<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended: March 26, 2000 Commission File Number: 33-93494
- --------------------------------------------------------------------------------
CROWN PAPER CO.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Virginia 54-1752385
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4445 Lake Forest Drive, Cincinnati, OH 45242
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(513) 769-7555
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(Registrant's telephone number, including area code)
Not Applicable
- -------------------------------------------------------------------------------
(Former name, former address, and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
----- -----
Number of shares of no par value common stock outstanding as of the close of
business on May 5, 2000:
One (1) share, which is owned by Crown Vantage Inc.
---------------------------------------------------
<PAGE>
INDEX
CROWN PAPER CO.
PART I: Financial Information
Item 1. Financial Statements
. Condensed Consolidated Balance Sheets - March 26, 2000
and December 26, 1999.
. Condensed Consolidated Statements of Operations - First
quarter ended March 26, 2000 and March 28, 1999.
. Condensed Consolidated Statements of Cash Flows - Three
months ended March 26, 2000 and March 28, 1999.
. Notes to Condensed Consolidated Financial Statements.
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations.
PART II: Other Information
Item 6. Exhibits and Reports on Form 8-K
SIGNATURES
2
<PAGE>
PART I -- FINANCIAL INFORMATION
- ------
ITEM 1 -- FINANCIAL STATEMENTS
- ------
CROWN PAPER CO.
(Debtor-In-Possession)
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands of dollars)
<TABLE>
<CAPTION>
ASSETS March 26, 2000 December 26, 1999
-------------- -----------------
(Unaudited)
-----------
<S> <C> <C>
Current Assets:
Cash and cash equivalents $ 8,417 $ 2,434
Accounts receivable, net 49,836 36,871
Inventories 68,299 73,975
Prepaid expenses and other current assets 11,206 13,504
--------- ---------
Total current assets 137,758 126,784
========= =========
Property, plant and equipment, net 341,987 349,149
Other assets 53,327 54,106
Due from Parent 11,924 11,669
Intangibles, net 26,446 26,727
--------- ---------
Total Assets $ 571,442 $ 568,435
========= =========
LIABILITIES AND DEFICIT
Current Liabilities:
Accounts payable $ 15,306 $ 45,113
Accrued liabilities 36,605 57,161
Current portion of long-term debt 241,865 473,817
Liabilities subject to compromise 311,469 -
--------- ---------
Total current liabilities 605,245 576,091
Long-term debt 12,000 -
Accrued postretirement benefits other than pensions 79,896 80,436
Other long-term liabilities 13,361 25,076
--------- ---------
Total Liabilities 710,502 681,603
========= =========
Shareholder's Equity (Deficit):
Preferred Stock, no par value;
Authorized - 500,000 shares;
Issued and outstanding - None
Common Stock, no par value;
Authorized - 5,000 shares;
1 share outstanding at March 26, 2000
and December 26, 1999 139,136 139,012
Other comprehensive (loss):
Minimum Pension Liability <481> <481>
Cumulative foreign currency translation adjustment 177 658
Retained deficit <277,892> <252,357>
--------- ---------
<139,060> <113,168>
--------- ---------
Total Liabilities and Deficit $ 571,442 $ 568,435
========= =========
</TABLE>
See notes to condensed consolidated financial statements
3
<PAGE>
CROWN PAPER CO.
(Debtor-In-Possession)
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
For the First Quarter (13 weeks)
Ended March 26, 2000 and March 28, 1999
(in thousands of dollars, except per share)
<TABLE>
<CAPTION>
First Quarter
-------------------------
2000 1999
-------- ---------
<S> <C> <C>
(Unaudited )
Net sales $159,701 $201,165
Cost of goods sold 158,654 193,043
-------- --------
Gross margin 1,047 8,122
Selling and administrative expenses <12,452> <15,424>
Other operating income, net 2,048 -
Property tax accrual reversal - 8,957
Adjustment of assets held for sale to net realizable value - <16,175>
-------- --------
Operating Loss <9,357> <14,520>
Interest expense <13,578> <12,426>
Other income, net 249 375
Reorganization expense <2,703> -
-------- --------
Loss before income taxes <25,389> <26,571>
Provision for income taxes 146 432
-------- --------
NET LOSS $<25,535> $<27,003>
======== ========
</TABLE>
See notes to condensed consolidated financial statements.
4
<PAGE>
CROWN PAPER CO.
(Debtor-In-Possession)
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Three Months (13 weeks)
Ended March 26, 2000 and March 28, 1999
(in thousands of dollars)
<TABLE>
<CAPTION>
Three Months
------------------------
2000 1999
---------- ---------
(Unaudited)
<S> <C> <C>
Cash Provided by (Used for) Operating Activities:
Net loss $ <25,535> $ <27,003>
Items not affecting cash:
Depreciation and cost of timber harvested 13,930 16,236
Amortization of goodwill and other intangibles 281 281
Non-cash interest and other 667 566
Deferred income taxes 221 534
Property tax accrual reversal - <8,957>
Adjustment of assets held for sale to net realizable value - 16,175
Changes in current assets and liabilities:
Accounts receivable <12,965> <420>
Inventories 5,676 703
Other current assets <120> 440
Accounts payable 7,063 1,481
Accrued interest 8,594 <7,828>
Other current liabilities <2,922> <4,768>
Other, net <9,178> <3,219>
----------- ----------
Cash Used for Operating Activities <14,288> <15,779>
========== =========
Cash Provided by (Used for) Investing Activities:
Expenditures for property, plant and equipment <6,764> <7,341>
Other, net <4> 794
---------- ---------
Cash Used for Investing Activities <6,768> <6,547>
========== =========
Cash Provided by (Used for) Financing Activities:
Proceeds from revolving line of credit 23,250 60,000
Payments for revolving line of credit <5,000> <36,000>
Proceeds from DIP Financing, net 8,685 -
Other, net 104 <250>
---------- ----------
Cash Provided by Financing Activities 27,039 23,750
========== ==========
Increase in cash and cash equivalents 5,983 1,424
Cash and cash equivalents at beginning of year 2,434 9,806
----------- ----------
Cash and cash equivalents at end of period $ 8,417 $ 11,230
========== =========
</TABLE>
See notes to condensed consolidated financial statements.
5
<PAGE>
CROWN PAPER CO.
(Debtor-in-Possession)
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
NOTE 1 -- ORGANIZATION AND BASIS OF PRESENTATION
- ------
The accompanying unaudited condensed consolidated financial statements include
the consolidated operations, assets and liabilities of Crown Paper Co., and
Crown Paper Co.'s consolidated subsidiaries (The "Company"). The Company is a
wholly owned subsidiary of Crown Vantage Inc. ("Crown Vantage" or the "Parent").
The sustained losses in recent years resulted in the violation of a tangible net
worth covenant of the senior secured credit facility (the "Credit Agreement")
that occurred upon closing the accounting records for October 1999. The Company
obtained a waiver for this violation and renegotiated a series of amendments to
the Credit Agreement to provide sufficient liquidity for operations through
early March 2000. The amount of liquidity available under these new amendments
was significantly reduced from the levels of liquidity available prior to the
tangible net worth covenant violation. The amendments did not provide for
sufficient liquidity for the Company to pay its interest payment on the 11%
Senior Subordinated Notes due March 1, 2000. As a result of filing for
bankruptcy and not making the March interest payments, the Company is in default
of all debt agreements. On March 15, 2000, the Company, except for its
operating subsidiary in the United Kingdom, filed a voluntary petition seeking
reorganization under Chapter 11 of Title 11 ("Chapter 11") of the United States
Bankruptcy Code (the "Bankruptcy Code") in the United States Bankruptcy Court
for the Northern District of California, Oakland Division (the "Bankruptcy
Court"). An Official Committee of Unsecured Creditors (the "Committee"), which
represents the interests of all unsecured creditors of the Debtors, has been
appointed. Also, the receivable securitization agreement between Crown Paper,
various lenders and Crown Paper Funding Corp. (a bankruptcy remote and wholly
owned subsidiary of Crown Paper) has been terminated due to the filing of
Chapter 11. All receivables sold through this agreement are being settled as
collected and no new receivables will be sold as of the petition date and
beyond. As of March 26, 2000, $13.0 million of the receivables sold had been
settled and the remaining amount of $18.6 million is expected to be settled
during the second quarter of 2000.
As a result of the filing, liabilities in the amount of $311.5 million are
subject to compromise under a plan of reorganization. The composition of the
liabilities subject to compromise is outlined below:
<TABLE>
<CAPTION>
Liabilities Subject to
Compromise
-------------------------------
(thousands)
<S> <C>
Accounts payable $ 36,870
Senior subordinated notes, net 245,950
Accrued interest 15,693
Other liabilities 12,956
--------
Total liabilities subject to compromise $311,469
--------
</TABLE>
To provide the Company with operating capital during the restructuring process,
the Company obtained a commitment of $100 million in debtor-in-possession
("DIP") financing from two lenders under the prepetition
6
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Credit Agreement including the agent bank. The Company is in the process of
developing a restructuring program to reduce costs, improve operating
efficiencies and increase financial flexibility. A plan of reorganization is
being developed. The Company is in possession of its properties and assets and
continues to operate with its existing directors and officers as a debtor-in-
possession. As a debtor-in-possession, the Company is authorized to operate its
business, but may not engage in transactions outside of the normal course of
business without approval, after notice and hearing, of the Bankruptcy Court.
Pursuant to the provisions of the Bankruptcy Code, as of the petition date,
actions to collect prepetition indebtedness owed by the Company are stayed and
other prepetition contractual obligations may not be enforced against the
Company. In addition, as a debtor-in-possession, the Company has the right,
subject to the Bankruptcy Court's approval and certain other conditions, to
assume or reject any prepetition executory contracts and unexpired leases. As of
March 26, 2000, no action has occurred regarding executory contracts and
unexpired leases. Parties affected by these rejections may file claims with the
Bankruptcy Court in accordance with the reorganization process. The Company
cannot presently determine or reasonably estimate the ultimate liability that
may result from rejecting such contracts or leases or from the filing of claims,
and no provisions have been made for these items. Differences between amounts
reflected in such schedules and claims filed by creditors will be investigated
and amicably resolved or adjudicated before the Bankruptcy Court. The ultimate
amount and settlement terms for such liabilities are subject to a plan of
reorganization, and accordingly, are not presently determinable. The Bankruptcy
Court has approved payment of certain prepetition liabilities such as employee
wages and benefits. Furthermore, we expect the Bankruptcy Court to allow for the
retention of legal and financial professionals to advise in the bankruptcy
proceedings. The Company intends to present a plan of reorganization to the
Bankruptcy Court to reorganize the Company's business and to restructure the
Company's obligations.
The accompanying condensed consolidated financial statements have been prepared
in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for annual
financial statements. The condensed consolidated balance sheet as of December
26, 1999 was derived from audited financial statements, but does not include all
disclosures required by generally accepted accounting principles for annual
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three months ended March 26, 2000 are
not necessarily indicative of the results that may be expected for the year
ended December 31, 2000. For further information, refer to the consolidated
financial statements and footnotes thereto included in Crown Paper Co.'s Form
10-K for the year ended December 26, 1999.
NOTE 2 -- INCOME TAX
- ------
The tax provisions for March 26, 2000 and March 28, 1999 are for certain non-
income based state taxes and foreign income taxes. During the first quarters of
2000 and 1999 the Company recorded a $10.0 million and a $9.7 million valuation
allowance, respectively, against the deferred tax assets reducing the tax
benefit of the net operating loss to $0.
7
<PAGE>
NOTE 3 -- DEBT
- ------
<TABLE>
<CAPTION>
Consolidated debt consists of the following:
March 26 December 26
2000 1999
--------- ------------
(in thousands of dollars)
<S> <C> <C>
Credit Facility:
Revolving line of credit $122,750 $104,500
Term Loan B 80,007 80,216
-------- --------
202,757 184,716
11% Senior Subordinated Notes* 250,000 250,000
Industrial Revenue Bonds 39,108 39,101
Debtor-in-Possession financing 12,000 0
-------- --------
503,865 473,817
Less current portion 491,865 473,817
-------- --------
Long-term debt $ 12,000 $ 0
======== ========
</TABLE>
* Liability subject to compromise
On March 15, 2000, the Company filed a voluntary petition seeking reorganization
under Chapter 11 of Title 11 of the United States Bankruptcy Code in the United
States Bankruptcy Court for the Northern District of California, Oakland
Division. As a result of the Company's review of its debt covenants, the
bankruptcy filing and cross acceleration provisions of various debt covenants,
all debt, except for the DIP financing, is considered current.
<TABLE>
<CAPTION>
NOTE 4 -- INVENTORIES
- ------
March 26, 2000 December 26, 1999
-------------- -----------------
(in thousands of dollars)
<S> <C> <C>
Raw materials $ 19,934 $21,992
Work in process 4,601 5,163
Finished goods 33,436 35,977
Stores and supplies 20,750 20,418
-------- --------
78,721 83,550
Reduction to state inventories at last-in, first-out cost <10,422> <9,575>
-------- --------
$ 68,299 $73,975
======== ========
</TABLE>
NOTE 6 -- LITIGATION AND ENVIRONMENTAL MATTERS
- ------
The Company is a party to various legal proceedings generally incidental to its
business and is subject to a variety of environmental protection statutes and
regulations. As is the case with other companies in similar industries, the
Company faces exposure from actual or potential claims and legal proceedings
involving environmental matters. Although the ultimate disposition of legal
proceedings cannot be predicted with certainty, it is the present opinion of the
Company's management that the outcome of any claim that is pending or
threatened, either individually or on a combined basis, will not have a
materially adverse effect on the consolidated financial position of the Company
but could materially affect consolidated results of operations in a given year.
The Company has accrued $10.1 million at March 26, 2000 and $10.8 million
December 26, 1999 primarily for estimated landfill site restoration, post-
closure and monitoring costs. The Company anticipates to accrue on average less
than $.2 million per year over the approximately 2 to 47 year useful life of the
landfills with slightly higher accruals expected in the next two years. Balances
will be paid out over an extended period of
8
<PAGE>
time ranging from 2000 through 2040 and beyond with no material payments
estimated for any given year. In addition, the Company has been identified as a
potentially responsible party ("PRP"), along with others, under the
Comprehensive Environmental Response, Compensation and Liability Act or similar
federal and state laws regarding the past disposal of wastes at 19 sites in the
United States. The Company has previously settled its remediation obligations at
13 of those sites. At 5 other sites, the Company is one of many potentially
responsible parties and its alleged contribution to the site and remediation
obligation is not considered significant. At one other site, remedial
investigation is under way and a loss estimate for the potential remediation
effort costs is not yet possible. However, the Company's accrual for the
remediation investigation effort was $1.0 million at March 26, 2000 and $1.1
million at December 26, 1999. The liabilities can change substantially due to
such factors as the solvency of other potentially responsible parties, the
Company's share of responsibility, additional information on the nature or
extent of contamination, methods and associated costs of remediation required,
and other actions by governmental agencies or private parties. While it is not
feasible to predict the outcome of all environmental liabilities, based on its
most recent review, management estimates the Company's share of the costs of
investigation and remediation of the known sites will not have a material
adverse effect upon the consolidated financial condition of the Company.
Due to uncertainties associated with remediation activities, regulations,
technologies, and the allocation of costs among various other parties, actual
costs to be incurred at identified sites may vary from estimates. Therefore,
management is unable to determine if the ultimate disposition of all known
environmental liabilities will have a material adverse effect on the Company's
consolidated results of operations in a given year. As with most manufacturing
and many other entities, there can be no assurance that the Company will not be
named as a PRP or incur liabilities through other means at additional sites in
the future or that the costs associated with such additional sites would not be
material.
The Environmental Protection Agency signed final rules affecting pulp and paper
industry discharges of wastewater and gaseous emissions ("Cluster Rules") which
became effective on April 15, 1998. These Cluster Rules require changes in the
pulping, bleaching and/or wastewater treatment processes presently used in some
U.S. pulp and paper mills, including some of the Company's mills. Based on
management's understanding of the rules, the Company estimates that
approximately $22 million of capital expenditures may be required to comply with
the rules with compliance dates beginning in 1999 and extending over the next
two to five years. The Company has incurred $.5 million in the first quarter of
2000 and anticipates capital expenditures of approximately $8 million during
2000 for compliance with the Cluster Rules. Total capital spending since
inception for compliance with the Cluster Rules is $7.3 million. There are
risks and uncertainties associated with the Company's estimate that could cause
total capital expenditures and timing of such expenditures to be materially
different from current estimates, including changes in technology,
interpretation of the rules by governmental agencies that is substantially
different from the Company's interpretation, or other items.
NOTE 6 - ASSET IMPAIRMENT ANALYSIS
- ------
During the first quarter of 2000, the specialty papers segment experienced
negative cash flows (see Note 12). The Company is in the process of evaluating
the mills in this segment, including potential changes in product mix, idling
certain machines, or other cost reduction efforts. Management anticipates
completing this analysis, including cash flow projections during the second
quarter of 2000 to determine whether impairment has occurred.
NOTE 7 -- COMPREHENSIVE INCOME
- ------
Comprehensive income for the Company consists of net income, foreign currency
translation adjustments and minimum pension liability adjustments. During the
first quarter of 2000 and 1999, the Company's total comprehensive loss was $26.1
million and $28.3 million, respectively.
9
<PAGE>
NOTE 8 -- SETTLEMENT OF BERLIN PROPERTY TAX CASE
- ------
On February 1, 1999, the Company finalized an agreement with the City of Berlin,
NH, concerning assessed values and taxability of factory machinery. The Company
reversed a property tax accrual of approximately $8.9 million in the first
quarter of 1999, which relates to amounts over accrued for previous tax years.
NOTE 9 -- BERLIN-GORHAM SALE
- ------
On July 9, 1999, Crown Vantage completed the sale of the Berlin-Gorham pulp and
paper mills to ATC. The sale resulted in a charge of $16.2 million, which was
recorded in the first quarter of 1999 and is included within "Asset impairment
and other charges," and consisted of the following elements:
<TABLE>
<CAPTION>
(amounts in millions)
<S> <C>
Fixed asset write-down $ 16.5
Transaction costs 2.5
Loss on curtailment of pension plans 3.4
Gain on curtailment of other benefit plans <6.2>
------------
Total Charge $16.2
============
</TABLE>
Net proceeds from the sale of Berlin-Gorham were approximately $42.5 million of
which $15 million was used to pay down Term Loan B, with the remainder used to
pay down the revolving credit facility. In connection with the sale, the Company
retained accounts payable and certain other short-term operating liabilities of
approximately $15 million at July 9, 1999. ATC assumed all environmental
liabilities, except for some immaterial balances that were settled during 1999
as part of Berlin-Gorham operating liabilities retained by the Company. Also the
Company recorded a settlement gain of $12 million for the settlement that
occurred when the post retirement medical liability was assumed by ATC for on-
going employees of Berlin-Gorham.
NOTE 10 -- SETTLEMENT OF CO-GENERATION LEASE
- --------
In the fourth quarter of 1998, management determined that the leased gas turbine
co-generation facility at the St. Francisville, LA mill no longer provided
substantive use or benefit. Accordingly, a $16.9 million charge was recognized
in the fourth quarter of 1998 that represented discounted net future lease
payments.
On July 18, 1999 an explosion occurred at the St. Francisville mill with damage
limited primarily to the leased co-generation facility, discussed above. As
allowed under the lease terms, the Company terminated the lease in exchange for
a $16.3 million termination payment in the third quarter of 1999. The
termination payment, which approximated the net present value of future lease
payments, was charged against the reserve established in the fourth quarter of
1998. As a result of the lease termination, the Company took title to the leased
facility and was released from a $24.7 million letter of credit. In the first
quarter of 2000, an additional $2.4 million gain was recognized (in "Other
operating income, net"), which was a combination of $1.3 million in insurance
proceeds and a $1.1 million gain on sale of the asset. A $5.1 million gain from
insurance proceeds as a result of the explosion was recorded during the later
part of 1999.
10
<PAGE>
NOTE 11-- SEGMENT INFORMATION
- -------
The Company is organized around two segments based primarily on
similarities in products, the manufacturing process and customers.
<TABLE>
First Quarter
- --------------------------------------------------------------------------------------------------
(amounts in millions) 2000 1999
- --------------------------------------------------------------------------------------------------
<S> <C> <C>
Operating income (loss):
Printing & Publishing Papers $ 2.1 $ <.5>
Specialty Papers <11.5> <4.0>
Berlin-Gorham <10.0>
- --------------------------------------------------------------------------------------------------
Total $ <9.4> $<14.5>
- --------------------------------------------------------------------------------------------------
EBITDA:
<S> <C> <C>
Printing & Publishing Papers $ 11.3 $ .2
Specialty Papers <6.4> 1.3
Berlin-Gorham 7.9
- --------------------------------------------------------------------------------------------------
Total $ 4.9 $ 9.4
- --------------------------------------------------------------------------------------------------
Net sales:
Printing & Publishing Papers $ 88.1 $ 79.1
Specialty Papers 71.6 81.9
Berlin-Gorham 40.2
- --------------------------------------------------------------------------------------------------
Total $159.7 $201.2
- --------------------------------------------------------------------------------------------------
</TABLE>
EBITDA represents income (loss) before income taxes, interest expense and
depreciation and amortization. First quarter 2000 EBITDA excludes the
reorganization expenses of $2.7. First quarter 1999 EBITDA for Berlin-Gorham
excludes the effect of the $16.2 million charge for the adjustment to its net
realizable value and $8.9 million property tax accrual reversal. Total assets
for Printing and Publishing Papers decreased by approximately $3.5 million and
$6.3 million for Specialty Papers as of March 26, 2000 compared to December 26,
1999. The decrease in total assets for both of these segments is primarily due
to depreciation expense exceeding capital spending.
11
<PAGE>
ITEM 2 -- MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
- ------
FINANCIAL CONDITION
Crown Paper Co. and subsidiaries (the "Company" or "Crown Paper") is a major
producer and marketer of value-added paper products for a diverse array of end-
uses. The Company is a wholly-owned subsidiary of Crown Vantage, Inc. (the
"Parent" or "Crown Vantage"). The Company operates in two segments: Printing and
Publishing papers and Specialty Papers. Printing and Publishing papers are
primarily for applications such as special interest magazines, catalogs, books,
custom business forms, corporate communications and promotions (e.g. annual
reports and stationery) and other graphics applications. Specialty Papers are
principally for food and retail packaging applications and conversion into such
items as coffee filters, labels, cups and plates.
The Company operates 9 facilities using 26 paper machines, and its paper
production was approximately 50% integrated with the Company's pulp operations.
The Company's largest facility is an integrated operation located in St.
Francisville, LA. St. Francisville produces coated groundwood papers for
magazines and catalogs and uncoated specialty converting papers. The Company
also produces uncoated printing and publishing papers, primarily text, cover and
writing papers, at its non-integrated facilities in Adams, MA; Ypsilanti, MI,
and Dalmore and Guardbridge, Scotland. In addition to its primary papermaking
operations, the Company operates a cast-coating facility in Richmond, VA, that
produces coated paper and board for graphics and packaging uses. The Company's
specialty papers are produced primarily at non-integrated specialty packaging
papers facilities in Port Huron and Parchment, MI, and Milford, NJ and on the
two uncoated specialty-converting machines at St. Francisville. On July 9,
1999, the Company completed the sale of its Berlin-Gorham pulp and paper mills
("Berlin-Gorham") to American Tissue Holdings Inc. ("ATC") with net proceeds of
approximately $42.5 million (See Note 10). Net proceeds from the sale of Berlin-
Gorham were used to fund certain retained liabilities and pay down debt. Berlin-
Gorham primarily produced uncoated printing and publishing papers as well as
market pulp.
The Company's operating results for fiscal years 1999, 1998 and 1997 were
severely affected by, among other things, an overall extended depressed pricing
cycle that began in 1997 partly as a consequence of increased levels of low-
priced imports from Asia and the resultant deteriorating market conditions and
continued due to other competitive and operational issues (see "Consolidated
Results of Operations"). This led to the Company's overall decline in average
net sales price per ton and decreased volumes of grades of paper that normally
command higher average net sales prices thereby causing a decrease in liquidity
and increases in losses. The increase in losses resulted in a violation of a
tangible net worth covenant of the senior secured credit facility (the "Credit
Agreement") that occurred upon closing the accounting records for October 1999.
The Company obtained a waiver for this violation and renegotiated a series of
amendments to the Credit Agreement to provide sufficient liquidity for
operations through early March 2000. The amount of liquidity available under
these new amendments was significantly reduced from the levels of liquidity
available prior to the tangible net worth covenant violation. The amendments did
not provide for sufficient liquidity for the Company to pay its interest payment
on the 11% Senior Subordinated Notes due March 1, 2000. As a result of filing
for bankruptcy and not making the March interest payments, the Company is in
default of all debt agreements. All debt balances, with the exception of the DIP
agreement discussed below, were classified as current on December 26, 1999. On
March 15, 2000, the Company, except for its operating subsidiary in the United
Kingdom, filed a voluntary petition seeking reorganization under Chapter 11 of
Title 11 ("Chapter 11") of the United States Bankruptcy Code (the "Bankruptcy
Code") in the United States Bankruptcy Court for the Northern District of
California, Oakland Division (the "Bankruptcy Court"). An Official Committee of
Unsecured Creditors (the "Committee"), which represents the interests of all
unsecured creditors of the Debtors, has been appointed. Also, the receivable
securitization agreement between Crown Paper, various lenders and Crown Paper
Funding Corp. (a bankruptcy remote and wholly owned subsidiary of Crown Paper)
has been terminated due to the filing of Chapter 11. All receivables sold
through this agreement are being settled as collected and no new receivables
will be sold as of the petition date and beyond. As of March 26, 2000, $13.0
million of the receivables sold had been settled and the remaining amount of
$18.6 million is expected to be settled during the second quarter of 2000.
12
<PAGE>
As a result of the filing, liabilities in the amount of $311.5 million are
subject to compromise under a plan of reorganization (See Note 1). The
ultimate amount and settlement terms for such liabilities are subject to a plan
of reorganization, and accordingly, are not presently determinable.
To provide the Company with operating capital during the restructuring process,
the Company obtained a commitment of $100 million in debtor-in-possession
("DIP") financing from two lenders under the prepetition Credit Agreement
including the agent bank. The Company is continuing to implement a restructuring
program to reduce costs, improve operating efficiencies and increase financial
flexibility. A plan of reorganization is being developed. The Company is in
possession of its properties and assets and continues to operate with its
existing directors and officers as a debtor-in-possession. As a debtor-in-
possession, the Company is authorized to operate its business, but may not
engage in transactions outside of the normal course of business without
approval, after notice and hearing, of the Bankruptcy Court. Pursuant to the
provisions of the Bankruptcy Code, as of the petition date, actions to collect
prepetition indebtedness owed by the Company are stayed and other prepetition
contractual obligations may not be enforced against the Company. In addition, as
a debtor-in-possession, the Company has the right, subject to the Bankruptcy
Court's approval and certain other conditions, to assume or reject any
prepetition executory contracts and unexpired leases. As of March 26, 2000, no
action has occurred regarding executory contracts and unexpired leases. Parties
affected by these rejections may file claims with the Bankruptcy Court in
accordance with the reorganization process. The Company cannot presently
determine or reasonably estimate the ultimate liability that may result from
rejecting such contracts or leases or from the filing of claims, and no
provisions have been made for these items. Differences between amounts reflected
in such schedules and claims filed by creditors will be investigated and
amicably resolved or adjudicated before the Bankruptcy Court. The ultimate
amount and settlement terms for such liabilities are subject to a plan of
reorganization, and accordingly, are not presently determinable. The Bankruptcy
Court has approved payment of certain prepetition liabilities such as employee
wages and benefits. Furthermore, we expect the Bankruptcy Court to allow for the
retention of legal and financial professionals to advise in the bankruptcy
proceedings. The Company intends to present a plan of reorganization to the
Bankruptcy Court to reorganize the Company's business and to restructure the
Company's obligations.
Among the factors that could cause actual results to differ materially are the
following: The confirmation of the plan of reorganization by the Bankruptcy
Court; the Company's ability to achieve satisfactory levels of profitability and
cash flow from operations; maintaining compliance with post-petition loan
agreements; the availability of sufficient capital to service the Company's debt
obligations and to finance the Company's business plans on terms satisfactory to
the Company; the success of the Company's restructuring plan and the pursuit of
financing alternatives; the impact of competitive products and pricing; changes
in labor, equipment, and capital costs; changes in, or the failure to comply
with, regulations affecting the Company's business; future acquisitions or
strategic partnerships; general business and economic conditions; and factors
described from time to time in the Company's reports filed with the Securities
and Exchange Commission.
13
<PAGE>
Results of Operations
The Company's net sales for each business segment are as follows:
<TABLE>
<CAPTION>
Net Sales and Tonnage by Segment
for the Three Months Ended
March 26, 2000 March 28, 1999
----------------- -------------------
Tons Sales Tons Sales
(thousands)
<S> <C> <C> <C> <C>
Printing and Publishing Papers
Coated groundwood 74,032 $ 55,105 70,886 $ 50,459
Uncoated and other 21,600 33,002 17,943 28,614
Specialty Papers 73,067 71,594 82,416 81,943
Berlin-Gorham 76,934 40,149
------- -------- ------- --------
168,699 $159,701 248,179 $201,165
======= ======== ======= ========
</TABLE>
Net Sales
The Company's net sales, excluding Berlin-Gorham, were essentially unchanged for
the three months ended March 26, 2000 compared to the same period in 1999.
Increases in Printing and Publishing Papers' average price per ton of 3.4% and
tons sold of 7.7% were offset by decreases in Specialty Papers tons sold of
11.3% and average price per ton of 1.5%.
Net sales of coated groundwood paper (which is used principally in the
production of magazines and catalogs) for the three-month period ended March 26,
2000 were $55.1 million, an increase of 9.2% compared to the same period in
1999. Sales volumes and average price per ton increased 4.4% and 4.6%
respectively, for the first three months of 2000 compared to the same period in
1999.
Net sales of uncoated and other products increased $4.4 million (or 15.3%) in
the first quarter of 2000 as compared to the same period in 1999. The increase
is primarily due to a 20.4% increase in tons sold through a selling agreement
entered into with ATC in conjunction with the third quarter of 1999 sale of
Berlin-Gorham, whereby Berlin-Gorham produces certain grades of paper for the
Company. The increase in tons sold was partially offset by a 4.3% decrease in
average net sales price per ton due to a change in product mix as a result of
the inclusion of papers sold under the selling agreement discussed above.
Specialty papers' net sales totaled $71.6 million during the first three months
of 2000, a $10.3 million decline from the same period in 1999. The 12.5%
decrease in net sales is primarily the result of an 11.3% decrease in tons sold
during the three months ended March 26, 2000 compared to the three months ended
March 28, 1999.
Operating Income (Loss) for each business segment is as follows:
<TABLE>
<CAPTION>
Operating Income (Loss) by
Segment
for the Quarter Ended
---------------------------------------
March 26, 2000 March 28, 1999
-------------- --------------
(thousands)
<S> <C> <C>
Printing and Publishing Papers $ 2,117 $ <468>
Specialty Papers <11,474> <4,032>
Berlin-Gorham <10,020>
---------- --------
<9,357> <14,520>
========= =========
</TABLE>
Operating Income
The Company had an operating loss of $9.4 million for the three months ended
March 26, 2000 compared to a $14.5 million loss for the same period in 1999.
The improved operating results were primarily due to a charge in the first
quarter of 1999 of $16.2 million that adjusted Berlin-Gorham's net book value to
its estimated net realizable value. This charge was partially offset by an $8.9
million reversal of a property tax accrual that resulted from the settlement of
an ongoing dispute with the City of Berlin. These charges are included in
operating results of Berlin-Gorham. Excluding Berlin-Gorham, operating results
decreased $4.9 million in the first quarter of 2000 as compared to the same
period in 1999. This decline in operating results is primarily due to the
reduced sales volumes in the Specialty Papers segment and was partially offset
by a gain of $2.4 million related to insurance proceeds and sale of the co-
generation facility at St. Francisville, LA. This gain was recorded in "Other
operating income, net" and was partially reduced by a severance charge of $.4
million.
The Printing and Publishing segment had a $2.1 million operating profit during
the first three months of 2000 compared to an operating loss of $.5 million for
the same period in 1999. The improvement in operating
14
<PAGE>
results is primarily due to a 7.7% increase in tons sold, discussed above that
was partially offset by higher pulp costs for the non-integrated mills in this
segment. Also, contributing to the improvement in this segment was $1.8 million
of income related to insurance proceeds and gain on the sale of the St.
Francisville, LA co-generation facility.
Specialty Papers operating results decreased by $7.5 million to an operating
loss of $11.5 million for the first three months of 2000 compared to an
operating loss of $4.0 million for the same period last year. The decrease is
primarily attributable to an 11.3% decrease in tons sold as discussed above and
increased pulp costs. Partially, offsetting these items was $.6 million of
income recognized in this segment related to insurance proceeds and gain on the
sale of the St. Francisville, LA co-generation facility (See Note 11). During
the first quarter of 2000, the Specialty Papers segment experienced negative
cash flows. The Company is in the process of evaluating the mills in this
segment, including potential changes in product mix, idling certain machines, or
other cost reduction efforts. Management anticipates completing this analysis,
including cash flow projections during the second quarter of 2000 to determine
whether impairment has occurred. Also, management anticipates additional
accruals as part of cost reduction efforts underway within the packaging
segment. These charges may be material to the result of operations of the
Company.
Selling and administrative expenses decreased $3.0 million for the first quarter
of 2000 compared to the same period in 1999. The decrease is primarily due to
the $.8 million in Year 2000 compliance spending during the first quarter of
1999 and commission income and expense reimbursement under various agreements
with ATC that were not present during the first quarter of 1999.
Interest Expense
Interest expense for the three-month periods of 2000 and 1999 were $13.6 million
and $12.4 million, respectively. The increase in interest expense is due
primarily to a larger average outstanding balance on the revolving line of
credit in the first quarter of 2000 as compared to the same period in 1999.
Liquidity and Sources of Capital
To provide the Company with operating capital during the restructuring process,
the Company obtained a commitment of $100 million in debtor-in-possession
("DIP") financing from two lenders under the prepetition Credit Agreement
including the agent bank. The DIP financing agreement has a stated maturity date
of September 14, 2001 and interest is charged at a rate of the Prime Rate, plus
1.75%. There is also a commitment fee associated with this financing arrangement
of 0.5% of the unused portion of the loan. As of March 26, 2000 the Company has
borrowed $12 million under the DIP financing of which $3.3 million was used for
deferred financing costs. Total available DIP financing is limited by amounts
calculated weekly in a borrowing base that consists primarily of trade
receivables, finished goods inventory and pulp and wood raw material
inventories. The initial borrowing base was substantially below the maximum
amount of $100 million due to the unavailability of receivables sold prior to
the Petition Date under the now terminated receivable securitization agreement.
As of March 26, 2000 the total available DIP financing was limited to $50
million by the interim borrowing order. The cash flow relief of withholding
payment of pre-petition date liabilities until the plan of reorganization is
developed, approved and executed was temporarily offset by the requirement to
pay down the receivable securitization facility from collection of receivables
and the need to prepay certain vendors post-petition date to ensure delivery of
critical supplies.
In connection with the DIP credit facility entered into on March 21, 2000, Crown
Paper Co. is required to comply with certain monthly financial covenants that
include meeting minimum EBITDA targets and limits on capital expenditures. As
of May 9, we are in compliance with these covenants.
Cash used by operating activities was $14.3 million for the three months ended
March 26, 2000 compared to $15.8 million for the three months ended March 28,
1999. The decrease was primarily due to the affects of filing Chapter 11 on
working capital balances that was substantially offset by higher pulp costs at
the
15
<PAGE>
Company's non-integrated facilities. Earnings before interest, taxes,
depreciation and amortization (EBITDA), excluding the Berlin-Gorham charge and
property tax accrual reversal were $4.9 million for the first three months of
2000 as compared to $9.4 million for the comparable period in 1999.
The Company's business is capital intensive. Pulp and paper mills generally
consist of an extensive network of buildings, machinery, and equipment, which
require continual upgrades, replacement, modernization and improvement. The
Company's capital expenditures for the three months ended March 26, 2000 were
$6.8 million compared to $7.3 million in the same period in 1999. The
expenditures in 2000 and 1999 primarily represented capital maintenance projects
that are substantially focused on projects with the quickest returns on
investment. The Company's capital spending plan for 2000 is approximately $35
million. These capital expenditures are primarily for capital maintenance and
required environmental projects. These capital projects are expected to be
financed by cash flows from operations and available financing sources.
Forward Looking Statements
- --------------------------
Certain statements within Management's Discussion and Analysis and elsewhere are
forward looking within the meaning of the Private Securities Litigation Reform
Act of 1995. These statements are subject to various risks and uncertainties
that could cause the actual results to be materially different from the
Company's current expectations. These forward-looking statements can be
identified by use of words such as plans, expects, estimates, anticipates,
believes, possible and other similar words or phrases. In addition to the
factors discussed above, there are other factors that could cause the actual
results to differ materially. These other factors include, but are not limited
to the Company's ability to successfully execute its business strategy and
recapitalize the balance sheet; business conditions and the general economy,
both global and domestic; prices for the Company's products; competitive
factors; maintaining good labor relations; the Company's ability to comply with
the DIP covenants, and maintaining good customer relations.
PART II -- OTHER INFORMATION
- -------
ITEM 6 -- EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Ex. 10.1 Debtor-in-Possession Financing Agreement
Ex. 27 Financial Data Schedule (Electronic Filing Only)
(b) Reports on Form 8-K
Current Report on Form 8-K filed on March 21, 2000 reporting on forbearance
agreement with existing lenders, Chapter 11 reorganization filing and
Debtor-in-Possession financing agreement.
Current Report on Form 8-K filed on March 13, 2000 reporting that
previously announced financing agreement was not consummated after
potential lender's due diligence.
Current Report on Form 8-K filed on March 3, 2000 reporting that certain
debt covenants had been amended.
16
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Crown Paper Co.
(Registrant)
/s/ R. Neil Stuart /s/ Donald T. Shipley
- ------------------------ -----------------------
R. Neil Stuart Donald T. Shipley
Executive Vice President, Vice President and
Chief Financial Officer Corporate Controller,
(Duly Authorized Officer) (Duly Authorized
Chief Accounting Officer)
May 10, 2000
17
<PAGE>
Exhibit 10.1
COMPOSITE AND CONFORMED COPY
(Signature pages reflect bank
group as of April 19, 2000)
DEBTOR-IN-POSSESSION CREDIT AGREEMENT
dated as of
March 17, 2000
among
CROWN PAPER CO.,
as debtor and debtor-in-possession,
THE LENDERS PARTY HERETO,
THE LC ISSUING BANKS PARTY HERETO,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as Administrative Agent
and
THE CHASE MANHATTAN BANK,
as Syndication Agent
As Amended by Pre-Syndication Amendment
and by Amendments No. 1 & 2.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Article 1 Definitions
Section 1.01. Defined Terms 2
Section 1.02. Accounting Terms and Determinations 29
Section 1.03. Other Definitional Provisions 29
Section 1.04. Types of Loans and Borrowings 29
Article 2 The Credit Facilities
Section 2.01. Commitments to Lend 29
Section 2.02. Method of Borrowing 30
Section 2.03. Notice to Lenders; Funding of Loans 31
Section 2.04. Interest Rates; Default Rates 32
Section 2.05. Method of Electing Interest Rates 33
Section 2.06. Letters of Credit 35
Section 2.07. Fees 43
Section 2.08. Final Maturity of Loans 43
Section 2.09. Unscheduled Mandatory Prepayments of Loans; Reduction of Commitments 43
Section 2.10. Optional Prepayments 45
Section 2.11. Termination or Reduction of Commitments 46
Section 2.12. General Provisions as to Payments 46
Section 2.13. Funding Losses 47
Section 2.14. Computation of Interest and Fees 47
Section 2.15. Release of Security Interests in Assets Being Sold 48
Section 2.16. Superpriority Nature of Obligations 48
Section 2.17. Joint and Several Liability 50
Section 2.18. Defaulting Lenders 50
Section 2.19. Removal or Replacement of a Lender 52
Section 2.20. Regulation D Compensation 52
Article 3 Conditions
Section 3.01. Effectiveness of this Agreement; Closing 53
Section 3.02. Credit Events 57
Article 4 Representations and Warranties
Section 4.01. Corporate Existence and Power 60
Section 4.02. Corporate and Governmental Authorization, No Contravention 60
Section 4.03. Binding Effect 60
Section 4.04. Security Interests 60
Section 4.05. Financial Information 61
Section 4.06. Litigation 61
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 4.07. Compliance with ERISA 61
Section 4.08. Taxes 61
Section 4.09. Compliance with Laws 62
Section 4.10. No Regulatory Restrictions on Borrowing 62
Section 4.11. Environmental Matters 62
Section 4.12. Full Disclosure 62
Section 4.13. Information as to Equity Interests and Instruments Owned by Crown Companies 63
Section 4.14. Representations in Other Financing Documents 63
Section 4.15. Margin Stock 63
Section 4.16. Representations Concerning Cash Management System 63
Section 4.17. Pre-Petition Indebtedness; Existing Liens 63
Section 4.18. Chapter 11 Cases 63
Section 4.19. Cash Plan 64
Section 4.20. Collateral Information for Interim Borrowing 64
Article 5 Affirmative Covenants
Section 5.01. Information 64
Section 5.02. Maintenance of Property 69
Section 5.03. Insurance 69
Section 5.04. Compliance with Law 69
Section 5.05. Maintenance of Existence, Rights, Etc 70
Section 5.06. Use of Proceeds and Letters of Credit 70
Section 5.07. Assets to Be Added to Collateral 70
Section 5.08. Casualty Events 73
Section 5.09. Cash Management System; Cash Concentration Account 73
Section 5.10. Post-Closing Deliveries 74
Section 5.11. Inspection of Property, Books and Records; Lender Meetings 74
Section 5.12. Evaluations and Appraisals 75
Section 5.13. Obligations and Taxes 75
Article 6 Financial Covenants
Section 6.01. Consolidated EBITDA 75
Section 6.02. Capital Expenditures 76
Article 7 Negative Covenants
Section 7.01. Limitation on Debt 78
Section 7.02. Negative Pledge 79
Section 7.03. Consolidations, Mergers and Asset Sales 79
Section 7.04. Limitations on Investments 80
Section 7.05. Limitations on Transactions with Affiliates 80
Section 7.06. Limitation on Restrictions Affecting Subsidiaries 80
Section 7.07. Restricted Payments 80
Section 7.08. No Modification of Certain Documents Without Consent 80
Section 7.09. No Change of Fiscal Periods 81
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 7.10. Margin Stock 81
Section 7.11. Limitation on Business 81
Section 7.12. Leases 81
Section 7.13. Limitation on Cash Not Held in Collateral Accounts or Concentration Accounts 81
Section 7.14. Chapter 11 Claims 81
Section 7.15. Limitation on Repayments; Pre-Petition Obligations 82
Article 8 Defaults
Section 8.01. Events of Default 82
Section 8.02. Notice of Default 87
Section 8.03. Enforcement Notice 87
Article 9 The Agents
Section 9.01. Appointment and Authorization 88
Section 9.02. Agents and Affiliates 88
Section 9.03. Action by Agents 89
Section 9.04. Coordination Among Agents 89
Section 9.05. Consultation with Experts 89
Section 9.06. Liability of Agents 89
Section 9.07. Indemnification 90
Section 9.08. Credit Decision 90
Section 9.09. Successor Agents 90
Section 9.10. Collateral Agent 91
Article 10 Change in Circumstances
Section 10.01. Basis for Determining Interest Rate Inadequate or Unfair 91
Section 10.02. Illegality 92
Section 10.03. Increased Cost and Reduced Return 92
Section 10.04. Taxes 93
Section 10.05. Base Rate Loans Substituted for Affected Euro-Dollar Loans 96
Section 10.06. Substitution of Lender 96
Article 11 Miscellaneous
Section 11.01. Notices 98
Section 11.02. No Waiver 98
Section 11.03. Expenses; Indemnification 98
Section 11.04. Sharing of Set-Offs 101
Section 11.05. Amendments and Waivers 102
Section 11.06. Successors and Assigns 104
Section 11.07. Margin Stock 107
Section 11.08. Governing Law; Submission to Jurisdiction 107
Section 11.09. Counterparts; Integration 107
Section 11.10. Waiver of Jury Trial 107
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 11.11. Confidentiality 108
Section 11.12. Parties Including Trustees; Court Proceedings 108
</TABLE>
<PAGE>
SCHEDULES
- ---------
Commitment Schedule
Schedule 1 - Cash Plan
Schedule 2 - Inventory Locations
Schedule 3 - Real Property to be Mortgaged
Schedule 4 - Subsidiaries
Schedule 5 - Litigation
Schedule 6 - Certain Pre-Petition Indebtedness
Schedule 7 - Existing Liens
Schedule 8 - Existing Investments
EXHIBITS
- --------
Exhibit A Form of Note
Exhibit B Form of Security Agreement
Exhibit C Form of Guaranty Agreement
Exhibit D-1 Form of Certificate of Financial Officer
Exhibit D-2 Form of Borrowing Base Certificate
Exhibit E-1 Form of Opinion of Special California and New York Counsel
Exhibit E-2 Form of Opinion of Special Virginia Counsel
Exhibit E-3 Form of Opinion of Special Ohio Counsel
Exhibit E-4 Form of Opinion of Special Louisiana Counsel
Exhibit E-5 Form of Opinion of Special Mississippi Counsel
Exhibit F-1 Form of Notice of Borrowing
Exhibit F-2 Form of LC Request
Exhibit G Form of Prepayment Notice
Exhibit H Form of Assignment and Assumption Agreement
Exhibit I Form of Interim Borrowing Order
Exhibit J Form of Borrowing Order
Exhibit K Form of Collateral Valuation for Interim Borrowing
Exhibit L Designated Debt, if any, Referred to in Section 7.01(e) Hereto
<PAGE>
This DEBTOR-IN-POSSESSION CREDIT AGREEMENT is dated as of March 17, 2000
and entered into by and among Crown Paper Co., a Virginia corporation, as debtor
and debtor-in-possession (referred to herein as "Crown Paper" and "Borrower");
THE LENDERS LISTED ON THE SIGNATURE PAGES HEREOF (each individually referred to
herein as a "Lender" and collectively as "Lenders"); MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as administrative agent for the Lenders, and as an issuing
bank for Letters of Credit hereunder; and THE CHASE MANHATTAN BANK, as
Syndication Agent.
RECITALS
WHEREAS, on March 15, 2000 (the "Petition Date"), Borrower and certain of
its affiliates filed voluntary petitions for relief under chapter 11 of the
Bankruptcy Code (such term and other capitalized terms used in these Recitals
without definition have the meanings set forth in Section 1.01 of this
Agreement) in the United States Bankruptcy Court for the Northern District of
California (the "Court") (such proceedings being jointly administered under Case
Nos. 00-41584-N and 00-41583-N are hereinafter referred to as the "Chapter 11
Cases"). Borrower continues to operate its businesses and manage its properties
as a debtor-in-possession pursuant to Sections 1107 and 1108 of the Bankruptcy
Code; and
WHEREAS, the Borrower has requested Lenders to provide revolving credit
facilities in an aggregate amount of up to $100 million on a post-petition basis
on the terms and conditions set forth herein; and
WHEREAS, Lenders are willing to provide such financing only if all
Obligations (i) constitute allowed administrative expense claims in the Chapter
11 Cases as set forth herein, (ii) are secured by a first priority Lien on
substantially all of the Borrower's real, personal and mixed property, including
a pledge of all of the capital stock of each of the Subsidiaries of the Borrower
and (iii) are guaranteed by the Borrower's parent company, Crown Vantage, Inc.,
as debtor-in-possession, as well as by the debtor and non-debtor Subsidiaries of
Crown Paper pursuant to the Guaranty Agreement, which guaranty shall be secured
by a first priority Lien (subject to existing Liens) on substantially all of the
real, personal and mixed property of the Guarantors pursuant to the Security
Agreement;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the Borrower, Lenders and Agents
hereby agree as follows:
Article
<PAGE>
Definitions
Section .. Defined TermsThe following terms, as used herein, have the
following meanings:
"Account" means any right to payment for goods sold or leased or for
services rendered whether or not earned by performance.
"Account Debtor" means, with respect to any Account, the obligor with
respect to such Account.
"Account Party" means the party identified as the Account Party for a
Letter of Credit pursuant to Section 2.06(c)(iii).
"Administrative Agent" means Morgan, in its capacity as administrative
agent for the Lenders under the Financing Documents, and its successors in such
capacity.
"Administrative Questionnaire" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent,
duly completed by such Lender and submitted to the Administrative Agent (with a
copy to the Borrower).
"Affiliate" of any Person means any Person (other than a Subsidiary)
directly or indirectly controlling, controlled by or under common control with
such Person. As used in this definition, the term "control" means possession,
directly or indirectly, of the power to vote 10% or more of any class of voting
securities of a Person or to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agents" means the Collateral Agent, the Administrative Agent, the
Syndication Agent, and the Cash Concentration Bank.
"Aggregate LC Exposure" means, at any time, the sum, without duplication,
of (i) the aggregate amount that is (or may thereafter become) available for
drawing under all Letters of Credit outstanding at such time and (ii) the
aggregate unpaid principal amount of all LC Reimbursement Obligations
outstanding at such time.
"Agreement" means this Debtor-In-Possession Credit Agreement as it may
hereafter be amended, supplemented, waived or otherwise modified from time to
time.
<PAGE>
"Amendment No. 1 Effective Date" means the date of the effectiveness of
Amendment No. 1 to this Agreement.
"Applicable Base Rate Margin" means 1.75%
"Applicable Euro-Dollar Margin" means 3.25%.
"Applicable Laws" means all applicable provisions of constitutions,
statutes, laws, rules, treaties, regulations and orders of all Governmental
Authorities and all applicable orders, rules and decrees of courts and
arbitrators.
"Applicable Lending Office" means, with respect to any Lender, (i) in the
case of its Base Rate Loans, its Domestic Lending Office and (ii) in the case of
its Euro-Dollar Loans, its Euro-Dollar Lending Office. "Asset Sale" means any
sale, lease or other transfer (including any such transaction effected by way of
merger or consolidation) of any asset by any Crown Company, including without
limitation any sale-leaseback transaction, whether or not involving a capital
lease and whether or not submitted to the Court for approval under the
Bankruptcy Code, but excluding any sale in the ordinary course of business that
is not submitted to the Court for approval of (i) inventory, cash equivalents or
other Temporary Cash Investments, or (ii) obsolete, unused or surplus equipment,
provided that, after giving effect to such sale, the fair market value of all
sales of such equipment since the Petition Date does not exceed in the aggregate
$5,000,000.
"Assignee" has the meaning set forth in Section 11.06(c).
"Assignment Agreement" means an Assignment Agreement in substantially the
form of Exhibit H annexed hereto.
"Bankruptcy Code" means Title 11 of the United States Code, as now and
hereafter in effect, or any successor statute or portion thereof that is
applicable to the Borrower.
"Base Rate" means, for any day, a rate per annum equal to the higher of
(i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal
Funds Rate for such day.
"Base Rate Loan" means (i) a Loan that bears interest at the Base Rate
pursuant to the applicable Notice of Borrowing or Notice of Interest Rate
Election or the
<PAGE>
provisions of Article 10 or (ii) any overdue amount of principal that was a Base
Rate Loan immediately before it became overdue.
"Borrower" has the meaning set forth in the introduction to this
Agreement.
"Borrowing" has the meaning set forth in Section 1.04.
"Borrowing Base" means, at any time, an amount equal to the sum, without
duplication, of (a) 80% of the amount by which Eligible Accounts Receivable at
such time exceeds the Dilution Reserve at such time, (b) 60% of the amount by
which the Eligible Inventory Value at such time exceeds Inventory Reserves at
such time and (c) the Facilities Amount. The Borrowing Base at any time in
effect shall be determined by reference to the Borrowing Base Certificate most
recently delivered hereunder.
"Borrowing Base Certificate" shall mean a certificate substantially in
the form of Exhibit D-2 hereto and otherwise satisfactory in form and substance
to the Administrative Agent and the Syndication Agent, executed and certified as
complete and correct by a Financial Officer of the Borrower, which shall include
appropriate exhibits and schedules as referred to therein.
"Borrowing Order" means an order of the Court entered in the Chapter 11
Cases after a final hearing under Bankruptcy Rules 4001(c)(2) and 4001(d) in the
form attached hereto as Exhibit J with any modifications thereto on or prior to
the entry thereof as are approved by the Administrative Agent and the
Syndication Agent in their exclusive discretion, as the same may thereafter be
amended, supplemented or otherwise modified from time to time with the express
written consent or joinder of the Required Lenders.
"Capital Lease" means a lease that would be capitalized on a balance
sheet of the lessee prepared in accordance with GAAP.
"Carve-Out" has the meaning set forth in Section 2.16.
"Cash Balance" means, as at any time of determination, the sum of the
Dollar amount of all money, currency, Temporary Cash Investments and credit
balances held or carried in the Concentration Accounts.
"Cash Concentration Bank" has the meaning assigned to such term in the
Security Agreement.
<PAGE>
"Cash Plan" means the consolidated cash forecast for the Borrower for the
period from the Petition Date forward to the date specified therein, delivered
by the Borrower to the Administrative Agent pursuant to Section 3.01 and annexed
hereto as Schedule 1, as it may be supplemented pursuant to Section 5.01(o).
"Casualty Event" means (i) any Condemnation Event with respect to any
property owned by or leased to any Crown Company or (ii) any damage to, or
destruction of, any property owned by or leased to any Crown Company.
"Casualty Proceeds" means (i) with respect to any Condemnation Event, all
awards or payments received by any Crown Company or the Collateral Agent by
reason of such Condemnation Event, including all amounts received with respect
to any transfer in lieu or anticipation of such Condemnation Event or in
settlement of any proceeding relating to such Condemnation Event and (ii) with
respect to any other Casualty Event, all insurance proceeds (excluding payments
with respect to business interruption) or other payments which any Crown Company
or the Collateral Agent receives by reason of such other Casualty Event.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time, and the regulations
promulgated thereunder.
"Chase" means The Chase Manhattan Bank, a banking corporation chartered
under the laws of the state of New York, and its successors.
"Change of Control" shall mean and be deemed to have occurred if any
Person or "group" (within the meaning of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, and regulations promulgated thereunder) shall
have acquired the power (whether or not exercised) to elect a majority of
Borrower's directors.
"Chapter 11 Cases" has the meaning set forth in the recitals to this
Agreement.
"Chapter 11 Party" means the Borrower and each Affiliate of the Borrower
that is the subject of a Chapter 11 Case.
"Closing" means the closing hereunder on the Closing Date.
"Closing Date" means the date on which the Administrative Agent shall
have received the documents specified in or pursuant to Section 3.01 and the
other conditions specified in Section 3.01 shall have been satisfied.
<PAGE>
"Co-Arrangers" means J.P. Morgan Securities, Inc. and Chase Securities
Inc., as Joint Lead Arrangers and Joint Book Managers in respect of the credit
facility contemplated by this Agreement.
"Collateral" means all property, real and personal, tangible and
intangible, with respect to which Liens are created or purportedly created for
the benefit of Lenders pursuant to the Collateral Documents.
"Collateral Agent" means Morgan, in its capacity as collateral agent for
the holders of the Secured Obligations under the Collateral Documents, and its
successors in such capacity.
"Collateral Documents" means the Security Agreement, the Security
Agreement Supplements, the Mortgages and all other supplemental or additional
security agreements, mortgages or similar instruments delivered pursuant hereto
or thereto or pursuant to an applicable order of the Court.
"Commitment" means (i) with respect to each Lender listed on the
Commitment Schedule, the amount set forth opposite such Lender's name on the
Commitment Schedule and (ii) with respect to any Assignee which becomes a Lender
pursuant to Section 11.06(c), the amount of the transferor Lender's Commitment
assigned to it pursuant to Section 11.06(c), in each case as such amount may be
changed from time to time pursuant to Section 2.11 or 11.06(c); provided that,
if the context so requires, the term "Commitment" means the obligation of a
Lender to extend credit up to such amount to the Borrower hereunder.
"Commitment Fee Rate" means 1/2 of 1% per annum.
"Commitment Schedule" means the Commitment Schedule attached hereto.
"Commitment Termination Date" means the earliest of (i) the Stated
Maturity Date; (ii) the effective date of a plan of reorganization in one or
more of the Chapter 11 Cases, as specified in such plan; (iii) the date
distributions commence to any class of creditors, equity holders or other
claimants under any such plan of reorganization in one or more of the Chapter 11
Cases; (iv) the date of termination in whole of the Commitments pursuant to
Section 8.01; (v) the date of filing with the Court of any plan of
reorganization or any modification to any previously filed plan of
reorganization in any Chapter 11 Case that does not provide for performance by
the Credit Parties of the Financing Documents strictly in accordance with their
terms; (vi) the date that is fifteen (15) days after the Petition Date, if
neither the Interim Borrowing Order nor the Borrowing Order has been entered by
the Court by such date; (vii) the date that is thirty-five (35) days after the
Petition Date if the Borrowing Order has not been entered by the
<PAGE>
Court by such date; and (viii) the date of any sale, transfer or other
disposition of all or substantially all of the assets or stock of the Borrower.
"Concentration Accounts" has the meaning set forth in Section 5(a) of the
Security Agreement.
"Condemnation Event" means any condemnation or other taking or temporary
or permanent requisition of any property, any interest therein or right
appurtenant thereto, or any change of grade affecting any property, as the
result of the exercise of any right of condemnation or eminent domain. A
transfer to a governmental authority in lieu of or in anticipation of
condemnation shall be deemed to be a Condemnation Event.
"Consolidated Capital Expenditures" means, for any period, the gross
additions to property, plant and equipment and other capital expenditures of
Crown Vantage and its Consolidated Subsidiaries for such period, as the same are
or would be reflected in a consolidated statement of cash flows of Crown Vantage
and its Consolidated Subsidiaries for such period.
"Consolidated EBITDA" means, for any period, all as determined in
accordance with GAAP, the consolidated net income (or net loss) of Crown Paper
and its Consolidated Subsidiaries for such period, plus (a) the sum of (i)
depreciation expense, (ii) amortization expense, (iii) other non-cash expenses,
(iv) provision for LIFO adjustment for inventory valuation, (v) net total
federal, state and local income tax expense, (vi) gross interest expense for
such period less gross interest income for such period, (vii) extraordinary
losses, (viii) any non-recurring charge or restructuring charge, (ix) the
cumulative net effect (whether positive or negative) of any change in accounting
principles and (x) "chapter 11 expenses" (or "administrative costs reflecting
chapter 11 expenses") as shown on the Borrower's consolidated statement of
income for such period less (b) extraordinary gains plus or minus (c) the amount
of cash received or expended in such period in respect of any amount which,
under clauses (iii) and (viii) above, was taken into account in determining
Consolidated EBITDA for such or any prior period.
"Consolidated Subsidiary" means, as to any Person at any date, any
Subsidiary or other entity the accounts of which would be consolidated with
those of such Person in its consolidated financial statements if such statements
were prepared as of such date. Unless otherwise specified, "Consolidated
Subsidiary" means a Consolidated Subsidiary of Crown Paper.
"Court" has the meaning set forth in the recitals to this Agreement.
"Credit Event" means (i) the making of a Loan, (ii) the issuance of a
Letter of Credit or (iii) the extension of the expiry date of a Letter of
Credit.
<PAGE>
"Credit Exposure" means, as to any Lender, (i) at any time before the
termination of its Commitment in its entirety, the amount of its Commitment at
such time; or (ii) at any time thereafter, if the Commitments have terminated in
their entirety, its Outstanding Committed Amount, all determined at such time
after giving effect to any prior assignments by or to such Lender pursuant to
Section 11.06(c).
"Credit Facilities" means the credit facilities provided to the Borrower
under Sections 2.01(a), 2.01(b) and 2.06 and the other provisions hereof
relating to Loans and Letters of Credit.
"Credit Parties" means the Borrower and the Guarantors, collectively.
"Crown Companies" means, collectively, Crown Vantage, Crown Paper and
their respective Subsidiaries.
"Crown Paper" has the meaning set forth in the Introduction to this
Agreement.
"Crown Vantage" means Crown Vantage, Inc., a Virginia corporation.
"Cumulative Tax Refund Amount" has the meaning set forth in Section
2.09(d).
"Current Asset Borrowing Base" means, at any time, the Borrowing Base at
such time adjusted to exclude the Facilities Amount at such time.
"Debt" of any Person means, without duplication, (i) all obligations of
such Person for borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes, sinking fund preferred stock or other similar
instruments, (iii) all obligations of such Person to pay the deferred purchase
price of property or services, (iv) all obligations of such Person as lessee
under Capital Leases, (v) all obligations of such Person to purchase securities
which arise out of or in connection with the sale of the same or substantially
similar securities, (vi) all obligations of such Person (whether contingent or
noncontingent) to reimburse any Lender or other Person in respect of amounts
paid under a letter of credit, banker's acceptance or similar instrument, (vii)
all obligations secured by a Lien on any asset of such Person, whether or not
such Debt is otherwise an obligation of such Person, and (viii) all Guarantees
by such Person of obligations of another Person (each such Guarantee to
constitute Debt in an amount equal to the maximum amount of such other Person's
obligations Guaranteed thereby); provided that neither trade-accounts payable
nor obligations arising after the Petition Date in respect of insurance policies
or performance or surety bonds which are not themselves Guarantees of Debt (nor
drafts, acceptances or similar instruments evidencing the same nor obligations
in respect of letters of credit supporting the payment of the same) shall
constitute Debt.
<PAGE>
"Default" means any condition or event that constitutes an Event of
Default or that with the giving of notice or lapse of time or both would, unless
cured or waived, become an Event of Default.
"Default Excess" has the meaning set forth in Section 2.17.
"Default Period" has the meaning set forth in Section 2.17.
"Defaulted Lending Commitment" has the meaning set forth in Section 2.17.
"Defaulting Lender" has the meaning set forth in Section 2.17.
"Deposit Account" means a demand, time, savings, passbook or like account
with a bank, savings and loan association, credit union or like organization,
other than an account evidenced by a negotiable certificate of deposit.
"DIP Operating Plan" has the meaning set forth in Section 5.01(t).
"Dilution Factor" means with respect to any period, (a) the aggregate
amount of all deductions, discounts, other negative adjustments, credit memos
and write-offs with respect to Accounts during such period, divided by (b) the
aggregate gross sales attributable to Accounts during such period.
"Dilution Reserve" means, as of any date, (a) the Dilution Factor for the
immediately preceding twelve-month period (ending as the of the date of the
calculation of the Borrowing Base then in effect, which date is set forth on the
applicable Borrowing Base Certificate) multiplied by (b) the Eligible Accounts
Receivable on such date.
"Dollar" means lawful money of the United States of America.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized by law to close.
"Domestic Lending Office" means, as to each Lender, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
<PAGE>
"Eastern Time" means local time in the Eastern time zone of the United
States.
"Eligible Accounts Receivable" means, with respect to the Borrower on any
date, all Accounts of the Borrower on such date that (i) have been invoiced and
represent the bona fide sale and delivery of merchandise in the ordinary course
of business of the Borrower in connection with its trade operations and (ii) are
deemed by the Collateral Agent in good faith to be eligible for inclusion in the
calculation of the Borrowing Base. Without limiting the foregoing, to qualify as
an Eligible Account Receivable an Account shall indicate as sole payee and as
sole remittance party the Borrower. In determining the amount to be so included,
the face amount of Accounts shall be reduced by (a) the amount of all accrued
and actual returns, discounts, claims, credits, charges, price adjustments or
other allowances (including any amount that the Borrower may be obligated to
rebate to a customer pursuant to the terms of any agreement or understanding
(written or oral)), (b) the aggregate amount of all reserves, limits and
deductions provided for in this definition and elsewhere in this Agreement, (c)
the aggregate amount of all cash received in respect of Accounts but not yet
applied by the borrower, and (d) as the Administrative Agent and the Syndication
Agent acting jointly in their exclusive discretion may deem necessary. Standards
of eligibility may be fixed from time to time by the Administrative Agent and
the Syndication Agent, acting jointly, in the exercise of their reasonable
judgment, with any changes in such standards to be effective 10 days after
delivery of notice thereof to the Borrower. Unless otherwise approved from time
to time in writing by the Collateral Agent, no Account shall be an Eligible
Account Receivable if:
(a) the Borrower does not have sole lawful and absolute title to such
Account; or
(b) the Account arises out of a sale made to an Affiliate; or
(c) the Account (i) is unpaid more than 60 days from the due date or
more than 90 days from the date of invoice or (ii) has been written off
the books of the Borrower or has been otherwise designated as
uncollectible; or
(d) more than 25% in face amount of all Accounts of the same Account
Debtor and its known Affiliates, taken together, are ineligible pursuant
to clause (c) above; or
(e) the Account Debtor (i) is a creditor of the Borrower or any
Credit Party (ii) has or has asserted a right of setoff against the
Borrower or any Credit Party or (iii) has disputed its liability (whether
by chargeback or otherwise) or made any claim with respect to the Account
or any other Account of the Borrower or any Credit Party which has not
been resolved, in each case, without duplication, to the extent of the
amount owed by the Borrower or such Credit Party), to the Account Debtor,
the amount of such actual or asserted right of setoff, or the amount of
such dispute or claim, as the case may be; or
(f) the Account Debtor is insolvent or the subject of any bankruptcy
case or insolvency proceeding of any kind; or
(g) the Account is not payable in Dollars or the Account Debtor is
either not organized under the laws of the United States of America or
any State thereof or Canada or is located outside or has its principal
place of business or
<PAGE>
substantially all of its assets outside the continental United States or
Canada, except to the extent the Account is supported by an irrevocable
letter of credit reasonably satisfactory to the Agent (as to form,
substance and issuer) and assigned to and directly drawable by the
Collateral Agent, or
(h) the sale to the Account Debtor is on a bill-and-hold, guaranteed
sale, sale-and-return, ship-and-return sale on approval or consignment or
other similar basis or made pursuant to any other written agreement
providing for repurchase or return of any merchandise which has been
claimed to be defective or otherwise unsatisfactory; or
(i) the Account Debtor is the United States of America or any
department, agency or instrumentality thereof, unless the Borrower duly
assigns its rights to payment of such Account to the Agent pursuant to
the Assignment of Claims Act of 1940, as amended, which assignment and
related documents and filings shall be in form and substance reasonably
satisfactory to the Agent; or
(j) the goods giving rise to such Account have not been shipped and
title has not been transferred to the Account Debtor, or the Account
represents a progress-billing or otherwise does not represent a completed
sale; or
(k) the Account does not comply in all material respects with the
requirements of all applicable laws and regulations, whether Federal,
state or local, including without limitation the Federal Consumer Credit
Protection Act, the Federal Truth in Lending Act and Regulation Z of the
Board of Governors of the Federal Reserve System; or
(l) the Account is subject to any adverse security deposit, retainage
or other similar advance made by or for the benefit of the Account
Debtor, in each case to the extent thereof; or
(m) the Account (i) is not subject to a valid and perfected first
priority Lien in favor of the Collateral Agent for the benefit of the
holders of the Secured Obligations, subject to no other Liens other than
the Liens (if any) permitted by the Financing Documents or (ii) does not
otherwise conform in all material respects to the representations and
warranties contained in the Financing Documents relating to Accounts; or
(n) as to all or any part of such Account, a check, promissory note,
draft, trade acceptance or other Instrument for the payment of money has
been received, presented for payment and returned uncollected for any
reason; or
(o) the Account is not payable directly to any lockbox account
designated by the Collateral Agent and the Cash Concentration Bank,
acting jointly, in their exclusive discretion.
In determining the aggregate amount of Accounts from the same Account
Debtor that are unpaid more than 60 days from the due date or more than 90 days
from the date of invoice pursuant to clause (c) above, there shall be excluded
the amount of any net credit balances relating to Accounts with invoice dates
more than 60 days from the due date or more than 90 days from the date of
invoice.
"Eligible Assignee" means any Person that is at the time of the relevant
assignment either (A) (i) a commercial bank organized under the laws of the
United States or any state thereof having unimpaired capital and surplus of not
less than $500,000,000; (ii) a savings and loan association or savings bank
organized under the
<PAGE>
laws of the United States or any state thereof having unimpaired capital and
surplus of not less than $500,000,000; (iii) a commercial bank organized under
the laws of any other country or a political subdivision thereof having
unimpaired capital and surplus of not less than $500,000,000; provided that (x)
such bank is acting through a branch or agency located in the United States or
(y) such bank is organized under the laws of a country that is a member of the
Organization for Economic Cooperation and Development or a political subdivision
of such country; or (iv) an "accredited investor" (as defined in Regulation D
under the Securities act) which extends credit as one of its businesses
including, but not limited to, insurance companies, mutual funds and lease
financing companies and having unimpaired capital and surplus of not less than
$100,000,000; or (B) a Lender or an Affiliate of a Lender; provided that no
Crown Company and no Affiliate of a Crown Company shall be an Eligible Assignee;
and provided further that Eligible Assignee shall mean and include any other
Person designated as such pursuant to the prior written consent of (y)
Administrative Agent and the Syndication Agent (such consent not to be
unreasonably withheld or delayed) and (z) as long as no Event of Default has
occurred or is continuing, the Borrower (such consent not to be unreasonably
withheld or delayed).
"Eligible Inventory" means at the time of any determination thereof,
without duplication, all Inventory at the time of such determination that is not
ineligible for inclusion in the calculation of the Borrowing Base pursuant to
any of clauses (a) through (i) below or otherwise deemed by the Administrative
Agent and the Syndication Agent acting jointly and in good faith to be
ineligible for inclusion in the calculation of the Borrowing Base as described
below. Without limiting the foregoing, to qualify as "Eligible Inventory" no
person other than the Borrower shall have any direct or indirect ownership
interest or title to such Inventory and no person other than the Borrower shall
be indicated on any purchase order or invoice with respect to such Inventory as
having or purporting to have an interest therein. Standards of eligibility may
be fixed from time to time exclusively by the Administrative Agent and the
Syndication Agent, acting jointly, in the exercise of their reasonable judgment,
with any changes in such standards to be effective 10 days after delivery of
notice thereof to the Borrower. Unless otherwise from time to time approved in
writing by the Agent, no Inventory shall be deemed Eligible Inventory if,
without duplication:
(a) the Borrower does not have sole and good, valid and unencumbered
title thereto; or
(b) it is not located in the United States; or
(c) it is not located on property owned or leased by the Borrower or
in a contract warehouse, in each case, specified on Schedule 2, and,
except as otherwise approved by the Collateral Agent, covered by an
agreement reasonably satisfactory in form and substance to the Collateral
Agent covering the Collateral Agent's access to such Inventory and
waiving the lessor's or contract warehouseman's Liens therein and
segregated or otherwise separately identifiable from goods of all others,
if any, stored on the premises; or
<PAGE>
(d) it is raw materials other than pulp/fiber, woodchips, hardwood
logs and softwood logs or has not been expressly designated by the
Administrative Agent and Syndication Agent as Eligible Inventory; or
(e) it is stores supplies inventory, packing or shipping materials or
maintenance supplies; or
(f) it is work in process inventory; or
(g) it is not subject to a valid and perfected first priority Lien in
favor of the Collateral Agent for the benefit of the holders of the
Secured Obligations; or
(h) it is goods returned or rejected by the Borrower's customers or
goods in transit to third parties (other than to warehouse sites
described in clause (c) above); or
(i) it is inactive, experimental, seconds or thirds or is obsolete or
slow-moving or unmerchantable, or does not otherwise conform to the
representations and warranties contained in the Financing Documents.
"Eligible Inventory Value" means at the time of any determination thereof
the lower of cost (less any appropriate revaluation reserves or reserve for
obsolete Inventory and any profits accrued in connection with transfers of
Inventory between any locations) or fair market value of the Eligible Inventory
at such time, in Dollars, determined in accordance with the standard cost method
of accounting less, in the event variances under the standard cost method (i)
are capitalized, favorable variances shall be deducted from Eligible Inventory
Value, and unfavorable variances shall not be added to Eligible Inventory Value,
and (ii) are expensed, a reserve shall be determined as appropriate in order to
adjust the standard cost of Eligible Inventory value to approximate actual cost.
"Enforceable Judgment" means a judgment or order of a court or arbitral
or regulatory authority as to which the period, if any, during which the
enforcement of such judgment or order has been stayed shall have expired. A
judgment or order which is under appeal or as to which the time in which to
perfect an appeal has not expired shall not be deemed an Enforceable Judgment so
long as enforcement thereof is effectively stayed pending the outcome of such
appeal or the expiration of such period, as the case may be.
"Enforcement Notice" means a notice delivered by the Administrative Agent
to the Collateral Agent pursuant to Section 8.03 directing the Collateral Agent
to exercise one or more specific rights or remedies under the Collateral
Documents.
"Environmental Laws" means CERCLA and all other federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, codes, plans, injunctions, permits, concessions,
grants, franchises, licenses, agreements and governmental restrictions relating
to the environment or to the effect of the environment on human health or to
emissions, discharges or releases of pollutants, contaminants, Hazardous
Substances or wastes into the environment, including ambient air, surface water,
ground water or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, Hazardous Substances or wastes or the clean-up or
other remediation thereof.
<PAGE>
"Environmental Liabilities" means all liabilities (including anticipated
compliance costs) in connection with or relating to the business, assets
presently or previously owned, leased or operated property, activities
(including, without limitation, off-site disposal) or operations of any Crown
Company, whether vested or unvested, contingent or fixed, actual or potential,
known or unknown, which arise under or relate to matters covered by
Environmental Laws.
"Equity Interest" means (i) in the case of a corporation, any shares of its
capital stock, (ii) in the case of a limited liability company, any membership
interest therein, (iii) in the case of a partnership, any partnership interest
(whether general or limited) therein, (iv) in the case of any other business
entity, any participation or other interest in the equity or profits thereof or
(v) any warrant, option or other right to acquire any Equity Interest described
in the foregoing clauses (i), (ii), (iii) and (iv).
"Equity Issuance" means any issuance or sale by any Crown Company of any
Equity Interest in such Crown Company.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Crown Companies, all members of a controlled group
of corporations, and all trades or businesses (whether or not incorporated)
under common control which, together with Crown Companies, are treated as a
single employer under Section 414 of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Lender, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Euro-
Dollar Lending Office) or such other office, branch or affiliate of such Lender
as it may hereafter designate as its Euro-Dollar Lending Office by notice to the
Borrower and the Administrative Agent.
"Euro-Dollar Loan" means (i) a Loan which bears interest at a Euro-Dollar
Rate pursuant to the applicable Notice of Borrowing or Notice of Interest Rate
Election or (ii) an overdue amount of principal on a Loan which was a Euro-
Dollar Loan immediately before it became overdue.
"Euro-Dollar Rate" means a rate of interest determined pursuant to Section
2.05(b) on the basis of a London Interbank Offered Rate.
<PAGE>
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion Dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
United States residents).
"Event of Default" means any event defined as an "Event of Default" in
Section 8.01.
"Excess Cash Amount" has the meaning set forth in Section 2.09(f).
"Excess Casualty Proceeds" has the meaning set forth in Section 5.08(a).
"Executive Officer" of any Person means any "executive officer" (within the
meaning of Rule 3b-7 under the Securities Exchange Act) of such Person.
"Existing Credit Agreement" means the Credit Agreement dated August 15,
1995 among Crown Paper, Crown Vantage, various banks, various letter of credit
issuing banks, and Morgan Guaranty Trust Company of New York, as Administrative
Agent.
"Existing Credit Facilities" means, collectively, (i) the Existing Credit
Agreement, (ii) all agreements, documents and instruments pursuant to which any
interest in collateral is granted or purported to be granted, created, evidenced
or perfected in connection with the Existing Credit Agreement, including without
limitation, all deeds of trust, mortgages, security agreements, pledge
agreements, assignments, licenses, landlord consents and releases, financing
statements, fixture filings, registrations or similar documents and (iii) all
ancillary agreements as to which any holder of any of the obligations evidenced
by any of the foregoing is a party or a beneficiary and all other agreements,
instruments, documents and certificates including promissory notes, consents,
assignments, contracts, and notices delivered in connection with any of the
foregoing or the transactions contemplated thereby, in each case as any of the
foregoing may be in effect as of the Closing Date and as the same may be
amended, supplemented or otherwise modified from time to time to the extent
permitted hereunder.
"Existing Lender" means each of the "Banks" party to the Existing Credit
Facilities (as defined therein).
<PAGE>
"Existing Lender Lien" means the adequate protection lien provided to the
Existing Lenders as set forth in the Interim Borrowing Order and Borrowing
Order.
"Existing Note Indenture" means the Indenture, dated as of August 23, 1995,
between Crown Paper and The Bank of New York, as trustee.
"Existing Notes" means the securities issued pursuant to the Existing Note
Indenture.
"Facilities Amount" means, at any time, an amount equal to the lesser of
(i) $40 million or (ii) 66 2/3% of the Current-Asset Borrowing Base at such
time.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to the Administrative Agent on such day on
such transactions as determined by the Administrative Agent.
"Fee Mortgages" means fee mortgages substantially in the form of Exhibit G
to the Security Agreement relating to real property owned in fee by the Borrower
or any Guarantor which is required to be so encumbered to secure the Obligations
pursuant to Section 3.01(e) or Section 5.07.
"Final Order" means an order, judgment or other decree of the Court or any
other court or judicial body with proper jurisdiction, as the case may be, which
is in full force and effect and has not been reversed, stayed, modified or
amended and as to which (a) any right to appeal or seek certiorari, review or
rehearing has been waived or (b) the time to appeal or seek certiorari, review
or rehearing has expired and as to which no appeal or petition for certiorari,
review or rehearing is pending.
"Financial Accommodations" means arrangements for the extension of credit
or other financial accommodation to one or more of the Crown Companies,
including committed or uncommitted lines of credit for advances or other
financial accommodation, letters of credit, performance and surety bonds and the
like, committed or uncommitted agreements for the purchase of accounts
receivable or other financial assets, with or without recourse or repurchase
obligation, forward and future contracts for purchase of bullion or foreign
currencies and other similar arrangements and interest rate swaps and
<PAGE>
other similar arrangements, but excluding (a) trade-accounts payable arising in
the ordinary course of business, (b) obligations arising after the Petition Date
in respect of insurance policies or performance or surety bonds which are not
themselves Guarantees of Debt (including drafts, acceptances or similar
instruments evidencing the same and obligations in respect of letters of credit
supporting the payment of the same) and (c) Debt, Letters of Credit and
Commitments under this Agreement.
"Financial Officer" means, with respect to any Person, the principal
financial officer, principal accounting officer or treasurer of such Person.
"Financing Documents" means this Agreement (including the Schedules and
Exhibits hereto), the Notes, the Guaranty Agreement and the Collateral
Documents.
"First Day Orders" means those orders entered by the Court as a result of
motions and applications filed by the Borrower with the Court on the Petition
Date, in each case in form and substance as approved by the Administrative Agent
and the Syndication Agent pursuant to Section 3.01(p).
"Fiscal Quarter" means a fiscal quarter of Crown Paper.
"Fiscal Year" means a fiscal year of Crown Paper.
"Funding Default" has the meaning set forth in Section 2.17.
"GAAP" means at any time generally accepted accounting principles as then
in effect in the United States, applied on a basis consistent (except for
changes concurred in by Crown Vantage's independent public accountants) with the
Most Recent Audited Financial Statements.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
<PAGE>
"Group of Loans" means at any time a group of Loans consisting of (i) all
Loans that are Base Rate Loans at such time or (ii) all Loans that are Euro-
Dollar Loans having the same Interest Period at such time; provided that, if a
Loan of any particular Lender is converted to or made as a Base Rate Loan
pursuant to Section 10.02 or 10.05, such Loan shall be included in the same
Group or Groups of Loans from time to time as it would have been in if it had
not been so converted or made.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of such Debt (whether
arising by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or- pay, or to maintain
financial statement conditions or otherwise), (ii) to reimburse a bank for
drawings under a letter of credit for the purpose of paying such Debt or (iii)
entered into for the purpose of assuring in any other manner the holder of such
Debt of the payment thereof or to protect such holder against loss in respect
thereof (in whole or in part); provided that the term "Guarantee" shall not
include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee", when used as a verb, has a corresponding
meaning.
"Guarantor" means Crown Vantage and Crown Vantage Sales Corp., each of
which shall (i) guarantee the obligations of the Borrower under the Financing
Documents pursuant to a Guaranty Agreement and (ii) grant a security interest in
their assets to the Collateral Agent under the Security Agreement to secure
their Guaranty Agreement.
"Guaranty Agreement" means the Guaranty Agreement, substantially in the
form of Exhibit C hereto, setting forth the Guarantees of the Obligations by the
Guarantors.
"Hazardous Substances" means any toxic, radioactive, corrosive or otherwise
hazardous substance, including petroleum, its derivatives, by-products and other
hydrocarbons, or any substance having any constituent elements displaying any of
the foregoing characteristics, whether or not regulated under Environmental
Laws.
"Indemnitee" has the meaning set forth in Section 11.03(b).
"Interest Period" means, with respect to each Euro-Dollar Loan, a period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in the applicable Notice of Interest Rate
Election and ending one, two or three months thereafter, as the Borrower may
elect in the applicable notice; provided that:
<PAGE>
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall, subject to clause (c) below, be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-
Dollar Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business
Day of a calendar month; and
(c) any Interest Period which would otherwise end after the Stated
Maturity with respect to the Loans comprising such Borrowing shall end on
the Stated Maturity.
"Interim Borrowing Order" means an order of the Court entered in the
Chapter 11 Cases after a hearing under Bankruptcy Rules 4001(c)(2) and 4001(d)
in the form attached hereto as Exhibit I, with any modifications thereto on or
prior to the Closing Date or entry thereof as are approved by the Administrative
Agent and the Syndication Agent in their exclusive discretion, as the same may
thereafter be amended, supplemented or otherwise modified from time to time with
the express written consent of the Required Lenders.
"Interim Order Date" means the date that the Court signs the Interim
Borrowing Order.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor statute.
"Inventory" means inventory (as defined in Article 9 of the Uniform
Commercial Code) to the extent comprised of readily marketable materials,
products or goods of a type manufactured or consumed by the Borrower or any
Guarantor in the ordinary course of business as currently conducted (but
excluding work-in-process not readily marketable in its current form).
"Inventory Reserves" means at the time of any determination the reserves
for finished goods, raw materials, lower of cost or market, revaluation of
direct materials, revaluation of finished goods, standard cost revaluation,
landlord liens, intracompany profit, transfer pricing, capitalized favorable
variances, excess and obsolete inventory, cycle count adjustments, shrinkage,
warranties and scrap, each as calculated and recorded in accordance with
historical practices of the Borrower, and any other reserves that the
Administrative Agent and the Syndication Agent in their exclusive discretion may
deem necessary.
"Investment" means, with respect to any Person (the "Investor"), any
investment by the Investor in any other Person, whether by means of share
purchase, capital
<PAGE>
contribution, loan, advance, purchase of Debt, payment in respect of a Guarantee
of Debt, time deposit or otherwise.
"LC Exposure" means, with respect to any Lender at any time, its Percentage
of the Aggregate LC Exposure at such time.
"LC Fee Rate" means a per annum rate equal to 3.25% or, upon the occurrence
and during the continuation of any Event of Default, 5.25%.
"LC Indemnitees" has the meaning set forth in Section 2.06(n).
"LC Issuing Bank" means (i) Morgan and (ii) any other Lender (that is
willing so to act), designated as an "LC Issuing Bank" for purposes hereof in a
notice to the Administrative Agent signed by Crown Paper (acting on its own
behalf) and such Lender, acting in each case in the capacity of an LC Issuing
Bank under the letter of credit facility described in Section 2.06, and their
respective successors.
"LC Office" means, with respect to any LC Issuing Bank, the office at which
it books any Letter of Credit issued by it.
"LC Payment Date" has the meaning set forth in Section 2.06(h).
"LC Reimbursement Obligations" means, at any time, all obligations of the
Borrowers to reimburse the LC Issuing Banks pursuant to Section 2.06 for amounts
paid by the LC Issuing Banks in respect of drawings under Letters of Credit,
including any portion of any such obligation to which a Lender has become
subrogated pursuant to Section 2.06(j)(i).
"LC Request" has the meaning set forth in Section 2.06(c).
"Leasehold Mortgages" means leasehold mortgages, substantially in the form
of Exhibit H to the Security Agreement, relating to the leases of any real
properties leased by any Crown Company which are required to be so encumbered to
secure the Obligations.
"Lender" means each bank or other financial institution listed on the
Commitment Schedule, each Assignee which becomes a "Lender" for purposes hereof
pursuant to Section 11.06, and their respective successors.
"Lender Parties" means the Lenders, each LC Issuing Bank and the Agents.
<PAGE>
"Letter of Credit" means any letter of credit issued hereunder by an LC
Issuing Bank.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset or
any other arrangement (other than a right of set-off, recoupment, counterclaim
or similar right) the economic effect of which is to give a creditor
preferential access to such asset to satisfy its claim. For purposes of this
Agreement, any Crown Company shall be deemed to own subject to a Lien any asset
that it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement or other title retention agreement relating
to such asset or any Capital Lease.
"Lien Grantor" means a Crown Company that grants a Lien on any of its
property pursuant to the Collateral Documents.
"Margin Stock" has the meaning set forth in Regulation U.
"Material Adverse Effect" means (i) any material adverse effect upon the
condition (financial or otherwise), results of operations, business or prospects
of Crown Vantage and its Consolidated Subsidiaries, taken as a whole, (ii) an
adverse effect on the validity, binding effect or enforceability of this
Agreement or any other material Financing Document or (iii) a material adverse
effect on the validity, perfection or priority of any Lien on any of the
Collateral created or purportedly created under the Collateral Documents;
provided that a Material Adverse Effect shall not be deemed to have occurred
solely on account of (a) the events, occurrences and circumstances disclosed
prior to the date hereof in writing to the lenders under the Existing Credit
Facilities, and (b) the commencement of the Chapter 11 Cases.
"Material Contract" means any contract or other arrangement to which any
Crown Company is a party (other than the Financing Documents) for which breach,
nonperformance, cancellation or failure to renew could reasonably be expected to
have a Material Adverse Effect.
"Material Plan" means at any time a Plan or Plans having aggregate Unfunded
Liabilities in excess of $1,000,000.
"Moody's" means Moody's Investors Service, Inc.
"Morgan" means Morgan Guaranty Trust Company of New York, a New York trust
company, and its successors.
<PAGE>
"Mortgages" means the Leasehold Mortgages and Fee Mortgages, collectively.
"Most Recent Audited Financial Statements" means the audited consolidated
financial statements of Crown Vantage as of December 27, 1998.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Net Cash Proceeds" means, with respect to any Asset Sale, Equity Issuance
or incurrence of Debt, an amount equal to the cash proceeds received by the
Crown Companies in respect of such Asset Sale, Equity Issuance or incurrence of
Debt (including any cash proceeds received as income or other cash proceeds of
any noncash proceeds of such Asset Sale), less (i) any expenses reasonably
incurred by the Crown Companies in respect of such Asset Sale, Equity Issuance
or incurrence of Debt (including reasonable fees, commissions and expenses of
attorneys, brokers or finders and including any payment with respect to taxes
actually paid or to become payable by the Crown Companies (as reasonably
estimated by the Financial Officer) in respect of such Asset Sale, Equity
Issuance or incurrence of Debt) and approved by the Court, if such approval is
necessary pursuant to the Bankruptcy Code or any applicable order of the Court,
and (ii) in the case of any Asset Sale, any proceeds of such Asset Sale required
pursuant to an order of the Court to be applied to or held for the payment of
Debt secured by a Lien with priority over the Lien of the Collateral Agent on
the assets being sold.
"Notes" means promissory notes of the Borrower, substantially in the form
of Exhibit A hereto, evidencing the Borrower's obligation to repay the Loans,
and "Note" means anyone of such promissory notes issued hereunder.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Notice of Interest Rate Election" has the meaning set forth in Section
2.19.
"Obligations" means all obligations of every nature of the Borrower under
the Financing Documents, including, without limitation, any liability of the
Borrower on any claim, whether or not the right to payment in respect of such
claim is reduced to judgment, liquidated, unliquidated, fixed or contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured, and
whether or not such claim is discharged, stayed or otherwise affected by any
bankruptcy, insolvency, reorganization or other similar proceeding. Without
limiting the generality of the foregoing, the Obligations of the Borrower under
the Financing Documents include (a) the obligation to pay principal, interest,
charges, expenses, fees, attorneys' and other professionals' fees and
<PAGE>
disbursements, indemnities and other amounts payable by the Borrower under any
Financing Document and (b) the obligation to reimburse any amount in respect of
any of the foregoing that any Agent or any Lender, in its sole discretion, may
elect to pay or advance on behalf of the Borrower.
"Organizational Documents" means (i) with respect to any corporation, its
certificate or articles of incorporation, by-laws and other constitutional
documents, including the certificate of designation for any series of its
preferred stock, (ii) with respect to any limited liability company, its
articles of organization and operating agreement, or other comparable documents
however named, and (iii) with respect to any partnership, its partnership
agreement.
"Outstanding Committed Amount" means, with respect to any Lender at any
time, the sum of (i) the aggregate outstanding principal amount of its Loans and
(ii) its Commitment Percentage of the Aggregate LC Exposure, all determined at
such time after giving effect to any prior assignments by or to such Lender
pursuant to Section 11.06(c).
"Parent" means, with respect to any Lender, any Person controlling such
Lender.
"Participant" has the meaning set forth in Section 11.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Percentage" means, with respect to any Lender at any time, the percentage
which the amount of its Commitment at such time represents of the aggregate
amount of all the Commitments at such time. At any time after the Commitments
shall have terminated, the term "Percentage" shall refer to a Lender's
Percentage immediately before such termination, adjusted to reflect any
subsequent assignments pursuant to Section 11.06(c).
"Permitted Encumbrances" means, with respect to any property (including any
leasehold interest) owned by any Crown Company:
( ) Liens for taxes, assessments or other governmental charges not yet due
or which are being contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the books of such Crown
Company in accordance with GAAP;
( ) carriers', warehousemen's, mechanics', materialmens', repairmens' or
other like Liens arising by operation of law in the ordinary course of business
so long as (x) the underlying obligations are not overdue for a period of more
than 60 days or (y) such Liens are being contested in good faith and by
appropriate proceedings and adequate
<PAGE>
reserves with respect thereto are maintained on the books of such Crown Company
in accordance with GAAP; and
( ) other Liens or title defects (including matters which an accurate
survey might disclose and exceptions to title set forth in title insurance with
respect to the Fee Mortgages) which (x) do not secure Debt and (y) do not
materially detract from the value of such property or materially impair the use
thereof by such Crown Company in the operation of its business.
"Permitted Intercompany Debt" means unsecured Debt owed by the Borrower to
any Guarantor; provided that such Debt is either evidenced by a promissory note
or maintained in the form of open account balances in which, in either case, the
Collateral Agent has a first priority, perfected security interest under the
Interim Borrowing Order, the Borrowing Order or the Security Agreement at all
times until such security interest is released pursuant to Section 14 thereof.
"Permitted Overdrafts" has the meaning set forth in Section 7.01.
"Person" means an individual, a corporation, a limited liability company, a
partnership, an association, a trust, an estate or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Petition Date" has the meaning set forth in the recitals to this
Agreement.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Prepayment Account" means an account or accounts established by the
Collateral Agent or the Cash Concentration Bank to maintain funds for the
benefit of the Lenders for prepayments as prescribed hereunder.
"Prepayment Notice" means a properly completed Prepayment Notice,
substantially in the form of Exhibit G hereto.
"Pre-Petition Indebtedness" means Debt of any Chapter 11 Party outstanding
on the Petition Date, including Debt under the Existing Credit Facilities and
the Existing Notes.
<PAGE>
"Pre-Petition Payment" shall mean a payment (by way of adequate protection
or otherwise) of principal or interest or otherwise on account of any Pre-
Petition Indebtedness or trade payables or other pre-petition claims against any
Chapter 11 Party.
"Prime Rate" means the rate of interest established by the Administrative
Agent from time to time as its Prime Rate.
"Reference Banks" means the principal London offices of Morgan and Chase,
and "Reference Bank" means any one of such Reference Banks.
"Register" has the meaning set forth in Section 11.06(e).
"Regulated Activity" means any generation, treatment, storage, recycling,
transportation or disposal of any Hazardous Substance.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Related Fund" means, with respect to any Lender that is both (y) a fund
and (z) invests in commercial loans, any other fund that invests in commercial
loans and is managed by the same investment advisor as such Lender or by an
affiliate of such investment advisor.
"Release" means any discharge, emission or release, including a Release as
defined in CERCLA at 42 U.S.C. Section 9601(22). The term "Release", when used
as a verb, has a corresponding meaning.
"Replacement Lender" has the meaning set forth in Section 2.19.
"Reportable Event" has the meaning set forth in Section 5.01(j).
"Required Lenders" means Lenders having outstanding Credit Exposures in an
aggregate amount (excluding accrued interest) equal to more than 51% of the
aggregate amount of the Credit Exposures of all Lenders at such time.
"Restricted Payment" means (i) any dividend or other distribution in
respect of any Equity Interests of Crown Vantage or Crown Paper, (ii) any
payment on account of the purchase, redemption, retirement or acquisition of any
Equity Interests of Crown Vantage or Crown Paper, and (iii) any payment or
prepayment of principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in-
<PAGE>
substance or legal defeasance), sinking fund or similar payment with respect to,
any Pre-Petition Indebtedness.
"S&P" means Standard and Poor's Rating Services, a division of The McGraw-
Hill Companies, Inc.
"SEC" means the United States Securities and Exchange Commission.
"Secured Obligations" has the meaning set forth in Section 1 of the
Security Agreement.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Security Agreement" means the Security Agreement dated as of the Closing
Date among the Borrower, the Guarantors party thereto and the Collateral Agent,
substantially in the form of Exhibit B hereto, as amended from time to time.
"Security Agreement Supplement" means a supplement to the Security
Agreement satisfactory in form and substance to the Administrative Agent and the
Syndication Agent, whereby the Borrower or a Guarantor grants (or confirms its
grant of) a security interest in additional Collateral to the Collateral Agent
and, if the grantor of such security interest is a Guarantor that is not already
a party to the Security Agreement, such Guarantor becomes a party thereto.
"Security Interests" has the meaning set forth in Section 1 of the Security
Agreement.
"Stated Maturity Date" means the earlier of (i) September 14, 2001 and (ii)
the effective date of a plan of reorganization in one or more of the Chapter 11
Cases.
"Subsidiary" means, as to any Person, (i) any corporation or other entity
of which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person or (ii)
any limited-liability company or partnership that, in accordance with GAAP, is a
Consolidated Subsidiary of such Person. Unless otherwise specified, "Subsidiary"
means a Subsidiary of the Borrower.
<PAGE>
"Supermajority Lenders" means Lenders having outstanding Credit Exposures
in an aggregate amount (excluding accrued interest) equal to more than 66_% of
the aggregate amount of the Credit Exposures of all Lenders at such time.
"Syndication Agent" means Chase, in its capacity as Syndication Agent
hereunder.
"Taxes" has the meaning set forth in Section 10.04, but only for purposes
of such Section.
"Temporary Cash Investment" means any Investment in (i) securities issued,
or directly and fully guaranteed or insured, by the United States or any agency
or instrumentality thereof, provided that the full faith and credit of the
United States is pledged in support thereof, (ii) time deposit accounts,
bankers' acceptances, certificates of deposit and money market deposits maturing
within thirty days of the date of acquisition thereof issued by any office
located in the United States of a bank or trust company which is organized or
licensed under the laws of the United States or any State thereof and which bank
or trust company has capital, surplus and undivided profits aggregating more
than $1,000,000,000 and has outstanding debt which is rated "P-1" (or higher)
by Moody's or "A-l" (or higher) by S&P or any money-market fund sponsored by a
registered broker dealer or mutual fund distributor, (iii) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (i) above entered into with an office located in
the United States of a bank or trust company meeting the qualifications
described in clause (ii) above, (iv) commercial paper, maturing not more than 30
days after the date of acquisition, issued by a corporation (other than any
Crown Company or any Affiliate) organized under the laws of the United States or
any State thereof with a rating, at the date of acquisition, of "P-1" (or
higher) by Moody's or "A-1" (or higher) by S&P, (v) securities with maturities
of thirty days or less from the date of acquisition issued or fully and
unconditionally guaranteed by any State, commonwealth or territory of the United
States, or by a political subdivision or taxing authority thereof, and rated at
least "P-1" (or higher) by Moody's or "A-1" (or higher) by S&P and (vi) money
market funds which invest substantially all of their assets in securities
described in the preceding clauses (i) through (v).
"Terminated Lender" has the meaning set forth in Section 2.19.
"Total Outstanding Amount" means, at any time, the sum of (i) the aggregate
outstanding principal amount of the Loans and (ii) the Aggregate LC Exposure
determined at such time after giving effect, if one or more Loans are being made
at such time, to any substantially concurrent application of the proceeds
thereof to repay one or more other Loans or to pay LC Reimbursement Obligations.
<PAGE>
"Total Utilization of Commitments" means, as at any date of determination,
the aggregate Outstanding Committed Amounts of all Lenders.
"Type" has the meaning set forth in Section 1.04.
"UCC" has the meaning set forth in Section 1 of the Security Agreement.
"UCP" means the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500, or any
successor publication governing the rights and obligations of the parties in
connection with Letters of Credit.
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title I of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the States
and the District of Columbia, but excluding its territories and possessions.
"Unscheduled Mandatory Prepayment" has the meaning set forth in Section
2.09(h).
"Utilization-Fee Rate" means 1/2 of 1%.
Section .. Accounting Terms and Determinations Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared in accordance with GAAP; provided that,
if the Borrower notifies the Administrative Agent that the Borrower wishes to
amend any provision hereof to eliminate the effect of any change in GAAP on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders wish to amend any provision hereof for such
purpose), then such provision shall be applied on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such provision is amended in a manner satisfactory
to the Borrower and the Required Lenders.
<PAGE>
Section .. Other Definitional Provisions References in this Agreement to
"Articles", "Sections", "Schedules" or "Exhibits" are to Articles, Sections,
Schedules or Exhibits of or to this Agreement unless otherwise specifically
provided. Any of the terms defined in Section 1.01 may, unless the context
otherwise requires, be used in the singular or plural depending on the
reference. "Include", "includes" and "including" are deemed to be followed by
"without limitation" whether or not they are in fact followed by such words or
words of like import. "Writing", "written" and comparable terms refer to
printing, typing, facsimile and other means of reproducing words on paper.
References to any agreement or contract are to such agreement or contract as
amended, modified or supplemented from time to time (whether before, on or after
the Closing Date) in accordance with the terms hereof and thereof. "Hereto",
"herein" and "hereof' refer to this Agreement as amended from time to time.
Section .. Types of Loans and Borrowings The term "Borrowing" denotes
the aggregation of Loans of one or more Lenders to be made to the Borrower
pursuant to Article 2 on the same date, all of which Loans are of the same Type
(subject to Article 8) and, except in the case of Base Rate Loans, have the same
initial Interest Period. There are two "Types" of loans hereunder: Base Rate
Loans and Euro-Dollar Loans.
Article
The Credit Facilities
Section .. Commitments to Lend
( ) Loans. Subject to the terms and conditions set forth in this
Agreement, each Lender severally agrees to make loans to the Borrower from time
to time during the period from and including the Closing Date to but excluding
the Commitment Termination Date; provided that, immediately after each such loan
is made, such Lender's Outstanding Committed Amount shall not exceed the lessor
of (i) its Commitment, or (ii) its pro rata share (based on its Commitment) of
the maximum amount the Borrower is then permitted to have outstanding under the
Interim Borrowing Order or the Borrowing Order as the case may be. Each
Borrowing of loans shall be borrowed from the Lenders ratably in proportion to
their respective Commitments. Within the limits specified herein, the Borrower
may borrow loans, repay such borrowing and reborrow loans pursuant to the terms
of this Agreement.
( ) Borrowing Limitations. Anything contained in this Agreement to the
contrary notwithstanding,
(A) in no event shall the Total Utilization of Commitments at any
time exceed the lesser of (x) the aggregate Commitments of the Lenders, (y)
the amount permitted to be outstanding hereunder pursuant to the Interim
Borrowing
<PAGE>
Order or the Borrowing Order, as in effect at such time, and (z) the
Borrowing Base at such time; and
(B) the Borrower agrees to immediately prepay the Loans in the
amounts and at the times as may be necessary to comply with the foregoing
clause (A).
( ) Amount of Each Borrowing. Each Borrowing under this Section 2.01 shall
be in an aggregate principal amount of $2,500,000 or any larger multiple of
$1,000,000; provided that any Borrowing may be in an aggregate amount equal to
the aggregate unused amount of the Commitments.
Section .. Method of Borrowing The Borrower shall give the Administrative
Agent notice substantially in the form of Exhibit F-1 hereto (a "Notice of
Borrowing") not later than 10:00 A.M. (Eastern Time) on (x) the date of each
Base Rate Borrowing and (y) the third Euro-Dollar Business Day before each Euro-
Dollar Borrowing specifying:
( ) the date of such Borrowing, which shall be a Domestic Business Day in
the case of a Base Rate Borrowing or a Euro-Dollar Business Day in the case of a
Euro-Dollar Borrowing;
( ) the aggregate amount of such Borrowing;
( ) the Type of the Loans comprising such Borrowing; and
( ) in the case of a Euro-Dollar Borrowing, the duration of the initial
Interest Period applicable thereto, subject to the provisions of the definition
of Interest Period.
Notwithstanding the foregoing, no more than five Groups of Euro-Dollar Loans
shall be outstanding at any one time, and any Loans which would exceed such
limitation shall be made as Base Rate Loans.
Section .. Notice to Lenders; Funding of Loans. Upon receipt of a Notice
of Borrowing, the Administrative Agent shall promptly notify each Lender of the
contents thereof and of such Lender's ratable share of such Borrowing. Such
Notice of Borrowing shall not thereafter be revocable by the Borrower.
( ) Not later than 2:00 p.m. (Eastern Time) on the date of each Borrowing,
each Lender shall make available its ratable share of such Borrowing, in Federal
or other funds immediately available in New York, New York, to the
Administrative Agent at its address for payments specified in or pursuant to
Section 11.01. Unless the Administrative Agent determines that any applicable
condition specified in Article 3 has not been satisfied, the Administrative
Agent shall promptly make such funds received from Lenders available to the
Borrower on such date at the Administrative Agent's aforesaid address.
( ) Unless the Administrative Agent shall have received, prior to the date
of any Borrowing, notice from a Lender that such Lender will not make available
to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
to the Administrative Agent on the date of such Borrowing in accordance with
Section 2.03(b) and, in reliance upon such assumption, the Administrative Agent
may (but shall not be obligated to) make available to the Borrower on such date
a corresponding amount. If and to the extent that such Lender shall not have so
made such share available to the Administrative Agent,
<PAGE>
such Lender and the Borrower agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the day such amount is made available to the Borrower until
the day such amount is repaid to the Administrative Agent, at (i) in the case of
the Borrower, a rate per annum equal to the higher of the Federal Funds Rate and
the interest rate applicable to the relevant Borrowing pursuant to Section 2.04,
and (ii) in the case of such Lender, a rate per annum equal to (x) for each day
from the day such amount is made available to the Borrower to the third
succeeding Domestic Business Day, inclusive, the Federal Funds Rate for such day
as determined by the Administrative Agent and (y) for each day thereafter until
the day such amount is repaid to the Administrative Agent, the higher of the
Federal Funds Rate and the Base Rate for such day. If such Lender shall repay
such corresponding amount to the Administrative Agent, the amount so repaid
shall constitute such Lender's Loan included in such Borrowing for purposes of
this Agreement. Nothing in this subsection (c) shall be deemed to relieve any
Bank from its obligation to fulfill its Commitments hereunder to make Loans or
to purchase participations in Letters of Credit or to prejudice any right which
the Borrower may have against any Defaulting Lender.
( ) Each Lender's Loans shall initially be evidenced by a single Note
payable to the order of such Lender for the account of its Applicable Lending
Office. Each Lender may, by notice to the Borrower and the Administrative Agent,
request that its Base Rate Loans and Euro-Dollar Loans be evidenced by separate
Notes. Each such Note shall be in substantially the form of Exhibit A hereto
with appropriate modifications to reflect the fact that it evidences solely Base
Rate Loans or Euro-Dollar Loans, as the case may be. Each reference in this
Agreement to the "Note" of such Lender shall be deemed to refer to and include
either or both of such Notes, as the context may require.
( ) Upon receipt of each Lender's Note pursuant to Section 3.01(b), the
Administrative Agent shall forward such Notes to such Lender. Each Lender shall
record the date and amount of each Loan made by it and the date and amount of
each payment of principal made by the Borrower with respect thereto, and may, in
connection with any transfer or enforcement of either of its Notes, endorse on
the schedule forming a part thereof appropriate notations to evidence the
foregoing information with respect to the then outstanding Loans evidenced by
such Note; provided that neither the failure of any Lender to make any such
recordation or endorsement nor any error therein shall affect the obligations of
the Borrower under any Financing Document. Each Lender is hereby irrevocably
authorized by the Borrower so to endorse each of its Notes and to attach to and
make a part of such Note a continuation of any such schedule as and when
required.
Section .. Interest Rates; Default Rates( ) Each Base Rate Loan shall
bear interest on the outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due at a rate per annum equal to the sum
of (x) the Applicable Base Rate Margin plus (y) the Base Rate for such day. Such
interest shall be payable in arrears on the last Domestic Business Day of each
calendar month and, with respect to the principal amount of any Base Rate Loan
converted to a Euro-Dollar Loan, on the date such Base Rate Loan is so
converted. Any overdue principal of or interest on any Base Rate Loan shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to the sum of 2% plus the rate otherwise applicable to Base Rate Loans for such
day.
<PAGE>
( ) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for each day during each Interest Period applicable thereto, at
a rate per annum equal to the sum of the Applicable Euro-Dollar Margin for such
day plus the London Interbank Offered Rate applicable to such Interest Period.
Such interest shall be payable for each Interest Period on the last Domestic
Business Day of each calendar month and on the last day of such Interest Period.
The "London Interbank Offered Rate" applicable to any Interest Period means
the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in Dollars are offered to each of
the Reference Banks in the London interbank market at approximately 11:00 A.M.
(London time) two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the principal amount of the
Euro-Dollar Loan of such Reference Bank to which such Interest Period is to
apply and for a period of time comparable to such Interest Period.
( ) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the higher of (i) the sum of 2% plus the Applicable Euro-Dollar Margin
for such day plus the London Interbank Offered Rate applicable to the Interest
Period for such Loan and (ii) the sum of 2% plus the Applicable Euro-Dollar
Margin for such day plus the quotient obtained (rounded upward, if necessary, to
the next higher 1/100 of 1%) by dividing (x) the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective rates per annum at
which one day (or, if such amount due remains unpaid more than three Euro-Dollar
Business Days, then for such other period of time not longer than three months
as the Administrative Agent may select) deposits in Dollars in an amount
approximately equal to such overdue payment due to each of the Reference Banks
are offered to such Reference Bank in the London interbank market for the
applicable period determined as provided above by (y) 1.00 minus the Euro-Dollar
Reserve Percentage (or, if the circumstances described in clause (a) or (b) of
Section 10.01 shall exist, at a rate per annum equal to the sum of 2% plus the
rate applicable to Base Rate Loans for such day).
( ) The Administrative Agent shall determine each interest rate applicable
to the Loans hereunder. The Administrative Agent shall give prompt notice to the
Borrower and the participating Lenders of each rate of interest so determined,
and its determination thereof shall be conclusive in the absence of manifest
error.
( ) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section. If any
Reference Bank does not furnish a timely quotation, the Administrative Agent
shall determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Bank or Banks or, if none of
such quotations is available on a timely basis, the provisions of Section 10.01
shall apply.
( ) Payment or acceptance of the increased rates of interest on overdue
principal or interest on overdue principal or interest provided for herein is
not a permitted alternative to timely payment and shall not constitute a waiver
of any Event of Default or otherwise prejudice or limit any rights or remedies
of any Agent or any Lender.
Section .. Method of Electing Interest Rates( ) The Loans included shall
bear interest initially at the type of rate specified by the Borrower in the
applicable Notice of
<PAGE>
Borrowing. Thereafter, so long as no Default has occurred and is continuing, the
Borrower may from time to time elect to change or continue the type of interest
rate borne by each Group of Loans (subject to Section 2.05(d) and the provisions
of Article 10) as follows:
( ) if such Loans are Base-Rate Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day;
and
( ) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans as of any Domestic Business Day or
may elect to continue such Loans as Euro-Dollar Loans, as of the end of any
Interest Period applicable thereto, for an additional Interest Period,
subject to Section 2.13 if any conversion is effective on any day other
than the last day of the Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Administrative Agent not later than 10:30 A.M. (Eastern
Time) of the third Euro-Dollar Business Day before the conversion or
continuation selected in such notice is to be effective. A Notice of Interest
Rate Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant Group of Loans, provided that (i) such portion
is allocated ratably among the Loans comprising such Group and (ii) the portion
to which such Notice applies, and the remaining portion to which it does not
apply, are each $5,000,000 or any larger multiple of $1,000,000 (unless such
portion is comprised of Base-Rate Loans). If no notice is timely received before
the end of an Interest Period for any Group of Euro-Dollar Loans, the Borrower
shall be deemed to have elected that such Group of Loans be converted to Base
Rate Loans at the end of such Interest Period.
( ) Each Notice of Interest Rate Election shall specify:
( ) the Group of Loans (or portion thereof) to which such notice
applies;
( ) the date on which the conversion or continuation selected in such
notice is to be effective, which shall comply with the applicable clause
of Section 2.05(a);
( ) if the Loans comprising such Group are to be converted, the new
Type of Loans and, if such new Loans are Euro-Dollar Loans, the duration
of the initial Interest Period applicable thereto; and
( ) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
( ) Promptly after receiving a Notice of Interest Rate Election from the
Borrower pursuant to Section 2.05(a), the Administrative Agent shall notify each
Lender of the contents thereof and such notice shall not thereafter be revocable
by the Borrower.
( ) The Borrower shall not be entitled to elect to convert any loans to,
or continue any loans for an additional Interest Period as, Euro-Dollar Loans if
(i) the aggregate principal amount of any Group of Euro-Dollar Loans created or
continued as a result of such election would be less than $5,000,000 or (ii) a
Default shall have occurred and be
<PAGE>
continuing when the Borrower delivers notice of such election to the
Administrative Agent.
( ) If any Loan is converted to a different type of Loan, the Borrower
shall pay, on the date of such conversion, the interest accrued to such date on
the principal amount being converted.
Section .. Letters of Credit
( ) ( ) Issuance of Letters of Credit. Any LC Issuing Bank may, but shall
not be obligated to, issue a Letter of Credit at the request of the Borrower
pursuant to this subsection, from time to time during the period from and
including the Closing Date to, but excluding the earlier of, (x) the Commitment
Termination Date and (y) five Domestic Business Days prior to the Stated-
Maturity Date; provided that, immediately after each such Letter of Credit is
issued and participations therein are sold to the Lenders as provided in this
subsection the Aggregate LC Exposure shall not exceed $7.5 million. No Letters
of credit may be issued or used for any purpose involving support of domestic
vendors of goods and services.
( ) Upon the issuance by any LC Issuing Bank of a Letter of Credit
pursuant to this subsection, such LC Issuing Bank shall be deemed, without
further action by any party hereto, to have sold to each other Lender, and each
such Lender shall be deemed, without further action by any party hereto, to have
purchased from such LC Issuing Bank, a participation in such Letter of Credit,
on the terms specified in this Section 2.06, equal to such Lender's Percentage
thereof.
( ) Expiry Dates. No Letter of Credit shall expire later than 60 days
after the Stated Maturity Date, provided that if any Letter of Credit shall be
outstanding on the Commitment Termination Date, the Borrower shall, at or prior
to the Commitment Termination Date, except as the Administrative Agent may
otherwise agree in writing, () cause all Letters of Credit that expire after the
Commitment Termination Date to be returned to the LC Issuing Bank undrawn and
marked "cancelled" or () if the Borrower is unable to do so in whole or in part,
either (x) provide a "back-to-back" letter of credit to such LC Issuing Bank in
a form satisfactory to such LC Issuing Bank and the Administrative Agent (in
their sole discretion), issued by a bank satisfactory to such LC Issuing Bank
and the Administrative Agent (in their sole discretion), in an amount equal to
105% of the then undrawn stated amount of all outstanding Letters of Credit
issued by such LC Issuing Bank and/or (y) deposit with the Collateral Agent
immediately available funds in an amount equal to 105% of the then undrawn
stated amount of all outstanding Letters of Credit to be held for the benefit of
the Lenders and the LC Issuing Banks in accordance with the Collateral Documents
to secure the payment of all LC Reimbursement Obligations arising from
subsequent drawings under such Letters of Credit, such cash to be remitted to
the Borrower upon the expiration, cancellation or other termination or
satisfaction of such reimbursement obligations. Subject to the preceding
sentence, each Letter of Credit issued hereunder shall expire on or before the
first anniversary of the date of such issuance; provided that the expiry date of
any Letter of Credit may be extended from time to time at the Borrower's
request.
( ) Notice of Proposed Issuance. With respect to each Letter of Credit,
the Borrower shall give the relevant LC Issuing Bank and the Administrative
Agent at least five Domestic Business Days' prior notice, substantially in the
form of Exhibit F-2 hereto (a "LC Request") ( ) specifying the date such Letter
of Credit is to be issued, ( )
<PAGE>
describing the proposed terms of such Letter of Credit and the nature of the
transactions proposed to be supported thereby and () specifying the Account
Party for such Letter of Credit, which may be the Borrower. Upon receipt of an
LC Request, the Administrative Agent shall promptly notify each Lender of the
contents thereof.
( ) Conditions to Issuance. No LC Issuing Bank shall issue any Letter of
Credit unless:
( ) such Letter of Credit shall be satisfactory in form and substance
to such LC Issuing Bank in its sole discretion;
( ) the Borrower shall have executed and delivered such other
instruments and agreements relating to such Letter of Credit as such LC
Issuing Bank shall have reasonably requested;
( ) such LC Issuing Bank shall have confirmed with the Administrative
Agent on the date of such issuance that the limitations specified in
subsection (a) of this Section 2.06 will not be exceeded immediately
after such Letter of Credit is issued; and
( ) such LC Issuing Bank shall not have been notified in writing by
any Crown Company, any Agent or the Required Lenders expressly to the
effect that any condition specified in Section 3.02 is not satisfied at
the time such Letter of Credit is to be issued.
( ) Notice of Proposed Extensions of Expiry Dates. The relevant LC Issuing
Bank or the Borrower shall give the Administrative Agent at least five Domestic
Business Days' notice before such LC Issuing Bank extends the expiry date of any
Letter of Credit issued by it. Such notice shall (i) identify such Letter of
Credit, (ii) specify the date on which such extension is to be made (or the last
day on which such LC Issuing Bank can give notice to prevent such extension from
occurring) and (iii) specify the date to which such expiry date is to be so
extended. Upon receipt of such notice, the Administrative Agent shall promptly
notify each Lender of the contents thereof. No LC Issuing Bank shall extend (or
allow the extension of) the expiry date of any Letter of Credit if (x) the
extended expiry date would be after the fifth Domestic Business Day before the
Stated Maturity Date or (y) such LC Issuing Bank shall have been notified by any
Crown Company, the Administrative Agent or the Required Lenders expressly to the
effect that any condition specified in Section 3.02 is not satisfied at the time
such Letter of Credit is to be extended. If any Letter of Credit is not extended
after notice of a proposed extension thereof has been given to the Lenders, the
relevant LC Issuing Bank shall promptly notify the Administrative Agent of such
failure to extend. Promptly after it receives such notice, the Administrative
Agent shall notify each Lender thereof.
( ) Notice of Actual Issuances and Extensions. Promptly upon issuing or
extending any Letter of Credit, the relevant LC Issuing Bank will notify the
Administrative Agent of the date of such Letter of Credit, the amount thereof,
the beneficiary or beneficiaries thereof and the expiry date or extended expiry
date thereof. Upon receipt of such notice, the Administrative Agent shall
promptly notify each Lender of the contents thereof and the amount of such
Lender's participation in the relevant Letter of Credit. Promptly upon issuing
any Letter of Credit, the relevant LC Issuing Bank will send a copy of such
Letter of Credit to the Administrative Agent.
( ) Fees. The Borrower shall pay to the Administrative Agent, for the
account of the Lenders ratably in accordance with their respective Percentages,
a letter of credit fee, calculated for each day at the LC Fee Rate for such day,
on the aggregate amount available for drawings (whether or not conditions for
drawing thereunder have been
<PAGE>
satisfied) under all Letters of Credit outstanding at the close of business on
such day. Such letter of credit fee shall be payable with respect to each Letter
of Credit in arrears on the last Domestic Business Day of each month for so long
as such Letter of Credit is outstanding and on the final expiry date thereof.
The Borrower shall pay to each LC Issuing Bank additional fronting fees, monthly
in arrears, and reasonable expenses in the amounts and at the times agreed
between the Borrower and such LC Issuing Bank.
( ) Drawings. Upon receiving a demand for payment under any Letter of
Credit from the beneficiary thereof, the relevant LC Issuing Bank shall
determine, in accordance with the terms of such Letter of Credit, whether such
demand for payment should be honored. If such LC Issuing Bank determines that
any such demand for payment should be honored, such LC Issuing Bank shall (i)
promptly notify the Borrower and the Administrative Agent as to the amount to be
paid by such LC Issuing Bank as a result of such demand and the date on which
such amount is to be paid (an "LC Payment Date") and (ii) on such LC Payment
Date make available to such beneficiary in accordance with the terms of such
Letter of Credit the amount of the drawing under such Letter of Credit.
( ) Reimbursement and Other Payments by the Borrower. If any amount
is drawn under any Letter of Credit:
( ) the Borrower irrevocably and unconditionally agrees to reimburse
the relevant LC Issuing Bank for all amounts paid by such LC Issuing Bank
upon such drawing, together with any and all reasonable charges and
expenses which such LC Issuing Bank may pay or incur relative to such
drawing and interest on the amount drawn at the Federal Funds Rate for
each day from and including the date such amount is drawn to but
excluding the date such reimbursement payment is due and payable. Such
reimbursement payment shall be due and payable at or before 3:00 P.M.
(Eastern Time) (x) on the relevant LC Payment Date if such LC Issuing
Bank notifies the Borrower of such drawing before 11:00 A.M. (Eastern
Time) on such date or (y) on the date such notice is given, if such
notice is given after the LC Payment Date; provided that any notice given
to the Borrower after 11:00 A.M. (Eastern Time) on any day shall be
deemed for purposes of the foregoing clause (y) to have been given on
the next succeeding Domestic Business Day; and
( ) in addition, the Borrower agrees to pay to the relevant LC
Issuing Bank interest on any and all amounts not paid by the Borrower
when due hereunder with respect to a Letter of Credit, for each day from
and including the date when such amount becomes due to but excluding the
date such amount is paid in full, payable on demand, at a rate per annum
equal to the rate of interest that would be payable in respect of an
overdue Base Rate Loan on such day.
Each payment to be made by the Borrower pursuant to this subsection (i)
shall be made to the relevant LC Issuing Bank in Federal or other funds
immediately available to it at its address specified in or pursuant to Section
11.01.
( ) Payments by Lenders with Respect to Letters of Credit. If the Borrower
fails to reimburse the relevant LC Issuing Bank as and when required by
subsection (i) above for all or any portion of any amount drawn under a Letter
of Credit issued by it:
( ) such LC Issuing Bank may notify the Administrative Agent of such
unreimbursed amount and request that the Lenders reimburse such LC
Issuing Bank for their respective Percentages thereof. Upon receiving any
such notice
<PAGE>
from an LC Issuing Bank, the Administrative Agent shall promptly notify
each Lender of the unreimbursed amount and such Lender's Percentage
thereof. Upon receiving such notice from the Administrative Agent, each
Lender shall make available to such LC Issuing Bank, at its address
specified in or pursuant to Section 11.01, an amount equal to such
Lender's Percentage of such unreimbursed amount as set forth in such
notice, in Federal or other funds immediately available to such LC
Issuing Bank, by 3:00 P.M. (Eastern Time) (A) on the day such Lender
receives such notice if it is received at or before 12:00 Noon (Eastern
Time) on such day or (B) on the first Domestic Business Day following
such Lender's receipt of such notice if it is received after 12:00 Noon
(Eastern Time) on the date of receipt (provided that failure of a Lender
to make such amount available to such LC Issuing Bank shall not be
deemed, for purposes of Section 2.17, a failure to fund its obligations
under this Section 2.06(j)(i) unless such failure continues after 3:00
P.M. (Eastern Time) on the date which is one Domestic Business Day after
the date such amount is due under this Section 2.06(j)(i)). Upon payment
in full thereof, such Lender shall be subrogated to the rights of such LC
Issuing Bank against the Borrower to the extent of such Lender's
Percentage of the related LC Reimbursement Obligation (including interest
accrued thereon). Nothing in this subsection (j) shall affect any rights
any Lender may have against any LC Issuing Bank for any action or
omission for which such LC Issuing Bank is not indemnified under
subsection (n) of this Section 2.06; and
( ) if any Lender fails to pay any amount required to be paid by it
pursuant to clause (i) of this subsection (j) on the date on which such
payment is due, interest shall accrue on such Lender's obligation to make
such payment, for each day from and including the date such payment
became due to but excluding the date such Lender makes such payment, at a
rate per annum equal to (x) for each day from the day such payment is due
to the third succeeding Domestic Business Day, inclusive, the Federal
Funds Rate for such day as determined by the relevant LC Issuing Bank and
(y) for each day thereafter the Base Rate for such day. Any payment made
by any Lender after 3:00 P.M. (Eastern Time) on any Domestic Business Day
shall be deemed for purposes of the preceding sentence to have been made
on the next succeeding Domestic Business Day.
If the Borrower shall reimburse any LC Issuing Bank for any drawing with
respect to which any Lender shall have made funds available to such LC Issuing
Bank in accordance with clause (i) of this subsection (j), such LC Issuing Bank
shall promptly upon receipt of such reimbursement distribute to such Lender its
pro rata share thereof, including interest, to the extent received by such LC
Issuing Bank.
( ) Increased Cost and Reduced Return. If, on or after the date hereof,
the adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender or LC Issuing Bank with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency, shall impose, modify or deem applicable any tax, reserve, special
deposit or similar requirement against or with respect to or
<PAGE>
measured by reference to letters of credit or participations therein, and the
result of any of the foregoing is to increase the cost to such Lender or LC
Issuing Bank of issuing or maintaining any Letter of Credit or any participation
therein, or to reduce any amount receivable by any Lender or LC Issuing Bank
under this Section 2.06 in respect of any Letter of Credit or any participation
therein (which increase in cost, or reduction in amount receivable, shall be the
result of such Lender's or LC Issuing Bank's reasonable allocation of the
aggregate of such increases or reductions resulting from such event), then,
within 15 days after demand by such Lender or LC Issuing Bank (with a copy to
the Administrative Agent), the Borrower agrees to pay to such Lender or LC
Issuing Bank, from time to time as specified by such Lender or LC Issuing Bank,
such additional amounts as shall be sufficient to compensate such Lender or LC
Issuing Bank for such increased cost or reduction. A certificate of such Lender
or LC Issuing Bank submitted to the Borrower pursuant to this subsection (k) and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error.
( ) Exculpatory Provisions. The Borrower's obligations under this
Section 2.06 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which any
Crown Company or any Account Party may have or have had against any LC Issuing
Bank, any Lender, the beneficiary of any Letter of Credit or any other Person.
The Borrower assumes all risks of the acts or omissions of any beneficiary of
any Letter of Credit with respect to the use of such Letter of Credit by such
beneficiary. None of the LC Issuing Banks, the Lenders or their respective
officers, directors, employees and agents shall be responsible for, and the
obligations of each Lender to make payments to each LC Issuing Bank and of the
Borrower to reimburse each LC Issuing Bank for drawings pursuant to this Section
2.06 (except to the extent such obligations result from the gross negligence or
willful misconduct of the relevant LC Issuing Bank) shall not be excused or
affected by, among other things, (i) the use which may be made of any Letter of
Credit or any acts or omissions of any beneficiary or transferee in connection
therewith; (ii) the validity, sufficiency or genuineness of documents presented
under any Letter of Credit or of any endorsements thereon, even if such
documents should in fact prove to be in any or all respects invalid,
insufficient, fraudulent or forged; (iii) payment by any LC Issuing Bank against
presentation of documents to it which do not comply with the terms of the
relevant Letter of Credit or (iv) any dispute between or among any of the Crown
Companies or their Affiliates, the beneficiary of any Letter of Credit or any
other Person or any claims or defenses whatsoever of any of the Crown Companies
or their Affiliates or any other Person against the beneficiary of any Letter of
Credit. No LC Issuing Bank shall be liable for any error, omission, interruption
or delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit. Any action taken or
omitted by any LC Issuing Bank or any Lender under or in connection with any
Letter of Credit and the related drafts and documents, if done without willful
misconduct or gross negligence, shall be binding upon the Borrower and shall not
place any LC Issuing Bank or any Lender under any liability to any Crown
Company.
( ) Reliance, Etc. Subject to Section 2.06(d), each LC Issuing Bank
shall be entitled (but not obligated) to rely, and shall be fully protected in
relying, on the representation and warranty by the Borrower set forth in the
last sentence of Section 3.02 to establish whether the conditions specified in
Section 3.02 are met in connection with any issuance or extension of a Letter of
Credit. The rights and obligations of each LC
<PAGE>
Issuing Bank under each Letter of Credit issued by it shall be governed by the
provisions thereof and the provisions of the UCP and/or UCC referred to therein
or otherwise applicable thereto.
( ) Indemnification by the Borrower. The Borrower agrees to indemnify,
defend and hold harmless each Lender, each LC Issuing Bank and the
Administrative Agent and their respective directors, officers, agents and
employees (collectively, the "LC Indemnitees") from and against any and all
claims, damages, losses, liabilities, costs or expenses (including, without
limitation, the reasonable fees and disbursements of counsel) which such LC
Indemnitee may reasonably incur (or which may be claimed against any such LC
Indemnitee by any Person) by reason of or in connection with the execution and
delivery or transfer of or payment or failure to pay under any Letter of Credit
or any actual or proposed use of any Letter of Credit, including any claims,
damages, losses, liabilities, costs or expenses which any LC Issuing Bank may
incur by reason of or in connection with the failure of any Lender to fulfill or
comply with its obligations to such LC Issuing Bank hereunder in connection with
any Letter of Credit (but nothing herein contained shall affect any rights the
Borrower may have against any such defaulting Lender); provided that the
Borrower shall not be required to indemnify any LC Indemnitee for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, caused by (i) the willful misconduct or gross negligence of any LC
Issuing Bank in determining whether a request presented under any Letter of
Credit issued by it complied with the terms of such Letter of Credit or (ii) any
LC Issuing Bank's failure to pay under any Letter of Credit issued by it after
the presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit. Nothing in this subsection (n) is intended
to limit the obligations of the Borrower under any other provision of this
Section 2.06.
( ) Indemnification by Lenders. Each Lender shall, ratably in accordance
with its Percentage, indemnify each LC Issuing Bank, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Crown Companies) against any cost, expense (including
reasonable fees and disbursements of counsel), claim, demand, action, loss or
liability (except such as result from such indemnitees' gross negligence or
willful misconduct or such LC Issuing Bank's failure to pay under any Letter of
Credit issued by it after the presentation to it of a request strictly complying
with the terms and conditions of such Letter of Credit) that any such indemnitee
may suffer or incur in connection with this Section 2.06 or any action taken or
omitted by such indemnitee under this Section 2.06.
( ) Liability for Damages. Nothing in this Section 2.06 shall preclude
the Borrower or any Lender from asserting against any LC Issuing Bank any claim
for direct (but not consequential) damages suffered by the Borrower or such
Lender to the extent, but only to the extent, caused by (i) the willful
misconduct or gross negligence of such LC Issuing Bank in determining whether a
request presented under any Letter of Credit issued by it complied with the
terms thereof or (ii) such LC Issuing Bank's failure to pay under any such
Letter of Credit after the presentation to it of a request strictly complying
with the terms and conditions thereof.
( ) Dual Capacities. In its capacity as a Lender, each LC Issuing Bank
shall have the same rights and obligations under this Section 2.06 as any other
Lender.
( ) Information to be Provided to Administrative Agent. The LC Issuing
Banks shall furnish to the Administrative Agent upon request such information as
the Administrative Agent shall reasonably request in order to calculate (i) the
Aggregate LC
<PAGE>
Exposure existing from time to time and (ii) the amount of any fee payable for
the account of the Lenders under Section 2.06(g).
Section .. Fees
( ) Closing Date Facility Fee. The Borrower shall pay to the
Administrative Agent on the date of the initial Borrowing a facility fee in the
amount set forth in the letter agreement dated March 14, 2000 among the Borrower
and the Co-Arrangers.
( ) Administrative Agent Fee. The Borrower shall pay to the
Administrative Agent, for its own account, an administrative agent's fee of
$200,000 per annum, payable in advance in monthly installments with the first
installment due on the Closing Date (pro-rated for the remainder of the month in
which such date falls) and future installments payable on the last Domestic
Business Day of each calendar month thereafter (for the next succeeding month).
( ) Collateral Administration Fee. The Borrower shall pay to Chase in
its capacity as a Collateral Agent, a collateral administration fee of $50,000
per annum, payable in advance in quarterly installments, with the first
installment due on the Closing Date (pro rated for the remainder of the calendar
quarter in which such date falls), and future installments payable on the last
Domestic Business Day of each calendar quarter thereafter (for the next
succeeding calendar quarter).
( ) Commitment Fee. The Borrower shall pay to the Administrative Agent
for the account of each Lender a commitment fee, calculated for each day and
equal to the sum of (i) the Commitment Fee Rate for such day (expressed as a
daily rate), multiplied by the amount by which such Lender's Commitment on such
day exceeds its Outstanding Committed Amount on such day. Such commitment fees
shall accrue from and including the Interim Order Date to but excluding the
Commitment Termination Date and shall be payable monthly in arrears on the last
Domestic Business Day of each calendar month after the Closing Date, and on the
Commitment Termination Date.
( ) Utilization Fee. The Borrower shall pay to the Administrative Agent
for the account of each Lender a utilization fee for each day on which the Total
Utilization of Commitments equals or exceeds $75,000,000 in an amount equal to
the Utilization Fee Rate for such day expressed as a daily rate, multiplied by
such Lender's Outstanding Committed Amount on such day. Such utilization fees
shall be payable monthly in arrears on the last Domestic Business Day of each
calendar month.
( ) The fees provided for in this Section 2.07 shall be in addition to,
and not in lieu of, any costs, expenses or other amounts required to be paid by
the Borrower pursuant to the Financing Documents including, without limitation,
pursuant to Section 5.12 or Section 11.03 hereof.
Section .. Final Maturity of Loans The Loans shall mature, and the
outstanding principal amount thereof shall be due and payable (together with
interest accrued thereon), on the Commitment Termination Date.
Section .. Unscheduled Mandatory Prepayments of Loans; Reduction of
Commitments
( ) Asset Sales. If after the Closing Date any Crown Company receives
any Net Cash Proceeds of any Asset Sale, the Borrower shall prepay (subject to
subsection (g)
<PAGE>
below) an aggregate principal amount of Loans and permanently reduce the
Commitments in an amount equal to 100% of such Net Cash Proceeds of such Asset
Sale. Concurrently with the closing of any Asset Sale, the Net Cash Proceeds
received at such closing shall be deposited in the Prepayment Account until that
portion of such Net Cash Proceeds (or an amount equal thereto) which is required
to be applied to prepay Loans is so applied.
( ) Incurrence of Debt. If after the Closing Date any Crown Company
receives any Net Cash Proceeds from the issuance or other incurrence of any
Debt, the Borrower shall prepay (subject to subsection (g) below) an aggregate
principal amount of Loans and permanently reduce the Commitments in an amount
equal to 100% of such Net Cash Proceeds; provided that this subsection (b) shall
not apply to any Net Cash Proceeds of (i) Debt under this Agreement or (ii)
Permitted Intercompany Debt.
( ) Equity Issuances. If after the Closing Date any Crown Company
receives any Net Cash Proceeds from any Equity Issuance, the Borrower shall
prepay (subject to subsection (g) below) an aggregate principal amount of Loans
and permanently reduce the Commitments in an amount equal to 100% of such Net
Cash Proceeds.
( ) Tax Refunds. If after the Closing Date any Crown Company receives
any cash refund or rebate of any federal, state or other tax, the Borrower shall
prepay (subject to subsection (g) below) an aggregate principal amount of Loans
and permanently reduce the Commitments in an amount equal to 100% of such tax
refund or rebate, provided that if, immediately prior to receipt of any such
refund or rebate, the cumulative amount of all such refunds or rebates received
since the Closing Date (such amount from time to time being referred to herein
as the "Cumulative Tax Refund Amount") does not exceed $2,000,000, the
requirements of this subsection (d) shall apply to such refund or rebate only
with respect to a portion thereof equal to the amount by which the Cumulative
Tax Refund Amount immediately after receipt of such refund or rebate exceeds
$2,000,000.
( ) Excess Casualty Proceeds. The Borrower (or the Collateral Agent on
its behalf shall apply any Excess Casualty Proceeds to prepay (subject to
subsection (g) below) an aggregate principal amount of Loans and permanently
reduce the Commitments in an amount equal to 100% of such Excess Casualty
Proceeds.
( ) Prepayments from Cash Balances. The Borrower shall from time to time
prepay (subject to subsection (g) below) an aggregate principal amount of Loans
in an amount equal to the excess (such excess, as of any date of determination,
being the "Excess Cash Amount"), if any, of (x) the amount of the Cash Balances
of the Borrower and all other Crown Companies incorporated in the United States
outstanding over (y) the sum of (a) the aggregate anticipated cash funding needs
of the Borrower on such date of determination and the succeeding Domestic
Business Day, (b) the aggregate amount of cash required to be maintained on
deposit as a minimum balance by the applicable financial institutions for the
disbursement accounts, payroll accounts, depository accounts, concentration
accounts and sub-concentration accounts contemplated by the Security Agreement
and the Motion of Debtors and Debtors in Possession Authorizing Maintenance of
Pre-Petition Business Forms and Bank Accounts and (c) $2,500,000.
( ) Timing of Prepayment. Each prepayment required by subsection (a),
(b), (c), (d) or (e) of this Section 2.09 shall be made within two Domestic
Business Days after any Crown Company receives the relevant Net Cash Proceeds,
and each prepayment required by subsection (f) of this Section 2.09 shall be
made on the Domestic Business Day on which any excess Cash Balance which is
required to be prepaid under such subsection is outstanding. Notwithstanding the
foregoing, if the aggregate principal amount of the
<PAGE>
Loans required to be prepaid on any date pursuant to this Section 2.09 is less
than $250,000, such prepayment shall be deferred until the aggregate principal
amount of the Loans required to be prepaid pursuant to this Section 2.09
(including such deferred amounts) is not less than $250,000.
( ) Allocation of Prepayments; Ratable Application. Each prepayment of
the Loans required under Section 2.09(a) through (e) above (an "Unscheduled
Mandatory Prepayment") shall be applied first to prepay the outstanding Base
Rate Loans to the full extent thereof and permanently reduce the Commitments by
the amount of such prepayments, second, to prepay Euro-dollar Loans to the full
extent thereof and permanently reduce the Commitments by the amount of such
prepayments, and third, to permanently reduce the Commitments to the full extent
thereof, provided that, so long as no Default has occurred and is continuing and
the Commitment Termination Date has not occurred, any such prepayment of Euro-
dollar Loans that is due on a day other than the last day of the Interest Period
applicable thereto pursuant to this Section 2.09 may be deferred at the election
of the Borrower until the last day of such applicable Interest Period so long as
the amount required to be so prepaid has been deposited with the Collateral
Agent for the benefit of the Lenders on the date on which such prepayment was
otherwise required to be made, and any prepayment so deferred shall be made from
the funds so deposited on the last day of the applicable Interest Period.
( ) Interest. Each prepayment of principal of the Loans under this
Section 2.09 shall be made together with interest accrued on the amount prepaid
to the date of payment.
Section .. Optional Prepayments
( ) Notice to Administrative Agent. Subject in the case of any Euro-
Dollar Loans to Section 2.13, the Borrower may, upon at least one Domestic
Business Day's notice to the Administrative Agent, prepay the Base Rate Loans or
upon at least three Euro-Dollar Business Days' notice to the Administrative
Agent, prepay the Loans comprising any Group of Euro-Dollar Loans, in each case
in whole at any time, or from time to time in part in amounts aggregating
$2,500,000 or any larger multiple of $1,000,000 (in each case as specified in
such Prepayment Notice).
( ) Notice to Lenders. Upon receiving a Prepayment Notice pursuant to
this Section 2.10, the Administrative Agent shall promptly notify each Lender of
the contents thereof and of such Lender's share of such prepayment and such
Prepayment Notice shall not thereafter be revocable by the Borrower.
( ) Payment of Accrued Interest. Each prepayment of principal of the
Loans under this Section 2.10 shall be made together with interest accrued on
the amount prepaid to the date of payment.
Section .. Termination or Reduction of Commitments The Borrower may,
upon at least three Domestic Business Days' notice to the Administrative Agent,
(i) terminate the Commitments at any time, if no Lender has any Outstanding
Amount, respectively, after such termination, or (ii) ratably reduce the
Commitments from time to time by an aggregate amount of $2,500,000 or any larger
multiple of $1,000,000; provided that immediately after such reduction no
Lender's Outstanding Amount shall exceed its Commitment as so reduced. Unless
previously terminated, the Commitments shall terminate in their entirety on the
Commitment Termination Date. Once reduced or terminated the Commitments may not
be reinstated. The Borrower's notice to the
<PAGE>
Administrative Agent shall designate the date (which shall be a Domestic
Business Day) of such termination or reduction, whether the Commitments are to
be terminated or reduced, and the amount of any partial reduction of the
Commitments, and such termination or reduction of the Commitments shall be
effective on the date specified in the Borrower's notice and shall be applied
ratably to the Commitments (as specified by the Borrower in such notice),
respectively, of the several Lenders.
Section .. General Provisions as to Payments
( ) The Borrower shall make each payment of principal of, and interest
on, the loans and the LC Reimbursement Obligations and each payment of facility
fees, commitment fees and letter of credit fees (other than fees payable
directly to the LC Issuing Banks) hereunder not later than 2:00 P.M. (Eastern
Time) on the date when due, in Federal or other funds immediately available in
New York, New York, to the Administrative Agent at its address for payments
specified in or pursuant to Section 11.01. Upon receiving a payment for the
account of the Lenders, the Administrative Agent will promptly distribute to
each such Lender its ratable share of such payment. Whenever any payment of
principal of, or interest on, the Base Rate Loans or of LC Reimbursement
Obligations or interest thereon or of fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a Euro-
Dollar Business Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls
in another calendar month, in which case the date for payment thereof shall be
the next preceding Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or otherwise, interest thereon shall
be payable for such extended time.
( ) Unless the Administrative Agent shall have received notice from the
Borrower before the date on which any payment is due to any of the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower have made such payment in full
to the Administrative Agent on such date and, in reliance upon such assumption,
the Administrative Agent may (but shall not be obligated to) cause to be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent that the Borrower shall not have so made
such payment, each such Lender shall repay to the Administrative Agent forthwith
on demand any such amount distributed to such Lender together with interest
thereon, for each day from the date such amount is distributed to such Lender
until the date such Lender repays such amount to the Administrative Agent, at
the Federal Funds Rate.
Section .. Funding Losses If the Borrower makes any payment of principal
with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is converted to a
Base Rate (pursuant to Article 2, 8, or 10 or otherwise, but excluding any
prepayment required pursuant to Section 2.03(c) or any conversion required
pursuant to Section 10.02) on any day other than the last day of the Interest
Period applicable thereto, or the last day of an applicable period fixed
pursuant to Section 2.04(c), or if the Borrower fails to borrow, prepay or
convert any Euro-Dollar Loans after notice has been given to any Lender in
accordance with Section 2.03(a), Section 2.05 or Section 2.10, the Borrower
shall
<PAGE>
reimburse each Lender within 15 days after demand for any resulting loss or
expense incurred by it (or by an existing or prospective Participant in the
related Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment or conversion or failure to borrow,
prepay or convert, provided that such Lender shall have delivered to the
Borrower a certificate as to the amount of such loss or expense, which
certificate shall be conclusive in the absence of manifest error.
Section .. Computation of Interest and Fees
( ) Interest based on the Base Rate hereunder shall be computed on the
basis of a year of 365 days (or 366 days in a leap year) and paid for the actual
number of days elapsed (including the first day but excluding the last day). All
other interest and fees shall be computed on the basis of a year of 360 days and
paid for the actual number of days elapsed (including the first day but
excluding the last day).
( ) The Administrative Agent shall determine the interest rates
applicable to the Loans from time to time and the LC Fee Rate applicable
hereunder and the amount of accrued interest and fees. The Administrative Agent
shall give prompt notice to the Borrower and the Lenders of each such interest
rate and LC Fee Rate and the amount of accrued interest and fees so determined,
and its determination thereof shall be conclusive in the absence of manifest
error.
Section .. Release of Security Interests in Assets Being Sold The
Administrative Agent shall from time to time instruct the Collateral Agent to
release specific assets (but not all or substantially all the Collateral) from
the Security Interests pursuant to Section 14 of the Security Agreement or
Section 7.02(b) of any Mortgage if:
( ) the Administrative Agent shall have received a written request fo
such release signed by an Executive Officer or the Financial Officer
stating that (x) the assets to be released are being sold and (y) the
sale thereof does not violate Section 7.03 hereof,
( ) arrangements satisfactory to the Administrative Agent have been
made so that such release will become effective no earlier than the
closing of such sale;
( ) in the case of an Asset Sale, arrangements satisfactory to the
Administrative Agent have been made to deposit an amount equal to the Net
Cash Proceeds payable at the closing of such Asset Sale, if any, in the
Prepayment Account and apply it to prepay Loans to the extent required by
Section 2.08;
( ) no Default or Enforcement Notice is in effect when such
instructions are given; and
( ) in the case of an Asset Sale requiring the prior written consent
of Required Lenders, such consent has been obtained and the approval of
the Court (to the extent such Court approval is required pursuant to the
Bankruptcy Code or an order of the Court) with respect to such Asset Sale
shall have been obtained.
Section .. Superpriority Nature of Obligations All Obligations under the
Financing Documents
<PAGE>
( ) shall constitute allowed administrative expense claims in the
Chapter 11 Cases against the Borrower and the Guarantors that are Chapter
11 Parties with priority under Section 364(c)(1) of the Bankruptcy Code
over any and all other administrative expenses of the kind specified or
ordered pursuant to any provision of the Bankruptcy Code, including, but
not limited to, Sections 105, 326, 328, 503(b), 506(c), 507(a), 507(b)
and 726 of the Bankruptcy Code,
( ) shall at all times be secured by a perfected first priority Lien
on all unencumbered property of the Borrower and the Guarantors, whether
acquired before or after the Petition Date (other than causes of action
arising solely under the Bankruptcy Code),
( ) shall be secured by a perfected Lien upon all property of the
Borrower and the Guarantors encumbered by valid and perfected Liens in
existence on the Petition Date or to valid Liens in existence on the
Petition Date that are perfected subsequent to the Petition Date as
permitted by Section 546(b) of the Bankruptcy Code (other than the
existing Liens securing the obligations of the Borrower under the
Existing Credit Facility, as to which the Lien in favor of the Collateral
Agent and the Lenders will be as described in clause (iv) below), which
Lien shall be junior to such valid and perfected Liens, and
( ) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be
secured by a perfected first priority, senior priming Lien on all
property of the Borrower and the Guarantors that are Chapter 11 Parties
(including without limitation, real property, accounts receivable,
inventory, equipment, interests in leaseholds, intellectual property,
rights under license agreements and the capital stock of all direct and
indirect Subsidiaries of the Borrower and, in each case, the proceeds
thereof) that is encumbered by (a) existing Liens that presently secure
the Borrower's Pre-Petition Indebtedness under the Existing Credit
Facilities (but subject to any Liens in existence on the Petition Date to
which the Liens being primed hereby are junior or become junior to
subsequent to the Petition Date as permitted by Section 546(b) of the
Bankruptcy Code) and (b) any Liens granted after the Petition Date to
provide adequate protection in respect of the Existing Credit Facilities,
subject only to (x) in the event of the occurrence and during the continuance of
any Default, the payment of allowed and unpaid professional fees and
disbursements incurred by the Borrower, the Guarantors that are Chapter 11
Parties and any statutory committees appointed in the Chapter 11 Cases in an
aggregate amount not to exceed $2,000,000, (y) the payment of unpaid fees
pursuant to 28 U.S.C. (S) 1930 and to the Clerk of the Court and, (z) solely in
the case of the Liens on unencumbered property of the Chapter 11 Parties
existing at the time of commencement of the Chapter 11 Cases referred to in
clause (ii) above, expenses of administration in any chapter 7 proceedings into
which the relevant Chapter 11 Party's Chapter 11 Case is converted
(collectively, the "Carve- Out"), provided that, except as otherwise provided in
the Interim Borrowing Order or the Borrowing Order, no portion of the Loans,
Letters of Credit, the Collateral or the Carve- Out shall be utilized for the
payment of professional fees and disbursements incurred in connection with any
challenge to the amount, extent, priority, validity, perfection or enforcement
of the indebtedness owing to the Existing Lenders in respect of the Existing
Credit Facilities or to the collateral securing such indebtedness or to assert
any claims or causes of action against the banks or the agent under the Existing
Credit Facilities. The Lenders agree that so long as no Default shall have
occurred, the Borrower and the
<PAGE>
Guarantors that are Chapter 11 Parties shall be permitted to pay compensation
and reimbursement of expenses allowed and payable under 11 U.S.C. (S) 330 and 11
U.S.C. (S) 331, as the same may be due and payable, and the same shall not
reduce the Carve-Out.
Section .. Joint and Several Liability
All Obligations of the Borrower and the Guarantors under the Financing
Documents shall be joint and several. The Obligations of and the Liens granted
by the Borrower under the Financing Documents shall not be impaired or released
by any action or inaction on the part of any Agent or any Lender with respect to
any Credit Party, including any action or inaction which would otherwise release
a surety.
Section .. Defaulting Lenders Anything contained herein to the contrary
notwithstanding, in the event that any Lender (a "Defaulting Lender") defaults
(a "Funding Default") (x) more than once in its obligation to fund a Loan in
accordance with Section 2.01 or to fund its reimbursement obligation under and
in accordance with Section 2.06(j)(i), or (y) in its obligation to fund any Loan
in accordance with Section 2.01 or to fund its reimbursement obligation under
and in accordance with Section 2.06(j)(i) and such failure continues after 5:00
P.M. on the date such funding is required hereunder, in either case whether or
not as a result of the commencement of insolvency proceedings for such Lender
(any such Loan or amount which such Lender fails to fund as described in clause
(x) or (y) being a "Defaulted Lending Commitment"), then (i) during any Default
Period (as defined below) with respect to such Defaulting Lender, such
Defaulting Lender shall be deemed not to be a "Lender" for purposes of voting on
any matters (including the granting of any consents or waivers) with respect to
any of the Financing Documents, (ii) to the extent permitted by applicable law,
until such time as the Default Excess (as defined below) with respect to such
Defaulting Lender shall have been reduced to zero, (a) any voluntary prepayment
of the Loans pursuant to Section 2.10 shall, if the Borrower so directs at the
time of making such voluntary prepayment, be applied to the Loans of other
Lenders as if such Defaulting Lender had no Loans outstanding and the Credit
Exposure of such Defaulting Lender were zero, and (b) any unscheduled Mandatory
Prepayment of Loans pursuant to Section 2.09 shall, if the Borrower so directs
at the time of making such mandatory prepayment, be applied to the Loans of
other Lenders (but not to the Loans of such Defaulting Lender) as if such
Defaulting Lender had funded all Defaulted Lending Commitments of such
Defaulting Lender, it being understood and agreed that Borrower shall be
entitled to retain any portion of any mandatory prepayment of the Loans that is
not paid to such Defaulting Lender solely as a result of the operation of the
provisions of this clause (b) provided, however, that the Administrative Agent
may, notwithstanding anything in this clause (ii) to the contrary, elect that
any such prepayment of Loans and any interest thereon be applied to cash
collateralize such Defaulting Lender's unfunded Commitments pursuant to any
arrangements entered into by the Defaulting Lender and the Administrative Agent
pursuant to clause (B)(2) of the following paragraph, (iii) such Defaulting
Lender's Commitments and outstanding Loans and such Defaulting Lender's LC
Exposure shall be excluded for purposes of calculating the commitment fees
payable to Lenders pursuant to Section 2.07 in respect of any day during any
Default Period with respect to such
<PAGE>
Defaulting Lender, and such Defaulting Lender shall not be entitled to receive
any commitment fees pursuant to Section 2.07 with respect to such Defaulting
Lender's Commitments in respect of any Default Period with respect to such
Defaulting Lender, and (iv) the Total Utilization of Commitments as at any date
of determination shall be calculated as if such Defaulting Lender had funded all
Defaulted Lending Commitments of such Defaulting Lender.
For purposes of this Agreement, (I) "Default Period" means, with respect
to any Defaulting Lender, the period commencing on the date of the applicable
Funding Default and ending on the earliest of the following dates: (A) the date
on which all Commitments are cancelled or terminated and/or the Obligations are
declared or become immediately due and payable, (B) the date on which (1) the
Default Excess with respect to such Defaulting Lender shall have been reduced to
zero (whether by the funding by such Defaulting Lender of any Defaulted Loans of
such Defaulting Lender or by the non-pro rata application of any voluntary or
mandatory prepayments of the Loans in accordance with the terms of this Section
2.18 or by a combination thereof) and (2) such Defaulting Lender shall have
delivered to the Borrower and the Administrative Agent a written reaffirmation
of its intention to honor its obligations under this Agreement with respect to
its Commitments and, if such Defaulting Lender is a Defaulting Lender pursuant
to clause (y) of the preceding paragraph, shall have made arrangements and
provided further assurances satisfactory to the Administrative Agent and the
Borrower (in their sole discretion) regarding such Lender's honoring of such
future obligations under this Agreement, and (C) the date on which the Borrower,
the Administrative Agent and Required Lenders waive all Funding Defaults of such
Defaulting Lender in writing, and (II) "Default Excess" means, with respect to
any Defaulting Lender, the excess, if any, of such Defaulting Lender's
Percentage of the aggregate outstanding principal amount of Loans and funding
obligations under Section 2.06(j)(i) of all Lenders (calculated as if all
Defaulting Lenders (other than such Defaulting Lender) had funded all of their
respective Defaulted Lending Commitment) over the aggregate outstanding
principal amount of Loans and funded obligations under Section 2.06(j)(i) of
such Defaulting Lender.
No Commitment of any Lender shall be increased or otherwise affected,
and, except as otherwise expressly provided in this Section 2.18, performance by
the Borrower of its obligations under this Agreement and the other Loan
Documents shall not be excused or otherwise modified, as a result of any Funding
Default or the operation of this Section 2.18. The rights and remedies against a
Defaulting Lender under this Section 2.18 are in addition to other rights and
remedies which the Borrower may have against such Defaulting Lender with respect
to any Funding Default and which the Administrative Agent or any Lender may have
against such Defaulting Lender with respect to any Funding Default.
Section .. Removal or Replacement of a Lender
( ) Anything contained in this Agreement to the contrary
notwithstanding, in the event that (i) any Lender shall become a Defaulting
Lender, (ii) the Default Period for
<PAGE>
such Defaulting Lender shall remain in effect, and (iii) such Defaulting Lender
shall fail to cure the default as a result of which it has become a Defaulting
Lender within five Domestic Business Days after the Borrower's request that it
cure such default, then, and in each such case, the Borrower shall have the
right, at its option, to remove or replace the Defaulting Lender (the
"Terminated Lender") to the extent permitted by Section 2.19(b).
( ) The Borrower may, by giving written notice to the Administrative
Agent, the Syndication Agent and any Terminated Lender of their election to do
so, elect to cause such Terminated Lender (and such Terminated Lender hereby
irrevocably agrees to the maximum extent permitted by law) to assign its
outstanding Loans and its Commitments, if any, in full to one or more Persons
who would otherwise be eligible to take such assignment under Section 11.06
(each a "Replacement Lender"), in accordance with the provisions of Section
11.06; provided that on the date of such assignment, the Borrower shall pay any
accrued and unpaid interest on the Loans so assigned and any fees (subject to
clause (iii) of the first paragraph of Section 2.18) payable to such Terminated
Lender and any other amounts payable to such Terminated Lender pursuant to
Section 2.06 or Article 10; provided further that the Borrower may not make
either of such elections with respect to any Terminated Lender that is an LC
Issuing Bank unless, prior to the effectiveness of such election, the Borrower
shall have caused each outstanding Letter of Credit issued by such LC Issuing
Bank to be cancelled.
( ) Upon the prepayment of all amounts owing to any Terminated Lender
and the termination of such Terminated Lender's Commitments, if any, pursuant to
clause (i) of Section 2.19(b), such Terminated Lender shall no longer constitute
a "Lender" for purposes of this Agreement; provided that any rights of such
Terminated Lender to indemnification under this Agreement (including under
Sections 2.06(n) and 11.03 and Article 10) shall survive as to such Terminated
Lender.
Section .. Regulation D Compensation For so long as any Lender maintains
reserves against "Eurocurrency liabilities" (or any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of such Lender to
United States residents), and as a result the cost to such Lender (or its Euro-
Dollar Lending Office) of making or maintaining its Euro-Dollar Loans is
increased, then such Lender may require the Borrower to pay, contemporaneously
with each payment of interest on the Euro-Dollar Loans, additional interest on
the related Euro-Dollar Loan of such Lender at a rate per annum up to but not
exceeding the excess of (i)(A) the applicable London Interbank Offered Rate
divided by (B) one minus the Euro-Dollar Reserve Percentage over (ii) the
-----
applicable London Interbank Offered Rate. Any Lender wishing to require payment
of such additional interest (x) shall so notify the Borrower and the
Administrative Agent, in which case such additional interest on the Euro-Dollar
Loans of such Lender shall be payable to such Lender at the place indicated in
such notice with respect to each Interest Period commencing at least three Euro-
Dollar Business Days after the giving of such notice and (y) shall furnish to
the Borrower at least five Euro-Dollar Business Days prior to each date on which
interest is payable on the Euro-Dollar Loans an officer's certificate setting
forth the amount to which such Lender is then entitled under this Section (which
shall be consistent with such Lender's good faith estimate of the level at which
the related reserves are maintained by it). Each such certificate shall be
accompanied by such
<PAGE>
information as the Borrower may reasonably request as to the computation set
forth therein.
Article
Conditions
Section .. Effectiveness of this Agreement; Closing This Agreement will
become effective, and the Closing will occur, when (i) the Administrative Agent
shall have received the following documents, each dated the Closing Date unless
otherwise indicated, and (ii) the other conditions specified below shall have
been satisfied:
( ) with respect to each party listed on the signature pages hereof,
either a counterpart of this Agreement signed by such party or facsimile
or other written confirmation satisfactory to the Administrative Agent
that such party has signed a counterpart hereof;
( ) a duly executed Note complying with the provisions of Section 2.03
payable to each Lender;
( ) a counterpart of the Guaranty Agreement signed by each Guarantor;
( ) a counterpart of the Security Agreement, signed by the Borrower
and each Guarantor (it being understood that, regardless of any other
provision of this Agreement or the other Financing Documents, in so far
as Guarantors organized under the laws of jurisdictions other than those
of the United States of America are concerned, the Administrative Agent
and the Syndication Agent shall have discretion, acting jointly, in
determining whether or not such Guarantors sign Security Agreements and,
if they do, what Collateral they encumber with the Lien thereof),
together with (to the extent not previously delivered to Morgan in its
capacity as agent under the Existing Credit Facilities) certificates
evidencing all the certificated Equity Interests of the entities listed
in Schedule 4 hereto and signed stock powers (with appropriate signature
guarantees) or other appropriate instruments of transfer relating
thereto;
( ) a signed counterpart of a Mortgage with respect to each property
identified in Schedule 3 in proper form for recording in the relevant
jurisdictions, together with evidence reasonably satisfactory to
Collateral Agent that any related intangibles, mortgage recording or
similar taxes will be paid in connection with such recording;
( ) all signed UCC financing statements reasonably requested by the
Collateral Agent to perfect its security interests in the Collateral;
( ) written wire transfer instructions signed by Borrower on behalf
of the Borrower and in form and substance reasonably satisfactory to the
Administrative Agent for application of the proceeds of the initial
Borrowing hereunder on the date of initial Borrowing, including providing
for the payment on the date of
<PAGE>
initial Borrowing of (1) all fees, expenses and other amounts payable by
the Borrower on or before such date to the Co-Arrangers, the Agents and
the Lenders in connection with this Agreement, and (2) all fees and
expenses of each counsel and financial advisor to the Agents and the
Lenders in connection with this Agreement, the Existing Credit Facilities
and the transactions contemplated thereby;
( ) an opinion of Shearman & Sterling, special New York and California
counsel for the Borrower and the Guarantors, substantially in the form of
Exhibit E-1 hereto (and the Borrower hereby requests such counsel to
deliver such opinions to Lenders);
( ) an opinion of Williams Mullen Clark & Dobbins, special Virginia
counsel for the Borrower and the Guarantors, substantially in the form of
Exhibit E-2 hereto (and the Borrower hereby requests such counsel to
deliver such opinion to Lenders);
( ) an opinion of Dinsmore & Shohl, special Ohio counsel for the
Borrower and the Guarantors, substantially in the form of Exhibit E-3
hereto (and the Borrower hereby requests such counsel to deliver such
opinion to Lenders);
( ) an opinion of Jones, Walker, Waechter, Poitevant, Carrere &
Denegre, special Louisiana counsel for the Borrower and the Guarantors,
substantially in the form of Exhibit E-4 hereto (and the Borrower hereby
requests such counsel to deliver such opinion to Lenders);
( ) an opinion of Butler, Snow, O'Mara, Stevens & Cannada, PLLC,
special Mississippi counsel for the Borrower and the Guarantors,
substantially in the form of Exhibit E-5 hereto (and the Borrower hereby
requests such counsel to deliver such opinion to Lenders);
( ) all approvals, consents and other actions by or in respect of, or
filings with, any governmental body, agency, official, authority or other
Person (including stockholders) required in connection with the
transactions contemplated by the Financing Documents shall have been
obtained, taken or made (except for any such approvals, consents, actions
or filings with any Person (other than any governmental body, agency,
official or authority) as to which the failure to have obtained, taken or
made them is not, in the aggregate, material);
( ) a certified copy of the Interim Borrowing Order (or if there is no
Interim Borrowing Order, the Borrowing Order) together with evidence that
it has been entered by the Court and such Order has conferred on the
Lender and the Agents all the rights and benefits contemplated hereby,
all in form and substance reasonably satisfactory to the Administrative
Agent and the Syndication Agent;
( ) no pleading, application or objection sought by any party in
interest (including any Existing Lender) shall have been granted by the
Court which has not been withdrawn, stayed, dismissed or denied seeking
(i) to dismiss or convert any of the Chapter 11 Cases to a Chapter 7
Case, (ii) the appointment of a Chapter 11 trustee in any of the Chapter
11 Cases or of a trustee in bankruptcy of the Borrower, (iii) the
appointment of an examiner (with expanded powers) for the Borrower under
Section 1106(b) of the Bankruptcy Code, (iv) the granting of an
administrative expense or priority claim or a Lien in either case pari
passu or senior to that of the Collateral Agent granted pursuant to the
Collateral Documents, the Interim Borrowing Order and the Borrowing
Order, (v) to stay, reverse, vacate, or otherwise modify the Interim
Borrowing Order or the
<PAGE>
Borrowing Order without the prior written consent of the Agents and
Required Lenders, or (vi) relief from the automatic stay (or any other
injunction having similar effect) so as to allow a third party to proceed
against any material property or assets of the Borrower;
( ) all First Day Orders entered by the Court on or prior to the
Closing Date are in form and substance satisfactory to the Administrative
Agent and the Syndication Agent;
( ) since December 27, 1998, no Material Adverse Effect (in the sole
opinion of Required Lenders) shall have occurred;
( ) the Administrative Agent shall have received, in form and
substance reasonably satisfactory to the Administrative Agent, a
certificate from an appropriate officer of each of the Credit Parties (i)
attaching copies of the Organizational Documents of such Credit Party and
copies of resolutions or consents of the board of directors of such
Credit Party or of its applicable partner or member authorizing the
applicable Financing Documents, the Chapter 11 Cases and the other
transactions contemplated hereby, and (ii) certifying (A) that such
copies are true, correct and complete copies thereof and that such
resolutions and Organizational Documents are in full force and effect as
of the Closing Date and have been duly adopted in accordance with the
Organizational Documents of such Credit Party, and (B) as to the
signatures and incumbency of the Persons executing Financing Documents on
behalf of such Credit Party;
( ) the Administrative Agent shall have received copies of any
personal property Lien and tax and judgment Lien searches with respect to
personal, real and mixed properties of the Borrower and the Guarantors
received by the Borrower prior to the Closing Date; and the results of
such searches, and the items disclosed on Schedule 6 hereto, shall be
reasonably satisfactory to the Administrative Agent;
( ) Morgan, as administrative agent under the Existing Credit
Agreement, shall be satisfied with the nature and extent of adequate
protection granted in respect of the rights of the lenders and the
administrative agent thereunder, it being understood that such adequate
protection shall not be satisfactory unless, at a minimum, it includes
(i) a second lien (junior only to the liens granted pursuant hereto) on
unencumbered assets of the Borrower (including without limitation
property acquired after commencement of the Chapter 11 Case), (ii)
current cash-payment of a portion of the interest accruing under the
Existing Credit Agreement at a rate per annum equal to Base Rate plus 1%,
(iii) accruals of additional interest in an amount equal to the spread
between such rate and the non-default contract rate as an expense of
administration in the Borrower's Chapter 11 Case, (iv) further accruals
of additional interest in an amount equal to the spread between such
contract rate and the default rate provided for in the Existing Credit
Agreement and (v) cash payment in full at the Closing hereunder of all
the fees and expenses of Morgan, in such capacity (including the fees and
expenses of its counsel and other consultants and advisors);
( ) security and other documents relating to assets outside the United
States in form and substance acceptable to the Administrative Agent and
the Syndication Agent;
( ) the Cash Plan in form and substance acceptable to the
Administrative Agent and the Syndication Agent;
<PAGE>
( ) a Borrowing Base Certificate as of the Closing Date; and
( ) all other documents that the Administrative Agent may reasonably
request relating to the existence of the Crown Companies, the corporate
or other authority for and the validity of the Financing Documents, the
creation and perfection of the Liens contemplated by the Collateral
Documents and any other matters relevant thereto, all in form and
substance satisfactory to the Administrative Agent.
Promptly after the Closing occurs, the Administrative Agent shall notify the
Borrower and the Lenders thereof, and such notice shall be conclusive and
binding on all parties hereto.
Notwithstanding anything herein to the contrary, it is understood and
agreed that the documents and items set forth on Schedule 9 hereto shall be
delivered after the Closing Date in accordance with Section 5.10. Each Lender,
by delivering its signature page to this Agreement and funding its initial
Loans, if any, on the date of initial Borrowing, shall be deemed to have
acknowledged receipt of, and consented to and approved (as long as substantially
in the form delivered to the Lenders, including any changed pages thereto
delivered to the Lenders), each Financing Document and each other document
required to be approved or consented to by the Required Lenders or the Lenders,
as applicable, under this Section 3.01.
Section .. Credit Events The obligations (i) of each Lender to make a
Loan on the occasion of each Borrowing, (ii) of an LC Issuing Bank to sell and
of each Lender to purchase each participation in a Letter of Credit as and when
provided in Section 2.06, and (iii) of each LC Issuing Bank to extend (or allow
the extension of) the expiry date of a Letter of Credit issued by it hereunder
as and when provided in Section 2.06 are each subject to the satisfaction of the
following conditions:
( ) the Closing Date shall have occurred;
( ) the Administrative Agent shall have received notice of the relevant
Credit Event as required by Section 2.02 or 2.06(c), as the case may be;
( ) the fact that, immediately after such Borrowing or issuance of a
Letter of Credit, (i) the aggregate outstanding principal amount of the Loans
will not exceed the aggregate amount of the Commitments and (ii) the aggregate
amount of Aggregate LC Exposure (after giving effect to the application of the
proceeds of any Revolving Credit Borrowing then being made) will not exceed the
amount thereof permitted under clauses (i) and (ii) of Section 2.06(a);
( ) (i) immediately before and after such Credit Event, no Default shall
have occurred and be continuing and
(ii) regardless of any other provision of this Agreement or the other
Financing Documents, insofar as Subsidiaries organized under the laws of
jurisdictions other than those of the United States of America are concerned,
the Administrative Agent and the Syndication Agent, acting jointly, and in their
sole reasonable discretion, shall be satisfied (A) as to which such Subsidiaries
shall have and have not signed Guaranties, (B) as to those, if any, that have
signed, which of them shall have pledged Collateral and (C)
<PAGE>
as to those that have pledged, as to the Collateral actually selected for pledge
and the arrangements for perfection thereof;
( ) each of the representations and warranties made by the Borrower or
the Guarantors in or pursuant to any Financing Document to which it is a party
shall be true on and as of the date of such Credit Event as if made on and as of
such date;
( ) no order, judgment or decree of any court (including, without
limitation, the Court), arbitrator or governmental authority shall purport to
enjoin or restrain such Lender from making any such Loan or extending or issuing
any such Letter of Credit on the date of such Credit Event;
( ) immediately after giving effect to such Credit Event, the
limitations on borrowing set forth in Section 2.01(b) shall have been complied
with;
( ) the making of the Loans requested in connection with any such
Borrowing shall not violate any law including Regulation T, Regulation U or
Regulation X of the Board of Governors of the Federal Reserve System;
( ) there shall not be pending or, to the knowledge of the Borrower,
threatened, any action, suit, proceeding, governmental investigation or
arbitration against or affecting any Crown Company that has not been disclosed
by the Borrower in writing pursuant to Section 4.06 or 5.01(k), and there shall
have occurred no development in any such action, suit, proceeding, governmental
investigation or arbitration, that (i) in any manner questions the validity of
any Financing Document, (ii) could reasonably be expected to have a Material
Adverse Effect or in which there is a reasonable possibility of an adverse
decision that could reasonably be expected to have a Material Adverse Effect, or
(iii) seeking to enjoin, stay or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the transactions
contemplated by this Agreement or the making of Loans hereunder;
( ) either () the Interim Borrowing Order shall be in full force and
effect and shall not have been stayed, reversed, modified or amended in any
respect, and neither the making of any Loans nor the issuance of any Letter of
Credit nor the performance by the Borrower or any of the Guarantors of any of
their respective obligations hereunder or under the Financing Documents or under
any other instrument or agreement referred to herein shall be the subject of a
presently effective stay pending appeal, or () the Borrowing Order shall have
become a Final Order;
( ) with respect to the initial Credit Event after the Borrowing Order
is entered by the Court, the Administrative Agent and the Syndication Agent
shall be reasonably satisfied with their due-diligence review of the operations,
prospects, financial-reporting systems, existing obligations and financial
condition of the Borrower and its Subsidiaries, including, should the
Administrative Agent or the Syndication Agent in their discretion request the
same, (i) an appraisal of the inventory of the Borrower and its Subsidiaries
prepared at the Borrower's expense by a third-party consultant satisfactory to
the Administrative Agent and the Syndication Agent, (ii) an analysis of the
reporting and accounts receivable and inventory-control systems of the Borrower
and its Subsidiaries prepared at their expense by auditors, professionals or
employees selected by the Administrative Agent and the Syndication Agent, (iii)
a review of the consolidating and consolidated financial projections of the
Borrower and its Subsidiaries showing the effects of the Chapter 11 Cases and
(iv) the delivery to the Administrative Agent and the Syndication Agent of
Uniform Commercial Code searches conducted in jurisdictions in
<PAGE>
which any Credit Party conducts business or holds property reflecting the
absence of liens on the assets (including inventory) of any Credit Party, except
for such liens as the Administrative Agent and the Syndication Agent may find,
in their discretion, to be unobjectionable; and
( ) all First Day Orders (if any) entered since the Closing Date are in
form and substance satisfactory to the Administrative Agent and the
Syndication Agent.
Each Credit Event under this Agreement shall be deemed to be a
representation and warranty by the Borrower on the date of such Credit Event
that all of the conditions set forth in this Section 3.02 have been satisfied
and that each certification contained in the relevant Notice of Borrowing or LC
Request, as the case may be, is true, correct and complete on the date of such
Credit Event.
Article
Representations and Warranties
The Borrower represents and warrants to the Lender Parties that:
Section .. Corporate Existence and Power The Borrower is a corporation
duly incorporated or organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation or organization, and, subject to
compliance with any applicable provisions of the Bankruptcy Code, has all
corporate or other powers and all material Governmental Approvals required to
carry on its business as now conducted and as proposed to be conducted, except
for such Governmental Approvals the failure of which to have in the aggregate
could not be reasonably expected to have a Material Adverse Effect. The Borrower
is in compliance with its Organizational Documents and all orders of the Court.
Section .. Corporate and Governmental Authorization, No Contravention
The execution and delivery by each Crown Company of the Financing Documents to
which it is a party, its performance of its obligations thereunder and, with
respect to the Borrower, the issuance and payment of the Notes are within its
corporate or other powers, have been duly authorized by all necessary corporate
or other action, require no action by or in respect of, or filing with, any
governmental body, agency or official (except for the approval of the Court and
such actions or filings as shall have occurred at or before the time required by
the Financing Documents, each of which shall be in full force and effect to the
extent required by the Financing Documents) and do not contravene, or constitute
a default under, any Applicable Laws (including an applicable order of the
Court) or any provision of its Organizational Documents, or of any agreement or
other instrument binding upon it (which contravention or default, in the case of
such instruments or agreements, would give rise to rights enforceable on a post-
Petition Date basis) or result
<PAGE>
in or require the imposition of any Lien (other than the Liens created by the
Collateral Documents) on any of its assets.
Section .. Binding Effect This Agreement constitutes a valid and binding
agreement of the Borrower, and the other Financing Documents, when executed and
delivered as contemplated by this Agreement, will constitute valid and binding
obligations of each Crown Company that is a party thereto, in each case
enforceable in accordance with its terms, except as enforceability may be
limited by general principles of equity and, in the case of any Guarantor, by
bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting
creditor's rights generally.
Section .. Security Interests On the Closing Date, the Collateral
Documents will create valid Security Interests in the Collateral. At all times
after the Closing, the Collateral Documents, in conjunction with the entry of
the Interim Borrowing Order and/or the Borrowing Order, will create valid and
perfected Security Interests in the Collateral of the Borrower from time to time
covered or purportedly covered thereby. Such Security Interests will be prior to
all other Liens (except as set forth in the Interim Borrowing Order and the
Borrowing Order) on such Collateral until the applicable Security Interest is
released pursuant to Section 14 of the Security Agreement on Section 7.02(b) of
any Mortgage.
Section .. Financial Information
( ) The consolidated balance sheet of Crown Paper and its Consolidated
Subsidiaries as of December 27, 1998 and the related consolidated statements of
operations, cash flows and shareholders' equity for the Fiscal Year then ended,
reported on by Ernst & Young LLP, fairly present in all material respects, in
conformity with GAAP, the consolidated financial position of Crown Paper and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such Fiscal Year.
( ) Since December 27, 1998, no event has occurred and no condition has
come into existence which has had, or is reasonably likely to have, a Material
Adverse Effect.
Section .. Litigation Except as disclosed in Schedule 5 hereto or
pursuant to Section 5.01(i), there is no action, suit or proceeding pending
against, or to the knowledge of the Borrower threatened against or affecting,
any Crown Company before any court or arbitrator or any governmental body,
agency or official (i) in which there is a reasonable possibility of an adverse
decision that could reasonably be expected to have a Material Adverse Effect or
(ii) which in any manner questions the validity of any Financing Document.
Section .. Compliance with ERISA Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect
<PAGE>
to each Plan and is in compliance in all material respects with the presently
applicable provisions of ERISA and the Internal Revenue Code with respect to
each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code in respect of
any Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or made any amendment to any Plan, which has resulted or
could result in the imposition of a Lien or the posting of a bond or other
security under ERISA or the Internal Revenue Code or (iii) incurred any
liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA.
Section .. Taxes The Crown Companies have filed all United States
Federal income tax returns that are required to be filed by them (or have filed
appropriate extensions for filing such tax returns) and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by any of them,
except such taxes, if any, as are being contested in good faith and as to which
reserves have been provided. The charges, accruals and reserves on the books of
the Crown Companies in respect of taxes or other similar governmental charges
are, in the opinion of Borrower, adequate.
Section .. Compliance with Laws The Crown Companies are in compliance in
all material respects with all Applicable Laws other than such laws, rules or
regulations (i) the validity or applicability of which the relevant Crown
Company is contesting in good faith or (ii) the failure to comply with which
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
Section .. No Regulatory Restrictions on Borrowing Neither the Borrower
nor any Guarantor is (i) an "investment company", within the meaning of the
Investment Company Act of 1940, as amended, (ii) a "holding company", or an
"affiliate" of a "holding company" or a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended or (iii) otherwise subject to any regulatory scheme (other than the
Bankruptcy Code) which restricts its ability to incur Debt hereunder.
Section .. Environmental Matters( ) From time to time after the
Closing, Borrower will review the effect of Environmental Laws on the business,
operations and properties of the Crown Companies, in the course of which reviews
it will identify and evaluate associated liabilities and costs. On the basis of
such reviews, Borrower has reasonably concluded that the foregoing associated
liabilities and costs are unlikely to have a Material Adverse Effect.
( ) Except to the extent that the Environmental Liabilities of the
Borrower that relate to or could result from the matters referred to in this
Section 4.11(b) would not exceed $1,000,000 for any one occurrence, no material
notice, notification, demand, request for information, citation, summons,
complaint or order with respect to Hazardous Substances or any violation of
Environmental Laws is in existence or, to the knowledge of Borrower, proposed,
threatened or anticipated with respect to or in connection with the
<PAGE>
operation of any properties to be owned, leased or operated after the Closing
Date by any Crown Company.
Section .. Full Disclosure All information heretofore furnished in
writing by any Crown Company to any Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby was, and
all such information hereafter furnished in writing by the Crown Companies to
any Agent or Lender will be, true and accurate in every material respect or
based on reasonable estimates on the date as of which such information is or was
stated or certified. Borrower has disclosed to the Lenders in writing any and
all facts which are known to it and which have had or could reasonably be
expected to have a Material Adverse Effect.
Section .. Information as to Equity Interests and Instruments Owned by
Crown Companies Schedule 4 hereto sets forth a correct and complete list of each
Subsidiary of Borrower, its outstanding Equity Interests, the owner thereof and
the percentage thereof owned by such owner. None of such interests consist of
uncertificated securities. None of Crown Vantage nor any of its Subsidiaries
(including, without limitation, the Borrower) owns any interest in any
Subsidiary that is not the Borrower or listed on Schedule 4. No Debt (including
Permitted Intercompany Debt) owed to any Lien Grantor is evidenced by an
instrument (as such term is defined in the UCC) that is not held in a
Concentration Account or pledged to the Collateral Agent as part of the
Collateral. No Subsidiary has any significant assets except as noted on Schedule
4.
Section .. Representations in Other Financing Documents The
representations of each Guarantor in Section 2 of the Guaranty Agreement and the
representations of each Lien Grantor in Section 2 of the Security Agreement and
Section 5 of each Security Agreement Supplement (if any) signed by it are true.
Section .. Margin Stock The Crown Companies do not own, as of the date
hereof, or expect that the Crown Companies will acquire any Margin Stock in the
future.
Section .. Representations Concerning Cash Management System The summary
of Borrower's cash management system set forth in the First Day Orders is
accurate and complete in all material respects as of the Closing Date and does
not omit to state any material fact necessary to make the statements set forth
therein not misleading. The Borrower does not own any Deposit Account which is
not subject to the liens granted under the Security Agreement. Except for
changes expressly contemplated in the Financing Documents, there has been no
material change to the cash management system except such changes as have been
disclosed to the Collateral Agent in writing and approved by Required Lenders.
Section .. Pre-Petition Indebtedness; Existing Liens As of the Petition
Date, the aggregate principal amount of Debt and letter of credit exposure
outstanding and owed under the Existing Credit Facilities (exclusive of any
accrued interest, fees or other charges thereunder) is as specified in the
Interim Borrowing Order. Schedule 6 identifies
<PAGE>
all other Pre-Petition Indebtedness secured by assets of any Crown Company.
Except as set forth in Schedule 7, as of the Petition Date, there were no Liens
on any property of any Crown Company other than Permitted Encumbrances.
Section .. Chapter 11 Cases The Chapter 11 Cases were commenced on the
Petition Date in accordance with Applicable Law, venue is proper with respect
thereto and proper notice thereof has been given to creditors to the extent
required by Applicable Law.
Section .. Cash Plan The Borrower has, in connection with the
preparation of each supplement to the Cash Plan required to be delivered to the
Administrative Agent pursuant to Section 5.01(o), made all investigations and
inquiries as the Borrower deems necessary and prudent therefor. A summary of the
significant assumptions upon which each such supplement is based are stated
therein. Although any assumptions and any projections by necessity involve
uncertainties and approximations, the Borrower believes that the assumptions on
which each such supplement to the Cash Plan is based are reasonable. The
projections for the Borrower set forth in each such supplement to the Cash Plan,
taken as a whole, provide reasonable estimations of future performance, subject,
as stated above, to the uncertainties and approximations inherent in any
projections.
Section .. Collateral Information for Interim Borrowing The Borrower
represents and warrants that the information set forth on Exhibit K is true and
correct in all material respects.
Article
Affirmative Covenants
The Borrower agrees that, so long as any Lender has any Credit Exposure
hereunder or any Obligation remains unpaid, it will, or will cause its relevant
Affiliate or Affiliates to comply with each of the following:
Section .. Information The Borrower will deliver the following
information to the Administrative Agent, the Syndication Agent and each Lender:
( ) as soon as available and in any event not later than 5:00 p.m.
(Eastern Time) on the second Domestic Business Day of each week after the
Closing Date, () consolidated cash flow reports, consistent with the Cash Plan
and otherwise substantially in the form
<PAGE>
and scope of the Cash Plan reflecting on a line-item basis cash receipts and
disbursements for the Borrower and () a calculation, in reasonable detail, of
the Excess Cash Amount for each Domestic Business Day of the preceding week, all
of the foregoing to be in form and substance satisfactory to Administrative
Agent and certified as complete and correct by the Financial Officer of the
Borrower.
( ) as soon as available and in any event within 90 days after the end
of each fiscal year of the Borrower (other than fiscal 1999, in respect of which
such period shall be 120 days), the consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of the end of such fiscal year and the
related consolidated statements of operations, cash flows and changes in
stockholders' equity for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on in a
manner acceptable to the Securities and Exchange Commission by Ernst & Young LLP
or other independent public accountants of nationally recognized standing;
( ) as soon as available and in any event no later than the due dates
set forth in the table below, an unaudited condensed consolidated balance sheet
of Crown Vantage and its Consolidated Subsidiaries and of Crown Paper and its
consolidated Subsidiaries, and the related condensed consolidated statements of
operations for such Fiscal Quarter or month, as the case may be, and for the
portion of the Fiscal Year, as the case may be, ended at the end of such Fiscal
Quarter or month, as the case may be, and of cash flows for the portion of the
Fiscal Year ended at the end of such Fiscal Quarter or month, as the case may
be, setting forth in each case in comparative form the unaudited consolidated
statements of operations and cash flows (to the extent available) for the
corresponding Fiscal Quarter or month, as the case may be, and the corresponding
portion of the previous Fiscal Year, all prepared in accordance GAAP and, with
respect to any such financial statements for any Fiscal Quarter or Fiscal Year,
in accordance with Rule 10-01 of Regulation S-X of the General Rules and
Regulations under the Securities Act of 1933, or any successor rule that sets
forth the manner in which interim financial statements shall be prepared;
--------------------------------------------------------
Reported Period Due Date
--------------------------------------------------------
Calendar Months Within 30 days
--------------------------------------------------------
First Three Quarters Within 45 days
--------------------------------------------------------
( ) simultaneously with the delivery of each set of financial statements
referred to in Section 5.01(b) and (c), a certificate of the Financial Officer
of the Borrower, substantially in the form of Exhibit D-1 hereto, (i) setting
forth in reasonable detail such calculations as are required to establish
whether the Borrower was in compliance with the requirements of Article 6 on the
date of such financial statements, (ii) stating whether any Default exists on
the date of such certificate and, if any Default then exists, setting forth the
details thereof and the action that the Borrower is taking or proposes to take
with respect thereto, (iii) stating whether, since the date of the Most Recent
Audited Financial Statements, an event has occurred or condition arisen which
has had a Material Adverse Effect which is not reflected in the financial
statements delivered simultaneously therewith and, if so, the nature of such
Material Adverse Effect, and (iv) stating whether, since the date of the Most
Recent Audited Financial Statements, there has been a change in the GAAP applied
in preparing the financial statements then being delivered from
<PAGE>
those applied in preparing the Most Recent Audited Financial Statements which is
material to the financial statements then being delivered;
( ) simultaneously with the delivery of each set of financial statements
referred to in clause (b) above, (i) a statement of the firm of independent
public accountants which reported on such statements (x) whether anything has
come to their attention to cause them to believe that any Default existed on the
date of such statements and (y) confirming the calculations set forth in the
officer's certificate delivered simultaneously therewith pursuant to clause (d)
above;
( ) within three Domestic Business Days after any Executive Officer or
Financial Officer of Crown Paper obtains knowledge of any Default, if such
Default is then continuing, a certificate of the Financial Officer setting forth
the details thereof and the action that the Borrower is taking or proposes to
take with respect thereto;
( ) within three Domestic Business Days after any Executive Officer or
Financial Officer of any Crown Company obtains knowledge of any failure by a
Crown Company to comply with the provisions (enforceable or actionable on a
post-Petition Date basis) of any material contract and such failure could
reasonably be expected to result in an Event of Default or Material Adverse
Effect, if such failure is then continuing, a certificate of such Financial
Officer setting forth the details thereof and the action that such Crown Company
is taking or proposes to take with respect thereto;
( ) promptly after the mailing thereof to Crown Vantage's shareholders
generally, copies of all financial statements, reports and proxy statements so
mailed;
( ) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and annual, quarterly or current reports that any
Crown Company shall have filed with the SEC;
( ) promptly after any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or makes any amendment to any Plan which has resulted or
could result in the imposition of a Lien or the posting of a bond or other
security, a certificate of the Financial Officer setting forth details as to
such occurrence and the action, if any, which the Borrower or the applicable
member of the ERISA Group is required or proposes to take;
( ) as soon as reasonably practicable after any Executive Officer
obtains knowledge of the commencement of an action, suit or proceeding against
any Crown Company
<PAGE>
before any court or arbitrator or any governmental body, agency or official in
which there is a reasonable possibility of an adverse decision which could have
a Material Adverse Effect or which in any manner questions the validity of any
Financing Document, a certificate of the Financial Officer setting forth the
nature of such action, suit or proceeding and such additional information as may
be reasonably requested by any Lender through the Administrative Agent;
( ) promptly upon Crown Vantage's or Crown Paper's receipt from its
independent public accountants of any management letter regarding the reporting
practices or internal controls of any Crown Company, a copy thereof and a
description of any action being taken with respect to any material weakness
referred to therein;
( ) promptly upon their becoming available, copies of all press releases
and other statements made available generally by any Crown Company to the public
concerning material developments in its business;
( ) promptly after the same is available, all pleadings, motions,
applications, judicial information, financial information, operating reports and
other documents (with a copy to counsel to the Administrative Agent) filed by or
on behalf of the Borrower with the Court or the United States Trustee in the
Chapter 11 Cases or distributed by or on behalf of Borrower to any official
committee appointed in the Chapter 11 Cases; and without limiting the generality
of the foregoing, the Borrower shall promptly deliver to, and discuss with, the
Administrative Agent and its counsel any and all information and developments in
connection with any event or condition which is reasonably likely to have a
material effect on the Borrower or the Chapter 11 Cases, including, without
limitation, the progress of any disclosure statement or any proposed Chapter 11
plan of reorganization;
( ) promptly after the same is available but in any event no later than
the Closing Date and the 15/th/ Domestic Business Day of each month thereafter,
a supplement to the Cash Plan setting forth, for the three calendar months
immediately following the month in which such supplement is required to be
delivered, a consolidated cash forecast for the Borrower in substantially the
form of the Cash Plan attached hereto as Schedule 1 and in substance
satisfactory to the Administrative Agent;
( ) promptly, upon receipt of any complaint, order, citation, notice or
other written communication from any Person with respect to, or upon any Crown
Company obtaining knowledge of, (i) the existence or alleged existence of a
violation of any applicable Environmental Law or any Environmental Liability in
connection with any property now or previously owned, leased or operated by any
Crown Company, (ii) any Release on such property or any part thereof in a
quantity that is reportable under any applicable Environmental Law, and (iii)
any pending or threatened proceeding for the termination, suspension or non-
renewal of any permit required under any applicable Environmental Law, in each
case in which there is a reasonable likelihood of an adverse decision or
determination which could result in a Material Adverse Effect;
( ) promptly upon any Person becoming or ceasing to be a Subsidiary of
Crown Vantage, an update to Schedule 4 hereto setting forth the information
described in Section 4.13 with respect to each Subsidiary of Crown Vantage (it
being understood that nothing in this Section 5.01(q) shall be deemed to permit
or authorize the creation, dissolution, liquidation or acquisition of a
Subsidiary of Crown Vantage not otherwise permitted under this Agreement);
( ) from time to time such additional information regarding the
financial position, results of operations or business of any Crown Company or
the Chapter 11 Cases or such
<PAGE>
other matters relating to any Crown Company as any Lender may reasonably request
through the Administrative Agent;
( ) as soon as available and in any event ( ) on or before 12:00 noon
(Eastern Time) on the Wednesday following the Closing Date, and on each
Wednesday thereafter, a weekly Borrowing Base Certificate as of the last day of
the immediately preceding week, containing the supporting information specified
in Exhibit D-2 hereto and certified as complete and correct by a Financial
Officer of Borrower, ( ) within 15 days after the end of each calendar month, a
Borrowing Base Certificate showing the Borrowing Base as of the close of
business on the last day of the most recently ended fiscal month, certified as
complete and correct by a Financial Officer of Borrower, and ( ) such other
supporting documentation and additional reports with respect to the Borrowing
Base as the Administrative Agent shall reasonably request;
( ) within 30 days after the Petition Date, an operating plan for Crown
Paper and its Consolidated Subsidiaries for the period from the Petition Date
through the Stated Maturity Date (as supplemented in accordance with this
Section 5.01, the "DIP Operating Plan") in form and substance satisfactory to
the Administrative Agent and the Syndication Agent; and
( ) not later than December 15 of each year, a supplement to the DIP
Operating Plan for the next fiscal year of Crown Paper and its Consolidated
Subsidiaries, which shall be satisfactory in form and substance to the
Administrative Agent and the Syndication Agent.
Section .. Maintenance of Property Each Crown Company will keep all
property useful and necessary in its business in good working order and
condition, ordinary wear and tear and casualty excepted.
Section .. Insurance
( ) The Borrower will maintain, and will cause its Subsidiaries to
maintain, insurance with financially sound and responsible companies in such
amounts (and with such risk retention) and against such risks as is usually
carried by owners of similar businesses and properties in the same general areas
in which the Borrower and its Subsidiaries operate. The Borrower will
deliver to the Lenders ( ) upon request of any Lender through the
Administrative Agent from time to time full information as to the insurance
carried and ( ) within five days of receipt of notice from any insurer a copy
of any notice of cancellation, nonrenewal or material change in coverage from
that existing on the date of this Agreement. Not later than March 24, 2000, the
Collateral Agent shall be named as additional insured on all liability policies
and loss payee (mortgagee) on all property and casualty insurance policies with
respect to the Collateral and (ii) copies of all such policies shall be
delivered to the Collateral Agent.
( ) If any Crown Company fails to maintain any insurance policy required
to be maintained under this Section 5.03, the Collateral Agent shall have the
right to maintain such policy or obtain a comparable policy, and in either case
pay the premiums therefor. If the Collateral Agent maintains or obtains any such
policy and pays the premiums therefor, the Borrower will reimburse the
Collateral Agent upon demand for its expenses in connection therewith, including
interest thereon for each day at a rate per annual equal to the Default Rate.
<PAGE>
Section .. Compliance with Law Each Crown Company will comply in all
material respects with all Applicable Laws (including Environmental Laws and
ERISA and the rules and regulations thereunder) except where (i) the necessity
of compliance therewith is contested in good faith by appropriate measures or
proceedings, in which case adequate and reasonable reserves will be established
in accordance with GAAP and notice of each such contest (other than contests in
the ordinary course of business set forth in the form of footnotes to cost
reports) shall be given to the Administrative Agent, or (ii) failures to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Section .. Maintenance of Existence, Rights, Etc Each Crown Company will
preserve, renew and keep in full force and effect its existence and its rights,
privileges, licenses and franchises necessary or desirable in the normal conduct
of business.
Section .. Use of Proceeds and Letters of Credit The proceeds of the
Loans and the benefits of the Letters of Credit shall be applied to fund working
capital requirements and general corporate purposes relating to Borrower's post
Petition Date operations, all in accordance with those items set forth in the
Cash Plan and the DIP Operating Plan; provided that no portion of the Loans or
the benefits of the Letters of Credit shall be used, directly or indirectly, to
(i) finance or make or support any Restricted Payment except as permitted under
Section 7.15; (ii) make or support any payment or prepayment that is prohibited
under this Agreement, including any payment or prepayment in respect of Pre-
Petition Indebtedness to the extent prohibited hereunder; (iii) make or support
any payment in settlement of any pre-Petition Date claim, action or proceeding,
before any court, arbitrator or other governmental body other than as permitted
by a First Day Order or the Required Lenders; or (iv) make or support the
obtaining of credit by or the making of loans to Subsidiaries.
Section .. Assets to Be Added to Collateral
( ) Concurrently with any Person becoming a Subsidiary after the date
hereof, the Borrower shall cause all Equity Interests in such Person owned by
the Crown Companies to be pledged under the Security Agreement.
( ) No later than 10 days after entry of the Borrowing Order, the
Borrower shall deliver to the Collateral Agent title insurance policies for all
real properties securing the Obligations in scope, form and substance reasonably
satisfactory to the Collateral Agent. Upon the reasonable request of the
Collateral Agent delivered from time to time after the Closing Date, the
Borrower shall as soon as reasonably practicable thereafter deliver to the
Collateral Agent a Mortgage or Leasehold Mortgage with respect to any real
property interest (whether owned or leased) of Crown Paper and its Subsidiaries
that the Collateral Agent shall so request that was not made subject to a
Mortgage on the Closing Date in accordance with Section 3.01, and the
appropriate UCC form for the related fixture filing, all in form and substance
reasonably satisfactory to the Collateral Agent, together with title insurance
for all such owned real property in scope, form and substance reasonably
satisfactory to Collateral Agent.
<PAGE>
( ) Concurrently with any Person becoming a Subsidiary, the Borrower
will (i) cause such Subsidiary to sign and deliver a Guaranty Agreement and
Security Agreement Supplement granting a Lien or Liens on substantially all the
personal property included in its assets (with such exceptions as the Collateral
Agent shall have approved in writing) to the Collateral Agent to secure its
Secured Obligations and (ii) cause such Subsidiary to comply with the provisions
thereof and of the Security Agreement and Guaranty Agreement. In the event that
after the Closing Date the Borrower shall cause any of the Guarantors to be
liquidated, dissolved or joined as debtors in the Chapter 11 Cases, the
Guarantors and the Borrower shall take all actions and execute all documents
necessary or reasonably requested by the Collateral Agent (i) to preserve and
protect the Collateral Agent's Lien (and the perfection and priority thereof) in
the Collateral, and no such liquidation or dissolution shall adversely affect
the Collateral Agent's Lien or the value thereof and (ii) to cause any such
Guarantor joining the Chapter 11 Cases to become bound as the Borrower
hereunder.
( ) Without expense or cost to any Agent or Lenders, the Borrower shall
from time to time hereafter execute, acknowledge, file, record, do and deliver
all and any further acts, deeds, conveyances, mortgages, deeds of trust, deeds
to secure debt, security agreements, hypothecations, pledges, charges,
assignments, financing statements and continuations thereof, notices of
assignment, transfers, certificates, assurances and other instruments as the
Administrative Agent or Collateral Agent may from time to time reasonably
request and that do not involve a material expansion of the Borrower's
obligations or liabilities hereunder in order to carry out more effectively the
purposes of this Agreement, the other Financing Documents, the Interim Borrowing
Order or the Borrowing Order, including to subject any Collateral, intended to
now or hereafter be covered, to the Liens created by the Collateral Documents,
to perfect and maintain such Liens, and to assure, convey, assign, transfer and
confirm unto the Collateral Agent the property and rights thereby conveyed and
assigned or intended to now or hereafter be conveyed or assigned or that the
Borrower may be or may hereafter become bound to convey or to assign to the
Collateral Agent or for carrying out the intention of or facilitating the
performance of the terms of this Agreement, any other Financing Documents, the
Interim Borrowing Order or the Borrowing Order, registering or recording this
Agreement or any other Financing Document. Without limiting the generality of
the foregoing, the Borrower shall deliver to the Collateral Agent, promptly upon
receipt thereof, all instruments received by the Borrower after the Closing Date
and take all actions and execute all documents necessary or reasonably requested
by the Collateral Agent to perfect the Collateral Agent's Liens in any such
instrument or any other Investment acquired by the Borrower.
( ) The Borrower hereby agrees to pay all filing, registration and
recording fees and all expenses incident to the execution and acknowledgment of
any Mortgage or other Financing Document, including any instrument of further
assurance described in Section 5.07(d), and shall pay all title insurance
premiums, fees and expenses, mortgage recording taxes, transfer taxes, general
intangibles taxes and governmental stamp and other taxes, duties, imposts,
assessments and charges arising out of or in connection with the execution,
delivery, filing, recording or registration of any Mortgage or other Financing
Document, including any instrument of further assurance described in Section
5.07(d), or by reason of its interest in, or measured by amounts payable under,
the Notes, the Mortgages or any other Financing Document, including any
instrument of further assurance described in Section 5.07(d), (excluding income,
franchise and doing business
<PAGE>
Taxes), and shall pay all stamp taxes and other taxes required to be paid on the
Notes or any other Financing Document; provided, however, that the Borrower may
contest in good faith and through appropriate proceedings, any such taxes,
duties, imposts, assessments and charges; provided further, however, that the
Borrower shall pay all such Taxes, duties, imposts and charges when due to the
appropriate taxing authority during the pendency of any such proceedings if
required to do so to stay enforcement thereof. If the Borrower fails to make any
of the payments described in the preceding sentence within 10 days after notice
thereof from the Collateral Agent (or such shorter period as is necessary to
protect the loss of or diminution in value of any Collateral by reason of tax
foreclosure or otherwise, as determined by the Collateral Agent) accompanied by
documentation verifying the nature and amount of such payments, the Collateral
Agent may (but shall not be obligated to) pay the amount due and the Borrower
shall reimburse all amounts in accordance with the terms hereof.
( ) The Collateral Agent may, upon at least five days' prior notice to
the Borrower, (i) appear in and defend any action or proceeding, in the name and
on behalf of the Agents, Lenders or the Borrower, in which any Agent or any
Lender is named or which the Collateral Agent in its sole discretion determines
is reasonably likely to materially adversely affect any Collateral, any
Collateral Document, the Lien thereof or any other Financing Document and (ii)
institute any action or proceeding which the Collateral Agent reasonably
determines should be instituted to protect the interest or rights of the Agents
and Lenders in any Collateral or under this Agreement or any other Financing
Document. The Borrower agrees that all reasonable costs and expenses expended or
otherwise incurred pursuant to this subsection (including reasonable attorneys'
fees and disbursements) by any Agent shall be paid pursuant to Section 11.03
hereof.
( ) The Borrower agrees that upon the occurrence and during the
continuance of any Event of Default and, in any event, as set forth in Section
2.06(b), on or prior to the Commitment Termination Date, it shall pay to the
Collateral Agent an amount in immediately available funds (which funds shall be
held as collateral and applied pursuant to the Security Agreement) to 105% of
the then aggregate amount available for subsequent drawings under all
outstanding Letters of Credit to be held for the benefit of the Lenders and the
LC Issuing Banks in accordance with the Collateral Documents to secure the
payment of all LC Reimbursement Obligations arising from subsequent drawings
under such Letters of Credit.
( ) Whenever any asset is added to the Collateral pursuant to this
Section 5.07, the Borrower shall deliver to the Administrative Agent and
Collateral Agent such legal opinions and other documents as the Administrative
Agent or Collateral Agent may reasonably request relating to the existence of
the relevant Lien Grantor, the corporate or other authority for and validity of
the Collateral Documents applicable thereto, the creation and perfection (or due
recordation) of the Lien purportedly created thereby and any other matters
relevant thereto, all in form and substance satisfactory to the Administrative
Agent and Collateral Agent.
Section .. Casualty Events
( ) All Casualty Proceeds received by the Collateral Agent or the Cash
Concentration Bank or any Crown Company shall be deposited in the appropriate
Casualty Proceeds Account (as defined in the Security Agreement) and applied as
follows:
<PAGE>
( ) such Casualty Proceeds will be released by the Cash Concentration
Bank from time to time, to restore, repair, replace or rebuild the asset
in respect of which such Casualty Proceeds were received, upon delivery
to Cash Concentration Bank of a certificate signed by the Financial
Officer of the Borrower that such Casualty Proceeds will be utilized for
such purpose; and
( ) if within 90 days after such Casualty Proceeds are received, the
relevant Crown Company shall not have expended or committed to expend the
full amount of such Casualty Proceeds to restore, repair, replace or
rebuild the asset in respect of which such Casualty Proceeds were
received (the excess of the amount of such Casualty Proceeds over the
amount of such expenditures and commitments, being "Excess Casualty
Proceeds"), then such Excess Casualty Proceeds shall be applied to prepay
Loans pursuant to Section 2.09(e) within two Domestic Business Days after
the end of such 90-day period.
( ) If any Condemnation Event occurs with respect to property owned or
leased by any Crown Company, or if any negotiation or proceeding is commenced
which might result in such a Condemnation Event, or if any such Condemnation
Event is proposed or threatened, such Crown Company (i) will, promptly after
receiving notice or obtaining knowledge thereof, do all things deemed necessary
or appropriate by it to preserve its interest in such property and promptly make
claim for awards payable with respect thereto and diligently pursue to
conclusion such claim and any suit, action or other proceeding necessary or
appropriate to obtain payment thereof and (ii) will not settle any such claim,
negotiation or proceeding without the consent of the Collateral Agent if an
Enforcement Notice is in effect.
Section .. Cash Management System; Cash Concentration Account( )
Subject to Section 5.09(b), the Borrower shall maintain the cash management
system described in the First Day Orders, except as may be expressly permitted
pursuant to consent of the Administrative Agent and the Syndication Agent and,
if required, approval of the Court.
( ) The Borrower and the Guarantors shall, within 30 days after the
Closing Date, and at all times thereafter, maintain with Chase an account or
accounts (the "Concentration Account") (a) to be used by the Borrower and the
Guarantors that are Chapter 11 Parties as their principal concentration accounts
and (b) into which shall be swept or deposited, at the end of each Domestic
Business Day, all cash of the Borrower and such Guarantors and their full
available balances in excess of an aggregate of $100,000 in all of the operating
and other bank accounts of the Borrower and such Guarantors maintained at any
institution other than Chase. The Borrower and such Guarantors hereby agree to
repay all Debts to Chase in respect of Permitted Overdrafts, including, without
limitation, any overdraft in respect of the Concentration Account, and all such
Debts shall be deemed due and owing to Chase hereunder.
Section .. Post-Closing Deliveries The Borrower shall deliver to the
Administrative Agent as soon as possible after receipt by the Borrower and in
any event within 30 days after the Closing Date, personal property Lien and tax
and judgement Lien searches with respect to all personal, mixed and real
properties of the Borrower and the Guarantors in the jurisdictions specified by
the Administrative Agent to the Borrower on or prior to the Closing Date, the
results of which shall be reasonably satisfactory to the Administrative Agent.
<PAGE>
Section .. Inspection of Property, Books and Records; Lender
Meetings( ) Each Crown Company will keep proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities; and will permit, and
each Crown Company shall permit upon reasonable prior request therefor, a
reasonable number of representatives of the Lenders (designated by the
Administrative Agent or the Required Lenders) at the expense of the Borrower, to
visit and inspect any of their respective properties, to examine and make
abstracts from any of their respective books and records and to discuss their
respective affairs, finances and accounts with their respective officers,
employees and independent public accountants, all at such reasonable times
during normal business hours and as often as may reasonably be desired.
( ) Unless the Administrative Agent shall notify the Borrower that no
meeting is required, the Borrower will conduct a monthly meeting of the Lenders
(in person or, in the sole discretion of the Administrative Agent, by conference
call) to discuss operating results, the financial condition of the Borrower and
the status of the Chapter 11 Cases at which shall be present the chief executive
officer and the chief financial officer of the Borrower and such other officers
of the Borrower as Borrower's chief executive officer shall designate. Such
meetings shall be held at a time and place convenient to the Lenders and to the
Borrower.
Section .. Evaluations and Appraisals At any time upon the request of
the Administrative Agent or the Required Lenders through the Administrative
Agent, the Credit Parties shall permit the Administrative Agent and/or the
Syndication Agent, or their representatives or professionals (including
consultants, accountants and appraisers) retained or employed by the
Administrative Agent or the Syndication Agent to conduct evaluations and
appraisals of ( ) the Borrower's practices in the computation or the Borrowing
Base and ( ) the assets included in the Borrowing Base (including, without
limitation, the Credit Parties' operating facilities) and pay the reasonable
fees and expenses in connection therewith (including, without limitation, the
fees and expenses associated with services performed by the Administrative Agent
or the Syndication Agent for purposes of monitoring the Collateral and the
Borrowing Base.)
Section .. Obligations and Taxes The Borrower and each Guarantor will
pay all its material obligations arising after the Petition Date promptly and in
accordance with their terms and pay and discharge promptly all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in respect of its property arising after the Petition Date,
before the same shall become in default, as well as all material lawful claims
for labor, materials and supplies or otherwise arising after the Petition Date
which, if unpaid, would become a Lien or charge upon such properties or any part
thereof; provided, however, that the Borrower and the Guarantors shall not be
required to pay and discharge or to cause to be paid and discharged any such
tax, assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings (if the Borrower and
the Guarantors shall have set aside on their books adequate reserves therefor).
<PAGE>
Article
Financial Covenants
The Borrower agrees that, so long as any Lender has any Credit Exposure
hereunder or any interest or fee accrued hereunder remains unpaid:
Section .. Consolidated EBITDA (a) Consolidated EBITDA, calculated on a
cumulative basis for the period commencing on the first day of the Fiscal Year
2000 and ending on the last day of each fiscal month set forth below, shall not
be less than the amount set forth below opposite such month:
-------------------------------------------
Month Amount
-------------------------------------------
March 2000 $ 3,000,000
-------------------------------------------
April 2000 $ 5,000,000
-------------------------------------------
May 2000 $ 2,000,000
-------------------------------------------
June 2000 $ 5,000,000
-------------------------------------------
July 2000 $ 8,000,000
-------------------------------------------
August 2000 $11,000,000
-------------------------------------------
September 2000 $15,000,000
-------------------------------------------
October 2000 $19,000,000
-------------------------------------------
November 2000 $22,000,000
-------------------------------------------
December 2000 $27,000,000
-------------------------------------------
(b) Consolidated EBITDA, calculated on a cumulative basis for the twelve-
month period ending on the last day of each fiscal month set forth below, shall
not be less than the amount set forth below opposite such month:
-------------------------------------------
Month Amount
-------------------------------------------
January 2001 $32,000,000
-------------------------------------------
February 2001 $35,000,000
-------------------------------------------
March 2001 $38,000,000
-------------------------------------------
April 2001 $40,000,000
-------------------------------------------
May 2001 $43,000,000
-------------------------------------------
June 2001 $45,000,000
-------------------------------------------
July 2001 $47,050,000
-------------------------------------------
August 2001 $47,450,000
-------------------------------------------
September 2001 $47,760,000
-------------------------------------------
<PAGE>
Section .. Capital Expenditures( ) During the period ending December
31, 2000, Consolidated Capital Expenditures calculated on a cumulative basis
since the Petition Date (excluding capital expenditures from Casualty Proceeds
expended in accordance with Section 5.08) will not exceed at the end of any
month specified below the amount set forth opposite such month:
-----------------------------------------------------
Month Maximum Cumulative
Consolidated
Capital Expenditures
Amount
-----------------------------------------------------
March 2000 $ 5,700,000
-----------------------------------------------------
April 2000 $ 7,550,000
-----------------------------------------------------
May 2000 $10,600,000
-----------------------------------------------------
June 2000 $12,400,000
-----------------------------------------------------
July 2000 $15,200,000
-----------------------------------------------------
August 2000 $17,800,000
-----------------------------------------------------
September 2000 $20,500,000
-----------------------------------------------------
October 2000 $23,400,000
-----------------------------------------------------
November 2000 $25,900,000
-----------------------------------------------------
December 2000 $29,000,000
-----------------------------------------------------
( ) During the period from January 1, 2001 through the Stated Maturity
Date, Consolidated Capital Expenditures calculated on a cumulative basis from
the beginning of such period (excluding capital expenditures from Casualty
Proceeds expended in accordance with Section 5.08) will not exceed at the end of
any month specified below the amount set forth opposite such month:
-----------------------------------------------------
Month Maximum Cumulative
Consolidated
Capital Expenditures
Amount
-----------------------------------------------------
January 2001 $ 6,100,000
-----------------------------------------------------
February 2001 $ 7,900,000
-----------------------------------------------------
March 2001 $ 9,700,000
-----------------------------------------------------
April 2001 $11,300,000
-----------------------------------------------------
May 2001 $14,400,000
-----------------------------------------------------
June 2001 $16,100,000
-----------------------------------------------------
July 2001 $18,800,000
-----------------------------------------------------
August 2001 $21,300,000
-----------------------------------------------------
September 2001 $24,000,000
-----------------------------------------------------
Article
Negative Covenants
<PAGE>
The Borrower agrees that, so long as any Lender has any Credit Exposure
hereunder or any Obligation remains unpaid the Borrower and each of the other
Crown Companies will comply with the following:
Section .. Limitation on Debt No Crown Company will incur or be liable
with respect to any Debt or any Guarantee of any such Debt, except:
( ) Debt outstanding under the Financing Documents;
( ) Permitted Intercompany Debt;
( ) Pre-Petition Indebtedness without giving effect to any extensions,
renewals, refinancings, supplemental borrowings or other incurrences thereof;
( ) Debt, if any, consisting of trade obligations arising in the
ordinary course of business after the Petition Date;
( ) Designated Debt, if any, specified on Exhibit L hereto;
( ) Debt incurred in connection with the rejection of unexpired leases
and executory contracts in the Chapter 11 Cases; provided, that the obligation
of the Borrower in respect of such Debt shall qualify as a general, unsecured,
pre-petition, non-priority claim pursuant to appropriate order of the Court or
are secured solely by Liens existing in the Petition Date permitted under
Section 7.02; and
( ) Debt owed to Chase or any of its banking Affiliates in respect of
any overdrafts and related liabilities arising from treasury, depository and
cash management services or in connection with any automated clearing house
transfers or funds ("Permitted Overdrafts").
Section .. Negative Pledge No Crown Company will create, assume or
suffer to exist any Lien on any asset now owned or hereafter acquired by it (or
any income therefrom or any right to receive income therefrom), or apply to the
Court for authority to do any of the foregoing, except:
( ) Liens existing as of the Petition Date which (i) were created in
favor of Morgan as collateral agent for the benefit of the Existing Lenders
under the Existing Credit Facilities, or (ii) are set forth on Schedule 7
hereto, or (iii) are not described in clause (i) or (ii) and secure obligations
and liabilities in an aggregate amount outstanding at any time not in excess of
$ 1,000,000;
( ) Permitted Encumbrances;
( ) Liens (i) created in favor of the Collateral Agent (for the benefit
of Lenders) pursuant to the Collateral Documents or (ii) authorized by the
Interim Borrowing Order or the Borrowing Order; and
( ) the Existing Lender Lien.
Section .. Consolidations, Mergers and Asset Sales
( ) No Crown Company will consolidate or merge with or into, or sell,
lease or otherwise dispose of all or substantially all of its assets to any
other Person without (i) prior written approval of Required Lenders and (ii) an
appropriate approval of the Court, to the extent such Court approval is required
pursuant to the Bankruptcy Code or any order of the Court; provided that any
Guarantor may merge or consolidate with and into
<PAGE>
any other Guarantor, or be liquidated, wound up or dissolved, so long as such
Guarantor shall have taken all actions and executed all documents necessary or
reasonably requested by the Collateral Agent to preserve and protect the
Collateral Agent's Lien (and the perfection and priority thereof) in the assets
of such Guarantor after giving effect to such transaction, and such transaction
shall not adversely affect the Collateral Agent's Lien in the assets of the
Crown Companies involved in such transaction or the value thereof.
( ) With respect to Asset Sales permitted under Section 7.03(a), no
Crown Company will make any such Asset Sale unless ( ) the cash proceeds of
such Asset Sale are not less than the fair market value of the property
subject to such Asset Sale, ( ) an appropriate approval of the Court, to the
extent such Court approval is required pursuant to the Bankruptcy Code or any
order of the Court, has been obtained, ( ) the Net Cash Proceeds of such Asset
Sale shall be applied as provided in Section 2.09(a) hereof and ( ) the Net
Cash Proceeds of such Asset Sale, together with those of all previous Asset
Sales consummated since the Petition Date do not exceed $50 million.
Section .. Limitations on Investments After the Closing, neither the
Borrower nor any of its Subsidiaries will make, acquire or hold any Investment,
except:
( ) Investments existing on the Closing Date and set forth in Schedule 8
hereto; and
( ) Temporary Cash Investments.
Section .. Limitations on Transactions with Affiliates No Crown Company
will, directly or indirectly, pay any funds to or for the account of, make any
Investment in, lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to, or participate in, or effect any transaction in
connection with any joint enterprise or other joint arrangement with, any
Affiliate; provided that the foregoing shall not prohibit any Crown Company from
making sales to or purchases from any Affiliate and, in connection therewith,
extending credit or making payments, or from making payments for services
rendered by any Affiliate, if such sales or purchases are made or such services
are (i) rendered in the ordinary course of business and on terms and conditions
at least as favorable to such Crown Company as the terms and conditions which
would apply in a similar transaction with a Person not an Affiliate or approved
in writing by Required Lenders; and (ii) are approved by the Court to the extent
such approval is required pursuant to the Bankruptcy Code or an order of the
Court.
Section .. Limitation on Restrictions Affecting Subsidiaries No Crown
Company will enter into, or suffer to exist, any agreement (other than the
Financing Documents) which is binding or enforceable after the Petition Date,
which prohibits or limits the ability of any Subsidiary of the Borrower to (i)
pay dividends or make other distributions or pay any Debt owed to the Borrower,
(ii) make loans or advances to any Crown Company or (iii) create, incur, assume
or suffer to exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired, to secure the obligations of any Crown
Company under any Financing Document.
Section .. Restricted Payments The Borrower will not declare or make any
Restricted Payment other than as permitted by Section 7.15.
<PAGE>
Section .. No Modification of Certain Documents Without Consent Without
the prior written consent of the Required Lenders, the Borrower will not modify
or amend, or waive or solicit/or supplement any waiver of, any provision of the
Existing Note Indentures or the Existing Credit Facilities in any manner that
could reasonably be expected to be adverse in any material respect to the
interests of the Lenders under the Financing Documents.
Section .. No Change of Fiscal Periods Crown Paper will not change the
date on which any of its Fiscal Years or Fiscal Quarters ends, unless the
Required Lenders shall have consented in writing to such change (which consent
may be conditioned on the amendment of any covenant herein that would be
affected by such change to eliminate the effect thereof).
Section .. Margin Stock None of the proceeds of the Loans or the Letters
of Credit will be used in violation of any applicable law or regulation and,
without limiting the generality of the foregoing, no use of any such proceeds or
Letters of Credit will include any use thereof, directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of buying or carrying any
Margin Stock.
Section .. Limitation on Business
( ) Crown Vantage will at all times own, directly or indirectly, 100% of
the outstanding Equity Interests of Crown Paper and will not engage in any
activities other than owning such Equity Interests and financing activities and
other activities reasonably related to such ownership.
( ) No Crown Company shall enter into any business or businesses other
than the business or businesses in which such Crown Company is currently
engaged.
Section .. Leases No Crown Company shall lease or sublease any facility
to or from any third party pursuant to any lease agreement entered into after
the Closing Date except on arm's length terms.
Section .. Limitation on Cash Not Held in Collateral Accounts or
Concentration Accounts The Borrower will not permit the aggregate amount of all
collected funds and Temporary Cash Investments held by the Crown Companies in
accounts, other than the Collateral Accounts (as defined in the Security
Agreement) and the Concentration Accounts, to exceed $500,000 at the close of
business for any two consecutive Domestic Business Days.
Section .. Chapter 11 Claims Without limiting the provisions of Section
7.02 hereof, the Borrower shall not incur, create, assume, suffer or permit any
claim or Lien or encumbrance against it or any of its property or assets in any
Chapter 11 Case (other than the claims specifically referred to in Section 2.16,
the Interim Borrowing Order and the Borrowing Order but only to the extent
therein described) to be pari passu with or senior
<PAGE>
to the claims of the Agents and Lenders against the Borrower in respect of the
Obligations hereunder, or apply to the Courts for authority to do so, except to
the extent permitted herein.
Section .. Limitation on Repayments; Pre-Petition Obligations The
Borrower and the Guarantors shall not, except as otherwise allowed pursuant to
the Interim Borrowing Order or the Borrowing Order, (i) make any payment or
prepayment on or redemption or acquisition for value (including, without
limitation, by way of depositing with the trustee with respect thereto money or
securities before due for the purpose of paying when due) of any Pre-Petition
Indebtedness or other pre-Petition Date obligations of any Chapter 11 Party,
(ii) pay any interest on any Pre-Petition Indebtedness of any Chapter 11 Party
(whether in cash, in kind securities or otherwise), or (iii) except as provided
in the Interim Borrowing Order or the Borrowing Order, make any payment or
create or permit any Lien pursuant to Section 361 of the Bankruptcy Code (or
pursuant to any other provision of the Bankruptcy Code authorizing adequate
protection), or apply to the Court for the authority to do any of the foregoing;
provided that (a) the Borrower may make payments permitted under Section 2.14,
(b) the Borrower may make payments for administrative expenses that are allowed
and payable under Sections 330 and 331 of the Bankruptcy Code, (c) the Borrower
may make payments permitted by the First Day Orders, (d) the Borrower may make
rental payments with respect to leased properties to the extent permitted under
Section 7.12, and (e) the Borrower may make payments to such other claimants and
in such amounts as may be consented to by the Administrative Agent, the
Syndication Agent and Required Lenders and approved by the Court.
Article
Defaults
Section .. Events of Default If one or more of the following events
(each, an "Event of Default") shall have occurred and be continuing:
( ) any principal of any Loan or LC Reimbursement Obligation shall not
be paid when due, or any interest thereon or any fee or other amount payable
hereunder to or for the account of any Agent or any Lenders shall not be paid
within two Domestic Business Days after the due date thereof; or
( ) the Borrower shall fail to observe or perform any covenant contained
in Article 5, Article 6 or Article 7; or
( ) any Crown Company shall fail to observe or perform any of its
covenants or agreements contained in the Financing Documents (other than those
covered by clause (a) or (b) above) for 30 days after written notice thereof has
been given to the Borrower by the Administrative Agent at the written request of
any Lender; or
<PAGE>
( ) any representation, warranty, certification or statement made by the
Borrower or any Guarantor in any Financing Document or in any certificate,
financial statement or other document delivered pursuant thereto shall prove to
have been incorrect in any material respect when made; or
( ) any event or condition shall occur that (i) results in the
acceleration of the maturity of any Financial Accommodation which is binding or
enforceable on a post- Petition Date basis or (ii) enables (or, with the giving
of notice or lapse of time or both, would enable) the holder or holders of such
Financial Accommodation or any Person acting on behalf of such holder or holders
to so accelerate the maturity thereof (where such acceleration would be binding
or enforceable on a post-Petition Date basis), and the aggregate amount that
would be payable by the Crown Companies upon the acceleration of all Financial
Accommodations referred to in clauses (i) and (ii) above equals or exceeds
$1,000,000; or
( ) any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $1,000,000 which it shall have become liable
to pay under Title IV of ERISA; or notice of intent to terminate a Material Plan
shall be filed under Title IV of ERISA by any member of the ERISA Group, any
plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer any Material Plan; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current payment
obligation in excess of $ 1,000,000; or
( ) one or more Enforceable Judgments for the payment of money
aggregating in excess of $1,000,000 shall be rendered against one or more of the
Crown Companies and shall not have been satisfied; or
( ) any Lien created by any of the Collateral Documents shall at any
time fail to constitute a valid and perfected Lien on all of the Collateral
purported to be subject to such Lien, subject to no prior or equal Lien (except
as set forth in the Interim Borrowing Order and the Borrowing Order and other
than, in the case of the Guarantors, Liens permitted hereunder and in existence
on the Closing Date), or any Crown Company shall so assert in writing; or
( ) any provision of any Financing Document shall cease to be in full
force and effect or the Borrower or any Guarantor, or any Person acting on
behalf of the Borrower or Subsidiary shall so assert in writing; or
( ) the Existing Notes shall, for any reason, not be or cease to be
validly subordinated as provided in the Existing Note Indenture to the monetary
obligations of Crown Paper under the Existing Credit Facility; or
( ) with respect to the Chapter 11 Case, (i) any one or more court
orders shall have been signed by a court which have not been withdrawn,
dismissed or reversed
( ) authorizing the Borrower in the Chapter 11 Case to obtain
additional financing under Section 364(c) or (d) of the Bankruptcy Code,
or authorizing any Person to recover from any portion of the Collateral
any costs or expenses of preserving or disposing of such Collateral under
Section 506(c) of the Bankruptcy Code, or (except as provided in the
Interim Borrowing Order or the Borrowing
<PAGE>
Order) authorizing the use of cash collateral without the Required
Lenders' prior written consent under Section 363(c) of the Bankruptcy
Code;
( ) appointing an interim or permanent trustee in any of the Chapter
11 Cases or appointing an examiner with enlarged powers (beyond those set
forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) or a
responsible person in any of the Chapter 11 Cases;
( ) without the prior written consent of the Required Lenders,
dismissing any of the Chapter 11 Cases or converting any of the Chapter
11 Cases to a case under Chapter 7 of the Bankruptcy Code;
( ) granting relief from or modifying the automatic stay of Section
362 of the Bankruptcy Code (x) to allow any creditor to execute upon or
enforce a Lien on any Collateral or on any other property or assets of
the Borrower the aggregate value of which, together with the value of any
other property or assets subject to such executed or enforced Liens,
exceeds $1,000,000 or (y) with respect to any Lien of, or the granting of
any Lien on any Collateral or any other property or assets of the
Borrower to, any State or local environmental or regulatory agency or
authority, where the aggregate value of such property or assets, together
with the value of any other property or assets subject to such a Lien,
exceeds $1,000,000;
( ) amending, supplementing, staying, reversing, vacating or otherwise
modifying any of the Interim Borrowing Order, the Borrowing Order or this
Agreement or any other Financing Document or any of the Agents' or
Lenders' rights, benefits, privileges or remedies under the Interim
Borrowing Order, the Borrowing Order, this Agreement or any other
Financing Document;
( ) consolidating or combining the Borrower with any other Person;
( ) approving, or there shall arise, any other administrative-expense
claim (other than those specifically referred to in Section 2.16) having
any priority over, or being pari passu with the Obligations; or
(ii) the filing by the Borrower of a motion, application or other petition to
effect or consent to any order referred to in the foregoing clause (i) of this
subsection (k); or
( ) ( ) an involuntary case shall be commenced against any Guarantor
that is not a Chapter 11 Party under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect; or
( ) a decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or other
officer having similar powers over any such Guarantor, or over all or a
substantial part of its property, shall have been entered; or ( ) there shall
have occurred the involuntary appointment of an interim receiver, trustee or
other custodian of any such Guarantor for all or a substantial part of its
property; or a warrant of attachment, execution or similar process shall have
been issued against any substantial part of the property of any such Guarantor,
and any such event described in this clause (iii) shall continue for 60 days
unless dismissed, bonded or discharged; or ( ) any such Guarantor shall have an
order for relief entered with respect to it or commence a voluntary case under
the Bankruptcy Code or under any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or shall consent to the entry of an
order for relief in an involuntary case, or to the conversion of any involuntary
case to a voluntary case, under any such law, or shall consent to the
appointment of or taking
<PAGE>
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or ( ) any such Guarantor shall make any assignment for
the benefit of creditors; or ( ) any such Guarantor shall be unable, or shall
fail generally, or shall admit in writing its inability, to pay its debts as
such debts become due; or the Board of Directors of any such Guarantor (or any
committee thereof) shall adopt any resolution or otherwise authorize any action
to approve any of the actions referred to in this Section 8.01(l);
( ) a Change of Control shall occur;
( ) the Borrower shall fail to deliver a certified Borrowing Base
Certificate when due and such default shall continue unremedied for more than
three (3) Business Days;
( ) any non-monetary judgment or order shall be rendered against the
Borrower or any of the Guarantors that does or would reasonably be expected to
( ) cause a material adverse change in the financial condition, business,
prospects, operations or assets of the Borrower and the Guarantors taken as a
whole on a consolidated basis, ( ) have a material adverse effect on the
ability of the Borrower or any of the Guarantors to perform their respective
obligations under any Loan Document, or ( ) have a material adverse effect on
the rights and remedies of any Agent or any Lender under any Financing Document,
and there shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect;
( ) except as permitted by the Interim Borrowing Order and the Borrowing
Order, either of the Borrower or the Guarantors that are Chapter 11 Parties
shall make any Pre-Petition Payment other than Pre-Petition Payments authorized
by the Bankruptcy Court (w) not in excess of $500,000 in respect of certain
critical vendors, (x) in respect of accrued payroll and related expenses and
employee benefits as of the Petition Date, (y) an amount not in excess of
$2,000,000 in respect of valid reclamation claims, unless a greater amount is
agreed to in writing by the Required Lenders in their sole discretion and (z)
not in excess of $250,000 in respect of valid mechanics liens, provided that
permitted Capital Expenditures shall be reduced by the aggregate amount of such
payments made to the holders of mechanics liens); or
( ) it shall be determined (whether by the Bankruptcy Court or by any
other judicial or administrative forum) that the Borrower or any Guarantor is
liable for the payment of claims arising out of any failure to comply (or to
have complied) with applicable environmental laws or regulations the payment of
which will have a material adverse effect on the financial condition, business,
properties, operations or assets of the Borrower or the Guarantors, taken as a
whole, and the enforcement thereof shall not have been stayed;
then, and in every such event:
(x) if requested by the Required Lenders, the Administrative Agent
shall by notice to the Borrower terminate the Commitments and they shall
thereupon terminate;
(y) if requested by the Required Lenders, the Administrative Agent
shall by notice to each LC Issuing Bank instruct such LC Issuing Bank not
to extend the expiry date of any outstanding Letter of Credit, whereupon
such LC Issuing Bank shall deliver notice to that effect promptly (or as
soon thereafter as is permitted by the provisions of the relevant Letter
of Credit) to the beneficiary of each such Letter of Credit and the
Borrower; and
<PAGE>
(z) if requested by the Required Lenders, the Administrative Agent
shall by notice to the Borrower declare the Loans, all amounts in respect
of the Letters of Credit and all other amounts in respect of the
Obligations (in each case together with accrued interest thereon) to be,
and they shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower;
provided that if any event specified above in Section 8.01(k) occurs, then
without notice to the Borrower or any other act by any Agent or any Lender, the
Commitments shall thereupon terminate and all Loans and amounts in respect of
Letters of Credit and all other amounts in respect of the Obligations (in each
case together with accrued interest) shall become immediately due and payable
without presentment, demand, protest or notice of any kind, all of which are
hereby waived by the Borrower.
Section .. Notice of Default The Administrative Agent shall give notice
to the Borrower under Section 8.01 promptly upon being requested to do so by the
Required Lenders and shall thereupon notify all the Lenders thereof.
Section .. Enforcement Notice( ) If the Administrative Agent is (i)
instructed to do so by the Required Lenders at any time after the Loans become
immediately due and payable pursuant to Section 8.01, or (ii) instructed to do
so by the Required Lenders at any time after the Loans have been declared due
and payable pursuant to Section 8.01, the Administrative Agent shall deliver to
the Collateral Agent an Enforcement Notice directing the Collateral Agent to
exercise one or more specific remedies under the Collateral Documents, the
Interim Borrowing Order, the Borrowing Order, or any other right or remedy
available at law or in equity; provided that, any other provision of this
Agreement or any other Financing Document to the contrary notwithstanding, with
respect to the foregoing, the Collateral Agent shall give the Borrower and
counsel to any official committees in respect of the Chapter 11 Cases and the
office of the United States Trustee five Domestic Business Days' prior written
notice (which notice shall be delivered by facsimile or overnight courier) of
the exercise of its rights and remedies with respect to the Collateral (other
than the acceleration of the Loans or other Obligations or the exercise of any
rights of set-off or counterclaim hereunder or under any other Financing
Document) and file a copy of such notice with the Clerk of the Court. Neither
the Collateral Agent nor Lenders shall have any obligation of any kind to make a
motion or application to the Court to exercise their rights and remedies set
forth or referred to in this Agreement or in the other Financing Documents.
Concurrently with the delivery of any such Enforcement Notice to the Collateral
Agent, all outstanding Loans and other amounts in respect of the Obligations not
theretofore declared due and payable shall (notwithstanding the provisions of
Section 362 of the Bankruptcy Code and without application or motion to, or
order from, the Court) automatically become immediately due and payable.
( ) Other than the notice to the Borrower described in the preceding
paragraph, the Borrower waives (i) presentment, demand and protest and notice of
presentment, dishonor, notice of intent to accelerate, notice of acceleration,
protest, default, nonpayment, maturity, release, compromise, settlement,
extension or renewal of any or
<PAGE>
all commercial paper, accounts, contract rights, documents, instruments, chattel
paper and guaranties or other property at any time held by any of the Agents or
the Lenders on which Credit Parties may in any way be liable and hereby ratify
and confirm whatever the Agents and the Lenders may lawfully do in this regard,
(ii) subject to the notice provisions of the preceding paragraph, all rights to
notice and hearing prior to any Agent's taking possession or control of, or to
any of the Agents or the Lenders reply, attachment or levy upon, the Collateral,
or any bond or security which might be required by any court prior to allowing
any of the Agents or the Lenders to exercise any of their remedies, and (iii)
the benefit of all valuation, appraisal and exemption laws. The Borrower
acknowledges it has been advised by counsel of their choice with respect to the
effect of the foregoing waivers and this Agreement, the other Financing
Documents and the transactions evidenced by this Agreement and the other
Financing Documents.
Article
The Agents
Section .. Appointment and Authorization
( ) Each Lender irrevocably appoints the Administrative Agent to act as
its agent in connection herewith and authorizes the Administrative Agent to take
such action as agent on such Lender's behalf and to exercise such powers under
the Financing Documents as are delegated to the Administrative Agent by the
terms thereof, together with all such powers as are reasonably incidental
thereto. Notwithstanding anything contained herein to the contrary, ( ) the Co-
Arrangers shall not have any rights in such capacity hereunder (other than the
right to receive and retain the fees described in Section 2.07 payable to them),
and ( ) the Co-Arrangers and the Syndication Agent shall have no duties or
obligations hereunder or under the other Financing Documents solely in such
capacity.
( ) Each of the Lenders, the LC Issuing Banks and the Administrative
Agent authorizes the Collateral Agent to execute the Collateral Documents and
irrevocably appoints and authorizes the Collateral Agent to take such action as
agent on its behalf and to exercise such powers under the Collateral Documents
as are delegated to the Collateral Agent by the terms thereof, together with all
such powers as are reasonably incidental thereto.
Section .. Agents and Affiliates Morgan and Chase shall have the same
rights and powers under the Financing Documents as any other Lender and may
exercise or refrain from exercising the same as though it were not one of the
Agents. Morgan and Chase and their respective affiliates may accept deposits
from, lend money to, and generally engage in any kind of business with any of
the Crown Companies or their Affiliates as if it were not one of the Agents.
Section .. Action by Agents The obligations of each of the Agents under
the Financing Documents are only those expressly set forth therein with respect
to it. Without
<PAGE>
limiting the generality of the foregoing, none of the Agents shall be required
to take any action with respect to any Default, except as expressly provided in
Article 8 hereof and in the Collateral Documents.
Section .. Coordination Among Agents Under the Security Agreement,
Morgan acts as Collateral Agent and Chase, as Cash-Concentration Bank (defined
as the "Security Agreement Agents"). Various provisions of the Security
Agreement confer authority and discretion on the Collateral Agent and the Cash
Concentration Bank in such capacities without further elucidation of
coordination of their relative roles. It is the intent of the parties to this
Agreement that, subject at all times to the authority of the Required Banks
under this Agreement, the Collateral Agent, in such capacity, shall be in charge
of and act as the Lenders' agent in respect of all the Collateral except the
Concentration Account and the Liquid Investments, and Chase, in such capacity,
shall be in charge of and act as the Lenders' agent in respect of the
Concentration Account and the Liquid Investments. In the event that for any
reason it is deemed advantageous for the Collateral Agent and the Cash
Concentration Bank to act together in respect of any one or more matters wherein
one is so in charge and the other, not, it is intended to be the responsibility
and duty of the other to cooperate to the maximum reasonable extent, subject to
the understanding that no one of them shall be under any duty which would
violate any law or expose it to any liability against which it is not adequately
protected hereunder, under the Security Agreement or under the other Financing
Documents.
Section .. Consultation with Experts Each of the Agents may consult with
legal counsel (who may be counsel for any Crown Company), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
Section .. Liability of Agents None of the Agents or their respective
affiliates or their respective directors, officers, agents or employees shall be
liable for any action taken or not taken by it in connection with the Financing
Documents (A) with the consent or at the request of the Required Lenders or (B)
in the absence of its own gross negligence or willful misconduct. None of the
Agents or their respective affiliates or their respective directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or representation made in
connection with any Financing Document or any Credit Event; (ii) the performance
or observance of any of the covenants or agreements of any Crown Company under
any Financing Document; (iii) the satisfaction of any condition specified in
Article 3 except, in the case of the Administrative Agent, receipt of items
required to be delivered to it; (iv) the validity, effectiveness or genuineness
of any Financing Document or any other instrument or writing furnished in
connection therewith; or (v) the existence, genuineness or value of any of the
Collateral or the validity, perfection, recordation, priority or enforceability
of any Lien on any of the Collateral. None of the Agents shall incur any
liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex, facsimile copy or
similar writing) believed by it to be genuine or to be signed by the proper
party or parties.
<PAGE>
Section .. Indemnification The Lenders shall, ratably in accordance with
their respective Credit Exposures, indemnify each Agent, their respective
affiliates and their respective directors, officers, agents and employees (to
the extent not reimbursed by the Crown Companies) against any cost, expense
(including reasonable fees and disbursements of counsel and other
professionals and advisors), claim, demand, action, loss or liability (except
such as result from such indemnitee's gross negligence or willful misconduct)
that such indemnitee may suffer or incur in connection with the Financing
Documents or any action taken or omitted by such indemnitees thereunder.
Section .. Credit Decision Each Lender acknowledges that it has,
independently and without reliance on the Agents or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agents or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking any action under the Financing Documents.
Section .. Successor Agents Any Agent may resign at any time (a "Retiring
Agent") by giving notice thereof to the Lenders, the other Agents and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor for the Retiring Agent (a "Successor Agent"). If no
Successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the Retiring Agent
gives notice of resignation, then the Retiring Agent may, on behalf of the
Lenders, appoint a Successor Agent, which shall be a Lender or any other
commercial bank organized or licensed under the laws of the United States or
any State thereof and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of its appointment as a Successor Agent,
such Successor Agent shall thereupon, without order of the Court, succeed to
and become vested with all the rights and duties of the Retiring Agent, and
the Retiring Agent shall be discharged from its duties and obligations
hereunder. After any Retiring Agent resigns as an Agent hereunder, the
provisions of this Article 9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was one of the Agents.
Section .. Collateral Agent
( ) As to any matters not expressly provided for in the Collateral
Documents (including the timing and methods of realization upon the
Collateral), the Collateral Agent shall act or refrain from acting in
accordance with written instructions from the Required Lenders or, in the
absence of such instructions, in accordance with its discretion; provided that
the Collateral Agent shall not be obligated to take any action if the
Collateral Agent believes that such action is or may be contrary to any
applicable law or might cause the Collateral Agent to incur any loss or
liability for which it has not been indemnified to its satisfaction.
( ) The Collateral Agent shall not be responsible for the existence,
genuineness or value of any of the Collateral or for the validity, perfection,
priority or enforceability of
<PAGE>
any Lien on any of the Collateral, whether impaired by operation of law or by
reason of any action or omission to act on its part under the Collateral
Documents. The Collateral Agent shall have no duty to ascertain or inquire as
to the performance or observance of any of the terms of the Collateral
Documents by the Crown Companies.
Article
Change in Circumstances
Section .. Basis for Determining Interest Rate Inadequate or Unfair If on
or prior to the first day of any Interest Period for any Euro-Dollar Loan:
( ) the Administrative Agent is advised by the Reference Banks that
deposits in Dollars (in the applicable amounts) are not being offered to
the Reference Banks in the London interbank market for such Interest
Period, or
( ) Lenders having 50% or more of the aggregate principal amount of
the Commitments advise the Administrative Agent that the Adjusted London
Interbank Offered Rate as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Lenders of funding their
Euro-Dollar Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower
and the Lenders, whereupon until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer
exist, (i) the obligations of the Lenders to make Euro-Dollar Loans, or to
convert outstanding Loans into Euro-Dollar Loans, shall be suspended and (ii)
each outstanding Euro-Dollar Loan shall be converted into a Base Rate Loan on
the last day of the then current Interest Period applicable thereto. Unless
the Borrower notifies the Administrative Agent at least two Domestic Business
Days before the date of any Euro-Dollar Borrowing for which a Notice of
Borrowing has previously been given that it elects not to borrow on such date,
such Borrowing shall instead be made as a Base Rate Borrowing.
Section .. Illegality If, on or after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency (including without limitation the National Association of
Insurance Commissioners (the "NAIC")) charged with the interpretation or
administration thereof, or compliance by any Lender (or its Euro-Dollar
Lending Office) with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency shall make it
unlawful or impossible for any Lender (or its Euro-Dollar Lending Office) to
make, maintain or fund its Euro-Dollar Loans and such Lender shall so notify
the Administrative Agent, the Administrative Agent shall forthwith give notice
thereof to the other Lenders and the Borrower, whereupon until such Lender
notifies the Borrower and the Administrative Agent that the
<PAGE>
circumstances giving rise to such suspension no longer exist, the obligation
of such Lender to make Euro-Dollar Loans or to convert outstanding Base Rate
Loans into Euro-Dollar Loans shall be suspended. Before giving any notice to
the Administrative Agent pursuant to this Section, such Lender shall designate
a different Euro-Dollar Lending Office if such designation will avoid the need
for giving such notice and will not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender. If such notice is given, each Euro-
Dollar Loan of such Lender then outstanding shall be converted to a Base Rate
Loan either (a) on the last day of the then current Interest Period applicable
to such Euro-Dollar Loan if such Lender may lawfully continue to maintain and
fund such Loan to such day or (b) immediately if such Lender shall determine
that it may not lawfully continue to maintain and fund such Loan to such day.
Section .. Increased Cost and Reduced Return ( ) If on or after the date
hereof, the adoption of any applicable law, rule or regulation, or any change
in any applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency (including without limitation the NAIC) charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Applicable Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency shall impose, modify or deem applicable any reserve (including, without
limitation, any such requirement imposed by the Board of Governors of the
Federal Reserve System, but excluding any such requirement included in an
applicable Euro-Dollar Reserve Percentage), special deposit, insurance
assessment or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (or its Applicable Lending
Office) or shall impose on any Lender (or its Applicable Lending Office) or
the London interbank market any other condition affecting its Euro-Dollar
Loans, its Note or its obligation to make Euro-Dollar Loans or its obligations
hereunder in respect of Letters of Credit and the result of any of the
foregoing is to increase the cost to such Lender (or its Applicable Lending
Office) of making or maintaining any Euro-Dollar Loan or of issuing or
participating in any Letter of Credit, or to reduce the amount of any sum
received or receivable by such Lender (or its Applicable Lending Office) under
this Agreement or under its Note with respect thereto, by an amount deemed by
such Lender to be material, then, within 15 days after demand by such Lender
(with a copy to the Administrative Agent), the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for
such increased cost or reduction.
( ) If any Lender shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency (including without limitation the NAIC)
charged with the interpretation or administration thereof, or any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has or would have
the effect of reducing the rate of return on capital of such Lender (or its
<PAGE>
Parent) as a consequence of such Lender's obligations hereunder to a level
below that which such Lender (or its Parent) could have achieved but for such
adoption, change, request or directive (taking into consideration its policies
with respect to capital adequacy) by an amount deemed by such Lender to be
material, then from time to time, within 15 days after demand by such Lender
(with a copy to the Administrative Agent), the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender (or
its Parent) for such reduction.
( ) Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Lender to compensation pursuant to
this Section and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. A certificate of any Lender claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Lender may use any reasonable
averaging and attribution methods.
Section .. Taxes ( ) For the purposes of this Section 10.04, the
following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by
the Borrower pursuant to this Agreement or under any Note, and all liabilities
with respect thereto, excluding (i) in the case of each Lender and the
Administrative Agent, taxes imposed on its income, and franchise or similar
taxes imposed on it, by a jurisdiction under the laws of which such Lender or
the Administrative Agent (as the case may be) is organized or in which its
principal executive office is located or, in the case of each Lender, in which
its Applicable Lending Office is located and (ii) in the case of each Lender,
any United States withholding tax imposed on such payments but only to the
extent that such Lender is subject to United States withholding tax at the
time such Lender first becomes a party to this Agreement.
"Other Taxes" means any present or future stamp or documentary taxes and
any other excise or property taxes, or similar charges or levies, which arise
from any payment made pursuant to this Agreement or under any Note or from the
execution or delivery of, or otherwise with respect to, any Loan Document.
( ) Any and all payments by the Borrower to or for the account of any
Lender or the Administrative Agent hereunder or under any Note shall be made
without deduction for any Taxes or Other Taxes; provided that, if the Borrower
shall be required by law to deduct any Taxes or Other Taxes from any such
payments, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) such Lender or the Administrative Agent (as
the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such
deductions, (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law and (iv) the Borrower shall
<PAGE>
furnish to the Administrative Agent, at its address referred to in Section
11.01, the original or a certified copy of a receipt evidencing payment
thereof.
( ) The Borrower agrees to indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be paid within 15 days after such Lender or the
Administrative Agent (as the case may be) makes demand therefor. If a Lender
or the Administrative Agent (as the case may be) shall become aware that it is
entitled to claim a refund (or refund in the form of a credit) (each a
"Refund") from a taxing authority (as a result of any error in the amount of
Taxes or Other Taxes paid to such taxing authority) of such Taxes or Other
Taxes for which it has been indemnified by the Borrower, or with respect to
which the Borrower has paid additional amounts, pursuant to this Section
10.04, it shall promptly notify the Borrower of the availability of such
Refund and shall, within 30 days after receipt of a written request by the
Borrower, make a claim to such taxing authority for such Refund at the
Borrower's expense if, in the judgment of such Lender or the Administrative
Agent (as the case may be), the making of such claim will not be otherwise
disadvantageous to it; provided that nothing in this subsection (c) shall be
construed to require any Lender or the Administrative Agent to institute any
administrative proceeding (other than the filing of a claim for any such
Refund) or judicial proceeding to obtain any such Refund. If a Lender or the
Administrative Agent (as the case may be) receives a Refund from a taxing
authority (as a result of any error in the amount of Taxes or Other Taxes paid
to such taxing authority) of any such Taxes or Other Taxes for which it has
been indemnified by the Borrower, or with respect to which the Borrower has
paid additional amounts, pursuant to this Section 10.04, it shall promptly pay
to the Borrower the amount so received (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower under this Section
10.04 with respect to the Taxes or Other Taxes giving rise to such Refund),
net of all reasonable out-of-pocket expenses (including the net amount of
taxes, if any, imposed on such Lender or the Administrative Agent with respect
to such Refund) of such Lender or Administrative Agent, and without interest
(other than interest paid by the relevant taxing authority with respect to
such Refund); provided, however, that the Borrower upon the request of such
Lender or the Administrative Agent, agrees to repay the amount paid over to
the Borrower (plus penalties, interest or other charges) to such Lender or the
Administrative Agent in the event such Lender or the Administrative Agent is
required to repay such Refund to such taxing authority. Nothing contained in
this Section 10.04 shall require any Lender or the Administrative Agent to
make available any of its tax returns (or any other information that it deems
to be confidential or proprietary).
( ) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of
this Agreement in the case of each Lender listed on the signature pages hereof
and on or prior to the date on which it becomes a Lender in the case of each
other Lender, and thereafter on or prior to the date on which it changes the
country where its Applicable Lending Office is located and from time to time
thereafter if requested in writing by the Borrower (but, in each case, only so
long as such Lender remains lawfully able to do so), shall provide the
Borrower and the Administrative Agent with (i) Internal Revenue Service form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying
<PAGE>
that such Lender is entitled to benefits under an income tax treaty to which
the United States is a party which exempts the Lender from United States
withholding tax or reduces the rate of withholding tax on payments of interest
for the account of such Lender or certifying that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a
trade or business in the United States or (ii) solely if such Bank is claiming
exemption from United States withholding tax under Section 871(h) or 881(c) of
the Internal Revenue Code with respect to payments of "portfolio interest", a
Form W-8, or any successor form prescribed by the Internal Revenue Service,
and a certificate representing that such Lender is not a bank for purposes of
Section 881(c) of the Internal Revenue Code, is not a 10-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of
the Borrower and is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Internal Revenue
Code).
( ) For any period with respect to which a Lender has failed to
provide the Borrower or the Administrative Agent with the appropriate form
pursuant to Section 10.04(d) (unless such failure is due to a change in
treaty, law or regulation occurring subsequent to the date on which such form
originally was required to be provided), such Lender shall not be entitled to
indemnification under Section 10.04(b) or (c) with respect to Taxes imposed by
the United States; provided that if a Lender, which is otherwise exempt from
or subject to a reduced rate of withholding tax, becomes subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower
shall take such steps as such Lender shall reasonably request to assist such
Lender to recover such Taxes.
( ) If the Borrower is required to pay additional amounts to or for
the account of any Lender pursuant to this Section, then such Lender will
change the jurisdiction of its Applicable Lending Office if, in the judgment
of such Lender, such change (i) will eliminate or, if it is not possible to
eliminate, will reduce to the greatest extent possible any such additional
payment which may thereafter accrue and (ii) is not otherwise disadvantageous
to such Lender.
Section .. Base Rate Loans Substituted for Affected Euro-Dollar Loans If
(i) the obligation of any Lender to make or maintain Euro-Dollar Loans has
been suspended pursuant to Section 10.02 or (ii) any Lender has demanded
compensation under Section 10.03 or 10.04 with respect to its Euro-Dollar
Loans and the Borrower shall, by at least five Euro-Dollar Business Days'
prior notice to such Lender through the Administrative Agent, have elected
that the provisions of this Section shall apply to such Lender, then, unless
and until such Lender notifies the Borrower that the circumstances giving rise
to such suspension or demand for compensation no longer exist:
( ) all Loans which would otherwise be made (or continued as or
converted into) by such Lender as Euro-Dollar Loans shall instead be Base
Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other
Lenders); and
( ) after each of its Euro-Dollar Loans has been repaid (or converted
into a Base Rate Loan), all payments of principal which would otherwise
be applied to repay such Euro-Dollar Loans shall be applied to repay its
Base Rate Loans instead.
Section .. Substitution of Lender If (i) the obligation of any Lender to
make or maintain Euro-Dollar Loans has been suspended pursuant to Section
10.02, (ii) any
<PAGE>
Lender has demanded compensation under Section 10.03 or 10.04, (iii) any
Lender shall be a Defaulting Lender or (iv) any Lender shall fail to consent
to amendment or waiver which pursuant to the terms of Section 11.05 or any
other provision if any Loan Document requires the consent of all Lenders and
with respect to which the Required Lenders shall have granted their consent,
the Borrower shall have the right, if no Default or Event of Default then
exists, to replace such Lender (the "Replaced Lender") with one or more other
Eligible Transferee(s), none of whom shall constitute a Defaulting Lender at
the time of such replacement (collectively, the "Replacement Lender")
acceptable to the Administrative Agent and the Issuing Lenders, provided that
(i) at the time of any replacement pursuant to this Section 10.06, the
Replacement Lender shall enter into one or more Assignment and Assumption
Agreements, substantially in the form of Exhibit H hereto, pursuant to which
the Replacement Lender shall acquire the Commitments and outstanding Loans
(and if applicable, Letter of Credit Liabilities) of the Replaced Lender and,
in connection therewith, shall pay to the Replaced Lender in respect thereof
an amount equal to the sum of (A) an amount equal to the principal of, and all
accrued interest on, all outstanding Loans of the Replaced Lender, (B) an
amount equal to all accrued, but theretofore unpaid, fees under Section 2.06
owing to the Replaced Lender and (C) an amount equal to the amount which would
be payable by the Borrower to the Replaced Lender pursuant to Section 2.13 if
the Borrower prepaid at the time of such replacement all of the Loans of such
Replaced Lender outstanding at such time and (ii) all obligations of the
Borrower owing to the Replaced Lender (other than 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 and Assumption Agreements, the payment of amounts
referred to in clauses (i) and (ii) above and, if so requested by the
Replacement Lender, delivery to the Replacement Lender of the appropriate Note
or Notes executed by the Borrower, the Replacement Lender shall become a
Lender hereunder and the Replaced Lender shall cease to constitute a Lender
hereunder. The provisions of this Agreement (including without limitation
Sections 2.12, 10.03, 10.04 and 11.03) shall continue to govern the rights and
obligations of a Replaced Lender with respect to any Loans made or any other
actions taken by such Lender while it was a Lender.
Article
Miscellaneous
Section .. Notices Unless otherwise specified herein, all notices,
requests and other communications to any party under any Financing Document
shall be in writing (including bank wire, facsimile copy or similar writing)
and shall be given to such party at its address or facsimile number set forth
on the signature pages hereof (or, in the case of any Lender, in its
Administrative Questionnaire) or such other address or facsimile number as
such party may hereafter specify for the purpose by notice to the Agents and
<PAGE>
the Borrower. Each such notice, request or other communication shall be
effective (i) if given by facsimile transmission, when transmitted to the
facsimile number specified in or pursuant to this Section 11.01 and
confirmation of receipt is received, (ii) if given by mail, ten days after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when delivered
at the address specified in or pursuant to this Section 11.01, provided that
notices and requests to the Administrative Agent under Article 2, 8 or 10
shall not be effective until received.
NOTICE TO BORROWER UNDER THIS AGREEMENT OR UNDER ANY OTHER FINANCING
DOCUMENT SHALL CONSTITUTE NOTICE TO THE BORROWER AND ALL GUARANTORS FOR ALL
PURPOSES HEREUNDER AND THEREUNDER, AND NOTICE FROM THE BORROWER UNDER THIS
AGREEMENT OR UNDER ANY OTHER FINANCING DOCUMENT PURPORTING TO BE NOTICE FROM
THE BORROWER OR ANY GUARANTOR SHALL CONSTITUTE NOTICE FROM THE BORROWER OR
SUCH GUARANTOR, AS THE CASE MAY BE, FOR ALL PURPOSES HEREUNDER AND THEREUNDER.
Each Credit Party hereby irrevocably appoints the Borrower as its agent
and attorney-in-fact, with full authority in the place and stead of such
Credit Party and in the name of such Credit Party, from time to time in the
Borrower's discretion to execute and deliver (and receive, where applicable)
Notices of Borrowing, LC Requests, Prepayment Notices and other written
notices and communications hereunder on behalf of such Credit Party to the
Agents and the Lenders, and to deliver unwritten notices and communications to
the foregoing effect, and each Lender Party shall be entitled to rely upon any
such Notice of Borrowing, LC Request, Prepayment Notice, notice or
communication as a notice, communication or consent, as the case may be, of
the Borrower, and shall incur no liability to the Borrower or any Credit Party
in acting upon any such notice or communication, that such Lender Party
believes in good faith to have been given by a duly authorized officer or
other person authorized by the Borrower.
Section .. No Waiver No failure or delay by the Lender Parties, or any of
them, in exercising any right, power or privilege under any Financing Document
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies provided in the
Financing Documents shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section .. Expenses; Indemnification ( ) In addition to any expenses set
forth in and required to be paid to any Persons pursuant to the Interim
Borrowing Order or the Borrowing Order or any other applicable order of the
Court, the Borrower shall pay on demand all the actual and reasonable costs,
fees and expenses of (i) preparation of the Financing Documents and any
consents, amendments, waivers or other modifications thereto; (ii) furnishing
all opinions by counsel for the Borrower and their Subsidiaries (including any
opinions reasonably requested by the Administrative Agent or Required
<PAGE>
Lenders as to any legal matters arising hereunder) and of the Borrower's and
its Subsidiaries' performance of and compliance with all agreements and
conditions on its part to be performed or complied with under this Agreement
and the other Financing Documents, including with respect to confirming
compliance with environmental, insurance and solvency requirements; (iii)
counsel to the Agents (including allocated costs of internal counsel and fees
and expenses of special New York and California counsel to the Agents) in
connection with the negotiation, preparation, execution and administration of
the Financing Documents and any consents, amendments, waivers or other
modifications thereto and any other documents or matters requested by the
Borrower or its Subsidiaries; (iv) creating and perfecting Liens in favor of
Collateral Agent on behalf of Lenders pursuant to any Collateral Document,
including filing and recording fees, expenses and taxes, stamp or documentary
taxes, search fees, title insurance premiums, and reasonable fees, expenses
and disbursements of counsel to any Agent and of counsel providing any
opinions that any Agent or Required Lenders may request in respect of the
Collateral Documents or the Liens created pursuant thereto; (v) any advisors,
auditors, accountants or appraisers or other consultants or agents employed or
retained by any Agent or the Lenders or their counsel including, without
limitation, any financial, accounting or valuation advisors; (vi) the Agents
in connection with the custody or preservation of any of the Collateral; (vii)
the Agents in connection with the syndication of the Commitments and the
negotiation, preparation and execution of the Financing Documents and any
consents, amendments, waivers or other modifications thereto and the
transactions contemplated thereby, and (viii) if any Event of Default occurs,
any Lender Party, including actual and reasonable costs, fees and expenses of
counsel, in connection with such Event of Default and collection, bankruptcy,
insolvency (including pursuant to the Chapter 11 Cases) and other enforcement
proceedings resulting therefrom, including the negotiation of any
restructuring or "workout" of the Borrower's obligations under the Financing
Documents. Without limiting the generality of the foregoing, if, at any time
or times, regardless of the existence of an Event of Default, any Agent or any
Lender shall incur actual and reasonable fees, costs and expenses itself or
employ counsel or other professional advisors, including, but not limited to,
environmental, financial and management consultants, for advice or other
representation or shall incur legal, appraisal, accounting, consulting or
other actual and reasonable fees, costs and expenses in connection with:
( ) any litigation, contest, dispute, suit, proceeding or action
(whether instituted by any Agent, any Lender, the Borrower or any other
Person) in any way relating to the Collateral, any of the Financing
Documents, or any other agreements to be executed or delivered in
connection therewith or herewith, including any litigation, contest,
dispute, suit, case, proceeding or action, and any appeal or review
thereof, in connection with a case or proceeding commenced by or against
the Borrower or any other Person that may be obligated to any Agent or
any Lender by virtue of the Financing Documents, under the Bankruptcy
Code, or any other applicable Federal, state, or foreign bankruptcy or
other similar law;
( ) any attempt to enforce any rights or remedies of any Agent or any
Lender against the Borrower, or any other Person that may be obligated to
any Agent or any Lender by virtue of being a party to any of the
Financing Documents;
<PAGE>
( ) any attempt (including, without limitation, utilizing employees
of any Agent or Lender) to appraise, inspect, verify, protect, collect,
sell, liquidate or otherwise dispose of the Collateral; or
( ) in the case of the Agents and, if any Event of Default occurs,
the Lenders, any Chapter 11 Case (including, without limitation, the on-
going monitoring by any Agent of any Chapter 11 Case, including
attendance by any Agent and its counsel at hearings or other proceedings
and the on-going review of documents filed with a Court in respect
thereof) and Agents' and Lenders' interests with respect to the Borrower
(including, without limitation, the on-going review of the Borrower's
business, assets, operations, prospects or financial condition as any
Agent shall deem necessary), the Collateral or the Obligations;
then, and in any such event, the reasonable fees and expenses incurred by any
Agent, such Lender and such attorneys and other professional advisors and
consultants arising from such services, including those of any appellate
proceedings, and all reasonable expenses, costs, charges and other fees
incurred by such counsel or other professionals in any way or respect arising
in connection with or relating to any of the events or actions described in
this Section 11.03 shall be payable, on demand, by the Borrower to any Agent
and such Lender and shall be additional Obligations secured under the
Collateral Documents and the other Financing Documents. Without limiting the
generality of the foregoing, such expenses, costs, charges and fees may
include: paralegal fees, costs and expenses; accountants' and experts' fees,
costs and expenses; appraisers' fees, costs and expenses; management and other
consultants' fees, costs and expenses; court costs and expenses; photocopying
and duplicating expenses; court reporter fees, costs and expenses; long
distance telephone charges; communication charges, air express charges;
telegram charges; secretarial overtime charges; and expenses for travel,
lodging and food paid or incurred in connection with the performance of such
legal or other professional services.
( ) In addition to the payment of expenses pursuant to Section 11.03(a),
whether or not the transactions contemplated hereby shall be consummated, the
Borrower agrees to defend (subject to Indemnitee's selection of counsel),
indemnify, pay and hold harmless Agents and Lenders, and the officers,
directors, employees, agents and affiliates of the Agents and Lenders
(collectively called the "Indemnitees"), from and against any and all
Indemnified Liabilities (as hereinafter defined); provided, that the Borrower
shall not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise
solely from the gross negligence or willful misconduct of that Indemnitee as
determined by a final judgment of a court of competent jurisdiction.
As used herein, "Indemnified Liabilities" means, collectively, any and
all liabilities, obligations, losses, damages (including natural resource
damages), penalties, actions, judgments, suits, claims (including
environmental claims), costs (including the costs of any investigation, study,
sampling, testing, abatement, clean-up, removal, remediation or other response
action necessary to remove, remediate, clean up or abate any hazardous
materials activity), expenses and disbursements of any kind or nature
whatsoever (including the reasonable fees and disbursements of counsel for
Indemnitees in connection with any investigative, administrative or judicial
proceeding commenced or threatened by any Person, whether or not any such
Indemnitee shall be designated as a
<PAGE>
party or a potential party thereto, and any fees or expenses incurred by
Indemnitees in enforcing this indemnity), whether direct, indirect or
consequential and whether based on any federal, state or foreign laws,
statues, rules or regulations (including securities and commercial laws,
statutes, rules or regulations and environmental laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of ( ) this Agreement or the other Financing Documents or the
transactions contemplated hereby or thereby (including Lenders' agreement to
make the Loans hereunder or the use or intended use of the proceeds thereof or
the issuance of letters of credit hereunder or the use or intended use of any
thereof, or any enforcement of any of the Financing Documents (including any
sale of, collection from, or other realization upon any of the Collateral or
the enforcement of the Guaranty Agreement, or ( ) any environmental claim or
any hazardous materials activity relating to or arising from, directly or
indirectly, any past or present activity, operation, land ownership, or
practice of Borrower and their Subsidiaries.
To the extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in this Section 11.03(b) may be unenforceable in whole or
in part because they are violative of any law or public policy, the Borrower
shall contribute the maximum portion that it is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all Indemnified
Liabilities incurred by Indemnitees or any of them. Without prejudice to the
survival of any other agreement of the Borrower hereunder, the agreements and
obligations of the Borrower contained in this Section 11.03 (as set forth
herein and incorporated by reference in the Guaranty Agreement) shall survive
the payment in full of the principal of and interest on the Loans and the LC
Reimbursement Obligations.
Section .. Sharing of Set-Offs ( ) Each Lender agrees that if it shall,
by exercising any right of set-off or counterclaim or otherwise, or as
adequate protection of a deposit treated as cash collateral under the
Bankruptcy Code, receive payment of a proportion of the aggregate amount of
principal and interest then due (or overdue) with respect to the Loans and
participations in LC Reimbursement Obligations (if any) held by it which is
greater than the proportion received by any other Lender in respect of the
aggregate amount of principal and interest then due (or overdue) with respect
to the Loans and participations in LC Reimbursement Obligations (if any) held
by such other Lender, the Lender receiving such proportionately greater
payment shall purchase such participations in the Loans and participations in
LC Reimbursement Obligations (if any) held by the other Lenders, and such
other adjustments shall be made, as may be required so that all such payments
of principal and interest with respect to the Loans and participations in LC
Reimbursement Obligations held by the Lenders shall be shared by the Lenders
pro rata, subject to Section 2.18.
( ) Nothing in this Section 11.04 shall impair the right of any
Lender, and notwithstanding the provisions of Section 362 of the Bankruptcy
Code and without application or motion to, or order from, the Court, to
exercise any right of set-off or counterclaim it may have and to apply the
amount subject to such exercise to the payment
<PAGE>
of indebtedness of the relevant Crown Company other than its indebtedness in
respect of the Loans and LC Reimbursement Obligations.
( ) The Borrower agrees, to the fullest extent they may effectively
do so under applicable law, that any holder of a participation in a Loan or LC
Reimbursement Obligation, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation.
Section .. Amendments and Waivers ( ) Neither this Agreement nor any
other Financing Document, nor any terms hereof or thereof, may be amended,
supplemented or modified except in accordance with the provisions of this
Section 11.05.
( ) Except as set forth in subsections (c) through (g) of this
Section 11.05, the Required Lenders (or the Administrative Agent with their
written consent) may from time to time ( ) enter into written amendments,
supplements or modifications of any Financing Document (which shall not be
effective unless signed by each Crown Company party thereto) for the purpose
of adding any provisions to such Financing Document or changing in any manner
the rights of the parties hereunder or thereunder or ( ) waive, on such terms
and conditions as the Required Lenders (or the Administrative Agent with their
written consent) may specify in such instrument, any of the requirements of
any Financing Document or any Default or Event of Default and its consequences
(any such amendment, supplement, modification or waiver, a "Specified
Change"); provided that
( ) without the written consent of the relevant LC Issuing
Bank, no Specified Change shall amend, supplement or otherwise modify any
Letter of Credit or any provision of this Agreement governing the rights
or obligations of such LC Issuing Bank;
( ) without the written consent of the then Agents, no
Specified Change shall amend, modify or waive any provision of Article 9
or any other provision of this Agreement governing the rights or
obligations of the Agents; and
( ) without the written consent of all the Lenders, no
Specified Change shall reduce the percentage specified in the definition
of "Required Lenders."
( ) Without the written consent of the Required Lenders, no Specified
Change shall ( ) waive any of the conditions precedent set forth in Section
3.01 (except that the making of a Loan by any Lender on the date of initial
Borrowing shall be deemed to constitute a waiver of such conditions precedent
by such Lender), ( ) waive any Default or Event of Default and its
consequences or ( ) amend, supplement or otherwise modify any provision of
Section 8.01.
( ) Without the written consent of the all Lenders, no Specified
Change shall take any action which has the effect of releasing all or
substantially all of the Collateral or releasing all or substantially all of
the Guarantors from their obligations under the Guaranty Agreement, except in
each case as expressly provided in this Agreement or any Collateral Document.
( ) Without the written consent of all the Lenders, no Specified
Change shall ( ) consent to the assignment, transfer or delegation by the
Borrower of any of its rights and obligations under the Financing Documents,
( ) increase the aggregate amount of the Credit Exposure of all Lenders or
include, as indebtedness under this Agreement, any
<PAGE>
indebtedness of the Crown Companies other than the Borrower's indebtedness
under the Credit Facilities or ( ) change the priority claim status of the
Obligations.
( ) Without the written consent of each Lender directly affected
thereby, no Specified Change shall reduce the amount or extend the scheduled
date of maturity of any Loan, or reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof, or
increase the amount or extend the expiration date of any Commitment (it being
understood that no amendment, modification or waiver of any condition
precedent, covenant or Default shall constitute an increase in any Commitment
of any Lender, and that no increase in the available portion of any Commitment
of any Lender shall constitute an increase in such Commitment of such Lender)
or amend, modify or waive any provision of this subsection (f).
( ) Without the written consent of the Administrative Agent, the
Syndication Agent and Supermajority Lenders, no Specified Change shall modify
the definitions of "Borrowing Base" or "Supermajority Lenders."
( ) Prior to the date on which the Borrowing Order is entered, the
Administrative Agent and the Syndication Agent, acting jointly, shall be
entitled, without the consent of the Borrower, the Guarantor or any other
party (but only after consultation with the Borrower and disclosure to the
court presiding in the Chapter 11 Cases) to amend this Agreement to change the
interest rates, fees and other terms of the credit facility provided hereunder
if the syndication of this facility shall not have been completed and the
Administrative Agent and the Syndication Agent determine, in their exclusive
discretion, that such changes are necessary to ensure syndication of this
facility is completed in a manner satisfactory to the Administrative Agent and
the Syndication Agent.
( ) Any waiver, amendment, supplement or modification permitted under
this Section 11.05 shall apply equally to each of the Lenders and shall be
binding upon the Lenders, the Agents, all future holders of the Loans, the
Borrower and the Guarantors.
Section .. Successors and Assigns ( ) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower may not assign or
otherwise transfer any of its rights under this Agreement without the prior
written consent of all the Lenders and the LC Issuing Banks. Any attempted
assignment or transfer in contravention of the foregoing shall be null and
void.
( ) Any Lender may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in any or all of
its Loans or its LC Exposure. If any Lender grants a participating interest to
a Participant, whether or not upon notice to the Crown Companies and the
Agents, such Lender shall remain responsible for the performance of its
obligations hereunder, and the Borrower and the Agents shall continue to deal
solely and directly with such Lender in connection with such Lender's rights
and obligations under the Financing Documents. Any agreement pursuant to which
any Lender may grant such a participating interest shall provide that such
Lender shall retain the sole right and responsibility to enforce the
obligations of the Crown Companies or any other party under the Financing
Documents, including the right to approve any amendment, modification or
waiver of any provision of the Financing Documents; provided that such
participation agreement may provide that ( ) such Lender will not agree to
any modification, amendment or waiver of this Agreement described in Section
11.05(f) without the consent of the Participant and ( ) such Lender will
agree to
<PAGE>
vote the Participant's participating interest with respect to any matter
requiring a vote of all Lenders under the Security Agreement as the
Participant may direct. The Borrower agrees that each Participant shall, to
the extent provided in its participation agreement, be entitled to the
benefits of Section 2.06(k) and Article 10 with respect to its participating
interest. An assignment or other transfer which is not permitted by Section
11.06(c) or (d) shall be given effect for purposes of this Agreement only to
the extent of a participating interest granted in accordance with this
subsection (b).
( ) Any Lender may at any time on or after the Closing Date assign to
one or more (x) Eligible Assignees or (y) affiliates or Related Funds of such
transferor Lender (each such Eligible Assignee, affiliate or Related Fund
being an "Assignee") all, or a ratable portion (i.e., a pro rata assignment
(based on the respective principal amounts thereof then outstanding or in
effect) of its rights and obligations under the Credit Facilities, and such
Assignee shall assume such rights and obligations, with notice to the Borrower
and with (and subject to) the consent of the Administrative Agent and each LC
Issuing Bank (each such consent to be given or withheld in the sole discretion
of the Administrative Agent or such LC Issuing Bank, as the case may be);
provided that:
( ) any assignment of only a ratable portion of the transferor
Lender's rights and obligations shall be equivalent, in the case of each
Assignee, to an initial Commitment of not less than $1,000,000 in the
aggregate;
( ) no such consent shall be required if (x) the Assignee is an
affiliate or Related Fund of such transferor Lender, (y) the Assignee is
already a Lender immediately prior to such assignment or (z) an Event of
Default shall have occurred and be continuing when such assignment is
made; provided that in each of the foregoing cases written notice of such
assignment shall be given to the Administrative Agent and the Borrower;
( ) such assignment may be made to an Assignee that is already a
Lender, or made by a Lender to one of its Related Funds, without regard
to the foregoing minimum assignment amount;
( ) the parties to each such assignment shall execute and deliver to
the Administrative Agent an Assignment Agreement for its acceptance and
recording in the Register at least two Domestic Business Days prior to
the proposed effective date of such assignment; and
( ) the Assignee under each such assignment (unless it is already a
Lender) shall deliver to the Administrative Agent a completed
Administrative Questionnaire.
When (A) such an Assignment Agreement (together with an Administrative
Questionnaire, if required) has been delivered to the Administrative Agent,
(B) such assignment has been recorded in the Register, and (C) such Assignee
has paid to such transferor Lender an amount equal to the purchase price
agreed between them, such Assignee shall be a Lender party to this Agreement
and shall have all the rights and obligations of a Lender with outstanding
Loans and/or Commitments as set forth in such instrument of assignment, and
the transferor
<PAGE>
Lender shall be released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall be required. Upon
the consummation of any assignment pursuant to this subsection (c), (x) the
Administrative Agent shall notify the Collateral Agent thereof and (y) the
transferor Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note complying with the
provisions of Section 2.03 is issued to the Assignee. In connection with any
such assignment, the transferor Lender shall pay to the Administrative Agent
an administrative fee for processing such assignment in the amount of $3,500.
If the Assignee is organized under the laws of a jurisdiction outside the
United States, it shall deliver to the Borrower and the Administrative Agent
certification as to exemption from deduction or withholding of United States
federal income taxes in accordance with Section 10.02. Anything contained
herein to the contrary notwithstanding, the Administrative Agent shall not be
required to accept and record assignments hereunder on more than one day
during each week, and each assigning Lender shall coordinate each assignment
with the Administrative Agent so that the proposed effective date of such
assignment shall be the same date as the effective date of each other
assignment during the relevant week by each other assigning Lender.
( ) Any Lender may at any time assign all or any portion of its Loans
or its Notes as security to a Federal Reserve Bank. No such assignment or
pledge shall release the transferor Lender from its obligations hereunder.
( ) The Administrative Agent (acting, for this purpose only, as agent
for the Borrower) shall maintain at its address at which notices are to be
given to it pursuant to Section 11.01 a copy of each instrument of assignment
delivered to it pursuant to subsection (c) of this Section 11.06 and a
register for the recordation of the names and addresses of the Lenders, their
Commitments and the principal amounts of their respective Loans outstanding
from time to time (the "Register"). The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Guarantors, the Agents and the Lenders may treat each Person whose name is
recorded in the Register as a Lender for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender Party
at any reasonable time and from time to time upon reasonable prior notice.
( ) No Assignee, Participant or other transferee of any Lender's
rights shall be entitled to receive any greater payment under Section 2.06(k),
10.02, 10.03 or 10.04 than such Lender would have been entitled to receive
with respect to the rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the provisions of Section
10.02, 10.03 or 10.04 requiring such Lender to designate a different
Applicable Lending Office under certain circumstances or at a time when the
circumstances giving rise to such greater payment did not exist.
Section .. Margin Stock Each of the Lenders represents to the Agents and
each of the other Lenders that it in good faith is not relying upon any Margin
Stock as collateral in the extension or maintenance of the credit provided for
in this Agreement.
Section .. Governing Law; Submission to Jurisdiction THIS AGREEMENT, THE
NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES. SUBJECT TO THE JURISDICTION OF THE COURT, THE BORROWER
HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF
<PAGE>
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES
OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO ANY OF THE FINANCING
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY. THE BORROWER IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section .. Counterparts; Integration This Agreement and any amendment to
this Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto were
upon the same instrument. This Agreement (together with the other Financing
Documents) constitutes the entire agreement and understanding among the
parties hereto and supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
Section .. Waiver of Jury Trial EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THE FINANCING DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREBY. 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 FINANCING
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 11.10.
Section .. Confidentiality Each Lender Party agrees to keep any non-
public information delivered or made available by any Crown Company to it
confidential and to use such information only for the purpose of evaluating,
approving, structuring and administering the Loans and Letters of Credit;
provided that nothing herein shall prevent any Lender Party from disclosing
such information ( ) to Persons employed or retained by such Lender Party who
are engaged or expected to be engaged in evaluating, approving, structuring or
administering the Loans and Letters of Credit, ( ) to any other Person if
reasonably incidental to the administration of the Loans or Letters of Credit,
( ) to any other Lender Party, ( ) pursuant to any subpoena or express
direction of any court or other authorized government agency or as otherwise
required by law, ( ) upon the request or demand of any bank regulatory agency,
bank examiner or comparable authority, ( ) which has theretofore been
publicly disclosed or is otherwise available to such Lender Party on a non-
confidential basis from a source that is not, to its knowledge, subject to a
confidentiality agreement any Crown Company, ( ) in connection with any
litigation to
<PAGE>
which any Lender Party or its subsidiaries or Parent may be a party, ( ) to
the extent necessary in connection with the exercise of any remedy hereunder,
( ) to such Lender Party's affiliates, legal counsel and independent
auditors, ( ) to any actual or proposed Participant or Assignee that has
signed a written agreement containing provisions substantially similar to
this Section 11.11 or ( ) any other Person approved by the Borrower in
writing. Any Lender Party that discloses confidential information to other
Persons as contemplated by clause (i), (ii) or (ix) of the foregoing proviso
shall inform such other Persons of the confidential nature of such information
and shall instruct them to keep such information confidential (except for
disclosures permitted by the foregoing proviso). Before any Lender Party
discloses confidential information pursuant to clause (iv) or (vii) of the
foregoing proviso, such Lender Party shall, to the extent permitted by law,
use its best efforts to advise Crown Paper of such proposed disclosure so that
Crown Paper may, in its discretion, seek an appropriate protective order. If
and to the extent requested to do so by the Borrower, the Administrative Agent
may deliver copies of information supplied to it pursuant to Section 5.01 to
any Person referred to in clause (x) or (xi) of the foregoing proviso.
Anything herein to the contrary notwithstanding, no Lender Party shall have
any liability with respect to disclosure of confidential information by
electronic transmission, including, without limitation, facsimile, e-mail and
internet communication, as long as such Lender Party exercises reasonable care
in effecting such transmission.
Section .. Parties Including Trustees; Court Proceedings This Agreement
and the other Financing Documents shall be binding upon, and inure to the
benefit of, the successors of each Agent and each Lender, and the assigns,
transferees and endorsees of each Agent and each Lender. The security
interests and Liens created in this Agreement, the Collateral Documents and
the other Financing Documents shall be and remain valid and perfected, and the
claims of the Agents and the Lenders hereunder valid and enforceable in
accordance with the terms hereof, notwithstanding the discharge of the
Borrower pursuant to 11 U.S.C. (S)1141, the conversion of any Chapter 11 Case
or any other bankruptcy case of any Credit Party to a case under Chapter 7 of
the Bankruptcy Code, the dismissal of any Chapter 11 Case or any subsequent
Chapter 7 case or the release of any Collateral from the property of any
Credit Party. The security interests and Liens created in this Agreement, the
Collateral Documents and the other Financing Documents shall be and remain
valid and perfected without the necessity that any Agent file financing
statements or otherwise perfect its security interests or Liens under
applicable law. This Agreement, the claims of the Agents and the Lenders
hereunder, and all security interests or Liens created hereby or pursuant
hereto or by or pursuant to the Collateral Documents or any other Financing
Document shall at all times be binding upon Credit Parties, the estates of
Credit Parties and any trustee appointed in any Chapter 11 Case or any Chapter
7 case, or any other successor in interest to the Borrower. This Agreement
shall not be subject to Section 365 of the Bankruptcy Code.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
Borrower:
CROWN PAPER CO.
By: /s/ R. Neil Stuart
------------------
Title: Vice President
Notice Address for the Borrower:
4445 Lake Forest Drive
Suite 700
Cincinnati, OH 45242
Attention: R. Neil Stuart
Facsimile: (513) 769-2799
with a copy to: Shearman & Sterling
Address: 599 Lexington Ave.
New York, NY 10022
AGENTS AND LENDERS:
- ---------------------------------------------
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Administrative Agent and as a Lender
By: /s/ Unn Boucher
---------------
Title: Vice President
For Wire Transfers:
ABA: 021000238
For credit to Loan Unit 8
Account No.: 99999090
Ref.: Crown Paper Co.
Notices Relating to
Borrowing, Operations, etc.:
<PAGE>
J.P. Morgan Services
500 Stanton Christiana Road
Newark, Delaware 19713
Attention: Crown Paper Operations Officer
Telephone: (302) 634-4264
Facsimile: (302) 634-4300
All Other Communications:
Morgan Guaranty
Trust Company of New York
60 Wall Street
New York, New York 10260
Attention: Unn Boucher
Telephone: (212) 648-7047
Facsimile: (212) 648-5005
and
---
J.P. Morgan Services
500 Stanton Christiana Road
Newark, Delaware 19713
Attention: Renee Richmond
Telephone: (302) 634-3316
Facsimile: (302) 634-4300
THE CHASE MANHATTAN BANK,
as Syndication Agent and a Lender
By: /s/ John P. McDonagh
--------------------
<PAGE>
Title: Managing Director
The Chase Manhattan Bank
380 Madison Avenue
9th Floor
New York, NY 10017
Attention: John McDonagh
Telephone: 212-622-3638
Facsimile: 212-622-3783
GOLDMAN SACHS CREDIT PARTNERS L.P.
By: /s/ Bruce Mendelsohn
--------------------
Title: Authorized Signatory
PRESIDENT & FELLOWS OF HARVARD
COLLEGE
By: Regiment Capital Management, LLC,
as its Investment Advisor
By: Regiment Capital Advisors, LLC,
its Manager and pursuant to delegated
authority
By: /s/ Timothy S. Peterson
-----------------------
Title: Authorized Signatory
REGIMENT CAPITAL, LTD.
By: Regiment Capital Management, LLC,
as its Investment Advisor
By: Regiment Capital Advisors, LLC,
its Manager and pursuant to delegated
authority
By: /s/ Timothy S. Peterson
-----------------------
<PAGE>
Title: Authorized Signatory
NATEXIS BANQUE BFCE
By: /s/ Frank H. Madden, Jr.
------------------------
Title: Vice President & Group Manager
By: /s/ Jordan Sadler
-----------------
Title: Assistant Vice President
VAN KAMPEN PRIME RATE INCOME
TRUST
By: Van Kampen Investment Advisory Corp.
By: /s/ Doug Winchell
-----------------
Title: Authorized Signatory
PILGRIM PRIME RATE TRUST
By: Pilgrim Investment Inc.,
as its Investment Manager
By: /s/ Charles E. LeMieux, CFA
---------------------------
Title: Assistant Vice President
BANK OF AMERICA, N.A.
By: /s/ Edward Harmon
-----------------
Title: Director
BANKERS TRUST COMPANY
By: /s/ Anne Marie Reilly-Papazoglou
--------------------------------
Title: Director
<PAGE>
BEAR STEARNS INVESTMENT PRODUCTS,
INC.
By: /s/ Greg Hanley
---------------
Title: Authorized Signatory
<PAGE>
Commitment Schedule
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Lenders Commitment Amount Commitment
Percentage
- ---------------------------------------------------------------------------------------------------
<S> <C> <C>
Original Lenders
----------------
Morgan Guaranty Trust Company $13,750,000 13.75%
of New York
60 Wall Street, 19th Floor
New York, NY 10260
Attn: Unn Boucher
Tel: 212-648-7047
Fax: 212-648-5005
- ---------------------------------------------------------------------------------------------------
The Chase Manhattan Bank, N.A. $13,750,000 13.75%
380 Madison Avenue
New York, NY 10017
Attn: John McDonagh
- ---------------------------------------------------------------------------------------------------
New Lenders
-----------
Bank of America, N.A. $ 4,000,000 4%
335 Madison Avenue
New York, NY 10017
Attn: Mr. Fred Zagar
- ---------------------------------------------------------------------------------------------------
Bankers Trust Company $ 2,500,000 2.5%
Loan Syndications Division
Bankers Trust Plaza, 14th Floor
New York, NY 10006
Attn: Anne Marie Reilly
Tel: 212-250-8283
Fax: 212-250-7351
- ---------------------------------------------------------------------------------------------------
Bear Stearns Investment Products Inc. $ 4,000,000 4%
245 Park Avenue
New York, NY 10167
Attn: Keith Barnish
Tel: 212-272-6082
Fax: 212-272-5446
- ---------------------------------------------------------------------------------------------------
Goldman Sachs Credit Partners L.P. $27,000,000 27%
85 Broad Street, 27th Floor
New York, NY 10004
Attn: Kathy King
Tel. (212) 902-4425
Fax. (212) 346-2608
- ---------------------------------------------------------------------------------------------------
Natexis Banque BFCE $ 5,000,000 5%
645 Fifth Avenue, 20th Floor
- ---------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
<S> <C> <C>
New York, NY 10022
Attn: Jordan Sadler
Tel: 212-872-5000
Fax: 212-872-5045
- ---------------------------------------------------------------------------------------------------
President & Fellows of Harvard College $ 2,000,000 2%
c/o Regiment Capital Advisors
70 Federal Street, 7th Floor
Boston, MA 02110
Attn: Timothy Peterson
Tel: 617-488-1660
Fax: 617-488-1660
Regiment Capital, Ltd. $ 8,000,000 8%
c/o Regiment Capital Advisors
70 Federal Street, 7th Floor
Boston, MA 02110
Attn: Timothy Peterson
Tel: 617-488-1600
Fax: 617-488-1660
- ---------------------------------------------------------------------------------------------------
Pilgrim Prime Rate Trust $ 5,000,000 5%
Two Renaissance Square
40 North Central Avenue, Suite 1200
Phoenix, AZ 85004-4424
Attn: Charles LeMieux
Tel: 602-417-8214
Fax: 602-417-8327
- ---------------------------------------------------------------------------------------------------
Van Kampen Prime Rate Income Trust $15,000,000 15%
One Parkview Plaza
Oakbrook Terrace, IL 60181
Attn: Howard Tiffin
Tel: 630-684-6000
Fax: 630-684-6740
- ---------------------------------------------------------------------------------------------------
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-START> DEC-27-1999
<PERIOD-END> MAR-26-2000
<CASH> 8,417
<SECURITIES> 0
<RECEIVABLES> 50,236
<ALLOWANCES> 400
<INVENTORY> 68,299
<CURRENT-ASSETS> 137,758
<PP&E> 854,535
<DEPRECIATION> 512,548
<TOTAL-ASSETS> 571,442
<CURRENT-LIABILITIES> 605,245
<BONDS> 0
0
0
<COMMON> 139,136
<OTHER-SE> (278,196)
<TOTAL-LIABILITY-AND-EQUITY> 571,442
<SALES> 159,701
<TOTAL-REVENUES> 159,701
<CGS> 158,654
<TOTAL-COSTS> 158,654
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 13,578
<INCOME-PRETAX> (25,389)
<INCOME-TAX> 146
<INCOME-CONTINUING> (25,535)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (25,535)
<EPS-BASIC> 0
<EPS-DILUTED> 0
</TABLE>
