agent or any Lender in
exercising any right, power or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise
of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right,
power or remedy. The remedies provided for herein and in the
other Loan Documents are cumulative and are not exclusive of
any remedies that may be available to the Agent or any Lender
at law, in equity or otherwise.
Section 9.2 Amendments. No amendment,
modification, supplement, termination or waiver of or to any
provision of this Agreement, nor consent to any departure by
the Borrower or any of its Subsidiaries therefrom, shall be
effective unless the same shall be in writing and signed by or
on behalf of the Required Lenders; provided, however, that no
such amendment, modification, supplement, termination, waiver
or consent, as the case may be, which (i) reduces the rate of
interest on any Loan or reduces the principal amount of any
Loan or the amount of fees payable by the Borrower hereunder,
or forgives any such payment or any part thereof; (ii) extends
the Term Loan Maturity Date or the Revolver Termination Date
or the scheduled date for the payment of interest on any Loan;
(iii) changes this Section 9.2 or the definitions of the terms
"Required Lenders", "Revolving Loan Pro Rata Share" or "Term
Loan Pro Rata Share"; (iv) changes the Maximum Commitment of
any Lender hereunder; (v) releases the Liens created by the
Loan Documents upon all or substantially all of the Collateral
and the Mortgaged Property (except where Substitute Collateral
is provided or as otherwise permitted by Section 9.13) or
changes the provisions of Schedule 1.1(b) hereto relating to
the release of all of the Collateral and Mortgaged Property;
or (vi) releases or terminates all or substantially all of the
Subsidiary Guarantees shall be effective unless the same shall
be signed by or on behalf of (A) in the case of any changes
described in clause (i), (ii) or (iii) (other than changing
the definition of "Required Lenders") above, each Term Lender
if amounts payable to the Term Lenders would be affected by
such change or each Revolving Lender if amounts payable to the
Revolving Lenders would be affected by such change, with each
class of Lenders voting as a separate class, and (B) in the
case of any changes described in clause (iv), (v) or (vi)
above, each Lender hereunder; provided further, that except as
provided in Section 3.6(f), no such amendment, modification,
supplement, termination, waiver or consent which changes the
application of any prepayments or scheduled repayments of any
Loans, reduces the amount of or waives any prepayments or
scheduled repayments of any Loans, or extends the time of
payment for any prepayments or scheduled repayments of any
Loans, shall be effective unless the same shall be signed by
or on behalf of (i) to the extent such prepayment or repayment
applies to the Term Loan, Term Lenders holding Term loans
representing more than 50% of the aggregate outstanding
principal amount of the Term Loan (the "Majority Term
Lenders"), and (ii) to the extent such prepayment or repayment
applies to the Revolving Loan, Revolving Lenders holding
Revolving Loans and Revolving Loan Commitments, if any,
representing more than 50% of the sum of (x) the aggregate
outstanding principal amount of the Revolving Loans and (y)
the Total Available Revolving Commitment (the "Majority
Revolving Lenders"); and provided further, that no such
amendment, modification, supplement, termination, waiver or
consent, as the case may be, which has the effect of (i)
increasing the duties or obligations of the Agent hereunder;
or (ii) increasing the standard of care or performance
required on the part of the Agent, the Swing Line Lender or
any Facing Agent hereunder, or (iii) reducing or eliminating
the fees, indemnities or immunities to which the Agent, the
Swing Line Lender or any Facing Agent is entitled hereunder
(including, without limitation, any amendment or modification
of this Section) shall be effective unless the same shall be
signed by or on behalf of the Agent, the Swing Line Lender or
such Facing Agent, as the case may be. Any amendment,
modification or supplement of or to any provision of this
Agreement, any waiver of any provision of this Agreement, and
any consent to any departure by the Borrower from the terms of
any provision of this Agreement, shall be effective only in
the specific instance and for the specific purpose for which
made or given.
Section 9.3 Certain Other Amendments; Amendments
Affecting Additional Lenders, Supplemental Revolving Lenders,
D Tranche Lenders and E Tranche Lenders. No amendment which
changes (i) this clause (i) or the definition of "Term Loan
Pro Rata Share" shall be effective unless the same shall be
signed by or on behalf of each Term Lender which at the time
has outstanding any portion of the Term Loan or (ii) this
clause (ii) or the definition of "Revolving Loan Pro Rata
Share" shall be effective unless the same shall be signed by
or on behalf of each Revolving Lender which at the time has
made or has outstanding a portion of the Revolving Loan
Commitment or the Revolving Loans. In addition, without
limiting or changing the provisions of Section 9.2, no
amendment, modification, supplement, termination, waiver or
consent of or to any provision of this Agreement which (i)
reduces the rate of interest on any Additional Term Loan or
reduces the principal amount of any Additional Term Loan, or
forgives any such payment or any part thereof, (ii) extends
the Additional Term Loan Maturity Date or the scheduled date
for the payment of interest on any Additional Term Loan, (iii)
changes this second sentence of Section 9.3 or the definition
of the term "Additional Term Loan Pro Rata Share" or (iv)
changes the Additional Term Loan Commitment of any Additional
Lender hereunder shall be effective unless the same shall be
signed by or on behalf of each Additional Lender if amounts
payable to the Additional Lenders would be affected by such
change; provided, however, that except as provided in Section
3.6(f), no such amendment, modification, supplement,
termination, waiver or consent which changes the application
of any prepayments or scheduled repayments of the Additional
Term Loan, reduces the amount of or waives any prepayments or
scheduled repayments of the Additional Term Loan, or extends
the time of payment for any prepayments or scheduled
repayments of the Additional Term Loan, shall be effective
unless the same shall be signed by or on behalf of Additional
Lenders holding Additional Term Loans representing more than
50% of the aggregate outstanding principal amount of the
Additional Term Loan (the "Majority Additional Term Lenders").
Without limiting or changing the provisions of Section 9.2,
no amendment, modification, supplement, termination, waiver or
consent of or to any provision of this Agreement which (i)
reduces the rate of interest on any Supplemental Revolving
Loan or reduces the principal amount of any Supplemental
Revolving Loan, or forgives any such payment or any part
thereof, (ii) extends the Supplemental Revolver Termination
Date or the scheduled date for the payment of interest on any
Supplemental Revolving Loan, (iii) changes this third sentence
of Section 9.3 or the definition of the term "Supplemental
Revolving Loan Pro Rata Share" or (iv) changes the
Supplemental Revolving Loan Commitment of any Supplemental
Revolving Lender hereunder shall be effective unless the same
shall be signed by or on behalf of each Supplemental Revolving
Lender if amounts payable to the Supplemental Revolving
Lenders would be affected by such change; provided, however,
that no such amendment, modification, supplement, termination,
waiver or consent which changes the application of any
prepayments or scheduled repayments of the Supplemental
Revolving Loan, reduces the amount of or waives any
prepayments or scheduled repayments of the Supplemental
Revolving Loan, or extends the time of payment for any
prepayments or scheduled repayments of the Supplemental
Revolving Loan, shall be effective unless the same shall be
signed by or on behalf of Supplemental Revolving Lenders
holding Supplemental Revolving Loans representing more than
50% of the sum of (i) the aggregate outstanding principal
amount of the Supplemental Revolving Loans and (ii) the Total
Available Supplemental Revolving Commitment (the "Majority
Supplemental Revolving Lenders"). Without limiting or
changing the provisions of Section 9.2, no amendment,
modification, supplement, termination, waiver or consent of or
to any provision of this Agreement which (i) reduces the rate
of interest on any D Tranche Term Loan or reduces the
principal amount of any D Tranche Term Loan, or forgives any
such payment or any part thereof, (ii) extends the D Tranche
Term Loan Maturity Date or the scheduled date for the payment
of interest on any D Tranche Term Loan, (iii) changes this
fourth sentence of Section 9.3 or the definition of the term
"D Tranche Term Loan Pro Rata Share" or (iv) changes the
D Tranche Term Loan Commitment of any D Tranche Lender
hereunder shall be effective unless the same shall be signed
by or on behalf of each D Tranche Lender if amounts payable to
the D Tranche Lenders would be affected by such change;
provided, however, that except as provided in Section 3.6(f),
no such amendment, modification, supplement, termination,
waiver or consent which changes the application of any
prepayments or scheduled repayments of the D Tranche Term
Loan, reduces the amount of or waives any prepayments or
scheduled repayments of the D Tranche Term Loan, or extends
the time of payment for any prepayments or scheduled
repayments of the D Tranche Term Loan, shall be effective
unless the same shall be signed by or on behalf of D Tranche
Lenders holding D Tranche Term Loans representing more than
50% of the aggregate outstanding principal amount of the D
Tranche Term Loan (the "Majority D Tranche Term Lenders").
Without limiting or changing the provisions of Section 9.2,
no amendment, modification, supplement, termination, waiver or
consent of or to any provision of this Agreement which (i)
reduces the rate of interest on any E Tranche Term Loan or
reduces the principal amount of any E Tranche Term Loan, or
forgives any such payment or any part thereof, (ii) extends
the E Tranche Term Loan Maturity Date or the scheduled date
for the payment of interest on any E Tranche Term Loan, (iii)
changes this fifth sentence of Section 9.3 or the definition
of the term "E Tranche Term Loan Pro Rata Share" or (iv)
changes the E Tranche Term Loan Commitment of any E Tranche
Lender hereunder shall be effective unless the same shall be
signed by or on behalf of each E Tranche Lender if amounts
payable to the E Tranche Lenders would be affected by such
change; provided, however, that except as provided in Section
3.6(f), no such amendment, modification, supplement,
termination, waiver or consent which changes the application
of any prepayments or scheduled repayments of the E Tranche
Term Loan, reduces the amount of or waives any prepayments or
scheduled repayments of the E Tranche Term Loan, or extends
the time of payment for any prepayments or scheduled
repayments of the E Tranche Term Loan, shall be effective
unless the same shall be signed by or on behalf of E Tranche
Lenders holding E Tranche Term Loans representing more than
50% of the aggregate outstanding principal amount of the E
Tranche Term Loan (the "Majority E Tranche Term Lenders").
Section 9.4 Notices, etc Except where
telephonic instructions or notices are authorized herein to be
given, all notices, demands, instructions and other
communications (collectively, "Notices") required or permitted
to be given to or made upon any party hereto or any other
Person shall be in writing and (except for written
confirmations of telephonic or telex instructions) shall be
personally delivered or sent by registered or certified mail,
postage prepaid, return receipt requested, or by a reputable
courier delivery service, or by prepaid telex, TWX or telegram
(with messenger delivery specified in the case of a telegram),
or by telecopier. Notices shall be deemed to be given for
purposes of this Agreement (a) if given by telex, when such
telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (b) if
given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as
aforesaid or (c) if given by any other means (including,
without limitation, by air courier), when delivered at the
address specified in this Section; provided, however, that any
Notice of Borrowing to the Agent shall not be effective until
received. Unless otherwise specified in a Notice sent or
delivered in accordance with the foregoing provisions of this
Section Notices shall be given to or made upon the respective
parties hereto at their respective addresses (or to their
respective telex, TWX or telecopier numbers) indicated on
their signature pages hereto or in any Assignment Agreement
and, in the case of telephonic instructions or notices, by
calling the telephone number or numbers indicated for such
party. Except where notice is specifically required by this
Agreement or any other Basic Agreement, no notice to or demand
on the Borrower in any case shall entitle the Borrower to any
other or further notice or demand in similar or other
circumstances.
Section 9.5 Costs, Expenses and Taxes. The
Borrower agrees to pay (without duplication) all reasonable
costs and expenses incurred by the Agent in connection with
the negotiation, preparation, reproduction, execution and
delivery of this Agreement and the other Basic Agreements, any
amendments, waivers or modifications of any of the foregoing
and any and all other documents furnished pursuant hereto or
thereto or in connection herewith or therewith, including the
reasonable fees and out-of-pocket expenses of Winston &
Strawn, special counsel to the Agent, any local counsel
retained by the Agent, reasonable attorney's fees and expenses
or (but not as well as) the reasonable allocated costs of
staff counsel of the Agent as well as the reasonable fees and
out-of-pocket expenses of additional special counsel,
independent public accountants, investment advisors and other
outside experts retained by or on behalf of the Agent in
connection with the administration of this Agreement or with
matters generally relating to this Agreement or any of the
transactions contemplated by this Agreement, and all costs and
expenses (including, without limitation, reasonable attorneys'
fees and expenses or (but not as well as) the reasonable
allocated costs of staff counsel, if any) incurred by the
Agent or any Lender in connection with the enforcement of this
Agreement, any other Basic Agreement or any other agreement
furnished pursuant hereto or thereto or in connection herewith
or therewith. In addition, the Borrower shall pay any and all
stamp, original issue and other similar taxes payable or
determined to be payable in connection with the execution and
delivery of this Agreement, any Basic Agreement or the making
of any Loan, and the Borrower agrees to save and hold the
Agent, the Co-Agents and each Lender harmless from and against
any and all liabilities with respect to or resulting from any
delay in paying, or omission to pay, such taxes. Expenses
being reimbursed by the Borrower under this Section include,
without limitation, the cost and expense of obtaining an
appraisal of each parcel of real property or interest in real
property described in the Mortgages, which appraisals shall be
in conformity with the applicable requirements of any law or
governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law), or any
interpretation thereof, including, without limitation, the
provisions of Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as amended, reformed or
otherwise modified from time to time, and any rules
promulgated to implement such provisions. Any portion of the
foregoing fees, costs and expenses which remains unpaid more
than thirty (30) days following the Agent's or any Lender's
statement and request for payment thereof shall bear interest
from the date of such statement and request to the date of
payment at the Default Rate.
Section 9.6 Indemnification. The Borrower will
(a) indemnify and hold harmless each Lender, each Co-Agent and
the Agent and each director, officer, employee, agent or
attorney and Affiliate thereof (each such Person an
("Indemnified Party") from and against all losses, claims,
damages, expenses or liabilities to which such Indemnified
Party may become subject, insofar as such losses, claims,
damages, expenses or liabilities (or actions, suits or
proceedings including any inquiry or investigation or claims
in respect thereof) arise out of, in any way relate to, or
result from the transactions contemplated by, any Basic
Agreement or the use by the Borrower of the proceeds of any
Loan, and (b) reimburse each Indemnified Party upon their
demand, for any reasonable legal or other expenses (including
(but not as well as) the reasonable allocated costs of staff
counsel) incurred in connection with investigating, preparing
to defend or defending any such loss, claim, damage,
liability, action or claim; provided, however, that no such
Person shall have the right to be so indemnified hereunder for
its own gross negligence or willful misconduct as finally
determined by a court of competent jurisdiction after all
appeals and the expiration of time to appeal. If any action,
suit or proceeding arising from any of the foregoing is
brought against the Agent, any Co-Agent, any Lender or any
other Person indemnified or intended to be indemnified
pursuant to this Section 9.6, the Borrower will, if requested
by the Agent, any Co-Agent, any Lender or any such indemnified
Person, resist and defend such action, suit or proceeding or
cause the same to be resisted and defended by counsel
reasonably satisfactory to the Person or Persons indemnified
or intended to be indemnified. Each Indemnified Party shall,
unless such Indemnified Party has made the request described
in the preceding sentence and such request has been complied
with, have the right to employ its own counsel (or (but not as
well as) staff counsel) to investigate and control the defense
of any matter covered by such indemnity and the reasonable
fees and expenses of such counsel shall be at the expense of
the indemnifying party. The obligations of the Borrower under
this Section 9.6, under Sections 2.12(h) and (i) and under
Section 2.13 shall survive the termination of this Agreement
and the discharge of the Borrower's other obligations
hereunder and under the Obligations.
Excluding any liability arising out of the gross
negligence or willful misconduct of any Indemnified Party, the
Borrower further agrees to indemnify and hold each Indemnified
Party harmless from all loss, cost (including reasonable
attorneys' fees), liability and damage whatsoever incurred by
any Indemnified Party by reason of any violation of any
Environmental Laws or Environmental Permits or for the Release
or threatened Release of any Contaminant into the environment
for which the Borrower or any of its Subsidiaries has any
liability or which occurs upon the Mortgaged Property or which
is related to any property currently or formerly owned, leased
or operated by or on behalf of the Borrower or any of its
Subsidiaries, or by reason of the imposition of any
Environmental Lien or which occurs by a breach of any of the
representations, warranties or covenants relating to
environmental matters contained herein, including, without
limitation, by reason of any matters disclosed in Schedule
4.21, provided that, with respect to any liabilities arising
from acts or failure to act for which the Borrower or any of
its Subsidiaries is strictly liable under any Environmental
Law or Environmental Permit, the Borrower's obligation to each
Indemnified Party under this indemnity shall likewise be
without regard to fault on the part of the Borrower or any
such Subsidiary. If the Borrower shall fail to do any act or
thing which it has covenanted to do hereunder or any
representation or warranty on the part of the Borrower or any
Subsidiary contained herein or in any other Loan Document
shall be breached, the Agent may (but shall not be obligated
to), after requesting the Borrower to do such act or thing and
the failure by the Borrower to immediately undertake such
action to the satisfaction of the Agent, do the same or cause
it to be done or remedy any such breach, and may expend its
funds for such purpose, and will use its best efforts to give
prompt written notice to the Borrower that it proposes to take
such action. Any and all amounts so expended by the Agent
shall be repaid to it by the Borrower promptly upon the
Agent's demand therefor, with interest at the Default Rate in
effect from time to time during the period including the date
so expended by the Agent to the date of repayment. The
obligations of the Borrower under this Section 9.6 shall
survive the termination of this Agreement and the discharge of
the Borrower's other Obligations hereunder.
Section 9.7 Special Expenditures. If the
Borrower shall fail to do any act or thing which it has
covenanted to do hereunder or under any other Basic Agreement
or any representation or warranty on the part of the Borrower
contained herein or therein shall be breached, the Agent may
(but shall not be obligated to) do the same or cause it to be
done or remedy any such breach, and may expend its funds for
such purpose, and will use its best efforts to give prompt
written notice to the Borrower that it proposes to take such
action. Any and all amounts so expended by the Agent shall be
repayable to it by the Borrower promptly upon the Agent's
demand therefor, with interest at the Default Rate in effect
from time to time during the period from the date so expended
by the Agent to the date of repayment.
Section 9.8 Confirmations. Each of the Borrower
and each holder of any Obligation agree from time to time,
upon written request received by it from the other, to confirm
to the other in writing (with a copy of each such confirmation
to the Agent) the aggregate unpaid principal amount of the
Loans then outstanding in respect of such Obligation; each
such holder agrees from time to time, upon written request
received by it from the Borrower, to make the relevant
internal records of such holder maintained by it with respect
to such Obligation available for reasonable inspection by the
Borrower at the office of such holder.
Section 9.9 Adjustment.
(a) If at any time any Revolving Lender,
Supplemental Revolving Lender, Term Lender, Additional Lender,
D Tranche Lender or E Tranche Lender (a "Benefitted Lender")
shall receive any payment (other than (i) a payment received
by the Swing Line Lender in respect of any Swing Line Loan in
which no Revolving Lenders have purchased a participation
pursuant to Section 2.11(d) and (ii) non-pro rata payments to
any Term Lender, Additional Lender, D Tranche Lender or E
Tranche Lender solely as the result of Waived Proceeds being
retained by the Borrower pursuant to Section 3.6(f)) of all or
part of any of its Loans, or interest thereon, including as
the result of Section 9.10, in a greater proportion relative
to such Lender's Revolving Loan Pro Rata Share, Supplemental
Revolving Loan Pro Rata Share, Term Loan Pro Rata Share,
Additional Term Loan Pro Rata Share, D Tranche Term Loan Pro
Rata Share or E Tranche Term Loan Pro Rata Share, as
applicable, than any such payment to any other Revolving
Lender, Supplemental Revolving Lender, Term Lender, Additional
Lender, D Tranche Lender or E Tranche Lender in respect of
such other Lender's Revolving Loan Pro Rata Share,
Supplemental Revolving Loan Pro Rata Share, Term Loan Pro Rata
Share, Additional Term Loan Pro Rata Share, D Tranche Term
Loan Pro Rata Share or E Tranche Term Loan Pro Rata Share, as
applicable, or interest thereon, such Benefitted Lender shall
purchase for cash from the other Revolving Lenders,
Supplemental Revolving Lenders, Term Lenders, Additional
Lenders, D Tranche Lenders or E Tranche Lenders, as the case
may be, such portion of each such other Lender's Loans as
shall be necessary to cause such Benefitted Lender to share
the excess payment ratably with each of the Revolving Lenders,
Supplemental Revolving Lenders, Term Lenders, Additional
Lenders, D Tranche Lenders or E Tranche Lenders, as the case
may be; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such
recovery, but without interest. The Borrower agrees that each
Lender so purchasing a portion of another Lender's Loans may
exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if
such Lender were the direct holder of such portion.
(b) If any Lender (a "Collateral Benefitted
Lender") shall at any time receive any collateral in respect
of its Loans (whether voluntary or involuntary, by set-off,
pursuant to events or proceedings of the nature referred to in
Section 7.1(e) or 7.1(f) hereof, or otherwise) in a greater
proportion than any such collateral received by any other
Lender in respect of such other Lender's Loans, such
Collateral Benefitted Lender shall provide such other Lenders
with the benefits of any such collateral as shall be necessary
to cause such Collateral Benefitted Lender to share the
benefits of such collateral ratably with each of the Lenders;
provided, however, that if all or any portion of such benefits
is thereafter recovered from such Collateral Benefitted
Lender, such benefits shall be returned to the extent of such
recovery but without interest.
Section 9.10 Right of Setoff. (a) In addition to
any rights and remedies of the Lenders provided by law, each
Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the
Borrower, upon the occurrence and during the continuance of an
Event of Default, to setoff and apply against any
Indebtedness, whether matured or unmatured, of the Borrower to
such Lender, any amount owing from such Lender to the
Borrower, at or at any time after, the occurrence of such
Event of Default, and the aforesaid right of setoff may be
exercised by such Lender against the Borrower or against any
trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receivers, or execution, judgment or
attachment creditor of the Borrower, or against anyone else
claiming through or against, the Borrower or such trustee in
bankruptcy, debtor in possession, assignee for the benefit of
creditors, receivers, or execution, judgment or attachment
creditor, notwithstanding the fact that such right of setoff
shall not have been exercised by such Lender prior to the
making, filing or issuance, or service upon such Lender of, or
of notice of, any such petition, assignment for the benefit of
creditors, appointment or application for the appointment of
a receiver, or issuance of execution, subpoena, order or
warrant. Each Lender agrees promptly to notify the Borrower
and the Agent after any such setoff and application made by
such Lender, provided that the failure to give such notice
shall not affect the validity of such setoff and application.
(b) The Borrower expressly agrees that to the
extent the Borrower makes a payment or payments and such
payment or payments, or any part thereof, are subsequently
invalidated, declared to be fraudulent or preferential, set
aside or are required to be repaid to a trustee, receiver, or
any other party under any bankruptcy act, state or federal
law, common law or equitable cause, then to the extent of such
payment or repayment, the Indebtedness to the Lenders or part
thereof intended to be satisfied shall be revived and
continued in full force and effect as if said payment or
payments had not been made.
Section 9.11 Execution in Counterparts. This
Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of
which counter-parts, when so executed and delivered, shall be
deemed to be an original and all of which counterparts, taken
together, shall constitute but one and the same Agreement.
Section 9.12 Binding Effect; Assignment.
(a) This Agreement shall be binding upon, and
inure to the benefit of, the Borrower, the Agent and the
Lenders and their respective successors and assigns; provided,
however, that the Borrower may not assign its rights or
obligations hereunder or in connection herewith or any
interest herein (voluntarily, by operation of law or
otherwise) without the prior written consent of the Lenders.
(b) Any Lender may make, carry or transfer Loans
at, to or for the account of, any of its branch offices or the
office of an Affiliate of such Lender.
(c) Each Lender may at any time sell to one or
more banks or other entities ("Participants") participating
interests in all or any portion of its Commitment and related
outstanding obligations of such Lender hereunder (in respect
of any Lender, its "Credit Exposure"). In the event of any
such sale by a Lender of participating interests to a
Participant, such Lender's obligations under this Agreement
shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, and the Borrower and
the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations
under this Agreement. The Borrower agrees that if amounts
outstanding under this Agreement or any of the Loan Documents
are due or unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of
set-off in respect of its participating interest in amounts
owing under this Agreement and the Loan Documents to the same
extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement or any
other Loan Document, provided that such right of set-off shall
be subject to the obligation of such Participant to share with
the Lenders, and the Lenders agree to share with such
Participant, as provided in Section 9.9. The Borrower also
agrees that each Participant shall be entitled to the benefits
of Sections 2.13 and 2.16 with respect to its participation in
the Loans and Letters of Credit outstanding from time to time,
provided that such Participant's benefits under Sections 2.13
and 2.16 shall be limited to the benefits that the Lender
granting the participation would be entitled to thereunder
with respect to the Credit Exposure so participated. Each
Lender agrees that any agreement between such Lender and any
such Participant in respect of such participating interest
shall not restrict such Lender's right to approve or agree to
any amendment, supplement, modification or waiver to this
Agreement or any of the Loan Documents except for any
amendment, supplement, modification or waiver which reduces
the rate or amount of principal, interest or fees payable by
the Borrower, extends the Term Loan Maturity Date, the
Revolver Termination Date, the Additional Term Loan Maturity
Date, the Supplemental Revolver Termination Date, the D
Tranche Term Loan Maturity Date, the E Tranche Term Loan
Maturity Date or the scheduled date for any payment of
interest (but only if such Participant is participating in the
Term Loan, the Additional Term Loan, the Revolving Loan, the
Supplemental Revolving Loan, the D Tranche Term Loan or the
E Tranche Term Loan, as applicable, affected thereby), or
release all or substantially all of the Collateral and
Mortgaged Property (other than when Substitute Collateral is
provided and other than in accordance with Section 9.13) or
release or terminate all or substantially all of the
Subsidiary Guarantees.
(d) Each Lender may assign to one or more Eligible
Assignees (treating any fund that invests in bank loans and
any other fund that invests in bank loans and is managed by
the same investment advisor of such fund or by an Affiliate of
such investment advisor as a single Eligible Assignee),
including an Affiliate thereof (each an "Assignee"), all or a
portion of its interests, rights and obligations under this
Agreement (including all or a portion of its Commitments, the
outstanding Letters of Credit and the Loans at the time owing
to it); provided, however, that (i) except in the case of an
assignment to a Lender, an Affiliate of the assigning Lender
or, in the case of any Lender that is a fund that invests in
bank loans, any other fund that invests in bank loans and is
managed by the same investment advisor of the assigning Lender
or by an Affiliate of such investment advisor, each of the
Agent and the Borrower (and, in the case of an assignment of
a Lender's Revolving Loan Commitment, the Swing Line Lender
and the Facing Agent must give its prior written consent to
such assignment (which consent shall not be unreasonably
withheld); and provided further, that the consent of the
Borrower shall not be required if an Unmatured Event of
Default or an Event of Default has occurred and is continuing
on the date of the Assignment and Acceptance, (ii) except in
the case of an assignment to a Lender, an Affiliate of the
assigning Lender or, in the case of a Lender that is a fund
that invests in bank loans, any other fund that invests in
bank loans managed by the same investment advisor or an
Affiliate of the investment advisor, the amount of the
Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment Agreement
with respect to such assignment is delivered to the Agent)
shall not be less than $5,000,000 (or an amount equal to the
remaining balance of such Lender's Commitment) and (iii) the
parties to each such assignment shall execute and deliver to
the Agent an Assignment Agreement, and a processing and
recordation fee of $3,500. Upon acceptance and recording as
provided below, from and after the effective date specified in
each Assignment Agreement, which effective date shall in no
event shall precede the date of such recording, (i) the
assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment Agreement, shall
have the rights and obligations of a Lender under this
Agreement and (ii) the assigning Lender thereunder shall, to
the extent of the interest assigned by such Assignment
Agreement, be released from its obligations under this
Agreement (and, in the case of an Assignment Agreement
covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall
cease to be a party hereto, but shall continue to be entitled
to the benefits of Sections 2.12(h) and (i), 2.13, 2.16,
3.11, 9.5 and 9.6, as well as to any fees accrued for its
account and not yet paid). By executing and delivering an
Assignment Agreement, 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 that its Commitment, and
the outstanding balances of its Loans, in each case without
giving effect to assignments thereof that have not become
effective, are as set forth in such Assignment Agreement; (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 Agreement,
or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, any other
Loan Document or any other instrument or document furnished
pursuant hereto, or the financial condition of the Loan
Parties or the performance or observance by the Loan Parties
of any of their obligations under this Agreement or under any
other Loan Document or any other instrument or document
furnished pursuant hereto; (iii) such assignee 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 Agreement, together with copies of any
amendments or consents entered into prior to the date of such
Assignment Agreement and copies of the most recent financial
statements delivered pursuant to Section 5.1.1 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
without reliance upon the Agent, 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
Agreement; (vi) such assignee appoints and authorizes the
Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Agent by the terms hereof,
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 that by the
terms of this Agreement are required to be performed by it as
a Lender. Upon its receipt of a duly completed Assignment
Agreement execute by an assigning Lender and an assignee, the
processing and recordation fee referred to above and the
written consent (to the extent required under paragraph (d)
above), of the Agent, the Borrower and/or the Swing Line
Lender and the Facing Agent to such assignment, the Agent
shall (i) accept such Assignment Agreement and (ii) record the
information contained therein in the Register. No assignment
shall be effective unless it has been recorded in the Register
as provided in this paragraph (d). Such Assignment Agreement
shall be deemed to amend this Agreement and Schedule 1.1(a)
hereto to the extent, and only to the extent, necessary to
reflect the addition of such Assignee as a Lender and the
resulting adjustment of all or a portion of the rights and
obligations of such transferor Lender under this Agreement
(including its Revolving Loan Commitment, Supplemental
Revolving Loan Commitment, Term Loan Commitment, Additional
Term Loan Commitment, D Tranche Term Loan Commitment and/or E
Tranche Term Loan Commitment), the Maximum Commitments, the
determination of Revolving Loan Pro Rata Share, Supplemental
Revolving Loan Pro Rata Share, Term Loan Pro Rata Share,
Additional Term Loan Pro Rata Share, D Tranche Term Loan Pro
Rata Share or E Tranche Term Loan Pro Rata Share (rounded to
twelve decimal places), the Loans and any outstanding Letters
of Credit and new Notes shall be issued, at the Borrower's
expense, to such Assignee and to the assigning Lender upon the
request of such Assignee or such assigning Lender, such new
Notes to be in conformity with the requirements of Section 2.2
(with the appropriate modifications) to the extent needed to
reflect the revised Commitment of the Assignee and the
assigning Lender.
(e) For so long as any Lender shall be in default
of its obligation to fund its Revolving Loan Pro Rata Share of
any Revolving Loan, to fund its Supplemental Revolving Loan
Pro Rata Share of any Supplemental Revolving Loan, to
reimburse the Facing Agent for any drawings under any Letters
of Credit or to fund its participation in any Swing Line Loan,
(i) no Revolving Loan Commitment Fees or Supplemental
Revolving Loan Commitment Fees shall be accrued by or paid to
such Lender and (ii) for purposes of the definition of
"Required Lenders," such Lender shall be deemed not to have
any Loans or Revolving Loan Commitment or Supplemental
Revolving Loan Commitment outstanding.
(f) Notwithstanding any other provision set forth
in this Agreement (i) any Lender may at any time pledge or
create a security interest in all or any portion of its rights
under this Agreement and the other Loan Documents (including,
without limitation, the Notes held by it) in favor of any
Federal Reserve Bank in accordance with Regulation A of the
Federal Reserve Board without notice to or consent of the
Borrower and (ii) with the consent of the Agent, any Lender
which is a fund may pledge all or any portion of its rights
under this Agreement and the other Loan Documents (including,
without limitation, the Notes held by it) to its trustee in
support of its obligations to its trustee and no such pledge
or assignment pursuant to clause (i) or (ii) of this Section
9.12(f) shall release the transferor Lender from its
obligations hereunder.
(g) A Lender may furnish any information
concerning the Borrower or any of its Subsidiaries in the
possession of such Lender from time to time to Lenders,
Assignees and Participants (including prospective Assignees
and Participants), provided that with respect to any such
information which has been identified or designated by the
Borrower as confidential and which has not previously been
made public, any such Assignee or Participant shall have
agreed to hold such information in confidence and not to
disclose such information (subject to the exceptions specified
in Section 5.1.6 hereof) and any prospective Assignee or
Participant shall have agreed to return such information which
is in written form to the Borrower or otherwise destroy such
information if it does not become an actual Assignee or
Participant.
(h) Any Lender that is not a citizen or resident
of the United States of America, a corporation, partnership or
other entity created or organized in or under the laws of the
United States of America, or an estate or trust the income of
which is subject to United States federal income taxation
regardless of the source of its income (a "Non-U.S. Lender")
and that could become completely exempt from withholding of
any Taxes in respect of payment of any obligations due to such
Non-U.S. Lender with respect to the Term Loan, Additional Term
Loan, D Tranche Term Loan or E Tranche Term Loan if the
applicable Notes were in registered form for United States
federal income tax purposes may request the Borrower (through
the Agent), and the Borrower agrees thereupon, to exchange any
promissory note(s) evidencing the Term Loan, Additional Term
Loan, D Tranche Term Loan or E Tranche Term Loan for
promissory note(s) registered as provided in this Section
9.12(h) below (each, a "Registered Note"). A Registered Note
shall be substantially in the form of Exhibit 2.2(a) except
that it shall be made payable to such Non-U.S. Lender or
registered assigns. Registered Notes shall be deemed to be
and shall be Term Notes, Additional Term Notes, D Tranche Term
Notes or E Tranche Term Notes for all purposes of this
Agreement. Registered Notes may not be exchanged for
promissory notes that are not Registered Notes. Each Non-U.S.
Lender holding a Registered Note (a "Registered Noteholder")
shall comply with the requirements of Section 3.11(c). The
Agent shall maintain a register (the "Register") on which it
shall enter the names of the registered owners of the Term
Loan, Additional Term Loan, D Tranche Term Loan or E Tranche
Term Loan evidenced by Registered Notes. The Agent, acting as
an agent of the Borrower solely with respect to the
maintenance of the Register, shall incur no liabilities with
respect to its maintenance of the Register and recordation of
the information therein. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower
and the Agent shall treat each Term Lender, Additional Lender,
D Tranche Lender and E Tranche Lender in whose name a Term
Loan, Additional Term Loan, D Tranche Term Loan or E Tranche
Term Loan and the Registered Note evidencing the same is
registered as the owner thereof for all purposes of this
Agreement, notwithstanding notice to the contrary. No
assignment of a Registered Note and the Term Loan, Additional
Term Loan, D Tranche Term Loan or E Tranche Term Loan
evidenced thereby shall be effective unless the Agent has
recorded the appropriate Assignment Agreement in the Register
and such assignment otherwise complies with the requirements
of Section 9.12. Any assignment or transfer of all or any
part of the Term Loan, Additional Term Loan, D Tranche Term
Loan or E Tranche Term Loan and the Registered Note(s)
evidencing the same shall be registered on the Register only
upon surrender for registration of assignment or transfer of
the Registered Note(s) evidencing the Term Loan, Additional
Term Loan, D Tranche Term Loan or E Tranche Term Loan, duly
endorsed by (or accompanied by a written instrument of
assignment or transfer duly executed by) the Registered
Noteholder thereof, and thereupon one or more new Registered
Note(s) in the same aggregate principal amount shall be issued
to the designated assignee(s) or transferee(s). The Register
shall be available at the offices were kept by the Agent for
inspection by the Borrower and any Term Lender, Additional
Lender, D Tranche Lender or E Tranche Lender at any reasonable
time upon reasonable prior written notice to the Agent.
Section 9.13 Release of Collateral. The
following provisions shall govern the release of collateral
granted by the Borrower to the Agent pursuant to the Loan
Documents.
(a) Upon termination of all Revolving Loan
Commitments, Supplemental Revolving Loan Commitments and
the Swing Line Commitment, and the payment in full of all
outstanding Revolving Loan Obligations, Supplemental
Revolving Loan Obligations, Swing Line Obligations and
L/C Obligations such that no such Commitments, Loan
Documents or Obligations remain outstanding, the Borrower
shall be entitled to the release of the Collateral and
Mortgaged Property set forth on Schedule 9.13(a) hereto
from the Lien of the Loan Documents upon the request of
the Borrower subject to the following terms and
conditions: (i) the Agent shall have received a
certificate from the Borrower's chief executive or chief
financial officer certifying that no Event of Default or
Unmatured Event of Default has occurred and is continuing
as of the date on which the Agent proposes to release
such Collateral and Mortgaged Property; and (ii) at the
Borrower's cost and expense, the Agent shall have
received from one or more independent third parties
appraisals and/or valuations acceptable to, and in form,
substance and using methodologies satisfactory to, the
Required Lenders, demonstrating that, after giving effect
to such release, the ratio of (A) the aggregate value of
the remaining Collateral and Mortgaged Property, as such
value is determined by such independent third parties and
acceptable to the Required Lenders, to (B) the
Obligations which remain outstanding under the Loan
Documents is not less than 2.50 to 1.00. The
determination by the Required Lenders pursuant to the
preceding sentence shall be made by those Term Lenders,
Additional Lenders, D Tranche Lenders and E Tranche
Lenders constituting the Required Lenders at such time.
(b) Upon receipt by the Borrower and the Agent of
an officer's certificate and such other information
delivered pursuant to Section 5.1.1(c), beginning with
any such officer's certificate and information delivered
after December 31, 1994, the Borrower shall be entitled
to the release of all of the Collateral and Mortgaged
Property from the Lien of the Loan Documents subject to
the following terms and conditions: (i) the Agent shall
have received a certificate from the Borrower's chief
executive or chief financial officer certifying that no
Event of Default or Unmatured Event of Default has
occurred and is continuing as of the date on which the
Agent proposes to release the Collateral and Mortgaged
Property; and (ii) the officer's certificate delivered
pursuant to Section 5.1.1(c) satisfies the terms and
conditions set forth on Schedule 1.1(b) hereto.
(c) The Borrower shall be entitled to the release
of all or any portion of the Collateral and/or Mortgaged
Property upon the request of the Borrower subject to the
following terms and conditions: (i) the Agent shall have
received a certificate from the Borrower's chief
executive or chief financial officer certifying that no
Event of Default or Unmatured Event of Default has
occurred and is continuing as of the date on which the
Agent proposes to release such Collateral and Mortgaged
Property; (ii) prior to the release date of such
Collateral and/or Mortgaged Property the Borrower shall
have furnished to the Agent for the benefit of the
Lenders substitute collateral ("Substitute Collateral")
which (A) is acceptable to the Required Lenders and (B)
has a value as determined by the Required Lenders at
least equal to the aggregate value of the Collateral
and/or Mortgaged Property to be released; and (iii) such
Substitute Collateral shall be provided pursuant to
documentation and legal opinions in form and substance
satisfactory to the Agent. Any such Substitute
Collateral shall be deemed to have been granted in
consideration of the release of such Collateral and/or
Mortgaged Property.
(d) The Borrower shall be entitled to the release
of any portion of the Collateral and/or Mortgaged
Property which is the subject of any sale, transfer or
other disposition permitted by Section 5.2.12 upon the
request of the Borrower subject to the following terms
and conditions: (i) at least ten (10) Business Days
prior to the release date of such Collateral and/or
Mortgaged Property the Borrower shall have furnished to
the Agent in writing a description of such Collateral
and/or Mortgaged Property and the proposed terms of the
sale, transfer or other disposition thereof; (ii) the
Agent shall have received a certificate from the
Borrower's chief executive or chief financial officer
certifying that no Event of Default or Unmatured Event of
Default has occurred and is continuing; and (iii) prior
to or contemporaneously with such release, the Agent
shall have received any Material Sale Proceeds derived
from such disposition in immediately available funds
pursuant to the terms of Section 3.4(c) to be applied as
a prepayment of the Obligations in accordance with
Section 3.6(c), unless any such Material Sale Proceeds
constitute Waived Proceeds pursuant to the terms of
Section 3.6(f), together with a written accounting of all
proceeds from such sale, transfer or other disposition
and the determination of Material Sale Proceeds resulting
therefrom, in form and substance reasonably satisfactory
to the Agent; provided, however, that inventory pledged
to the Agent pursuant to the Loan Documents may be sold
or disposed of in the ordinary course of business free
and clear of the Liens created thereby; and provided
further, that immaterial portions of Collateral or
Mortgaged Property may for purposes of administrative
practicality or legal requirements be released by the
Agent pursuant to the provisions, if any, of the
respective Security Agreements or Mortgages.
(e) Upon the satisfaction of the applicable
conditions set forth in Section 9.13(a), (b) or (c), the
Agent shall within thirty (30) days deliver to the
Borrower all released Collateral and related documents
then in the custody or possession of the Agent and shall
prepare and execute release documents relating to the
Collateral and Mortgaged Property to be released and
shall execute and deliver to the Borrower such other
documents and instruments as the Borrower may reasonably
request, all without recourse upon, or warranty
whatsoever by, the Agent, and at the cost and expense of
the Borrower.
(f) The Borrower shall be entitled to the release
of any portion of the Mortgaged Property consisting of
box converting facilities which are used to collateralize
Indebtedness for Money Borrowed incurred in accordance
with Section 5.2.2(x), upon the request of the Borrower
subject to the following terms and conditions: (i) at
least thirty (30) days (or such lesser number of days as
to which the Agent may agree) prior to the release date
of such Mortgaged Property the Agent shall have received
appraisals or other documentation of such Mortgaged
Property which satisfy the terms and conditions of
Section 5.2.2(x); (ii) the Agent shall have received a
certificate from the Borrower's chief executive or chief
financial officer certifying that no Event of Default or
Unmatured Event of Default has occurred and is
continuing; (iii) at least ten (10) Business Days (or
such lesser number of days as to which the Agent may
agree) prior to the release date of such Mortgaged
Property the Borrower shall have furnished to the Agent
in writing a description of such Mortgaged Property,
together with copies of all documentation relating to
such Indebtedness for Money Borrowed; and (iv) the Agent
shall have received such intercreditor agreements as
specified in Section 5.2.2(x).
(g) If requested by the Borrower in connection
with the incurrence by the Borrower or any Subsidiary of
any Financing Lease Obligations as permitted under
Section 5.2.2(i), any Indebtedness for Money Borrowed in
respect of the purchase price of property as permitted
under Section 5.2.2(k) or any lease payments as permitted
under Section 5.2.15, the Agent is authorized to execute
and deliver any agreement or other instrument in favor
of, or with, any lender extending any such Indebtedness
for Money Borrowed or lessor under any such lease (a
"Third Party Lender") which expressly waives,
relinquishes and/or subordinates any Lien of the Agent
for the benefit of the Lenders under any Loan Documents
in or upon the asset(s) being acquired or leased by the
Borrower or such Subsidiary from such Third Party Lender
until such time as such Indebtedness for Money Borrowed
or lease is paid in full, with such agreement or
instrument in form and substance reasonably satisfactory
to the Agent, and the Lenders hereby authorize the Agent
to execute and deliver any such agreement or instrument.
(h) The Borrower shall be entitled to have the
assets described in subpart (y) of the second sentence of
Section 5.2.12 released from the Lien of the Loan
Documents contemporaneously with their transfer to Stone
Snowflake pursuant to, and in compliance with, the terms
of such Section. The Lenders hereby authorize the Agent
to release such Collateral at such time.
(i) The Borrower shall be entitled to have the
cash collateral held by the Agent pursuant to the Stone
Snowflake Cash Collateral Agreement released on November
30, 1998 from the Lien of the Cash Collateral Agreement
and any other Loan Document with such cash collateral to
be used solely to repay the Borrower's 11-7/8% Senior
Notes maturing on December 1, 1998 with the release
thereof on terms and conditions reasonably acceptable to
the Agent, including receipt by the Agent of a
certificate of a Responsible Officer of the Borrower
dated November 30, 1998 certifying that no Event of
Default or Unmatured Event of Default has occurred and is
continuing. The Lenders hereby authorize the Agent to
release or direct the release of such cash collateral
under the terms and conditions set forth above, and to
execute and deliver such documents and instruments, and
take such actions, as may be reasonably necessary to
effect such release and repayment.
Section 9.14 Consent to Jurisdiction; Waiver of
Jury Trial. (a) THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NONEXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
NEW YORK STATE COURT SITTING IN NEW YORK CITY IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER BASIC AGREEMENT, AND THE BORROWER HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN ANY SUCH UNITED STATES FEDERAL
OR NEW YORK STATE COURT AND THE BORROWER IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING
OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS. AS A METHOD OF SERVICE, THE BORROWER ALSO
IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN
ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY COURT IN OR OF
THE STATE OF NEW YORK BY THE DELIVERY OF COPIES OF SUCH
PROCESS TO THE BORROWER, AT ITS ADDRESS SPECIFIED IN SECTION
9.4 HEREOF OR BY CERTIFIED MAIL DIRECT TO SUCH ADDRESS.
(b) Each party hereto hereby waives, to the
fullest extent permitted by applicable law, any right it may
have to a trial by jury in respect of any litigation directly
or indirectly arising out of, under or in connection with this
Agreement or any of the other Loan Documents. Each party
hereto (a) certifies that no representative, agent or attorney
of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation,
seek to enforce the foregoing waiver and (b) acknowledges that
it and the other parties hereto have been induced to enter
into this Agreement and the other Loan Documents, as
applicable by, among other things, the mutual waivers and
certifications in this Section 9.14(b).
Section 9.15 Governing Law; Certain
Relationships. This Agreement shall be deemed to be a
contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of
said State, without regard to principles of conflicts of law.
Nothing contained in this Agreement and no action taken by
the Agent, any Co-Agent or any Lender pursuant hereto shall be
deemed to constitute the Agent, any Co-Agent or the Lenders a
partnership, an association, a joint venture or other entity.
Neither the Agent, any Co-Agent nor any Lender has any
fiduciary relationship with or fiduciary duty to the Borrower
arising out of or in connection with this Agreement or any of
the other Loan Documents, and the relationship between the
Agent, Co-Agents and the Lenders, on the other hand, and the
Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor.
Section 9.16 Severability of Provisions. Any
provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability
of such provision in any other jurisdiction.
Section 9.17 Headings. The Table of Contents and
Article and Section headings used in this Agreement are for
convenience of reference only and shall not affect the
construction of this Agreement.
Section 9.18 Time. Time shall be of the essence
of this Agreement.
Section 9.19 Further Assurances. The Borrower
agrees to do such further acts and things and to execute and
deliver to the Agent such additional assignments, agreements,
powers and instruments as the Agent may reasonably require or
deem advisable to carry into effect the purposes of this
Agreement or to better assure and confirm unto the Agent and
the Lenders, their respective rights, powers and remedies
hereunder.
Section 9.20 Florida Real Property. The parties
hereto hereby acknowledge that the Revolving Loans,
Supplemental Revolving Loans and Swing Line Loans are secured
by real and personal property located both inside and outside
the State of Florida and hereby agree that for purposes of
calculating intangible taxes due under Section 199.133,
Florida Statutes, the first amounts advanced as Revolving
Loans, Supplemental Revolving Loans and Swing Line Loans shall
be deemed to be the portion allocable to the Collateral and
Mortgaged Property consisting of real property located in the
State of Florida, and such portion allocable to such
Collateral and Mortgaged Property shall also be deemed to be
the last to be repaid under the terms hereof. Nothing herein
shall limit the Agent's or any Lender's right to recover or
realize from the Collateral or Mortgaged Property located in
the State of Florida amounts in excess of that allocated to
the Revolving Loans, Supplemental Revolving Loans and Swing
Line Loans or to apply amounts so recovered or realized
against the Obligations in such order as required pursuant to
the Loan Documents.
Section 9.21 Effect of Restatement. This
Agreement shall, except as otherwise expressly set forth
herein, supersede the Existing Credit Agreement from and after
the Restatement Date with respect to the transactions
hereunder and with respect to the Loans and Letters of Credit
outstanding under the Existing Credit Agreement as of
Restatement Date. The parties hereto acknowledge and agree,
however, that (i) this Agreement and all other Loan Documents
executed and delivered herewith do not constitute a novation,
payment and reborrowing or termination of the Obligations
under the Existing Credit Agreement and the other Loan
Documents as in effect prior to the Restatement Date, (ii)
such Obligations are in all respects continuing with only the
terms being modified as provided in this Agreement and the
other Loan Documents, (iii) the liens and security interests
in favor of the Agent for the benefit of the Lenders securing
payment of such Obligations are in all respects continuing and
in full force and effect with respect to all Obligations and
(iv) all references in the other Loan Documents to this
Agreement shall be deemed to refer without further amendment
to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers
thereunto duly authorized as of the date first above written.
STONE CONTAINER CORPORATION
By: /s/ Leslie T. Lederer
Name: Leslie T. Lederer
Title: Vice President, Secretary and Counsel
Address:
Stone Container Corporation
150 North Michigan Avenue
Chicago, Illinois 60601
Attn: ___________________
Senior Vice President,
Chief Financial and
Planning Officer
Tel. No.: (312) 580-4604
Telecopier No.: (312) 580-7040
BANKERS TRUST COMPANY, in its
individual capacity and as
Agent
By: /s/ Robert Teleska
Name: Robert Teleska
Title
Address:
Bankers Trust Company
233 South Wacker Drive
Suite 8400
Chicago, IL 60606
Attention: Loretta L. Summers
Managing Director
Tel. No.: (312) 993-8006
Telex No.: 210106
(Answerback: BTCI-UR)
Telecopier No.: (312) 993-8182
With a copy to:
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
Attention: Brian S. Hart, Esq.
Tel. No.: (312) 558-5600
Telecopier No.: (312) 558-5700
DEFINITIONAL APPENDIX
TO
CREDIT AGREEMENT
As used in this Agreement, unless the context
requires a different meaning, the following terms have the
meanings indicated:
"Abitibi Sale/Monetization" means any transaction
or series of related transactions whereby the Borrower or any
Subsidiary (i) issues or otherwise sells any security,
instrument or other right that is convertible into,
exchangeable for or otherwise entitled to receive at any time
any Abitibi Shares, or (ii) sells or otherwise disposes of
(including through any secondary public offering) any Abitibi
Shares.
"Abitibi Shares" means any shares of capital stock
of S-CC owned by the Borrower or any Subsidiary.
"Abitibi 75% Portion" is defined in Section 3.4(d).
"Abitibi 25% Portion" means an aggregate amount
equal to 25% of the proceeds from (i) each issuance or sale by
the Borrower or any Subsidiary of any securities, instruments
or other rights that are convertible into, exchangeable for or
otherwise entitled to receive at any time any Abitibi Shares,
and (ii) the sale or other disposition (including any
secondary public offering) of any Abitibi Shares, in each case
in connection with any Abitibi Sale/Monetization net of income
taxes directly payable and any direct costs and expenses
incurred in connection with such Abitibi Sale/Monetization
(provided that such income taxes, costs and expenses
attributable to any subsequent conversion, exchange or other
receipt of Abitibi Shares shall not be deducted for purposes
of determining such net proceeds).
"Accounts Receivable Financing Program" means a
program of sales of, or transfers of interests in, receivables
(whether characterized as sales or as non-recourse loans) and
related contract rights and other property (the "Receivables")
by the Borrower and its Participating Subsidiaries to
StoneSub, which shall finance such purchases through (i) sales
or transfers of Receivables or borrowings or other debt
issuances (which, except as described in Exhibit 1.1(e)
hereto, shall be non-recourse to the Borrower and its
Subsidiaries other than StoneSub) from one or more limited
purpose finance companies, investors participating in an
offering of debt securities, financial institutions or other
Persons not affiliated with the Borrower or through one or
more trusts originated by StoneSub (individually and
collectively, the "Issuer"), (ii) capital contributions from
the Borrower, (iii) subordinated loans from the Borrower and
its applicable Participating Subsidiaries and (iv) collections
from previously purchased Receivables. Each separate
financing arrangement within the Accounts Receivable Financing
Program is referred to as a "Receivables Financing." All
Receivables Financings which are in existence at any time
shall together not permit StoneSub to incur more than, subject
to the third proviso of the penultimate sentence of Section
5.2.13, $500 million of Indebtedness for Money Borrowed from
the Issuer at any one time outstanding (and, in the event that
the Accounts Receivable Financing Program includes Canadian
dollar Receivables of Canadian Subsidiaries, without giving
effect to increases in such amount after the date of the
incurrence of such Indebtedness for Money Borrowed, or portion
thereof, solely as the result of subsequent fluctuations in
the exchange rate between United States Dollars and Canadian
dollars) and shall be on terms (considered as a whole) not
materially more onerous to the Borrower and the Lenders than
those of Receivables Financings in existence on the
Restatement Date. The Lenders hereby acknowledge and agree
that any Receivables Financing purported to be structured as
a sale of Receivables to StoneSub by the Borrower or a
Participating Subsidiary and as to which the Borrower has
received an opinion of counsel as to the sale nature thereof
shall constitute a sale of such Receivables and not a loan
from StoneSub secured by such Receivables. Nothing herein
shall prevent the Borrower from alternatively structuring a
Receivables Financing as the sale of Receivables by StoneSub
to the Issuer, provided that any such Receivables Financing
shall be subject to clause (iii) of the last sentence of
Section 5.2.2(p) for all purposes of this Agreement.
"Acquisition" is defined in Section 5.2.9.
"Additional Lender" means, at any time, any Lender
which then has an Additional Term Loan Commitment or is owed
any portion of the Additional Term Loan.
"Additional Term Loan" means, individually and
collectively, the loans made by each of the Additional Lenders
to the Borrower in accordance with Section 2.1(c), which
Additional Term Loan shall from time to time be comprised of
Prime Rate Loans or Eurodollar Rate Loans or any combination
of the foregoing.
"Additional Term Loan Commitment" means, with
respect to each Additional Lender, the principal amount set
forth opposite such Additional Lender's name on Schedule
1.1(e) hereto under the caption "Amount of Additional Term
Loan Commitment."
"Additional Term Loan Maturity Date" means October
1, 2003.
"Additional Term Loan Obligations" means the
obligations of the Borrower to repay the principal of, and pay
the interest on, the Additional Term Loan pursuant to Section
2.2(d).
"Additional Term Loan Pro Rata Share" means, with
respect to any Additional Lender and any described aggregate
or total amount, the amount equal to the result obtained by
multiplying such described aggregate or total amount by a
fraction, the numerator of which shall be the portion of the
Additional Term Loan made by such Lender and outstanding at
the time and the denominator of which shall be the aggregate
amount of the Additional Term Loan made by all of the
Additional Lenders and outstanding at the time.
"Additional Term Note" is defined in Section
2.2(d).
"Adjusted Working Capital" means the difference
between Consolidated Current Assets (excluding cash and
marketable securities) and Consolidated Current Liabilities.
"Affiliate" means, when used with respect to a
specified Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled
by or is under common Control with the Person specified. For
purposes of this definition, neither any Lender nor any
Affiliate of a Lender shall be deemed to be an Affiliate of
SSCC or any of its Subsidiaries solely by reason of its
ownership of or right to vote any Indebtedness of SSCC or any
of its Subsidiaries.
"Agent" is defined in the preamble to this
Agreement.
"Agent's Administrative Fee" is defined in Section
3.10.
"Agent's Fee" has the meaning assigned to that term
in the Original Credit Agreement.
"Agreement" means this Amended and Restated Credit
Agreement, as the same may at any time be amended, restated,
supplemented or otherwise modified in accordance with the
terms hereof and in effect.
"Agreement Accounting Principles" is defined in
Section 1.2.
"Agreement and Plan of Merger" is defined in the
definition of "Smurfit Merger Documents".
"Amendment Fee" is defined in Section 3.8.
"Assets" is defined in Section 3.4(c).
"Assignee" is defined in Section 9.12(d).
"Assignment Agreement" means an assignment
agreement entered into by a Lender and an assignee and, to the
extent required by Section 9.12(d), accepted by the Borrower,
the Agent, the Swing Line Lender and the Facing Agent, in the
form of Exhibit 9.12(d) hereto or such other form as shall be
approved by the Agent.
"Available Revolving Commitment" means, as to any
Revolving Lender at any time, an amount equal to the excess,
if any, of (i) such Lender's Revolving Loan Commitment over
(ii) the sum of (A) the aggregate principal amount then
outstanding of Revolving Loans made by such Lender and (B)
such Lender's Revolving Loan Pro Rata Share of the L/C
Obligations and Swing Line Loans then outstanding.
"Available Supplemental Revolving Commitment"
means, as to any Supplemental Revolving Lender at any time, an
amount equal to the excess, if any, of (i) such Lender's
Supplemental Revolving Loan Commitment over (ii) the aggregate
principal amount then outstanding of Supplemental Revolving
Loans made by such Lender.
"Basic Agreements" means, collectively, the Loan
Documents, the Transaction Documents and all agreements
amending any of the foregoing agreements.
"Benefitted Lender" is defined in Section 9.9(a).
"Board" means the Board of Governors of the Federal
Reserve System.
"Borrower" is defined in the preamble to this
Agreement.
"Borrowing" means the incurrence pursuant and
subject to Article II of this Agreement of one Type of Loan by
the Borrower from all of the Lenders having a Commitment for
the Type of Loan subject to the Borrowing on a pro rata basis
on a given date (or resulting from conversions on a given
date), having in the case of Eurodollar Rate Loans, the same
Interest Periods; provided, however, that Prime Rate Loans or
Eurodollar Rate Loans incurred pursuant to Section 2.13(b)
shall be considered part of any related Borrowing of
Eurodollar Rate Loans.
"Borrowing Margins" and "Borrowing Margin" mean,
respectively, (i) the borrowing margins referred to in
Sections 2.8(a), (b), (c), (d), (e), (f), (g), (h), (i), (j),
(k), (l) and (m), and (ii) any one of such borrowing margins.
"BT" means Bankers Trust Company, a New York
banking corporation.
"Business Day" means (i) for all purposes other
than as covered by clause (ii) below, any day excluding
Saturday, Sunday and any day which shall be in the City of New
York or Chicago a legal holiday or a day on which banking
institutions are authorized by law or other governmental
actions to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal
and interest on, Eurodollar Rate Loans, any day which is a
Business Day described in clause (i) and which is also a day
for trading by and between banks in U.S. dollar deposits in
the interbank Eurodollar market.
"Canadian Credit Agreements" means the Canadian
Revolving Credit Agreement and the Canadian Term Loan
Agreement.
"Canadian Revolving Credit Agreement" means that
certain Revolving Credit Agreement dated as of March 1, 1989,
as amended, by and among Stone-Canada, BT Bank of Canada, as
Administrative Agent, The Bank of Nova Scotia, as Payment
Agent, Bankers Trust Company, as Collateral Agent, and the
financial institutions signatory thereto.
"Canadian Term Loan Agreement" means that certain
Credit Agreement dated as of March 1, 1989, as amended, by and
among Stone-Canada, BT, as agent, Citibank, N.A., Chemical
Bank (as successor to Manufacturers Hanover Trust Company) and
The First National Bank of Chicago, as co-agents, and the
financial institutions signatory thereto.
"Capital Expenditures" means, without duplication,
with respect to the Borrower and any Subsidiary of the
Borrower (other than S-CC and its Subsidiaries), any amounts
expended or incurred during or in respect of a period for any
purchase, exchange or other acquisition for value of any asset
that is classified on a consolidated balance sheet of the
Borrower prepared in accordance with generally accepted
accounting principles as a fixed or capital asset; provided,
however, that in no event shall Capital Expenditures include
amounts (i) expended in respect of replacements and
maintenance consistent with the business practices of the
Borrower in respect of plant facilities, machinery, fixtures
and other like capital assets utilized in the ordinary conduct
of business (to the extent such amounts are not capitalized in
preparing a consolidated balance sheet in accordance with
generally accepted accounting principles), (ii) expended in
the replacement, repair or reconstruction of any fixed or
capital asset which was destroyed or damaged, in whole or in
part, to the extent of insurance proceeds are receivable or
have been received by the Borrower or any such Subsidiary in
respect of such destruction or damage, (iii) expended in the
replacement of any fixed or capital asset within 180 days (or
in the case of a disposition of collateral under the First
Mortgage Note Indenture, within the time permitted for
redeployment of the proceeds of the replaced fixed or capital
asset pursuant to Section 1015 of such indenture) of the sale
or other disposition of the fixed or capital asset replaced,
to the extent of any cash or cash equivalent proceeds received
by the Borrower or such Subsidiary in connection with such
sale or other disposition of the fixed or capital asset
replaced, (iv) expended for the purchase of the Facility
pursuant to Section 10.01, 10.04 or 19.09 of the Leveraged
Lease or (v) expended pursuant to any Financing Lease.
"Cash Equivalents" means those Permitted
Investments included in clauses (i)-(v) of the definition
thereof, with the additional requirement that any such
Permitted Investment must mature not more than 30 days after
the date of its purchase.
"Capital Infusion" is defined in Section 6.3(e).
"Capital Infusion Documents" means the documents
entered into or delivered in connection with the Capital
Infusion.
"Cash Flow Coverage Ratio" means, for a period of
four quarters ending on the most recent quarter end prior to
the date of computation (treating each such period as a single
accounting period) on a consolidated basis, a ratio of (a) the
sum of (i) Consolidated Net Income of the Borrower (before
income taxes) plus (ii) interest expense (net of interest
income on Permitted Investments) during such period plus (iii)
depreciation and amortization deducted in determining
Consolidated Net Income for such period minus (iv) Capital
Expenditures of the Borrower other than Capital Expenditures
made through the utilization of Discretionary Funds to (b)
interest expense (net of interest income on Permitted
Investments) during such period.
"CB" means Consolidated-Bathurst Inc., a Canadian
federal corporation, and its successors and assigns.
"Certificates of Ownership and Merger" means (i)
the Certificate of Ownership and Merger of Stone Container
Corporation, a Delaware corporation, dated as of September 30,
1994, executed by the Borrower and each of Stone Connecticut
Paperboard Corporation, Stone Mill Operating Corporation,
Stone Bag Corporation, Stone Packaging Corporation, Stone-
Consolidated Newsprint, Inc. and Stone Packaging Systems, Inc.
(the "Stone Merger Subsidiaries"), merging the Stone Merger
Subsidiaries with and into the Borrower and filed with the
Delaware Secretary of State on September 30, 1994 and (ii) the
Certificate of Ownership and Merger of Stone Southwest, Inc.,
a Delaware corporation, dated as of September 30, 1994,
executed by Stone Southwest and each of Stone Hodge, Inc.,
Stone Hopewell, Inc., Manufacturers Folding Carton, Inc. and
Stone Corrugated, Inc. (the "Stone Southwest Merger
Subsidiaries"), merging the Stone Southwest Merger
Subsidiaries with and into Stone Southwest and filed with the
Delaware Secretary of State on September 30, 1994.
"CERCLA" is defined in Section 4.17(b).
"Change of Control" means any event by which
(i) JSG and its Affiliates shall cease to own or control
shares representing at least 27-1/2% of the aggregate ordinary
voting power represented by the issued and outstanding capital
stock of SSCC; (ii) any person or group (within the meaning of
Rule 13d-5 of the Securities and Exchange Act of 1934, as in
effect on the Restatement Date) other than JSG and its
Affiliates shall own, directly or indirectly, beneficially or
of record, shares representing more than 20% of the aggregate
ordinary voting power represented by the issued and
outstanding capital stock of SSCC; or (iii) SSCC shall cease
to directly own, beneficially and of record, 100% of the
issued and outstanding capital stock (other than Permitted
Preferred Stock outstanding as of the Restatement Date) of the
Borrower.
"Closing Date" means October 12, 1994.
"Cluster Expenditures" means capital expenditures
mandated pursuant to, or made to comply with, the final
adopted version, if any, of the proposed rules promulgated by
the Environmental Protection Agency at 58 Fed. Reg. 66078
(December 17, 1993) with respect to Effluent Limitations
Guidelines, Pretreatment Standards, and New Source Performance
Standards: Pulp, Paper, and Paperboard Category; National
Emission Standards for Hazardous Air Pollutants for Source
Category: Pulp and Paper Production.
"Co-Agents" and "Co-Agent" have the respective
meanings assigned to such terms in the introduction to this
Agreement.
"Code" means the Internal Revenue Code of 1986, as
from time to time amended, including the regulations proposed
or promulgated thereunder, or any successor or regulation
proposed or promulgated thereunder.
"Collateral" means, collectively, (i) all
"Collateral" as such term is defined in the Pledge Agreements
and (ii) all "Collateral" as such term is defined in the
Security Agreements, including, without limitation, the
inventory, machinery and equipment of the Borrower or a
Subsidiary, as applicable, located at the Mortgaged Property.
"Collateral Benefitted Lender" is defined in
Section 9.9(b).
"Commercial Letters of Credit" means the commercial
Letters of Credit issued by the Facing Agent for the account
of Borrower pursuant to Section 2.12, each of which is
drawable upon presentation of documents evidencing the sale or
shipment of goods purchased by the Borrower or any of its
Subsidiaries in the ordinary course of its business.
"Commitment" means, with respect to each Lender,
the aggregate of the Revolving Loan Commitment, Supplemental
Revolving Loan Commitment, Term Loan Commitment, Additional
Term Loan Commitment, D Tranche Term Loan Commitment and E
Tranche Term Loan Commitment of such Lender and "Commitments"
means such commitments of all of the Lenders collectively. For
purposes of this definition, the Revolving Loan Commitment of
the Swing Line Lender shall be deemed to include the Swing
Line Commitment of the Swing Line Lender.
"Consolidated Current Assets" means, subject to the
last sentence of Section 1.2, as at the time any determination
thereof is to be made, the amount, without duplication, that
is classified on a consolidated balance sheet of the Borrower
and its Subsidiaries as the consolidated current assets of the
Borrower and its Subsidiaries at such time in accordance with
generally accepted accounting principles; provided, however,
that there shall be excluded from the calculation of
Consolidated Current Assets any insurance receivables (net of
related payables) relating to the April, 1994 occurrence at
the Panama City Mill.
"Consolidated Current Liabilities" means, subject
to the last sentence of Section 1.2, as at the time any
determination thereof is to be made, all Indebtedness of the
Borrower and its Subsidiaries, without duplication, that is
included as consolidated current liabilities on a consolidated
balance sheet of the Borrower and its Subsidiaries in
accordance with generally accepted accounting principles,
except that there shall be excluded from Consolidated Current
Liabilities (i) fixed sinking fund payments, (ii) mandatory
redemption and other payments of principal outstanding or due
(whether as a result of an acceleration or otherwise), (iii)
other mandatory prepayments required to be made with respect
to any Indebtedness for Money Borrowed within one year after
such date of determination, (iv) any other Indebtedness for
Money Borrowed maturing on demand and (v) all outstanding
Revolving Loans, Supplemental Revolving Loans and Swing Line
Loans under this Agreement.
"Consolidated EBITDA" means, for the period of four
fiscal quarters ending on the most recent fiscal quarter end
prior to the date of computation (treating each such period as
a single accounting period) of the Borrower and its
Subsidiaries on a consolidated basis, (a) the sum of (without
duplication) (i) Consolidated Net Income for such period, (ii)
Federal, state, local and foreign taxes deducted in
determining such Consolidated Net Income, (iii) Consolidated
Interest Expense for such period, (iv) depreciation,
depletion, amortization of intangibles and other non-cash
charges or non-cash losses deducted in determining such
Consolidated Net Income and (v) charges specifically
associated with the Smurfit Merger to the extent deducted in
determining such Consolidated Net Income, less (b) any non-
cash income or non-cash gains included in determining such
Consolidated Net Income.
"Consolidated Interest Expense" means, for the
period of four fiscal quarters ending on the most recent
fiscal quarter end prior to the date of computation (treating
each such period as a single account period) on a consolidated
basis, the interest expense (net of interest income on
Permitted Investments) of the Borrower and its Subsidiaries
for such period on a consolidated basis, excluding any fees
and expenses payable or amortized during such period by the
Borrower and its Subsidiaries in connection with the
amortization of deferred debt issuance costs. For purposes of
the foregoing, interest expense shall be determined after
giving effect to any net payments made or received by the
Borrower and its Subsidiaries with respect to foreign
exchange, interest rate swap or other similar agreements
entered into in accordance with Section 5.2.2(o).
"Consolidated Net Income" and "Consolidated Net
Loss" mean, respectively, subject to the last sentence of
Section 1.2, with respect to any period, the aggregate of the
net income (loss) (before taking account of minority
interests) of the Borrower and its Subsidiaries for such
period, determined in accordance with generally accepted
accounting principles on a consolidated basis, provided that
(i) in the case of any Person which is not a consolidated
Subsidiary, the net income (loss) of such Person shall be
disregarded and the amount of cash dividends and distributions
paid by such Person to the Borrower or a consolidated
Subsidiary of the Borrower shall be included in the net income
(loss) of the Borrower; and (ii) the net income (loss) of any
Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition shall be
excluded. There shall be excluded in computing Consolidated
Net Income the excess (but not the deficit), if any, of (A)
any gain which must be treated as an extraordinary item under
generally accepted accounting principles or any gain realized
upon the sale or other disposition of any real property or
equipment that is not sold in the ordinary course of business
or of any capital stock of the Borrower or a Subsidiary of the
Borrower over (B) any loss which must be treated as an
extraordinary item under generally accepted accounting
principles or any loss realized upon the sale or other
disposition of any real property or equipment that is not sold
in the ordinary course of business or of any capital stock of
the Borrower or a Subsidiary of the Borrower. Notwithstanding
the foregoing, (i) any loss recognized upon the sale or other
disposition of any Abitibi Shares (including, without
limitation, upon the exchange or conversion of any security or
other instrument for Abitibi Shares which constituted
Monetized Assets), (ii) any non-cash exchange related gain or
loss at Stone Finance from and after October 1, 1997 and (iii)
any loss recognized as the result of the write-off of all or
any portion of Stone-Canada's investment in SVCPI, in each
case, shall be excluded for purposes of determining
Consolidated Net Income and Consolidated Net Loss.
"Consolidated Tangible Net Worth" of the Borrower
means, subject to the last sentence of Section 1.2, as at the
time any determination thereof is made, without duplication,
an amount equal to (i) the sum of (A) the Borrower's total
common stockholders' equity (excluding treasury stock, the
effects of FASB 115 and excluding the effects of foreign
currency translation adjustments) and (B) the amount of the
Permitted Preferred Stock, minus (ii) the net book value of
all assets of the Borrower and its Subsidiaries which would be
treated as intangibles under generally accepted accounting
principles, including, without limitation, deferred charges,
leasehold conversion costs, franchise rights, non-compete
agreements, goodwill, unamortized debt discounts, patents,
patent applications, trademarks, trade names, copyrights and
licenses, except for any such intangibles of Southwest Forest
Industries, Inc. or CB created as the result of the
acquisition of either thereof.
"Contaminant" means any pollutant, contaminant (as
those terms are defined in 42 U.S.C. Section 9601(33)), toxic
pollutant (as that term is defined in 33 U.S.C. Section 1362(13)),
hazardous substance (as that term is defined in 42 U.S.C.
Section 9601(14)), hazardous chemical (as that term is defined by 29
CFR Section 1910.1200(c)), hazardous waste (as that term is defined
in 42 U.S.C. Section 6903(5)), or any state or local equivalent of
such laws and regulations, including, without limitation,
radioactive material, special waste, polychlorinated
biphenyls, asbestos, petroleum, including crude oil or any
petroleum-derived substance, waste, or breakdown or
decomposition product thereof, or any constituent of any such
substance or waste.
"Continental Guaranty" means the Guaranty dated as
of August 30, 1983, as amended as of June 1, 1996, between The
Continental Group, Inc., a New York corporation, and the
Borrower, as amended from time to time.
"Control" of a Person means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person,
whether through the ownership of voting securities, by
contract or otherwise, and the terms "Controlling" and
"Controlled" shall have meanings correlative thereto.
"Convertible Indenture" means the Indenture dated
as of June 15, 1993 between the Borrower and Norwest Bank
Minnesota, National Association, at Trustee, as amended,
supplemented, restated or otherwise modified from time to
time.
"Convertible Subordinated Indenture" means the
Indenture dated as of February 15, 1992 between the Borrower
and The Bank of New York, as Trustee, pursuant to which the
Borrower issued its 6-3/4% Convertible Subordinated Debentures
due February 15, 2007, as amended, supplemented, restated or
otherwise modified from time to time.
"CP&L Property" means any intangible property or
contract rights of the Borrower relating to or existing under
that certain Electric Power Purchase Agreement dated as of
December 17, 1984, as amended, between the Borrower and
Carolina Power & Light.
"Credit Event" means the making of any Loan and the
issuance of any Letter of Credit.
"Credit Exposure" is defined in Section 9.12(c).
"D Tranche Lender" means, at any time any Lender
which then has a D Tranche Term Loan Commitment or is owed any
portion of the D Tranche Term Loan.
"D Tranche Term Loan" means, individually and
collectively, the loans made by each of the D Tranche Lenders
to the Borrower in accordance with Section 2.1(e), which D
Tranche Term Loan shall from time to time be comprised of
Prime Rate Loans or Eurodollar Rate Loans or any combination
of the foregoing.
"D Tranche Term Loan Commitment" means, with
respect to each D Tranche Lender, the principal amount set
forth opposite such D Tranche Lender's name on Schedule 1.1(f)
hereto under the caption "Amount of D Tranche Term Loan
Commitment."
"D Tranche Term Loan Maturity Date" means October
1, 2003.
"D Tranche Term Loan Obligations" means the
obligations of the Borrower to repay the principal of, and pay
the interest on, the D Tranche Term Loan pursuant to Section
2.2(f).
"D Tranche Term Loan Pro Rata Share" means, with
respect to any D Tranche Lender and any described aggregate or
total amount, the amount equal to the result obtained by
multiplying such described aggregate or total amount by a
fraction, the numerator of which shall be the portion of the
D Tranche Term Loan made by such Lender and outstanding at the
time and the denominator of which shall be the aggregate
amount of the D Tranche Term Loan made by all of the D Tranche
Lenders and outstanding at the time.
"D Tranche Term Note" is defined in Section 2.2(f).
"Debt Basket Proceeds" is defined in the definition
of "Discretionary Funds."
"Debt Refinancing" means the termination of the
U.S. Credit Agreement, the Canadian Credit Agreements and the
Stone Savannah Credit Agreement and the repayment in full of
all obligations outstanding thereunder.
"Debt Refinancing Documents" means the documents
and instruments entered into with respect to the termination
of the commitments, and the reimbursement obligations with
respect to any letters of credit issued, under the U.S. Credit
Agreement, the Canadian Credit Agreements and the Stone
Savannah Credit Agreement, the repayment of the loans and
other obligations thereunder, the release of all guaranties
and security with respect thereto and any consents required in
connection therewith.
"Default Rate" is defined in Section 2.8(n).
"Delayed Collateral" is defined in Section 5.1.17.
"Deposited Monies" is defined in Section 3.5.
"Discretionary Funds" means the sum of (i) the
aggregate amount of Waived Proceeds, plus (ii) the aggregate
amount of Excluded Sale Proceeds (not to exceed $300 million),
with the aggregate amount of Excluded Sale Proceeds in excess
of $200 million being referred to as "Excess Excluded Sale
Proceeds", plus (iii) the aggregate amount of Indebtedness
incurred pursuant to Section 5.2.2(t) (not to exceed $400
million) ("Debt Basket Proceeds"), plus (or minus, if Excess
Cash Flow is negative) (iv) the aggregate amount of Excess
Cash Flow for each Fiscal Quarter of the Borrower commencing
with the Fiscal Quarter ending December 31, 1994 which is not
required by Section 3.4(a) to be utilized as a mandatory
prepayment, such amount to be determined without giving effect
to any prepayment reduction or waiver pursuant to clause (B)
of Section 3.4(a) or Section 3.6(f) and such amount with
respect to any Fiscal Quarter becoming Discretionary Funds
only after the delivery of the Excess Cash Flow Schedule for
such Fiscal Quarter pursuant to Section 5.1.1(b) or 5.1.1(c).
As of the Second Restatement Date, the amount of Debt Basket
Proceeds shall be deemed increased by $300 million without
otherwise limiting the Borrower's ability to incur
Indebtedness under Section 5.2.2(t), and such $300 million
increase may be utilized from and after the Second Restatement
Date by the Borrower as Discretionary Funds constituting Debt
Basket Proceeds.
"Discretionary Funds Basket" means, at any time,
(i) the aggregate amount of Discretionary Funds less (ii) the
aggregate amount of the sum of (A) Investments made pursuant
to Section 5.2.7(l), (B) Acquisitions pursuant to Section
5.2.9(e)(ii), (C) prepayments of Indebtedness pursuant to
Sections 5.2.10(a)(ix) and (xii), and (D) Capital Expenditures
made pursuant to Section 5.2.11(iii). Any utilization of
Discretionary Funds for the purpose specified in clause (C)
above shall first be deemed a utilization of Debt Basket
Proceeds and Excess Excluded Sale Proceeds to the extent
thereof and then a utilization of other Discretionary Funds;
provided, however, that from and after the effective date of
the Second Amendment of Credit Agreement dated as of December
18, 1996 to and including the date the Borrower delivers to
the Agent a certificate pursuant to Section 5.1.1(b)
evidencing, as of the end of the Fiscal Quarter for which such
certificate is delivered, an Interest Coverage Ratio
(calculated for the period specified in Section 5.3.1(a)) of
at least 1.25:1, the aggregate amount of the Discretionary
Funds Basket available to be used for Investments pursuant to
Section 5.2.7(l), Acquisitions pursuant to Section
5.2.9(e)(ii) and Capital Expenditures pursuant to Section
5.2.11(iii) shall be deemed to be (a) $50,000,000 less (b) the
amount of the Discretionary Funds Basket used for such
Investments, Acquisitions and Capital Expenditures on or after
such effective date.
"Dividend Basket" means, at any time, the maximum
amount of cash dividends which the Borrower would then be
permitted to pay to its shareholders pursuant to Section
5.2.5(b).
"Dollar" and "$" shall mean lawful currency of the
United States of America unless a currency of another country
is specifically designated.
"E Tranche Lender" means, at any time any Lender
which then has a E Tranche Term Loan Commitment or is owed any
portion of the E Tranche Term Loan.
"E Tranche Term Loan" means, individually and
collectively, the loans made by each of the E Tranche Lenders
to the Borrower in accordance with Section 2.1(f), which E
Tranche Term Loan shall from time to time be comprised of
Prime Rate Loans or Eurodollar Rate Loans or any combination
of the foregoing.
"E Tranche Term Loan Commitment" means, with
respect to each E Tranche Lender, the principal amount set
forth opposite such E Tranche Lender's name on Schedule 1.1(g)
hereto under the caption "Amount of E Tranche Term Loan
Commitment."
"E Tranche Term Loan Maturity Date" means October
1, 2003.
"E Tranche Term Loan Obligations" means the
obligations of the Borrower to repay the principal of, and pay
the interest on, the E Tranche Term Loan pursuant to Section
2.2(g).
"E Tranche Term Loan Pro Rata Share" means, with
respect to any E Tranche Lender and any described aggregate or
total amount, the amount equal to the result obtained by
multiplying such described aggregate or total amount by a
fraction, the numerator of which shall be the portion of the
E Tranche Term Loan made by such Lender and outstanding at the
time and the denominator of which shall be the aggregate
amount of the E Tranche Term Loan made by all of the E Tranche
Lenders and outstanding at the time.
"E Tranche Term Note" is defined in Section 2.2(g).
"8-7/8% Notes" means the Borrower's 8-7/8%
Convertible Senior Subordinated Notes due July 15, 2000.
"Eligible Assignee" means (i) a commercial bank,
investment company, financial institution, financial company,
fund (whether a corporation, partnership, trust or other
entity), insurance company or other "accredited investor" (as
defined in Regulation D of the Securities Act of 1933, as
amended), (ii) any Lender party to this Agreement, (iii) any
Affiliate of any Lender party to this Agreement, and (iv) any
other Person approved by Agent, such approval not to be
unreasonably withheld; provided, however, that neither SSCC
nor any of its Affiliates shall qualify as an Eligible
Assignee.
"Employee Benefit Plan" means an "employee benefit
plan", as defined in Section 3(3) of ERISA, which is or has
been established or maintained, or to which contributions are
or have been made, by the Borrower or any of its Subsidiaries
or any ERISA Affiliate.
"Environmental Laws" means any and all applicable
foreign, federal, state or local laws, statutes, ordinances,
codes, rules, regulations, orders, decrees, judgments,
directives and cleanup or action standards, levels or
objectives imposing liability or standards of conduct for or
relating to the protection of health, safety or the
environment, including, but not limited to, the following
statutes as now written and amended, and as amended hereafter:
the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et
seq., the Clean Air Act, 42 U.S.C. Section 7401 et seq., the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq., the Solid
Waste Disposal Act, 42 U.S.C. Section 6901 et seq., the
Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq., the Emergency
Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section
11001 et seq., and the Safe Drinking Water Act, 42 U.S.C. Section
300f et seq.
"Environmental Lien" means a Lien in favor of any
governmental authority for (i) any liability under foreign,
federal, state or local environmental laws or regulations, or
(ii) damages arising from, or costs incurred by such
governmental authority in response to, a Release or threatened
Release of a Contaminant into the environment.
"Environmental Permits" means all material
environmental, health and safety permits, certificates,
licenses, approvals and authorizations necessary for their
respective operations under all applicable Environmental Laws.
"Environmental Study" means those certain
environmental assessments and documents upon which such
assessments are based of the Facilities prepared by
EnviroClean Midwest, Inc. with regard to the existing and
potential liability of the Borrower with respect to any
environmental matters, including a review of compliance with
Environmental Laws.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as from time to time amended.
"ERISA Affiliate" means each trade or business
(whether or not incorporated) which together with the Borrower
or a Subsidiary of the Borrower would be deemed to be a
"single employer" within the meaning of Section 4001(b) of
ERISA or Section 414 of the Code, excluding any foreign
Subsidiary of the Borrower which is not subject to ERISA.
"Eurodollar Rate" means, with respect to each
Interest Period to be applicable to a Eurodollar Rate Loan,
the rate per annum obtained by dividing (i) the arithmetic
average (rounded upward to the nearest 1/16th of 1%) of the
offered quotation to first-class banks in the interbank
Eurodollar market by each Reference Bank for U.S. Dollar
deposits of an amount in immediately available funds
approximately equal to the principal amount of the Eurodollar
Rate Loan to be made by such Reference Bank for a period
approximately equal to such Interest Period determined as of
10:00 a.m. (New York City time) two (2) Business Days prior
the commencement of such Interest Period, provided that if any
Reference Bank fails to provide the Agent in a timely fashion
with its aforesaid quotation then the Eurodollar Rate shall be
calculated using the arithmetic average of the quotations
provided to the Agent by the other Reference Bank or Banks by
(ii) a percentage equal to 100% minus the stated maximum rate
(expressed as a percentage) as prescribed by the Board of all
reserve requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves
and all reserves required to be maintained against
"Eurocurrency liabilities" as specified in Regulation D (or
any successor regulation)) applicable on the first day of such
Interest Period to any member bank of the Federal Reserve
System in respect of Eurodollar funding or liabilities. The
determination of the Eurodollar Rate by the Agent shall be
conclusive and binding on the Borrower and the Lenders absent
manifest error.
"Eurodollar Rate Additional Term Loan" means the
Additional Term Loan or any portion thereof during any period
in which it bears interest at the Eurodollar Rate.
"Eurodollar Rate D Tranche Term Loan" means the D
Tranche Term Loan or any portion thereof during any period in
which it bears interest at the Eurodollar Rate.
"Eurodollar Rate E Tranche Term Loan" means the E
Tranche Term Loan or any portion thereof during any period in
which it bears interest at the Eurodollar Rate.
"Eurodollar Rate Loan" means any Loan which bears
interest at a rate determined with reference to the Eurodollar
Rate.
"Eurodollar Rate Revolving Loan" means a Revolving
Loan or any portion thereof during any period in which it
bears interest at the Eurodollar Rate.
"Eurodollar Rate Supplemental Revolving Loan" means
a Supplemental Revolving Loan or any portion thereof during
any period in which it bears interest at the Eurodollar Rate.
"Eurodollar Rate Term Loan" means the Term Loan or
any portion thereof during any period in which it bears
interest at a rate determined with reference to the Eurodollar
Rate.
"Europa Carton A.G." means Europa Carton A.G., a
corporation organized under the laws of the Federal Republic
of Germany, 1% of whose issued and outstanding capital stock
is owned of record by Stone-Canada and 99% of whose issued and
outstanding capital stock is owned of record by Stone
Container GmbH.
"Event of Default" is defined in Section 7.1.
"Excess Cash Flow" means, without duplication, for
any Fiscal Quarter, an amount equal to the sum of (i)
Consolidated Net Income (or Consolidated Net Loss), plus
(minus) (ii) depreciation, depletion, amortization, deferred
taxes and other noncash expenses (revenues) which, pursuant to
generally accepted accounting principles, were deducted
(added) in determining the Consolidated Net Income, minus
(plus) (iii) the increase (decrease) in Adjusted Working
Capital from the last day of the prior Fiscal Quarter
(excluding changes in income taxes payable), minus (iv)
Capital Expenditures (other than Capital Expenditures incurred
through the utilization of Indebtedness for Money Borrowed
permitted by Section 5.2.2(k) or Discretionary Funds and other
than Capital Expenditures of S-CC and Subsidiaries of S-CC)
for such Fiscal Quarter, minus (v) the amount of any required
prepayment (except (A) under this Agreement (including as the
result of mandatory reductions in the Revolving Loan
Commitments or Supplemental Revolving Loan Commitments)
and (B) under the First Mortgage Note Documents in connection
with the sale of any collateral securing the Indebtedness
thereunder) or any regularly scheduled payments of
Indebtedness for Money Borrowed (but excluding Indebtedness
for Money Borrowed described in subparagraphs (iv) or (vi) of
the definition of Indebtedness for Money Borrowed) during such
quarter, minus (vi) cash dividends, distributions or other
amounts paid by the Borrower to any of its stockholders with
respect to its capital stock during such quarter, minus (vii)
Investments by the Borrower or any Subsidiary of the Borrower
(other than S-CC and Subsidiaries of S-CC) during such quarter
except for Investments made through the utilization of
Discretionary Funds, minus (viii) any portion of Consolidated
Net Income attributable to gains (losses) on the disposition
of assets to the extent the proceeds therefrom were used
pursuant to Section 3.4(c) to prepay the Obligations, minus
(ix) dividends paid by non-Wholly-Owned Subsidiaries of the
Borrower to minority shareholders other than the Borrower or
Wholly-Owned Subsidiaries of the Borrower, plus (x) the
increases in the aggregate principal amount of borrowings by
StoneSub from the Issuer in connection with each Receivables
Financing from (A) the later of (1) the beginning of the
quarter for which the calculation is being made or (2) the
date on which the applicable Receivables Financing commenced
(if established during such quarter) to (B) the end of such
quarter, minus (xi) the decreases in the aggregate principal
amount of borrowings (other than as the result of a
refinancing of such borrowings from a source other than
internally generated cash or Borrowings hereunder) by StoneSub
from the Issuer in connection with each Receivables Financing
from (A) the later of (1) the beginning of the quarter for
which the calculation is being made or (2) the date on which
the applicable Receivables Financing commenced (if established
during such quarter) to (B) the end of such quarter. In the
event that Seminole Kraft merges with and into the Borrower
pursuant to Section 5.2.8(g) in any Fiscal Quarter, Excess
Cash Flow for such Fiscal Quarter shall be calculated as
though the merger of Seminole Kraft with and into the Borrower
occurred on the first day of such Fiscal Quarter.
"Excess Cash Flow Percentage" means 50% from the
date of this Agreement and continuing thereafter until
adjusted pursuant to the terms and conditions set forth on
Schedule 1.1(b) hereto.
"Excess Cash Flow Schedule" is defined in Section
5.1.1(b).
"Excess Excluded Sale Proceeds" is defined in the
definition of "Discretionary Funds".
"Excluded Sale Proceeds" is defined in Section
3.4(c).
"Executive Officer" means from time to time any
officer of the Borrower elected by the board of directors of
the Borrower or designated as an executive officer in any Form
10-K or successor form filed by the Borrower with the
Securities and Exchange Commission.
"Existing Credit Agreement" is defined in the
Recitals to this Agreement.
"Existing Lenders" is defined in the Recitals to
this Agreement.
"Facilities" means the owned and leased facilities
of the Borrower set forth on Schedule 1.1(c) hereto.
"Facility" has the meaning assigned to that term in
the Participation Agreement.
"Facility Fee" has the meaning assigned to that
term in the Original Credit Agreement.
"Facing Agent" means BT or such other Revolving
Lender as may from time to time have been designated as such
by the Borrower and shall have agreed in writing to act in
such capacity.
"Federal Funds Rate" means on any given day, the
rate per annum equal to the weighted average of the rate on
overnight Federal funds transactions with members of the
Federal Reserve System only arranged by Federal funds brokers,
as published as of such day by the Federal Reserve Bank of New
York, or, if such rate is not so published, the rate then used
by first class banks in extending overnight loans to other
first class banks.
"Fifth Amendment" means that certain Fifth
Amendment of Credit Agreement dated as of October 5, 1998
among the Borrower, the Agent and the Lenders.
"Financing Lease" means, at the time any
determination thereof is to be made, any lease of property,
real or personal, in respect of which the present value of the
minimum rental commitment is capitalized on the balance sheet
of the lessee in accordance with generally accepted accounting
principles.
"Financing Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the
liability in respect of a Financing Lease which would at such
time be so required to be capitalized on the lessee's balance
sheet in accordance with generally accepted accounting
principles.
"First Mortgage Note Documents" means the First
Mortgage Note Indenture, the First Mortgage Notes, the
Security Documents (as such term is defined in the First
Mortgage Note Indenture) and all other documents, instruments
and agreements now or hereafter evidencing or securing all or
any portion of the Borrower's obligations under the First
Mortgage Note Indenture and the First Mortgage Notes,
including any documents, instruments or agreements evidencing
or securing the amendment, refinancing, modification,
replacement, renewal, restatement, refunding, deferral,
extension, supplement, reissuance or resale thereof.
"First Mortgage Note Indenture" means the Indenture
dated as of October 12, 1994 between the Borrower and Norwest
Bank Minnesota, National Association, as Trustee, pursuant to
which the Borrower issued its First Mortgage Notes, as
amended, supplemented, restated or otherwise modified from
time to time.
"First Mortgage Notes" means the Borrower's 10-3/4%
First Mortgage Notes due October 1, 2002 in the aggregate
principal amount of $500 million and issued pursuant to the
First Mortgage Note Indenture, as amended, supplemented,
restated or otherwise modified from time to time.
"First Restated Credit Agreement" is defined in the
Recitals to this Agreement.
"First Restatement Lenders" is defined in the
Recitals to this Agreement.
"First Restatement Date" means August 29, 1995.
"Fiscal Quarters" is defined in Section 4.23.
"Fiscal Year" is defined in Section 4.23.
"Florence Bonds" means the Variable Rate Demand
Industrial Revenue Bonds, Series 1984, issued by Florence
County, South Carolina pursuant to the Trust Indenture dated
as of December 15, 1984 as in effect on the date of this
Agreement.
"Florence L/C Obligations" means, at any time of
determination, the sum of (i) the aggregate undrawn face
amount of the Florence Letters of Credit, plus (ii) the amount
of any drawings under the Florence Letters of Credit which
have not been reimbursed pursuant to the L/C Agreement, plus
(iii) the principal amount of any term loans outstanding under
the L/C Agreement.
"Florence Letters of Credit" means, individually
and collectively, the letters of credit from time to time
issued pursuant to the L/C Agreement.
"GAAP"shall mean generally accepted accounting
principles in the United States, applied on a consistent
basis.
"German Financing" means one or more credit
facilities consummated on or prior to March 31, 1998 pursuant
to which Stone Container GmbH and/or any of its Subsidiaries
(including Europa Carton A.G.) incurs Indebtedness in an
aggregate principal amount denominated in Deutsch Marks not to
exceed DM 90,000,000 and secured only by the stock and/or
assets of Subsidiaries of Stone Container GmbH, provided that
(a) such Indebtedness is incurred on terms and conditions
substantially similar to the terms and conditions set forth on
Schedule 1.1(h) hereto and on other terms and conditions, and
pursuant to documentation, in form and substance satisfactory
to the Agent, (b) the Agent shall have received an opinion of
Sidley & Austin, counsel to the Borrower, and/or other counsel
to the Borrower reasonably acceptable to Agent, in form and
substance reasonably satisfactory to the Agent and stating
that the execution, delivery and performance of the
documentation for the German Financing does not conflict with
or result in a breach of, or constitute a default under, any
of the Loan Documents or any other agreements or instruments
known to such counsel to which the Borrower or any of its
Subsidiaries are bound, and (c) all of the proceeds of such
Indebtedness are used (i) to pay the direct costs and expenses
incurred in connection with the German Financing and (ii) to
prepay a portion of the E Tranche Term Loan in accordance with
Section 3.4(f), and (d) the Agent shall have received a
certificate of the Chief Financial Officer or the Treasurer of
the Borrower certifying that no Event of Default or Unmatured
Event of Default has occurred and is continuing either before
or after giving effect to the consummation of the German
Financing.
"German Financing Intercompany Note" means the
intercompany promissory note issued by Stone-Canada or the
Borrower in favor of Stone Container GmbH and/or Europa Carton
A.G. upon consummation of the German Financing in the
principal amount of up to DM 90,000,000 on terms and
conditions, and pursuant to documentation, in form and
substance satisfactory to the Agent.
"German Financing Subsidiary Transfer" is defined
in Section 5.2.12.
"Government Acts" is defined in Section 2.12(i).
"Governmental Authority" means any foreign,
Federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic
or foreign.
"Hazardous Materials" is defined in Section
4.17(d).
"Indebtedness" means, with respect to any Person,
without duplication:
(a) all obligations of such Person which in
accordance with generally accepted accounting principles would
be shown on the balance sheet of such Person as a liability
(including, without limitation, obligations for borrowed money
and for the deferred purchase price of property or services,
and obligations evidenced by bonds, debentures, notes or other
similar instruments);
(b) all obligations under Financing Leases,
required to be capitalized under generally accepted accounting
principles;
(c) all guarantees (direct or indirect), all
contingent reimbursement obligations under undrawn letters of
credit and other contingent obligations of such Person in
respect of, or obligations to purchase or otherwise acquire or
to assure payment of, Indebtedness of others;
(d) Indebtedness of others secured by any Lien
upon property owned by such Person, whether or not assumed;
and
(e) all sinking fund payments or other mandatory
redemption or payments on preferred or preference stock due on
or prior to January 15, 2004 (other than preferred or
preference shares issued to the Borrower by Stone-Canada).
"Indebtedness for Money Borrowed" means, without
duplication, (i) the principal amount of all Indebtedness of
the Borrower or a Subsidiary of the Borrower, as the case may
be, current or funded, secured or unsecured, incurred in
connection with borrowings (including the sale of debt
securities), (ii) all Indebtedness of the Borrower or a
Subsidiary of the Borrower, as the case may be, issued,
incurred or assumed in respect of the purchase price of
property except for trade and intercompany accounts payable,
(iii) all Financing Lease Obligations of the Borrower or a
Subsidiary of the Borrower, as the case may be, (iv) any
direct or indirect guarantee in respect of Indebtedness of any
other Person of any of the types specified in the preceding
clauses (i)-(iii), (v) the amount of all Indebtedness
described in subsection (e) of the definition of Indebtedness,
and (vi) the maximum stated amount from time to time available
for drawing under the letters of credit issued pursuant to the
L/C Agreement plus the amount of any unreimbursed drawings
under the letters of credit plus (without duplication) the
amount of any "Term Loans" outstanding under the L/C
Agreement.
"Initial Loans" means the Term Loan and, if any
Revolving Loans or Swing Line Loans are requested by the
Borrower on the Closing Date, such Revolving Loans or Swing
Line Loans.
"Interest Coverage Ratio" means, for the period of
four quarters ending on the most recent quarter end prior to
the date of computation (treating each such period as a single
accounting period) on a consolidated basis, a ratio of (a)
Consolidated EBITDA for such period to (b) Consolidated
Interest Expense during such period.
"Interest Period" means any interest period
applicable to a Loan as determined pursuant to Section 2.10.
"Interest Rate Determination Date" means any date
on which the Agent is required to determine the applicable
Eurodollar Rate in connection with a Notice of Borrowing or
Notice of Conversion or Continuation delivered by the
Borrower.
"Investment" means, with respect to any Person
(such Person being referred to in this definition as the
"Investor"), any amount paid by the Investor, directly or
indirectly, or any transfer of property, directly or
indirectly, by the Investor to any other Person for capital
stock of, or as a capital contribution to, or any amount which
the Investor has loaned or advanced, directly or indirectly,
to, any other Person, including, in the case of any Person
which becomes a Subsidiary of the Borrower, the aggregate
principal amount of Indebtedness for Money Borrowed of such
Person outstanding at the time such Person becomes a
Subsidiary. The calculation of any Investment shall be
exclusive of amounts paid for goods or services in the
ordinary course of business on terms customary for the
industry.
"Investment Grade Rating" means a rating of the
Borrower's senior unsecured long-term debt outstanding,
without third-party enhancement, by Standard & Poor's
Corporation of BBB- or better and by Moody's Investor
Services, Inc. of Baa3 or better.
"IRB" means industrial revenue bonds and other debt
instruments set forth on Schedule 5.2.2 hereto.
"Issuer" has the meaning assigned to that term in
the definition of Accounts Receivable Financing Program.
"JSC Acquisition" means JSC Acquisition
Corporation, a Delaware corporation and a direct Wholly-Owned
Subsidiary of SSCC.
"JSG" means Jefferson Smurfit Group plc, a
corporation organized and existing under the laws of the
Republic of Ireland.
"L/C Agreement" means, collectively, the letter of
credit agreements entered into between (i) BT and Gelco
Corporation, as successor in interest to D & K Financial
Corporation, and (ii) BT and Westinghouse Electric
Corporation, as successor by merger to Westinghouse Credit
Corporation, with respect to the issuance by BT of one or more
letters of credit to secure the Florence Bonds, as such letter
of credit agreements may at any time be amended, modified or
restated in accordance with the terms thereof and in effect.
"L/C Obligations" means, at any time, an amount
equal to the sum of (i) the aggregate Stated Amount of the
then outstanding Letters of Credit and (ii) the aggregate
amount of drawings under Letters of Credit which have not been
reimbursed and which have not been converted to Revolving
Loans pursuant to Section 2.12(e).
"Lending Office" means for each Lender, the office
specified for such Lender pursuant to Section 9.4 as the
office from which its Revolving Loan Pro Rata Share, Term Loan
Pro Rata Share or Additional Term Loan Pro Rata Share, as the
case may be, of any Borrowing will be made.
"Letter of Credit Fee" is defined in Section
2.12(f)(ii).
"Letters of Credit" means the Commercial Letters of
Credit and the Standby Letters of Credit.
"Lenders" and "Lender" have the respective meanings
assigned to those terms in the preamble to this Agreement and
shall include each Assignee and Eligible Assignee thereof that
shall become a party to this Agreement pursuant to Section
9.12. For purposes of this Agreement, the Lenders shall
collectively include all of the Revolving Lenders in their
capacities as such, all Term Lenders in their capacities as
such, all Additional Lenders in their capacities as such, all
Supplemental Revolving Lenders in their capacities as such,
all D Tranche Lenders in their capacities as such, all E
Tranche Lenders in their capacities as such and the Swing Line
Lender in its capacity as such. A Lender may be a Revolving
Lender, a Supplemental Revolving Lender, a Term Lender, an
Additional Lender, a D Tranche Lender and/or an E Tranche
Lender hereunder.
"Leveraged Lease" means, collectively, (i) the
Lease Agreement dated as of March 1, 1985 between the Borrower
and D&K Financial Corporation as amended from time to time and
(ii) the Lease Agreement dated as of March 1, 1985 between the
Borrower and Westinghouse Credit Corporation as amended from
time to time.
"Lien" means any mortgage, pledge, security
interest, adverse claim (as defined in Section 8.302(2) of the
New York Uniform Commercial Code), encumbrance, lien or charge
of any kind (including, without limitation, any conditional
sale or other title retention agreement or lease in the nature
thereof, any sale of receivables with recourse against the
seller or any Affiliate of the seller, any filing or agreement
to file a financing statement as debtor under the Uniform
Commercial Code or any similar statute other than to reflect
ownership by a third party of property leased to the Borrower
or any of its Subsidiaries under a lease which is not in the
nature of a conditional sale or title retention agreement).
"Loan" means any of the Term Loan, the Additional
Term Loan, the Revolving Loans, the Supplemental Revolving
Loans, the D Tranche Term Loan, the E Tranche Term Loan or the
Swing Line Loans and "Loans" means all of such Loans
collectively.
"Loan Documents" means, collectively, this
Agreement, the Notes, the Security Agreements, the Pledge
Agreements, the Mortgages, the Subsidiary Guarantees, the
Stone Snowflake Cash Collateral Agreement and all other
agreements, assignments, security agreements, instruments and
documents executed in connection with this Agreement or any
other Loan Document, in each case as the same may at any time
be amended, supplemented, restated or otherwise modified and
in effect. For purposes of this Agreement, "Loan Documents"
shall also include all guaranties, security agreements,
mortgages, pledge agreements, collateral assignments and other
collateral documents in the nature of any thereof entered into
by the Borrower or any Subsidiary of the Borrower after the
date of this Agreement in favor of the Agent for the benefit
of the Lenders in satisfaction of the requirements of this
Agreement.
"Majority Additional Term Lenders" is defined in
Section 9.3.
"Majority D Tranche Term Lenders" is defined in
Section 9.3.
"Majority E Tranche Term Lenders" is defined in
Section 9.3.
"Majority Revolving Lenders" is defined in Section
9.2.
"Majority Supplemental Revolving Lenders" is
defined in Section 9.3.
"Majority Term Lenders" is defined in Section 9.2.
"Margin Stock" has the meaning provided in
Regulation U of the Board, as from time to time in effect or
any successor to all or any portion thereof establishing
margin credit restrictions.
"Material Adverse Effect" means a material adverse
effect on (i) the properties, business, condition (financial
or otherwise) or results of operations of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the
Borrower or any Subsidiary to perform its obligations under
any of the Loan Documents or (iii) the validity or
enforceability or any of the Loan Documents or the rights or
remedies of the Agent or the Lenders thereunder.
"Material Sale Proceeds is defined in Section
3.4(c).
"Maximum Commitment" means, when used with
reference to any Lender, the aggregate amount of such Lender's
Term Loan Commitment and Revolving Loan Commitment in the
amounts not to exceed those set forth opposite such Lender's
name on Schedule 1.1(a) hereto under the caption "Amount of
Maximum Commitment", subject to reduction from time to time in
accordance with the terms of this Agreement. For purposes of
this definition, the Revolving Loan Commitment of the Swing
Line Lender shall be deemed to include the Swing Line
Commitment of the Swing Line Lender.
"Mergers" means the merger of (i) the Stone Merger
Subsidiaries with and into the Borrower, with the Borrower
being the surviving corporation and (ii) Stone Southwest
Merger Subsidiaries with and into Stone Southwest, with Stone
Southwest being the surviving corporation.
"Merger Documents" means the Certificates of
Ownership and Merger along with all of the agreements,
documents, resolutions, consents, instruments and certificates
executed in order to effect the transactions contemplated by
the Certificates of Ownership and Merger.
"Monetized Assets" means any assets, capital stock
or other tangible or intangible property or rights of the
Borrower or any Subsidiary that are subject to any agreement
or other instrument pursuant to which one or more third
parties (including a trustee, lender, or security holder) has
a right to convert or exchange a security or other instrument
issued by the Borrower or any Subsidiary for such assets,
capital stock, property or rights but Monetized Assets shall
not include: (i) securities issued by the Borrower which are
convertible into another security issued by the Borrower; or
(ii) sales of, or transfers of interests in receivables
(whether characterized as sales or as non-recourse loans) and
related contract rights and other property permitted by
Section 5.2.13.
"Mortgaged Property" means, collectively, all of
the properties of the Borrower and the Subsidiaries of the
Borrower defined as "Mortgaged Property" in each of the
respective Mortgages and shall include the fee or leasehold
interests of the Borrower or a Subsidiary in the manufacturing
facilities identified on Schedule 1.1(c) hereto.
"Mortgages" means, collectively, (i) the mortgages
and leasehold mortgages in substantially the forms of Exhibits
1.1(d)-A and B hereto (with such state by state modifications
as may be appropriate, and modifications to provide for pro
rata liens as required under the Continental Guaranty and to
reflect the securing of obligations created under Subsidiary
Guarantees) as required by the Agent, each dated as of the
date hereof (subject to Section 5.1.17) and each by the
Borrower or a Subsidiary, as applicable, as mortgagor, in
favor of the Agent for the benefit of the Lenders (or its
designee), as mortgagee, relating to the Mortgaged Property,
and (ii) any other mortgage, leasehold mortgage, deed of
trust, collateral assignment of lease or similar agreement
executed by the Borrower or a Subsidiary of the Borrower
pursuant to which such Person shall have granted a mortgage,
leasehold mortgage or other Lien to the Agent for the benefit
of the Lenders, as each such agreement may at any time be
amended, supplemented, restated or otherwise modified in
accordance with the terms thereof and in effect.
"Most Recent Balance Sheet" means the most recent
consolidated balance sheet of the Borrower and its
Subsidiaries delivered to the Agent and each Lender pursuant
to Section 5.1.1(b)(i).
"Multiemployer Plan" means any plan described in
Section 4001(a)(3) of ERISA and not excluded pursuant to
Section 4021(b) thereof to which contributions are or have
been made by the Borrower or any of its Subsidiaries or any
ERISA Affiliate.
"Net Awards" is defined in the Mortgages.
"Net Proceeds" is defined in the Mortgages.
"New Receivables Financing" is defined in Section
5.2.2(p).
"Non-U.S. Lender" is defined in Section 9.12(h).
"Note" means any of the Term Notes, Additional Term
Notes, Revolving Notes, Supplemental Revolving Notes, D
Tranche Term Notes, the E Tranche Term Notes or the Swing Line
Note and "Notes" means all of such promissory notes
collectively.
"Notice of Borrowing" is defined in Section 2.5.
"Notice of Conversion or Continuation" is defined
in Section 2.6.
"Notices" is defined in Section 9.4.
"Obligations" means the Term Loan Obligations, the
Additional Term Loan Obligations, the Revolving Loan
Obligations, the Supplemental Revolving Loan Obligations, the
D Tranche Term Loan Obligations, the E Tranche Term Loan
Obligations, the Swing Line Loan Obligations, the L/C
Obligations and all other liabilities and obligations of the
Borrower and any Subsidiary of the Borrower now or hereafter
arising under this Agreement or any of the other Loan
Documents, whether for principal, interest, reimbursements,
fees, expenses, indemnities or otherwise, and whether primary,
secondary, direct, indirect, contingent, fixed or otherwise
(including obligations of performance).
"Offsite Property" is defined in Section 5.1.15.
"Original Credit Agreement" is defined in the
Recitals to this Agreement.
"Original Lenders" is defined in the Recitals to
this Agreement.
"Participants" is defined in Section 9.12(c).
"Participating Subsidiary" means any Wholly-Owned
Subsidiary of the Borrower which is a participant in the
Accounts Receivable Financing Program with respect to one or
more business lines thereof; provided, however, that in no
event shall S-CC or any of its Subsidiaries or any Wholly-
Owned Subsidiary which is not domiciled in the United States
or Canada be a Participating Subsidiary.
"Payment Office" is defined in Section 2.7.
"PBGC" means the Pension Benefit Guaranty
Corporation created by Section 4002(a) of ERISA.
"Permitted Beneficiary" means any insurance
company, state workers' compensation authority, state or
Federal environmental agency, related trustee or surety, local
utility, municipality, other domestic or foreign Governmental
Authority, any vendor of goods or services being purchased by
the Borrower or any of its Subsidiaries, any domestic or
foreign financial institution, or any other Person approved by
the Facing Agent, in its sole discretion.
"Permitted Investments" mean (i) any evidence of
indebtedness, maturing not more than one year after the date
of issue, issued by the United States of America, or any
instrumentality or agency thereof and guaranteed fully as to
principal, interest and premium, if any, by the United States
of America, (ii) any certificate of deposit, maturing not more
than 360 days after the date of purchase issued by a
commercial banking institution which is a member of the
Federal Reserve System or a Canadian banking institution and
which has a combined capital and surplus and undivided profits
of not less than $200 million, (iii) commercial paper,
maturing not more than 360 days after the date of purchase,
issued by a corporation (other than the Borrower or any
Subsidiary of the Borrower or any of their respective
Affiliates) organized and existing under the laws of (A) any
state within the United States of America with a rating, at
the time of purchase, of "P-2" (or higher) according to
Moody's Investors Service, Inc. or "A-2" (or higher) according
to Standard & Poor's Corporation, or (B) solely with respect
to Permitted Investments made by a foreign Subsidiary, any
foreign country with a rating equivalent to that specified in
clause (A) above, (iv) demand deposits with any bank or trust
company, (v) investments in money market funds having a rating
from each of Moody's Investors Service, Inc. and Standard &
Poor's Corporation in the highest investment category granted
thereby (including without limitation funds for which any
Lender, the Agent or any Co-Agent is investment manager or
adviser), (vi) reverse repurchase agreements with respect to
indebtedness issued by the United States of America, or any
instrumentality or agency thereof and guaranteed fully as to
principal, interest and premium, if any, by the United States
of America, and (vii) in the case of foreign Subsidiaries of
the Borrower, short-term investments comparable to the
foregoing.
"Permitted Liens" means with respect to any Person:
(a) Liens existing on the Closing Date and
referenced on Schedule 1.1(d) hereto;
(b) any Lien on any property securing Indebtedness
incurred or assumed for the purpose of financing all or any
part of the acquisition, construction, repair or improvement
cost of such property (including any refinancing thereof),
provided that such Lien does not extend to any other property;
(c) Liens for taxes or assessments or governmental
charges or levies not yet due or which are being contested in
good faith by appropriate proceedings and with respect to
which adequate reserves, if appropriate under generally
accepted accounting principles, are being maintained;
(d) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and other Liens
imposed by law created in the ordinary course of business for
amounts not yet due or which are being contested in good faith
by appropriate proceedings and with respect to which adequate
reserves, if appropriate under generally accepted accounting
principles, are being maintained;
(e) Liens (other than any Lien imposed by ERISA)
incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and
appeal bonds, bids, leases, government contracts, or progress
payments, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment
of borrowed money);
(f) easements, rights-of-way, restrictions and
other similar charges or encumbrances not interfering with the
ordinary conduct of the business of the Borrower or any of its
Subsidiaries;
(g) Liens existing on any property prior to the
acquisition thereof, prior to the acquisition of the Person
which owns such property or prior to the Person becoming a
Subsidiary, by the Borrower or any of its Subsidiaries, in
each case which lien was not created in contemplation of such
acquisition;
(h) the rights of collecting banks having a right
of setoff, revocation, refund or chargeback with respect to
money or instruments of the Borrower or its Subsidiaries on
deposit with or in the possession of such Lender;
(i) Liens created by the Loan Documents and any
other Liens granted to the Agent to secure, directly or
indirectly, all or any portion of the Obligations or other
obligations arising pursuant to the Loan Documents;
(j) the Lien granting ratable security in certain
of the Mortgaged Properties and Collateral pursuant to the
requirements of the Continental Guaranty;
(k) Liens on the property of S-CC or any Subsidiary
of S-CC securing indebtedness which is non-recourse to the
Borrower and each other Subsidiary of the Borrower (other than
Subsidiaries of S-CC in the case of indebtedness of S-CC or
any of its Subsidiaries) and Liens on the property of S-CC or
any Subsidiary of S-CC to the extent permitted by the S-CC
Debt Documents;
(l) Liens in favor of any Lender which is a party
to a foreign exchange or interest rate swap or hedging
agreement with the Borrower as permitted by Section
5.2.2(o)(i), provided that such Liens are not senior to those
of the Lenders with respect to such agreements and do not
attach to properties of the Borrower other than those in which
the Lenders have a security interest or mortgage;
(m) Liens on the property of StoneSub securing
obligations of StoneSub incurred pursuant to the Accounts
Receivable Financing Program and Liens in favor of StoneSub
granted by the Borrower or any Participating Subsidiary with
respect to Receivables purportedly sold to StoneSub by the
Borrower or any Participating Subsidiary pursuant to the
Accounts Receivable Financing Program in order to evidence the
right, title and interest of StoneSub in and to such
Receivables;
(n) Liens for Indebtedness for Money Borrowed
permitted by Section 5.2.2(r) provided that such Liens attach
only to unearned and return premiums, dividends and loss
payments which reduce the unearned premiums under insurance
policies the premiums of which have been financed with such
Indebtedness for Money Borrowed;
(o) Liens (other than those listed in clauses (a)
through (n) above) securing Indebtedness for Money Borrowed to
the extent such Liens are permitted by each of the Specified
Senior Indentures (or any other indenture or similar agreement
or instrument entered into at any time by the Borrower or any
of its Subsidiaries) as in effect from time to time, provided
such Liens do not (i) extend to property securing all or any
part of the Obligations and (ii) secure Indebtedness for Money
Borrowed which exceeds $350 million in aggregate principal
amount outstanding at any time;
(p) Liens securing Indebtedness for Money Borrowed
permitted by Section 5.2.2(k), provided that at the time of
creation thereof, such Liens do not extend to property
securing all or any part of the Obligations;
(q) Liens securing the First Mortgage Notes
pursuant to the First Mortgage Note Documents as in effect on
the Closing Date, including substitutions and replacements
permitted thereby;
(r) extensions, renewals or replacements of any
Lien referred to in clauses (a) through (q) above, provided
that the principal amount of the Indebtedness or obligation
secured thereby is not increased and that any such extension,
renewal or replacement is limited to the property originally
encumbered thereby;
(s) Liens on an account maintained by Stone-Canada
or an escrow agent therefor or Liens on amounts held back by
S-CC, in any case for the payment of certain liabilities
identified at the time of the December 1993 transfer of Stone-
Canada's assets to S-CC in compliance with and to the extent
required by the bulk sales provisions of the Civil Code of
Lower Canada (Quebec); and
(t) to the extent permitted by each of the
Specified Senior Indentures (or such other indenture or
similar agreement or instrument entered into at any time by
the Borrower or any of its Subsidiaries), any trust created in
connection with or pursuant to any Abitibi Sale/Monetization
to hold in trust Abitibi Shares constituting Monetized Assets
with respect to such Abitibi Sale/Monetization for the benefit
of holders of any security, instrument or other right issued
or sold in such Abitibi Sale/Monetization until such time as
the right to convert or exchange is exercised by such holders.
"Permitted Preferred Stock" means preferred or
preference stock of the Borrower so long as and to the extent
that such preferred or preference stock is not subject to a
sinking fund payment or other mandatory redemption or payment
prior to January 15, 2004.
"Permitted Uses" means (i) for ongoing working
capital and general corporate purposes of the Borrower, (ii)
the making or incurrence of Capital Expenditures and/or
Investments in excess of the annual limitations (and without
reduction of the annual permitted basket amounts) set forth in
Sections 5.2.7(d) and 5.2.11, and (iii) the prepayment of any
maturity or maturities of debt securities of the Borrower,
including the payment of principal, stated premium, if any,
and interest thereon.
"Person" means an individual or a corporation,
partnership, trust, limited liability company, incorporated or
unincorporated association, joint venture, joint stock
company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"Plan" means any plan described in Section 4021(a)
of ERISA and not excluded pursuant to Section 4021(b) thereof,
which may be or has been established or maintained, or to
which contributions are or have been made, by the Borrower or
any of its Subsidiaries or any ERISA Affiliate, but not
including any Multiemployer Plan.
"Plan Administrator" has the meaning assigned to
the term "administrator" in Section 3(16)(A) of ERISA.
"Plan Sponsor" has the meaning assigned to the term
"plan sponsor" in Section 3(16)(B) of ERISA.
"Pledge Agreements" means, collectively, (i) the
Pledge Agreement in substantially the form of Exhibit 1.1(f)-A
hereto dated as of the Restatement Date between the Borrower
and the Agent, (ii) the Pledge Agreement in substantially the
form of Exhibit 1.1(f)-B hereto dated as of the Third
Restatement Date between the Borrower and the Agent and (iii)
any other Pledge Agreement executed by the Borrower or any
Subsidiary to secure all or any portion of the Obligations
after the Restatement Date, in each case, as amended,
supplemented, restated or otherwise modified from time to
time.
"Prime Rate" means at any time, the greater of (i)
the rate which BT announces from time to time as its prime
lending rate, as in effect from time to time, and (ii) the
Federal Funds Rate plus one-half of 1% per annum. The Prime
Rate is a reference rate and does not necessarily represent
the lowest or best rate actually charged to any customer. BT
may make commercial loans or other loans at rates of interest
at, above or below the Prime Rate.
"Prime Rate Additional Term Loan" means the
Additional Term Loan or any portion thereof during any period
in which it bears interest at a rate determined with reference
to the Prime Rate.
"Prime Rate D Tranche Term Loan" means the D
Tranche Term Loan or any portion thereof during any period in
which it bears interest at a rate determined with reference to
the Prime Rate.
"Prime Rate E Tranche Term Loan" means the E
Tranche Term Loan or any portion thereof during any period in
which it bears interest at a rate determined with reference to
the Prime Rate.
"Prime Rate Loan" means any Loan which bears
interest at a rate determined with reference to the Prime
Rate.
"Prime Rate Revolving Loan" means a Revolving Loan
or any portion thereof during any period in which it bears
interest at a rate determined with reference to the Prime
Rate.
"Prime Rate Supplemental Revolving Loan" means a
Supplemental Revolving Loan or any portion thereof during any
period in which it bears interest at a rate determined with
reference to the Prime Rate.
"Prime Rate Term Loan" means the Term Loan or any
portion thereof during any period in which it bears interest
at a rate determined with reference to the Prime Rate.
"Quarterly Payment Date" means the 25th day of
March, June, September and December of each year.
"Real Properties" shall mean each parcel of real
property (including any Timberland Property), including any
paper product manufacturing facility or converting facility
thereon and any leasehold interest therein, identified on
Schedule 4.21(a), together with all fixtures thereon.
"Receivables" has the meaning assigned to that term
in the definition of Accounts Receivable Financing Program.
"Receivables Financing" has the meaning assigned to
that term in the definition of Accounts Receivable Financing
Program.
"Reference Banks" means, collectively, BT, The
Chase Manhattan Bank and The First National Bank of Chicago
and any successor reference bank determined pursuant to
Section 2.8(j).
"Refunded Swing Line Loans" is defined in Section
2.11(c).
"Register" is defined in Section 9.12(h).
"Registered Note" is defined in Section 9.12(h).
"Registered Noteholder" is defined in Section
9.12(h).
"Regulation D" means Regulation D of the Board as
from time to time in effect and any successor to all or a
portion thereof establishing reserve requirements.
"Related Transactions" means, collectively, (i) the
execution and delivery of the Basic Agreements, the
consummation of the Mergers pursuant to the Merger Documents,
the issuance and sale of the Senior Notes and First Mortgage
Notes pursuant to the Senior Note Documents and the First
Mortgage Note Documents, respectively, the funding of the Term
Loan and each Borrowing under the Revolving Loan and Swing
Line Loan (if any) and each issuance of a Letter of Credit (if
any) on the Closing Date, the consummation of the Debt
Refinancing pursuant to the Debt Refinancing Documents, the
Stone Savannah Transactions and the payment of all fees, costs
and expenses associated with all of the foregoing, and (ii)
the execution and delivery of the Smurfit Merger Documents and
the Capital Infusion Documents, the consummation of the
Smurfit Merger pursuant to the Smurfit Documents and the
Capital Infusion pursuant to the Capital Infusion Documents,
and the payment of all fees, costs and expenses associated
with all of the foregoing.
"Release" means release, spill, emission, leaking,
pumping, pouring, emptying, dumping, injection, deposit,
disposal, discharge, dispersal, escape, leaching or migration
into the indoor or outdoor environment or into or out of any
Property of the Borrower or its Subsidiaries, including the
movement of Contaminants through or in the air, soil, surface
water, groundwater or Property of the Borrower or its
Subsidiaries.
"Remedial Action" means actions required to (i)
clean up, remove, treat or in any other way address
Contaminants in the indoor or outdoor environment; (ii)
prevent or minimize the Release or threat of Release of
Contaminants so they do not migrate or endanger or threaten to
endanger public health or welfare or the indoor or outdoor
environment; or (iii) perform pre-remedial studies and
investigations and post-remedial monitoring and care.
"Replaced Lender" is defined in Section 2.14.
"Replacement Lender" is defined in Section 2.14.
"Reportable Event" means a "reportable event"
described in Section 4043(b) of ERISA or in the regulations
thereunder or receipt of a notice of withdrawal liability or
reorganization with respect to a Multiemployer Plan pursuant
to Section 4202 or 4242 of ERISA.
"Required Lenders" means, as of the date of
determination thereof, the Lenders having greater than 50% of
the sum of (i) the aggregate principal amount of loans and
other extensions of credit then outstanding under any of the
Loan Documents plus (ii) the aggregate amount of the remaining
available commitments of the Lenders under any of the Loan
Documents; provided, however, that for purposes of determining
the amount of a Revolving Lender's Loans, each Revolving
Lender shall be deemed to hold the principal amount of Swing
Line Loans and the amount of L/C Obligations and Florence L/C
Obligations equal to its Revolving Loan Pro Rata Share of the
Swing Line Loans, L/C Obligations and Florence Obligations
then outstanding.
"Responsible Officer" means, with respect to any
Person, any of the chairman of the board of directors, the
chief executive officer, chief operating officer, chief
financial officer, any executive vice president, any vice
president, treasurer, secretary or any other similar officer
or position of such Person.
"Restatement Date" is defined in the Recitals to
this Agreement.
"Restricted Subsidiary" means, collectively, (i) S-
CC upon the Borrower acquiring all of its outstanding shares
of capital stock and (ii) Stone Container GmbH and each of its
Subsidiaries.
"Retail Bag Joint Venture" is defined in Section
5.2.7(q).
"Revolver Termination Date" means April 1, 2000,
provided that the Revolver Termination Date shall be extended
to December 31, 2000 if the Term Loan is repaid in full on or
prior to April 1, 2000 and no Unmatured Event of Default or
Event of Default shall have occurred and be continuing on
April 1, 2000.
"Revolving Lender" means, at any time, any Lender
which then has a Revolving Loan Commitment or is owed a
Revolving Loan.
"Revolving Loan Availability Ratio" means, on any
date of determination, the ratio of the Total Available
Revolving Commitment to the Total Revolving Loan Commitments.
"Revolving Loan Commitment" means, with respect to
any Lender, the obligation of such Lender to (i) make
Revolving Loans to the Borrower, (ii) participate in Swing
Line Loans made by the Swing Line Lender and (iii) participate
in Letters of Credit issued by the Facing Agent for the
account of the Borrower, in an aggregate principal amount
and/or Stated Amount at any one time outstanding not to exceed
the amount set forth opposite such Lender's name on
Schedule 1.1(a) hereto under the caption "Amount of Revolving
Loan Commitment." Each Revolving Loan Commitment shall be
subject to reduction from time to time in accordance with the
terms of this Agreement.
"Revolving Loan Commitment Fee" is defined in
Section 3.7(a).
"Revolving Loan Obligations" means the obligations
of the Borrower to repay principal, and pay interest, on the
Revolving Loans pursuant to Section 2.2(b).
"Revolving Loan Pro Rata Share" means, with respect
to any Revolving Lender and any described aggregate or total
amount, the amount equal to the result obtained by multiplying
such aggregate or total amount by a fraction, the numerator of
which shall be such Lender's Revolving Loan Commitment in
effect at the time (or, if the Total Revolving Loan
Commitments have been terminated, the principal amount of such
Lender's Revolving Loans then outstanding) and the denominator
of which shall be the Total Revolving Loan Commitments in
effect at the time (or, if the Total Revolving Loan
Commitments have been terminated, the aggregate principal
amount of all Revolving Loans then outstanding).
"Revolving Loans" means, individually and
collectively, each of the loans by each of the Revolving
Lenders to the Borrower in accordance with Section 2.1(b),
which Revolving Loans shall from time to time be comprised of
Prime Rate Loans or Eurodollar Rate Loans or any combination
of the foregoing.
"Revolving Note" is defined in Section 2.2(b).
"Revolving Portion" is defined in Section 3.6(c).
"S-CC" means Stone-Consolidated Corporation, a
Canadian federal corporation, and any successor thereto,
including Abitibi-Consolidated Inc., a Canadian federal
corporation resulting from the amalgamation of S-CC and
Abitibi-Price Inc.
"S-CC Debt Documents" means the documentation
pursuant to which S-CC has incurred the Indebtedness for Money
Borrowed permitted by Sections 5.2.2(u), as such documentation
may be amended, supplemented, restated or otherwise modified
from time to time, and including documentation related to
refinancings of such Indebtedness for Money Borrowed permitted
by such Section.
"Second Restated Credit Agreement" is defined in
the Recitals to this Agreement.
"Second Restatement Date" means March 22, 1996.
"Second Restatement Lenders" is defined in the
Recitals of this Agreement.
"Security Agreements" means, collectively, (i) the
Security Agreement in substantially the form of Exhibit 1.1
(a) hereto dated as of the Closing Date between the Borrower
and the Agent, (ii) the Security Agreement in substantially
the form of Exhibit 1.1(b)-A hereto dated as of the Closing
Date between Stone Savannah and the Agent, (iii) the Security
Agreement in substantially the form of Exhibit 1.1(b)-B hereto
dated as of the Closing Date between Stone Southwest and the
Agent, (iv) any other Security Agreement executed by the
Borrower or any Subsidiary to secure all or any portion of the
Obligations after the Closing Date and (v) any Supplemental
Pledge Agreement, in each case, as amended, supplemented,
restated or otherwise modified from time to time.
"Seminole Kraft" means Seminole Kraft Corporation,
a Delaware corporation.
"Senior Indebtedness" has the meaning assigned to
that term in each of the Senior Subordinated Note Indenture,
the Senior Subordinated (11-1/2%) Indenture, the Convertible
Indenture, the Convertible Subordinated Indenture and, from
and after the merger of Stone Southwest with and into the
Borrower, the Stone Southwest Indenture.
"Senior Indentures" means, collectively, the Senior
Note Indenture and the Indenture dated November 1, 1991
between the Borrower and The Bank of New York, as trustee,
pursuant to which the Borrower issued its 11-7/8% Senior Notes
due December 1, 1998.
"Senior Note Documents" means the Senior Note
Indenture, the Senior Notes and all other documents,
instruments and agreements now or hereafter evidencing all or
any portion of the Borrower's obligations under the Senior
Note Indenture and the Senior Notes, including any documents,
instruments or agreements evidencing the amendment,
refinancing, modification, replacement, renewal, restatement,
refunding, deferral, extension, supplement, reissuance or
resale thereof.
"Senior Note Indenture" means the Indenture dated
as of October 12, 1994 between the Borrower and The Bank of
New York, as Trustee, pursuant to which the Borrower issued
its Senior Notes.
"Senior Notes" means, collectively, the Borrower's
11-1/2% Senior Notes due October 1, 2004 in the aggregate
principal amount of $200 million and issued pursuant to the
Senior Note Indenture, as amended, supplemented, restated or
otherwise modified from time to time.
"Senior Subordinated Note Indenture" means the
Indenture dated as of March 15, 1992 between the Borrower and
The Bank of New York, as Trustee, pursuant to which the
Borrower issued its $275 million of Units (consisting of (i)
Series B 10-3/4% Senior Subordinated Debentures due April 1,
2002 and (ii) 1-1/2% Supplemental Interest Certificates) and
its 11% Senior Subordinated Notes due August 15, 1999, as
amended, supplemented, restated or otherwise modified from
time to time.
"Smurfit Merger" means the merger of JSC
Acquisition with and into the Borrower pursuant to the terms
and conditions of the Smurfit Merger Documents.
"Smurfit Merger Documents" means that certain
Agreement and Plan of Merger (the "Agreement and Plan of
Merger") dated as of May 10, 1998 among Jefferson Smurfit
Corporation, JSC Acquisition and the Borrower, as amended by
Amendment No. 1 dated as of October 2, 1998, together with all
agreements, documents, resolutions, consents, instruments and
certificates executed in order to effect the transactions
contemplated by the Agreement and Plan of Merger.
"Specified Senior Indentures" means each of (a) the
Senior Indentures, (b) the First Mortgage Note Indenture, (c)
the Senior Subordinated Note Indenture, (d) the Rating
Adjustable Senior Note Indenture dated July 24, 1996 for notes
due 2016 (obligation of the Borrower), (e) the Senior Note
Indenture dated August 16, 1996 for notes due 2006 (primary
obligation of Stone Container Finance Company of Canada,
guaranteed by the Borrower) and (f) any other similar
indenture, agreement or instrument entered into at any time by
the Borrower or any of its Subsidiaries.
"SSCC" means Smurfit-Stone Container Corporation, a
Delaware corporation formerly named Jefferson Smurfit
Corporation.
"Standby Letters of Credit" means any of the
standby Letters of Credit issued by the Facing Agent for the
account of the Borrower pursuant to Section 2.12.
"Stated Amounts" means, with respect to any letter
of credit, the stated or face amount of such letter of credit
to the extent available at the time for drawing (subject to
presentment of all requisite documents), as the same may be
increased or decreased from time to time in accordance with
the terms of such Letter of Credit.
"Stone-Canada" means Stone Container (Canada) Inc.,
a Canadian federal corporation and formerly named Stone-
Consolidated Inc., and its successors and assigns.
"Stone Container GmbH" means Stone Container GmbH,
a corporation organized under the laws of the Federal Republic
of Germany, 100% of whose issued and outstanding capital stock
is owned of record by Stone-Canada.
"Stone Finance" means Stone Container Finance
Company of Canada, an unlimited liability company duly
organized and existing under the laws of Nova Scotia, and its
successors and assigns.
"Stone Merger Subsidiaries" is defined in the
definition of Certificates of Ownership and Merger.
"Stone Savannah" means Stone Savannah River Pulp &
Paper Corporation, a Delaware corporation, and any successor
thereto.
"Stone Savannah Credit Agreement" means the Credit
Agreement dated as of December 9, 1988, as amended, by and
among Stone Savannah, Manufacturers Hanover Trust Company and
Citibank, N.A., as co-managers, the financial institutions
signatory thereto and Citibank, N.A., as agent.
"Stone Savannah Senior Subordinated Notes" means
the 14.125% Senior Subordinated Notes due December 15, 2000 of
Stone Savannah issued pursuant to the Stone Savannah Senior
Subordinated Notes Indenture.
"Stone Savannah Senior Subordinated Notes
Indenture" means the Indenture dated as of December 15, 1988,
between Stone Savannah and The Bank of New York (as successor
to Manufacturers Hanover Trust Company), as Trustee, in
respect of the Stone Savannah Senior Subordinated Notes, as
amended from time to time.
"Stone Savannah Transactions" is defined in Section
5.1.13.
"Stone Snowflake" means Stone Snowflake Newsprint
Company, a Delaware corporation which is the "newly formed
Wholly-Owned Subsidiary of the Borrower" referenced in the
second sentence of Section 5.2.12."
"Stone Snowflake Cash Collateral Agreement" means
that certain Stone Snowflake Cash Collateral Agreement dated
as of October 14, 1998 between the Borrower and the Agent for
the benefit of the "Beneficiaries" (as defined in the Stone
Snowflake Pledge Agreement), as amended, restated,
supplemented or otherwise modified from time to time.
"Stone Snowflake Guaranty" means that certain
Subsidiary Guaranty entered into by Stone Snowflake and dated
as of December 4, 1997, as amended, restated, supplemented or
otherwise modified from time to time.
"Stone Snowflake Pledge Agreement" means that
certain Pledge Agreement dated as of December 4, 1997 by the
Borrower in favor of the Agent pursuant to which the Borrower
pledged as collateral, among other things, all of the
outstanding shares of the capital stock of Stone Snowflake, as
amended, restated, supplemented or otherwise modified from
time to time.
"Stone Snowflake Sale Transaction" means (i) the
sale by Stone Snowflake to Abitibi Consolidated Sales
Corporation or an Affiliate thereof ("Purchaser") of all or
substantially all of the assets of Stone Snowflake and (ii)
the sale by the Borrower to Purchaser of all of the capital
stock of Apache Railway Corporation, an Arizona corporation
and a Wholly-Owned Subsidiary of the Borrower, for aggregate
gross cash consideration of not less than $240 million and the
entering into a lease agreement and other related agreements,
all pursuant to documentation reasonably satisfactory to the
Agent.
"Stone Southwest" means Stone Southwest, Inc., a
Delaware corporation.
"Stone Southwest Indenture" means the Indenture
dated as of September 15, 1983 between Stone Southwest (as
successor to Southwest Forest Industries, Inc.) and National
Westminster Bank USA (as successor to Bankers Trust Company),
as Trustee, as amended, restated or otherwise modified from
time to time.
"Stone Southwest Merger Subsidiaries" is defined in
the definition of Certificates of Ownership and Merger.
"StoneSub" means, individually and collectively,
one or more corporations organized under the laws of one of
the United States of America or Canada which are special
purpose Wholly-Owned Subsidiaries of the Borrower formed to
engage in the Accounts Receivable Financing Program, and
including any Wholly-Owned Subsidiary formed as a holding
company, the only assets of which consist of the capital stock
of such subsidiaries formed to engaged in the Accounts
Receivables Financing Program.
"Subordinated Debt" means (i) the Borrower's 11%
Senior Subordinated Notes due August 15, 1999 and 10-3/4%
Senior Subordinated Debentures due April 1, 2002 issued
pursuant to the Senior Subordinated Note Indenture, (ii) the
Borrower's 8-7/8% Convertible Senior Subordinated Notes due
July 15, 2000 issued pursuant to the Convertible Indenture,
(iii) the Borrower's 6-3/4% Convertible Subordinated
Debentures due February 15, 2007 issued pursuant to the
Convertible Subordinated Indenture, (iv) the Borrower's $275
million of Units (consisting of (A) Series B 10-3/4% Senior
Subordinated Debentures due 2002 and (B) 1-1/2% Supplemental
Interest Certificates) issued pursuant to the Senior
Subordinated Note Indenture and (v) any other Indebtedness for
Money Borrowed of the Borrower which is subordinate and junior
in right of payment to the prior payment in full of all
amounts owing to the Lenders under the Loan Documents pursuant
to an agreement in form, terms and substance satisfactory to
the Required Lenders.
"Subsidiary" of any Person shall mean and include
(i) 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 stock of 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 (ii) any partnership, association, joint
venture, limited liability company or other entity in which
such Person directly or indirectly through Subsidiaries, has
more than a 50% equity interest at the time; provided,
however, that the Retail Bag Joint Venture shall not be deemed
to be a subsidiary for any purpose of this Agreement so long
as the Borrower is only entitled to elect 50% or less of the
members of the board of directors (or the governing body) of
the Retail Bag Joint Venture and the assets, liabilities and
results of operations of which are not required to be
consolidated with the Borrower's assets, liabilities and
results of operations under generally accepted accounting
principles. Unless otherwise expressly provided, all
references herein to a "Subsidiary" shall mean a Subsidiary of
the Borrower. Notwithstanding the foregoing, SVCPI shall not
be deemed to be a Subsidiary for any purposes of this
Agreement (including without limitation the definition of
"Wholly-Owned Subsidiary") regardless of the fact that Stone-
Canada and/or Affiliates of Stone-Canada may at any time own
a majority or all of the outstanding voting shares of SVCPI,
provided, however that in the event Stone-Canada and/or
Affiliates of Stone-Canada become the owner of a majority of
the outstanding voting shares of SVCPI, then (i) SVCPI shall
be deemed to be a Subsidiary for purposes of Sections
5.1.1(f), (g) and (h), 5.1.6 and 5.1.7 and (ii) for purposes
of the financial statements referred to in Sections 5.1.1(b),
(c), (d) and (e), SVCPI shall be accounted for utilizing the
equity method.
"Subsidiary Guarantees" means, collectively, (i)
the Subsidiary Guarantees each in substantially the form of
Exhibit 1.1 (c) hereto dated as of the Closing Date and
executed by Stone Savannah and Stone Southwest in favor of the
Agent and the Lenders and (ii) any Subsidiary Guarantee
executed by any Subsidiary of the Borrower after the Closing
Date pursuant to Section 5.1.16, in each case as amended,
supplemented, restated or otherwise modified from time to
time.
"Substitute Collateral" is defined in Section
9.13(c).
"Supplemental Pledge Agreement" means a pledge or
security agreement in a form reasonably acceptable to the
Agent pursuant to which the recipient of any equity interest
or other non-cash consideration described in the penultimate
sentence of Section 5.2.8 or the penultimate sentence of
Section 5.2.12 pledges or hypothecates such equity interest or
non-cash consideration to the Agent for the benefit of the
Lenders to secure the "Obligations" (as defined in the
Security Agreements).
"Supplemental Revolver Termination Date" means
April 1, 2000, provided that the Supplemental Revolver
Termination Date shall be extended to December 31, 2000 if the
Term Loan is repaid in full on or prior to April 1, 2000 and
no Unmatured Event of Default or Event of Default shall have
occurred and be continuing on April 1, 2000.
"Supplemental Revolving Lender" means, at any time,
any Lender which then has a Supplemental Revolving Loan
Commitment or is owed a Supplemental Revolving Loan.
"Supplemental Revolving Loan Availability Ratio"
means, on any date of determination, the ratio of the Total
Available Supplemental Revolving Commitment to the Total
Supplemental Revolving Loan Commitments.
"Supplemental Revolving Loan Commitment" means,
with respect to any Lender, the obligation of such Lender to
make Supplemental Revolving Loans to the Borrower in an
aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on
Schedule 1.1(f) hereto under the caption "Amount of
Supplemental Revolving Loan Commitment." Each Supplemental
Revolving Loan Commitment shall be subject to reduction from
time to time in accordance with the terms of this Agreement.
"Supplemental Revolving Loan Commitment Fee" is
defined in Section 3.7(b).
"Supplemental Revolving Loan Obligations" means the
obligations of the Borrower to repay principal, and pay
interest, on the Supplemental Revolving Loans pursuant to
Section 2.2(e).
"Supplemental Revolving Loan Pro Rata Share" means,
with respect to any Supplemental Revolving Lender and any
described aggregate or total amount, the amount equal to the
result obtained by multiplying such aggregate or total amount
by a fraction, the numerator of which shall be such Lender's
Supplemental Revolving Loan Commitment in effect at the time
(or, if the Total Supplemental Revolving Loan Commitments have
been terminated, the principal amount of such Lender's
Supplemental Revolving Loans then outstanding) and the
denominator of which shall be the Total Supplemental Revolving
Loan Commitments in effect at the time (or, if the Total
Supplemental Revolving Loan Commitments have been terminated,
the aggregate principal amount of all Supplemental Revolving
Loans then outstanding).
"Supplemental Revolving Loans" means, individually
and collectively, each of the loans by each of the
Supplemental Revolving Lenders to the Borrower in accordance
with Section 2.1(d), which Supplemental Revolving Loans shall
from time to time be comprised of Prime Rate Loans or
Eurodollar Rate Loans or any combination of the foregoing.
"Supplemental Revolving Note" is defined in Section
2.2(e).
"SVCPI" means Stone Venepal (Celgar) Pulp, Inc., a
Canadian federal corporation.
"Swing Line Commitment" means, with respect to the
Swing Line Lender at any date, the obligation of the Swing
Line Lender to make Swing Line Loans pursuant to Section 2.11
in the amount referred to therein.
"Swing Line Lender" means BT.
"Swing Line Loans" is defined in Section 2.11(a).
"Swing Line Loan Obligations" means the obligations
of the Borrower to repay principal, and pay interest, on the
Swing Line Loans pursuant to Section 2.2(c).
"Swing Line Loan Participation Certificate" means a
certificate, substantially in the form of Exhibit 2.11(d).
"Swing Line Note" is defined in Section 2.2(c).
"Taxes" is defined in Section 3.11(a).
"Term Lender" means, at any time, any Lender which
then has a Term Loan Commitment or is owed any portion of the
Term Loan.
"Term Loan" means, individually and collectively,
the loans made by each of the Term Lenders to the Borrower in
accordance with Section 2.1(a), which Term Loan shall from
time to time be comprised of Prime Rate Loans or Eurodollar
Rate Loans or any combination of the foregoing.
"Term Loan Commitment" means, with respect to each
Term Lender, the principal amount set forth opposite such Term
Lender's name on Schedule 1.1(a) hereto under the caption
"Amount of Term Loan Commitment."
"Term Loan Maturity Date" means April 1, 2000.
"Term Loan Obligations" means the obligations of
the Borrower to repay principal, and pay interest, on the Term
Loan pursuant to Section 2.2(a).
"Term Loan Pro Rata Share" means, with respect to
any Term Lender and any described aggregate or total amount,
the amount equal to the result obtained by multiplying such
described aggregate or total amount by a fraction, the
numerator of which shall be the portion of the Term Loan made
by such Lender and outstanding at the time and the denominator
of which shall be the aggregate amount of the Term Loan made
by all of the Term Lenders and outstanding at the time.
"Term Note" is defined in Section 2.2(a).
"Third Restatement Date" means June 19, 1997.
"Timberland Property" shall mean each parcel of
realty identified as such on Schedule 4.21(c).
"Total Available Revolving Commitment" means, at
the time any determination thereof is made, the sum of the
respective Available Revolving Commitments of the Revolving
Lenders at such time.
"Total Available Supplemental Revolving Commitment"
means, at the time any determination thereof is made, the sum
of the respective Available Supplemental Revolving Commitments
of the Supplemental Revolving Lenders at such time.
"Total Consolidated Indebtedness for Money
Borrowed" means, subject to the last sentence of Section 1.2,
the total of all Indebtedness for Money Borrowed of the
Borrower and its Subsidiaries.
"Total Maximum Commitment" means, at the time any
determination thereof is to be made, the sum of the respective
Maximum Commitments, Additional Term Loan Commitments,
Supplemental Revolving Loan Commitments, D Tranche Term Loan
Commitments and E Tranche Term Loan Commitments of the Lenders
at such time.
"Total Revolving Loan Commitments" means, at any
time any determination thereof is to be made, the sum of the
respective Revolving Loan Commitments of the Revolving Lenders
at such time.
"Total Supplemental Revolving Loan Commitments"
means, at any time any determination thereof is to be made,
the sum of the respective Supplemental Revolving Loan
Commitments of the Supplemental Revolving Lenders at such
time.
"Transaction Documents" means the Merger Documents,
the Senior Note Documents, the First Mortgage Note Documents,
the Debt Refinancing Documents, the Smurfit Merger Documents,
the Capital Infusion Documents and any other document,
instrument or agreement executed and/or delivered in
connection with the consummation of the Related Transactions.
"Transactions" is defined in Section 4.2.
"12-1/8% Subordinated Debentures" means the
Borrower's 12-1/8% Subordinated Debentures due September 15,
2001.
"Type" means any type of Loan, namely a Prime Rate
Loan or a Eurodollar Rate Loan (whether a Term Loan,
Additional Term Loan or Revolving Loan).
"Underfunded Plan" means any Plan the fair market
value of the assets of which does not exceed the present value
of the accrued benefits thereunder.
"Unmatured Event of Default" means an event, act or
occurrence which, with the giving of notice or the lapse of
time (or both), would become an Event of Default.
"U.S. Credit Agreement" means that certain Credit
Agreement dated as of March 1, 1989, executed as of October
25, 1993 and effective as an amended and restated agreement
effective as of December 17, 1993, as further amended, by and
among the Borrower, BT, as Agent, Citibank, N.A., Chemical
Bank (as successor to Manufacturers Hanover Trust Company) and
The First National Bank of Chicago, as Co-Agents, and certain
financial institutions signatory thereto.
"Waived Proceeds" is defined in Section 3.6(f).
"Waiver Fee" is defined in Section 3.9.
"Wholly-Owned Subsidiary" means, with respect to
any Person, at any time any Subsidiary of such Person, all of
the outstanding shares of capital stock of which (other than
qualifying shares required to be owned by directors) are at
the time owned directly by such Person and/or one or more
Wholly-Owned Subsidiaries of such Person. Unless otherwise
expressly provided, all references herein to a "Wholly-Owned
Subsidiary" shall mean a Wholly-Owned Subsidiary of the
Borrower.
"Withdrawal Liability" shall mean liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
"Y2K Problem" means any significant risk that
computer hardware, software or equipment containing embedded
microchips essential to the business or operations of the
Borrower or any of its Subsidiaries will not, in the case of
dates or time periods occurring after December 31, 1999,
function at least as efficiently and reliably in all material
respects as in the case of times or time periods occurring
before January 1, 2000, including the making of accurate leap
year calculations.
The foregoing definitions shall be equally
applicable to both the singular and plural forms of the
defined terms. The words "herein", "hereof" and words of
similar import as used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision in
this Agreement. Unless specifically stated to the contrary,
all references to "Sections," "subsections," "paragraphs,"
"Exhibits" and "Schedules" in this Agreement shall refer to
Sections, subsections, paragraphs, Exhibits and Schedules of
this Agreement unless otherwise expressly provided; references
to Persons include their respective permitted successors and
assigns or, in the case of governmental Persons, Persons
succeeding to the relevant functions of such persons; and all
references to statutes and related regulations shall include
any amendments of same and any successor statutes and
regulations.
